COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72149 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION A.J. STOVALL : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-333790 JUDGMENT: AFFIRM DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: THOMAS REIN (#0041571) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: MARK A. McCLAIN (#0013148) 1677 East 40th Street Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant A.J. Stovall ( appellant ) appeals from his conviction for one count of drug trafficking with the controlled substance being in an amount equal to or exceeding three -2- times the bulk amount; one count of knowingly preparing cocaine for shipment knowing it was intended for sale; one count of possession of criminal tools; and one count of having a weapon while under a disability. Appellant assigns the following errors for review: I. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT ADMITTED INTO EVIDENCE THE STATE'S EXHIBIT NUMBER 13B, WHERE THE STATE FAILED TO AUTHENTICATE SUCH EXHIBIT AND ESTABLISH THE MAINTENANCE OF A CHAIN OF CUSTODY, THEREBY DENYING APPELLANT DUE PROCESS OF LAW. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ADMITTED STATE'S EXHIBIT 6 INTO EVIDENCE BECAUSE IT WAS UNDULY PREJUDICIAL AND DID NOT ACCURATELY REPRESENT WHAT IT WAS PURPORTED TO BE. III. APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. IV. APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE HIS CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. V. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT ENGAGED IN BIASED CONDUCT TOWARD THE PROSECUTOR'S WITNESSES. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT'S MOTION TO REMOVE FOR CAUSE TWO VENIREMEN WHO STATED THAT THEY COULD NOT BE UNBIASED IN CONSIDERING THE TESTIMONY OF POLICE OFFICERS. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On January 25, 1996, appellant was arrested at 13709 Blenheim -3- Avenue in Cleveland on drug charges. A four count indictment was issued charging appellant with drug trafficking for possession of cocaine in an amount equal to or exceeding three times the bulk amount, drug trafficking for preparation of cocaine for shipment knowing it was intended for sale, possession of criminal tools, and with having a weapon under a disability. On January 28, 1997, appellant was tried before a jury on the charges. Cleveland police detective Gregory Hunter testified that he and other detectives set up an investigation of 13709 Blenheim after receiving information that excessive drug sales were taking place there. The detectives had a physical description of the person they were investigating and the name of A.J. The detectives conducted surveillance at that address for about two weeks. 13709 Blenheim was a building consisting of four apartments with two apartments located on each of the two floors. The detectives observed individuals come to the building and knock on the door. Appellant came downstairs and let the people in the building. Appellant would return to his apartment. A short time later, the individuals would leave the building. On January 24, 1996, the detectives decided to make a controlled buy from the location by using a confidential informant. The detectives first would make a xerox copy of the money to be used in the controlled buy. The confidential informant then was searched to make sure he had no money or narcotics on his person. Detectives Hunter and Johnson drove the confidential informant to 13709 Blenheim in an unmarked police vehicle. The detectives gave -4- the confidential informant the money which previously was xeroxed to make the controlled purchase. The confidential informant exited the car and went to the door of the apartment building. He knocked on the door and appellant came to the door and let the confidential informant into the building. The two spoke in the hallway. Appellant then went up the stairs to an apartment on the second floor of the building. He returned to the downstairs hallway and exchanged drugs for the buy money. The confidential informant then left the building and returned to the detectives' vehicle. He gave the detectives what was later determined to be 3.47 grams of crack cocaine which he had purchased for the one hundred twenty dollars given to him by the detectives. Detective Hunter testified that he and Detective Johnson were able to observe the transaction because the door of the apartment building had a glass panel in it. There also was glass on either side of the door. Detective Hunter stated they clearly could see the transaction which took place in the hallway of the apartment building. After the controlled buy was made, the detectives obtained a search warrant for apartments one and four. On January 25, 1996, the detectives decided to make another controlled purchase from that address. They used the same confidential informant as the previous day and followed the same procedure. Appellant again walked out of apartment one to let the confidential informant into the building. This time he returned to apartment one after speaking to the confidential informant. Appellant returned a short time later and exchanged what was -5- determined to be 3.41 grams of crack cocaine for the one hundred twenty dollars of buy money. When the confidential informant left the apartment building, appellant followed him out of the building and stood for a few moments on the sidewalk. Approximately one and a half hours after the second controlled buy was made, a search warrant was executed by the SWAT team and the detectives. Appellant was found in apartment one with another man and a small child. Appellant was the boyfriend of the resident of the apartment, Belinda Santos, and the father of her child. He stayed at the apartment three to four times a week. Detective Hunter believed the bedroom in the apartment was appellant's and Santos's after talking to appellant. Appellant's clothes were found in the bedroom. At the time of his arrest, appellant had eight hundred twenty- one dollars in his front pocket. The money used to make the controlled purchase was among that money. An additional one hundred ninety dollars was found on the couch in the living room in which appellant had been sitting at the time the search warrant was executed. Two large rocks of crack cocaine were found in the bedroom. The cocaine was not the size normally used by individuals but large enough that it would be cut up for sale. Three bags of marijuana and a handgun were found in the bedroom. Police discovered crack cocaine in the kitchen freezer wrapped in aluminum foil and plastic. A scale was confiscated from the kitchen. Additional crack cocaine was found in a crawl space located between the -6- apartments on the second floor. Appellant presented two witnesses in his defense. Appellant's uncle testified he does maintenance on the apartment building and that at the time of the search the door was solid and the windows on either side of the door were covered with plywood. The owner of the building, and father of appellant's cousin, also testified that the door was solid and the side windows were covered. Appellant was convicted of all four counts of the indictment. This appeal follows. II. In his first assignment of error, appellant argues the trial court committed reversible error by admitting a photocopy of the currency used to make the second controlled buy into evidence. Appellant maintains the prosecution failed to establish a sufficient foundation for the exhibit or properly establish a chain of custody for the money depicted in the photocopy. At trial, defense counsel argued that the photocopy should not be admitted because it was not the best evidence. Defense counsel stated that the money itself was the best evidence and that the photocopy should not be admitted in place of the money. No argument was made regarding the chain of custody of the money. The admission and exclusion of evidence are within the sound discretion of the trial court. A reviewing court will not overturn the trial court's decision absent a clear abuse of discretion and the defendant was materially prejudiced by the determination. State v. Mays (1996), 108 Ohio App.3d 598. -7- Evid.R. 1003 allows a duplicate to be admitted to the same extent as the original unless a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original. A party seeking to exclude a duplicate from evidence pursuant to Evid.R. 1003 bears the burden of demonstrating that the duplicate should not be admitted. The determination of whether or not to admit a duplicate is within the sound discretion of the trial court. Natl. City Bank v. Fleming (1981), 2 Ohio App.3d 50, 57. In State v. Williams (1982), 7 Ohio App.3d 160, the defendant argued that photostatic copies of money purportedly taken during a robbery were not the best evidence and should not have been admitted into evidence. The court concluded that the duplicates were admissible under Evid.R. 1003. Although appellant did not argue chain of custody below, it will be addressed upon appeal. Chain of custody is a part of the authentication and identification mandate set forth in Evid.R. 901, and the state has the burden of establishing the chain of custody of a specific piece of evidence. State v. Barzacchini (1994), 96 Ohio App.3d 440, 457-458. The state is required only to establish that it is reasonably certain that substitution, alteration or tampering did not occur. State v. Blevins (1987), 36 Ohio App.3d 147, 150. A chain of custody can be established by direct testimony or by inference. Chain of custody objections go to the weight of the evidence, not to its admissibility. Mays, supra. As appellant is arguing admissibility and not weight, his chain of -8- custody argument must be disregarded. Appellant also argues the state did not establish a proper foundation for the admission of the exhibit in question. Detective Hunter testified that the exhibit was a photostatic copy of the buy money after it was spent in the controlled buy on January 25, 1996. The exhibit depicted the buy money which was found in appellant's pocket at the time of arrest. Detective Hunter testified that he compared the serial numbers of the money shown in the exhibit with the photostatic copy of the buy money taken prior to the controlled buy. The serial numbers on the bills matched. Based on this testimony, the prosecution established a sufficient foundation showing that the money recovered from appellant was that used in the controlled buy. Appellant's first assignment is not well-taken. III. In his second assignment of error, appellant contends the trial court erred by admitting into evidence a photograph of the cocaine found in the freezer. Appellant submits the probative value of the photograph was outweighed by the danger of unfair prejudice, confusion of the issues, and of misleading the jury because the photograph did not show the narcotics in the state in which it was discovered by the police. In the photograph, the cocaine is shown unwrapped, exposed, and in plain view. Appellant argues the photograph would lead the jury to believe the drugs were discovered in this open manner instead of concealed and wrapped in aluminum foil. -9- Evid.R. 403(A) provides that exclusion of relevant evidence is mandatory when: Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Under Evid.R. 403(A), photographic evidence is admissible unless the photograph's probative value as evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Jackson (1991), 57 Ohio St.3d 29, 37-38. A trial court's decision to admit photographic evidence must not be disturbed on appeal absent a clear abuse of discretion. State v. Landrum (1990), 53 Ohio St.3d 107, 121. There was ample testimony admitted at trial that the cocaine discovered in the freezer of apartment one was wrapped in aluminum foil at the time it was found by the police. There was testimony the police unwrapped the foil to discover the cocaine inside. Considering the testimony and the questions by defense counsel regarding this same issue of the depiction of the cocaine in the photograph, there was little likelihood the jury would believe the cocaine was discovered in an open piece of aluminum foil. The probative value of the photograph clearly outweighed any danger of unfair prejudice to appellant. The trial court did not abuse its discretion by admitting the photograph. Appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant asserts his -10- conviction was not supported by sufficient evidence. Appellant first contends the trial court erred by admitting inadmissible hearsay when it permitted the prosecution to introduce the police statement of Belinda Santos, a resident of the apartment. The prosecution had subpoenaed Santos but she did not appear for trial. The trial court ruled Santos was unavailable under Evid.R. 804 and that the defense had opened the door to the evidence because defense counsel asked Detective Hunter why appellant was not charged within forty-eight hours of his arrest. In the police statement, Santos stated that appellant was her boyfriend and the father of her child. Appellant stayed at the apartment three to four times a week. She did not know that appellant sold drugs out of the apartment but stated appellant kept drugs there in the freezer and in the bedroom. Santos further stated that she was aware that drugs were cooked in apartment four. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. The evidence must be viewed in the light most favorable to the prosecution. State v. Jenks (1991), 71 Ohio St.3d 259. Appellant and the state concentrate their arguments on the availability of Santos. Even if the trial court was correct in its finding that Santos was unavailable pursuant to Evid.R. 804(A), her police statement still would have to meet one of the hearsay -11- exceptions set forth in Evid.R. 804(B). In State v. Williams (1988), 38 Ohio St.3d 346, the court found that a police statement did not fall within any of the hearsay exceptions listed in Evid.R. 804(B). See also State v. Houston (1985), 26 Ohio App.3d 26. Therefore, the trial court erred by admitting the police statement made by Belinda Santos into evidence under Evid.R. 804. The trial court also found the police statement to be admissible because the defense had questioned Detective Hunter about the delay in charging appellant following his arrest. There is no connection between the questions by defense counsel on that issue and the police statement given by Santos. The defense did not open the door to the admission of the police statement. Once error has been found, a reviewing court must determine if the erroneous admission of the evidence in question resulted in prejudicial or harmless error. When making this determination, the entire record must be reviewed with the objectionable evidence being disregarded to decide whether there was otherwise overwhelming evidence of the defendant's guilt. State v. Woods (1988), 48 Ohio App.3d 1. An otherwise valid conviction should not be set aside if the reviewing court confidently can say that, on the whole record, the constitutional error was harmless beyond a reasonable doubt. Williams, supra. Detective Hunter testified that before the controlled buys took place, the police had a physical description of appellant and knew the first name of the individual they were investigating was A.J. Police set up surveillance and observed appellant let -12- different individuals into the apartment building. Appellant would return to his apartment. A short time later, the individuals would exit the building. During the first controlled buy, police observed appellant come downstairs and let the confidential informant into the building. Appellant then returned upstairs to an apartment on the second floor. Appellant returned a short time later and exchanged drugs for the buy money provided by police to the confidential informant. During the second controlled buy, appellant's behavior followed a similar pattern to the previous buy except appellant went into the downstairs apartment, apparently to retrieve the crack cocaine. Appellant then followed the confidential informant out of the building onto the street where the police detectives were able to clearly observe appellant. Approximatelyone and a half hours later, police executed the search warrant. Appellant was found in the downstairs apartment one. One hundred ninety-one dollars was found on the couch near appellant and eight hundred twenty-one dollars was found in appellant's front pocket. The latter money included the buy money used by the confidential informant to procure the crack cocaine from appellant. Narcotics and a gun were found in the bedroom shared by appellant and his girlfriend, Belinda Santos. More crack cocaine was discovered wrapped in aluminum foil in the freezer of the apartment. Police found crack cocaine in a sock located in a crawl space on the upper floor. Appellant contends that the state failed to sufficiently -13- connect him to the narcotics or drugs found in the apartment building. However, appellant was observed selling narcotics twice to the confidential informant. Prior to that, appellant was seen engaged in activity indicative of the drug trade. The narcotics were found in the downstairs apartment one in which appellant admitted staying. His clothes were found in the bedroom. Appellant admitted to police that the bedroom was his when he stayed at the apartment. The gun was found in that bedroom. For the second controlled buy made shortly before the search was conducted, appellant first let the confidential informant into the building and then returned to apartment one before selling crack cocaine to the confidential informant. During the first buy, appellant was observed walking upstairs to an area where the crack cocaine was discovered in the crawl space. The cocaine discovered in the bedroom and crawl space were large rocks of the type which would be cut up for sale. All of this evidence indicates the narcotics found in the apartment building belonged to appellant. The other individual who was with appellant at the time of appellant's arrest and Santos were investigated by police and found not to be involved in the sale of the drugs from the apartment building. Appellant was seen going into apartment one and to the second floor of the building immediately before exchanging crack cocaine for money. This is indicative that appellant's hoard of crack cocaine was stored in both locations. Appellant also argues that the detectives could not have seen -14- the alleged drug transactions through the door as they testified. Defense counsel questioned the detectives on this point and both contended they could see the transactions take place. This is a credibility determination which is best left for the jury to resolve. A review of the record indicates that, even without the evidence with regard to the Santos police statement, there was sufficient evidence presented by the state to sustain appellant's conviction. Appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant argues his conviction was contrary to the manifest weight of the evidence. Appellant again asserts that the police detectives could not have seen the drug transactions take place because they testified they were not parked directly in front of the building's door. Appellant maintains that if the detectives were parked in the location indicated in their testimony, they would not have been able to observe the drug sales. When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d -15- 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. Appellant's arguments as to the detectives ability to observe the drug transactions already have been addressed. Doubts about whether such an observation was possible were brought out at trial and apparently rejected by the jury. Credibility determinations are best left to the trier of fact, not a reviewing court. Again, as discussed in the previous assignment of error, there was evidence connecting appellant to the drugs, gun, and criminal tools discovered during the search. Appellant additionally argues that the testimony with regard to the pager identified at trial as belonging to appellant misled the jury. The criminal tool charge regarding the pager was later withdrawn by the prosecution. Appellant argues that Detective Hunter's testimony stated that pagers are used in most drug transactions which led the jury to believe appellant was in possession of a criminal tool, the pager. There was evidence connecting appellant to the other criminal tools set forth in the indictment which were the money and the gun. Therefore, it is unlikely the jury's conviction was influenced by the testimony about the pager. A review of the record indicates the jury did not lose its way. Appellant's conviction was not a manifest miscarriage of -16- justice. The verdict was not against the manifest weight of the evidence. Appellant's fourth assignment of error lacks merit. VI. In his fifth assignment of error, appellant claims that certain remarks made by the trial judge during trial showed partiality to the state's witnesses and thereby prejudiced appellant. Appellant points to remarks made by the trial judge to one police detective who testified that it was nice to meet him, saying good afternoon to another officer, responding to the witness's question asking how the judge was doing and by stating that certain testimony by Officer Hunter was very interesting. Appellant failed to object to the trial court's comments. Absent any plain error, appellant has waived any assertion of error with regard to the comments of the trial judge. State v. Hopfer (1996), 112 Ohio App.3d 521, 537. Under the plain error doctrine, a trial court will not be reversed unless, but for the error, the outcome of the trial clearly would have been different. Notice of plain error is to be taken with the utmost caution and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91. A review of the record reveals no plain error occurred with regard to the trial court's comments. Appellant's fifth assignment of error lacks merit. VII. In his sixth assignment of error, appellant asserts the trial court committed prejudicial error by denying appellant's motion to -17- remove two jurors for cause. Appellant used two of his peremptory challenges to remove the jurors. Appellant argues he could have used his peremptory challenges otherwise if the trial court had removed the jurors. A review of the record indicates appellant did not use all of his allotted peremptory challenges. In order to argue a constitutional violation occurred for the failure to remove a juror for cause, a defendant must use all of his peremptory challenges. State v. Broom (1988), 40 Ohio St.3d 277. As appellant failed to use all of his peremptory challenges, he cannot show any prejudice as a result of the trial court's ruling. Appellant's sixth assignment of error is meritless. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. -18- It is ordered that a special mandate issue out of this court directing the Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and JOSEPH J. NAHRA, J. CONCUR __________________________ LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .