COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72736/72737 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN ROGERS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MAY 21, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-335,625 and : CR-345,852 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DANIEL M. MARGOLIS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO Attorney at Law 75 Public Square, #1016 Cleveland, Ohio 44113-2098 KENNETH A. ROCCO, J.: -2- Defendant-appellant John Rogers appeals from his convictions in two separate cases for possession of cocaine in violation of R.C. 2925.11. Appellant challenges his convictions on numerous grounds, contending the trial court erred in denying his motions to suppress evidence prior to trial, in ordering his two cases to be tried together, in admitting certain evidence at trial, and in giving its instructions to the jury. Appellant further contends the prosecu- tor made an improper argument to the jury and asserts the sentenc- ing statute that applied to his cases is unconstitutional. This court has reviewed the record, finds no reversible error occurred in the proceedings below, and therefore affirms appellant's convictions. Appellant was convicted in Case Number CR-345,852 (hereinafter "#852") based upon an incident that occurred on September 13, 1996. At approximately 7:00 p.m. on that evening, Detective Michael Richmond of the Cleveland Police Department's Auto Theft Unit was on routine patrol in the area of East 123rd Street and Watterson Avenue. As Richmond proceeded northbound on East 123rd Street, he noticed a white Chevrolet Blazer truck parked at the eastside curb. The truck attracted Richmond's attention as he drove past for two reasons. First, it had a temporary license tag attached that indicated it was a 1983 model; however, Richmond observed several components that actually were consistent instead with a 1990 model, including the grill and the driver's side panel. Second, Richmond -3- could see that both the trunk hatch lock and the driver's side door lock bore signs of tampering. Richmond used his police radio to request if the vehicle had been reported stolen. Although he received information that it had not, Richmond knew it was not unusual for the police to discover a stolen vehicle prior to the owner's awareness of the loss; therefore, Richmond resolved to surveil the truck for a time. He stopped one city block north of the Blazer, took a position facing it, and then notified the police dispatcher of his plan, indicating he might need assistance on the matter. After approximately one half hour, Richmond saw someone, later identified as appellant, approach the truck. Appellant opened the driver's side door of the truck and entered it. Soon thereafter, another person, later identified as Konsuelo Lewis, followed. Lewis entered the passenger's side and seated herself next to appellant. Richmond used his police radio to inform other officers that the truck was now occupied, requesting aid in "taking the vehicle down".1Officers Hall and Ruffin were patrolling near that area in their zone car; therefore, they responded with their car's lights activated. Hall, who was driving the zone car, proceeded southbound on East 123rd Street so quickly that he initially passed the Blazer. Richmond notified him of the error, so Hall stopped, turned the 1Quotes indicate testimony given by a witness at either the hearings on appellant's motions to suppress evidence or appellant's trial. -4- zone car around, and approached it from the rear. As the two officers arrived, Richmond drove to meet them, positioning his car to block the Blazer from the front. Since Hall was required to stop the zone car, place the gearshift in the park position and turn off the ignition, Ruffin exited the car a few moments before his partner. In accordance with police training, Ruffin crossed in front of the zone car and quickly proceeded to the driver's side of the Blazer while Hall approached the passenger's side. Both officers saw appellant "make a motion toward the passenger side of the vehicle with his right hand," as though to place an object there. Fearing that appellant might have a weapon, they drew their own service revolvers. Although appellant attempted to exit the vehicle, Ruffin ordered appellant to stay where he was in order to ascertain the risk he posed. At the same time, Hall requested Lewis to open her door and to display her hands. Lewis obeyed. Frightened, upon opening the door, she without thinking "grabbed an item that had been on the seat next to her and displayed it to the officer. Lewis later tes- tified that as appellant observed the police cars stop, he "pulled something out of his pocket," stated, "Oh shit. I have this dope on me," and dropped something near her left thigh. Hall looked at Lewis's hands; in one, he saw a plastic bag containing smaller plastic bags that had a substance inside them. Suspecting the substance was crack cocaine, Hall took the item from Lewis. After securing Lewis, he placed the item into an evidence -5- envelope. Ruffin detained appellant, ensured that he had no weapons, and placed him under arrest. Although the substance inside the bags later was determined to total 20.24 ounces of crack cocaine, further investigation proved the Blazer actually was not a stolen vehicle. Appellant subse- quently was indicted as a result of the incident in #852 on two counts, viz., 1) possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(b); and 2) possession of criminal tools, to wit: money, in violation of R.C. 2923.24. However, the record reflects the indictment was not filed until December 16, 1996. Appellant's conviction in Case Number CR-345,625 (hereinafter "#625") stems from an incident that occurred on the night of October 16, 1996, approximately one month after the first incident. Detectives Terrence Longstreet and Ronald James, Jr., both of the Cleveland Police Department's Fourth District Vice Unit, instituted a surveillance of the area of East 125th Street and Kinsman Avenue2 in response to numerous complaints of drug activity. The detec- tives were in an "undercover vehicle." Shortly after their 11:00 p.m. arrival, the detectives observed a white Nissan Maxima, which had been parked in front of a closed car wash, proceed across East 125th Street into the parking lot of a closed convenience store. The Maxima's driver drove to a telephone. The passenger, later identified as appel- 2Testimony at appellant's trial established this location was within a short distance of the one at which the September 13 incident occurred. -6- lant, exited the car and stood in the parking lot near the car by the sidewalk. Appellant began speaking to another man. The two stood close together; appellant cupped one of his hands and appeared to be displaying something in it to his companion. The two then "looked around, talked for a minute, a few seconds," and appellant's companion passed some paper currency to him. Appellant delivered something in return before the other man departed. Based upon their experience as police officers, the detectives believed a drug sale had just taken place between the two men; therefore, they issued a radio call to the "take down cars" in the area. Detectives Terrence Kennedy and Clayton Darrell were the first officers to respond to the call. In the meantime, appellant re- entered the Maxima. As Kennedy and Darrell arrived at the scene and exited their car, they identified themselves as police officers. Darrell observed appellant moving in the passenger seat; he appeared to be "stuffing something under his rear." Appellant's actions seemed "frantic." Then Kennedy saw one of appellant's hands make a movement toward his mouth. Surmising appellant was attempting to eat some crack cocaine in an effort to destroy it, Kennedy shouted to the other arriving officers. Darrell reached the car and "dragged" appellant out of it. As Darrell did so, he saw what appeared to him to be two rocks of crack cocaine on the passenger seat of the car where appellant had been sitting. Darrell told appellant he was "under arrest." -7- Appellant resisted his arrest "violently"; it required several officers to subdue him. Therefore, as other officers struggled with appellant in an attempt to place handcuffs on him, Darrell retrieved the rocks and placed them in his pocket. Appellant finally was restrained. At that point, he began "to shake violently" and to complain he suffered "chest pains." In order to ascertain whether appellant immediately needed medical assistance, Kennedy asked him what he had swallowed. Appellant responded, "Some rocks." Kennedy radioed for EMS, which arrived some twenty minutes later. Darrell spoke with the other detectives on the scene; one of them, Detective Traine, agreed to take the rocks Darrell had discovered and place them into evidence. Darrell then accompanied appellant in the ambulance. After appellant reached the hospital, the medical personnel there administered syrup of ipecac to induce vomiting; however, at that time, the medication was ineffective. Appellant refused both a "tube" and further treatment; therefore, he was released back into police custody. Darrell's colleagues soon thereafter conveyed appellant and him to the Fourth District Police Station. Although appellant remained under observation, when the syrup of ipecac he had ingested took effect, the officers were unable to prevent appellant from disposing of his stomach contents before a sample for analysis could be obtained. However, the officers confiscated $295 from appellant's person. -8- Appellant subsequently was indicted as a result of this incident in #6253 on two counts as follows: 1) possession of cocaine in violation of R.C. 2925.11(A) and (4)(1)(a); and 2) possession of criminal tools, to wit: money, in violation of R.C. 2923.24. Appellant entered pleas of not guilty to the charges in #852 and #625; he retained the same counsel to represent him in both cases. On February 13, 1997, counsel filed a motion to suppress evidence in both cases. The record reflects both cases were set for trial on March 24, 1997. The record further reflects that on March 24, 1997, the trial court held a hearing on appellant's motion to suppress evidence filed in #852. After listening to the testimony of three police officers and appellant and examining police photographs of the Blazer, the trial court overruled appellant's motion. Thereafter, the parties indicated for the record that despite the state's offer to nolle #625, appellant did not desire to agree to a plea bargain. #852 thus proceeded to trial. At the conclusion of the state's case-in-chief, the state dismissed the second count of the indictment in that case. Ultimately, the jury was unable to reach a verdict on the remaining count against appellant in #852; therefore, on March 28, 1997, the trial court dismissed the jury and reset the case for a second trial. Since appellant had filed a request to continue #625 3The indictment was filed on December 9, 1996; hence, it received a lower case number than appellant's indictment based on the September 13 incident. -9- on that same day, the trial court set a trial date of May 7, 1997 for both cases. On May 7, 1997, the trial court called both cases for trial. The parties indicated that renewed plea negotiations again were unsuccessful; therefore, the trial court proceeded to hold a hearing on appellant's motion to suppress filed in #625. At its conclusion, the trial court overruled appellant's motion to sup- press and, further, permitted #852 and #625 to be tried together over appellant's objection. The state presented the testimony of numerous witnesses during its case-in-chief, including several of the officers present at the scenes of the two incidents, the forensic examiner of the drugs, and Konsuelo Lewis. The state also introduced into evidence photo- graphs of the Blazer truck and the police evidence envelopes con- taining the drugs. Subsequently, the state dismissed the second count of #625. Appellant's motions for acquittal with respect to the remaining charge in each case were overruled. Appellant presented no witnesses on his behalf. Thereafter, the trial court consulted with the attorneys on the jury instructions to be given, permitted the attorneys to present their closing arguments, then charged the jury. The jury found appellant guilty of possession of cocaine in violation of R.C. 2925.11 in each case. After a presentence investigation and report, appellant was sentenced to consecutive -10- terms of incarceration of five years in #852 and nine months in #625. Appellant has filed a timely appeal of his convictions, presenting fourteen assignments of error for this court's review. Since they concern similar issues, appellant's first, second and third assignments of error will be addressed together as follows: I. THE COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS CONCERNING THE SEPTEMBER 13, 1996 SEARCH AND SEIZURE IN CASE NO. CR345852. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS CONCERNING THE OCTOBER 16, 1996 SEIZURE. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO SUPPRESS EVI- DENCE CONCERNING POLICE ACTIVITY RESULT- ING FROM THE EXCESSIVE USE OF FORCE IN MACING DEFENDANT AND FORCING INGESTION OF A SUBSTANCE TO INDUCE VOMITING. Appellant contends that at the hearings on his motions to suppress, none of the officers presented sufficient facts that would justify the investigatory stops and subsequent seizures of the evidence found at the scenes. This court finds appellant's arguments unpersuasive. The circumstances of both incidents that led to appellant's arrests are subjected to the same analysis. In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to arrest, when he reasonably concludes that the individual is engaged in criminal activity. In justifying that -11- conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21. The circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene, who must react to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295. The standard for reviewing such police conduct is an objective one: "would the facts avail- able to the officer at the moment of the seizure or the search `warrant a man of rea- sonable caution' in the belief that the action taken was appropriate." Terry, supra, at 21- 22; United States v. Wright (C.A.8, 1977), 565 F.2d 486, 489. That is, "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez (1981), 449 U.S. 411, 417. State v. Williams (1990), 51 Ohio St.3d 58 at 60, 61. See, also, State v. Andrews (1991), 57 Ohio St.3d 86; State v. Bobo (1988), 37 Ohio St.3d 177. Several factors may be taken into consideration when reviewing the police officer's actions pursuant to this standard. State v. Bobo, supra. When the circumstances of #852 are considered in light of these factors, it is clear Det. Richmond was justified in stopping the Blazer truck in which appellant seated himself. At the hearing on appellant's motion to suppress, Richmond testified he had three years' experience as an auto theft detec- tive. He stated the reasons the Blazer had attracted his atten- tion: the license tag that did not match the apparent age of the -12- vehicle and the condition of both the trunk and driver's side door locks. Richmond testified both deviations from the norm indicated the vehicle possibly was a stolen one. He stated that in his experi- ence as an auto theft detective, the substituted body parts implied the VIN may have been altered and the "punched" and "pry marked" locks revealed someone had tried to gain access to the vehicle without benefit of a key. Based on his observations, therefore, Richmond presented sufficient articulable facts upon which to base both an approach and a stop of the Blazer. State v. Bobo, supra; State v. Andrews, supra; cf., State v. Carter (1994), 69 Ohio St.3d 57; State v. Fincher (1991), 76 Ohio App.3d 721. Furthermore, once they had seen appellant's "furtive movement" with his right hand inside the vehicle as they approached, Hall and Ruffin were justified in ordering the occupants of the Blazer to show their hands before stepping out of it. State v. Evans (1993), 67 Ohio St.3d 403. Once they did so, the seizure of the evidence was proper because it has long been the rule that where an initial intrusion by police officers is lawful, an incriminating object that comes into plain view during that intrusion may be preserved without a warrant. State v. Williams (1978), 55 Ohio St.2d 82. See, also, Michigan v. Long (1983), 463 U.S. 1032. Whether an object is in "plain view" is determined by the following analysis: In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authori- -13- ties the plain view was lawful; (2) the dis- covery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing au- thorities. State v. Williams, supra, at syllabus 1. The Ohio Supreme Court defined the last requirement of the plain view doctrine in the syllabus of State v. Halczyszak (1986), 25 Ohio St.3d 301, thusly: The "immediately apparent" requirement of the "plain view" doctrine is satisfied when police have probable cause to associate an object with criminal activity. In ascertaining the required probable cause to satisfy the "immediately apparent" require- ment, police officers may rely on their spe- cialized knowledge, training and experience. (Emphasis added.) It is clear from Hall's testimony that when Lewis responded to his command to show him her hands, the incriminating nature of the plastic bag she held in one of them was readily apparent to him. Thus, in #852, the evidence was properly seized. State v. Williams, supra; State v. Bobo, supra; State v. Willoughby (1992), 81 Ohio App.3d 562; State v. Chapman (1992), 73 Ohio App.3d 132. Similarly, in #625, the testimony adduced at the hearing on appellant's motion to suppress evidence demonstrates both the stop of appellant and the subsequent seizure of the evidence on the car seat were proper. Detective Longstreet testified that he had extensive experi- ence as a vice unit officer and had made over two hundred drug- related arrests. He stated that the location of the surveillance -14- was one that was the subject of numerous complaints of drug activity. Appellant's action in exiting the car to stand near the sidewalk, the cupping" of his hands to show something in them to the other man, the brief conversation, and the exchange of paper currency for an object from appellant indicated to him a "drug sale" had taken place; thus, he was justified in ordering a stop of appellant's vehicle. State v. Bobo, supra; State v. Andrews, supra; State v. Hunter (1994), 98 Ohio App.3d 632; State v. Hardy (Mar. 7, 1996), Cuyahoga App. No. 69219, unreported. Moreover, when Darrell observed the rocks of crack cocaine on the seat where appellant had been sitting, he had probable cause to arrest appellant. State v. Williams, supra; State v. Hardy, supra; see, also, State v. Marte (Nov. 6, 1997), Cuyahoga App. No. 71311, unreported. Finally, appellant argues the evidence adduced at the hearing in #625 demonstrates the police used "excessive force"; therefore, the evidence that he was taken to the hospital in order to induce vomiting should have been suppressed. However, the record reveals appellant neither cited this particular evidence in his motion to suppress nor supported his motion with such an argument in the trial court. Hence, assuming arguendo the police force used was excessive, which, in view of the circumstances of the case, it was not,4 appellant has waived this argument on appeal. State v. Williams (1977), 51 Ohio St.2d 112, syllabus 1. 4See State v. Victor (1991), 76 Ohio App.3d 372, appeal not allowed (1992), 63 Ohio St.3d 1455. -15- For the foregoing reasons, appellant's first three assignments of error have no merit; therefore, they are overruled. Appellant's fourth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT, WITHOUT NOTICE, PROCEEDED TO JOIN TWO SEPARATE INDICTMENTS AND TRY THEM TOGETHER OVER OBJECTION OF DEFENDANT. Appellant argues the trial court erred in ordering his two cases to proceed to a single trial. It must first be noted that despite the phraseology of this assignment of error, the record clearly demonstrates appellant had notice the two cases would be tried together since the trial court issued journal entries in both cases scheduling trial for May 7, 1997. Secondly, the trial court's decision to try the cases against appellant may be reversed only upon a showing the trial court abused its discretion. State v. Lott (1990), 51 Ohio St.3d 160; Crim.R. 13. However, joinder of offenses is appropriate when they are of similar character and direct and simple evidence to prove the offenses exists. State v. Franklin (1991), 62 Ohio St.3d 118; State v. Lott, supra; see, also, State v. Torres (1981), 66 Ohio St.2d 340. In this case, in justifying its decision, the trial court observed the following: 1) appellant was aware of the journal entries scheduling a single trial date; 2) the counts of each indictment were similar; and 3) the offenses occurred in close proximity in time. From a review of the record, it is clear that -16- the trial court did not abuse its discretion in this matter. State v. Franklin, supra; State v. Czajka (1995), 101 Ohio App.3d 564; State v. Dunkins (1983), 10 Ohio App.3d 72. Accordingly, appellant's fourth assignment of error is also overruled. Appellant's fifth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED A POLICE OFFICER TO VOUCH FOR THE CREDIBILITY OF KONSUELO LEWIS. Appellant argues the trial court erred in allowing into evidence at his trial certain testimony by Det. Richmond. In con- text, the disputed testimony follows: [BY MR. PATTON, THE PROSECUTOR:] Q. Did you have an opportunity to speak to Miss Konsuelo Lewis? A. Yes. Q. When did you do that? A. Three days after she was arrested. Q. What was why was there a delay of three days? MR. MANCINO: Objection. THE COURT: Overruled. A. Because what I did after she got out of jail and posted bond, I called her at home and asked her to come down and give me a statement. BY MR. PATTON: Q. What type of statement are you referring to? A. I'm referring to a sworn statement. What I do, I read her her rights again, tell- ing her that she doesn't have to tell me anything. But I told her to come down -17- and tell me the truth, and that's what she did. MR. MANCINO: Objection. THE COURT: Overruled. BY MR. PATTON: Q. Did she give you that statement? A. Yes. Q. Did she sign that statement? A. Yes, sir. Appellant argues that allowing a trial witness to give an opinion concerning the credibility of another trial witness is improper, citing, inter alia, State v. Boston (1989), 46 Ohio St.3d 108. Nevertheless, this court is not convinced the disputed testimony denied appellant his right to due process of law. It is apparent from the preceding line of questions that Det. Richmond merely was explaining the steps he pursued in his investigationof #852; hence, the intent behind this testimony was not to vouch for Lewis's credibility. State v. Dawson (Nov. 18, 1993), Cuyahoga App. No. 63122, unreported. Moreover, Det. Richmond's testimony was both brief and lacking in detail. The jury was thus given little in the way of support for Lewis's credibility. Error, if any, was therefore harmless beyond a reasonable doubt. State v. Williams (1983), 6 Ohio St.3d 281. Consideration of this assignment of error thus leads to the conclusion appellant's right to due process of law was uncompro- mised by the admission of Det. Richmond's testimony regarding the statement given by Lewis. -18- Accordingly, appellant's fifth assignment of error is over- ruled. Appellant's sixth assignment of error states: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT PROHIBITED CROSS-EXAMINATION OF KONSUELO LEWIS CONCERNING HER CREDIBILITY. Appellant argues the trial court improperly prohibited him from cross-examining Lewis with regard to an affidavit of indigency she signed on January 15, 1997. He contends that since she testified at trial that she actually was employed at that time, the trial court prevented him from attacking her credibility in derogation of Evid.R. 611(B). A review of the record demonstrates the trial court's action was appropriate pursuant to Evid.R. 611(A) and 608(B). Lewis tes- tified she was indicted as a result of the September 13, 1996 incident; furthermore, she lost her job as a result of her indictment and did not obtain another for approximately six months. The trial court noted that the finding of indigency was made at the time of her arraignment, when she was unemployed, whereas the affidavit proffered by appellant was a fee bill submitted for the purpose of obtaining funds for her attorney after the charge had been dismissed. Therefore, there was no real inconsistency in her testimony. Consequently,the trial court correctly concluded this was an extraneous matter and its introduction would be clearly misleading to the jury. See, e.g. State v. Soke (1995), 105 Ohio App.3d 226; State v. Crim (Sep. 2, 1993), Cuyahoga App. No. 63439, unreported. -19- Since the trial court did not abuse its discretion in prohibiting further cross-examination of Lewis on this subject, appellant's sixth assignment of error is also overruled. Appellant's seventh assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED EXTENSIVE EVIDENCE CONCERNING ALLEGED DRUG SALES AND HEARSAY EVIDENCE. Appellant contends the trial court erred in admitting police officer testimony concerning both drug sales and prices and information received viathe police radio. This court has reviewed each citation to the record appellant challenges in this assignment of error and finds that in each case the evidence was properly admitted. Evid.R. 701 and 704 state as follows: RULE 701. OPINION TESTIMONY BY LAY WITNESSES If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. RULE 704. OPINION ON ULTIMATE ISSUE Testimony in the form of an opinion or inference otherwise admissible is not objec- tionable solely because it embraces an ulti- mate issue to be decided by the trier of fact. The decision whether to admit or exclude evidence is left to the sound discretion of the trial court and will not be reversed unless there was an abuse of that discretion. Urbana, ex rel. Newlin v. Downing (1989), 43 Ohio St.3d 109; Columbus v. Taylor (1988), 39 Ohio St.3d 162. -20- Moreover, it is well settled that a police officer may testify concerning matters that are within his experience and observations that may aid the trier of fact in understanding the other testi- mony. State v. Jells (1990), 53 Ohio St.3d 22; State v. Stout (1987), 42 Ohio App.3d 38; State v. Norman (1982), 7 Ohio App.3d 17; State v. Morris (1982), 8 Ohio App.3d 12. A review of the record reveals that the officers' testimony that appellant challenges was offered for two purposes: to explain their actions in investigating appellant's behavior and to prove the charge of possession of criminal tools. Neither of these pur- poses is improper. Evid.R. 401 and 402; State v. Lyles (1989), 42 Ohio St.3d 98; State v. Stout, supra; cf., State v. Smith (1985), 29 Ohio App.3d 9. Furthermore, as to appellant's claim that information exchanged between the officers via radio violated Evid.R. 802 and Evid.R. 801(C), statements that are offered to explain an officer's conduct while investigating a crime are not hearsay. State v. Price (1992), 80 Ohio App.3d 108; State v. Cantlebarry (1990), 69 Ohio App.3d 216. Hence, the trial court did not abuse its discretion in admitting the challenged testimony, and appellant's seventh assignment of error is also overruled. Appellant's eighth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT REFUSED TO GRANT A MISTRIAL WHEN THE PROSECUTION DELIBERATELY OFFERED EVIDENCE CONCERNING PRIOR CRIMINAL ACTIVITY OF THE DEFENDANT. -21- Appellant asserts the trial court should have granted his motion for a mistrial based upon the following testimony given by Det. Barrow on direct and cross-examination, contending it deprived him of his right to a fair trial: Q. Did you assist in the apprehension of any suspect that particular evening? A. No. When I arrived on the scene, I ob- served Mr. Rogers laying on the ground, and I was aware of Mr. Rogers from an- other MR. MANCINO: Objection. THE COURT: Sustained. A. When I observed MR. PATTON: Sir, stick to the ques- tion, okay? A. Okay. * * * BY MR. MANCINO [DEFENSE COUNSEL]: Q. John Rogers was already handcuffed or not? Or you don't recall? A. That, I don't recall. Q. But he was on the ground; is that right? A. Complaining of chest pains. That he just ate drugs and I told them to speed up the ambulance because this male was known to carry a lot of MR. MANCINO: Objection. THE COURT: Sustained. Please, detec- tive, just answer the question. The granting or denying of a motion for mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173 at 182. An appellate court will not disturb the -22- exercise of the trial court's discretion absent a demonstration the defendant has suffered material prejudice. State v. Stout, supra. Moreover, unless a defendant's substantial rights are affected, a mistrial should not be ordered in a criminal case merely because some error or irregularity intervened. Id. In this case, the trial court intervened so quickly the witness was prevented from completing his sentence. Moreover, the matter Barrow sought to introduce was not mentioned again at trial. The brevity of this occurrence suggests it did not cause appellant material prejudice. State v. Jones (1996), 115 Ohio App.3d 204; State v. Rivera (1994), 99 Ohio App.3d 325; State v. McDaniels (June 17, 1993), Cuyahoga App. No. 62541, unreported. Thus, this court finds no prejudicial error in this case that would demonstrate the trial court abused its discretion in denying appellant's motion for a mistrial. State v. Jones, supra; State v. Sage, supra. Accordingly, appellant's eighth assignment of error is overruled. Appellant's ninth assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING THE CONTROLLED SUBSTANCE WHEN NO CHAIN OF CUSTODY WAS ESTABLISHED. Appellant asserts that since Det. Traine never testified at trial, the admission of the evidence envelope initialed by him containing the two rocks of crack cocaine was improper. Regarding chain-of-custody matters, this court has stated: The state bears the burden of establishing the proper chain of custody; however, it is not an -23- absolute duty. State v. Moore (1973), 47 Ohio App.2d 181, 183, 1 O.O.3d 267, 268, 353 N.E.2d 866, 870. In order to meet its burden, the state need only prove that it is reasonably certain that substitutions, alteration or tampering did not occur. Id. The state need not negate all possibilities of substitution or tampering. Id. Moreover, a chain of cus- tody can be established by direct testimony or by inference. State v. Conley (1971), 32 Ohio App.2d 54, 60, 61 O.O.2d 50, 54, 288 N.E.2d 296, 300. The issue of whether there exists a break in the chain of custody is a determina- tion left up to the trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359, 25 O.O.2d 228, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight afforded to the evidence, not to its admissibility. Id. In re Lemons (1991), 77 Ohio App.3d 691 at 693; see, also, State v. Mays (1996), 108 Ohio App.3d 598 at 618. In this case, Darrell testified that he appropriated the rocks of crack cocaine as he removed appellant from the car and placed them in his pocket. Prior to accompanying appellant to the hospital, he handed them to Traine to be placed into evidence. Darrell also identified Traine's writing on the evidence envelope. The forensic examiner testified the envelope's seal had not been broken until she removed the rocks for analysis. Furthermore, Darrell stated that except for the minor scrapings taken by the police laboratory for analysis, the rocks appeared to be in the same condition as they were when he handed them to Traine. From this evidence, the state established and maintained a chain of custody sufficient to present to the jury. State v. Richey (1992), 64 Ohio St.3d 353, 360; State v. Brown (1995), 107 Ohio App.3d 194; State v. Barzacchini (1994), 96 Ohio App.3d 440; In re Lemons, supra. -24- Therefore, the trial court did not err in admitting this evi- dence. State v. Wilkins (1980), 64 Ohio St.2d 382, 389. Accordingly, appellant's ninth assignment of error is also overruled. Appellant's tenth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTOR. Appellant argues comments made by the prosecutor during closing argument concerning drug dealers was conduct that exceeded all bounds of propriety thereby mandating a reversal of his convictions. Generally, the conduct of a prosecuting attorney during a trial cannot be made a ground of error unless the conduct is so egregious in the context of the entire trial that it renders the trial fundamentally unfair. State v. Papp (1978), 64 Ohio App.2d 203, cited with approval, State v. Maurer (1984), 15 Ohio St.3d 239. Moreover, it has been held a trial court must afford a prosecutor some latitude and freedom of expression during argument. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Vrona (1988), 47 Ohio App.3d 145. Therefore, a defendant shall be entitled to a new trial only when a prosecutor makes improper remarks and those remarks substantially prejudice the defendant. State v. Smith (1984), 14 Ohio St.3d 13. The appellate court determines whether, absent the prosecutor's statements, a jury would have found a defendant guilty. State v. Maurer, supra. Initially, it must be noted appellant failed to object to many of these comments. State v. Williams (1977), 51 Ohio St.2d 112. -25- In order to excuse this omission, appellant asserts the comments constituted plain error. Plain error, however, does not exist unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12 at 14. Moreover, notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91; State v. Braxton (1995), 102 Ohio App.3d 28, 41. A review of the challenged comments reveals that the prosecu- tor's argument concerning actions of drug dealers was based upon the evidence; therefore, it was not improper. State v. McCall (July 8, 1993), Cuyahoga App. No. 63103, unreported. The prosecutor's comments regarding smoking mirrors could be construed as improper but, in the context of the whole trial, were not prejudicial. The prosecutor repeatedly stated to the jury that it was to rely on its own memory of the testimony and to listen to the trial court's instructions on the law. Moreover, the trial court admonished the jury that the statements were not evidence. Although, generally, a prosecutor may not give his or her personal opinion concerning the credibility of the state's case, such comments do not mandate reversal when the comments do not substan- tially or unfairly prejudice the defendant. See, e.g., State v. McCray (1995), 103 Ohio App.3d 109; State v. Braxton, supra. In light of the totality of the evidence against appellant, it cannot be said appellant would not have been convicted had the prosecutor -26- not uttered the remarks. State v. McCray, supra; cf., State v. Smith, supra. A review of the record fails to indicate the prosecutor's comments in his closing argument substantially prejudiced appellant and denied appellant his right to a fair trial. State v. Apanovitch, supra. Error, if any, was therefore harmless beyond a reasonable doubt. State v. Maurer, supra; State v. Jenks (1991), 61 Ohio St.3d 259; State v. McCray, supra; State v. Vrona, supra. Appellant's tenth assignment of error is therefore overruled. Appellant's eleventh and twelfth assignments of error are addressed together as follows: XI. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT USURPED A JURY FUNCTION WHEN COMMENTING ON THE USE OF FORCE AGAINST DEFENDANT. XII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT DEFINE CRACK COCAINE. In these assignments of error, appellant challenges the trial court's instructions to the jury. In considering appellant's argu- ments, this court is mindful that in reviewing jury instructions, each instruction must be viewed in the context of the overall charge, not merely judged in artificial isolation. State v. Price (1979), 60 Ohio St.2d 136. Appellant first contends the following instruction was improper as it assumed an issue of fact, i.e., that action would be taken against the police officers who testified: The Court has permitted you to receive testi- mony concerning acts of the police officers which resulted in the defendant being maced. -27- This testimony has been admitted, as such acts were contemporaneous with the alleged offense and cannot be logically separated. You may use such evidence to test the credibility of the witnesses and it is to be used for no other purpose. This is not a trial of law enforcement, but a trial of the defendant. Whether or not the law enforcement agents used proper or improper force does not mitigate any of the facts which defendant may or may not have done immediately prior thereto. If such police acts were improper, that will be subject to another action in another court. However, in context, the trial court immediately thereafter stated as follows: During the trial and during argument you have heard considerable discussion as to possible motives and actions of other persons. If such persons acted improperly, charges could be brought against them. The only person on trial here is the defen- dant, and the sole purpose of this lawsuit is to determine whether or not the defendant is guilty or not guilty. It is not for you to determine the guilt or innocence of other persons on other charges. However, in weighing all of the evidence and testimony, as the Court told you before, you may consider the motives of other witnesses as going to the weight of their testimony. We are only trying the case of this defendant. (Emphasis added.) The record reflects the following discussion regarding appellant's objection to this charge: THE COURT: Any other objections? MR. MANCINO: The only thing, I thought you included about being maced. Then I think that should be included in the -28- THE COURT: Your objection is noted, but you asked for that other charge I happened to find this. When you argued it, I used it. MR. MANCINO: About other people charged. There is no evidence. THE COURT: That's right. That's why I had that. I read the OJI. That's exactly why that instruction was developed, I believe, by the jury instruction committee. So when someone like you stands up to argue that an unknown person wasn't charged, I have a charge that goes to your argu- ment. So I used it. (Emphasis added.) As the foregoing demonstrates, it was appellant who brought the matter of action against the police officers to the jury's attention; hence, he invited the trial court's instruction and cannot now complain of it. See, e.g., Center Ridge Ganley, Inc. v. Stinn(1987), 31 Ohio St.3d 310; State v. Woodruff (1983), 10 Ohio App.3d 326. Moreover, the trial court correctly informed the jury that it was to consider evidence only as it related to appellant's guilt of the charges alleged in the indictment. O.J.I., Criminal, Vol. 4, S405.91(2). Therefore, appellant's first contention is without merit. Appellant further asserts the trial court improperly failed to include the statutory definition of crack cocaine in its instructions to the jury. Appellant, however, did not point out any such failure to the trial court prior to the time the jury began its deliberations. The Ohio Supreme Court has held that the -29- failure to properly object to a jury instruction constitutes a waiver of any claimed error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood, supra, at syllabus. Moreover, the record reflects the forensic examiner provided sufficient testimony to establish the material Darrell recovered from the passenger seat of the car where appellant had been sitting was crack cocaine as that term is defined in R.C. 2925.01(GG). Therefore, even if the trial court's failure to define crack cocaine in its instructions constituted error, since the jury clearly would have still found appellant guilty of the offense, any error was harmless. State v. Kimbro (1996), 109 Ohio App.3d 802. For the foregoing reasons, appellant's eleventh and twelfth assignments of error are overruled. Appellant's thirteenth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL. Without any citation to legal authority, appellant argues the evidence was insufficient to prove the element of possession as to both of the charges for which he was convicted. On similar facts as those presented at appellant's trial, however, this court has rejected such an argument. State v. Barr (1993), 86 Ohio App.3d 227; State v. Marte, supra. As to #852, Lewis testified appellant removed something from his pocket, stated he had this dope on me, and dropped it by her leg on the seat. She further testified she grabbed it as she was -30- exiting the car at Hall's command and displayed it to him in her hand. This evidence was sufficient to prove appellant possessed the cocaine he tried to slip to Lewis. In #625, appellant was seated in the passenger seat of the car as it was stopped by the police. Darrell observed appellant frantically stuffing something under his rear. When Darrell removed appellant from the car, he saw pieces of crack cocaine on the seat appellant had occupied. Both of the charges against appellant for violation of R.C. 2925.11 were, therefore, proved by sufficient evidence. State v. Jenks, supra; State v. Mann (1993), 93 Ohio App.3d 301. Therefore, appellant's thirteenth assignment of error is also overruled. Appellant's fourteenth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW WHEN THE SAME QUANTITATIVE WEIGHT OF COCAINE RESULTS (sic.) IN DIFFERENT SENTENCES. Appellant argues that because disparate penalties [are] provided for the same substance, R.C. 2925.11 is unconstitutional as a violation of his constitutional right to equal protection of the laws. The burden is on the challenger to overcome the presumption of constitutionality to which legislation is entitled. Beatty v. Akron City Hospital (1981), 67 Ohio St.2d 483. Moreover, legisla- tion cannot be attacked merely because it creates distinctions and thereby classifies the subjects of a law because legislation, by -31- its very nature, treats people by groups and classes and must, of necessity, draw its lines based upon amalgamations of factors. Vance v. Bradley (1979), 440 U.S. 93. Furthermore, absent the denial of a fundamental right or a situation where the law operates to the peculiar disadvantage of a suspect class, a legislative classification will be upheld if it is rational. Id.; Williamson v. Lee Optical (1955), 348 U.S. 483. A court will not, therefore, overturn a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude the legislature's actions were irrational. Vance v. Bradley, supra, at 97. This court notes that disparate sentencing penalties for crack and powder cocaine have been held to be constitutional by the many federal courts that have considered the issue. In particular, as noted in United States v. Gaines (6th Cir., 1977), 122 F.3d 324, the Sixth District has rejected every constitutional challenge ***, citing, inter alia, United States v. Lloyd (6th Cir., 1993), 10 F.3d 1197, 1220; United States v. Tinker (6th Cir., 1992), 985 F.2d 241, 242; and United States v. Avant (6th Cir., 1990), 907 F.2d 623, 627. The state has a legitimate interest in protecting its citizens from the dangers of illegal drugs and from crimes of violence. It may serve this interest by enacting more severe penalties for drugs that it views as particularly insidious. Id.; see, also, United States v. Brown (6th Cir., 1988), 859 F.2d 974. Legislation that -32- creates distinctions need not be perfect; it need only bear a rational relationship to a legitimate governmental interest. Vance v. Bradley, supra. The classification of crack cocaine as a more dangerous drug meets this test. United States v. Avant, supra. Since the sentencing provisions of R.C. 2925.11 bear a rational relationship to the achievement of a legitimate governmen- tal purpose, it must therefore be upheld as constitutional. Id. Appellant was not, therefore, denied his constitutional rights when he was sentenced pursuant to R.C. 2925.11. Accordingly, appellant's fourteenth assignment of error is also overruled. Appellant's convictions and sentences are affirmed. -33- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. 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 JOHN T. PATTON, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry 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(E) 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 .