COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73178 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SONIA JOHNSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 3, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-349508 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DANIEL M. MARGOLIS, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: EDWARD S. WADE, JR., ESQ. 75 Public Square, Ste. 1210 Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Defendant-appellant Sonia Johnson appeals the decision of the trial court convicting her of obstruction of justice, -2- dereliction of duty, and disclosure of confidential information, and sentencing her accordingly. Johnson assigns the following three errors for our review: I. DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED BY THE ADMISSION OF EVIDENCE THAT MATERIALLY AFFECTED DEFENDANT- APPELLANT'S RIGHT TO A FAIR AND UNPREJUDICED TRIAL. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING A PRISON TERM, ALTHOUGH IT HAD FAILED TO FIND THAT ANY OF THE EIGHT SENTENCING FACTORS IN R. C. OF OHIO S 2929.12(B) WERE PRESENT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Johnson was indicted for drug trafficking, obstructing justice, dereliction of duty, failure to report a felony, and disclosure of confidential information. The charges stemmed from her relationship with a suspected drug dealer, Larry Burks. Burks came under investigation by the FBI after his name repeatedly came up when drug dealers were asked to name the biggest drug dealer they knew. In January 1992, FBI agent Steve Vogt was told that Burks had a girlfriend whose last name was Johnson, that she was a member of the Cleveland Police Department and was helping Burks in his crack cocaine operation by providing him with information and perhaps running license plates. In December 1995, Agent Vogt got authorization for a wiretap of Burks' home phone, his cellular -3- phone, and his digital pager. The surveillance later expanded to wiretapping of Burks' clone cellular telephone, and planting a listening device in his house and truck. The wiretap surveillance continued until August 1996. Many of the intercepted conversations were between Burks and a female identified as Sonia. Vogt became more closely interested in Sonia after he heard her mention the FBI during a conversation with Burks. Sonia was identified through home telephone subscriber information as Sonia Johnson. Her identity was further confirmed when calls made by Burks to a number appearing on his pager rang to Johnson's phone at the fourth district police station. In some cases, Johnson answered the phone herself and, at other times, Burks asked to speak to Johnson. Also, many of the calls to Burks' pager included the number 1965 which was Johnson's badge number. In June 1996, the FBI contacted the internal affairs division of the Cleveland Police Department and requested verification that there was a Cleveland Police officer by the name Sonia Johnson. The FBI said only that there was an ongoing investigation and, at that point, the Internal Affairs unit took no action. Through the surveillance, FBI agents learned that Burks received cocaine on August 7, 1996 from a supplier in New York. Agents overheard a conversation in Burks' truck between Burks and the New York supplier which indicated that Burks had cocaine. Burks was arrested. Agents later found $40,000 in a hidden compartment of the supplier's vehicle dashboard and found two -4- kilograms of cocaine in Burks' truck on the floorboard. The following day, a search of Burks' home yielded approximately $26,000 in cash, one half kilo of cocaine, a triple beam scale, plastic wrappers commonly used for cocaine, two guns along with ammunition, a police badge marked friend, two prisoner property receipts in Burks' name for $110,000 and $250,000, a social security card in the name of Cody Walker, an Ohio identification card in Burks' name with Burks' picture on it, and a driver's license in Walker's name with Burks' picture on it. After Burks' arrest, the FBI notified the internal affairs unit of the Cleveland Police Department of Johnson's involvement with Burks. Johnson was ordered to submit to a drug screen.1 As Edward Tomba of the Internal Affairs Unit was escorting Johnson to take the test, Johnson asked Tomba why the test had been ordered. Tomba asked Johnson if she knew a guy named Larry Burks. Johnson replied that she did not. Johnson was later charged with trafficking drugs, obstruction of justice, dereliction of duty, failure to report a felony, and disclosure of confidential information. At trial, the state presented tapes of conversations recorded between Johnson and Burks. The jury convicted Johnson of three misdemeanors -- obstruction of justice, disclosure of confidential information, and dereliction of duty and sentenced her to concurrent terms of thirty days, ninety days, and six months, respectively. This appeal 1 The test was negative. -5- followed. Johnson successfully moved the court to suspend her sentence and to release her on bail pending the appeal. In her first assignment of error, Johnson argues her convictions were against the manifest weight of the evidence. A decision may not be reversed as against the manifest weight of the evidence unless after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, it is determined whether, in resolving conflicts in the evidence, the factfinder clearly lost its way and created a manifest miscarriage of justice. State v. Martin(1983), 20 Ohio App.3d 172, 175; State v. Riffle (1996), 110 Ohio App.3d 554, 559. "If there is substantial evidence in the record that, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt, a court of appeals may not reverse a conviction as against the manifest weight of the evidence." State v. Walker (1978), 55 Ohio St.2d 208, 213. Johnson argues that the testimony of agent Steven Vogt was open to different interpretations and meanings and lacked the weight, certainty, reliability, credibility, or probative value to support Johnson's conviction. She offers several non-criminal interpretations of her statements made on the tapes. However, when reviewing a criminal conviction, an appellate court need not review the evidence to determine if the state's theory of guilt is irreconcilable with any reasonable theory of innocence. State v. Austin (1996), 115 Ohio App.3d 761, 769 [citing State v. Jenks(1991), 61 Ohio St.3d 259, 283.] The jury was free to believe -6- the evidence presented by the state and disbelieve Johnson's version of events. Agent Vogt testified that he received information that Burks' girlfriend was a police officer with the last name Johnson who was helping him with his drug business. Vogt confirmed this information through taped surveillance of Burks. The tapes evidenced a continuing series of conversations between Johnson and Burks, including one in which Johnson told Burks of an upcoming drug sweep. Lieutenant Patrick Stephens of the Cleveland Police Department testified that dissemination of confidential information was a clear violation of police policy. Agent Steven Vogt testified that Burks supplied a lot of cocaine to the east side. In one of the taped conversations, Johnson told Burks of an upcoming drug sweep on E. 140th Street and St. Clair Avenue. On another occasion, the tapes also revealed that Johnson told Burks that she spotted two FBI agents in a van parked in front of Burks' apartment building. Johnson also talked to Burks about leaving town because he was the subject of an IRS investigation. JOHNSON: I just said your ass needs to hurry up and get outta here. BURKS: Well, I mean, even if I, if I moved up there if I got a indictment I still gotta go to court don't I? JOHNSON: Yes, but if you're not here, maybe things would be different. *** JOHNSON: Your shit, your shit ain't FBI, your shit is straight from the IRS, that's how they're comin' from, comin' to you... -7- BURKS: That's cool too. JOHNSON: ...straight from the Treasury Department ... and you think I'm lyin'? BURKS: That's cool. (Transcript of tape of 3/23/96 conversation between Burks and Johnson, p. 2) Johnson also talked to Burks about people being addicted to crack as good for his business and after Burks admitted to using drugs, Johnson said don't get high on your own supply. In light of the evidence presented, the jury could reasonably have concluded that Johnson was aware of Burks' involvement with drugs and that she was assisting him with his drug business. Johnson's first assignment of error is overruled. In her second assignment of error, Johnson argues she was denied her right to a fair and unprejudiced trial by the trial court's admission of the tape-recorded conversations between Johnson and Burks because the tapes were largely deleted, out of context, and unintelligible. Johnson also argues the trial court should not have admitted the items seized from Burks' car and home -- the police property slips, Cleveland Police Friend badge, drugs, money and guns. Johnson argues that while the evidence could properly be admitted in evidence against Burks, it was not probative of any criminal conduct by Johnson. Evid.R. 403 provides that relevant evidence is admissible when its probative value is not substantially outweighed by its prejudicial effect. Shimola v. Cleveland (1992), 89 Ohio App.3d -8- 505, 511. A trial court's ruling that certain evidence will be admitted or excluded from trial will not be reversed absent a showing of a clear and prejudicial abuse of discretion. O'Brien v. Angley(1980), 63 Ohio St.2d 159. An abuse of discretion involves more than an error in judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Because of its superior vantage, the trial court has broad discretion to admit and exclude evidence and its determination will not be reversed unless it constitutes a clear abuse of discretion which materially prejudices the objecting party. Anderson v. Lorain Cty. Title Co. (1993), 88 Ohio App.3d 367, 376; Barbeck v. Twinsburg Twp. (1992), 73 Ohio App.3d 587, 592. The trial court's decision on the admissibility of evidence should not be disturbed when it appears to be reasonable, even if the reviewing court would have reached a different decision. See Williams v. Williams (1990), 68 Ohio App.3d 529, 535. See, also, Fulwiler v. Schneider (1995), 104 Ohio App.3d 398, 408. When determining whether the relevance of evidence is outweighed by its prejudicial effects, the evidence should be viewed in a light most favorable to the proponent, maximizing its probative value and minimizing any prejudicial effect to one opposing admission. State v. Frazier (1995), 73 Ohio St.3d 323, 333 (citation omitted). In this case, Johnson was originally charged with complicity in the commission of the crime of drug trafficking. The state's theory was that Johnson aided and abetted Burks in the sale or -9- offer for sale of cocaine. Though Johnson was ultimately acquitted of that charge, the drugs, money, and gun seized from Burks were clearly relevant to the state's case. Also, the police badge and the police property slips were relevant to establishing the connection between Johnson, a police officer, and Burks. The relevance of this evidence was not outweighed by any prejudice to Johnson. Johnson's second assignment of error is overruled. In her third assignment of error, Johnson argues the trial court abused its discretion by sentencing her to prison without finding that any of the eight sentencing factors in R.C. 2929.12(B) were present. R.C. 2929.12(B) provides: Unless a mandatory prison term is required by division (F) of section 2929.12 or section 2929.14 of the Revised Code, a court that imposes a sentence under this chapter upon an offender for a felony has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code. (Emphasis added.) This statute is clearly inapplicable to Johnson's case since she was convicted and sentenced for a misdemeanor. A sentence will generally not be disturbed upon review where it is within the confines of a valid statute. State v. Bruce (1994), 95 Ohio App.3d 169; Columbus v. Jones (1987), 39 Ohio App.3d 87, 88. If the sentence imposed is within the limits set forth by statute, a reviewing court will presume that the trial judge considered the statutory sentencing factors unless there is a showing to the contrary. State v. Adams (1988), 37 Ohio St.3d -10- 295, 297-98; Bruce at 173. Furthermore, the trial court ordered and reviewed a pre-sentence report. Such a review satisfies the trial court's obligations under the sentencing law. State v. Davis (December 30, 1993), Cuyahoga App. No. 64571, unreported, citing State v. Turner (1987), 37 Ohio App.3d 38, 40. Johnson's third assignment of error is overruled. Judgment affirmed. 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 Common Ples 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. Exceptions. DYKE, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE 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 .