COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73468 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION TYRONE WILLIAMS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-332008 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: SHERRY MCCREARY (0031337) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: BROOKS J. CHAPIN (0067268) 930 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 SPELLACY, J.: Defendant-appellant Tyrone Williams ( appellant ) appeals from his conviction for carrying a concealed weapon in violation of R.C. 2923.12 with a furthermore clause and two violence specifications -2- and for having a weapon while under a disability in violation of R.C. 2923.13 with two violence specifications. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR FINGERPRINT ANALYSIS, IN THAT BY DOING SO, THE COURT WAS IMPROPERLY PLACING THE BURDEN OF PROOF ON THE DEFENDANT. II. THE PROSECUTOR IMPROPERLY WITHHELD EVIDENCE THAT WAS POSSIBLY EXCULPATORY BY REFUSING TO SUBMIT SEIZED EVIDENCE TO FINGERPRINT ANALYSIS EVEN THOUGH THE ANALYSIS WAS REQUESTED BY THE DEFENDANT. III. THE TRIAL COURT ACTED IMPROPERLY IN ASSUMING FACTS THAT WERE NOT IN EVIDENCE. IV. THE TRIAL COURT SHOWED IMPROPER BIAS IN ITS CONSIDERATION OF FACTORS NOT IN (SIC) MATERIAL TO THE CASE; IN ITS DISCUSSION OF THE DEFENDANT'S PRIOR RECORD; AND IN ITS GIVING MORE WEIGHT TO THE INCONSISTENT TESTIMONY OF POLICE OFFICERS THAN TO THE CONSISTENT TESTIMONY OF THE DEFENDANT. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On November 17, 1995, Cleveland police detectives Philmore Evans and Kelvin Barrow received a phone complaint pertaining to drug activity in the area of East 126th Street and Griffin Avenue. The detectives proceeded to the location, arriving about 8:15 p.m., approximatelyten to fifteen minutes after the complaint was made. The detectives observed two males fitting the parties described in the phone complaint standing at the corner of East 126th Street and Griffin Avenue outside a store. The detectives parked their -3- vehicle forty to fifty feet from the men in order to observe their activities. One of the men flagged down vehicles approaching the stop sign. The detectives decided to approach the males with the intent of questioning the men about their activities. One of the males, later identified as appellant, saw the detectives when their car was ten to fifteen feet away. Appellant turned and ran into the store. Detectives Evans and Barrow quickly exited their vehicle and entered the store in pursuit of appellant. Appellant stood in front of a shelf where bread was displayed. Appellant's back was to the detectives and his hands were at his waistband. Appellant ignored the detectives' repeated directive to put his hands up. Instead, the detectives observed appellant discard an object onto the bread shelf. Appellant then ran to the back of the store where he was placed under arrest by Detective Evans. Detective Barrow found a .38 caliber firearm on top of the bread on the shelf where appellant was seen discarding an object. One bullet was in the gun. The bullet was cold as if it had been outside in the freezing weather. Appellant disputed the detectives' version of events. At trial, appellant testified that he had been in the store about forty-five minutes before Detective Evans entered. Appellant was talking to the store's owner at the front counter after hanging up some brochures for his mother. Detective Evans came into the store. After a period of time, Detective Evans placed his gun to appellant's head, ordering appellant to the floor. Appellant -4- averred that Detective Evans then proceeded to strip search appellant. After appellant put his clothes back on, Detective Barrow entered the premises. Detective Barrow handcuffed appellant and put appellant near the cooler on his knees. The two detectives began looking around the store. Detective Barrow found the gun. Appellant testified that he observed an individual named Jay-Jay enter the store and throw the gun onto the bread rack. Appellant asked the detectives to fingerprint the gun. II. Appellant's first and second assignments of error will be addressed together as similar issues of law are involved and appellant did not argue the alleged errors separately. Appellant asserts that he was denied his right to confront and cross-examine witnesses because the trial court denied his motion for fingerprint analysis and the prosecutor refused to perform the test. Appellant argues that, just as he had the right to subpoena a witness, he also had the right to use any information which was in the hands of the prosecutor to impeach the state's witnesses. Appellant states that the denial of his motion for fingerprint analysis denied him the right to confront adverse witnesses with available information. Crim.R. 16(B)(1) provides in pertinent part: (c) Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions therof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended -5- for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant. (d) Reports of examination and tests. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney. Therefore, under Crim.R. 16 appellant could have obtained the results of a fingerprint analysis if it had been performed, but the rule does not require the court to order the prosecutor to perform such a test. Appellant certainly could have had the test done himself and the prosecutor would have provided the weapon for analysis. A defendant may request information which is beyond the requirements of Crim.R. 16. The trial court has the discretion to grant such a request. State v. Landrum (1990), 53 Ohio St.3d 107. When making a request for evidence beyond the scope of Crim.R. 16, a defendant must demonstrate that the evidence is potentially exculpatory and provide a reasonable factual basis for that belief. State v. Simmons (1993), 87 Ohio App.3d 290. Although appellant argues that a fingerprint analysis of the weapon could be exculpatory, there is no indication in the record that the weapon was preserved in a way which would yield accurate test results. By the time appellant made his motion, the gun may have been handled by any number of people. Even if the test had -6- been performed, the lack of appellant's fingerprints on the gun would not exonerate appellant as appellant could have handled the gun without leaving any detectable prints. Credibility determinations are for the trier of fact to resolve. The trial court did not believe appellant's testimony that he asked the police detectives to fingerprint the gun at the time of arrest. The trial court heard the evidence and completely discounted the testimony of appellant. Because the trial court accepted as true the testimony of the police detectives, there was ample evidence to convict appellant of the offenses. The denial of appellant's motion was within the trial court's discretion. There is no showing that decision was unreasonable, arbitrary, or unconscionable. See State v. Adams (1980), 62 Ohio St.2d 151. Because the trial court did not abuse its discretion by overruling appellant's motion, there was no prosecutorial misconduct by the state in refusing to have their expert conduct the fingerprint test on the weapon. The prosecutor disclosed to the defendant all evidence required by Crim.R. 16. There is nothing in the record to support appellant's assertion that the prosecutor intentionally avoided pursuing or suppressed potentially exculpatory evidence. The state was well within its rights to oppose appellant's motion. No prosecutorial misconduct is present in the instant case. Appellant's first and second assignments of error are overruled. III. -7- Appellant's third assignment of error states that the trial court improperly assumed facts which were not in evidence when making its determination of appellant's guilt. Appellant objects to the trial court's statement as follows: Well, Evans told us that, I saw this whole thing happening. I don't need any fingerprints. I'm sure the detectives wouldn't disagree today if they were to fingerprint the gun the case against you would be stronger assuming there were legible fingerprints retrieved. But, you know, they probably left you and went on to eight other cases before their shift was over that day. The prints probably wouldn't come out anyway. (Tr. 125). The trial court went on to comment that, based on its experience, the police do not fingerprint a weapon in cases like this. The trial judge stated that he had absolutely no reasonable doubt about appellant's guilt. In a bench trial, judges are presumed to rely upon only relevant, material, and competent evidence. State v. Davis (1992), 63 Ohio St.3d 44. Unless the complaining party presents some evidence to the contrary, it is presumed that the trial judge did not rely on anything in reaching his decision that he should not have relied upon. City of Columbus v. Guthmann (1963), 175 Ohio St. 282, paragraph three of the syllabus. Appellant argues that the trial court's comment regarding the possible presence of fingerprints on the weapon demonstrates that the trial court believed the detectives' testimony that appellant discarded the gun, and therefore, his fingerprints must be on the weapon. Appellant appears to be contending that the trial court could not even comment upon the argument advanced by appellant -8- concerning any fingerprints which might be on the weapon unless the gun was tested. The police officers testified that the weapon was not tested for fingerprints because they witnessed appellant discard an object and that object only could have been the gun, obviating the need for an additional test. The trial court believed the testimony of the police detectives and completely discounted appellant's version of events. In a bench trial, the trial judge, as the trier of fact, determines the credibility of witnesses, and the weight to be given the evidence. State v. Walker(1985), 26 Ohio App.3d 29. The issue of the credibility of witnesses lies within the sound discretion of the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182. Absent any showing of an abuse of discretion, an appellate court will not reverse the judgment of a trial court. Holcomb v. Holcomb. (1989), 44 Ohio St.3d 128. It was for the trial court to determine the truth of the matter. The trial court gave no credence to appellant's testimony but did believe the testimony of the police detectives. The detectives testified that they saw appellant toss something onto the bread rack. The only item on that shelf which was not bread was the gun. Based on this testimony, the trial court could conclude that the gun was abandoned by appellant without any further proof as to what fingerprints were present on the weapon. Appellant's third assignment of error lacks merit. IV. In his fourth assignment of error, appellant contends that the trial court improperly considered evidence of prior criminal acts. -9- Appellant argues that the trial court violated Evid.R. 404(B) by inquiring how many prior felonies appellant had committed. That rule forbids the admission of evidence of other crimes, wrongs, or acts to prove the defendant acted in conformity therewith. However, the exchange between the trial court and appellant occurred during the discussion of a possible plea agreement prior to the commencement of trial. Evid.R. 404(B) had no application at that point in the proceedings as no evidence was being admitted. The trial court merely was informing appellant what his possible sentence could be if appellant accepted the plea agreement. Appellant's prior record would be one factor the trial court would consider in determining the length of appellant's sentence. The trial court's question regarding appellant's prior record was proper. Appellant next resurrects his argument that the trial court should not have found the testimony of the police detectives to be more credible than that of appellant. Again, the credibility of witnesses is an issue within the discretion of the trier of fact. There is no showing that the trial court abused its discretion. The determination of the witnesses' credibility will not be disturbed absent an abuse of discretion. Appellant's fourth assignment of error is overruled. Judgment affirmed. -10- 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. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate -11- pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, ADM. 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), 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 .