COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77488 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : JEFFERY T. BORDEN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 26, 2000 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-378478 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: L. Christopher Frey, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gregory Scott Robey, Esq. Margaret E. Amer, Esq. ROBEY & ROBEY 14402 Granger Road Cleveland, Ohio 44137 -2- MICHAEL J. CORRIGAN, J.: Jeffery T. Borden, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-378478, in which the trial court found appellant guilty of knowingly obtaining, possessing or using a controlled substance, to wit: cocaine, a schedule II drug, in the amount of five grams or less, in violation of R.C. 2925.11. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. On December 15, 1998, officers from the Cleveland Police Department were summoned to 2008 West 41st Street, Cleveland, Ohio to investigate a reported break-in. At the scene, the officers were invited into the apartment by the resident of the home, at which point Officer Raymond O'Conner, of the Cleveland Police Department, witnessed the appellant in possession of a crack pipe. The appellant was taken into custody and charged with possession of drugs in violation of R.C. 2925.11. Forensic testing by the Cleveland Police Department revealed that the crack pipe was positive for cocaine residue. At trial, Officer Scott Huff, testified that he and his partner, Officer Raymond O'Conner, responded to the reported break- in call to provide support to the responding officers. Additionally, Officer O'Conner also testified that prior to entering the residence, he and Officer Huff, conferred with the responding officers so they were made aware of what type of residence they were going into, due to the fact that the residence -3- was known for criminal activity. Both officers testified that they were familiar with this residence due to the fact that a drug raid of the residence occurred three days earlier and that each officer had made previous drug related arrests at the residence. Officer Huff testified that as he entered the apartment he observed the appellant leaving his seat, with the crack pipe immediately in front of him on the table, and then moving to the adjacent seat. Officer Huff testified that he did not actually see the appellant remove the pipe from his person nor did he physically see the appellant in control of the crack pipe. Officer O'Conner, the first officer into the apartment, testified that upon entering the apartment, he observed the appellant remove the crack pipe from his pocket and place it on the table in front of him and then immediately move to the adjacent seat. At that point, the appellant was placed under arrest and the crack pipe was seized and placed into evidence. Subsequent forensic testing showed the crack pipe was positive for cocaine residue. On December 9, 1999, following a jury trial, the jury returned a guilty verdict. On December 10, 1999, the court denied appellant's request for a pre-sentence investigation report and/or a psychiatric evaluation and sentenced appellant to one year of imprisonment at Lorain Correctional Facility. Appellant, thereafter, timely filed a notice of appeal. Defendant-appellant's first assignment of error states: I. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT AT TRIAL WHICH SUBSTANTIALLY PREJUDICED AND MISLED THE JURY. -4- Appellant argues that he was denied his Sixth Amendment right to a fair trial because of prosecutorial misconduct which occurred when the prosecutor elicited testimony on direct examination of arresting officers regarding the fact that the residence at which appellant was arrested was allegedly a crack house. Appellant objects to the testimony of Officer Huff and the testimony of Officer O'Conner. Appellant contends that Officer Huff's testimony in regard to why he was familiar with the residence was elicited solely for the purpose of incriminating the appellant.1 Additionally,appellant contends that Officer O'Conner's testimony was similarly disparaging and only elicited to prejudice and disparage the appellant.2 Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversal unless the conduct deprives the defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. An appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the 1 Officer Huff testified that he was personally familiar with the residence due to the fact that the house had been raided for drugs three days before and that he had personally responded to complaints at the residence on prior occasions. (Tr. 157-158.) 2 Officer O'Conner testified that special precautions were taken because the residence was a known smoke house for crack and that he had made arrests there in the past. (Tr. 173, 174.) -5- improper questions or remarks, the jury still would have found the appellant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Dixon (Mar. 13, 1997), Cuyahoga App. No. 68338, unreported. The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. Under a plain error analysis, reversal of a conviction is appropriate only if it can be said that, but for the alleged error, the result of the trial would clearly have been different. State v. Kent (1980), 68 Ohio App.2d 151; State v. Parker (Oct. 5, 1995), Cuyahoga App. No. 68156, unreported. Here, it is clear that the testimony elicited by the prosecution was neither prejudicial or misleading. The testimony was elicited to demonstrate the officers' familiarity with the location in question. The references to the officers' familiarity with the location as a known crack house goes directly to the reliability and accuracy of their observations at the residence. The testimony, clearly reinforces the officers' observations of the appellant in possession of the crack pipe. The officers testified that they had made previous arrests at the residence; that a drug raid occurred three days earlier at the residence; and, that they were aware of the criminal activity at the residence and, therefore, extra precautions were employed in entering the residence. -6- Even assuming that the testimony of the officers was prejudicial to the appellant, the assignment would fail because there is no evidence to indicate that, but for the alleged error, the result of the trial would clearly have been different. Officer O'Conner's uncontroverted testimony was that he witnessed the appellant remove a crack pipe from his pocket, place it on a table and immediately move to an adjacent seat. The officers' testimony that the residence was a known location for criminal activity had no bearing on the ultimate issue to be decided by the jury whether the appellant was in possession of drugs, in violation of R.C. 2925.11. Accordingly, the defendant-appellant's first assignment of error is without merit. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED BY ADMITTING THE PREJUDICIAL ALLEGATIONS BY THE OFFICERS THAT THE RESIDENCE AT WHICH MR. BORDEN WAS A VISITOR WAS A CRACK HOUSE. Appellant argues that the testimony of both officers concerning allegations that the residence at which the appellant was arrested was a crack house was prejudicial. Appellant further argues that the exclusion of this testimony was mandatory pursuant to Ohio Evidence Rule 402 and 403(A). Evid. R. 402 provides: All relevant evidence is admissible, except as otherwise provided by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. Evid. R. 403(A) provides: -7- 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. Evid. R. 403(A). Determining whether the probative value of evidence is substantiallyoutweighed by prejudice to appellant is a matter for the trial court. State v. Schaffer (1996), 114 Ohio App.3d 97, dismissed, appeal not allowed, 77 Ohio St.3d 1543. Evidentiary rulings based on relevance will not be overturned absent an abuse of discretion. Nielson v. Meeker (1996), 112 Ohio App.3d 448. In the case at hand, a review of the record indicates that the statements in question are relevant and that their probative value far outweigh any danger of prejudice to the appellant. The testimony of both officers revealed that they were aware of a strong possibility that criminal activity would be afoot at the residence based on experience. Moreover, based on experience, the officers testified that the residence was a known location for drug activity. This testimony was elicited to specifically reinforce the accuracy of the officer's testimony because counsel for the defense attempted to attack the credibility of the officers' observations. The officers testified that they proceeded with extra caution upon entering the residence as a direct result of the officers' past experience with the residence. Upon entering the residence, the officers caught the appellant red handed removing a crack pipe from his pocket and placing it on the table. Accordingly, there is no evidence in the record to indicate that the appellant was substantially prejudiced by the officers testimony nor is there any indication that the trial court abused -8- its discretion in admitting said testimony, therefore, absent an abuse of discretion, the appellant's second assignment of error must fail. The defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -9- 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 Pleas Court 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. MICHAEL J. CORRIGAN JUDGE PATTON, P.J., and PORTER, J., CONCUR. 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .