State v. Semedo, 2006 Ca 00108 (4-16-2007)State v. Semedo, 2006 Ca 00108 (4-16-2007)
{¶ 1} Defendant-appellant Reccardo D. Semedo appeals his conviction following a jury trial on one count of possession of crack cocaine. Plaintiff-appellee is the State of Ohio.
STATEMENTS AND THE FACTS AND CASE
{¶ 2} On the evening of December 8, 2005, Officer Steven Swank, a member of the Gang Task Force of the Canton Police Department, was on patrol in a marked K-9 police vehicle in a known high-crime area. Officer Swank was advised by fellow Gang Task Force member Officer Sean Overdorf, who was working that night in an unmarked police car, that Overdorf had witnessed a red S10 pickup truck fail to signal a turn at a nearby intersection. Officer Swank observed the pickup truck pull into a parking lot where Swank was already stationed and parked. Officer Swank activated his lights and exited his police cruiser.
{¶ 3} As he approached the pickup truck, Officer Swank recognized the driver of the pickup truck as the appellant, and knew that appellant did not have a valid driver‘s license. Officer Overdorf approached the scene, and Officer Swank advised Overdorf that appellant did not have a valid driver‘s license. Officer Overdorf told appellant, who had already exited the pickup truck, that he was under arrest, and instructed appellant to put his hands on the hood of the car. Officer Swank observed the appellant put his hand in his right pants pocket, and so advised Officer Overdorf, who ordered appellant several times to remove his hand from his pocket . Eventually appellant removed his hand from
{¶ 4} Officer Overdorf ordered appellant to pull his hand out to show what he had in his hand and a struggle ensued. Appellant was pulled to the ground, at which time Officer Swank observed the appellant drop something to the ground. Officer Swank discovered a burnt piece of Chore Boy1 and one dime. Appellant was placed under arrest and searched. Officer Swank found a small baggy containing crack cocaine in appellant‘s right pants pocket, as well as two pieces of car antennae that had been used as crack pipes. Appellant was charged with possession of crack cocaine in violation of R.C.
{¶ 5} The case proceeded to trial on March 27, 2006. Officer Swank identified State‘s Exhibit 1 as the evidence bag in which he had placed the baggy containing crack cocaine and the crack pipes. Mr. Jay Spencer, of the Canton-Stark County Crime Lab, testified that the substance in the baggy was, in fact, crack cocaine. Mr. Spencer testified further that the crack pipes contained crack cocaine residue. At the conclusion of the State‘s case, State‘s Exhibit 1 was admitted into evidence with no objection from the appellant. On March 28, 2006, the jury found appellant guilty of possession of crack cocaine, and he was
{¶ 6} “I. THE TRIAL COURT ERRED BY NOT EXCLUDING PHYSICAL EVIDENCE THAT WAS NOT PROPERLY AUTHENTICATED.
{¶ 7} “II. THE TRIAL COURT‘S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
I
{¶ 8} In his first assignment of error, the appellant argues that there was a significant break in the chain of custody of the evidence insofar as the evidence bag was not received by the crime lab until December 15, 2005, seven (7) days after appellant‘s arrest. In addition, appellant argues that a cloth with burn marks which was not included in the list of the evidence bag‘s contents was found in the bag when it was opened at trial. Finally, appellant argues that the burnt Chore Boy was not inside the evidence bag at the time of trial. Appellant did not cross-examine the State‘s witnesses at trial about the seven (7) day lapse in time between appellant‘s arrest and submission of the evidence bag to the crime lab, the burnt cloth found in the evidence bag at trial, or the fact that the Chore Boy was not inside the evidence bag at the time of trial. Appellant nonetheless argues that the evidence should have been excluded by the trial court. We disagree.
{¶ 9} The admission or exclusion of evidence rests within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse
{¶ 10} The appellant did not move to exclude the evidence or otherwise object to the admission of the evidence at trial. The appellant has therefore waived all but plain error in the admission of the evidence.
{¶ 11} Pursuant to
{¶ 12} The chain of custody is part of the authentication or identification process set forth in
{¶ 13} In the case sub judice, Officer Swank testified that the plastic baggy that contained crack cocaine offered at trial was the same bag he confiscated from appellant on the night appellant was arrested. Officer Swank also identified that the two crack pipes made from car antennas offered at trial were the crack pipes he confiscated from appellant. Officer Swank identified the evidence bag as containing the report number that was assigned to it, and he identified his signature and initial and the date on the evidence bag. In addition, Jay Spencer of the Canton-Stark County Crime Lab, testified that the substance in the baggy was, in fact, crack cocaine, and that the crack pipes contained crack cocaine residue.
{¶ 14} The trial court did not commit plain error when it allowed admission of the evidence, and the appellant‘s first assignment of error is overruled.
II
{¶ 15} In his second assignment of error, appellant argues that the trial court‘s finding of guilty was against the manifest weight of the evidence and was not supported by sufficient evidence. We disagree.
{¶ 16} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the
{¶ 17} Sufficiency of the evidence, on the other hand, is a question of law on whether the evidence is legally adequate to support a jury verdict as to all elements of a crime. Thompkins, supra, at 386. When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court must 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. The Ohio Supreme Court recently spoke on the issue of sufficiency in the case of State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810:
“In reviewing a record for sufficiency `[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus [superceded by constitutional amendment on other grounds as state by Smith, supra.], following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The weight to be given the evidence and the credibility of witnesses are primarily jury issues. State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819; State v. DeHass (1967), 10 Ohio St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212.” Conway at ¶ 42.
{¶ 18}
{¶ 19} The decision of the Stark County Court of Common Pleas is hereby affirmed.
Wise, P.J. and Hoffman, J. concur
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.