STATE OF OHIO, PLAINTIFF-APPELLEE vs. ANTHONY WHITE, DEFENDANT-APPELLANT
No. 95066
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 18, 2011
2011-Ohio-4089
BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-534866
Robert Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Melissa Riley
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Anthony White, appeals his convictions for drug possession of crack cocaine and oxycodone. After careful review of the record and relevant case law, we affirm.
{¶ 2} On December 4, 2009, Cleveland Police Offiсer Matthew J. Slatkovsky observed appellant disobey a traffic sign and initiated a traffic stop of his vehicle. As Officer Slatkovsky was exiting his police vehicle, he observed appellant lean over toward the passenger side of the vehicle.
{¶ 3} Testimony adduced at trial indicated that appellant was not the owner of the vehicle searched by Officer Slatkovsky. Appellant testifiеd that he borrowed the vehicle from a friend shortly before he was stopped and had no knowledge that drugs were present in the vehicle.
{¶ 4} Appellant was indicted on March 12, 2010 under a four-count indictment that included the following charges: Count 1, drug trafficking in violation of
{¶ 5} On April 7, 2010, the matter proceeded to a bench trial, and appellant was fоund guilty of drug possession of crack cocaine and drug possession of oxycodone. He was acquitted on the remaining counts. At the
{¶ 6} Appellant appeals, raising two assignments of error for our review:
{¶ 7} “I. “The indictment fаils to allege venue or jurisdiction for the offenses alleged in Counts 2 and 3, respectfully.”
{¶ 8} “II. “The trial court erroneously considered incompetent and unqualified testimony from a Cleveland Police Detective regarding fingerprint analysis.”
Law and Analysis
I.
{¶ 9} Appellant first argues that the indictment fails to allege venue or jurisdiction for the offenses alleged in Counts 2 and 3. Wе disagree.
{¶ 10} In the indictment, Count 1 states, in relevant part:
{¶ 11} “Jurors of the Grand Jury of the State of Ohio within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, do find and present, that the above named Defendant, on or abоut the date of the offense set forth above, in the County of Cuyahoga, unlawfully * * *.” (Italics added.)
{¶ 12} Counts 2 and 3 state, in relevant part:
{¶ 13} “Grand Jurors, on their oaths, further find that the Defendant unlawfully * * *.”
{¶ 14} Appellant contends that the language used in Counts 2 and 3 of the indictment was insufficient to establish venue or jurisdiction because it did not specifically state that his drug possession offenses occurred “in the County of Cuyahoga.”
{¶ 15} Generally, the indictment need only state in general terms that the court has jurisdiction over the subject matter and that the offense was committed in the territory encompassed by the court. State v. Bragg (Sept. 5, 1996), Cuyahoga App. No. 70461. In State v. Williams (1988), 53 Ohio App.3d 1, 557 N.E.2d 818, the Tenth Distriсt reviewed circumstances similar to those presented to this court. In Williams, the court held that where an indictment consisted of 12 counts, it was sufficient to allege once that thе offenses occurred in Franklin County. Id. The Williams court relied on
{¶ 16} Upon review of the indictment as a whole, it is clear that the language used throughout the indictment alleged that eaсh of the four counts charged in appellant‘s indictment took place in Cuyahoga County on December 4, 2009. Analogous to Williams, Count 1 of appellant‘s indictment
{¶ 17} Appellant‘s first assignment of error is without merit.
II.
{¶ 18} In his second assignment of error, appellant argues that the trial court erroneously considered incompetent and unqualified testimony from Detective James Cudo. We disagree.
{¶ 19} At trial, Det. Cudo, of the Cleveland Police Department, was qualified as an expert witness in drug trafficking in Cuyahoga County. Based on his training and experiencе, Det. Cudo testified that crack cocaine is often sold out of large clear plastic baggies without any further packaging. Det. Cudo further testified that in his 17 years as a police detective, he has submitted hundreds of plastic baggies for fingerprint analysis and has never received a usable fingerprint back.
{¶ 20} Initially, appellant contends that Det. Cudo‘s testimony regarding fingerprint analysis relied on statements made to him by forensic examiners, and therefore constituted hearsay testimony.
{¶ 21} “To be inadmissible as hearsay, therefore, the witness must testify about a statement. It follows that when the witness merely testifies about his own declarations or observations, or actions taken as a result of another‘s decisions, this testimony does not fit the definition of
{¶ 22} In the case subjudice, the testimony of Det. Cudo did nоt rely on the inadmissable statements of others. Rather, his testimony was based on his own personal observations and did not involve any statements made to him by forensic examiners. Dеt. Cudo merely testified that, in his experience, forensic examiners were rarely able to retrieve a usable fingerprint from a plastic baggie submitted for analysis. Therefоre, Det. Cudo‘s testimony does not fit the definition of
{¶ 23} Additionally, appellant contends that Det. Cudo‘s testimony relating to the forensic examiner‘s inability to retrieve a usable fingerprint from the plastic baggie was outside his purported expertise as a drug trafficking expert.
{¶ 24}
{¶ 25} It is well established that rulings conсerning the admissibility and scope of expert testimony are within the broad discretion of the trial court and will not be reversed on appeal absent a clear showing оf an abuse of discretion. Pacific Great Lakes Corp. v. Bessemer & Lake Erie R.R. (1998), 130 Ohio App.3d 477, 501, 720 N.E.2d 551. An abuse of discretion implies an unreasonable, arbitrary, unconscionable attitude by the trial court. Id.
{¶ 26} In this matter, Det. Cudo‘s testimony relating to his expеrience with fingerprint analysis was within the scope of his expertise. Det. Cudo was qualified as an expert in the field of drug trafficking based on his substantial training and experience in drug invеstigations. This expertise allowed Det. Cudo to testify to matters beyond the knowledge or experience of a layperson. As stated, Det. Cudo testified that he has submitted hundreds of plastic baggies for analysis over the course of his career and rarely was able to secure a usable fingerprint. This testimony was based on Det. Cudo‘s personal оbservations in the field of drug trafficking and was admissible to assist the jury in understanding that, in Det. Cudo‘s experience, the failure to retrieve a usable fingerprint from a plastic baggie was nоt uncommon.
{¶ 27} Appellant‘s second assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds thеre 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 judgmеnt into execution. The defendant‘s convictions 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.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR