State v. Perry, 2005 Ohio 27 (OH 1/6/2005)

• Decision Date: 06 January 2005
• Docket Number: Case No. 84397.
• Citation: 2005 Ohio 27
• Parties: State of Ohio, Plaintiff-Appellee, v. Clarence Perry, Defendant-Appellant.
• Court: Ohio Supreme Court

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2005 Ohio 27

State of Ohio, Plaintiff-Appellee, v. Clarence Perry, Defendant-Appellant.

Case No. 84397.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Date of Announcement of Decision: January 6, 2005.

Criminal appeal from Common Pleas Court Case No. CR-442998.

Affirmed.

William D. Mason, Esq., Cuyahoga County Prosecutor, John Smerillo, Esq., Assistant Prosecuting Attorney The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for plaintiff-appellee.

Paul Mancino, Jr., Esq., 75 Public Square, Suite 1016, Cleveland, Ohio 44113-2098, for defendant-appellant.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., Presiding Judge.

{¶ 1} Clarence Perry appeals from his convictions for possession of drugs, drug trafficking, and possession of criminal tools following a jury trial. He claims the trial court erred by failing to grant his motion to suppress 34 rocks of crack cocaine that were found in his vehicle by the police. He also claims he should be afforded a new trial based upon multiple errors that occurred during his trial that were committed by the trial court and the prosecutor. Lastly, Perry argues that the prison sentence imposed by the trial court was erroneous and contrary to law. After reviewing the record and the applicable law, we affirm Perry's criminal convictions and subsequent prison sentence.

{¶ 2} On July 30, 2003, around 11:00 p.m., Detective David Sims of the Cleveland Police Department received an anonymous tip from a resident that Clarence Perry was selling drugs again on East 66th at Belvidere. The Detective was familiar with Perry; he had previously arrested him and found over 100 rocks of crack cocaine in his possession. Detective Sims and Sergeant John Moran proceeded to the area in question, parked their vehicle up the street from where Perry was standing and began surveillance.

{¶ 3} Through a pair of binoculars, Detective Sims observed Perry standing with two other males. Sims watched as a third person approached the group and engaged them in conversation. After the conversation, Perry went to the rear, passenger-side door of his 1996 gold-colored Buick Roadmaster, which was parked on the street, and retrieved an item. Perry gave the item to a heavy-set fellow, later identified as Cyril Baker, and Baker made a hand-tohand transaction with the third person. Based on his experience as a police officer, Sims believed a drug transaction had just occurred. Sims observed another similar transaction; he then called in an undercover police detective, Kimberly Rudolph, to attempt a controlled drug buy from Perry and Baker.

{¶ 4} Detective Rudolph arrived within five minutes and approached Perry and Baker in her undercover vehicle. Rudolph asked Baker "if she could get a 20," which is a way of asking in street terminology whether she could buy a rock of crack cocaine worth $20. Baker told Rudolph to wait and advised he would go and check. Detective Rudolph handed Baker a $20 bill, which had been marked and photocopied, and watched as Baker approached Perry and began talking. Perry then approached Rudolph's vehicle to get a good look at her face. Perry asked Rudolph to show her "tin badge," to which Rudolph replied she did not have one. Perry stated to Baker and Rudolph that he knew Rudolph was a police officer and that she had previously arrested him. Perry walked away from Rudolph's vehicle.

{¶ 5} Baker spoke with Rudolph again, and Rudolph convinced Baker that she was not a police officer. Baker then spoke with Perry again and, following this second conversation, Perry went to the rear, passenger-side door of his Buick Roadmaster, retrieved an item, and handed it to Baker. Detective Rudolph heard Perry state to Baker that selling to her "did not feel right."

{¶ 6} Baker gave Rudolph the item he obtained from Perry, which was later confirmed to be crack cocaine after laboratory testing. Baker then asked Rudolph for another $5. Baker turned back towards Perry to reconfirm the price of the crack rock; Perry replied, "at least $25." Rudolph handed Baker another marked and photocopied $20 bill and waited for Baker to get her change.

{¶ 7} In the meantime, another male appeared, later identified as Dan Belcher, who told Perry, Baker, and another male named Johnny Scott that the police were watching them from up the street. Perry and Scott got into the Buick Roadmaster and drove away. Baker fled the area on foot. As the group was dispersing, Rudolph called Detective Sims and stated she had purchased drugs from Perry.

{¶ 8} Detective Sims followed Perry's vehicle, losing sight of it for about a minute after it turned the corner onto Hough Avenue. Sims sighted Perry's vehicle parked in a lot on Hough next to a residence. Perry and Scott were no longer in the vehicle, so Detective Sims set up surveillance on the vehicle and the house next to the lot. After about fifteen minutes, Sims observed Perry and Scott exiting the house and walking towards the street. Detective Sims and Sergeant Moran apprehended and arrested both Perry and Scott. Sims testified that, after the appellant was arrested, he asked him where his drugs were, to which the appellant replied, "Come on Sims, the last time I told you where my drugs was, you took all my stuff and kept my truck." Detective Rudolph was called to the scene of the arrest and identified Perry as one of the men who had sold her crack cocaine.

{¶ 9} Sims believed the gold Buick Roadmaster belonged to Perry because he had seen him driving it before. The license plates on the vehicle were run through the police computer, and the computer search confirmed that the vehicle belonged to Perry. Perry's vehicle was inventoried by Detective Sims and Sergeant Moran before it was towed to the police impound lot, pursuant to Cleveland Police Department Procedures. Recovered from the vehicle were 34 individually wrapped white rocks, later confirmed by laboratory testing to be crack cocaine and weighing 14.22 grams. The rocks were inside a small black pouch that was imprinted on one side with the words "I Love You Jesus" and a red heart. The pouch was found in the rear passenger seat area of the vehicle.

{¶ 10} When the appellant arrived at the police station, his personal effects were inventoried at the booking window; one of the marked and photocopied $20 bills was found in his possession, along with various denominations of cash totaling $857. Cyril Baker, whose identity was unknown to the police at the time of Perry's arrest, escaped apprehension.

{¶ 11} On October 7, 2003, the Grand Jury indicted Perry on four criminal counts. Count one charged possession of drugs, specifically, crack cocaine in an amount exceeding ten grams, in violation of R.C. 2925.11, a felony of the second degree. Counts two and three charged drug trafficking, in violation of R.C. 2925.03. Count two, a fifth degree felony, charged Perry with trafficking a controlled substance in an amount less than one gram, while count three, a second degree felony, charged him with offering to sell a controlled substance in an amount exceeding ten grams but less than twenty-five. Count four charged possession of criminal tools, in violation of R.C. 2923.24, a felony of the fifth degree. Perry pleaded not guilty to all counts.

{¶ 12} Perry filed a motion to suppress the 34 crack rocks that were found in his vehicle claiming the search of his vehicle was illegal and without cause. On January 15, 2004, the trial court conducted a suppression hearing and overruled Perry's motion holding that, in view of Perry's arrest, an inventory of Perry's car was proper because the vehicle was subject to forfeiture.

{¶ 13} On February 23, 2004, a jury trial commenced. The prosecution introduced the testimony of Detective Sims, Detective Moran, Detective Rudolph, and Tracy Kramer, a scientific examiner for the Cleveland Police Department, to prove the state's case against Perry. Perry testified in his own defense, along with introducing the testimony of Johnny Scott and Cyril Baker. On February 25th, Perry was found guilty on all counts.

{¶ 14} On the same day, the trial court sentenced Perry to six years on count one, six months on count two, six years on count three, and six months on count four. All sentences were ordered to run concurrently for a total of six years incarceration. Perry's driver's license was suspended for five years, and he was ordered to pay a $5,000 fine.

{¶ 15} Perry brings this timely appeal alleging eleven assignments of error for review. Some of the arguments will be addressed together since they are interrelated.

Motion to Suppress — Unconstitutional Search and Seizure

{¶ 16} "I. Defendant was denied due process of law when the court overruled defendant's motion to suppress."

{¶ 17} In his first argument, the appellant claims the trial court erred by not granting his motion to suppress the 34 rocks of crack cocaine found in his vehicle. Only Detective Sims and the appellant testified at the suppression hearing.

{¶ 18} The appellant claims the warrantless search of his vehicle was illegal because 15 minutes had passed between the time he was observed selling drugs at East 66th and Belvidere and the time the vehicle was searched in the lot on Hough. Hence, this passage of time required the police to obtain a warrant to search the vehicle. Appellant further argues that the search of his person, which revealed the marked $20 bill, was also illegal for these same reasons.

{¶ 19} "[T]he standard of review with respect to motions to suppress is whether the trial court's findings are supported by competent, credible evidence. See State v. Winand (1996), 116 Ohio App.3d 286, 688 N.E.2d 9, citing Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 645 N.E.2d 802. *** This is the appropriate standard because `in a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions...