[Cite as State v. White,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95066

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANTHONY WHITE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-534866

BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: August 18, 2011 ATTORNEYS FOR APPELLANT

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 Officer 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. Thereafter, Officer Slatkovsky discovered that appellant was driving with a

suspended license, and appellant was placed under arrest. Once appellant

was placed in the police vehicle, Officer Slatkovsky conducted a tow inventory

search of appellant’s vehicle and discovered 5.62 grams of crack cocaine in a

plastic baggie. Officer Slatkovsky testified that the plastic baggie was

wedged between the vehicle’s center console and front passenger seat.

Officer Slatkovsky also recovered nine oxycodone pills from the vehicle’s

center console.

{¶ 3} Testimony adduced at trial indicated that appellant was not the

owner of the vehicle searched by Officer Slatkovsky. Appellant testified 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 R.C. 2925.03(A)(2) with a schoolyard specification, in violation of

R.C. 2925.01(P); Count 2, drug possession of crack cocaine in violation of R.C.

2925.11; Count 3, drug possession of oxycodone in violation of R.C. 2925.11;

and Count 4, possession of criminal tools in violation of R.C. 2923.24.

{¶ 5} On April 7, 2010, the matter proceeded to a bench trial, and

appellant was found guilty of drug possession of crack cocaine and drug

possession of oxycodone. He was acquitted on the remaining counts. At the sentencing hearing, the trial court sentenced appellant to an aggregate

one-year term of imprisonment.

{¶ 6} Appellant appeals, raising two assignments of error for our

review:

{¶ 7} “I. “The indictment fails 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. We 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 about 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),

,

, the Tenth District 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 the

offenses occurred in Franklin County.

The Williams court relied on R.C.

2941.08(F), which provides that an indictment is not invalid for failure to

allege the time or place of a material fact when the time and place have once

been stated within the indictment. We find Williams applicable herein.

{¶ 16} Upon review of the indictment as a whole, it is clear that the

language used throughout the indictment alleged that each 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 clearly states that the grand jury found that the offense occurred in Cuyahoga

County. Since the jurisdiction of the court was once stated, the subsequent

counts were not required to reiterate it. R.C. 2941.08(F).

{¶ 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 experience, 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. Evid.R. 801(C) defines

“hearsay” as “a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Under the terms of Evid.R. 802, a witness is barred on hearsay grounds from testifying as to the statement made by another when

the statement is offered to prove the truth of the matter asserted in the

statement, and when the statement falls outside any exception to the rule

against hearsay. State v. Carter,

,

,

.

{¶ 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 Evid.R.

801(C), and it is not prohibited by Evid.R. 802.” State v. Durham, Cuyahoga

App. No. 94747,

, citing State v. Mills (Mar. 20, 1997),

Cuyahoga App. No. 69788.

{¶ 22} In the case subjudice, the testimony of Det. Cudo did not 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. Det. Cudo merely testified that, in his

experience, forensic examiners were rarely able to retrieve a usable

fingerprint from a plastic baggie submitted for analysis. Therefore, Det.

Cudo’s testimony does not fit the definition of Evid.R. 801(C), and his

testimony did not constitute inadmissible hearsay. {¶ 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} Evid.R. 702, which controls the admission of expert testimony

during the course of trial, provides that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify thereto in the form of an

opinion or otherwise.” Ohio courts have allowed the qualification of police

officers as expert witnesses to expound about drugs and drug practices.

State v. Hancock, Jefferson App. No. 09-JE-30,

; State v.

Ross, Montgomery App. No. 19036,

, ¶14; In re Litterst (June

26, 1998), Lake App. Nos. 97-L-135 and 97-L-136, fn.3; State v. Campa,

Hamilton App. No. C-010254,

, ¶5.

{¶ 25} It is well established that rulings concerning 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 of an abuse of

discretion. Pacific Great Lakes Corp. v. Bessemer & Lake Erie R.R. (1998),

,

. An abuse of discretion implies an

unreasonable, arbitrary, unconscionable attitude by the trial court.

{¶ 26} In this matter, Det. Cudo’s testimony relating to his experience

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 investigations. 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 observations 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 not 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 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

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