COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58952 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION STANLEY McSHAN : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 10, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 236674 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones John B. Gibbons Cuyahoga County Prosecutor 2000 Standard Building By: Edward Kraus Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Stanley McShan was convicted of one count of possession of cocaine (R.C. 2925.03) and one count of possession of criminal tools (R.C. 2923.24). In a timely appeal with one assignment of error, McShan asserts the trial court impermissibly denied his Crim. R. 29 motion on the criminal tools charge. Upon review of the record, we affirm. Crim. R. 29 requires a trial judge to enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. When reviewing a challenge to the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259. R.C. 2923.24 proscribes the possession of criminal tools and provides, in relevant part: "(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. "(B) Each of the following constitutes prima-facie evidence of criminal purpose: "*** "(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use." The jury convicted McShan of possessing a pager and an automobile as criminal tools. On appeal, McShan argues the state presented - 2 - no evidence he possessed the vehicle or used the pager criminally. The record demonstrates that, on the evening of February 16, 1989, Cleveland Police Officers Gerald Crayton and Rodney McClendon observed a Cadillac automobile "double-parked" in the area of St. Clair Avenue and Glenside Road. Officer McClendon described this location as a high-crime area known for drug activity. The officers testified they observed a man leaning into the passenger side window of the auto where McShan sat. McClendon told the jury that, as he and his partner approached the vehicle, the defendant "leaned forward" and "fumbled around" as if placing something under the seat. The officers ordered McShan, the driver, and the back seat passenger out of the automobile. McClendon averred he then observed two bags of cocaine on the floor of the car on the passenger side. The officers arrested the men and a search of McShan revealed four more bags of cocaine and a pager. It is well-established that possession of an object may be either actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264; State v. Bey (February 7, 1991), Cuyahoga App. No. 57973, unreported. Constructive possession requires that the defendant be able to exercise dominion or control over the object. State v. Wolery (1976)l, 46 Ohio St. 2d 316; State v. Pruitt (1984), 18 Ohio App. 3d 50. It is undisputed that McShan was seated in the front passenger side of the automobile and that the driver of the vehicle had title to the car. Nothing in the - 3 - record demonstrates McShan had the ability to exercise dominion or control over the auto. Thus, the state's evidence is insufficient to support a conviction for possession of criminal tools based upon the vehicle. See State v. Thompson (July 18, 1991), Cuyahoga App. Nos. 58803, 58834, unreported. The state, however, need only prove the illegal possession of one criminal tool to sustain a conviction for one count under R.C. 2923.24. State v. Hills (November 15, 1984), Cuyahoga App. No. 48020, unreported at 5. In this case, the record contains sufficient evidence for the jury to conclude that, under the circumstances, McShan possessed the pager with the intent to use it criminally. The officers initially observed the defendant conversing with another man who was leaning in the passenger side window. The police officers arrested McShan with four bags of cocaine in his jacket and two bags of cocaine on the floor in front of the passenger seat. Defense counsel elicited testimony from the officers that drug dealers use pagers in their business. (Tr. 108, 160). We note Officer McClendon stated "*** [W]hat does a 19-year-old unemployed black youth need with a nature of this remark, however, we are compelled to view the evidence concerning the pager in a light most favorable to the state. Jackson, supra. Under this standard, we find the evidence is sufficient to sustain a conviction for possession of the pager as a criminal tool. See State v. Fisher (November 1, 1990), Cuyahoga App. Nos. 57505, 57506, unreported (pager found to be - 4 - criminal tool); State v. Brown (June 18, 1987), Cuyahoga App. No. 52339, unreported (affirming jury's finding that pager was a criminal tool). Accordingly, the defendant's assignment of error is overruled and the conviction is affirmed. Judgment affirmed. - 5 - 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. SARA J. HARPER, J., and *WILLIAM W. HARSHA, J., CONCUR. PRESIDING JUDGE ANN McMANAMON *Sitting by assignment: Judge William W. Harsha, Fourth District Court of Appeals. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58952 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION STANLEY McSHAN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 HARPER, J. DISSENTING: I respectfully dissent from the majority's resolution of appellant's assignment of error. I agree with the majority's determination that the state failed to show that the appellant possessed the vehicle for purposes of a conviction under R.C. 2923.24. However, I disagree with their conclusion that the state presented sufficient evidence to sustain his conviction for possession of criminal tools based upon the pager. I would have, therefore, sustained appellant's assignment of error and reversed his conviction for possession of criminal tools. In order for a defendant to be convicted of possession of criminal tools, the state must show that the defendant possessed - 2 - or had under his control a substance, device, instrument, or article, with purpose to use it criminally. R.C. 2923.24(A). Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use, constitutes prima facie evidence of criminal purpose. R.C. 2923.24(B)(3). The statute does not merely require that it be shown that the particular item is commonly used for criminal purposes. It must also be shown that the circumstances indicate that the item is intended for criminal use. In the within case, there was indeed testimony from the police officers that drug dealers use pagers in their business. This testimony, however, sheds no light on this particular appellant's reason for possession of the pager. It, therefore, in and of itself, does not establish that the appellant possessed the pager with purpose to use it criminally. Moreover, the appellant's mere conversation with a man who was leaning in the passenger side window likewise fails to establish that the appellant possessed the pager with purpose to use it criminally. There was no evidence that the appellant possessed the bags of cocaine for purposes of sale. There was no evidence that the appellant was transacting drug business with the man leaning in the window. There was also no testimony that the appellant used the pager to connect with a prospective buyer. The record is devoid of sufficient evidence in support of the appellant's conviction for possession for criminal tools. - 3 - The state failed to establish that the appellant's possession of the pager was under circumstances which indicated criminal use. There was, therefore, no prima facie evidence of criminal purpose. I am well aware of this country's stand on the use of and sale of drugs. I am also well aware of the executive, judicial, and legislative efforts, conceived and effected for the optimistic purpose of abating and managing the flood of drug activity. However, the frenzy which issues from the country's focus on the drug problem cannot be used to ignore the requirements of the law. The state is still required to prove all of the elements of an offense prior to the conviction of a defendant for that offense, no matter what the offense, as this is "A government of laws, and not of men." Original Draft of Massachusetts Constitution (1779). .