COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59174 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSEPH PETTIS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-231063 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Cuyahoga Cty. Prosecutor's Office JAMES E. CARSON, ESQ. RONALD JAMES, ESQ. 2020 Superior Building Assistant Prosecuting Attorney 815 Superior Avenue, N.E. The Justice Center Cleveland, Ohio 44114 1200 Ontario Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Joseph Pettis, was indicted by the Cuyahoga County Grand Jury on October 3, 1988, in a four-count indictment, viz: one count each for possession of cocaine, Demerol, and Valium, all being less than the bulk amount (R.C. 2925.11); one count of possession of criminal tools (R.C. 2923.24). On December 20, 1989, after a bench trial, the trial court found the appellant guilty on counts one, three, and four. The appellant was thereafter sentenced to eighteen months on count one, sixty days on count three and six months on count four; said six months to be served consecutive to the concurrent sentences on counts one and three. It is from this judgment and sentence that appellant now appeals, and for the reasons that follow, we affirm. I. On August 19, 1988, at approximately 10:15 p.m., Officer Ronald Welch of the Cleveland Police Narcotic Unit met with other members of the unit for a briefing in connection with a search warrant to be executed at 3147 Prospect Avenue, Apartment 205, Cleveland, Ohio. The search warrant was then executed by the officers when, after knocking on the apartment door and hearing no response, they entered by bodily force. The officers found the appellant in the apartment along with Judith Erby. - 2 - A search of the premises resulted in the recovery of: cocaine, various amounts of U.S. currency: a Nexus scale; $1,000 in traveler's checks; a gram scale; various pills, including Darvocet, Valium, and Dilaudid; and a .32-caliber revolver. The basis of the search warrant was a controlled purchase of cocaine from Apartment 205 by an informant. Officer Welch testified that this particular informant was used approximately six (6) times before. The search warrant was drawn up and executed within seventy-two (72) hours from the controlled purchase. The officers in the Narcotic Unit also executed a search warrant at 1793 East 31st Street on October 13, 1989, believing it to also be a residence of the appellant and Judith Erby. Judith Erby only was present during the search which resulted in the recovery of items similar to those recovered in the earlier search./1/\ Erby was arrested that day. The appellant was found and arrested in the area of the East 31st Street address a few days later. At trial, Erby testified that she alone resided at both the Prospect Avenue and East 31st Street addresses. She also claimed ownership of all the items recovered in both searches absent the cocaine discovered in appellant's pocket on August 19, 1988. Her testimony at trial differed from the statement given to the police earlier that the appellant helped her in her drug /1/\ An indictment was issued as a result of this search and the cases were consolidated for trial. The appellant was found not guilty on any counts of this subsequent indictment. - 3 - operation. She explained that the statement to the police about appellant's involvement resulted from her anger with him for his refusal to leave another woman. II. Appellant, in his first assignment of error, asserts that: "Defendant/Appellant's right to a fair trial under the due process clause of the Ohio Constitution was violated when the Court denied Defendant/Appellant's motion for disclosure of the alleged confidential informant." An informant's identity must only be revealed to a criminal defendant when the informant's testimony is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges. State v. Williams (1983), 4 Ohio St. 3d 74. In the case sub judice, the informant was involved in a controlled buy which established probable cause for a search warrant. State v. Freeman (1986), 32 Ohio App. 3d 42; State v. Roldan (Nov. 21, 1990), Cuyahoga App. No. 57585, unreported. The counts charged in the indictment only arose out of the execution of the search warrant. The informant's testimony was not necessary to establish any elements of the offenses. Furthermore, appellant fails to show how the informant's identity would have been helpful or beneficial in making a defense to the criminal charges. Appellant argued in his motion for disclosure, without supporting affidavit, that the identity of the informant was crucial to the issue of probable cause to search the Prospect - 4 - Avenue apartment. The lack of probable cause, he argues, was his successful defense to the criminal charges. However, appellant never avers that Officer Welch's sworn statements made in the warrant affidavit that an informant made a controlled buy were false. See e.g., Franks v. Delaware (1978), 438 U.S. 154; State v. Collins (Feb. 28, 1991), Cuyahoga App. Nos. 58003, 58004, unreported. Absent this allegation, appellant cannot show how the informant's identity would be helpful or beneficial to him. The affidavit was valid, and provided the officers with probable cause to obtain a search warrant. See Collins, supra. The trial court, therefore, did not err in denying appellant's motion for disclosure of the alleged confidential informant. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant asserts that: "Exhibits eighteen (18), ninteen [sic] (19) and twenty (20) were not properly authenticated nor furnished to counsel for inspection prior to trial." During the course of trial, appellee introduced into evidence three photographs of items recovered in the August search. Exhibits 18, 19, and 20 depicted a Nexus scale, a .32- caliber revolver, and a plastic scale, respectively. The items depicted in the photographs partially formed the basis for count four, possession of criminal tools. The tangible items were not presented at trial. Appellant argues that the photographs were - 5 - never properly authenticated and he, therefore, was never connected to the scales and gun. The Supreme Court of Ohio, with regard to the application of Evid. R. 403 to the admission of photographs into evidence, has held that: "*** the admission of photographs is left to the sound discretion of the trial court." State v. Maurer (1984), 15 Ohio St. 3d 239, 264. In addition, the same court held in State v. Hymore (1967), 9 Ohio St. 2d 122, that: "The trial court has broad discretion in the admission *** of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere." Id., at 128. See, State v. Overholts (Feb. 18, 1988), Cuyahoga App. No. 53404, unreported. Evid. R. 901 requires authentication or identification as a condition precedent to admissibility. This requirement is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims". Evid. R. 901(A). A review of the photographs admitted into evidence and the record herein discloses that the photographs were properly authenticated, relevant and had probative value thereby helping the rendering of a verdict. Officer Welch was present during the search of the Prospect Avenue apartment. He testified that the exhibits depicted the revolver and scales which were taken from the apartment. The officer could not recall who actually took the photographs but testified he may have done so himself. The - 6 - trial court, therefore, did not abuse its discretion in admitting the photographs into evidence. Appellant's second assignment of error is overruled. IV. Appellant next contends in his third assignment of error that: "The Court erred in denying defendant's Rule 29 motion to dismiss in that the prosecutor failed to prove possession for counts three (3) valuims [sic] and four (4) possession of criminal tools." Appellant asserts that the state failed to show that he "possessed" the Valium and criminal tools. Specifically, he argues that possession is not established when it was only shown that he was merely in the apartment where the officers found the drugs and criminal tools. Motions for acquittal are governed by Crim. R. 29(A), which provides as follows: "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." Pursuant to this rule, a court shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. - 7 - The knowing possession of a controlled substance is prohibited, inter alia, under R.C. 2925.11. Possession of criminal tools is defined in R.C. 2923.24, which states in pertinent part that: "(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 constitute 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." Appellant avers that the state failed to prove he possessed the drugs and criminal tools. R.C. 2925.01(L) defines "possession" as: "(L) 'Possess' or 'possession' means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." It is well settled that possession may be actual or constructive. See State v. Haynes (1971), 25 Ohio St. 2d 264, 269-270. Constructive possession is established by proof that the defendant "was able to exercise dominion or control over the object even though the object may not be within his immediate physical possession." State v. Johnson (Nov. 21, 1985), Cuyahoga App. No. 49746, unreported, 7; see State v. Boyd (Aug. 3, 1989), Cuyahoga App. No. 55619, unreported. The record herein fails to support appellant's claim on this issue. - 8 - Initially, it is noted that the state did not admit any evidence pertaining to syringes. However, the state need only prove the illegal possession of one criminal tool to sustain a conviction for one count of possession of criminal tools. State v. Hill (Nov. 15, 1984), Cuyahoga App. No. 48020, unreported, at 5. Appellant relies on Haynes, supra, for the proposition that "no inference of guilt in relation to any specific tenant may be drawn from the mere fact if [sic] the presence of narcotics on the premises." The within action is clearly distinguishable from Haynes. The Valium and criminal tools were recovered in apartment 205 in a building located at 3147 Prospect Avenue. Officer Welch testified that prior to the execution of the search warrant, it came to his attention that a man named Joe King and an unidentified white female were living in the apartment as husband and wife. Joe King was later identified as the appellant, Joe Pettis. The officer testified that he also had knowledge that the two individuals were selling cocaine and pills from the address. A controlled purchase was subsequently made at the address resulting in the procurement of a search warrant and the execution of the warrant. The officers, during the search, recovered a prescription bottle in the bedroom. The patient's name on the bottle was Joseph Pettis, the appellant. Although the bottle indicated that the prescription was for a drug called Tenormin, it - 9 - contained six (6) Dilaudids and sixteen (16) Valiums. The relevant criminal tools remaining were the scales, money, and gun which were found in various locations in the apartment. The appellant, unlike in Haynes, was present in the apartment during the search. A prescription bottle naming the appellant as the patient was found in the bedroom of the searched premises. These facts cast doubt on the appellant's assertion that he was "merely present" at the apartment. Reasonable minds could reach different conclusions as to whether he was able to exercise dominion or control over the Valium, the gun, $83, and $1,000 in traveler's checks. The trial court, therefore, properly denied the appellant's Crim. R. 29 motion. Appellant's third assignment of error is overruled. IV. Appellant, in his fourth assignment of error, contends that: "The search warrant was defective in the the [sic] confidential informant was not shown to be reliable." Appellant assigns as error the trial court's denial of his motion to suppress. He argues that the search warrant was defective in that the warrant affidavit failed to demonstrate the reliability of the confidential informant. Specifically, he asserts that the informant was not reliable since he never provided information leading to a conviction. Crim. R. 41 (C) provides: "A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. The affidavit shall name or describe the person to be searched or particularly - 10 - describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant's belief that such property is there located. ***" (Emphasis added.) A court is guided by the considerations set forth in State v. George (1909), 45 Ohio St. 3d 325, when reviewing a claim of a defective search warrant. The Ohio Supreme Court stated: "1. In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, '[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' (Illinois v. Gates [1983], 462 U.S. 213, 238-239, followed.) "2. In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates [1983], 462 U.S. 213, followed.)' See also State v. McGettrick (1988), 40 Ohio App. 3d 25." Id., paragraphs one and two of the syllabus. See, e.g., State v. Fisher (Nov. 1, 1990), Cuyahoga App. Nos. 57505, 57506, unreported. - 11 - In the within action, the search warrant was issued upon information from Cleveland Police Officer Ronald Welch of the Narcotic Unit that he received information from a reliable informant which led to a controlled purchase of cocaine from Apartment 205 through the use of the informant. The officer was present during the controlled purchase. The affidavit presented to the issuing judge contained information sufficient to permit the determination of the confidential informant's reliability as his reliability remains a part of the probable cause equation. See, State v. Roper (Dec. 6, 1990), Montgomery App. No. 12076, unreported. The affiant stated that he was familiar with the confidential informant, in that he supplied information leading to at least (6) arrests. The reliability concern is thus satisfied for probable cause purposes. See Roper, supra; State v. Light (Apr. 18, 1988), Stark App. No. CA 7297, unreported. Appellant's fourth assignment of error is overruled. Judgment affirmed. - 12 - 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. DAVID T. MATIA, P.J., and J.F. CORRIGAN, J., CONCUR. SARA J. HARPER JUDGE 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. .