COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59312 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALBERT THORNTON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-243611. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Timothy P. Haffey, Esq. Assistant Public Defender Room 307 Marion Building Cleveland, OH 44113 -2- MATIA, P.J.: Defendant-appellant, Albert Thornton, appeals from his conviction for the offenses of possession of cocaine and possessing criminal tools. The appellant's appeal is not well taken. I. THE FACTS A. THE SEARCH OF THE APPELLANT'S HOME On September 1, 1989, a search of the appellant's home, which was located at 1571 East 70th Street, Cleveland, Ohio, was conducted by the Cleveland Police Department. A search warrant was obtained by the police based upon the observation of active drug trafficking. Upon execution of the search warrant, the following items were discovered in the appellant's second floor residence: cocaine, firearms, money, marijuana, a scale and a vial of mannitol. B. THE INDICTMENT OF THE APPELLANT On November 21, 1989, the appellant was indicted by the grand jury of Cuyahoga County for one count of possession of cocaine (less than the bulk amount) in violation of R.C. 2925.11, one count of possession of heroin (less than the bulk amount) in violation of R.C. 2925.11 and one count of possessing criminal tools (guns, money, scale, marijuana and a glass vial) in violation of R.C. 2923.24. -3- C. THE ARRAIGNMENT OF THE APPELLANT On December 13, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to all three counts of the indictment. D. THE JURY TRIAL AND CONVICTION On January 10, 1990, a trial before a jury was commenced with regard to all three counts of the indictment. On January 11, 1990, the jury found the appellant guilty of one count of possession of cocaine and one count of possessing criminal tools. The jury found the appellant not guilty with regard to the offense of possession of heroin. E. THE SENTENCE OF THE TRIAL COURT On January 12, 1990, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio for a term of one year with regard to the offense of possession of cocaine and a term of incarceration of one year with regard to the offense of possessing criminal tools. The trial court further ordered that the terms of incarceration run concurrent with each other. F. THE APPELLANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offenses of possession of cocaine and possessing criminal tools. -4- II. THE FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: "MR. THORNTON'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF POSSESSION OF CRIMINAL TOOLS ON EVIDENCE THAT WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION." A. ISSUE RAISED: CONVICTION FOR POSSESSING CRIMINAL TOOLS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE The appellant, in his initial assignment of error, argues that he was improperly convicted of the offense of possessing criminal tools. Specifically, the appellant argues that insufficient evidence was presented by the State of Ohio to support a conviction for the offense of possessing criminal tools. The appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INSUFFICIENT EVIDENCE Initially, it is necessary to examine the standard of review to be applied by this court to a question of sufficiency of the evidence. The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St. 2d 259, recently held that: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the -5- crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" (Emphasis added.) State v. Jenks, supra, paragraph two of the syllabus. In addition, the Supreme Court of Ohio in Jenks addressed the issue of the probative value of circumstantial evidence versus direct evidence and established that: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)" (Emphasis added.) State v. Jenks, supra, paragraph one of the syllabus. C. ELEMENTS OF OFFENSE OF POSSESSING CRIMINAL TOOLS The elements of the offense of possessing criminal tools, as defined by R.C. 2923.24 are: 1) possess or have under control, 2) any substance, device, instrument or article, and 3) with purpose to use the item criminally. D. EVIDENCE ADDUCED AT TRIAL In the case sub judice, the evidence adduced at trial, although circumstantial in nature, proved beyond a reasonable doubt that the appellant had constructive possession of the -6- firearms, money, scale, marijuana and a glass vial. Constructive possession has been defined as the ability to exercise dominion or control over the object in question. State v. Haynes (1971), 25 Ohio St. 2d 264; State v. Walker (Oct. 15, 1987), Cuyahoga App. No. 52485, unreported; State v. Bailey (April 9, 1987), Cuyahoga App. No. 51968; State v. Johnson (Nov. 21, 1985), Cuyahoga App. No. 49746, unreported. Herein, the firearms, money, scale, marijuana and glass file were found within the home occupied by the appellant or directly upon the appellant. Specifically, testimony adduced at trial revealed that: 1) $470 was discovered on the appellant's person; 2) the scale was discovered in a bedroom; 3) the firearms were discovered in a bedroom; 4) the marijuana was discovered in a bedroom; and 5) the glass vial was discovered in a bedroom. It should also be noted that a "controlled" purchase of illegal drugs had been made from the appellant's home prior to the execution of the search warrant. E. SUFFICIENT EVIDENCE ADDUCED AT TRIAL TO SUPPORT CONVICTION FOR OFFENSE OF POSSESSING CRIMINAL TOOLS Thus, viewing the evidence adduced at trial in a light most favorable to the prosecution, this court can but find that any rational trier of fact could have found that the appellant did possess or have under his control firearms, money, a scale, marijuana and a glass vial with purpose to use the items in a criminal manner. Sufficient evidence was adduced at trial to -7- support the appellant's conviction for the offense of possessing criminal tools. The appellant's first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "MR. THORNTON WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCING FOR POSSESSION OF CRIMINAL TOOLS IN VIOLATION OF R.C. 2923.24, A FELONY OF THE FOURTH DEGREE." A. ISSUE RAISED: POSSESSION OF SCALE AND GLASS VIAL A VIOLATION OF DRUG ABUSE INSTRUMENTS STATUTE AND NOT POSSESSING CRIMINAL TOOLS STATUTE The appellant, in his second assignment of error, argues that he was improperly convicted of the crime of possessing criminal tools with regard to the specific items of a scale and glass vial. Specifically, the appellant argues that the criminal possession of a scale and a glass vial was a violation of R.C. 2925.12 which defines possessing drug abuse instruments, a misdemeanor of the second degree. The appellant's second assignment of error is not well taken. B. R.C. 2925.12: DRUG ABUSE INSTRUMENT STATUTE AS IN EFECT AT TIME OF APPELLANT'S TRIAL AND CONVICTION R.C. 2925.12, as in effect at the time of the appellant's trial and conviction in January of 1990, provided as follows with regard to the offense of possessing drug abuse instruments: "(A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a -8- dangerous drug, other than marihuana, when the instrument involved is a hypodermic or syringe, whether or not of crude or extemporized manufacture or assembly, and the instrument, article, or thing involved has been used by the offender to unlawfully administer or use a dangerous drug, other than marihuana, or to prepare a dangerous drug, other than marihuana, for unlawful administration or use." (Emphasis added.) C. THIS COURT'S PRIOR REVIEW OF THE DRUG ABUSE INSTRUMENT STATUTE This court, in State v. Alexander (Dec. 14, 1989), Cuyahoga App. No. 56406, held that the offense of possessing drug abuse instruments, as defined by R.C. 2925.12(A) is applicable only to the criminal possession of a hypodermic needle or a syringe. "R.C. 2925.12(A), which deals with possessing drug abuse instruments, involves only hypodermics or syringes. The court in State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported, held that: "'The ninth assigned error complains that a snort tube was improperly included among those objects constituting criminal tools. Defendant contends that the snort tube is an instrument of drug abuse under R.C. 2925.12(a), and therefore not amenable to prosecution as a criminal tool. "'R.C. 2925.12(a) specifies only hypodermics or syringes as being within its purview. As a snort tube is not a hypodermic or syringe, it was properly classified as a criminal tools pursuant to R.C. 2923.24. See, e.g., State v. Bailey (Apr. 9, 1987), Cuyahoga App. No. 51968, unreported (affirming conviction for possession of criminal tools, among which was a straw used for snorting cocaine). The ninth assigned error is overruled.' State v. Mateo, supra, at 9." State v. Alexander, supra, at 8. -9- D. SCALE AND VIAL ARE NOT INSTRUMENTS USED TO "ADMINISTER" DRUGS It should also be noted that a scale and a vial are not items which are used to unlawfully administer a dangerous drug and thus cannot fall within the purview of R.C. 2925.12 as in effect at the time of the appellant's trial and conviction. Therefore, the appellant's second assignment of error is not well taken. IV. THE THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: "MR. THORNTON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT OF DUE PROCESS AND TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE TRIAL COURT IMPROPERLY LIMITED CROSS- EXAMINATION OF THE STATE'S KEY WITNESS." A. ISSUE RAISED: TRIAL COURT ERRED BY LIMITING CROSS- EXAMINATION OF STATE'S WITNESS The appellant, in his third assignment of error, argues that the trial court erred as a result of limiting the cross- examination of the prosecution's chief witness, Detective Whitney. Specifically, the appellant argues that cross- examination of Detective Whitney should have been allowed into the "motive" for the appellant's arrest. The appellant's third assignment of error is not well taken. B. THE ATTEMPTED CROSS-EXAMINATION OF STATE'S WITNESS During the course of the cross-examination of Detective Whitney, the appellant attempted to inquire into matters which allegedly involved the basis or motive for the appellant's -10- arrest. Upon cross-examination, the appellant attempted to inquire into such areas as: 1) the racial composition of Detective Whitney's past arrests; 2) the possibility of a civil lawsuit based upon the tort of false arrest; 3) the records of Detective Whitney's past arrests; and 4) Detective Whitney's performance evaluations. C. STANDARD OF REVIEW TO BE APPLIED TO CROSS-EXAMINATION The standard of review to be applied by this court with regard to a trial court's limitation of the scope of cross- examination is "abuse of discretion." "Defendant contends in his first assignment of error that the trial court erred in limiting the scope of cross- examination. For the following reasons defendant's contention lacks merit. "Absent an abuse of discretion, this court may not reverse a trial court's decision with respect to the scope of cross- examination. Calderon v. Sharkey (1982), 70 Ohio St. 2d 218, syllabus; State v. Dimes (Nov. 1, 1990), Cuyahoga App. No. 57661, unreported. 'The term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.' Calderon, supra, at 220, quoting State v. Adams (1980), 62 Ohio St. 2d 151, 157-158 (citations omitted). Moreover, the question before this court is not whether we would have ruled similarly when confronted with these questions, but whether the court abused its discretion so as to prejudice appellee. Calderon, supra." State v. Douglas (May 9, 1991), Cuyahoga App. No. 58493, unreported, at 6. -11- D. TRIAL COURT DID NOT ABUSE ITS DISCRETION IN LIMITING CROSS- EXAMINATION A review of the record herein fails to disclose that the trial court's limitation of the cross-examination of Detective Whitney was unreasonable, arbitrary or unconscionable. In addition, the attempted cross-examination of Detective Whitney was not relevant to the case-in-chief and was thus prohibited by the application of Evid. R. 402 and Evid. R. 403. Thus, the trial court did not err in limiting the cross- examination of Detective Whitney and the appellant's third assignment of error is not well taken. V. THE FOURTH ASSIGNMENT OF ERROR The appellant's fourth assignment of error is that: "MR.THORNTON WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT DURING CLOSING STATEMENTS." A. ISSUE RAISED: PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT The appellant, in his fourth assignment of error, argues that the comments of the prosecutor during closing arguments denied the appellant a fair trial. Specifically, the appellant argues that the prosecutor, during closing arguments, commented that marijuana was being laced with cocaine by the appellant thus resulting in prejudice and an unfair trial. The appellant's fourth assignment of error is not well taken. -12- B. STANDARD OF REVIEW APPLICABLE TO CLAIM OF PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT The Supreme Court of Ohio has established that a claim of prosecutorial misconduct must be evaluated in light of the entire case. State v. Maurer (1984), 15 Ohio St. 3d 239. In addition, a two-part test must be applied to a claim of prosecutorial misconduct. "The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Door, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, , at 88. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7-106(C)(4) of the Code of Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7- 106(C)(1), and '*** [a] lawyer should not make unfair or derogatory personal reference to opposing counsel. ***' EC 7-37." State v. Smith (1984), 14 Ohio St. 3d 13, at 14. C. THE CLAIMED PROSECUTORIAL MISCONDUCT Herein, the appellant argues that he was prejudiced and denied a fair trial as a result of the following statement as made by the prosecutor during closing arguments: "MR. THOMAS: The guns, the criminal purpose there is to protect the stash. That is what they are there for. "The marijuana, well, marijuana is not charged as a controlled substance in this -13- case. However, it is connected with the trace of cocaine found in that one bag. "Whatever purpose they were being used in connection with each other, we don't know. If the one came in contact with the other, we don't know. It may have been that the marijuana was being laced with cocaine. We don't know. "I submit however that it too was most likely being laced with cocaine. Therefore it is a criminal tool. "MR. OWENS: Objection. "THE COURT: Overruled. This is a final argument." (Tr. 182.) D. NO PROSECUTORIAL MISCONDUCT CAN BE FOUND IN CLOSING ARGUMENTS An applicant of the two-part test of prosecutorial misconduct as found in State v. Smith, supra, fails to disclose the existence of any misconduct on the part of the prosecutor during closing arguments. The remarks of the prosecutor were not improper and the appellant was not prejudiced. In addition, the remarks of the prosecutor were based upon testimony adduced at trial and did not mislead the jury in any manner. The remarks of the prosecutor merely reflected a permissible summary of evidence adduced at trial. Cf. State v. Ferguson (1983), 5 Ohio St. 3d 160. Thus, the appellant was not prejudiced by the comments of the prosecutor as made during closing arguments and the appellant's fourth assignment of error is not well taken. Judgment affirmed. -14- 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. NAHRA, J. and JAMES D. SWEENEY, J, CONCUR. DAVID T. MATIA PRESIDING 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. .