COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59383 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JULIA TYES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 5, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-23941 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES PAUL MANCINO JR. Cuyahoga County Prosecutor 75 Public Square Building Justice Center, 8th Floor Suite 1001 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Julia Tyes, defendant-appellant, timely appeals her convictions of possession of more than three times the bulk amount of cocaine, two counts of possession of criminal tools, possession of marijuana in an amount equal to or exceeding bulk but less than three times bulk, and one count of trafficking less than the bulk amount of cocaine. Appellant has assigned several errors all implicating a derogation of her constitutional rights. Because we find that these assigned errors lack merit, we affirm the conviction resulting from appellant's trial to the bench. Detective Mark Schmitt of the Cleveland Heights Police Department testified that he was assigned an investigation of drug activity at 3578 Bainbridge in Cleveland Heights, Ohio. The investigation commenced as a result of an accumulation of data and a Crime Stoppers report. The residence known as 3578 Bainbridge was owned by appellant Julia Tyes. On March 29, 1989, the first of two controlled purchases of cocaine was conducted. An informant and an undercover law enforcement agent participated in this purchase. Detective Schmitt maintained both visual and audio contact with the informant and the undercover officer. The transaction was recorded on audio tape. The undercover officer and the informant approached appel- lant, who was in a silver Pontiac Grand Am. The undercover officer walked up to the vehicle and was introduced to appellant -3- by the informant. Upon being introduced, the undercover agent, in response to appellant asking him what he wanted, stated that he was interested in an "eight ball" or an eighth of an ounce of cocaine. Appellant stated that it would take a few minutes and accepted Two Hundred and Fifty Dollars ($250,00) from the undercover officer. Detective Schmitt testified that from his vantage point he observed appellant accept the money. The appellant told the informant and the undercover officer to wait inside of the house until she returned, and she left. Appellant returned after about ten minutes, entered the house, and gave the cocaine to the undercover officer. On March 31, 1989, Detective Schmitt monitored a conversation between a co-defendant and the same undercover officer, wherein arrangements were made for another controlled purchase of cocaine. Also, on March 31, 1989, a search warrant was obtained and was to be executed while the undercover officer was inside the house. The affidavit to obtain the search warrant included an account of the previous controlled buy involving appellant. Once the undercover officer was inside the residence on Bainbridge, the search warrant was executed. Appellant did not arrive until approximately fifteen minutes after the officers were inside. A copy of the search warrant was given to appellant and she was advised of her constitutional rights. During the execution of the warrant, appellant directed the police to specific locations inside the house where cocaine, marijuana, and -4- other contraband were found. Specifically, four ounces of cocaine were found inside appellant's fur coat and a pound of marijuana in a kleenex box. After the search was completed, appellant signed an inventory form, and she was then arrested. The first and second assignments of error asserted by the appellant state: DEFENDANT WAS DENIED HER CONSTITUTIONAL RIGHTS WHEN THE COURT OVERRULED A MOTION TO SUPPRESS EVIDENCE OF STATEMENTS MADE BY THE DEFENDANT WHILE IN CUSTODY. DEFENDANT WAS DENIED CONSTITUTIONAL RIGHTS WHEN HER STATEMENT WAS TAKEN FROM HER IN VIOLATION OF THE FOURTH AMENDMENT. Even though appellant was arrested on March 31, 1989, appellant's statement that was given to the police was dated April 4, 1989. Appellant claims that her statement violates both her Fourth and Fifth Amendment rights. Appellant argues that her statement "I don't want to tell the names of the person now, at least until I talk to my attorney," reflects a desire to speak with an attorney prior to answering any more questions. It is appellant's position that this statement is indicative of a circumstance where the officers should have stopped the questioning and assured themselves that the appellant knew her rights. Furthermore, in assignment of error two, appellant argues that she was not given a prompt probable cause hearing. She asserts that because her statement was taken during her unlawful detention between March 31, 1989 and April 4, 1989, her Fourth Amendment rights were violated. -5- Whether a confession is voluntary depends upon the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31. Where an accused on her own volition chooses to initiate on her own a new colloquy with authorities, appellant waives her right to counsel. State v. Brown (1988), 38 Ohio St. 3d 305, 310. Applying these rules to the issue of the Fifth Amendment violation raised by assignment of error one, we must overrule it. At the outset, it must be pointed out that the express wording of the appellant's statement reflects a desire to speak with counsel only for purposes of divulging the names of her drug sources. There is nothing in the record to suggest confusion or a lack of understanding about the presence of an attorney during questioning. In fact, the appellant's statement indeed reflects that she fully understood her right to counsel because she wanted to speak with a lawyer, prior to revealing the names. Also, under the rule in Brown, appellant continues her colloquy immediately after the statement without any urging from the officers. We agree with appellee that the statement in question demonstrates that appellant knew she did not have to talk with the police if she chose not to. Appellant clearly reserves the issue of divulgence of her sources, which the police did not -6- pursue any further, and then voluntarily continued to give further statements. Applying the totality of the circumstances rule to the Fourth Amendment argument, appellant was given her Miranda warnings on more than one occasion. She signed a written waiver of rights. Appellant has criminal convictions in other cases, was forty years old at the time, literate, and employed. We must conclude from these salient facts, that constitute a look at the totality of the circumstances, that appellant's statements were voluntary. Finally, with respect to the issue of unlawful detention, in support of which appellant cites Riverside v. McLaughlin (1991), 111 S. Ct. 1661, we do not agree that the nature of appellant's detention renders the ascertainment of the statement a violation of her Fourth amendment rights. Riverside does not expressly overrule Gerstein v. Pugh (1975), 420 U.S. 103; it establishes immunity against systemic challenges to probable cause procedures for jurisdictions that provide judicial determinations of probable cause within forty- eight hours. Gerstein, on the other hand, affirms the fact that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Additionally, Gerstein holds that the probable cause determination may be made by a judicial officer without an adversary hearing but judicial oversight of the decision to -7- prosecute by information is not a constitutional requirement. The final tenets of the holding in Gerstein are twofold. First, the prosecutor's determination of probable cause, standing alone, does not meet the requirements of the Fourth Amendment and is insufficient to justify a restraint of liberty following arrest. Secondarily, because of its limited function and its non- adversarial character, the probable cause determination is not a critical stage in the prosecution that would require appointed counsel. Because Gerstein is not overruled by Riverside, we must adhere to the statement "although a suspect who is presently detained, may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. Gerstein at 119. Thus, appellant's assignments of error one and two are overruled. Appellant's third and fourth assignments of error state: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN SHE WAS IMPROPERLY SENTENCED TO A TERM OF IMPRISONMENT FOR A FELONY OF THE SECOND DEGREE WHEN THE COURT DID NOT DETERMINE THE AMOUNT OF CONTROLLED SUBSTANCES INVOLVED IN THIS CASE. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT TOOK JUDICIAL NOTICE AND MADE A FINDING OF GUILTY BASED THEREON. These errors were not raised and objected to during the trial of this case. Consequently, unless they are deemed plain -8- error, they are waived. State v. Williams (1977), 51 Ohio St. 2d 112. However, based on the merits, they do not constitute plain error. The trial court read the indictments and made reference to the BCI reports that specified the amount of cocaine discovered. Count one of the indictment was for possession of more than three times the bulk amount of cocaine. It is undisputed that 76.9 grams were seized for purposes of this count of the indictment. This quantity of cocaine is almost eight times the bulk amount of cocaine. Despite the waiver of the claimed error embodied in the fourth assignment of error, the record reflects sufficient facts to conclude that the trial court's findings were proper as to the appellant's possession of more than three times the bulk amount of cocaine. In the fourth assignment of error, which was also waived, the appellant argues that it was not proper for the trial court to take judicial notice of what constitutes the bulk amount of cocaine. This amount is defined in R.C. 2925.01(E)(1). This argument is meritless when the bulk amount is statutorily defined. Clearly, a trial court can take judicial notice of the laws of Ohio. Appellant's fifth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL AND THE RIGHT OF CROSS-EXAMINATION WHEN LEROY POWELL REFUSED TO ANSWER QUESTIONS. Appellant was not denied a fair trial based on Powell's -9- refusal to answer questions about how he was dressed while undercover. In fact, the record is void of any objection on the part of counsel for the appellant to Powell's failure to answer. Based on this, the claimed error is waived. Furthermore, the record does reflect that this line of questioning was not pursued any further by counsel for the appellant after the witnesses' refusal to answer. The trial court further ordered Powell to testify as to how he was removed from the premises. Power complied with the order. This assignment of error is therefore overruled. For her sixth and final assignment of error, appellant states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN SHE WAS CONVICTED OF POSSESSION OF A CONTROLLED SUBSTANCE, TO- WIT: COCAINE. The issue raised by this assignment of error is whether the prosecution proved beyond a reasonable doubt with sufficient evidence that the appellant constructively possessed cocaine. R.C. 2925.01(L) defines possession as "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. Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession. State v. Wolery (1976), 46 Ohio St. 2d 316. -10- However, the mere fact that property is located within premises under one's control does not, of itself, constitute constructive possession. It must also be shown that the person was conscious of the presence of the object. State v. Hankerson (1982), 70 Ohio St. 2d 87. In this case, the evidence upon which appellee relies is predominately circumstantial. Perhaps, the two most probative pieces of evidence of appellant's constructive possession are her statement to the officer as to where the cocaine was located and the controlled buy on the day before. Appellant, during the first controlled buy of March 29, 1988, went upstairs and then returned downstairs with the cocaine. It is a reasonable and logical inference that she went to her bedroom. Also, the statement to the officers that the cocaine was in her coat is direct evidence that she was conscious of the presence of the cocaine; this evidence satisfies the standard in Hankerson. The house was owned by appellant. She admittedly had a phone line in the house, clothes present, a key to the bedroom where the contraband was found, and her mail being delivered to that location. Her presence at the house and the sale of cocaine on March 29, 1988 are evidence that both rebuts appellant's statement that she had not lived there in several weeks and provide strong evidence of her knowledge of the cocaine in the house. -11- After viewing the probative evidence and the inferences reasonably drawn from it in a light most favorable to the prosecution, as we are bound to do under State v. Martin (1983), 20 Ohio App. 3d 172, any rational trier of fact could have found proof of constructive possession beyond a reasonable doubt on the part of appellant. 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. FRANCIS E. SWEENEY, J., CONCURS.; KRUPANSKY, C.J., CONCURS IN JUDGMENT ONLY PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .