COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60321, 60322 STATE OF OHIO : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLINTON WILSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 10, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-240312/242735 JUDGMENT : AFFIRMED AS TO CR-240312 : REVERSED AS TO CR-242735 DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES JAMES A. LEVIN, ESQ. CUYAHOGA COUNTY PROSECUTOR 3010 Terminal Tower MICHAEL ZIDAR, ASST. 50 Public Square Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - TYACK, J., Defendant Clinton Wilson appeals from his convictions for two counts of drug abuse and two counts of possession of criminal tools. For the reasons set forth below, we affirm in part and reverse in part. I. Following his June 4, 1989 arrest, defendant was indicted for one count of drug abuse and one count of possession of criminal tools in case number 240312. Thereafter, on August 7, 1989, while these charges were pending, defendant was again arrested and indicted for one count of drug abuse and one count of possession of criminal tools in case number 242735. Both matters were consolidated, and proceeded to a jury trial on July 30, 1990. At the commencement of trial, defendant moved to sever the matters and to dismiss the charges arising from the June 4, 1989 arrest on the basis that he was deprived his statutory right to a speedy trial. In opposition, the state argued that defendant erroneously calculated the time which had elapsed by relying upon the "triple count" provision of R.C. 2945.71(E) which was inapplicable in this instance. In addition, the court's bailiff asserted that defendant's previous counsel had requested numerous continuances in the matter. Journal entries pertaining to these purported continuances were filed on August 7, 1990. The trial court denied both motions and the state put on its case. - 3 - The evidence adduced with respect to the June 4, 1989 incident established that Cleveland Police Officer Donald Flewellyn was dispatched to the area of E. 134th Street and Kinsman in connection with reports of several men attempting to buy drugs. Flewellyn dispersed a small group of people gathered in the area, then left. He then returned a short time later, and observed two males and a female seated in an illegally parked vehicle. As he approached the vehicle, Flewellyn observed movements by the front seat passenger, defendant, which Flewellyn interpreted as threatening. The driver of the vehicle was unable to produce a driver's license, and he was ordered out of the vehicle then patted down. At this time, the driver discarded some tissue and what appeared to be rocks of cocaine fell to the ground. The driver was subsequently arrested, and as Flewellyn proceeded to have the car towed, he observed a glass crack pipe in the front seat midway between the driver and passenger seats, and within the access of both of these occupants. Additional rocks of suspected cocaine were also recovered from the rear, where a female passenger had been seated. It was further established that the pipe had residue of an immeasurable weight which tested positive for cocaine. The evidence adduced with respect to the August 7, 1989 incident established that Shaker Heights Police Officer James Clague and Cleveland Police Office Marino DeMarco were dispatched to the area of E. 132nd and Kinsman in response to a call from a - 4 - woman who had located a vehicle which she had previously reported as stolen. The officers subsequently observed defendant and another man enter the vehicle. The police then arrested defendant and found a glass bowl, in the front seat between the console and the seat. The police also found a "straight shooter" cocaine pipe on the passenger. Testimony indicated that these items could be used together as a single unit for smoking narcotics, or could be used separately. It was further established that residue on the glass bowl tested positive for cocaine. The jury subsequently found defendant guilty of both counts of drug abuse and both counts of possession of criminal tools. Defendant now appeals, and assigns six errors for our review. II. "THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT'S MOTION TO DISMISS FOR FAILING TO BRING HIM TO TRIAL WITHIN THE STATUTORILY MANDATED TIME PERIOD." The statutory right to a speedy trial is set forth in R.C. 2945.71 which provides in relevant part as follows: "(C) A person against whom a felony charge is pending: "*** "(2) Shall be brought to trial within two hundred seventy days after his arrest. "*** "(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is - 5 - held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section." (Emphasis added.) The triple count provision is inapplicable, however, where the defendant is not being held solely on the pending charge. State v. Ladd (1978), 56 Ohio St. 2d 197, 202-203; State v. McDonald (1976), 48 Ohio St. 2d 66, paragraph two of the syllabus. In addition, pursuant to R.C. 2945.72 time may be extended by the following: "(D) Any period of delay occasioned by the neglect or improper act of the accused; "*** "(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion[.]" However, a trial court may not wait until after expiration of the statutory time within which trial must be commenced to file journal entries which purport to toll the statutory time. State v. Mincy (1982), 2 Ohio St. 3d 6, 8. State v. Dickey (Nov. 20, 1986), Cuyahoga App. No. 51152, unreported. Further, continuances allegedly requested by the defense cannot toll the statutory speedy trial limits unless the court's journal shows that reason for the continuance. State v. Benson (1985), 29 Ohio App. 3d 321, 322. A bailiff's testimony is simply insufficient to establish the tolling of the period of - 6 - time allegedly granted in an unjournalized continuance allegedly requested by the defense. Id. In this case, the actual and "speedy trial" time which elapsed from defendant's first arrest until his trial may be summarized as follows: June 4, 1989 Incident Date Explanation Actual Days Speedy Trial Days June 4, 1989- Arrest #1 1 3 June 5, 1989 June 5, 1989- Def. on Bond 45 45 July 20, 1989 July 20, 1989- Capias 18 0 Aug. 7, 1989 Aug. 7, 1989- Def. on bond 202 202 March 1, 1990 March 1,1990 Capias in 240312 58 0 June 7, 1990 June 7, 1990 Def. in jail 54 0 July 3, 1990 awaiting trial in 240312 378 250 August 7, 1989 Incident Date Explanation Actual Days Speedy Trial Days Aug. 7, 1989 Arrest #2 4 4 Aug. 11, 1989 Aug. 11, 1989- Def. on bond 102 102 Nov. 21, 1989 Nov. 21, 1989, Capias in 242735 198 0 - 7 - June 7, 1990 June 7, 1990- Def. in jail 54 0 July 30, 1990 358 106 Thus, with respect to the first incident, defendant was entitled to the benefit of the triple count provision only with respect to his incarceration for the June 4, 1989 arrest; during the two subsequent incarcerations, defendant was not entitled to the benefit of this provision as he was then being held on more than one charge. In addition, the two time periods from July 20, 1989 to August 7, 1989 and March 1, 1990 to June 7, 1990, wherein there were capiases for defendant are not chargeable within the speedy trial limit. Further, we find time to be tolled during the fifty-four day period from June 7, 1990 to July 30, 1990 or the period between defendant's incarceration and trial, as this time constitutes a period of delay in rescheduling trial which was occasioned by defendant's prior failure to appear. Thus, the first matter was tried well within the statutory limit. As to the second incident, defendant was not entitled to benefit of the triple count provision at any time, as he was not being held solely on the pending charge. In addition, the time during which there was a capias for defendant, and the subsequent delay in rescheduling trial due to that capias are not chargeable to the state. Thus, the second matter was properly tried within the speedy trial limit. - 8 - We hasten to add, however, that the time was not tolled by any defense continuances as the bailiff's claim that defense counsel obtained various continuances cannot be credited and no journal entries to this effect were on file at the time the matter proceeded to trial. Defendant's first assignment of error is overruled. III. "THE TRIAL COURT ERRED BY DEPRIVING APPELLANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF BY ITS REFUSAL TO SEVER THE INDICTMENTS AND TO TRY HIM SEPARATELY ON EACH INDICTMENT." Joinder of offenses is governed by Crim. R. 8(A) which provides in relevant part: "Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, ****." Crim. R. 14 in turn provides: "If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, informations, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial ****." A defendant who claims error in the trial court's refusal to allow separate trials of multiple charges has the burden of affirmatively showing that his rights were prejudiced. State v. Torres (1981), 66 Ohio St. 2d 340, 343. He must demonstrate that the trial court abused its discretion. Id. A claim of prejudice - 9 - stemming from the cumulation of evidence presented in support of each offense has been rejected where the evidence as to each offense is uncomplicated. Id. Similarly, a claim of prejudice stemming from the defendant's desire to testify as to one offense but not another offense has likewise been rejected. Id.; State v. Long (1984), 20 Ohio App. 3d 377, 378. In this case, defendant claims that he was prejudiced by the denial of his motion to sever because the evidence against him cumulated and because it precluded his plan to testify as to one offense only. In light of the foregoing, and the fact that there was no proffer of the intended testimony, we find no showing of prejudice, and no abuse of discretion. Defendant's second assignment of error is overruled. IV. "THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION TO INSPECT PREVIOUSLY WRITTEN STATEMENTS OF APPELLEE'S WITNESSES, POLICE OFFICERS, PURSUANT TO CRIMINAL RULE 16." In State v. Jenkins (1984), 15 Ohio St. 3d 164, 225, the Supreme Court held that pursuant to both Crim. R. 16(B)(1)(g) and Crim. R. 16(B)(2), those portions of a testifying police officer's signed report which concern his observations and recollection of events are discoverable "statements," within the meaning of Crim. R. 16(B)(1)(g), whereas those portions which recite matters beyond the witness' personal observations, such as notes regarding the statements of another, or investigative - 10 - decisions and interpretations are excluded from discovery under Crim. R. 16(B)(2). The Jenkins court further noted that Crim. R. 16 mandates that a copy of a "statement" which is sought must be preserved in the record. The court then held that the defendant had failed to demonstrate actual prejudice because he had failed to preserve the statement at issue and put forth no objection to omission of the statement. Similarly, the statements at issue here have not been included within the record and defendant has failed to demonstrate that he requested that the statements be included or objected to their omission. Accordingly, we must overrule this claim of error. V. "THE COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL; THE MANIFEST WEIGHT OF THE EVIDENCE ELICITED AT TRIAL CANNOT SUSTAIN A CONVICTION. "THE JURY VERDICT OF GUILT AGAINST THE APPELLANT WAS THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW." Pursuant to Crim. R. 29(A) a court shall not order an entry of judgment 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. In considering a claim that the judgment was against the manifest weight of the evidence, the test is much broader: - 11 - "The court, reviewing the entire record, weights the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction." State v. Martin (1983), 20 Ohio App. 3d 172, 175. Finally, 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. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. 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 crime proven beyond a reasonable doubt. Id. Within these assignments of error, defendant asserts that the state failed to prove beyond a reasonable doubt that he possessed the cocaine and criminal tools. R.C. 2925.01(L) defines possession as related to a drug offense as follows: "(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 - 12 - or occupation of the premises upon which the thing or substance is found." Defendant was also convicted of possession of criminal tools. Possession is also defined by R.C. 2901.21(C)(1) which provides as follows: "(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have ended his possession." Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264. While mere presence in the vicinity of contraband is insufficient to establish possession, State v. McCarthey (1971), 30 Ohio App. 2d 45, 48, constructive possession will be established where the accused was able to exercise dominion or control over the contraband. State v. Wolery (1976), 40 Ohio St. 2d 316, 329. Readily usable drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession. See State v. Pruitt (1984), 18 Ohio App. 3d 50, 58. Further, convictions premised upon a theory of constructive possession have been affirmed where contraband is within the accused's dominion or control and another person is present, but there is a basis for concluding that the other was not in possession. See State v. Pruitt, supra; In this case, we find with respect to the first incident that the motion for acquittal was properly denied, and the convictions are not against the manifest weight of the evidence - 13 - because defendant, given his movements preceding the search, was clearly able to exercise dominion of control over the contraband, which was in close proximity to defendant and readily usable. As to the second incident, however, we conclude that there is insufficient evidence that defendant was able to exercise dominion or control over the contraband, or to preclude the conclusion that the items in fact belonged to the passenger. Finally, as to the issue of whether the convictions for cocaine possession must be reversed because only immeasurable "residue" was present, we note, that R.C. 2925.11 does not establish any minimum prohibited amount of a controlled substance. State v. Daniels (1985), 26 Ohio App. 3d 101, 102. Moreover, this court has affirmed convictions pursuant to R.C. 2925.11 which arose from possession of cocaine residue. See State v. Pruitt, supra; State v. Hearts (Jan. 24, 1991), Cuyahoga App. 57981, unreported. Accordingly, this claim is rejected. Defendant's fourth and fifth assignments of error are overruled in part, and sustained in part. VI. "THE COURT ERRED IN ALLOWING IMPERMISSIBLE AND PREJUDICIAL REMARKS BY THE COUNTY PROSECUTOR DURING CLOSING ARGUMENT." Although a prosecuting attorney may not comment upon inferences to be drawn from facts which are not in evidence, see State v. Liberatore (1982), 69 Ohio St. 2d 583, 589, he may - 14 - comment upon facts which are in evidence and the reasonable inferences which may be drawn therefrom. State v. Cooper (1977), 52 Ohio St. 2d 163, 173-174, vacated on other grounds 438 U.S. 911. Moreover, improper remarks will be considered harmless where it is clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found defendant guilty. State v. Smith (1984), 14 Ohio St. 3d 13, 15. The remarks being challenged herein are as follows: "Let's look at the facts again quickly. Using, obtain, possess or use. "June 4th they're in a drug area where they are selling drugs. What were they doing there? "*** "*** Isn't it strange that you had one person in the back seat that had the drugs and the other people in the front seat that had the pipe? The people were sitting in that car and they were using crack cocaine in a pipe." The second of these remarks was clearly not based upon a fact in evidence, but was an inference reasonably drawn from the evidence that another occupant of the car possessed cocaine, and that cocaine can be shared in the cocaine pipe. Thus, this comment was permissible. The first comment, however, was neither based upon a fact in evidence nor a reasonable inference therefrom, yet because the state's evidence was credible, consistent and unrefuted, we find this isolated remark harmless beyond a reasonable doubt. - 15 - Defendant's sixth assignment of error is overruled. Defendant's conviction in case no. CR-240312 is affirmed. Defendant's conviction in case no. CR-242735 is reversed. - 16 - It is ordered that appellee and appellant equally share the 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in case no. CR-240312, 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 JAMES D. SWEENEY, J., CONCUR. JUDGE GARY TYACK (Judge Gary Tyack of the Tenth District Court of Appeals, Sitting by Assignment.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .