COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58828 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ARNOLD PALMER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 238129 JUDGMENT: REVERSED AND VACATED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY BY: THOMAS CONWAY, ESQ. PUBLIC DEFENDER ASSISTANT COUNTY PROSECUTOR BY: WARREN MCCLELLAND, ESQ. The Justice Center ASST. PUBLIC DEFENDER 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 1 - DYKE, J.: Appellant was convicted of two counts of drug trafficking, R.C. 2925.03(A)(6) and 2925.03(A)(2), and one count of possession of criminal tools, R.C. 2923.24, and sentenced to consecutive terms of five to fifteen years (including three years actual incarceration), two years and eighteen months, respectively. The eighteen-month term was suspended and a five-year term of probation was imposed. On appeal appellant assigns two errors for review. I THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE AND THEREBY VIOLATED APPELLANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION FOURTEEN OF THE OHIO CONSTITUTION. The evidence presented at the hearing on the motion to suppress established that appellant was a passenger in the back seat of an automobile that was stopped and searched along with appellant, the driver and a passenger in the front seat. Appellant and the others were charged with the same offenses involving possession of evidence obtained during the searches. The automobile was registered to the front seat passenger, Sandra Palmer, and the driver, Tyrone Welch, had a possessory interest. State v. Welch and Palmer (April 18, 1991), Cuyahoga app. No. 58352, unreported at p. 5, footnote 1. There was no evidence that appellant had a property or possessory interest. - 2 - A mere passenger of an automobile, without either a property or possessory interest in the automobile or the property seized from it, may not challenge a search of that automobile when he has failed to establish any legitimate expectation of privacy. State v. Latham (September 30, 1990), Cuyahoga App. No. 57503, unreported at p. 8-9; State v. Messina (November 21, 1984), Cuyahoga App. No. 48134, unreported at p. 4-7; State v. Wells (February 16, 1984), Cuyahoga App. No. 47074, unreported at p. 2- 3; State v. Schmitz (May 12, 1983), Cuyahoga App. No. 45512; unreported at p. 2-3, all citing Rakas v. Illinois (1978), 439 U.S. 128. Assignment of error No. I is overruled./1\ II THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS. At trial officer Matthew Ewing testified as follows: while in his police cruiser he saw a Buick Century parked in a line of traffic on a two-lane street and saw a man who was standing on the street and leaning into the driver's window. The driver and the man were exchanging items but he couldn't see what they were. The man looked in the direction of the cruiser, immediately left, and very briskly walked to a vehicle on a side street while another man in the back seat of the Buick looked back, exited and walked quickly to the same vehicle. The Buick began to pull off /1\ We note that this court has previously found that Welch and Sandra Palmer could challenge the search and that the investigatory stop was proper. Welch and Palmer at p. 9. - 3 - but Ewing turned on the cruiser's overhead lights and the Buick stopped. After he walked up to the Buick he looked in the driver's open window and saw a car phone, a beeper on the seat to the right of the driver and money in bills in the driver's lap. The driver, Tyrone Welch, was trying to push the bills down between his legs. In between Welch and the passenger, Sandra Palmer, was an open purse with money sitting on top. Welch was asked to exit the vehicle and was patted down for weapons. Ewing felt a hard object in the left coat pocket and removed a plastic bag with rocks of what he suspected was cocaine. Welch was arrested and Sandra Palmer was asked to open her purse during a search for weapons. He arrested her after seeing a plastic bag with rocks of suspected cocaine. Under the right passenger seat Ewing found an open, brown, zipped bag with twenty dollars in quarters and twenty-eight bags with two hundred and eighty rocks of suspected cocaine. In the trunk, opened with a key in Welch's pocket, he found a loaded automatic pistol. Welch told Ewing the gun and beeper were Welch's. The vehicle was registered to Sandra Palmer. Appellant had been sitting in the middle of the back seat and was arrested on an outstanding warrant. Ewing admitted that he had not seen appellant do anything illegal and that his lieutenant told him not to have the brown, zipped bag fingerprinted. The bag was on - 4 - the floor one-fifth of the way (five or six inches) from the front. A motion for acquittal must be denied if the evidence is such that reasonable minds can reach different conclusion 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. Appellant challenges all of his convictions and argues that the state proved his presence but nothing else. In the appeal of his co-defendants this court vacated their convictions for a violation of R.C. 2925.03(A)(6) (the drugs under the seat) because the state failed to prove possession. The element of possession may be established as actual physical possession, or constructive possession where the contraband is under the defendant's dominion or control. Cf. State v. Hankerson (1982), 70 Ohio St. 2d 87, syllabus. It may not be inferred, however, solely from mere access to the substance through ownership or occupation of the premises upon which the substance is found. R.C. 2925.01(L). Similarly, mere proof of presence in the vicinity of illicit drugs is insufficient to establish possession. Cincinnati v. McCartney (1971), 30 Ohio App. 2d 45, 47-48. Finally, the mere fact that one is the owner or lessee of premises upon which illicit drugs are found, such premises are also regularly occupied by others, and the drugs are found in an area accessible to all occupants, possession cannot be imputed to the owner or lessee. State v. Haynes (1971), 25 Ohio St. 2d 264, 270. State v. Welch (April 18, 1991), Cuyahoga App. No. 58352, unreported at p. 11-12. The Haynes court reasoned as follows: When narcotics are discovered in the general living area of jointly occupied premises, one can only - 5 - speculate as to which of the joint occupiers have possession of the narcotics. In other words, no inference of guilt in relation to any specific tenant may be drawn from the mere fact of the presence of narcotics on the premise. Criminal convictions cannot rest upon mere speculation: the state must establish the guilt of the accused by proof beyond a reasonable doubt. Haynes, 25 Ohio St. 2d at 270. Welch concluded with the following: Applying the foregoing to the facts of this matter, we hold that the trial court erred in denying defendants' motion for acquittal of possession of the cocaine found under the driver's seat of the vehicle, as there was no evidence that either of the defendants actually possessed or exercised dominion or control over this contraband. Moreover, the fact that defendants had access to the cocaine and were in close proximity to it, cannot be reasonably determined to establish defendants' possession of the cocaine in this instance as the vehicle was owned by someone else, and occupied by two others immediately before the drugs were found. Welch at p. 11-12. The state had to prove possession, actual or constructive. There was no evidence appellant exercised dominion or control over the drugs under the seat or the money, drugs, pager, car phone and gun found on appellant's co-defendants or in (or on) the automobile that appellant neither owned nor controlled. There was no evidence that appellant aided or abetted in any illegal activity. The state established nothing beyond his presence in the automobile. Absent evidence of aiding and abetting that is not sufficient to withstand a motion for acquittal. State v. Sims (1983), 10 Ohio App. 3d 56 (paragraph three of the syllabus) (mere presence of passenger in back seat - 6 - of automobile insufficient). Assignment of error No. II is sustained. Judgment reversed and vacated. Judgment reversed and vacated. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., CONCURS. NAHRA, J., CONCURS (SEE ATTACHED CONCURRING OPINION) PRESIDING JUDGE ANN DYKE 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58828 STATE OF OHIO, : : Plaintiff-Appellee : C O N C U R R I N G : vs. : O P I N I O N : ARNOLD PALMER, : : Defendant-Appellant : DATE: FEBRUARY 6, 1992 NAHRA, J., CONCURRING: I concur only because another panel of this court previously vacated the convictions of the co-defendants. Otherwise, it appears the evidence was sufficient for an investigative stop which in turn led to the discovery of the other evidence that a drug transaction had been in progress. This is different from the Haynes case where drugs discovered in a apartment could not be attributed to one of several occupants. Here all the defendants were in the automobile while a drug transaction was in progress. .