COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59779 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DESMOND WHYTE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-240238 JUDGMENT: Reversed and Judgment Vacated. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD S. WADE, ESQ. Cuyahoga County Prosecutor 75 Public Square Building THOMAS CONWAY, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: I. Appellant, Desmond Whyte, was indicted by the Cuyahoga County Grand Jury on a four-count indictment, to wit: Trafficking in Drugs, in violation of R.C. 2925.03; Possession of Drugs, in violation of R.C. 2925.03(A)(6); Possession of Criminal Tools, in violation of R.C. 2923.24; and Permit Use of Premises for Drugs, in violation of R.C. 2925.13. Appellant was found guilty by the jury of Drug Trafficking, Possession of Drugs, Possession of Criminal Tools, but found not guilty of Permit Use of Premises for Drugs. He was sentenced to a minimum term of eight years and a maximum term of fifteen years in jail, and a five thousand dollar fine on count one, two years and a five thousand dollar mandatory fine on count two, and one and one-half years on count four. Appellant was ordered to pay costs and to serve his sentence concurrently. Appellant was granted a delayed appeal, and for the reasons that follow, we reverse and vacate the judgment. II. At approximately 11:15 p.m. on June 1, 1989, Officer Douglas Dvorak of the Cleveland Police Department, pulled over a car in which Desmond Whyte was a passenger, for a routine traffic stop. The officer testified that when he approached the car, the driver, and codefendant, Hamilton, were shaking "uncontrollably". Hamilton had a folded jacket on his lap. Officer Dvorak ordered - 2 - Hamilton to exit the car, fearing that he had a weapon inside the jacket. When Officer Dvorak looked inside the jacket he found plastic bags of cocaine. Also found in Hamilton's pocket was a butterfly knife. Officer Brian Heffernan, who was Officer Dvorak's partner, testified that he observed Mr. Whyte during the traffic stop. Officer Heffernan testified that Mr. Whyte was shaking uncontrollably. Officer Heffernan searched Mr. Whyte and found $250 in cash; $125 of which was "Jamaican money". An address/phone book containing phone numbers for Manhattan, the Bronx, Philadelphia, Puerto Rico, Miami and Washington, D.C., was found on Mr. Whyte. No drugs or weapons were found on Mr. Whyte. A police check on the vehicle revealed that it was registered to Evelyn Williams of 2043 West 42nd Street, Cleveland, Ohio, who was later identified as Mr. Whyte's girlfriend. Mr. Whyte was living at 4174 Valley Road, Apt. No. 4, Cleveland, Ohio, at the time of his arrest. III. Appellant assigns error as follows: "THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN CONVICTIONS FOR TRAFFICKING IN COCAINE, POSSESSIONS OF DRUGS, AS A MATTER OF LAW. "THE INTRODUCTION OF 'OTHER ACTS' EVIDENCE VIOLATED THE OHIO RULE PROHIBITING THE INTRODUCTION OF EVIDENCE ABOUT OTHER ACTS AND DEPRIVED APPELLANT HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY WHICH WAS FREE FROM OUTSIDE INFLUENCE." Appellant, in his first assignment of error, argues that the evidence produced by the state was insufficient as a matter of - 3 - law to uphold a conviction. Appellant was charged for drug trafficking in violation of R.C. 2925.03, which provides in pertinent part as follows: R.C. 2925.03: "(A) No person shall knowingly do any of the following: "(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount; "(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; "(3) Cultivate, manufacture, or otherwise engage in any part of the production of a controlled substance; "(4) Possess a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount; "(5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount; "(6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount; "(7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount." A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. In State v. Bridgeman (1978), 55 Ohio St. 2d 261, - 4 - the Ohio Supreme Court held that: "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." Thus, we look to the record to determine if the state presented sufficient evidence to satisfy the requirements of Bridgeman, supra. Appellant argues that the state's case is solely circumstantial and that the evidence adduced by the state failed to preclude all reasonable theories of his innocence, therefore, his conviction should be overturned. Appellant, in an attempt to bolster his argument, cites State v. Jacobozzi, (1983), 6 Ohio St. 3d 59, 61, stating that "if the reported evidence does not as a matter of law preclude all reasonable theories of innocence, a conviction based solely on circumstantial evidence must be reversed." Appellant's argument is based on the Ohio Supreme Court decision in State v. Kulig (1974), 37 Ohio St. 2d 157, otherwise known as the Kulig rule, which was the accepted standard for a review of circumstantial evidence until the Ohio Supreme Court overruled Kulig by stating in State v. Jenks (1991), 61 Ohio St. 3d 259: "We therefore hold that where the state relies on circumstantial evidence to prove an element of the offense, and where the jury is properly instructed on the standards for reasonable doubt, an additional instruction on circumstantial evidence is not required. Once the jury is properly instructed as to the heavy burden the state bears under the 'guilt beyond a reasonable doubt' standard, the jury is then free to choose between competing constructions of the evidence. See Oregon, supra; Rodriguez, supra, and Bell, supra. We hold that when the state relies on circumstantial evidence to prove an element of the offense charged, - 5 - there is no requirement that the evidence must be irreconcilable with any reasonable theory of innocence in order to support a conviction. State v. Kulig (1974), 37 Ohio St. 2d 157, 66 O.O.2d 351, 209 N.E.2d 897, is overruled to the extent it is inconsistent with our decision announced today. All other cases adhering to the Kulig rule are hereby disapproved to the extent they conflict with this opinion. (Emphasis added.) "Proceeding to consider the proper standard of appellate review, where the evidence is either circumstantial or direct, we conclude that the relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, 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. Eley, supra. Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all of the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-574." Our inquiry, therefore, must be based on whether the evidence presented when viewed in a light most favorable to the prosecution, permitted reasonable minds to find that appellant was guilty beyond a reasonable doubt. In order to establish guilt beyond a reasonable doubt in the within case, the state must establish that appellant had possession of drugs and drug - 6 - related tools. The state must additionally prove that appellant knowingly possessed the drug in question. R.C. 2925.01(L) defines possession 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 or occupation of the premises upon which the thing or substance is found." The law is settled in Ohio that possession of an object may be either actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264; State v. Bey (Feb. 7, 1991), Cuyahoga App. No. 57973, unreported; State v. Bailey (Apr. 9, 1987), Cuyahoga App. No. 51968, unreported. It is uncontroverted, in the within case, that no drugs or drug paraphernalia were found on the person of the appellant. Since the state failed to establish that appellant was in actual possession of the cocaine found in the car, conviction can only lie if the state shows that appellant had constructive possession of the cocaine. The law of constructive possession requires that the state prove that appellant was able to exercise dominion or control over the cocaine. State v. Wolery (1976), 46 Ohio St. 2d 316, cert. denied (1976), 429 U.S. 932; State v. Pruitt (1984), 18 Ohio App. 3d 50; State v. Bailey, supra; State v. McShan (Oct. 10, 1991), Cuyahoga App. No. 58952, unreported. See also State v. Fisher (Nov. 1, 1990), Cuyahoga App. No. 57505, unreported; State v. Short (July 18, 1991), Cuyahoga App. No. 58676, unreported. In an attempt to justify conviction, the state made the following argument: - 7 - "The circumstantial and direct evidence was totally overwhelming that both appellant and Hamilton possessed the 53.8 grams of cocaine with a street value of $5,300. All of the following facts, are very probative of the above; "1. The 1977 Hornet was owned by appellant's girlfriend. "2. Both appellant and Hamilton were extremely nervous when their car was stopped for a traffic violation. "3. The multiple bags of cocaine were loosely wrapped in (not in the pockets) a coat laying on Hamilton's lap -- about six to ten inches away from appellant. "4. On booking slips both appellant and Hamilton listed the same person to notify. "5. Although appellant was unemployed, he was carrying $250 cash, and jamaican money. "6. Appellant's address/phone book was a prototypical 'drug' book. "7. Appellant, an illegal alien from Jamaica had the same accent as Hamilton." It is undisputed that appellant was seated in the front passenger side of the automobile. It is also undisputed that the jacket which the cocaine was wrapped in was found on the lap of Mr. Hamilton who was the driver of the automobile. There was no evidence indicating that appellant owned the jacket or that he put the jacket on Mr. Hamilton's lap to elude police detection. This court in Bailey, supra, held that mere presence of the accused in a place where drugs or paraphernalia were found is insufficient to support a conviction of possession. We cited the following cases to support our holding in Bailey: "In State v. Haynes, supra, the Ohio Supreme Court held that a person who lived in a house with three - 8 - other persons and who had not been present on the premises a week before a search was conducted, could not be convicted of possession of narcotics found in the house. See also, Cincinnati v. Stirsman (1974), 322 N.E.2d 282 (defendant was not in possession merely because he was present where drugs were discovered); Cincinnati v. McCartney (1971), 30 Ohio App. 2d 45 (defendant was not guilty where he was found sitting next to a growing marijuana plant in an apartment he did not occupy, rent or use); State v. Alexander (Apr. 12, 1979), Cuyahoga App. No. 38688, unreported (the defendant was not in possession where both heroin residue on spoons and a heroin cutting agent were found in the living room while the defendant was sick in bed and other people were giving a party); State v. Cofield (Jun. 2, 1983), Cuyahoga App. No. 44601, unreported (insufficient evidence to establish actual or constructive possession where no drugs or drug paraphernalia were found on the person of defendant or evidence showing that the marijuana discovered in the apartment was taken from the bedroom where clothes allegedly belonging to the defendant were found." The mere fact that the automobile belonged to Ms. Evelyn Williams, who happened to be appellant's girlfriend does not create a strong inference that appellant exercised control and dominion over the cocaine found on Mr. Hamilton. The state did not show that Mr. Hamilton was not known to Ms. Williams or that Ms. Williams gave the automobile to appellant who in turn entrusted it to Mr. Hamilton. The state's argument that appellant and Mr. Hamilton listed the same person to notify is equally insufficient to constitute constructive control of the cocaine found on Mr. Hamilton, as we cannot hold that it is uncommon for two people to know the same person. The state's attempt to infer that having the same accent and coming from Jamaica makes any Jamaican who is found in a car where cocaine is found in possession of the cocaine does not deserve comment as it is devoid of any legal reasoning. We also hold that - 9 - nervousness is neither a crime nor an element, as we note that there are few citizens who can be stopped by a police officer and not be nervous, especially in the within case where the individual stopped is an illegal alien. Our penal laws and constitution has not as yet endorsed guilt by association. An individual must be tried for crimes he commits and not those committed by his associates unless there is strong evidence linking the accused to the crimes of his associate. In the within case, the state has failed to introduce any evidence which established defendant's knowledge and possession of the cocaine found on Mr. Hamilton, either actually or constructively. The conviction on possession fails. Now we turn to appellant's conviction pursuant to R.C. 2923.24, which states in pertinent part: "(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally." Appellant was found guilty of possessing the automobile driven by Mr. Hamilton and cash in the amount of one hundred and twenty- five dollars in United States currency and one hundred and twenty-five in Jamaican currency. We held supra that the mere fact that appellant is the boyfriend to the owner of the automobile is insufficient to show that he exercised dominion or control of the vehicle, especially since the record indicates that both appellant and Mr. Hamilton know the owner of the automobile. Appellant, therefore, cannot be convicted of using - 10 - the automobile as a criminal tool just because he was a passenger. See Bailey, supra. The state argues that the money found on appellant was sufficient to convict him for possession of a criminal tool. We disagree. Under certain circumstances, money could constitute a criminal tool. See State v. Strickland (Dec, 22, 1988), Cuyahoga App. No. 54879, unreported. While we agree with the common adage that "money is the root of all evil", we hold that mere possession of money does not constitute prima facie evidence of criminal purpose under R.C. 2923.24; criminal intent, therefore, must be proved beyond a reasonable doubt. In the within case, the state has miserably failed to show such criminal intent. We take judicial notice that Jamaican money is not an acceptable note of legal tender in the United States. We hold, therefore, that in order to uphold a conviction pursuant to R.C. 2923.24 based on possession of a foreign currency, the state must present evidence that such money is used as a medium of exchange, either in the streets of this nation or in any other setting where such money is used for illegal transactions. In the within case, the state has produced no evidence to that effect and mere possession of a foreign currency will not constitute prima facie evidence that such currency is used for a criminal purpose. There is, therefore, insufficient evidence to support the jury verdict of guilty and appellant's conviction must be reversed. Appellant is ordered discharged and his sentence vacated. Appellant's first assignment of error is sustained. - 11 - IV. Appellant, in his second assignment of error, argues that the trial court erred by admitting "other acts" evidence. Appellant continued: "The Prosecutor improperly introduced evidence of other facts, ie both Defendants were Jamacaian [sic], that Defendant-Appellant this case because he was Jamacaian [sic] and in the country illegally." Appellant's argument has no merit, as appellant failed to recognize the difference between "other acts" and other "facts". Appellant, being an illegal alien from Jamaica is not an act but a fact, and such fact does not in and of itself make him a possessor of cocaine according to the laws of Ohio. However, we do not agree with the state that informing the jury that appellant is an illegal alien from Jamaica is "any evidence which is highly probative of a defendant's guilt" even though we agree that it was properly introduced. Assuming arguendo, that the state's closing argument that appellant was an illegal alien from Jamaica could be considered an error under certain circumstances it was proper within the contents of this case because appellant's counsel in his opening argument cautioned the jury to consider only the facts of the case and "not let the fact that he is an illegal alien interfere with it." The moment appellant's counsel introduced the issue of illegal alien to the jury, it became an opened issue which the prosecutors have an equal right to speak about to the jury. However, appellant's failure to object to the state's remark about his country of origin and his immigration status in the - 12 - trial level precludes him from raising it on appeal for the first time. See State v. Williams (1977), 51 Ohio St. 2d 112; State v. Humphries (1977), 51 Ohio St. 2d 95. Accordingly, appellant's second assignment of error is overruled. However, in light of our holding in appellant's first assignment of error, this cause is reversed and appellant is ordered discharged and his sentence vacated. Judgment reversed and sentence vacated. - 13 - This cause is reversed and sentence is vacated. It is, therefore, considered that said appellant recover of said appellee its 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. Exceptions. PATTON, P.J., and BLACKMON, 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. .