COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59864, 59949 STATE OF OHIO : : Plaintiff-Appellant/ : Cross-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CARLTON SWOPES : : Defendant-appellee/ : Cross-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 248495 JUDGMENT: AFFIRMED. REMANDED FOR RE-SENTENCING DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant/ For Defendant-Appellee/ Cross-Appellee: Cross-Appellant: STEPHANIE TUBBS JONES, ESQ. MARLENE LALLY, ESQ. CUYAHOGA COUNTY PROSECTOR 711 Statler Office Tower BY: ROBERT TRUSIAK, ESQ. Cleveland, Ohio 44115 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: On January 31, 1990, defendant was indicted on two counts in violation of the drug laws, R.C. 2925.03(A)(6) and R.C. 2925.03(A)(2). The first count charged him with possession of an amount exceeding three times the bulk amount of a controlled substance. The second count charged defendant with preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a controlled substance. Prior to trial, defendant filed a motion to suppress self-incriminating statements made subsequent to arrest. The trial court overruled the motion. Defendant waived his right to a jury trial. The trial court found defendant guilty as charged in the indictment on both counts. Defendant was sentenced to five years actual incarceration on the first count, R.C. 2925.03(A)(6), and four to fifteen years on the second count, R.C. 2925.03(A)(2). On January 10, 1990, members of the Cuyahoga County Sheriff's Department executed a search warrant for the premises of a two-family residence on East 67th Street in Cleveland, Ohio. The Narcotics Unit of the Sheriff's Department had had the house under surveillance for approximately two weeks and had conducted two controlled buys there before executing the warrant. Upon entering the upper part of the two-family they encountered a woman, Sherry Simms. The Narcotics Unit also found weapons, over one hundred grams of cocaine, assorted scales and plastic baggies, and $4,795. - 2 - According to the testimony of Detective Goe, of the Sheriff's Department, the woman was asked who the owner of the premises was. She responded that Carlton Swopes was the owner, that he had just gone out to get some food at Wendy's and would momentarily be returning in a yellow Buick. The detective asked for Swopes's street name and the woman replied that it was "Clean." The deputies returned to their cars and waited for the yellow Buick. As predicted by the woman a yellow Buick did return. It parked in the front of the residence and the horn was honked several times. When there was no response from the house, the car went northbound, turned around in the street, paused once again in front of the house and started taking off slowly back towards St. Clair. At this point the car was stopped by the members of the Sheriff's Department. Defendant and another man were the occupants of the car. The two men were escorted back into the house and placed under arrest. While in custody, defendant made several self- incriminating statements to the effect that the cocaine was his, as opposed to the woman's, and that he had inherited it from his younger brother, murdered a month before the arrest. The defendant raises two assignments of error on cross- appeal. I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED - 3 - SUBSEQUENT TO A WARRANTLESS ARREST WHERE NO PROBABLE CAUSE EXISTED FOR THE WARRANTLESS ARREST. On cross-appeal defendant argues that no probable cause existed for his arrest, rendering it Constitutionally invalid as a violation of his rights under Article One, Section Fourteen of the Ohio Constitution, and the Fourth and Fourteenth Amendments of the United States Constitution, and in contravention of R.C. 2935.04. Defendant asserts that the motion to suppress the statements made subsequent to the illegal arrest should have been granted by the trial court. The conditions under which a warrantless arrest may occur are set forth in R.C. 2935.04: When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense and detain him until a warrant can be obtained. To determine whether the Sheriff's detectives had reasonable or probable cause to arrest defendant requires a review of the circumstances known to these officers. The probable cause needed to make a warrantless arrest constitutionally valid requires that the arresting officer, at the moment of arrest, have sufficient information, based on the facts and circumstances within his knowledge or derived from a reasonably trustworthy source, to warrant a prudent man in believing that an offense had been committed by the accused. State v. Ingram (1984), 20 Ohio App. 3d 55, 57, following Beck v. - 4 - Ohio (1964), 379 U.S. 89; State v. Fultz (1968), 13 Ohio St. 2d 79. Several possible sources of the officer's information and knowledge which form the basis for probable cause are recognized under Ohio law. The "[r]easonable ground or probable cause for a warrantless arrest may be provided by the arresting officer's own observations, credible information from a reliable informant, or corroborated information from a less than reliable informant." State v. Sizer (1970), 25 Ohio Misc. 245, 250, quoting Draper v. United States (1959), 358 U.S. 307; Spinelli v. United States (1969), 392 U.S. 410. To review what the officers knew at the time of defendant's arrest, the Sheriff's officers knew that a felony was being committed. Someone was in possession of a large quantity of cocaine. The someone in possession would likely be the owner of the premises where the drugs were just found. Up to the point of executing the search warrant for the premises, the officers were unable to determine the name of the person who owned the premises from their independent investigation. The officers then learned from speaking with the woman on the premises that the owner of the premises was named Carlton Swopes, also called Clean. Detective Goe testified that "[t]hrough our surveillance, through our purchases into that place, we knew that Clean was in fact the main man. Although the buys that we got out of there weren't from Clean ..." (transcript from the hearing on the motion to - 5 - suppress, p.28). Detective Goe further testified on cross- examination that he had never seen the defendant during the surveillance of the house (transcript p. 23). The detectives had sufficient information to warrant a prudent person's belief that a felony was taking place. However, the issue is whether the officers had sufficient information to warrant a prudent person's belief that the felony was being committed by the accused. Detective Goe stated that they had not observed the defendant at the house during the surveillance, nor was he the seller during the two controlled buys. Yet Detective Goe testified that they knew of a Clean as being the "main man." In State v. Thompson (1965), 1 Ohio App. 2d 533, this court found that similar testimony by itself was not enough to find probable cause for the warrantless arrest. In that case the police had had a restaurant under surveillance for two weeks in an attempt to prosecute an illegal gambling operation. They had found betting slips on the premises of the restaurant. The officers had witnessed the defendant in that case several times at the restaurant and at the time of his arrest he was sitting at the counter eating pie. "[T]he officer testified that defendant was arrested for 'carrying on a scheme of chance,' on the basis of 'prior knowledge and our observations made prior to this date.'" State v. Thompson, at 534-35. This court held that "such statement standing alone is meaningless and has no probative value. It is merely the conclusion of the officer and - 6 - embraces no facts on which judgment could be passed by the trial court." State v. Thompson at 538. It is the function of the trial court to determine from all the facts and circumstances presented whether the facts in the possession of a police officer are sufficient to cause a reasonable and prudent man to believe that a felony has been committed and whether the defendant participated in its commission, and only where the trial court can so find from substantial and credible evidence is probable cause present to justify an arrest without a warrant. State v. Thompson at 539. The court further stated that "'[i]f the court is not informed of the facts upon which the arresting officers acted, it cannot properly discharge that function.'" State v. Thompson at 538, quoting Beck v. Ohio (1964), 379 U.S. 89. If the trial court had had only Detective Goe's statement that they knew of a Clean as the "main man" then there would not have been enough evidence for the trial court to have fulfilled its function in making a probable cause determination. However, the Sheriff's detectives had also the word of Sherry Simms, the woman found on the premises, that Carlton Swopes was the owner and that he also used the name Clean. This is more than the detectives had to link the defendant in State v. Thompson to the gambling operation. The word of Ms. Simms is given weight in this analysis according to her apparent reliability. Because the police had never dealt with her before as an informant and she was not a citizen coming forward with information, she can not be - 7 - presumptively reliable. In fact, Ms. Simms is the only person at the house when the detectives come in and find drugs, weapons and various paraphernalia. In this context, Ms. Simms can be characterized as a less than reliable informant. Ohio follows the United States Supreme Court ruling in Illinois v. Gates (1983), 462 U.S. 213, to analyze the probable cause issue in cases involving information from an informant. The United States Supreme Court discarded a technical analysis for determining the proper weight to give information from informants, in favor of a more flexible test. In following the Supreme Court's totality of the circumstances test Ohio courts have held that, "the veracity or reliability of an informant and his basis of knowledge are better understood as relevant considerations in the totality of the circumstances analysis that has traditionally guided probable cause determinations." State v. Ingram (1984), 20 Ohio App. 3d 55, 58. Although the Gates decision dealt with the probable cause issue as it pertained to a magistrate's decision to issue a warrant based upon an affidavit, the analysis is the same. The Ingram court held that: Since the standards applicable to an officer's probable cause assessment at the time of a challenged arrest or search are as stringent as the standards applied with respect to a magistrate's assessment, we feel that the ruling in Gates dealing with the evaluation of an informant's tip, is equally applicable to a scenario such as the one presented in the case at bar [a warrantless arrest]. Ingram, at 58. - 8 - Ms. Simms' statement regarding ownership of the premises must be viewed in the context of the totality of the circumstances. Her veracity, reliability and basis for knowledge are relevant factors in those circumstances. Detective Goe did not have prior dealings with Ms. Simms by which to judge her veracity or reliability. Standing in the midst of evidence of a drug law violation gives her less credibility. However, being found on the premises does give her a basis of knowledge in that she is in a position to know who owns the premises if she is there. The fact that she does accurately predict the make of car and imminent return of the defendant partially corroborates her statements. For the purpose of this analysis, Detective Goe's testimony that they knew about a Clean is another fact corroborating her statement. The totality of the circumstances test as formulated by the Ohio Supreme Court in State v. George (1989), 45 Ohio St. 3d 325 (paragraph one of the syllabus), states: In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, '[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. quoting Gates at 238-39. Given all of these factors weighing for and against consideration of Ms. Simms' statement the arresting officers had - 9 - the task of making "a practical, common-sense decision" as to whether there was "a fair probability" that defendant participated in the commission of the felony of which they were aware. The trial court, in denying defendant's motion to suppress, decided that the officers did have probable cause to believe that defendant was involved in the commission of the felony. The trial court impliedly held in overruling defendant's motion that the officers had a basis for making that practical, common-sense decision that defendant was probably involved in the commission of a felony. It is necessary to analogize the role of the appellate court in reviewing the officers' basis for probable cause in a warrantless arrest from the standard set for reviewing a magistrate's decision to issue a warrant based on probable cause. The analysis to find probable cause is the same in both cases, relying on the totality of the circumstances test. To review a decision by a magistrate that probable cause existed to issue a warrant: Neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after the fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. - 10 - State v. George (1989), 45 Ohio St. 3d 325 (paragraph two of the syllabus), following Gates. We do not find this standard of review under the recent cases involving probable cause analysis to be in conflict with the standard of review set forth, supra, by this court in State v. Thompson at 539. In finding, under the more recent formulation, a "substantial basis" for the officer's decision that probable cause existed to believe a felony was committed by the accused, this court is also seeking "substantial and credible evidence" that probable cause so existed to justify a warrantless arrest. Detective Goe's reference to a Clean as the "main man" is substantiated by the statement made by Ms. Simms that the owner's name was Clean. Detective Goe's statement also corroborates the statement of Ms. Simms. Because she was an unreliable informant, corroborating facts can provide the basis for her statement's reliability. The officers had reason to believe Ms. Simms' statement that defendant was the owner of the premises once the officers saw that he in fact returned shortly in the yellow Buick as predicted by Ms. Simms. Defendant's return to the premises, Detective Goe's information of a Clean as the main man and Ms. Simms corroborated statement identifying defendant as the owner function as substantial and credible evidence for the court to find that the officers had a substantial basis on which to conclude that defendant was connected to the drugs. - 11 - The trial court's decision to overrule defendant's motion to suppress is affirmed. The statements made subsequent to arrest are admissible. The defendant/cross-appellant raises a second assignment of error. II THE TRIAL COURT ERRED IN CONVICTING DEFENDANT OF POSSESSION OF A CONTROLLED SUBSTANCE WHERE REASONABLE DOUBT EXISTS AS TO PROOF OF THE ELEMENT OF POSSESSION. The defendant argues that the incriminating statements made subsequent to his arrest are not evidence that he is guilty of trafficking in a controlled substance. These statements constitute evidence of possession. 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." Defendant admitted during the taped discussion with Detectives Volk and Goe that the drugs were, in fact, his. He denied owning the guns, but admitted that the drugs and money were his. As the defendant argues in his appeal, the notion of ownership was apparently based upon his idea that he had inherited the drugs from his brother. His brother was murdered a month prior to defendant's arrest. The issue before this court is whether the conviction was against the manifest weight of the evidence. - 12 - In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he court, reviewing the entire record, weighs 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 weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus). We can not say that the evidence weighs heavily against the convictions. The trial court could have considered defendant's taped admissions as proof of his possession. Under Rule 29, a verdict will be found in defendant's favor only when the evidence is "so slight or of so little probative value that reasonable minds must have had reasonable doubts as to appellant's guilt." State v. Bridgeman (1978), 55 Ohio St. 2d 261, 264. As the taped statements made subsequent to the valid arrest were admissible, there was evidence as to possession, so that it is not the case that a reasonable mind must have had a reasonable doubt as to defendant's guilt. Defendant's assignment of error is overruled. The trial court's conviction is affirmed. The State asserts one assignment of error on its appeal. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO A DEFINITE PERIOD OF INCARCERATION ON COUNT ONE. Appellant, State of Ohio, appeals from the sentencing of Carlton Swopes on count one, a violation of the drug law, R.C. - 13 - 2925.03(A)(6). Defendant was sentenced to a term of five years actual incarceration on count one and four to fifteen years on count two, to run concurrently. Count two was also a drug law violation, R.C. 2925.03(A)(2). The State does not appeal from the sentence given on count two. R.C. 2925.03(C)(6) determines that a violation of R.C. 2925.03(A)(6) is a second degree felony, "except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree, and the court shall impose a sentence of actual incarceration of five years." Defendant has a prior conviction of trafficking marijuana, a fourth degree felony. Thus, the crime of which defendant was found guilty in count one is a first degree felony. According to the sentencing mandate in R.C. 2925.03(C)(6) the court must impose a sentence of actual incarceration of five years, as it did. The State argues that R.C. 2925.03(C)(6) provides a sentencing enhancement, which is in addition to R.C. 2929.11(B)(4). This section provides for an indefinite term of "four, five, six or seven years, and the maximum term shall be twenty-five years." The Ohio Supreme Court affirmed the State's interpretation of these sentencing provisions, R.C.2925.03(C) and R.C. 2929.11. State v. Arnold (1991), 61 Ohio St. 3d 175. The Supreme Court reads the language of R.C. 2925.03(C) to indicate that the crime - 14 - is a felony of a certain degree in order to determine which section of R.C. 2929.11 applies. The "and" connecting the felony's degree with the mandatory actual incarceration period indicates that the legislature intended both sentencing provisions to apply. The motion to suppress and conviction are sustained. This case is remanded to the lower court for re-sentencing in accordance with R.C. 2929.11(B)(4) and R.C. 2925.03(C)(6). - 15 - 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. J.F. CORRIGAN, J., AND PATTON, J., CONCUR 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. .