COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59938 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : THOMAS CARROLL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-244114. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Mario Decaris, Esq. Lallo & Feldman 55 Public Square, Suite 900 Cleveland, OH 44113 -2- MATIA, C.J.: Defendant-appellant, Thomas A. Carroll, appeals from his conviction for the offense of possessing criminal tools. The appellant essentially argues that his conviction was insufficient as a matter of law. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT'S ARREST On August 19, 1989, the appellant was a passenger in a 1979 Cadillac automobile which was being operated on Conrail property in the area of Front Street, Cleveland, Ohio. Two Conrail police officers investigated the presence of the Cadillac upon Conrail property. This investigation subsequently resulted in the discovery of the following contraband: 1) open beer cans; 2) a marijuana pipe; 3) a glass vial which contained cocaine; 4) a "roach" clip; 5) marijuana; and 6) a metal tin. B. THE INDICTMENT On October 26, 1989, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of drug abuse (obtain, possess, or use cocaine) in violation of R.C. 2925.11 and one count of possessing criminal tools (glass vial, roach clips, pipes and a metal tin) in violation of R.C. 2923.24. C. THE ARRAIGNMENT On November 16, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to the two counts of the indictment. -3- D. THE NON-JURY TRIAL AND VERDICT OF THE TRIAL COURT On February 7, 1990, the appellant waived his right to a trial before a jury and the two counts of the indictment were tried to the court. At the conclusion of the non-jury trial, the trial court returned a verdict of not guilty as to the offense of drug abuse and guilty of the offense of possessing criminal tools. E. THE SENTENCE OF THE TRIAL COURT On May 3, 1990, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of six months. The trial court, however, suspended execution of sentence and placed the appellant on probation for a period of one year. F. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of possessing criminal tools. II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: "THE TRIAL COURT ERRED AS DEFENDANT/APPELLANT'S RIGHT TO DUE PROCESS OF LAW WHICH IS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION, WAS DENIED WHEN DEFENDANT/APPELLANT WAS CONVICTED OF POSSESSION OF CRIMINAL TOOLS ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION." A. ISSUE RAISED: INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR POSSESSING CRIMINAL TOOLS The appellant, in his initial assignment of error, argues that his conviction for the offense of possessing criminal tools was insufficient as a matter of law. Specifically, the appellant -4- argues that the State of Ohio failed to adduce sufficient evidence at trial to establish the essential elements of the offense of possessing criminal tools. The appellant's initial assignment of error is not well taken. B. ELEMENTS OF OFFENSE OF POSSESSING CRIMINAL TOOLS R.C. 2923.24, which defines the offense of possessing criminal tools, provides that: "(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. "(B) Each of the following constitute prima-facie evidence of criminal purpose: "(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating such dangerous ordnance, materials, or parts are intended for legitimate use; "(2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use; "(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. "(C) Whoever violates this section is guilty of possessing criminal tools, a felony of the fourth degree." Thus, the elements of possessing criminal tools are: 1) possess or have under control; 2) any substance, device, instrument, or article 3) with purpose to use criminally. -5- C. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St. 3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of sufficiency of the evidence and held that: "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. 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" State v. Jenks, supra, paragraph two of the syllabus. D. STANDARD OF REVIEW FOR CIRCUMSTANTIAL EVIDENCE In addition, the Supreme Court of Ohio in Jenks established a new standard of review with regard to the issue of circumstantial evidence and held that: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)" State v. Jenks, supra, -6- paragraph one of the syllabus. E. ELEMENT OF POSSESSION DEFINED The criminal possession of contraband, as prohibited by R.C. 2923.24, can be either actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264. The Supreme Court of Ohio has defined constructive possession as the ability to exercise dominion or control over the contraband. State v. Wolery (1976), 46 Ohio St. 316. The close proximity of a defendant to a particular item of contraband is not ordinarily sufficient to establish possession. State v. May (May 24, 1990), Cuyahoga App. No. 56943, unreported. However, contraband such as readily accessible drugs and drug paraphernalia in close proximity to a defendant represents sufficient circumstantial evidence which will support a finding of constructive possession. State v. Pruitt (1984), 18 Ohio App. 3d 50. F. APPELLANT'S CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE In the case sub judice, the evidence adduced at trial demonstrated that the appellant was in close proximity to a marijuana pipe, marijuana, and a marijuana roach clip. (Tr. 37, 39, 72, 78). Applying the standard of review for sufficiency of the evidence as established in State v. Jenks, supra, this court can but find, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of possessing criminal tools proven beyond a reasonable doubt. -7- Jackson v. Virginia, supra. Accordingly, the appellant's conviction for the offense of possessing criminal tools was not insufficient as a matter of law and the appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT/APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A) WHICH WAS MADE AT THE END OF PLAINTIFF/APPELLEE'S CASE AND AGAIN RENEWED AT THE END OF DEFENDANT/APPELLANT'S CASE BECAUSE THE PLAINTIFF/APPELLEE'S EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE CONVICTION." A. APPELLANT HAS FAILED TO BRIEF SECOND ASSIGNMENT OF ERROR A review of the appellant's brief fails to demonstrate that the appellant has separately briefed and argued the second assignment of error, as mandated by App. R. 12(A). B. EACH ASSIGNMENT OF ERROR MUST BE SEPARATELY ARGUED AND BRIEFED This court, in North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App. 3d 342, established that an assignment of error which is not separately argued will be disregarded. "App. R. 12(A)A directs this court to determine the merits of appeals 'on the assignments of error set forth in the briefs required by Rule 16.' App. R. 12(A) further provides: "'*** Errors not specifically pointed out in the record and separately argued by brief may be disregarded. All errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision as to each such error.' (Emphasis added.) "The 'Assignments of Error' should designate -8- specific rulings which the appellant challenges on appeal. They may dispute the final judgment itself or other procedural events in the trial court. The 'Statement of Issues' should express one or more legal grounds to contest the procedural actions challenged by the assigned errors. They may subdivide questions presented by individual assigned errors, or they may be substantially equivalent to the assigned errors." North Coast Cookies, Inc. v. Sweet Temptations, Inc., supra, at 343. In addition, the Supreme Court of Ohio, in Hawley v. Ritley (1988), 35 Ohio St. 3d 157, established that the failure to separately brief and argue an assignment of error pursuant to App. R. 12(A) can result in the overruling of the particular unbriefed error. "*** In our view, the court of appeals acted well within its discretion in overruling or disregarding the sixth assignment of error because given the lack of briefing on this assigned error, the plain language of *** [App. R. 12(A)] permits such a disposition. As this court stated on a prior occasion, '[e]rrors not treated in the brief will be regarded as having been abandoned by the party who gave them birth..' Uncapher v. Baltimore & Ohio Rd. Co. (1933), 127 Ohio St. 351, 356, 188 N.E. 553, 555." Hawley v. Ritley, supra, at 159. C. "INCORPORATION BY REFERENCE" IS NOT SUFFICIENT TO CONSTITUTE BRIEFING Herein, the appellant's incorporation by reference of the argument raised and brief with regard to the first assignment of error is not sufficient to constitute a separate briefing of the second assignment of error. Thus, the appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR -9- The appellant's third assignment of error is that: "THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT'S MOTION FOR NEW TRIAL AND/OR MOTION FOR ACQUITTAL AS THE PLAINTIFF/APPELLEE'S EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE CONVICTION." A. APPELLANT HAS FAILED TO BRIEF HIS THIRD ASSIGNMENT OF ERROR The appellant has failed to separately brief and argue his third assignment of error as mandated by App. R. 12(A). As previously stated by this court with regard to the appellant's second assignment of error, a mere statement of incorporation by reference of a prior argument is not sufficient to support a claimed assignment of error. Therefore, the appellant's third assignment of error is not well taken. Judgment affirmed. -10- 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. SPELLACY, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .