COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60331 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ROMANO MASON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 21, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-236,671 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Warren L. McClelland Assistant Public Defender The Marion Building 1276 West Third Street Room 307 Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Romano Mason, defendant-appellant, appeals his conviction for two counts of trafficking in drugs under R.C. 2925.03, and one count of possession of criminal tools under R.C. 2923.24. On February 16, 1989, at approximately 7:40 p.m., the Cleveland Police Department and its Special Weapons and Tactics Unit (SWAT Team) executed a search warrant at 859 Linn Drive in Cleveland, Ohio where a drug house was believed to exist. Assisting in the forced entry of the premises, officer Ronald Dodus testified that the SWAT Team found eleven people on the main floor of the house. Upon entry, the SWAT Team secured all the people in the house including Mason who was alone in the bathroom. Detective Arthur Owsiak entered the house after the SWAT Team had secured all eleven people. He entered the bathroom and found twenty-three packets of powdered cocaine and one packet of crack cocaine in the toilet. The toilet bowl water was clear. Owsiak revealed that the cocaine was packaged in twenty four small coin envelopes commonly used by coin collectors. Owsiak testified that cocaine is packaged that way for purposes of resale. He also indicated that each packet of cocaine would cost a buyer between twenty and fifty dollars. Tina Wolff, a member of the Scientific Investigation Unit, testified that the twenty- four packets tested positive for cocaine and weighed 19.1 grams which was more than the bulk amount. Detective Owsiak also indicated that he conducted a surveillance of the house prior to the execution of the search -3- warrant. He and his partner, Det. Glover, observed a moderate amount of drug sales there and that purchasers were not allowed to enter the house. Raymond Floyd, the owner of the house at 859 Linn Drive, testified on behalf of Mason. Floyd stated that he permitted Timothy Potts to make one or two drug sales from his house in exchange for getting drugs at a reduced price. Floyd admitted that he was a drug user and that his house was a "dope house"; however, he denied that he was in the business of selling drugs. Floyd further revealed that Mason, who had been there for about thirty minutes prior to the arrival of the police, was not selling drugs and that Floyd had no idea why Mason was there. Emmanuel Gohlstin also testified on Mason's behalf. Gohlstin testified that he was looking for his wife at various drug houses since she was an addict. On February 16, 1989, Gohlstin ran into Mason and asked if Mason knew of any drug houses in the area. Mason replied that he did and took Gohlstin to 859 Linn Drive. Once inside the house, Gohlstin revealed that Mason went to the bathroom. At that moment, the police arrived. However, on cross-examination, Gohlstin's version of what transpired was contradicted by testimony Gohlstin gave previously in court in a related case. In October, 1989, Gohlstin testified about the same incident and stated that he did not know 859 Linn Drive was a dope house. He indicated that he was going there to give Floyd an estimate for some masonry work. During such testimony, Gohlstin made no mention of the fact that he was -4- looking for his wife. The prosecution also presented rebuttal witnesses to establish that Gohlstin had testified to the latter version of events on October 18, 1989. One such witness, Det. Robert Glover, stated that on the night of the drug bust, Gohlstin told him that he had come there to work on the house and that Gohlstin was wearing a utility belt at the time. Mason testified that he was walking to his girlfriend's house on Linn Drive when he encountered Gohlstin who was looking for his wife at drug houses. Mason said that he led Gohlstin to Floyd's dope house; after two or three minutes there, Mason went to the bathroom to urinate. After some commotion, he stated that Floyd's wife ran in and dumped some packets into the toilet. He denied selling cocaine for Floyd. On April 24, 1989, Mason was indicted for two counts of the drug law pursuant to R.C. 2925.03 and one count of possession of criminal tools under R.C. 2923.24. All three counts carried a violence specification. On March 1, 1990, a trial ensued and a jury found Mason guilty of all three counts. This appeal follows. I. Appellant's first and third assignments of error are interrelated and shall be examined together. They state: I. THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS. II. THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -5- The Supreme Court of Ohio has stated: In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied, (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 160, 383 N.E.2d 132, syllabus. R.C. 2925.03, which constitutes the crime of trafficking in drugs, provides in pertinent part: (A) No person shall knowingly do any of the following: * * * (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; * * * (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; * * * R.C. 2923.24, which constitutes the crime of possession of criminal tools, 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. -6- Mason challenges the sufficiency of the evidence on the element of possession. He asserts that mere proof of presence in the vicinity of illicit drugs is not enough to prove that element. Columbus v. Russell (1973), 39 Ohio App. 2d 139, 140, 316 N.E.2d 897. He also contends that he provided a reasonable theory of innocence to challenge the state's circumstantial evidence. Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264, 267 N.E.2d 787. One constructively possesses drugs by exercising dominion and control over them even though they are not in one's physical possession. State v. Wolery (1976), 46 Ohio St. 2d 316, 348 N.E.2d 351, certiorari denied, 429 U.S. 932; State v. Pruitt (1984), 18 Ohio App. 3d 50, 480 N.E. 2d 499. Here, the SWAT Team approached the house in question and knocked. At such time, officer Dudas heard scuffling within the house. The SWAT Team then used a battering ram to gain entrance since they believed evidence was about to be destroyed. Once inside, Dudas found Mason alone in the bathroom with the door partially closed. There, Det. Owsiak searched the bathroom and discovered twenty-four packets of cocaine floating in the toilet bowl. All the pockets were packaged in "coin envelopes" for distribution and resale purposes. In their prior surveillance, Det. Glover revealed that he and his partner observed moderate drug sales and noted that no purchasers were allowed into the house. We believe that the evidence supports the conclusion that the drugs found in the toilet bowl were in -7- Mason's constructive possession and within his dominion and control State v. Pruitt (1984), 18 Ohio App. 3d 50, 480 N.E.2d 499. Evidence in the case that Mason possessed drugs and participated in the preparation of their sales is circumstantial. When the state relies upon 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 to support a conviction. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492. Mason claimed that he was walking down the street to his girlfriend's house when Emmanual Gohlstin approached him. Gohlstin, looking for his drug addicted wife whom he had divorced six years prior, asked Mason if he knew of any drug houses. Mason lead him to 859 Linn Drive which he knew to be a drug house; Mason claimed that he never used or sold drugs. Once they knocked on the door, Mason and Gohlstin were allowed in even though neither knew the man who answered the door. Once inside, Mason asked Ray Floyd, who he knew, to use the bathroom. A few minutes later, under Mason's version of what transpired, Floyd's wife rushed into the bathroom and tossed cocaine into the toilet and then ran out. The police then entered the bathroom immediately thereafter. Floyd, who testified on Mason's behalf, contradicted Mason by revealing that Mason had been in the house for about a half hour before the police arrived. In addition, Floyd stated that he and his wife -8- were upstairs when the police arrived. Gohlstin's testimony was also contradicted. Instead of looking for his wife, Gohlstin testified in a prior court proceeding that he was at the house to give Floyd an estimate for some masonry work. Mason's own testimony failed to explain how he and Gohlstin gained such easy access to the drug house. Our review of the record does not lead us to believe that Mason provided a reasonable theory of innocence or that the evidence was insufficient to support the conviction. We also do not believe that the verdict was against the manifest weight of the evidence. Mason argues that his testimony as well as that of Floyd and Goldstin established that Mason was not participating in the preparation and sale of drugs. However, the jury, as the trier of fact, has the sole responsibility of evaluating the credibility of witnesses. State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d 212. The jury apparently did not find the testimony of Mason, Floyd, and Goldstin credible and we find no reason to disturb the jury's evaluation of the witnesses' credibility. As the result of the foregoing, appellant's assignments of error are overruled. II. Appellant's second assignment of error states: MR. MASON WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCING FOR POSSESSION OF CRIMINAL TOOLS IN VIOLATION OF R.C. 2923.24, A FELONY OF THE FOURTH DEGREE. -9- Mason asserts that he should not have been convicted for possession of criminal tools. Instead, he asserts that he should have been charged with possession of drug instruments. R.C. 2925.12, which constitutes the crime of possession of drug instruments, states in pertinent part: (A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug, other than marijuana, when the instrument involved is a hypodermic or syringe.... (Emphasis added.) The mere possession of syringes can only constitute a violation of R.C. 2925.12 and may not be punished under R.C. 2923.24 which constitutes the crime of possessing criminal tools. State v. Chandler (1989), 54 Ohio App. 3d 92, 560 N.E.2d 832. However, R.C. 2925.12 applies only when the "instrument involved is a hypodermic or syringe". State v. Mateo (1991), 57 Ohio St. 3d 50, 54, 565 N.E.2d 590; see State v. Alexander (Dec. 14, 1989), Cuyahoga App. No. 56406, unreported. Here, the criminal tools for which Mason was convicted were the coin envelopes or plastic bags used to package cocaine for its distribution and resale. Such instruments are properly punishable under R.C. 2923.24 as criminal tools and do not fall within the purview of R.C. 2925.12. As a result, Mason was properly charged and convicted for the possession of criminal tools. Appellant's assignment of error is overruled. The judgment of the trial court is 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. DAVID T. MATIA, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOSEPH J. NAHRA 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. .