COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60332 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION REGINALD WOODS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-248392 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES PATRICK M. FARRELL, ESQ. CUYAHOGA COUNTY PROSECUTOR 21430 Lorain Road JOSEPH RUSSO, ASST. Fairview Park, Ohio 44126 Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Appellant, Reginald Woods, appeals from his conviction for possessing criminal tools. For the reasons set forth below, we affirm. I. Appellant was indicted by the Cuyahoga County Grand Jury on February 15, 1990 for two counts of drug trafficking in violation of R.C. 2925.03, one count of possessing criminal tools in violation of R.C. 2923.24, one count of possession of cocaine in violation of R.C. 2925.11, and one count of preparing cocaine for shipment in violation of R.C. 2925.03. Each count contained a violence specification. Appellant pled not guilty to the indictment and the matter proceeded to jury trial on July 18, l990. For it case, the state presented the testimony of the following witnesses: Officers Douglas Dvorak, Gary Gingell, Brian Heffernan and Bernard Norman of the Cleveland Police Department; and Cynthia Lewis of the Cleveland Police Scientific Investigation Unit. Detective Dvorak testified that he was involved in the investigation and surveillance of drug activity in the public housing units on West 25th Street in Cleveland. Dvorak testified that the investigation was aided by a confidential informant who made controlled purchases of cocaine from apt. 170, at 1765 West 25th Street on January 5th and 9th, 1990. Dvorak further testified that on each occasion the informant was given $20.00 to - 3 - purchase cocaine, and that each time the $20.00 was pre- photocopied and marked by the time and date. Dvorak's testimony continued that on January 9, 1990, minutes after the second controlled purchase, he and the other members of the Cleveland Police Department executed a search warrant for apt. 170. Finally, Dvorak testified that appellant and Orlando Buchanan were inside the apartment, and Dvorak recovered a small quantity of cocaine that was on the kitchen floor. The state's second witness, Sergeant Gingell, testified that he participated in the search of apt. 170 on January 9, 1990. Upon searching the bathroom area, Gingell observed that water was running in the toilet, and various coins were in the toilet bowl. Gingell testified that upon further search of the apartment, he recovered a small packet of cocaine and several small plastic packets. Finally, Gingell testified that the plastic packets are often used in the drug trade. The state's third witness was Detective Brian Heffernan. Heffernan testified that apt. 170 had been under surveillance the entire day of January 9, 1990, and that several known drug users frequented it. Heffernan further testified that he participated in the search, and recovered $232.00 in cash from appellant. Heffernan later matched $20.00 of the recovered money with the $20.00 of buy money which had been pre-photocopied and given to the confidential informant earlier that day. - 4 - The state's fourth witness, Detective Norman, testified that he was the primary surveillance officer throughout this operation. Specifically, Norman testified that he observed appellant drive up to the apartment building and enter apt. 170. Norman testified that prior to appellant's entrance there was no pedestrian traffic to apt. 170, but after appellant's entry several pedestrians came to the apartment, stayed for a few minutes, and left. The state's final witness, Cynthia Lewis, testified that she performed scientific examinations on items recovered in this case. Lewis determined that samples obtained from the controlled purchases on January 5th and 9th were cocaine. Lewis further determined that the two small packets recovered in the search of apt. 170 were cocaine. At the close of the state's case, appellant moved for acquittal on all counts pursuant to Crim. R. 29. The trial court granted this motion as to all counts except possessing criminal tools; money. Appellant rested his case without calling any witnesses to the stand, and renewed his Crim. R. 29 motion. The renewed motion was denied and the mater was presented to the jury. The jury returned a verdict of guilty of possessing criminal tools. This appeal timely follows. II. - 5 - For his sole assignment of error appellant contends that the trial court erred in failing to grant his motion for acquittal on the charge of possessing criminal tools. A motion for judgment of acquittal is governed by Crim. R. 29(A), which provides: "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." A court shall not order an entry of judgment of acquittal made pursuant to this rule if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. In addition, the trial court in ruling on a Crim. R. 29(A) motion for acquittal must view the probative evidence in a light most favorable to the state, and determine whether the state presented sufficient evidence on each of the essential elements of the offense charged. State v. Martin (1983), 20 Ohio App. 3d 172. In the case sub judice, appellant was convicted of possessing criminal tools in violation of R.C. 2923.24 which provides that: - 6 - "(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 constitutes 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." R.C. 2923.24(B) provides three circumstances which constitute "prima facie evidence of criminal purpose," but where the evidence does not fall within one of these three circumstances, the state must prove criminal purpose beyond a reasonable doubt, without the benefit of the inference which this statue provides. State v. Anderson (1981), 1 Ohio App. 3d 62. The record before us reveals that the state presented evidence that a confidential informant purchased a small quantity of cocaine from someone in apt. 170 and paid for the cocaine with money marked by the police department. Scientific evidence - 7 - demonstrated that the substance sold was cocaine. The marked money was found on appellant shortly after the sale. Appellant and Orlando Buchanan were the only people in the apartment. Furthermore, substantial circumstantial evidence was presented which indicated that appellant was actively involved in drug trafficking at the time of his arrest. Finally, the police department has demonstrated that the surveillance techniques employed were credible. No contradictory evidence was introduced by appellant. In reaching our decision, this court relies on several recent cases from this district in which it was held that possession of money under circumstances similar to those sub judice, is sufficient to support a conviction for possessing criminal tools. State v. Strickland (January 24, 1991), Cuyahoga App. No. 58032, unreported; State v. Furst (November 15, 1990), Cuyahoga App. No. 59757, unreported; State v. Porter (July 19, 1990), Cuyahoga App. No. 57251, unreported. The mere fact that appellant was acquitted on all of the accompanying drug charges does not vitiate the jury's guilty verdict. In criminal cases, Ohio follows the general rule that consistency between verdicts on the several counts of an indictment is unnecessary where the defendant is convicted on one or some of the counts and acquitted on others, and the conviction will generally be upheld irrespective of its rational - 8 - incompatibility with the acquittal. State v. Adams (1978), 53 Ohio St. 2d 223; State v. Woodson (1985), 24 Ohio App. 3d 143. Based upon the foregoing, we find that reasonable minds could reach different conclusions as to appellant's innocence at the time the Crim. R. 29 motions were interposed. We further find that the apparent inconsistent verdicts in this case do not warrant reversal. Appellant's assignment of error is not well taken. Judgment affirmed. - 9 - 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 Court of Common Pleas 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. DYKE, P.J., and ANN McMANAMON, J., CONCUR. JUDGE JOHN F. CORRIGAN 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. .