COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60366 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION EMMETT CHAPPELL : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-248944 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor THOMAS A. REIN, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: BLAIR HODGMAN 13111 Shaker Square #304 Cleveland, Ohio 44120 - 2 - KRUPANSKY, J.: Defendant-appellant Emmett Chappell timely appeals from his conviction and sentence of one year for drug trafficking in violation of R.C. 2925.03(A)(2) and one year for possession of criminal tools in violation of R.C. 2923.24. The trial court suspended execution of both sentences and placed defendant on two years probation. Defendant and a juvenile companion named Jeffrey Bell were arrested by Cleveland Police narcotics officers in the early evening hours of January 25, 1990 in connection with both counts. The record demonstrates that seven detectives in two unmarked vehicles were patrolling the neighborhood of Clearview and Lee Roads in the City of Cleveland. Detectives Vazquez and Lucas testified at trial that this area was in a high drug and high crime neighborhood. The detectives stated that they observed a male pedestrian approach defendant and the juvenile who were seated in a 1977 Oldsmobile parked on Clearview with the engine shut off and the windows open despite the fact it was in the middle of winter. The pedestrian approached the driver's side where the juvenile was sitting, conversed momentarily and then walked around toward the passenger's side where defendant was located. The officers testified based upon this activity they believed they were witnessing a drug transaction. - 3 - The pedestrian attempted to flee upon seeing the detectives in two unmarked police cars approach the Oldsmobile. Detective Vazquez testified that the occupants of the Oldsmobile appeared to engage in furtive activity and defendant leaned forward toward the dashboard as though to conceal something. Detective Lucas similarly testified defendant was leaning toward the glove compartment and straightened up as the police approached. The pedestrian was detained and the two occupants of the Oldsmobile were ordered out of the vehicle where they could be observed more closely. The officers conducted a pat down search of the three suspects to determine whether any one of them was carrying a weapon. During the trial it was established the juvenile owned the Oldsmobile. Detective Vazquez testified that he asked the juvenile, who had been sitting in the driver's seat, for permission to search the vehicle. Detective Vazquez testified that the juvenile consented to the search. Detective Vazquez stated that he leaned into the front seat on the passenger side of the Oldsmobile and placed his hand on the radio to steady himself while searching the glove compartment where defendant appeared to be concealing something when they approached. The radio inadvertently slid out of the dashboard and revealed a white Mennen deodorant canister with a brown top. Detective Vazquez testified that he opened the canister and discovered no deodorant inside; however, he observed fifteen - 4 - rocks of crack cocaine and a piece of wax paper. No weapons or drug paraphernalia was found on defendant or the juvenile or elsewhere in the Oldsmobile. The officers placed defendant and the juvenile under arrest and subsequently released the pedestrian. Subsequent investigation confirmed the rocks in the deodorant container to be cocaine, a schedule II controlled substance, weighing 1.56 grams. The case proceeded to a jury trial after the trial court denied defendant's motion to suppress the evidence discovered during the search of the Oldsmobile. The jury found defendant guilty of drug trafficking and possession of the 1977 Oldsmobile as a criminal tool. Defendant timely appealed from his conviction raising four assignments of error. However, during oral argument on March 18, 1992, defense counsel orally withdrew in open court defendant's second and third assignments of error and filed a written motion 1 to that effect the following day. 1 The second and third assignments of error withdrawn by defense counsel from the Court's consideration follow: II THE PROSECUTOR'S INFLAMMATORY CLOSING ARGUMENT, WHEN COMBINED WITH THE LACK OF SUFFICIENT EVIDENCE, DENIED DEFENDANT-APPELLANT A FAIR TRIAL. III. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS THE INTRODUCTION OF EVIDENCE DERIVED FROM AN ILLEGAL SEARCH. - 5 - Defendant's remaining first and fourth assignments of error challenge the sufficiency and manifest weight of the evidence as follows: I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT- APPELLANT'S CONVICTION OF THE CRIMES OF DRUG TRAFFICKING AND POSSESSION OF CRIMINAL TOOLS. IV. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant's first and fourth assignments of error lack merit. Defendant contends the state did not present sufficient evidence to support his convictions for drug trafficking and possession of criminal tools since the state produced only circumstantial evidence which was not irreconcilable with defendant's reasonable theory of innocence, citing State v. Kulig (1974), 37 Ohio St. 2d 157. However, the Ohio Supreme Court has overruled the doctrine of Kulig in State v. Jenks (1991), 61 Ohio St. 3d 259; State v. Cejer (Mar. 19, 1992), Cuyahoga App. No. 59889, unreported. The test governing the sufficiency of the evidence was set forth in State v. Martin (1983), 20 Ohio App. 3d 172, as follows: [T]he test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319 *** - 6 - Id. at 175. Based upon our review of the record sub judice in compliance with this standard, construing the evidence in the light most favorable to the prosecution we find any rational trier of fact could have properly found defendant committed both offenses charged beyond a reasonable doubt. R.C. 2925.03 defines the crime of drug trafficking and provides in pertinent part as follows: (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 such drug is intended for sale or resale by the offender or another; (Emphasis added). Defendant contends the state did not present sufficient evidence that defendant (1) constructively possessed the cocaine, (2) knew the canister behind the radio contained cocaine, or (3) committed any element of trafficking under R.C. 2925.03(A)(2). Detectives Vazquez and Lucas testified to the following facts. Defendant and a juvenile were sitting in the front seat of an automobile parked on a street in a reputed high crime and high drug sale area in the winter with the engine of the car shut off and the windows wide open. A pedestrian approached the vehicle and conversed with the juvenile driver, then walked around to the passenger side of the Oldsmobile and began - 7 - conversing with defendant through the open window. When the detectives appeared and pulled their unmarked vehicles in front of and behind the 1977 Oldsmobile the pedestrian attempted to flee and the occupants of the Oldsmobile engaged in furtive movements in the front seat. Although Detective Vazquez did not observe any transfer between the occupants and the pedestrian and could not state whether the juvenile handed anything to defendant, he testified defendant quickly moved toward the dash and appeared to be concealing something in the glove compartment. Detective Lucas likewise testified he saw defendant straightening up from the dashboard. Subsequent search with consent of the vehicle's owner revealed nothing in the glove compartment; however, the radio inadvertently slid out of the dashboard near where defendant had been seated to reveal the deodorant canister containing fifteen rocks of crack cocaine and a small quantity of wax paper. No drug paraphernalia was found by which either of the occupants could personally smoke or ingest the cocaine. Viewing this evidence and the reasonable inferences drawn therefrom in the light most favorable to the prosecution, we conclude the prosecution presented sufficient evidence defendant knowingly possessed and/or constructively possessed the cocaine incident to the transportation of the cocaine, a controlled substance, when defendant knew or had reasonable cause to believe the cocaine was - 8 - intended for sale or resale by defendant or another. See, State v. Ballard (May 31, 1990), Cuyahoga App. No. 56676, unreported. Contrary to defendant's argument, the state presented evidence supporting an inference defendant possessed and hurriedly concealed the cocaine in the deodorant canister behind the vehicle's radio after what appeared to experienced detectives to be an aborted drug sale. See, State v. Soto (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported (defendant's ability to exercise dominion and control over drugs found in close proximity to defendant between defendant and driver in the front seat of a car sufficient to demonstrate constructive possession). The following testimony indicated the case was a textbook drug transaction: PROSECUTOR: What did you see as you approached? DET. VAZQUEZ: As I stated, I seen one male approach the driver's side. Q. That would be the third male [the pedestrian]. A. Third male was outside the automobile. Q. Okay. A. Which is like, you know, exact way that a drug transaction takes place in most of these neighborhoods, you know, car be parked, occupants inside the car, usually it's more than one, because he wants to show muscle, he wants to show that I have my boy, you can't come and rip me, so they usually more than one - 9 - person in the car, you know, because they're dealing. * * * Q. Okay. So you noticed some suspicious movements inside the car. Tell us what the passenger [defendant] did, the passenger, tell us what you think he did. A. Okay. As we approached, they noticed us coming around the van getting close to their automobile. Movements were made by the driver like toward the passenger which would be in the front passenger seat, at which time the passenger made a movement toward the, almost close to the dash into the glove compartment box and made some type of movement, you know, with his body. That alone indicated to me there was some type of thing that they were attempting to conceal. Q. In other words, you are saying you're telling us that they were trying to hide something, that the passenger was trying to hide something? A. That had been my experience. I had perhaps made arrests in automobiles like that in the past, I'd say probably a thousand arrests, you know, which, you know, has the same type of movements and the same type of activity that, you know, that -- Q. You have seen this similar type of behavior before where you confiscated drugs and/or weapons? A. That's correct. * * * The prosecution likewise presented sufficient evidence when construed in the light most favorable to the prosecution from which any rational trier of fact could reasonably find defendant - 10 - possessed or controlled the 1977 Oldsmobile with purpose to use it criminally. Martin, supra. R.C. 2923.24 defines possession of criminal tools in pertinent part as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. The mere fact that defendant was a passenger in the vehicle does not prevent his conviction for possessing the vehicle as a criminal tool in which the drugs were found. State v. Soto, supra; State v. Vega (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported. We note that the evidence could be construed to indicate the juvenile and defendant were acting in concert and it was defendant who made the furtive movements which concealed the drugs in the dashboard of the vehicle from which the aborted drug sale took place. In addition, it could be inferred, the drugs were transported in the 1977 Oldsmobile under the direction of defendant, an adult, who was in charge and directing the juvenile. The evidence revealed the pedestrian, the alleged buyer, first stopped at the juvenile driver's window and then walked around to the defendant passenger's side of the vehicle. Applying the standard set forth in Martin by viewing all the evidence and reasonable inferences drawn therefrom in the light most favorable to the prosecution, we conclude a rational trier of fact could find defendant possessed the vehicle with purpose to use it criminally: i.e. to transport the drugs and sell them. Id. - 11 - Defendant further contends that his conviction for drug trafficking and possession of criminal tools are against the manifest weight of the evidence. After determining the sufficiency of the evidence, State v. Martin, supra reviewed the standard for determining whether a conviction is against the manifest weight of the evidence as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Id. at 175; State v. Cejer, supra at 7. Based upon our review of the evidence in the record sub judice, together with all reasonable inferences drawn therefrom, considering the testimony and credibility of Detectives Vazquez and Lucas, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. Accordingly, defendant's first and fourth assignments of error are overruled. Judgment affirmed. - 12 - 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. J. F. CORRIGAN, P.J., and PARRINO,* J., CONCUR JUDGE BLANCHE KRUPANSKY *Judge Thomas J. Parrino, Retired, Eighth Appellate District, Sitting by Assignment. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .