COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60493 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JOSEPH LAVENDER, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 12, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-246,053 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Beverly J. Pyle Assistant Public Defender The Marion Building 1276 West Third Street Room 307 Cleveland, Ohio 44113-1569 -2- NAHRA, P.J.: Joseph Lavender appeals from his conviction of drug possession. For the reasons set forth below, we affirm. On the evening of October 31, 1989, a group of Cleveland police officers went to 631 E. 97th Street to arrest Jeffrey Davis. The police knew that Davis had just been discharged from the hospital; that he had given the E. 97th Street address to police in connection with another matter; and that an arrest warrant existed for Davis on a concealed weapon charge. Police also suspected gang activity at the address. When police arrived, the lessee of the downstairs apartment, Regina Kirkman, went to the door. Seeing the large number of police officers with guns drawn, she retreated upstairs with her young child. Kirkman testified that she did not give police permission to come in. The police entered the apartment and searched it. Present, in addition to Kirkman and her child, were Devonna Martin, Kirkman's roommate; Jeffrey Davis, Martin's boyfriend; James Brown, and appellant. Kirkman and Martin testified that appellant arrived at the apartment five minutes before police. Kirkman testified that appellant was a frequent guest but not a boyfriend, and that he did not live there or keep his clothes there. The police conducted a search of Kirkman's residence. They testified that they went into Kirkman's bedroom after hearing noises like a weapon being chambered. They found appellant in -3- Kirkman's bedroom. One officer testified that appellant's hand was in a dresser drawer which contained packets of cocaine and a weapon. Another officer testified that appellant's arm was extended over that drawer. Devonna Martin and Regina Kirkman testified that appellant was really in the bathroom when police arrived. The police found drugs in the basement and drug paraphernalia elsewhere in the apartment. Regina Kirkman disclaimed knowledge of the drugs. James Brown, Jeffrey Davis and appellant were indicted on drug charges. At the suppression hearing, the court found that the search was illegal, and granted Davis' motion to suppress. The court stated that Davis, who lived with Kirkman part of the time, had a higher right to the premises. It denied Brown's and appellant's motions to suppress, because they were mere visitors to the apartment and lacked standing to object to the search. After a bench trial appellant was convicted of possessing cocaine but acquitted of drug trafficking and possession of criminal tools. Pursuant to defense counsel's stipulation to a prior felony conviction, he was sentenced to five years actual incarceration plus an indefinite term of five to twenty-five years. Appellant timely appealed. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED BY OVERRULING MR. LAVENDER'S MOTION TO SUPPRESS WHEN THE SEARCH AND SEIZURE OF -4- ARTICLES FROM MS. KIRKMAN'S APARTMENT WAS NONCONSENSUAL AND VIOLATED MR. LAVENDER'S RIGHTS UNDER ARTICLE 1, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Appellant claims that his Fourth Amendment rights were violated by the search of Regina Kirkman's home, since he was there as a social guest, and argues that his motion to suppress evidence should have been granted. The proponent of a motion to suppress evidence has the burden to establish that his or her own Fourth Amendment rights were violated. Rakas v. Illinois (1978), 439 U.S. 128, 133-134; Xenia v. Wallace (1988), 37 Ohio St. 3d 216, 218. "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, see supra, at 134, citing Alderman v. U.S. (1969), 394 U.S. 165, 174. To determine where there had been an infringement of the Fourth Amendment, the Rakas court applied the "legitimate expectation of privacy" test from Katz v. U.S. (1967), 389 U.S. 347. It found that automobile passengers did not have an expectation of privacy in the glove compartment or the area under the car seat. Rakas v. Illinois, see supra, at 148. The court rejected the "legitimately on the premises" standard which had been set forth in Jones v. U.S. (1960), 362 U.S. 257. It stated that the test was too broad, because it would protect even casual visitors. One example used by the court of a casual visitor who -5- should not be entitled to object to a search was a visitor who arrived one minute before the search. See Rakas v. Illinois, supra, at 142. It distinguished Jones, where the petitioner had a key to a friend's apartment while the friend was away, and thus had complete dominion and control over the apartment. Id. at 149. Also distinguishable is Minnesota v. Olson (1990), U.S. , 110 S. Ct. 1684, where the court found that an overnight guest has a legitimate expectation of privacy in the home of his host. In this case, appellant sought to suppress drugs found in Regina Kirkman's dresser drawer. Witnesses stated that appellant was a social guest; that he did not live there; that he did not keep clothes there; that he did not have a girlfriend who lived there; and that he had arrived five minutes before the police arrived. R. 28, 55, 70, 420-421, 457-458. Regina Kirkman testified that appellant had no reason to be in her bedroom. R. 122. Appellant did not meet his burden of establishing that the search violated his own Fourth Amendment rights. The undisputed evidence indicated that appellant did not have a relationship to the premises which would justify a reasonable expectation of privacy in Regina Kirkman's dresser drawers. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: -6- APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WAS DENIED WHEN HE WAS CONVICTED OF VIOLATING R.C. 2925.03(A)(6) ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. Appellant argues that the state presented insufficient evidence that appellant possessed cocaine. In State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus, the Ohio Supreme Court held as follows: 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. Possession is defined in R.C. 2925.01(L) as follows: "Possess" or "possession" means 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. Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St. 2d 264. While mere presence of appellant, standing alone, is insufficient to show possession, readily usable drugs found in very close proximity to a defendant may constitute circumstantial evidence and support a conclusion that the defendant had constructive possession of such drugs. State v. Pruitt (1984), 18 Ohio App. 3d 50. To place appellant in constructive possession, the evidence must demonstrate that appellant was able to exercise dominion or control over the -7- items. State v. Wolery (1976), 46 Ohio St. 2d 316, certiorari denied, 429 U.S. 932; State v. Bailey (April 9, 1987), Cuyahoga App. No. 51968, unreported. In this case, drugs were found in a dresser drawer in Regina Kirkman's bedroom. Kirkman denied knowledge of any drugs, and also stated that she had left the drawer closed. When police entered the bedroom, the dresser drawer was partially open, and appellant either had his hand over the drawer or in it. R. 315, 368. Police also found an automatic weapon in the drawer. They testified that they entered the bedroom because they heard sound like an automatic weapon being chambered. R. 116, 312. Construing this evidence most favorably for the prosecution, a rational trier of fact could have found possession beyond a reasonable doubt. Furthermore, pursuant to State v. Jenks, see supra, paragraph one of the syllabus, the evidence does not need to be irreconcilable with any reasonable theory of innocence to support appellant's conviction. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error reads as follows: APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION WAS DENIED WHEN HE WAS SENTENCED TO A FIRST DEGREE FELONY AND FIVE YEARS' ACTUAL INCARCERATION FOR HIS CONVICTION OF VIOLATING R.C. 2925.03(A)(6). Appellant claims that the state failed to allege that he was previously convicted of a felony drug abuse offense; that he -8- never stipulated that he had been convicted of a felony drug abuse offense; and that there was no evidence that the prior conviction was a felony. Accordingly, he argues that he was improperly sentenced to five years actual incarceration pursuant to R.C. 2925.03(C)(5). The indictment states that appellant: on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and did knowingly possess a controlled substance, to-wit: Cocaine, Schedule II Drug, being an amount equal to or exceeding three times the bulk amount. FURTHERMORE, the said Joseph Lavender a.k.a. Joseph Pettie, with counsel, on or about the sxith (sic) day of May, 1988, in the Cuyahoga County Court of Common Pleas, Case Number CR 222587, having been convicted of the crime of Trafficking Drugs, in violation of Revised Code Section 2925.03 of the State of Ohio. Crim. R. 12(B)(2) provides in pertinent part that "[d]efenses and objections based on the indictment" must be raised before trial." Furthermore, An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, approved and followed.) State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 911; see also State v. Awan (1986), 22 Ohio St. 3d 120, syllabus. In this case, appellant's counsel, Mr. Parker, stipulated to appellant's prior conviction on pages 416-417 of the record, -9- without stating that it was a felony conviction. The following statements were made on the record on pages 485-86: MR. PARKER: And it's my understanding and belief that they would have to be one to three times bulk instead of three times bulk. If the Court finds it is three times bulk, it is a five-year sentence of actual incarceration, as I understand it. THE COURT: I'm finding it to be one hundred, five individually wrapped, which, therefore, pursuant to the statute, is more than three times the bulk. MR. PARKER: And with his previous conviction, Judge, I believe that carries a five-year penalty. THE COURT: Is that what it is you stipulated MR. PARKER: We stipulated to his prior conviction, your Honor. THE COURT: It's a five-year actual incarceration? MR. PARKER: I believe so, your Honor. THE COURT: And it's a -- What degree felony is MS. McDONNELL: It's a felony of the first degree, the aggravated felonies. So that it's five, six, seven to twenty-five. There is a mandatory fine of seventy- five hundred dollars for whatever that's worth. MR. PARKER: Your Honor, in light of the fact that my client is indigent, I'd be happy to file the appropriate affidavit to waive that mandatory fine. THE COURT: Do you have anything to say before Court imposes sentence? MR. PARKER: Your Honor, I would just request, obviously I think the Court is limited in what it can do in sentencing here. I think you can only give him a five-year term of actual incarceration, obviously I'm sure Mr. Lavender wants to appeal that, and I'm sure you will go over his appellate rights. (Emphasis added.) -10- Although no one stated that appellant's prior conviction was a felony, appellant's attorney stated that five years of actual incarceration was the proper sentence. There was no objection to the indictment prior to trial nor to the sentence. Accordingly, appellant's third assignment of error is without merit. Affirmed. -11- 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. BLACKMON, J., and KRUPANSKY, J. CONCUR. JOSEPH J. NAHRA PRESIDING 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. .