COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60551 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : TIMOTHY JONES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-244277 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: MICHAEL ERTLE ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: WILLIAM H. SMITH SUITE 100, MARION BUILDING 1276 WEST THIRD STREET CLEVELAND, OHIO 44113 -2- PARRINO, J.: On December 8, 1989, defendant-appellant Timothy Jones ("appellant") was indicted for possessing cocaine, in violation of R.C. 2925.11. A jury trial commenced on August 9, 1990. The following pertinent evidence was adduced at trial: In the early morning hours of September 15, 1989, Police Officers James Kennelly and Bienvenido Santiago were on routine patrol in an unmarked police car when, suspecting that appellant was promoting prostitution, they pulled him over. After he pulled over, appellant got out of his car and raised his hands. In his right hand, appellant held a glass "straight shooter" commonly used for smoking crack cocaine. As the officers approached, appellant dropped the straight shooter down the sleeve of his jacket. After Officer Santiago secured appellant and the straight shooter, both officers, using a flashlight, looked into appellant's car. Officer Kennelly testified that he found a small rock of crack cocaine on the driver's seat. Both officers testified that the rock was in a position which would have been between appellant's legs while he was driving. A scientific examiner testified that the straight shooter contained cocaine residue and that the rock consisted of cocaine. Appellant testified that he had not known about either the straight shooter or the rock. Appellant stated he found the straight shooter when he reached into the pocket of his jacket to get his driver's license and that his attempt to hide it had been -3- a "natural reaction." He also stated that the officers found the rock in a "cut" in the driver's seat. Appellant went on to testify that an individual named "Anthony" had driven his car a few days before the incident. Appellant also stated that his jacket had been in the car when Anthony used it. Appellant further testified that a friend had recently worn his jacket. Appellant suggested that Anthony was responsible for the presence of the straight shooter and the rock. At the conclusion of the trial, the jury found appellant guilty as charged. The trial court then sentenced appellant to a term of one and one-half years. Appellant appeals and raises the following assignments of error: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL WHEN APPELLANT WAS CONVICTED WITH EVIDENCE INSUFFICIENT AS A MATTER OF LAW, THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I. In his first assignment of error, appellant contends the trial court erred when it denied his motion for acquittal made under Crim. R. 29(A). Appellant's assignment of error lacks merit. Crim. R. 29(A) provides in pertinent part, that: The court on motion of a defendant or on its own motion, after the evidence on either side -4- 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. A trial court should not grant a motion for acquittal under Crim. R. 29(A) if "*** the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. R.C. 2925.11 provides in pertinent part that "[N]o person shall knowingly obtain, possess, or use a controlled substance." Cocaine is a controlled substance. See R.C. 3719.01(D) and R.C. 3719.41. After a review of the record, we find that the trial court properly denied appellant's motion for acquittal. It is clear that reasonable minds could conclude that possession of cocaine had been proven beyond a reasonable doubt. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends his conviction is against the manifest weight of the evidence. Appellant's assignment of error lacks merit. "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. -5- DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. When determining whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: *** 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. State v. Davis (1988), 49 Ohio App. 3d 109, 113; see, also, State v. Martin (1983), 20 Ohio App. 3d 172, 175. After a review of the record, we find the jury, as trier of fact, could properly conclude that appellant was guilty of possessing cocaine. Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. -6- 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. DYKE, P.J. JAMES D. SWEENEY, J., CONCUR. THOMAS J. PARRINO, JUDGE* (Thomas J. Parrino, Retired Judge of the 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 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. .