COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60572 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL BISHOP : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-250228. JUDGMENT: AFFIRMED AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Beverly J. Pyle, Esq. 307 Marion Building Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Michael Bishop, appeals from his conviction for one count of trafficking in drugs in violation of R.C. 2925.03 and one count of drug abuse in violation of R.C. 2925.11. The appellant argues that his conviction was insufficient as a matter of law. The appellant's appeal is not well taken. I. THE FACTS A. POLICE SURVEILLANCE IN HIGH DRUG ACTIVITY AREA On February 28, 1990, five members of the Cleveland Police Department were conducting a surveillance operation in the Valley View housing projects as a result of numerous complaints of drug activity. At approximately 10:30 p.m., a surveillance team was placed in the area of West 6th Street and Marquardt. The Cleveland police officers observed a female and a male approach the appellant. The female delivered money to the appellant in exchange for a small object which was placed into the right pocket of the female's jacket. A subsequent arrest of the female resulted in the discovery of two rocks of crack cocaine in the female's right jacket pocket. Based upon the discovery of crack cocaine in the possession of the female, the appellant was arrested. It should also be noted that the appellant, immediately prior to his arrest, was observed swallowing a small white object, the size of a penny. B. INDICTMENT AND ARRAIGNMENT On April 10, 1990, the appellant was indicted by the grand jury of Cuyahoga County for one count of drug abuse (obtain, -3- possess or use cocaine) in violation of R.C. 2925.11 with a prior violence specification and one count of trafficking in drugs (sell or offer to sell cocaine) in violation of R.C. 2925.03(A)(1) with a prior violence specification. On April 25, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to both counts of the indictment. C. JURY TRIAL AND SENTENCE OF THE TRIAL COURT On August 28, 1990, a jury trial was commenced with regard to the two counts of the indictment. At the conclusion of the trial, the jury found the appellant guilty of one count of drug abuse and one count of trafficking in drugs. Immediately upon discharge of the jury, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of two years to ten years with regard to the offense of trafficking in drugs (sell or offer to sell cocaine). In addition, the court found that the offense of drug abuse (obtain, possess or use cocaine) was an allied offense of similar import per R.C. 2941.25 thus preventing the imposition of a second term of incarceration. D. APPELLANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction and the sentence of the trial court. -4- II. SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: 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. 2925.11 AND R.C. 2925.03, DRUG LAW, ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. A. ISSUE RAISED: CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE The appellant, through his sole assignment of error, argues that his conviction for one count of drug abuse and one count of trafficking in drugs was not supported by sufficient evidence. Specifically, the appellant argues that the circumstantial evidence adduced at trial by the prosecution did not exclude all reasonable theories of innocence and thus the appellant's conviction was not supported by sufficient evidence. The appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INSUFFICIENT EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St. 3d 259, examined the issue of a claim of insufficient evidence and held that: 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. (Jackson v. -5- Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. In addition, the Supreme Court of Ohio in Jenks established a new standard of review which is to be applied to circumstantial evidence vis-a-vis a claim of insufficient evidence: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on 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 in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) State v. Jenks, supra, paragraph one of the syllabus. C. EVIDENCE ADDUCED AT TRIAL In the case sub judice, the prosecution presented both direct and circumstantial evidence during the course of trial which established the elements of the offenses of drug abuse and trafficking in drugs. This circumstantial and direct evidence, which was adduced at trial, established that: 1) the Cleveland Police Department, on February 28, 1990, was conducting a surveillance operation in the area of West 6th and Marquardt as a result of mounting complaints with regard to the sale of crack -6- cocaine (Tr. 17, 33, 56); 2) the lighting in the area under surveillance was illuminated by both street lights and building lights (Tr. 37); 3) a female, who had exited a dark-colored Buick LeSabre which possessed a burned out headlight, approached the appellant; 4) the female delivered to the appellant an undetermined amount of paper money (Tr. 39, 40); 5) the appellant, in exchange for the paper money, delivered a small object to the female (Tr. 39, 40); 6) the female placed the small purchased object into the right pocket of her jacket (Tr. 39, 40); 7) a search of the female, as performed by the Cleveland Police Department, resulted in the discovery of crack cocaine in the right hand pocket of the female's jacket (Tr. 22, 23, 58); and 8) the appellant was arrested by the Cleveland Police Department (Tr. 26, 46, 61). D. APPELLANT'S CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE Upon application of the standard of review for sufficiency of the evidence as established in State v. Jenks, supra, this court can but find, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the offenses of drug abuse (obtain, possess or use cocaine) and trafficking in drugs (sell or offer to sell cocaine). Thus, the appellant's conviction for one count of drug abuse and one count of trafficking in drugs was supported by sufficient evidence and the appellant's sole assignment of error is not well taken. -7- E. TRIAL COURT FAILED TO IMPOSE MANDATORY FINE An independent review of the record, however, reveals that the trial court failed to impose a mandatory fine of $2,500.00 upon the appellant as mandated by R.C. 2925.03(H)(4). Therefore, the instant appeal must be remanded to the trial court solely for the purpose of correction of sentence. It should also be noted that the presence of the appellant is mandated per Crim. R. 43(A) upon imposition of the mandatory fine. Columbus v. Rowland (1981), 2 Ohio App. 3d 144; State v. Huston (Jan. 31, 1991), Cuyahoga App. No. 57843, unreported. Affirmed and remanded for resentencing. -8- It is ordered that appellee recover of appellant its costs herein. 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 for resentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .