COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60945 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHNNIE BENSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 254524. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John Smerillo Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: David L. Doughten, Esq. Jay B. White, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 3 - SWEENEY, JAMES D., J.: Defendant-appellant Johnnie Benson appeals his convictions for drug trafficking in violation of R.C. 2925.03. Appellant was convicted on one count of possession of cocaine in an amount equal to or exceeding the bulk amount but not greater than three times bulk, which is a violation of R.C. 2925.03(A)(4); he was also convicted of one count in violation of R.C. 2925.03(A)(2), preparing cocaine for distribution. After a trial to the bench, appellant was found guilty and sentenced to a term of two years incarceration on each count, to run consecutively, and a fine of $7,500.00. Eighteen months incarceration on the first count was for actual time. On June 15, 1990, appellant was stopped by the East Cleveland Police for operating a motorcycle erratically. Officer Dennis Bruening testified that he and his partner, Officer Martin, observed a motorcycle speeding up and slowing down while riding next to a moped. At the intersection of Doan Road and Euclid Avenue the officers stopped the motorcyclist, appellant. Appellant immediately informed the officers that he did not have a motorcycle license. Officer Bruening testified that his partner did a pat down search of appellant for weapons while he checked the rear seat of the police cruiser. After these searches, appellant was placed in the rear seat of the police vehicle. The officers confirmed that appellant had no motorcycle license and transported him to the police station. - 4 - Upon arrival at the station, appellant was removed from the police cruiser. While he and Officer Martin stood next to the vehicle, Officer Bruening again searched the rear seat. A bag was discovered which contained thirty-five rocks of cocaine. Appellant was then advised that he was under arrest for drug trafficking and was informed of his Constitutional rights. Officer Bruening stated that the arrest was for drug trafficking because "it looked to be a large amount of evidence there, . . .." (T. 15.) A fellow officer told Officer Bruening that appellant was confused; that he did not understand what he was being charged with. Officer Bruening went to appellant's cell and once more advised him of the charges against him, and restated his rights. Officer Bruening testified that prior to appellant's arrest, he and his partner had detained three men for suspected drug- related activity. One of these men was placed in the rear seat of the police cruiser. All three were released, and the rear seat of the vehicle was searched. No drugs or other items were found. Officer Bruening also testified that standard police procedure dictates that the rear seat of police vehicles are searched both before and after transporting anyone. The State also presented the testimony of Officer Jerome Johnson. Based on his years of experience as a police officer, Johnson testified that, generally, a person with thirty-five - 5 - rocks of cocaine would be trafficking in drugs. (T. 35-36.) He also testified that it is highly unlikely that anyone would have that amount of cocaine for personal consumption. Officer Johnson stated that a unit dose is one rock of cocaine, which is either smoked with a straight pipe or in a glass bong. There were no finger prints taken from the bag containing the cocaine, as lifting identifying prints from this type of bag is seldom successful. Officer Johnson corroborated the testimony of Officer Bruening by stating that it is standard police procedure to remove the rear seat of a police vehicle to check for concealed items both prior to and after placing anyone in the car. Appellant asserts two assignments of error. Appellant's first assignment of error. I THE OFFENSES OF POSSESSION OF COCAINE, R.C. 2925.11, AND DRUG TRAFFICKING, R.C. 2925.03 ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF OHIO REVISED CODE. 2941.25. Although appellant argues that possession in violation of R.C. 2925.11 and trafficking in violation of R.C. 2925.03 are allied offenses of similar import, appellant was not convicted of possession pursuant to R.C. 2925.11. Appellant was convicted of two separate sections under R.C. 2925.03(A)(2) and (4), transportation and possession. 2925.03 Trafficking in drugs. - 6 - (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 the controlled substance is intended for sale or resale by the offender or another; * * * * (4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount; Appellant argues that his acts consisted of one uninterrupted episode, and therefore he should have received only one conviction, not two. In Ohio, multiple count indictments are proper, but whether a conviction on each count may stand is determined by examining the nature and intent of appellant's acts. R.C. 2941.25 states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offense, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offense of dissimilar import, or where his conduct results in two or more offense of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. - 7 - In the syllabus of Newark v. Vazirani (1990), 48 Ohio St. 3d 81, the Supreme Court set forth a two-tiered test for determining whether or not two crimes are allied offenses of similar import. Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship [1988], 38 Ohio St. 3d 116, 117, 526 N.E. 2d 816, 817, approved and followed.) In the case before us, appellant was transporting a controlled substance intended for sale. Under 2925.03(A)(2), one of the factors in determining whether or not the drugs are being transported for sale is the quantity of the drug. For a conviction under R.C. 2925.03(A)(4), a substantial quantity of the drug must also be present. Under the facts of this case, it is difficult to comprehend how appellant could have been transporting drugs in a sufficient quantity to warrant a trafficking conviction without being in possession of the drugs. - 8 - In State v. Roberts (1980), 62 Ohio St. 2d 170, the court decided a similar case. Roberts was charged with possession for sale of a narcotic drug, and the sale of a narcotic drug. The court in its syllabus stated: Where a defendant is charged with the possession for sale of a narcotic drug in violation of R.C. 3719.20(A), and with the sale of a narcotic drug in violation of R.C. 3719.20(B), and the facts demonstrate that both charges are based upon a single sale and involve the same parties and the same type and quantity of drugs, and it is not proven that the defendant possessed a quantity of any type of narcotic drug in excess of the amount sold, the defendant may be indicted for both offenses but may be convicted of only one. R.C. 2941.25(A), applied. By analogy, it is clear that both counts against appellant in the case sub judice constitute allied offenses of similar import. Appellant was in possession of and transported only one quantity of drugs. See also, State v. Carter (December 19, 1990), Hamilton App. No. C-890787, unreported. Appellant's first assignment of error is well taken, and we remand for resentencing. Appellant's second assignment of error. II THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE. As recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson - 9 - and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. And in State v. Jenks (1991), 61 Ohio St. 3d 259, the Supreme Court recently held: "Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. * * *" In the case sub judice, the court heard competent, credible evidence on which to base a conviction. The police searched their cruiser before the appellant entered the car and no drugs were present. After the appellant alighted, a substantial amount - 10 - of drugs were found in the subsequent search. Appellant was arrested for driving a motorcycle without a license. From these facts, the State has proved beyond a reasonable doubt that appellant both possessed and transported the confiscated cocaine. Appellant's second assignment of error is overruled. Judgment is affirmed in part, reversed in part and remanded for resentencing. - 11 - This cause is affirmed in part, and reversed and remanded for resentencing in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA, P.J., and LEO M. SPELLACY, J., CONCUR. JAMES D. SWEENEY 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. .