COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60987 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CURTIS D. SANDERS, JR. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 20, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-245,411 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN SMERILLO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: WILLIAM H. SMITH Attorney at Law 1276 West Third Street, #100 Cleveland, Ohio 44113 - 2 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Curtis D. Sanders, Jr., was indicted by the Cuyahoga County Grand Jury on January 12, 1990 in a two- count indictment for violations of R.C. 2925.11, drug abuse, and R.C. 2923.24, possession of criminal tools. He pleaded not guilty on each count. After a jury trial, appellant was found guilty of drug abuse in violation of R.C. 2925.11. The trial court granted appellant's Crim. R. 29 motion for acquittal with respect to count two, possession of criminal tools. Appellant timely appeals his conviction. For the reasons set forth below, we affirm. The facts giving rise to this appeal are as follows: In response to numerous phone complaints, Detectives Richard Cambell and Gilbert Grooms pursued an investigation into drug trafficking at the address of 710 East 123rd Street, a three- story wood frame house which they described as being located in a high drug trafficking area. On October 10, 1989, they began to survey the subject house by parking their unmarked police car a short distance from the house. They watched as large volumes of people went in and out of the house, staying inside no more than two to five minutes. Due to the high volume of pedestrian traffic entering and exiting the house, they suspected narcotics trafficking. - 2 - After about one hour of observation, Det. Cambell approached the house and was asked what he wanted. Cambell replied he wanted a twenty-dollar rock of crack, a pure form of cocaine which resembles rock candy, and was admitted to the house by a man later identified as Bobby Brand. Mr. Brand led Det. Cambell to the second floor of the house, where Det. Cambell purchased a rock for twenty dollars. Det. Cambell left the premises, and the rock sub-sequently tested positive as cocaine. Subsequently, a search warrant was obtained for the upper level of the premises. Thereafter, on October 16, 1989, at 4:00 p.m., Detectives Cambell and Grooms returned to the house to determine whether the suspected drug trafficking was continuing. This time, Detectives Cambell and Grooms observed appellant standing in an open doorway at the back of the house conducting some sort of transaction with another male. Det. Grooms testi- fied they observed suspected drug trafficking for about one hour going on in the front and back of the house. Det. Cambell testified that he attempted to make another buy but was told by Bobby Brand and/or Beverly Goldsby that "this ain't the place." Later that day, at approximately 7:53 p.m., Detectives Cambell and Grooms, other members of their squad, and the SWAT unit of the Cleveland Police Department executed the search war- rant. Both detectives testified that they and their unit re- mained outside the house to secure the outside premises while the SWAT team forcibly entered the premises. Members of the SWAT - 3 - unit detained Bobby Brand and Beverly Goldsby and passed them on to Detectives Cambell and Grooms, who placed them under arrest. Each detective further testified that members of the SWAT team appre-hended appellant between the first and second floor as he attempted to flee up a stairway which leads to his third floor apartment. Thereafter, Det. Cambell found a plastic vial con- taining three rocks of crack cocaine on a landing in the stairway in which appellant was found. The crack cocaine was found near the door which exits to the back of the house. This is the same doorway in which appellant was observed making suspected drug transactions by Detectives Cambell and Grooms. Five hundred thirty-eight dollars was found in appellant's possession at the time of his arrest. However, a consensual search of his third floor apartment revealed nothing further. Based on the above evidence, the jury found appellant guilty of drug abuse in violation of R.C. 2925.11. Appellant timely appeals, raising the following assignments of error: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL WHERE 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 CONSTITUTION. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant contends the evidence presented by the state was insufficient to sustain a conviction of drug abuse. Appellant - 4 - also contends the verdict is against the manifest weight of the evidence. These arguments lack merit. Pursuant to Crim. R. 29(A), the trial court shall not order an entry of judgment of acquittal 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 reason- able doubt. State v. Apanovich (1987), 37 Ohio St.3d 29, 23; State v. Bridgeman (1978), 55 Ohio St. 261. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the court's syllabus, the Ohio Supreme Court recently stated: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evi- dence 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 evi- dence in a light most favorable to the prose- cution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) In reviewing both weight and sufficiency of the evidence, the same test is applied. Jenks, supra, at 278. Moreover, the court noted circumstantial evidence and direct evidence inherent- ly possess the same probative value and, therefore, should be subjected to the same standard. Jenks, supra, paragraph one of court's syllabus. The credibility of testimony and the weight of evidence are primarily matters for the trier of fact. The ver- dict will not be disturbed on appeal unless the appellate court - 5 - finds that reasonable minds could not reach the conclusion reach- ed by the trier of fact. Id., at 273. The drug abuse statute, R.C. 2925.11(A), provides in perti- nent part that no person shall knowingly obtain, possess or use a controlled substance. "Possess" 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 . . .." R.C. 2925.01(L). Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264. While mere presence in the vicinity of contraband is insufficient to establish possession, State v. McCarthey (1971), 30 Ohio App.2d 45, 48, constructive possession will be established where the accused was able to exercise domin- ion or control over the contraband. State v. Wolery (1978), 40 Ohio St.2d 316, 329. Readily usable drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession. See, State v. Pruitt (1984), 18 Ohio App.3d 50, 58. However, the mere fact that contraband is located within premises under one's control does not, of itself, constitute constructive possession. It must also be shown that the person was conscious of the presence of the contraband. State v. Hankerson (1982), 70 Ohio St.2d 87. Thus, where one is the owner or lessee of premises upon which contraband is found, such premises are also regularly occupied by - 6 - others, and the contraband is found in an area accessible to all occupants, possession cannot be imputed to the owner or lessee. State v. Haynes, supra, at 270. In the present case, we conclude the state showed that appellant had constructive possession of the relevant crack cocaine. Both Detectives Cambell and Grooms testified they observed appellant standing in the back doorway conducting sus- pected drug trafficking. Both detectives further testified that appellant was later apprehended by members of the SWAT unit fleeing up the same stairway in which he was observed conducting suspected drug trafficking. Det. Cambell found a vial containing the crack cocaine in the same stairway on the landing where the door exits to the back of the house. This was the same doorway in which appellant was observed conducting suspected drug traf- ficking. Finally, appellant had in his possession five hundred thirty-eight dollars. Accordingly, we hold the evidence presented by the state is sufficient and the verdict is not against the manifest weight of the evidence. Appellant's assignments of error are not well taken. Judgment affirmed. - 7 - 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 Cuyahoga County Court of Common Pleas 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. PATTON, J. BLACKMON, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY 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. .