COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61051 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION KEVIN JOHNSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 254868. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael A. Bednar Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Lawrence G. Sheehe, Jr. 668 Euclid Avenue, #100-A Atrium Office Plaza Cleveland, Ohio 44114-3041 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Kevin Johnson appeals his convictions for possession of cocaine, in violation of R.C. 2925.11 and for possession of criminal tools (money and firearm) in violation of R.C. 2923.24. Appellant was sentenced to a term of three to five years incarceration for each conviction, to run concurrently. On April 9, 1990, appellant and eight other individuals were arrested at a house located at 3405 East 146th Street, Cleveland, Ohio. Of these nine, five were indicted for trafficking in drugs, possession of drugs, and possession of criminal tools. The five were Deborah Roundtree, Willie Watkins, Robert Blinkey, Eric Robinson, and the appellant. Blinkey and Robinson pled guilty, and Roundtree, Watkins and appellant were tried together. The residence where appellant was arrested was owned by Blinkey. The State presented the testimony of two Cleveland Police Officers who effected the arrests. Officer Richard Campbell stated that an investigation of the house on East 146th Street began when the department received a complaint of drug trafficking. The investigation included surveillance and a controlled drug buy with a confidential, reliable informant. After conducting this investigation, a search warrant was obtained on April 5, 1990, and executed on April 9, 1990. At that time, six to eight police officers entered the premises through the rear door. Officer Campbell was the first to enter. - 3 - As he entered, he made his way through the house, telling the occupants to drop to the floor. The second room he entered was a bedroom occupied by appellant, Roundtree and Watkins. In this bedroom, a loaded Colt .45 automatic weapon was on the bed, and ten rocks of cocaine were on the dresser. Officer Campbell also testified that he directed photographs be taken in the bedroom where appellant was located. State's Exhibit 1 depicts the gun on the bed, and State's Exhibit 2, the rocks of cocaine on top of a dresser. The officer stated that the pictures were a fair and accurate representation of the scene as he observed it at the time. (T. 53.) In addition, throughout the house the police found other drug paraphernalia. On cross examination, Officer Campbell stated that the residence belonged to Mr. Blinkey, and that Mr. Blinkey had indicated that the gun found on the bed belonged to him. On redirect, the officer indicated the sum of $233.00 was found in Ms. Roundtree's purse. The next witness for the State was Cleveland Police Officer Gilbert Grooms. The testimony of Officer Grooms closely corroborated that of Officer Campbell. He stated that he was "the door man," (T. 92) and followed Officer Campbell into the residence. Officer Grooms identified the three defendants as being present in the bedroom with the gun and cocaine. The defendants were searched for weapons and then taken into the living room area. The home was systematically searched, and - 4 - approximately twenty items of drug paraphernalia were found. He also stated that $262.00 was confiscated from Ms. Roundtree's purse. The next witness was Ms. Roundtree, who took the stand on her own behalf. As it pertains to appellant, Ms. Roundtree testified that: between 4:30 and 5:00 p.m. she had seen appellant at a gas station; that she asked him to repair her car tail light; that he told her to bring her car to East 146th Street and Kinsman that evening and he would fix her car. Ms. Roundtree stated that she had never been to that address before, and did not know anyone who lived there. When she arrived, appellant was outside of the residence working on a car. At some point she entered the house and sat at a table. After twenty minutes or so, she went to the restroom, and left her purse on the table. On her way back to the table, she spoke to appellant who was standing in the hall, near the doorway to the back bedroom. A man she did not know was in the bedroom and was speaking to the appellant. They were discussing how long it would be before the appellant could begin work on her vehicle when the police entered the house. They were pushed into the bedroom and told to get down. (T. 165, 166.) Ms. Roundtree was handcuffed and placed against the wall. Although her purse was searched and returned to her, nothing was confiscated. She was then moved into the living room. - 5 - While in the living room, a man also in custody, and later identified as Blinkey, began asking her questions about her purse. He wanted to know if the police had searched her purse, and whether or not anything was found. When she responded "no," Mr. Blinkey asked the police to search the purse again. Ms. Roundtree wanted to know why, and Blinkey responded that he had placed money and a bill in her purse. He directed the police to search a zippered compartment and they found $230.00. Ms. Roundtree also testified that appellant and Mr. Watkins were not in the back bedroom, but rather were in the middle bedroom. She, appellant and Watkins were pushed into the back bedroom by the police officers while they were conducting their search. The next witness was Mr. Blinkey. He testified that he owned the house at 3405 East 146th Street, and lived there with his brother. He stated that he is on general relief but works on cars in his yard; that on April 9th, appellant was at his house working on Watkins' car; that there were other people in the house; that after appellant and Watkins finished working on Watkins' car they entered the house; that Ms. Roundtree arrived to have her car repaired; that he did not previously know Ms. Roundtree; that when Watkins and appellant entered the house they were discussing payment and because of the noise from the other guests, he directed them to the middle bedroom. - 6 - Mr. Blinkey further testified that Ms. Roundtree went to the restroom; that he closed the back bedroom door; that he did not want anyone to go into the back bedroom; that he had five rocks of cocaine and a gun in that room; that the .45 gun was his; that the gun was on the bed and the cocaine was on the dresser. Blinkey also stated that he had $230.00 on top of the refrigerator in order to pay the gas bill, cable bill, water bill and sewage bill. Because of all of the people in the house, he placed the money in what he believed to be his girlfriend's purse. On behalf of appellant, Mr. Richard Mitchell took the stand. Mr. Mitchell testified that he is appellant's cousin and in the past has worked with appellant repairing cars. Mr. Mitchell was working with appellant on Mr. Watkins' car on the night in question. He was also with the appellant earlier in the day when Ms. Roundtree asked appellant to repair her tail light. At the time the police arrived, he was seated, alone, in the front room of the house. After deliberation, the jury acquitted all three defendants on the charge of drug trafficking, but returned a guilty verdict as to all three on the charges of possession of drugs and possession of criminal tools. The appellant sets forth seven assignments of error. Appellant's first assignment of error. I - 7 - THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE. Appellant argues that as the search warrant was not properly executed, the fruits of the search were obtained illegally, and should have been excluded under Mapp v. Ohio, 367 U.S. 643 (1961). The search warrant was requested on April 5, 1990, but not executed until April 9, 1990. Both R.C. 2933.24 and Crim. R. 41(C) mandate that the search warrant be returned within three days. As appellant points out, more than three days elapsed between April 5 and April 9, 1990. However, two of the intervening days were Saturday and Sunday. This court dealt with this very issue in State v. Hudson (November 25, 1987), Cuyahoga App. No. 54274, and held that the time computation set forth in Crim. R. 45 applied to Crim. R. 41. Appellant argues that the Hudson court did not consider R.C. 2933.24. We find appellant's argument without merit. Crim. R. 45 states: RULE 45. Time (A) Time: computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, - 8 - Sundays,and legal holidays shall be excluded in computation. (Emphasis added.) Crim. R. 45 applies to R.C. 2933.24, and the search of the residence owned by Mr. Blinkey was proper. Therefore, the evidence obtained was admissible at trial. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN RESTRICTING DEFENSE COUNSEL IN THEIR ATTEMPTS TO QUESTION CO- DEFENDANT ROBERT BLINKEY REGARDING HIS PLEA OF GUILTY TO THE ACTS SET FORTH IN THE INDICTMENT. Appellant refers to several instances where the trial court either sua sponte or after objection prohibited Mr. Blinkey from responding to the cross examination of appellant's counsel. The rulings appellant specifically objects to are as follows: CROSS-EXAMINATION OF ROBERT BLINKEY BY MR. SHEEHE: Q. Mr. Blinkey, what happened to you that night? THE COURT: I don't know that that's relevant. Let's move on to something else, Mr. Sheehe, if it relates to your client. (T. 203.) * * * * Q. And you lived there 33 years, so you would know. Now, why did you tell Mr. Johnson and Mr. Watkins to leave the room? THE COURT: We have been into that once, Mr. Sheehe. Go to something else. (T. 200.) - 9 - * * * * Q. The night of the arrest were you taken away? A. Yes. Q. Were you indicted in this crime? A. Yes. Q. Are you still awaiting trial on this crime? MR. BEDNAR: Objection. THE COURT: Sustained. Go to something else, Mr. Sheehe. Q. Are you here testifying today under a subpoena? MR. BEDNAR: Objection. THE COURT: Sustained. Q. Why did you come here today? MR. BEDNAR: Objection. THE COURT: Sustained. Q. Have you testified truthfully today, Mr. Blinkey? MR. BEDNAR: Objection. THE COURT: Sustained. MR. SHEEHE: No further questions, judge. THE COURT: Mr. Bednar. MR. BEDNAR: Thank you, your Honor. (T. 210-211.) These questions were apparently intended to establish the credibility of the witness, and we find no theory under which - 10 - they should have been excluded. A cross-examiner may ask questions for which there is a good faith belief that a factual predicate for the question exists. State v. Gilliard (1988), 40 Ohio St.3d 266. However, the admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Jacks (1989), 63 Ohio App.3d 200, syllabus 9. Absent a showing that the exclusion of this testimony prejudiced the appellant, the error of the trial court was harmless. Harmless evidentiary error is not grounds for reversal or retrial. Appellant's second assignment of error is overruled. Appellant's third and fourth assignments of error will be considered together. III THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE, OVER THE OBJECTION OF DEFENSE COUNSEL, CERTAIN PHOTOGRAPHS, THE RELEVANCE OF WHICH WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. IV THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE, OVER THE OBJECTION OF DEFENSE COUNSEL, CERTAIN UNFAIRLY PREJUDICIAL PHOTOGRAPHS, WITHOUT TESTIMONY FROM THE PURPORTED PHOTOGRAPHER, THUS DENYING APPELLANT THE RIGHT TO CONFRONT WITNESSES AGAINST HIM, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellant objects to the admission into evidence the photographs depicting the gun on the bed and the cocaine on the dresser. - 11 - Evid. R. 901 sets forth the requirements for the authentication of evidence. Authentication is a condition precedent to admissibility. In the case sub judice, Officer Campbell testified that he saw the .45 Colt handgun on the bed, and the cocaine on the dresser. (T. 42.) As to the photographs, the officer testified that the exhibits were a fair and accurate representation of the scene as he observed it on April 9, 1990. (T. 53.) This testimony was sufficient to authenticate the photographs for admission into evidence. Appellant also argues that these photographs are so prejudicial that under Evid. R. 403 they should have been excluded. We disagree. In State v. Watson (1991), 61 Ohio St.3d 1, the court held the admission of photographs is within the trial court's discretion. These photographs were not so prejudicial to the appellant so as to constitute an abuse of discretion. See, also, State v. Franklin (1991), 62 Ohio St.3d 118 at 125. The appellant does correctly point out that Crim. R. 26 would prohibit the substitution of a photograph taken of a weapon as evidence in place of the weapon itself. However, in this instance there was no need of any photographs to prove the essential elements of either possession of cocaine, or possession of criminal tools. Since the photographs were merely corroborative evidence, no reversible error was committed by the trial court in allowing their admission. - 12 - Appellant's fifth assignment of error. V THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTIONS FOR ACQUITTAL PURSUANT TO OHIO RULE OF CRIMINAL PROCEDURE 29. The test for sufficiency of review is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, as follows: Pursuant to Crim. R. 29(A), a 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 reasonable doubt. Appellant argues that insufficient evidence was presented to support a conviction of possession of cocaine. R.C. 2925.11(A) states that no person shall knowingly obtain, possess or use a controlled substance. Possession is defined in R.C. 2925.01(L) as: (L) "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 constrictive, Moss, supra, and as previously stated, the prosecution in this case had the burden of proving appellant constructively possessed the cocaine. The testimony presented by the State revealed that appellant was one of three persons in a bedroom where a loaded gun lay on the bed and ten rocks of cocaine were on the dresser. The owner - 13 - of the residence testified that only five of the ten rocks of cocaine belonged to him. After viewing all of the probative evidence and inferences drawn therefrom in the light most favorable to the prosecution, a rational trier of fact could have found all of the essential elements beyond a reasonable doubt. State v. Martin (1983), 20 Ohio App.3d 172. Stated conversely, the evidence was not so slight or of so little probative value that reasonable minds must have had reasonable doubts as to the guilt of the appellant. Bridgeman, supra. Appellant's fifth assignment of error is overruled. Appellant's seventh assignment of error will be dealt with next. VII THE TRIAL COURT ERRED IN INSTRUCTING THE JURY, OVER THE OBJECTION OF DEFENSE COUNSEL, ON THE ISSUE OF "AIDING AND ABETTING." The offenses charged against the appellant involved possession. In State v. Moss (May 10, 1990), Cuyahoga App. No. 56889, this court held: Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264; State v. Bailey (April 20, 1987), Cuyahoga App. No. 51968, unreported. ... One constructively possesses drugs by exercising dominion and control over them, even though they are not in one's physical possession. State v. Wolery (1976), 46 Ohio St.2d 316, certiorari denied, 429 U.S. 932; State v. Pruitt (1984), 18 Ohio App.3d 50; - 14 - Bailey, supra; State v. Hannik (Nov. 22, 1989), Cuyahoga App. No. 56082, unreported. The Supreme Court has held that knowledge of illegal goods on one's property is sufficient to show constructive possession. State v. Hankerson (1982), 70 Ohio St.2d 87, certiorari denied 459 U.S. 870; State v. Pearson (Mar. 17, 1983), Cuyahoga App. No. 44550, unreported. Where there is no indication that the defendant owned or leased the room, evidence of his proximity to the drugs alone is not enough to constitute sufficient evidence of possession. Haynes, supra; Pruitt, supra; Bailey, supra; Pearson, supra. Under the facts in the case sub judice, the prosecution had the burden to prove the appellant had constructive possession of drugs and criminal tools. Mere access is not enough. The trial judge charged the jury on the crime of aiding and abetting, or complicity. Complicity is defined in R.C. 2923.03 as follows: 2923.03 Complicity. (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; (4) Cause an innocent or irresponsible person to commit the offense. - 15 - The prosecution presented no evidence that the appellant, acting with the kind of culpability required to commit the crimes of possession of drugs (R.C. 2925.11) or possession of criminal tools (R.C. 2923.24), either solicited or procured another to commit those offenses; aided or abetted another to commit those offenses; conspired with another in violation of R.C. 2923.01; or caused an innocent or irresponsible person to commit either of those offenses. Absent proof of complicity, the trial court committed error in charging the jury on the issue of aiding and abetting. Appellant's seventh assignment of error is well taken. Appellant's sixth assignment of error. VI THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Pursuant to App. R. 12, this assignment of error is moot. Judgment is reversed and remanded for a new trial. - 16 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) his 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. ANN McMANAMON, P.J., CONCURS; SARA J. HARPER, J, DISSENTS, WITH DISSENTING OPINION ATTACHED. 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61051 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION KEVIN JOHNSON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: HARPER, J., DISSENTING: I respectfully dissent from the majority's resolution of this case. In a review of the case, I find that the trial court did err in failing to grant appellant's motion for acquittal pursuant to Crim.R. 29. The record fails to establish nothing more than that appellant was merely present in a room where police officers discovered rocks of cocaine and a gun. There was no evidence presented which leads one to conclude that appellant exercised dominion or control over either the drugs or the gun. Hence, reasonable minds could come to but one conclusion, that appellant - 2 - who neither owned nor leased the house or lived there, was merely present in a room where police officers discovered rocks of cocaine and a gun. I would have thus sustained appellant's fifth assignment of error, which would warrant the reversal of his conviction. .