COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61073 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIE WATKINS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPTEMBER 10, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-254868 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES KENNETH R. CALLAHAN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building MICHAEL A. BEDNAR, ASST. 1370 Ontario Street Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Appellant, Willie Watkins, appeals from his convictions for possession of cocaine and possessing criminal tools. For the reasons set forth below, we affirm. I. Appellant was indicted on April 9, 1990 for one count each of trafficking in drugs in violation of R.C. 2925.03, possession of cocaine in violation of R.C. 2925.11, and possessing criminal tools. Appellant pled not guilty to the charges, and the matter proceeded to jury trial on November 26, 1990. Co-defendants in this matter are Deborah Roundtree and Kevin Johnson. For its case, the state presented the testimony of officers Richard Campbell and Gilbert Grooms of the Cleveland Police Department. Officer Campbell testified that he began investigating the premises at 3405 East 146th Street in Cleveland, in response to citizens complaints of drug activity. Officer Campbell placed the house under surveillance and observed heavy, regular traffic to the back door. Officer Campbell testified that people would generally stay for only a few minutes. In furtherance of his investigation, Office Campbell set up a controlled purchase with a confidential informant. Officer Campbell testified that the informant purchased a small quantity of a substance which proved to be cocaine. - 3 - Officer Campbell's testimony continued that on April 9, 1990, he and other officers from the Cleveland Police Department executed a search warrant for the premises. Upon entering the premises, Officer Campbell observed appellant and two co- defendants in a rear bedroom. Officer Campbell testified that appellant was found sitting on a bed with a loaded, cocked .45 caliber Colt weapon next to him. This bed was three feet from a dresser on which ten rocks of crack cocaine were found in plain view. Also recovered from the room were various pieces of drug paraphernalia, vials, and marijuana. Finally, Officer Campbell testified that the house belonged to Robert Blinky. The state's second witness, Officer Grooms testified that he participated in the search of the premises at 3405 East 146th Street. Officer Grooms observed appellant and the two co- defendants in the bedroom at the time the search was initiated. Further, Officer Grooms testified that Officer Campbell was the first man to enter the premises after Grooms had opened the door. Officer Grooms' testimony continued that in conducting the search, he uncovered $262.00 in the purse of co-defendant Roundtree, and approximately 20 items of drug paraphernalia throughout the house. Finally, Office Grooms testified that some of the recovered vials contained cocaine residue. At the close of the state's case, appellant moved for acquittal pursuant to Crim. R. 29. That motion was denied. - 4 - Three witnesses testified in defense of this matter. They were: co-defendant Deborah Roundtree; Robert Blinky; and Richard Mitchell. Roundtree testified that she was on the premises because co- defendant Kevin Johnson was doing repair work on her automobile, which was parked in the driveway. Roundtree further testified that while in the house she left her purse on the kitchen table. Roundtree testified that the police searched her purse once, uncovering nothing, but searched it a second time and uncovered $230.00. Finally, Roundtree testified that Kevin Johnson was also doing repair work on a vehicle owned by appellant. Blinky testified that he is the owner of the searched premises. Blinky admitted that he is the owner of the .45 caliber Colt, and that it was loaded but was not cocked at the time of the search. Further, Blinky admitted that five of the rocks of cocaine found in the house belong to him. Finally, Blinky stated that he hid $230.00 in Roundtree's purse after the police initially searched it. Mitchell testified at length about the activities that he and co-defendant Johnson undertook on the day of the search. Mitchell further testified that he and Johnson were auto mechanics and were working on appellant's car shortly before the police broke into the house. After the defense rested, appellant renewed his motion for acquittal. It was, once again, denied. - 5 - After deliberating, the jury returned verdicts of guilty of possession of cocaine and guilty of possessing criminal tools and not guilty of trafficking in drugs. Appellant was then sentenced to one year incarceration for possession of cocaine and a suspended one year sentence for possessing criminal tools. This appeal timely follows. II. For his first assignment of error, appellant contends that the trial court erred in denying his motion for acquittal that was made pursuant to Crim R. 29. A motion for judgment of acquittal is governed by Crim R. 29(A), which provides: "The court on motion of a defendant or on its own motion, after the evidence on either side 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. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." A court shall not order an entry of judgment of acquittal made pursuant to this rule if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. In addition, the trial court in ruling on a Crim. R. 29(A) motion for acquittal must view the probative evidence in a light - 6 - most favorable to the state, and determine whether the state presented sufficient evidence on each of the essential elements of the offense charged. State v. Martin (1983), 20 Ohio App. 3d 172. In the instant case, the key element of each conviction is possession. Appellant contends that the evidence of possession is circumstantial and not irreconcilable with reasonable theories of innocence. In the recent case of State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court held: "when the state relies on circumstantial evidence to prove an element of the offense charged, there is no requirement that the evidence must be irreconcilable with any reasonable theory of innocence in order to support a conviction." Id. at 273. Rather, the court determined 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 guilty beyond a reasonable doubt. Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts." (Citations omitted.) Id. Possession is defined by R.C. 2901(C)(1), which provides as follows: - 7 - "(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have ended his possession." 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 dominion or control over the contraband. State v. Wolery (1976), 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. In this case, ten rocks of crack cocaine were found on a dresser just three feet from where appellant was sitting. Although five were apparently "claimed" by Blinky, possession of the other five has not been established by direct evidence. Further, police observed appellant in the room immediately upon entering the house. A .45 caliber Colt pistol was found on the bed next to appellant. Drug paraphernalia, vials, and marijuana were also found in the room. Additional evidence uncovered by the police determined that some of the twenty drug paraphernalia items recovered in the house contained cocaine residue, and a previous under cover purchase of cocaine had been recently made. Surveillance by - 8 - police indicated a great amount of drug trade taking place at that address. Finally, approximately $362.00 in cash was recovered from a co-defendant's purse. Construing the evidence in favor of the prosecution as the law mandates, we find that a rational trier of fact could have found that appellant possessed both cocaine and the firearm beyond a reasonable doubt. Appellant's first assignment of error is overruled. III. For his second assignment of error, appellant contends that the trial court erred in failing to permit the admission of evidence concerning Blinky's guilty pleas for possession of cocaine and possessing criminal tools. Appellant contends that the admission of evidence of Blinky's guilty plea rest upon a question of relevancy. Evid. R. 401 provides: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173. Absent a showing that the trial court abused its discretion in preventing the jury from hearing testimony about Blinky's guilty pleas, this court cannot reverse the judgment. - 9 - The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. In re Adoption of Charles B (1990), 50 Ohio St.3d 88, 94. See, also, State v. Adams (1980), 62 Ohio St. 2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In the instant matter, the jury was permitted to hear evidence that Blinky admitted owning five of the ten rocks of crack cocaine, and the .45 caliber Colt. Blinky admitted that the pistol was loaded and operational. The jury was also permitted to hear evidence that Blinky was not in the room with the three defendants when the raid took place. Based upon the foregoing, we do not think that the trial court "abused its discretion" in prohibiting testimony of Blinky's guilty pleas. Appellant's second assignment of error is overruled. Judgment affirmed. - 10 - 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 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. DAVID T. MATIA, C.J., and LEO M. SPELLACY, J., CONCUR. JUDGE JOHN F. CORRIGAN 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. .