COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61089 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES NELLEMSBEY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 1, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-238870 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOSEPH V. HOFFER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: RUTH J. HUDSON, ESQ. 1700 Terminal Tower Cleveland, Ohio 44113 - 2 - ANN McMANAMON, J.: Charles Nellemsbey timely appeals his convictions for two counts of drug trafficking (R.C. 2925.03[A][2] & [4]) and one count of possession of criminal tools (R.C. 2923.24). The defen- dant raises two assignments of error challenging the sufficiency and manifest weight of the evidence. Upon review of the record, we affirm. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each mate- rial element of an offense was proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259; Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App.3d 172. As the Martin court stated: The court, reviewing the entire record, weighs the evidence and all reasonable infer- ences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be re- versed and a new trial ordered. The discre- tionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. at 75. (Citations omitted.) - 2 - We are mindful that evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. R.C. 2925.03 provides in relevant part: (A) No person shall knowingly do any of the following: * * * (2) Prepare for shipment, ship, trans- port, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reason- able cause to believe such drug is in- tended for sale or resale by the offen- der 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; *** Possession of criminal tools is prohibited by R.C. 2923.24, which states in pertinent part: (A) No person shall possess or have under his control any substance, device, instru- ment, or article, with purpose to use it criminally. (B) Each of the following constitutes prima- facie evidence of criminal purpose: * * * (3) Possession or control of any sub- stance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. - 3 - Nellemsbey's convictions stem from a police raid on a drug operation at 13312 Second Avenue in East Cleveland on April 13, 1989. At that time, police arrested Robert Johnson and seized sixty-four individually packaged rocks of cocaine, $335 from a table and floor in the apartment, and $887 from Johnson's person. Johnson testified he went to Apartment 2 at the Second Ave- nue address on April 9, 1989 to buy cocaine. He met his cousin, Corrine, and Charles Nellemsbey at the apartment. The next day, Johnson received a phone call from Nellemsbey. The defendant told Johnson to go to the Second Avenue apartment where he would find rocks of cocaine on a table to sell. According to Johnson, Nellemsbey agreed to pay him $300-$400 a week for selling the cocaine. Johnson went to the apartment and sold cocaine for $15 a package on April 11 and 12. Johnson averred he left the money from the sales on a table in the apartment. On April 13, police arrested Johnson at the Second Avenue address. Johnson told the jury that the $887 police took from him was his income tax money. He also denied police found sixty-four rocks of cocaine and claimed the police added to the fifteen to twenty rocks present in the apartment at the time of his arrest. Finally, Johnson testified he believed the apartment belonged to Cornell Bailey, who also sold cocaine from that location. Robert Miller told the jury he met Nellemsbey at a bar some- time before April, 1989. The two men discussed drug sales, and - 4 - Miller agreed to work for Nellemsbey selling cocaine. According to Miller, Nellemsbey prepared the drugs for sale at a house called "The Hill" and then brought the cocaine to the Second Avenue apartment. Miller worked for Nellemsbey from 9:00 a.m. to 4:00 p.m. for three to four months from the apartment and was paid $300-$500 a week. Miller testified he left the money from the drug sales in the apartment for the defendant. Miller also averred he observed Nellemsbey sell drugs. Cornell Bailey, the custodian for the Second Avenue build- ing, testified he rented Apartment 8 to Nellemsbey and a woman named Corrine. Nellemsbey later was evicted from this apartment, but Corrine moved into Apartment 2 where the defendant visited her once to twice a week. Bailey stated that there was a lot of traffic in and out of both apartments and that he once purchased cocaine from the defendant. Bailey also testified he lived in Apartment 2 before Corrine rented it. Charles Nellemsbey denied he ever brought cocaine into the Second Avenue apartment building. The defendant explained he merely dated women who lived in the building. We reject Nellemsbey's challenge to the sufficiency and man- ifest weight of the evidence. The state presented evidence that Nellemsbey prepared drugs for sale, delivered them to the Second Avenue apartment and hired individuals to consummate the sales. On April 13, 1989, Johnson worked for Nellemsbey selling drugs which the police confiscated. The defendant argues Johnson did - 5 - not actually know for whom he was working at that time. The re- cord, however, demonstrates Johnson met the defendant on April 9 at the Second Avenue apartment. Johnson testified he recog- nized the defendant's voice in a phone call the following day. During this call, the defendant instructed Johnson on how to con- duct the drug sales from the apartment. Robert Miller corrobo- rated Johnson's testimony that Nellemsbey ran the drug operation. Finally, both men testified that receipts from the drug sales were left on the table for the defendant. Based upon this evi- dence, a jury reasonably could find Nellemsbey guilty of drug trafficking and possessing the money found in the apartment as a criminal tool. Accordingly, the defendant's first and second assignments of error are overruled and the trial court's judgment is affirmed. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. 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. DYKE, P.J. KRUPANSKY, J. CONCUR JUDGE ANN McMANAMON 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 her- eof, 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. .