COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61131 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DEBORAH J. ROUNDTREE : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court CR-254868 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL A. BEDNAR, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: LARRY W. ZUKERMAN Greene & Hennenberg 801 Bond Court Building Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Defendant appeals from her convictions for possession of cocaine, R.C. 2925.11, and possession of criminal tools, R.C. 2923.24. The relevant facts follow. Members of the Cleveland Police Department had the house at 3405 East 146th Street under surveillance for a week before April 9, 1990 because of complaints of drug trafficking and during that time observed activity at that location indicative of drug trafficking. Therefore, on April 9, 1990, at approximately 10:00 p.m. and after another forty-five minute period of surveillance, a search warrant was executed at the residence. The officers entered the residence through its back door. Det. Callahan entered first, followed by Patrolman Grooms. Upon their entry both officers could see into a bedroom located at the rear of the residence on their right. Therein, the officers saw three persons, one of whom was defendant. The others were later identified as Willie Watkins and Kevin Johnson. When the officers entered the residence, defendant and the others in the room were "stationary." Defendant was "off to the left- hand side of the bed," standing "in the area of" a "doorway" that went "into the next room." One man was on the "right-hand side of the bed," the other was "to the far left of the bed by the door." The officers told the three in the bedroom to "freeze." Ptl. Grooms then "secured" them while Det. Callahan proceeded - 3 - through the rest of the house. While he was searching the three people in the bedroom and informing them of their rights, Ptl. Grooms saw in plain view "a loaded .45 automatic on the bed with the hammer cocked back" and on the dresser the following items: 1 (1) ten rocks of crack cocaine ; (2) a small dish containing what appeared to be marijuana and PCP residue; (3) suspected marijua- na; and (4) a vial containing what appeared to be PCP. Thereafter, Ptl. Grooms conducted the three people found in the rear bedroom to the living room area where his colleagues had assembled the other persons found in the house. Ptl. Grooms then made an inventory of items found in the house. A search of defendant's purse revealed it contained money in the amount of approximately $230. The owner of the residence, a Mr. Blinkey, told Ptl. Grooms he owned the gun the officer found on the bed in the rear bedroom. At that time several people found in the house by the officer, including defendant, were arrested. 2 Defendant was subsequently indicted with four others on three counts. In relevant part, count one of the indictment, viz., violation of R.C. 2925.03, stated as follows: "knowingly did prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a controlled substance, to wit: Cocaine, Schedule II drug, knowing or having reasonable cause to 1 The weight of these rocks of cocaine was stipulated at trial to be 1.28 grams. 2 The other defendants were the following: Eric Robinson, Willie Watkins, Robert Blinkey and Kevin Johnson. - 4 - believe that such drug was intended for sale or resale by the 3 offender or another." (Emphasis added.) Count two of the indictment alleged violation of R.C. 2925.11, possession of cocaine in less than the bulk amount. Count three alleged violation of R.C. 2923.24, possession of criminal tools, i.e., 4 money and firearms. Defendant pled not guilty to the charges at her arraignment. Eventually two of defendant's co-defendants, Blinkey and Robinson, entered pleas of guilty to the charges of the indict- ment. Therefore, the case proceeded to trial by jury against defendant and the two others found with her in the rear bedroom of the house at 3405 East 146th Street, viz., Willie Watkins and 5 Kevin Johnson. As its case-in-chief, the state presented the testimony of Det. Callahan and Ptl. Grooms. The state also introduced the following into evidence: (1) photographs taken by the police of items seized in the residence as a result of the execution of the search warrant; and (2) drugs and drug-related items found in the residence during the execution of the search warrant. However, the gun the officers testified they saw on the bed near the 3 A violation of R.C. 2925.03 is commonly referred to as "trafficking in drugs." 4 The three counts all contained a violence specification for co-defendant Johnson's previous conviction for an offense of violence. 5 Prior to trial, defense counsel stipulated to Mr. Johnso- n's previous conviction for an offense of violence. - 5 - defendants was not produced at trial. At the close of the state's evidence all the defendants made motions for acquittal pursuant to Crim. R. 29. The trial court overruled the motions. Defendant then testified on her own behalf. Defendant stated that on the morning of April 9, 1990, she had just ob- tained a divorce from her husband. She testified that in the afternoon she "went for a ride" in her car. She further stated that at about 5:00 p.m. she saw co-defendant Johnson, a friend of her former husband, at a gas station. Defendant testified she informed Johnson she was having trouble with the rear tail light on her car. Johnson then told her "he was working on somebody's car on 146th and Kinsman, and he gave me directions if I want to come by and he will try to fix it." Defendant testified she then returned home; however, at approximately 7:30 p.m., she "left out again." Defendant stated that while driving she was stopped by the police and given a warning about her car's tail light, so she determined to go to the address Johnson had given her to have Johnson repair it. Defendant testified that when she arrived at the address, Johnson was working on a car in the driveway. Defendant testi- fied Johnson was alone. She stated she talked to Johnson for a time but began to feel cold, so Johnson told her she could wait in the house. She then went into the house, sat down at a table in the "rec area," and began a conversation with a woman in the kitchen. She also saw some people sitting on a couch. After - 6 - "about 20 minutes," defendant asked to use the bathroom. She testified she left her purse on the table because there was nothing of value in it. When she emerged from the bathroom, she saw Johnson "standing in the doorway" of one of the bedrooms "talking to someone" she later learned was Watkins. She testi- fied she was speaking to Johnson about the tail light on her car when "the police came in and told everybody to hit the floor." Defendant denied that either she, Johnson or Watkins were in the rear bedroom where the gun and drugs were seen. Defendant testified the officers then pushed "everybody" into the rear bedroom. Defendant stated that once there she was "put on the floor against the wall" where she began "crying" and "telling the officer to find my purse, my I.D., that I was going to school and I was here to get my car fixed." She testified the officer then searched her purse; he "dumped" its contents "on the bed," "made a split" in the wallet and "looked all through it." Defendant then stated she was "carried" to the "big room", i.e., the "rec area" where the other people were and her purse was placed in her lap. Defendant testified she sat on the floor for a while, was then taken to the rear bedroom where she was searched again by a policewoman, and was thereafter returned to the rec area. She stated that at that time she was seated by Blinkey, the owner of the house. She testified Blinkey asked her if her purse had been searched; when she replied that it had and nothing had been - 7 - found, Blinkey told her he had "put some money" in her purse. She further stated Blinkey then "told the officer to search my purse again" and "told them where to look." She stated that it was at this point that the officers found the $230 in her purse. Defendant further testified she did not see any drugs or vials in the house. Following her own testimony, defendant also presented as witnesses two others, viz., (1) Blinkey, and (2) defendant Johnson's cousin, Mr. Mitchell, who stated he was also in the house at the time of the execution of the search warrant. At the conclusion of defendant's case, all the defendants renewed their Crim. R. 29 motions for acquittal. The trial court overruled the motions. The court then permitted the parties to make their final arguments. Thereupon, the trial court gave its instructions to the jury. Included in the charge was the follow- ing: Now, I have defined for you, ladies and gentlemen, by statute the definition of each of these particular crimes. You are further instructed, as to all of the indictments and all of the counts as follows, in this case if you find that any defendant knowingly or purposely aided, helped, assisted, encouraged, directed or acted in concert with any other per- sons for the purpose of committing a crime, then that individual is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constituting the offense. This is true even if one of these defendants was not physically present at the time the crime was committed. - 8 - The law is when two or more persons have a common purpose to commit crime, and one does one part and a second performs another part, those acting together are equally guilty of the crime. This is known as the law of aiding and abet- ting. You must apply this instruction to all of the crimes in each of the cases that are before you. (Emphasis added.) All the defendants objected to this charge. Subsequently as to all the defendants, the jury returned the following verdict: not guilty of count one, viz., R.C. 2925.03, trafficking in drugs; guilty of counts two and three, viz., R.C. 2925.11, possession of cocaine, and R.C. 2923.24, possession of criminal tools. Defendant was immediately sentenced to a six month term of incarceration on each count, the terms to be served concur- rently. Sentence was suspended on count two. Defendant was also placed on three years' probation to begin after her release from incarceration. Defendant filed a timely appeal from her convictions and presents this court with three assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS For ACQUITTAL PURSUANT TO RULE 29 OF THE RULES OF CRIMINAL PROCEDURE BECAUSE EVIDENCE OF THE APPELLANT'S MERE PRESENCE IN AN AREA WHERE ILLICIT DRUGS, A FIREARM AND CASH ARE SEIZED IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR DRUG ABUSE AND POSSESSING CRIMINAL TOOLS. This assignment of error lacks merit. - 9 - Defendant argues the state presented insufficient evidence to sustain her convictions; hence, the trial court erred in overruling her Crim. R. 29 motions for acquittal. In support of her first assignment of error, defendant argues extensively concerning her testimony at trial; however, this is not pertinent to the assigned error, which is addressed solely to the suffi- ciency of the state's evidence. State v. Martin (1983), 20 Ohio App. 3d 172. In State v. Apanovitch (1987), 33 Ohio St. 3d 19, the court stated the following: "a motion or judgment of acquittal under Crim. R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." (Citations omitted; emphasis added.) Moreover, the court in State v. Martin (1983), 20 Ohio App. 3d 172, 175, stated the test as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reason- able doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. (Citations omitted; emphasis added.) A challenge to the sufficiency of evidence, therefore, requires this court view the evidence presented in the light most favorable to the prosecution and determine whether a rational fact finder could have found all the material elements of the - 10 - offense beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. Defendant was charged in count two with violation of R.C. 2925.11, possession of cocaine, which states in pertinent part the following: 2925.11 Drug abuse. (A) No person shall knowingly obtain, possess, or use a controlled substance. In addition, defendant was charged in count three with violation of R.C. 2923.24, possession of criminal tools, which provides in pertinent part as follows: 2923.24 Possessing criminal tools. (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitute prima- facie evidence of criminal purpose: (1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circum- stances indicating such dangerous ordnance, mate- rials, or parts are intended for legitimate use; * * * (3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intend- ed for criminal use. Defendant specifically contends the state presented insuffi- cient evidence that she "possessed" any of the incriminating - 11 - articles found by the officers, viz., the drugs, the gun or the money. Possession is defined in R.C. 2925.01(L) as follows: (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 constructive. State v. Haynes (1971), 25 Ohio St. 2d 264. In the case sub judice, the state presented evidence of defendant's constructive possession of the drugs and the gun and her actual possession of the money. Although the mere presence of defendant at the residence in which contraband is discovered is insufficient to support a conviction for possession, Haynes, supra, at 270, however, if the evidence demonstrates defendant was able to exercise dominion or control over the objects defendant can be convicted of posses- sion. State v. Wolery (1976), 46 Ohio St. 2d 316. Furthermore, where a sizable amount of readily usable drugs are in close proximity to defendant, this constitutes circumstantial evidence to support the conclusion that defendant was in constructive possession of drugs. State v. Pruitt (1984), 18 Ohio App. 3d 50; State v. Braxton (Jan. 18, 1990), Cuyahoga App. No. 56269, unreported; State v. Walker (Oct. 15, 1987), Cuyahoga App. Nos. 52475 and 52486, unreported. The same reasoning applies to the discovery of other contraband in close proximity to defendant. State v. Franklin (July 27, 1989), Cuyahoga App. Nos. 55604 and - 12 - 55684, unreported; State v. Bailey (Apr. 9, 1987), Cuyahoga App. No. 51968, unreported. Circumstantial evidence alone is sufficient to support the element of constructive possession. State v. Braxton, supra; State v. Jenks (1991), 61 Ohio St. 3d 157; State v. Lavender (Mar. 12, 1992), Cuyahoga App. No. 60493, unreported. In the case sub judice, although there was no evidence that defendant was a "frequent guest" at the residence, the state presented the following evidence: (1) the house had been under surveillance for a period of a week before the "raid" based upon complaints of drug trafficking and was a place where people were coming to make purchases of crack cocaine; (2) a "controlled buy" had occurred just prior to the execution of the search warrant; (3) defendant was in the house and had been in the house for some period of time prior to the execution of the search warrant; (4) defendant was apprehended in a bedroom where drugs, drug-related items and the gun were located; (5) the drugs and drug-related items were readily usable, numerous and in plain view, (6) the gun was on the bed in plain view; and (7) a large amount of money, viz., at least $230, was found in defendant's purse. On facts such as these, this court has held there was sufficient evidence of actual and constructive possession of contraband. State v. Braxton, supra; State v. Bailey, supra; State v. Lavender, supra. Therefore, a review of the record in the case sub judice reveals the state presented sufficient - 13 - evidence, when viewed in a light most favorable to the prosecu- tion, on the element of possession for each of the offenses charged, viz., possession of cocaine and possession of criminal tools. Accordingly, defendant's first assignment of error is over- ruled. Defendant's second assignment of error follows: THE JURY VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF APPELLANT'S CRIMINAL PURPOSE. This assignment of error also lacks merit. Defendant argues that with regard to her conviction for violation of R.C. 2923.24, possession of criminal tools, the state also presented insufficient evidence of the element of criminal purpose. Once again, in order to test for sufficiency, the evidence presented by the state must be viewed in the light most favorable to the prosecution. State v. Apanovitch, supra; State v. Martin, supra. Moreover, defendant's "theory of innocence" based upon State v. Kulig (1974) 37 Ohio St. 2d 157 is not pertinent to the inquiry since State v. Jenks, supra, has overruled the Kulig case. The state presented the following evidence: (1) the offi- cers had the house at 3405 East 146th Street under surveillance for a week before April 9, 1990 because of complaints of drug trafficking at that location; (2) the officers observed activity indicative of drug trafficking; (3) a controlled buy of cocaine - 14 - was made at the residence just prior to the search; (4) the officers had a search warrant for the address but watched the house for at least 45 minutes before they executed the warrant on April 9, 1990; (5) while watching the house during that time, the officers saw more activity indicative of drug trafficking; (6) the officers noticed no one working on a car in the driveway; (7) when they entered the house the officers saw defendant in the rear bedroom with the co-defendants; (8) the officers also saw in the bedroom on the dresser and in plain view the following: ten rocks of crack cocaine, other drugs and drug paraphernalia; (9) the officers also saw in plain view on the bed a loaded .45 automatic handgun; and (10) when defendant's purse was searched at least $230 in cash was found. Moreover, Det. Callahan testi- fied that the amount of ten rocks of cocaine would be "con- sistent with" the sale of cocaine. Furthermore, Ptl. Grooms stated that 3405 East 146th Street was a place where people came "to make purchases of crack cocaine." All of the above constituted sufficient evidence to support the element of criminal purpose with respect to the charge of possession of criminal tools. State v. Bailey, supra. Therefore, the trial court did not err in overruling defendant's Crim. R. 29 motion for acquittal with regard to the charge of violation of R.C. 2923.24, possession of criminal tools. State v. Apanovitch, supra. - 15 - Accordingly, defendant's second assignment of error is over- ruled. Defendant's third assignment of error follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT INSTRUCTED THE JURY ON THE OF- FENSE OF AIDING AND ABETTING. This assignment of error also lacks merit. Defendant makes two arguments with respect to this assign- ment of error. Initially, defendant contends that the "trial court failed to give a reasonable doubt instruction" after its instruction on the law of aiding and abetting, thus "allow[ing] the jury to conclude that any quantum of evidence constituted proof of aiding and abetting." Defendant's first argument must fail since at trial defen- dant never raised an objection to the complained of jury instruc- tion on this ground. Without an objection to the instruction on this basis, any argument thereto is waived. Crim. R. 30; State v. Long (1978), 53 Ohio St. 2d 91. Moreover, a single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge. State v. Price (1979), 60 Ohio St. 2d 136, para- graph 4 of the syllabus. A review of the record in the case sub judice reveals the trial court carefully instructed the jury the state had the burden to prove every element "beyond a reasonable doubt" as to each crime and each defendant. This court has stated as follows: - 16 - The jury was, therefore, instructed at least four times that defendant's guilt must be established beyond reasonable doubt by the prosecution. Con- sidering the charge in its totality, it is unlike- ly that the instruction *** would have had an appreciable impact on defendant's right to a fair trial. The possibility of the jury improperly interpreting this isolated instruction as placing a burden of proof upon the defendant is remote in light of the other instructions given by the court which in clear and express terms placed the burden of proof upon the prosection. City of Cleveland v. Johnson (July 7, 1983), Cuyahoga App. No. 45719, unreported. Defendant also argues that the instruction was erroneous because her evidence demonstrated she was "merely present" with the other defendants in the house. However, the state's evi- dence, if believed, tended to show defendant was either in the house to purchase drugs or was associated with the illegal enterprise being conducted therein. It has been held that "if a *** jury instruction is appropriate to the facts of a criminal case, then the court must include that instruction it its charge to the jury." State v. Jones (Apr. 3, 1980), Cuyahoga App. No. 39924, unreported; State v. Nelson (1973), 36 Ohio St. 2d 79. This rule of law applies to an instruction on aiding and abet- ting. State v. Perryman (1976), 49 Ohio St. 2d 14; State v. Harris (Apr. 9, 1981), Cuyahoga App. No. 42911, unreported. Moreover, if the "charge, in substance, informs the jury that the aider and abettor must participate in the crime," the charge is not improper. State v. Snyder (Feb. 9, 1978), Cuyahoga App. No. 36902 (emphasis added). With regard to the challenged - 17 - instruction, the trial court in the case sub judice explicitly stated that in order to find defendant guilty of the crimes as an aider or abettor, defendant had to knowingly or purposely aid, help, assist, encourage, direct or act in concert with another. Thus, the requirement of participation was explicitly stated, not merely defendant's "presence." Therefore, the instruction given by the trial court was not error. State v. Snyder, supra; State v. Perryman, supra. Accordingly, defendant's third assignment of error is also overruled. Defendant's convictions are affirmed. - 18 - 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 Common Pleas Court 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. FRANCIS E. SWEENEY, P.J., CONCURS; PATRICIA BLACKMON, J., DISSENTS (See Dissenting Opinion, Patricia Blackmon, J., attached) JUDGE BLANCHE KRUPANSKY 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61131 : STATE OF OHIO : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION : DEBORAH ROUNDTREE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT: DECEMBER 3, 1992 PATRICIA BLACKMON, J., DISSENTING: I must respectfully dissent from the majority opinion because of a sincere belief that the evidence presented was insufficient to sustain a conviction of Appellant for Drug Abuse and Possession of Criminal Tools. Furthermore, the evidence presented was substantially corroborative of Appellant's version of what took place on the day in question. This analysis and resulting conclusion requires that the evidence be viewed in terms of the two separate phases of the trial, the prosecution's evidence and the evidence produced on behalf of Appellant. The first issue is whether the evidence presented by the prosecution was sufficient to sustain a convic- tion of the Appellant for Drug Abuse and Possession of Criminal - 3 - Tools. The second issue is whether the Appellant's evidence was sufficiently corroborative of her version of what took place to create a reasonable doubt as to the proof of the charges against Appellant. With respect to the first issue of whether the evidence was sufficient to sustain a conviction of the Appellant for Drug Abuse and Possession of Criminal Tools, the essential elements of these crimes must be evaluated in conjunction with the evidence to determine whether the evidence was sufficient to prove all of the essential elements beyond a reasonable doubt. The majority enunciates seven facts which they believe were sufficient, pursuant to State v. Braxton, (January 18, 1990), Cuyahoga App. No. 56269, unreported, State v. Bailey, (April 9, 1987), Cuyahoga App. No. 51968, unreported, and State v. Lavend- er, (March 12, 1992), Cuyahoga App. No. 60493, unreported, to establish the essential element of possession, contained in R.C. 2925.11. The evidence, according to the majority was as follows: (1) The house had been under surveillance for a period of a week before the "raid" based upon complaints of drug trafficking and was a place where people were coming to make purchases of crack cocaine; (2) a "controlled buy" had occurred just prior to the execution of the search warrant; (3) defendant was in the house and had been in the house for some period of time prior to the execution of the search warrant; (4) defendant was appre- hended in a bedroom where drugs, drug-related items and the gun - 4 - were located; (5) the drugs and drug-related items were readily usable, numerous and in plain view; (6) the gun was on the bed in plain view; and (7) a large amount of money, viz, at least $230, was found in defendant's purse. A review of these facts, even if contemplated as circumstan- tial evidence, falls extremely short of proof beyond a reasonable doubt of Appellant's actual or constructive possession of a controlled substance. The first fact has no merit as a piece of direct evidence of Appellant's actual or constructive possession. As a piece of circumstantial evidence, Appellant was not observed going to the house beyond the surveillance and the prosecution never put on any evidence that would suggest that during the surveillance period Appellant had actual or constructive knowl- edge of the drug trafficking complaints or that this was a place where people came to purchase cocaine. The second piece of evidence cited by the majority has no merit as direct or circumstantial evidence of Appellant's actual or constructive possession of a controlled substance. There was neither evidence presented by the prosecution that Appellant was present during the controlled buy nor was there evidence pres- ented that she had actual or constructive knowledge of the transaction with the police just prior to the execution of the search warrant. Clearly, evidence of her presence at the time of the controlled buy would be essential to the issue of actual or constructive knowledge of the drug transaction. - 5 - It is ironic that the majority would cite State v. Haynes (1971), 25 Ohio St.2d 264 for the proposition that the mere presence of a defendant at a residence in which contraband is discovered is insufficient to support a conviction for possession and then cite the fact that Appellant was in the house for some period of time prior to the execution of the search warrant as support for the conviction. This third fact cited by the majori- ty, by the majority's own admission, also lacks merit. Appel- lant's physical presence in the house is simply not evidence, circumstantial or direct, that would establish Appellant's knowing possession, actual or constructive, of a controlled substance. The majority cites factor number four as though there was no evidence presented that contradicted Appellant's presence in the bedroom. In fact, a careful review of the evidence far from establishes beyond a reasonable doubt Appellant's proximity to any of the contraband. Detective Campbell testified without mention of Appellant's location in relationship to the contra- band. He also testified that no drugs or drug paraphernalia were found on Appellant's person. Detective Grooms testified that Appellant was standing in a doorway that went into the next room. The fifth and sixth factors fail to consider the possibility that Appellant's version of what occurred is equally as plausi- ble. The drugs, drug-related items, and the gun were all in plain view and readily visible. Yet, there is little to no - 6 - testimony of Appellant's location in relationship to the contra- band. Thus, there is still little to no evidence that places Appellant in a position of actual or constructive possession of any of these items. The most glaring example of why the majority opinion is such an erroneous precedent is that of the innocent person, who enters a house that unbeknownst to them is one where crack is sold. The person could be present for something as innocent as having a car repaired. (Emphasis added.) The person innocently walks into a room in the house, where contraband is in plain view, just as the police come through the door and observe this innocent person in the room. The majority opinion sustains a conviction on these facts with no other evidence or inferences that can be drawn from the evidence that this innocent person had knowledge or that this innocent person was either in actual or constructive possession of the contraband. The last factor cited by the majority is also meritless as it relates to knowledge or possession, either actual or construc- tive. The majority states that Appellant had a large amount of money in her purse. This fact alone does not establish either conclusively or by inference that Appellant knowingly possessed, either actually or constructively, a controlled substance. This factor becomes even less significant when Appellant's testimony and the testimony of Blinkey was that the money did not belong to the Appellant. - 7 - The majority states "on facts such as these, this court has held there was sufficient evidence of actual and constructive possession of contraband. State v. Braxton, supra; State v. Bailey, supra; State v. Lavender, supra." Unfortunately, the instant case is readily distinguishable from Braxton, Bailey, and Lavender and does not have a factual scenario comparable in any way to these unreported cases from this court. In Braxton, the police detained four persons while other officers returned to obtain a search warrant for the apartment specifically occupied by Braxton and the others. While securing the apartment, the officers moved a couch and checked underneath it and checked underneath its cushions for weapons. The officers then replaced the couch and cushions and seated Braxton and another person on opposite ends of the couch with their hands cuffed behind them. After the officers returned with the warrant and began the subsequent search, a plastic bag with ten packets of cocaine and heroin was found on the floor beneath the couch directly behind where Appellant was handcuffed with his hands behind him. An officer testified that the couch had an open back such that objects could have easily been placed behind it. Undoubtedly, this set of facts in Braxton are readily distinguishable from the instant appeal. The officers had just checked the location prior to seating Braxton and no contraband was present. However, after seating Braxton on one end of an - 8 - open back couch, along with his hands cuffed behind him, the contraband is discovered on the floor beneath the couch and directly behind Braxton. Braxton is a strong case of construc- tive possession. In Bailey, there were only two people in the apartment when the police entered to search the premises. Bailey's apartment consisted of a room in the upstairs and a basement area. The contraband, in Bailey, was found in the hallway right in the entrance to the apartment where Bailey had been arrested. Bailey is readily distinguishable from the facts of the instant case. There was only one individual, other than the arresting officer, in close proximity to the contraband found in the hallway entrance. In the instant case, there is no testimony from either detective with respect to Appellant's physical proximity to the contraband and if Appellant's testimony is contemplated she was not even in the room where the contraband was discovered. Lastly, unlike Bailey, there were three indi- viduals present. The last case relied on by the majority is equally as distinguishable from the case at bar. In Lavender, the police entered a bedroom, in the process of executing a search, because they heard a sound like that of an automatic weapon being loaded. Once inside the bedroom, the officer's discovered Lavender with - 9 - 6 his hand either inside the drawer or directly over it. The police discovered drugs and an automatic weapon inside the drawer. This, likewise, is both a strong case for constructive possession and readily distinguishable from the facts in this appeal. Lavender was the only person in the room and he was in close proximity to the contraband. Therefore, the majority's statement that this court, on facts such as these, has held there was sufficient evidence of actual or constructive possession of contraband is erroneous. The majority opinion cites Braxton, Bailey, and Lavender with the suggestion that these cases are somehow factually similar to the instant case. Clearly, they are not. The second issue of whether Appellant's version of what occurred was sufficiently corroborated by other witnesses to raise a reasonable doubt is one that should be answered affirma- tively. Appellant testified that she was given the address of the house in question at a gas station by Kevin Johnson, in order to come there and get her car repaired. This was corroborated by Richard Mitchell. Mitchell, in his testimony, vouched for Appellant's presence at the gas station and her desire to have Kevin Johnson work on her car. Mitchell also verified the fact that Johnson gave Appellant the address of the house in question 6 One officer testified that Lavender's hand was in the drawer and another testified that his hand was over the drawer. - 10 - where he would be working on another car. Mitchell further testified, corroborating Appellant's testimony, that she did come to the house in question to have her car repaired. Finally, Mitchell testified that Johnson had gone into the house to make a new date with Appellant to repair her vehicle. Robert Blinkey, likewise, offered testimony that was substantially corroborative of Appellant's version of what happened. He testified that he owned the house and had never seen or known Appellant prior to the evening of the arrests. Blinkey recalled Appellant's request to use the bathroom. Blinkey admitted to having the crack cocaine and the weapon in his bedroom. He further admitted to having $230, which he accidentally placed in Appellant's purse mistaking it for his girlfriend's purse. He informed the police that he put the money in the purse and Appellant testified that she did not have $230 in her purse. This corroborative evidence compels two significant conclusions. The first is that the evidence was insufficient to demonstrate that Appellant was either in the house to purchase drugs or was associated with the illegal enterprise being con- ducted therein. The second is that the trial court clearly erred to the prejudice of Appellant when it instructed the jury on the offense of aiding and abetting. Blinkey's testimony makes it clear that Appellant was not an aider and abetter of either - 11 - criminal offense and that Appellant had no knowledge of the money being placed in her purse. In State v. Eley (1978), 56 Ohio St.2d 169, the Ohio Supreme Court held that a reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. A reviewing court may not reverse a judgment of conviction in a criminal case in a trial court, where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and where no prejudicial error occurred in the actual trial of the case or in the instructions given the jury by the court. State v. DeHass (1967), 10 Ohio St.2d 230. In my opinion, the evidence was both insufficient to sustain Appellant's convictions and in no way comparable to the evidence in the constructive possession cases cited by the majority. Detectives Campbell and Grooms offered no testimony of Appel- lant's location in relationship to the drugs and no drugs or drug paraphernalia were found on Appellant's person. Detective Grooms testified that Appellant was standing in the doorway of the room. Richard Mitchell corroborated Appellant's reason for being at the house. Robert Blinkey admitted in his testimony that the crack cocaine, the weapon, and the $230 were all his and did not implicate Appellant in any way. I would reverse the conviction. .