COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66884 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LARRY CAMP : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304695 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES H. BRAGG, ESQ. Cuyahoga County Prosecutor 303 East Bagley Road GEORGE M. GEORGE, ESQ. P.O. Box 309 Assistant Prosecuting Attorney Berea, Ohio 44107 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Larry Camp ("Camp"), date of birth March 5, 1961, appeals from his jury trial conviction of one count of Drug Abuse [R.C. 2925.11(A), (C)(1)], to wit, phencyclidine, commonly referred to as PCP, a schedule II hallucinogenic drug, with two prior felony drug abuse specifications and one violence specification. For the reasons adduced below, we affirm. A review of the record on appeal indicates that two witnesses testified on behalf of the prosecution. The first witness for the prosecution, Cleveland Police Patrolman Carlton Darrell, stated in pertinent part as follows (R. 20-46, 56-58): (1) he has been a police officer for four years, averaging between fifteen to thirty drug arrests per month; (2) at least forty of the drug arrests involved PCP, which has a distinct odor in its liquid form; (3) on the date of the offense, February 3, 1993, he and his partner were on patrol in their zone car in the fourth police district; (4) in the vicinity of East 104th Street and Aetna Avenue, an area noted for the street sale of drugs, he observed a four-door brown Oldsmobile Cutlass operating with no license plate at approximately midnight; (5) the officers turned on their emergency overhead lights and pulled the offending vehicle over to the curb; (6) the witness's partner approached the driver's side while the witness approached the passenger side; (7) the driver of the vehicle exited the vehicle when requested by the partner; (8) a check of the driver's license - 3 - indicated that the driver had some outstanding traffic warrants, and a check of the license plate revealed that the vehicle had been reported as stolen in Warrensville Heights, Ohio; (9) the driver was placed under arrest and placed in the rear of the zone car; (10) the officers returned to the vehicle and ordered the front seat passenger and the rear seat passenger, the defendant, to exit the vehicle towards the witness on the passenger side of the vehicle; (11) the witness, shining his flashlight beam into the vehicle, opened the rear passenger door to assist the exit of the defendant; (12) as the defendant slid toward the open door, the witness observed the defendant toss a piece of aluminum foil to the floor of the rear passenger seat; (13) the two occupants were secured and the witness retrieved the discarded foil from the floor of the rear passenger seat; (14) upon inspection, the foil contained a cigarette soaked in a liquid [State Exhibit 1], the odor of which readily indicated the presence of PCP; (15) the defendant, who was identified in court by the witness, was placed under arrest and advised of his constitutional rights; (16) the witness placed his initials on the exhibit at the time of the arrest, and the exhibit is in the same condition as it appeared when it was seized. The second witness for the prosecution was Ms. Cynthia Lewis, who stated in pertinent part as follows (R. 47-54): (1) she is a chemist employed by the Cleveland Police Department Scientific Investigation Unit, primarily analyzing drugs; (2) - 4 - State Exhibit 1 tested positive for the presence of PCP on the damp cigarette which was contained inside some aluminum foil. At this point the prosecution rested. The defense then moved for acquittal pursuant to Crim.R. 29. This motion was overruled. (R. 63.) The defense then rested, without offering any evidence on his behalf. Following closing arguments and instructions to the jury, the jury returned its guilty verdict. After the announcement of the verdict and polling of the jury, but before the court sentenced the defendant, the defense renewed its motion for acquittal. This renewed motion for acquittal was denied. (R. 119.) The court then sentenced the defendant to the minimum term available of 2 to 10 years. This appeal followed presenting three assignments of error. The first and second assignments will be discussed jointly. I THE CONVICTION OF THE APPELLANT, LARRY CAMP, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT HIM AND THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S MOTION FOR ACQUITTAL. Our review of these assignments is guided by State v. Jenks (1991), 61 Ohio St.3d 259, 273: In other words, 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 - 5 - defendant's guilt beyond a reasonable doubt. State v. Eley, supra. 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. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-574. (Emphasis added.) Also see, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, and State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132. Viewing the evidence in a light most favorable to the prosecution we conclude that the conviction was supported by both the weight and sufficiency of the evidence. The first and second assignments of error are overruled. III THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO CHARGE THE JURY THAT THE APPELLANT HAD NEVER BEEN CHARGED WITH ANY CRIME REGARDING THE STOLEN VEHICLE HE WAS IN, AND THAT THE JURY SHOULD DISREGARD ANY SUCH EVIDENCE. The defendant was not charged, or tried, with any crime relating to the stolen vehicle in which he was a passenger at the time of the offense. The defendant was charged with possessing - 6 - PCP. The jury was reminded of these facts by the prosecution during closing argument. (R. 90.) Although the defense requested an instruction on this issue, that he was not charged with stealing the car, there was no evidence at the trial that the car was in fact stolen. Rather, the evidence by the prosecution repeatedly set forth that the car was reported as having been stolen. As such, the requested instruction was not pertinent to the offense at issue and the court did not err in not issuing the requested instruction. Pallini v. Donkowski (1969), 17 Ohio St.2d 51; State v. Jakobiak (1989), 65 Ohio App.3d 432. The third assignment of error is overruled. 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 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. DYKE, J., CONCURS; KARPINSKI, J., CONCURS, WITH ATTACHED CONCURRING OPINION. JAMES D. SWEENEY PRESIDING 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. 66884 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION LARRY CAMP : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 KARPINSKI, J., CONCURRING: I concur with the majority but write separately to clarify the standard to be used in viewing the evidence under the manifest weight theory. In claiming that the manifest weight theory requires evidence be reviewed in a light most favorable to the prosecution, the majority has misread State v. Jenks, especially the sentence the majority opinion quoted and underlined. (Ante at p. 4.) In Jenks, the court addressed merely circumstantial evidence. This context must control the underlined sentence. Even if the sentence is interpreted to comment upon manifest weight in general, and not as limited to - 2 - circumstantial evidence, then the sentence must be deemed mere dicta. What Jenks concluded is that the test for circumstantial evidence did not differ under either the manifest weight or the sufficiency theories. The "test" alluded to in the underlined sentence quoted from Jenks refers to the degree of certainty required only for circumstantial evidence. Before Jenks, the circumstantial evidence test required that the circumstances be "wholly irreconcilable" with the defendant's theory of innocence. Jenks clarified that the standard is "beyond a reasonable doubt." In other words, for circumstantial evidence to meet the "beyond a reasonable doubt" standard, a prosecutor is not required to overcome every hypothesis of innocence. Jenks did not, however, change the fundamental difference between manifest weight of evidence and sufficiency of evidence. They continue to be separate and distinct theories of review. In a sufficiency test, the evidence must be viewed in the light most favorable to the prosecutor. The reason is obvious: failure to meet the sufficiency test must result in an acquittal. The manifest weight of evidence theory, on the other hand, does not employ the same perspective in viewing the evidence. Rather, the appellate court must engage in a weighing process, which requires the court to review the credibility and bias of witnesses. The outcome, moreover, is different under the manifest weight theory. Where all three judges concur in - 3 - reversing a jury decision on the manifest weight theory, the 1/ result is another trial. The difference between the two standards was not significant in Jenks because the Ohio Supreme Court is limited in reviewing evidence. The Supreme Court recognized "that courts of appeals have power to 'consider and pass upon the weight of the evidence'" under Section 3(B)(3), Article IV, Ohio Constitution, but the Supreme Court does not. State v. Cooey (1989), 46 Ohio St. 3d 20, 26. The distinction is of grave significance to appellate courts as in this case, however, because the only reviewing court the Ohio Constitution authorizes to weigh evidence is the court of appeals. Under the interpretation of Jenks by the majority in the case at bar, apparently no reviewing court would have the power to review a jury verdict. I must therefore disagree with the majority in the standard it used to review defendant's first assignment of error concerning the manifest weight of the evidence. However, even when viewed and weighed under the manifest weight standard, the record supports the trial court's decision. 1/ See Kevin L. Leffel's comprehensive discussion of Jenks and its predecessors in his note: State v. Jenks Fails to .