COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66925 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAMAR JENKINS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 297068 JUDGMENT: Affirmed in part and Reversed in part. Remanded for resentencing. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender JEFFREY H. MARGOLIS, ESQ. ROBERT M. INGERSOLL, ESQ. Assistant County Prosecutor Assistant County Public Defender The Justice Center - 8th Floor The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - DYKE, J.: Appellant was indicted on five charges stemming from a drug transaction. The second and third charges of trafficking and possession were dismissed by the State. A jury found appellant guilty of the remaining three counts of possession of cocaine in an amount equal to or exceeding the bulk amount, but less than three times that amount; of selling or offering for sale cocaine in an amount less than bulk amount; and for possession of criminal tools, to-wit money. The trial court sentenced appellant to one year plus a consecutive eighteen months of actual incarceration on count one; one year of concurrent time on the drug sale conviction; and, six months of incarceration, to be served consecutively to the first two sentences, for the possession of criminal tools. Appellant appeals from his conviction and sentencing and asserts three assignments of error. I LAMAR JENKINS WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS SENTENCE FOR DRUG LAW IN COUNT ONE, AS SAID SENTENCE DOES NOT CONFORM WITH THE SENTENCING STANDARDS ESTABLISHED BY THE OHIO REVISED CODE. Appellant asserts that the trial court improperly relied upon State v. Odubanjo (1992), 80 Ohio App.3d 329, in sentencing appellant to two sentences to be served consecutively for the first count of possession. Appellant's argument is well taken. The comments of the trial court judge at sentencing support appellant's assertion that the court improperly relied upon State - 3 - v. Odubanjo when it sentenced appellant under both applicable sentencing schemes but ordered the sentences to be served consecutively pursuant to the dictates of Odubanjo. This Court has recently found that Odubanjo does not set a binding precedent requiring courts to order sentences for a drug offense to be served consecutively. The sentencing order under the Revised Code guidelines and pursuant to State v. Arnold (1991), 61 Ohio St.3d 175, must take into consideration both sentencing scheme mandates under R.C. 2929.11 and R.C. 2925.03. State v. Alvin Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported. Appellant's first assignment of error is sustained. II LAMAR JENKINS WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR DRUG LAW IN COUNT FOUR AND POSSESSING CRIMINAL TOOLS IN COUNT FIVE, AS NEITHER CONVICTION WAS SUPPORTED BY EVIDENCE SUFFICIENT TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant argues that the evidence to support his conviction for sale of cocaine was insufficient. Appellant asserts that the white object which he allegedly handed to someone was never tested for cocaine. Appellant also argues that his conviction for possession of criminal tools was not supported by sufficient evidence in that the State failed to prove that he intended to use the money for criminal purposes. Appellant's arguments are not well taken. The evidence at trial indicated that appellant was seen arriving on the scene where drug transactions were apparently - 4 - taking place at approximately 7:30 in the evening. His arrival in a black Buick with another man, Robert Johnson, was noted by Detective Dvorak from a nearby apartment, where he had set up surveillance of the scene. Johnson was seen by Detective Dvorak removing what appeared to be a plastic bag from a compartment in the dashboard of the car. Then both men exited the car and joined the other men who had been seen in apparent drug transaction activity by Dvorak. Dvorak saw a black male approach appellant. Appellant held out his hand and the male removed a white object. Appellant then received currency and the man walked away. Dvorak testified that at approximately 8:10 Johnson appeared to be leaving the area with a large amount of cash. Dvorak had been in radio contact with two police vehicles during this surveillance, giving the officers in the cars specific descriptions of the people he witnessed participating in the drug sales. Dvorak called upon the vehicles to move onto the scene and effectuate arrests once he saw that Johnson might be leaving. The other four officers arrived on the scene and made several arrests. Dvorak watched this for two to three minutes longer then left the apartment to aid the arresting officers. Once Dvorak reached the scene three men were in custody. Dvorak then noticed appellant still standing near one of the apartment porches. Dvorak approached appellant to make the arrest and patted him down for weapons. Three hundred and twenty-six dollars was found on appellant's person. Dvorak looked around the - 5 - area and saw a pager lying on the porch. When he went to retrieve the pager he noticed a plastic bag containing what appeared to be crack cocaine. Several women were on the porch at this time. One woman, Chreese Moreland, claimed that the pager was hers. It was later determined that the pager did in fact belong to her and it was returned. The bag of drugs, containing 27 rocks of cocaine, was confiscated and marked "unknown" as to the owner. Several bags of cocaine were found in the Buick in which appellant had arrived, in addition to $1,301. Significant amounts of money were found on all of the men arrested at the scene. Evidence was introduced to prove that appellant was not gainfully employed at the time. Poinsetta McKenzie was the lessee of the apartment adjoining the porch on which the drugs were found. After the incident she was informed by Cleveland Metropolitan Housing Authority officers that she was in violation of her lease due to the presence of drugs on her property. Because of her concern that she could lose her lease, McKenzie contacted Dvorak at the station to tell him that she was willing to make a statement regarding what she had seen. McKenzie issued a written statement that next day, and later testified at trial, to having seen appellant drop something which she could not recognize, but which looked like plastic, over the wall of her porch when the police began to approach him. McKenzie identified that plastic object as the bag of cocaine that Dvorak retrieved a short time later. McKenzie stated that the pager had - 6 - accidentally fallen out of Chreese Moreland's purse when she stood up, after appellant had dropped the object onto the porch, but before the police arrived to arrest appellant. At this point McKenzie went inside her apartment to call the pager number to make certain that it was working. She returned to see Dvorak pick up the object appellant had dropped. After receiving McKenzie's statement, the bag of crack cocaine was marked with appellant's name by Dvorak so that the evidence would not be destroyed. Several defense witnesses were put on the stand to testify that McKenzie was not present on the porch to have seen appellant drop anything because she was inside calling the pager number. The Ohio Supreme Court has set forth the standard of review to determine whether the evidence presented at trial was insufficient to support the convictions: 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 guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. Count four charged appellant with knowingly selling or offering for sale a controlled substance in an amount less than the bulk amount. The evidence to support that charge was given by - 7 - Detective Dvorak when he testified to having seen appellant engage in an apparent drug transaction where a small white object was seen passing from his hand to another man, in exchange for currency. Other evidence supported the inference that what Dvorak saw passing from appellant's hand in exchange for money was actually a rock of crack cocaine. Dvorak saw appellant arrive at the scene in a Buick, which later was found to contain several bags of cocaine. Appellant was also seen by Poinsetta McKenzie dropping an object, later retrieved by Detective Dvorak, and determined to be a bag of twenty-seven rocks of crack. Reviewed in a light most favorable to the prosecution, a reasonable trier of fact could find that this evidence supported each element of the offense charged beyond a reasonable doubt. Appellant also challenges the sufficiency of the evidence to support his conviction for possession of criminal tools. To convict on that charge the State was required to supply proof beyond a reasonable doubt that appellant possessed a substance, device, instrument, or article, with purpose to use it criminally. Appellant challenges the evidence supplied to support his alleged intent to use the $326 found on his person criminally. This court has held that evidence the defendant knowingly transported, delivered or distributed drugs may be used by the jury to reasonably conclude that money possessed by the defendant was used to facilitate drug transactions as a criminal tool, such as for the purpose [of] providing any necessary change during drug sales, in violation of R.C. 2923.24. - 8 - State v. Powell (1993), 87 Ohio App.3d 157, 168, citing State v. Reese (Aug. 18, 1988), Cuyahoga App. No. 54105, unreported. Evidence was provided by the State to support the proposition that appellant transported, delivered or distributed drugs. The jury could have reasonably concluded beyond a reasonable doubt that the $326 was possessed by appellant with the intent to use it criminally, reviewing the evidence in a light most favorable to the prosecution. Appellant's second assignment of error is overruled. III LAMAR JENKINS'S CONVICTION FOR POSSESSION OF DRUGS IN COUNT ONE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant claims that McKenzie's testimony was not credible given her strong reason to testify against appellant in order to remain in her discounted rent apartment. Her testimony to the effect that appellant dropped the object retrieved by Detective Dvorak was also contradicted by the testimony of appellant's girlfriend, Chreese Moreland. Therefore, appellant asserts, the conviction for possession cocaine in an amount greater than bulk but less than three times bulk is against the manifest weight of the evidence. Appellant's argument lacks merit. Count one charged appellant with knowingly possessing a controlled substance in an amount greater than bulk amount but less than three times that amount. R.C. 2925.03(A)(4). The crack cocaine found on McKenzie's porch was of a quantity greater than - 9 - bulk but less than three times that amount. To determine whether the conviction is against the manifest weight of the evidence, this court follows the standard of review set forth as follows: In determining whether the verdict is against the manifest weight of the evidence the court, reviewing the entire record, weighs the evidence and all reasonable inferences, 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 reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. In reviewing the evidence presented below, we can not say that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction should be reversed. Appellant was seen dropping something onto McKenzie's porch. His girlfriend, Chreese Moreland stood up, dropping her pager out of her purse. McKenzie went inside briefly to dial the pager number to ascertain that it was not damaged. Upon her return, McKenzie saw Dvorak retrieve the plastic looking object dropped by appellant. The jury was well aware of the consequences to McKenzie in the event she did not contact the police with what she had seen. The jury was capable of weighing McKenzie's credibility against that of Moreland and finding that McKenzie was the more credible of the two witnesses. The jury could reasonably have determined that the bag of cocaine was possessed by appellant in violation of the offense charged in count one. - 10 - Appellant's third assignment of error is overruled. The convictions on counts one, four and five are affirmed. Appellant's sentence of one year plus eighteen months actual incarceration, to be served consecutively is vacated. The case is remanded to the trial court for resentencing on count one pursuant to the sentencing guidelines of R.C. 2929.11 and R.C 2925.03. - 11 - 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. PATTON, C.J., AND HARPER, J., CONCUR. ANN DYKE JUDGE 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. .