COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67332 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES LEE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-300379. JUDGMENT: AFFIRMED AS MODFIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Thomas A. Rein, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert R. Clarico, Esq. Assistant Public Defender The Marion Building 1276 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: James Lee, defendant-appellant, appeals from his conviction for the offense of drug abuse in violation of R.C. 2925.11. Defendant- appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On August 9, 1993 at approximately 9:20 p.m. Officer Othelia Hayden and Officer Carlton Darrell of the Cleveland Police Department were patrolling the area of East 149th Street and Kinsman in Cleveland, Ohio. This area is heavily patrolled by the Cleveland Police Department due to numerous complaints of high drug activity and sales. While on patrol the officers observed a blue Chevrolet Corsica automobile containing defendant-appellant and another male parked in a no parking anytime zone in front of an apartment building noted for large volume drug sales. The officers also observed a number of males standing around the rear of the automobile. After the officers observed the automobile, they decided to exit their police car and give the driver of the automobile, defendant- appellant, a ticket for parking in a "no parking anytime" zone. The officers approached the vehicle and asked defendant-appellant, "*** for some kind of ID in order to write a parking citation." The officers testified that defendant-appellant told them that he did not have a driver's license. Defendant-appellant later disputed this assertion. -3- Defendant-appellant was then asked to exit the automobile and was placed in the rear seat of the police car. Officer Hayden intended to issue defendant-appellant citations under the Cleveland Municipal Code for not having a driver's license and for the parking violation. Defendant-appellant was also going to be arrested for not having a driver's license and the vehicle was to be towed. Officer Hayden proceeded to initiate an inventory search of the vehicle. While conducting the inventory search, Officer Hayden found, in plain view, a small rock of suspected crack cocaine on the driver's seat. Defendant-appellant and his passenger were then placed under arrest for possession of illegal drugs in violation of R.C. 2925.11. Pursuant to defendant-appellant's request, the automobile was not towed to the impound lot but released to the rightful owner, defendant-appellant's mother. On October 26, 1993 defendant-appellant was indicted by the Cuyahoga County Grand Jury in a one count indictment for drug abuse in violation of R.C. 2925.11. On November 19, 1993 defendant-appellant was arraigned whereupon he entered a plea of not guilty to the indictment. Prior to the arraignment defendant-appellant filed a motion to suppress illegally obtained evidence. On March 19, 1994 the trial court held a hearing on defendant- appellant's motion to suppress. The trial court denied the motion to suppress finding: -4- The Court chooses to believe the police officers. They arrived on the scene depicted on the white board over to my right sometime in the late evening hours of August 9, 1993. The parties I'm talking about, the two police officers, had every right to make inquiry to the occupants of a vehicle illegally parked in the area depicted on the white board; that they had absolutely the right to make inquiry relative to whether or not there was a driver's license in the possession of the driver. The Court chooses to believe factually that the driver indicated that he did not have a driver's license. The police officers at that time had the right to take the defendant, Mr. Lee, to their police car, and properly so. The Court finds they had a right and duty and responsibility to run the plate, which the testimony is they did, and the vehicle came back to someone other than Mr. Lee. In order to protect their own interest, the police had a right to stop and contain momentarily, at least, Mr. Bailey so nothing would be disturbed. They had a right, although not necessarily to confiscate the inventory and, subsequent to, under Spellary to do a search to protect not only the defendant's property but to recover any other contraband. As a result, the Court finds when they first looked in the car and found the crack cocaine that was marked as an exhibit, subsequently withdrawn, in plain view, they had a lawful right to perform an inventory that seized that and subsequently arrested both defendants for violation of the drug law. The Court will take judicial notice of the fact that it is the law in most municipalities and the State of Ohio that you have to have a driver's license on your person in order to operate a motor vehicle and believes the police officer in that there was (sic) questions of the defendant Lee relative to whether or not he had a license. I chose to disbelieve the testimony of Defendant Lee for purposes of the motion relative to the direction of the police car, the conversation between the police and Mr. Lee and other matters that are different from -5- -6- the testimony of this police officer. The motion to suppress is denied. A jury trial commenced on March 28, 1994. At trial, defendant-appellant maintained that he did, in fact, have a valid driver's license in his possession at the time of the arrest. Defendant-appellant maintained further that he was prevented by the police from producing the license. Defendant-appellant denied any knowledge regarding the crack cocaine. After the state had rested its case and the close of all the evidence defendant-appellant moved for acquittal pursuant to Crim.R. 29. The trial court denied both motions. On March 31, 1994 the jury returned a verdict of guilty. On April 20, 1994 defendant-appellant was sentenced to a term of incarceration of eighteen months at the Lorain Correctional Institution. The trial court suspended the term of incarceration and placed defendant-appellant on probation for a term of three years. The trial court imposed a mandatory fine of $1,500 plus costs in spite of the fact that defendant-appellant had filed a motion to waive mandatory fine with an affidavit of indigence. Defendant-appellant filed a timely notice of appeal from his conviction in the trial court. II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING MR. LEE'S MOTION TO SUPPRESS WHEN THE EVIDENCE SEIZED WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND -7- FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. THE ISSUE RAISED: SUPPRESSION OF EVIDENCE Defendant-appellant argues that the crack cocaine seized by the police officers should not have been admitted into evidence since it was not discovered during a search incident to a valid arrest. Defendant-appellant argues further that the inventory search was improper. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW The Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution require the police to obtain a warrant based upon probable cause before they conduct a search. However, the warrant requirement is subject to a number of well-established exceptions. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022. An inventory search of an impounded vehicle is a well-defined exception to the warrant requirement. Colorado v. Bertine (1987), 479 U.S. 367, 107 S.Ct. 738. Accordingly, an inventory search of a lawfully impounded vehicle is valid under the Fourth Amendment when it is performed in good faith, pursuant to standardized police procedure or established routine, and when the evidence does not demonstrate that the procedure involved is merely a pretext for an evidentiary search of the impounded -8- vehicle. South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092; State v. Hathman (1992), 65 Ohio St.3d 403. Inventory searches serve to protect the owner's property while it is in police custody; protect police against claims concerning lost or stolen property; and protect police and the public against potential hazards posed by the impounded property. South Dakota v. Opperman, supra, at 369. An inventory search "must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory." Florida v. Wells (1990), 495 U.S. 1, 110 S.Ct. 1632; State v. Burton (April 14, 1994), Cuyahoga App. No. 64710, unreported. Ohio courts have held that if the initial traffic stop was merely a pretext to search for drugs and there was no specific and articulable reason to stop the vehicle to search for drugs, the stop on a pretext of a traffic violation is not permitted; such a stop is a general and unreasonable search that is constitutionally prohibited by both the federal and state constitutions. The test for a pretextual search is whether the police officer under the same circumstances but without the suspicion, would have made the stop. State v. Spencer (1991), 75 Ohio App.3d 581, 585. In a suppression hearing, the state hears the burden of proof and must demonstrate the warrantless search and seizure were reasonable. State v. Bevan (1992), 80 Ohio App.3d 126. In justifying a particular intrusion, a police officer must be able -9- to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the officer's belief that criminal activity has occurred or is imminent. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. C. MOTION TO SUPPRESS PROPERLY DENIED In the present case, Officers Hayden and Darrell first noticed defendant-appellant's automobile because it was parked in a "no parking anytime" zone in front of an apartment building known for drug activity. In addition, the officers saw a group of men standing around the rear of defendant-appellant's automobile. Such activity, the officers testified, can be indicative of an illegal drug sale. Under these circumstances, the officers had probable cause to, at the very least, investigate the illegally parked automobile and issue a traffic citation to defendant- appellant. Once the police officers determined that a traffic citation was going to be issued, they approached defendant-appellant's automobile and asked defendant-appellant for a driver's license. If defendant-appellant had been able to produce a license, there is every indication that the matter would have ended at that point with the issuance of a parking ticket. However, defendant- appellant could not produce a license, any other identification or registration for the vehicle. At this point, the officers were left with no choice but to take defendant-appellant into -10- custody and perform an inventory search of the vehicle in accordance with departmental policy. In State v. Andrews (1991), 57 Ohio St.3d 86, the Ohio Supreme Court stated: A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement. Applying the totality of the circumstances test stated in Andrews, supra, to the facts of the present case, it is apparent that the police officers acted properly by investigating the illegally parked automobile and taking defendant-appellant into custody when it was determined that he did not have a driver's license. In addition, the inventory search of the vehicle was properly conducted by the officers at the scene in accordance with established departmental guidelines. For the foregoing reasons, the trial court properly denied defendant-appellant's motion to suppress. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Defendant-appellant's second assignment of error states: MR. LEE'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. A. THE ISSUE RAISED: SUFFICIENCY OF EVIDENCE -11- Defendant-appellant contends that the trial court erred in denying both Crim.R. 29 motions for acquittal since the state failed to prove every element of the crime beyond a reasonable doubt. Specifically, defendant-appellant argues that the state failed to present sufficient evidence to prove the element of possession. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St.3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and held 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 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 6l L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. C. STANDARD OF REVIEW FOR ACQUITTAL Crim.R. 29(A), which establishes the parameters for the granting of a motion for acquittal, provides that: -12- *** 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. In addition, the Supreme Court of Ohio, in State v. Bridgeman (1978), 55 Ohio St.2d 216, established that a trial court may not grant a Crim.R. 29(A) motion for acquittal where the evidence adduced at trial shows that reasonable minds can reach different conclusions as to whether the elements of a charged offense have been proved beyond a reasonable doubt. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. D. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT CONVICTION In the case sub judice, both direct and circumstantial evidence were presented by the state in an attempt to establish the elements of the offense of drug abuse which are: 1) no person shall knowingly obtain, possess, or use; 2) a controlled substance. Defendant-appellant maintains that the state failed to present evidence to establish the element of possession. A review of the record fails to support defendant-appellant's assertion. R.C. 2925.01(L) defines possession as: -13- Possesses 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. In the past, this court has held that possession can be constructive or actual. State v. Soto (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported. In order to show constructive possession, the evidence must indicate that a defendant was able to exercise dominion and control over the cocaine. State v. Worley (1976), 46 Ohio St.2d 316. In many of the cases involving possession of illegal drugs in a motor vehicle, courts have emphasized the close proximity between the defendant and the illegal substance. State v. Cola (1991), 77 Ohio App.3d 448; State v. Howard (Mar. 24, 1983), Cuyahoga App. No. 44438, unreported. In the present case, the cocaine was found in the driver's seat of an automobile operated by defendant- appellant. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of drug abuse, including possession, proved beyond a reasonable doubt given defendant- appellant's close proximity to the location of the cocaine. Accordingly, the trial court properly overruled defendant- appellant's motions for acquittal pursuant to Crim.R. 29. -14- Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Defendant-appellant's third assignment of error states: MR. LEE'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT Defendant-appellant argues that the prosecutor impermissibly forced defendant-appellant to express his opinion as to the truthfulness of a state's witness and improperly questioned defendant-appellant regarding his status as an indigent defendant. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT With respect to prosecutorial misconduct, the Ohio Supreme Court in State v. Apanovich (1987), 33 Ohio St.3d stated: The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. Id. at 24. In State v. Hill (1977), 52 Ohio App.2d 393, the court set forth four elements to be considered in determining whether the prosecutor's statements rise to the level of misconduct: 1) the nature of the remarks; 2) whether an objection is made by opposing counsel; 3) whether corrective instructions were given; -15- and 4) the strength of the evidence against the defendant. Another factor to be considered is whether the remarks made by the prosecutor prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13; State v. Mann (1993), 93 Ohio App.3d 301. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL Here, defendant-appellant maintains that he was denied the right to a fair trial through improper and prejudicial remarks by the prosecutor. The record does not support defendant- appellant's assertion. During the cross-examination of defendant-appellant, the prosecutor questioned defendant-appellant as to whether he believed that Officers Hayden and Darrell were being untruthful in their testimony. This court has held that it is within the discretion of the trial court to allow the prosecution, on cross- examination, to inquire whether another witness was being truthful. State v. Willie Keith Curry (Dec. 17, 19929), Cuyahoga App. No. 63438, unreported. Accordingly, defendant-appellant was not denied a fair trial by the line of questioning pursued by the prosecutor. Defendant-appellant also contends that the prosecutor improperly referred to his status as an indigent defendant on cross-examination and during closing argument. This court fails to see how the comments of the prosecutor during cross-examination and closing argument, viewed in their entirety, deprived defendant-appellant of a fair trial given the fact that -16- the comments were directed to defendant-appellant's credibility and not to the weight of the evidence. Defendant-appellant's third assignment of error is not well taken. -17- V. FOURTH ASSIGNMENT OF ERROR Defendant-appellant's fourth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND IT DENIED MR. LEE DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT IMPOSED THE MANDATORY FINE OF $1,500 NOTWITHSTANDING APPELLANT'S INDIGENCE. A. THE ISSUE RAISED: MANDATORY FINE Defendant-appellant argues through his fourth and final assignment of error that the trial court erred in imposing a mandatory fine given that he was represented at trial by appointed counsel. Specifically, defendant-appellant contends that the trial court erred by disregarding his motion to suspend payment of the mandatory fine and attached affidavit of indigence. Defendant-appellant's fourth and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANDATORY FINES The imposition of mandatory fines is governed by R.C. 2925.03(L) which states: (L) No court shall impose a mandatory fine pursuant to division (H) of this section upon an offender who alleges in an affidavit filed with the court prior to sentencing that he is indigent and is unable to pay any mandatory fine imposed pursuant to that division, if the court determines that the offender is an indigent person and is unable to pay the fine. -18- Ohio appellate courts have held that a finding that a defendant is indigent for purposes of receiving assigned counsel does not dispense with the necessity of a separate finding that he is indigent for purposes of waiving the mandatory fine for certain drug offenses. State v. LeFever (1993), 91 Ohio App.3d 301; State v. Gibson (Apr. 12, 1993), Montgomery App. No. 13476, unreported; and State v. Brown (June 6, 1990), Summit App. No. 14375, unreported. In State v. Powell (1992), 78 Ohio App.3d 784, 789 the court in dealing with this issue stated: The basis for requiring a determination that the defendant is unable to pay a mandatory fine when the trial court previously found the defendant to be indigent for purposes of receiving appointed counsel is simple. Many criminal defendants, even those who have steady income, are not able to raise sufficient funds to pay the retainer fee required by private counsel before counsel will make an initial appearance. This difference is even more evident in cases where the defendant has to utilize his financial resources to raise sufficient bond money in order to be released from jail. In contrast, the payment of a mandatory fine over a period of time is not equivalent to the immediate need for legal representation at the initiation of criminal proceedings. Therefore, while the trial court may accept an affidavit of indigency and appoint legal counsel in order to protect a criminal defendant's Sixth Amendment rights, this fact alone does not show that a defendant is unable to pay the mandatory fine. The trial court must make an affirmative determination pursuant to R.C. 2925.03 on the record that the defendant is indigent and -19- unable to pay the fine. State v. Slife (Dec. 5, 1991), Shelby App. No. 17-91-5, unreported. In order for a defendant to obtain relief from a mandatory fine, that defendant must, prior to sentencing, file an affidavit with the trial court which states that the defendant is indigent and unable to pay any mandatory fine imposed pursuant to R.C. 2925.03(H). State v. Pursell (May 30, 1991), Cuyahoga App. No. 58603, unreported. C. STANDARD OF REVIEW FOR ABUSE OF DISCRETION The trial court's imposition of a mandatory fine on defendant- appellant will not be disturbed unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "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. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. D. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MANDATORY FINE In the present case, the record demonstrates that defendant- appellant complied with R.C. 2925.03 by filing a motion to -20- suspend payment of mandatory fine with an attached affidavit of indigency prior to sentencing. The record demonstrates further that defendant-appellant's affidavit was not challenged by any evidence to the contrary. The record also demonstrates that defendant-appellant had already been found to be indigent by the trial court who provided him with the court-appointed counsel for purposes of trial as well as for the appeal. Therefore, in this instance, this court finds that the trial court did abuse its discretion by imposing a mandatory fine upon defendant-appellant where the record demonstrates that a proper affidavit of indigency had been filed and that affidavit was not challenged by contradictory evidence. Accordingly, defendant-appellant's fourth assignment of error is well taken and the sentence is modified to delete imposition of a fine. Judgment modified to delete imposition of a fine; affirmed as modified. -21- This cause is affirmed as modified. It is, therefore, considered that said appellant and said appellee share the costs taxed herein. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J. and NAHRA, J., CONCUR. DAVID T. MATIA 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. .