COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67333 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION TYRONE BAILEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-300379 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: THOMAS A. REIN (#0041571) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: ROBERT R. CLARICO (#0062067) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113-1569 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Tyrone Bailey appeals from his conviction for drug abuse, in violation of R.C. 2925.11, and raises three assignments of error: I. MR. BAILEY'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CON- STITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVIC- TION WAS NOT SUPPORTED BYSUFFICIENT EVIDENCE. II. THE TRIAL COURT ERRED IN DENYING MR. BAILEY'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 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. THE TRIAL COURT ABUSED ITS DISCRETION AND IT DENIED MR. BAILEY DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT IMPOSED THE MANDATORY FINE OF $1500 NOTWITHSTANDING APPELLANT'S INDIGENCE. I. Evidence adduced at Bailey's suppression hearing and jury trial was essentially the same: On August 9, 1993, at 9:30 p.m., Police Officers Hayden and Darrell observed an illegally parked car with Bailey in the front passenger's seat and James Lee in the driver's seat. As the police officers approached, several men standing near the rear of the car quickly dispersed. When Lee was unable to produce a driver's license, the police officers arrested him and placed him in the rear of their police - 3 - 3 car. The police officers then placed Bailey in the police car as a protective measure. After Bailey and Lee were placed in the police car, Officer Hayden performed an inventory of the car in preparation for towing it. During her search, Officer Hayden discovered a rock of crack cocaine on the driver's seat. II. In his first assignment of error, Bailey contends the trial court erred when it denied his motion for acquittal under Crim.R. 29. "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." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court 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 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) - 4 - 4 R.C. 2925.11(A) provides "[n]o person shall knowingly obtain, possess, or use a controlled substance.". Bailey argues the state failed to demonstrate he possessed the rock of crack cocaine. Possession of a controlled substance may be constructive. State v. Haynes (1971), 25 Ohio St.2d 264, 269-270. To construc- tively possess a controlled substance a person must be able to exercise dominion or control over it. State v. Wolery (1976), 46 Ohio St.2d 316, 332. Dominion or control requires more than mere presence in the vicinity of a controlled substance. State v. Cola (1991), 77 Ohio App.3d 448, 450; Cincinnati v. McCartney (1971), 30 Ohio App.2d 45, 48. Close proximity to readily usable drugs, however, may constitute sufficient circumstantial evidence of dominion or control. State v. Barr (1993), 86 Ohio App.3d 227, 235; State v. Pruitt (1984), 18 Ohio App.3d 50, 58. Cocaine found on the front seat of a car between the driver and passenger satis- fies the close-proximity requirement. State v. Soto (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported, page 7; see, also, State v. Thompson (July 18, 1991), Cuyahoga App. No. 58803, unreported (Marijuana found between driver and passenger on "the hump created by the drivetrain" sufficient to show possession by the passenger). We find that Bailey was in sufficient close-proximity to the rock of crack cocaine for him to exercise dominion or control over it. - 5 - 5 Accordingly, Bailey's first assignment of error is not well taken. III. In his second assignment of error, Bailey contends the trial court erred when it denied his motion to suppress evidence. A passenger may have standing to contest the search of a car. State v. Goodlow (1992), 84 Ohio App.3d 529, 532-533. First, Bailey argues the search of the car was improper because the police officers lacked probable cause to arrest him when they placed him in the back of the police car. We conclude, however, that the propriety of Bailey's arrest is irrelevant because the police officers searched the car pursuant to a proper inventory search based on Lee's arrest. An improper arrest is not, by itself, a bar to prosecution. Akron v. Breech (1993), 89 Ohio App.3d 537, 538. Bailey cites to State v. Smith (1992), 80 Ohio App.3d 337, for the proposition that the inventory search was improper because it was performed in the field instead of at a police station. In State v. Watson (July 7, 1994), Cuyahoga App. No. 64142, unreport- ed, this court held that: [A]ppellant's reliance on this court's decision in State v. Smith (1992), 80 Ohio App.3d 337, 609 N.E.2d 212, is misplaced. In Smith, it was held that an automobile must be lawfully impounded at the station house before a valid inventory search can be conducted. That decision was effectively overruled by the later decision in State v. Hathman (1992), 65 Ohio St.3d 403, 604 N.E.2d 743, where the Ohio Supreme Court, citing Bertine with approval, indicated that a search conducted in the field and prior to towing would withstand Fourth - 6 - 6 Amendment scrutiny where it can be shown that the search was conducted pursuant to standard police procedure. The search at issue in Hathman was conducted by the Ohio State Highway Patrol before towing at a service plaza located on the Ohio Turnpike. Although the Ohio Supreme Court in Hathman upheld the appellate court's decision which ordered the disputed evidence be suppressed, the court did so only after finding that there was insufficient evidence to support the contention that the search took place pursuant to an existing, standardized police policy or practice. The court did not, however, take issue with the fact that the vehicle had been impounded at the service plaza away from the station-house setting. Rather, the court stated that the vehicle had been lawfully impounded. Id., see paragraph two of the syllabus. (Emphasis added.) We conclude Lee's car was properly impounded and searched. Accordingly, Bailey's second assignment of error is not well taken. IV. In his third assignment of error, Bailey contends the trial court erred when it imposed a mandatory fine despite his indigency. Before trial, the trial court found Bailey indigent and appointed assigned counsel. After trial Bailey filed an affidavit averring that he was unable to pay a two thousand five hundred dollar fine. During sentencing the following exchange took place: THE COURT: Where were you working? DEFENDANT BAILEY: I was working at Murray's Auto Part before trial. When they found out about this incident here, I was released. And then I obtained another one with Service Masters Cleaning Company. - 7 - 7 THE COURT: What kind of money are you making with them? DEFENDANT BAILEY: Y: Six THE COURT: Okay. (Tr. 343) The trial court subsequently imposed a fifteen hundred dollar fine. R.C. 2925.03(L) provides: (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 his 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. (Emphasis added.) A finding of indigency for the purpose of assigning counsel is not the same as a finding of indigency for the purpose of waiving a mandatory fine. State v. Lefever (1993), 91 Ohio App.3d 301, 308; State v. Powell (1992), 78 Ohio App.3d 784, 789. As Powell noted: 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 re- ceiving 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. The 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 - 8 - 8 mandatory fine over a period of time is not equivalent to the immediate need for legal representation at the initiation of criminal proceedings. Powell, 78 Ohio App.3d at 789-790. (Emphasis added.) We find no error in the trial court's conclusion that Bailey was capable of paying the fifteen hundred dollar fine. Accordingly, Bailey's third assignment of error is not well taken. Judgment affirmed. - 9 - 9 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. DAVID T. MATIA, J., CONCURS; DIANE KARPINSKI, J. DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY 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. 67333 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION TYRONE BAILEY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 KARPINSKI, J., DISSENTING: I respectfully dissent from the majority's disposition of defendant's first assignment of error because the majority has expanded the interpretation Ohio courts have given to possessing a controlled substance "knowingly." This case began with a car parked illegally and a driver unable to produce his license. As a police officer patted down the driver and placed him in the back of the police cruiser, another officer had her flashlight on Tyrone Bailey, a passenger. When the driver was being placed under arrest, a second officer took Tyrone Bailey out of the car, patted him down, and placed him in the - 2 - 2 police car for a short while. Bailey was then brought back to the car while it was being searched. After watching Bailey during the entire event, the police observed no furtive gestures, no suspicious actions. It was not until the inventory search of the vehicle that the police observed a rock of crack on the driver's seat. Neither officer found any type of drug paraphernalia in the car. Appellant was convicted for one count of drug abuse, in violation of R.C. 2925.11(A), which provides: "No person shall knowingly obtain, possess, or use a controlled substance." (Emphasis added.) The statutory test for acting "knowingly" is found in R.C. 2901.22(A): A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. In addition to the required mental state, the prosecution must prove that Bailey was in possession of the rock of crack cocaine. The statutory definition of possession is found in R.C. 2925.01(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. (Emphasis added.) In the case at bar, the object was not "within his immediate physical possession." Constructive possession, moreover, may not be inferred from a person's mere presence in the vicinity of contraband. Cincinnati v. McCarthy (1971), 30 Ohio App.2d 45. - 3 - 3 The majority states close proximity may constitute sufficient circumstantial evidence of dominion or control. The case of State v. Pruitt (1984), 18 Ohio App.3d 50, 58, which the majority cites in support, is not persuasive. In applying the principle of close proximity, Pruitt focussed expressly on the drug being "in a form ready for injection" in conjunction with syringes being found near the defendant. In the case at bar cocaine was found in the form of a rock on the driver's seat of an automobile. The rock is not in a location or form ready for immediate consumption without additional imple- ments. No drug paraphernalia whatsoever were found. Absent additional evidence such as drug paraphernalia that would make the crack immediately usable, close proximity, by itself, is insuffi- cient to satisfy the requirement that the defendant "knowingly" possessed a controlled substance. Moreover, spatial distance in an automobile is not the same as space in a room. Everything is in close proximity in an auto. Thus where there is no evidence the illicit substance is visible to a passenger or within the passenger's exclusive area, there must be additional evidence to justify inferring the passenger had knowing possession. Constructive possession, which also requires proof of knowledge, cannot be inferred, because this single rock is small enough to be obscured from the passenger if the driver were sitting upon it. The majority also cites State v. Barr (1993), 86 Ohio App.3d 227, 235. In Barr, however, the officers observed a transaction involving a transfer of money followed by an exchange of a plastic - 4 - 4 bag with a white powdery substance, later established to be crack cocaine. The suspect was then observed walking quickly toward a car later identified as loaned to the suspect and was stopped in touching distance from the car. A bag containing 100 rocks of crack was discovered beneath the driver's door. No one else was observed in or near the car. In other words, a transaction was observed and a bag of crack found on her person. The "close proximity" test was invoked only for the additional drugs, that is to determine whether the total drugs found amounted to a "bulk amount." Unlike the facts in Barr, however, no drugs were found on Bailey, nor was he observed in any drug sale. More significantly, the defendants in Barr and in Pruitt were not passengers in someone else's car. It is quite another matter for a passenger to be held in constructive possession of a single rock of crack cocaine found on the driver's seat and not visible unless the driver leaves the car. At least three cases from this court are instructive regarding passengers. In State v. Palmer (Feb. 6, 1992), Cuyahoga App. No. 58828, unreported, this court found insufficient evidence to support a conviction of a defendant passenger in the back seat for being in constructive possession of a bulk amount of cocaine, 280 rocks, found under the driver's seat. Id. at 5. Codefendants were similarly charged and acquitted in a separate case, State v. Welch and Palmer (Apr. 18, 1991), Cuyahoga App. Nos. 58352, 58353. Noting that the defendants did not own the vehicle and that it was occupied by two others previous to the - 5 - 5 arrest, this court again found insufficient evidence that the defendants were in constructive possession of the crack cocaine. This court also found the evidence insufficient in State v. Giles (May 12, 1994), Cuyahoga App. No. 63709, unreported. In Giles, the defendant passenger was found alone, asleep in the passenger seat with the car's motor off and the doors locked. The drugs, a bag with twenty pieces of crack cocaine, were found concealed under the driver's seat. Since the drugs were not visible unless the driver's door was open, the court found there was no evidence upon which the court could infer that the defendant acted "knowingly"; nor was there any evidence that the defendant was in constructive possession of the cocaine. In contrast, the majority cites State v. Soto (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported, which held that sufficient evidence did exist to convict a passenger for possession of a bag of cocaine found on the front seat of a car, between the driver and the defendant-passenger. Id. at 4. In Soto the drugs were found right next to the defendant and were within reach and immediately obtainable. Similarly, in State v. Thompson (July 18, 1991), Cuyahoga App. No. 58803, unreported, the marijuana was found on the hump on the drivetrain between the driver and the passenger. In the case at bar, however, the rock was not between the passenger and the driver; it was located on the driver's seat. In the instant case, the state presented no evidence showing that Bailey was aware of the rock of crack cocaine on the driver's seat. The police, moreover, did not observe the rock of crack - 6 - 6 cocaine until after the driver was removed and a flashlight directed on this seat. The police testified that the crack cocaine was a "small" rock, weighing only .04 grams. This rock weighed, in more familiar terms, less than 2/1000 of an ounce, which is approximately the weight of the staple on this opinion. A police officer watched Bailey during the entire episode and could present no evidence of any suspicious gesture or action to support the proposition that Bailey had knowledge of the rock of crack cocaine. The evidence was insufficient to conclude that Bailey, from the passenger's seat, could knowingly exercise dominion or control over a single rock of crack cocaine--a rock described at oral argument as the size of a sesame seed or, alternatively, one-half inch wide, a rock presumably either underneath the driver or on the driver's person until he exited. Although there was circumstantial evidence that the car was in a high drug area, there was no evidence of a drug sale and no corroborating evidence of any other drugs or drug paraphernalia found in the car or on Bailey's person. Possession may not be inferred from "mere access" to or presence near the drugs. Inferring possession from close proximity should be limited to those instances in which drugs are in a form ready for consumption and drug apparatus located nearby, as in Pruitt, supra, or where possession has already been determined and what is at issue is the extent of additional drugs nearby, as in Barr, supra. .