COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67446 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MARVETA THOMAS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-292080 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: John W. Monroe Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James R. Willis Courthouse Square Building 310 Lakeside Avenue, N.W. Suite 350 Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Marveta Thomas, is appealing her conviction for drug possession, possession of criminal tools and carrying a concealed weapon. She contends the conviction was not supported by sufficient evidence, certain jury instructions were erroneous and the trial court erred by admitting evidence she had previously been in prison. For the following reasons, we affirm. The state's evidence was as follows: Officer Bobby Rose of the Cleveland Police Department testified that on the night of December 30, 1993, he and his partner, Officer Knowles, observed a 1986 Oldsmobile run a red light in the vicinity of East 93rd and Hough. The officers turned on the flashing lights to stop the Oldsmobile. The Oldsmobile slowed down to five or ten miles per hour and travelled one thousand feet before pulling over. When the Oldsmobile was travelling slowly, Officer Rose observed the two occupants of the vehicle making suspicious movements toward the center of the vehicle. Officer Knowles asked the driver, Marveta Thomas, for her driver's license, but she did not have one. Officer Rose took Thomas to the squad car to process a ticket for running the red light. The officers also wanted to talk to the passenger, Demetrius Thompson, separately to verify the driver's identity. Officer Knowles was talking to the passenger, and then yelled at the passenger to put his hands on the dashboard. Rose went to assist, and Knowles told him he saw a gun between the armrests in the middle of the front seat. -3- Rose took Thompson out of the car and saw a vial of liquid and a pager in the passenger side footwell, close to the seat. Officer Knowles removed the gun, pager and vial from the vehicle. The vial smelled like PCP. The two suspects denied ownership of the vial and the gun. Ms. Thomas said the pager was hers. As the police drove the two suspects to the police station, the suspects had a conversation. Then Demetrius Thompson stated someone gave him the vial earlier in the day. Upon questioning, Thompson stated that he paid nothing for the vial and the person who gave it to him did not tell him what to do with it. Thompson also stated he had purchased the gun from a crackhead for $20. Officer Rose stated the handgun was a state of the art nine millimeter baretta, which could be purchased for $500. He felt it was unusual such a weapon would be sold by a crackhead, but crackheads often obtain things of value and sell them cheaply. The weapon was loaded and was later test-fired by the police. Marveta Thomas had $128 on her person when arrested. Scott Miller of the police forensics lab testified that the substance in the vial was 28.85 grams of PCP. He stated the bulk amount of PCP was 5 grams, and the amount in the vial exceeded three times the bulk amount. Officer Knowles testified to essentially the same facts as Officer Rose. Knowles saw the gun barrel sticking out from between the two armrests. -4- The state rested and appellant made a Crim.R. 29 motion. Then, Demetrius Thompson testified on his own behalf. He stated he had known Marveta Thomas for seven years and looked up to her like a big sister. When the police pulled them over, Marveta took the gun, vial and pager out of her coat and put them in the armrest and on the floor. He and Marveta had a conversation while they were sitting in the squad car. Marveta told him to say someone gave him the items, because she had been in prison before, and he would only get probation. Thompson did what she said. I. Appellant's first assignment of error states: THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND WHEN IT ENTERED JUDGMENT ON THE VERDICT SINCE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT FINDINGS OF GUILTY BEYOND A REASONABLE DOUBT. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if 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. Appellant contends the state presented insufficient evidence to establish the element of possession required for all three offenses. See R.C. 2925.03(A)(6) (offender must knowingly possess the illegal drugs), R.C. 2923.24 (criminal tools must be in possession or under the control of the offender), R.C. 2923.12 -5- (offender knowingly carries or has concealed on his person or ready at hand, a deadly weapon). Possession may be actual or constructive. State v. Wolery (1976), 46 Ohio St.2d 316, 329, State v. Boyd (1989), 63 Ohio App.3d 790, 796. Constructive possession means the defendant was able to exercise dominion and control over the object. Id. Dominion and control over an item is not proved by a person's mere presence in the vicinity of the item. State v. Pruitt (1984), 18 Ohio App.3d 50, 58; see, also, R.C. 2925.01(L). The defendant's proximity to the item may constitute some evidence of constructive possession. Id., State v. Lavender (March 12, 1993), Cuyahoga App. No. 60493, unreported. Dominion and control can be proven by circumstantial evidence alone. State v. Lavender, supra, State v. Jenks, supra. In the case at hand, the state presented circumstantial evidence that appellant had dominion and control over the contraband items, beyond evidence that the items were found near the appellant. The police officers testified that appellant slowed the car to five or ten miles per hour and drove for 1,000 feet before stopping. While the car was driving slowly, the officers saw appellant and her passenger making furtive gestures. Appellant asserts that furtive movements are irrelevant, citing State v. Bobo (1988), 37 Ohio St.3d 177. While Bobo stated that furtive gestures alone are not sufficient to create reasonable suspicion for a Terry stop, it also stated furtive gestures can constitute some evidence of reasonable suspicion. Furtive gestures have been -6- considered some evidence of possession. In the matter of Farr (Nov. 9, 1993), Franklin App. No. 93-AP-201, unreported. The officers also testified that the two suspects had a conversation and then Thompson changed his story and admitted to owning the PCP and gun. Thompson's story seemed questionable. Appellant admitted to owning the pager. She had $128 on her person when arrested. Based on these facts, a reasonable trier of fact could infer that appellant knowingly possessed the PCP, gun and pager. Appellant argues that Thompson's admission to the police that the items were his precludes a finding that appellant possessed the items. The jury was not required to believe Thompson's story, which seemed questionable. Additionally, appellant and Thompson could be found in joint possession of the items. See State v. Ward (June 2, 1994), Cuyahoga App. No. 65366, unreported. The state presented sufficient evidence to prove appellant possessed the items in question. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: GIVEN THE FACT THAT DIRECTED VERDICTS AGAINST CRIMINAL DEFENDANTS ARE IMPERMISSIBLE, IT FOLLOWS THAT THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE COURT, IN EFFECT, DIRECTED A VERDICT AGAINST THE ACCUSED ON THE QUANTITY ISSUE BEFORE THE JURY. Appellant contends the following instruction by the judge amounted to a directed verdict on the quantity issue: -7- THE COURT: The bulk amount is five grams. Three times the bulk amount is 15 grams, three times five. The amount actually taken by the police was 28 grams. Appellant asserts the judge removed from the jury the issue of the amount of drugs taken by the police. A jury instruction cannot invade the province of the jury by assuming a disputed fact is true. See City of Maumee v. Anistik (1994), 69 Ohio St.3d 339, 344. Here, it is questionable whether the amount of PCP in the vial was a disputed fact. The evidence showing the amount of drugs consisted of the scientific examiner's testimony, the lab report and the vial of PCP itself. The evidence was uncontradicted and not dependent on oral evidence alone. Even if the amount of drugs was a disputed fact, any error in the court's instruction was harmless. See Crim.R. 52(A). There was no reasonable probability the instruction contributed to the accused's conviction and the error was harmless beyond a reasonable doubt. See State v. Bayless (1976), 48 Ohio St.2d 73, State v. Brown (1992), 65 Ohio St.3d 483. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED HER CO-DEFENDANT TO REVEAL TO THE JURY THAT SHE HAD PREVIOUSLY BEEN IN PRISON. * * * Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as -8- proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evid.R. 404(B). Here, the evidence that appellant had been in prison before was not offered to prove appellant's character and show she acted in conformity with the prior criminal act. The evidence was offered to show the identity of the person in possession of the gun and drugs, and that appellant knowingly possessed the drugs. See State v. Wickline (1990), 50 Ohio St.3d 114, State v. Matthews (1992), 80 Ohio App.3d 409. The probative value of this evidence outweighs any prejudicial effect, especially because the defense attorney vigorously cross-examined the co- defendant. See Matthews, supra. The trial court did not err in admitting the co-defendant's testimony that appellant stated she had been in prison before. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -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. MATIA, DAVID T., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .