COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67486 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION GEORGE HARRIS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 6, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-306405 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Jeffrey Margolis Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For defendant-appellant: John P. Hyland HYLAND & McCRONE 2336 Canterbury Road University Heights, OH 44118 -2- NAHRA, J.: Appellant, George Harris, is appealing his conviction for drug abuse. He contends the conviction was against the weight and sufficiency of evidence. For the following reasons, we affirm. Sergeant William Cunningham testified that he was driving a marked police van northbound on East 79th Street. He was leading a detail of three other unmarked police cars of the Street Crimes Unit, to conduct undercover drug buys. At 6:40 p.m., at the intersection of East 79th and Decker, Cunningham observed a station wagon blocking traffic in the southbound lane of East 79th, with five or six cars behind it. The appellant was leaning into the passenger window of the car. Appellant did not have grocery bags in his hands. Cunningham pulled the van almost head-on in front of the station wagon. He intended to cite the driver of the vehicle for a traffic violation. The sergeant exited the van, with his gun drawn, which he stated was usual for a traffic stop. Then, Cunningham observed appellant back away from the station wagon, look at the police and throw something to the ground. Cunningham was ten feet away from appellant. Detective Oxley, who was riding in the van with Cunningham, yelled that appellant threw something down. Then, Cunningham and Oxley attempted to arrest and handcuff appellant, but appellant resisted. They pushed appellant, and when appellant's feet moved away they saw a blue packet on the ground. Oxley instructed Detective Cottom to pick up the packet. Cottom -3- had come over to assist in the struggle. The packet contained cocaine. In the commotion, the driver of the station wagon was never cited. When the officers first pulled up, they also observed two young men near appellant. They were appellant's brother, James Harris, and appellant's cousin, Ahmed Hinton. The males had grocery bags. One of them had an open container of beer, and the police instructed him to pour it out. Detective Oxley told essentially the same story as Sgt. Cunningham. Oxley stated they were on their way to answer complaints, not to conduct an undercover buy. Oxley saw appellant throw the object down. The object was discovered under appellant's feet and turned out to be a rock of crack. The two young males with appellant had grocery bags, but appellant had no grocery bag. Oxley said he drew his gun because he suspected drug activity. Detective Cottom testified that she saw the blue packet on the ground where appellant's feet had been. Cottom picked up the packet. She went to talk to the other two males, and instructed them to pour out the open container of beer they were carrying. Neither the two males, nor appellant had any grocery bags. Joseph Smith, appellant's cousin, testified that he loaned appellant fifty dollars to buy beer and wine for appellant's birthday party. Smith dropped appellant off at Mike's Discount Store at 5:45 p.m. -4- Thomas Walker, a clerk at Mike's Discount, testified that around 5:30 p.m., appellant purchased three or four bags of wine and beer. Appellant left the store alone. Ahmed Hinton, appellant's cousin, testified he was at his uncle's house with appellant's brother, James. Appellant called James and asked for help carrying grocery bags from Mike's Discount. Ahmed and James met appellant inside the store. Then, the three men walked to the uncle's house to obtain a donut tire and a four-way lug wrench. James intended to fix the flat tire on his car, which car had been left at appellant's place. The three went to the bus stop on East 79th and Decker, to catch a bus to appellant's home. A station wagon pulled up to the corner and appellant started talking to the driver. Just then, a paddy wagon blocked the station wagon. Police came at the three men with their guns drawn and threw Ahmed and James to the ground. Appellant was carrying two grocery bags of beer and Thunderbird, and the police told appellant to drop the bags. Appellant could not have thrown anything to the ground because he had a grocery bag in each hand. The police shoved appellant against the station wagon. The police hit appellant in the face, but a picture taken of appellant upon arrest shows no marks on his face. The police confiscated the beer and wine. James Harris, appellant's brother, told essentially the same story as Ahmed Hinton. James said his brother set the grocery bags down when the policeman hit him. He also said the tire was for his -5- girlfriend's father. Neither he nor Ahmed had an open container of beer. Appellant's sole assignment of error states: GEORGE HARRIS HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BECAUSE HIS CONVICTION FOR POSSESSION OF COCAINE WAS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO PROVE EVERY ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 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. The essential elements of the crime in question are: the offender knowingly obtained, possessed or used cocaine and was convicted of a prior drug abuse offense. R.C. 2925.11(A), (C)(1). The parties stipulated that appellant had been convicted of a prior drug abuse offense. The testimony of Sgt. Cunningham and Detectives Oxley and Cottom established that appellant threw a rock of crack to the ground and hid it with his feet. The testimony of Ahmed Hinton and James Harris was that appellant had a grocery bag in each hand and could not have thrown down anything. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find that appellant threw the rock to the ground, and thus knowingly possessed cocaine. The evidence was sufficient to support the conviction. -6- In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence the trier of fact 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. Martin (1983), 20 Ohio App.3d 172, quoting Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 71 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, contradicted or uncontradicted, reliable or unreliable, certain or uncertain, whether a witness was impeached and whether a witness' testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a jury verdict where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. Appellant argues the testimony of the police was contradicted by the testimony of Ahmed and James. Sergeant Cunningham's testimony that it was normal procedure to draw a gun for a traffic stop was incredible. Detective Oxley explained, however, that the police drew weapons because of suspected drug activity and because they were in a high crime area. The testimony of Cunningham, Oxley and Cottom essentially corroborated each other, although there are minor inconsistencies. The officers observed appellant at close range and were positive he threw drugs to the ground and covered -7- them with his feet. The testimony of Ahmed and James also contained contradictions. Appellant asserts the officers lied about the absence of grocery bags, because they confiscated the beer and wine and did not turn it in to the police property room. The officers denied taking the alcohol and testified they would not put their careers in jeopardy by lying in court. Ahmed and James had a motive to testify because of their relationship to appellant. Therefore, this is not a case where the prosecution witnesses were totally lacking in credibility and the defense witnesses were essentially credible. See State v. Abi-Sarkis (1988), 41 Ohio App.3d 333. It was the jury's prerogative to determine whether the officers' testimony or the defense witnesses' testimony was credible. See State v. DeHass (1967), 10 Ohio St.2d 230, State v. Tyler (1990), 50 Ohio St.3d 24. We cannot say that the jury lost its way in reaching their decision on credibility. The officers' testimony was substantial, competent and credible evidence supporting the conviction. Therefore, the verdict was not against the weight of the evidence. Accordingly, his assignment of error is overruled. The decision of the trial court is affirmed. -8- 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. BLACKMON, P.J., and HARPER, 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 it will become the judgment and order of the court and time period for review will begin to run. .