COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67867 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION YORAINA GARCIA : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 22, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-310350C JUDGMENT : REVERSED AND APPELLANT DISCHARGED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: DEBORAH NAIMAN, ESQ. DAVID M. SANTOLI, ESQ. Assistant County Prosecutor 820 Rockefeller Building 8th Floor, Justice Center 614 Superior Avenue, N.W. 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, C.J. Defendant-appellant, Yoraina Garcia ("appellant") appeals from her conviction of possession of heroin in violation of R.C. 2925.03(A)(9), drug trafficking in violation of R.C. 2925.03(A)(2) and possession of criminal tools in violation or R.C. 2923.24. The convictions result from the transporting of heroin in an amount equal to or exceeding one hundred times bulk amount (71.76 grams) from New York City to Cleveland, Ohio. The appellant was arrested and indicted along with three other individuals not parties to this appeal, co-defendant Carlos Garcia, ("Garcia") co- defendant Emilio Rodriguez ("Rodriguez") and Jose Gonzales ("Gonzales"). Gonzales pleaded guilty to reduced charges in exchange for testimony against appellant, Garcia and Rodriguez. The appellant, Garcia and Rodriguez were tried together. Cleveland Police Detective Daniel Rood testified that he obtained information from a confidential source that three hispanic males were coming from New York with a large shipment of heroin on April 15, 1994 at the Greyhound bus station located in Cleveland. Det. Rood stated that on the morning of April 15, 1994 he and the confidential source were parked outside the bus station in a police car with smoked windows. Det. Rood was then informed by the confidential source that one of the hispanic males, Garcia, came out of the bus station and looked up and down the street. A few minutes later Det. Rood was informed by the informant that Gonzales come out of the bus station and lit a cigarette. - 3 - After receiving this information, Det. Rood notified a team of police officers that the suspects were in the bus terminal and gave a description of the men. Det. Rood then observed the appellant, Garcia and Rodriguez get into Rodriguez's car. Det. Rood ordered the three suspects in the car apprehended. Subsequent to the apprehension the officers went into the bus terminal to look for the fourth suspect, Gonzales. Det. Rood stated that the confidential source had never seen the appellant before this incident. Det. Rood testified that he did not see the appellant carry the bag which contained the heroin. Cleveland Police Officer Tim Russell testified that he worked in the Third District as a canine handler. He and his dog, Rocky Balboa have been partners for five years. Rocky is trained to detect five major street drugs, including heroin. Officer Russell stated that on the morning of April 15, 1994, he was assigned to the Greyhound bus station to assist the narcotics unit. Officer Russell testified that he received a signal that the suspects had been observed getting into a Chrysler parked in front of the bus station. Officer Russell then assisted in the appre- hension of the appellant, Garcia, and Rodriguez. Officer Russell stated that subsequent to the removal of the three suspects from the car, he and Rocky went inside the bus terminal to assist the detectives with locating the fourth suspect, Gonzales. Officer Russell stated that as he walked into the terminal Rocky took hold of a yellow and black gym bag with his - 4 - teeth. Eventually, an officer opened the bag and Rocky grabbed a box of cereal out of the bag and shook it from side to side. Two small packages wrapped in newspaper fell out of the box. Officer Russell stated that there were three boxes of cereal, all containing small packages, which tested positive for heroin. Officer Russell testified that Rocky did not sniff the appellant. Moreover, Officer Russell did not observe appellant handle the bag that contained the heroin. Gonzales testified that he was arrested with Garcia, Rodriguez and the appellant on April 15, 1994. Gonzales stated that his penalty was reduced for his cooperation in the prosecution of the above three co-defendants. Gonzales was employed as a "mule" by Alberta Pena. Pena would pay Gonzales $50 and two packages of heroin to transport heroin from New York to Cleveland. According to Gonzales, Pena was in charge of the heroin operation and he took his orders from Pena, Garcia and two other men both named "Antonio." Gonzales stated that he has known Garcia for approximately eight months, he has known Rodriguez for five months and has seen the appellant only two or three times. Gonzales testified that he came to Cleveland by bus eight or nine times with Garcia for the purpose of selling heroin. On April 14, 1994, Pena gave Gonzales the bag of heroin in Pena's apartment located in New York City. Gonzales stated that his job was to carry the bag containing the heroin, Garcia would never carry the heroin. Gonzales testified - 5 - that he would deliver the drugs to a man named Abel, who would then distribute them, collect the money and give the money to Garcia. Garcia was responsible for making sure the heroin was delivered to the right people in Cleveland and for carrying the money from the heroin sales. After all of the money was collected from Abel, Gonzales and Garcia would return to New York together. Gonzales said Garcia usually collected between $10,000 and $20,000. Gonzales testified that when he, Garcia and the appellant arrived in Cleveland on the morning of April 15, 1994, Garcia and the appellant went to the telephone inside the terminal. Gonzales stated that he put the bag by the wall near the telephone. Gonzales recognized the police officers and told Garcia and the appellant that they were caught. At this time Rodriguez came into the terminal and Garcia and the appellant left with Rodriguez going to a car parked outside the front of the bus station. Gonzales moved the bag near a double set of glass doors and went into the coffee shop. A few minutes later he was arrested. The only testimony from Gonzales regarding the appellant was that he had met her socially in New York a few times. Gonzales also testified that the appellant came to Cleveland on April 15, 1994, "to pick up some money." Gonzales never stated that the money appellant was picking up was in any way related to the sale of heroin as he did when he testified with respect to Garcia's involvement with the drug transaction. - 6 - Cleveland Police Detective Charles Charney testified that on April 15, 1994, he was assigned to an undercover vehicle parked in front of the bus station. He and several other police officers were waiting for a group bringing in heroin from New York City. Around 9:15 a.m. Det. Charney was informed that Rodriguez, who was the "wheel man" for the group that comes in from New York City, had just walked into the bus station. Det. Charney then observed Rodriguez exit the bus terminal and pull his car in front of the bus terminal. Det. Charney then watched appellant and Garcia get into Rodriguez's car. Det. Charney testified that he and the other police officers detained Rodriguez, Garcia and the appellant. Once the three were securely detained, some of the officers went into the bus terminal to look for the fourth suspect, Gonzales. Thereafter, the officers came out of the bus terminal with the yellow bag filled with heroin. Andrew Charchenko, a city of Cleveland Police Officer testified that he worked in the narcotics unit and on April 15, 1994, he was assigned to the bus station for surveillance. Officer Charchenko stated that he observed the appellant and Garcia coming off a bus and walking to a phone booth. Charchenko next observed Gonzales walk up to the appellant and Garcia with a black and yellow bag. Garcia and the appellant then left with Rodriguez. Gonzales placed the bag on the floor near glass doors and walked - 7 - into the coffee shop. Charchenko stated that he never saw the appellant pick up the bag and carry it anywhere. Detective Edward Prinz of the Cleveland Police Department testified that he is assigned to the latent print section of the scientific investigation unit. Det. Prinz stated that he analyzed the cereal boxes and the cut up magazine and newspaper that was used for packaging the heroin in the cereal boxes in this case. Det. Prinz stated that none of the fingerprints on the boxes or the packaging were matched to the appellant. Cleveland Police Detective Greg Whitney testified that he was assigned to the narcotics unit on April 15, 1994. Whitney stated that he was partnered with Officer Charney on the morning of April 15, and he corroborated the testimony of Charney. Det. Whitney testified that he confiscated $972, and a pager from Rodriguez. Det. Whitney also stated that the contents of one of the bags found in the car contained ladies clothing, a tape cassette player and a tape of Tito Rojas. Richard Romero testified that he was involved with the promotion of the Tito Rojas concert at the Statler Ballroom on April 16, 1994. Romero stated that Rojas was a famous Latin musician, on the level of the Rolling Stones or David Bowie. Over 2,000 people attended the concert and the majority of people came from Ohio, however, five to ten percent came from out of state. The concert was promoted in New York, Chicago and Detroit. Romero - 8 - identified appellant's exhibit as a flyer used to promote the concert. Appellant's first assignment of error states: I. THE APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT REFUSED TO ORDER THE APPELLEE TO DISCLOSE THE IDENTITY OF ITS INFORMANT. [SIC] THEREBY PREVENTING THE APPELLANT FROM OBTAINING THE TESTIMONY OF A FAVORABLE WITNESS WHO WOULD HAVE EXONERATED HER. Appellant maintains that her constitutional rights were violated when the trial court refused to order the state to disclose the identity of its informant. Appellant claims that the testimony of the informant would have exonerated her. Specifically, appellant asserts that her right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution was violated when the trial court refused to order the disclosure of the informant's identity. Ohio law is clear that an informant's identity must be revealed to a criminal defendant where the informant's testimony is (a) vital to establishing an element of the crime, or (b) helpful or beneficial to the accused in the preparation of a defense. State v. Williams (1983), 4 Ohio St. 3d 74, 77. "Generally, disclosure is not required where the informant's role is that of a mere tipster." State v. Feltner (1993), 87 Ohio App.3d 279, 282. However, if the degree of participation of the informant is such that the informant essentially becomes a state's witness, the scale tips in favor of disclosure. Williams, supra, at 76. - 9 - A trial court's decision with respect to the disclosure of a confidential informant's identity will not be reversed absent an abuse of discretion. Feltner, supra, at 282. The Supreme Court of Ohio has held, the term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. State v. Adams (1981), 62 Ohio St.2d 151, 157. In the present case, we find no abuse of discretion by the trial court when it denied appellant's motion to reveal the identity of the confidential source. It is clear from the evidence that the informant was simply a tipster and was not considered a witness for the state. Furthermore, it is evident that the confidential informant's identity was disclosed at trial during defense counsel's cross- examination of Gonzales. Nothing prevented appellant from subpoenaing the informant to testify on her behalf. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: II. THE APPELLANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE PROSECUTING ATTORNEY TOLD THE JURY THAT THE APPELLEE'S CASE WAS UNCONTROVERTED. Appellant maintains that her right to a fair trial was violated when the prosecuting attorney told the jury that the state's case was uncontroverted. Specifically, appellant contends by allowing the prosecutor's statement that the states's case was - 10 - uncontroverted the trial court essentially declared to the jury that the appellant did not have a right to remain silent during the trial. We find this contention without merit. Initially we note that when the prosecutor made the remark that the state's evidence was uncontroverted during closing arguments defense counsel objected and the trial court sustained the objection. Furthermore, the Ohio Supreme Court held in State v. Ferguson (1983), 5 Ohio St.3d 160, paragraph two of the syllabus: "A reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused's failure to testify, where the comment is directed to the strength of the state's evidence and not to the silence of the accused, and the jury is instructed not to consider the accused's failure to testify for any purpose." In the present case, the jury was instructed not to consider the appellant's failure to testify for any purpose. Accordingly, we find that the prosecutor's remarks did not prejudice the appellant. Therefore, appellant's second assignment of error is overruled. Appellant's third assignment of error states: III. THE APPELLEE DID NOT PRESENT SUFFICIENT EVIDENCE AT TRIAL TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS KNOWINGLY INVOLVED IN THE TRANSPORTATION OF ILLEGAL DRUGS. Appellant maintains that the state did not present sufficient evidence at trial to prove beyond a reasonable doubt that she - 11 - knowingly was involved in the transportation of illegal drugs. Specifically, appellant contends that there was insufficient evidence to maintain any of her convictions and she also argues that her conviction was against the manifest weight of the evidence. When an appellate court reviews a conviction to determine whether it is supported by sufficient evidence, the court must "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, paragraph two of the syllabus. Moreover, the Supreme Court noted that circumstantial evidence and direct evidence have the same probative value and should be subjected to the same standard of proof. Id. at paragraph one of the syllabus. An appellate court will not reverse a conviction unless it appears that no rational trier of fact could have found all the elements of the offense had been proved beyond a reasonable doubt. We first address the possession violation. R.C. 2925.03(A)(9) provides: (A) No person shall knowingly do any of the following: - 12 - * * * (9) Possess a controlled substance in an amount equal to or exceeding one hundred times the bulk amount. R.C. 2925.01(L) defines "possession" to mean "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." Moreover, R.C. 2901.21(C), requirements for criminal liability, states as follows: "(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have ended possession." Possession may be actual or constructive. State v. Mann (1993), 93 Ohio App.3d 301, 308; State v. Haynes (1971), 25 Ohio St.2d 264. Since no drugs were found on appellant's person, the state must have proved appellant constructively possessed the contraband. Id. A person has constructive possession of a substance when he is able to exercise dominion or control over it. Mann, supra. Ownership of the contraband need not be established. A person may indeed control or possess property belonging to another. Id. The evidence in this case does not show beyond a reasonable doubt that the appellant had actual or constructive possession of the bag containing the heroin. Gonzales testified that he alone had actual possession over the bag. Furthermore, none of the - 13 - police officers saw appellant carry the bag. Therefore, the state had to prove that appellant had constructive possession over the bag. After a thorough review of the record we find no evidence to support the conviction of possession of heroin. Gonzales, the state's main witness testified that he had met the appellant two or three times at someone's apartment in New York. Gonzales stated that he had no business contact with the appellant and that he had never previously travelled to Cleveland with her to sell heroin. The only incriminating evidence against the appellant is Gonzales' statement that appellant came to Cleveland "[t]o pick up some money." This does not prove beyond a reasonable doubt that appellant had any dominion or control over the bag of heroin. Moreover, there is no evidence that appellant gave Gonzales any directions. When asked who he took his direction from in the drug trafficking operation, Gonzales stated Garcia, Antonio Senior, Antonio Junior and Pena. There was no testimony from Gonzales that appellant had any control over the bag of heroin or over Gonzales. Accordingly, we find that the appellant's conviction was not supported by sufficient evidence and therefore, a rational trier of fact could not have found the essential elements of possession proven beyond a reasonable doubt. Jenks, supra. Next, we address appellant's conviction for aggravated trafficking. R.C. 2925.03(A)(2) states: (A) No person shall knowingly do any of the following: - 14 - * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; This court has held that drug trafficking requires evidence of possession and either preparation for shipment, shipment, transportation, delivery, preparation for distribution or distribution with reason to believe the drugs were intended for sale or resale. State v. Arrington (1990), 64 Ohio App.3d 654, 657. Since we have found insufficient evidence that appellant had possession of the heroin, we cannot find that she was trafficking the heroin pursuant to Arrington, supra. Therefore, appellant's conviction for drug trafficking is reversed. Next we address appellant's conviction for criminal tools, which included: money, pager, cereal boxes, gym bag, and 1979 Chrysler. R.C. 2923.24 proscribes the possession of criminal tools and provides, in relevant part: "(A) No person shall possess or have under his control any substance, device, instrument, or article with purpose to use it criminally. "(B) Each of the following constitutes prima- facie evidence of criminal purposes: * * * * * * - 15 - "(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use." As previously stated possession of an object may be either actual or constructive. Constructive possession requires that the appellant be able to exercise dominion or control over the objects. See Mann, supra. In the present case we have already determined that appellant did not have constructive possession of the bag which contained the cereal boxes full of heroin. Moreover, there is no evidence that appellant had control over the money or pager found on Rodriguez, nor is there any evidence that appellant had control over Rodriguez's 1979 Chrysler. Hence, the appellant never physically possessed these items nor was she given the power to exercise control over them. See State v. Smith (1993), 92 Ohio App.3d 172, 176. Accordingly, we find there was not sufficient evidence for the trier of fact to determine beyond a reasonable doubt that appellant was guilty of possession of criminal tools in violation of R.C. 2923.24. For the reasons stated above, the judgment of the trial court with respect to appellant's conviction for possession of heroin, aggravated trafficking, and possession of criminal tools is reversed and the corresponding sentence for those offenses is vacated. - 16 - Judgment accordingly. - 17 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said 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. HARPER, J. PORTER, J., CONCUR CHIEF JUSTICE JOHN T. PATTON 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, .