COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67912 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION EMILIO RODRIGUEZ : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 31, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-310,350 JUDGMENT : REVERSED AND : APPELLANT DISCHARGED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH R. NAIMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: LAURA T. PALINKAS Attorney at Law 11701 Tonsing Drive Cleveland, Ohio 44125 JOHN V. CORRIGAN, J.: Emilio Rodriguez was found guilty after a jury trial of two counts of aggravated drug trafficking (counts one and two) in violation of R.C. 2925.03 and one count of possession of criminal tools, including money, a pager and a 1979 Chrysler automobile, (count three) in violation of R.C. 2923.24. The trial court sentenced the appellant to the Lorain Correctional Institution for a term of fifteen years to life on count one (with the fifteen years being a term of actual incarceration), one year on count two and one year on count three. All sentences were to run concurrent to each other. The appellant now appeals, raising two assignments of error for this court's review: I. WHETHER THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY OVERRULING APPELLANT'S RULE 29 MOTION FOR ACQUITTAL WHERE ALL OF THE STATE'S WITNESSES TESTIFIED THAT APPELLANT NEVER POSSESSED, TOUCHED, CARRIED, EXERCISED DOMINION AND CONTROL, PREPARED FOR SHIPMENT, SHIPPED, TRANSPORTED OR DELIVERED ONE HUNDRED TIMES THE BULK AMOUNT OF HEROIN. II. WHETHER THERE ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C. 2925.41 WHERE APPELLANT IS CHARGED WITH ONE COUNT OF POSSESSION OF HEROIN AND ONE COUNT OF PREPARING SAID HEROIN FOR SHIPMENT OR DISTRIBUTION, AND THE FACTS DEMONSTRATE THAT BOTH CHARGES ARE BASED UPON THE SAME QUANTITY OR HEROIN AND THAT APPELLANT COULD NOT HAVE PREPARED SAID HEROIN FOR - 3 - SHIPMENT OR DISTRIBUTION WITHOUT ALSO POSSESSING IT. I. The convictions stem from the transporting of heroin in an amount equal to or exceeding one hundred times the 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, Yoraina Garcia, Carlos Garcia and Jose Gonzales. Defendant Gonzales pleaded guilty to reduced charges, in exchange for which he testified against the appellant, Carlos Garcia and Yoraina Garcia at their joint trial. In addition to the testimony of Mr. Gonzales, the State of Ohio presented the testimony of six Cleveland police officers in its case against the appellant; viz., Patrolman and Canine Handler Timothy Russell, Detective Charles Charney, Detective Andrew Charchenko, Detective Edward Prinz, Detective Greg Whitney and Detective Daniel Rood. The state's evidence was as follows: On April 14, 1994, a confidential informant advised Det. Rood of the Narcotics Unit that a large shipment of heroin was being transported to Cleveland from New York City via a Greyhound bus the following morning, April 15, 1994. The informant described the couriers as (1) an Hispanic male by the name of Carlos, (2) an older Hispanic male with short hair and (3) a third unidentified Hispanic male. - 4 - It was subsequently learned from Greyhound that there were two buses coming in from New York City during the morning hours of April 15, 1994, one at 7:00 a.m. and the other at approximately 9:15 a.m. With this information, the police, together with the confidential informant, set up surveillance at the Greyhound bus station shortly before 7:00 a.m. on April 15, 1994. Det. Rood and the confidential informant were stationed in a van directly opposite the front doors to the Greyhound station. Following Det. Rood's instructions, the other officers were assigned to various locations in and around the Greyhound station. At approximately 9:18 a.m., an Hispanic male exited the Greyhound bus station and looked up and down the street. The confidential informant identified him as "Carlos," one of the couriers. A few minutes later, a second older Hispanic male, later identified as Jose Gonzales, exited the bus station and lit a cigarette. The confidential informant also identified Mr. Gonzales as one of the couriers. After a few moments, Gonzales extinguished his cigarette and went back inside the bus station. Det. Rood notified the rest of the surveillance team that the suspects were in the terminal area and gave a description of the men. After a few minutes, a third Hispanic male, later identified as the appellant, parked his older model Chrysler behind an undercover vehicle and went into the Greyhound station, where he - 5 - was observed talking with Carlos Garcia. The confidential informant also identified the appellant as being connected to this investigation. After a couple of minutes, the appellant returned to his vehicle and moved it to the front of the Greyhound station. Carlos and Yoraina Garcia then exited the Greyhound station and entered the appellant's vehicle. As the vehicle pulled away, Det. Rood ordered the three suspects in the car detained. No weapons were found on the appellant, Carlos or Yoraina Garcia. Subsequent to the detention of the appellant, Carlos and Yoraina Garcia, the detectives went into the Greyhound station to look for the fourth suspect, Jose Gonzales. As Det. Russell and canine Rocky Balboa walked through the double set of doors leading to the inside of the terminal, Rocky, without command, took hold of a yellow and black gym bag with his teeth. When no one claimed the bag, it was searched for weapons. During the search Rocky, without command, 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. The newspaper packages were opened, and suspected heroin was found inside. Gonzales was identified by the police as the person who carried the gym bag into the terminal area. The appellant was not seen carrying or handling the gym bag containing the heroin. Upon arrest of the appellant, $972 and a pager were found in his pants and confiscated. - 6 - Through an interpreter, Gonzales testified that prior to their arrest, he had known Carlos Garcia for approximately eight months. He was first introduced to Garcia in New York by Garcia's uncle, Alberto Pena. Pena would pay Gonzales $50 and two packages of heroin to transport heroin to Cleveland from New York City. 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 testified that he had carried heroin to Cleveland for Pena approximately eight or nine times before the April 15, 1994 transport. On each of these occasions, including the April 15, 1994 transport, Pena or Garcia would give Gonzales a travel bag containing heroin which was already packaged for sale. Garcia and Gonzales would then travel to Cleveland together. Gonzales said his role was solely to carry the bag containing the heroin. He said he would deliver the drugs to 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, the duo would then return to New York together. Gonzales said Garcia usually collected between $10,000 and $20,000. According to Gonzales, Garcia would not carry the bag containing the heroin because he was afraid of getting caught. - 7 - With regard to the April 15, 1994 transport, Gonzales said Pena called him on April 14, 1994 and told him he needed him to bring heroin to Cleveland for Abel. Gonzales went to Pena's apartment, where he was given the yellow and black bag to take to Cleveland. Gonzales, Garcia and Yoraina Garcia then took the midnight bus to Cleveland. When they arrived in Cleveland, Abel, who always picked them up, was not there. Gonzales said that as they waited, he became suspicious that there were police at the station. He said he put the gym bag in the vestibule area between the double set of doors and told the Garcias that there were police at the station. He said he then went outside the terminal to have a cigarette. Gonzales also testified that prior to his arrest, he saw Abel with a police officer outside the bus station, signalling him and the co-defendants out to the officer. As for the appellant's role in all of this, Gonzales said he never had any dealings with the appellant for money or drugs. Gonzales testified that he had known the appellant for approxi- mately two to three months prior to their arrest and had seen him on four or five different occasions. He said his contact with the appellant was purely social; he said they would go out to differ- ent restaurants in the area to eat and socialize. He further said that no drug business was ever discussed with the appellant at the restaurants or otherwise. Gonzales also testified that the - 8 - appellant had never picked them up from the bus station before April 15, 1994, the day they were all arrested. II. In his first assignment of error, the appellant argues that the trial court erred in denying his motion for acquittal as the evidence presented by the state was legally insufficient to warrant the submission of the case to the jury. Specifically, the appellant maintains that he was not in actual possession of the heroin and that there was insufficient evidence from which the trier of fact could have reasonably concluded that he construc- tively possessed the heroin. Concomitantly, the appellant argues that in the absence of evidence that he possessed the heroin, there was insufficient evidence to convict him of drug trafficking. An appellate court's function when reviewing a claim of insufficient evidence was affirmatively set forth by the Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, para- graph two of the syllabus, as follows: [A]n appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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. (Citation omitted.) - 9 - In this case, the appellant was charged and convicted with violating R.C. 2925.03(A)(9), which provides: (A) No person shall knowingly do any of the following: * * * (9) Possess a controlled substance in an amount equal to or exceeding one hundred times the bulk amount. "Possession" is statutorily defined in R.C. 2925.01(L) as follows: "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. Possession of a controlled substance can exist without physi- cal contact so long as the person has dominion and control over the controlled substance. See State v. Boyd (1989), 63 Ohio App.3d 790. After viewing the evidence presented by the state in this case in a light most favorable to the state, we find that no rational trier of fact could have found, beyond a reasonable doubt, that the appellant had actual or constructive possession of the heroin. Indeed, after a thorough review of the record, we find no evidence to support the conviction of possession of heroin. No witness saw the appellant with the yellow and black gym bag containing the heroin. Additionally, Gonzales testified that he had never had any dealings with the appellant for money or drugs. - 10 - He said that he had met the appellant four or five times over a two- to three-month time period and that on each of these occasions, he, the appellant, Carlos Garcia and whoever else was in from New York would go out to eat at different restaurants in town but that no drug business was ever discussed with the appellant. Gonzales also testified that before April 15, 1994, the day they were all arrested, the appellant had never come to pick them up at the bus station. Gonzales said Abel always came to pick them up, but he did not show up on April 15, 1994. Moreover, there is no evidence that the appellant knew that Gonzales and Garcia were transporting heroin from New York City to Cleveland, Ohio or that he gave them any directions. Gonzales said he took his directions from Pena, Carlos Garcia and the two men named "Antonio." Accordingly, we find that the appellant's conviction was not supported by sufficient evidence and, therefore, the trial court erred in denying his motion for acquittal. Concomitantly, we find that there was insufficient evidence to support the appellant's conviction for aggravated trafficking. This court has held that possession is a requisite element of drug trafficking under R.C. 2925.03(A)(2). State v. Arrington (1990), 64 Ohio App.3d 654; see, also, State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported, at 5, reversed in part and affirmed in part in (1991), 57 Ohio St.3d 50. - 11 - Since we have found that there was no evidence that appellant had possession of the heroin, we cannot find that he was traffick- ing the heroin pursuant to Arrington, supra. Accordingly, the appellant's conviction for drug trafficking is also reversed. Finally, we address, sua sponte, the appellant's conviction for criminal tools, which included the $972 and pager found on his person and the 1979 Chrysler he was driving on April 15, 1994. R.C. 2923.24 prohibits the possession of criminal tools as follows: (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: *** * * * (3) Possession or control of any sub- stance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. The appellant did have actual possession of the money, pager and 1979 Chrysler. However, there was no evidence presented by the state that the appellant possessed any one of these items with the purpose to use it criminally or possessed them under circumstances indicating that they were intended for criminal use. Accordingly, we find there was not sufficient evidence pres- ented which could convince the average mind of the appellant's guilt of possession of criminal tools. - 12 - For the foregoing reasons, the judgment of the trial court with respect to appellant's conviction for possession of heroin, aggravated trafficking and possession of criminal tools is re- versed and the corresponding sentences for those offenses are vacated. - 13 - 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 his 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. JOHN T. PATTON, C.J. and ANN DYKE, J. CONCUR JUDGE JOHN V. CORRIGAN* *SITTING BY ASSIGNMENT: John V. Corrigan, retired Judge of the Eighth Appellate District. 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, .