COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68112 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JANICE ROSADO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-311562 JUDGMENT: AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL ERRORS. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. VINCENT F. GONZALEZ, ESQ. CUYAHOGA COUNTY PROSECUTOR 2159 West Boulevard BY: JOHN CLOUGH, ESQ. Cleveland, Ohio 44102 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant, Janice Rosado, appeals her conviction for two counts of Trafficking (Heroin and Marijuana) in violation of R.C. 2925.03 and one count of Possession of Criminal Tools in violation of R.C. 2923.24. Appellant claims that the trial court erred in denying her motion to suppress evidence without conducting a hearing. Appellant also claims that her convictions are based upon insufficient evidence and that the court abused its discretion by denying her motion for treatment in lieu of conviction. Upon review, we find appellant's assignments of error to be without merit. Her convictions are affirmed. The transcript of appellant's bench trial demonstrates that on Monday May 16, 1994 at approximately 4:00 p.m., Detectives Escalante, Dvorak and other Cleveland police officers executed a search warrant at 3238 West 44th Street and arrested the appellant and her co-defendant husband after observing a controlled drug purchase. Escalante read Miranda rights to the appellant and the co-defendant. He subsequently heard the appellant, who had been asked by the co-defendant in Spanish, "Do you have that on you?" answer, "Yes." He then heard the co-defendant say, "Oh, my God." This exchange prompted Escalante (who understood spanish) to seize a pouch pinned to appellant's sweater which contained ten packets of heroin and $465 in U.S. currency including $20.00 in "buy money." Escalante also seized 14 small bags of marijuana from a dresser drawer which contained appellant's personal papers. Other - 3 - drug paraphernalia, including an electronic scale, plastic bags, a .38 revolver, two Motorola pagers, a portable phone and a crack pipe were also seized from appellant's apartment. Appellant denied selling drugs, stated that she was addicted to heroin and that the heroin seized was for her personal use. She further stated that her husband gave her the $465 and that she had no idea how the "buy money" got into the pouch. The court overruled appellant's motion to suppress evidence and also overruled her motion for acquittal prior to finding her guilty. The instant appeal followed. I THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE WITHOUT HEARING. Appellant advances three arguments in support of her first assignment of error. First, she argues that the trial court overruled her motion without conducting a hearing. Second, she argues that the evidence seized from her apartment on May 16, 1994 was inadmissible because the search warrant issued on May 12, 1994 was valid for only three days and had expired on May 15, 1994. Third, she argues that Crim.R. 45 is inapplicable to Crim R. 41 and thus, it does not extend the time for service of the warrant. We find appellant's arguments to be meritless. The record demonstrates that the court held a hearing in response to appellant's motion to suppress evidence prior to trial on October 12, 1994. (See, Tr. Pg. 6) Also, while Crim.R. 41 states that a search warrant "... shall command the officer to search within three days, the person or place specified" such - 4 - language does not negate the application of Crim.R. 45(A) which provides in relevant part that: In computing any period of time prescribed or allowed by these rules... the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in computation. Hence, since May 12, 1994 fell on a Thursday, the state had until Tuesday, May 17, 1994 to execute its warrant. Therefore, the state's execution of the warrant on May 16, 1994 was timely. Appellant cites no authority to support her novel argument that Crim.R. 45 is inapplicable because it follows Crim.R. 41. Appellant's first assignment of error is overruled. II THE COURT ERRED IN CONVICTING APPELLANT OF TRAFFICKING ON THE MERE EVIDENCE OF POSSESSION AND ABSENT ANY OTHER PROOF. Appellant claims that her conviction for trafficking is based upon insufficient evidence because the state failed to produce evidence that she knowingly prepared the drugs for shipment or distribution pursuant to R.C. 2925.03. Appellant also claims that the state failed to prove possession of criminal tools beyond a reasonable doubt because four other individuals lived in the apartment. Lastly, appellant claims that the state failed to prove - 5 - its case because the prosecutor questioned Detectives Dvorak and Escalante about events which occurred on May 17, 1994 and the record was never amended to reflect prosecution for May 16, 1994. Appellant's arguments are devoid of merit. 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. State v. Jenks (1991), 61 Ohio St.3d 259. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. The credibility of the witnesses is primarily a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. Detective Escalante testified that he personally seized $465.00 including $20.00 in "buy money" and ten "unit doses" of heroin amounting to .21 grams from appellant's person one-half hour after observing a controlled purchase of drugs from her apartment. Escalante opined that the "unit doses" and their total weight were inconsistent with personal use. He further testified that he seized 14 bags of marijuana from a middle dresser drawer and that each bag contained enough marijuana to produce several cigarettes. - 6 - (Tr. 45, 51-52) Detective Dvorak testified that appellant's personal papers were found in the same drawer as the marijuana. Hence, the record demonstrates that the seized drugs were found in an amount and were packaged in a manner that was inconsistent with personal use. The record also demonstrates that the drugs were found either on appellant's person or in with her personal papers. Hence, sufficient evidence was adduced at trial to support appellant's conviction. Moreover, both officers opined that drugs were being sold from appellant's apartment based upon prior surveillance and their observance of a controlled buy one-half hour before appellant's arrest. Appellant's actual possession of "buy money" is sufficient to support her conviction for possession of criminal tools as is her constructive possession of an electronic scale and a dosage divider which Detective Dvorak seized from the dresser containing her personal papers. See, State v. Bey (February 7, 1991), Cuyahoga App. No. 57973, unreported. While appellant claimed to be an addict and denied any involvement in trafficking, her credibility is to be determined by the trier of fact. See, DeHass, supra. Appellant's argument that the state prosecuted her for events occurring on May 17, 1994 is particularly specious as the totality of the exchange between the court and the state indicates that the record was amended to reflect a prosecution for events occurring on May 16, 1994 and that - 7 - 1 counsel was aware of such amendment as he objected to same. Upon review we find, substantial, competent and credible evidence to prove appellant's convictions beyond a reasonable doubt. Her second assignment of error is overruled. III THE COURT ABUSED ITS DISCRETION WHEN IT ORDERED APPELLANT TO JAIL WITHOUT BENEFIT OF TREATMENT OR PROBATION. Appellant's third assignment of error is meritless. R.C. 2951.041(B)(5) specifically prohibits treatment in lieu of conviction for persons "charged with any offense defined in section 2925.02; 2925.03 or 2925.21 of the Revised Code." Since, appellant was charged with offenses specified under 1 Defense: Now, again, drawing your attention to the day you were arrested -- The Court: Which for the record is? Defense: Which for the record is the 16th of May. The Court: 1994? Defense: Yes. Appellant: Yes. Defense: Did there come -- The Court: Wait one second. I noticed on one of the indictments a date in January of 1993; what's that all about, count 4? Is that a typo? The State: Yes, Judge, they should be all the same day. The Court: Move to amend? The State: Yes, your honor. We can also amend from Rosada to Rosado since -- The Court: R-o-s-a-d-a? Defense: R-o-s-a-d-o. The Court: Motion to amend the A to an O is granted. The State: Thank you, your honor. Go ahead. Defense: Your Honor, we will object to the amendment of count 4, but be that as it may -- The Court: Objection -- the objection is overruled. (Tr. 93) - 8 - R.C. 2925.03, the trial court lacked discretion to grant appellant's motion. Her third assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. We remand this cause for clerical correction of the spelling of appellant's last name. Appellant's last name appears as "Rosada" in all trial court documents. However, the correct spelling of her name, per the court's amendment, is "Rosado." (See, fn. 1) It shall be so revised. - 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. SWEENEY, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE 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, .