COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68142 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION STEVON WHITAKER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 5, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-311884. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Thomas A. Rein Assistant County Prosecutor The Justice Center 1200 Ontario Avenue Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Robert R. Clarico Assistant County Public Defender The Marion Building, Room 307 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., J.: Defendant-appellant Stevon Whitaker appeals his conviction for possession of a counterfeit controlled substance in violation of R.C. 2925.37. The appellant's record contained two previous drug convictions, and he was sentenced to a term of incarceration of three to five years. On May 26, 1994, at approximately 2:13 a.m., Beachwood Police Office Allan Baumgartner was on basic patrol when he observed a silver Ford Thunderbird automobile proceed through a red traffic signal at the intersection of Harvard and Green Road. Officer Baumgartner stopped the vehicle in order to issue a traffic citation. When a check was run on the man driving the vehicle, Leon Smith, the officer learned that there were several active and confirmed warrants for Smith's arrest from the Cleveland Police Department. Mr. Smith was placed under arrest. Two other police officers, Officer Winebrenner and Officer Zuzek, arrived to assist Officer Baumgartner. The appellant was a passenger in the motor vehicle driven by Leon Smith. Under these circumstances, prior to releasing a vehicle to the passenger, the police run a check to ensure the passenger is a licensed driver. When Officer Baumgartner checked the appellant's driver's license he learned that the appellant also had outstanding confirmed warrants for his arrest. The appellant was placed under arrest by Officer Zuzek. - 3 - Since there was no one to whom the police could release the vehicle, Officer Winebrenner performed an inventory search prior to having the car towed. As he opened the vehicle's door, the officer noticed a partially burned marijuana cigarette in the ashtray; he then noticed a yellow container located in the console between the front seats. He opened the container expecting to find marijuana, but instead found two white rocks that resembled crack cocaine. Upon searching under the console, Officer Winebrenner found a ceramic pipe of the type used to smoke cocaine; and in the glove compartment he located E-Z Wider cigarette rolling papers used to roll either tobacco or marijuana. The container which held the counterfeit controlled substance was within plain view and within reach of anyone in the passenger seat. Officer Zuzek testified that the arm of a person seated in the passenger seat would be within inches of the console. Officer Winebrenner stated that the container is not clear, and that to see the contents the container had to be opened. The appellant was transported to the Beachwood Police Station by Officer Zuzek. After their arrival at the station, the officer heard Leon Smith ask the appellant, "What are you doing here?" and he heard the appellant respond to the effect that the container, or the stuff, was found in the car (T. 51). Officer Zuzek testified that while Smith and the appellant were seated on the bench, they engaged in conversation. Each man denied knowledge of the contraband and blamed the other. - 4 - Officer Baumgartner testified that at the police station he heard the appellant say to Smith, "They found the plastic container in the car." (T. 121.) The officer testified that these were the appellant's exact words (T. 121). The appellant and Smith then began to bicker about the ownership of the material. The appellant then volunteered that the drugs did not belong to either him or to Smith, but that they belonged to the owner of the motor vehicle, Aaron Sanders. The appellant was permitted to make a telephone call to Sanders' friend, Lisa Cobb. The appellant had no address or telephone number for Sanders. After the call, the appellant informed Officer Baumgartner that "Sanders would be responding to the police station to clear up this whole matter." (T. 124.) Sanders never arrived or contacted the police. Officer Baumgartner also testified that the appellant indicated that the white pieces were not really cocaine. John Kucmanic of the Lake County Crime Laboratory testified that he performed tests on the items submitted by the Beachwood Police in order to determine whether or not drugs were present. After testing the two white rocks found in the container on the console, he determined that there was no illegal substance present. Since the appearance of the rocks is similar to the crack cocaine he analyzes on a daily basis, Mr. Kucmanic found this to be unusual. He performed a second test, and obtained the same result. The appellant sets forth one assignment of error: MR. WHITAKER'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE - 5 - FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. The appellant contests the sufficiency of the evidence presented supporting his conviction. He argues that the trial court erred in refusing to grant the appellant's motion for acquittal pursuant to Crim.R. 29. A court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. An appellate court when reviewing a claim of sufficiency must: 2. 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks (1991), 61 Ohio St.3d 259, syllabus 2. The appellant argues that the State failed to present sufficient evidence that appellant was able to exercise dominion or control over the counterfeit contraband. The State was required to - 6 - show, beyond a reasonable doubt, that the appellant violated R.C. 2925.37(A). The statute provides that, "No person shall knowingly possess any counterfeit controlled substance." The definition of "possess" is found in 2925.01(L): (L) "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 may be actual or constructive. State v. Mann (1993), 93 Ohio App.3d 301, 308. Ownership of a controlled substance is not a required element of the offense. Rather, control over the controlled substance is the key element to the offense. State v. Alicea (November 17, 1994), Cuyahoga App. No. 66411, unreported. Readily usable drugs in close proximity to a person may constitute sufficient direct and circumstantial evidence to support a finding of constructive possession. State v. Pruitt (1984), 18 Ohio App.3d 50, 58; State v. Benson (Dec. 14, 1992), Cuyahoga App. No. 61545, unreported. If the evidence demonstrates that the defendant was able to exercise dominion and control over the objects, the defendant can be convicted of possession. State v. Wolery (1976), 46 Ohio St.2d 316; State v. McCall (July 8, 1993), Cuyahoga App. No. 63103, unreported. Moreover, circumstantial evidence alone is sufficient to support the element of constructive possession. State v. Lavender (March 12, 1992), Cuyahoga App. No. 60493, unreported. - 7 - In the case sub judice, the State presented sufficient evidence upon which to convict the appellant. The State demonstrated the appellant was in constructive possession of the counterfeit cocaine when it introduced evidence that the appellant was seated in very close proximity to the counterfeit cocaine. This, along with the additional evidence from two police officers who testified that the appellant and the driver of the vehicle discussed the fact that the police found the container in the vehicle; that the two men each tried to blame each other for the drugs; and Officer Baumgartner's testimony that the appellant informed the police that the substance was not cocaine, clearly illustrated to the court that the appellant had knowledge that the counterfeit cocaine was in the motor vehicle. The trial court did not err in overruling the appellant's motion for acquittal. The appellant's assignment of error is overruled. Judgment 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. LEO M. SPELLACY, P.J., CONCURS; ANN McMANAMON*, J., DISSENTS, WITH DISSENTING OPINION ATTACHED. (*)Sitting by Assignment: Ann McManamon, Retired Judge of the Eighth District Court of Appeals. JAMES D. SWEENEY 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68142 STATE OF OHIO : : Plaintiff-appellee : : vs. : DISSENTING OPINION : STEVON WHITAKER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 5, 1995 ANN McMANAMON, J., DISSENTING: I respectfully dissent. In my view, the state failed to present sufficient evidence to establish that the appellant possessed the counterfeit contraband. Pursuant to R.C 2925.01(L): "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. Therefore, although possession may be actual or constructive, see State v. Hankerson (1982), 70 Ohio St.2d 87, syllabus, con- structive possession may not be inferred from a person's mere presence in the vicinity of contraband. Cincinnati v. McCartney - 2 - (1971), 30 Ohio App.2d 45, 47-48. Proof of control or dominion is essential. State v. Wolery (1976), 46 Ohio St.2d 316, 332. Moreover, in State v. Welch (April 18, 1991), Cuyahoga App. Nos. 58352, 58353, unreported, and State v. Giles (May 12, 1994), Cuyahoga App. No. 63709, unreported, this court held that posses- sion was not established where drugs were found in vehicles and the defendant passengers did not own the vehicles and did not exercise dominion or control over the drugs. In Welch, supra, the defendants were seated as passengers in the vehicle, and cocaine was found beneath the driver's seat. The court stated: The fact that defendants had access to the cocaine and were in close proximity to it, cannot be reasonably determined to establish defendants' possession of the cocaine in this instance as the vehicle was owned by someone else, and occupied by two others immediately before the drugs were found. Unreported at 7. In Giles, supra, the defendant was seated in the passenger seat of the vehicle, and a bag of cocaine was found beneath the driver's seat. The court stated: *** Giles was the only person in the car, but he did not do anything that would suggest that he exercised dominion or control over the car or the cocaine. He was found sleeping in the passenger seat, both doors were unlocked, and he was not the owner of the car. The cocaine was concealed under the driver's seat, and the plastic bag containing the drugs was only visible when the driver's side door was open. Therefore there was no evidence upon which this court could infer that he acted "knowingly," - 3 - nor was there any evidence that he was in constructive possession of cocaine. Unreported at 6. Accord State v. Brewsey (June 16, 1993), Summit App. No 92-4-0922, unreported (defendant's conviction for posses- sion of criminal tools was held to be unsupported by sufficient evidence where defendant was seated in front passenger seat, another passenger was seated in rear seat, and a crowbar was found beneath passenger seat "toward the rear" of seat). In accordance with the foregoing, I would conclude that nothing in the record establishes that appellant had the ability to exercise dominion or control over the counterfeit cocaine. The state's evidence was too speculative to establish possession, and appellant's statements at the police station do not establish this .