COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68320 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ANTHONY FREEMAN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-311006 JUDGMENT: Affirmed in Part; Reversed in Part and Remanded for a Forfeiture Hearing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WILLIAM T. GUARNIERI, ESQ. Cuyahoga County Prosecutor 254 Old Arcade 401 Euclid Avenue DENISE R. CAMERON, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Anthony Freeman, appeals from the judgment of the trial court finding defendant guilty after defendant pled no contest to the four counts of the indictment. On appeal, defendant challenges the trial court's decision (1) to deny his motion to suppress, (2) to accept the no contest plea, and (3) to deny his motion to return his vehicle. For the following reasons, we affirm the judgment of the trial court in part and reverse in part. In early 1994, the Cleveland Police Department received information about suspected drug activity involving defendant and Jason Majerick. On April 26, 1994, Detective Parkinson of the Cleveland Police Department spoke with Jason Majerick at the Euclid Police Department. Majerick gave Detective Parkinson a description of a man named Tony who sold him cocaine. Majerick told Parkinson he bought $26,000 of cocaine in the last four months. Majerick provided certain details about Tony. For example, he described Tony's appearance, the area Tony frequented, the cars he drove, and their license plate numbers. Finally, Majerick gave the police Tony's pager number and informed the police how to order drugs on this pager. Acting on this information, Detective Parkinson verified that the pager number belonged to Tony and that the license plates were registered to defendant. Defendant's address was listed as being in the same general area as the area Majerick - 3 - described. Special Agent Crumbley investigated the location and found an "older white Cadillac" that matched the description given by Majerick. In the window was a For Sale sign with the same pager number that Majerick said was used by Tony for drug sales. This car was registered to defendant. Detective Parkinson also talked to a woman who corroborated Tony engaged in illegal activity, that is, "selling." This woman provided a description of Tony and of the make of his car, as well as the area in which he was "selling." On May 9, 1994, the defendant was seen driving in the area of E. 146th and Saranac Ave. Defendant was stopped by Sergeant Meyer, Detective Charney, and Detective Sefcik. Detective Roper arrived when defendant was pulled over. Detective Roper noticed a plastic bag hanging out of defendant's pocket. The police removed the bag, which was found to contain several bags with rocks of crack cocaine in each bag. Two pagers and $441 were also recovered from the defendant. A subsequent search of the car produced a number of empty plastic bags identical to those found on his person. The grand jury returned an indictment charging the defendant with one count of drug trafficking, one count of drug abuse, one count of possession of criminal tools, and one count of permitting drug abuse. Violence specifications for a prior conviction of aggravated burglary were added to each count. On July 22, 1994, defendant pled not guilty to the charges in the indictment. The defendant filed a motion to suppress. After - 4 - hearing the testimony of Detective Parkinson, Detective Roper, Detective Charney, Detective Lyles, and Detective Rood, the trial court denied the motion to suppress. The trial court also denied the defendant's motion for reconsideration. Thereafter, on November 29, 1994, defendant changed his plea and entered a no contest plea to all four counts of the indictment. Defendant timely appealed to this court raising five assignments of error. Defendant's first assignment of error states as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN DENYING THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS. In this assignment of error defendant contends that the police violated defendant's fourth amendment right to be secure from unreasonable searches and seizures. In Terry v. Ohio (1968), 392 U.S. 1, the Supreme Court held that investigative stop and searches will be justified if the officer has a reasonable suspicion supported by articulable facts. The court has also clarified that the level of suspicion required for a Terry stop is less demanding than that for probable cause. U.S. v. Sokolow (1989), 490 U.S. 1. The court in Sokolow went on to state that to determine whether reasonable suspicion exists, a reviewing court must look to the totality of the circumstances. This approach was followed by the Ohio Supreme Court in State v. Andrews (1991), 57 Ohio St.3d 86, and State v. Williams (1990), 51 Ohio St.3d 58. An investigatory stop based on reasonable suspicion may be justified by information received from a known - 5 - informant, Adams v. Williams (1972), 407 U.S. 143, and also from an anonymous tip when such information is corroborated by independent police investigation. Alabama v. White (1990), 496 U.S. 325. In the instant case, the police did have reasonable suspicion to justify the investigatory stop. The police had information from a known informant who named the drug dealer and described him with great particularity. The informant described the car from which the defendant conducted his business; the informant identified the means by which he advertized and communicated with his clients (the "For Sale" sign and pager number); and the informant specified the area in which the defendant practiced his business. While investigating this area, the police noticed a car that fit the description given by the informant. They ran the plates and found the car registered to defendant. In the window of the car was a "For Sale" sign with the same pager number that the informant said was used to order drugs with Tony. The police also confirmed the pager number by calling it. The detailed information from the informant was corroborated not only by the police investigation but also by a second informant. Most significant of all is that the first informant stated he had himself bought drugs from defendant and therefore had personal knowledge that defendant had committed the crime of selling drugs. Because of the totality of circumstances, the police had reasonable suspicion to conduct an investigatory stop of defendant. The trial court's decision to - 6 - deny the motion to suppress, therefore, was not in error. This assignment of error is overruled. Defendant's second and fourth assignments of error state as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN FINDING THE DEFENDANT-APPELLANT GUILTY AFTER HIS NO CONTEST PLEA TO THE CHARGE OF POSSESSION OF CRIMINAL TOOLS O.R.C. 2923.24 AND PERMITTING DRUG ABUSE O.R.C. 2925.13 UPON PROSECUTIONS'S STATEMENT AND EVIDENCE. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN FINDING THE DEFENDANT GUILTY OF AGGRAVATED DRUG TRAFFICKING WHERE THE EVIDENCE ESTABLISHING ONLY AT BEST POSSESSION PURSUANT TO O.R.C. 2925.11. In these two assignments of error, defendant argues that the trial court should not have found defendant guilty of (1) possession of criminal tools, (2) permitting drug abuse, and (3) aggravated trafficking after defendant pled no contest to these charges. The trial court found defendant guilty of these charges after defendant entered a no contest plea. The court in State v. Gilbo (1994), 96 Ohio App.3d 332, discussed the significance of a no contest plea: The plea of no contest constitutes an admission, not of guilt, but of the truth of the facts alleged in the indictment, information, or complaint. Crim.R. 11(B)(2). In order to obtain a conviction of a defendant who has pled no contest, the state must offer an explanation of the circumstances to support the charge. This explanation is sufficient if it supports all the essential elements of the offense. Chagrin Falls v. Katelanos (1988), 54 Ohio App.3d 157, 159 561 N.E.2d 992, 994. Regarding the three charges that defendant challenges, the state presented sufficient evidence on each charge. - 7 - Possession of criminal tools is defined in R.C. 2923.24 as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article, with the purpose to use it criminally. A pager and money in the amount of $441 were found in the possession of the defendant at the time he was arrested. Possession of a pager, which, as the police testified, is a known device for requesting a drug sale, and money used in drug activity is sufficient to support a conviction under R.C. 2923.24. State v. McShan (1991), 77 Ohio App.3d 781; State v. Powell (1993), 87 Ohio App.3d 157. We find no error in the trial court finding defendant guilty of possession of criminal tools. The offense of Permitting Drug Use is defined in R.C. 2925.13(A) as follows: (A) No person who is the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicle as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit the vehicle to be used for the commission of a felony drug abuse offense. The court was presented with evidence that the defendant used the car as part of his drug trade. In fact, the ostentatious white Cadillac with the "For Sale" sign containing a pager number indicates the car's use as an advertising vehicle, a device better than a blimp or the yellow pages. Previously, this court has found that using a car as part of one's drug trade is sufficient evidence to support a conviction under R.C. 2925.13. State v. Muniz (Oct. 6, 1994), Cuyahoga App. No. 66045, - 8 - unreported. We find no error in the court finding defendant guilty of permitting drug use. The offense of aggravated trafficking is defined in R.C. 2925.03(A)(2) as follows: (A) No person shall knowingly do any of the following: * * * (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; In this case, the state presented evidence that the officers recovered a bag containing 18 individually packaged bags of cocaine. Such packaging is for distribution and constitutes sufficient evidence to support a conviction under R.C. 2925.03(A)(2). State v. Gordon (Mar. 12, 1993), Ashtabula App. No 92-A-1696, unreported. These two assignments of error are overruled. Defendant's third assignment of error states as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN DENYING DEFENDANT-APPELLANT'S MOTION TO RETURN THE VEHICLE PURSUANT TO O.R.C. 2925.45(A). Defendant argues that the trial court erred in denying his motion to return his vehicle. Revised Code 2925.42 defines forfeitures of property in connection with a felony drug abuse offense. (A)(1) In accordance with division (B) of this section, a person who is convicted of or pleads guilty to a felony drug abuse offense, *** loses any right to the possession of property and forfeits to the state any right, title, and interest he may have in that property if either of the following applies: * * * - 9 - (b) The property was used or intended to be used in any manner to commit, or to facilitate the commission of, the felony drug abuse offense or act. A no contest plea does not act as a waiver of any forfeiture hearing. State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported. Both informants identified defendant in relation to his white Cadillac and the sign in the window. That sign facilitated drug deals by providing a pager number. One condition to justify forfeiture of this car was, therefore, satisfied. However, in an opinion issued four months prior to the trial court denying a motion to return this vehicle, the Ohio Supreme Court held that the trial court must make an independent finding that the forfeiture is not an excessive fine as prohibited by the Excessive Fine Clauses of the Ohio and United States Constitution. State v. Hill (1994), 70 Ohio St.3d 25. Additionally, in Akron v. Turner (1993), 91 Ohio App.3d 595, the court remanded a case for the limited purpose of determining whether the forfeiture of the defendant's car stereo was excessive. See also State v. Carroll (Nov. 30, 1994), Lorain App. No. 94CA005814, unreported. Nowhere in the record is it apparent that the trial court made an independent finding, as mandated by Hill, that the forfeiture was not excessive. Accordingly, this assignment of error is well taken, and the case is remanded solely for the purpose of determining whether the forfeiture was excessive. Defendant's fifth assignment of error states as follows: - 10 - THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT BY OTHER ERRORS THAT ARE APPARENT ON THE FORCE [sic] OF THE RECORD. In this assignment of error, defendant merely points to some discrepancies in the record and does not allege any theory of prejudicial harm. Such an unfocussed list does not conform to App.R. 12(A) and may be disregarded. Cleveland v. Austin (1974), 55 Ohio App.2d 215. Accordingly, this assignment of error is overruled. Judgment affirmed in part; reversed in part and remanded solely for a forfeiture hearing. - 11 - It is ordered that appellee and appellant share the costs equally. 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 of imprisonment. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and PORTER, J., CONCUR. DIANE KARPINSKI 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 .