COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68406 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MIRIAM MARERRO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-302725 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DEBORAH NAIMAN (#0039722) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: VALERIE R. ARBIE (#0061962) ASSISTANT PUBLIC DEFENDER 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Miriam Marerro appeals from her convictions for possession of heroin, in violation of R.C. 2925.11, with two furthermore clauses based on drug abuse convictions in 1992, and possession of cocaine, in violation of R.C. 2925.11, with two furthermore clauses based on the 1992 drug abuse convictions. Marerro raises one assignment of error: MIRIAM MARERRO'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND SHE WAS IMPROPERLY DENIED A CRIM.R.29 ACQUITTAL WHEN HER CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. I. The following evidence was adduced at Marerro's jury trial: When police officers executed a search warrant at the apartment in the back-down portion of 2725 Queen Avenue, Cleveland, Ohio, Marerro, the only person present, acknowledged she lived in the apartment and made no mention of anyone else living there. The utilities for the apartment were listed under Marerro's name. In the master bedroom, the police officers found a "gem pack" containing heroin under a salt and pepper shaker on the nightstand next to the bed and a small plastic bag containing cocaine on the dresser. All the clothing and toiletries in the master bedroom belonged to a woman, no men's clothing or toiletries were found. One police officer testified that there was only one bed in the apartment and no other sleeping areas. In the kitchen, the police - 3 - 3 officers found a razor blade in a spice rack, three empty "gem packs" in the trash, and a plastic bag about the size of a coin containing a white substance that was not cocaine. The police officers found various personal papers throughout the apartment. These included a letter addressed to Marerro at the apartment, two medical bills addressed to William Zeno at the apartment, a postcard from a career center addressed to "W. Zeno" at the apartment, an emergency medical authorization form for Norberto Zeno, signed by Marerro, listing the apartment as Norberto's address, and an identification card for "Zeno, W." II. In her assignment of error, Marerro contends the trial court erred when it denied her motion for acquittal under Crim.R. 29(A). Under Crim.R. 29(A), "[t]he court *** after the evidence on either side is closed, shall order the entry of a judgment of acquittal on one or more offenses charged in the indictment *** if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not order an entry of acquittal under Crim.R. 29(A) where "the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Ohio Supreme Court held that: An appellate court's function when reviewing the sufficiency of the evidence to support a - 4 - 4 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.) R.C. 2925.11(A) provides "[n]o person shall knowingly obtain, possess, or use a controlled substance." Marerro argues the evidence fails to demonstrate she possessed the heroin and cocaine. R.C. 2925.01(L) provides "'[p]ossess' 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 may be constructive. State v. Haynes (1971), 25 Ohio St.2d 264, 269-270. To constructively possess a controlled substance a person must exercise dominion or control over it. State v. Wolery (1976), 46 Ohio St.2d 316, 332. The presence of a controlled substance in the living area that a defendant occupies jointly with others is insufficient to establish the defendant's dominion or control over the controlled substance. Haynes, 25 Ohio St.2d at 270. In addition, the mere presence of the defendant near a controlled substance is insufficient to establish the defendant's dominion or control over it. State v. Cola (1991), 77 Ohio App.3d 448, 450; Cincinnati v. McCartney (1971), 30 Ohio App.2d 45, 48. Close - 5 - 5 proximity to readily usable drugs, however, may constitute sufficient circumstantial evidence of dominion or control. State v. Barr (1993), 86 Ohio App.3d 227, 235; State v. Pruitt (1984), 18 Ohio App.3d 50, 58. Similarly, the presence of a controlled substance near the defendant's bed and in plain view throughout the apartment is sufficient to establish dominion or control. State v. Boyd (1989), 63 Ohio App.3d 790, 796; see, also State v. Mann (1993), 93 Ohio App.3d 301, 308-309 (Evidence sufficient to establish constructive possession where defendant, who was in shower, fled when police entered vacant apartment containing drugs, drug paraphernalia, and large amounts of money in plain view and defendant offered the money to police after he was caught); State v. Thompson (June 9, 1994), Cuyahoga App. No. 63369, unreported; (evidence sufficient to establish constructive possession when drugs found in defendant's bedroom of shared residence); State v. Bailey (April 9, 1987), Cuyahoga App. No. 51968, unreported (Evidence sufficient to establish constructive possession where drugs found in apartment where defendant lived alone). We find that a rational trier of fact, viewing the evidence in a light most favorably for the state, could find Marerro constructively possessed the heroin and cocaine. Marerro acknowledges in her appellate brief that the evidence establishes that she lived in the apartment. She argues, however, that the evidence also demonstrates that others lived in the apartment as well. We disagree. A rational factfinder, construing the evidence - 6 - 6 most strongly for the state, could find that Marerro lived alone in the apartment. Further, a rational factfinder, construing the evidence most strongly for the state, could find that the master bedroom belonged to Marerro even if she did not live alone in the apartment. Accordingly, Marerro's assignment of error is not well taken. Judgment affirmed. - 7 - 7 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. PATRICIA BLACKMON, J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .