COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68496 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : PHILLIP JAMES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-310523. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Robert Dubyak, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John Reulbach, Esq. 14701 Detroit Avenue, Suite 575 Lakewood, OH 44107 -2- DAVID T. MATIA, J. Phillip James, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for drug abuse in violation of R.C. 2925.11. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS In March, 1994, the Narcotics Unit of the Cleveland Police Department received complaints of drug activity occurring at 12320 Chesterfield Avenue in Cleveland, Ohio. Based upon this information, the Narcotics Unit set up a surveillance unit at the residence. After making a number of controlled purchases of crack cocaine through a confidential reliable informant, the Narcotics Unit obtained a search warrant for the premises. The search warrants' description of the premises included the driveway of the residence. The Narcotics Unit executed the search warrant on April 28, 1994. Upon their arrival at the scene, the Narcotics Unit observed Phillip James, defendant-appellant, seated in the driver's seat of his Jeep Cherokee. A second individual, Andre Calloway, defendant-appellant's nephew, was seated in the front passenger seat and a third individual, Mickey Hood, was seated in the rear seat. The Jeep Cherokee was parked in the driveway of the subject residence. During the execution of the search warrant, Phillip James', defendant-appellant's, vehicle was searched. In plain view on the console of the Jeep Cherokee was -3- a ziplock bag which contained a small amount of cocaine and marijuana. The Narcotics Unit also recovered four pieces of cardboard from defendant-appellant's vehicle which had traces of cocaine residue on them. At this point, both Phillip James, defendant-appellant, and Andre Calloway, defendant-appellant's nephew, were placed under arrest. Two police officers at the scene testified that defendant-appellant made the following statement: "I'm going to get arrested for this little bit of drugs in my car?", and then stated: "Yeah, the drugs are mine." Phillip James, defendant-appellant, denied that he had any knowledge relating to the illegal drugs found in his Jeep Cherokee. Defendant-appellant also denied having made the statement that the drugs were his. Defendant-appellant maintained that he actually stated: "It's not even mine." when told he was going to be placed under arrest for possession of illegal drugs. On June 13, 1994, Phillip James, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in a two count indictment. Count one charged defendant-appellant with drug abuse in violation of R.C. 2925.11. Count two charged defendant- appellant with possession of criminal tools (to wit: Jeep Cherokee) in violation of R.C. 2923.24. Defendant-appellant was arraigned on June 30, 1994 whereupon a plea of not guilty was entered as to both counts contained in the indictment. -4- On November 28, 1994, Phillip James, defendant-appellant, executed a written waiver of his right to a jury trial and on that same day the case was tried to the trial court. On November 29, 1994, the trial court found defendant-appellant guilty of drug abuse in violation of R.C. 2925.11 as charged in count one of the indictment and not guilty of possession of criminal tools. On January 12, 1995, the trial court sentenced Phillip James, defendant-appellant, to a one year term of incarceration at the Lorain Correctional Institution. The trial court then suspended the sentence and placed defendant-appellant on probation for a two year period. On February 1, 1995, Phillip James, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Phillip James', defendant-appellant's, sole assignment of error states: MR. JAMES WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW PURSUANT TO THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, WHEN HE WAS CONVICTED BY EVIDENCE WHICH WAS INSUFFICIENT TO PROVE HIS GUILT ON EVERY ELEMENT OF THE CRIME CHARGED BEYOND A REASONABLE DOUBT. A. THE ISSUE RAISED: INSUFFICIENT EVIDENCE Defendant-appellant argues, through his sole assignment of error, that his conviction for the offense of drug abuse was not supported by sufficient evidence. Specifically, defendant- -5- appellant argues that the state failed to prove each and every element of the offense of drug abuse beyond a reasonable doubt. Defendant-appellant's sole assignment of error is not well taken. -6- B. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. 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 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, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. -7- C. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT CONVICTION. In the case sub judice, both direct and circumstantial evidence was presented by the state in an attempt to establish the elements of the offense of drug abuse which are: 1) no person shall knowingly obtain, possess, or use; 2) a controlled substance. Defendant-appellant maintains that the state failed to present evidence to establish the elements of possession. A review of the record fails to support defendant-appellant's assertion. R.C. 2925.01(L) defines possession as: Possesses 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. In the past, this court has held that possession can be constructive or actual. State v. Soto (Oct. 4, 1990), Cuyahoga App. No. 57301, unreported. In order to show constructive possession, the evidence must demonstrate that a defendant was able to exercise dominion and control over the illegal drug. State v. Worley (1976), 46 ohio St.2d 216. In many of the cases involving constructive possession of illegal drugs in a motor vehicle, courts have emphasized the close proximity between the defendant and the illegal substance in order to determine whether the element of constructive possession is satisfied. State v. Cola (1991), 77 Ohio App.3d 448; State v. Howard (Mar. 24, 1983), Cuyahoga App. No. 44438, unreported. -8- In the present case, the illegal drugs were found on the console of defendant-appellant's Jeep Cherokee between the driver's seat and the passenger seat. In addition, evidence was presented to demonstrate that defendant-appellant made an incriminating admission regarding his ownership of the illegal drugs. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of drug abuse, including possession, proved beyond a reasonable doubt. Accordingly, the trial court did not err in finding defendant-appellant guilty of drug abuse as sufficient evidence was presented to enable the trial court to so conclude. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -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. HARPER, P.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA 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 .