COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66915 AND 68323 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY MILLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JANUARY 18, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 294531 JUDGMENT : Affirmed as to convictions; vacated as to forfeiture order. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor Joseph B. Rose, III, Esq. By: David C. Sheldon, Esq. 55 Public Square, Suite 2200 Assistant Prosecuting Atty. Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 HARPER, J.: A Cuyahoga County Grand Jury issued a four-count indictment against defendant-appellant, Timothy Miller, on March 29, 1993, for drug-related activity. The trial court, on January 28, 1994, found appellant guilty of the first and fourth counts of the indictment: knowingly obtaining, possessing or using cocaine, in violation of R.C. 2925.11(A); and possessing criminal tools, specifically, firearms and money, in violation of R.C. 2923.24. The court found appellant not guilty of the remaining two counts: knowingly selling or offering to sell cocaine in an amount less than bulk, in violation of R.C. 2925.03(A)(1); and receiving stolen property, specifically, a firearm, in violation of R.C. 2913.51. The trial court sentenced appellant on March 28, 1994 to two consecutive one-year terms, and imposed a mandatory fine of $1,500 1 as to count one. The court also issued an order of forfeiture on February 3, 1994 pursuant to R.C. 2933.43 with regard to $52,000 in 2 currency and eight firearms. Appellant filed a motion for new trial on April 8, 1994. He argued that the state failed to present sufficient evidence as to 1 Appellant filed a notice of appeal on February 18, 1994, App. No. 66915, following the trial court's announcement of guilt on January 28, 1994. This court sua sponte dismissed the appeal on March 30, 1994 for failure to file praecipe, but reinstated it on January 13, 1995. 2 Appellant filed a motion to vacate the forfeiture on February 15, 1994, requesting a hearing on the matter. He also filed a motion for return of property on September 12, 1994. The trial court, in a journal entry dated May 2, 1995, explained that it would not entertain these motions because it lost jurisdiction to do so once appellant filed a notice of appeal. - 2 - both of his convictions. Appellant filed a second motion for new trial on July 25, 1994 in which he submitted that newly discovered evidence warranted a new trial. He suggested that since the April 8, 1994 motion was yet to be ruled on, the trial court could hear both motions at the same time. The trial court denied the 3 motion(s) on November 29, 1994 following October 1994 hearings. Appellant assigns the following errors for this court's review: Assignment of Error No. One: Appellant Was Deprived Of His Right To Effective Assistance of Counsel As Guaranteed By Article, I [sic] Section 10 Of The Ohio Constitution And The Sixth Amendment To The United States Constitution. Assignment of Error No. Two: Appellants [sic] Convictions Are Not Supported By The Weight Of The Evidence And The Evidence Presented Was Insufficient To Sustain The Convictions. Assignment of Error No. Three: Appellant's Conviction For Constructive Possession Of Cocaine Is Contrary To Law Assignment of Error No. Four: The Trial Court Committed Error And Abuse Of Discretion By Overruling Appellant's Motion For New Trial Assignment of Error No. Five: 3 Appellant filed a notice of appeal from this denial on December 28, 1994, App. No. 68323. Pursuant to appellant's motion, this court consolidated App. Nos. 68323 and 66915 for record, briefing, hearing and disposition on February 9, 1995. - 3 - Appellant Was Deprived Of His Property, Money And Guns, Without Regard To Due Process Of Law. I. Detective Bernard Norman, a five-year member of the Second District Vice Unit of the Cleveland Police Department, received information in 1992 that a large scale supplier of cocaine was operating out of the 10107 and 10109 St. Clair Avenue area. Three informants implicated appellant as the supplier. This information prompted the police department to make a controlled buy at Miller's Superette Deli located at 10109 St. Clair Avenue through a confidential informant. Detective Terrence Shoulders, a seventeen-year member of the Cleveland Police Department with seven years experience as a vice detective, met with the informant on August 21, 1992. He followed the informant to the deli where Lieutenant Gary Gingell, then Sergeant Gingell, assumed surveillance. After Det. Shoulders observed the informant enter the deli, he went to appellant's second purported residence at 609 East 99th Street. Det. Shoulders saw a little pick-up truck pull out of the driveway at the East 99th Street location within a few minutes of his arrival. He followed the truck to the deli where the driver of the truck parked and exited the vehicle, and entered the store. Det. Shoulders then learned from Lt. Gingell that the informant was leaving the deli, so he followed the informant to their original meeting place. Gingell arrived subsequently and the two officers approached the informant at which time Gingell retrieved what the - 4 - informant purchased at Miller's deli, i.e., rocks of crack cocaine wrapped in a napkin and meant for individual sale. Searches were consequently conducted on August 22, 1992, pursuant to warrants, at three separate locations. These locations were the delicatessen, the upstairs apartment at 10107 St. Clair 4 Avenue , and a third level apartment at 609 East 99th Street. Det. Norman assisted primarily in the search of the apartment at the 10107 St. Clair Avenue address. According to the detective, appellant's father, Clayborne Miller, identified appellant as the occupant of the apartment. The following items were discovered during the search: 1) a .12 gauge shotgun in the bedroom; 2) a .30 caliber carbine, with a scope and clip, leaning against the couch in the living room; 3) a .22 caliber rifle on the kitchen counter; 4) a .22 caliber six-shooter in a hallway drawer; 5) an Illuminating Company electric bill and a telephone service bill for 10107 St. Clair, both in appellant's name; 6) a letter from an accounting firm to appellant; 7) a temporary motor vehicle registration tag for a 1991 Mitsubishi in appellant's name with 10107 St. Clair listed as the owner's address; 8) a receipt for the vehicle showing $12,500 of the $29,933 purchase price as "partial payment"; 9) two bags of cash in the empty space below a bottom drawer of a built-in hallway dresser--one bag contained $2,492 4 A beauty salon was located under the apartment at 10107 St. Clair Avenue. Appellant possessed an interest in the salon, but the salon premises were not included in the search. - 5 - and the other $1,583 with $200 later identified through photographs as the money used to purchase drugs in the earlier controlled buy at the delicatessen; and 10) a wet newspaper from a trash can located inside the apartment; laboratory tests later confirmed the presence of cocaine on the paper. Det. Norman also assisted his partner, then Detective Brian Heffernan, in the search of the delicatessen below. Det. Norman found two pieces of evidence in the search: a clear plastic bag containing suspected cocaine in the frame of the door leading to the basement, consistent with information obtained from an informant, and a razor blade in the office of the delicatessen. Laboratory tests later confirmed the officer's suspicion that cocaine was present on these two items. Det. Heffernan discovered the following documents and items from either the deli's office or a rear room: 1) two receipts for repair work to a 1991 Mitsubishi, one from Rick Case Mistubishi listing appellant's name and 609 East 99th Street address; 2) two other Rick Case receipts listing the address of 10109 St. Clair Avenue; 3) an Ohio Bell telephone bill addressed to appellant, d.b.a. Miller Beverage, 10109 St. Clair Avenue; 4) a cable television bill and a water bill in appellant's name with 10107 St. Clair Avenue, Apartment 1, listed as the address; 5) appellant's 1990 federal, city, and state income tax returns with 611 East 99th Street as the address on two 5 Det. Norman explained at trial how the newspaper is used in the production of crack cocaine. Since appellant was not charged with manufacturing a controlled substance, the process is irrelevant to this appeal. - 6 - returns; 6) Mardigras brand napkins; and 7) a 9 mm. handgun from under the counter next to the cash register. The Mardigras napkins were taken from the deli as evidence because the rocks of crack cocaine purchased by the confidential informant the day before were inside the same brand and type of napkins. Furthermore, a second 9 mm. handgun was discovered on a shelf in the deli's office by Detective Santiago. Detective Michael Frick, a member of the Second District Strike Force, recovered $1,948 in cash, a $56 check, and $27 in food stamps from two locations within the deli. Det. Shoulders and Detective Charles Escalante, an eight-year member of the Second District Vice Unit, later assisted in the execution of the search warrant for the East 99th Street apartment. Among the items recovered in the search were the following: 1) a legal-sized yellow pad listing a total of $64,500 in numerical denominations from the dining room table; 2) $30,374 in cash from an open safe located in the kitchen; 3) $16,500 in cash from a paper bag found on the living room floor next to the sofa; 4) a packet marked "Receipts" from the dining room table which contained a listing of names and corresponding dollar amounts; 5) five letters from the Internal Revenue Service from the dining room table, three of which had mailing dates in August 1992--two letters were addressed to Timothy Miller Enterprises, Inc., 609 East 99th Street, Cleveland, Ohio; one letter to LK-9, Inc., 609 East 99th Street, Cleveland, Ohio (appellant's dog training business); and two letters to Miller's Beverage, Inc., 609 East. 99th Street, - 7 - Cleveland, Ohio; 6) two checking account books from the dining room table, one in appellant's name with an address of 10107 St. Clair Avenue, the other in the name of LK-9 with the 609 East 99th Street address; 7) two receipts from Rick Case Mitsubishi which indicated that appellant paid $4,300 in cash and issued a check in the amount of $7,500 on December 17, 1990; 8) a 20-gauge shotgun, and a Remington rifle from a gun rack located in the dining room; 9) a plastic bag containing a razor blade and suspected cocaine residue (which later tested positive) from the top shelf of a kitchen cabinet; and 10) a pill vial which listed appellant as the patient and contained suspected cocaine residue from the middle shelf of a kitchen cabinet. The cost of a kilogram of crack cocaine at the time was $20,000 according to Det. Escalante. Pertaining to the legal pad, both Dets. Shoulders and Escalante believed from prior experience that the notations represented a drug dealer's accounting system. The pad recovered from the East 99th Street apartment contained figures of $19,000, $8,000, $8,000 and $6,000, with a subtotal of $53,000, and an additional $11,500 for a total of $64,500. As to the $46,000 and some recovered from the apartment, the cash was later divided and inserted into four separate evidence envelopes that were placed in four different areas of the police department's property room. A drug dog, accompanied by Officer Tim Russell, a K-9 officer, physically picked up each of the four envelopes in his mouth on August 23, 1992, thus evidencing that the contents of each envelope contained traces of a drug. Neither - 8 - Officer Russell nor the K-9 dog were aware of the location of the envelopes until they entered the property room. A portion of appellant's defense was that the city of Cleveland targeted Miller's deli as part of its strategy to diminish drug activity in the area. This included harassment by the city's Division of Housing and police department to the point where the property was at one time condemned, and the deli lost its lottery and food stamp licenses. By the time appellant took over the deli's operation from his father in January 1992, the business was floundering and required financial input from appellant's dog training business. According to one of appellant's friends, Thorne Gore, appellant spent most of his time training dogs, was not really interested in the deli business, and wanted to sell it. Appellant's primary defense was that he neither lived at nor exercised dominion or control over 10107 and 10109 St. Clair Avenue or 609 East 99th Street on August 21 or 22, 1992. The Miller family owned and essentially occupied both buildings at these locations. According to Claire Miller Freeman, appellant's mother, appellant lived in the area of East 149th Street and Kinsman in August 1992 with his son and his son's mother. Signora Gore lived on the third floor of 609 East 99th Street for about two years until August 1993 when she moved into an apartment located at 10107 St. Clair Avenue. Appellant and Signora Gore were close friends and appellant had her in "lockdown" in 1992 at her request. In other words, Signora suffered from a drug - 9 - problem and appellant assisted her in overcoming the problem by virtually locking her inside the apartment. With regard to the safe located in the East 99th Street apartment, Ms. Freeman testified that a number of Miller family members used the safe for personal reasons. She testified that she had appellant place $25,000 from her divorce settlement into the safe. Ms. Freeman explained further that appellant could not manage a checking account and the deli's creditors were thus unwilling to accept checks as payment. Appellant used the safe specifically for Miller's deli funds because, as a result, the deli was basically a cash-run business. There was, however, no conclusive evidence that established the deli's profits. The third floor apartment at 609 East 99th Street was also used as a storage area for personal items, including appellant's clothing. Ms. Freeman knew that the gun collection of her ex- husband, Clayborne Miller, was stored there in addition to guns from other family members. Pertaining to 10107 and 10109 St. Clair Avenue, appellant's father lived in one apartment above the store. Appellant lived in another apartment between 1988 and 1990; he kept clothes there after he moved out and periodically stayed over. Though appellant presented testimony through a few witnesses that Signora Gore's brother, Thorne, and a man named Raymell Lewis lived at 10107 St. Clair Avenue in August 1992, it was brought out that Thorne testified at a prior trial that he was homeless in August 1992. - 10 - When questioned as to this discrepancy, Thorne Gore testified that he could not exactly remember where he lived in August 1992 albeit recognizing that he lived on St. Clair "on and off." Whenever it was that Thorne Gore lived at 10107 St. Clair Avenue, appellant assisted him in kicking a drug habit just as he assisted Signora Gore, i.e., through "lockdown." Finally, Ms. Freeman testified that her mother took care of appellant's bills thereby explaining why some of his personal and business mail was delivered to 609 East 99th Street. This also explained why appellant's personal and business checkbooks were recovered in the search of these premises. Otherwise, since both the St. Clair Avenue and East 99th Street buildings were owned by the Miller family, appellant was permitted to use any of the three addresses as mailing addresses. II. Appellant's first assignment of error focuses on the representation provided him by defense counsel at trial. He argues that he was denied constitutionally guaranteed effective assistance of counsel by the following activity or inactivity: 1) counsel's failure to challenge the legality of the searches; 2) counsel's failure to obtain identification of the state's witnesses, move to voir dire them, or force the state to divulge what benefits were bestowed on them; 3) counsel's placement of someone other than appellant at the defense table, thereby provoking a contempt threat from the trial court; 4) counsel's failure to request drug samples - 11 - for testing due to the minimal amount of suspected cocaine recovered from the premises; 5) counsel's failure to produce appellant's business records; 6) "other instances of conduct which conceivably put a chilling effect on this trial"; 7) counsel's failure to move for a Crim.R. 29 acquittal following the state's case which was ultimately done by counsel with the state's guidance; 8) the trial court's mid-trial order that counsel provide promised documentation to the state; 9) counsel's receipt of laboratory reports minutes prior to cross-examining the state's forensic witness; 10) apparently, counsel's failure to challenge the trial court's sentence of appellant; and 11) counsel's failure to object to the following comment made by the prosecutor, "Now you can dress a monkey in silk, but he still resembles a monkey." In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court of Ohio discussed Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 and the holding in State v. Lytle (1976), 48 Ohio St.2d 391. The court thereafter developed a two- step process to assess the effectiveness of counsel. First, there must be a determination as to whether defense counsel substantially violated an essential duty to the client. Second, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. Brady, paragraph two of the syllabus. In order to demonstrate prejudice, a defendant must prove there exists a reasonable probability that the result of the trial would have been different if not for counsel's errors. Id., - 12 - paragraph three of the syllabus. If prejudice is not shown, this court need not consider whether there was a failure of an essential duty. Id., 143. Herein, appellant alleges that he was denied the effective assistance of counsel in light of the foregoing activity and inactivity. Assuming arguendo that defense counsel violated one or more duties to appellant, appellant was required to argue, but did not, how the defense was prejudiced above and beyond the initial allegations. This court is precluded from assuming prejudice. See, Brady. Furthermore, appellant, for the most part, does not set forth an argument containing his contentions with respect to each alleged violation of duty and the reasons in support of such contentions, with citations to the appropriate authorities. See, App.R. 12(A)(7). In other words, appellant does not cite to any authority in support of a majority of his claims as to how he was denied the effective assistance of counsel. See, State v. Barnes (Aug. 19, 1993), Cuyahoga App. No. 63476, unreported. Finally, our review of the entire record reveals that defense counsel's representation was commendable. Counsel argued that the paucity of direct evidence which connected appellant to either the drugs and/or weapons, the accessibility to all three searched premises by the Miller family and others, the minute amount of cocaine found at the premises, appellant's health consciousness, and his benevolent desire to help others kick drug habits, - 13 - discounted the state's theory that appellant was a big time supplier of drugs in the area. Defense counsel presented witnesses who offered testimony to support this worthy attack of the state's case. However, the trial court, within its discretion, chose to 6 accept the state's theory, and reject the appellant's defense. Appellant's first assignment of error is overruled. III. Appellant, in his second and third assignments of error, argues that his convictions are not sustained by sufficient evidence or, alternatively, are against the manifest weight of the evidence. He submits that the state failed to prove, beyond a reasonable doubt, the culpability and possession elements of R.C. 2925.11(A), drug abuse, and R.C. 2923.24, possession of criminal tools. The Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St.3d 259, reexamined the standard of review to be applied by an appellate court when examining a claim of insufficient evidence. The court held: 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 6 See discussion on appellant's second and third assignments of error, infra. - 14 - reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Jenks, paragraph two of the syllabus. In State v. Martin (1983), 20 Ohio App.3d 172, this court set forth the test to be utilized when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** (Citations omitted.) Id., 175. See, Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or disbelieve the testimony of either the state's witnesses and/or the defendant's witnesses. State v. - 15 - Antill (1964), 176 Ohio St. 61, 67; State v. Harriston (1989), 63 Ohio App.3d 58, 63. In the within case, appellant first argues that the state presented insufficient evidence to prove beyond a reasonable doubt that he was in constructive possession of the items seized from 10107 and 10109 St. Clair Avenue and 609 East 99th Street. Since the police officers who searched the three premises found no drugs or weapons on appellant's person, the state had to prove appellant constructively possessed the contraband. See, State v. Haynes (1971), 25 Ohio St.2d 264; State v. Mann (1993), 93 Ohio App.3d 301. Appellant then argues that the state failed to prove he knowingly possessed the cocaine and/or possessed criminal tools for a criminal purpose. R.C. 2925.11(A) prohibits a person from knowingly obtaining, possessing or using a controlled substance, cocaine in appellant's case. This offense contemplates a precise degree of culpability, knowingly. "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). R.C. 2923.24(A) prohibits a person from possessing or having under his control any substance, device, instrument, or article with the purpose of using it criminally. Prima facie evidence of criminal purpose includes the possession or control of any - 16 - dangerous ordnance in the absence of circumstances indicating the dangerous ordnance is intended for legitimate use, or possession or control of any substance, device, instrument or article commonly used for criminal purposes, under circumstances indicating the item is intended for criminal use. R.C. 2923.24(B)(1), (3). R.C. 2925.01(L) defines "possession" to mean "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." Constructive possession means that a defendant was able to exercise dominion and control over the seized items even though the items may not have been within his immediate possession. See, State v. Wolery (1976), 46 Ohio St.2d 316, 329, certiorari denied (1976), 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301; State v. Boyd (Jan. 12, 1995), Cuyahoga App. No. 65883, unreported; State v. Pircio (Feb. 2, 1989), Cuyahoga App. No. 54983, unreported. Dominion and control are not established by showing the defendant was merely present in the vicinity of the seized items. See, State v. Pruitt (1984), 18 Ohio App.3d 50, 58; see, also, R.C. 2925.01(L). However, dominion and control can be proven by circumstantial evidence alone. State v. Thomas (May 18, 1995), Cuyahoga App. No. 67446, unreported; State v. Lavender (Mar. 12, 1993), Cuyahoga App. No. 60493, unreported. Dominion and control can also be proven by evidence that the items were in actual possession of appellant's agents or employees. See, State v. Hardy - 17 - (1978), 60 Ohio App.2d 325, 327; Boyd, Slip. Op. 65883; State v. Green, Jr. (Apr. 20, 1988), Hamilton App. No. CA-860791, unreported. In the present case, appellant's declaration that drugs and/or weapons found in the general living area of a jointly occupied premises does not allow the inference that any particular tenant possessed the items without other evidence is an accurate statement of the law. See, Haynes, 270. However, police officers ultimately searched 10107 and 10109 St. Clair Avenue and 609 East 99th Street based upon informants' tips that appellant operated a drug business from these locations, and the controlled buy from someone inside the deli. Testimony was offered that appellant's father identified the apartment at 10107 St. Clair Avenue as that of appellant. Appellant's mother likewise admitted that appellant had free access to the three locations. A multitude of appellant's personal papers and items were recovered during the searches, including bills mailed to appellant in August 1992. Notwithstanding defense testimony that Signora Gore, Thorne Gore and Raymell Lewis resided at the searched apartments in August 1992, the state provided sufficient evidence through personal papers and items that appellant was more than a mere visitor to the searched premises. The trial court concluded that appellant exercised dominion and control over the searched premises. The court noted the evidence that Signora Gore and Thorne Gore were in a "lockdown situation" while they resided at the St. Clair and East 99th Street - 18 - apartments. Since appellant was the person responsible for the lockdown, the trial court reasoned that appellant exercised control over the brother and sister. The court found this sufficient enough evidence to find appellant in constructive possession of the seized items. Appellant argues that the court erred in finding he exercised dominion and control over the seized items simply because he exercised control over the Gores. It is apparent that in the lockdown situation, appellant was the only individual who released Signora and Thorne Gore from their respective apartments. Appellant had control over the apartments, not just the two people living there. Appellant's argument is thus ineffectual. In fact, the trial court, in its discretion, could have rejected defense witnesses' testimony that appellant did not frequent the apartments; defense witnesses' explanation as to why appellant's mail was delivered to the three locations; and defense testimony as to why appellant's personal papers and belongings were present there. See, Antill; Harriston. In other words, the trial court acted reasonably if it accepted the presence of appellant's personal items in the two apartments for its face value--appellant used the apartments on a regular basis for business and personal reasons, thereby inferentially knowing about the presence of the money and weapons and exercising dominion and control over the seized items. - 19 - Additionally, there is a discrepancy as to whether appellant's father or appellant owned the deli. There is, however, no dispute that appellant managed the store albeit not on a consistent basis, i.e., appellant did not keep a seven days a week/eight hours a day schedule. There is also no dispute that appellant's management included the exercise of dominion and control over the deli's premises, and inferentially over the drugs and weapons recovered in the deli. The state's theory of the case was that appellant used the three locations to operate a drug business. The locations of the discovered money and weapons were relevant to this theory. Det. Escalante testified that drug dealers generally keep drugs and money in separate locations to escape the recovery of all the drugs and money. The location of the .22 caliber six-shooter in the hallway drawer over the recovered cash at 10107 St. Clair Avenue illustrated how weapons are kept near the money to safeguard it. Furthermore, the recovered cash at 10107 St. Clair Avenue contained the marked bills used for the controlled buy the evening before the searches, and the cash recovered from 609 East 99th Street was identified as being tainted with drugs by a K-9 drug dog. Finally, police officers recovered a variety of weapons, including a rifle and shotgun, from the three locations, not just the store where protective purposes arguably justified their presence. All of the foregoing evidence, when viewed in a light most favorable to the state, would allow a rational trier of fact to - 20 - find beyond a reasonable doubt that appellant knowingly possessed cocaine in violation of R.C. 2925.11(A). This court, therefore, finds that appellant's conviction for possession of cocaine is supported by sufficient evidence, and is not against the manifest weight of the evidence. Jenks; Martin. For the same reasoning, the evidence presented by the state supports the possession element of the offense of possession of criminal tools. This finding, however, does not end our inquiry. Once possession is established, the issue becomes whether appellant possessed the contraband for criminal purposes. See, Mann, 309; State v. Oliver (1987), 31 Ohio App.3d 100, 104. This court finds that the location of the weapons and the location of the cash and its make-up would allow the trier of fact to make the inference that appellant possessed or had them under his control with the purpose of using them criminally. See, R.C. 2923.24(B)(1), (3). His conviction for possession of criminal tools is thus supported by sufficient evidence and is not against the manifest weight of the evidence. Jenks; Martin. Appellant's second and third assignments of error are overruled. IV. - 21 - Appellant's fourth assignment of error addresses the trial court's denial of his motion for new trial. Appellant filed two motions for new trial, one on April 8, 1994, the other on July 25, 1994. It is the latter motion which contained the argument set forth by appellant in this assignment of error: the trial court abused its discretion in denying the motion because a new trial was warranted in light of Raymell Lewis' willingness to now testify that the cocaine found at 10107 St. Clair Avenue belonged to him. The motion giving rise to this assignment of error is initially governed by the technical requirements contained in Crim.R. 33(B). The rule provides in material part: Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period. Appellant's motion for new trial was premised on the discovery of new evidence, i.e., Raymell Lewis' confession that it was his cocaine found at 10107 St. Clair Avenue. The trial court found appellant guilty on February 28, 1994. Pursuant to Crim.R. 33(B), appellant had 120 days from this date to file his motion for new trial which he did not do considering he filed the motion on July 25, 1994. The state argued to the trial court during an October 1994 hearing that appellant's motion was untimely under the rule. - 22 - The trial court essentially found that since appellant's motion was in the file since July 1994 without objection from the state, it would not outright dismiss the motion. Rather, the court heard testimony from Lewis and appellant's trial counsel to determine the validity of appellant's motion for new trial, including the unavoidable delay issue. See, State v. Pinkerman (1993), 88 Ohio App.3d 158 (trial court abused its discretion in outright denying motion for new trial based on time constraint without determination of unavoidable delay). Generally, the evidence presented via a Crim.R. 33 motion must be material, i.e., there must be a strong possibility that the evidence, if available at the time of trial, would have produced a different result. See, State v. King (1989), 63 Ohio App.3d 183. The Supreme Court of Ohio stated in this regard: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong possibility that it will change the result if a new trial is granted; (2) has been discovered since trial, (3) is such as could not in the exercise of due diligence have been discovered before trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. State v. Petro (1947), 148 Ohio St. 505, syllabus. See, State v. Gray (Apr. 13, 1995), Cuyahoga App. No. 67574, unreported. A trial court's decision to grant or deny a motion for new trial is not reversible on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of discretion exists where the record shows that the court's attitude - 23 - was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Adams (1980), 62 Ohio St.2d 151, 157. The discretionary decision to grant a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. See, State v. Otten (1986), 33 Ohio App.3d 339, 340. In the instant case, though Lewis was not a witness for the defense at trial, the trial court heard testimony from other defense witnesses that he lived at 10107 St. Clair Avenue in August 1992. As noted supra, appellant's primary defense was that other parties lived at the searched premises and, therefore, they, and not him, possessed the seized contraband. The trial court rejected this defense when it found appellant guilty of the charged offenses. Appellant is also reminded that his convictions for possession of cocaine and criminal tools were not premised simply on the cocaine found at 10107 St. Clair Avenue. The convictions stemmed from the recovery of cocaine and weapons from two other locations connected to appellant, and unconnected to Raymell Lewis. Otherwise, Lewis, although stressing that appellant was never a drug user, admitted at the motion hearing that appellant could have been at 10107 St. Clair Avenue prior to the August 22, 1992 search. In fact, appellant assisted Lewis with his drug habit as he did with the Gores, specifically, through "lockdown." - 24 - Additionally, appellant's trial counsel testified at the motion hearing that he did not know either before or at the time of trial that Lewis lived at 10107 St. Clair Avenue in August 1992. Trial counsel believed that Lewis left the apartment in May 1992. However, counsel could not adequately explain why he did not timely discover Lewis' August 1992 living arrangement considering appellant's mother and Thorne Gore, witnesses for the defense, were aware of the arrangement. A review of the testimony that was to be offered by Raymell Lewis at appellant's new trial, if granted, fails to disclose a strong possibility that it would have altered the result. Evidence that Lewis lived at 10107 St. Clair Avenue was also capable of discovery, with due diligence, prior to trial. The trial court, therefore, did not abuse its discretion in denying the motion for new trial based upon newly discovered evidence. Schiebel; Petro. Appellant's fourth assignment of error is overruled. V. Appellant, in his fifth assignment of error, asserts that he was deprived of his property, the money and weapons, without due process of law. The state concedes in its appellate brief that the state did not file a petition for forfeiture pursuant to R.C. 2933.43(C), did not comply with the notice requirements contained therein, and "[t]he court did not conduct an official forfeiture hearing on the items that it offered forfeited to the City of Cleveland." - 25 - Initially, and as relevant to the instant case, R.C. 2933.43(C) explicitly required the prosecuting attorney who was responsible for appellant's criminal case to timely file the petition for forfeiture in the Court of Common Pleas of Cuyahoga County. See, State v. Baumholtz (1990), 50 Ohio St.3d 198 (forfeiture petition must be filed within a reasonable time upon seizure of property under R.C. 2933.43). The state suggests that the filing requirement was met when the federal government sent a letter to appellant, allegedly by certified mail, informing him that the federal government was holding his money with the intent 7 to forfeit the money following conviction. Since the General Assembly sought fit to specify that the prosecuting attorney of an underlying criminal matter file the petition in the appropriate court, we decline to accept the state's suggestion that the federal government's letter satisfied the statutory filing requirement of R.C. 2933.43(C). Moreover, R.C. 2933.43(C) sets forth notice requirements which are clear and unequivocal: the petitioner seeking forfeiture "shall give notice of the forfeiture proceedings by personal service or by certified mail, *** and shall publish notice of the proceedings each week for two consecutive weeks in a newspaper of general circulation in the county in which the seizure occurred. 7 The federal government participated in the events which led to appellant's indictment under R.C. 2925.03(A)(1). The trial court found appellant not guilty of the charge. The federal government's involvement with appellant is thus not described in this opinion. - 26 - The notices shall be personally served, mailed, and first published at least four weeks before the hearing." See, Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534. The section also expressly requires a forfeiture hearing to be held no later than forty-five days after a conviction. The Supreme Court of Ohio in Sons of Italy Lodge 0917 held that the notice requirements of R.C. 2933.43(C) are mandatory and require strict compliance with the notice and publication provisions contained therein. Id., syllabus; see, Akron v. Turner (1991), 91 Ohio App.3d 595, 598; State v. Roberts (Feb. 9, 1995), Cuyahoga App. No. 66692, unreported. Even if a trial court complies with the requirements, the Sons of Italy court recognized that questions may still remain as to due process guarantees. Sons of Italy Lodge 0917, 536. However, this court need not address this issue because there was absolutely no compliance with the notice, publication and hearing requirements in the present case. See, Roberts. Absent a demonstration of waiver, and we find none here, the state was required to follow the forfeiture procedure contained in R.C. 2933.43(C). Appellant's fifth assignment of error is accordingly sustained, and that portion of the sentence ordering forfeiture is vacated. The judgment of the trial court is affirmed as to appellant's convictions, and vacated as to the forfeiture order. - 27 - 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 Cuyahoga County 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 SPELLACY, P.J., AND JAMES D. SWEENEY, J., CONCUR. JUDGE SARA J. HARPER 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 journaliza-tion, .