COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68687 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JERMAINE BENNETT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-308332. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor L. Chistopher Frey, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James R. Willis, Esq. Courthouse Square Building Suite 350 350 Lakeside Avenue, N.W. Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Jermaine Bennett, defendant-appellant, appeals his conviction in the Cuyahoga County Court of Common Pleas for possession of marijuana and possession of criminal tools. Defendant-appellant raises two assignments of error concerning the sufficiency of the evidence and the sentence imposed by the trial court. This court, finding error, affirms defendant-appellant's conviction but reverses and remands the case back to the trial court for resentencing. I. STATEMENT OF FACTS Jermaine Bennett, defendant-appellant, was indicted for possession of marijuana in violation of R.C. 2925.11, trafficking of marijuana in violation of R.C. 2925.03(E), and possession of criminal tools in violation of R.C. 2923.24. On February 8, 1995, after waiving a jury trial, a bench trial began. The State presented the testimony of a member of the Cleveland Police Department SWAT Unit and three officers with the Cleveland Police Narcotics Unit. Officer Charchenko, a detective for the narcotics unit, testified that through the use of an informant, they had previously made a controlled buy of marijuana at the apartment where defendant-appellant was arrested. The informant described the seller as a black male, approximately 25 years old and standing five feet eleven inches tall. The informant also described two other males who were in the apartment at the time of the purchase: one about 45 years old and one described as being young. -3- After obtaining the search warrant, the narcotics unit executed the warrant with the assistance of the Cleveland Police Department SWAT Unit. The State's testimony established that the SWAT team entered the apartment and witnessed defendant-appellant sitting at a kitchen table with 11 ziplock bags of marijuana in front of him similar to the package purchased through their controlled buy. There was also a pocketbook with defendant-appellant's identification, $171 in cash, a pager and a bottle of beer on the table directly in front of defendant-appellant. Additionally, there was a scale and more marijuana found in a back room of the apartment. Similar to the informant's descriptions, defendant- appellant was a black male who was 22 years old at the time of the arrest and stood five feet eleven inches. Also arrested at the scene was 47-year-old Clifford Brown, the tenant of the apartment, and a juvenile acquaintance. Defendant-appellant testified that he was at the apartment to pick up the juvenile who was staying with Clifford Brown and take him to Scandinavian Health Spa. Approximately three to five minutes after arriving at the apartment, defendant-appellant heard the police come in and was told to sit down at the table and put his hands on his head. Defendant-appellant testified he did not know there was marijuana on the kitchen table but did admit the wallet on the table was his. At the conclusion of the case, the trial court found defendant- appellant guilty of possession of marijuana, as charged in count one, and possession of criminal tools, i.e., money, as charged in -4- count three. Defendant-appellant was acquitted on the drug trafficking charge. Defendant-appellant was sentenced to concurrent one year terms. On May 10, 1995, this court granted defendant-appellant's motion for bail upon the posting of a $5,000 bond. Defendant-appellant filed this appeal. II. FIRST ASSIGNMENT OF ERROR Jermaine Bennett, defendant-appellant, states as his first assignment of error: THE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF THE STATE'S CASE AND RENEWED AT THE CLOSE OF ALL THE EVIDENCE. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL. Jermaine Bennett, defendant-appellant, argues the trial court erred in denying his motion for acquittal. Specifically, defendant-appellant argues that by merely presenting testimony that defendant-appellant (who was not the tenant of the apartment) was sitting at the kitchen table, the state failed to prove beyond a reasonable doubt that he had dominion and control over the drugs on the table. Moreover, defendant-appellant argues, the state failed to present any evidence that defendant- appellant possessed the money on the table with the intent to use it criminally as required for a conviction under R.C. 2923.34. Defendant-appellant's first assignment of error is not well taken. -5- B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, a trial court "shall not order an entry 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 proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence 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. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. -6- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL. Defendant-appellant was convicted for knowingly possessing a controlled substance in violation of R.S. 2925.11, i.e., marijuana. Defendant-appellant was also convicted for possessing or having money under his control with the purpose to use it criminally in violation of R.C. 2923.34. After a review of the evidence submitted, we find reasonable minds could come to the conclusion that defendant-appellant did knowingly possess marijuana in violation of the Drug Abuse statute, R.C. 2925.11. "Possess" or "possession" is defined by R.C. 2925.01(L) as "*** 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. See State v. Boyd (1989), 63 Ohio App. 790. To establish constructive possession the state must prove the defendant "was able to exercise dominion and control over the object, even though that object may not be within his immediate physical possession." State v. Johnson (Nov. 21, 1985), Cuyahoga App. No. 49746, unreported. See, also, State v. Wolery (1976), 46 Ohio St.2d 316. In the case sub judice, the state presented the testimony of Daniel Galmarini, a member of the SWAT team that entered and secured the premises: -7- Question: Okay. And as the first person on the entry team, what did you observe when you first entered the apartment? Answer: I observed the kitchen on the left, and kitty-corner to me the defendant was sitting at the table with a marijuana package right in front of him. Based upon our review of the record and construing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have properly found defendant-appellant was in constructive possession of the marijuana. See State v. Bar (1993), 86 Ohio App.3d 227. With regards to defendant-appellant's conviction for possession of criminal tools, we note that currency does not fall within one of the circumstances which constitutes "prima facia evidence of criminal purpose" under R.C. 2923.24(B). As such, the state was required to prove that defendant-appellant possessed or had control over the money with purpose to use it criminally, without the benefit of the inference provided by this statute. State v. Anderson (1981), 1 Ohio App.3d 62. See, also, State v. Wilson (June 9, 1994), Cuyahoga App. No. 64442, 64443, unreported. A person acts "with purpose" under R.C. 2923.24 "*** when it is his specific intention to engage in conduct of that nature." R.C. 2901.22(A). In this case, the police had been made aware that there was drug activity taking place in the apartment at issue. A controlled buy of marijuana was made at the apartment a few days before the search warrant was executed. The confidential -8- informant identified the seller as a black male, 25 years old, five feet eleven inches tall. The informant also described two other males who were in the room at the time of the purchase: one about 45 years old and one described as being young. When the search warrant was executed, defendant-appellant was found sitting at a kitchen table with 11 ziplock bags of marijuana in front of him similar to the package purchased through their controlled buy. There was also a pocketbook with defendant-appellant's identification, $171 in cash lying loosely next to the marijuana, a bottle of beer and a pager. Similar to the informant's descriptions, defendant-appellant was a black male who was 22-years-old black male and stood five feet eleven inches. Also found at the scene was 47-year-old Clifford Brown, the tenant of the apartment, and a juvenile acquaintance. We believe based upon our review of the record and construing the evidence in a light most favorable to the prosecution, a rational trier of fact could have properly found defendant- appellant possessed the currency on the table with the intent and/or purpose to use it criminally. Accordingly, the trial court did not err in denying defendant- appellant's motion for acquittal. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Jermaine Bennett, defendant-appellant, states as his second assignment of error: -9- THE COURT ERRED WHEN IT SENTENCED THE APPELLANT TO ONE YEAR IN PRISON FOR A CRIME THAT AT WORST COULD ONLY HAVE BEEN A MINOR MISDEMEANOR AND AT BEST A FOURTH DEGREE FELONY. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT. In the case sub judice, both parties agree that the evidence presented in court established that the amount of marijuana seized from the apartment was less than bulk amount, i.e., 100 grams. Pursuant to R.C. 2925.11, possession of marijuana in an amount less than 100 grams is a minor misdemeanor which subjects defendant-appellant to a fine of not more than $100. R.C. 2929.21(D). Defendant-appellant's second assignment of error is therefore well taken. This case is remanded back to the trial court for resentencing consistent with this opinion. Affirmed in part, reversed in part and remanded for resentencing. -10- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee shall bear their own costs. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J. and PATTON, J., CONCUR. DAVID T. MATIA 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 .