COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68858 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LUTHER H. SMITH : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 7, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-311685 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: BLAISE D. THOMAS, ESQ. DONALD GREEN, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor, Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. The trial court convicted defendant-appellant Luther Smith on one count of drug trafficking in violation of R.C. 2925.03. Appellant now appeals his conviction. On May 25, 1994, Patrolman Martin Rudin was patrolling in the vicinity of East 105th Street in Cleveland. At approximately 2:00 a.m., a pedestrian waved him to a stop. The pedestrian informed Patrolman Rudin that he saw shots fired from a red van with tinted windows and an older male sitting in the van's passenger seat. Within ten minutes Patrolman Rudin spotted the red van. It carried two occupants: Luther Smith ("appellant") and his son, Alex Smith ("Smith"). After backup arrived, the officers made an investigatory stop of the van. The officers asked the appellant and Smith to step out of the vehicle. At this time, Patrolman Bujnak was checking the van to make sure there were no other occupants in the van when he saw the butt of a shotgun laying inside the van. Appellant and Smith were then arrested. The officers conducted an inventory search of the van and discovered a loaded 9- millimeter handgun in the compartment between the driver's seat and the passenger seat. They also discovered a box in the driver's door pouch containing 125 glassine packets of heroin and two bags of heroin and then found another 40 glassine packets of heroin in the middle console. - 3 - Smith testified that on May 25, 1994, at about 12:45 a.m., he was returning home when he saw three males standing around his apartment building. As he approached the building he heard gunfire and saw the three males run. Smith then called appellant from a pay phone and appellant stated he would be right over. Smith returned to his building and found a box containing heroin and a 9-millimeter handgun outside on the driveway. Smith placed the drugs and the gun in his car and waited for the appellant to arrive. Approximately thirty minutes later the appellant arrived and together they proceeded to the police station. It was at this point that Smith and the appellant were stopped and arrested by the police. Appellant now appeals his conviction for one count of preparation to ship, transport or deliver heroin in violation of R.C. 2925.03. Appellant's first assignment of error states: LUTHER SMITH WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WHEN THE TRIAL COURT OVERRULED HIS MOTION TO SUPPRESS EVIDENCE. The appellant contends that the police did not have an articulable and reasonable suspicion which would justify the stop. He maintains his burgundy and gold van did not fit the description given to the police and that the officer's suspicions were based on an anonymous tipper who was unreliable and offered no future verification of what the appellant was going to do. Appellant - 4 - believes the police did not have reasonable grounds to stop him and therefore the trial court erred in its refusal to suppress the evidence which was obtained as a result of an improper search. The trial court denied the motion to suppress based on the decision in Alabama v. White (1990), 496 U.S. 325, where the Supreme Court held that an anonymous tip had been sufficiently corroborated through police work to establish the reasonable suspicion necessary for an investigatory stop under Terry v. Ohio (1968), 392 U.S. 1. The trial court also based its denial on the detailed information that was supplied to the police officer by the anonymous tipper. The trial court stated that the description was of sufficient detail to permit the officer to make the stop of the red van and to investigate its passengers. The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Under Terry v. Ohio, supra, a law enforcement officer does not violate a person's Fourth Amendment protections if the officer initiates a stop based on an articulable and reasonable suspicion the person is involved in criminal conduct. The reasonableness of the investigative stop by an officer must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, at paragraph one of the syllabus. The totality of the circumstances must be viewed from the objective observations and information of the officer along with the - 5 - inferences and deductions made by a trained law enforcement officer that the particular individual is engaged in wrongdoing. United States v. Cortez (1981), 449 U.S. 411, 417-418. The appellant is correct in his argument, based on White, that an anonymous tip, standing alone, is not a sufficient basis for the police to make an investigatory stop. However, he overlooks the fact that the anonymous tipper was an eyewitness to criminal activity. Courts have held that information conveyed to the police from an ordinary citizen who has personally observed what appears to be criminal activity is sufficient to support a finding that a stop is reasonable. See Ohio v. McGuire (Dec. 21, 1994), Clark App. No. 94-CA-20, unreported, and Ohio v. Carstensen (Dec. 18, 1991), Miami App. No. 91-CA-1, unreported. Here, the police were informed by an anonymous tipper that criminal activity occurred. The tipper told Patrolman Rudin that a few minutes ago he saw gunfire from a red van with an older gentleman seated in the passenger seat. The tipper also pointed in the direction of where he had last seen the red van. Ten minutes later, Patrolman Rudin stopped a red van with an older gentleman, seated in the passenger seat, as described by the tipper. Under the totality of the circumstances, we hold that the trial court did not err in concluding that these facts satisfy the Fourth Amendment requirement of articulable facts leading to reasonable suspicion that the person being stopped may have been involved in criminal activity. Thus the stop was reasonable. - 6 - Accordingly, the appellant's first assignment of error is overruled. Appellant's second assignment of error states: APPELLANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF DRUG TRAFFICKING ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. The appellant maintains the state failed to present sufficient evidence that he knowingly prepared for shipment, shipped, transported, delivered, or prepared for distribution the heroin that was found during the search. He argues there was no evidence which proved he was aware the heroin was present before he got into his son's van, and that there was no evidence presented which linked appellant to the heroin later discovered in the van. In reviewing the sufficiency of the evidence in support of a criminal conviction, the court must examine the evidence admitted at trial and determine whether such evidence, if believed would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. 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 proved beyond a reasonable doubt. Id. In the trial of a case, either criminal or civil, the weight given to the evidence and the credibility of the witnesses is primarily for the trial court. State v. DeHass - 7 - (1967), 10 Ohio St. 2d 230. An appellate court abuses its discretion by substituting its judgment for that of the trier of fact as to the credibility of witnesses. State v. Walker (1978), 55 Ohio St.2d 208. R.C. 2925.03 defines the crime of drug trafficking and provides in pertinent part: "(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 such drug is intended for sale or resale by the offender or another." The evidence, when construed in the light most favorable to the prosecution, would permit a rational trier of fact to find appellant knowingly transported heroin with the knowledge that it was intended for sale. The appellant's son admitted the area where he and the appellant were stopped is an area of the city known for its heavy concentration of drug trafficking. Patrolman Rose stated that while he was conducting an inventory search of the van, forty individually wrapped packets of heroin were found in plain view on the console between the driver's and passenger's seats. These packets were in close proximity to the appellant. Additionally, Patrolman Rose testified that the drugs found in close proximity to the appellant were wrapped individually and in his experience drugs wrapped in this manner are usually intended for sale. - 8 - In State v. Gilbert (Sep. 22, 1994), Cuyahoga App. No. 66269, unreported, and in State v. Santiago (Aug. 11, 1994), Cuyahoga App. No. 65087, unreported, this court held that individually wrapped prepackaged drugs found in quantity are prepared for shipment, distribution, or sale. The trial court was convinced beyond a reasonable doubt that appellant knowingly transported heroin, specifically stating the appellant knew the forty packets of heroin found in plain view on the console of the vehicle were intended for sale. After viewing this evidence in a light most favorable to the prosecution, we find the state proved the essential elements of drug trafficking beyond a reasonable doubt. Therefore, the appellant's conviction was supported by sufficient evidence. Accordingly, the appellant's second assignment of error is overruled. The 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 Court of Common Pleas 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. DAVID T. MATIA, P.J. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON 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 journalization, .