COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69169 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DAVID JENNINGS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 14, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-314970. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John F. Manley Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Donald Green Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., P.J.: Defendant-appellant David N. Jennings (d.o.b. February 17, 1961) appeals from his two-day bench trial conviction of one count of drug abuse (Cocaine, a Schedule II drug), in an amount less than 1 the bulk amount, in violation of R.C. 2925.11. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the date of the offense was Tuesday, August 9, 1994. At trial, the prosecution offered the testimony of five witnesses. The first witness for the prosecution, Cleveland Police Vice Department Detective Eric Flynt, an officer with seven years on the force who has made approximately 500 drug arrests, stated in pertinent part that on the date in question, at approximately midnight, he was performing visual surveillance with the aid of a telescope from a second floor window of a building overlooking the entrance to an apartment building at West 29th Street and Franklin Avenue, an area known for drug-related activity. Detective Flynt, from a distance of approximately 150 feet, observed a black man repeatedly selling drugs at that apartment building's entrance. A streetlamp illuminated the corner. At about the fifth observed transaction, Detective Flynt observed a black Nissan Maxima, with a mountain bike attached to a bike rack on the trunk, pull up to the curb at the entrance to the apartment building. The passenger of 1 R.C. 2925.11(A) provides: "(A) No person shall knowingly obtain, possess, or use a controlled substance." - 3 - 2 this vehicle, Mr. Tyler Phillips , a person the witness knew to be a male prostitute, exited the vehicle without wearing a shirt. The Maxima then drove off, driven by a white male. The witness observed the passenger walk up to the other male at the entrance, where a hand-to-hand transaction was observed with money passing from the passenger to the other man. Following the brief transaction, the passenger jogged over to the Maxima, which had returned to the scene after turning around in a nearby alley, and re-entered the passenger door before the vehicle drove off at normal speed. At this point, the witness radioed other officers on the take-down team, information about the vehicle and what he had observed. The officer identified Jennings in court as the man who was driving the Maxima. The second prosecution witness was Cleveland Police Sergeant Brian Heffernan, an officer with eight years of service on the force and who has made over one thousand drug arrests, who was a member of the take-down team during the offense at issue. The Sergeant testified that, based on the information provided by Detective Flynt over the radio, he and his partner, while driving in an unmarked undercover car, located and intercepted the black Maxima. After following the suspect vehicle for approximately three to four minutes over several blocks, they, with the help of a separate detective car, stopped the Maxima near the intersection of 2 Tyler Phillips, prior to this trial, pled guilty to a drug offense in connection with his activity on this date. - 4 - West 38th Street and Fulton Avenue. The witness exited his passenger door and proceeded to the Maxima's passenger door. While in transit to the Maxima from the rear, the witness, from the passenger door, observed the passenger (Phillips) put something in his mouth using his right hand. The witness opened the passenger door, physically removed Mr. Phillips from the vehicle, ordered the suspect to spit out the article and shook him several times until, within seconds, Mr. Phillips spit out the object from his mouth. The object was retrieved and later identified as a rock of crack cocaine. See State Exhibit 2. The witness never observed Mr. Phillips use his left hand in the vehicle. The Sergeant testified that Mr. Phillips is a known street prostitute with several arrests for soliciting, and that to the best of his knowledge, Mr. Jennings has never been arrested for any felonies. The witness's attention was directed at Mr. Phillips during the stop, not Mr. Jennings. The area of the offense is regarded by the police as the area of highest male prostitution in that police district. The witness did not observe any physical transaction take place between Mr. Phillips and Mr. Jennings. The third witness for the prosecution was Cleveland Police Vice Department Detective Bernard Norman, an officer with nine years of service on the force, who was a passenger in the detective Car which helped stop the suspect vehicle. After stopping the suspect vehicle, he proceeded, from in front of the suspect vehicle to the driver's door of the Maxima. The witness observed Mr. - 5 - Phillips put something in his mouth while the witness physically removed Mr. Jennings from the driver's seat. After securing Mr. Jennings, the witness returned to the Maxima and, on the front driver's bucket seat at a spot which would be between the driver's legs, immediately saw two rocks of crack cocaine in plain view which were recovered by the witness. See State Exhibit 2. The witness saw no physical movements or gestures between the occupants of the Maxima. The fourth witness for the prosecution was Cleveland Police Vice Department Detective John L. Vinson, an officer with seven years of service on the force, who was the partner of Sergeant Heffernan at the time of the offense. Detective Vinson, who assisted Detective Norman at the Maxima's driver's side door at the scene of the stop, corroborated the testimony of the other witnesses. The court overruled the defense motion for acquittal made at the close of the State's case-in-chief. The defense offered the testimony of three witnesses. The first defense witness was Ms. Joyce E. Jennings, the mother of the defendant-appellant. This witness testified that she lives in Mayfield Heights while her son, the defendant, lives in an apartment in Willoughby Hills, Ohio. She sees the defendant several times per week on average. The defendant has been unemployed for two years and is suffering from a terminal illness which was diagnosed in 1992, so she supports him financially until - 6 - his pending governmental disability claim is approved. On the date of the offense, she saw the defendant at approximately 6:30 p.m. to 7:30 p.m. and gave him $150.00 in cash. The defendant told her that he was going to the West Side to ride bikes with a friend. She has never seen her son use drugs or seen drug paraphernalia in his apartment or car, but he does take at least ten prescribed medications for his illness. The Maxima at issue is owned by the defendant. The defendant, the second witness for the defense, took the stand in his own defense. The defendant corroborated the testimony of his mother. The witness also denied ever purchasing or using crack cocaine. He also admitted to being approved for a social security disability a month before the trial and, from time to time, receiving financial assistance from his father and mother. He recalled that the night of the offense was chilly. After leaving his mother's home on the night of the offense, he drove to visit a friend, Russell Zapach, who lived at West 130th Street and Cooley Road. After riding his bike and walking with his friend, he left his friend's house around 11:30 p.m. and drove toward downtown Cleveland on Lorain Avenue. Along the way, he stopped for gasoline at a station in the vicinity of West 40th to West 54th Streets. From the $160.00 he was carrying [$150.00 from his mother and a $10.00 bill of his own funds] he purchased $9.00 worth of gasoline using his own $10.00 bill. While filling the Maxima's fuel tank, an old unshirted acquaintance, Tyler Phillips, came walking down - 7 - the street. Mr. Phillips appeared to be intoxicated and was shivering. The two struck up a conversation, at which time Mr. Phillips asked for a ride to West 6th Street. The defendant, after observing Mr. Phillips purchase a pack of cigarettes using several twenty dollar bills, agreed to give him the ride. Along the way to West 6th Street, Mr. Phillips asked him to stop at a friend's (named Jeanie) apartment so that he could get a shirt. Ultimately, they arrived at a building which the defendant was led to believe was Jeanie's apartment building. The defendant never discussed drugs with Mr. Phillips and never knew Mr. Phillips to use drugs. (The apartment building they visited was, in fact, the building which was under observation by the police.) While the defendant turned the car around in an alley, Mr. Phillips went on foot to the building. In less than a minute, Mr. Phillips returned to the car without a shirt, but with both of his fists clenched closed. The defendant inquired about the absence of a shirt on his friend, to which Mr. Phillips told him to just drive away. Several blocks later, the car was stopped by the police, searched, and the two were arrested. He does not recall what Mr. Phillips was doing prior to the police stop, except that he noticed that Mr. Phillips was holding crack cocaine in both of his hands in his lap, manipulating the material, before the police stopped the car. Mr. Phillips did not give him cocaine, nor did the defendant ask for any, nor did the defendant give Mr. Phillips any money to purchase the cocaine. The witness never saw Mr. Phillips put his right hand - 8 - to his mouth. According to the defendant, Mr. Phillips, using his left hand while the car was moving just 10 to 20 seconds before the police stop, tossed the cocaine in that left hand toward the back seat, but it hit the roof of the car and the defendant did not know where the drugs landed. The witness also stated that if three rocks of crack were recovered, this amount was only a third of the amount of cocaine that he saw in Mr. Phillips' palms. The defense then renewed its motion for acquittal, which the court again overruled. In rebuttal, the prosecution offered the testimony of Mr. Phillips. This witness stated that he first saw the defendant between 8:00 to 9:00 p.m. on the night of the offense, at the intersection of West 28th Street and Lorain Avenue, at which time the witness flagged down the defendant's car at a red light. The witness asked the defendant if he would give him a ride to a place to purchase some drugs. The defendant agreed. The witness navigated the defendant to the drug sale location. Along the way, the witness told the defendant that he only had thirty dollars and asked the defendant if the defendant would like to "go in on a certain amount of drugs and he agreed." (R. 216.) The witness put in his thirty dollars and the defendant put in a twenty dollar bill, for a total of fifty dollars, so as to buy three rocks of crack cocaine. After leaving the scene of the purchase, and about half-way before the police stopped the car, the witness, with his left hand, gave the defendant two rocks of crack cocaine. The rest - 9 - of the cocaine the witness attempted, unsuccessfully, to swallow. The witness admitted to having been convicted of three drug law violations in the past three years and three or four prostitution convictions. On surrebuttal, the defense recalled Detective Flynt to the stand. The Detective recalled briefly meeting Mr. Phillips at the police station once in September, 1994, but the witness took no statement from Mr. Phillips and the witness stated that Mr. Phillips did not state that the drugs found in the stop were, in fact, his. The witness stated that he told Mr. Phillips that if he had anything to say, that Mr. Phillips should bring Mr. Jennings with him and say it in court. Following closing arguments, Jennings was found guilty of the offense contained in the indictment. After the preparation of a pre-sentence investigation report, and finding the defendant to be indigent, the court waived the fine and sentenced the defendant to 18 months, sentence suspended, one year of probation on the following conditions: (1) random urinalysis; (2) payment of court costs or, in lieu of the payment of such costs, perform 40 hours of community service; and, (3) suspended driver's license for 6 months (except for driving privileges for medical treatments). T h i s timely appeal followed, presenting the following sole assignment of error: I DAVID JENNINGS' RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO - 10 - CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF DRUG ABUSE ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. The test for reviewing the sufficiency of the evidence in a criminal case requires determining, as a matter of law, when the evidence is construed in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; Also see State v. Eley (1978), 56 Ohio St.2d 167, and State v. DeHass (1967), 10 Ohio St.2d 230. The evidence presented indicates that the defendant took part in the purchase of the drugs and Mr. Phillips passed two rocks of crack cocaine to the defendant before the police stopped the vehicle. These two rocks of crack cocaine were found in an area on the driver's bucket seat where the separation of the defendant's legs would be if the defendant was seated. No other drugs, contrary to the testimony of the defendant regarding the allegation that Mr. Phillips threw the drugs in his left hand toward the back seat within twenty seconds of the police stop, were found in the search of the vehicle. Also, the police saw no furtive movements with Mr. Phillips' left hand shortly before the stop. Based on the record presented, we conclude that the trial court had sufficient evidence before it to conclude that the prosecution presented sufficient evidence to convict the defendant-appellant of the offense of drug abuse. - 11 - Assignment overruled. Judgment affirmed. - 12 - 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. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY 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 .