COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69441 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION VIRGINIA STARKS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 18, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-320812 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KESTRA SMITH CRUTCHER, ESQ. CHARLES M. MORGAN, JR., ESQ. Assistant County Prosecutor 11510 Buckeye Road 8th Floor, Justice Center Cleveland, OH 44104 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. A jury found defendant Virginia (also known as "Victoria") Starks guilty of one count of drug abuse, in violation of R.C. 2925.11, for possession of cocaine in an amount less than the bulk amount. In this appeal, she assigns three errors which claim (1) the trial court erred when it refused to grant a mistrial as a result of juror misconduct; (2) the trial court erred when it denied her motion for judgment of acquittal; and (3) the weight of the evidence did not support her conviction. The state presented the testimony of the two arresting police officers. The officers were on routine patrol when they observed an automobile driven by defendant strike a parked car. They stopped defendant, noticed the smell of alcohol, and asked her to produce her license. When defendant could not easily retrieve her license from her small black wallet, the officers asked her to step out of her vehicle. They conducted a brief pat-down of defendant's outermost garment and placed her in the rear of the zone car. After the officers verified defendant had no outstanding warrants, they asked her to perform field sobriety tests. When defendant refused, they notified her that she would be required to take a breathalyzer or blood alcohol test. Defendant again refused so the officers placed her under arrest. They did not handcuff her. The officers called for a tow truck and interviewed the owner of the parked car defendant struck. After transporting defendant - 3 - to the police station, one of the officers conducted a routine search of zone car. He discovered defendant's black wallet and two rocks of crack cocaine tucked underneath the rear passenger seat. Defendant testified and, while admitting being drunk on the night of her arrest, denied possessing the cocaine and further denied any drug use. She presented the testimony of three witnesses who also stated they did not believe defendant abused drugs. I In her first assignment of error, defendant claims the trial court erred by failing to grant a mistrial prior to trial when it dismissed a juror after it learned the juror failed to inform the court he previously counseled defendant for drug abuse. Defendant claims the juror informed the court of his past relationship only after a second juror urged him to step forward with the information. Defendant claims the second juror's knowledge of her past history of drug abuse may have tainted the second juror's impartiality, and possibly that of the entire panel. The right to due process mandates the accused be tried before a fair and impartial jury on conclusions reached from evidence and argument in open court -- not by outside influence. Petro v. Donner (1940), 137 Ohio St. 168, paragraph one of the syllabus; State v. Taylor (1991), 73 Ohio App.3d 827, 831. "The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualifications of a - 4 - juror and is free from bias or prejudice for or against either litigant." Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, paragraph one of the syllabus. The decision to declare a mistrial because of juror misconduct rests within the discretion of the trial judge, reviewable for an abuse of that discretion. State v. Glover (1988), 35 Ohio St.3d 18, 19; Clearly, the trial court had every reason to remove the juror after he disclosed to the court his previous relationship with defendant. The juror defeated the essential purpose of the voir dire when he withheld this information, and the trial court could reasonably believe it indicative of the juror's bias or prejudice. See Petro, supra, at 175. However, nothing in the record indicates the juror passed this bias or prejudice on to other jurors. The entire transcript of the juror removal proceedings follows: "THE COURT: *** Juror Number 11 ***, apparently examined his conscience while he was in the jury deliberation room, told one of the jurors he knew the defendant, and the juror he apparently told it to said you have to bring that to the Court's attention. He then left the jury room and told my bailiff that not only does he know the defendant, but he has counseled her for her drug abuse." So, considering his untruthful responses to me during the course of voir dire, I am going to remove him and I'm going to place the alternate in as Juror Number 11. So that I don't have to go into this any further, I'm going to have, unless somebody wants to suggest a better procedure, I'm just going to excuse Juror Number 11, have the alternate put in his - 5 - place back in the jury room, and Number 12 will just be brought out. Any objection from the defense? I don't know what to do. (THE DEFENSE): No objection. The transcript does not indicate whether the juror told the other juror how he knew defendant, and with the absence of concrete evidence to the contrary, and it would misrepresent the record if we were to give the transcript the reading suggested by defendant. In fact, a fair reading of the record before us suggests the juror merely told the other juror he knew defendant, without indicating their past history. Under these facts, we cannot say defendant demonstrates the type of prejudice necessary to show the trial court abused its discretion by failing to declare a mistrial. Moreover, the defense did not object when the court told the parties it would remove the juror and asked if they could "suggest a better procedure," and never did request a mistrial. A failure to object to error at a time when the court could have corrected the error constitutes a waiver of the right to raise that error on appeal. State v. Williams (1977), 51 Ohio St.2d 112. Under the circumstances, the record fails to show the excused juror said anything that compromised or tainted the jury's verdict. Since defendant has failed to demonstrate prejudice, we overrule the first assignment of error. - 6 - II The second assignment of error is the trial court erred by refusing to grant defendant's motion for judgment of acquittal made at the close of the state's case. She argues the state failed to present sufficient evidence to demonstrate she knowingly possessed a controlled substance, claiming the possibility existed that the crack cocaine could have belonged to any other person riding in the back of the zone car. R.C. 2925.11(A) states, "No person shall knowingly obtain, possess, or use a controlled substance." The term "possess" is defined in R.C. 2925.01 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." Although the state did not present direct evidence to show possession, it did present compelling circumstantial evidence sufficient to permit reasonable minds to disagree on the question whether the state proved the essential elements of drug abuse, and defeat a motion for judgment of acquittal. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. Both officers stated they did not handcuff defendant when they placed her in the back seat of the zone car, and admitted their performance of other duties at the scene required them to leave defendant unattended in the zone car for a brief period. When the officers searched the zone car after processing defendant, they - 7 - found her wallet and two rocks of crack cocaine wedged in the rear passenger seat. Defendant's claim that another arrestee might have placed the crack cocaine behind the seat is not supported by the evidence. The police officers testified standard procedure dictates they conduct a routine inspection of the patrol car before starting their tour of duty. The typical inspection requires the officers to search under and between the seats of the vehicle for contraband or evidence left by arrestees. On the day they arrested defendant, the officers searched their patrol vehicle and found nothing of consequence. Although the officers arrested and transported another person to the police station before arresting defendant, they testified they conducted a search of the vehicle after processing that person, found nothing, resumed their patrol and stopped defendant. This evidence was sufficient to allow reasonable minds to reach different conclusions as to whether the state proved each element of the crime beyond a reasonable doubt. See State v. Gutierrez (1994), 95 Ohio App.3d 414, 416-417; State v. Clark (Oct. 13, 1992), Stark App. No. CA- 8925, unreported. The second assignment of error is overruled. III The third assignment of error complains the jury's verdict is against the weight of the evidence. Defendant cites to various parts of the testimony where the officers admitted they did not discover the crack cocaine during a pat-down; defendant's testimony - 8 - that the officers did handcuff her; the officer's failure to see her hide the cocaine and her wallet in the car seat; and testimony that she has never possessed or used drugs. A jury is free to believe or disbelieve testimony and, being in the best position to view the evidence and witnesses, its determination of credibility will not be overturned on appeal. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Antill (1964), 176 Ohio St. 61. The state presented sufficient testimony from which the trier of fact could resolve questions of credibility against defendant. Competent, credible testimony showed the officers did not handcuff defendant, so she had the freedom of movement necessary to hide the drugs. Moreover, the officers were forced to leave defendant in the rear seat of the car for a brief period of time while they attended to the owner of the car defendant struck and arranged for a tow truck. This brief period of time may have afforded defendant the opportunity to hide the cocaine and wallet. As to the wisdom of hiding cocaine and her wallet in the rear seat of a police car, we note defendant may not have been thinking clearly, as she herself admitted being intoxicated at the time of her arrest. The officers further explained they conducted a brief pat- down of defendant's jacket and her jacket pockets because the circumstances of her arrest did not require anything more thorough. Given the small size of the rocks of crack cocaine found, the jury - 9 - may well have concluded the officers would not have discovered the crack during a cursory weapons pat-down. The third assignment of error is overruled. Judgment affirmed. - 10 - 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. BLACKMON, P.J. O'DONNELL, 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, .