COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69502 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DARNELL RANKIN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-314503 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOSEPH V. HOFFER, Assistant 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: STUART H. LIPPE 930 Leader Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Darnell Rankin appeals the judgment of the Common Pleas Court finding him guilty of two counts of trafficking in drugs in that he possessed more than three times the bulk amount of heroin, prepared it for shipment knowing it was intended for sale or resale, and possession of criminal tools. In July, 1994 the Cleveland Police Department received information concerning sales of heroin from a home located at 12422 Iowa Avenue in Cleveland. In response, police conducted periodic surveillance and noticed heavy traffic in what appeared to be drug transactions. Then, on July 12, 1994, police set up a "controlled buy" using a confidential police informant who made a phone call to the Iowa Avenue house to arrange a heroin purchase. Surveillance detectives then saw Rankin leave the house in a brown Lincoln and drive to a predetermined location where he sold several packets of heroin to the confidential police informant. The informant in turn gave these packets to police who observed a red spider-web marking on each of them. Based on this drug transaction, the police secured the Iowa Avenue premises and obtained a search warrant. Police found two juveniles in the living room smoking marijuana, with four or five rocks of cocaine on the table in front of them, and Denise Rankin, the appellant's wife, in one of the bedrooms from which - 3 - they also recovered five straight shooters and a key to a Sentry safe. Detective Mark Mazur searched the other bedroom and found a loaded 9mm semiautomatic pistol and a loaded .38 caliber revolver between the mattress and the box spring of the bed. He also found mannitol, a cutting agent, a black plastic gram scale containing heroin residue, as well as a strainer, rubber gloves, a spoon, a plate, a razor blade and a box full of little wax packets displaying red spider-web markings. The bedroom also contained clothes large enough to fit Rankin, a large man. Detective Mazur also found a locked Sentry safe in the bedroom. Using the key found on the key ring in the other bedroom, Mazur opened the safe and found the following: personal papers of Darnell Rankin, $27,430 in cash, 116 grams of heroin, and taped to the inside of the safe, a rent receipt for more than one thousand dollars made out to Mr. and Mrs. Rankin, 12422 Iowa. The personal papers included Darnell Rankin's car registration, an electric utility bill addressed to Darnell Rankin at that address, and a letter from an attorney addressed to Darnell Rankin dated July 8, 1994, just four days before the search. Police did not arrest Rankin at that time because he was not present at the home. However, they later obtained indictments against him for possession of heroin, preparation for shipment of heroin, possession of cocaine, preparation for shipment of cocaine, and possession of criminal tools, to wit: money, - 4 - firearms, and jewelry. When he failed to appear for arraignment, a capias was issued for his arrest. Upon his arrest, Rankin plead not guilty to the charges, waived his right to a jury trial, the court heard the evidence, and then acquitted him of the charges relating to cocaine, but found him guilty of the drug trafficking charges relating to heroin and also guilty of possession of criminal tools, the $27,430 in cash. Rankin now appeals and assigns two errors for our review. The first assignment of error states: THE TRIAL COURT DENIED DARNELL RANKIN HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS PROVIDED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, WHERE ITS VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Rankin argues the verdict is against the manifest weight of the evidence because the State failed to prove he possessed or prepared to ship any drugs, and he further argues no evidence exists that he had actual or constructive possession of the safe or its contents. The state contends the verdict is supported by the manifest weight of the evidence because the evidence presented at trial supported the conclusion that Rankin constructively possessed and engaged in the sale of heroin. The issue, then, for our consideration is whether the trial court's verdict is supported by the manifest weight of the evidence in this case as to the convictions for possession of - 5 - heroin in excess of three times the bulk amount, preparation for shipment of heroin, and possession of criminal tools, money. In determining whether a verdict is against the manifest weight of the evidence on appeal, this court weighs the evidence, considers credibility, and determines if the verdict should be reversed. As explained in State v. Martin (1983), 20 Ohio App.3d 172 at 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. In this case, the state presented evidence from four police officers. Detective Jeff Sampson testified that he arranged for a confidential informant for purposes of making a controlled purchase of heroin. Sampson testified he drove the informant to an outdoor telephone from which the informant called Rankin, and then Sampson notified other police detectives by radio that the drug buy would happen. Sampson then observed a brown Lincoln driven by Rankin approach the informant, saw the informant enter the vehicle and then saw both of them look down at the front seat of the car simultaneously. The informant then exited the vehicle, Rankin drove off, and the informant delivered a number of small wax packets to Sampson, each identified by a small red spider-web marking. Sampson testified that these packets matched - 6 - the ones he later recovered while executing the search warrant at the home on Iowa Avenue. Detective Mazur testified that he, too, witnessed the informant get into Rankin's car, and he also identified all of the evidence seized pursuant to the search warrant including the heroin, wax packets, and money. Sergeant Raymond Gercar and Detective Thomas Shoulders also testified and corroborated this testimony. In defense of the charges, Rankin presented testimony from Cherrine Paul who testified that Rankin had been living with her on Elderwood Avenue in East Cleveland at the time the police searched the house on Iowa Avenue. His attorney argued that this testimony demonstrates that Rankin could not have possessed the heroin, because he did not live at the Iowa Avenue house at that time. In conformity with the test outlined in State v. Martin, supra, we conclude the trial court's verdict is not against the manifest weight of the evidence. The police seized more than 116 grams of heroin from the Iowa avenue home, which is more than three times the bulk amount as it is defined in R.C. 2925.01. Also, during the search of the premises, police recovered a box containing small wax packets featuring a red spider-web design, matching those on the packets Rankin sold to the informant during the controlled buy. - 7 - Further, Sergeant Gercar saw Rankin drive off in a brown Lincoln shortly after Detective Sampson radioed that the buy would go down. The totality of the foregoing evidence substantially supports the trial court's finding that the appellant possessed more than three times the bulk amount of heroin as related in count one; the he prepared it for shipment and/or transported or delivered it knowing it was intended for sale by himself as charged in count two; and that he possessed $27,430 criminally as the evidence reveals the source of appellant's money. Other corroborating evidence including the men's clothing corresponding to Rankin's large size located in the bedroom containing the safe, the rent receipt bearing his name, the July 8, 1994 correspondence from an attorney addressed to him at the Iowa address, as well as other personal papers found there including his car registration, all indicate that property as his residence. We conclude the court did not lose its way in resolving conflicts in the evidence or create a manifest miscarriage of justice. Accordingly, this first assignment of error is overruled. The second assignment of error states: THE TRIAL COURT DENIED DARNELL RANKIN HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF THE LAW AS PROVIDED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WHEN IT ABUSED ITS DISCRETION, BY ALLOWING INADMISSIBLE TESTIMONY, OVER OBJECTION. - 8 - Rankin urges the trial court abused its discretion because it permitted the police officers to testify regarding a purported sale of heroin between appellant and a confidential informant which appellant argues is not relevant to or a material element of the crimes with which he is charged. The state contends the trial court properly admitted this evidence because it was relevant to demonstrate Rankin's ability to direct and control the heroin found in the Iowa Avenue residence, and the red-spider web markings on the drugs he sold to the informant matched those found on packets recovered during the search of the Iowa Avenue premises and, therefore, make this relevant evidence. This issue then, for our consideration, is whether the trial court properly admitted evidence of Rankin allegedly selling heroin to an informant at a trial where he was not charged with the sale of heroin. Evid. R. 402 provides that all relevant evidence is admissible, and evidence which is not relevant is not admissible. Evid. R. 401 states that evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, the State presented evidence of a controlled purchase of heroin from Rankin by a police informant. Police officers testified that the confidential informant called the - 9 - Iowa Avenue house and arranged to purchase a quantity of heroin from Rankin. Rankin, then, left the house, drove to the prearranged location, and sold packets of heroin containing a red spider-web marking to this informant. This evidence, tends to make Rankin's involvement in the possession, preparation for shipment, and possession of criminal tools charges more probable than it would be without this evidence because it establishes that Rankin came from the Iowa house when he responded to a phone call placed by the confidential informant, it connects the spider-web marked heroin packets used in the controlled buy with the heroin packets found in the house, and it demonstrates Rankin's involvement in the sale of heroin from the Iowa Avenue house. Therefore, this is relevant evidence pursuant to Evid. R. 401. Accordingly, the trial court properly admitted such testimony, and this 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 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. PORTER, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .