COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69751 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES WILSON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-325,015 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor STEVE W. CANFIL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT R. CLARICO, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant James Wilson appeals from his convictions following a jury trial on drug trafficking, R.C. 2925.03(A)(2), drug abuse, R.C. 2925.11, and possession of criminal tools, R.C. 2923.24. Counts one and two each contained two furthermore clauses for previous convictions of drug abuse in Cases No. CR-209034 and CR-289575. All three counts carried the specification for a previous conviction of carrying a concealed weapon in Case No. CR- 204238. The defendant-appellant claims that the trial court improperly denied his Crim.R. 29 motion for acquittal when his conviction was not supported by sufficient evidence and that the verdicts were against the manifest weight of the evidence. We find no error in the court below and affirm the judgment. The record demonstrates that the defendant was arrested by Cleveland police on February 24, 1994. At trial, the state pre- sented evidence from Officer Steven Zedelle and Officer Walter Mruk of the Cleveland Police Department. Defendant Wilson testified on his own behalf. Officer Zedelle testified that at approximately 2:30 a.m. on February 24, 1994, he and his partner, Officer Mruk, responded to a radio broadcast to investigate several shots fired in the area of East 71st and Bliss. While touring the area, Officer Zedelle - 3 - observed a gray Ford station wagon sitting in a vacant lot at East 71st and Becker Court. The station wagon matched a description given in a radio broadcast which the officers had received on February 19th. The broadcast described the vehicle as one which was possibly carrying drugs, gave the license plate number and described the driver as a tall black male. When the officers first spotted the car, they pulled up behind it. As they approached the vehicle, Officer Zedelle noted the driver, the defendant herein, place his hand up by the dome light. He testified that both doors of the car were closed and the dome light was off. Officer Mruk requested that the driver exit the vehicle, and Officer Zedelle requested the passenger to exit the vehicle. The officers patted down both men and found no weapons, drugs or drug paraphernalia. The defendant and the other man were placed in separate zone cars, and the automobile was searched. Officer Zedelle testified that when the door of the gray station wagon was opened and the dome light came on, something inside the lens of the dome light was blocking the light, so he popped the plastic lens off with his finger. He observed a small plastic bag wedged inside which, upon inspection, appeared to contain several rocks of crack cocaine. A further search of the vehicle did not disclose any more drugs, drug paraphernalia or weapons. No odor of smoke was detected. The defendant was placed under arrest for drugs, and the passenger was placed under arrest on an outstanding felony warrant. - 4 - On cross-examination, Officer Zedelle testified that the arresting officers never interviewed the owner of the automobile. He further testified that the defendant had about $29 on his person and that Officer Zedelle did not see a drug transaction occur. The state then called Officer Mruk, whose testimony of the events of February 24, 1994 was substantially the same as that of Officer Zedelle. Officer Mruk testified that the sixth district was looking for a car out of which a black male was selling drugs. He testified that the description of the driver of the car they were looking for was a "tall black male about six foot tall thin black male." [sic] On cross-examination, Officer Mruk testified that Officer Zedelle used a flashlight to search the floor of the car. The prosecution rested. Defense counsel moved for acquittal pursuant to Crim.R. 29; the court overruled the motion. James Wilson testified in his own defense. Wilson testified as to his previous convictions. He was convicted of possession of drugs in 1986 and 1993, carrying a concealed weapon in 1986, and breaking and entering in 1989. He had spent a total of five years in jail. At the time of each conviction, he pled guilty; this was his first trial. The defendant testified that he was employed by Alpha Con- struction and had been so employed on February 24, 1994. He borrowed the gray Ford station wagon from an acquaintence named "Billy" to transport some tools to Chesterland, where he had - 5 - obtained a job doing roofing. Earlier in the evening, he parked the car in the vacant lot across the street from his mother's house. At 2:30 a.m., he left his mother's house to go home. He crossed the street to the field where the car was parked and lifted the hood to put on the battery post. He noticed a patrol car coming from Superior to St. Clair. He got in the car and started it. A man the defendant knew from the street asked him for a ride to 71st Street and Superior. The man got in the car. Wilson testified he "cranked" the car, and, at that time, the officers pulled up behind him. One officer came around to his door and told him to get out of the car; the police told the passenger to get out as well. Wilson and the passenger were each patted down and put into separate cars. The defendant was sitting in the patrol car while the police searched the car. He described the car he was using as a small station wagon, extremely dirty with salt and rust all over it, having no interior lights that worked. On cross-examination, the defendant admitted that he had a further conviction for theft in 1992. He denied that he knew the full name or address of the owner of the car, Billy, and further denied that the drugs found in the car were his. He admitted being arrested in 1993 at 71st and Becker with ten rocks of cocaine in the ashtray of his car. The defense rested and renewed the motion for acquittal pur- suant to Crim.R. 29. The trial court denied the motion. The jury returned a verdict of guilty to each of the charges. The court - 6 - sentenced the appellant to a five- to ten-year term of incarcera- tion on each of counts one and two and to a three- to five-year term of incarceration on count three, with the sentences to run concurrently. This appeal followed. Defendant-appellant presents two assignments of error for our review. ASSIGNMENT OF ERROR NO. I MR. WILSON'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROP- ERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Appellant contends that the trial court should have granted his motion for acquittal as the state failed to meet its burden of proof as required by R.C. 2901.05(A), which provides that: Each person accused of an offense is presumed innocent until proven guilty beyond a reason- able doubt, and the burden of proof is upon the prosecution. Appellant's first assignment of error is without merit. A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for - 7 - judgment of acquittal made at the close of the state's case. It is well established that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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 proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment 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 proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. The standard of review to be applied by the appellate court is set forth at paragraph two of the syllabus in State v. Jenks (1991), 61 Ohio St.3d 259, which states: *** 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 proven beyond a reasonable doubt. (Citations omitted.) Appellant contends that when the evidence presented at trial is examined, it is revealed that, even if believed, such evidence would not convince the average mind of the defendant's guilt beyond - 8 - a reasonable doubt and, therefore, the trial court erred by denying his Crim.R. 29 motion for acquittal on each of the charges. We do not agree. We first review the charge of drug abuse pursuant to R.C. 2925.11. The elements of that charge are as follows: (A) No person shall knowingly obtain, pos- sess, or use a controlled substance. "Possession" is defined in R.C. 2925.01(L) as follows: "Possess" or "possession" means having control over a thing or substance, but may not be inferred from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found. Appellant argues that the state had to prove possession, actual or constructive, and contends that, as in State v. Palmer (Feb. 6, 1992), Cuyahoga App. No. 58828, unreported, the state "established nothing beyond his presence in the automobile." Appellant argues that there was no evidence presented to show that he had dominion or control over the rocks of crack cocaine found in the dome light. Such is not the case. Each officer testified that he saw the appellant place his hand up to the dome light. Officer Zedelle testified that the cocaine was found inside the dome light. This evidence presented goes beyond the appellant's "mere presence" in the automobile. The evidence presented is sufficient that, when viewed in a light most favor- able to the prosecution, a reasonable trier of fact could have found the essential element of R.C. 2925.11, that the appellant was - 9 - knowingly in possession of a controlled substance, proven beyond a reasonable doubt. We next review the charge of drug trafficking. R.C. 2925.03(A)(2) states, in pertinent part: No person shall knowingly do any of the fol- lowing: * * * (2) Prepare for shipment, ship, trans- port, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another. Appellant contends that possession of ten rocks of cocaine is insufficient evidence to support a conviction of drug trafficking. He relies on State v. Jordan (1992), 73 Ohio App.3d 524 for the proposition that possession of more than one rock of crack cocaine without a method of ingesting it is not sufficient evidence to support a conviction of R.C. 2925.03(A)(2). Appellant's reliance on Jordan is misplaced as Jordan may be distinguished from the facts of the case sub judice. Jordan was convicted in the trial court of possession of cocaine, drug trafficking and possession of criminal tools. Jordan was one of several men on a street corner when the police approached the group. One detective identified Jordan as the person who dropped a plastic zip-lock packet. The detective tes- tified that within the plastic bag, he found ten small zip-lock plastic bags, each containing five rocks of cocaine. - 10 - On appeal, Jordan claimed that police misconduct in the form of tampering, destruction and the substitution of evidence vio- lated his right to due process. The court of appeals concluded that the assignment of error was well taken and reversed. Further, the appellate court recognized as plain error de- fendant's conviction for drug trafficking as it was not sustained by the evidence. The Jordan court stated: The record demonstrates that, apart from fifty rocks of cocaine found near Jordan, there were no other quanities found on his person. On this basis, and assuming detective Thompson is credible, the defendant's conviction for possession of cocaine (R.C. 2925.03[A][4]) is sustained by the record. The same cannot be said for his conviction under (A)(2). The cocaine was packaged into the zip-lock bags by the police, not Jordan. Absent these zip-lock bags, there was no evidence that Jordan prepared cocaine for shipment, shipped, transported, delivered, prepared for distribution, or distributed it. We conclude that the evidence is insufficient to support defendant's conviction. Rational minds could not have found each material ele- ment of R.C. 2925.03(A)(2) proven beyond a reasonable doubt. *** Appellant contends that Jordan then stands for the proposition that the possession of as many as fifty rocks of cocaine alone is insufficient evidence to support a conviction pursuant to R.C. 2925.03(A)(2). As such, appellant contends that Jordan is direct- ly on point with the matter sub judice. Such is not the case. The Jordan court found that the police misconduct in destroy- ing and substituting evidence required reversal of the trafficking conviction based upon the substituted evidence and the fact that - 11 - the evidence which remained was insufficient to support a convic- tion on that charge. Here, as in Jordan, the evidence showed the appellant was in possession of more than ten rocks of cocaine. However, in the matter before us, unlike Jordan, the state presented further evi- dence to support the trafficking charge. The additional evidence presented by the state shows that the appellant and the passenger were sitting in a running car which matched the description, along with the license plate identification, of a car used in suspected drug transactions by a tall black male. The appellant is a tall black male. Next, the rocks were packaged in a small plastic bag. Appellant then testified the cocaine was not for personal use. No crack pipes or drug paraphernalia were found in the car or on the appellant or the passenger, and no odor of smoke was detected. Finally, the testimony of the police officer was that, based on his experience, someone with ten rocks and no pipe is probably a seller. Viewing the evidence adduced at trial in a light most favor- able to the prosecution, as we are required to do, we find that evidence presented here was sufficient that a reasonable trier of fact could reach different conclusions as to whether each material element of the crime of drug trafficking (R.C. 2925.03[A][2]) had been proven beyond a reasonable doubt. Finally, we address the sufficiency of the evidence presented on the third offense with which the appellant was charged, posses- - 12 - sion of criminal tools pursuant to R.C. 2923.24. The elements of that charge are as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article with purpose to use it criminally. Appellant posits only one argument for the proposition that the state failed to present sufficient evidence on the crime of possession of criminal tools. Appellant contends that the state did not present sufficient evidence to support a conviction on counts one and two and, therefore, there is no evidence that the appellant had the purpose to use the automobile criminally. Since we have found that the state did, in fact, produce sufficient evidence on counts one and two, appellant's only argument will fail. The evidence presented by the state was sufficient to support convictions of drug abuse by possession of crack cocaine and of drug trafficking. The evidence presented showed that the appel- lant was arrested while sitting in the driver's seat of a vehicle which was identified by its description and license plate as suspect for drug activity. The rocks of cocaine were hidden in the vehicle. The evidence, when examined in the light most favorable to the state as required by State v. Bridgeman, supra, was sufficient to support a finding that reasonable minds could reach different conclusions as to whether each material element of the offenses as charged had been proven beyond a reasonable doubt. - 13 - In view of the evidence presented against the appellant by the prosecution, we find that the trial court did not err when it denied the Crim.R. 29 motion for a directed acquittal. Appel- lant's first assignment of error is overruled. ASSIGNMENT OF ERROR NO. II THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF DRUG TRAFFICKING, DRUG ABUSE, AND POSSESSION OF CRIMINAL TOOLS HAD BEEN PROVEN BEYOND A REA- SONABLE DOUBT. The standard of review for the issue of whether a verdict is against the manifest weight of the evidence is set forth in State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the sylla- bus: In determining whether the verdict is against the manifest weight of the evidence the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence the [finder of fact] clearly lost its way and created such a manifest mis- carriage of justice that the conviction must be reversed and a new trial ordered. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; - 14 - (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, 14. As we have said in State v Jackson (Aug. 4, 1994), Cuyahoga App. No. 65957, unreported, at 2: The trier of fact has the primary responsi- bility for weighing the evidence and deter- mining the credibility of the witnesses. As such, a judge or jury may believe or disbe- lieve any witness or accept or reject any, all, or part of what a witness says. State v. Antill (1964), 176 Ohio St. 61, 197 N.E.2d 548; State v. DeHass [(1967), 10 Ohio St.2d 230], supra. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the State has proved the offense beyond a reasonable doubt. See State v. Eley [(1978), 56 Ohio St.2d 169], supra, and State v. Barnes [(1986), 25 Ohio St.3d 203], supra. Appellant contends on appeal that the evidence is far from certain that he had knowledge that drugs were present in the automobile. Appellant's only argument presented in this appeal is that the testimony of the police officers that they were able to see the defendant reach up to the dome light although it was dark and the dome light was not illuminated is such incredible testimo- ny that the court is not required to believe it. Appellant argues - 15 - that, following the guidelines of Mattison, the court is not required to believe the incredible. At trial, each of the police officers testified that as he was approaching the vehicle, the driver was seen reaching up to the dome light. We hardly find the testimony of the police officers to be so incredible that it may not be accepted as true. The jury, after hearing the testimony and observing the appellant as he testified, apparently gave little weight to his statements that he did not place the crack cocaine into the dome light of the car and was unaware of its presence. A jury may accept or reject any part or all of what a witness says. Antill, supra, at 67. A review of the entire record reveals that the state produced competent, credible evidence going to each of the elements of the crimes charged upon which the jury could reasonably conclude, beyond a reasonable doubt, that the appellant was guilty of drug trafficking, drug abuse by possession, and possession of criminal tools. It cannot be said that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. We hold that the appellant's convictions are not against the manifest weight of the evidence. Accordingly, the appellant's second assignment of error is overruled. - 16 - 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 Cuyahoga County 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. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 of decision by the .