COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70027 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DUANE DYSART : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 27, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-320861 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES DEANNA ROBERTSON, ESQ. Cuyahoga County Prosecutor 75 Public Square Bldg. DIANE SMILANICK, Assistant Suite 1320 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Duane Dysart appeals from his conviction following a bench trial for possession of a schedule II drug (crack cocaine) in violation of R.C. 2925.11. Defendant contends his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. We find no error and affirm. This case arose out of an incident on January 7, 1995, at approximately 10:35 p.m., in the vicinity of East 140th Street and Darley Avenue in Cleveland. Cleveland Police Officer John L. Moore, a member of the Sixth District Strike Force, was working basic patrol in the area of East 140th Street and Darley Avenue on the night in question. Moore was a passenger in an unmarked police cruiser driven by his partner, Sgt. Russell Johnson. He testified that he and Johnson were patrolling the area with other unmarked patrol cars in response to complaints regarding drug activity in the area. Moore testified that he observed a parked vehicle, with the engine running, on the north side of the street at East 140th and Darley. As they approached the parked vehicle from the rear, Moore observed defendant leaning into the passenger window of the parked vehicle containing two individuals. Defendant was wearing a black and gray skull cap. Moore's cruiser was about three car lengths from the parked vehicle when Moore thought he saw some sort of exchange take place between the occupants of the vehicle and - 3 - defendant and they were engaged in a conversation. These observations led Moore to believe that drug activity was going on. Moore activated the blue strobe lights of his cruiser as soon as he observed the suspected activity. As he got out of his vehicle, he observed defendant glance at him, remove his left hand from the vehicle, lean toward the right and spit something from his mouth to the ground. Moore's police vehicle was about three car lengths from the parked vehicle when he got out of his cruiser. The time frame was about ten seconds or less from the time Moore first observed defendant until defendant spit out the object and Moore exited the police cruiser. The parked vehicle sped away. Sgt. Johnson proceeded to pursue the vehicle while Moore inspected the ground for what defendant had spit out. Moore recovered a small plastic bag containing fifty small off-white rocks of crack cocaine. The recovered bag was moist. It took the officer about ten minutes to find the bag since he did not have a flashlight. Johnson returned and both he and Moore proceeded to look for defendant whom they arrested at East 138th and Darley Avenue. Moore stated that when he was looking for what defendant had expectorated, he did not observe anyone else around nor did anyone approach him. Moore placed the plastic bag in an evidence bag, entered it into an evidence book, and conveyed it to the Scientific Investigative Lab for analysis. The suspected drugs tested positive for crack cocaine. - 4 - Moore stated that defendant had on a black and gray skull cap when he observed him leaning into the parked vehicle and that he had on the same skull cap when he was arrested. Moore identified State's Exhibit No. 3 as a photo of defendant wearing the same hat as the person who was leaning into the passenger side of the parked vehicle. Moore also testified that he did not see the individuals in the parked vehicle throw or spit anything out of the vehicle's window. Cleveland Detective Gerald Hall, also with the Sixth District Strike Force, testified he was working the same area in response to citizen drug complaints. Hall also observed a male leaning into the passenger side of a parked vehicle at the corner of East 140th Street and Darley Avenue about the same time. Hall's attention was drawn to the parked vehicle because the engine was running, the lights were on and a male was leaning into the vehicle. Hall testified that he saw defendant's hands inside the vehicle's window. Hall stated that the parked vehicle sped away when the police vehicle's lights were activated. Hall followed the vehicle and stopped it. Hall asked for the driver's license, patted both occupants down for safety, and searched the vehicle. He did not find anything illegal in his search and did not arrest the individuals. Hall observed that the male leaning in the passenger window was wearing a black and white wool cap at the time of the incident. - 5 - Hall was shown State's Exhibit No. 3 and he identified the person depicted as defendant who was arrested and booked at the Sixth District Police Station. Hall stated that this was the same person he saw wearing a black and white hat at the scene of the incident. The State rested its case after the two police officers testified. Defendant did not present any witnesses. Defendant's Crim. R.29(A) motion for acquittal on two counts of drug trafficking and possession of criminal tools was sustained, but defendant was found guilty of one count of drug abuse, R.C. 2925.11. Defendant was sentenced to two years of incarceration, sentence suspended. We will address defendant's two assignments of error together as they both relate to the sufficiency of the State's case. I. THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF AL THE EVIDENCE. II. THE VERDICT FINDING THE DEFENDANT GUILTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 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 proved beyond a reasonable doubt. - 6 - See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60; State v. Ballew (1996), 76 Ohio St.3d 244, 249. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. - 7 - Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. See, also, State v. Jenks (1991), 61 Ohio St.3d 259, 273. This same standard applies to bench trials. State v. Parks (July 6, 1995), Cuyahoga App. No. 68201; State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported. The thrust of defendant's appeal rests entirely on his challenge to the credibility of the police officers. Defendant argues that Officer Moore was making up his facts as he was being cross-examined. Defendant's argument turns on whether the whole incident took 3-5 seconds or 10 seconds, since the officer used both time periods to describe the observed events. The discrepancy, if any, in the time periods was a matter for the fact finder to resolve and to attach whatever significance it engendered. "The weight to be given the evidence and the credibility of witnesses are primarily jury issues." State v. Ballew, supra at 249. Defendant also argues that the State did not produce any evidence that defendant was ever in possession of the plastic bag containing the crack cocaine, which was found at the scene of the incident. However, Officer Moore testified that he saw defendant spit something out; Moore found a moist plastic bag containing crack cocaine near where defendant was standing; Moore did not see anyone in the parked vehicle expectorate anything out of their - 8 - mouths; and there were no other persons around that evening. The State presented both direct and circumstantial evidence concerning the charges. Defendant argues that the officers never saw defendant make any motions with his hands towards his mouth, and thus he could not have expectorated anything out of his mouth. However, Moore testified that he saw defendant move his left hand off the parked vehicle and then expectorate something out of his mouth. It is reasonable to infer circumstantially that when defendant saw the police, he tried to stuff the plastic bag into his mouth, realized it was too big, and then decided to spit it out. The trier of fact was entitled to make a reasonable inference that defendant did have something in his mouth which he expectorated and that the item was the recovered crack cocaine. Defendant also argues that the persons in the parked vehicle were stopped, searched, and found to be free of any contraband. The fact that these persons in the vehicle were found to be free of any contraband was not probative of whether defendant possessed drugs. The testimony at trial was sufficient to show that defendant was seen leaning into a parked vehicle late at night; that defendant was having a conversation with the passengers; that his left hand moved and he was then seen expectorating something from his mouth; that the item retrieved was found to be a plastic bag containing fifty rocks of crack cocaine; that defendant was wearing - 9 - a black and gray or black and white hat; and that both officers identified defendant as the person in State's Exhibit No. 3, which was a photograph of the person who was leaning into the vehicle and who had expectorated the drugs out of his mouth. Considering the evidence adduced at trial, in the light most favorable to the prosecution, a reasonable trier of fact could have found all the essential elements of drug abuse beyond a reasonable doubt. Nor was the conviction against the manifest weight of the evidence based on the caliber of the same evidence. Defendant's Assignments of Error I and II are 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. HARPER, P.J., and PATTON, J., CONCUR. JAMES M. PORTER JUDGE 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 .