COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70268 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM E. VANLEER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-320074 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HENRY J. HILOW, ESQ. Cuyahoga County Prosecutor McGINTY, GIBBONS & HILOW CO. LPA LYNN LORITTS, ESQ. 1375 East 9th St., #1920 Assistant County Prosecutor Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant appeals from his conviction for conveying illegal drugs onto the grounds of the Cuyahoga Hills Boys School, R.C. 2921.36, and from the denial of his motion to suppress. The jury acquitted appellant of the second count of his indictment, possession of criminal tools. Appellant was sentenced to two years incarceration, all of which was suspended. The court gave appellant two years of probation and required appellant to pay court costs. Appellant's motion for a delayed appeal was granted by this Court. He asserts three assignments of error in the instant appeal from the denial of his motion to suppress and his conviction. I THE TRIAL COURT ERRED FOR DENYING APPELLANT'S MOTION TO SUPPRESS, AS APPELLANT'S CONSENT TO SEARCH THE AUTOMOBILE WAS NOT VOLUNTARY. Appellant argues that the search of his automobile was unlawful because the consent given by him was not voluntary. Appellant asserts that he felt coerced and pressured into consenting to the search and that at no point was he informed that he had a right to refuse to give his consent to the search. Appellant's argument is without merit. The evidence given during the hearing on appellant's motion to suppress supports the trial court's determination that appellant's consent to the search was voluntarily given. - 3 - Appellant was employed at the Cuyahoga Hills Boys School, a juvenile detention center, as a corrections officer. On the morning of January 17, 1995 the state highway patrol conducted a random sweep of a portion of the detention facility including the grounds. The sweep was designed to find any contraband using drug sniffing dogs. One of the dogs alerted to appellant's vehicle in the parking lot. Appellant testified that when he was contacted to report to the parking area, he was met there by four highway patrol troopers and several members of the school's security force. Trooper Ferguson asked appellant if the red Volkswagon Jetta was his vehicle. Appellant responded affirmatively. Ferguson testified that appellant at first denied consent to search the vehicle after being informed that the dog had alerted to it. Ferguson then told appellant, "We'll go ahead and secure the vehicle, go get a search warrant and come back since probable cause has already been established, the dog is alerting to it." (TR. 12). According to Ferguson, appellant then consented to the search, opening the vehicle himself. Appellant stated to Ferguson that his brother had also driven the car recently and he did not want to get his brother in trouble. Appellant testified that he felt pressured by the state troopers. He claimed that they used profanity, which Ferguson denied. Appellant was also concerned that if he did not give his consent and they obtained a warrant, that they would damage his car during the subsequent search. Appellant remembered - 4 - the conversation between Ferguson and himself as taking approximately ten to fifteen minutes. Ferguson thought it took five minutes or less. The state troopers found a partially consumed marijuana joint in the ashtray of the Volkswagon. On the small tray underneath the steering wheel, they also found an eyeglasses case containing less than a gram of marijuana, a lighter, pipe and rolling papers. The trial court denied appellant's motion to suppress the evidence found. The court found that appellant understood at the time that he did not have to give his consent, based upon the fact that appellant initially withheld his consent. The court further found that the "facts did not demonstrate that the State of Ohio coerced his consent, that is, the defendant's consent by a demonstration of force." (TR. 149). Citing R.C. 5139.25(1), the trial court judge noted that the State had the right to search the premises for contraband, therefore Ferguson's persuasive remark that probable cause had already been established did not vitiate the voluntary nature of appellant's consent. The law in Ohio on consensual searches is well established: The burden of proving consent to a warrantless search by clear and positive evidence is on the prosecution. State v. Danby (1983), 11 Ohio App.3d 38, 11 OBR 71, 463 N.E.2d 47; United States v. Jones (C.A.6, 1981), 641 F.2d 425. The validity of consent is a question of fact and depends on whether the consent was freely and voluntarily given and not the result of duress or coercion, either express or implied. Although a factor, there does not have to be a demonstration by the prosecution that the appellant knew he had a right to refuse consent. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 - 5 - State v. Patterson (1993), 95 Ohio App.3d 255, 259. We find that the totality of the circumstances supports the trial court's finding that consent was voluntarily given. The prosecution presented evidence through the testimony of Trooper Ferguson that no duress or coercion were applied to render the consent involuntary. Appellant claimed that he felt pressured and coerced into opening his car, however no factual evidence was presented to support this assertion. Appellant was not detained for an unreasonable length of time. Nor were any threats or promises made. Although appellant refused to consent initially, it is clear that he thought over the situation and changed his mind. His fear of potential damage to his car does not render appellant's consent involuntary. A trial court's determination on a motion to suppress will not be disturbed on appeal unless it is clear that the trial court lost its way. State v. Baker (1993), 87 Ohio App.3d 186, 190; State v. DePew (1988), 38 Ohio St.3d 275. We do not find that the trial court lost its way in denying appellant's motion to suppress. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED APPELLANT'S MOTION FOR ACQUITTAL. Appellant contends that the State failed to prove an essential element of the offense when it presented no evidence to prove that - 6 - appellant "knowingly" conveyed the marijuana onto the detention center property. Appellant's contention is not well taken. Trooper Ferguson testified that appellant admitted the marijuana was his and that he did not want his brother to get into trouble. Appellant denied ever admitting to possessing the marijuana during his testimony. Appellant's brother, David, testified at length as to how the marijuana ended up in appellant's car. David testified that his battery was dead in the morning so he asked his brother if he could borrow the Jetta. As David drove the Jetta downtown on an errand he saw a young man he knew from his work with juveniles and stopped to see why the young man was not in school. David noticed that the young man and several of his friends were smoking pot. He confiscated the joint they were smoking and the eyeglasses case containing drugs and paraphernalia from the young man. The drugs were accidentally left in appellant's car when David returned the Jetta later that evening. Appellant claimed that he never noticed the eyeglasses case or the joint in the ashtray when he drove the car to work. The issue of whether or not appellant knowingly conveyed the marijuana onto the grounds of the detention facility is essentially one of fact for the jury. Crim.R. 29 sets forth the requirements for a judgment of acquittal as follows: (A) Motion for judgment of acquittal. 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 - 7 - such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. The court properly found the evidence to be sufficient to sustain a conviction for knowingly conveying illegal drugs onto the grounds of the detention center. The testimony of Trooper Ferguson was in conflict with appellant's testimony and David VanLeer's version of the facts. It was the province of the jury to determine the credibility of the witnesses in the face of conflicting testimony. Appellant's second assignment of error is overruled. III THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant asserts that his knowledge of the marijuana was not supported by the manifest weight of the evidence. Appellant further argues that the jury clearly lost its way when it acquitted him of possession of the baggies and papers but convicted him of possessing the marijuana. Appellant's argument is without merit. 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. - 8 - A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. Circumstantial evidence and direct evidence possess the same probative value. We can not find that the jury clearly lost its way when substantial evidence exists upon which the jury could have reasonably concluded that appellant did in fact knowingly convey the illegal drugs onto the property of the detention center. The jury could have reasonably chosen to believe Trooper Ferguson's testimony that appellant admitted the drugs were his. We can not reverse a jury where evidence exists to support the conviction. As to appellant's argument that the conviction is against the manifest weight of the evidence because the conviction conflicts with his acquittal on the charge of possession of criminal tools, we find that the law clearly supports appellant's conviction. First, the jury could have found that appellant knowingly conveyed the illicit substance onto the property of the detention facility and, without a conflict, could also have found that appellant did not possess the rolling papers and baggies with the purpose to use them criminally, as required to prove the offense of possession of criminal tools. Even if we had found an inconsistency between the jury's verdicts of guilty on the first count and an acquittal on the - 9 - second, the conviction would remain valid. The Ohio Supreme Court has held that: The several counts of an indictment containing more than one count are not interdependent. A verdict responding to a designated count will be construed in light of the count designated, and no other. An inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. State v. Adams (1978), 53 Ohio St.2d 223, 228, quoting Browning v. State (1929), 120 Ohio St. 62, at paragraph four of the syllabus. See also, State v. Woodson (1985), 24 Ohio App.3d 143 and State v. Wright (June 27, 1996), Cuyahoga App. No. 69386, unreported. Appellant's third assignment of error is overruled. Appellant's motion to suppress was properly denied. Appellant's conviction and sentence for the conveyance of contraband onto the grounds of a detention center is 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., AND McMONAGLE, J., CONCUR. ANN DYKE 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 .