COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68330 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : YVETTE WILLIAMS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 23, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-309605 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD S. WADE, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square ROBERT DUBYAK, ESQ. Suite 1111 Assistant County Prosecutor Cleveland, Ohio 44113 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Yvette Williams, appeals from her conviction for drug abuse and assigns the following errors for our review: I. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE TESTIMONY THAT WAS NOT RELEVANT TO THE FACTS OF DEFENDANT'S CASE, AND WHICH, CONSE- QUENTLY CONSTITUTED UNFAIR PREJUDICE. II. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE TESTIMONY THAT WAS NOT RELEVANT TO THE FACTS OF DEFENDANT'S CASE, AND WHICH, CONSEQUENTLY RESULTED IN THE JURY VERDICT THAT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. On March 17, 1994, Cleveland police officers executed a search warrant at 829 East 105th Street, Apartment 3, Cleveland, Ohio. They forcibly entered the apartment and found Yvette Williams and her minor son watching television in the living room. Nearby, underneath a table, they seized a plastic bag with four rocks of crack cocaine. From Williams' purse, they recovered a pager and $310 in cash denominations of fives, tens, and twenties. In the hallway, they recovered a razor blade, which contained cocaine residue. In her bedroom, they seized a black film can that also contained cocaine residue. They arrested Williams, and she was indicted for drug abuse. During her trial, the state called the officers who entered Williams' apartment to execute the search warrant. They testified -3- the apartment was rat-infested and filthy, and they offered into and evidenced the seized items. During Williams' cross examination, the state asked her at length about her job termination and asked her about her receipt of welfare benefits during her employment. To these questions, Williams did not object. However, she introduced a witness who testified that Williams had not received welfare benefits during her employment. At the close of the case, the jury deliberated and returned a verdict of guilty. The trial court sentenced Williams and stayed the execution of the sentence pending this appeal. In Williams' first assignment of error, she argues the trial court committed plain, reversible error when it admitted irrelevant, prejudicial evidence about the filthy condition of her apartment, her job termination, her receipt of welfare, and the pager and money. Williams claims the prejudicial effect of this evidence existed because it inferred her employer terminated her because of her drug addition. Furthermore, she claims the evidence about the house inferred she was an unfit mother, and the welfare benefits' question inferred she had committed welfare fraud. She also questioned the relevance of the officers' testimony that the pager and small denominations of cash were associated with drug trafficking. The only objection offered by Williams was to the pager, which was overruled by the trial court. For the other evidence, she did not raise an objection. Thus, the question for us is whether the lack of objections can be set aside because the questions and answers are so plainly -4- erroneous that "but for" them, Williams would not have been convicted. In answering this question, we must look to the law on plain error, which is axiomatic. The plain error standard is "'but for' the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus; State v. Benge (1996), 75 Ohio St.3d 136, 141; State v. Waddell (1996), 75 Ohio St.3d 163, 166; State v. Moreland (1990), 50 Ohio St.3d 58, 62; and State v. Williams (1977), 51 Ohio St.2d 112. The essence of the plain error doctrine is one of waiver. Moreland at 62. Our review is, of course, discretionary. Waddell, at 166 (our discretionary review of this issue must proceed, if at all [when no objection is made] under the plain error analysis of Crim.R. 52(B), and to warrant a reversal the "but for" standard of State v. Long and State v. Moreland must be established). In State v. Long, the Ohio Supreme Court mandated the plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of justice. Id. at 95. Citing Rule 52(b), the Supreme Court of Ohio stated an appellate court should not consider questions not raised and passed upon by the trial court. Plain error is a device to be used with limitation and caution. Long at 96. To do otherwise would undermine and impair the administration of justice. Id. In view of the historical development of plain error and our deference to the trial court, we are convinced that there is nothing in the record which speaks to the application of plain -5- error in this case. The state showed the drugs were in the apartment in proximity to Williams. Her purse contained the pager and money. The razor blade was in the hallway and the film can was in her bedroom. The sole question for the fact-finder was whether she had actual or constructive possession of the drugs. Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264. "One constructively possesses drugs by exercising dominion and control over them even though they are not in one's physical possession." State v. Mason (May 21, 1992), Cuyahoga App.No. 60331, unreported (where drugs in defendant's home found to be in his constructive possession). It is no question Williams possessed the drugs, which is tantamount to drug abuse. She would have been convicted regardless of the complained of evidence. Thus, she cannot say that but for this evidence, she would not have been convicted. Consequently, her first assignment of error is overruled. Williams in her second assignment of error argues the admission of the challenged evidence resulted in a jury verdict that was contrary to the weight of the evidence. In the argument section of the brief, Williams claims she was prejudiced by the admission of the challenged evidence. We disagree. The standard of review for manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175 as follows: -6- 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. A conviction will not be reversed where there is substantial, competent, credible evidence supporting the conviction beyond a reasonable doubt. State v. Farris (1991), 71 Ohio App.3d 817, 822. In this case, Williams resided in the apartment and was present in the apartment when cocaine and cocaine residue were found. In the living room, in close proximity to where Williams sat watching television, the police found four rocks of crack cocaine. Having considered the entire record, and found substantial, competent, and credible evidence of guilt, we further find the jury did not "los[e] its way" and create a "manifest miscarriage of justice." See Martin, supra. Accordingly, the verdict was not against the manifest weight of the evidence. Williams' second assignment of error is overruled. Judgment affirmed. -7- 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. JAMES D. SWEENEY, P.J., and DAVID T. MATIA, J., CONCUR. PATRICIA ANN BLACKMON 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 .