COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70466 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : GARY TEAMER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 8, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-323464 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL SCULLY, ESQ. Cuyahoga County Prosecutor Assistant Public Defender MARK J. MAHONEY, ESQ. 100 Lakeside Place Assistant County Prosecutor 1200 West Third Street 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PATRICIA ANN BLACKMON, P.J.: Gary Teamer, defendant-appellant, appeals his conviction for drug abuse. Teamer argues the trial court erred in denying his Crim.R. 29 motion for acquittal because the prosecution failed to prove knowledge and possession. Besides, he claims an infinitesimal amount of cocaine was insufficient to prove these two elements. After reviewing the evidence in the light most favorable to the prosecution, we conclude the evidence showed Teamer had in his hand a broken car antenna commonly referred to as a crack pipe that ultimately tested positive for cocaine. Also, the amount of the cocaine is not a factor when determining whether the accused knowingly possessed cocaine. Therefore, we affirm his conviction. Teamer assigns the following errors for our review: I. THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S CRIM.R. 29 MOTION FOR ACQUITTAL AND HIS MOTION NOTWITHSTANDING THE VERDICT, AND THUS DENIED HIM DUE PROCESS OF LAW, WHEN THERE WAS INSUFFICIENT [sic] AS A MATTER OF LAW TO SUSTAIN A CONVICTION OF DRUG ABUSE WHERE THE EVIDENCE SHOWED THAT HE POSSESSED ONLY A "CRACK PIPE" WHICH CONTAINED A MINUTE AMOUNT OF UNUSABLE COCAINE RESIDUE. II. THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S CRIM.R. 29 MOTIONS FOR ACQUITTAL AND HIS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, AND THUS DENIED HIM DUE PROCESS OF LAW, BECAUSE THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION OF DRUG ABUSE WHERE THERE IS NO EVIDENCE TENDING TO SHOW THAT HE KNEW THAT THE "CRACK PIPE" HE ALLEGEDLY POSSESSED CONTAINED COCAINE RESIDUE. The apposite facts in this case showed Cuyahoga Metropolitan - 3 - Housing Authority police officers William Likes and Raymond Francel were on patrol in one of the housing projects when they heard voices in the basement. They called for back-up and proceeded into that area. Once inside, they observed several persons including Teamer. He was scrunched down and hiding. They observed a broken car antenna commonly referred to as a crack pipe in Teamer's hand. Upon observing the police, Teamer stood up, and while standing, he dropped the crack pipe. Thereafter, the officers seized the crack pipe, listed Teamer as a named suspect in their report, and released him. The crack pipe was sent to the laboratory to test for cocaine. The test was returned positive, and later Teamer was arrested. After the State presented its case, Teamer moved for an acquittal under Crim.R. 29, which the court denied. The case was submitted to the jury, and they returned a verdict of guilty. Teamer was sentenced to two to ten years, and this appeal followed. Both of Teamer's assigned errors will be discussed together because they raise the sufficiency of the State's proof as to the elements of knowledge and possession. The standard of review for a Crim.R. 29 motion for an acquittal is "whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." State v. Jenks 1991), 61 Ohio St.3d 259, 273. "In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the - 4 - defendant's guilt beyond reasonable doubt." Id. at 273, citing State v. Eley (1978), 56 Ohio St.2d 169. Applying that standard to the facts of this case, the evidence showed that Teamer knowingly possessed cocaine. When the officers first observed Teamer, he was scrunched down as though he was hiding. The officers observed in his hand a crack pipe. Teamer then stood up and the crack pipe fell to the floor. The officers had the crack pipe tested for cocaine, and the results were positive for cocaine. Under State v. Jenks and State v. Eley, this is sufficient for a reasonable jury to find beyond a reasonable doubt that Teamer knowingly possessed cocaine. Teamer, however, argues the small amount should be a variable in determining knowledge and possession, citing State v. Susser (Dec. 5, 1990), Montgomery App. No. CA11787, unreported. In Susser the court held Susser's "conviction for drug abuse [could] not stand as a matter of law where he possessed such a minute quantity of cocaine, that its very presence must be confirmed by extraordinary microscopic analysis." Historically, this court has rejected this position. We have held that the quantity of the drug is not a factor when determining whether the accused is guilty of drug abuse. It is not the amount of the control substance, but whether the accused knowingly possessed, obtained, or used the drug that guides our inquiry. State v. Newsome (1990), 71 Ohio App.3d 73 citing State v. Daniels (1985), 26 Ohio App.3d 101. Accordingly, both of Teamer's assigned errors are overruled. - 5 - Judgment affirmed. 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. DAVID T. MATIA, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .