COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70742 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSE PEREZ : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-333221 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES M. MORGAN, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 11510 Buckeye Road BY: MICHAEL ZIDAR, ESQ. Cleveland, Ohio 44104 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Jose Perez appeals from his convictions for two counts of drug trafficking. For the reasons set forth below, we affirm. On January 30, 1996, defendant and co-defendant Rocco Scalmato were indicted for one count of possession of cocaine in an amount equal to or exceeding the bulk amount, one count of preparing cocaine for shipment or distribution, and one count of possession of criminal tools. Both defendants pleaded not guilty and the matter proceeded to a joint jury trial on April 19, 1996. The state's evidence established that at approximately 9:30 p.m., on October 4, 1995, Cleveland Police Narcotics Detectives Joseph Salvatore and Gary Guido were travelling southbound on West 73rd Street toward Lorain Road in response to complaints of drug activity in this area. They noticed co-defendant Rocco Scalmato whom they had known, with a front seat passenger, travelling northbound. The detectives turned around and began following Scalmato's car. They then observed a plastic bag being tossed from the passenger's window. Det. Salvatore leaned from his vehicle and grabbed the bag as the officers continued to follow Scalmato. Det. Salvatore determined that the bag appeared to contain crack cocaine and the officers stopped Scalmato's car. At this point, Scalmato was in the drivers' seat and defendant was in the back seat, sitting on cassettes and a jacket. The passenger side door was locked, and there was no one sitting in the passenger - 3 - seat. According to Det. Salvatore, no one exited the vehicle while the officers followed it. The men were subsequently arrested. Both men had pagers which were confiscated by the police. Defendant had twenty or thirty dollars, and Scalmato had no money. According to Det. Salvatore, it is common for drug traffickers to carry numerous amounts of rocks and to have pagers. Scientific analysis of the bag of waxy material retrieved from the street revealed 3.46 grams of cocaine, a Schedule II substance of abuse. There were twenty-six pieces or unit doses of the substance, excluding material which was determined to be crumbs from larger pieces, or pieces which were substantially smaller than the majority of the pieces. Defendant's evidence established that he obtained the pager in 1991 at his mother's request after she was diagnosed with cancer. With regard to the remaining offenses, defendant established that his friend Scalmato picked him up that afternoon and requested that defendant repair his stereo. They then drove to the home of Scalmato's friend, Crystal. As they were leaving, Crystal's friend, Shaka Johnson, who they then knew only as "Shack," asked Scalmato for a ride to West 73rd Street and Lorain Road. Scalmato agreed and defendant sat in the back seat while Johnson sat in the front passenger seat. As they reached West 73rd Street, Johnson instructed Scalmato to turn right. He then exited the car and fled into the neighborhood. Moments later, Scalmato and defendant were - 4 - stopped by police. Defendant did not observe anything being thrown from the car, but he apprised the detectives that "Shack" had just fled from the car. The jury found defendant guilty of the drug offenses and not guilty of the charge of possession of criminal tools. The court sentenced defendant to concurrent terms of two years imprisonment for these offenses. Defendant now appeals and assigns three errors for our review. Defendant's first assignment of error states: DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL TRIAL BY JURY WAS PREJUDICED BY IMPROPER CLOSING STATEMENTS OF THE STATE OF OHIO. Within this assignment of error, defendant complains that in his closing argument the prosecuting attorney made "unfounded references to defendant's alleged involvement in illicit drug activity," improperly implored the jury to "weigh the facts and recollect the elements of the alleged offenses," made improper appeals to a purported duty to convict, and invaded the province of the court to provide legal instructions. (Appellant's Brief at 8- 9). As an initial matter, we note that some latitude is granted to both parties in closing argument. State v. Jackson (1991), 57 Ohio St.3d 29, 40. The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected the substantial rights of the - 5 - defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. With regard to defendant's complaints concerning the prosecutor's references to defendant's participation in illegal drug activity , we note that the fundamental consideration here is whether the prosecuting attorney's remarks have support in the record, see State v. Wiles (1991), 59 Ohio St.3d 71, 87, or whether the remarks were calculated to mislead the jury. State v. Smith, supra. Here, the challenged comments concerning the use of pagers and the tools, and the methods of drug sellers and drug abusers were fully supported in the record. (See Tr. 35-38). As to the value of the cocaine, it is well-settled that a prosecutor may argue reasonable inferences from the evidence presented. State v. Murphy (1992), 65 Ohio St.3d 554, 571. Here the record demonstrates that there were twenty-six unit doses. It is therefore a fair and reasonable inference from this evidence that the money gained from the sale of this full amount would not be insignificant. In any event, since the crucial factual dispute of this matter was whether defendant was in possession, we can discern no prejudice from this comment. Cf. State v. Maurer (1984), 15 Ohio St.3d 239, 266-267. Defendant's first argument lacks merit. With regard to defendant's second argument that the prosecuting attorney made an improper entreaty to the jury to weigh the facts and consider the elements of the offenses, we note that it is entirely proper for the prosecutor to appeal to the jury to reach a verdict based upon the facts and law of the case. See State v. - 6 - Moore (1994), 97 Ohio App.3d 137, 146. Defendant's second argument therefore lacks merit. With regard to the prosecutor's statement that "These two people here are the reason why society is [what it is] today," (Tr. 210) it is clear that a prosecutor may not call for the jury to convict based on public demand. State v. Hicks (1989), 43 Ohio St.3d 72, 76. Moreover, a prosecuting attorney may not urge the jury to convict for reasons wholly irrelevant to the guilt or innocence of the accused. See State v. Tyler (1990), 50 Ohio St.3d 24, 40. Significantly, however, the court instructed counsel to confine his remarks to the offense at issue. (Tr. 210). Further, the record as a whole does not demonstrate that this remark affected defendant's substantial rights. As to defendant's final argument that the prosecuting attorney commented upon the law in his closing argument, we note that brief, correct statements have been upheld. See State v. Jackson (1993), (1993), 86 Ohio App.3d 29, 32 (correct statement regarding the affirmative defense of personal use in connection with a charge of cultivating marijuana); State v. Mills (1991), 73 Ohio App.3d 27, 33 (correct statement regarding what items may constitute deadly weapons); State v. Frambach (1992), 81 Ohio App.3d 834, 845 (correct statement regarding the defense of entrapment). In this instance, the prosecuting attorney stated that "The Judge is going to *** indicate to you that you do not have to have something in your hands to be in possession of it under the law." (Tr. 203) - 7 - This brief remark is obviously a correct statement. See State v. Barr (1993), 86 Ohio St.3d 227, 235. Following this comment, the jury was correctly instructed by the court regarding the law of possession. (Tr. 254-255). Defendant's first assignment of error is overruled. Defendant's second assignment of error states: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN CONVICTIONS OF THE OFFENSES OF DRUG TRAFFICKING. Within this assignment of error, defendant maintains that the trial court erred in denying his motion for a judgment of acquittal as to the drug possession and trafficking counts because there is no evidence that he possessed the cocaine retrieved by Det. Salvatore. 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 has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. The material element of possession is defined in R.C. 2925.01(L) as follows: "Possession" is defined in R.C. 2925.01(L) as follows: 'Possess' or 'possession' means having control over a thing of substance, but may not be inferred from mere access to the thing or substance through ownership or - 8 - occupation of the premises upon which the thing or substance is found. Possession may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264, 269-270. To place a defendant in constructive possession, the evidence must demonstrate that the defendant was able to exercise dominion or control over the items. State v. Wolery (1976), 46 Ohio St.2d 316, 332. Moreover, readily usable drugs found in very close proximity to a defendant may constitute circumstantial evidence and support a conclusion that the defendant had constructive possession of such drugs. State v. Pruitt (1984), 18 Ohio App.3d 50, 58. In addition, possession may be established where it is shown that the defendant has abandoned or thrown away the contraband item. See State v. Robinson (December 9, 1993), Cuyahoga App. No. 64112, unreported; State v. Blakey (March 29, 1996), Franklin App. No. 95APA02-152, unreported. In this instance, the state's evidence demonstrated that cocaine was thrown from the passenger window of a vehicle occupied by defendant and driven by Scalmato. When apprehended, defendant was seated on a jacket and cassettes in the back seat of the vehicle, the passenger door was locked, and both men gave a vague story about "Shack" quickly exiting the car, which was immediately contradicted by Det. Salvatore's observations of the vehicle. It is our determination that reasonable minds could reach divergent conclusions as to whether this evidence establishes possession, and the trial court therefore properly denied defendant's motion for - 9 - acquittal. The second assignment of error is overruled. Defendant's third assignment of error states: THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review used by this court to assess the validity of a claim that the verdict is against the manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175, as follows: The court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created 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 con- viction. We further note that the weight to be given the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph two of the syllabus. Applying the foregoing to the record evidence and the reasonable inferences therefrom, we cannot say that the jury lost its way in accepting the evidence offered by the state and rejecting the evidence offered by the defense. Det. Salvatore's testimony was certain, consistent, and credible. Defendant's story of "Shack" and his abrupt departure from the vehicle, however, was - 10 - vague, fragmentary and contradicted. Accordingly, we will not disturb the verdict rendered herein. The third assignment of error is overruled. Affirmed. - 11 - 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. SWEENEY, C.J., AND SPELLACY, 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 .