COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70744 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION FRANCISCO CORREA : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case CR-331651 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONALD D. JAMES Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT R. CLARICO The Brownhois Building 4403 St. Clair Avenue Cleveland, Ohio 44113-1125 - 2 - O'DONNELL, J.: Francisco Correa appeals from a judgment of the common pleas court, entered after a bench trial, finding him guilty of aggravated trafficking in drugs and drug abuse. Correa contends that his convictions are against the manifest weight of the evidence and that prosecutorial misconduct tainted his trial. On September 7, 1995, Cleveland Police Department Narcotics Unit Detectives Walter Thomas, Rich Zonar and Andrew Charchenko conducted surveillance in unmarked police vehicles at the intersection of West 30th Street and Seymour Avenue in Cleveland, Ohio. On two separate occasions, Detective Thomas observed Correa converse with an individual on the southeast corner of 30th and Seymour, walk east on Seymour behind a tree and then return to the corner and exchange something with that person. After a third individual approached Correa on the corner, Detective Thomas followed him to the tree and observed Maria Rodriguez reach into the right side of the waistband of her trousers, exchange an object with Correa and then return something to her waistband. Thomas then radioed his observations to Detectives Zonar and Charchenko who approached Rodriguez and, after she voluntarily surrendered $130.00 in cash and nine small packets of heroin packaged for sale, contained in a large plastic bag which she removed from the waistband of her trousers, they arrested her; they then arrested Correa, who was walking east on Aaron Avenue, - 3 - and in the process, confiscated an additional $60.00 from his person. The grand jury subsequently indicted Correa for aggravated trafficking in drugs and for drug abuse, and the court conducted a bench trial where Detectives Thomas and Zonar testified for the state to the foregoing events. Zonar also testified that in his experience as a narcotics officer, when two persons engage in drug trafficking, one person will have all the drugs on his person and the other will do the actual selling. He further testified that he believed Correa and Rodriguez were husband and wife, that they lived on East 74th or 76th Street near Edna Avenue in Cleveland, and that at the time of arrest, Correa had no automobile with him. Zonar also testified that when police asked, Correa stated that he did not work, and when the police asked what he was doing in the area, he didn't say anything. Rodriguez, testifying for the defense, stated that she has known Correa for twelve years, that they lived together, that, on the day of the arrests, he did not know she had the heroin because she alone owned it, and that it sold for $20.00 a packet. At the close of all the evidence, the court found Correa guilty of both counts and entered a judgment from which he now appeals raising two assignments of error for our review. The first assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE - 4 - UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF DRUG ABUSE AND DRUG TRAFFICKING HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Correa contends that because he did not have physical possession of the heroin, no inference can be made that he sold heroin and, therefore, his convictions are against the manifest weight of the evidence. The state contends that Correa and Rodriguez worked together in selling the heroin and the evidence presented at his trial proved his guilt beyond a reasonable doubt. Thus, the issue presented for our review is whether his convictions for drug abuse and drug trafficking are against the manifest weight of the evidence. The test to be applied when reviewing such a claim is stated in State v. Martin (1983), 20 Ohio App.3d 172, 175: 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 reviewing court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, and State v. Mann (1993), 93 Ohio App.3d 301. - 5 - Because Correa denies physical possession of the heroin, we begin our analysis by examining legal definitions of possession as they relate to this case. R.C. 2925.01(L) states: "Possess" or "possession" means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found. Possession of a drug includes actual or constructive possession, individually, or jointly with another person. Constructive possession exists when one is able to exercise dominion and control over an object that is not within his or her immediate physical possession. See State v. Wolery (1976), 46 Ohio St.2d 316, where the court in that case considered the question of constructive possession of stolen property. Joint possession exists when two or more persons together have the ability to control an object, exclusive of others. See 4 OJI 409.50. Dominion and control may be proven by circumstantial evidence alone. State v. Jenks (1991), 61 Ohio St.3d 259. Finally, in this regard, in State v. Bradley (1971), 26 Ohio App.2d 229, the court stated: It is well established that the possession of an item can exist without physical contact so long as a person has dominion and control over it. United States v. Cox (2d Cir.), 277 F.2d 302. Such dominion and control without physical custody has been termed "constructive" as opposed to actual possession. - 6 - At trial, the State assumed the burden to prove Correa's guilt of drug abuse and trafficking in drugs, beyond a reasonable doubt. R.C. 2925.11(A) defines drug abuse and states: No person shall knowingly obtain, possess or use a controlled substance. Further, R.C. 2925.03(A)(2) defines trafficking in drugs to include the following prohibition: No person shall knowingly do any of the following: *** Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; Based upon the evidence regarding Correa's activities on the day of his arrest, and the physical evidence recovered by the detectives when they arrested him, a trier of fact could reasonably conclude beyond a reasonable doubt that he either transported, delivered or distributed heroin knowing that he intended to sell it, and further that Correa and Rodriguez jointly possessed the heroin. Consequently, after reviewing the entire record, weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we conclude that the court did not clearly lose its way and create such a manifest miscarriage of justice. Accordingly, Correa's first assignment of error is overruled. The second assignment of error states: - 7 - MR. CORREA'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE COMMENTED ON HIS DECISION TO INVOKE HIS RIGHT TO REMAIN SILENT. Correa contends the prosecutor improperly commented on his right to remain silent by posing the following question to Detective Zonar on direct examination: Q. [PROSECUTOR]. Did Mr. Correa ever tell you what he was doing in the area? Well, did you ask him that question? A. Yes, we asked him, but he didn't say anything. MR. MCFAUL: Objection. THE COURT: Overruled. In support of his position, Correa cites Doyle v. Ohio (1976), 426 U.S. 610, where the court held that use of a defendant's silence after reading the Miranda warnings for purposes of impeachment violates constitutional due process rights. The state maintains that as the prosecutor did not comment on this testimony at any period during trial or during closing argument, no violation of any due process rights occurred. Thus, the issue presented for review is whether the question posed by the prosecutor and the answer given by Detective Zonar that Correa offered no response to explain his presence at the arrest scene constituted reversible error. In State v. Eiding (1978), 57 Ohio App.2d 111, our court considered a similar issue presented to the court at a bench trial where, on cross-examination of the appellant, the state - 8 - inquired why the appellant had not told the police about his alibi at the time of his arrest. Eiding responded that he had never been interviewed by the police. In rebuttal, Detective Sibert testified that after arrest and advise of rights, Eiding refused to make a statement and did not tell the police about his alibi. After finding him guilty of aggravated burglary and grand theft, the court stated the basis of its verdict stemmed from disbelief of his alibi because he failed to tell the police about it when arrested and chose to remain silent. Our court found there that admitting evidence of appellant's post-arrest silence at trial and relying on it as a basis of guilt, denied appellant due process of law and constituted reversible error. In this case, the record reflects that Correa did answer some questions of the officers at the time of his arrest, but chose not to answer the question regarding his presence in the area at the time of his arrest. Here, the only question on this subject asked of Detective Zonar on direct examination elicited a response beyond its intended scope and shows the state did not intend its use as impeachment testimony. Further, the prosecutor wisely chose not to comment at all on the response at any point during trial, especially during final argument, (Cf. State v. Sabbah (1982), 13 Ohio App.3d 124), thus rendering this singular reference to the accused's silence an isolated instance in an otherwise properly tried case. Finally, we note that, unlike - 9 - Eiding, supra, Detective Zonar's response in this case did not form the basis of the court's decision. As stated generally by the court in State v. Sabbah, supra, "*** the Miranda decision precludes the substantive use of a defendant's silence during police interrogation to prove his guilt. Miranda v. Arizona [(1976), 384 U.S. 436,] at 468, fn. 37. ***." That was not done in this case. Here, eyewitness testimony of Correa's activities offered by the detectives who conducted surveillance prior to his arrest together with the physical evidence confiscated during his arrest provided an independent basis for the court's verdict. Therefore, we conclude that because the state did not use appellant's silence to prove his guilt, i.e., the prosecutor neither used it for impeachment purposes nor commented upon it at any point during trial or final argument, and because the court did not rely upon it in arriving at its decision, and because an independent basis exists to support the verdict of guilt beyond a reasonable doubt, no reversible error occurred in this case. Accordingly, this assignment of error is 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 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. BLACKMON, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .