COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70822 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROCCO SCALMATO : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-333221. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael Zidar, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward R. LaRue, Esq. 11510 Buckeye Road Cleveland, OH 44104 -2- DAVID T. MATIA, P.J.: Rocco Scalmato, defendant-appellant, appeals his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, for two counts of aggravating trafficking in drugs in violation of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. Defendant-appellant raises one assignment of error regarding the weight of the evidence. This court, finding no error, affirms defendant-appellant's convictions. I. STATEMENT OF FACTS On October 4, 1995, at approximately 9:30 p.m., Rocco Scalmato, defendant-appellant, was driving his automobile on W. 75th Street in Cleveland, Ohio. At the same time, Detectives Salvatore and Guido of the Cleveland Police Department were patrolling the area in an unmarked car. Their focus on the area was based upon numerous citizen complaints concerning drug activity. As the detectives drove southbound on 75th Street, they passed defendant-appellant driving in a northbound direction. Detective Salvatore testified they observed one other male sitting in the passenger seat, Jose Perez. Since the detectives recognized defendant-appellant, they turned their vehicle around and began following defendant-appellant. As the detectives pulled closer to the vehicle, defendant- appellant increased his speed. Detective Salvatore testified that they witnessed a plastic bag thrown out of the passenger -3- window onto the ground. The detectives slowed down and retrieved the plastic bag. Detective Salvatore observed what he believed was crack cocaine in the plastic bag. At that point, the detectives turned on the sirens and pursued defendant-appellant. Detective Salvatore testified that from the time he picked up the plastic bag from the ground, he did not lose sight of the vehicle. Defendant-appellant took a right hand turn at an intersection and stopped. The detectives approached the vehicle and observed a male sitting in the back seat on top of cassette tapes and a jacket. The passenger side door was locked. The detectives then arrested both occupants of the vehicle. Defendant-appellant as charged with possession of a controlled substance and for possession of criminal tools. At trial, defendant-appellant testified that not only was Jose Perez in the vehicle, but also a man named Shaka Johnson (a.k.a. Shack). Defendant-appellant testified that after making the right hand turn, "Shack" told him to stop. Before coming to a complete stop, "Shack" jumped out of the vehicle and ran. Defendant-appellant testified that he did not witness "Shack" throwing anything out of the window and did not know he had drugs in his possession. Jose Perez corroborated this version of events. Moreover, Crystal Eves, a friend of defendant-appellant, testified that she witnessed "Shack" ask defendant-appellant for a ride and then witnessed all three of the men drive off shortly before the arrest was made. -4- Defendant-appellant was found guilty of two counts of aggravating trafficking in drugs in violation of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. Defendant-appellant files this appeal. II. ASSIGNMENT OF ERROR Rocco Scalmato, defendant-appellant, states as his sole assignment of error: I. APPELLANT'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND APPELLANT'S CONVICTIONS SHOULD BE OVERTURNED AS THEY WERE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE. A. ISSUE RAISED: WHETHER THE VERDICTS WERE BASED UPON THE MANIFEST WEIGHT OF THE EVIDENCE. Rocco Scalmato, defendant-appellant, argues the guilty verdicts were against the manifest weight of the evidence. Specifically, defendant-appellant argues the state failed to meet its burden of proving beyond a reasonable doubt that defendant- appellant, who was driving the vehicle, knowingly possessed, transported and/or distributed the plastic bag of cocaine. Moreover, defendant-appellant argues in reviewing the "incredible" story of Detective Salvatore, i.e., opening up the door and grabbing the plastic bag from the moving vehicle, the credibility of the state's sole eyewitness is clearly brought into question. Defendant-appellant's sole assignment of error is not well taken. -5- B. STANDARD OF REVIEW: MANIFEST WEIGHT. In Tibbs v. Florida (1982), 457 U.S. 31, the United States Supreme Court recognized the distinction in standards between claims of "insufficiency of evidence" and "manifest weight of the evidence." Unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. See, also, State v. Schaim (1992), 65 Ohio St.3d 51; State v. Wilson (June 9, 1994), Cuyahoga App. No. 64442, 64443, unreported. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. 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 such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. -6- Hence, we must accord due deference to those determinations made by the trier of fact. -7- C. DEFENDANT-APPELLANT'S CONVICTIONS WERE NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Again, the central issue upon appeal is whether there was sufficient credible evidence proving defendant-appellant knowingly "possessed" and/or "transported" the crack cocaine. Upon review of the record, we find substantial credible evidence was presented supporting defendant-appellant's conviction on two counts of aggravating trafficking of drugs and in violation of R.C. 2925.03. R.C. 2925.03, states in pertinent part: (A) No person shall knowingly do any of the following: * * * (2) 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; * * * (4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount; * * * R.C. 2925.01 defines "possession" as follows: (L) "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. -8- It is well established that a defendant may be found to be in constructive possession of an item if the evidence shows that he was able to exercise dominion and control over the item. State v. Barr (1993), 86 Ohio App.3d 227, 235; State v. Butler (May 23, 1996), Cuyahoga App. No. 68581, unreported. Dominion and control are not established by showing the defendant was merely present in the vicinity of the seized items. See State v. Pruitt (1984), 18 Ohio App.3d 50. However, dominion and control can be proven by circumstantial evidence alone. State v. Thomas (May 18, 1995), Cuyahoga App. No. 67446, unreported; State v. Lavender (March 12, 1993), Cuyahoga App. No. 60493, unreported. Moreover, the defendant's proximity to the item may constitute some evidence of constructive possession. State v. Landever, supra. In the case sub judice, the state presented testimony which, if believed, established the following: 1) defendant-appellant was driving his vehicle with only one individual sitting in the front passenger seat, 2) once defendant-appellant realized he was being followed by the detectives, he increased his speed, 3) as this was happening, a plastic bag holding crack cocaine was tossed out of the passenger window, 4) defendant-appellant took a right hand turn and stopped, 5) the detectives did not see anybody jump out of the vehicle and flee the scene, and 6) when the detectives approached the vehicle, the passenger had moved into the back seat and was sitting on top of cassette tapes and a jacket. -9- From review of the record, we find that from the evidence and all reasonable inferences, the jury could conclude after the crack was tossed out the window, the passenger hopped in the back seat in an effort to support their fabrication that a man named "Shack" had been in the vehicle. Therefore, there was sufficient evidence presented to the jury which, if believed, would support a finding that defendant-appellant maintained constructive possession of the crack cocaine. Additionally, we find the testimony of Detective Salvatore regarding the retrieval of the plastic bag was not of such an outrageous nature as to destroy his credibility as a witness. For these reasons, and keeping in mind that the weight of the evidence and the credibility of the witnesses are issues primarily determined by the trier of fact, we cannot find that the jury clearly lost its way and created such a manifest miscarriage of justice that defendant-appellant's convictions must be reversed and a new trial ordered. Defendant-appellant's sole assignment of error is not well taken. 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. DYKE, J. and SPELLACY, J., CONCUR. DAVID T. MATIA 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 journalization of this court's announcement .