COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71079 STATE OF OHIO : JOURNAL ENTRY : Plaintiff-Appellee : AND : vs. : OPINION : ALFRED WALTON, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-326773 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD F. FERAN Assistant County Prosecutor Justice Center - Eighth Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: THOMAS M. HORWITZ Landmark Office Towers 1880 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 O'DONNELL, J.: Alfred Walton, Jr., appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of possessing cocaine in an amount exceeding three times the bulk -2- amount, preparing cocaine for distribution, and possessing criminal tools, and alleges that the state failed to prove that he actually possessed the cocaine, that his convictions are against the manifest weight of the evidence, and that the court erred by revealing his prior drug-abuse conviction to the jury. We have considered these arguments, reject them and affirm these convictions. The record reflects that on February 4, 1995, members of the Cleveland Police Department executed a search warrant at 11810 Imperial Avenue in Cleveland, Ohio, a suspected crack house. On that evening, Officer Richard Butler of the SWAT Unit entered the back door of the house and proceeded to the kitchen area, where he secured two female suspects. He then went to the living room and observed Walton seated on a couch in front of a table containing $614 in cash, and two other males standing in the room. After searching the suspects, the SWAT team handcuffed them and seated them all on the couch. After the SWAT team secured the residence, Fourth District Vice Sergeant Jerome Barrow came into the residence and saw a plate containing several rocks of cocaine and razor blades located on the table in front of Walton, and an open safe containing approximately38.97 grams of cocaine located to Walton's immediate left. The police then arrested Walton and five others also found in the residence and the grand jury indicted Walton on two counts of Drug Trafficking and one court of Possession of Criminal tools. -3- At trial, after the state rested, Walton moved for acquittal, but the court denied the request. Walton then called co-defendant Randolph Byarse, who testified that when the police announced their entry, he and Walton ran from the kitchen to the front of the house. He stated they had not left the kitchen prior to the police arriving at the house. He also testified the drugs found on the premises belonged to Nancy Cobb, not to Walton. Walton then renewed his motion for acquittal at the close of all evidence, but the court again denied it. After closing arguments, the court informed the jury of counsel's stipulation regarding Walton's prior felony drug-abuse conviction. Thereafter, the jury returned verdicts finding Walton guilty on all counts of the indictment. Prior to sentencing, defense counsel again moved for acquittal and for new trial pursuant to Crim.R. 33(A)(4), both of which the court denied. Walton now appeals his convictions and asserts three assignments of error for our review. The first assignment of error states: I. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTIONS FOR ACQUITTAL AND HIS MOTION FOR A NEW TRIAL. Walton contends that the court erred when it denied his motions for acquittal and for a new trial, since the state failed to produce evidence to establish that he knowingly possessed the cocaine, prepared it for distribution, or possessed the safe as a criminal tool. The state argues the court properly denied Walton's motions -4- because it produced sufficient evidence to convict Walton of all three counts in the indictment. The issue presented for our consideration is whether the court correctly denied the appellant's motions for acquittal as to these charges. The syllabus in State v. Bridgeman (1978), 55 Ohio St. 2d 261, states: Pursuant to Civ. 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 of a crime has been proved beyond a reasonable doubt. Here, the state presented evidence from members of the SWAT Unit and Sergeant Barrow placing appellant in the living room of the house immediately adjacent to the safe containing 38.97 grams of cocaine with the table containing $614 in cash in front of him, from which the state argues he had the ability to and did exert control over the drugs. Sergeant Barrow also testified that razor blades are commonly used to, "cut the dope into smaller rocks", and he recovered a blade from the table in front of the defendant, leading to the state's argument that Walton prepared cocaine for distribution. Further, the state not only offered testimonial evidence regarding the use of the safe, but also offered State's Exhibit 4- H, a photograph depicting the safe containing the drugs. After reviewing the evidence in a light most favorable to the prosecution, we have concluded a rational trier of fact could have found the essential elements of these crimes proven beyond a reasonable doubt. See State v. Taylor (1997), 78 Ohio St.3d 15, -5- 18. Accordingly, this assignment of error is not well taken. II. The second assignment of error states: THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE DEFENDANT HAD POSSESSION OF THE DRUGS AND CRIMINAL TOOLS. Walton makes the same arguments contained in his first assignment of error for the proposition that his convictions are against the manifest weight of the evidence. The state contends that the court did not err in light of the overwhelming evidence establishing Walton's guilt. The issue for our resolution is whether Walton's convictions are against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be applied in considering a claim that a conviction is against the manifest weight of the evidence, and the Supreme Court approved it in State v. Thompkins (1997), 780 Ohio St.3d 380. 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. Here, after the state rested, appellant presented testimony from his cousin, Randolph Byarse, that the drugs belonged to Nancy -6- Cobb, the lessee of the premises and that appellant resided near the intersection of 93rd Street and Pierce Avenue. After thorough review of the evidence in this case, we are unable to conclude that the jury clearly lost its way and created a manifest miscarriage of justice in this case. Therefore, we reject this assignment of error. III. The third assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS WHEN THE JURY WAS INFORMED OF DEFENDANT'S PRIOR CONVICTION. Walton contends that the court violated his right to a fair trial by advising the jury regarding his prior felony drug abuse conviction. He argues that since he had stipulated to it, the jury did not need to know about it, and it prejudiced the jury against him. The state asserts its burden of proof includes Walton's prior conviction because it constitutes an essential element of the offenses charged in counts one and two of these indictments. The issue for our consideration then, concerns whether the court's disclosure to the jury of Walton's prior drug abuse conviction violated his right to a fair trial. RC 2925.03 states: (C)(6) Where the offender has violated (A)(6) ***(Possession of a controlled substance in an amount equal to or exceeding three times the bulk amount ***), aggravated trafficking is a felony of the second degree,*** except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated -7- trafficking is a felony of the first degree***. (Emphasis added.) Additionally, RC 2925.03 states in relevant part: (C)(2) Where the offender has violated division (A)(2)*** (Prepare for shipment,***), aggravated trafficking is a felony of the third degree, except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree. (Emphasis added.) Where a prior conviction is an essential element of a crime, transforming the crime itself by increasing its degree and not simply enhancing its penalty, the state must prove the existence of the prior offense as a matter of fact. State v. Gordon (1971), 28 Ohio St.2d 45. See also State v. Adams (1995), 106 Ohio App.3d 139, and cases cited therein. Here, the appellant's prior drug abuse conviction constituted an element of the offenses charged in the indictment because it elevated the degree of these crimes. Therefore, the trial court did not err when it read appellant's stipulation regarding that conviction to the jury. Accordingly, Walton's third assignment of error is overruled. Judgment affirmed. -8- 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 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, P.J, and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See Apar 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 Apar 22(E) unless a motion for reconsideration with supporting brief, per Apar 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 .