COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71311 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JOSE MARTE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-338486 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD F. FERAN Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 2 O'DONNELL, J.: Jose Marte appeals from a judgment of the common pleas court, entered pursuant to a jury verdict, finding him guilty of possession of cocaine in excess of three times the bulk amount, alleging error in failing to suppress evidence obtained by the police, grant his motion for acquittal, and properly instruct the jury. For the reasons set forth below, we overrule these assignments of error and affirm the conviction. The record reflects that around 8:00 on the evening of April 17, 1996, Detective Neil Hutchison, an undercover Cleveland Police Department Strike Force detective, while conducting surveillance at the Riverside Estates, a housing project located on West 25th Street in Cleveland, Ohio, observed Joe Thompson conduct a sale of crack cocaine. Hutchison informed Lieutenant Gary Gingell of his observations, provided a physical description of Thompson, and advised that Thompson appeared to be heading towards a parking lot near Franklin Avenue accompanied by two Hispanic males and a blond- haired woman. Gingell, after assisting in the arrest of the buyer of the cocaine, went to that parking lot and saw a blond-haired woman sitting in the front passenger seat of a Chevrolet Monte Carlo, and another male seated in the back of it. Gingell and Detectives Eric Flint and Todd Davis drove their detective vehicle to it and, believing another drug sale may have been occurring, had both parties exit the vehicle. 3 At that point, another male standing across the lot, Jose Mateo, inquired about their activity and advised that he owned the car. Through investigation the officers learned the blonde female was Sally Mateo, but had been told the other male, the appellant, was Jose Cruz. The wallet he produced contained a money order bearing the name Jose Carrasco and a room card to the Budgetel Inn located at West 150th and I-71. Finally, with the aid of Spanish- speaking Detective Charles Escalante, the man identified himself as Jose Marte, a citizen of the Dominican Republic living in New York City. After speaking with both Jose and Sally Mateo, Detective Escalante learned that Marte was involved in possession of drugs in the hotel room and at that point the officers arrested Marte for violating state drug laws. After obtaining a consent to search the hotel room, the officer used the key card recovered from Marte's wallet to open the door and discovered 135.65 grams of crack cocaine hidden in a white sock underneath a bed and approximately $2,500 in cash. On May 7, 1996, the Grand Jury indicted Marte for preparation of cocaine for distribution; for possession of cocaine in an amount exceeding three times the bulk amount; and possession of money and pagers with intent to use them criminally. Prior to trial, Marte filed a motion to suppress the evidence seized by the police during the course of his stop, detention, arrest, and the search of the hotel room. The court conducted a hearing on the motion and subsequently, denied the motion. 4 The first assignment of error states: . THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE WHICH WAS SEIZED AS A RESULT OF THE ILLEGAL DETENTION, SEARCH AND ARREST OF THE APPELLANT WHICH VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY SECT. 14, ART. I OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Marte contends that the initial stop, his detention, and his arrest constituted an unreasonable search and seizure under the Fourth Amendment and therefore, the trial court should have suppressed all evidence recovered by the police. The state maintains that the officers had a reasonable suspicion to stop Marte based upon the information they received concerning drug sales in the area, and that Marte's behavior during that stop gave the police cause to detain him and search the motel room, which resulted in the recovery of cocaine. Accordingly, the trial court properly denied the motion to suppress the evidence in this case. The issue for our determination is then whether the trial court properly denied Marte's motion to suppress. The United States Supreme Court determined in Terry v. Ohio (1968), 392 U.S. 1, at 30, that a police officer can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity may be afoot even if they lack probable cause under the Fourth Amendment. The Ohio Supreme Court stated in State v. Bobo (1988), 37 Ohio St.3d 416, in its syllabus: 5 1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. In Bobo, supra, the Supreme Court determined that the totality of the following circumstances supported a finding of reasonable suspicion: area known for drug and criminal activity; the time of day; the officer's experience and training with drug activity; the officer's familiarity with the area and how drug transactions occur there; and the officer's observations of furtive movements. In addition, in State v. Hassey (1983), 9 Ohio App.3d 231, the court stated in its headnote: 3. Police observations of a suspect who meets several characteristics of drug courier profile and exhibits independent indicia of illegal conduct may provide the officers with the reasonable and articulable suspicion required to make an investigatory stop. In State v. Victor (1991), 76 Ohio App.3d 372, determining that the fact that the defendant's conduct there met the profile of a drug seller, provided the detectives, at least in part, with the requisite reasonable cause to detain him and to investigate further the circumstances that aroused their suspicion. Id. at 375. Along with the initial investigative stop, the Ohio Supreme Court has also concluded in State v. Evans (1993), 67 Ohio St.3d 405, that [t]he right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed. Id. at 413. At the suppression hearing, Lieutenant Gingell, a police officer with eighteen years of experience, testified that because so many complaints regarding drug sales at the Riverview Estates 6 had been made, he set up surveillance to monitor drug activity there. Escalante, an officer with twenty five years of experience, testified that Marte fit the profile of a Dominican drug trafficker from New York City and Detective Hutchinson directly placed Sally Mateo and two Hispanic men with Joe Thompson, a known drug dealer on the day of Marte's arrest. Finally, Sally Mateo gave the officers a false name for Marte, Jose Mateo told the police he did not know the man sitting in his car with his sister, and Marte possessed no identification, but his wallet contained a piece of paper with the name Jose Carrasco. Based upon the totality of the above circumstances, we conclude pursuant to Terry, supra, and Bobo, supra, that the police had reasonable suspicion supported by articulable facts that criminal activity may be afoot to justify their stop and detention of Marte in this case. In addition, when the officers learned that Marte was not a United States citizen, and had no green card or other identification, they had probable cause to arrest him. Accordingly, the trial court did not err and this assignment of error is overruled. The second assignment of error states: II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTIONS FOR ACQUITTAL WHERE THE STATE FAILED TO PROVE THAT HE POSSESSED DRUGS BEYOND A REASONABLE DOUBT. Marte asserts that the state's only evidence in this case linking him to the drugs recovered from Room 112 of the Budgetel Inn is the motel card officers found on his person and one 7 fingerprint found on the coffee machine in the room. That evidence, alone, he argues is insufficient to establish that he possessed the drugs in violation of R.C. 2925.03(A)(6). The state maintains, however, that it proved Marte had constructive possession of the drugs which were discovered in Room 112 of the Budgetel Inn. The issue for our resolution is whether the state presented sufficient evidence to establish that Marte had possession of the cocaine found in the motel room. The Ohio Supreme Court recently stated the standard of review for cases of this distinction in State v. Taylor (1997), 78 Ohio St.3d 15, at 18: In reviewing a record for sufficiency, [t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus (in part). R.C. 2925.03(A)(6) defines trafficking in drugs, in part, and states: Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount. R.C. 2925.01(L) defines possession relevant to drug offenses and 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 the thing or substance is found. 8 Possession of controlled substances may be actual or constructive. State v. Mann (1993), 93 Ohio App.3d 301, 308; State v. Haynes (1971), 25 Ohio St.2d 264. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion or control over the contraband. State v. Wolery (1976), 46 Ohio St.2d 316, 332. Dominion and control may be proven by circumstantial evidence alone. State v. Jenks (1991), 61 Ohio St.3d 259, modified on other grounds, State v. Taylor (1997), 78 Ohio St.3d 15. Circumstantial evidence that the defendant was located in very close proximity to readily usable drugs may constitute constructive possession. State v. Barr (1993), 86 Ohio App.3d 227, 235. Ownership of the controlled substance need not be established, as a person may possess the property of another. Mann, supra. Possession may be individual or joint. State v. Wolery, supra. Here, the state presented evidence that Marte had the key card to Room 112 of the Bugetel Inn on his person at the time the police encountered him in the back seat of the Monte Carlo which was located in a parking lot in close proximity to the area where the police had observed a drug transaction and he was with those involved in it. As a citizen of the Dominican Republic living in New York City, the police profiled Marte as possibly involved with drug related activity. Upon further investigation, Detective Escalante obtained what he termed an admission from Sally and Jose Mateo that drugs could be located in the motel room which belonged to Marte; the police not only recovered 135.65 grams of cocaine 9 from that room but also proved that Marte's fingerprint was on the coffee machine in that room, indicating he had been in it at some previous time. This evidence, when viewed in a light most favorable to the prosecution permits a rational trier of fact to infer that Marte had some ability to exercise dominion or control over the cocaine, especially when considering the statements of Sally Mateo to Detective Escalante that the cocaine belonged to Marte. It further establishes constructive possession of the cocaine and supports a finding of the essential elements of the crime of possession of cocaine proven beyond a reasonable doubt. Accordingly, this assignment of error is overruled. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT MISSTATED THE DEFINITION OF KNOWINGLY WHILE INSTRUCTING THE JURY AS TO THAT NECESSARY ELEMENT. Marte contends that the trial court committed prejudicial error when it substituted the word possibility for probability during its instructions to the jury regarding the definition of knowingly. The state asserts, however, the trial court's mere technical error in its charge did not adversely affect Marte's rights or prevent him from receiving a fair trial. The issue then, for resolution concerns whether the trial court's instructions on the definition of knowledge prejudiced Marte in this case. OJI 409.11 defines knowingly and states, in part: How determined: Since you cannot look into the mind of another, knowledge is determined from all the facts and circumstances in evidence. You will determine from these facts and circumstances whether there existed at the time in the mind of the defendant an awareness of the 10 probability that . (Emphasis added.) In its charge to the jury in this case, the trial court stated: How determined. Since you cannot look into the mind of another, knowledge is determined from all of the facts and circumstances in evidence. You will determine from these fact and circumstances whether there existed at the time in the mind of the defendant an awareness of the possibilitythat he possessed a controlled substance, to wit, cocaine. (Emphasis added.) Thus, the trial court mistakenly substituted the word possibility for the word probability, and although defense counsel timely objected to this discrepancy, the court failed to rule upon it or correct the mistake with the jury at that time. However, the record here reveals that prior to returning its verdict, the jury requested written instructions from the trial court regarding this count of the indictment, and in response to that request, the trial judge returned written jury instructions to the juries which properly defined the term knowingly, using the correct term, probability, not possibility. Thus, the court cured its error with the written instructions. Accordingly, this assignment of error is overruled. Judgment 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. NAHRA, P.J., and ROCCO, 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 of decision by the .