COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71626 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : KESHA RICHARDSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR.-342786 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. TERRY H. GILBERT, ESQ. CUYAHOGA COUNTY PROSECUTOR 1700 Standard Building BY: SEAN GALLAGHER, ESQ. 1370 Ontario Street ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 2 DYKE, J.: Defendant Kesha Richardson appeals from her conviction for one count of drug possession, one count of drug trafficking, and one count of possession of criminal tools. For the reasons set forth below, we affirm. On September 11, 1996, defendant and co-defendant Maurice O'Field were indicted pursuant to a seven count indictment. As is relevant to defendant, count three of the indictment charged her with possession of cocaine in an amount equal or exceeding the bulk amount (but less than three times that amount); count four charged her with possession of less than the bulk amount of cocaine; count five charged her with preparing marijuana for shipment or distribution; and count six charged her with possession of criminal tools. Defendant pleaded not guilty and the matter proceeded to a jury trial on October 15, 1996. Count four was subsequently dismissed by the state. For its case on the remaining charges, the state and the defense stipulated to the forensic laboratory report concerning the weight and composition of various materials which were seized in this matter. In addition, the state presented the testimony of Cleveland Police Narcotics detective Thomas E. Roper. Det. Roper testified that cocaine is generally found in powder or rock form; powder is snorted and rocks, i.e., crack, is smoked. Roper further testified that ten rocks of crack cocaine are ten unit doses, and twenty five rocks are over the bulk amount of the substance. Considered in terms of grams, ten grams are over the 3 bulk amount. Roper further testified that the packaging of the substance into smaller bags within a larger bag is indicative of packaging for sale and also indicated that pagers have been linked to drug activity as they can provide a means of communication for a drug sale. Roper also testified that the narcotics unit received numerous complaints of drug activity at the upstairs apartment of 11800 Shadeland Avenue, in Cleveland, and also received information from an informant that there was drug activity at this address. In response to this information, Roper began an investigation at the location and did periodic surveillance at this location. During this surveillance, Det. Roper observed frequent visitors at the location who left after two or three minutes. Det. Roper also arranged for two controlled drug purchases at the premises. Using an informant and marked money, a controlled purchase was made on April 16, 1996. The purchased substance was subsequently analyzed by the scientific investigation unit of the police department and was found to be positive for cocaine. Roper then obtained a search warrant for the premises. He also arranged a second controlled purchase on April 18, 1996, shortly before the premises were searched pursuant to the warrant. Det. Roper stated that the subject of his investigation was a man known as Mo, who was later identified as co-defendant Maurice O'Field. O'Field and defendant were in the apartment when the search was commenced. Defendant was in the bathroom, fully clothed and sitting on the toilet and O'Field was in the hallway near the front bedroom. 4 Det. Roper testified that he prepared a search warrant inventory of the items obtained in the search. Pursuant to this inventory, the following items were obtained: a plastic baggie containing approximately ten rocks of a substance later determined to be 2.46 grams of crack cocaine was found on an ironing board in the dining room; a black film container of a substance later determined to be 4.73 grams of cocaine was found in a cigar box in a bedroom subsequently determined to be Maurice's bedroom; a baggie containing seven smaller bags of a substance later determined to be 11.11 grams of crack cocaine was also found in the cigar box in Maurice's bedroom; eleven bags of a substance later determined to be 83.55 grams of marijuana was found in the same cigar box; an electric gram scale was found in the same box; a plastic baggie later found to contain cocaine residue was found in the waste basket of the bathroom where defendant was sitting at the time of the officers' entry into the apartment; a box of sandwich bags was found in the closet of O'Field's bedroom; a rock of suspected crack cocaine was found on the living room floor near the fireplace; $406 was recovered from O'Field's pocket which included $90 of the marked moneyused to make the controlled buys on April 16 1996, and April 18, 1996; a gun was found in a coat hanging in O'Field's closet; a baggie of a substance later determined to be 5.59 grams of marijuana was found on a glass table in the living room; and a pager was confiscated from one of the belt loops of defendant's pants. As is relevant to the charges against defendant, Det. Roper testified that the crack cocaine on the ironing board was in plain 5 view. He also claimed that defendant told him that O'Field was the father of her little boy, that she was at the apartment quite a bit and on occasion she spends the night, because that was her boyfriend and the father of her son. (Tr. 194) Det. Roper admitted on cross-examination that O'Field had been arrested numerous times for various charges, and had been imprisoned then paroled. He also stated that in his surveillance, he did not observe defendant at the apartment and that the controlled purchases were made from O'Field, not defendant. Defendant was present at the apartment when the second controlled purchase was made, but none of her possessions were found in O'Field's bedroom. Det. Roper also admitted that there was no evidence that defendant's pager was used in an unlawful manner. Det. Roper admitted that no fingerprinting was done at the apartment to determine who had packaged the drugs into smaller units. Defendant elected to present evidence and testified in the matter, and also presented the testimony of Helen Richardson. Defendant testified that O'Field is the father of her son and another child which she conceived in March 1996. Defendant stated that after O'Field rented the apartment on Shadeland, she stayed overnight there one or two nights per week but never actually lived there with O'Field. Defendant testified that O'Field is a drug dealer but she indicated that he sold drugs outside of the apartment. She also stated that she never participated in drug sales with him and never took drugs or even touched O'Field's drugs. 6 Defendant also stated that she had arrived at the apartment approximately ten minutes before the police executed the search warrant. At this time, the couple was arguing because she refused to stay at the apartment while O'Field was away at Freaknik. She was crying and had gone to the bathroom to get tissue. She admitted, however, that she did see the marijuana which was on the living room table but she did not see the crack cocaine on the ironing board. Finally, defendant stated that O'Field did nothing to assist her in any way following her arrest in this mater. The jury subsequently found defendant guilty of the three charges asserted against her. The trial court sentenced her to concurrent terms of one and one-half years incarceration on all counts. Defendant now appeals and assigns two errors for our review. Defendant's first assignment of error states: THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY FOR THE OFFENSES CHARGED. Within this assignment of error, defendant asserts that the evidence indicated that she was merely a visitor in the house and did not connect her to any of the contraband found there. In State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Supreme Court noted as follows: With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6th Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can 7 be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1983), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court described the role of the appellate court in reviewing the sufficiency of the evidence to support a conviction as follows: An appellate court's function when reviewing the suffi- ciency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecu- tion, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, [supra]. We further note that "possession" is defined in R.C. 2925.01(K) as follows: 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 may be actual or constructive. State v. Haynes (1971), 25 Ohio St.2d 264; State v. Hankerson (1982), 70 Ohio St.2d 87, syllabus. Constructive possession will be established where the accused was able to exercise dominion or control over the contraband. State v. Wolery (1976), 40 Ohio St.2d 316, 329. With regard to the sufficiency of evidence supporting a conviction 8 for possession of drugs which are found in an apartment with a defendant, the Supreme Court has concluded that the mere fact that the accused was the owner or lessee of premises where the narcotics were found is not sufficient to establish possession where the premises are also occupied by other individuals and the drugs are found in a common area. State v. Haynes (1971), 25 Ohio St.2d 264. Similarly, in Cincinnati v. McCartney (1971), 30 Ohio App.2d 45, 48, the court stated as follows: The defendants were charged with possession of marijuana. Marijuana was not found on the person of either of the defendants herein. It cannot be successfully argued that being seated six feet from growing marijuana plants in an apartment not occupied, rented or used as living quarters would be sufficient evidence to prove that they were in actual or constructive possession of such plants. Nonetheless, possession may be established where the defendant occupies the premises with others but the drugs are found in the defendant's living area and in plain view throughout the apartment. See State v. Boyd (1989), 63 Ohio App.3d 790, 796-797. Accord State v. Thompson (June 9, 1994), Cuyahoga App. No. 63369, unreported. Finally, readily useable drugs in close proximity to an accused may constitute sufficient circumstantial evidence to support a finding of constructive possession. See State v. Pruitt (1984), 18 Ohio App.3d 50, 58. With regard to possession of criminal tools, the state must prove possession or control of the device with intent to use it criminally. State v. Oliver (1987), 31 Ohio App.3d 100, 104; R.C. 2923.24. This statute provides: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose 9 to use it criminally. (B) Each of the following constitutes prima-facie evidence of criminal purpose: *** (3) Possession or control of any substance, device, instrument, or article commonly used for criminal pur- poses, under circumstances indicating such item is intended for criminal use. Moreover, the state need only prove the illegal possession of one criminal tool in order to sustain a conviction for one count of violating R.C. 2923.24. State v. McShan (1991), 77 Ohio App.3d 781, 784. A defendant's use of a pager in connection with illegal drug sales is sufficient to support a conviction under R.C. 2923.24. Id. In this instance, the state's evidence, if believed, demon- stated that defendant was present in the apartment for the controlled drug buy which preceded execution of the search warrant, that drugs were in plain view in the living room and dining room of the apartment, that a baggie containing drug residue was located in the same room as defendant, and that defendant was intimately involved with O'Field, the target of the narcotics investigation. The evidence also demonstrated that pagers are commonly used to facilitate drug transactions and that defendant was wearing a pager in an apartment where drugs were present in plain view. Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded that defendant possessed the substances at issue. Accordingly, we are unable to conclude that defendant's convictions lack sufficient evidentiary support. The first assignment of error is overruled. 10 Defendant's second assignment of error states: THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Herein defendant asserts that the state's evidence established defendant's guilt simply by her association with O'Field, and did not demonstrate her participation in his activities. In State v. Thompkins, supra, at 387, the Supreme Court set forth the role of an appellate court in determining whether a judgment is against the manifest weight of the evidence: When a court of appeals reverses the judgment of a trialcourt on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs[v. Florida (1982), 457 U.S. 31,] at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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 only be granted in the exceptional case in which the evidence weighs heavily against the conviction. ) Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Applying the foregoing, we are unable to conclude that the jury lost its way and created a manifest miscarriage of justice in convicting defendant of the instant offenses. Det. Roper credibly, 11 certainly, and reliably established that defendant stayed at the apartment and that drugs were present in plain view. He also established, and defendant admitted, that she was present when someone came to the apartment prior to the execution of the search warrant. By her own testimony, defendant knew O'Field to be a drug dealer and he asked her to stay at the apartment to watch the things in it for him while he was away. She also admitted that she had complete access to the things in the apartment. Accordingly, there is no basis upon which we may determine that the evidence weighs against the conviction. The second assignment of error is overruled. Affirmed. 12 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. PATTON, J. CONCURS. BLACKMON, P.J. CONCURS IN JUDGMENT ONLY 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 .