COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72187 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : EMMANUEL POUGE : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR.-344641 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DEAN E. DEPIERO, ESQ. CUYAHOGA COUNTY PROSECUTOR 5454 State Road BY: GAIL D. BAKER, ESQ. Parma, Ohio 44134 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, P.J.: Appellant, Emmanuel Pouge, is appealing his conviction for drug trafficking, a violation of R.C. 2925.03. He contends the evidence was against the weight and sufficiency of evidence. For the following reasons we affirm. Detective Senn of the Cleveland Police Vice Unit testified that on April 24, 1996, he was driving an unmarked car, posing as a drug buyer. As Senn was driving southbound on East 141st Street, he saw vehicles stopped by the side of the street. He observed appellant and another man, Wayne Boggan, walk up to the vehicles. Some hand gestures took place between appellant and/or Boggan and the occupants of the vehicles. It appeared that drug transactions were taking place. Senn further stated that appellant drove by very slowly. In Senn's experience, this is the usual manner that buyers indicate their interest in purchasing drugs. Appellant and Boggan approached Senn's car. Appellant and Boggan both said, What do you need? Senn held up a ten dollar bill and said, I need a ten piece. Appellant and Boggan both had clear plastic baggies in their hands. Senn assumed that appellant's baggy contained drugs. Appellant reached into his baggy. Then, Boggan grabbed the ten dollar bill from Senn, and handed Senn what appeared to be a rock of crack cocaine. The rock later tested negative for controlled substances. Detective Pillow testified that he saw appellant and Boggan -3- appear to engage in drug transactions with occupants of vehicles. Then, he observed appellant and Boggan approach Senn's vehicle. Appellant and Boggan were jostling for position next to Senn's car. Furtive gestures occurred, indicating an exchange had taken place. Senn radioed that a buy had taken place. Pillow stated that he got out of the car, and Pouge took off running. Pillow chased Pouge. When Pillow caught Pouge, he did not find any drugs, money or pagers on Pouge's person. Detective Crayton testified that he observed appellant and Boggan appear to make drug transactions with Senn and others. Crayton arrested Boggan and recovered the buy money from a field where Boggan had run. Wayne Boggan testified on behalf of appellant. Boggan was convicted of selling counterfeit drugs, based on the facts of this incident. Boggan had three prior convictions for drugs. Boggan said that Senn pulled up and said he wanted something for ten dollars. Boggan went up to the car, took the money and gave Senn a piece of wax. The appellant was not near Senn's car, but was on the street, some distance away, in a group of twelve men. Boggan did not make any prior transactions that day with other people in cars. The police did not recover the buy money on him, because Boggan hid it in the mud during the chase. The police planted money. Boggan was friends with appellant, but did not know him well. Appellant was charged with drug trafficking, R.C. 2925.03, and selling or offering to sell counterfeit drugs, R.C. 2925.37. The -4- jury found appellant guilty of drug trafficking, but not guilty of offering to sell counterfeit drugs. I. Appellant's first assignment of error states: THE COURT ERRED BY DENYING APPELLANT'S MOTION FOR JUDG- MENT OF ACQUITTAL PURSUANT TO CRIM. R. 29 BECAUSE EVIDENCE WAS INSUFFICIENT. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, State v. Jenks (1991), 61 Ohio St.3d 259. The essential elements of drug trafficking are that the defendant knowingly sells or offers to sell a controlled substance. Appellant correctly states that there was no evidence he made an actual sale. There was evidence that appellant made an offer to sell by approaching Senn's car and asking him, What do you need? An offer to sell occurs when the defendant displays or declares a readiness or willingness to consummate a sale of a controlled substance. State v. Scott (1982), 69 Ohio St.2d 439, 440, State v. Pumpelly(1991), 77 Ohio App.3d 470. Whether an offer occurred is determined from the totality of the circumstances. Id. The circumstances of this case are that the officers observed appellant and Boggan engage in what appeared to be drug trans- actions. Senn drove by slowly, indicating an interest to buy -5- illegal drugs. Appellant approached Senn and said, What do you need? When Senn said he wanted a ten piece, appellant reached into a baggy of what Senn believed was crack. From these facts, reasonable minds could conclude that appellant displayed or declared a willingness to consummate a sale of illegal drugs. Appellant asserts that there was no evidence that what he offered to sell was a controlled substance. The rock sold to Senn by Boggan tested negative for controlled substances. No drugs were found on appellant's person. To prove a violation of R.C. 2925.03, it is not necessary to show that the defendant was actually ready or willing to consummate the sale of illegal drugs, only that the defendant displayed or declared such readiness or willingness. Scott, supra. It must only be shown that the defendant offered to sell a controlled substance, not that a controlled substance was actually sold. State v. Bazzy (1993), 86 Ohio App.3d 546, State v. Patterson (1982), 69 Ohio St.2d 445. It is sufficient that the defendant intended the buyer to believe that the substance being offered was a controlled substance. Id., State v. Milliner (1994), 98 Ohio App.3d 262. In this case, the evidence showed that appellant intended Senn to believe that the substance being offered was crack. There was sufficient evidence in this case from which a reasonable trier of facts could find all the essential elements of drug trafficking. Accordingly, this assignment of error is overruled. -6- II. Appellant's second assignment of error states: APPELLANT'S CONVICTIONS (SIC) ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, quoting Tibbsv. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, contradicted or uncontradicted, reliable or unreliable, certain or uncertain, whether a witness was impeached and whether a witness' testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. Appellant's conviction was supported by Detective Senn's testimony. Senn's testimony was corroborated to some extent by the testimony of the other police officers. Senn's testimony was certain and not contradictory. Appellant's co-defendant, Boggan, testified that appellant never approached Senn's vehicle, which contradicts statements made by the three police officers. Boggan had an interest in testifying as appellant's friend. It was primarily for the trier of fact to determine the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. We can not say that the jury lost its -7- way in finding the testimony of the police officers more credible. The conviction was not against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. The decision of the trial court is 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 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. KARPINSKI, J., AND SPELLACY, J., CONCUR. ANN DYKE 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 of decision by the .