COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71849 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND MICHAEL LUNDY : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT : JUNE 25, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Case No. CR-338275 JUDGMENT : Affirmed in part, reversed in part and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee : Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Patrick J. McCarthy, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Robert L. Tobik, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 MICHAEL J. CORRIGAN, J.: Michael Lundy, defendant-appellant, appeals from his convictions and sentence in the Cuyahoga County Court of Common -2- Pleas, Criminal Division, Case No. CR-338275, for the offenses of possession of crack cocaine and possession of criminal tools. Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is affirmed in part, reversed in part and remanded for re-sentencing. On May 17, 1996, defendant-appellant and his brother Allen Lundy were indicted by the Cuyahoga County Grand Jury in a five- count indictment alleging drug trafficking, drug abuse and possession of criminal tools. Defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all five counts of the indictment. On July 22, 1996, defendant-appellant's case proceeded to trial on count four of the indictment, possession of crack cocaine, in violation of R.C. 2925.11, with specifications, and count five of the indictment, possession of criminal tools, in violation of R.C. 2923.24, with specifications. The preceding counts were dismissed by the state prior to commencement of trial. The state's case consisted of the testimony of three witnesses, Detective Ronald Ross, Detective John Traine and Detective Darin Robinson. Detectives Ross and Traine were partners involved in the investigation of defendant-appellant and the surveillance of defendant-appellant's apartment, no. 524, at 7610 Kinsman Road in Cleveland, Ohio. Both detectives testified that they observed defendant- appellant's apartment on at least twelve separate occasions through binoculars. (T. 68, 177). On a typical night, the detectives -3- observed approximately five people entering defendant-appellant's apartment every fifteen minutes and leave a minute or two after arrival. (T. 68, 180). The detectives also followed defendant-appellant on several occasions. Defendant-appellant would leave the apartment, enter a white van with Ohio license plate number RGN 895 and make several short stops before returning to the apartment. (T. 73, 179). On March 12, 1996, Detectives Ross and Traine arranged a controlled drug purchase from defendant-appellant with the assistance of a confidential reliable informant. (T. 78, 180). The CRI was provided pre-recorded buy money and sent into the apartment building to purchase one rock of crack cocaine from the occupant of apartment no. 524. While the CRI was inside the building, the detectives observed the shadow of a person move across the apartment and open the door. Approximately two to three minutes later, the CRI returned with one rock of crack cocaine +++ purchased from the apartment. (T. 148, 186). On March 13, 1996, a search warrant was obtained for apartment no. 524, 7610 Kinsman. That warrant was executed the next day. (T. 79). Detective Darin Robinson participated in the execution of the search warrant. Detective Robinson discovered $198.00 in U.S. currency, $83.00 in food stamps, $2,000.00 in U.S. currency in small denominations under an end table, a scale upon which to weigh drugs and one rock of crack cocaine. (T. 159-163). Everything -4- discovered was within close proximity to defendant-appellant and in plain view with the exception of the hidden money. Detectives Ross and Traine corroborated the testimony of Detective Robinson. (T. 88-91, 196-199). Defendant-appellant's case consisted of five witnesses. The defense based its case upon the premise that defendant-appellant was not in close proximity to the illegal drugs, the scale or the money at the time the SWAT team entered the apartment and therefore, the theory of constructive possession was not established beyond a reasonable doubt. On July 26, 1996, the jury returned a verdict of guilty of possession of crack cocaine and possession of criminal tools as charged in the indictment. The trial court sentenced defendant- appellant to two and one-half to ten years on the drug possession charge and to two and one-half to five years on the possession of criminal tools charge. The sentences were ordered to be served concurrently. On January 2, 1997, defendant-appellant filed a notice of delayed appeal from his convictions and sentence in the Cuyahoga County Court of Common Pleas. On January 6, 1997, this court allowed defendant-appellant's motion for delayed appeal. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE DETECTIVE CONCERNING HIS BIAS AND PREJUDICE AND THE FINANCIAL INTEREST THE POLICE HAVE IN OBTAINING THE FORFEITURE OF THE CASH SEIZED IN VIOLATION OF EVIDENCE RULES 611 AND 616 AND THE DUE PROCESS CLAUSE OF THE U.S. CONSTITUTION. -5- During cross-examination of Detective Ross, defense counsel attempted to ask the following question regarding the $2,000.00 discovered in defendant-appellant's apartment during execution of the search warrant: Q. Was the $2,0000.00 seized by you? A. Yes, it was. Q. And it's your intention to keep that money? MR. MCCARTHY: Objection. THE COURT: Sustained. Q. It's your intention . . . THE COURT: What do you mean, is he personally going to keep that money? MR. KOVACIK: The police department. THE COURT: Objection sustained. Move on. That's not an issue. What happens to that money is not an issue in this case. That is to say, ladies and gentleman, what happens to that money, per se, you know, whether it's donated to some operation, whether it's forfeited has nothing to do with the issues in this particular case. The issues in this case relate to the guilt or non- guilt of this defendant in a two count indict- ment. The first count is drug abuse, the second count is possession of criminal tools. At the proper time I will give you the tools, that's to say, the words and the law upon which you will be able to apply that law to the facts as you find the facts to be. Very well, move ahead. (T. 100-101). Defendant-appellant maintains that the trial court improperly limited the scope of his cross-examination of Detective Ross. Specifically, defendant-appellant argues such questioning was proper since it served to demonstrate bias and prejudice of the Cleveland Police Department by virtue of an alleged pecuniary interest in the outcome of the proceedings, i.e. ultimate forfeiture of the $2,000.00 discovered in defendant-appellant's apartment to an unspecified police fund. -6- Evid.R. 611(B) states: Cross-examination shall be permitted on all relevant matters and matters affecting credibility. Evid.R. 616 states: bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence. It is well established that a cross-examiner may ask a question if the examiner has a good faith belief that a factual predicate for the question exists. State v. Williams (1977), 51 Ohio St.2d 112; State v. Gilliard (1988), 40 Ohio St.3d 226. Defendant-appellant relies principally upon the Supreme Court case of State v. Ferguson (1983), 5 Ohio St. 3d 160, 165, in support of his argument that he should have been permitted to cross-examine Detective Ross regarding the forfeiture of the money. In Ferguson, the Supreme Court found that an accused is permitted to cross-examine a prosecution witness as to that witnesses' pending civil lawsuit against the accused to demonstrate possible bias and/or prejudice arising out of the witnesses financial interest in the outcome of the prosecution. The underlying case is vastly different from Ferguson in a number of significant respects. Defendant-appellant's theory of the case was that the drugs and criminal tools in question were not his nor were they in his possession at the time the search warrant was executed. Clearly, the cross-examination of the detectives regarding the ultimate forfeiture of the money had no bearing on defendant-appellant's guilt or non-guilt on those charges. In Ferguson, the pending lawsuit did possibly affect the credibility -7- of the prosecution witness to the extent that the witness could have personally benefitted financially from the defendant's conviction. Id. at 166. No such personal interest exists in this case. Arguably, a police officer always has a professional interest in a criminal prosecution and its outcome. This does not, in any way, translate to a personal interest in the outcome of the case as it relates to the illegal drugs and money confiscated from defendant-appellant. State v. Morgan (Nov. 9, 1992), Stark App. No. CA-8891, unreported at 4. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT COMMITTED PLAIN ERROR AND COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AMENDMENT WHEN THE APPELLANT WAS NOT GIVEN THE OPTION OF BEING SENTENCED PURSUANT TO SB 2. Defendant-appellant was arrested on March 14, 1996 and indicted on May 17, 1996. Defendant-appellant's trial began on July 23, 1996, and he was sentenced on July 29, 1996, to an indefinite term of incarceration. On July 1, 1996, SB 2 became effective whereby indefinite sentences for the indicted offenses were changed to definite terms of imprisonment. Defendant-appellant maintains that the trial court should have given him the option of being sentenced under the new law to a lesser penalty since R.C. 1.58 entitles him to such a reduction. Defendant-appellant maintains further that trial counsel was ineffective for failing to request sentencing under the new SB 2 standards. -8- Recently, this court decided State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported (en banc), in which it was determined by a majority that a defendant in such a situation is entitled to the benefit of the claimed lesser penalty set forth in the new law. Delgado is dispositive of the issues raised in defendant-appellant's second assignment of error. Although this author was in the minority in the Delgado decision, Delgadois the current law in this appellate district and we are bound to apply it to the case at hand. Accordingly, defendant-appellant's second assignment of error is well taken. Defendant-appellant's case is remanded for purposes of re- sentencing in accordance with Delgado. Defendant-appellant's third assignment of error states: III. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTIONS. Defendant-appellant's fourth and final assignment of error states: IV. THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having a common basis in both law and fact, this court shall consider defendant-appellant's third and fourth assignments of error simultaneously. Defendant-appellant argues that his convictions for the offenses of possession of crack cocaine and possession of criminal tools were based upon insufficient evidence and against the manifest weight of the evidence. Specifically, defendant-appellant -9- maintains that the state failed to prove the essential elements of constructive possession beyond a reasonable doubt. It is defendant-appellant's position that the evidence demonstrated that he was standing by the closet hanging up his coat when the police executed the search warrant and was not in close proximity to the drugs, scale or money discovered by the police during the search of the apartment. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: An appellate court's function when reviewing the sufficiency 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 defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing 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. (Jackson V. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the -10- witnesses are primarily matters for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper 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 the 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1984), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where it determined that unlike a reversal based upon insufficiency of the evidence, an -11- appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. At 43. Additionally, only a concurring majority of an appellate panel is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three appellate judges necessary for a reversal based upon the manifest weight of the evidence. State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. Contrary to defendant-appellant's assertions, this court does not and cannot sit as the thirteenth juror when reviewing a claim based upon the weight of the evidence. Rather, we must accord due deference to the credibility determinations made by the trier of fact. See State v DeHass, supra. At this court has previously stated in State v. Thompson (April 23, 1998), Cuyahoga App. No. 72044, unreported: The fact-finder, being the jury (in the case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witnesses and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a herculean endeavor. Defendant-appellant was convicted of drug possession, in violation of R.C. 2925.11, and possession of criminal tools, in violation of R.C. 2923.24. R.C. 2925.11 provides in pertinent part: (A) No person shall knowingly obtain, posses, or use a controlled substance. -12- (4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine ***. * * * R.C. 2923.24 states in pertinent part: (A) No person shall posses or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally. 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. 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 or control may be proven by circumstantial evidence alone. State v. Taylor (1997), 78 Ohio St.3d 15. Circumstantial evidence that a 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; Wolery, supra; State v. Bell (May 15, 1998), Cuyahoga App. No. 72691, unreported. In this case, viewing the evidence presented in a light most favorable to the prosecution, the testimony of Detectives Ross and Traine as well as the testimony of Detective Robinson supports the jury's determination that defendant-appellant did, in fact, -13- constructively possess the drugs and money as alleged in the indictment. The state established that defendant-appellant exercised dominion and control over the apartment in which the drugs and criminal tools were discovered. In addition, the state established that the crack cocaine was within arms length of defendant-appellant at the time the search warrant was executed. The money and scale were also on the floor in close proximity to defendant-appellant. Clearly, any rational trier of fact could have found the essential elements of the offenses of drug possession and possession of criminal tools proven beyond a reasonable doubt. State v. Bennett (March 3, 1996), Cuyahoga App. No. 68687, unreported. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the underlying jury verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of drug possession and possession of criminal tools. Defendant-appellant's conviction was supported by substantial credible evidence upon which the trier of -14- fact could reasonably conclude that defendant-appellant was guilty of the underlying offenses. Defendant-appellant's third and fourth assignments of error are not well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for re-sentencing in accordance with this court's holding in Delgado. -15- It is ordered that the parties shall share equally the 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 Cuyahoga County 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. JAMES M. PORTER, P.J., AND ANN DYKE, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .