COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72062 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION LUIS SOTO : : Defendant-appellant : : : JANUARY 22, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-330921 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT DEMARCO, ESQ. Cuyahoga County Prosecutor 1750 Standard Bldg. EDWARD F. FERAN, ESQ. Cleveland, OH 44113 Assistant County Prosecutor The Justice Center, 8th Fl. 1200 Ontario Street Cleveland, OH 44113 PATTON, J. Defendant-appellant Luis Soto appeals the jury verdict finding him guilty of possession of heroin, in an amount equal to or -2- exceeding three times the bulk amount in violation of R.C. 2925.03. On appeal defendant submits three assignments of error: (1) mere presence at an apartment is insufficient to sustain a conviction for possession, (2) the trial court erred by giving a jury instruction on aiding and abetting absent any evidence that defendant participated in the crime, and (3) the trial court erred in not charging the jury that mere association is not enough to prove aiding and abetting. At trial two detectives testified. The first detective testified that the police had a certain apartment and individual who lived in the apartment under surveillance for selling heroin. The detective stated the police obtained a search warrant and executed the warrant at 12:30 p.m. He confirmed that during the search a bag of cocaine was found in a coat in the closet. After the cocaine was discovered, the two adults who were in the apartment were arrested. An older adult was allowed to remain to watch two children who were present while the other adult, who was named on the search warrant, was taken to the police station. The detective stated the police were frustrated because the search lasted three hours or until 3:30 p.m., yet no heroin was discov- ered. The detective also testified that sometime during the search defendant arrived at the apartment, stated he knew the occupants, and asked if he could watch the children. As the detective left the apartment building he encountered a known drug dealer and arrested him. While being transported to the police station, the drug dealer informed the detective the heroin -3- they were looking for was located in the floor of the closet. The detective immediately radioed the other detective and told him to go back to the apartment and recover the heroin. The other detective received this message and returned to the apartment in approximately 15 minutes. As he entered the apartment with his partner, he noticed three people who were not present during the first search. The detective then turned his head, looked down the hallway where the closet was located, and saw the rear portion of a person sticking out of the closet. The individ- ual, who turned out to be the defendant, rose out of the closet with a surprised look on his face and went into the bedroom. The detective testified he followed defendant into the bedroom, patted him down, and took him back into the hallway. At this point, the detective looked inside the closet and saw a piece of tile removed from the floor which had been covering a secret compartment. Defendant ran from the apartment but was caught going up to the next floor by the other detective who had returned to the scene. A short time later, a white bag was found in the compartment. A search of this bag revealed $10,000 in cash and $12,000 worth of heroin in 400 individually wrapped packets. Defendant testified that after the initial search he returned to the apartment to obtain clothes for the children, who had been moved to his brother's apartment located one flight above. Defendant stated he was not in the closet when the officer entered the apartment but rather he was in the bedroom located next to the closet. Defendant further testified he did not know there were -4- drugs in the closet. He stated the detective did not ask him any questions and he walked right by the detective when he left the apartment. The first time he heard about the drugs was when the detective came up to his brother's apartment and arrested him. After the jury heard all the evidence it found defendant guilty of possession of heroin, three times the bulk amount. Defendant timely filed his notice of appeal and now appeals the jury verdict submitting three assignments of error. The first assignment of error states as follows: THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29 AS TO COUNT ONE OF THE INDICTMENT, POSSESSION OF HEROIN. Defendant argues the state failed to prove even a scintilla of evidence of possession in this case. In support, defendant contends no witness saw him with the drugs or exert control over them. The drugs were in a bag in a hole and were only partially visible. At best, defendant claims the state showed he had mere access to the drugs based on the testimony of one detective who stated he saw defendant crouched near the closet where the drugs were later found. The state maintains the evidence was sufficient to prove defendant constructively possessed the drugs. The state bases its argument on several factors. First, defendant was aware the police were searching the apartment for drugs and was subsequently seen crouching in the closet where the drugs were located. Second, after defendant was seen crouching in the closet the tile covering the compartment containing the drugs was removed. Third, defendant -5- immediately wanted to get away from the police after the drugs were discovered evidenced by the fact that he ran into the bedroom and then out of the apartment. R.C. 2925.03(A)(6) states: (A) No person shall knowingly do any of the following: (6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than three times that amount;*** In this case, the state does not allege actual possession, but rather constructive possession of the drugs. Constructive possession is sufficient for conviction under R.C. 2925.03. Constructive possession exists when an individual exercises dominion and control over an object, even though the object may not be within his immediate physical possession. State v. Wolery (1976), 46 Ohio St.2d 316. Dominion and control over illegal drugs is not proven merely by a person's presence in the vicinity of the drugs. See State v. Pruitt (1984), 18 Ohio App.3d 50, 58. Readily available drugs in close proximity to the defendant may constitute circumstantial evidence that the defendant had constructive possession, however. Id., State v. Lavendar (March 12, 1992), Cuyahoga App. No. 60493, unreported. In the present case, defendant relies upon three cases to support his contention that mere presence in an apartment where drugs are present is insufficient evidence to convict for posses- sion. The case are State v. Haynes (1971), 25 Ohio St.2d 264; Cincinnati v. McCartney (1971), 30 Ohio App.2d 45; State v. Mann (1993), 93 Ohio App.3d 301. In Haynes, a defendant's conviction -6- for constructive possession of drugs was reversed where he had not been in a house he rented for a week and the same house was also occupied by three of his nephews. In Cincinnati, a conviction for constructive possession of drugs was reversed where defendants, who neither owned nor occupied an apartment or its building, were sitting in an apartment six feet from marijuana plants during the execution of a search warrant. Lastly, in Mann, a defendant was convicted for possession where he was found showering and alone in an apartment which had drugs, drug paraphernalia, and a large amount of money in plain view. Defendant's reasoning, based on these cases is correct, mere- presence in an apartment is not sufficient to support a conviction for drug possession. However, this argument fails when it is applied to the facts of the present case. Defendant was not simply alone and unaware of the drugs in the apartment. He was in close proximity to the drugs and aware of their presence. Defendant was outside the apartment requesting custody of the children while the police conducted their initial search for drugs. He knew the police were searching the apartment. Approximately 15 minutes later defendant was seen in the closet where the drugs were hidden from the police. A subsequent inspection of the closet revealed a loose piece of floor tile and underneath it a bag full of drugs and cash. Defendant then attempted to flee the scene but was caught by a second detective who had just arrived on the scene. A motion for acquittal may be granted only where the evidence is insufficient to sustain a conviction. Crim.R. 29(A); State v. -7- Apanovitch (1987), 33 Ohio St.3d 19, 23. In reviewing the sufficiency of the evidence in a criminal case, an appellate court will not reverse a conviction where there is substantial evidence, viewed in a light most favorable to the prosecution, which would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273. After a careful review of the record and based on the above analysis, we are satisfied the state presented substantial evidence which would allow reasonable minds to conclude that all of the material elements of possession had been proven beyond a reasonable doubt. Accordingly, defendant's first assignment of error is overruled. The defendant's second and third assignments of error are interrelated and will be addressed together below. They state as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN CHARGING THE JURY ON AIDING AND ABETTING, OVER THE TIMELY OBJEC- TION OF THE DEFENDANT. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING TO CHARGE THE JURY, DESPITE A TIMELY REQUEST BY DEFEN- DANT, THAT DEFENDANT'S MERE ASSOCIATION WITH THE PRINCIPAL OFFENDER IS NOT ENOUGH TO PROVE AIDING AND ABETTING UNDER THE COMPLICITY STATUTE. Defendant argues the trial court erred in charging the jury on aiding and abetting because there was no evidence to support such a charge. Defendant claims there was no evidence he was in possession of the drugs and no evidence that he was an agent or servant of the principal defendant involved in this transgression. -8- Additionally, defendant claims the trial court erred by refusing to charge the jury that the mere association with the principal offenders is not sufficient to prove aiding and abetting. The state counter-argues the jury instructions were properly given based on the totality of the circumstances. In support, the state maintains defendant was in the principal defendant's apartment a few minutes after the police left, he was observed in the closet where the heroin was located, and he fled after the police arrived. This evidence, the state argues, indicates defendant was aiding and abetting by attempting to save the heroin from police discovery for the principal defendant. Under Ohio law, the state may charge and try a defendant as a principal and, if the evidence at trial reasonably indicates the defendant was an aider and abetter rather than a principal offender, a jury instruction on aiding and abetting may be given. State v. Perryman (1976), 49 Ohio St.2d 14, 28. To constitute aiding and abetting, the accused must have taken some role in causing the commission of the offense. State v. Sims (1983), 10 Ohio App.3d 56. Mere presence at the scene is not enough. Id. at 58. Rather, a person aids when he assists another person in performing an act and a person abets when he encourages a person to act in a certain manner. State v. Monroe (1992), 81 Ohio App.3d 745. However, aiding and abetting may be shown by both direct and circumstantial evidence, and participation may be inferred from presence, companionship and conduct before and after the offense is committed. State v. Cartellone (1981), 3 Ohio App.3d 145, 150. -9- Defendant was present outside the apartment while the search for heroin was being conducted by the police. He stated he was present to take custody of the children if the principal defendant was arrested. After the principal defendant was arrested, defendant was given custody of the children and the police left the apartment. Approximately fifteen minutes later the police returned to the principal defendant's apartment and a detective testified he saw defendant crouching in the closet. A few minutes later a tile was found loosened in the closet and a bag of drugs and money with a value of $22,000.00 was found in the space previously covered by the tile. Defendant claims he was in the closet looking for clothes for the children, who were not in the apartment, and did not know there were drugs in the apartment. This however, does not explain why defendant, shortly after the police departed, was crouched directly over the loosened tile where the drugs were secretly hidden from the initial police search. We conclude based on the above facts the trial court did not err in instructing the jury on aiding and abetting. Lastly, defendant claims that once the trial court decided to instruct the jury on aiding and abetting it was erroneous to not include an instruction indicating that mere association alone with the principal defendant is not enough to prove aiding and abetting. The trial court instructed the jury as follows regarding aiding and abetting: -10- Before you can find the defendant guilty as to any one of these charges, you must find, beyond a reasonable doubt that, on or about the 12th day of November, 1995, and in Cuyahoga County, Ohio, the defendant knowingly aided and abetted another in committing the three offenses outlined in the indictment. Aid means to help, assist or strengthen; abet means to encourage, counsel, incite or assist. The giving of jury instructions is within the sound discretion of the trial court and will not be disturbed on review absent a showing of abuse of discretion. State v. Hipkins (1982), 69 Ohio St.2d 80. Further, the court retains the discretion to use its own language to communicate the legal principles requested by the proponent of an instruction. State v. Scott (1987), 41 Ohio App.3d 313. We believe the trial court did not err in instructing the jury on aiding and abetting and did not abuse its discretion by not instructing the jury regarding defendant's mere association with the principal defendant. First, defendant was not convicted of aiding and abetting and he can show no prejudice resulting from the lack of an instruction regarding mere association. Second, the instruction conformed to the evidence presented at trial. Defendant testified he was family and friends with the principal defendant. He also stated the principal defendant asked him to watch her children as she was being taken away by the police. Third, the above instruction clearly defines an aider and abettor as one whose involvement in the commission of the crime goes beyond mere association. The instruction as a whole is responsive to the evidence and is an -11- accurate statement of the applicable law. Therefore, defendant's second and third assignments of error are overruled. Judgment 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 Court of 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. PORTER, P.J. ROCCO, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .