COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72251 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MTUME BELL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-338174 JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: SHAWN P. MARTIN 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- O'DONNELL, J.: Mtume Bell appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of drug trafficking, drug abuse, and possession of criminal tools, alleging that the convictions for drug trafficking and possession of criminal tools are against the manifest weight of the evidence. For the reasons which follow, we affirm the drug trafficking conviction, but reverse and vacate the conviction for possession of criminal tools. Around 9:00 p.m. New Year's Eve, 1995, Officer Theodore Troyer of the Cuyahoga County Metropolitan Housing Authority Police, and Sergeant Christopher Jakub, arrived at the Lakeview Estates and discovered Bell and several other individuals in the basement of one of the buildings playing dice. Upon seeing the police, Bell ran from the building and failed to comply with Officer Troyer's request to stop, and Sergeant Jakub apprehended Bell who began grabbing at his right front pocket which contained fourteen rocks of crack cocaine. Following this incident, the grand jury indicted Bell for drug trafficking, possession of drugs, and possession of criminal tools. At trial, the state presented testimony from both Officer Troyer and Sergeant Jakub, and the parties stipulated to the lab report which identified the fourteen rocks as crack cocaine and to Bell's prior conviction of attempted drug trafficking. The defense rested without presenting any testimony and did not make a motion for acquittal. Following the court's charge and deliberation, the jury -3- returned guilty verdicts, and the court thereafter imposed sentence. Bell now appeals from the convictions for drug trafficking and possession of criminal tools contending they are against the manifest weight of the evidence. He assigns two errors, the first of which states as follows: I. THE APPELLANT'S CONVICTION FOR DRUG TRAFFICKING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Bell contends his conviction for drug trafficking is against the manifest weight of the evidence, urging that the state failed to prove beyond a reasonable doubt he intended to sell the cocaine. The state contends the conviction is not against the manifest weight of the evidence because it presented evidence which proved beyond a reasonable doubt Bell possessed the fourteen rocks of crack cocaine with the intent to distribute it. The issue then presented for our review is whether Bell's conviction for drug trafficking is against the manifest weight of the evidence. The test to determine whether a conviction is against the manifest weight of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: 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 * * *. -4- The Supreme Court recently recognized the test in State v. Thompkins (1997), 78 Ohio St.3d 380, at 387 where it quoted Martin and stated * * * Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. In this case, the state assumed the burden to prove Bell's guilt beyond a reasonable doubt in connection with the indictment for drug trafficking as defined in R.C. 2925.03. That statute provides in part (A) No person shall knowingly do any of the following: (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another. Here, the state assumed the burden to prove that Bell transported the cocaine knowing he intended to sell it. In this case, Sergeant Jakub, a thirteen-year police veteran with four years experience in narcotics enforcement, testified that crack cocaine is available for sale in rocks of various sizes ranging in price from five dollars to twenty dollars and that rocks of the size confiscated from Bell are commonly sold for twenty dollars. Officer Troyer, a six-year police veteran, described the pipes and paraphernalia crack cocaine users carry in order to ingest the cocaine and testified that Bell was not carrying any such pipe at -5- the time he was arrested. He also testified that in just about 100% of the drug arrests he has participated in, he found pagers accompanying those trafficking in crack cocaine and that they use the pagers to obtain codes for amounts and locations for delivery. The defense offered no evidence. After reviewing the entire record and weighing the evidence presented by the state and all reasonable inferences, and considering the credibility of the witnesses, we conclude the jury did not lose its way or create a manifest miscarriage of justice in connection with the conviction for drug trafficking because based upon the testimony of Officer Troyer and Sergeant Jakub, the jury could have reasonably inferred that Bell, who had been previously convicted of attempted drug trafficking and who possessed fourteen rocks of crack cocaine but had no pipe with which to ingest the cocaine, intended to sell those rocks. Although the state failed to offer the pager into evidence, that failure only affected Bell's conviction for possession of criminal tools; the jury could consider this evidence for these purposes. Therefore, the judgment of conviction is not against the manifest weight of the evidence, and this assignment of error is overruled. The second assignment of error states II. THE APPELLANT'S CONVICTION FOR POSSESSION OF CRIMINAL TOOLS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Bell argues his conviction for possession of criminal tools, to wit: a pager and money, is against the manifest weight of the -6- evidence because the state did not establish he possessed a pager or money at the time of his arrest. The state concedes Bell is correct in this argument due to an oversight. Because the state did not prove Bell possessed money or a pager, we conclude in accordance with the state's admission of failure, the jury created a manifest miscarriage of justice by convicting him of this charge. Bell's second assignment of error is therefore well taken, and this conviction for possession of criminal tools is reversed and vacated. Accordingly, Bell's convictions for drug trafficking and possession of drugs are affirmed, but the conviction for possession of criminal tools is reversed and vacated. Judgment accordingly. -7- 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., and SWEENEY,J., CONCUR PRESIDING 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 .