COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72684 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LEROY CLAY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT August 27, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-339435 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DARCY MOULIN, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CHARLES M. MORGAN, JR., ESQ. 11510 Buckeye Road Cleveland, Ohio 44104 PATRICIA ANN BLACKMON, A.J.: Appellant Leroy Clay appeals the decision of the trial court convicting him of drug abuse and sentencing him accordingly. He assigns the following errors for our review: -2- I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE PHYSICAL EVIDENCE OBTAINED AT 3061 EAST 93RD STREET AS DEFENDANT HAD A REASONABLE EXPECTATION OF PRIVACY THEREIN. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS ORAL INCULPATORY STATEMENT IN VIOLATION OF HIS RIGHTS AGAINST SELF-INCRIMINATION. III. THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE MICROSCOPIC AMOUNT OF COCAINE CONFISCATED BY THE STATE WAS INSUFFICIENT TO PROVE DEFENDANT-APPELLANT KNOWINGLY POS- SESSED A CONTROLLED SUBSTANCE. The Cuyahoga Metropolitan Housing Authority (CMHA) narcotics police received several complaints of drug activity at 3061 East 93rd Street, which is a CMHA building. When drug complaints are made, the CMHA narcotics police routine is to notify the leaseholder of the complaint. Specifically, Detective Wilson received complaints involving apartment #509 at that building. Rudolph Roberts, the leaseholder of that apartment, was then notified by Detective Wilson of the complaint. Roberts invited Detective Wilson into the apartment. While there, he observed appellant Leroy Clay sitting at a table. Roberts then approached the table and pushed away a paper bag. Detective Wilson then observed what appeared to him to be a crack pipe with crack cocaine residue. The pipe was in front of appellant. Detective Wilson then arrested both men and advised them of their rights. Appellant, thereafter, admitted that the crack pipe was his. He also stated he lived in apartment #208 with his -3- mother; Detective Wilson verified that appellant's mother was the leaseholder of apartment #208. Thereafter, the crack pipe was tested and the results were positive for cocaine, which measured 0.01 grams. Appellant was indicted for drug abuse and before his jury trial, he moved to suppress the evidence. He moved first to suppress the evidence seized and his oral admission to the police. The trial judge and the defense attorney then engaged in the following discourse: THE COURT: As soon as the jury comes up, we are ready to proceed, is that right? MR. SPADARO: Your Honor, we filed a motion to suppress tangible evidence and statements of defendant. THE COURT: I don't have a copy of that. MR. SPADARO: The Court does not have a copy? THE COURT: No. Thank you. I will give it back. And you are seeking now to suppress an oral statement, is that right? MR. SPADARO: Oral statement and the pipe that was found in the apartment. THE COURT: Well, you don't allege standing in that? You are indicating it is the apartment of Rudolph Roberts. MR. SPADARO: Correct, your Honor. THE COURT: How would the defendant have standing? MR. SPADARO: Mr. Clay lived two or three floors down in the same building, was visiting Mr. Roberts. THE COURT: That's the standing? MR. SPADARO: Lawfully on the premises, your Honor. THE COURT: Do you have a case to that effect? I never heard of that. -4- MR. SPADARO: Your Honor, we would rely on Minnesota versus The United States, 1990, where the Supreme Court of The United States confirmed standing to an overnight guest. However, your Honor, we believe that the rationale in Minnesota versus United States is applicable to this case. Even though Mr. Clay does not claim to have been an overnight guest, in Minnesota versus United States they did not need to consider anything other than the fact that he was an overnight guest at the time, and that the rationale is still applicable, that a person has a legitimate expectation of privacy, your Honor, within the home of another. THE COURT: I don't see it under the facts that you have alleged in your motion. The State is going to further allege that the police observed Mr. Roberts pushing a brown bag away from himself. Is that where the objects were recovered from is the brown bag? MS. MOULIN: Objects were recovered from the brown bag on a table in plain view. That's my understanding from the report. THE COURT: It talks about evidence recovered from the dining room table that he was sitting at, and some bag that he had pushed away from himself. You don't allege standing. I will give you your motion back. So it is denied on that basis. Is there an oral statement? MS. MOULIN: There is no oral statement, your Honor, that they were given through discovery. THE COURT: I don't have a copy of that. What was the basis of the oral statement? Was it made after arrest? MS. MOULIN: The oral statement was made after the police officers, according to the report, after Patrolman Shaughnessy had read both of the people at the time their Miranda rights. [sic] And at that point there was just an admission made that it was his crack pipe. -5- THE COURT: All right. Did you wish to go forward with regard to suppressing an oral statement? MR. SPADARO: Yes, your Honor. THE COURT: Okay. MS. MOULIN: Your Honor, if we may approach? THE COURT: Sure. (A sidebar discussion was had off the record.) (Recess taken.) When the matter resumed, the parties were selecting the jury. What we can glean from the record is that the motion to suppress the oral statement was not pursued. No ruling on it appears in this record. In his first assignment of error, appellant argues the trial court erred in denying his motion to suppress the crack pipe because he lacked standing. Fourth Amendment rights are personal in nature and may not be vicariously asserted by others. Alderman v. United States (1969), 394 U.S. 165, 174; Rakas v. Illinois (1978), 439 U.S. 128, 133-134; State v. Coleman (1989), 45 Ohio St.3d 298, 306, [certiorari denied (1990), 493 U.S. 1051.] A defendant bears the burden of proving not only that the search was illegal, but also that he had a legitimate expectation of privacy in the area searched. See Rawlings v. Kentucky (1980), 448 U.S. 98, 104. State v. Dennis (1997), 79 Ohio St.3d 421, 426, certiorari denied (1998), 118 S.Ct. 1078. The burden of proving standing is on the appellant. Id. Appellant argues he lives with his mother whose leasehold in -6- Apartment #208 is in the same building as Apartment #509, thus he has standing to challenge the search of #509. The issue for this court is whether sufficient evidence was presented by appellant to warrant the trial court in finding that he had an expectation of privacy in the area searched. State v. Williams(1995), 73 Ohio St.3d 153, 166, certiorari denied (1996), 516 U.S. 1161. It is the nature of the evidence presented by the defendant which demonstrates that he has a higher interest in that property for purposes of standing. A mere assertion of a proprietary interest in the searched premise is not enough. State v. Davis (1992), 80 Ohio App.3d 277, 284, appeal dismissed (1992), 65 Ohio St.3d 1462. Nor is ownership and possession of the illegal contraband sufficient to establish standing. Rawlings v. Kentucky, supra. See also State v. Coleman (1997), 118 Ohio App.3d 522, 525. The Supreme Court has recognized that an overnight guest has standing to challenge the propriety of a search. Minnesota v. Olson (1990), 495 U.S. 91. However, Clay did not allege that he was an overnight guest of Roberts. It is clear that Roberts had authority to consent to the search of his apartment. Clay did not demonstrate a sufficient nexus to the apartment to establish standing to object to the search. See Coleman at 526. Consequently, we conclude the trial court did not err in holding that the appellant failed to establish standing. Appellant's first assigned error lacks merit. In his second assignment of error, appellant argues the trial court erred in denying his motion to suppress his oral inculpatory -7- statement made to the police. The record shows after his arrest and after being Mirandized, the appellant admitted ownership of the crack pipe. He moved to suppress the seizure of the crack pipe. However, the record shows neither a pursuit of the motion nor a ruling by the judge. Consequently, this court is of the opinion that the matter was not properly preserved for appeal. Even if it had been, the appellant's argument lacks merit. The testimony in the record, which was during trial, showed the officer testified that it was after the Miranda warnings had been given that the appellant admitted ownership of the pipe. At no time did the defense object to this testimony or renew its motion to suppress. Consequently, appellant's second assigned error lacks merit. See State v. Smith (1991), 61 Ohio St.3d 284, 288, certiorari denied (1992), 502 U.S. 1110; State v. Williams (1995), 105 Ohio App.3d 471, 478-479, appeal dismissed (1995), 74 Ohio St.3d 1444. In his third assigned error, appellant argues the state failed to prove appellant knowingly possessed a controlled substance. In State v. Susser (Dec. 5, 1990), Montgomery App. No. 117897, unreported, the court held: One could not `knowingly' possess a controlled substance in violation of R.C. 2925.11 when the quantity is so minute that, absent other facts, its presence could be determined only through extraordinary testing. We rejected this rationale in State v. Teamer (May 8, 1997), Cuyahoga App. No. 70466, unreported, affirmed (1998), 82 Ohio St.3d 490. -8- Any quantity is sufficient to satisfy the statute so long as it is possessed knowingly. The evidence showed appellant admitted that he owned the pipe. The officers observed it in his possession. Consequently, the state sustained its burden. Appellant's third assigned error lacks merit. Judgment affirmed. 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. NAHRA, J., and MICHAEL J. CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .