COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72691 STATE OF OHIO : : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION MTUME BELL : : Defendant-Appellant : DATE OF ANNOUNCEMENT MAY 14, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-347948 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Aaron Phillips, Esq. Assistant Prosecuting Attorney 1200 Ontario Street 8th Floor The Justice Center Cleveland, Ohio 44113 For defendant-appellant: Patricia J. Smith, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 MICHAEL J. CORRIGAN, J.: Defendant-appellant, Mtume Bell, appeals his conviction of possession of drugs in violation of R.C. 2925.11 in the Cuyahoga -2- County Court of Common Pleas, Criminal Division. Defendant- appellant raises two errors for review. This court, finding no error, affirms defendant-appellant's conviction. On February 26, 1997, a Cuyahoga County Grand Jury indicted defendant-appellant on one count of possession of drugs in violation of R.C. 2925.11. After pleading not guilty, defendant- appellant filed a motion to suppress the evidence. Defendant- appellant argued since the officers had neither a warrant nor permission to enter the premises by the occupants, the search and subsequent seizure was in violation of his Fourth Amendment right under the United States Constitution. On May 7, 1997, a hearing was held on said motion. The motion to suppress was overruled after the hearing. The trial began on May 15, 1997. The state presented the testimony of Officer Roger Murray who stated that on December 15, 1996, he received a radio response call to 1281 Spruce Court in Cleveland, Ohio. A woman had called the police station requesting assistance in getting three males out of her apartment. She claimed they were cutting up drugs and when she asked them to leave, they refused. She also stated that one of the individuals may be carrying a weapon. When Officer Murray arrived he was joined by Officers Santiago and Barber. The female again explained to the officers why she had called and then led them to her apartment. She opened her apartment door and both Officers Murray and Santiago testified that they observed one male sleeping on the couch in the living room and two -3- men sleeping on her bed in her bedroom. Defendant-appellant was identified as one of the males sleeping on the bed. The officers went into the bedroom, identified themselves and conducted a pat-down search for weapons. Officer Murray had one of the individuals up against the wall when he spotted a couple of packets of narcotics lying on top of the bed. At the same time, Officer Santiago searched defendant-appellant and found a large bag in defendant-appellant's right pocket that appeared to be filled with crack cocaine. Officer Santiago could not fit the bag in his pocket so he placed it on the dresser. In the other pocket, he found a pager and a sandwich bag filled with what appeared to be marijuana. Officer Santiago handcuffed defendant-appellant and placed the items on the dresser. When Officer Murray went to get the drugs off the bed, the male he had searched pushed him from behind and attempted to escape. Officer Santiago tackled him near the doorway and a struggle ensued. The struggle was carried out into the parking lot area of the apartment complex. Officer Murray left defendant- appellant in the bedroom to go and assist Officer Santiago. In the parking lot, the man eventually broke free and escaped. Officer Murray immediately went back to defendant-appellant and found him in another room attempting to escape. Defendant- appellant had gotten his hands in front of him and another struggle ensued. Eventually, Officer Murray secured defendant-appellant and placed him in a zone car. When the officers went back into the bedroom, they noticed the drugs on the dresser were missing. -4- Officer Murray believed defendant-appellant had flushed them down the toilet.1 When the officers went back to the zone car to put defendant- appellant's handcuffed hands behind him, they also found a metal pipe normally used to smoke crack. Officer Murray testified that he checked the back seat of his patrol car at the beginning of his shift and there was no pipe in the back seat at that time. Moreover, he testified that defendant-appellant was the only individual in the back seat since his shift began. Finally, the drugs that Officer Murray had found on the bed were submitted to the forensics laboratory and they tested positive as cocaine. After their Crim.R. 29 motion for acquittal was denied, defense counsel called defendant-appellant to testify. Defendant- appellant stated that he was given permission to sleep in the woman's apartment in exchange for ten dollars ($10.00). He awoke and was heading for the bathroom when the police came in and told him to get up against the wall. He stated that they told him they were there on a domestic violence call. Defendant-appellant testified that after he was handcuffed, the other male escaped and the officers chased him out of the apartment. At that point he got the handcuffs in front of him and tried to leave through a window. Defendant-appellant testified that Officer Murray came back and assaulted him while he was on the 1It was at this time the officers woke the third male who was still sleeping on the couch. He was arrested and charged with aggravated burglary. -5- ground. Defendant-appellant testified that he did not have a crack pipe or any drugs on him that night. The jury found defendant-appellant guilty of possession of drugs. Defendant-appellant was sentenced to serve one year to be run consecutively with a sentence he received in another case. Defendant-appellant timely filed this appeal. Defendant-appellant's first assignment of error states: I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY AGAINST THE APPELLANT FOR POSSESSION OF CRACK COCAINE. Defendant-appellant argues his guilty verdict is based upon insufficient evidence. Specifically, defendant-appellant argues that the state failed to meet its burden in establishing defendant- appellant used drugs, possessed drugs, or was even aware the drugs were lying on the bed. Simply sleeping on a bed upon which drugs were found, he argues, is insufficient to establish constructive possession. We disagree. 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. -6- More recently, in State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Ohio State Supreme Court stated the following with regard to the sufficiency as opposed to the manifest weight of the evidence: With respect to sufficiency of the evidence, sufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A)(motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain the conviction). In essence, sufficient is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Defendant-appellant was convicted of possession of drugs in violation of R.C. 2925.11 which states in pertinent part: (A) No person shall knowingly obtain, possess, or use a controlled substance. (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. The penalty for the offense shall be determined as follows: * * * (C) If the amount of the drug involved exceeds twenty- five grams but does not exceed one hundred grams of cocaine that is not crack cocaine or exceeds five grams but does not exceed ten grams of crack cocaine, possession of cocaine is a felony of the third degree and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the third degree. -7- We further note that "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 and control may be proven by circumstantial evidence alone. State v. Taylor (1997), 78 Ohio St.3d 15. Circumstantial evidence that the 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. In this case, the state presented the testimony of two arresting officers who responded to a phone call from a woman who claimed that three men were in her apartment cutting up drugs and refused to leave. When the police arrived, they testified that they went into the bedroom and observed defendant-appellant, along with another individual, sleeping on a bed. When they removed defendant-appellant from the bed to conduct a pat-down search, the officers observed a couple of packets of narcotics lying on top of the bed. Taken in light most favorable to the state, we find the drugs were in close enough proximity to defendant-appellant for -8- him to exercise control over them. Accordingly, we find the testimony of the officers sufficiently establishes defendant- appellant maintained constructive possession of the drugs. Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE VERDICT CONVICTING THE APPELLANT OF POSSESSION OF CRACK COCAINE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues his conviction is against the manifest weight of the evidence. Specifically, he argues that based upon a question from the jury, it can only be inferred that they found him guilty of possession of the drugs which were supposedly flushed down the toilet and not the drugs which were found on the bed and present at trial. Moreover, a finding that the drugs on the bed were in the possession of defendant-appellant could only be based upon speculation. 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 (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when -9- 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, it held that unlike a reversal based upon the insufficiency of the evidence, an 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 a panel of a court of appeals is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three judges necessary for a reversal based upon the manifest weight of the evidence. See Thompkins, supra. 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 (1967), 10 Ohio St.2d 230. As we have previously stated in State v. Thompson April 23, 1998 Cuyahoga App. No. 72044, unreported: The fact finder, being the jury (in this 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 witness and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a herculean endeavor. See, also, State v. Tyler (1990), 53 Ohio St.3d 24, 33. -10- Upon application of the standards enunciated in Tibbs and keeping in mind that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact, the court in 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 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. In this case, while the jury was deliberating, they proposed the following question to the court: If you believe the officer's testimony and you believe that the drugs which disappeared really existed and had been in Bell's possession, but you are not sure about the drugs in front of us, is that enough to concluded that Bell is guilty? The trial court responded, after consultation with counsel, that the jury had enough evidence and law in front of them to resolve that question. Thereafter, in response to another question, the court again defined possession and constructive possession. The jury then returned to their deliberations and subsequently returned a verdict of guilty of possession of crack cocaine as charged in the indictment. It is clear the jury believed the testimony of the officers as opposed to defendant-appellant who denied knowledge and/or -11- possession of any drugs. While there may have been some confusion as to what constitutes possession, the trial court cleared up that confusion with its answer. After the court reiterated the definitions of possession and constructive possession, the jury found defendant-appellant guilty of possessing the crack cocaine that was found on the bed as charged in the indictment. After a review of the entire record, we find there was sufficient credible evidence which, if believed, would convince the average mind of defendant-appellant's guilt beyond a reasonable doubt. Accordingly, the jury did not create a manifest miscarriage of justice requiring a new trial. Defendant-appellant's second assignment of error is not well taken. 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 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. PATRICIA A. BLACKMON, A.J. AND JOSEPH J. NAHRA, 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 .