COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72836 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : CLIFFORD JACKSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-349787 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: LISA REITZ WILLIAMSON ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN FRANCIS MANLEY, ESQ. Terminal Tower, Suite 936 Cleveland, Ohio 44113 DYKE, J.: Appellant, Clifford Jackson, appeals his conviction for drug possession. For the following reasons, we affirm. -2- Detective Cutlip testified that he has been a Cleveland police officer for seven years, and has made hundreds of drug arrests and drug related arrests. At 2:30 a.m., he and Detective Dillions were patrolling East 116thStreet between Buckeye Road and Kinsman. The police had received complaints about drug activity in the area. Cutlip further testified that he saw appellant and two other men huddled together on the sidewalk near an alleyway. One of the males, Mr. White, passed something to appellant. Cutlip and Dillions pulled up to the curb. The third male, Mr. Freeman, warned appellant and White that the police had arrived. Appellant put something in his mouth and started walking down the alley. Detective Cutlip testified that the alley was very dimly lit. Cutlip testified that Dillions ordered appellant to stop, but appellant kept on walking. Dillions went after appellant. Cutlip remained with the other two suspects. Detective Dillions testified that he has been a Cleveland police officer for sixteen years and has made over one thousand drug and drug related arrests. Dillions also testified that he saw appellant exchange something with another male. When appellant saw the police, appellant put something in his mouth. Appellant kept walking down the alley despite Dillions' orders to stop. Dillions further testified that as he ran up on appellant, appellant's hand went up in the air. Dillions saw two to three pieces of suspected crack cocaine leave appellant's hand and go over an eight foot high chain link fence. Dillions saw the rocks fall on the ground on the other side of the fence. Five to ten -3- minutes later, Patrolman Eastridge recovered the rocks, using a flashlight. The suspected crack cocaine was later tested positive for cocaine. Dillions testified that the alleyway was well lit. Detective Cutlip had testified that the alley was very dimly lit. Dillions explained that when initially coming into the alley, it was dimly lit. On the other side of the chain link fence where appellant threw the drugs, there were bright lights from the back porch of an apartment building. Dillions was questioned as to why Eastridge needed a flashlight to find the drugs. Dillions responded that it was dark on the ground. Dillions was able to see the drugs on the other side of the fence, however. Officer Eastridge testified that he went through the apartment building to the other side of the fence. Detective Dillions pointed to where the crack was thrown. Eastridge shined a flashlight on the ground and immediately saw the crack. Eastridge also testified that the area of the alley near the sidewalk was dimly lit, but was relatively well lit in the courtyard area. Appellant had twenty five dollars on his person, but the money was not entered into evidence. One of the other two suspects had $415 on his person. The other suspect had a pager. The court granted appellant's Crim.R. 29 motion on the indictment for possession of criminal tools. The court denied a similar motion on the drug possession count. I. Appellant's first assignment of error states: -4- THE EVIDENCE PRESENTED BY THE STATE OF OHIO IN ITS CASE IN CHIEF WAS INSUFFICIENT AS A MATTER OF LAW AND PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE THE TRIAL COURT ERRED WHEN IT FAILED TO DISMISS. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if 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 520; State v. Jenks (1991), 61 Ohio St.3d 259. If reasonable minds can reach different conclusions as to whether each material element of the crime has been proved beyond a reasonable doubt, the Crim.R. 29 motion must be denied. See Id. The essential elements of drug possession are the defendant knowingly possessed a controlled substance. R.C. 2925.11. Detective Dillions testified that he saw appellant throw suspected crack cocaine over a fence. The substance was retrieved and tested positive for cocaine. There was sufficient evidence from which reasonable minds could find all the elements of drug possession proven beyond a reasonable doubt. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVI- DENCE. In determining if a conviction is against the manifest weight of the evidence the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility -5- of witnesses and determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, citing Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is: (1) credible or incredible; (2) reliable or unreliable; (3) certain or uncertain; (4)conflicting and contradictory; (5) fragmentary; (6) whether a witness was impeached; and (7) whether a witness had an interest in testifying. State v. Mattison (1985), 23 Ohio App.3d 10. The credibility of a witness is primarily an issue for the trier of fact, who observed the witness in person. State v. DeHass (1967), 10 Ohio St.2d 230. Detective Dillions was the only person who saw appellant with the crack cocaine. Dillions testified that the alley was well lit. This testimony conflicted with Detective Cutlip's testimony that the alley was dimly lit. Dillions explained that the front part of the alley near the sidewalk was dimly lit, while the rear portion of the alley was lit by the apartment porch light. Officer Eastridge corroborated Dillions' testimony as to the lighting conditions. Dillions also explained that the ground on the other side of the fence was dark, requiring Officer Eastridge to use a flashlight. Appellant also argues that Dillions' testimony was incredible, because Dillions testified he could see the rocks on the other side of the fence, while Eastridge had to use a flashlight. Perhaps -6- Dillions knew the location of the rocks because he saw them fall to the ground. Perhaps it was easier to see the rocks from one side of the fence than the other. Dillions' testimony in this regard was not necessarily contradictory or incredible. Dillions' testimony was certain, reliable and corroborated in part by other witnesses. The jury did not lose its way in finding that Dillions' testimony was credible. The verdict was not against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -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. BLACKMON, A.J., AND ROCCO, J., CONCUR. ANN DYKE 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 journalization of this court's announcement of decision by the .