COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72868 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY v. : : AND CLAYTON BROWN : : OPINION Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Cuyahoga County Common Pleas Court, Case No. CR-349062 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LINDA R. TRAVIS, Assistant The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: LARRY W. ZUKERMAN Zukerman & Associates 2000 E. 9th St, Suite 700 Cleveland, Ohio 44115 -2- PER CURIAM: In this appeal which we have assigned to the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25, Clayton Brown contests a judgment of the common pleas court, entered pursuant to a bench trial, finding him guilty of possessing 6.22 grams of crack cocaine, alleging it is not supported by sufficient evidence and is against the manifest weight of the evidence. After a thorough review of the record, we reject these assignments of error and affirm the judgment. The record in this case reveals that around 5:30 p.m. on February 18, 1997, Brown operated his 1987 Buick northbound on Lee Road in Cleveland with his cousin Reginald Poole in the car. At that time, Cleveland Police Officers McKay and Connors, traveling southbound on Lee Road, made a U-turn so as not to leave the city, and entered northbound traffic four or five cars behind Brown. The officers saw Brown accelerate to nearly 50 mph and begin to weave through traffic, which alerted them, and they began to follow the car and saw it turn right from the left lane, onto Tarkington Avenue, thereby cutting off all traffic. Next, the officers saw the occupants of Brown's vehicle lean down and over inside the car, and then saw Poole throw a bag containing 6.22 grams of crack cocaine out of the passenger window, which they recovered, and then activated their emergency flashing lights to stop the vehicle. Brown turned onto East 173rd Street, pulled his car to the curb, and jumped out, shaking and nervous, and the officers -3- arrested both Brown and Poole, and discovered each had a pager. After informing them that the vehicle would be towed and possibly forfeited, Poole asked whether that could be avoided if he admitted to ownership of the crack cocaine. Upon learning that the car would be towed regardless of his admission, Poole stated the crack cocaine did not belong to him. Following Brown's arrest, the grand jury indicted him for possession of the crack cocaine; he waived his right to a jury trial, and the court thereafter commenced a bench trial where the state presented only the testimony of Officer Robert McKay; the defense then presented the testimony of Reginald Poole, who testified that he had been at Brown's home that day, left for a while to purchase the crack cocaine on Lee Road, and then returned to Brown's home, and the two, carrying pagers, left in Brown's car. He further admitted that he sells drugs on a daily basis using a pager, but that he exclusively possessed the crack cocaine, that Brown did not know of his possession or that he had it concealed in his jeans. He also testified that he did not recall Brown making a right turn from the left lane, that Brown did not attempt to evade the police officers, and Brown did not see him open the window and throw the crack cocaine from the car. At the close of the evidence, the court returned a verdict finding Brown guilty and he now appeals raising two assignments of error for our review which allege his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence, and state: I. THE DEFENDANT-APPELLANT'S CONVICTION FOR POSSESSION OF DRUGS WAS BASED ON LEGALLY -4- INSUFFICIENT EVIDENCE AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT-APPELLANT KNOWINGLY POSSESSED THE QUARTER-SIZED AMOUNT OF CRACK COCAINE. II. THE DEFENDANT-APPELLANT'S CONVICTION FOR POSSESSION OF DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT-APPELLANT POSSESSED THE QUARTER- SIZED AMOUNT OF CRACK COCAINE. Brown contends his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence, urging that the state failed to prove beyond a reasonable doubt he had either actual or constructive possession of the crack cocaine. The state maintains that his conviction is supported by sufficient evidence and is not against the manifest weight of the evidence, contending that the evidence, when considered, proved beyond a reasonable doubt that Brown possessed the crack cocaine on February 18, 1997. The issues then presented for our review are whether Brown's conviction is supported by sufficient evidence and whether it is against the manifest weight of the evidence. Crim.R. 29(A) provides that a conviction shall be supported by sufficient evidence, and states in relevant part: * * * The court upon motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. We recognize the difference between a challenge regarding the sufficiency of the evidence and one with respect to the manifest -5- weight of the evidence. The test for sufficiency of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319; * * *. This test has been most recently recognized in State v. Taylor (1997), 78 Ohio St.3d 15, where the court stated at 18: * * * the relevant inquiry is whether, after reviewing 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 * * *. Thus, the sufficiency test raises a question of law for the court to decide regarding whether the state has put forth evidence required to prove each of the essential elements of the offense beyond a reasonable doubt, prior to the time the jury may consider the case. In applying this test, the court should consider the evidence and all reasonable inferences drawn therefrom in a light most favorable to the state. In conducting this review, we note the court may not weigh the evidence to resolve the sufficiency question. Only after resolving the question of sufficiency and concluding the evidence is sufficient to support a conviction for the offense, does the court consider whether a judgment is against -6- the manifest weight of the evidence. The test for manifest weight is also found in Martin, supra, at 175: 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 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42; * * *. In State v. Thompkins (1997), 78 Ohio St.3d 380, the court quoted this test verbatim from Martin, supra, and also stated in relevant part at 387: * * * 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. Weight is not a question of mathematics, but depends on its effect in inducing belief. In this case, regarding Brown's challenge to the sufficiency of the evidence, the state assumed the burden to present evidence which, viewed in a light most favorable to the state, would be sufficient for the court to find, beyond a reasonable doubt, all the elements of drug possession as provided in R.C. 2925.11: -7- (A) No person shall knowingly obtain, possess, or use a controlled substance * * *. Stated specifically, the state assumed the burden to demonstrate that Brown possessed the crack cocaine which Poole threw from his car and which the police recovered prior to his arrest. R.C. 2925.01(K) states: 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. In State v. Barr (1993), 86 Ohio App.3d 227, the court defined constructive possession at 235: * * * To place a defendant in constructive possession, the evidence must demonstrate that the defendant was able to exercise dominion or control over the items. See State v. Wolery (1976), 46 Ohio St.2d 316; State v. Brooks (1996), 113 Ohio App.3d 88. Dominion and control may be proven by circumstantial evidence alone. See State v. Jenks (1991), 61 Ohio St.3d 259. Further, joint possession exists when two or more persons together have the ability to control an object, exclusive of others. See U.S. v. Taylor (6th Cir. 1995), 66 F.3d 327. Accord Ker v. California (1963), 374 U.S. 23. Here, the evidence demonstrates that shortly after Poole purchased crack cocaine, he and Brown drove northbound on Lee Road, each carrying a pager, and immediately after the police officers -8- entered traffic behind them, Brown accelerated the car to nearly 50 mph, began weaving through traffic and made a right turn from the left lane. The evidence also demonstrates that Brown and Poole made a furtive gesture, after which Poole threw a package containing crack cocaine from Brown's moving vehicle, and that when the officers stopped them, Brown emerged from the car nervous and shaking. The evidence further demonstrates that Poole initially denied ownership of the crack cocaine. Viewing this evidence in a light most favorable to the state, Brown's efforts to flee immediately after the police car made a U- turn by accelerating up to 50 m.p.h. and by violating traffic laws leads to an inference that he had some knowledge of a reason to flee from the police. That escape effort being unsuccessful, Officer McKay testified Brown and Poole began leaning forward in the car and next observed Poole throw a package from the vehicle. From this activity, one could reasonably infer Brown's ability to control or exercise dominion over the package, permitting a conclusion that he had joint possession of the crack cocaine. Thus, the state presented evidence from which any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt and, accordingly, this assignment of error is overruled. Regarding the issue of manifest weight, we recognize Poole testified at trial that he sells crack cocaine on a daily basis using a pager, that on February 18, 1997 he left Brown's home, purchased crack cocaine, and upon returning to Brown's house, he -9- and Brown left together in Brown's vehicle; also, that only he possessed the crack cocaine, that Brown did not know he had it as he kept it in his jean pocket, and that Brown did not know either that he had rolled the window down or that he had disposed of the package containing the crack cocaine, or even that Brown had accelerated to almost 50 m.p.h. or had turned right from the left lane onto Tarkington Avenue. Contrasting Poole's testimony with that of Officer McKay, both the trial court and our court upon review, have the opportunity to consider the credibility of the witnesses and the weight of the evidence. In reviewing Poole's testimony, portions of it are incredible. Accordingly, after reviewing the entire record, weighing the evidence and all reasonable inferences drawn therefrom and considering the credibility of the witnesses, we cannot say that in resolving the evidentiary conflict here, the trier of fact clearly lost its way and created such a manifest miscarriage of justice. Therefore, Brown's conviction is not against the manifest weight of the evidence, this assignment of error is overruled, and we affirm the judgment of the trial court. Judgment affirmed. It is ordered that appellee recover of appellant 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 -10- 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. JAMES D. SWEENEY, CHIEF JUSTICE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). .