COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73055 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : DONNIE ALLEN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-349597 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Erika Ritt Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patricia Koch Windham SCHUSTER & SIMMON The Bevelin House 2913 Clinton Avenue Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Donnie Allen, appeals his conviction of possession of cocaine, in an amount less than five grams, claiming manifest weight and insufficient evidence. On April 15, 1997, Allen was indicted for one count of possession of crack cocaine, a Schedule II drug, in an amount greater than five grams but less than ten grams, one count of possession of criminal tools, which was dismissed by the State prior to trial, and, one count of possession of a weapon while under a disability. A jury trial commenced and appellant was found guilty of the lesser included offense of possession of crack cocaine in an amount less than five grams. Appellant was then sentenced to one year in the Lorain Correctional Institute. Detective Jeffery Sampson testified that appellant and his girlfriend, Shearon Winston, resided in a home located at 2357 East 84th Street, Cleveland, Ohio. In December of 1996, the Cleveland Police Narcotics Unit began surveillance on the home in response to complaints of drug activity. During surveillance, Detective Sampson noticed an unusual pattern of activity at the appellant's home that was indicative of drug activity. As a result, using a reliable informant, Sampson arranged for a purchase of crack cocaine to be made from the home. A laboratory test confirmed that the purchased substance was indeed crack cocaine, and it was upon this information that a search warrant was obtained. Detective Sampson went on to testify that on December 14, 1996, a search of the premises was conducted. The results of this -3- search by the Narcotics Unit of the Cleveland police included the following: (1) 5.29 grams of crack cocaine found in a jacket in the living room; (2) various drug paraphernalia including razor blades and packaging material; (3) a loaded .38 caliber gun; and (4) .04 grams of crack cocaine seized from a pouch behind the front passenger seat of appellant's car. Kristen Koeth, an employee of the Cleveland police department, forensic division, qualified as an expert, testified that the product seized by the police and found in the appellant's car tested positive for cocaine with a weight of 0.04 grams. Further, the substance recovered from the jacket located in appellant's home also tested positive for cocaine with a weight of 5.29 grams. On cross-examination she admitted that she did not test for fingerprints so she could not say for certain that appellant had ever held the items in question. David Mayer, a sergeant in the narcotics unit of the Cleveland police, testified that his duties include overseeing the officers in his unit which includes Detective Sampson. On December 14, 1996, as the senior officer on the scene of appellant's home, along with participating in the search he assigned the men in his patrol to duties for the execution of the warrant. During the search of the bedroom, he discovered a razor blade with suspected cocaine residue on it. He then went on to identify the photographs of the apartment and the aforementioned items discovered within. Detective James E. Kooser, a police officer presently assigned to the narcotics unit, testified that he was also a supervisor of -4- the search of appellant's home and operated in the capacity of an affiant the person who avers or swears to the facts in the search warrant. As the inventory officer, he was the person who rammed the back door and was the last to enter the apartment. His duty during the search was to log on the inventory list every item that was discovered by his team and photographed. He then was shown the inventory list, identified it, and mentioned that it was witnessed by Detective Sampson and signed for by Donnie Allen, in receipt. Shearon Winston, appellant's girlfriend, testified that she had previously pled guilty to possession of drugs and a firearm as a result of the search of her home on December 14, 1996. She went on to say that she was recently released from the Hitchcock Home for Women, a rehabilitation center, for her addiction to crack cocaine. She stated that she had just moved to 2357 East 84th Street in December of that year, and in the move had placed most of her personal items in boxes. Among these items was the .38 caliber weapon discovered on the afternoon of the 14th. She further claimed that although Allen possessed a key to her home, he was not a resident, and maintained a separate residence in his parent's home on Elizabeth. The reason Allen's name appeared on a gas bill for her home was because the previous tenants of her home had used her name for the account, which was now in arrears. Winston went on to say that earlier in the day on December 14th, and outside the presence of Allen, she contacted her dealer , and purchased $250 worth of crack cocaine. After receiving this product in solid form, she used a razor blade to -5- cut up the cocaine into more user friendly pieces. She then went on to identify the evidence bag containing 5.29 grams of cocaine as the bag in which she placed the pieces of cocaine after she cut it up, which she subsequently placed in her blue-grey and black jacket. She then identified the jacket from which the 5.29 gram sample was elicited by way of photograph. Winston also stated that at no point did Allen give her money to purchase drugs or instruct her to purchase. As a matter of fact, Allen was adamantly opposed to her use of drugs and threatened to leave her if she continued. As a result, Winston was forced to hide her habit from him and place the drugs in places he would not find them. One of her favorite hiding places was the backseat pouch, located on the back of the passenger side seat in Allen's car. On cross-examination Winston admitted that in pleading guilty to possession, she pled to a quantity less than one-gram, and at the time of plea did not represent to the judge that all of the drugs confiscated from her home were hers. She also went on to say that no sale of drugs has ever occurred from her home because every sale was for her personal use. Further, if the police contend that they had an informant make a purchase from her home, that statement would be incorrect. Villa Mae Allen, appellant's mother, testified that her son Donnie resided in her home located at 9505 Elizabeth, up to and including December 14, 1996. -6- Appellant timely filed his appeal and assigns two errors for our review. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S CRIM.R. 29 MOTION WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE REQUISITE ELEMENT OF POSSESSION. Appellant maintains that the trial court erred in denying his motion for a judgment of acquittal as to drug possession because the evidence presented was insufficient to convict. The Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, sets forth the standard of review to be applied by an appellate court when examining a claim of insufficient evidence when it stated: 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 the 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. See, also, State v. Waddy (1992), 63 Ohio St.3d 424, 588 N.E.2d 819. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element has been proved beyond a reasonable doubt. Crim.R. 29(A). R.C. 2925.11 provides in relevant part: -7- (A) No person shall knowingly obtain, possess, or use a controlled substance. *** (C)(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 of the offense shall be determined as follows: *** (b) If the amount of the drug involved *** exceeds one gram but does not exceed five grams of crack cocaine, possession of cocaine is a felony of the fourth degree, and there is a presumption for a prison term for this offense. The material element of possession is defined in R.C. 2925.01 which provides as follows: (K) 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, 269-270, 267 N.E.2d 787. To uphold a conviction of constructive possession, the evidence must demonstrate that the defendant was able to exercise dominion and control over the contraband. State v. Wolery (1976), 46 Ohio St.2d 316, 332, 348 N.E.2d 351. Moreover, readily usable drugs found in very close proximity to a defendant may constitute sufficient direct and circumstantial evidence to support a conclusion that the defendant had constructive possession of said drugs. State v. Pruitt (1984), 18 Ohio App.3d 50, 58, 480 N.E.2d 499. Since [c]ircumstantial and direct evidence inherently possess the same probative value and are subjected to the same standard of proof, -8- there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Jenks, supra, paragraph one of the syllabus. In addition, this court stated in State v. Young (January 24, 1991), Cuyahoga App. No. 57952, unreported, that [t]he Supreme Court has held that knowledge of the illegal goods on one's property is sufficient to show constructive possession. See, also, State v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, certiorari denied, 459 U.S. 870. However, [w]here there is no indication that the defendant owned or leased the apartment, evidence of his proximity to the drugs alone is not enough to constitute sufficient evidence of possession. Young, supra; See, also, Pruitt, supra. In the instant case, Allen claims that he does not reside at the East 84th Street home and instead lives at home with his parents. However, at the time of the search, appellant was discovered in the home and a gas bill was discovered for the subject property in appellant's name. Moreover, upon further inspection, the police also discovered that Allen had on his person a key chain which contained, among other things, a key to the 84th Street home. This evidence alone is enough to indicate more than mere presence near the drugs. Under the circumstances, it is clear that Allen's close proximity to the readily usable cocaine revealed that it was something over which he exercised dominion and control. Although Allen denied having knowledge of the existence of cocaine in his -9- girlfriend's home, the evidence provided by the state was sufficient to establish that the cocaine was constructively possessed by Allen. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A VERDICT NOTWITHSTANDING THE EVIDENCE BECAUSE THE CONVICTION OF DRUG POSSESSION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that, based upon the totality of the evidence, no reasonable court could have found him guilty of possession. In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, 547, the Supreme Court reaffirmed that the proper standard under which a court should consider questions of manifest weight is set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, where the court stated: 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 102 S.Ct. 2211. Further, in reviewing under the above-mentioned standard, the court should take into account the following factors: (1) awareness that even a reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) the extent to which a witness may have a personal -10- interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. State v. Clark (1995), 101 Ohio App.3d 389, 408, 655 N.E.2d 795. Moreover, this court may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt. State v. Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33, 583 N.E.2d 576. It is essential that a court on review be aware that the weight of the evidence and the credibility of the witnesses are issues that are primarily left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50; see, also, State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; see, also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; State v. Coulter (1992), 75 Ohio App.3d 219, 232, 598 N.E.2d 1324. Here, the record reflects that the court properly instructed the jury and after deliberation the jury convicted appellant. The central issue then presented is was the jury reasonable in reaching this conclusion. After a careful review of the record, assessing the credibility of all of the testimony and considering all reasonable inferences therefrom, we cannot conclude that the jury created a -11- manifest miscarriage of justice in convicting Allen of possession. There was substantial evidence from which the jury could conclude that appellant, within the proximity of the cocaine at the time of discovery, had dominion and control over the substance resulting in his constructive possession. 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 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. JOSEPH J. NAHRA PRESIDING JUDGE KARPINSKI, J., and ROCCO, J., CONCUR. 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 .