COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73572 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND RONNIE L. MOORE, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-351389 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ELEANORE HILOW Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 -2- KARPINSKI, J.: Defendant-appellant, Ronnie Moore, appeals from a jury verdict finding defendant guilty of possession of more than ten grams but less than twenty-five grams of crack cocaine. On appeal, defendant argues that this judgment is against the manifest weight of the evidence. For the reasons that follow, we find no merit to this argument and affirm the judgment of the trial court. The state of Ohio presented four witnesses. Officer Landry M. Simmons, who at the time of the incident was a police officer with the Cuyahoga County Municipal Housing Authority, testified that on December 12, 1996 he was patrolling the Riverview apartments when he saw defendant and two other young men walking down the street. Simmons heard one of the boys say, Watch out for the police. (Tr. 13). Simmons then observed defendant circle a brick wall and place a small black object in the crack of the wall. Simmons detained the three boys for questioning while a fellow officer, Officer Mary McGroeder, retrieved the object, which contained 40 rocks of suspected crack cocaine. Thereupon, defendant was arrested. Once defendant was taken in, the CMHA police discovered eleven more rocks of suspected crack cocaine as well as $200.00. Officer McGroeder's testimony corroborated Officer Simmons's. She stated that after the three men were alerted to the patrolling officers, defendant passed around the brick enclosure, reached over, and paused momentarily, before responding to Officer Simmons's attempt to question him. While Simmons detained the boys, McGroeder went to the spot on the wall where defendant had -3- stuck his hand out as if he were reaching for something. (Tr. 23.) In one of the indentations where one brick protruded over another she recovered a baggie containing 40 rocks of suspected crack cocaine. She later learned that after defendant was taken into custody, the police recovered eleven rocks of suspected crack cocaine in defendant's sleeve. The final two witnesses for the state were Patrolman Ramsey and Cynthia Dakota of the Scientific Investigation Unit, SIU. Ramsey testified that after defendant was transported to the Second District, the police recovered eleven rocks of suspected crack cocaine from his sleeve. Dakota testified that the substances seized were, indeed, crack cocaine. The amount recovered from the bag in the wall amounted to 9.36 grams and the amount recovered from defendant's sleeve amounted to 2.96 grams. Defendant presented three witnesses. Garrett Chapman testified that he was one of the boys detained by the officers. He stated that he was familiar with Officers Simmons and Ramsey because they had harassed them in the past and tried to pin untrue charges upon him. Specifically, Chapman testified that he never saw defendant go behind a brick wall or hide any drugs. He also stated that McGroeder was behind the wall for ten minutes before returning with the baggie containing crack. Defendant testified that, on the date in question, he was walking with his two friends when the police called them over. He stated that after the police searched him, Officer McGroeder went around the brick wall and returned with the bag containing the -4- crack cocaine. Defendant admitted possessing the eleven rocks of crack cocaine found on his person, but specifically denied possessing the bag of crack cocaine found in the brick wall. The jury found defendant guilty of drug possession. The jury specifically found that defendant possessed more than ten grams but less that twenty-five grams of crack cocaine. In other words, the jury found that defendant possessed both the drugs found on his person and the drugs found in the bag in the wall. The amount of crack cocaine caused this offense to be a felony of the second degree. Defendant timely appealed and raised the following assignment of error. I. RONNIE MOORE'S CONVICTION FOR POSSESSING MORE THAN TEN GRAMS BUT LESS THAN TWENTY-FIVE GRAMS OF CRACK COCAINE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant argues that his conviction was against the manifest weight of the evidence. Specifically, defendant admits to possessing the crack cocaine found in his sleeve but argues that the jury erred in determining that he possessed the crack cocaine found in the brick wall. This argument lacks merit. In State v. Thompkins (1997), 78 Ohio St.3d 380, the Supreme Court of Ohio discussed the standard to apply when a court reviews a claim of insufficient evidence: [T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. 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 -5- 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 a conviction). In essence, sufficiency 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. Id. at 386-387. In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice. The state presented the testimony of two officers who (1) observed defendant act suspiciously and announce the presence of the police, (2) saw defendant gesture as if he were placing something in the crack of a brick wall, and (3) recovered a bag of crack cocaine on a protruding brick in a wall. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Thus we decline to question the trial court's assessment of the credibility of these two officers. Moreover, the fact that defendant admitted possession of the crack cocaine in his sleeve sheds a doubtful light on his claim that he did not possess the bag of crack cocaine as well. Accordingly, defendant's lone assignment of error is overruled. Judgment affirmed. -6- 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, P.J., and TERRENCE O'DONNELL, J., CONCUR. 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 .