COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73578 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARVIN LOPER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 17, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-350,389 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor JOCELYN CONWELL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 KENNETH A. ROCCO, J.: Defendant-appellant Marvin A. Loper appeals from his convic- tions after a jury trial for drug trafficking, two counts of drug -2- possession, and possession of criminal tools. Appellant contends the trial court erred in denying both his motion for a trial separate from that of his co-defendants and his motion for acquittal on the charge of possession of criminal tools. Since this court finds joinder was appropriate and finds the evidence adduced by the state was sufficient to support appellant's conviction for possession of criminal tools, appellant's convic- tions are affirmed. Appellant's convictions stem from an incident that occurred on the evening of February 2, 1997. At approximately 7:00 p.m., Cleveland Police Officers Wayne Leon and Jeff Follmer of the department's Third District decided to investigate some complaints of drug activity in the area of 4600 Case Court. They therefore parked their zone car in the vicinity and proceeded to an abandoned building across the street from the address that had been the subject of the complaints. The officers entered the abandoned building, went to a second-floor room facing Case Court, and posi- tioned themselves to be in the shadows while they watched through an open window. From their vantage point approximately forty-six feet away from the entrance to the first-floor apartment located at 4630 Case Court, the two officers could see both the front door of the apartment building and, through a window, into the building to the short stairway and the hall that led to the apartment. During the one hour and fifteen minutes they watched, the officers saw what they believed to be fifteen to twenty drug transactions take place. -3- They observed one man, later identified as Anthony Elder, standing outside of the building. Elder acted as a "flagger"1 and a "look out," i.e., he "would wave down" cars or persons passing by. If the potential customer was in a car, Elder would direct the driver to a place to park. Elder would have a brief conversation with the potential customer, then he would either direct the customer to the building or take what appeared to be a cigarette or "joint" from the customer, then "run" it up to the building and into the hallway. Inside, the item would be handed by either Elder or the customer to one of four other men who stepped out of Apartment 4630 into the hallway. These other men were later identified as appel- lant Loper and Miley Slaughter, Maurice Robinson and Michael Walker. Each man held a small glass vial when he exited the apartment. The cigarette or joint was dipped into the vial, then returned to either Elder or the customer. Elder reconveyed items to customers waiting in cars. Money was exchanged for this service before the customers left. From their experience as police officers, Leon and Follmer believed the vial contained PCP.2 They observed the activity long enough to ascertain that only the five men were involved in these transactions, then returned to their car. 1Quotes in this portion of the opinion indicate testimony given by a witness at appellant's trial. 2"PCP" is an abbreviation used for the chemical phencyclidine, a controlled substance listed as a "Schedule II" drug in R.C. 3719.41. -4- The officers re-positioned their car closer to the apartment. They then exited it and quickly moved to the corner of the building. When the officers peered around the corner, they observed Elder at the door to the building, directing a woman into the hallway. Believing they were witnessing the commencement of another drug transaction, the officers ran toward Elder. When Elder saw the officers, he shouted "po-po."3 Leon thereupon detained Elder while Follmer continued into the building. As Follmer entered, he saw appellant at the top of the stairs with the woman. Appellant held a vial and a "white object" in each hand. Follmer also smelled a strong odor, which in his experience was associated with PCP. Before Follmer could reach him, appellant ran through the "halfway open" door of the apartment. Follmer briefly glimpsed "several vials and a white object *** close to the door, inside" the apartment before appellant disappeared, "slamming" the door prior to the point at which Follmer reached him. Follmer believed the suspects would exit the apartment through a window. He therefore returned outside and, as Leon remained with Elder in his custody to watch the front, ran to the rear of the building. Follmer reached it in time to see the four other suspects "jumping out the window." Realizing he could not pursue all four, Follmer radioed for assistance. He then followed two suspects who fled together in the direction of other units along Case Court. The two, appellant and 3Testimony established this is slang for "police." -5- Slaughter, ran to the door of a rowhouse but were unable to enter it, thus enabling Follmer to apprehend then. When Follmer patted down appellant, he discovered a vial in the waistband of appel- lant's trousers. Subsequent laboratory analysis established the vial contained 9.71 grams of PCP. In response to Follmer's radio broadcast, two nearby patrol units of the Cleveland Metropolitan Housing Authority's ("CMHA's") police force immediately converged on the area. Their quick action led to the capture of both Walker and Robinson, both of whom were returned to the scene for identification. The arrival of the CMHA police also enabled the officers to enter the apartment. In seeking to ascertain there was no imme- diate danger posed to or from anyone who might remain inside, the officers observed on the floor of the apartment, in plain view, a scale and eight vials containing a substance that later tested positive as 2.77 grams of PCP. Appellant and the other suspects thereupon were arrested and transported to police headquarters. During the "booking" proce- dure, the officers discovered Slaughter was carrying $732 in currency. Subsequently, a four-count indictment was issued against appellant; appellant was indicted together with Elder, Slaughter, Walker and Robinson on counts one, two and four. Respectively, those counts charged the following violations: R.C. 2925.03, trafficking in PCP; R.C. 2925.11, possession of PCP in an amount less than bulk; and R.C. 2923.24, possession of criminal tools, to -6- wit: money and pager. 4 Count three of the indictment pertained only to appellant, charging him with violation of R.C. 2925.11, possession of PCP in an amount exceeding the bulk, but less than five times the bulk amount, (comma sic). Appellant entered a plea of not guilty to the charges and was assigned counsel to represent him. On July 29, 1997 the trial court issued a journal entry scheduling the case for trial on August 25, 1997. On August 22, 19975 appellant filed a motion to sever his trial from that of his four co-defendants. On August 25, 1997 the case was called for trial. The trial court considered appellant's motion for severance on the record before denying it. Thereafter, during its case-in-chief, the state presented the testimony of five witnesses: Leon, Follmer, two of the CMHA officers involved in the apprehension of the suspects, and the forensic examiner of the vials found on the night of the incident. The state also was permitted to introduce into evidence, inter alia, the vials themselves and the money obtained from defendant Slaughter. The trial court subsequently overruled each defendant's motion for acquittal. 4The trial court ordered the pager struck from the indictment at the conclusion of the presentation of the defense testimony at trial. 5The record reflects appellant filed an amended motion on the day of trial. -7- In his defense, appellant presented the testimony of Ronald Smith. Smith had been hired by appellant to measure the distance between the abandoned building from which Leon and Follmer testified they had observed the drug transactions and the apartment building at Case Court. Appellant's co-defendants Elder, Walker and Robinson each testified in his own defense. In essence, appellant's three co- defendants all stated they were merely bystanders who had been apprehended in the police sweep of the area; each testified he had no knowledge of any drug activities taking place there. Appellant's remaining co-defendant, Slaughter, presented neither testimony nor evidence. Following closing argument, the trial court gave the jury its instructions,including an instruction on complicity. None of the defendants objected to any portion of the trial court's instruc- tions. The jury ultimately returned a verdict of guilty on all four counts against appellant. Appellant's co-defendant Slaughter also was found guilty of the three charges against him. Elder, Walker and Robinson all were acquitted of the charges. Subsequently,the trial court sentenced appellant as follows: on counts one and two, terms of incarceration of one year each with driving privileges suspended for one year ; on count three, a three-year term of incarceration, driving privileges suspended for three years and a $5000 fine; and on count four, a term of -8- incarceration of one year. The trial court further ordered all the terms to be served concurrently with each other. This court permitted appellant to file a delayed appeal of his convictions. Appellant presents two assignments of error for review; his first states: MARVIN LOPER WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE A JURY THAT WAS FREE FROM THE INFLUENCE OF OUTSIDE CONCERNS, WHEN HIS PRE-TRIAL MOTION FOR SEVERANCE FROM PREJUDICIAL JOINDER WAS DENIED. Citing Crim.R. 14, appellant argues his constitutional right to a fair trial was compromised by the trial court's failure to grant his motion for a trial separate from that of his co-defen- dants, contending the jury was improperly influenced by his co- defendants' strategy of point[ing] the finger at the others. This argument is unpersuasive. It first must be noted that appellant's motion was untimely. Pursuant to Crim.R. 12(C) and (B)(5), his request for severance was required to be filed within thirty-five days after arraignment or seven days before trial, whichever is earlier. (Emphasis added.) The record reflects appellant filed his motion for severance only three days prior to the scheduled trial date; moreover, he amended the motion on the day of trial. Therefore, the trial court properly could overrule appellant's motion on this basis alone. See, e.g., state v. Moody (1978), 55 Ohio St.2d 64; cf., State v. Malin (1993), 83 Ohio App.3d 394; Akron v. Milewski (1985), 21 Ohio App.3d 140. -9- Additionally, joinder of defendants, which is expressly per- mitted by Crim.R. 8(B), is favored in the law because it conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries. State v. Thomas (1980), 61 Ohio St.2d 223 at 225. Thus, the trial court's denial of a motion for severance will be upheld unless appellant can demonstrate the trial court abused its discretion. State v. Franklin (1991), 62 Ohio St.3d 118; State v. Torres (1981), 66 Ohio St.2d 340. A review of the record in this case fails to indicate any abuse of discretion occurred. When appellant raised the issue of joinder, it was the state's position that evidence of the crimes was simple and direct. See State v. Roberts (1980), 62 Ohio St.2d 170. Since the state had only five witnesses, the incident occurred at only one location, the time period during which the incident took place was less than two hours, and each of the defendants was alleged to have played a role in the incident, the state's position was justified. Id.; State v. Brooks (1989), 44 Ohio St.3d 185. Moreover, although appellant claims his defense and that of his co-defendants was antagonistic, a review of their testimony does not support his claim. Elder, Walker and Robinson all stated they did not see appellant either dipping cigarettes into a vial or conducting any drug transactions. State v. Daniels (1993), 92 Ohio App.3d 473. Appellant's co-defendants maintained they neither -10- observed nor took part in criminal activity prior to their arrests. In view of this direct evidence, appellant cannot now raise a few comments made by his co-defendants' counsel during closing argument to the level of reversible error. Zafiro v. United States (1993), 506 U.S. 534. For these reasons, the trial court neither erred nor abused its discretion when it refused to grant appellant's motion for a separate trial; therefore, its action did not constitute a denial of appellant's right to a fair trial. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: MARVIN LOPER WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR POSSESSING CRIMINAL TOOLS, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant argues the state failed to adduce sufficient evidence to prove the element of possession necessary to sustain his conviction for violation of R.C. 2923.24. This court dis- agrees. The test for sufficiency of evidence was stated by the court in State v. Martin (1983), 20 Ohio App.3d 172, as follows: 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. -11- (Emphasis added.) See, also, State v. Thompkins (1997), 78 Ohio St. 380. A challenge to the sufficiency of evidence is a matter of law to be determined by the trial court based upon only a favorable interpretation of the evidence produced by the state. Therefore, sufficiency requires this court view the evidence adduced at trial in the light most favorable to the prosecution and determine whether a rational factfinder could have found all the material elements of the offense beyond a reasonable doubt. State v. Bridgeman(1978), 55 Ohio St.2d 26; State v. Jenks (1991), 61 Ohio St.3d 259. Proof of guilt may be based entirely on circumstantial evidence. Id.; State v. Franklin, supra at 124. In this case, the state sought to prove all of the defendants actively were involved in aiding and abetting the operation of a PCP business out of the apartment located at 4630 Case Court. Officers Leon and Follmer both testified they observed customers arriving, being serviced and exchanging money for the PCP they were receiving. Both further testified they saw each of the five defendants taking a role in the operation. When ultimately con- fronted by Follmer, appellant fled, together with Slaughter. Leon stated he observed every defendant except Elder accept money; on cross-examination, he indicated that a dip cost approximately $35. Since both officers testified they observed fifteen to twenty transactions take place during the time they watched, the money in excess of $700 found on Slaughter's person after his capture was consistent with their testimony. This was -12- sufficient circumstantial evidence to establish appellant's active involvement in the operation and, therefore, both his and Slaugh- ter's joint possession of the illegal gains. See, e.g., State v. Chapman(1986), 21 Ohio St.3d 41; State v. Daniels, supra; State v. Elkins(May 7, 1981), Cuyahoga App. No. 42933, unreported; State v. Webb(Apr. 6, 1989), Cuyahoga App. No. 55115, unreported; State v. Burford(Dec. 9, 1993), Cuyahoga App. No. 64432; unreported; State v. Soto (Jan. 22, 1998), Cuyahoga App. No. 72062, unreported. Since the evidence presented, when construed in a light most favorable to the state, could convince a rational factfinder that all the material elements of the offense of possession of criminal tools were established, appellant was not denied his liberty without due process of law. State v. Jenks, supra. Accordingly, appellant's second assignment of error is also overruled. Appellant's convictions are affirmed. -13- 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 Court of Common Pleas 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. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE KENNETH A. ROCCO 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 .