COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73804 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND JOSE JIMENEZ : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : NOVEMBER 25, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case : No. CR-344691 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Thomas M. Cahill, Esq. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Edward S. Wade, Jr., Esq. 75 Public Square Suite 1210 Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Jose Jimenez, defendant-appellant, appeals from his convictions in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-344691, of the offenses of drug possession and possession of criminal tools. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. On October 22, 1996, at approximately 10:15 a.m., Detective Douglas Dvorak of the Cleveland Police Department was conducting an undercover drug operation at the intersection of Pearl Road and Denison Avenue in Cleveland, Ohio. Detective Dvorak observed Carlos Cancel, a known heroin user, at the bus stop on the northwest corner of the intersection. Detective Dvorak noted that four RTA buses pulled up to the stop while Cancel was waiting. Cancel did not board any of the buses but remained at the stop looking nervously up and down the street. (T. 57). After approximately fifteen minutes had elapsed, Detective Dvorak observed a dark blue Oldsmobile 98 arrive at the bus stop and Cancel enter the front passenger seat. Detective Dvorak, believing that a heroin transaction was about to take place, advised other Cleveland Police Officers in unmarked automobiles to stop the Oldsmobile. The vehicle was stopped near the intersection of Denison and Fulton Road. At this point, Detective David Santiago and Lieutenant Gary Gingell approached the vehicle. Cancel, who was in the passenger seat, had a small bag sitting on his lap. The officers asked Cancel -3- to remove the bag for safety considerations. Upon its removal, the officers discovered two packets of heroin between Cancel's legs. Defendant-appellant was the driver of the Oldsmobile 98. Defendant-appellant and Carlos Cancel were then arrested for drug law violations. Once in custody, defendant-appellant signed a consent form allowing the police to search the apartment where he was staying. The subsequent search of the apartment, located at 3420 Walton Street, Cleveland, Ohio, resulted in the discovery of certain personal papers and pay stubs belonging to defendant-appellant and $940.00 in U.S. currency recovered from a shirt pocket located in a walk-in closet. The money consisted of six $50.00 bills, thirty $20.00 bills and four $10.00 bills. As the search was under way, the police officers were approached by an upstairs neighbor identified as Wibel Tajeda. The officers requested to speak with Tejeda who agreed to cooperate. The officers and Tejeda then went to Tejeda's apartment where they spoke with Tejeda and his wife. The Tejedas also signed a consent form agreeing to a search of their apartment. The police discovered eight packets of heroin inside a roll of paper towels located in the kitchen, a bottle of manitol, which is frequently used to process heroin for distribution, and a pestle and bowl which were also discovered in the kitchen. While questioning the Tejedas, the officers learned that related drug paraphernalia may have been located at 3422 Walton, the residence of Ramon Tejeda and Altagrocia Peguero, the elderly -4- parents of Wibel Tejeda. A third consent search was conducted during which the following items were discovered under the front porch of the home: two ink pads and stamps (one stamp had the letters OSIT designating a particular brand of heroin); rubber bands; a scale; two plastic spoons; and a telephone calling card. Wibel Tejeda was then arrested for drug law violations. On November 6, 1996, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a multiple count indictment alleging two counts of possession of heroin in violation of R.C. 2925.11, one count of trafficking in heroin in violation of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. On February 20, 1997, defendant-appellant was arraigned whereupon a plea of not guilty was entered to all counts charged in the indictment. A jury trial commenced on November 10, 1997. At the close of the state's case, the trial court granted defendant-appellant's motion for judgment of acquittal pursuant to Crim.R. 29 only as it related to one count of drug trafficking, one count of drug possession and possession of the scale and the telephone calling card as criminal tools. On November 14, 1997, the jury returned verdicts of guilty on the remaining counts of drug possession and possession of criminal tools. On December 12, 1997, defendant-appellant was sentenced to four years of community control, sixty days in county jail and, thereafter, to serve six months at a work release program at Harbor Light, pay a $1,000.00 fine prior to his release from Harbor Light, -5- a six month driver's license suspension and was ordered to pay court costs. Execution of sentence was stayed pending the outcome of this appeal. Defendant-appellant's sole assignment of error on appeal states: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR POSSESSION OF DRUGS AND POSSESSION OF CRIMINAL TOOLS, AS A MATTER OF LAW. Defendant-appellant argues, through his sole assignment of error, that his convictions in the trial court of the offenses of drug possession and possession of criminal tools are not supported by sufficient evidence. Specifically, defendant-appellant maintains that the circumstantial evidence presented by the state in support of the element of possession, as it relates to the offense of drug possession, was clearly insufficient given the fact that the state failed to establish that defendant-appellant was able to exercise dominion or control over the heroin in question at any time prior to the arrest. Similarly, defendant-appellant argues that the state failed to set forth sufficient evidence regarding defendant-appellant's intent to use his automobile and the money discovered at his apartment as a criminal tool for purposes of R.C. 2923.24. Defendant-appellant also maintains in his brief that the underlying convictions are against the manifest weight of the evidence as well. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: -6- 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 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed). State v. Jenks, supra, paragraph two of the syllabus. More recently, in State v. Thompkins (1977), 78 Ohio St.3d 380, 386, the Ohio State Supreme Court stated the following with regard to the sufficiency as opposed to the manifest weight of the evidence: 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 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 the conviction). In essence, sufficient 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. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting -7- its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin Court stated: 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 the reasonable inferences, considers the credibility of the 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, 42. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard used when considering a claim based upon the sufficiency of the evidence. -8- The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where it determined that unlike a reversal based upon insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. at 43. Additionally, only a concurring majority of an appellate panel is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three appellate judges necessary for a reversal based upon the manifest weight of the evidence. State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. An appellate court does not and cannot sit as the thirteenth juror when reviewing a claim based upon the weight of the evidence. Rather, we must accord due deference to the credibility determinations made by the trier of fact. See State v. DeHass, supra. As this court has previously stated in State v. Thompson (April 23, 1998), Cuyahoga App. No. 72044, unreported: The fact-finder, being the jury (in the case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witnesses and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a hurculean endeavor. R.C. 2925.11, Ohio's drug possession statute, provides in pertinent part: (A) No person shall knowingly obtain, possess, or use a controlled substance. -9- R.C. 2925.01(K) defines possession as follows: Possess or possession means having control over a thing or substance, but may not be inferred solely from mere access to a 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, 267 N.E.2d 787; State v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus. To establish constructive possession, the evidence must prove 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. Dominion and control may be proven by circumstantial evidence alone. State v. Taylor (1997), 78 Ohio St.3d 15, 676 N.E.2d 82. Circumstantial evidence that the defendant was located in very close proximity to readily usable drugs may constitute constructive possession. State v. Barr (19930, 86 Ohio App.3d 227, 235, 620 N.E.2d 242; Wolery, supra; State v. Bell (May 14, 1998), Cuyahoga App. No. 72691, unreported. With regard to possession of criminal tools, the state must demonstrate possession or control of the device with intent to use it criminally. State v. Oliver (1987), 31 Ohio App.3d 100, 104, 508 N.E.2d 1048; State v. Richardson (Nov. 13, 1997), Cuyahoga App. No. 71626, unreported; R.C. 2923.24. This statute provides in relevant part: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitutes prima-facie evidence of criminal purpose: * * * -10- (3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. The state need only prove the illegal possession of one criminal tool in order to sustain a conviction for one count of violating R.C. 2923.24. State v. McShan (1991), 77 Ohio App.3d 781, 784, 603 N.E.2d 1076; Richardson, supra. In the case herein, viewing the evidence presented in a light most favorable to the prosecution, the testimony of Detective Dvorak, Detective Santiago and Lieutenant Gingell supports the jury's determination that defendant-appellant did, in fact, constructively possess the heroin in question as well as the money and automobile with intent to use criminally as alleged in the indictment. The state established that defendant-appellant did, at some point, exercise dominion and control over the heroin and the automobile in which the heroin was discovered. In addition, the state established that the heroin was within arms length of defendant-appellant at the time the search of defendant-appellant's automobile was conducted. A subsequent consent search of defendant-appellant's residence revealed $940.00 in small denominations in close proximity to additional drugs and drug paraphernalia discovered elsewhere on the property. A review of the record demonstrates that any rational trier of fact could have found from the evidence presented that the essential elements of the offenses of drug possession and possession of criminal tools were proven beyond a reasonable doubt. State v. Lundy (June 25, -11- 1998), Cuyahoga App. No. 71849, unreported; State v. Bennett (March 3, 1996), Cuyahoga App. No. 68687, unreported. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 465; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the underlying jury verdict is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of drug possession and possession of criminal tools. Defendant-appellant's conviction was supported by substantial credible evidence upon which the trier of fact could reasonably conclude that defendant-appellant was guilty of the indicted offenses. State v. Powell (1993), 87 Ohio App.3d 157, 168. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is hereby affirmed. -12- 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 directing the Cuyahoga County 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 M. PORTER, P.J., AND LEO M. SPELLACY, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .