COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78344 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : GARRICK H. WILSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-379201 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Brian P. Mooney, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Kevin M. Ryan, Esq. 516 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Police officers on patrol saw two groups of males engaging in a verbal altercation and moved in to break it up. One group entered into a vehicle and started to drive away. The other group told the officers that a member of the first group carried a handgun. The officers stopped the vehicle and ordered the occupants to exit the car. As the occupants exited the vehicle, an officer spotted a plastic bag containing crack cocaine lying at the feet of defendant Garrick Wilson. Defendant also carried $1,847 in cash. A jury found defendant guilty of drug possession and the court ordered that the cash found on defendant be forfeited to the state. In this appeal, defendant complains this evidence was insufficient to prove he possessed drugs and that the court erred by ordering forfeiture. I We review claims of insufficient evidence by considering the evidence in a light most favorable to the state and determining whether any reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Waddy (1992), 63 Ohio St.3d 424, 430. R.C. 2925.11(A) provides that [n]o person shall knowingly obtain, possess, or use a controlled substance. 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 the thing or substance through ownership or occupation -3- of the premises upon which the thing or substance is found. Possession may be actual or constructive. State v. McShan (1991), 77 Ohio App.3d 781. 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. Circumstantial evidence that the accused was located in very close proximity to readily usable drugs may constitute constructive possession. State v. Barr (1993), 86 Ohio App.3d 227, 235; State v. Burston (May 5, 1994), Cuyahoga App. No. 65128, unreported. The court had sufficient evidence to conclude that defendant constructively possessed the cocaine. The arresting officer testified that he found the crack cocaine lying on the passenger side floor of the vehicle, so it would have been laying at defendant's feet. This is very close proximity. Our cases make clear that very close proximity to contraband drugs is sufficient circumstantial evidence of constructive possession. See, e.g., State v. Pruitt (1984), 18 Ohio App.3d 50 (drugs found on floor near accused's feet); State v. Farmer (Apr. 6, 2000), Cuyahoga App. No. 75080, unreported (drugs located between passenger door and passenger seat in close enough proximity to show constructive possession); State v. Lanier (Aug. 19, 1999), Cuyahoga App. No. 74694, unreported (accused sitting on crack pipe). II The record does not substantiate defendant's claim that the money seized during his arrest had been forfeited to the state. -4- The record shows that the court scheduled a forfeiture hearing, but there is nothing to indicate that the court actually held a hearing. More importantly, there is no journal entry ordering forfeiture. In fact, the state now represents that it has chosen not to pursue a forfeiture hearing. See Appellee's Brief at 8. Under the circumstances, we cannot afford relief from a non- existent order. Defendant's course of action is replevin, not appeal. Judgment affirmed. -5- 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. MICHAEL J. CORRIGAN JUDGE TIMOTHY E. McMONAGLE, P.J., and TERRENCE O'DONNELL, 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .