Opinion
No. 76816.
Decided December 7, 2000.
Criminal appeal from Common Pleas Court Case No. CR-361588.
William D. Mason, Esq., Cuyahoga County Prosecutor, BY: Eleanore Hilow, Esq., Assistant County Prosecutor, Cleveland, Ohio, for plaintiff-appellee.
James A. Draper, Esq., Cuyahoga County Public Defender, BY: Jean M. Gallagher, Esq., Assistant County Public Defender, Cleveland, Ohio, for defendant-appellant.
JOURNAL ENTRY and OPINION
Defendant-appellant, Clarence Williams, appeals from the verdict of the trial court in which he was found guilty of possession of drugs in violation of R.C. 2925.11(C)(4)(e). The appellant waived a jury prior to trial and the case was tried to a judge. The trial court granted a motion for acquittal on the second count of the indictment — possession of criminal tools. The appellant was sentenced to a four-year term concurrent with a three-year term in case number 361405, which is not related to the instant case. The appellant herein appeals the verdict and the sentence of the trial court. For the reasons adduced below, the finding of guilt by the trial court is affirmed in part, reversed in part and remanded for re-sentencing.
The Cleveland Police Department's Narcotic Unit was informed on or about January 9, 1998 of a drug deal which was allegedly to take place at a McDonald's restaurant on E. 93rd Street and Kinsman Avenue. The informant told the police that the culprit was a male named "Jimmie" who was driving a red Ford Expedition sports utility vehicle. One of the detectives who testified at trial, Detective Todd Clark, stated that based on past experience he believed that the "Jimmie" referred to by the informant was a Jimmie Coleman.
The officers on surveillance who responded to the scene stopped a Ford Expedition matching the description provided by the informant. There were four occupants of the vehicle. The driver was, in fact, Jimmie Coleman. There was one female in the front seat and another female in the back seat of the vehicle. The appellant was also in the back of the vehicle with one of the female occupants.
The occupants of the Expedition were all ordered to place their hands where the officers could see them. Officer Thomas Roper observed a bag of crack cocaine on the front passenger floorboard by the passenger front door and a larger bag of crack cocaine on the center console within easy reach of all four of the occupants.
The only evidence offered at trial on the issue of who owned the drugs was the testimony of officer Thomas Shoulders. He testified as to what co-defendant, Jimmy Coleman, told him at the scene of the crime after being mirandized. The following exchange occurred at trial with officer Shoulders testifying for the state:
A. I talked with the driver of the vehicle, Jimmy Coleman.
Q. What did he tell you?
A. He informed me that the drugs in the car was (sic) his, and that he did not put it on the girl, and nobody else had anything to do with it.
Q. Did he say anything about Mr. Williams?
A. I don't recall exactly what he said about Mr. Williams. But he basically indicated the drugs were basically his. And that they were his and Mr. Williams' drugs. But he claimed that they were his mostly. And he didn't want anything — that the girls — well, he didn't want the girls to have anything to do with it.
It is important to note that appellant's counsel did not object during this exchange. Counsel only objected to Officer Shoulders' subsequent testimony wherein the prosecutor attempted to elicit testimony regarding statements made by the females in the car.
Williams raises three assignments of error on appeal. The first assignment of error states:
I. MR. WILLIAM'S (SIC) RIGHTS UNDER ART. I, SECT. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL ON POSSESSION WHEN THERE IS INSUFFICIENT EVIDENCE THAT HE POSSESSED THE DRUGS IN THE CAR.
The first assignment of error deals with the sufficiency of the evidence posed at trial in relation to the charge of possession. 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:
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.)
Id. at paragraph two of the syllabus.
Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting 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.
In determining if there is sufficient evidence in the record to affirm the conviction in the present case, we must first examine the relevant statute defining possession and determine whether all the elements of the crime were proven.
The appellant specifically contends the state presented insufficient evidence that he "possessed" any of the crack cocaine found by the officers. Possession is defined in R.C. 2925.01(K) 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. In the case sub judice, the state presented sufficient evidence of appellant's constructive possession of the drugs by their location in the car. As a passenger in the back seat, appellant would have known that the drugs were on the console and would have easily been able to reach out and grasp them.
Although the mere presence of a defendant at a residence in which contraband is discovered is insufficient to support a conviction for possession, Haynes, supra, at 270, if the evidence demonstrates that the defendant was able to exercise dominion or control over the objects, the defendant can be convicted of possession. State v. Wolery (1976), 46 Ohio St.2d 316. Furthermore, where a sizable amount of readily usable drugs are in close proximity to defendant, there is sufficient circumstantial evidence to support the conclusion that defendant was in constructive possession of drugs. State v. Pruitt (1984), 18 Ohio App.3d 50; State v. Braxton (Jan. 18, 1990), Cuyahoga App. No. 56269, unreported; State v. Walker (Oct. 15, 1987), Cuyahoga App. Nos. 52485 and 52486, unreported. The same reasoning applies to the discovery of other contraband in close proximity to a defendant. State v. Franklin (July 27, 1989), Cuyahoga App. Nos. 55604 and 55684, unreported; State v. Bailey (Apr. 9, 1987), Cuyahoga App. No. 51968, unreported.
Circumstantial evidence alone is sufficient to support the element of constructive possession. State v. Braxton, supra; State v. Jenks (1991), 61 Ohio St.3d 157; [ 61 Ohio St.3d 259] State v. Lavender (Mar. 12, 1992), Cuyahoga App. No. 60493, unreported. In the case sub judice, although there was no evidence that defendant was actually exercising dominion and control over the drugs when the car was stopped, the drugs on the console were within appellant's reach and they were readily usable, numerous and in plain view. The appellant was clearly situated so as he could exercise dominion or control over the large bag of crack cocaine that was located on the center console. Although there was no drug paraphernalia found in the vehicle, we do not interpret the "readily usable" requirement as mandating that a pipe, syringe or other apparatus designed to facilitate drug use be present in order for a finder of fact to conclude that a quantity of narcotics are readily usable.
In other cases with fact patterns similar to those in this case, this court has held there was sufficient evidence of actual and constructive possession of contraband. State v. Braxton, supra; State v. Bailey, supra; State v. Lavender, supra. The circumstantial evidence of the appellant's constructive possession of the confiscated narcotics presented by the state in this case was sufficient to convince the average mind of defendant's guilt beyond a reasonable doubt. This court declines to substitute its judgment for that of the trial court.
Accordingly, defendant's first assignment of error is overruled.
The appellant's second assignment of error states:
II. THE ADMISSION OVER OBJECTION OF A POLICE OFFICER'S TESTIMONY THAT THE CO-DEFENDANT IMPLICATED MR. WILLIAMS VIOLATED THE RIGHT TO CONFRONTATION GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
In finding the appellant guilty of count one of the indictment, drug possession, the trial court made the following finding on the record:
Given the ruling that I made with respect to the Rule 29 motion; however, I don't believe there is any real choice here but to find the defendant guilty on count one under the circumstances. The access and the circumstances of where the one bag was found * * * on the console. * * * This would constitute possession of crack cocaine * * *. (Emphasis added.)
Thus, the court's finding of guilt was based entirely on the fact that the appellant was in constructive possession of the crack cocaine at the time that the officers approached the subject vehicle. The ambiguous statement made by the co-defendant as to the ownership of the seized narcotics, which has already been cited in this opinion, played no factor in the trial court's verdict. Thus, any error made by the trial court in permitting testimony on this subject, despite the fact that there was no timely objection, was harmless.
This assignment of error is overruled.
The appellant's third assignment of error states:
III. WHEN THE TRIAL COURT INFORMED MR. WILLIAMS ONLY OF THE PRISON TERM, AND THE JOURNAL ENTRY STATED MERELY THAT THE SENTENCE INCLUDES ALL EXTENSIONS PROVIDED BY LAW, THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.19, WHICH REQUIRES THAT AT SENTENCING FOR AN OFFENSE THAT OCCURRED ON OR AFTER JULY 1, 1996, THE TRIAL COURT SHALL NOTIFY THE OFFENDER OF THE SPECIFIC FACTS CONCERNING POST-RELEASE CONTROL (R.C. 2967.28) AND THE POSSIBILITY OF AN INCREASE IN THE PRISON TERM (R.C. 2967.11).
In its appellee's brief, the state concedes that the trial court failed to notify the offender of the specifics of post-release control and of the possibility that "bad time" might be added to the appellant's sentence for conduct by the appellant during his term of imprisonment. See R.C. 2967.11 and R.C. 2967.28.
Therefore, this assignment of error is sustained. This case is remanded to the trial court for the limited purpose of conducting another sentencing hearing in accordance with the requirements of R.C. 2929.19(A)(1) and (B)(3).
Judgment affirmed in part, reversed in part and remanded for re-sentencing.
This cause is affirmed in part, reversed in part and remanded for re-sentencing for proceedings consistent with this opinion.
Costs to be divided equally between plaintiff-appellee and defendant-appellant.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TERRENCE O'DONNELL, P.J., CONCURS.
TIMOTHY E. McMONAGLE, J., DISSENTS WITH SEPARATE OPINION.
Respectfully, I dissent. I would vacate appellant's conviction because the state failed to meet its burden of proving the essential element of constructive possession of the cocaine and, therefore, the trial court erred in denying appellant's Crim.R. 29 motion for acquittal on count one of the indictment.
The circumstantial evidence presented by the state in this case established nothing more than appellant's presence in the vehicle in which the drugs were found. The state presented no evidence showing that appellant was aware of the bag of cocaine on the console prior to the stop. Although the majority contends that the bag was clearly situated where appellant could see and reach it from the back seat, there was no evidence regarding when the bag was placed on the console. Detective Shoulders testified that he did not see anyone, including appellant, place the drugs on the console. Moreover, Detective Roper testified that when he approached the vehicle, he observed the female passenger in the front seat "fumbling around." There was no testimony, however, that anyone else in the Expedition made any movement as the officers approached the vehicle. Thus, the fact that cocaine was found on the middle console after the police stopped the vehicle does not establish that the cocaine was in appellant's view as he rode in the backseat of the vehicle or that he was aware of the cocaine at any time prior to the stop. Consequently, the evidence presented by the state established only that appellant was a passenger in the backseat of an automobile where drugs were found.
The majority acknowledges that constructive possession cannot be inferred by a person's mere presence in the vicinity of contraband, see Cincinnati v. McCartney (1971), 30 Ohio App.2d 45; State v. Palmer (Feb. 6, 1992), Cuyahoga App. No. 58828, unreported, but nevertheless, holds that even though "there was no evidence that defendant was actually exercising dominion and control over the drugs," as a passenger in the backseat, appellant's presence in the vicinity of the drugs found on the console was sufficient to find constructive possession.
The majority cites several cases in which this court found sufficient circumstantial evidence to support a finding of constructive possession as support for its conclusion that appellant's mere presence in the vicinity of the drugs was sufficient "circumstantial evidence" to find constructive possession. Contrary to the majority's assertion, however, the cases do not involve "fact patterns similar to those in this case." Moreover, in the cases cited by the majority, this court specifically found that there was circumstantial evidence in addition to the defendant's mere presence in the vicinity of the drugs that supported a finding of constructive possession.
In State v. Lavender (Mar. 12, 1992), Cuyahoga App. No. 60493, unreported, for example, this court found sufficient evidence to support the defendant's conviction of cocaine possession where, upon conducting a search of a bedroom in an apartment where the defendant was visiting, the police found drugs in a dresser drawer in the bedroom. This court stated:
In this case, drugs were found in a dresser drawer in Regina Kirkman's bedroom. Kirkman denied knowledge of any drugs, and also stated that she had left the drawer closed. When police entered the bedroom, the dresser drawer was partially open, and [the defendant] either had his hand over the drawer or in it. Police also found an automatic weapon in the drawer. They testified that they entered the bedroom because they heard a sound like an automatic weapon being chambered.
Id. On such evidence — which clearly demonstrated more than the defendant's mere presence in the vicinity of the contraband — we held that there was sufficient evidence to support the defendant's conviction.
In State v. Braxton (Jan. 18, 1990), Cuyahoga App. No. 56269, unreported, a case also cited by the majority, the defendant was convicted of drug abuse after police, while executing a search warrant, sat the defendant on one end of a couch and subsequently discovered a small plastic bag containing cocaine and heroin on the floor beneath the couch, directly behind the couch where the defendant had remained seated. This court affirmed the defendant's conviction on appeal. After reiterating the principle that the mere presence of a defendant in the vicinity of contraband is not enough to support a theory of constructive possession, we stated:
There was more than appellant's mere presence supporting his conviction. As noted, police had searched the couch and the floor just prior to seating appellant, and remained with appellant the entire time while appellant, and no one else, sat on the end of the couch directly above the place where the drugs were found shortly thereafter. (Emphasis added.)
Id.
Importantly, in the cases cited by the majority, there was a significant amount of circumstantial evidence in addition to the defendants' close proximity to the illegal drugs that, under the totality of the circumstances, established their constructive possession of the drugs. Here, however, the state presented no evidence other than the location of the cocaine on the console to demonstrate that appellant had access to the crack cocaine on the console or the authority or power to exercise control over it. Indeed, the confidential informant advised Detective Shoulders only that Jimmie Coleman would be delivering narcotics; there was no mention that anyone else was involved. No one testified that appellant made any suspicious gesture or action when the vehicle was stopped. Furthermore, there was no corroborating evidence of any drug paraphernalia found on appellant's person or in the vehicle.
The majority dismisses the lack of any evidence of drug paraphernalia, however, because, they assert, the "readily usable" requirement does not mandate that a pipe, syringe or other apparatus designed to facilitate drug use be present in order for a finder of fact to conclude that drugs are readily usable. The majority's citation to State v. Pruitt (1984), 18 Ohio App.3d 50, for this proposition is not persuasive. In Pruitt, this court held that where a defendant was found sitting on the closed toilet seat of an apartment bathroom, with drugs and syringes less than a foot away from him, the defendant's close proximity to drugs "in a form ready for injection" supported a conclusion that the drugs were in the defendant's constructive possession. Thus, in applying the "readily usable" requirement, this court specifically noted the presence of syringes that made the drugs readily usable. Crack cocaine, however, is not in a form ready for immediate consumption without additional implements. Thus, without additional evidence such as drug paraphernalia that would make the crack immediately usable, appellant's close proximity to the drugs, by itself, is insufficient to establish constructive possession.
Moreover, spatial distance in an automobile is not the same as space in a room. Everything is in close proximity in an automobile. Thus, even if the drugs are in a readily usable form, where there is no evidence the illicit substance was visible to a passenger or within the passenger's exclusive area, there must be some additional evidence — such as drug paraphernalia — to justify an inference that the passenger had knowing possession of the drugs.
The case is remarkably like State v. Chandler (1989), 54 Ohio App.3d 92, 97, in which this court held that the evidence was insufficient to support the defendant's conviction for possession of criminal tools. In Chandler, police officers conducting a drug sweep at a housing project observed a van parked in a field. One of the officers observed the defendant, who was seated behind the wheel, and his passenger "shuffling around, moving around, inside of the van." Id. at 97. The officers approached the van and, after removing the defendant and the passenger from the van, found a paper bag containing syringes, cash, white powder and pills on the front seat of the van.
The defendant was convicted of possession of the syringes found in the bag. This court vacated the defendant's conviction on appeal, however, finding that the evidence was insufficient to demonstrate that the defendant possessed the syringes found in the bag or had them under his control. We noted that the defendant's "rustling around" was not evidence of any furtive movement and, further, that he was "never observed holding the bag." Id. at 96-97. On this paucity of evidence we concluded that the state failed to show beyond a reasonable doubt that [the defendant] possessed or had under his control the syringes * * *. Id.
Here, the only evidence offered by the state to link appellant to the drugs was Detective Shoulders' testimony that co-defendant Jimmie Coleman told him that the drugs "were his and Mr. Williams'." As argued by appellant in assignment of error two, however, this testimony was inadmissible. Shoulders' testimony regarding his conversation with Coleman would be admissible only if 1) Coleman was unavailable to testify; and 2) his statement was admissible under one of the exceptions to the hearsay rule enumerated in Evid.R. 804. See State v. Young (1983), 5 Ohio St.3d 221; State v. Houston (1985), 26 Ohio App.3d 26. Here, the state made no attempt to show that Coleman was unavailable to testify. Moreover, his statement to Detective Shoulders that the drugs belonged in part to appellant does not fall within any of the hearsay exceptions enumerated in Evid.R. 804. Because this was the only evidence offered to link appellant to the drugs, and there were no other "circumstances" upon which the trial court could have relied to find appellant guilty, the majority's assertion that the admission of this evidence was harmless error is astounding.
The trial court concluded that appellant's apparent access to the drugs on the console gave him constructive possession of the drugs. Possession may not be inferred from mere access or close proximity to illegal contraband, however. Without more, the state failed to meet its burden of proving the essential element of constructive possession of the cocaine. Accordingly, the trial court erred in denying appellant's Crim.R. 29 motion for acquittal on count one of the indictment and appellant's conviction should be vacated.