[Cite as State v. Tyler,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99402

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TIMOTHY TYLER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555283

BEFORE: McCormack, J., Stewart, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: November 27, 2013 ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: John D. Kirkland Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Timothy Tyler, appeals his convictions for drug

possession, drug trafficking, and possession of criminal tools. After a thorough review

of the record, we affirm Tyler’s convictions.

Procedural History and Substantive Facts

{¶2} On October 24, 2011, Tyler was indicted as follows: (1) Counts 1, 3, 5, 7,

and 9 — trafficking in violation of R.C. 2925.03(A)(2); (2) Counts 2, 4, 6, 8, and 10 —

drug possession in violation of R.C. 2925.11(A); and (3) Count 11 — possession of

criminal tools in violation of R.C. 2923.24(A). Each charge carried a forfeiture

specification under R.C. 2941.1417(A). Each trafficking charge carried a schoolyard

penalty enhancement under R.C. 2925.01.

{¶3} A jury trial commenced on October 11, 2012. During the trial, Tyler twice

moved for acquittal under Crim.R. 29. The trial court denied Tyler’s first request. The

court granted Tyler’s second motion as to Counts 9 and 10, thus dismissing the two

charges for trafficking and possession of PCP discovered in the trunk of the car located

on the premises.1

We note that this court, sua sponte, remanded this matter to the trial court for a corrected 1

sentencing journal entry in order to provide clarification as to the fact of conviction or dismissal on Counts 9 and 10, in compliance with the final appealable order requirements of State v. Lester,

,

,

. The trial court’s original journal entry indicated that the defendant was found guilty of Counts 9 and 10 but also stated that Count 9 is dismissed.

Pursuant to this court’s order on remand, and in accordance with

the trial court {¶4} The jury found Tyler guilty of drug trafficking in Count 3, drug possession

in Counts 2, 4, 6, and 8, and possession of criminal tools in Count 11. The jury found

Tyler not guilty of drug trafficking in Counts 1, 5, and 7. Tyler was sentenced to 12

months on Counts 2 and 3 (Count 4 was merged into Count 2 for sentencing), two years

on Count 6, and 11 months each on Counts 8 and 11. The court ordered the sentence to

run concurrently.

{¶5} The evidence presented at trial is as follows: the Cleveland Police

Department (“CPD”) received a tip from a confidential reliable informant that a house on

Corlett Avenue was being used for drug trafficking. Based upon this tip, the police

initiated an investigation of the property and conducted surveillance of the property for

two weeks. The CPD narcotics department noted heavy traffic in and out of the house

on Corlett Avenue and discovered evidence of drug trafficking from the trash. Detective

Thomas Klamert conducted various computer database checks on the premises, which

associated Tyler with the property. Based upon this information, the CPD obtained a

search warrant for the premises. On October 5, 2011, the narcotics unit, with the

assistance of CPD’s SWAT unit, executed the warrant.

{¶6} As the SWAT unit entered the house, Detectives Matthew Baeppler and

Scott Moran covered the rear of the house. The detectives testified that while stationed

corrected its journal entry and clarified that it granted the defendant’s Crim.R. 29 motion concerning Counts 9 and 10, stating as follows: “The jury * * * returned a guilty verdict as to Counts 9 and 10. At the time of sentencing on 12/10/2012, pursuant to Rule 29(B), [the] court made a ruling, held in abeyance, dismissing Counts 9 and 10.” Having thus been dismissed, Counts 9 and 10 are therefore not an issue before us on appeal. in the back yard near the garage, they observed the back door open and saw Tyler come

out of the back door. The detectives yelled for Tyler to stop. They both testified that

Tyler looked at them, keeping his hand by the waistband of his pants, and “bolted and

took off running.” Tyler ran through several yards and, at one point, shed the coat he

was wearing. The detectives chased him for approximately 15 to 20 minutes until

Detective Moran found him hiding behind a garage. After a short struggle, Detectives

Baeppler and Moran patted Tyler down, read him his rights, handcuffed him, and brought

him back to the house on Corlett Avenue. Both detectives testified that when they

patted Tyler down, they discovered a cell phone, $110 in cash, and a key in Tyler’s

pockets. Tyler denied running and denied any involvement with the house. He also

denied that the key was discovered in his pockets and that the key belonged to him.

{¶7} Once the SWAT unit cleared the scene, Detective Klamert entered the

house and found three handcuffed men sitting in the kitchen. Two men Detective

Klamert discovered on the front porch were brought in the house. After the pursuit of

Tyler ended, Tyler was brought back in the house by uniformed police officers.

Detective Klamert also testified that Tyler initially told him that he did not run from the

house and that he did not know anything about the house. Thereafter, during the course

of interviewing Tyler, he admitted that he “stayed at [the house] or lived there.”

{¶8} Upon entering the home, Detective Klamert and other officers observed

drugs and several items associated with drug trafficking throughout the kitchen. These

items were located in the freezer, in the trash, in the sink, in kitchen drawers or cabinets, and out in the open on the kitchen counters. The following drugs were found: crack

cocaine; heroin; pills; marijuana; and vials of PCP stored in a sock. The following

evidence of drug activity or trafficking was found: plastic tear-off baggies; packaging and

drug preparation materials; scales used for weighing drugs; empty vials used for storing

PCP; mortar and pestle with heroin; and a grinder with heroin residue. The officers also

discovered ammunition throughout the house.

{¶9} In addition to the drugs and drug trafficking materials, the officers

discovered various personal items pertaining to Tyler and Tyler’s family throughout the

house. These items included: (1) two photographs of Tyler displayed on a living room

mantle — one pictured Tyler holding a small child and the other pictured Tyler holding a

lot of money in his hand with the sign “Hood Rich” in the background; (2) mail addressed

to Tyler at the Corlett address; and (3) mail addressed to Shirley Cunningham, Tyler’s

grandmother, including a utility bill from Cleveland Public Power for the Corlett address,

which was dated October 13, 2011. The mail, some opened and some unopened, was

located in the kitchen.

{¶10} During the search of the premises, Detective Baeppler testified that he

smelled PCP coming from a Buick LaSabre that was parked behind the house. He used

the key that he found on Tyler to unlock the vehicle’s trunk. Detective Baeppler

discovered bottles of PCP and a 2003 award for Tyler’s participation in cross country at

John F. Kennedy High in the trunk.

Assignments of Error I. Insufficient evidence supported appellant’s convictions for drug trafficking and possession of criminal tools as a principal offender.

II. Insufficient evidence supported appellant’s convictions for possession of drugs or criminal tools.

III. The manifest weight of the evidence did not support appellant’s convictions for drug trafficking, possession, or possession of criminal tools.

Sufficiency of the Evidence

{¶11} In his first assignment of error, Tyler claims his conviction for drug

trafficking and possession of criminal tools as a principal offender was not supported by

the evidence. In his second assignment, Tyler claims that his conviction for possession

of drugs and criminal tools was equally unsupported. Tyler claims, therefore, that his

motion for acquittal should have been granted. We disagree.

{¶12} Under Crim.R. 29(A), a trial court “shall order the entry of a judgment of

acquittal of one or more offenses * * * if the evidence is insufficient to sustain a

conviction of such offense or offenses.”

{¶13} When reviewing a challenge of the sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. State v. Jenks,

,

(1991), paragraph two of the

syllabus. “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.”

A sufficiency challenge

requires us to review the record to determine whether the state presented evidence on each of the elements of the offense. State v. Martin,

,

(1st Dist. 1983). A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins,

,

,

.

{¶14} Tyler was convicted of drug possession, possession of criminal tools, and

drug trafficking. Under R.C. 2925.11(A), “[n]o person shall knowingly obtain, possess,

or use a controlled substance or a controlled substance analog.” Pursuant to R.C.

2923.24(A), “[n]o person shall possess or have under the person’s control any substance,

device, instrument, or article, with purpose to use it criminally.” Finally, under R.C.

2925.03(A)(2):

No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person * * *.

{¶15} A person acts “knowingly” when he “is aware that his conduct will probably

cause a certain result or will probably be of a certain nature. A person has knowledge of

circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B). Knowledge must be determined through inferences drawn from the

surrounding facts and circumstances. State v. Smith, 8th Dist. Cuyahoga No. 96348,

, citing State v. Green, 1st Dist. Hamilton No. C-860791,

(Apr. 20, 1988). {¶16} Under R.C. 2925.01(K), “possess” or “possession” is defined as “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). While the mere presence of an

individual in the vicinity of illegal drugs or contraband is not sufficient evidence of

possession, circumstantial evidence is sufficient to support the element of constructive

possession. Smith at ¶ 52; Jenks,

,

. Constructive

possession requires evidence that an individual exercised, or had the ability to exercise,

dominion and control over an object, even though that object may not be within his

immediate physical possession. State v. Wolery,

,

(1976). The discovery of readily accessible drugs in proximity to a person

constitutes circumstantial evidence that the person was in constructive possession of the

drugs. State v. Paige, 8th Dist. Cuyahoga No. 97939,

, citing State

v. Pavlick, 8th Dist. Cuyahoga No. 81925,

.

{¶17} As an initial matter, it is not in dispute that the narcotics officers discovered

several items used in drug trafficking, such as vials for storing PCP, scales for weighing

drugs, grinders for preparing various drugs, and various packaging materials for the

distribution of drugs, i.e. “tear-off” plastic bags. It is equally undisputed that the

officers discovered large amounts of illegal drugs, which the narcotics officers testified

were indicative of drug trafficking, including PCP, heroin, cocaine, and pills. None of the illegal contraband was found within Tyler’s immediate physical possession. The

issue, therefore, becomes whether Tyler had the ability to exercise dominion or control

over the items sufficient to show constructive possession of the drugs or criminal tools.

{¶18} Tyler argues that the evidence was insufficient to support his convictions

because he was not in the kitchen during the raid, he was not observed during the

surveillance prior to the raid, and five other people had equal access to the home. He

further argues that there was insufficient evidence to support his conviction as a principal

offender as the state provided no evidence that Tyler prepared the PCP in the freezer

(which relates to Count 3).

{¶19} While we recognize that the mere access to a premises is not enough to infer

the possession of drugs or criminal tools, there is sufficient evidence in the record to

demonstrate that Tyler had the ability to exercise dominion or control of the Corlett

property, thus reflecting constructive possession of the premises.

{¶20} Prior to the raid, Detective Klamert conducted a database research that

associated Tyler’s name with the Corlett property. When they executed the search

warrant, the officers discovered two photographs of Tyler displayed on the living room

mantle. Mail addressed to Tyler and his grandmother was discovered in the kitchen

where the drugs and drug items were found.

{¶21} While initially denying any involvement with the property, Tyler, in the

course of police questioning, later told the detectives that he “stayed at [the house] or

lived there.” The record shows that Tyler had lived at the Corlett property with his family until 2005, when he left to attend college. Tyler testified at trial that he would

return to Corlett during the summer and holiday breaks, until he was arrested for

possession of Ecstasy pills. He stated that after he was released from prison in February

2011, he would return to the house on occasion. He acknowledged that there was drug

activity on the premises and in the neighborhood. Ms. Cunningham testified that the

residence is currently unoccupied and the last time anyone resided in the home was in

2007.

{¶22} The record further shows that, beginning July 2011, Tyler would go to the

house on the 5th of every month to collect his grandmother’s public assistance check.

Tyler testified that on other occasions, his grandmother would send him to the house to

retrieve additional items for her, such as a marriage license, which he had retrieved from

his grandmother’s old bedroom. On the day of his arrest, Tyler stated that he had come

to the house to pick up his grandmother’s check, he entered the house to retrieve the

check from the mailbox, and he went outside after getting the check, having never entered

the kitchen. Shirley Cunningham’s public assistance check, however, was discovered on

the microwave in the kitchen. Two detectives testified that they saw Tyler bolt from the

rear door of the house and run, despite their command to stop. While initially denying

running from the police, Tyler later admitted to running because he was nervous. The

evidence shows that the rear door is approximately five feet from the kitchen, and the

mailbox is in an area adjacent to the kitchen. {¶23} We find this evidence sufficient to support a finding of constructive

possession of drugs and criminal tools. Tyler had the ability to exercise control over the

premises, he had access to the drugs and drug items used in trafficking, and he knew of

the drug activity occurring on the premises. This court has consistently held that

constructive possession can be established through the knowledge of illegal substances or

goods and the ability to exercise control over the goods or the premises on which the

goods are found. State v. Harris, 8th Dist. Cuyahoga Nos. 98183 and 98184,

, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333,

, ¶ 30.

{¶24} Furthermore, while there were five additional individuals on the premises at

the time of Tyler’s arrest, this is not dispositive of the issue of whether Tyler had

constructive possession of the drugs and criminal tools. State v. Scalf,

,

(8th Dist. 1998) (finding that possession may be established

where the defendant occupies the premises with others but the drugs are found in the

defendant’s living area and in plain view throughout the apartment). Exclusive control

over the premises is not required. State v. Howard, 8th Dist. Cuyahoga No. 85034,

, citing In re Farr, 10th Dist. Franklin No. 93AP-201,

, *16 (Nov. 9, 1993) (concluding that nothing in the statute states that

illegal drugs must be in the sole or exclusive possession of the accused at the time of the

offense); see R.C. 2925.01(K). “‘All that is required for constructive possession is some

measure of dominion or control over the drugs in question, beyond mere access to them.’” Howard, quoting In re Farr, at *17. The fact that others were on the premises in

addition to Tyler does not mean that Tyler could not exercise dominion or control over

the drugs and criminal tools. We, therefore, find sufficient evidence to support Tyler’s

conviction for drug trafficking as a principal offender.

{¶25} After viewing the evidence in a light most favorable to the state, we find

that any rational trier of fact could have found the essential elements of the crimes proven

beyond a reasonable doubt. Tyler’s first and second assignments of error are, therefore,

overruled.

Manifest Weight

{¶26} In his third assignment of error, Tyler claims that his convictions were

against the manifest weight of the evidence. We disagree.

{¶27} Unlike sufficiency of the evidence, manifest weight of the evidence raises a

factual issue.

“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins, 78 Ohio St.3d at 387,

,

, quoting Martin,

,

.

{¶28} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass,

,

(1967), paragraph one of the syllabus. When examining witness credibility, “the

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan,

,

(1986). A

factfinder is free to believe all, some, or none of the testimony of each witness appearing

before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538,

.

{¶29} For the reasons discussed under our analysis of the sufficiency of the

evidence, we find that the evidence demonstrated that Tyler constructively possessed

drugs and criminal tools. We further find that the weight of the evidence supported

Tyler’s conviction for drug trafficking.

{¶30} The state presented evidence that Tyler’s name was associated with the

premises upon which the drugs and criminal tools were found. Tyler testified that he

previously stayed at the house, frequently returned to the house during school breaks, and

would go to the house every month to retrieve items for his grandmother. Two

photographs of Tyler were displayed on a mantle in the living room, one of which

pictured Tyler holding a lot of money in his hand with the sign “Hood Rich” in the

background. Mail addressed to Tyler and Tyler’s grandmother were discovered in the

kitchen, where the drugs and criminal tools were discovered. The check that Tyler

picked up from the house that day for Ms. Cunningham was found on the microwave in

the kitchen. {¶31} Tyler acknowledged that there was drug activity on the premises and in the

neighborhood. He also admitted that he was previously arrested for drug possession and

released from prison in February 2011.

{¶32} The state presented evidence that various illegal drugs in large quantities

were discovered in the kitchen, along with the tools used in the preparation and

distribution of the drugs. The evidence showed that the amount of drugs and the type of

materials and equipment discovered in the house were indicative of drug trafficking.

{¶33} Detectives Baeppler and Moran testified that they witnessed Tyler bolt from

the back door of the house and run. While initially denying any connection with the

premises and denying running, Tyler admitted during questioning that he had stayed at the

home and that he ran because he was nervous.

{¶34} Tyler essentially argues that the weight of the evidence favored him because

the state’s testimony was impugned at trial. Specifically, Tyler claims that the arresting

officer lied about where he found the key that opened the trunk of the Buick LaSabre,

which contained vials of PCP. Tyler also claims that he did not have $110 in his

pockets, contrary to the testimony of the two arresting officers.

{¶35} While Tyler asserts that the state’s testimony is not credible, the trier of fact

is in the best position to assess the credibility of the witnesses, and it is free to believe all,

some, or none of the testimony of each witness appearing before it. This court may not

substitute its own judgment for that of the factfinder. After examining the entire record,

weighing all of the evidence and all reasonable inferences, we are unable to conclude that the jury clearly lost its way. This is not one of the exceptional cases in which the

evidence weighs heavily against the conviction. Tyler’s third assignment of error is

overruled.

{¶36} Judgment is affirmed.

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 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.

______________________________________________ TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., CONCURS; MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).

MARY J. BOYLE, J., DISSENTING:

{¶37} While I agree with the majority’s resolution of the assignments of error, I

nevertheless dissent because I find that the judgment entry does not constitute a final

appealable order.

{¶38} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.”

State v. Lester,

,

,

, paragraph one of

the syllabus. As noted in the majority’s sole footnote, this court, sua sponte, remanded

this matter to the trial court because the journal entry appealed from did not comply with

the requirements of Lester.

{¶39} I agree with the majority that the law “‘does not require the sentencing

journal entry to reiterate counts for which there were no convictions, such as counts that

were dismissed.’” State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas,

,

,

, ¶ 2, quoting State ex rel. Davis v.

Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 93814,

,

¶ 8. This is true where the counts were disposed of prior to the sentencing order that

creates the final, appealable order.

{¶40} However, in this case, the trial court attempted to dispose of Counts 9 and

10 in the sentencing journal entry that was intended to be the final appealable order in this

case. The remand order sought clarification as to whether there was a conviction or an

acquittal on Count 9. Therefore, I believe that the entire sentencing journal entry needed

to be restated in order to create a final appealable order in compliance with Lester.