DocketNumber: No. 81800.
Judges: SEAN C. GALLAGHER, J.
Filed Date: 4/10/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} The pertinent facts presented at trial are as follows. Appellant was arrested outside Tower City in downtown Cleveland for committing a theft from a store called FYE that is inside Tower City. He was arrested after an employee of FYE alerted police that she had observed him placing store items in a bag he was carrying and leaving the store without paying for them. Upon his arrest, he was carrying two bags. One bag contained 13 videotapes from FYE that he had not paid for. This bag had been modified by the application of duct tape inside the bag. Detective McKay, the arresting officer, identified the application of duct tape as a common method for defeating inventory security systems at the store exits. The other bag that appellant was carrying contained a glass pipe, wrapped in a napkin and placed inside of a shoe box. That pipe was confiscated and later tested positive for cocaine residue.
{¶ 3} Appellant was indicted for possession of cocaine. A trial to the bench was held on August 26, 2002. Appellant was found guilty of possession of cocaine and sentenced to six months in prison.1 Appellant advances one assignment of error for our review.
{¶ 4} "The evidence is insufficient and the verdict is against the weight of the evidence."
{¶ 5} In his first assignment of error, appellant actually presents two separate issues. The first issue is that there was insufficient evidence to support the verdict. The second issue is that the verdict was against the manifest weight of the evidence.
{¶ 6} The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978),
{¶ 7} Appellant was charged with possession of cocaine in violation of R.C.
{¶ 8} Appellant argues there was insufficient evidence presented at trial to prove that he "knowingly" possessed cocaine. Specifically, appellant asserts that his possession of a glass pipe, containing cocaine residue, that was wrapped in a napkin and found inside of a shoe box in a bag that he was carrying, is insufficient evidence to sustain a conviction beyond a reasonable doubt that he did, in fact, "knowingly possess" cocaine.
{¶ 9} The definition of "knowingly" is found in R.C.
{¶ 10} The definition of "possess" is found in
{¶ 11} If the evidence demonstrates that the defendant was able to exercise dominion and control over the objects, the defendant can be convicted of possession. State v. Wolery (1976),
{¶ 12} Whether or not a defendant had knowledge that he possessed crack cocaine must be determined from all the facts and circumstances in evidence. State v. Teamer (1998),
{¶ 13} The evidence presented at trial was that appellant exercised control over a bag within which a glass pipe containing cocaine residue was being carried. The glass pipe appellant possessed was not merely tossed into the bottom of his bag. It was carefully wrapped in a napkin and then placed inside a shoe box. A rational trier of fact could find that appellant possessed the glass pipe that was found within the bag he was carrying. The next issue is whether the appellant "knowingly" possessed the cocaine residue that was found on the glass pipe.
{¶ 14} The degree of careful packing indicates appellant's appreciation for the object itself and what it was used for. Detective McKay, upon his arrest of appellant, discovered and immediately identified the glass pipe in appellant's bag as a pipe commonly used to smoke cocaine. A rational trier of fact could, likewise, have determined appellant knew the common usage for the glass pipe he was carrying. Finally, scientific testimony revealed the glass pipe contained cocaine residue. Given the facts presented at trial, a trier of fact could reasonably infer appellant had knowledge that the glass pipe contained cocaine residue. This inference does not transform this offense into a strict liability crime. The evidence, if believed, is sufficient to sustain a conviction of possession of cocaine beyond a reasonable doubt.
{¶ 15} The second issue in appellant's assignment of error alleges the verdict was against the manifest weight of the evidence. This argument presents an appellate court with a different form of review of the evidence presented at trial.
{¶ 16} State v. Martin (1983),
{¶ 17} In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, adopted the guidelines set forth in State v. Mattison (1985),
{¶ 18} The pertinent evidence of this matter was previously reviewed above. The fact finder is not required to accept the argument by appellant that he was unaware he possessed the cocaine found in the glass pipe that was carefully wrapped in the bag he was carrying. None of the state's evidence was contradicted, no witness was impeached, the reliability of the evidence was not challenged, and no uncertainties, conflicts or fragmentation in the evidence were present at trial. Based upon that review and considering the entire record, this court does not find the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed.
Judgment affirmed.
KENNETH A. ROCCO, A.J., and JAMES J. SWEENEY, J., concur.