DocketNumber: No. 81630.
Judges: TIMOTHY E. McMONAGLE, J.:
Filed Date: 4/3/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} In January 2002, Cleveland Police Detective Robert Glover arranged a controlled buy of narcotics through a confidential reliable informant after receiving several citizen complaints of drug activity at appellant's residence. The informant was given marked money, searched prior to the buy and observed by Detective Glover to hand this money to appellant. Upon the informant's return, the money was gone and the detective recovered the controlled purchase of crack cocaine.
{¶ 3} A search warrant was obtained and executed shortly thereafter by Detective Glover and Detective Eugene Jones. Upon entry into appellant's home, both officers testified that appellant was observed running from the basement steps of the home into the main living areas. Three female family members were in the living room, all of whom appeared to the officers to be handicapped either physically or mentally.1 Detective Jones "covered" the three family members while Detective Glover pursued appellant. Detective Glover observed appellant throw an object on the dining room floor, which was later identified as a crack pipe containing residue. Completing the search of the residence, the officers recovered a substance wrapped in cellophane on the dining room table later identified as crack cocaine, two rocks on the basement steps also identified as crack cocaine and a marijuana pipe containing residue.
{¶ 4} Appellant was eventually indicted for possession of drugs, in violation of R.C.
{¶ 5} Appellant is now before this court and assigns two errors for our review.
{¶ 7} Crim.R. 29(A) governs motions for acquittal and provides for a judgment of acquittal "if the evidence is insufficient to sustain a conviction * * *." An appellate court's function in 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 the defendant's guilt beyond a reasonable doubt. A verdict will not be disturbed on appeal unless reasonable minds could not reach the conclusion reached by the trier of fact. State v. Jenks (1991),
{¶ 8} R.C.
{¶ 9} Here, appellant claims that neither of the officers actually saw appellant with the drugs that were confiscated from the basement steps. Nonetheless, possession can be actual or constructive. See Statev. Wolery (1976),
{¶ 10} Here, appellant was seen alighting from the basement steps where two rocks of crack cocaine were confiscated. The drugs were in close proximity to appellant. It is therefore reasonable for the trial court to conclude that appellant had constructive possession of the drugs confiscated on the basement steps.
{¶ 11} Notwithstanding, appellant also was observed throwing a crack pipe from his hand to the floor. He argues, however, that even though Detective Glover testified that he observed this as it was happening, there was no independent corroboration of the officer's testimony. The test for sufficiency, however, requires only that the evidence, if believed, support a finding that appellant possessed a controlled substance in violation of R.C.
{¶ 12} Possession of drug paraphernalia containing drug residue is sufficient to support such a conviction for drug possession. State v.Teamer,
{¶ 13} Appellant's first assignment of error is not well taken and is overruled.
{¶ 15} A manifest-weight-of-the-evidence argument involves determining whether there exists a greater amount of credible evidence to support one side of an issue rather than the other. State v. Thompkins,
{¶ 16} We see no manifest miscarriage of justice. To be sure, the trial court expressed concern over the conflict in testimony as it pertained to the physical condition of appellant's mother. Finding this testimony conflicting, however, did not require the trial court to conclude that the remainder of the officers' testimony was any less credible. It is within the purview of the factfinder to believe all or part of any testimony the factfinder hears. We cannot say that the trial court lost its way in resolving this conflicting testimony so as to create a manifest miscarriage of justice. On the contrary, the officers' testimony supported that appellant had in his possession a crack pipe before he discarded it and that crack cocaine was found not only on the dining room table but in an area of the residence within close proximity to appellant.
{¶ 17} Appellant's second assignment of error is not well taken and is overruled.
{¶ 18} The judgment of the trial court is affirmed.
COLLEEN CONWAY COONEY, P.J., AND ANTHONY O. CALABRESE, JR., J., CONCUR.