[Cite as State v. Williams, 2011-Ohio-4126.]

               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 96244



                                        STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   LARRY M. WILLIAMS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-517939

        BEFORE: Stewart, P.J., Celebrezze, J., and Sweeney, J.
       RELEASED AND JOURNALIZED: August 18, 2011

ATTORNEY FOR APPELLANT

James R. Willis
323 W. Lakeside Avenue
420 Lakeside Place
Cleveland, OH 44113-1009


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: William Leland
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} Defendant-appellant,    Larry   Williams,   appeals   from    his

convictions for      possession of drugs, drug trafficking with a schoolyard

specification, tampering with evidence, and possession of criminal tools.

Williams complains that: (1) his rights guaranteed by the federal and state

constitutions were violated when the trial court denied his Batson objections,

(2) the court erred when denying his motion to suppress, (3) insufficient
evidence was offered by the state to support the schoolyard specification, and

(4) the evidence was insufficient as a matter of law to support his convictions.

      {¶ 2} Vice detectives from the Cleveland Police Department’s Second

District received a tip from a confidential reliable informant (“CRI”) that

“Jose” was engaged in drug trafficking, and then organized and monitored a

telephone call from the CRI to “Jose” to arrange a transaction for the sale of

crack cocaine. The CRI and “Jose” agreed upon a rendezvous point. The

officers ensured that the CRI was free of contraband, provided “buy” money,

and staked out the prearranged meeting point.

      {¶ 3} A short time later, when Williams and co-defendant John Jones

arrived at the agreed upon location by automobile, the CRI approached and

subsequently entered the back seat of the vehicle. The vehicle, while under

surveillance, circled the block.   The CRI, after exiting the vehicle, used a

prearranged signal to communicate to the detectives that the drug purchase

had taken place. The CRI then provided the detectives the illegal narcotics

and additionally informed them that front seat passenger “Jose” still

possessed a sizable quantity of crack cocaine.

      {¶ 4} When Williams and Jones drove away from the area where the

transaction occurred, the detectives followed. Police takedown units halted

the vehicle several blocks away. Williams began flinging crack cocaine from

the front passenger car window onto the street and over the edge of a bridge.
Williams and Jones were taken into custody, and the ensuing search revealed

“buy” money in their possession along with several cellular telephones.

Additionally, numerous crack rocks were recovered adjacent to the vehicle

and below the bridge, having a probable street value of around $2,000.

      {¶ 5} Williams    first   argues   that    the   trial   court   deserted   its

responsibility as gatekeeper by not requiring the prosecutor to disprove the

presumption of racial discrimination when he repetitively used peremptory

strikes against black jurors, and this in turn resulted in a deprivation of his

federal and state constitutional rights.        He contends that the prosecutor

offered no genuine race-neutral reasons for striking African-American jurors.

      {¶ 6} In order to establish purposeful discrimination in the exercise of

peremptory challenges, a defendant must show that he is a member of a

cognizable racial category, that the prosecutor has utilized peremptory

challenges during jury selection to eliminate members of defendant’s race,

and that the facts and other related circumstances raise a presumption of

resolute prejudice.    Batson v. Kentucky (1986), 476 U.S. 79, 96, 106 S.Ct.

1712, 90 L.Ed.2d 69. The defendant is permitted to rely on the belief that

peremptory challenges are tantamount to a jury selection procedure that

allows “those to discriminate who are of a mind to discriminate.” Avery v.

Georgia (1953), 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244.
      {¶ 7} The   trial   court   should   take   into   account   all   relevant

circumstances when deciding whether defendant has accomplished the

necessary showing; if a prima facie showing has been made, the burden then

shifts to the state to proffer an unbiased justification for challenging the

affected jurors. Batson, 476 U.S. at 96-97. “[T]o rebut a prima facie case,

the proponent of a strike must give a ‘clear and reasonably specific’

explanation of his ‘legitimate reasons’ for exercising the challenges.” Puckett

v. Elam (1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834, citing

Batson, 476 U.S. at 98. The state cannot justify the exclusion of jurors on

the supposition that they will be biased because they share the race of

defendant, or “rebut the defendant’s case merely by denying that he had a

discriminatory motive or ‘affirming his good faith in making individual

selections.’” Batson, 476 U.S. at 98, citing Norris v. Alabama (1935), 294

U.S. 587, 598, 55 S.Ct. 579, 79 L.Ed. 1074.          Nevertheless, “[u]nless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason

offered will be deemed race neutral.”       Puckett, 514 U.S. at 768, citing

Hernandez v. New York (1991), 500 U.S. 352, 360, 111 S.Ct. 1859, 114

L.Ed.2d 395. “A trial court’s finding of no discriminatory intent will not be

reversed on appeal unless clearly erroneous.” State v. Were, 118 Ohio St.3d

448, 2008-Ohio-2762, 890 N.E.2d 263, ¶61.
      {¶ 8} Here, Williams is a 26-year-old African-American male.           The

state issued seven peremptory challenges, and five of those challenges

excluded African-American jurors from the panel. The state also excluded

two Caucasians, and when jury selection was ultimately accomplished, five of

the 12 jurors were African-American. Williams has satisfied the first two

prongs of the above-noted test. The burden then shifted to the state to justify

its peremptory strikes of the African-American jurors.

      {¶ 9} The    state’s   articulated   reasons   for   excusing    the   five

African-American jurors consisted of: one juror did not seem interested in the

proceeding; a second juror did not take the proceeding seriously; another juror

was employed at an establishment inundated by a high rate of crime; a fourth

juror failed to remember that a family member was a former assistant county

prosecutor; and lastly, the final juror was unemployed and difficult to

understand.

      {¶ 10} In this instance, the state’s pronounced rationale in defense of its

peremptory strikes are expressly unambiguous, facially race-neutral, void of

inherent discriminatory intent, and at the very least, plausible. In fact, each

of the above-noted reasons, if accurate, had an adverse effect on the ability of

the prospective candidates to successfully perform as jurors. As such, the

state has met its burden of asserting race neutral reasons.
      {¶ 11} Moreover, the trial court engaged in more than a perfunctory

inquiry into the state’s motivation for exercising its challenges. The record

indicates that during a discussion between the court and counsel on the

record and out of the hearing of the jury, the court inquired with specificity as

to the reasons for the state’s exercise of the related strikes. Therefore, the

lower court’s denial of Williams’s Batson objections was proper and its finding

of no discriminatory intent was not clearly erroneous.

      {¶ 12} Williams furthermore asserts that the trial court erred in denying

his motion to suppress because no probable cause existed to stop the vehicle

in which he was a passenger. He maintains that the evidence proffered by

the state to prove that a drug-related sales transaction had occurred consisted

only of bare assertions by the police detectives that a “phantom” CRI,

protected by privilege, not produced, and unavailable to testify, informed

them that a transaction had in fact transpired. Williams also notes that no

traffic laws were violated, so a traffic stop could not serve as justification for

the ensuing stop.    As a result, he contends that the warrantless search,

seizure, and arrest were unlawful and that all subsequent evidence and

statements obtained were necessarily tainted fruit from the poisonous tree.

      {¶ 13} Warrantless searches and seizures are forbidden by the Fourth

and Fourteenth Amendments to the U.S. Constitution and, as such, are

unreasonable unless an exception is applicable. Katz v. United States (1967),
389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576.          One departure, the

automobile exception, allows police to carry out a warrantless search of a

vehicle if there is probable cause to believe that the vehicle contains

contraband or other evidence that is subject to seizure, and exigent

circumstances compel a search or seizure. Chambers v. Maroney (1970), 399

U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States (1925),

267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.       The mobility of automobiles

frequently results in the creation of exigent circumstances, and is the

customary rationalization for this exception to the Fourth Amendment’s

warrant obligation. California v. Carney (1985), 471 U.S. 386, 391, 105 S.Ct.

2066, 85 L.Ed.2d 406.

      {¶ 14} The Fourth Amendment permits a police officer to stop and

detain an individual if the officer has a reasonable suspicion, based upon

specific and articulable facts, that criminal activity “may be afoot.” Terry v.

Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889. In determining

whether reasonable suspicion is present, courts must scrutinize the “‘totality

of the circumstances’ of each case to determine whether the detaining officer

has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”

United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d

740, quoting United States v. Cortez (1981), 449 U.S. 411, 417-18, 101 S.Ct.

690, 66 L.Ed.2d 621.
      {¶ 15} The analysis to determine if there is probable cause to

substantiate an arrest is “whether at that moment the facts and

circumstances within [the police officers’] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent

[person] in believing that the [arrestee] had committed or was committing an

offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142.

      {¶ 16} In this case, the facts and circumstances supplying the requisite

probable cause are considerable.       The vice detectives orchestrated an

investigation concerning the sale of illegal drugs, the target of which was

Williams. The detectives then prearranged and monitored a telephone call

from the CRI to Williams in order to coordinate the time, location, and

quantity for the sale of crack cocaine. The officers observed Williams arrive

at the arranged time and as a passenger in a blue Cadillac that was never out

of the sight of the officers throughout the entire incident. The CRI entered

the blue Cadillac and upon exiting conveyed to the authorities, via a

preestablished gesture, that the drug buy had in fact taken place. The CRI

told the police that Williams was in possession of a large quantity of crack

cocaine.   Exigent circumstances giving rise to the subsequent actions of

police takedown units were created when the blue Cadillac utilized in the

suspected drug transaction left the scene.
      {¶ 17} Williams notes that the trial court employed inaccurate language

in denying his motion to suppress by frequently referring to the police

takedown as a “traffic stop.” Nevertheless, the trial court properly denied

the motion to suppress in spite of using the wrong terminology. As a result,

Williams’s contentions are without merit since “a reviewing court is not

authorized to reverse a correct judgment merely because erroneous reasons

were assigned as the basis thereof.” Joyce v. Gen. Motors Corp. (1990), 49

Ohio St.3d 93, 96, 551 N.E.2d 172.

      {¶ 18} Based on these facts, we conclude that the officers presented

reasonable and articulable facts to establish that criminal activity, in this

instance an illegal drug buy, had taken place. In light of the totality of the

circumstances, the facts at bar satisfy the applicable legal standard for

probable cause to stop and search the Cadillac.           Therefore, Williams’s

arguments in support of suppressing the evidence are not persuasive.

      {¶ 19} Williams, in his third assignment of error, contends that the state

offered insufficient evidence of his conviction for the school yard specification.

 He argues that simply passing by a school while in possession of illegal

narcotics is inadequate to support the lower court’s ruling.

      {¶ 20} R.C. 2925.03(C)(3)(d) indicates that if a [drug-related] offense

occurs within the vicinity of a school, it is elevated to a second degree felony.

“R.C. 2925.01(P) defines ‘vicinity of a school’ as ‘on school premises, in a
school building, or within one thousand feet of the boundaries of any school

premises[.]’”   State v. Collins, 8th Dist. No. 95422, 2011-Ohio-2660, ¶26.

Several courts have decided that testimony alone, recounting the requisite

distance and referencing the associated school by name, is sufficient evidence

to sustain a school yard specification.      State v. McDuffey, 3d Dist. No.

13-03-41, 2003-Ohio-6985; State v. Manley, 71 Ohio St.3d 342, 1994-Ohio-440,

643 N.E.2d 1107.

      {¶ 21} Here, trial testimony established the locations where Williams

met the CRI and thereafter traveled while conducting the drug deal as being

within 1,000 feet of the boundary of St. Ignatius High School. Therefore,

Williams’s third assignment of error is overruled.

      {¶ 22} Williams, in his final assignment of error, insists that the trial

court erred when it denied his Crim.R. 29 motion for acquittal because the

evidence offered by the state was insufficient as a matter of law.

      {¶ 23} Crim.R. 29 provides, in pertinent part: “(A) The court on motion

of a defendant or on its own motion, after the evidence on either side is closed,

shall order the entry of a judgment of acquittal of one or more offenses

charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses.”      When a

defendant contests the legal sufficiency of the state’s evidence, “the relevant

question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” State v. Herring, 94 Ohio

St.3d 246, 252, 2002-Ohio-796, 762 N.E.2d 940, citing Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.

      {¶ 24} Williams continually points to discrepancies between the police

reports and trial testimony, and disputes that the officers actually saw crack

cocaine being thrown from the blue Cadillac due to distance and lighting

deficiencies.     He additionally mentions that there were no recovered

containers used for packaging and distributing crack cocaine.            The state

conversely contends the evidence relied upon for conviction was straight

forward and overwhelming.

      {¶ 25} R.C. 2925.11(A) provides that “[n]o person shall knowingly

obtain,   possess,    or   use    a   controlled   substance.”   Drug   trafficking

encompasses activities including preparation of illegal drugs for shipment or

distribution as well as          shipping, transporting, or delivering a controlled

substance.      R.C. 2925.03(A)(2).    The evidence in the record indicates that

the quantity of crack cocaine recovered from in and around the car where

Williams was a passenger weighed about 19 grams with a probable street

value of $2,000.      “Buy” money was found on Williams.          Additionally, no

crack pipes or similar drug paraphernalia associated with personal drug

usage were recovered.       Testimony established that this drug activity was
“committed in the vicinity of a school,” and therefore, the evidence is

sufficient to sustain a conviction pursuant to R.C. 2925.03(C)(2)(b).                        R.C.

2921.12(A)(1) prohibits persons from “alter[ing], destroy[ing], conceal[ing], or

remov[ing] *** any thing with the purpose to impair its *** availability as

evidence ***,” and trial testimony confirms that Williams attempted to

discard crack cocaine by throwing it out of the window of the automobile.

Finally, R.C. 2923.24 prohibits the use of any device or instrument for

criminal purposes, and Williams violated this statute when he used his

cellular telephone to arrange the drug buy with the CRI.

       {¶ 26} Viewing the evidence in a light most favorable to the state, as we

must, a rational trier of fact could find all the essential elements of Williams’s

crimes proven beyond a reasonable doubt. Williams’s fourth assignment of

error is overruled.

       Judgment affirmed.

       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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.                The defendant’s

convictions 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.




___________________________________________
MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR
