[Cite as State v. Jackson, 2012-Ohio-4278.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97743




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                             LAWRENCE B. JACKSON
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                               REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-554303

        BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEY FOR APPELLANT

Gary Stroh
P.O. Box 110088
Cleveland, OH 44111


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Erin Stone
       Sherrie S. Royster
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant Lawrence Jackson appeals from his convictions for drug

possession, drug trafficking, obstructing official business, assault, escape, and possession

of criminal tools. For the reasons stated herein, we affirm in part, reverse in part, and

remand.

       {¶2} In December 2010, Jeffrey Yasenchak was a detective in the Narcotics Unit

of the Cleveland Police Department. An informant told the detective about a middle

person he used in purchasing crack cocaine.        Det. Yasenchak met the informant on

December 21 at a discreet location where he fit him with a wire and provided him with

money to purchase crack cocaine. The money was previously photocopied in case it was

later recovered by the police. The informant called the middle person on a speaker

phone in order for Det. Yasenchak to hear the conversation setting up a buy.

       {¶3} After the call, Det. Yasenchak and several assisting detectives followed the

informant to the middle person’s house.        The informant entered the house.        Det.

Yasenchak heard a male stating, “you would have to go to the west side to get the crack.”

 He also heard over the wire the men counting the money. The informant then left the

house and returned to Det. Yasenchak.

       {¶4} The assisting detectives followed the middle person to a house on Riverside

Avenue in Cleveland where the middle person entered the house. The middle person left
about five minutes later and returned to his house. About another minute later, the

middle person called the informant and told him, “I got it, I’m good. Come on over.”

       {¶5} The informant retrieved the crack cocaine from the middle person and

provided it to Det. Yasenchak. Det. Yasenchak never identified the middle person, the

original target of the investigation.

       {¶6} Det. Yasenchak thereafter set up surveillance at the Riverside house. On one

occasion, he saw a large, tall black male and a female leave the house. On a separate

occasion, Det. Yasenchak saw a Ford Contour in the driveway. He “ran” the temporary

tag on the car, and learned it was registered to Jackson. When he “pulled” the driver’s

photo for the Ford, Det. Yasenchak recognized the owner as the man seen earlier leaving

the Riverside house, that is, Jackson. The Ford’s temporary tag, however, did not list the

owner’s address as the Riverside house.       Yet on another occasion, Det. Yasenchak

observed the middle person arrive at the house, enter it, and exit about two minutes later.

Jackson followed the middle person out of the house and watched him drive away.

       {¶7} On December 23, 2010, Det. Yasenchak instructed other members of the

narcotics unit to conduct a “trash pull” at the Riverside house. They found the following

signs of drug activity: 15 sandwich bags all with residue, some with corners cut off;

balled up rubber gloves with residue; and paper towels used to dry crack, loaded with

“crumbs.” Instant testing on the plastic bags and “crumbs” came back positive for crack

cocaine. Later lab results confirmed the positive test results. The trash pull offered no

evidence of Jackson’s use of the Riverside house as his address.
       {¶8} Through available databases, Det. Yasenchak identified Tivanni Taylor as

using the Riverside house as her address. She was the woman with Jackson when Det.

Yasenchak first saw him. Jackson’s brother also used the same address, but he was

incarcerated during the time of Det. Yasenchak’s investigation.

       {¶9} Because of the controlled buy and the results of the trash pull,

Det. Yasenchak obtained a search warrant for the Riverside house. Members of the

SWAT team entered the house on December 28 at approximately 7:20 p.m. Detectives

Yasenchak, Elbin Negron, Thomas Klamert, and Scott Moran entered the house and

conducted a systematic search for drugs. Jackson was the only person in the house, and

he was secured in the living room with “zip-ties,” or plastic handcuffs.

       {¶10} Yasenchak found a bag of crack cocaine on a glass end table in the living

room. Detectives Klamert and Negron searched an open closet in the dining room where

they found only male clothing, including some jackets. They also found shoes and a

shoe box with personal papers and mail, including tax information. Items found in the

shoe box included (1) some legal papers for Jackson dated March 2, 2010, September 1,

2010, and November 13, 2009, all with the Riverside address; (2) a May 2008 or 2009

cell phone bill; (3) some utility bills and other pieces of mail in Jackson’s name; (4) a

2008 income tax packet for Jackson; and (5) a photo of Jackson.            According to Det.

Klamert, “I believe the cell phone, that’s in Lawrence Jackson’s name [is registered to]

the address where we’re at, * * * Riverside Avenue.”
       {¶11} Inside an extra large jacket found in the closet, Det. Klamert found a large

bag of crack cocaine.    Four to five smaller bags were inside the larger bag and contained

crack rocks in varying sizes of 2.72, 2.78, 17.91, and 26.68 grams.    Det. Klamert stated

the size and shape of the bags and crack indicated they were intended for distribution.

The size and shape of the crack also matched the interior of a Pyrex glass measuring cup

found in the search, and used to prepare crack cocaine.    Detectives Klamert and Negron

also recovered from the closet floor a black digital scale with residue, later tested to be

positive for crack cocaine.    Packaging material and sandwich bags were also found on

the dining room table.

       {¶12} After discovering the drugs, Det. Negron alerted the other detectives by

stating loudly, “bingo bingo.” Jackson, who was still in the living room adjacent to the

dining room, then stood up and crashed head first through a large window in the living

room. He landed on the front porch, but his feet remained in the house. Det. Negron

grabbed his legs and feet to get him back in the house.    Meanwhile, Detectives Klamert

and Moran went out to the porch to apprehend him. According to Det. Klamert, Jackson

“was hysterical, he was trying to get away.      He was flailing around.    There was all

kinds of broken glass that’s [sic] on the porch. We were giving him commands to stop,

he wasn’t listening at all.”    Det. Moran finally used a taser to calm him, and the

detectives were able to pull him up from the floor.

       {¶13} As a result of the incident and search, Jackson was charged with one count

of drug trafficking, two counts of drug possession, one count of obstructing official
business, one count of assault (against Det. Negron), one count of escape, and one count

of possession of criminal tools. The drug trafficking, drug possession, and possession of

criminal tools counts all included forfeiture specifications under R.C. 2941.1417(A).

       {¶14} A jury trial commenced on November 15, 2011.          Defense counsel moved

for acquittal at the close of the state’s case and that of the defense.     The trial court

denied the motions. The jury returned a guilty verdict on all counts of the indictment,

including the forfeiture specifications.

       {¶15} Jackson now appeals from his convictions, raising two assignments of error.

 First, he asserts the trial court erred when it denied his Crim.R. 29 motion because the

state failed to present sufficient evidence to establish beyond a reasonable doubt the

elements necessary to support the convictions.     Second, he asserts his convictions are

against the manifest weight of the evidence. For the following reasons, we affirm in part

and reverse and remand in part.

       {¶16} When an appellate court reviews a claim of insufficient evidence, “‘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.’”           State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. The weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace,

109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. A motion for acquittal
under Crim.R. 29(A) is governed by the same standard used for determining whether a

verdict is supported by sufficient evidence.   Id.

       {¶17} On the other hand, the weight of the evidence concerns the inclination of the

greater amount of credible evidence offered to support one side of the issue rather than

the other. State v. Robinson, 8th Dist. No. 96463, 2011-Ohio-6077, ¶ 14, citing State v.

Brindley, 10th Dist. No. 01AP-926, 2002-Ohio-2425, ¶ 16. When presented with a

challenge to the manifest weight of the evidence, an appellate court, after

       “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.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An appellate

court should reserve reversal of a conviction as being against the manifest weight of the

evidence for only the most “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 387.

       {¶18} Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding

that a conviction is supported by the manifest weight of the evidence necessarily includes

a finding of sufficiency.         Cleveland v. Kirkpatrick, 8th Dist. No. 94950,

2011-Ohio-2257, ¶ 26, citing State v. Braxton, 10th Dist. No. 04AP-725,

2005-Ohio-2198, ¶ 15. “‘[T]hus, a determination that a conviction is supported by the
weight of the evidence will also be dispositive of the issue of sufficiency.’” Kirkpatrick,

quoting Braxton, ¶ 15.

       {¶19} Circumstantial evidence alone is sufficient to prove constructive possession.

 Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492. Although the mere presence of an

individual in the vicinity of illegal drugs is insufficient to establish the element of

possession, if the evidence demonstrates that the defendant was able to exercise dominion

or control over the drugs, the defendant may be convicted of possession.          State v.

Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976); State v. Haynes, 25 Ohio St.2d

264, 267 N.E.2d 787 (1971). This court has specifically held that 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. Pavlick, 8th Dist. No.

81925, 2003-Ohio-6632, ¶ 17.

       {¶20} Jackson primarily relies on this court’s decision in State v. Creighton, 8th

Dist. No. 95607, 2011-Ohio-5919, in arguing his drug trafficking and drug possession

convictions are not supported by the evidence because he “was merely present at the

location where the officers executed a search warrant.”          Jackson asserts there is

insufficient evidence to establish he knew of or participated in knowingly packing,

preparing for shipment or distribution, or distributing any controlled substance. Jackson

also asserts there is insufficient evidence to show any connection between him and the

crack cocaine recovered in the search, including the drugs removed from the man’s jacket

because the state failed to prove the jacket belonged to him.
       {¶21} In Creighton, Creighton was arrested in his nephew’s home for multiple

offenses, including drug trafficking and drug possession. There were audio recordings

relating to a controlled buy, but Creighton was not in them. There were no other ties to

the home except a suitcase that contained some of Creighton’s belongings, including a

lease showing Creighton’s residence elsewhere.        Evidence indicated Creighton only

spent the night at the nephew’s home. The informant used by the police to conduct the

controlled buy did not even know Creighton was in the house because Creighton was

upstairs in the bathroom when the police found him.

       {¶22} Creighton is easily distinguished on the facts presented to the trial court and

jury in this case.   Det. Yasenchak observed Jackson at the Riverside house on at least

two occasions prior to December 28, the date of the search of the house.         On one of

these occasions, he saw Jackson follow the middle person out of the house. The dining

room closet contained only men’s clothing, including the jacket with the bag of crack

cocaine in the pocket.    The shoe box contained a number of documents, including items

with the Riverside address listed as Jackson’s address. The detectives found in the

closet the shoe box, the digital scale with residue, and the Pyrex cup.   They also found a

bag containing crack cocaine on a table in the living room, and packaging materials,

including plastic bags on the dining room table. All of these items, including the drugs,

were in proximity to Jackson, circumstantial evidence that he was in constructive

possession of them.      Pavlick, 8th Dist. No. 81925, 2003-Ohio-6632. The foregoing

establishes Jackson was not merely present in the Riverside house at the time of the
search.   Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351; Haynes, 25 Ohio St.2d 264,

267 N.E.2d 787.

       {¶23} Jackson also asserts the evidence does not support his conviction for

obstructing official business under R.C. 2921.31(A). He argues the act of jumping

through the window does not prove he tried to obstruct, prevent, or interfere with the

detectives’ execution of the search warrant.

       {¶24} R.C. 2921.31(A) provides the following:

               No person, without privilege to do so and with purpose to prevent,
       obstruct, or delay the performance by a public official of any authorized act
       within the public official’s official capacity, shall do any act that hampers or
       impedes a public official in the performance of the public official’s lawful
       duties.

       {¶25} Obstructing official business, in violation of R.C. 2921.31, is established

where there is both an illegal act that quickens the duty of the police officer to enforce the

law, and interference with intent to impede that enforcement. Garfield Hts. v. Simpson,

82 Ohio App.3d 286, 291, 611 N.E.2d 892 (8th Dist.1992), citing Warrensville Hts. v.

Wason, 50 Ohio App.2d 21, 25, 361 N.E.2d 546 (8th Dist.1976). Police officers are

“public officials” within the ambit of the statute.       R.C. 2921.01(A).     Fleeing from

pursuing police may be sufficient to sustain a conviction for obstructing official business.

 State v. Vargas, 8th Dist. No. 97377, 2012-Ohio-2768; State v. Wilson, 8th Dist. No.

96627, 2011-Ohio-6886.

       {¶26} The state presented reliable evidence to demonstrate that Jackson acted with

an intent to impede the detectives’ performance and did, in fact, hamper or impede their
performance.      Jackson’s act of jumping through the window disrupted the search

because it took the efforts of more than four detectives to get him under control, including

one detective’s use of a taser.     This act also was Jackson’s attempt to flee from the

detectives. Id.

       {¶27} Jackson next asserts the evidence does not support his assault conviction

under R.C. 2903.13(A). He argues his kicks to Det. Negron’s chest were not intended to

harm the officer.   Rather, they were merely incidental to his attempts to get up from the

porch floor.

       {¶28} R.C. 2903.13 states in pertinent part that “[n]o person shall knowingly cause

or attempt to cause physical harm to another.”    “A person acts knowingly, regardless of

his purpose, when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature.”   R.C. 2901.22(B).

       “‘Knowingly’ does not require the offender to have the specific intent to
       cause a certain result. That is the definition of ‘purposely.’ Instead,
       whether a person acts knowingly can only be determined, absent a
       defendant’s admission, from all the surrounding facts and circumstances,
       including the doing of the act itself.”

State v. Dixon, 8th Dist. No. 82951, 2004-Ohio-2406, ¶ 16, quoting State v. Huff, 145

Ohio App.3d 555, 763 N.E.2d 695 (1st Dist.2001).

       {¶29} Det. Negron testified Jackson intentionally kicked him three times in the

chest while he was trying to break free from the detective’s grip.    While his intent may

have been to break free, Jackson kicked Det. Negron in the process.      These actions are

easily distinguished from those in State v. Fussell, 8th Dist. No. 95906, 2011-Ohio-4815,
a case cited by Jackson.    In Fussell, the testimony failed to show Fussell caused or

attempted to cause physical harm to an arresting officer. Id. at ¶ 15.

       {¶30} On his claim that the evidence does not support his escape conviction,

Jackson argues he was secured, but not under arrest, at the time of the search and his

going through the window.     The state, therefore, failed to prove the element of detention

required under R.C. 2921.34(A)(1).

       {¶31} Jackson was charged with escape in violation of R.C. 2921.34(A)(1), which

provides, in pertinent part, “[n]o person, knowing the person is under detention * * * or

being reckless in that regard, shall purposely break or attempt to break the detention.”

Although the escape statute is hardly a model of clarity, pursuant to R.C. 2921.01(E),

“detention” includes, among other things, being under “arrest.” State v. Carson, 8th

Dist. No. 90975, 2009-Ohio-2027, ¶ 20.

       {¶32} R.C. 2935.01, even though it contains definitions of many of the critical

terms found in R.C. Chapter 2935, the Ohio arrest statute, does not define “arrest.”   In re

M.D., 12th Dist. No. CA2003-12-038, 2004-Ohio-5904, ¶ 15. However, according to

the Ohio Supreme Court, an arrest occurs when the following four requisite elements are

met:   “(1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by

an actual or constructive seizure or detention of the person, and (4) which is so

understood by the person arrested.” State v. Barker, 53 Ohio St.2d 135, 139, 372 N.E.2d

1324 (1978), paragraph one of the syllabus.
       {¶33} The offenses of resisting arrest and escape are separate and distinct. Arrest

is a criminal process and has been adequately defined in Barker. “Until the arrest is

effected one who resists is guilty of R.C. 2921.33 [resisting arrest], but after that time he

would be in ‘custody,’ ‘detained’ or ‘confined.’ If he should break the detention, he

would be guilty of violating R.C. 2921.34 [escape].” (Emphasis added.) State v. Cross,

58 Ohio St.2d 482, 489, 391 N.E.2d 319 (1979).

       {¶34} Here, detectives secured Jackson’s wrists behind his back while other

detectives searched the house.   The state contends,

       Given that there was cocaine in plain view on the table upon making entry
       to * * * Riverside, detectives certainly had an intent to arrest [Jackson] * *
       * [and] [t]here is no clearer indication to a potential defendant that he is
       likely about to be arrested that [sic] having his hands cuffed behind his
       back.

(Emphasis added.)    While the state may not have meant to reflect the detectives had the

intent to arrest Jackson, and Jackson should have known he was a potential defendant

and likely to be arrested, we conclude the evidence does not support his conviction for

escape because he was not under arrest at the time he jumped through the window.

       {¶35} An arrest, in the technical as well as the common sense, signifies the

apprehension of an individual or the restraint of a person’s freedom in contemplation of

the formal charging with a crime.       A formal arrest, therefore, is not necessarily an

instantaneous event but, rather, is a process beginning with the seizure of a person, which

can encompass acts necessary to effect the formal charging of a crime.            Therefore,

before a defendant is formally charged, temporal and spatial limits are factual issues from
which the trier of fact determines whether the arrest is complete. State v. Turic, 2d Dist.

No. 2010 CA 56, 2011-Ohio-6713. The scenario here may well have supported an

arrest, and hence a subsequent escape charge, had the record been so developed.        The

state offered no evidence of an arrest as the testimony indicated the police secured

Jackson’s wrists solely for safety concerns.   We are constrained by the record before us

and as such must reverse Jackson’s conviction for escape.

       {¶36} Finally, Jackson asserts the evidence does not support his conviction for

possession of criminal tools under R.C. 2923.24(A). He argues the detectives removed a

number of items from the Riverside house, but the state failed to show to whom they

belonged, who bought them, or how they were used in a criminal manner and by whom.

       {¶37} In addition to the cash, drugs, scale, Pyrex measuring cup, and Jackson’s

personal items, the detectives also removed two televisions, a cell phone, a laptop

computer, and a camera from the home.       They also found $135 on Jackson, but it was

not money used in any controlled buy.

       {¶38} R.C. 2923.24 states, “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it criminally.”

R.C. 2925.01(K) defines possession 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. Haynes, 25 Ohio St.2d 264, 269-270, 267 N.E.2d 787.

Constructive possession exists when an individual knowingly exercises dominion and
control over an object, even though that object may not be within the individual’s

immediate physical possession. State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362

(1982), syllabus.

       {¶39} The detectives found in the dining room closet the shoe box with Jackson’s

personal papers, the digital scale with residue, and the Pyrex cup.       They also found

multiple bags of crack cocaine in the pocket of a man’s jacket and a bag with crack

cocaine on a table in the living room.    Packaging materials, including plastic bags, were

found on the dining room table.          While the state may not have proven Jackson’s

possession of criminal tools by evidence of two televisions, a cell phone, a laptop

computer, and a camera, it certainly proved it with the scale, Pyrex cup, and the

packaging materials that were in proximity to Jackson, circumstantial evidence that he

was in constructive possession of them. Id.

       {¶40} After reviewing the entire record, weighing the evidence and all reasonable

inferences, considering the credibility of witnesses and determining whether in resolving

conflicts in the evidence, the jury did not lose its way and create such a manifest

miscarriage of justice that Jackson’s convictions must be reversed and a new trial ordered.

 Jackson’s convictions, excluding the escape conviction, are not against the manifest

weight of the evidence. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.

 The trial court, therefore, did not err in overruling Jackson’s Crim.R. 29 motion as to

these convictions.   Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229;
Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386; Kirkpatrick, 8th Dist. No.

94950, 2011-Ohio-2257.

       {¶41} As to Jackson’s escape conviction, 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.

Leonard. Because of our conclusion that Jackson was never under arrest before jumping

out of the window, this conviction is reversed.

       {¶42} Jackson’s first assignment of error is sustained as it relates to the escape

conviction, and overruled as it relates to the remaining convictions. Jackson’s second

assignment of error is overruled.   Jackson’s escape conviction is reversed.     This matter

is remanded to the trial court with instructions to vacate this conviction. Jackson’s

remaining convictions are affirmed.

       {¶43} Judgment affirmed in part and reversed in part and remanded.

       It is ordered that appellant and appellee share the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
