[Cite as State v. Johnson, 2013-Ohio-2692.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98966




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   SHAYLA JOHNSON
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   REVERSED, VACATED, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-556207

        BEFORE: Rocco, J., Boyle, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: June 27, 2013
ATTORNEY FOR APPELLANT

Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square
Suite 1900
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGuinty
Cuyahoga County Prosecutor

By: Marcus A. Henry
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

      {¶1} Defendant-appellant      Shayla Johnson (“Johnson”) appeals from her

convictions for drug trafficking and drug possession, both with firearm specifications,

and from her conviction for possessing criminal tools. On appeal, Johnson argues that

the trial court erred in denying her motion for acquittal under Crim.R. 29 because there

was insufficient evidence to sustain the convictions. We agree and so we reverse the

trial court’s final judgment and remand the case to the trial court with instructions to

vacate the convictions.

      {¶2}    Johnson was indicted for two counts of drug trafficking under R.C.

2925.03(A)(1) and 2925.03(A)(2); for drug possession under R.C. 2925.11(A); and for

possessing criminal tools under R.C. 2923.24(A). All of the counts were fifth-degree

felonies, and contained forfeiture specifications under R.C. 2941.1417(A). The drug

trafficking and drug possession counts all included a one-year firearm specification under

R.C. 2941.141(A). The case proceeded to a bench trial.

      {¶3} Eva Sanders (“Sanders”), a codefendant, testified on behalf of the state.

Sanders, who was addicted to crack cocaine, explained that she and co-defendant, Carlene

Wiley (“Wiley”), a drug dealer, had a relationship where Sanders would bring customers

to Wiley, and, in exchange, Wiley would give Sanders crack cocaine for her personal use.



      {¶4} On the date of the incident, Sanders had seen Wiley earlier that afternoon,

and, at that point, Wiley was alone, selling crack cocaine on a bicycle. Wiley told
Sanders that she had gotten into an altercation, that someone had tried to rob her, and that

she would be back later.

       {¶5} Sanders saw Wiley later that evening sitting in the driver’s seat of a parked

car. Johnson was sitting in the passenger seat. Sanders had known Wiley for over ten

years, but this was the first time Sanders had ever seen Johnson. Sanders had $20, so she

approached Wiley, purchased some crack cocaine, and went into a building to smoke it in

the hallway.   Sanders wanted to get high again.        Knowing that Wiley would give

Sanders more crack cocaine if Sanders could bring Wiley a customer, Sanders started

looking around for a potential customer.

       {¶6} Meanwhile, Detective Mike Duller (“Det. Duller”) had provided marked

currency (“marked buy money”) and a body wire to a confidential informant (“the

informant”). Det. Duller took the informant to a parking lot in an area known for drug

activity so that the informant could attempt to procure crack cocaine with the marked buy

money. Det. Duller heard on the wire that the informant was introduced to Sanders.

       {¶7} The informant told Sanders that he wanted to purchase $20 in crack cocaine

and Sanders told the informant that she could obtain it for him. Sanders walked over to

the driver’s side of the car where Wiley was sitting and dropped the $20 in marked buy

money in Wiley’s lap. Wiley gave Sanders the crack cocaine, and Sanders walked away,

placing the drugs on the ledge of a building. During the course of the transaction,

Johnson was “just sitting there.” Tr. 130. Sanders did not observe any firearms in the

car.
         {¶8} After Sanders placed the crack cocaine on the ledge, Det. Duller received a

signal from the informant that the drug transaction had been completed.                 Law

enforcement arrived at the scene to arrest Sanders, Wiley, and Johnson.

         {¶9} A body search of Wiley revealed $24 in unmarked cash, $20 of marked buy

money, a firearm, and crack cocaine. The crack cocaine was recovered from the front

waistband of Wiley’s pants. The firearm was recovered from the back of Wiley’s pants.

         {¶10} Law enforcement searched Johnson and recovered a cellular phone and

$466 in cash. None of the currency found on Johnson was marked buy money. No

weapons were recovered from Johnson. No drugs were recovered from Johnson.

         {¶11} Wiley testified that she and Johnson were friends, that they had met up that

evening to go out, and that, on the way, Wiley made a stop to sell some crack cocaine.

Wiley testified that Johnson did not know that Wiley had any contraband on her person.

Wiley stated that they took Johnson’s car, but that Wiley drove, because Wiley had a

driver’s license and insurance. Wiley testified that her firearm was tucked in the back,

left side of her pants and that she was wearing a large hoodie that was zipped up. Wiley

denied having sold crack cocaine to Sanders earlier that day, but acknowledged that she

sold the crack cocaine that Sanders had purchased for the informant. Wiley testified that

she did not make the transaction in the car, but rather, had gotten out of the car to conduct

the transaction. Wiley also testified that she had not given Johnson money to hold that

night.
       {¶12} Det. Duller, two other members of law enforcement involved in the arrests,

and Sanders all testified that some drug dealers split the work between them so that one

person holds the drugs and another person holds the money that was earned from the drug

sale. The latter person is known as “the bank.” Det. Duller explained that, under this

arrangement, the dealer would “pass off the money to [the bank] to protect their

investment when the police come and snatch them up. If that should happen, they’re

found with maybe some drugs but not found with any money. As a result, there’s no * *

* business loss.” Tr. 54. Det. Duller testified that, while not “not definite,” he believed

that Johnson “was probably the bank.” Tr. 60, 61. Although Det. Duller acknowledged

that he had no personal knowledge of how Johnson obtained the $466, he theorized that

the money constituted drug-sale proceeds. Sanders testified that she had no knowledge

that Johnson was acting as the bank.

       {¶13} At the conclusion of the bench trial, the trial court found Johnson guilty of

drug trafficking under R.C. 2925.03(A)(1), drug possession under R.C. 2925.11(A), and

possessing criminal tools under R.C. 2923.24(A); the first two convictions included a

one-year firearm specification under R.C. 2941.141(A). The trial court also found that

the cell phone, the gun, and all of the money recovered were subject to forfeiture. The

trial court found Johnson not guilty of drug trafficking under R.C. 2925.03(A)(2).

Johnson was sentenced to 18 months imprisonment and to postrelease control. Johnson’s

notice of appeal presents two assignments of error for our review.

       I. The trial court erred in denying Johnson’s Crim.R. 29(A) motion for
       acquittal, because there was insufficient evidence
        to sustain the convictions.

        II. The convictions were against the manifest weight of the evidence.

        {¶14} We sustain the first assignment of error because there was insufficient

evidence to support the convictions. We decline to address the second assignment of

error because it is moot.

        {¶15} Under Crim.R. 29, a motion for judgment of acquittal should be granted if

the evidence is insufficient to sustain a conviction for the offense. Viewing all the facts

in a light most favorable to the prosecution, we will not reverse the trial court’s judgment

unless reasonable minds could only reach the conclusion that the evidence failed to prove

all elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus. We examine each conviction in

turn.

                                      Drug Trafficking

        {¶16} In order to convict Johnson for drug trafficking under R.C. 2925.03(A)(1),

the state had to demonstrate that Johnson knowingly sold or offered to sell the crack

cocaine to Sanders. The state proceeded on the theory that Johnson aided and abetted

Wiley in the crack cocaine sale. “‘Aiding and abetting contains two basic elements: an

act on the part of the defendant contributing to the execution of a crime and the intent to

aid in its commission.’” State v. Wilcox, 8th Dist. No. 90492, 2008-Ohio-4249, ¶ 19,

quoting State v. Sims, 10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). But
“[m]ere presence during the commission of a crime * * * does not constitute aiding and

abetting.” Wilcox, citing State v. Peavy, 8th Dist. No. 80480, 2002-Ohio-5067, ¶ 32.

       {¶17} The state relies on Sanders’s testimony to support its position that there was

sufficient evidence to convict Johnson for drug trafficking. Sanders testified that she had

earlier seen Wiley selling crack cocaine on a bicycle, and that Wiley told Sanders that

people had tried to rob her. Several hours later, Wiley returned in Johnson’s car with

Johnson, and Wiley sold Sanders crack cocaine. According to the state, one could infer

that Wiley came back in Johnson’s car in order to protect herself from would-be robbers,

and that Johnson “aided Wiley in the trafficking by providing a car to Wiley to sell crack

cocaine.” State Br. at 8.

       {¶18} We have reversed convictions for drug trafficking, drug possession, and

possession of criminal tools on strikingly similar facts to those presented in the instant

case. In State v. Whyte, 8th Dist. No. 59779, 1992 Ohio App. LEXIS 343 (Jan. 30,

1992), the appellant was the passenger in a car that was pulled over by law enforcement.

The car belonged to the appellant’s girlfriend, but the codefendant was operating the

vehicle. Law enforcement searched the driver and found cocaine and a butterfly knife.

A search of appellant uncovered $250 in cash ($125 of which was Jamaican money) and

an address book containing phone numbers for Manhattan, the Bronx, Philadelphia,

Puerto Rico, Miami, and Washington D.C. Id. at *2-3. No drugs or weapons were

recovered from the appellant.
       {¶19} The state argued that the following evidence supported the convictions: the

car was owned by the appellant’s girlfriend; both appellant and the driver were

“extremely nervous” when the car was stopped for a traffic violation; the multiple bags of

cocaine were found “loosely wrapped (not in the pockets)” in a coat laying on the driver’s

lap, about six to ten inches from the appellant; the appellant and the driver listed the same

name on their booking slips for who to notify; although appellant was unemployed, he

was carrying $250 in cash; and appellant’s address/phone book was a “prototypical drug

book.” Id. at *10.

       {¶20} We concluded that the evidence did not support a finding that appellant

aided and abetted cocaine trafficking. In reaching this conclusion, we explained that

“[o]ur penal laws and constitution ha[ve] not as yet endorsed guilt by association. An

individual must be tried for crimes he commits and not those committed by his associates

unless there is strong evidence linking the accused to the crimes of his associate.” Id. at

*13.

       {¶21} In contrast, in State v. Capretta, 8th Dist. No. 88986, 2008-Ohio-138, ¶ 17,

we determined that there was sufficient evidence to convict the appellant of aiding and

abetting drug trafficking where the appellant took actions that furthered the execution of

the crime.   In Capretta, the appellant drove the co-defendant to two drug sales on two

separate occasions.   In the first instance, she moved into the back seat of the car so that

the buyer could sit in the front seat, and then she got back into the driver’s seat and drove

the codefendant away.     Two days later, she again drove the codefendant to the same
location as the previous drug sale, left the vehicle so that the buyer could get into the car,

returned to the car at the conclusion of the sale, and drove the codefendant away.        We

concluded that, “[b]ased on the circumstances of this case, [appellant’s] intent to assist in

the distribution and sale of the drugs can be inferred.” Id.

       {¶22} In the instant case, the state’s evidence is even less compelling than the

evidence presented in Whyte. The fact that Wiley conducted the single drug transaction

in Johnson’s car and in Johnson’s presence does not, standing alone, establish that

Johnson aided and abetted Wiley in trafficking drugs. To conclude otherwise would be

to endorse guilt by association. Sanders testified that she approached the driver’s side of

the car, placed the marked buy money in Wiley’s lap, and that Wiley gave Sanders the

crack cocaine. There was no testimony that Johnson took any action to facilitate the

transaction between Wiley and Sanders. Unlike the appellant in Capretta, who drove to

the sale and moved about in order to facilitate the sale, in the present case, Johnson was

“just sitting there.” Tr. 130. The state did not identify a single overt act made by

Johnson to support its theory that she aided and abetted a crime.

       {¶23} Further, in spite of the testimony that established that some drug dealers

divide the labor so that one holds the money and the other holds the drugs, there was no

evidence that tended to show that this was the arrangement in the instant case. “Mere

possession of money does not constitute prima facie evidence of criminal purpose * * *.”

Whyte, 1992 Ohio App. LEXIS 343 at *14 (discussing R.C. 2923.24). No drugs or

marked buy money were found on Johnson. The witnesses observed only one drug
transaction: that transaction involved only Wiley and Sanders, and the proceeds from that

transaction were found on Wiley.            The state provided no direct or circumstantial

evidence whatsoever to support its theory that Johnson was the bank. Speculations are

not evidence. To the contrary, the fact that Johnson was sitting right next to Wylie cuts

against the state’s testimony that the purpose of a bank is to keep distance between the

drug transaction and the proceeds from that transaction.

      {¶24} The state attempts to link the money found on Johnson with the drug

transactions that Wiley made when she was alone on her bicycle earlier that day. But the

uncontroverted testimony established that Wiley left for several hours before returning in

the car with Johnson. Thus, there is no logical nexus between the money found on

Johnson that evening and the drug transactions that Wiley made several hours earlier.

The state’s case against Johnson was erected on a foundation of mere suspicion, from

which it built inference upon inference upon inference. Such a precarious structure

cannot support a conviction.

      {¶25} Viewing all the facts in a light most favorable to the prosecution, reasonable

minds could only reach the conclusion that the evidence failed to establish beyond a

reasonable doubt that Johnson aided and abetted Wiley in selling crack cocaine to

Sanders.   Rather, Johnson was merely present during the commission of the crime.

Accordingly, the trial court erred in denying Johnson’s Crim.R. 29 motion, and we

reverse and vacate Johnson’s conviction under 2925.03(A)(1).1

      1
       The trial court’s rationale for denying the motion is difficult to fathom.
                                       Drug Possession

       {¶26} According to Johnson, the state failed to present sufficient evidence that

she had constructive possession of the crack cocaine that was found on Wiley’s person.

We agree. Johnson was convicted of drug possession under R.C. 2925.11(A), which

provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance

* * *.”    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 of an object may be actual or constructive. State v. Smith, 92 Ohio

App.3d 172, 175, 634 N.E.2d 659 (8th Dist.1993). Constructive possession requires that

the defendant is able to exercise dominion or control over the object, and may be proved

by circumstantial evidence. State v. Perry, 8th Dist. No. 84397, 2005-Ohio-27, ¶ 70.

       {¶27} The state argues that Johnson constructively possessed the crack cocaine

that was recovered from Wiley’s front waistband.             According to the state, because

Johnson was sitting next to Wiley in the front seat of the car, with only a console between

them, Johnson exercised dominion and control over the crack cocaine. But on the facts

of this case, Johnson could exercise dominion and control over the crack cocaine only if

she were to reach over the console, put her hand down Wiley’s pants, and extract the

crack cocaine from Wiley’s pants. 2 We decline the state’s invitation to expand the


       2
         This would also require us to assume that Wiley would not physically prevent Johnson from
violating her personal space in this manner.
definition of constructive possession to include such a scenario. See also Whyte, 1992

Ohio App. LEXIS 343, at *10-11 (state presented insufficient evidence that the passenger

possessed drugs that were found in a coat sitting on the driver’s lap).

       {¶28} The state also argues that Johnson had dominion and control over the drugs

based on the fact that the car belonged to Johnson. But the drugs were not found in

Johnson’s car; they were found on Wiley’s person, in the front waistband of her pants.

Accordingly, the state’s position is unsupported by the record evidence. Because the

evidence presented by the state did not establish beyond a reasonable doubt that Johnson

possessed crack cocaine, the trial court erred in denying her Crim.R. 29 motion.

Accordingly, we reverse and vacate Johnson’s conviction under R.C. 2925.11(A).

                                   Firearm Specification

       {¶29} Having determined that there was insufficient evidence to support Johnson’s

convictions for drug trafficking and drug possession, we easily conclude that there was

insufficient evidence to support the one-year firearm specification attaching to both of

those offenses.    R.C. 2941.141(A) provides that the one-year firearm specification

applies when “the offender had a firearm on or about h[er] person or under h[er] control

while committing the offense.” (Emphasis added.) As set forth above, the state did not

meet its burden to show that Johnson committed the offenses, and so R.C. 2941.141(A) is

inapplicable. Accordingly, we reverse the one-year firearm specifications.



                               Possession of Criminal Tools
         {¶30} Finally, we conclude that the evidence presented at trial was insufficient to

support Johnson’s conviction for possession of criminal tools.           According to the

indictment, the criminal tools consisted of money, the firearm found in Wiley’s pants, and

the cell phone. In order to convict Johnson of possession of criminal tools under R.C.

2923.24(A), the state had to demonstrate that Johnson possessed or had under her control

the money, the firearm, and/or the cell phone, with the purpose to use any or all of these

items in a criminal manner.

         {¶31} In our discussion about drug possession under R.C. 2925.11(A), we

explained our reasons for concluding that Johnson did not possess the crack cocaine that

was recovered from the front of Wiley’s pants. For the very same reasons, we conclude

that Johnson did not possess the firearm that was similarly found in the back of Wiley’s

pants.

         {¶32} While the state did establish that Johnson possessed money and a cell phone,

it did not establish beyond a reasonable doubt that she possessed these items with the

purpose to use them criminally. In our discussion about drug trafficking under R.C.

2925.03(A)(1), we concluded that the evidence failed to demonstrate that the money

found on Johnson’s person was connected to the sale of drugs. Applying this same

reasoning to Johnson’s conviction for possessing criminal tools under R.C. 2923.24(A),

we conclude that the state failed to establish that the money recovered from Johnson was

possessed with the purpose to use it criminally.
       {¶33} Turning to the cell phone, Johnson’s mere possession of the phone, without

more, does not establish that she possessed it with the purpose to use it criminally. The

state presented no evidence whatsoever tending to show that the cell phone was used in

furtherance of a crime or that Johnson intended to use the cell phone in the furtherance of

a crime.     On appeal, the state makes no argument with respect to the cell phone.

Because the state did not present sufficient evidence that Johnson was in possession of

criminal tools, the trial court erred in denying her Crim.R. 29 motion, and we reverse and

vacate Johnson’s conviction under R.C. 2923.24(A).

       {¶34} The trial court’s judgment is reversed and upon remand the convictions shall

be vacated. The forfeiture orders are reversed and on remand shall be vacated.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.



____________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
