[Cite as State v. Kirk, 2012-Ohio-2056.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96695




                                           STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     O’SULLIVAN KIRK
                                                      DEFENDANT-APPELLANT



                     JUDGMENT:
   AFFIRMED IN PART AND REVERSED AND REMANDED IN
                        PART



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-537905

        BEFORE: Sweeney, P.J., Jones, J., and Keough, J.
        RELEASED AND JOURNALIZED: May 10, 2012
ATTORNEY FOR APPELLANT

John T. Castele, Esq.
615 West Superior Avenue
Suite 1310
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Marcus A. Henry, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Defendant-appellant O’Sullivan Kirk (“defendant”) appeals his convictions

for drug trafficking, drug possession, and possession of criminal tools. After reviewing

the facts of the case and pertinent law, we affirm in part and vacate in part.

       {¶2} On May 20, 2010, East Cleveland police officer Jonathan O’Leary stopped a

Dodge Caravan for turning right without a signal. Barrington West was driving the van,

and defendant was sitting in the passenger seat. When Officer O’Leary approached the

vehicle, he smelled the odor of unburned marijuana. Officer O’Leary searched the van

and found a bag on the floor between the two front seats. The bag was from American

Eagle clothing store, and defendant admitted that it belonged to him. Inside this bag was

a large Ziploc-style bag “stuffed full” of marijuana.

       {¶3} On June 9, 2010, defendant was charged with drug trafficking in violation of

R.C. 2925.03(A)(2), a fourth degree felony; drug possession in violation of R.C.

2925.11(A), a fourth degree felony; and possession of criminal tools in violation of

2923.24(A), a fifth degree felony. The case was tried to the bench, and on March 30,

2011, defendant was found guilty as indicted and sentenced to community control

sanctions.

       {¶4} Defendant appeals and raises two assignments of error for our review.
       {¶5} I. “The state produced insufficient evidence to support the defendant’s

convictions.”

       {¶6}     Specifically, defendant argues that evidence of a large quantity of drugs,

standing alone, is insufficient to prove drug trafficking. Defendant also argues that there

was insufficient evidence to show that he had knowledge of the bag’s contents in relation

to the drug possession and possession of criminal tools convictions.

       {¶7} An appellate court’s function when 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. 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.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶8} Defendant was convicted of drug trafficking in violation of R.C.

2925.03(A)(2), which states that “[n]o person shall knowingly * * * [p]repare for

shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled

substance when the offender knows or has reasonable cause to believe that the controlled

substance is intended for sale or resale by the offender or another person.”

       {¶9} Defendant argues that “the mere possession of a large quantity of drugs, in

and of itself, is insufficient to establish” trafficking, and cites to State v. Collins, 8th Dist.

No. 95422, 2011-Ohio-4808, for support.             In Collins, this court reversed a drug
trafficking conviction based on insufficient evidence. The defendant in Collins received

two packages containing large amounts of drugs — one via Federal Express and one via

the United States Postal Service. This court held that “[r]eceipt of drugs alone is not one

of the enumerated methods of violating the ‘preparation for shipment’ statute” R.C.

2925.03(A)(2). Collins at ¶ 29.

       {¶10} In the instant case, defendant’s drug trafficking conviction is not based on

“preparation for shipment.” Rather, there is evidence in the record that the drugs were in

a moving vehicle, arguably qualifying as transport. However, our analysis under R.C.

2925.03(A)(2) does not end here. To convict a defendant of drug trafficking, the state

must prove that the defendant “knows or has reasonable cause to believe that the

controlled substance is intended for sale * * *.” The reasoning in Collins applies to the

case at hand insomuch as the quantity of drugs alone is insufficient to create an inference

that defendant knew or should have known that the marijuana was intended for sale.

       {¶11} As the Collins court noted,

       [w]hile it is certainly acceptable to infer certain facts or circumstances from
       the evidence at hand, inferences that establish criminal elements based on
       other inferences not established in fact thwart how criminal liability should
       be established in our system of justice.

Id. at ¶ 25.

       {¶12} Upon review, we find insufficient evidence to convince a fact-finder that

defendant knew he was transporting marijuana intended for sale.              Defendant’s first

assignment of error is sustained as it relates to his conviction for drug trafficking.
       {¶13}   Defendant was also convicted of drug possession in violation of R.C.

2925.11(A), which states that “[n]o person shall knowingly obtain, possess, or use a

controlled substance” and possessing criminal tools in violation of R.C. 2923.24(A),

which states that “[n]o person shall possess * * * any substance, device, instrument, or

article, with purpose to use it criminally.” Pursuant to R.C. 2901.22(B),

       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. A person has knowledge of circumstances when he is aware
       that such circumstances probably exist.

       {¶14} Although defendant concedes to possessing the bag, he argues that the state

failed to produce sufficient evidence that he knew the bag contained marijuana.

Defendant essentially argues that the state was required to present evidence other than

actual possession to show that defendant knew what he possessed. However, under R.C.

2901.22(B), knowledge can be proven when a person “is aware that such circumstances

probably exist.”    In the instant case, we find the evidence sufficient to show that

defendant knew what was in the shopping bag that he admitted to possessing.

       {¶15} As to the charge of possessing criminal tools, the indictment alleged that

defendant and West “did possess or have under the person’s control * * * U.S. currency

and/or a 2001 Dodge Caravan motor vehicle with purpose to use it criminally.”

Defendant alleges that the court found “that the bag containing the marijuana was used as

a criminal tool.” However, our review of the transcript, coupled with the indictment, does

not support this allegation. We find sufficient evidence to show that defendant, who was

a passenger in the van, possessed $360 cash with the intent to use it criminally.
       {¶16} Accordingly, defendant’s first assignment of error is sustained as it relates

to drug trafficking and overruled as it relates to drug possession and possession of criminal

tools. Defendant’s drug trafficking conviction is vacated. This matter is remanded to the

trial court with instructions to vacate this conviction. Defendant’s remaining convictions

are affirmed.

       {¶17} In defendant’s second assignment of error, he argues as follows:

       {¶18} II. “The defendant’s convictions were against the manifest weight of the

evidence.”

       {¶19} Specifically, defendant argues that his drug trafficking conviction is against

the manifest weight of the evidence.         This assignment of error is moot given our

disposition of defendant’s first assignment of error. See App.R. 12(A)(1)(c).

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

       It is ordered that appellee and appellant split 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. The defendant’s conviction 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.
JAMES J. SWEENEY, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
