[Cite as State v. Smith, 2011-Ohio-6466.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96348


                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      STANLEY SMITH
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                           AFFIRMED IN PART, REVERSED
                             IN PART, AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540542

        BEFORE:          Celebrezze, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     December 15, 2011
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Andrew J. Santoli
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶ 1} Appellant, Stanley Smith, appeals his convictions for drug possession and

drug trafficking.    After careful review of the record and relevant case law, we affirm in

part, reverse in part, and remand.

       {¶ 2} On February 4, 2010, Detective Alvin Dancy of the Cuyahoga Metropolitan

Housing Authority Police Department (“CMHA”) received an anonymous tip that

appellant “had several warrants and was hiding out at 4613 Louise Harris Drive in the city

of Cleveland.”      Upon receiving the anonymous tip, Det. Dancy contacted the Cuyahoga

County Sheriff’s Department and confirmed appellant’s outstanding warrants.
       {¶ 3} Det. Dancy and several officers responded to the residence where appellant

was allegedly hiding.     Upon arriving at the residence, Det. Dancy and the officers

identified themselves and were let into the residence by Romon Lavant.          At that time,

Det. Dancy discovered appellant in the residence and placed him under arrest.           Det.

Dancy testified that appellant was read his Miranda rights and indicated that he

understood the extent of his rights. Prior to placing appellant into the patrol car, Det.

Dancy conducted a pat down of appellant and located three rocks of crack cocaine in his

right front pants pocket. Additionally, Det. Dancy recovered $2,160 from appellant’s

left front pants pocket. Subsequent forensic analysis conducted by Nicole Allen of the

Cuyahoga County Regional Forensic Science Laboratory confirmed that the substance

found in appellant’s possession was crack cocaine.

       {¶ 4} On August 18, 2010, appellant was indicted by the Cuyahoga County Grand

Jury in a three-count indictment alleging drug trafficking, in violation of R.C.

2925.03(A)(2), with schoolyard and forfeiture specifications; drug possession, in

violation of R.C. 2925.11(A), with schoolyard and forfeiture specifications; and

possessing criminal tools, in violation of R.C. 2923.24(A).         On January 4, 2011,

appellant filed a motion to suppress the evidence obtained during his arrest.    On January

24, 2011, the trial court held a suppression hearing, after which appellant’s motion to

suppress was denied.

       {¶ 5} On January 26, 2011, appellant executed a jury trial waiver, and a bench

trial commenced.       At the conclusion of trial, appellant was found guilty of drug
trafficking and drug possession. He was found not guilty of possession of criminal

tools.    Additionally, he was found not guilty as to the schoolyard and forfeiture

specifications.      The trial court found that the drug trafficking and drug possession

convictions were allied offenses, and the state elected to pursue sentencing on the drug

trafficking conviction.      The trial court imposed a six-month sentence and ordered

appellant to serve it consecutively to his sentence in an unrelated case.

         {¶ 6} Appellant brings this timely appeal, raising five assignments of error:

         {¶ 7} “I.      The trial court erred in denying appellant’s motion to suppress.”

         {¶ 8} “II.     The trial court erred by denying appellant’s motion to dismiss or his

alternative motion for continuance to obtain information the arresting officer used to

prepare the police report.”

         {¶ 9} “III.    The trial court erred by admitting State’s Exhibits 1 & 2 because the

state did not establish a proper chain of custody.”

         {¶ 10} “IV.    The trial court erred when it denied appellant’s motion for acquittal

under Crim.R. 29 because the state failed to present sufficient evidence to establish

beyond a reasonable doubt the elements necessary to support the convictions.”

         {¶ 11} “V.     Appellant’s convictions are against the manifest weight of the

evidence.”

                                        Legal Analysis

                                                I
       {¶ 12} In his first assignment of error, appellant argues that the trial court erred in

denying his motion to suppress the evidence obtained during the officers’ warrantless

entry into the residence.

       {¶ 13} A motion to suppress presents a mixed question of law and fact.          State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. “When considering

a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the

best position to resolve factual questions and evaluate the credibility of witnesses. * * *

 Consequently, an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.       ***      Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion of

the trial court, whether the facts satisfy the applicable legal standard.”   (Internal citations

omitted.)   Id.

       {¶ 14} The Fourth Amendment to the United States Constitution provides:            “The

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.”

       {¶ 15} The Fourth Amendment protects against unreasonable government

intrusions into areas where legitimate expectations of privacy exist. United States v.

Chadwick (1977), 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538. The Fourth Amendment

proscribes all unreasonable searches and seizures, and it is a cardinal principle that
“searches conducted outside the judicial process, without prior approval by a judge or

magistrate, are per se unreasonable under the Fourth Amendment, subject to only a few

specifically established and well-delineated exceptions.” Mincey v. Arizona (1978), 437

U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290; Katz v. United States (1967), 389 U.S. 347,

357, 88 S.Ct. 507, 19 L.Ed.2d 576; South Dakota v. Opperman (1976), 428 U.S. 364, 96

S.Ct. 3092, 49 L.Ed.2d 1000; and Coolidge v. New Hampshire (1971), 403 U.S. 443, 91

S.Ct. 2022, 29 L.Ed.2d 564.      The touchstone of a Fourth Amendment analysis of

lawfulness of a search is whether a person has a constitutionally protected reasonable

expectation of privacy. Katz, supra; California v. Ciraolo (1986), 476 U.S. 207, 106

S.Ct. 1809, 90 L.Ed.2d 210.

      {¶ 16} Initially, we note that an individual challenging the legality of a search or

seizure bears the burden of proving standing.     Rakas v. Illinois (1978), 439 U.S. 128,

99 S.Ct. 421, 58 L.Ed.2d 387. The burden is met by establishing that the person had a

legitimate expectation of privacy in the area searched. State v. Steele (1981), 2 Ohio

App. 3d 105, 107, 440 N.E.2d 1353. A legitimate expectation of privacy is one that

society is prepared to recognize as reasonable.    Rakas at 143. Status as an overnight

guest is sufficient to show that the person had an expectation of privacy in the home.

Minnesota v. Olson (1990), 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85. Thus,

an overnight guest has standing to challenge the legality of a search. State v. Dennis, 79

Ohio St.3d 421, 1997-Ohio-372, 683 N.E.2d 1096.
       {¶ 17} In the present case, appellant failed to produce any evidence at the

suppression hearing that he lived in the residence or was an overnight guest. A trial

court cannot be expected to assume that privacy interests exist. State v. Rodgers (Apr.

19, 1984), Cuyahoga App. Nos. 47146, 47147, and 47151.

       {¶ 18} The record reflects that Det. Dancy was the only witness to testify at the

suppression hearing, and his testimony failed to establish appellant’s privacy interest in

the residence.   Since appellant failed to produce any evidence of his privacy interests, he

has not met his burden of establishing his right to challenge the lawfulness of the search.

See Steele at 109.

       {¶ 19} Moreover, had appellant established that he had a privacy interest in the

residence, the search was still constitutionally valid based upon Romon Lavant’s

voluntary consent.

       {¶ 20} When one’s home is to be searched, the warrant requirement embodied in

the Fourth Amendment constitutes the most compelling protection against unreasonable

governmental intrusions. Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80

L.Ed.2d 732.     Warrants are generally required to search a person’s home or his person

unless “the exigencies of the situation” make the needs of law enforcement so compelling

that the warrantless search is objectively reasonable under the Fourth Amendment.

McDonald v. United States (1948), 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Thus, for

a warrantless search to be valid, it must fall within one of the narrow and specifically

delineated exceptions to the warrant requirement. Thompson v. Louisiana (1985), 469
U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246. One of the established exceptions to the

warrant requirement is a search that is conducted with voluntary consent. State v. Faia

(July 23, 1998), Cuyahoga App. No. 73074, citing State v. Sneed (1992), 63 Ohio St.3d 3,

6-7, 584 N.E.2d 1160.

      {¶ 21} “A police officer may validly enter and search a home, without a warrant,

when the officer has obtained the voluntary consent of an occupant who shares, or is

reasonably believed to share, authority over the area in common with a non-present

co-occupant.    (Internal citations omitted).” State v. Purser, Greene App. No. 2006 CA

14, 2007-Ohio-192, ¶12. “Common authority” rests on “mutual use of the property by

persons having joint access or control for most purposes.”      United States v. Matlock

(1974), 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242.       The burden of establishing

an individual’s common authority over the subject premises rests upon the state. Id.

      {¶ 22} “Further, if consent is given by a third party who in fact does not have valid

authority, the determination of whether to enter must ‘be judged against an objective

standard: would the facts available to the officer at the moment * * * “warrant a man of

reasonable caution in the belief”’ that the consenting party had authority over the

premises?’     Illinois v. Rodriguez (1990), 497 U.S. 177, 188, 110 S.Ct. 2793, 111

L.Ed.2d 148, quoting Terry v. Ohio (1968), 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d

889.” State v. Huntington, Wood App. No. WD-10-007, 2010-Ohio-3922, ¶20.

      {¶ 23} During the suppression hearing, Det. Dancy testified that he researched

CMHA’s leaseholder database and discovered that Rokeda Lavant was the confirmed
leaseholder of the residence at issue.     Det. Dancy testified that, upon arriving at the

residence, “we walked up to the door, knocked on the door, and it was opened by an

individual by the name of Romon Lavant. We identified ourselves. He greeted us and

invited us inside.”   In light of facts available to Det. Dancy at the time he interacted with

Mr. Lavant, we find that the reasonable person could believe that Mr. Lavant had

authority over the premises to consent to the officers’ entry. Accordingly, we conclude

that the officers’ entrance into the residence was constitutional.

       {¶ 24} Appellant’s first assignment of error is overruled.

                                              II

       {¶ 25} In his second assignment of error, appellant argues that the trial court erred

by denying his motion to dismiss or his alternative motion for continuance to obtain

information Det. Dancy used to prepare appellant’s police report.        Appellant contends

that the trial court’s failure to grant his motions violated his constitutional rights to due

process and a fair trial.   A trial court’s decision regarding the regulation of discovery

will not be reversed on appeal absent an abuse of discretion. State ex rel. Daggett v.

Gessaman (1973), 34 Ohio St.2d 55, 57, 295 N.E.2d 659. A trial court abuses its

discretion only if its decision is unreasonable, arbitrary or unconscionable.   Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶ 26} The United States Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon requests violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.”   Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct.

1194, 10 L.Ed.2d 215. Additionally, the Criminal Rules mandate that the prosecutor

“shall provide * * * the following items related to the particular case indictment,

information, or complaint, and which are material to the preparation of a defense, or are

intended for use by the prosecuting attorney as evidence at the trial, or were obtained

from or belong to the defendant, within the possession of, or reasonably available to the

state, subject to the provisions of this rule: * * * (5) any evidence favorable to the

defendant and material either to guilt or punishment.” Crim.R. 16(B)(5).

       {¶ 27} Favorable   evidence   under     Brady   includes   both   exculpatory and

impeachment evidence, but the evidence must be both favorable and material before

disclosure is required. Id., citing United States v. Bagley (1985), 473 U.S. 667, 674, 105

S.Ct. 3375, 87 L.Ed.2d 481. Evidence is material under Brady only if there exists a

“reasonable probability” that the result of the trial would have been different had the

evidence been disclosed to the defense.      Id., citing Kyles v. Whitley (1995), 514 U.S.

419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490, quoting Bagley at 682.      “A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”     Id.,

citing State v. Johnston (1998), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the

syllabus.

       {¶ 28} If a party fails to comply with Crim.R. 16 or an order issued under it, “the

court may order such party to permit the discovery or inspection, grant a continuance, or

prohibit the party from introducing in evidence the material not disclosed, or it may make
such other order as it deems just under the circumstances.”       Crim.R. 16(L)(1), formerly

Crim.R. 16(E)(3).

          {¶ 29} In the case sub judice, Det. Dancy testified that as common practice, the

CMHA radio communication center contemporaneously stores radio updates received

from officers in the field as they effectuate an arrest.     The information received by the

radio communication center is then entered into CMHA’s Computer Aided-Dispatch

recording system (“dispatch log”). Subsequently, the dispatch log is used by the officer

to prepare a police report once he returns to the station.

          {¶ 30} Appellant contends that the trial court erred in denying the dismissal of his

indictment based on the state’s failure to provide him with the dispatch logs during the

discovery process.       Appellant argues that the information in the dispatch log was

discoverable pursuant to Crim.R. 16 because it was used to compile the police report and

potentially contained contradictory or exculpatory information.      We disagree.

          {¶ 31} At trial, Det. Dancy explained that he used the dispatch log to draft his

police report and that the information contained in the dispatch log was duplicated in the

report.     Det. Dancy testified that the remainder of the police report was based on his own

personal recollection of the chronological events associated with appellant’s arrest.      In

our view, Det. Dancy’s testimony reflects that the information contained in the dispatch

log was included in the police report, which was given to appellant at the onset of the

discovery process.      In light of Det. Dancy’s testimony, we are unable to conclude that
the outcome of appellant’s trial would have been different had the dispatch logs been

disclosed to him.

       {¶ 32} Furthermore, the state is only required to disclose information that is within

its possession or is readily available to it. The prosecution stated, “under Criminal Rule

16 and the local rule we are required to provide full and open discovery.         The police

report, criminal records, lab report, school map has [sic] all been provided to defense

counsel. * * * At no time throughout the pendency of this case has the State intentionally

or unintentionally hid any evidence.”

       {¶ 33} Additionally, the information contained in the dispatch log was not readily

available to the state because it is destroyed in the normal course of business. Appellant

had the opportunity to file a subpoena for the dispatch logs prior to the January 26, 2011

trial date and failed to do so. The trial court did not abuse its discretion in denying

appellant’s motion to dismiss and motion for continuance as requested under Crim.R.

16(L)(1).

       {¶ 34} Appellant’s second assignment of error is overruled.

                                             III

       {¶ 35} In his third assignment of error, appellant argues that the trial court erred by

admitting evidence where the state failed to establish a proper chain of custody.

       {¶ 36} The chain of custody is part of the authentication and identification

requirement in Evid.R. 901. State v. Brown (1995), 107 Ohio App.3d 194, 200, 668

N.E.2d 514.   The state bears the burden of establishing a proper chain of custody. State
v. Moore (1973), 47 Ohio App.2d 181, 183, 353 N.E.2d 866. However, the state has no

duty to eliminate every possibility that tampering or substitution occurred. Id. The

state must only show that it is reasonably certain that a substitution, tampering, or

alteration did not occur.   Id.

       {¶ 37} Chain of custody can be established by direct testimony or by inference.

State v. Conley (1971), 32 Ohio App.2d 54, 60, 288 N.E.2d 296. The issue as to

whether there is a break in the chain of custody is a determination left to the jury.

Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791.             Any breaks in the

chain of custody go to the weight afforded to the evidence, not to its admissibility.     Id.

See, also, State v. Mays (1996), 108 Ohio App.3d 598, 671 N.E.2d 553.

       {¶ 38} At trial, the state submitted the following items into evidence: (1) the drugs

recovered from appellant’s right front pants pocket, and (2) the lab result confirming the

drugs were crack cocaine.     The testimony at trial from Det. Dancy and Nicole Allen laid

the foundation to establish a proper chain of custody.      Therefore, appellant may only

challenge the weight of the evidence, which he does in his fifth assignment of error.

However, he may not successfully challenge the admissibility of the evidence itself.

       {¶ 39} Appellant’s third assignment of error is overruled.

                                             IV

       {¶ 40} In his fourth assignment of error, appellant argues that the state failed to

present sufficient evidence to sustain his convictions and, therefore, the trial court should

have granted his motion for acquittal.
       {¶ 41} Under Crim.R. 29(A), a court “shall order the entry of a judgment of

acquittal of one or more offenses * * * if the evidence is insufficient to sustain a

conviction of such offense or offenses.”    A challenge to the sufficiency of the evidence

supporting a conviction requires a court to determine whether the state has met its burden

of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678

N.E.2d 541.    On review for sufficiency, courts are to assess not whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.     Id.   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.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

                                   A. Drug Trafficking

       {¶ 42} Appellant first challenges his drug trafficking conviction.   Drug trafficking

under R.C. 2925.03(A)(2) provides:

       {¶ 43} “No 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.”

       {¶ 44} At trial, the state produced evidence that appellant was in possession of

three rocks of crack cocaine.     Det. Dancy testified that, based on his training and

experience with street level narcotics, he believed the size of the rocks and the amount of
cash found in appellant’s possession were indicative of drug trafficking. Furthermore,

Det. Dancy testified that appellant demonstrated no signs of drug abuse and had no crack

cocaine paraphernalia on his person at the time of his arrest.

       {¶ 45} Appellant correctly points out that none of the accouterments associated

with drug trafficking were found on him. The crack cocaine found was not individually

packaged for resale, and appellant did not possesses packaging materials, scales, or

weapons. However, these facts are not dispositive of the issue. This court has held

that, “[w]ith respect to the charge of possession of drugs for sale [R.C. 2925.03], an

inference may be drawn from the circumstances surrounding the defendant at the time of

his arrest and the quantity and character of the narcotics seized at the time.” State v.

Conner, Cuyahoga App. No. 84073, 2005-Ohio-1971, ¶57, citing State v. Jones (Dec. 26,

1973), Franklin App. No. 73AP-338.

       {¶ 46} In State v. Bryant (June 2, 1994), Cuyahoga App. No. 65614, this court

found that sufficient evidence of drug trafficking existed based on “the large number of

rocks in appellant’s possession, large amount of cash on appellant, an unlikely

explanation for carrying the cash, that appellant was better dressed than the others, and

the behavior of appellant and the other men when they saw the marked police car.”   Id.

       {¶ 47} Similarly, in State v. Young, Cuyahoga App. No. 92744, 2010-Ohio-3402,

this court affirmed the defendant’s conviction for drug trafficking where appellant was

located in a high drug area; possessed a large amount of crack cocaine, both cut and

uncut; possessed a large sum of money; and had no crack cocaine paraphernalia on his
person at the time of his arrest, suggesting that the drugs he possessed were not for

personal use.    Id. at ¶18, citing State v. Batin, Stark App. No. 2004-CA-00128,

2005-Ohio-36.

       {¶ 48} In the case at hand, such reasonable inferences of drug trafficking are not

present.   In contrast to Bryant and Young, where Bryant was in possession of

approximately 34 rocks of crack cocaine and Young was in possession of 12.29 grams of

crack cocaine, appellant was found in possession of three rocks of crack cocaine,

weighing less than one gram combined.      Furthermore, the record does not indicate that

appellant was located in a high drug area, and Det. Dancy testified that the three rocks of

crack cocaine were not individually packaged.      In our view, the nature of appellant’s

arrest and the quantity of crack cocaine found in his possession failed to establish an

inference of drug trafficking. 1    See State v. Collins, Cuyahoga App. No. 95422,

2011-Ohio-4808, ¶27-28 (“Establishing that the person committed a crime is not possible

solely using inferences from assumptions about conduct without factual evidence

supporting the actual elements of the crime charged.         * * *    Had the legislature

included the phrases ‘possession of an amount indicating sale or resale’ or ‘receiving an



       1 Although more adequately addressed in a manifest weight analysis, we
note that the trial court accepted the testimony of appellant’s mother, Regina
Smith, as it related to the $2,160 found in appellant’s possession. At trial, Smith
testified that she gave appellant $2,300 from her tax refund check on February 1,
2010 so he could hire an attorney for representation in an unrelated matter.
Because the trial court is in the best position to weigh the credibility of witnesses,
we are unable to weigh the amount of money found on appellant as a factor in our
drug trafficking analysis.
amount indicating sale or resale,’ the task of meeting the elements of R.C. 2925.03(A)(2)

would be simple.”).

       {¶ 49} In light of the above, we sustain appellant’s fourth assignment of error as it

relates to the drug trafficking conviction.

                                    B. Drug Possession

       {¶ 50} Appellant 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.”

       {¶ 51} A person acts “knowingly” 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.”

R.C. 2901.22(B). Knowledge is generally not susceptible to direct proof, but must be

determined through inferences drawn from the surrounding facts and circumstances. State

v. Green (Apr. 20, 1988), Hamilton App. No. C-860791.

       {¶ 52} “‘Possess’ or ‘possession’ means 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.”

R.C. 2925.01(K). Possession may be actual or constructive. State v. Haynes (1971), 25

Ohio St.2d 264, 269-270, 267 N.E.2d 787. Although circumstantial evidence is sufficient

to support the element of constructive possession, constructive possession cannot be

inferred by a person’s mere presence in the vicinity of contraband. See Jenks; State v.
Giles (May 12, 1994), Cuyahoga App. No. 63709. Constructive possession requires some

evidence that the person exercised or has the power to exercise dominion or control over

the object, even though that object may not be within his immediate physical possession.

State v. Wolery (1976), 46 Ohio St.2d 316, 332, 348 N.E.2d 351.

      {¶ 53} As stated, Det. Dancy testified that he discovered three rocks of crack

cocaine in appellant’s pants pocket after searching appellant for weapons or contraband

prior to placing him in the zone car. In light of Det. Dancy’s testimony, we find that the

state presented sufficient evidence that appellant knowingly possessed crack cocaine.

      {¶ 54} Appellant’s fourth assignment of error is overruled as it relates to the drug

possession conviction.

                                           V.

      {¶ 55} In his fifth assignment of error, appellant argues that his convictions were

against the manifest weight of the evidence.      In reviewing a claim challenging the

manifest weight of the evidence, “[t]he question to be answered is whether there is

substantial evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.        In conducting this review, we must

examine the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether 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.”   (Internal quotes and citations omitted.) State v. Leonard, 104 Ohio

St.3d 54, 81, 2004-Ohio-6235, 818 N.E.2d 229.
       {¶ 56} Because we find that the evidence was insufficient as to the drug trafficking

conviction, we only consider appellant’s manifest weight challenge as it relates to the

drug possession conviction.

       {¶ 57} After examining the entire record, weighing the evidence and all

reasonable inferences, we are unable to conclude that the court clearly lost its way and

created a manifest miscarriage of justice in convicting appellant of drug possession.      For

the reasons discussed under the sufficiency of the evidence analysis, the record

demonstrates that appellant knowingly possessed crack cocaine. Although appellant

disputes the allegation that he possessed crack cocaine at the time of his arrest, the trier of

fact was in the best position to weigh the credibility of the witnesses and was free to rely

on the testimony of Det. Dancy. Additionally, based on the testimony of Det. Dancy and

Nicole Allen, we are unable to conclude that the evidence in the state’s custody was

tampered with or altered in any way. Accordingly, the weight of the evidence supported

appellant’s drug possession conviction.

       {¶ 58} Appellant’s fifth assignment of error is overruled.

       {¶ 59} In conclusion, the trial court’s judgment is affirmed as to appellant’s

conviction for drug possession. Appellant’s drug trafficking conviction is reversed and

remanded and, upon remand of the case, the conviction shall be vacated and appellant

shall be resentenced on the drug possession count because he was originally sentenced on

the drug trafficking count.
       {¶ 60} This cause is affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

       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. 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
