The Cell Phone, Crack and Possession of Criminal Tools

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As I noted in a post I did some years ago, many (most?)  U.S. states outlaw the possession of “burglar’s tools,” on the premise that possessing such items is basically a step toward committing the crime of burglary.  And as I explained in a post I did earlier this year, the state of Ohio has a similar but much broader statute . . . which makes it a crime to possess “criminal tools”. 

This post examines a recent opinion from the Ohio Court of Appeals that analyzes whether a cell phone can qualify as a “criminal tool.”  The case is State v. Johnson, 2013 WL 3327555 (Ohio Court of Appeals 2013):  Shayla Johnson was convicted, in a bench trial, “of drug trafficking under Ohio Revised Code §2925.03(A)(1), drug possession under Ohio Revised Code § 2925.11(A) and possessing criminal tools under Ohio Revised Code § 2923.24(A)” and sentenced to “18 months imprisonment and to postrelease control.”  State v. Johnson, supra.

On appeal, Johnson argued that “the trial court erred in denying her motion for acquittal under Ohio Rule of Criminal Procedure 29 because there was insufficient evidence to sustain the convictions.” State v. Johnson, supra.  The Court of Appeals began its opinion by outlining some of the events that led to Johnson’s prosecution:

Eva Sanders, a codefendant, testified on behalf of the state. Sanders, who was addicted to crack cocaine, explained that she and co-defendant, Carlene 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.

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 she had gotten into an altercation, that someone had tried to rob her, and that she would be back later.

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 [she] 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 Wiley would give Sanders more crack cocaine if Sanders could bring Wiley a customer, Sanders started looking around for a potential customer.

Meanwhile, Detective Mike Duller had provided marked currency (`marked buy money’) and a body wire to a confidential informant.  Duller took the informant to a parking lot in an area known for drug activity so the informant could attempt to procure crack cocaine with the marked buy money. Duller heard on the wire that the informant was introduced to Sanders.

The informant told Sanders he wanted to purchase $20 in crack cocaine and Sanders told the informant 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.’ . . . Sanders did not observe any firearms in the car.

After Sanders placed the crack cocaine on the ledge, 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.  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.

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.

State v. Johnson, supra.

At trial, Wiley testified that

she and Johnson were friends, that they 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 Wiley had any contraband on her person. Wiley [said] they took Johnson's car, but 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 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 she had not given Johnson money to hold that night.

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.’ 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.’ . . .

Duller testified that, while not `not definite,’ he believed Johnson `was probably the bank.’ Although 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.

State v. Johnson, supra.

The Court of Appeals first addressed Johnson’s challenge to her conviction for drug trafficking, noting that to “convict Johnson for drug trafficking under Ohio Revised Code § 2925.03(A)(1), the state had to demonstrate that Johnson knowingly sold or offered to sell the crack cocaine to Sanders.” State v. Johnson, supra.  It explained that 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,  2008–Ohio–4249 (Ohio Court of Appeals 2008) (quoting State v. Sims, 460 N.E.2d 672 (Ohio Court of Appeals 1983)). 

But `[m]ere presence during the commission of a crime . . . does not constitute aiding and abetting.’ State v. Wilcox, supra.

State v. Johnson, supra.

The Court of Appeals found that the state’s evidence did not prove Johnson’s guilt beyond a reasonable doubt, noting, first, that 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. 

State v. Johnson, supra.

It then explained that

[n]o 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 . . . 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.

State v. Johnson, supra. It therefore reversed and vacated Johnson’s conviction for drug trafficking.  State v. Johnson, supra.

Johnson also argued that the state had not presented evidence sufficient to prove beyond a reasonable doubt that “she had constructive possession of the crack cocaine that was found on Wiley’s person.”  State v. Johnson, supra. The Court of Appeals explained that she was convicted of drug possession under Ohio Code § 2925.11(A),

which provides that `[n]o person shall knowingly obtain, possess, or use a controlled substance. . . .’ Ohio Revised Code § 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, 634 N.E.2d 659 (Ohio Court of Appeals 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,  2005–Ohio–27, ¶ 70 (Ohio Court of Appeals 2005).

State v. Johnson, supra.  For more on actual and constructive possession, check out this prior post.

The court also explained that the prosecution’s theory was 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.  We decline the state's invitation to expand the definition of constructive possession to include such a scenario.

State v. Johnson, supra. It therefore reversed and vacated Johnson’s conviction for drug possession.  State v. Johnson, supra.

Finally, the Court of Appeals took up Johnson’s conviction for possessing criminal tools.  State v. Johnson, supra.  It explained that

[a]ccording 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 Ohio Revised Code § 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.

State v. Johnson, supra. 

The court found that the prosecution had failed to carry its burden of proof on this charge:

In our discussion about drug possession under Ohio Revised Code § 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.

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 Ohio Revised Code § 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 Ohio Revised Code § 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.

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 Ohio Rules of Criminal Procedure Rule 29 motion, and we reverse and vacate Johnson's conviction under Ohio Revised Code § 2923.24(A).

State v. Johnson, supra. 

The Court of Appeals therefore reversed Johnson’s convictions and remanded the case to the trial judge with instructions to vacate the convictions.  State v. Johnson, supra.