¶1 dissenting.
¶2 I respectfully dissent from the majority’s resolution of appellant’s assignment of error. I agree with the majority’s determination that the state failed to show that the appellant possessed the vehicle for purposes of a conviction under R.C. 2923.24. However, I disagree with its conclusion that the state presented sufficient evidence to sustain his conviction for possession of criminal tools based upon the pager. I would have, therefore, sustained *785 appellant’s assignment of error and reversed his conviction for possession of criminal tools.
¶3 In order for a defendant to be convicted of possession of criminal tools, the state must show that the defendant possessed or had under his control a substance, device, instrument, or article, with purpose to use it criminally. R.C. 2923.24(A). Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use, constitutes prima facie evidence of criminal purpose. R.C. 2923.24(B)(3). The statute does not merely require that it be shown that the particular item is commonly used for criminal purposes. It must also be shown that the circumstances indicate that the item is intended for criminal use.
¶4 In the within case, there was indeed testimony from the police officers that drug dealers use pagers in their business. This testimony, however, sheds no light on this particular appellant’s reason for possession of the pager. It, therefore, in and of itself, does not establish that the appellant possessed the pager with purpose to use it criminally.
¶5 Moreover, the appellant’s mere conversation with a man who was leaning into the passenger-side window likewise fails to establish that the appellant possessed the pager with purpose to use it criminally. There was no evidence that the appellant possessed the bags of cocaine for purpose of sale. There was no evidence that the appellant was transacting drug business with the man leaning into the window. There was also no testimony that the appellant used the pager to connect with a prospective buyer.
¶6 The record is devoid of sufficient evidence in support of the appellant’s conviction for possession of criminal tools. The state failed to establish that the appellant’s possession of the pager was under circumstances which indicated criminal use. There was, therefore, no prima facie evidence of criminal purpose.
¶7 I am well aware of this country’s stand on the use and sale of drugs. I am also well aware of the executive, judicial, and legislative efforts, conceived and effected for the optimistic purpose of abating and managing the flood of drug activity. However, the frenzy which issues from the country’s focus on the drug problem cannot be used to ignore the requirements of the law. The state is still required to prove all of the elements of an offense prior to the conviction of a defendant for that offense, no matter what the offense, as this is “A government of laws, and not of men.” Original Draft of Massachusetts Constitution (1779).