[Cite as State v. Farley, 2012-Ohio-1093.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                                                         :          C.A.
                                                                  CASE NO.     24632

v.                                                                                                   :
                                                                        T.C. NO.     10CR73

DONNIE D. FARLEY                                     :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                                   :

                                                     :

                                             ..........

                                             OPINION

                          Rendered on the     16th       day of      March         , 2012.

                                             ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
        Attorney for Plaintiff-Appellee

WILMER J. DECHANT, JR., Atty. Reg. No. 0085084, 257 Regency Ridge Drive, Centerville,
Ohio 45459
      Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.
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       {¶ 1}     Donnie Durrell Farley was found guilty by a jury of possession of crack cocaine

in an amount less than one gram. He was sentenced to community control sanctions for a period

not to exceed five years. Farley appeals from his conviction.

       {¶ 2}     Farley was indicted on one count a possession of crack cocaine in an amount less

than one gram, a felony of the fifth degree, in violation of R.C. 2925.11(A). He pled not guilty

and filed a “Motion to Dismiss and/or Suppress,” which the trial court treated as a motion to

suppress. After conducting a hearing, the trial court overruled the motion to suppress.

       {¶ 3}     At trial, two Dayton police officers testified that, as they approached Farley on a

city street, they saw him toss a baggie containing a white substance into a nearby yard. The

officers were unable to find the baggie themselves due to darkness and a layer of snow on the

ground, but the baggie was recovered when a canine unit was called to the scene. The officers

found what they believed to be crack cocaine in the baggie. Subsequent testing at the Miami

Valley Regional Crime Lab confirmed that the substance was crack cocaine, in an amount less than

one gram.

       {¶ 4}     The defense did not call any witnesses at trial. Farley made a Crim.R. 29 motion

to dismiss at the end of the State’s case, which was overruled.

       {¶ 5}     The jury found Farley guilty, and he was sentenced as described above.

       {¶ 6}     Farley raises two assignments of error on appeal.

       {¶ 7}     The first assignment of error states:

               THE TRIAL COURT ERRED IN FINDING DONNIE FARLEY

               GUILTY BEYOND A REASONABLE DOUBT AS TO

               POSSESSION OF COCAINE.
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       {¶ 8}     Farley contends that his conviction was against the manifest weight of the

evidence. He also contends that the State failed to prove every element of the offense, an

argument which challenges the sufficiency of the evidence.

       {¶ 9}      An argument based on the sufficiency of the evidence challenges whether the

State presented adequate evidence on each element of the offense to allow the case to go to the jury

or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1999). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.

       {¶ 10}    In contrast, when reviewing a judgment under a manifest weight standard of

review, the court “‘review[s] the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, 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. The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

       {¶ 11}    Officers Joshua Frisby and Jason Berger of the Dayton Police Department and

Officer Brent Rasor of the Trotwood Police Department testified at Farley’s trial. Frisby and

Berger testified that, in the early morning hours of December 30, 2009, they were dispatched to
                                                                                              4

426 Holt Avenue in Dayton to look for a person whom a complainant had described as a black

male wearing a grey hoodie and jeans. (The nature of the complaint that they had received about

this man was not apparent from the officer’s testimony.) While the officers were in the 1400

block of West Riverview, in route to Holt, they saw Farley, who matched the description they had

been given “to the tee.” Farley was walking toward the cruiser on the sidewalk. The officers had

not yet activated their lights or siren, because they did not want to alert Farley to their presence

until they were close to him.

       {¶ 12}    When the cruiser was approximately fifteen to twenty feet from Farley, the

officers activated the lights. As they did so, they saw Farley toss something with his left hand into

the yard of a nearby house; Frisby testified that Farley “tosse[d] a bag with some white stuff in

it.” The officers immediately exited the cruiser, searched and handcuffed Farley, and placed him

in the back of the cruiser. They then searched for the item he had thrown.

       {¶ 13} The officers testified that snow had recently fallen and, although the sidewalks

were clear, grassy areas were covered with snow. Farley had thrown the item into a grassy,

snow-covered area. After searching for “a good ten or 15 minutes,” Frisby and Berger still had

not found the item. They decided to call a canine unit to assist them.

       {¶ 14}     Because none of the Dayton Police Department’s canine units was available,

Trotwood Police Officer Brent Rasor and his dog, Bruno, responded to the officers’ location on

Riverside Drive. After Rasor performed some exercises to get Bruno focused, Bruno found a

baggie containing crack cocaine in “15 seconds.” All of the officers testified that the baggie was

found in the area Officers Frisby and Berger had searched for it.

       {¶ 15}    Officer Frisby testified with certainty that he had seen Farley throw “a bag with
                                                                                              5

some white stuff in it.” Officer Berger also testified that Farley threw a “clear, plastic baggy” and

that, when they initiated their search, he believed Farley had disposed of contraband. On cross

examination, however, Berger acknowledged that, in a statement recorded on the cruiser videotape

after the officers’ initial search failed to turn up the item Farley had thrown, he wondered whether

it could have been a cigarette.

       {¶ 16}    Farley claims that the State “failed to prove that [he] knowingly possessed crack

cocaine” because none of the officers “directly saw the drugs on [him].”

       {¶ 17}    Circumstantial evidence is proof of certain facts and circumstances from which a

jury may infer other connected facts that usually and reasonably follow according to common

experience. State v. Sims, 191 Ohio App.3d 622, 947 N.E.2d 227 (2d Dist. 2010), ¶19. A jury

may view circumstantial evidence as having the same probative value as direct evidence. State v.

Baird, 8th Dist. Cuyahoga No. 96352, 2011-Ohio-6268, ¶ 23, citing State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The testimony of the police officers,

if believed, and the discovery of crack cocaine in the yard provided circumstantial evidence from

which the jury could have reasonably inferred that Farley possessed the crack cocaine in question.

And as a reviewing court, we must give great deference to the jury’s determinations of credibility.

Viewing the evidence in a light most favorable to the State, the jury could have found beyond a

reasonable doubt that Farley possessed crack cocaine; his conviction was supported by sufficient

evidence.

       {¶ 18}    Similarly, after reviewing the entire record and weighing the evidence and all

reasonable inferences, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice in finding Farley guilty of possession of crack cocaine. As such, his
                                                                                              6

conviction was not against the manifest weight of the evidence.

       {¶ 19}    The first assignment of error is overruled.

       {¶ 20}    Farley’s second assignment of error states:

                THE TRIAL COURT ERRED IN NOT ALLOWING VIDEO

                FROM THE CRUISER CAM TO BE ADMITTED AS

                EVIDENCE.

       {¶ 21}    Farley contends that the trial court erred in excluding statements made by Officer

Frisby that were as captured on the “cruiser cam video.” Farley claims that these statements were

either excited utterances or present sense impressions, pursuant to Evid.R. 803(1) or (2).

       {¶ 22}      At trial, Farley did not expressly raise – and the trial court did not expressly

address – any argument related to whether the cruiser video contained statements that were

admissible as excited utterances or present sense impressions. Rather, the trial court ruled that the

video could be used only to impeach Officer Frisby, if he made inconsistent statements at trial.

Although it appears from the record that there may have been some discussion before trial about

the use of the video, no record of these discussions is contained in the record. Based on the record

before us, including the section of transcript upon which Farley relies, it does not appear that he

raised these arguments in the trial court. As such, he has waived this issue on appeal. State v.

Whitt, 2d Dist Clark No. 2010 CA 3, 2010-Ohio-5291, ¶ 35.

       {¶ 23}    We also note that the videotape from the cruiser was not admitted into evidence,

and that counsel did not proffer what he sought to demonstrate by admitting Officer’s Frisby’s

statements from the video. Frisby was cross-examined at length about his conduct toward Farley,

and it is not apparent from the record before us what additional information, if any, the video
                                                                                             7

contained.

       {¶ 24} In addition to these procedural deficiencies, we find Farley’s argument that the

trial court abused its discretion in failing to admit Frisby’s statements pursuant to Evid.R. 803(1)

and (2) to be without merit.

       {¶ 25}    The admission or exclusion of evidence is left to the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of that discretion. State v. Sage, 31 Ohio

St.3d 173, 180, 510 N.E.2d 343 (1987).            An abuse of discretion implies an arbitrary,

unreasonable, unconscionable attitude on the part of the trial court. State v. Hancock, 108 Ohio

St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 26}    Defense counsel cross-examined Frisby at length about his demeanor during his

interaction with Farley. Frisby admitted that he had been frustrated by Farley and by the officers’

inability to find the item Farley had thrown. Frisby also admitted that he talked with Farley very

sternly, cursed at Farley, said “I’m pissed,” and threatened “extra charges * * * to aid in the

investigation.” None of these behaviors, however, was relevant to Farley’s guilt. It is unclear

from Farley’s argument how Officer Frisby’s “present sense impressions,” as reflected on the

video, would have been helpful to his case. Assuming that the video contained Officer Frisby’s

present sense impressions, there is no indication that the video contradicted or expanded upon

Officer Frisby’s testimony about his conduct or upon his belief, at the time of the search, that

Farley had thrown a baggie containing a white substance. Thus, even if this issue had been

properly raised, we cannot conclude the trial court would have abused its discretion in refusing to

admit the video, as it was duplicative of Frisby’s trial testimony.

       {¶ 27}    Further, the trial court could have reasonably concluded that Officer Frisby’s
                                                                                            8

statements on the video were not excited utterances. Evid.R. 803(2) defines an excited utterance

as a “statement relating to a startling event or condition made while the declarant was under the

stress or excitement caused by the event or condition.” Farley claims that the statements were

excited utterances because Officer Frisby was “frustrated.”          The evidence that Frisby was

frustrated by an uncooperative suspect – without more – did not establish that Frisby, an

experienced officer, was startled or was “under the stress or excitement“ within the meaning of

Evid.R. 803(2). Thus, if the issue had been properly raised, the trial court would not have abused

its discretion in refusing to admit the video under the excited utterance exception to the hearsay

rule.

        {¶ 28}   The second assignment of error is overruled.

        {¶ 29}   The judgment of the trial court will be affirmed.

                                           ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps
Wilmer J. Dechant, Jr.
Hon. Timothy N. O’Connell
