State v. Cabiness, Unpublished Decision (7-15-2003)
State v. Cabiness, Unpublished Decision (7-15-2003)
Opinion of the Court
OPINION
{¶ 1} Defendant-appellant Donta Cabiness appeals the December 27, 2002 Judgment Entry of the Licking County Court of Common Pleas, which sentenced him on his conviction of one count of possession of crack cocaine. Plaintiff-appellee is the State of Ohio.{¶ 3} Officer Lewis subsequently retrieved the baggie from the yard. After lab analysis, the police determined the baggie contained crack cocaine. At trial, Officer Lewis testified he does not routinely dust baggies for fingerprints, especially when he witnesses an individual remove a baggie from his or her person and discard it.
{¶ 4} When questioned about his identification of appellant as the man he encountered on the street, Officer Lewis was unable to provide details, other than the fact he remembered appellant's clothing at the time he identified appellant. Officer Lewis admitted his identification was based solely on the clothing match, and that he did not see appellant's facial features when he saw appellant on the street. The parties stipulated the baggie recovered contained 1.3 grams of crack cocaine, and that the baggie itself was never dusted for fingerprints.
{¶ 5} On August 9, 2001, appellant was indicted on one count of possession of crack cocaine, in violation of R.C.
{¶ 6} The matter proceeded to a jury trial on December 19, 2002. After hearing all the evidence and deliberations, the jury returned a guilty finding on the sole count of the indictment. In a December 27, 2002 Judgment Entry, the trial court sentenced appellant to sixteen months in prison.
{¶ 7} It is from this judgment entry appellant prosecutes this appeal, raising the following error for our review:
{¶ 8} "I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FINDING THE DEFENDANT-APPELLANT GUILTY OF POSSESSION OF COCAINE AS THE CONVICTION OF THE DEFENDANT-APPELLANT IS NOT SUPPORTED BY CREDIBLE EVIDENCE SUFFICIENT TO SUSTAIN OR WARRANT THE SAME."
{¶ 10} In State v. Jenks (1981),
{¶ 11} When applying the aforementioned standard of review to the case sub judice, based upon the facts noted supra, we do not find, as a matter of law, appellant=s conviction was based upon insufficient evidence.
{¶ 12} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine Awhether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment. State v. Thompkins,
{¶ 13} Specifically at issue in this appeal is Officer Lewis' identification of appellant as the individual he encountered on the street. The parties agreed Officer Lewis' identification was based not upon appellant's facial features, but rather upon appellant's clothing. We find the identification was sufficient given the circumstances of the arrest. Officer Lewis used the cruiser spotlight to illuminate appellant and the second suspect. Even though Officer Lewis asked appellant to stay, appellant turned and walked away. Officer Lewis watched appellant walk a short distance, into a house. When he subsequently asked the woman who answered the door at the house if he could speak to the individual who just entered the house, appellant appeared at the door. Officer Lewis recognized appellant's clothes at that time. Based upon these facts, we find Officer Lewis' identification of appellant was sufficient for the jury to conclude he was the individual who dropped the baggie of cocaine.
{¶ 14} Accordingly, appellant's sole assignment of error is overruled.
{¶ 15} The December 27, 2002 Judgment Entry of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, P.J., Edwards, J. and Boggins, J. concur.
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