{¶ 3} The officers followed the two vehicles southbound on Main Street, and passed the Impala near 14th Avenue. Moments later, the driver of the Impala passed the officers at approximately 120 m.p.h. on Main Street. Appellant turned eastbound on Pinta Avenue, and when the driver of the Impala attempted to make the turn, the driver lost control of the vehicle and ended up in a yard.2 The officers continued following appellant at a high rate of speed as appellant turned southbound on Route 4 with Officer Mаrconi driving the patrol car and Officer Wilcox communicating to other units and maintaining visual contact with the Sorrento. *3
The officers momentarily lost visual contact with the Sorrento when appellant turned the Sorrento's headlights off on Route 4, but Officer Wilcox used the patrol car spotlight to locate the Sorrento as it drove southbound on Route 4 in the northbound lane. Eventually appellant turned the headlights on and drove back into the southbound lane of Route 4, until he exited onto Route 63 and stopped the vehicle. Officers arrested appellant and took him into custody.
{¶ 4} Following appellant's trial on January 31, 2007, the jury found appellant guilty of failing to comply with an order or signal of a police officer in violation of R.C.
{¶ 6} Officer Jordan asked appellant if he could search him, and appellant consented. Offiсer Jordan conducted a pat down and discovered 0.33 grams of crack cocaine contained in a cellophane wrapper in appellant's pants pocket.
{¶ 7} Officer Jordan placed appellant under arrest and put him the back seat of the patrol car. Officer Jordan did not engage appellant in any further conversation or otherwise ask him any questions. Officer Jordan removed Brown from the vehicle as well and placed *4 her in the rear of the patrol car alongside appellant. Officer Jordan activated the interior camera and microphone in his pаtrol car as he conducted a search of the vehicle. The in-car microphone recorded a conversation between Brown and appellant where appellant stated that someone needed to come back to 934 Eighth Avenue and remove a gun from the house. During this conversation appellant also mentioned an unspecified item underneath the couch in the house. Also, while conducting a search of appellant's vehicle, Officer Jordan found a camera phone with a picture on it depicting crack cocaine on a scale.
{¶ 8} After discovering that apрellant resided at 934 Eighth Avenue in Middletown, Officer Jordan obtained a search warrant to search appellant's house based upon the recorded conversation that transpired between appellant and Brown. Officers from the Middletown Police Department executed the search warrant on аppellant's house and discovered more crack cocaine, digital scales, cocaine residue, plastic baggies, razorblades, two handguns, and ammunition.
{¶ 9} On August 20, 2006, appellant moved to suppress evidence seized by Middletown Police. After a hearing, the trial court denied appellant's motion.
{¶ 10} Fоllowing appellant's trial on October 16 and 17, 2007, the jury found appellant guilty of having weapons under disability in violation of R.C.
{¶ 12} Appellant appeals his convictions, raising two assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} "THE TRIAL COURT ERRED IN RULING THAT JORDAN'S INITIAL CONTACT WITH GOOD WAS CONSENSUAL, RATHER THAN A `TERRY STOP' INVOKING
{¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Wilson, Clinton App. No. CA2006-03-008,
{¶ 16} We begin our analysis with the basic premise that the
{¶ 17} Both the
{¶ 18} It is well-recognized that officers may briefly stop and detain an individual, without an arrest warrant and without probable cause, in order to investigate a reasonable and articulable suspicion of criminal activity. See Terry v. Ohio (1967),
{¶ 19} However, it is also well-recognized that the
{¶ 20} Based on our review of the evidence, we find that the initial encounter between appellant and Officer Jordan was consensual, and consequently, Officer Jordan was not required to have reasonable, articulable suspicion of criminal activity to approach appellant. SeeState v. Potter, Butler App. No. CA2006-07-166,
{¶ 21} It was during this consensual encounter that Officer Jordan became increasingly more suspicious that appellant was involved in some type of illegal drug activity, and the officer was permitted to continue the investigation based on this suspicion. See Potter at ¶ 15. According to the record, Officer Jordan noticed a strong odor of marijuana and marijuana smoke emanating from appellant's vehicle and observed marijuana seeds on the floor of appellant's vehicle. Officer Jordan testified that he worked in the narcotics unit of the Middletown Police Department for thrеe years, where he personally handled marijuana and marijuana seeds. Based on Officer Jordan's experience, he was qualified to identify what he saw and smelled as marijuana and marijuana smoke. See State v. Maupin (1975) *8
{¶ 22} Appellant's first assignment of error is overruled.
{¶ 23} Assignment of Error No. 2:
{¶ 24} "THE TRIAL COURT ERRED IN CONVICTING GOOD OF FAILURE TO COMPLY WITH THE ORDER OF A POLICE OFFICER AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 25} A court considering whether a conviction was against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasоnable inferences, and consider the credibility of witnesses. State v. Hancock,
{¶ 26} We are mindful that the discretionary power to grant a new trial should be exercisеd only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Thompkins,
{¶ 27} In this assignment of error, aрpellant challenges his conviction for violating R.C.
{¶ 28} Appellant contends that the evidence presented at trial does not support that he was the driver of the Sorrento. Appellant argues that the Officer Wilcox could not have had a clear view inside the Sorrento when he approached it initially, and that the officers lost visual contact with the Sorrento several times during the chase. Further, appellant claims that the testimony of his witness directly contradicts the officers' testimony that appellant was the driver.
{¶ 29} At trial, Officer Wilcox testified that he did identify the driver of the Sorrento as appellant when the officers initially stopped the vehicle, and that apрellant was the sole occupant of the vehicle. Also, Officer Marconi testified that when appellant ultimately stopped the Sorrento on Route 63 and surrendered, appellant was the sole occupant of the vehicle. Further, the video from the patrol car camera corroborates Marconi's testimony.
{¶ 30} Appellant's witness, Esther Williams, testified that she saw appellant sitting in the passenger seat of a "grayish" truck sometime between 12:30 and 1:00 a.m. the night appellant was arrested. Williams testified that she did not recognize the driver of the truck, but said the driver "had a red hat on and was dark-skinned."
{¶ 31} While Williams' testimony does not entirely contradict the officers' testimony, we remind appellant that, "the weight to be given the evidence, and the credibility of witnesses are primarily for the trier of the facts." State v. DeHass (1967),
{¶ 32} Appellant's second assignment of error is overruled.
{¶ 33} Judgment affirmed.
WALSH, P.J., and YOUNG, J., concur.