Whether video evidence could have corroborated or disputed Detective Miller’s testimony goes to the weight of Detective Miller’s testimony, not the sufficiency of the evidence presented.
State v. Faulkner
2023 – Ohio 971
Sixth District Appellate Court
Lucas County, Ohio
March 24, 2023
Unidentified In-Person Tipster Provides Information that a Wanted Felon was Around the Corner
At the time of Mr. Jaquan Faulkner’s trial, Detective Tyler Miller had been employed by the Toledo Police Department in Toledo, Ohio for seven years. On June 22, 2021, Detective Miller was assigned to field operations. His duties generally included patrolling neighborhoods, responding to calls for service, and traffic stops. His then- partner, Officer Brooke Janowiecki, was operating a marked Toledo Police patrol car in furtherance of those duties. During their patrol, they were approached by an unnamed individual. That individual indicated that he was aware that someone named “Jake” had a warrant for their arrest and that he was “around the corner.” Detective Miller understood “Jake” to be Mr. Faulkner and entered his name into the vehicle’s mobile computer to verify whether the arrest warrant remained active. The search revealed an active warrant that authorized Mr. Faulkner’s arrest.
Firearm, Scales and Cocaine Discovered on Mr. Faulkner’s Person
Detective Miller and Officer Janowiecki then proceeded to the area where Mr. Faulkner had been seen. Detective Miller observed Mr. Faulkner standing among a group of individuals. He then exited the vehicle and instructed Mr. Faulkner to move toward him. Mr. Faulkner followed the instruction and was placed under arrest by Officer Janowiecki. During the arrest, Officer Janowiecki “patted down” Mr. Faulkner to “make sure there [were] no weapons or no dangerous objects” within Mr. Faulkner’s reach. The search resulted in the discovery of a firearm concealed in Mr. Faulkner’s waistband as well as cocaine and a scale. Detective Miller further testified that he was unable to see the firearm until it was discovered during the arrest but did see it being removed from Mr. Faulkner’s waistband during the search. After the firearm was removed, it was unloaded and placed into an evidence bag. Detective Miller did not recall where on Mr. Faulkner’s person that Officer Janowiecki discovered the cocaine and scale.
Detective Miller then testified that after collecting the firearm, he contacted the Toledo Police Department detective bureau to determine if the firearm was stolen. After being informed that it was not, he contacted Detective Thomas in the Toledo gang task force because, as a patrol officer, he was not authorized to process any charges that constituted a felony.
Body Worn Camera was not Turned On During the Pat Down
At the time of Mr. Faulkner’s arrest, the vehicle Officer Janowiecki operated was equipped with a dashboard camera. Additionally, both Detective Miller and Officer Janowiecki were wearing body cameras. However, their initial interaction with Mr. Faulkner was not recorded. Detective Miller explained that both the dashboard and body cameras begin recording either when the lights and sirens were engaged or if they had manually started the recording. He testified that he and Officer Janowiecki did not engage the lights and sirens because they wanted to be “more stealthy” when they approached Mr. Faulkner. It was not until after Mr. Faulkner had been searched that Detective Miller manually engaged his body camera to record the remainder of Mr. Faulkner’s arrest.
During his testimony, the state provided Detective Miller with an evidence bag that he identified as the one in which the firearm was placed. He testified that the bag and its contents were identifiable through the evidence tag that he and Officer Janowiecki completed at the time of Mr. Faulkner’s arrest. He then confirmed that the firearm in the evidence bag was the same firearm that was removed from Mr. Faulkner’s waistband during his arrest. The state then provided Mr. Faulkner with another evidence bag containing ammunition. Detective Miller identified the evidence bag as containing the ammunition that was in the firearm recovered from Mr. Faulkner during his arrest through the evidence tag completed at that time. Both the firearm and the ammunition were then admitted as evidence without objection from Mr. Faulkner.
On cross-examination, Detective Miller testified that he did not know the name of the individual that alerted him to Mr. Faulkner’s presence. He also stated that he did not see the firearm prior to it being removed from Mr. Faulkner’s waistband. Detective Miller concluded his testimony by noting that he could not recall any other items discovered on Mr. Faulkner’s person during Officer Janowiecki’s search.
Appeal
Does the Lack of Video Negate Mr. Faulkner’s CCW Conviction?
O.R.C. §2923.13(A)(2) prohibits an individual from knowingly acquiring, having, carrying, or using any firearm or dangerous ordinance if “the person is under indictment of or has been convicted of any felony offense of violence.” At trial, Mr. Faulkner stipulated that he had previously been convicted of a felony offense of violence that prohibited his possession of a firearm. Therefore, the only issue to be resolved at trial was whether Mr. Faulkner had indeed been in possession of a firearm at the time of his arrest.
At trial, Detective Miller testified that during Mr. Faulkner’s arrest, his partner searched Mr. Faulkner and discovered the firearm in Mr. Faulkner’s waistband. Detective Miller then observed his partner removing the firearm from Mr. Faulkner’s waistband before it was placed into an evidence bag. He and his partner then created an evidence tag for the firearm. Viewing this evidence in a light most favorable to the state, we find that Detective Miller’s testimony is sufficient to show that Mr. Faulkner was in possession of a firearm at the time of his arrest.
To avoid this result, Mr. Faulkner argues that the lack of video evidence, along with Detective Miller’s testimony that he did not observe all aspects of the search, was insufficient to support his conviction. Specifically, Mr. Faulkner argues that “without any video footage, the fundamental fact of possession of a firearm is now disputed.” Further, he argues that Detective Miller’s inability to recall the specific location on Mr. Faulkner’s person that Officer Janowiecki discovered the cocaine and scale calls into question his entire recollection of the incident. As a result, he argues, Detective Miller’s testimony, “without corroborating video, was insufficient to sustain a conviction.” Mr. Faulkner’s argument is without merit.
First, we reject Mr. Faulkner’s argument that the lack of video evidence impacts our analysis as to whether the state’s evidence was insufficient. Whether video evidence could have corroborated or disputed Detective Miller’s testimony goes to the weight of Detective Miller’s testimony, not the sufficiency of the evidence presented. [Case law has been omitted herein.] The absence of a specific type of evidence does not negate the sufficiency of the evidence that the state did present.
Second, Mr. Faulkner’s argument suggesting Detective Miller’s testimony was “faulty” mischaracterizes that testimony. Specifically, Mr. Faulkner states that Detective Miller testified that he “did not watch the search.” To the contrary, Detective Miller testified that he observed the search while also continuing to watch the remaining individuals to ensure that he and Officer Janowiecki remained safe. Further, he explicitly testified that he saw the portion of Officer Janowiecki’s search in which the firearm was removed from Mr. Faulkner’s waistband. Mr. Faulkner’s suggestion that Detective Miller’s observations were so completely detached from the search that his testimony was unreliable in its entirety is not supported by the record.
Holding
In sum, the parties stipulated that Mr. Faulkner had a prior violent felony conviction that prohibited Mr. Faulkner from possessing a firearm. Detective Miller testified that he saw Mr. Faulkner in possession of a firearm. When viewing this evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. As a result, the trial court did not err in denying Mr. Faulkner’s Crim.R. 29 motion and we find his first assignment of error not well- taken.
Mr. Faulkner filed a second appeal on the Manifest Weight of the Evidence. That appeal is not analyzed herein.
Information for this article was obtained from State v. Faulkner, 2023 – Ohio 971.
This case was issued by the Sixth District Appellate Court and is binding in the following Ohio Counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood.
Lessons Learned:
- Can an in-person tipster provide reasonable suspicion to detain a suspect even if that person is not identified? In this case “Detective Miller testified that he did not know the name of the individual that alerted him to Mr. Faulkner’s presence.”. On June 24, 2021 the Supreme Court of Ohio answered this question and held “Sergeant Illanz had reasonable suspicion to investigate whether Tidwell was driving while drunk based on the unidentified Speedway customer’s tip.” State v. Tidwell, 2021 – Ohio – 2072. In that case an Ohio State Highway Patrol Trooper Sergeant was informed that a female leaving a Speedway gas station at 12184 Mason Montgomery Road in Cincinnati was impaired. Based on this in-person tip the sergeant stopped Ms. Tidwell, charged her with OVI and ultimately the Supreme Court of Ohio upheld her conviction. In this case the in-person tipster identified Mr. Faulkner as having an active warrant and Det. Miller corroborated the information prior to detaining Mr. Faulkner. Consequently, the investigative detention and arrest of Mr. Faulkner was objectively reasonable. For more information see Can Law Enforcement Rely on an In-Person’s Tipster?.
- Mr. Faulkner also appealed his conviction based on the fact that the officers at scene did not activate their body cameras until after Mr. Faulkner was detained and arrested. During this time the officers discovered convicted-felon Mr. Faulkner was unlawfully concealing a firearm and also possessed scales and cocaine. Mr. Faulkner’s legal team argued that because the discovery of the evidence was not on video the evidence was not admissible. The Sixth District Appellate Court dismissed this argument as it held “Whether video evidence could have corroborated or disputed Detective Miller’s testimony goes to the weight of Detective Miller’s testimony, not the sufficiency of the evidence presented.”.
- Law enforcement officers with body cameras should be aware that defendants and their legal counsel will continue to argue that if the camera is not activated during a search, arrest, use of force or other citizen contacts that the default is that the officer committed an unreasonable action. On June 18, 2020 the Sixth Circuit [federal court] implied that the officers credibility was at issue because they did not have any video evidence as it opined “The officers’ maintain that at both turns, Wright failed to use his turn signal, but there is no dash-cam footage or other evidence to confirm the officers’ word. Wright insist that he did use his turn signal in both instances.”. Wright v. City of Euclid, 2020 U.S. App. LEXIS 19095 (6th 2020)
- Detective Tyler Miller and Officer Brooke Janowiecki should be highly commended for their actions in the arrest of Mr. Faulkner – well done!
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