COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60130 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DRUMMON ATKINSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY21, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-246548 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES KENNETH R. CALLAHAN, ESQ. Cuyahoga County Prosecutor 2000 Standard Building LOUIS J. BRODNIK Cleveland, OH 44113 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, P.J. On February 13, 1990, defendant-appellant Drummon Atkinson ("appellant") was indicted on charges of drug abuse in violation of R.C. 2925.11 and drug trafficking in violation of R.C. 2925.0- 3. Following a jury trial, appellant was found guilty of drug abuse and not guilty of drug trafficking. At trial the state presented the testimony of Officer Andre Douglas. Officer Douglas testified that on November 14, 1989, he and his partner responded to a complaint of street drug sales in the area of East 74th and Aberdeen Road in Cleveland. Officer Douglas was aware of drug activity in the area after having spoken to a complaining homeowner on Aberdeen the previous day. On November 14, 1989, at approximately 11:45 a.m., Officer Douglas and his partner observed ten to twelve males and a female in the area attempting to flag down passing automobiles. As the officers approached most of the group "took off running through the yards," but the defendant and two other males remained. The three males, including the appellant, were verbally warned by the officers to leave the area. Approximately forty-five minutes later Officer Douglas and his partner returned to the area. They observed the same three males standing in front of the home at 7417 Aberdeen Road. One of the males was observed dropping two rocks of crack cocaine from his hand. The officers exited their police cruiser to place the male under arrest. As they approached the male who dropped - 3 - the two rocks of crack cocaine, the appellant and the other male began walking away. It was then that Officer Douglas observed the appellant drop a vial to the ground. Appellant was placed under arrest and later it was determined that the discarded vial contained twenty-one rocks of cocaine. The defense presented the testimony of Evelyn Duncan. Ms. Duncan testified she and the appellant were talking when the police approached and advised them to leave the area. As they walked down East 74th Street, the same officers again approached and placed the appellant under arrest. Further, Ms. Duncan stated that the appellant did not possess or sell narcotics. The appellant testified on his own behalf. He stated that he was en route to purchase groceries for his mother when he met Ms. Duncan. About this time the police officers asked them to get off the street. When the appellant and Ms. Duncan walked approximately one block, the police once again approached and placed the appellant under arrest. Appellant assigns one error for review: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT IN PERMITTING THE ADMISSION OF CERTAIN HEARSAY TESTIMONY. Appellant's assignment of error maintains the trial court erred in permitting, over objection, inadmissible hearsay testi- mony of Officer Douglas. Appellant's argument lacks merit. Specifically, appellant contends the following portion of Officer Douglas' testimony contains inadmissible hearsay: - 4 - *** We had had a radio broadcast in connec- tion with male selling drugs in the area, and also had spoken with the owner of the house that we arrested Mr. Atkinson in front of -- MR. WHITE: Objection, Judge. THE COURT: Overruled. Don't state what you spoke of, what did you BY MR. BRODNIK: Q. Officer, when did you speak to the owner of this particular house on Aberdeen; just, when? A. It was on several occasions, but the most recent time would be the day before we ar- rested Mr. Atkinson. Q. All right. Did you speak to him, personally? A. Yes, sir. Q. Face-to-face? A. Yes, sir. Q. Were you at the house? A. He met us at the corner. He didn't want anybody to see him-- MR. WHITE: Objection -- A. -- talking to the police -- THE COURT: Overruled. He is only saying what he did. Q. How long did you talk with him on the day prior to the 14th of November? A. A couple of minutes at tops. Q. As a result of talking with him on, I guess it was the 13th of November, what did you do? - 5 - A. As a result of that conversation that I had with him, I informed that other officers on my shift, and the other shifts that we were - - we were having problems over there, and that the male was scared -- MR. WHITE: Objection, Judge. THE COURT: The objection is sustained. (Tr. 32-33.) Initially, we note that the admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Lyles (1989), 42 Ohio St. 3d 98; State v. Sage (1987), 31 Ohio St. 3d 173, paragraph one of the syllabus. Moreover, the trial court has broad discretion in the admission and the exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere. State v. Finnerty (1989), 45 Ohio St. 3d 104, 109. The hearsay rule bars statements, other than those made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. See Evid. R. 801(C); Evid. R. 802. But not all out-of-court statements are hearsay. For example, statements that are not offered to prove the truth of the matter asserted, but which instead are offered to explain a police officer's conduct while investigating a crime, are not hearsay. See State v. Thomas (1980), 61 Ohio St. 2d 223, 232; State v. Blevins (1987), 36 Ohio App. 3d 147, 149. - 6 - In the instant case the statements of Officer Douglas were not hearsay because they were not offered to prove the truth of the matter asserted. The statements were offered to explain the conduct of the officers while investigating an ongoing criminal occurrence. Thomas, supra. Moreover, review of the testimony reveals it contains no statements made by the concerned homeowner to Officer Douglas. Rather, the statements simply communicate the observations and actions of Officer Douglas. Thus, we conclude Officer Douglas' testimony did not contain hearsay and was, therefore, properly admitted. Consistent with the foregoing, the trial court did not abuse its discretion in admitting the testimony nor was the appellant materially prejudiced. The contested testimony simply provided the jury with background information. It did not point to the appellant as the perpetrator of any offense. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. BLACKMON, J., CONCUR PRESIDING JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .