State v. Durham

[Cite as State v. Durham, 2013-Ohio-4764.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :
CASE NO. CA2013-03-023
Plaintiff-Appellee, :
OPINION
: 10/28/2013
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:

RICHARD KEITH DURHAM, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 12CR28815

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Thomas G. Eagle Co., L.P.A., Thomas Eagle, 3386 North St. Rt. 123, Lebanon, Ohio 45036,
for defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Richard K. Durham, appeals from his conviction and

sentence he received in the Warren County Court of Common Pleas after a jury found him

guilty of one count of possession of heroin and one count of possession of drug abuse

instruments. For the reasons outlined below, we affirm in part, reverse in part and remand

for further proceedings.
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{¶ 2} On the afternoon of December 2, 2012, Sergeant Stanley A. Jordan, Jr. of the

Ohio State Highway Patrol was dispatched to the rest areas located on I-71 near mile marker

34 in Turtlecreek Township, Warren County, Ohio, after a female reported she was a

passenger in a semi-truck being driven by an individual, later identified as Durham, who was

"whacked out on drugs." After arriving at the scene, the woman flagged down Sergeant

Jordan as he pulled into the rest area located on northbound I-71. Trooper James Adams

was also dispatched to the rest areas in order to provide assistance with the investigation into

the woman's allegations.

{¶ 3} Upon making contact with the female passenger, who identified herself as

Latisha Lane Ingram, Sergeant Jordan verified the woman's identity by checking her name

and date of birth through his computer system. After Sergeant Jordan verified her identity,

Ingram then informed him that she had been a passenger in Durham's semi-truck that was

then parked alongside the entrance ramp to the rest area. Ingram also informed Sergeant

Jordan that Durham had been shooting up heroin as they traveled north from Mississippi

towards Buffalo, New York, and that he was currently asleep in the back of the vehicle's

cabin.

{¶ 4} After speaking with Ingram, Sergeant Jordan and Trooper Adams approached

the semi-truck identified by Ingram. At that time, the vehicle's passenger side door was

standing wide open with the motor still running. Trooper Adams then conferred with Ingram

to see if Durham had any weapons in the vehicle. In response, Ingram informed Trooper

Adams that although she was not certain, she did not believe Durham had any weapons in

the vehicle. Trooper Adams then stepped up into the vehicle through the open passenger

door, announced himself as an officer with the Ohio State Highway Patrol, and asked

Durham if he could step outside. Durham, who was lying on the bed in the rear of the cab,

appeared agitated, foggy, and disheveled. Nevertheless, Durham agreed to exit the vehicle
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and speak with the officers.

{¶ 5} Once he exited the vehicle, the officers asked Durham about Ingram's

allegations regarding his recent narcotics use. Durham denied the allegations. However,

after asking Durham to roll up his sleeves, the officers noticed fresh track marks on Durham's

arm. Sergeant Jordan also discovered Durham's pupils did not react to the bright light of his

flashlight. According to Sergeant Jordan, who had 13 years of experience as a drug

interdiction officer, these were signs of Durham's recent narcotics use that corroborated

Ingram's allegations. The record also reveals Durham openly admitted to the officers that he

had a history of drug addiction and that he was prescribed medication to help curb his urge to

use.

{¶ 6} After speaking with Durham, Sergeant Jordan again spoke with Ingram who

indicated there were needles and heroin throughout Durham's semi-truck. Specifically,

although not providing the officers with an exact location, Ingram told Sergeant Jordan that

Durham would go through the side equipment boxes located on his semi-truck before

shooting up. Ingram also informed Sergeant Jordan that Durham had injected her with

heroin the day before. Ingram provided the officers with a written statement that contained

these same basic allegations.

{¶ 7} After speaking with Ingram a second time, Trooper Adams escorted Durham to

his police cruiser so that Sergeant Jordan could conduct a search of his semi-truck. The

search of the vehicle ultimately uncovered several syringes, one of which still had a brownish

liquid inside, as well as a small piece of paper that contained an off-white powder substance.

Sergeant Jordan also located several additional unused syringes and two glass smoking

pipes. Durham was then placed under arrest, advised of his Miranda warnings, and

transported to the Warren County Jail. Test results later determined the brownish liquid and

the off-white powder substance located in Durham's semi-truck was heroin.
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{¶ 8} On January 7, 2013, the Warren County Grand Jury returned an indictment

charging Durham with one count of possession of heroin in violation of R.C. 2925.11(A), a

fifth-degree felony. The indictment also included one count of possessing drug abuse

instruments in violation of R.C. 2925.12(A), which, due to Durham's previous conviction for

cocaine possession, rose to a first-degree misdemeanor.

{¶ 9} Durham subsequently filed a motion to suppress arguing the statements he

made to the officers should be suppressed and that the search of his semi-truck was not

supported by probable cause. After holding a hearing on the matter, which included

extensive testimony from both Sergeant Jordan and Trooper Adams, the trial court denied

Durham's motion in its entirety. The following day, a jury found Durham guilty of both

offenses. The trial court then sentenced Durham to serve the maximum total sentence of 12

months in jail.

{¶ 10} Durham now appeals from his conviction and sentence, raising two

assignments of error for review.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO

SUPPRESS EVIDENCE.

{¶ 13} In his first assignment of error, Durham argues the trial court erred by denying

his motion to suppress. In support of this claim, Durham does not dispute the officers had

reasonable and articulable suspicion to investigate the allegations of illicit drug use received

from Ingram, his female passenger, while his semi-truck was parked at the rest area.

Instead, Durham merely argues the trial court erred in denying his motion to suppress as he

should have been read his Miranda warnings before being questioned about his illegal drug

use. Durham also argues that the search of his semi-truck was not supported by probable

cause. Finding no merit to either of Durham's arguments, we affirm the trial court's decision.
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{¶ 14} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a

motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the

evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer,

12th Dist. Warren No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. When reviewing the denial of a

motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." State v. Thomas, 12th Dist. Warren No. CA2012-10-096, 2013-

Ohio-3411, ¶ 18, quoting State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12.

{¶ 15} It is well-established the "prosecution may not use statements, whether

exculpatory or inculpatory, stemming from a custodial interrogation unless it demonstrates

the use of procedural safeguards effective to secure the privilege against self-incrimination."

State v. Huysman, 12th Dist. Warren No. CA2005-09-107, 2006-Ohio-2245, ¶ 13, quoting

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). The issuance of Miranda

warnings is only required when the police subject a person to custodial interrogation. State v.

Byrne, 12th Dist. Butler Nos. CA2007-11-268 and CA2007-11-269, 2008-Ohio-4311, ¶ 10,

citing State v. Biros, 78 Ohio St.3d 426, 440 (1997). "Encompassed in this definition are two

distinct concepts: custody and interrogation." State v. Staley, 12th Dist. Madison No. CA99-

08-019, 2000 WL 554512, *3 (May 8, 2000).

{¶ 16} An interrogation includes "express questioning as well as 'any words or actions
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on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.'" State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, ¶ 20 (2d Dist.), quoting

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682 (1980). To that end, an

interrogation, "as conceptualized in Miranda, must reflect a measure of compulsion above

and beyond that inherent in custody itself" before it will be considered a custodial

interrogation. State v. Brumley, 12th Dist. Butler No. CA2004-05-114, 2005-Ohio-5768, ¶ 10.

{¶ 17} In determining whether an individual was in custody, the court must examine

the totality of the circumstances surrounding the interrogation. State v. Coleman, 12th Dist.

Butler No. CA2001-10-241, 2002-Ohio-2068, ¶ 23. A person is in custody if he is formally

placed under arrest prior to a police interrogation, or, if not formally arrested, when there is a

significant restraint on his freedom of movement. State v. Smith, 12th Dist. Fayette No.

CA2006-08-030, 2009-Ohio-197, ¶ 11. Such a determination "depends on the objective

circumstances of the interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned." State v. Henry, 12th Dist. Preble No.

CA2008-04-006, 2009-Ohio-434, ¶ 13; Stansbury v. California, 511 U.S. 318, 323-324, 114

S.Ct. 1526 (1994). However, a person is not in custody merely because he is considered a

suspect. Smith, 2009-Ohio-197 at ¶ 12.

{¶ 18} In support of his claim the trial court erred by denying his motion to suppress,

Durham initially argues the officers violated his constitutional rights by asking him to exit his

semi-truck based solely the allegations of an "unknown and unnamed female." We fail to

see how this relates to the issue of whether Durham was subject to a "custodial

interrogation." Nevertheless, as noted above, the record indicates Sergeant Jordan was

flagged down at the rest area located at mile marker 34 on northbound I-71 by a female

matching the description provided by dispatch. The woman identified herself to Sergeant
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Jordan who then verified her identity as Latisha Lane Ingram through his computer system.

After verifying her identity, Ingram pointed to Durham's semi-truck and informed Sergeant

Jordan that "the driver of the semi-truck, Mr. Durham, had been using narcotics, had been

shooting up heroin as he was making their trip from the south and that he was now in the

semi and that he was asleep in the semi." According to Sergeant Jordan, Ingram did not

appear to be under the influence of drugs and was in a normal frame of mind at all times.

{¶ 19} Furthermore, when specifically asked why Durham was removed from his semi-

truck, both Sergeant Jordan and Trooper Adams stated that he was asked to exit the vehicle

for purposes of officer safety. As Sergeant Jordan testified on cross-examination during the

suppression hearing:

Q: So he came out and spoke to you?

A: Yes.

Q: You requested that he get out of the vehicle?

A: [Yes.]

Q: Did you do that for safety reasons, perhaps he could
reach for a weapon or why did you request for him to –

A: Well, we're standing on the ground and he's got the high
ground and concealment on us, I mean we really don't want to
speak to a person up in a tractor trailer like that.

Q: Okay, so for safety reasons?

A: Yes.

In addition, Trooper Adams testified:

Q: And having him come out why did you have him come out
of the truck?

A: Because I have no idea of the, I mean the availability of
weapons in that vehicle, I mean you could put anything you
wanted in a tractor like that and for my own safety I wanted to
remove him from the interior of that vehicle to make sure he
didn't have access to any weapons.

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{¶ 20} As can be seen, Durham's claim that he was removed from his semi-truck

based solely on the "unknown and unnamed female" is nothing more than a

mischaracterization of the record before this court. Yet, even then, the officers' request was

proper and did not require Durham to be advised of his Miranda warnings. See, e.g., State v.

White, 2d Dist. Montgomery No. 18731, 2002 WL 63294, *4 (suspect not in custody when

asked to exit vehicle for purposes of officer safety to investigate suspicion of recent drug

transaction); State v. Welch, 5th Dist. Ashland No. 2002COA004, 2002-Ohio-5956, ¶ 14

(suspect was not in custody when asked to exit vehicle for purposes of officer safety to

investigate suspicions that marijuana was present in the vehicle). Durham's argument is

therefore without merit and overruled.

{¶ 21} Next, Durham argues that advising him of his Miranda warnings was necessary

because he was the subject of a custodial interrogation "as soon as the officer ordered him

out [of his semi-truck] to answer questions of a crime." In support of this claim, Durham

argues this case is similar to this court's decision in State v. Huening, 12th Dist. Butler No.

CA94-01-017, 1994 WL 506218 (Sept. 19, 1994). According to Durham, this court's decision

in Huening "resulted in the determination and affirmation of a Miranda violation," thereby

requiring appellant's statements to be suppressed.

{¶ 22} However, contrary to Durham's claims otherwise, this court never addressed

any issues regarding Miranda or what constitutes a "custodial interrogation" in Huening. In

fact, this court's decision in Huening never once discusses any statements allegedly made by

the appellant that were allegedly suppressed as Durham suggests. Rather, this court's

decision in Huening merely addressed the trial court's decision to suppress intoxilyzer test

results without first holding a hearing, as well as the trial court's decision finding appellant

was not placed under arrest when detained within the police cruiser in contemplation of

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charging her with a crime. Id. at *3. This court's decision in Huening, therefore, is clearly

distinguishable from the case at bar.

{¶ 23} Regardless, even if we were to find this court's decision in Huenig applicable,

which we do not, the record is devoid of any evidence that Durham's movement was in any

way restrained in contemplation of charging him with a crime so as to be subject to a

"custodial interrogation." See State v. Armenta, 12th Dist. Warren No. CA2002-04-044,

2002-Ohio-611, ¶ 17. Instead, we find the officers' questioning was merely a part of the

investigation into the allegations received from Ingram regarding Durham's illegal drug use. It

is well-established that "[c]onfining an individual to the police cruiser is not a custodial

placement if it is part of the investigation, even if the suspect in the police cruiser is not free

to leave." State v. Popp, 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 20, quoting

In re M.D., 12th Dist. Madison No. CA2003-12-038, 2004-Ohio-5904, ¶ 18. Moreover,

"[g]eneral on-the-scene questioning as to facts surrounding a crime or other general

questioning of citizens in the fact-finding process ordinarily does not fall within the ambit of

custodial interrogation." State v. Rivera-Carrillo, 12th Dist. Butler No. CA2001-03-054, 2002

WL 371950, *3 (Mar. 11, 2002). That is exactly what occurred here. Durham's argument

otherwise is likewise without merit and overruled.

{¶ 24} Finally, Durham argues he should have been advised of his Miranda rights

because he made "incriminating and inculpatory statements" in response to the officers'

routine questioning. However, as previously stated, such routine on-the-scene questioning

does not constitute a "custodial interrogation" requiring the recitation of Miranda warnings.

Furthermore, after reviewing the testimony provided at the suppression hearing, we find this

information, which included testimony regarding Durham's admitted prior drug addiction and

the obvious track marks on his arm, was willingly and voluntarily provided to the officers at

the scene. As Trooper Adams testified:
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Q: And he showed you old track marks on his arm?

A: Not when he was sitting in the car, no. No, the looking at
his arms took place up at the semi.

Q: And he voluntarily showed them to you?

A: Yes.

Trooper Adams also testified that Durham "showed it to me, he knew he had it," when

defense counsel asked if Adams ever mentioned the recent track marks he observed to

Durham during their conversation.

{¶ 25} It is well-established that a suspect who willingly volunteers information is not

subject to a custodial interrogation and is not entitled to Miranda warnings. State v. McGuire,

80 Ohio St.3d 390, 401 (1997), citing State v. Roe, 41 Ohio St.3d 18, 22 (1989). In other

words, "Miranda does not affect the admissibility of '[v]olunteered statements of any kind.'"

Id., quoting Miranda, 384 U.S. at 478; State v. Cox, 5th Dist. Coshocton No. 08 CA 0008,

2009-Ohio-1625, ¶ 21 ("[v]olunteered statements of any kind are not barred by the Fifth

Amendment and their admissibility is not affected by the Supreme Court's Miranda

decision").

{¶ 26} Moreover, although Durham claimed as part of his oral argument before this

court that the officers' request to roll up his sleeves constitutes an unlawful search under the

Fourth Amendment, Durham did not raise this issue as part of his motion to suppress, nor did

he argue this issue during the suppression hearing. An accused who seeks the suppression

of evidence must "raise the grounds upon which the validity of the search or seizure is

challenged in such a manner as to give the prosecutor notice of the basis for the challenge."

State v. Preston, 12th Dist. Clermont No. CA2012-05-036, 2012-Ohio-6176, ¶ 9, quoting

Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph one of the syllabus. Simply stated,

"[i]f a motion is not filed raising a particular suppression issue, that issue is waived." State v.

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Mixner, 12th Dist. Warren No. CA2001-07-074, 2002 WL 83742, *3 (Jan. 22, 2002).

{¶ 27} Nevertheless, even if this issue was not waived, we find Durham's willingness to

voluntarily roll up his sleeves does not constitute an unlawful search under the Fourth

Amendment. See People v. Smith, 141 Cal.App.2d 399, 401-402 (1956) (voluntarily rolling

up shirt sleeves upon officers request that revealed eight fresh track marks was not an

unlawful search); see also Gardner v. Village of Grand River, Ohio, 955 F.Supp. 817, 827

(N.D.Ohio 1997) (voluntarily rolling up sleeves and raising shirt to look for tattoos and scars

upon officers request was not an unlawful search). "Exposure of the arms in public is a

common practice for the vast majority of persons living in this country. To that vast majority

there is no loss of dignity or significant intrusion into privacy in exposing the arms." United

States v. Murphree, 497 F.2d 395, 396-397 (9th Cir.1974) (finding border inspectors may

require persons entering the United States to roll up their sleeves even though the inspectors

do not have real suspicion of smuggling directed to the individual).

{¶ 28} Furthermore, as it relates to the questioning by Trooper Adams after Durham

was escorted to the police cruiser, Trooper Adams testified as follows:

Q: So when you had him sitting in the back of the car you
weren't trying to get him to admit the fact that he was in
possession of heroin?

A: Not that I recall, no.

Q: Okay.

A: No. No, I was more or less just talking to him about, you
know, what he's doing, where he's going, where he's coming
from.

Q: Okay.

A: I looked at his log books, things of that nature. Pretty
much the same way I handle any contact with a commercial
operator really.

Thereafter, when asked if he was interrogating Durham during this time, Trooper Adams
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testified:

No, I was basically just getting information, like I said like
information on the load he had, where he was coming from,
where he was taking it to, you know. I may have asked him for
contact information like the company he was driving for and
things like that.

{¶ 29} Based on the facts and circumstances of this case, we find this falls short of

what constitutes a "custodial interrogation" as contemplated under Miranda. See, e.g., State

v. Thompson, 103 Ohio App.3d 498, 502-503 (12th Dist.1995) (finding suspect not entitled to

Miranda warnings, despite police officers' verbal indications that he was not under arrest,

where officers told him they knew about drugs and wanted his cooperation, that they did not

want to have to take him to jail, and that he was subjected to search and his car keys and

cash were seized). Instead, the officers' questioning was merely part of the routine

investigation into the allegations of Durham's illegal drug use obtained from Ingram, his

female passenger. Therefore, because Durham was not subject to a "custodial

interrogation," the trial court did not err in denying his motion to suppress in regards to any

statements he may have made to the officers.

{¶ 30} Next, Durham argues the trial court erred in denying his motion to suppress

because the search of his semi-truck was not supported by probable cause. Specifically,

Durham claims the officers had "insufficient evidence" to justify the search as it was based on

conclusory allegations from Ingram and their own observations after Durham exited from his

semi-truck. This argument lacks merit.

{¶ 31} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. State v. Dennis, 12th Dist. Warren No. CA2012-01-004, 2012-Ohio-4877, ¶ 13;

State v. Moore, 90 Ohio St.3d 47, 49 (2000). Searches and seizures conducted without a

warrant are per se unreasonable unless they come within one of the few specifically
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established and well delineated exceptions. State v. Fisher, 10th Dist. Franklin No. 10AP-

746, 2011-Ohio-2488, ¶ 17. One such exception is the well-established automobile

exception to the warrant requirement. State v. Young, 12th Dist. Warren No. CA2011-06-

066, 2012-Ohio-3131, ¶ 34; State v. Jones, 9th Dist. Lorain No. 12CA010270, 2013-Ohio-

2375, ¶ 9.

{¶ 32} "[U]nder the automobile exception to the warrant requirement, the police may

search a motor vehicle without a warrant if they have probable cause to believe that the

vehicle contains contraband." State v. Battle, 10th Dist. Franklin No. 10AP-1132, 2011-Ohio-

6661, ¶ 33. As it relates specifically to an automobile search, probable cause is "a belief

reasonably arising out of circumstances known to the seizing officer, that an automobile or

other vehicle contains that which by law is subject to seizure and destruction." State v. Popp,

12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 27, quoting State v. Kessler, 53 Ohio

St.2d 204, 208 (1978). The determination of probable cause is fact-dependent and turns on

what the officers knew at the time they conducted the search. Battle at ¶ 34, citing Bowling

Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶ 14.

{¶ 33} In this case, and as noted above, the officers were dispatched to the rest areas

on I-71 near mile marker 34 after a female reported she was a passenger in a semi-truck that

was being driven by an individual, later identified as Durham, who was "whacked out on

drugs." Once they arrived at the scene, Ingram, a passenger in Durham's semi-truck,

provided a detailed account of Durham's drug use during their travels north from Mississippi

towards Buffalo, New York. This included Ingram's own admission that Durham had shot her

up with heroin the previous day.

{¶ 34} The officers then made contact with Durham and discovered fresh track marks

on his arm indicating his recent drug use. As Sergeant Jordan testified:

Q: Starting with the track marks you said you had training
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and experience in the detection of those?

A: Yes, and experience.

Q: Based on your training and experience did you believe
those were recent marks?

A: Absolutely.

Q: And what did those marks look like?

A: The one in particular that looked like it was recent it was a
raised area that was red, kind of look[ed like] a pustule looking
injection site.

{¶ 35} Trooper Adams also testified regarding his observations of the fresh track

marks on Durham's arm. As Trooper Adams testified during cross-examination:

Q: And did they look kind of purplish?

A: One looked pinky or raised or, one did, I can't remember
which arm it was on.

Q: He had a couple of marks, didn't he, he had one on the
arm there?

A: Yes, he had several. One stood out at looking relatively
f[r]esh, kind of irritated I guess you would call it.

{¶ 36} Sergeant Jordan also testified Durham's pupils did not adjust to the light when

checking his pupils with his flashlight. According to Sergeant Jordan, who had 13 years of

experience as a drug interdiction officer, this indicated recent narcotics usage. After

speaking with Durham, the officers once again spoke with Ingram who informed them that

there were needles and heroin scattered throughout the vehicle. During this time, Ingram

stated Durham would usually get out of the vehicle and go through the side equipment boxes

before shooting up. The record also reveals Durham admitted to the officers that he had a

history of drug addiction and that he was prescribed medication to help control his urge to

use.

{¶ 37} After a thorough review of the record, we find the officers had probable cause
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to search Durham's semi-truck. In so holding, we find the facts here are more than sufficient

to provide the officers with reason to believe contraband would be located within the vehicle.

This includes not only Ingram's statements, but also the officers own observations

corroborating her allegations. Ingram's allegations were not merely "innocuous details" as

Durham now suggests, but rather, a detailed account of Durham's drug usage and the

location that the drugs would likely be found. Because the search of Durham's semi-truck

was supported by probable cause, the trial court did not err in denying his motion to suppress

in regards to the search of his vehicle. Therefore, finding no merit to either of Durham's

claims, Durham's first assignment of error is overruled.

{¶ 38} Assignment of Error No. 2:

{¶ 39} THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO THE

MAXIMUM PRISON SENTENCE FOR A FIFTH DEGREE FELONY AND FINANCIAL

SANCTIONS.

{¶ 40} In his second assignment of error, Durham initially argues the trial court erred in

sentencing him to serve the maximum total sentence of 12 months in jail resulting from his

possession of heroin and possession of drug abuse instruments convictions. We disagree.

{¶ 41} As we recently stated in State v. Crawford, 12th Dist. Clermont No. CA2012-12-

088, 2013-Ohio-3315, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11 AP-408, 2012-Ohio-

5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony

sentencing decision, such as the case here, "[t]he appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing." However, as explicitly

stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the
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sentencing court abused its discretion."

{¶ 42} Rather, the appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 25;

State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.

{¶ 43} In making such a determination, it is "important to understand that the clear and

convincing standard used by R.C. 2953.08(G)(2) is written in the negative." State v. Lee,

12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 9; State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. "It does not say that the trial judge must have

clear and convincing evidence to support its findings." Id. Quite the contrary, "it is the court

of appeals that must clearly and convincingly find that the record does not support the court's

findings." Id. Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely

deferential standard of review" for "the restriction is on the appellate court, not the trial

judge." Id.

{¶ 44} Durham does not argue that his sentence was clearly and convincingly contrary

to law, nor does he argue any errors in regard to the imposition of postrelease control.

Instead, Durham argues the trial court's decision amounts to an abuse of discretion as it was

the maximum total sentence allowable "for mere possession of a controlled substance."

However, as noted above, the Generally Assembly has explicitly stated through the passage
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of R.C. 2953.08(G)(2) that this court's standard for review "is not whether the sentencing

court abused its discretion." In turn, we are not entitled to review the trial court's decision

under the more lenient abuse of discretion standard. Crawford, 2013-Ohio-3315 at ¶ 17;

Pearce, 2013-Ohio-3484 at ¶ 27. Nevertheless, in the interest of justice and fairness, we will

review the trial court's sentencing decision in accordance with the applicable standard as

provided by R.C. 2953.08(G)(2).

{¶ 45} After a thorough review of the record, we find no error in the trial court's

sentencing decision. In making its sentencing decision, it is clear the trial court considered all

of the relevant seriousness and recidivism factors set forth in R.C. 2929.11 and R.C.

2929.12. See State v. Olvera, 12th Dist. Butler No. CA2012-10-199, 2013-Ohio-3992, ¶ 13.

The trial court also included this within its sentencing entry. See State v. Lee, 12th Dist.

Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 11. Moreover, Durham's sentence was within

the statutory range. See State v. Dehner, 12th Dist. Clermont No. CA2012-12-090, 2013-

Ohio-3576, ¶ 34; State v. Warren, 12th Dist. Clermont No. CA2012-12-087, 2013-Ohio-3483,

¶ 9. The trial court's sentencing decision was based upon full consideration of the

sentencing guidelines and the facts and circumstances of this case. This included evidence

indicating Durham was operating his semi-truck while under the influence of heroin.

Therefore, because the trial court's sentencing decision was supported by the record and

otherwise not contrary to law, Durham's first argument is overruled.

{¶ 46} Durham also argues the trial court erred in ordering him to pay the costs of his

prosecution, as well as the fees and expenses of his court-appointed attorney, without first

determining his ability to pay.

{¶ 47} As it relates to the trial court's decision ordering Durham to pay the costs of his

prosecution, pursuant to R.C. 2947.23(A)(1)(a), "[i]n all criminal cases, including violations of

ordinances, the judge or magistrate shall include in the sentence the costs of prosecution * *
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* and render a judgment against the defendant for such costs." The imposition of

prosecution costs is statutorily mandated. State v. King, 6th Dist. Lucas No. L-12-1013,

2013-Ohio-1265, ¶ 38. This is true even for those who are indigent. State v. Veal, 2d Dist.

Montgomery No. 25253, 2013-Ohio-1577, ¶ 3, citing State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, ¶ 8; State v. Thompson, 3d Dist. Marion No. 9-13-04, 2013-Ohio-3200, ¶

14. In turn, "a trial court need not consider a defendant's ability to pay court costs." State v.

Huddleston, 10th Dist. Franklin No. 12AP-512, 2013-Ohio-2561, ¶ 7, quoting Columbus v.

Kiner, 10th Dist. Franklin No. 11AP-543, 2011-Ohio-6462, ¶ 3. Therefore, the trial court did

not err in ordering Durham to pay the costs of his prosecution. See State v. Smith, 12th Dist.

Warren No. CA2010-06-057, 2011-Ohio-1188, ¶ 38, reversed on other grounds, State v.

Smith, 131 Ohio St.3d 297, 2012-Ohio-781.

{¶ 48} However, as it relates to the trial court's decision ordering Durham to pay the

fees and expenses of his court-appointed attorney, the state concedes the trial court erred by

failing to ascertain Durham's ability to pay these costs. The payment of court-appointed

counsel is governed by R.C. 2941.51(D), which provides:

The fees and expenses approved by the court under this section
shall not be taxed as part of the costs and shall be paid by the
county. However, if the person represented has, or reasonably
may be expected to have, the means to meet some part of the
cost of the services rendered to the person, the person shall pay
the county an amount that the person reasonably can be
expected to pay.

{¶ 49} In interpreting R.C. 2941.51(D), this court has held the trial court must "make an

affirmative determination on the record that the accused has the ability to pay or may

reasonably be expected to have the ability to pay." State v. Perry, 12th Dist. Preble No.

CA2004-11-016, 2005-Ohio-6041, ¶ 21. Thus, "an indigent defendant may properly be

required to pay his attorney fees only after the court makes an affirmative determination on

the record that the defendant has, or reasonably may be expected to have, the means to pay
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all or some part of the cost of the legal services rendered to him." State v. Cooper, 147 Ohio

App.3d 116, 2002-Ohio-617, ¶ 71 (12th Dist.); State v. McGee, 7th Dist. Jefferson No. 02-JE-

39, 2003-Ohio-2239, ¶ 8.

{¶ 50} In this case, however, the trial court did not make any findings on the record in

regards to Durham's present or future ability to pay the costs associated with his court-

appointed counsel. There is also no information contained in the presentence investigation

report or any other portion of the record regarding appellant's ability to pay. See State v.

Hall, 12th Dist. Warren No. CA2011-05-043, 2011-Ohio-5748, ¶ 9; State v. Layne, 12th Dist.

Clermont No. CA2010-09-073, 2011-Ohio-3763, ¶ 50-55; see also State v. Bailey, 12th Dist.

Butler No. CA2002-03-057, 2003-Ohio-5280, ¶ 27. Because the state concedes this error,

the portion of Durham's sentence ordering him to pay the cost of his court-appointed counsel

is reversed and the matter remanded for a determination pursuant to R.C. 2941.51(D)

regarding appellant's ability to pay that cost. State v. Black, 12th Dist. Butler No. CA2002-04-

082, 2003-Ohio-2115, ¶ 18; State v. Robinson, 12th Dist. Butler No. CA2002-05-127, 2003-

Ohio-2009, ¶ 26. Therefore, as it relates to the trial court's decision requiring Durham to pay

the costs of his court-appointed counsel only, Durham's second assignment of error is

sustained.

{¶ 51} Judgment affirmed in part, reversed in part, and remanded for further

proceedings.

HENDRICKSON, P.J., and RINGLAND, J., concur.

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