State v. Mock

[Cite as State v. Mock, 2018-Ohio-268.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104997

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

TYRONE MOCK
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-597566-A

BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: January 25, 2018
ATTORNEYS FOR APPELLANT

David N. Patterson
Patterson & Simonelli
30432 Euclid Avenue, Suite #101
Wickliffe, Ohio 44092

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Erica D. Barnhill
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Tyrone Mock, appeals from his convictions for multiple counts

related to a check-fraud ring that operated in northeast Ohio. Appellant claims that

evidence gathered against him should have been suppressed based on constitutional

violations, and that his convictions are against the manifest weight of the evidence and

not supported by sufficient evidence. After a thorough review of the record and law, this

court affirms.

I. Factual and Procedural History

{¶2} Appellant cultivated a large check-fraud ring that operated throughout

northeast Ohio. He enticed Jerome Bohanon (“Bohanon”), an employee of a

check-cashing business, to supply him with business names, bank account and routing

numbers, and recent check numbers. Appellant would then research the businesses and

determine when would be the best time to attempt to cash the checks so as to avoid

security procedures in place at many banks.

{¶3} Appellant, along with Jonnell George (“George”), would then recruit

individuals to cash these checks and split the money. After recruiting an individual,

appellant would create counterfeit checks for amounts just below $1,000, using the

information obtained from Bohanon. The checks were made payable to the actual names

of the person cashing the checks. Appellant told several of these individuals that they

would only face minor criminal repercussions from the scheme and could make anywhere

from $200 to $400 per transaction.
 {¶4} Police departments around northeast Ohio, as well as bank investigators,

noticed a spike in fraudulent checks. Based on the similarities between the checks,

officers in the Rocky River Police Department believed that the separate incidents were

related. Detective William Duffy (“Det. Duffy”) interviewed a suspect, D.H., who was

identified as an individual that had cashed some fraudulent checks. She detailed her

participation in the scheme and how she came to be involved. She also disclosed that she

received the check from a person named “Ike” and gave police Ike’s phone number. She

showed them text messages she received from “Ike,” asking her if she wanted to cash

more checks. She also described his car, a white Oldsmobile Aurora.

{¶5} Det. Duffy, by way of a court order signed by a municipal court judge,

obtained phone records from a cell phone carrier for the number provided by D.H. The

subscriber information did not provide a name, and the address was for a California

residence. Det. Duffy determined that the cell phone was one he considered a “burner”

phone, or an anonymous cell phone. Using the call logs, Detective Craig Witalis (“Det.

Witalis”) was able to link the number to other phone numbers and an address on

Monticello Boulevard in Richmond Heights, Ohio. After checking records, detectives

learned that there was a 1999 white Oldsmobile Aurora owned by someone that resided at

the address. Rocky River detectives obtained a search warrant signed by a common

pleas court judge to place a GPS tracker on the car, and with the assistance of Rocky

River Detective Tracey Hill, who is also a sworn Cuyahoga County Sheriff’s deputy, did

so on May 11, 2015. Det. Witalis, along with several other officers, conducted
surveillance when the car moved.

{¶6} Bohanon testified he provided appellant with information useful in creating

counterfeit checks in exchange for money. Det. Witalis testified that from their

surveillance of appellant, a pattern emerged. Appellant would visit Bohanon’s place of

employment, and then a few days later, appellant would drive to different banks.

Sometimes appellant would arrive with another person in his car. Other times appellant

would meet another person at the location. The other person would then go into the

bank, come out, and meet up with appellant. Officers took pictures and recorded the

location of the stops using software for the GPS tracker. At trial, Det. Witalis

authenticated surveillance photos of these encounters.

{¶7} Detectives also investigated other individuals that participated in the scheme,

and several gave statements implicating appellant.

{¶8} Officers eventually gained enough information to seek a search warrant for

the Monticello Boulevard home, which was issued. There, officers found items appellant

used to create forged checks, including check stock, printers, legitimate checks from

certain businesses together with forged copies from those businesses, computer programs

with past templates of forged checks, cash, and computer searches of businesses that had

been the target of the check fraud.

{¶9} Appellant was arrested and charged in a 185-count indictment with engaging

in a pattern of corrupt activity, conspiracy, money laundering, forgery, theft,

telecommunications fraud, identity theft, and possession of criminal tools.
 {¶10} Appellant filed three suppression motions. In his first, he argued that the

search warrant for the placement of a GPS tracker was defective. In his supplemental

suppression motion, he again sought to have all information related to the GPS tracker

excluded, and also argued that the state improperly obtained phone records. On the day

of the suppression hearing, appellant filed a pro se supplemental suppression motion

arguing the GPS issue and other constitutional issues.

{¶11} A suppression hearing was held where the state called two detectives to

testify about their investigation of D.H. Det. Duffy testified about D.H.’s statements

regarding a phone number belonging to an individual named “Ike” that provided

fraudulent checks to her, and that he then sought a court order from a municipal court

judge for phone records regarding that number. The detective testified about the

information that was disclosed to the judge, and appellant’s attorney questioned the

witnesses about information that was not disclosed. This information included the fact

that D.H. lied to police about her address, and that she was recently hospitalized for

mental illness. Other issues raised in appellant’s suppression motions were not

addressed at the hearing, and appellant called no witnesses and did not introduce any

exhibits. Appellant’s attorney did ask a few questions of the detective regarding the

circumstances under which they attached the GPS unit to the car, but the warrant for GPS

tracking was not introduced during the hearing.

{¶12} The trial court took the matter under advisement and later announced a

decision in court and set forth the decision in a journal entry denying the motions. On
the record, the court stated,

[t]he standard for an order for cell phone records is less than
probable cause under 18 USC 2703(d). The standard is specific articulable
facts that give the court reasonable grounds to believe that the records
sought are relevant and material to an ongoing criminal investigation.

In this case the police reports indicate that there were — that this
confidential informant * * * had been identified through bank photos as
one of the people passing stolen and counterfeited checks. She was
interviewed, and, in fact, during one of her interviews, she received a text
message from this telephone number at issue in which a person identified as
Ike wanted to know if she wanted to cash more checks.

This was actually done in the presence of the — well, no it wasn’t
done with — but the informant * * * did show Detective Duffy a March
15th text message which requested her involvement in further check
cashing schemes.

The basis of the suppression was that [the judge] was not informed
of the informant’s psychiatric history as well as the fact that she may have
misrepresented her residential address as being with her parents as opposed
to being at a psychiatric unit of Richmond Hospital, is my recollection.

Regardless of that, though, there was a pattern of — strike that.
Before I go further, she did describe the car that this person known to her as
Ike would pick her up in and taker her to various banks. In fact, her parents
at one point dropped her off at a residence, I believe in East Cleveland
where the vehicle was consistent with the description provided by [the
informant].

And finally, and I think probably most important, in Crawford —
State v. Crawford, that’s a 2013 case, the Ohio Supreme Court indicated
that citing a U.S. Supreme Court case that a person that has no reasonable
expectation of privacy in his or her telephone records as opposed to the
contents of those phone calls.

That being the case, this was issued pursuant to the requirements of
the statute. However, even if it were in error that it did not comply with
the statutory mandates, that is not a basis for suppression. In fact, I believe
there was some case law that indicates that the exclusionary rule may be
invoked to express [sic] only evidence obtained as a result of a
 constitutional violation. Here there’s no constitutional violation. The United
States Supreme Court has ruled that there is no expectation to privacy in
one’s telephone number.

Therefore, I’m going to deny the motion to suppress.

(Tr. 57-59.)

{¶13} Prior to trial, 65 counts were dismissed at the state’s request. At trial, seven

codefendants, including Bohanon, testified against appellant. At the conclusion of trial,

11 counts were dismissed at the state’s request. Of the counts that remained, appellant

was found not guilty of several counts of forgery and money laundering. He was found

guilty of engaging in a pattern of corrupt activity (“RICO”), a violation of R.C.

2923.32(A)(1); conspiracy, a violation of R.C. 2923.01(A)(1); 28 counts of forgery,

violations of R.C. 2913.31(A)(3); 29 counts of money laundering, violations of R.C.

1315.55(A)(3); 9 counts of petty theft, violations of R.C. 2913.02(A)(3); 7 counts of

aggravated theft, violations of R.C. 2913.02(A)(3); 6 counts of telecommunications fraud,

violations of R.C. 2913.05(A); 1 count of identity theft, a violation of R.C. 2913.49(C); 1

count of forging identification cards, a violation of R.C. 2913.31(A)(2); and 1 count of

possession of criminal tools, a violation of R.C. 2923.24(A).

{¶14} At sentencing, the trial court merged the conspiracy count into the RICO

count at the state’s request. The court also merged each count of theft and forgery with

each corresponding money laundering count. If a theft and forgery count did not have a

corresponding money laundering count, then those counts were sentenced separately.

This resulted in an aggregate 13-year prison sentence, composed of a 10-year prison term
for the RICO count, a 2-year term for each of the 29 counts of money laundering imposed

concurrent to each other but consecutive to the RICO sentence, and a 1-year term for

fourth-degree felony telecommunications fraud imposed consecutive to the RICO and

money laundering counts. The following sentences were imposed concurrent to each

other and all other counts: 11 months for each of the four counts of fifth-degree felony

telecommunications fraud, 17 months for the other fourth-degree felony

telecommunications fraud, 30 months for the identity fraud, 11 months for the possession

of criminal tools, 17 months for forgery, and 6 months for theft.

{¶15} Appellant was also ordered to pay restitution and advised of postrelease

control. He then filed the instant appeal assigning three errors and one supplemental

error for review:

I. The trial court erred in denying appellant’s motion to suppress affidavits
and warrants for installation and monitoring of a GPS tracking device
which violated his rights under the Fourth Amendment of the United States
and Article I Section 14 of the Ohio Constitution[s] and the court[’s] failure
to give appellant findings of facts and conclusion[s] of law on relevant
constitutional issues thereby denying appellant[] due process.

II. The trial court erred in denying appellant a fair trial, due to the state and
detectives in this case intentionally failing to disclose through discovery
material exculpatory evidence relating to accomplice/co-defendants which
violated his rights under the Fourth Amendment of the United States and
Article I Section 10 of the Ohio Constitution[s].

III. The trial court erred in denying appellant[’s] Rule 29 motion for
acquittal as to the charges when the state presented insufficient evidence to
sustain appellant’s convictions and/or appellant’s convictions [are] against
the manifest weight of the evidence and thereby appellant was denied due
process under the Fourth Amendment of the United States and Article I
Section 10 of the Ohio [Constitutions] thereby denying appellant[] due
process.
 Supplemental Assignment of Error. Appellant was denied the effective
assistance of trial counsel, in violation of his Sixth Amendment right, and
due process of law, when trial counsel failed to conduct a pretrial
investigation and interview crucial witnesses, and trial counsel[‘]s failure to
file a motion to suppress deficient and invalid search warrant to search and
seize the contents of computer and the warrantless to [sic] search and
seiz[ure] of cell phone contents in violation of appellant’s Fourth
Amendment rights.

II. Law and Analysis

A. Suppression of Evidence

{¶16} Appellant’s first assignment of error argues that the court erred in denying

the suppression of evidence that was obtained through the installation of a GPS

monitoring device on his car. In the course of arguing these issues, he also takes issue

with the way in which the state obtained cell phone records.

{¶17} This court’s review of a decision on a motion to suppress is a mixed

question of law and fact. State v. Lennon, 8th Dist. Cuyahoga No. 104344,

2017-Ohio-2753, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. This court defers to the trial court on its factual findings, but reviews de

novo the trial court’s application of those facts to the applicable law. Id., citing

Burnside.

The Fourth Amendment to the United States Constitution protects people
from illegal searches and seizures. In order to employ Fourth Amendment
protections, a defendant must have a “constitutionally protected reasonable
expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). The United States Supreme Court has
directed reviewing courts to consider a two-part test in order to determine
whether the Fourth Amendment is implicated. “First, has the individual
manifested a subjective expectation of privacy in the object of the
 challenged search? Second, is society willing to recognize that expectation
as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809,
90 L.Ed.2d 210 (1986), citing Katz at 360.

State v. Lemasters, 12th Dist. Madison No. CA2012-12-028, 2013-Ohio-2969, ¶ 8.

{¶18} To the extent appellant challenges the decision related to the search warrants

for the attachment of a GPS tracking device, this court cannot properly address those

arguments. Appellant’s initial suppression motion references the warrants and

accompanying affidavits, but those documents were not attached.1 At the suppression

hearing, appellant did not introduce those documents as exhibits. As a result, those

documents were not before the trial court at the appropriate time. We cannot discern the

merit of appellant’s arguments without these documents. Statements made in a search

warrant affidavit enjoy a presumption of validity. State v. Taylor, 174 Ohio App.3d 477,

2007-Ohio-7066, 882 N.E.2d 945 (1st Dist.). Without evidence to the contrary, this

court is bound to find the statements made in the affidavit valid and, thus, the warrants

valid.

{¶19} The evidence adduced at the suppression hearing indicated that police were

investigating an incident where a person cashed fraudulent checks made to resemble

payroll checks. Officers interviewed an individual, D.H., and she provided them with a

phone number that she says was used to contact her in order to arrange the provision of a

1Thesuppression motion electronically filed with the clerk’s office references
these motions as attached, but they are not attached to the official version
contained in this court’s record. An undocketed, unfiled version of this document
with the attachments exists in the file received by this court, but is not properly a
part of this court’s record.
fraudulent check to her. She indicated the person with whom she communicated was

named “Ike,” and the two had exchanged text messages and talked over the phone. With

her permission, officers examined her phone and viewed the text messages that were

exchanged between that phone number and the person being interviewed. Det. Duffy

then approached a municipal court judge for an order directing the cell phone provider to

release records related to the account. Det. Duffy relayed the steps in the investigation

that had occurred and the statements made by the individual under the investigation.

Det. Duffy did not disclose that this individual had a history of mental illness and was

recently hospitalized for mental health treatment, and did not disclose that this individual

lied about her current address. The judge issued a court order directing AT&T to

produce subscriber records relating to the phone number provided, including address, call

logs, location data, and text messages.

{¶20} Det. Duffy and Det. Witalis received information regarding the phone

number from AT&T, and the subscriber information was not helpful. The account

information provided did not include a name, and the address listed was a California

address. Det. Witalis described the phone as a “burner” or anonymous phone. Using

information contained in the call logs, Det. Witalis testified that he determined, through

the frequency of the calls and other information, that the phone was likely related to an

address on Monticello Boulevard in Richmond Heights, Ohio. A records check revealed

a car registration for a white Oldsmobile Aurora owned by a person at that address.

Upon surveillance of that address, he observed a car that matched the description
provided by D.H., a white Oldsmobile Aurora.

{¶21} First, the trial court held that appellant did not have an expectation of

privacy because he denied being the owner of the phone, the subscriber using the phone,

or associated with the phone in any way.

For a person to have been aggrieved by an unlawful search or seizure, he or

she “‘must have been a victim of a search or seizure, one against whom the

search was directed, as distinguished from one who claims prejudice only

through the use of evidence gathered as a consequence of a search or

seizure directed at someone else.’”

State v. Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 45, quoting

Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969),

quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

This, alone, is a basis to affirm the trial court’s decision. Appellant has maintained that

these records do not pertain to him. Therefore, he would not be aggrieved by a search of

these records.

{¶22} However, because the state has asserted that these are records that relate to

appellant in that they pertain to a cell phone used by appellant, in an abundance of

caution, this court will analyze the matter further.

{¶23} This court has previously found no privacy right exists for cell phone

records maintained by a phone company. Id. at ¶ 47 (“telephone users have no right of

privacy in the numerical information they convey to the telephone company. Courts have
also held that this reasoning applies to cell phone records obtained from cell phone

companies as well.”), citing State v. Neely, 2d Dist. Montgomery No. 24317,

2012-Ohio-212; United States v. Dye, N.D.Ohio No. 1:10CR221, 2011 U.S. Dist. LEXIS

47287 (Apr. 27, 2011). Information that has been voluntarily turned over to third parties

does not enjoy protection because a person does not have a legitimate expectation of

privacy in such information.

{¶24} The Second District has reaffirmed its holding in Neely and found that an

individual has no constitutional privacy interest in cell phone location data, or ping data,

maintained by a cell phone carrier.2 State v. Taylor, 2d Dist. Montgomery No. 25764,

2014-Ohio-2550. The request for information sent to the phone company in that case

requested location data, call logs, and subscriber information. Id. at ¶ 8.

{¶25} The court order in the present case also sought text messages. The request

for text messages could lead to the disclosure of metadata about appellant’s

communications as well as the content of communications where a privacy interest may

exist. 18 U.S.C.S. 2703(c) specifically limits its application to records of electronic

communications, but subsection (b) provides for the release of the contents of

communications of a remote computing service only with prior notice to the subscriber

and other restrictions.

{¶26} It is unclear from the suppression hearing whether any contents of text

This issue is currently pending before the United States Supreme Court.
2

Carpenter v. United States, Supreme Court Case No. 16-402.
messages were, in fact, turned over and, if they were, whether they were used against

appellant in any manner. If the requested information turned over by the phone company

was limited to the date, time, and phone numbers of exchanged text messages, then

appellant would not have a privacy interest in that metadata.

{¶27} Det. Duffy testified that he used the call logs of the anonymous cell phone to

link that number to others that were frequently called. Through an investigation of those

numbers, using searches of publicly available information, he was able to identify a

residential address that was in some way associated with the person that used the

anonymous phone. An Ohio Bureau of Motor Vehicles search yielded a vehicle

matching the description given to police that was also associated with the address.

{¶28} There is no indication that the contents of the communications to which

appellant had a reasonable expectation of privacy were turned over as a result of the court

order or, if the contents of text messages were turned over, were used in the investigation

against appellant as a result of the court order. Appellant has the burden of at least prima

facie establishing a violation of his Fourth Amendment right to privacy, and without

showing that the contents of text messages were, in fact, turned over to police, appellant

has not made that showing.

{¶29} Appellant argues that the records disclosed to police were not turned over in

discovery. This court cannot review such a claim, but it is apparent that appellant did not

ask the detectives that testified at the suppression hearing whether the contents of text

messages were disclosed. Further, the records were not otherwise used at trial.
Therefore, the trial court did not err in this respect when denying appellant’s motion to

suppress.

{¶30} Appellant also argues that there were material omissions made to the judge

issuing the order that should have resulted in a lack of reasonable suspicion. Generally,

when this court is reviewing this type of issue, there is a search warrant affidavit that

details the information relayed to the authorizing judge. In this case, there is no affidavit

relating to the court order used to obtain cell phone records, but Det. Duffy testified about

the information relayed to the issuing judge.3 Det. Duffy readily admitted that he did not

disclose that the witness had lied to him about her residence, and that he did not disclose

that she was recently hospitalized for mental illness.

{¶31} Appellant likens this to cases where a search warrant affidavit contained

material misstatements or omissions, allegedly causing them to be fatally deficient. See

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In those

cases,

[a] defendant who claims that a warrant is flawed because it is based upon a

false statement must prove by a preponderance of the evidence that the

affiant made a false statement, either intentionally, or with reckless

disregard for the truth. State v. Tinsley, 2d Dist. No. 23542, 2010 Ohio

The same procedure has been used in the investigation of the sharing of
3

child pornography online where courts have affirmed the denial of motions to
suppress. See, e.g., Lemasters, 12th Dist. Madison No. CA2012-12-028,
2013-Ohio-2969.
 3535, ¶ 23, citing Franks [v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct.

2674, 57 L.Ed.2d 667 (1978)].

State v. Perry, 8th Dist. Cuyahoga No. 97572, 2012-Ohio-4273, ¶ 15.

{¶32} The Perry court went on to note that “‘[e]ven if the affidavit contains false

statements [or omissions] made intentionally or recklessly, a warrant based on the

affidavit is still valid unless, with the affidavit’s false material set to one side [or with the

omissions included], the affidavit’s remaining content is insufficient to establish probable

cause.’” Id. at ¶ 16, quoting State v. Sells, 2d Dist. Miami No. 2005-CA-8,

2006-Ohio-1859, ¶ 11, citing State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819

(1992).

{¶33} Here, this issuance of the court order for records is governed by a standard

less than probable cause due to the lack of a privacy interest in the requested records. 18

U.S.C.S. 2703(d). According to this statute, the standard for the issuing judge is whether

“the governmental entity offers specific and articulable facts showing that there are

reasonable grounds to believe that the contents of a wire or electronic communication, or

the records or other information sought, are relevant and material to an ongoing criminal

investigation.” This standard is similar to that fleshed out in the Terry line of cases.

United States v. Warshak, 631 F.3d 266, 291 (6th Cir.2010), citing Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this standard, an investigative

search is reasonable when the state actor is able to point to articulable facts that give rise

to a reasonable suspicion of criminal activity. State v. Eddy, 8th Dist. Cuyahoga No.
104417, 2017-Ohio-7398, ¶ 19, citing Terry.

{¶34} Assuming for the sake of argument that appellant has standing and an

interest in the cell phone records, even with the omissions appellant points out, there still

exists a reasonable suspicion of criminal activity based on the factual recitation above.

{¶35} The GPS search warrants and affidavits are not attached to any of

appellant’s suppression motions filed with the clerk. However, an undocketed, unfiled

copy of appellant’s May 18, 2016 suppression motion is included in the lower court file.

This document has hand-written notations and other irregularities. Therefore, given

these limitations, this court will examine appellant’s arguments in light of these warrants

and affidavits.

{¶36} Attached to a May 7, 2015 GPS warrant is an affidavit executed by Det.

Witalis. There, he describes the investigation of several individuals passing bad checks

and the individuals supplying these checks. The information provided by D.H. was set

forth, including the phone contact she had with a person named “Ike” and the fact that he

drove a white Oldsmobile Aurora. Det. Witalis averred that he was able to use phone

records from the number provided by D.H. to hone in on a person closely associated with

that phone number that also owned a white Oldsmobile Aurora. Detectives and a secret

service agent then met with D.H. again and she picked appellant out of a photo array and

identified him as Ike. Further surveillance of the address that Det. Witalis identified as

being closely related to the cell phone number provided by D.H. resulted in Det. Witalis

observing appellant driving the white Oldsmobile Aurora.
 {¶37} This court’s review is further hampered by the nature of the record in this

case because there are two documents purporting to be GPS warrants issued on May 7,

2015, for the same vehicle and appear to be copies of the same warrant. However, the

affidavit attached to each is different. The second May 7, 2015 search warrant affidavit

avers similar statements, but also included that an officer had taken a statement from J.M.

She was caught attempting to pass a fraudulent check and indicated that it was supplied

to her by someone who identified himself by the name of “Black” and drove a white

Oldsmobile Aurora.

{¶38} A June 24, 2015 warrant for an extension of the original GPS warrant

indicated that appellant’s vehicle was at several banks when attempts were made to pass

fraudulent checks. Det. Witalis also averred that the vehicle visited a check cashing

business — the same check cashing business that employed Bohanon — prior to visiting

the various financial institutions where fraudulent checks were passed.

{¶39} Regardless, at the suppression hearing, appellant argued in his opening

statement that the GPS warrant affidavits were deficient, but then failed to pursue the

issue further at the suppression hearing. All the evidence adduced was in relation to the

court order issued by a municipal court judge for phone records, not the GPS warrants

that were issued by a common pleas court judge. Appellant adduced testimony that

detectives failed to disclose facts about D.H. — she had a history of mental illness

including recent hospitalization, and she lied to police about her address — but that was

in the context of the court order to obtain cell phone records. As this court recognized in
Perry, it is the defendant’s burden to demonstrate a material misstatement or omission in

a search warrant affidavit under Franks. Perry, 8th Dist. Cuyahoga No. 97572,

2012-Ohio-4273, ¶ 15. Appellant failed to do so at the suppression hearing.

{¶40} Therefore, appellant’s first assignment of error is overruled.

B. Failure to Disclose Evidence

{¶41} In his second assignment of error, appellant claims that the state failed to

disclose certain allegedly exculpatory evidence relevant to the suppression issues.

{¶42} The United States Supreme Court has held, that the “[s]uppression by the

prosecution of evidence favorable to an accused who has requested it violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), syllabus.

{¶43} Appellant does not point to anything in the record that this court can review

for what was or was not disclosed in discovery. Appellant claims that there was certain

information not used at trial that was not disclosed. Specifically, appellant points to a

photo array that was shown to D.H. that was referenced at the suppression hearing, the

telephone records that were turned over to police as a result of D.H.’s information, and

D.H.’s statements to police. This court cannot determine what was or was not turned

over in discovery. Therefore, this assigned error is overruled.
 C. Sufficiency and Manifest Weight

{¶44} In a single assignment of error, appellant argues that his convictions are not

supported by sufficient evidence and are against the manifest weight of the evidence.

Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that

is, a finding that a conviction is supported by the manifest weight of the

evidence necessarily includes a finding of sufficiency. State v. McCrary,

10th Dist. [Franklin] No. 10AP-881, 2011-Ohio-3161, ¶ 11. * * * Thus, a

determination that a conviction is supported by the weight of the evidence

will also be dispositive of the issue of sufficiency. Id. * * *.

State v. Baatin, 10th Dist. Franklin No. 11AP-286, 2011-Ohio-6294, ¶ 8. See also State

v. Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946, ¶ 11. Because appellant

does not assign these errors separately, and a sufficiency analysis is subsumed by a

manifest weight analysis in this case, this court will address the arguments together.

The weight of the evidence concerns the inclination of the greater amount

of credible evidence offered to support one side of the issue rather than the

other. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

When presented with a challenge to the manifest weight of the evidence, an

appellate court may not merely substitute its view for that of the trier of

fact, but must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine
 whether in resolving conflicts in the evidence, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. Id. An appellate court should

reserve reversal of a conviction as being against the manifest weight of the

evidence for only the most “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Id., quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 35.

{¶45} Appellant was convicted of engaging in a pattern of corrupt activity as

defined by R.C. 2923.32(A)(1). This statutes provides “[n]o person employed by, or

associated with, any enterprise shall conduct or participate in, directly or indirectly, the

affairs of the enterprise through a pattern of corrupt activity or the collection of an

unlawful debt.”

{¶46} R.C. 2923.31 defines certain terms set forth in the prohibition. The statute

defines an enterprise as “any individual, sole proprietorship, partnership, limited

partnership, corporation, trust, union, government agency, or other legal entity, or any

organization, association, or group of persons associated in fact although not a legal

entity.” R.C. 2923.31(C). The statute defines a pattern of corrupt activity as “means

two or more incidents of corrupt activity, whether or not there has been a prior conviction,

that are related to the affairs of the same enterprise, are not isolated, and are not so closely

related to each other and connected in time and place that they constitute a single event.”
R.C. 2923.31(E). Finally, the statute defines corrupt activity as engaging in, attempting

to engage in, or conspiring to engage in a wide range of listed offenses including those

that apply to this case, such as money laundering, theft, forgery, and telecommunications

fraud.

{¶47} Money laundering, as it relates to this case, is defined in R.C.

1315.55(A)(3), and provides, “[n]o person shall conduct or attempt to conduct a

transaction with the purpose to promote, manage, establish, carry on, or facilitate the

promotion, management, establishment, or carrying on of corrupt activity.”

{¶48} Appellant was also convicted of conspiracy (R.C. 2923.01(A)(1), which

prohibits one from planning or aiding in planning the commission of, among other

offenses, engaging in a pattern of corrupt activity, with the purpose to, or promoting or

facilitating, the commission of such an offense. R.C. 2923.01(A)(1).

{¶49} Forgery as relevant here, provides that “[n]o person, with purpose to

defraud, or knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess

with purpose to utter, any writing that the person knows to have been forged.” R.C.

2913.31(A)(3).

{¶50} Theft prohibits one “with purpose to deprive the owner of property or

services,” from knowingly obtaining or exerting control “over either the property or

services in any of the following ways: (2) Beyond the scope of the express or implied

consent of the owner or person authorized to give consent; (3) By deception.” R.C.

2913.02(A)(2) and 2913.02(A)(3).
 {¶51} Telecommunications fraud criminalizes the use of telecommunications in a

scheme to defraud. It provides,

[n]o person, having devised a scheme to defraud, shall knowingly
disseminate, transmit, or cause to be disseminated or transmitted by means
of a wire, radio, satellite, telecommunication, telecommunications device,
or telecommunications service any writing, data, sign, signal, picture,
sound, or image with purpose to execute or otherwise further the scheme to
defraud.

R.C. 2913.05(A).

{¶52} Finally, appellant was convicted of possessing criminal tools. This is

defined in pertinent part, stating, “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it criminally.”

R.C. 2923.24(A).

{¶53} Appellant does not attack the individual elements of any given conviction,

but claims that there is insufficient evidence on all convictions because the evidence

adduced at trial demonstrated that codefendant Jonnell George was the actual perpetrator

of these crimes. This argument ignores volumes of evidence introduced at trial. The

evidence seized from appellant’s home, the testimony of codefendants that pointed to

both appellant and George as the contacts through which they received checks to cash,

and the surveillance evidence of appellant driving with people or meeting people at

various locations with banking institutions where fraudulent checks were cashed or

attempts to cash checks were made at that time. Many of those people testified about

their contact with appellant and George.

{¶54} The testimony adduced at trial demonstrated that appellant conspired with
others to engage in a scheme to defraud various businesses and financial institutions by

creating counterfeit payroll checks and having people that were in desperate need for

money use their real names to cash those checks. For instance, Jovan Blackwell

identified appellant in court as the individual from which he received fraudulent checks.

Appellant drove Blackwell to banks in Willoughby and Mayfield, and Blackwell cashed

checks made out from Target Staffing and Executive Caterers accounts. Blackwell then

split the money with appellant. Those checks, along with surveillance photos

documenting the trips, were submitted by the state as exhibits at trial.

{¶55} Bohanan, appellant’s source of financial account information, also testified

that appellant paid him for this information.

{¶56} In total, nine codefendants testified about their interactions with appellant,

George, or both. Appellant attempts to attack the veracity of these witnesses’ testimony

because they were testifying as part of plea agreements, or through minor inconsistencies

in that testimony. The overwhelming weight of evidence, including all the machinations

of appellant’s criminal enterprise found in the basement office of his residence,

demonstrates that appellant’s convictions are not against the manifest weight of the

evidence and are supported by sufficient evidence.

{¶57} Appellant’s third assignment of error is overruled.
 D. Ineffective Assistance of Counsel

{¶58} In his supplemental assignment of error, appellant argues that counsel was

ineffective for not properly investigating witnesses, seeking to suppress the results of a

search of appellant’s computer based on a lack of jurisdiction, and seeking to suppress the

contents of phone records obtained after a search of cell phones found in appellant’s car

after he was arrested.

{¶59} A claim of ineffective assistance of counsel requires a defendant to show

that (1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 327, 731 N.E.2d 645 (2000),

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The defendant must show that there exists a reasonable probability that, were it

not for counsel’s errors that rendered performance constitutionally deficient, the results of

the proceeding would have been different. State v. White, 82 Ohio St.3d 16, 23, 693

N.E.2d 772 (1998).

{¶60} In evaluating a claim of ineffective assistance of counsel, a court must give

great deference to counsel’s performance. Strickland at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th

Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

{¶61} First, appellant claims that it was incumbent on trial counsel to interview the

original codefendant that pointed Det. Duffy and Det. Witalis in appellant’s direction.
Appellant claims there is no police report or other information to corroborate statements

made by these detectives during the suppression hearing that D.H. provided any evidence

against appellant. In fact, appellant argues that the identification of D.H.’s contact as

“Ike” and the fact that the phone number she provided did not belong to appellant

constitutes exculpatory evidence that the state was required to turn over in discovery.

{¶62} This court does not have in the record before it what evidence was or was

not exchanged in discovery. But we do know that police reports documenting the

contents of D.H.’s statements to police were introduced at the suppression hearing. This

court has already determined that the omissions appellant raises, when included in the

overall information provided to the municipal court judge, still provide a valid basis to

obtain cell phone records. Therefore, there is no likelihood of a different result had this

information been more thoroughly explored in the suppression hearing. Further,

corroboration did exist in D.H.’s statements to police in the form of police reports and the

car she identified as appellant’s.

{¶63} Within this argument, appellant goes on for several pages documenting

alleged failings that bear no relation to anything that would be in the record before this

court. Therefore, we cannot address them. The specific arguments include appellant

asserting that trial counsel was ineffective for failing to investigate the circumstances

surrounding a May 7, 2015 affidavit of Det. Witalis. The search warrant affidavits were

addressed above and there is no indication that additional investigation would have led to

a finding that the warrant lacked probable cause. Further, these issues with the search
warrants were never raised or properly argued at the suppression hearing. This would

constitute a better argument for ineffective assistance of counsel, but it is not advanced

here.

{¶64} Appellant also argues that trial counsel was deficient when he failed to seek

the suppression of evidence obtained from the search of appellant’s computer that was

recovered during the search of his home. Appellant claims the search warrant for a

search of the computer was issued by a Summit County common pleas court judge who

did not have jurisdiction in the case. Appellant directs this court’s attention to a search

warrant and affidavit that does not exist in our record. This court cannot determine the

validity of any aspect of this argument.

{¶65} Finally, appellant argues counsel was ineffective for failing to seek the

suppression of evidence recorded from the search of three cell phones recovered from

appellant’s car. Appellant argues that the search of these cell phones was conducted

without a warrant and should have been suppressed. Again, however, there is nothing in

this court’s record that would substantiate that claim.

{¶66} Appellant’s final assignment of error is overruled.

III. Conclusion

{¶67} The trial court properly denied appellant’s motions to suppress on the issues

that were raised and argued at the suppression hearing. Those that were not maintained

or raised by appellant, pro se, do not constitute reversible error here. Appellant’s

convictions are supported by sufficient evidence and are not against the manifest weight
of the evidence.

{¶68} Judgment affirmed.

It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s convictions 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.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR