State v. Moscoso

[Cite as State v. Moscoso, 2018-Ohio-2877.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
REMBER Y. MOSCOSO : Case No. CT2018-0012
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0271

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 19, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHEAL HADDOX JAMES A. ANZELMO
Prosecuting Attorney Anzelmo Law
446 Howland Drive
By: GERALD V. ANDERSON II Gahanna, Ohio 43230
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0012 2

Baldwin, J.

{¶1} Defendant-appellant Rember Moscoso appeals his conviction and sentence

from the Muskingum County Court of Common Pleas on drug-related charges. Plaintiff-

appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On April 9, 2017, the Muskingum County Grand Jury indicted appellant on

one count of possession of drugs (methamphetamines) in violation of R.C. 2925.11(A), a

felony of the first degree. The count was accompanied by forfeiture and major drug

offender specifications. Appellant also was indicted on one count of trafficking in drugs

(methamphetamines) in violation of R.C. 2925.03(A)(2), a felony of the first degree, with

major drug offender and forfeiture specifications and one count of fabrication of a vehicle

with a hidden compartment in violation of R.C. 2923.241(C), a felony of the second

degree. Because appellant was determined to be indigent, the trial court appointed

counsel to represent him. At his arraignment on August 16, 2017, appellant entered a

plea of not guilty to the charges.

{¶3} On October 11, 2017, appellant filed a Motion to Suppress Evidence,

seeking to suppress “any and all evidence obtained in the course of, as a result of, and

subsequent to, the arrest of Defendant and the search of his hotel room…” Appellant

argued, in part, that the search of his hotel room was improper due to lack of consent

and/or lack of a search warrant. Appellee filed a response to the Motion to Suppress on

October 24, 2017. A suppression hearing was held on November 10, 2017.

{¶4} At the hearing, Detective Adam Hoskinson of the Licking County Sheriff’s

Office testified that he was assigned to the Central Ohio Drug Enforcement (“CODE”)
Muskingum County, Case No. CT2018-0012 3

Task Force. He testified that on July 11, 2017, he was in a marked cruiser when he

noticed a vehicle following too close to a gasoline tanker truck in front of it. He testified

that the vehicle later changed lanes but did not “signal for at least 100 feet” before it did

so. Transcript of November 10, 2017 hearing at 15. Detective Hoskinson testified that he

initiated a traffic stop of the vehicle which was a silver Kia Sportage with Illinois plates

which had been rented from Enterprise Rent-A-Car in the name of Amber Connor. The

following testimony was adduced when he was asked if the registration came back with

anything of note to him:

{¶5} A: …[T]he Illinois plate, it came back as a rental vehicle. Rental vehicles

have stickers, they are like bar codes on them usually in several places. Typically either

the front window, the side passenger window, or on the rear window. I did not see any of

these stickers on the vehicle, so that raised a lot of suspicions to me like why is that; and

with my training and education, it tells me that a lot of the times the drug traffickers, drug

couriers will remove those stickers to make it appear that somebody actually is private

ownership of the vehicle to blend in with traffic.

{¶6} Q: Okay. Through your training and experience, do drug couriers

oftentimes use rental vehicles?

{¶7} A: Yes, they like to use rental cars, one, because of the seizure clause, if

they get caught. Two, they are dependable cars, you know, they would rather drive a

2016, 2017 car over 2005 or 2010 because they are newer and more dependable, and

they blend in better.

{¶8} Transcript of November 10, 2017 hearing at 16.
Muskingum County, Case No. CT2018-0012 4

{¶9} After he pulled the vehicle over and approached the passenger’s side,

Detective Hoskinson immediately smelled an “odor, abundant amount of raw marijuana

coming from inside the vehicle” Transcript of November 10, 2017 hearing at 16-17. He

testified that he could observe marijuana flakes throughout the center console area of the

vehicle. The driver of the vehicle, Jose DeJesus Barragan Buenrostro, consented to a

search of the same and of his person and had flakes of marijuana on his shirt and pants.

The Detective located three hotel key cards to the Quality Inn in Zanesville, Ohio on

Buenrostro’s person. A search of the vehicle yielded a Quality Inn hotel receipt for room

324 in the hotel which was in Zanesville, Ohio. The name on the receipt was appellant

Rember Moscoso. A large bag with two or three ounces of suspected marijuana was

found in the center console. When he opened up the rear cargo area of the Kia, Detective

Hoskinson located a spare tire sitting on the carpeted area and noticed that the lug pattern

on the spare tire was for four lugs when the tires on the vehicle had five lugs. Because

he was concerned that there could be a hidden compartment in the tire, he examined the

tire and saw that there was a rectangular cut with a flap sticking up on the tire. He testified

that this was a common way of transporting illegal narcotics or contraband. There was

nothing inside the compartment, but a residue of methamphetamine was later found

inside the tire. Also in the vehicle, a traffic citation from Oklahoma City that had been

issued in the name of Hector Gomez was located. Buenrostro, who did not have a driver’s

license, was arrested on an outstanding ICE holder and the hidden compartment

violation.

{¶10} Detective Hoskinson then contacted Detective Mike Patrick with the

Zanesville Police Department who is also a Detective with the Zanesville/Muskingum
Muskingum County, Case No. CT2018-0012 5

County Drug Unit to follow up with the hotel because he thought that there might be drugs

in the hotel room. Detective Todd Kanavel of the Muskingum County Sheriff’s Office who

is also an agent with CODE, testified that he followed up with the hotel at the direction of

Detective Patrick. He testified that the hotel manager told him that appellant had checked

into room 324 on July 8, 2017 but had transferred to room 210 on July 11, 2017 to save

money. Detective Kanavel and Detective Patrick then went to room 210 at approximately

3:30 p.m. on July 11, 2017 and knocked on the door. They could hear at least one male

voice inside the room talking. Detective Kanavel identified himself and Detective Patrick

to appellant and asked to talk to him. Appellant, according to Detective Patrick, invited

them into the room. When the Detectives entered the room, they saw Hector Gomez also

was in the room laying on the bed. Both Gomez and appellant provided California IDs.

Appellant already knew about Buenrostro’s arrest and asked if this had anything to with

their friend Jose, who had been arrested with the marijuana. The Detectives indicted that

it did and appellant said that the marijuana in the car was all that they had, Detective

Kanavel testified that both men, when asked indicated that they did not have any drugs

or guns in the room and when he asked them individually if they could check through the

room for guns and drugs they consented. Approximately $15,000 in U.S. currency was

located in a black bag that appellant later identified as his. Appellant stated that the

money was used to pay MMA (mixed martial arts) fighters. The two men told Detective

Kanavel that they had flown from California into Akron on July 10, 2017 looking for MMA

fighters. The Detective, however, knew that this was a lie because they had checked into

the hotel on July 8th. Appellant also claimed that, in Akron, a woman named Amber met

them and rented a car for them.
Muskingum County, Case No. CT2018-0012 6

{¶11} Detective Kanavel testified that the amount of money found concerned him,

so he contacted Detective Romano of the Newark Police Department who was with

CODE. He then told the two men that Detective Romano wanted to talk to them and they

said that it would not be a problem. Neither man objected to the Detectives remaining in

the room while waiting the 30 to 45 minutes that it would take for Detective Romano to

arrive from Newark. When Detective Romano arrived, he spoke with appellant and

Gomez individually. The two gave conflicting stories about how and when they traveled

to Ohio. Both men were then arrested for further investigation into the marijuana that was

located in the car. When they were asked if they wanted the Detectives to clear out all of

their stuff and put it into bags so that they could get their $250.00 hotel deposit back and

have the stuff transported to Licking County along with them, where further investigation

was to be conducted, the two men agreed and the Detectives started gathering their

belongings. As they were gathering up the belongings, Detective Romano found an

unzipped black duffle bag full of methamphetamine under one of the beds that appellant

had been sitting on. The methamphetamine was in 13 gallon-size zip lock bags. When

asked, he testified that the men never revoked his permission to be in the room or their

consent for him to search for anything. Romano testified that in a cabinet behind a

microwave, he found a styrofoam coffee cup containing what looked like

methamphetamine.

{¶12} The trial court, as memorialized in a Journal Entry filed on November 16,

2017, denied the Motion to Suppress, holding, in part, that the occupants of the hotel

room gave consent to search the room and that no coercive tactics were used and “no

claims of false authority made.”
Muskingum County, Case No. CT2018-0012 7

{¶13} Thereafter, on November 28, 2017, appellant entered a plea of no contest

to possession of drugs and trafficking in drugs and the specifications and the trial court

found appellant guilty. The charge of fabrication of a vehicle with a hidden compartment

was tried to the bench. No testimony was taken, but rather the parties stipulated to the

facts. The parties stipulated that Detective Hoskinson stopped Jose Barragan Buenrostro

on July 11, 2017 for a traffic violation and found an altered tire in the cargo section of the

vehicle driven by him. They stipulated that the spare tire located in the vehicle did not

match the lug pattern on the vehicle and that there was “a purposeful cut …in the outside

of the discovered tire giving access to its interior. ..Inside the cut tire was

methamphetamine residue”. Transcript from November 28, 2017 at 48. The parties also

stipulated that the Detectives discovered a plastic baggie containing marijuana in the

center console of the vehicle and that a baggie was found stowed in the trunk

compartment where the spare tire normally would have been. There was a stipulation that

“Detectives Hoskinson, Romano, Kanavel, and Patrick would testify that this baggie would

match the type characteristics of the baggies of methamphetamine later discovered in

Zanesville and for which the defendants have already pled no contest.” Transcript from

November 28, 2017 at 49. The parties also stipulated that the phone found on Barragan

contained videos containing recorded conversations between Barragan and appellant

and Gomez about methamphetamine. The trial court found appellant guilty of the

fabrication of a vehicle with a hidden compartment charge.

{¶14} Appellant on January 29, 2018, filed a Motion to Waive Mandatory Fine due

to indigency. Pursuant to an Entry filed on January 31, 2018, the trial court ordered that

for purposes of sentencing, Counts One and Two would merge and appellant would be
Muskingum County, Case No. CT2018-0012 8

sentenced under Count Two, and sentenced appellant to a mandatory term of eleven

years and imposed mandatory fine of $10,000.00 and a to stated prison term of four years

on Count Three. The trial court ordered that the prison sentences be served consecutively

with each other for an aggregate prison sentence of 15 years. The trial court also ordered

appellant to pay all court costs.

{¶15} Appellant now raises the following assignments of error on appeal:

{¶16} I. THE TRIAL COURT ERRED BY DENYING MOSCOSCO’ S MOTION

TO SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS RIGHT

AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE

FOURTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION

14, ARTICLE I OF THE OHIO CONSTITUTION.

{¶17} II. MOSCOSCO’ S CONVICTION FOR FABRICATION OF A VEHICLE

WITH A HIDDEN COMPARTMENT IS BASED ON INSUFFICIENT EVIDENCE IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 AND

16, ARTICLE 1 OF THE OHIO CONSTITUTION.

{¶18} III. THE TRIAL COURT UNLAWFULLY ORDERED MOSCOSO TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITES STATES

CONSTITUTION.

{¶19} IV. THE TRIAL OUR ABUSED ITS DISCRETION BY ORDERING

MOSCOSCO TO PAY A FINE, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER
Muskingum County, Case No. CT2018-0012 9

THE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.

{¶20} V. THE TRIAL COURT ERRED BY ORDERING MOSCOSO TO PAY

COSTS, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 16 ARTICLE I OF THE OHIO CONSTITUTION.

I

{¶21} Appellant, in his first assignment of error, argues that the trial court erred in

denying his Motion to Suppress. We disagree.

{¶22} There are three methods of challenging a trial court's ruling on a motion to

suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing

a challenge of this nature, an appellate court must determine whether said findings of fact

are against the manifest weight of the evidence. State v. Fanning, 1 Ohio St.3d 19, 437

N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991).

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. In that case, an appellate court can reverse the trial

court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (1993). Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
Muskingum County, Case No. CT2018-0012 10

App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist. 1993); Guysinger, supra. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.” When ruling on a motion to suppress, the trial court

assumes the role of trier of fact and is in the best position to resolve questions of fact and

to evaluate the credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314,

1995–Ohio–243, 652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583

(1982).

{¶23} Appellant argues that his consent was not voluntary but was submission to

police authority and that Romano’s search exceeded the consent. Because appellant

challenges the trial court's decision regarding the ultimate issue raised in his motion to

suppress; we must independently determine whether the facts meet the appropriate legal

standard.

{¶24} It is well-established a defendant waives his or her Fourth Amendment

protection by consenting to a warrantless search. State v. Barnes, 25 Ohio St.3d 203,

208, 495 N.E.2d 922 (1986), citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256,

90 L.Ed. 1453 (1946), Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973), “The standard of proof to show a waiver of Fourth Amendment rights

is less strict than that required to demonstrate a waiver of Fifth or Sixth Amendment rights.

It need not be shown that there has been a knowing and intelligent waiver. Rather, the

court must examine the totality of the circumstances to determine the voluntariness of
Muskingum County, Case No. CT2018-0012 11

consent.” Barnes, supra, at 208-209, citing Schneckloth, supra, and United States v.

Mendenhal, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

{¶25} “Voluntary consent, determined under the totality of the circumstances, may

validate an otherwise illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234,

241, 1997 Ohio 343, 685 N.E.2d 762, citing Davis v. United States, supra, at 593-594.

Important factors in determining the voluntariness of consent are: (1) The voluntariness

of the defendant's custodial status; (2) The presence of coercive police procedures; (3)

The extent and level of the defendant's cooperation with the police; (4) The defendant's

awareness of his right to refuse to consent; (5) The defendant's education and

intelligence; and (6) The defendant's belief that no incriminating evidence will be found.

State v. Hall, Tuscarawas App. Nos.2000AP030025, 2000AP030026, unreported, 2000

WL 1862650 #3 (Dec. 14, 2000), citing State v. Webb, 2nd Dist. No. 17676, 2000 WL

84658 unreported (Jan. 28, 2000).

{¶26} Any search beyond the permitted intrusion would not be based on a

voluntary relinquishment of the right to be free from warrantless searches. See State v.

Mack , 118 Ohio App.3d 516, 519, 693 N.E.2d 821 (1997), appeal not allowed (1997), 79

Ohio St.3d 1418, 680 N .E.2d 156. And if an individual may limit the scope of his consent

to search, he may revoke that consent entirely. See, e.g., United States v. Drayton, 536

U.S. at 207, 122 S.Ct. 2105, 153 L.Ed.2d 242; Painter v. Robertson (C.A.6, 1999), 185

F.3d 557, 567. Of course, an item properly seized prior to the withdrawal of consent is not

subject to suppression under the Fourth Amendment. State v. Riggins, 1st Dist. No.

C0306262, 2004-Ohio-4247.
Muskingum County, Case No. CT2018-0012 12

{¶27} The prevailing rule among Ohio courts is that consent to a search may be

limited in time, duration, area, and intensity, or may revoked at any time, even after the

search has begun. See Lakewood v. Smith, 1 Ohio St.2d 128, 130, 205 N.E.2d 388

(1965); State v. Crawford, 151 Ohio App.3d 784, 2003-Ohio-902, 786 N.E.2d 83 (2d

Dist.); State v. Mack, 118 Ohio App.3d at 519, 693 N.E.2d 821 (6th Dist.); State v. Rojas

(1997), 92 Ohio App.3d 336, 635 N.E.2d 66 (8th Dist.); State v. Arrington (1994), 96 Ohio

App.3d 375, 645 N.E.2d 96 (12th Dist.).

{¶28} Whether a search is authorized by warrant or by consent, the scope of the

search is limited by the terms of its authorization. See Walter v. United States, 447 U.S.

649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). See also, State v. Robinson, 103 Ohio

App.3d 490, 495, 659 N.E.2d 1292. Where a suspect places express limitations on the

scope of a consensual search, those limitations must be observed. For example, where

a suspect tells the police, “The search is over. I am calling off the search,” his consent

has been revoked. United States v. Dichiarinte, 445 F.2d 126, 128-29 (C.A.7, 1971). A

suspect may also communicate the limitation of a search by his actions. Where a suspect

voluntarily opens his door to the police but then closes the door, barring the officers'

progress into his apartment, he has communicated the withdrawal of his consent to the

initial intrusion. See State v. Robinson, 103 Ohio App.3d 490, 495, 659 N.E.2d 1292

(1995).

{¶29} The scope of an individual's consent is often not as readily discernible and

is not to be determined by the subjective belief of the suspect. Rather, “[t]he standard for

measuring the scope of a suspect's consent is that of ‘objective reasonableness 'what

would the typical reasonable person have understood by the exchange between the
Muskingum County, Case No. CT2018-0012 13

officer and suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d

297 (citations omitted).

{¶30} The scope of a search is defined by its expressed purpose or by the nature

of the object being sought. See id., citing United States v. Ross, 456 U.S. 798, 102 S.Ct.

2157, 72 L.Ed.2d 572 (1982); see, also, Hiibel v. Sixth Judicial Dist. Court of Nevada,

Humboldt County, 542 U.S. 177, 124 S.Ct. at 2457-2458.

{¶31} At the suppression hearing, there was testimony that Detective Kanavel

knocked on the door to room 201 of the hotel at approximately 3:30 p.m. on July 11, 2017

and that appellant opened the door. Both Detective Kanavel and Detective Patrick were

outside the door and identified who they were and Detective Kanavel testified that he

asked appellant if he could talk with him. The detectives testified that once appellant

consented and said for them to come on in, they went into the room, shut the door, and

appellant “said does this have anything to do with Jose [DeJesus Buenrostro], and I told

him yes.” Transcript of suppression hearing at 71. Hector Gomez was also in the room

at the time. Both men told the Detectives that they did not have any other drugs in the

room or guns and when each was asked individually if they cared if the Detectives “would

check through the room for guns and drugs and they stated no, it was no problem.”

Transcript of suppression hearing at 59.

{¶32} Detective Kanavel testified that he saw a black bag that appellant identified

as being his and that he located approximately $15,000 in U.S. currency in the bag. While

he was searching the bag, Detective Patrick was searching Gomez’s stuff on the other

side of the room. Appellant and Gomez were advised that Detective Romano with CODE

wanted to talk to them further because of the money that had been located and that when
Muskingum County, Case No. CT2018-0012 14

asked if that was a problem, they both indicted that it was not. Detective Kanavel testified

that he asked if they cared if “We just hang out here with you until he gets here, they

stated that it would be no problem, so we sat there in the room for probably about 40, 45

minutes watching ESPN, talking sports, and talking about the MMA fighting and that.”

Transcript of suppression hearing at 62. When he told them that it would take a half hour

to 35 minutes because Detective Romano was in Licking County and that it would take a

while, the two men did not complain and were friendly. Once Detective Romano arrived,

both men agreed to be individually interviewed by him along with Detective Patrick. At the

time no one was handcuffed and guns were not pointed at anyone. Detective Kanavel

testified that the consent to search the room for drugs and guns was started at 3:35 p.m.

and that during the course of the search, both men identified what possessions in the

room belonged to them. The consent search ceased at approximately 3:40 p.m. The

following is an excerpt from Detective Kanavel’s testimony at the suppression hearing:

{¶33} Q: Okay. At any point when you were talking to these guys, did they revoke

your permission to be in the same room?

{¶34} A: No, they did not.

{¶35} Q: Did they ever revoke their consent for you to be searching for anything?

{¶36} A: No.

{¶37} Q: Did you refresh your permission repeatedly throughout this interaction?

{¶38} A: Yes.

{¶39} Q: At the end when you were - - when they were being placed under arrest

in the room and they were going to be taken to Licking County, and you asked to get their

stuff and put it in a bag –
Muskingum County, Case No. CT2018-0012 15

{¶40} A: Yes.

{¶41} Q: - - was it your purpose to be rooting around the room and finding drugs,

or were you just trying to get their stuff in a bag and get them out of there?

{¶42} A: Just gather all their stuff.

{¶43} Q: So if somebody gives you permission to gather all their stuff in a hotel

room so it could be taken with them, do they take that to mean clear out the hotel room

of all the personal property?

{¶44} A: Yes.

{¶45} Q: Not just the specific bags that they have pointed out, but instead all

personal property?

{¶46} A: Correct.

{¶47} Transcript of suppression hearing at 102-103.

{¶48} Based on the foregoing, we find that the trial court did not err in finding that

the consent to search was “voluntary, uncoerced and valid” and that the detectives

“[c]ontinually refreshed the voluntariness of the encounter, and continued to meet with

complete cooperation from the Defendant [appellant] and co-defendant which cements

the voluntariness of the consensual interaction of the parties.” There is no evidence that

the scope of consent was ever limited or revoked by either appellant or Gomez at any

time. As noted by appellee, the Detectives had clear consent to gather the belongings of

the two men in the hotel room so that they could get back their $250.00 deposit when the

room was vacated. Both the cup containing drugs and the bag containing money were

discovered as a result of this “gathering”.
Muskingum County, Case No. CT2018-0012 16

{¶49} We find, therefore, that the trial court did not err in denying the Motion to

Suppress.

{¶50} Appellant’s first assignment of error is, therefore overruled.

II

{¶51} Appellant, in his second assignment of error, contends that his conviction

for fabrication of a vehicle with a hidden compartment is based on insufficient evidence.

{¶52} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. It is well-established that the State bears the burden of

establishing each and every element of a charged crime and must do so with proof

beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–

15, 2010 WL 27862, ¶ 11.

{¶53} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237 N.E.2d 212

(1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

{¶54} Appellant was convicted of designing or operating a vehicle with a hidden

compartment used to transport a controlled substance in violation of R.C. 2923.241(C).

R.C. 2923.241 states, in relevant part, as follows:

(A) As used in this section:
Muskingum County, Case No. CT2018-0012 17

(1) “Controlled substance” has the same meaning as in section 3719.01

of the Revised Code.

(2) “Hidden compartment” means a container, space, or enclosure that

conceals, hides, or otherwise prevents the discovery of the contents of the

container, space, or enclosure. “Hidden compartment” includes, but is not

limited to, any of the following:

(a) False, altered, or modified fuel tanks;

(b) Any original factory equipment on a vehicle that has been modified

to conceal, hide, or prevent the discovery of the modified equipment's

contents;

(c) Any compartment, space, box, or other closed container that is

added or attached to existing compartments, spaces, boxes, or closed

containers integrated or attached to a vehicle.

(3) “Vehicle” has the same meaning as in section 4511.01 of the Revised

Code and includes, but is not limited to, a motor vehicle, commercial tractor,

trailer, noncommercial trailer, semitrailer, mobile home, recreational

vehicle, or motor home.

(4) “Motor vehicle,” “commercial trailer,” “trailer,” “noncommercial

trailer,” “semitrailer,” “mobile home,” “manufacturer,” “recreational vehicle,”

and “motor home” have the same meanings as in section 4501.01 of the

Revised Code.

(5) “Motor vehicle dealer” has the same meaning as in section 4517.01

of the Revised Code.
Muskingum County, Case No. CT2018-0012 18

(B) No person shall knowingly design, build, construct, or fabricate a

vehicle with a hidden compartment, or modify or alter any portion of a

vehicle in order to create or add a hidden compartment, with the intent to

facilitate the unlawful concealment or transportation of a controlled

substance.

(C) No person shall knowingly operate, possess, or use a vehicle with a

hidden compartment with knowledge that the hidden compartment is used

or intended to be used to facilitate the unlawful concealment or

transportation of a controlled substance.

{¶55} In the case sub judice, there was testimony that a spare tie with a three-

sided flap cut into the sidewall was located in the vehicle. It was placed inside the vehicle

to make it appear that it was the correct spare tire for the vehicle. The cut, according to

the testimony, appeared to be purposeful and not the result of a non-deliberate cause.

There was drug residue found inside the tire.

{¶56} A spare tire clearly falls under the original factory equipment of a vehicle

even though, as noted, the spare at issue was not the actual spare from the Kia in this

case. The spare tire to the vehicle in question was removed and replaced with the spare

tie that was found in the vehicle. As noted by appellee, “[t]he cut located on the underside

of the spare tire in the vehicle was consistent with the creation of a hidden compartment

under the statute.” The trial court, at the conclusion of the bench trial, stated on the

record, in relevant part, as follows:

{¶57} THE COURT: The Court does find that the tire specifically is - - does

provide a hidden compartment and is the hidden compartment as stated in 2923.241 (2)
Muskingum County, Case No. CT2018-0012 19

and (B) says any original factory equipment on the vehicle that has been modified to

conceal, hide, or prevent the discovery of modified equipment’s contents. Clearly, the

methamphetamine or drugs were placed inside that they modified with the slices, it was

intended to hide the drugs inside.

Because the tire was sitting on top of the spare tire area doesn’t mean that

tire wasn’t designed - - that tire still was designed to conceal the drugs.

And based upon that, I find you guilty of Count 3 also.

{¶58} Transcript from November 28, 2017 at 80.

{¶59} Based on the foregoing, we find that after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found that appellant

knowingly operated, possessed, or used a vehicle with a hidden compartment with

knowledge that the hidden compartment was used or intended to be used to facilitate that

unlawful concealment or transportation of a controlled substance,

{¶60} Appellant’s second assignment of error is, therefore, overruled.

III

{¶61} Appellant, in his third assignment of error, argues that the trial court erred

in sentencing him to consecutive sentences in contravention of R.C. 2929.14(C)(4).

Appellant specifically contends that the record does not support consecutive sentences.

{¶62} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.

Appellant was sentenced to eleven years in prison on Count 2 and four years in prison

on Count 3. The trial court ordered that the sentences run consecutively, for an aggregate
Muskingum County, Case No. CT2018-0012 20

prison sentence of 15 years. We note that Counts 1 and 2 merged for purposes of

sentencing and that the State of Ohio elected to proceed with sentencing on Count 2.

{¶63} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption

by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.

Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, ¶ 23. This statute requires

the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Nos. C–

110828 and C–110829, 2012–Ohio–3349, 2012 WL 3055158, ¶ 15.

{¶64} R.C. 2929.14(C)(4) provides as follows:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single
Muskingum County, Case No. CT2018-0012 21

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶65} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender's conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while under post-release control for a prior offense; (b) at least two of the multiple offenses

were committed as part of one or more courses of conduct, and the harm caused by two

or more of the offenses was so great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct would adequately reflect the

seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12–CA–00018, 2013–Ohio–2058, 2013

WL 2152488, ¶ 36.

{¶66} Recently, in Bonnell, supra, syllabus, the Supreme Court of Ohio stated

that:
Muskingum County, Case No. CT2018-0012 22

{¶67} In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.

{¶68} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶ 34. However, a trial court's inadvertent

failure to incorporate the statutory findings in the sentencing entry after properly making

those findings at the sentencing hearing does not render the sentence contrary to law;

rather, such a clerical mistake may be corrected by the court through a nunc pro tunc

entry to reflect what actually occurred in open court. Bonnell, ¶ 30.

{¶69} The trial court, in the case sub judice, stated on the record in sentencing

appellant to consecutive sentences:

{¶70} The Court does find that consecutive sentences are necessary to protect

the public and punish the offender. But consecutive sentences are not disproportionate

to the seriousness of the conduct and the danger posed to the public by your actions.

{¶71} Additionally, at least two of these multiple offenses were committed as part

of one or more courses of conduct, and the harm caused by two or more of the multiple

offenses so committed was so great or unusual that no single prison term for any of the

offenses committed as part of these courses of conduct adequately reflects the
Muskingum County, Case No. CT2018-0012 23

seriousness of your conduct, therefore, the 15-year prison sentence. Transcript of

suppression hearing at 102-103.

{¶72} While appellant argues that the record does not support the trial court’s

findings, we disagree. Appellant was caught with 57,000 unit doses, or 12.2 pounds of

crystal methamphetamine. There was evidence at the sentencing hearing that appellant

had a prior conviction for felony possession of cocaine in California and an outstanding

warrant for obstructing official business through falsification in Texas. The trial court, at

the sentencing hearing, noted that by appellant’s own admission, he was making at least

$20,000.00 a month in the drug trade in California. There was also evidence that appellant

had a conviction for driving without a license from 2014.

{¶73} Based on the foregoing, we find that the trial court’s findings for imposing

consecutive sentences were supported by the record and that the trial court did not err in

imposing consecutive sentences.

{¶74} Appellant’s third assignment of error is, therefore, overruled.

IV

{¶75} Appellant, in his fourth assignment of error, challenges the trial court’s

imposition of a mandatory fine of $10,000.00 on appellant with respect to County Two, a

felony of the first degree. Specifically, Appellant claims that the trial court did not consider

appellant's indigent status.

{¶76} R.C. 2929.18 governs the imposition of financial sanctions as a part of

sentencing in felony cases. Specifically, R.C. 2929.18(A) (3) (a) permits the imposition of

a fine not more than twenty thousand dollars for a felony of the first degree. Prior to
Muskingum County, Case No. CT2018-0012 24

imposing such a financial sanction, the court must consider, “the offender's present and

future ability to pay the amount of the sanction or fine.” R.C. 2929.19(B) (5).

{¶77} The decision to impose or waive a fine rests within the sound discretion of

the court and will not be reversed on appeal absent an abuse of that discretion. State v.

Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-626, 687 N.E.2d 750. “The term ‘abuse of

discretion’ connotes more than an error of law or of judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980).

{¶78} As this Court stated in State v. Gornall, 5th Dist. Ashland No. 2004-COA-

002, 2016-Ohio-7599 at paragraph 46:

{¶79} As this Court explained in State v. Perry, 5th Dist. Ashland No.2004-CA-

00066, 2005-Ohio-85:

“ ‘[T]here are no express factors that must be taken into consideration or

findings regarding the offender's ability to pay that must be made on the

record.’ State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-

Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) ‘to

determine whether the offender is able to pay the [financial] sanction or is

likely in the future to be able to pay it,’ a court is not required to do so. State

v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported

(‘although the trial court must consider the offender's ability to pay, it need

not hold a separate hearing on that issue’). ‘All that R.C. 2929.19(B)(6)

requires is that the trial court consider the offender's present and future

ability to pay.’ State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-
Muskingum County, Case No. CT2018-0012 25

1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746

N.E.2d 642. See also State v. Thompson, 5th Dist. No. 06-CA-62, 2008-

Ohio-435, at ¶ 19. While it would be preferable for the trial court to expressly

state on the record that it has considered a defendant's present and future

ability to pay a fine, it is not required. State v. Parker, 2nd Dist. No.

03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01

CA2806, 2002-Ohio-5343. “The court's consideration of that issue may be

inferred from the record under appropriate circumstances.” Id. at paragraph

27.

{¶80} Appellant, on January 29, 2018, filed a motion to waive the mandatory fine

due to his indigency. In his affidavit that was attached to the motion, he alleged that he

had previously been determined to be indigent by the court and unable to retain counsel

to represent him and that he remained an indigent person. At the sentencing hearing in

this matter, the trial court stated that based on appellant’s admission that he was earning

at least $20,000.00 month in the drug trade in California, which appellant confirmed at the

sentencing hearing, it was not going to find appellant indigent and was not going to waive

the mandatory fine. We find that the trial court considered appellant’s ability to pay a fine

and that the trial court’s decision was not unreasonable, arbitrary or unconscionable. We

find no abuse of discretion in the trial court’s imposition of the mandatory fine.

{¶81} Appellant’s fourth assignment of error is, therefore, overruled.

V

{¶82} Appellant, in his fifth assignment of error, argues that the trial court erred in

ordering him to pay court costs when he was indigent.
Muskingum County, Case No. CT2018-0012 26

{¶83} In regard to court costs, we note R.C. 2947.23(A)(1)(a) states in pertinent

part: “In all criminal cases, including violations of ordinances, the judge or magistrate shall

include in the sentence the costs of prosecution, including any costs under section

2947.231 of the Revised Code, and render a judgment against the defendant for such

costs. * * *.” (Emphasis added). Accordingly, even if a defendant is indigent, a sentencing

court must include the costs of prosecution in the sentence and render a judgment against

the defendant for costs. State v. McHenry, 5th Dist. Stark No. 2017CA00119, 2017–Ohio–

7672, ¶ 12, citing State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393,

¶ 8. But see R.C. 2949.092. Furthermore, appellant did not object to the imposition of

court costs, even though the trial court orally stated they were part of the sentence, and

the trial court did not find appellant indigent based on appellant’s admission that he was

making at least $20,000.00 a month in the drug trade in California. . Sentencing Tr. at 15-

16. Upon review, we find no reversible error in this instance in regard to the imposition of

court costs.

{¶84} Appellant's fifth assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2018-0012 27

{¶85} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Earle Wise, J. concur.