State v. Davis

[Cite as State v. Davis, 2018-Ohio-4368.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-17-44

v.

RAYLON A. DAVIS, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-17-45

v.

RAYLON A. DAVIS, OPINION

DEFENDANT-APPELLANT.

Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2015 0361 and CR2014 0118

Judgments Affirmed

Date of Decision: October 29, 2018

APPEARANCES:

Michael A. Partlow for Appellant

Jana E. Emerick for Appellee
Case Nos. 1-17-44 and 1-17-45

ZIMMERMAN, J.

{¶1} Defendant-Appellant, Raylon A. Davis (“Appellant”) appeals his

convictions from the Allen County Common Pleas Court for one count of

possession of cocaine and one count of possession of heroin in case number CR

2014 0118; and one count of possession of cocaine, one count of possession of

heroin, one count of possession of marijuana, one count of illegal cultivation of

marijuana and one count of having weapons while under disability in case number

CR 2015 0361. On appeal, Appellant asserts, in each case, that: 1) his convictions

were not supported by sufficient evidence; 2) his convictions were against the

manifest weight of the evidence; 3) he received ineffective assistance of counsel; 4)

the trial court erred in denying his motion to dismiss; 5) the trial court erred by

permitting appellee to present the testimony of an expert witness who had not

provided the defense with a report; 6) the trial court erred by consolidating his two

cases for trials; and 7), 8) the trial court erred by denying Appellant’s motions to

suppress evidence in each case. For the reasons that follow, we affirm the judgments

of the trial court.

Factual Background - Case Number CR 2014 0118

{¶2} On March 14, 2014, (then) Lima Police Department Patrolman Trent

Kunkleman (“Kunkleman”) was on third shift patrol in the city of Lima, Ohio.

(Doc. No. 146). Around 3:20 a.m., Kunkleman responded to a police dispatch to a

-2-
Case Nos. 1-17-44 and 1-17-45

downtown parking lot in Lima in regards to a suspicious silver vehicle. (Id.). Upon

arriving at the parking lot, Kunkleman located a grey Hyundai. (Id.). Kunkleman

testified that the Hyundai was the only vehicle in the parking lot, so he shined his

spotlight into the vehicle, identifying the Appellant as its sole occupant. (Id.).

{¶3} A second Lima police officer, Sergeant Hillard (“Hillard”), arrived at

the parking lot shortly after Kunkleman. (Id.). Hillard testified that he received a

police dispatch that a suspicious vehicle’s car alarm was going off1 in the Lima

parking lot in question. (Id.).

{¶4} After Hillard arrived, Kunkleman walked up to the Appellant’s vehicle

in an attempt to engage Appellant in conversation, but Appellant did not respond.

(Id.). Instead, Appellant exited his vehicle, turned his back to Kunkleman, and then

leaned back into the vehicle. (Id.). Kunkleman testified that he was unable to see

Appellant’s hands, but was able to smell an overwhelming odor of raw marijuana.

(Id.). At this point, Kunkleman became alarmed that Appellant might be reaching

into his vehicle for a weapon, so he pulled Appellant away from the car. (Id.).

Officers Kunkleman and Hillard testified that they saw the Appellant placing his

hand down into his pants pocket at this point. (Id.). Two additional law enforcement

officers, who had also arrived on the scene, then grabbed Appellant and patted him

down for officer safety. (Id.). During the pat down, officers testified that there was

1
Dash-cam video entered into evidence confirms that a car alarm was going off. (Id.; Mot. To Suppress
Hearing, 06/30/2016, State’s Ex. 2).

-3-
Case Nos. 1-17-44 and 1-17-45

a strong odor of marijuana coming from Appellant. (Id.). Officers testified that

they felt a “baggie” in Appellant’s left pocket. (Id.). Officers removed the baggie,

which contained drugs. (Id.). Appellant was then arrested. (Id.).

{¶5} After Appellant’s arrest, Kunkleman returned to the vehicle to

investigate the odor of marijuana coming from it. (Id.). Hillard, who was also at

the vehicle at this time, searched the vehicle, and found a paper sack under the

driver’s seat that contained a large amount of cocaine. (Id.). In addition to the

cocaine, officers located heroin, marijuana, ecstasy pills, a digital scale, and a ledger

in the vehicle. (Id.).

Procedural Background - Case Number CR 2014 0118

{¶6} On May 15, 2014, the Allen County Grand Jury indicted Appellant on

three (3) counts, including: Count One, possession of drugs (cocaine) in violation

of R.C. 2925.11(A)&(C)(4)(e), a first degree felony; Count Two, possession of

drugs (heroin) in violation of R.C. 2925.11(A)&(C)(6)(b), a fourth degree felony;

and Count Three, aggravated possession of drugs (ecstasy) in violation of R.C.

2925.11(A)&(C)(1)(a), a fifth degree felony. (Doc. No. 3).

{¶7} Ultimately, Appellant was arraigned in the Allen County Common

Pleas Court on January 23, 2015.2 (Doc. No. 13). Appellant’s recognizance bond

2
The record reveals a significant gap in time between Appellant’s indictment and his arraignment. However,
the record also reveals that Appellant made his initial appearance in the Lima Municipal Court on March 21,
2014, wherein he posted a $500,000 cash surety bond and was released. (Doc. No. 2).

-4-
Case Nos. 1-17-44 and 1-17-45

was set at $100,000 cash or surety, which Appellant posted. (Doc. No. 11).

However, on October 1, 2015, the trial court ordered that Appellant’s bond be

forfeited because he failed to appear for a pre-trial conference. (Doc. No. 32). A

bench warrant for Appellant’s arrest was then issued by the trial court. (Id.).

{¶8} On September 17, 2015, Appellant was indicted on new charges in

Allen County.3

{¶9} On February 19, 2016, Appellant was apprehended by the US

Marshall’s Service in Detroit, Michigan. (Doc. No. 34). After returning to Allen

County, the trial court ordered that the Appellant be held in the Allen County Jail,

without bond, until further order of the Court. (Doc. No. 38). Appellant’s jury trial

was then scheduled for April 19, 2016. (Doc. No. 69).

{¶10} On April 12, 2016, Appellant filed a motion to suppress in the trial

court. (Doc. No. 87). On May 5, 2016, Appellant executed a waiver of his right to

speedy trial. (Doc. No. 115).

{¶11} A hearing on the motion to suppress occurred on June 30, 2016. (Doc.

No. 138). And, on July 21, 2016, the trial court issued its ruling overruling

Appellant’s motion to suppress. (Doc. No. 146).

{¶12} On July 7, 2016, the State filed a motion to consolidate Appellant’s

cases. (Doc. No. 137). Appellant filed his oppositions to the State’s motion to

3
This is Case Number CR 2015 0361, which we will address infra.

-5-
Case Nos. 1-17-44 and 1-17-45

consolidate on July 15, 2016 and on August 22, 2016. (Doc. Nos. 139; 159). On

August 26, 2016 the trial court consolidated the cases. (Doc. No. 163).

{¶13} On August 3, 2016, Appellant signed and filed a second waiver of his

speedy trial rights in the trial court. (Doc. No. 155). Appellant’s jury trial was

rescheduled for December 20, 2016. (Doc. No. 169). On November 28, 2016,

Appellant, through counsel, filed a motion to continue. (Doc. No. 171).

Specifically, Appellant’s trial counsel represented to the court that he had

encountered difficulty contacting potential defense witnesses in preparation for trial.

(Id.). A hearing was held on Appellant’s motion for a continuance on November

30, 2016. (Doc. No. 174). At the hearing, Appellant refused to further waive his

right to a speedy trial beyond the January 1, 2017 date set forth in Appellant’s

previous waiver. (Id. at 2). Despite Appellant’s refusal, the trial court found that a

sixty (60) day continuance was necessary and not unreasonable under the

circumstances. (Id. at 8). Appellant’s trial was set for February 21, 2017. (Id.).

{¶14} On February 3, 2017, the State filed its motion for a continuance, due

to the Ohio Supreme Court’s recent decision in State v. Gonzales, requiring that the

State must prove the actual weight of a drug in question, (excluding any filler

materials) to meet the statutory weight requirement. (Doc. No. 180). Stated better,

based on the change in the prosecution of drug offenses under State v. Gonzales, the

State requested additional time to determine the actual weight of the cocaine

-6-
Case Nos. 1-17-44 and 1-17-45

possessed by Appellant. Appellant objected to the State’s motion for continuance.

(Doc. No. 181). The trial court, finding that the Ohio Supreme Court’s decision in

Gonzales was a significant departure from previous precedent and custom in drug

prosecutions, granted the State’s motion. (Doc. No. 182). Ultimately, Appellant’s

trial was rescheduled for May 16, 2017. (Doc. No. 184).

{¶15} On April 12, 2017, Appellant filed a motion to dismiss in the trial

court. (Doc. No. 202). Specifically, Appellant requested that his cases be

dismissed, pursuant to R.C. 2945.73(B) and R.C. 2945.71(C)(2), because he had

been held in custody for 276 days, which exceeded the statutorily permissible 270

days. (Id.). The State responded to Appellant’s motion, arguing that the time

involving its continuance (of February 3, 2017) should not count against it, because

that continuance was “reasonable and necessary” under the circumstances of the

case. (Doc. No. 205). The trial court overruled Appellant’s motion on April 19,

2017. (Doc. No. 206).

{¶16} On May 9, 2017, the Appellant fired his trial counsel and a new

attorney was appointed to represent the Appellant. (Doc. No. 211). As a result,

Appellant’s trial was rescheduled for August 1, 2017. (Doc. No. 214).

{¶17} On July 28, 2017, Appellant filed a pro se “motion for pro se counsel”

and a “motion for continuance of trial date.” (Doc. Nos. 237; 238). Appellant

alleged that his current counsel had failed to file pretrial motions and subpoena

-7-
Case Nos. 1-17-44 and 1-17-45

witnesses in preparation for his upcoming trial. (Id.). The trial court overruled

Appellant’s motions on August 1, 2017, finding that Appellant had five (5) different

attorneys during the pendency of his cases, and that extensive pretrial discovery had

been conducted during the course of the cases. (Doc. No. 239).

{¶18} Appellant’s jury trial commenced on August 1, 2017. (Doc. No. 243).

Prior to the start of the trial, in case number CR 2014 0118, the State made an oral

motion to amend Count One in the indictment, possession of cocaine, a felony of

the first degree, to possession of cocaine, a felony of the second degree. (Id.). The

trial court granted the State’s motion. (Id.) Further, the State made an oral motion

to dismiss Count Three in the indictment, aggravated possession of drugs, a felony

of the fifth degree, which the trial court also granted. (Id.). The Appellant did not

object to either motion.

{¶19} Appellant’s trial ended August 3, 2017, with the jury finding the

Appellant guilty of Count I, possession of cocaine, a felony of the second degree

and of Count II, possession of heroin, a felony of the first degree. (Id.).

{¶20} Ultimately, and in case number CR 2014 0118, the trial court

sentenced the Appellant to consecutive prison terms of six (6) years (Count I) and

twelve (12) months (Count II) on September 14, 2017. (Doc. No. 244).

-8-
Case Nos. 1-17-44 and 1-17-45

Factual Background - Case Number 2015 CR 0361

{¶21} On January 12 or 13, 2015, investigators with the West Central Ohio

Criminal Task Force (“WCOCTF”) commenced an investigation to locate the

Appellant, due to Appellant’s outstanding warrants. (Doc. No. 100). On January

12, 2015, the Lima Police Department received an anonymous telephone call4 that

Appellant was staying at 1222 Catalpa Street in Lima, Ohio. (Id.). The caller further

advised officers that Appellant was not a tenant on the lease at that location. (Id.).

Sgt. Charles Godfrey, (“Godfrey”) then a supervisor at WCOCTF, attempted to

contact the anonymous caller to verify the information provided, but was unable to

do so. (Id.). So, based on the information provided (by the anonymous caller),

Godfrey set up an undercover operation on January 13, 2015 to monitor the 1222

Catalpa Street residence in an attempt to locate Appellant. (Id.).

{¶22} On January 17, 2015, Godfrey observed a Chrysler 300 parked at the

Catalpa Street residence. (Id.). Later that day, an individual in a hooded sweatshirt

left the residence in that vehicle. (Id.). Since the vehicle’s windows were heavily

tinted, and because Godfrey could not see inside it, Godfrey arranged for the Ohio

State Highway Patrol to stop the vehicle for a tinted windows violation. (Id.). When

the Chrysler was stopped a person identified as “Watkins” was located as a

passenger in the vehicle. (Id.). Watkins told law enforcement officials that he and

4
The anonymous caller was later identified as the landlord of the duplex wherein Appellant was staying.
(See, Mot. to Suppress Hrg., 10/20/2016 Tr. at 7).

-9-
Case Nos. 1-17-44 and 1-17-45

the driver had been visiting “Ray” at 1222 Catalpa Street. (Id.). When shown a

picture of Appellant, Watkins confirmed that “Ray” was the Appellant. (Id.).

{¶23} With that information (from Watkins), Godfrey returned to 1222

Catalpa Street, believing that Appellant was present in the residence. (Id.). And,

after verifying that Appellant still had active outstanding warrants, Godfrey went to

the residence’s front door while law enforcement set up a perimeter around the

house. (Id.). Godfrey knocked on the door, identified that he was a police officer,

and that he had a warrant for Appellant’s arrest. (Id.). Godfrey further advised that

if the door wasn’t opened it would be knocked down. (Id.).

{¶24} While Godfrey was at the front door attempting to kick it in, another

investigator radioed Godfrey, advising him that the Appellant was seen leaving the

residence through the back door, but then returned into the residence when law

enforcement officials were seen. (Id.).

{¶25} Law enforcement eventually entered the house, located Appellant, and

arrested him on the outstanding warrants. (Id.). During a protective sweep of the

residence, officers observed a “marijuana grow tent” in plain view. (Id.). Officers

observed several marijuana plants and a marijuana grow operation inside the tent

(which was searched because it was large enough to conceal a person). (Id.). Based

on the Appellant’s arrest and the officer’s observations during the protective sweep,

law enforcement immediately obtained a search warrant for the residence. (Id.).

-10-
Case Nos. 1-17-44 and 1-17-45

Procedural Background - Case Number CR 2015 0361

{¶26} On September 17, 2015, Appellant was indicted by the Allen County

Grand Jury in case number CR 2015 0361 on five counts: Count One, possession of

drugs (cocaine) in violation of R.C. 2925.11(A)&(C)(4)(d), a second degree felony;

Count Two, possession of drugs (heroin) in violation of R.C.

2925.11(A)&(C)(6)(d), a second degree felony; Count Three, possession of drugs

(marijuana) in violation of R.C. 2925.11(A)&(C)(3)(d), a third degree felony; Count

Four, illegal cultivation of marijuana in violation of R.C. 2925.04(A)&(C)(5)(d), a

third degree felony; and Count Five, having weapons while under disability, in

violation of R.C. 2923.13(A)(3)&(B), a felony of the third degree. (Doc. No. 1).

Furthermore, Counts One, Two, Three, and Four each contained the following

specifications: 1) Specification for Forfeiture of a Gun in a Drug Case, pursuant to

R.C. 2941.1417(A); 2) Specification for Forfeiture of Money in a Drug Case,

pursuant to R.C. 2941.1417(A); 3) Specification for Forfeiture of Property,

pursuant to R.C. 2941.1417(A); 4) Specification for Forfeiture of a Gun in a Drug

Case, pursuant to R.C. 2941.1417(A); and 5) Specification for Forfeiture of a Gun

in a Drug Case, pursuant to R.C. 2941.1417(A). (Id.).

{¶27} On February 25, 2016, Appellant was arraigned in the trial court and

entered pleas of “not guilty to all counts and specifications” in the indictment. (Doc.

No. 9). Appellant’s jury trial was scheduled for May 10, 2016. (Doc. No. 14).

-11-
Case Nos. 1-17-44 and 1-17-45

{¶28} On April 15, 2016, Appellant filed a motion to suppress/motion in

limine in the trial court. (Doc. No. 25). Specifically, Appellant argued that law

enforcement’s warrantless search of the residence (where Appellant was located)

was unconstitutional. (Id.). Further, Appellant filed a motion to continue his trial

on May 5, 2016, so his pending motion to suppress could be heard. (Doc. No. 28).

He also executed a waiver of his speedy trial rights pursuant to R.C. 2945.71 on the

same date. (Doc. No. 30). The trial court granted his continuance and Appellant’s

jury trial was rescheduled for September 20, 2016. (Id.).

{¶29} On July 7, 2016, the State filed a motion to consolidate both of

Appellant’s criminal cases. (Doc. No. 39). Appellant opposed the State’s request.

(See, Doc. No. 48).

{¶30} On August 3, 2016, Appellant executed another waiver of his speedy

trial rights pursuant to R.C. 2945.71. (Doc. No. 61). However, Appellant’s waiver

and continuance was for a date certain, January 1, 2017. (Id.).

{¶31} Appellant, through his then counsel, filed an additional motion to

suppress in the trial court on August 22, 2016. (Doc. No. 76). Also on that date,

Appellant filed a supplemental motion in opposition to the State’s motion to

consolidate his cases. (Doc. No. 77).

{¶32} On August 26, 2016, the trial court granted the State’s motion to

consolidate. (Doc. No. 82). Specifically, the trial court found that the charges were

-12-
Case Nos. 1-17-44 and 1-17-45

of the same or similar character sufficient to permit joinder, and that Appellant failed

to demonstrate sufficient information to show that joinder violated his right to a fair

trial. (Id.).

{¶33} On September 27, 2016, Appellant’s jury trial was rescheduled for

December 20, 2016. (Doc. No. 93).

{¶34} On October 20, 2016, the trial court held a motion hearing on

Appellant’s motion to suppress. (Motion to Suppress Hearing, 10/20/2016 Tr.).

The trial court found, based upon the evidence presented, that the search warrant of

1222 Catalpa Street was supported by sufficient probable cause and further found

that statements that Appellant made to law enforcement officials did not require

Miranda warnings because Appellant made unsolicited statements that were not the

result of police interrogation. (Doc. No. 100).

{¶35} On November 28, 2016, Appellant filed another motion for

continuance of his jury trial, averring that his counsel had encountered difficulty

locating a potential witness. (Doc. No. 102). The trial court granted the motion and

continued Appellant’s jury trial until February 21, 2017. (Doc. No. 105).

{¶36} On February 3, 2017, the State filed its motion for a continuance, due

to the Ohio Supreme Court’s recent decision in State v. Gonzales, requiring that the

State must prove the actual weight of a drug in question, (excluding any filler

materials) to meet the statutory weight requirement. (Doc. No. 107). Stated better,

-13-
Case Nos. 1-17-44 and 1-17-45

based on the change in the prosecution of drug offenses under State v. Gonzales, the

State requested additional time to determine the actual weight of the cocaine

possessed by Appellant. Appellant objected to the State’s motion for continuance.

(Doc. No. 108). The trial court, finding that the Ohio Supreme Court’s decision in

Gonzales was a significant departure from previous precedent and custom in drug

prosecutions, granted the State’s motion for a continuance. (Doc. No. 109).

Ultimately, Appellant’s trial was rescheduled for May 16, 2017. (Doc. No. 111).

{¶37} On April 12, 2017, Appellant filed a motion to dismiss in the trial

court. (Doc. No. 139). Specifically, Appellant requested that his cases be

dismissed, pursuant to R.C. 2945.73(B) and R.C. 2945.71(C)(2), because he had

been held in custody for 276 days, which exceeded the statutorily permissible 270

days. (Id.). The State responded to Appellant’s motion, arguing that the time

involving its continuance (of February 3, 2017) should not count against it, because

that continuance was “reasonable and necessary” under the circumstances of the

case. (Doc. No. 140). The trial court overruled Appellant’s motion on April 19,

2017. (Doc. No. 141).

{¶38} On May 9, 2017, the Appellant fired his trial counsel and a new

attorney was appointed to represent the Appellant. (Doc. No. 147). As a result,

Appellant’s trial was rescheduled for August 1, 2017. (Doc. No. 150).

-14-
Case Nos. 1-17-44 and 1-17-45

{¶39} On July 24, 2017, Appellant filed a pro se “motion for pro se counsel.”

(Doc. No. 173). On July 28, 2017, Appellant filed an additional “motion for pro se

counsel” as well as a “motion for continuance of the trial date,” “motion for specific

discovery,” and “motion to suppress evidence.” (Doc. Nos. 180; 181; 182; 183).

Appellant, through his various motions, alleged that his current counsel had failed

to file pretrial motions and subpoena witnesses in preparation for his upcoming trial.

(Id.). The Appellant further alleged that the State had failed to provide specific

discovery. (Doc. No. 182). On August 1, 2017, the trial court overruled Appellant’s

motions, finding that the Appellant had five (5) different attorneys during the

pendency of his cases, and that extensive pretrial discovery had been conducted

during the course of the case. (Doc. No. 186).

{¶40} Appellant’s jury trial commenced on August 1, 2017. (Doc. No. 194).

Prior to the start of the trial, in case number CR 2015 0361, the State made an oral

motion to amend Count Three in the indictment, possession of marijuana, a felony

of the third degree, to possession of marijuana, a felony of the fifth degree, which

the trial court granted. (Id.) The Appellant did not oppose the amendment. (Id.).

{¶41} Appellant’s trial ended August 3, 2017, with the jury finding

Appellant guilty of all charges. (Id.). Further, Appellant was found guilty of all

specifications except for the specification for property (electronics) contained in

Count One and Count Two. (Id.).

-15-
Case Nos. 1-17-44 and 1-17-45

{¶42} Appellant was sentenced on September 14, 2017 in the trial court and

was ordered to serve a prison term of: seven (7) years in prison under Count One;

seven (7) years in prison under Count Two; twelve (12) months in prison under

Count Three; thirty (30) months in prison under Count Four; and thirty-six (36)

months in prison under Count Five. (Doc. No. 200). The trial court further ordered

that all counts be served consecutively to each other and consecutively to the prison

sentence imposed in case number CR 2014 0118. (Id.). With regards to the

specifications, the firearms were ordered to be forfeited to the WCOCTF; the money

was ordered to be forfeited to the WCOCTF; and the electronics (subject to the

specification in Counts Three and Four) were ordered forfeited to the WCOCTF.

(Id.). Appellant’s prison sentences totaled twenty-eight (28) and a half years. (Id.).

{¶43} From the judgments in case number CR 2014 0118 and case number

CR 2015 0361 Appellant timely appeals, and presents the following assignments of

error for our review:

ASSIGNMENT OF ERROR NO. I

APPELLANTS [SIC] CONVICTIONS ARE NOT SUPPORTED
BY SUFFICIENT EVIDENCE.

ASSIGNMENT OF ERROR NO. II

APPELLANTS [SIC] CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.

-16-
Case Nos. 1-17-44 and 1-17-45

ASSIGNMENT OF ERROR NO. III

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS IN THAT REGARD.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN DENYING THE
APPELLANTS [SIC] MOTION TO DISMISS THE CASE
BASED UPON VIOLATION OF HIS RIGHT TO A SPEEDY
TRIAL.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
PERMITTING THE APPELLEE TO PRESENT EXPERT
TESTIMONY BY AN EXPERT WITNESS THAT HAD NOT
PROVIDED A REPORT.

ASSIGNMENT OF ERROR NO. VI

THE TRIAL COURT ERRED, TO THE PREJUDICE OF
APPELLANT, BY CONSOLIDATING THE TWO TRIALS
FOR SEPARATE AND DISTINCT CASES AGAINST
APPELLANT.

ASSIGNMENT OF ERROR NO. VII

THE TRIAL COURT ERRED, TO THE PREJUDICE OF
APPELLANT, BY DENYING APPELLANTS [SIC] MOTION
TO SUPPRESS ALL EVIDENCE PRESENTED IN CASE
NUMBER 0118.

ASSIGNMENT OF ERROR NO. VIII

THE TRIAL COURT ERRED, TO THE PREJUDICE OF
APPELLANT, BY DENYING APPELLANTS [SIC] MOTION
TO SUPPRESS ALL EVIDENCE PRESENTED IN CASE
NUMBER 0361.

-17-
Case Nos. 1-17-44 and 1-17-45

{¶44} For ease of discussion, we elect to address interrelated assignments

together.

Appellant’s First Assignment of Error

{¶45} In his first assignment of error, Appellant argues that there was

insufficient evidence in both case number CR 2014 0118 and CR 2015 0361 to

sustain his convictions. For the reasons outlined below, we disagree.

Standard of Review

{¶46} “Whether there is legally sufficient evidence to sustain a verdict is a

question of law.” State v. Lyle, 3rd Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 8

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

Sufficiency is a test of adequacy. Id. Under a challenge alleging insufficient

evidence, “‘the 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.’” Id. quoting

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77.

Analysis – Case Number CR 2014 0118

{¶47} In case number CR 2014 0118, Appellant was found guilty in Count I

of possession of drugs (cocaine) and guilty in Count II of possession of drugs

(heroin), both in violation of R.C. 2925.11(A), which states:

-18-
Case Nos. 1-17-44 and 1-17-45

(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.

(Emphasis added). R.C. 2925.11(A).

{¶48} On appeal, Appellant argues that the State failed to produce any

evidence proving that Appellant owned or possessed the contents (i.e. heroin and

cocaine) of the motor vehicle in question. “‘Possess’ or ‘possession’ means having

control over a thing or substance, but may not be inferred solely from mere access

to the thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.” R.C. 2925.01(K). “‘The issue of whether a

person charged with drug possession knowingly possessed a controlled substance is

to be determined from all the attendant facts and circumstances available.’” State

v. Frye, 3rd Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 50 quoting State v. Brooks,

3rd Dist. Hancock No. 5-11-11, 2012-Ohio-5235, ¶ 45. See also, State v. Teamer,

82 Ohio St.3d 490, 492, 1998-Ohio-193, 696 N.E.2d 1049 (1998).

{¶49} “‘Possession of drugs can be either actual or constructive.’” Id. at ¶

51, quoting State v. Bustamante, 3rd Dist. Seneca Nos. 13-12-26, 13-13-04, 2013-

Ohio-4975, ¶ 25. “‘A person has “actual possession” of an item if the item is within

his immediate physical possession.’” State v. Watts, 3rd Dist. Hancock No. 5-12-

34, 2016-Ohio-257, ¶ 11, quoting State v. Williams, 4th Dist. Ross No. 03CA2736,

2004-Ohio-1130, ¶ 23. “‘A person has ‘constructive possession’ if he is able to

exercise dominion and control over an item, even if the individual does not have

-19-
Case Nos. 1-17-44 and 1-17-45

immediate physical possession of it.” Id. quoting Williams, 4th Dist. Ross No.

03CA2736, 2004-Ohio-1130, ¶ 23. “Ownership need not be proven to establish

constructive possession.” State v. Voll, 3rd Dist. Union No. 14-12-04, 2012-Ohio-

3900, ¶ 18. “Furthermore, ‘readily usable drugs in close proximity to an accused

may constitute sufficient circumstantial evidence to support a finding of

constructive possession.’” Id. quoting State v. Ruby, 149 Ohio App.3d 541, 2002-

Ohio-5381, 778 N.E.2d 101, ¶ 36.

{¶50} The State may establish constructive possession by circumstantial

evidence alone. Id. at ¶ 19. “Absent a defendant’s admission, the surrounding facts

and circumstances, including the defendant’s actions, are evidence that the trier of

fact can consider in determining whether the defendant had constructive

possession.” Id.

{¶51} In case number CR 2014 0118, the State produced competent and

credible evidence establishing that Appellant had possession of the cocaine and

heroin as charged. Specifically, Kunkleman testified that on March 21, 2014 at

approximately 3:20 a.m., he was dispatched to a report of a suspicious vehicle sitting

in the parking lot of 234 North Main Street. (Trial, 08/01/2017 Tr., Vol. I at 63-64).

Kunkleman pulled up behind the vehicle to run the plates, and noticed that an

African-American male was sitting in the driver’s seat. (Id. at 66). The male, who

was later identified as Appellant, was the sole individual in the vehicle. (Id.). As

-20-
Case Nos. 1-17-44 and 1-17-45

Kunkleman exited his vehicle, Appellant exited the vehicle in which he was sitting.

(Id. at 67). Appellant then began walking towards Kunkleman, and refused to

engage him in conversation. (Id.). Shortly thereafter, Appellant turned around and

walked back to towards the vehicle. (Id.). Kunkleman followed Appellant back to

the vehicle, and noticed the overwhelming smell of marijuana coming from the car.

(Id. at 68). Appellant was observed leaning into the driver’s compartment and

grabbing at something on the floorboard. (Id.). Appellant refused to comply with

Kunkleman’s request to exit the vehicle, and as a result Kunkleman pulled him away

from the vehicle for officer safety. (Id.). Hillard, who had arrived at the scene

simultaneously with Kunkleman, looked inside the vehicle and found a paper bag

with cocaine in it sticking out from under the driver’s seat. (Id. at 66, 71). Upon

searching the center armrest, Kunkleman found a baggie that contained heroin

inside it. (Id. at 71). Upon conducting a pat down of Appellant for officer safety,

a large amount of money (over $5,000) was located on Appellant’s person. (Id. at

70).

{¶52} This evidence, when viewed in a light most favorable to the State,

could lead a rational trier of fact to find that Appellant had constructive possession

of the drugs in the vehicle. Appellant was the only person in the vehicle at the time

of the stop. Further, the drugs in the vehicle were located on the driver’s side

floorboard and the center console, in the proximity of Appellant’s position as the

-21-
Case Nos. 1-17-44 and 1-17-45

driver. While proximity to drugs alone is insufficient to establish constructive

possession, proximity to the object does constitute some evidence of constructive

possession. State v. Rodgers, 3rd Dist. Hancock No. 5-10-35, 2011-Ohio-3003, ¶

30. Lastly, Appellant’s furtive movements in the area where the cocaine was located

is indicative of knowledge and possession.

{¶53} Given Appellant’s conduct and the attending facts, we conclude that a

rational trier of fact could have found the essential elements of the crimes proven

beyond a reasonable doubt in case number CR 2014 0118.

Analysis –Case Number CR 2015 0361

{¶54} Pertinent to this appeal, in case number CR 2015 0361, Appellant was

found guilty in Count I of possession of drugs (cocaine), guilty in Count II of

possession of drugs (heroin), and guilty in Count III of possession of drugs

(marijuana), all in violation of R.C. 2925.11(A), which states:

(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.

(Emphasis added). R.C. 2925.11(A).

{¶55} In Count IV, Appellant was charged with illegal cultivation of

marijuana, in violation of R.C. 2925.04(A), which states:

(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.

R.C. 2925.04(A).

-22-
Case Nos. 1-17-44 and 1-17-45

{¶56} In Count V, Appellant was charged with having weapons while under

disability, in violation of R.C. 2923.13(A)(3), which states:

(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:

***

(3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse or has
been adjudicated a delinquent child for the commission of an offense
that, if committed by an adult, would have been a felony offense
involving the illegal possession, use, sale, administration, distribution,
or trafficking in any drug of abuse.

R.C. 2923.13(A)(3).

{¶57} In support of his sufficiency-of-the-evidence challenge, Appellant

argues that the State failed to provide evidence that linked Appellant with the

contraband found at 1222 Catalpa Street. We find otherwise. Specifically,

testimony at trial revealed that after Appellant was arrested, Appellant told law

enforcement officials that: “I don’t live here. I’m just seeing a girl.” (Trial,

08/02/2017 Tr., Vol. I, at 145). But, when law enforcement questioned Appellant

about the “girl,” Appellant wasn’t able to provide any information about her to law

enforcement. (Id.).

{¶58} Moreover, after the search warrant was executed, authorities found a

book bag in a bedroom closet that contained: a VISA gift card with Appellant’s

-23-
Case Nos. 1-17-44 and 1-17-45

name on it; a medical marijuana card with Appellant’s personal identifiers on it; a

Huntington Bank VISA card with Appellant’s name on it; and Appellant’s social

security card and birth certificate. (Id., Vol. II at 242). Also located within the

residence were three handguns. (Id., Vol. I 187-88). Authorities failed to find any

women’s or children’s clothing in the residence. (Id., Vol. II at 245). Contrary to

Appellant’s argument on appeal, there was competent and credible evidence that

Appellant was the sole occupant of 1222 Catalpa Street at the time of the arrest, the

protective sweep, and when the search occurred in the residence. We find that

Appellant’s theory of possession is inconsistent with the evidence.

{¶59} After viewing the evidence in a light most favorable to the

prosecution, we find that a rational trier of fact could have found the essential

elements of the crimes charged proven beyond a reasonable doubt in case number

CR 2015 0361. Accordingly, we overrule Appellant’s first assignment of error in

its entirety.

Appellant’s Second Assignment of Error

{¶60} Appellant argues that his convictions in both case number CR 2014

0118 and CR 2015 0361 were against the manifest weight of the evidence. For the

reasons that follow, we disagree.

-24-
Case Nos. 1-17-44 and 1-17-45

Standard of Review

{¶61} The Ohio Supreme Court has “‘carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Lyle, 3rd

Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 9 quoting Eastley v. Volkman, 132 Ohio

St.3d 328, 2010-Ohio-2179, 972 N.E.2d 517, ¶ 10.

{¶62} In analyzing a claim that a conviction was against the manifest weight

of the evidence, an appellate court:

sits as the “thirteenth juror” and may disagree with the fact finder’s
resolution of the conflicting testimony. * * * The appellate court,
“‘reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against
conviction.’”

State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State

v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶14 (citations

omitted). However, in sitting as the thirteenth juror the appellate court should give

due deference to the findings made by the jury. Id.

-25-
Case Nos. 1-17-44 and 1-17-45

Analysis

{¶63} The Eighth District Court of Appeals identified the following eight

factors as a guide to assist a reviewing court in determining whether a decision of

the trial court was against the manifest weight of the evidence:

1. A reviewing court is not required to accept the incredible as true;

2. Whether the evidence is uncontradicted;

3. Whether a witness was impeached;

4. What was not proved;

5. Certainty of evidence;

6. Reliability of evidence;

7. Whether witness’ testimony is self-serving;

8. And whether evidence is vague, uncertain, conflicting, or
fragmentary.

State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1985). We

discuss the relevant factors to each underlying case below.

Uncontradicted Evidence

{¶64} Initially, we note that Appellant failed to introduce any evidence that

contradicted the State’s evidence at trial. In respect to case number CR 2014 0118,

Appellant produced no evidence to contradict the State’s testimony that on March

21, 2014 at approximately 3:00 a.m., the Lima Police Department was dispatched

to 234 North Main Street in Lima, Ohio for a call of a suspicious vehicle sitting in

-26-
Case Nos. 1-17-44 and 1-17-45

the parking lot. It is not disputed that the Appellant exited his vehicle when officers

arrived, and when Kunkleman approached him, Appellant turned back and leaned

into the car on the driver’s side. It is further undisputed that officers could smell the

smell of raw marijuana at this time and that officers grabbed Appellant and pulled

him away from the vehicle for their safety.

{¶65} There is no dispute that the Appellant, when ordered to put his hands

up in the air, disregarded the officer’s commands, which led to him being detained.

A pat down of Appellant produced a large sum of money and marijuana, which led

to his arrest and the subsequent search of the vehicle, which produced a large

amount of cocaine, marijuana, heroin, digital scales, and Appellant’s billfold. With

no testimony or evidence produced at trial to cast doubt upon this version of events,

Appellant cannot contradict the elements of possession of cocaine and possession

of heroin as established by the State in case number CR 2014 0118.

{¶66} In regards to case number CR 2015 0361, the State’s uncontradicted

evidence demonstrated that on January 17, 2015, after receiving an anonymous tip

and surveilling the premises, law enforcement entered 1222 Catalpa Street after

repeatedly requesting that Appellant come to the front door. Once inside the

premises, and while conducting a protective sweep of the home, officers viewed a

marijuana grow tent in plain view. Based on the information collected, officers

obtained a search warrant and searched the premises in its entirety. During the

-27-
Case Nos. 1-17-44 and 1-17-45

search, officers located credit cards, mail, and other personal effects bearing

Appellant’s name.

{¶67} While Appellant contends that no witness had personal knowledge that

he occupied the premises, the evidence indicates otherwise. Specifically, many of

Appellant’s personal effects were found within the residence, which is indicative of

occupation. Accordingly, we find that the uncontradicted evidence supports that

Appellant was occupying the residence on January 17, 2015.

Impeached Witness

{¶68} A review of the record reveals that no witness for the State was

impeached in either case number CR 2014 0118 or CR 2015 0361.

Reliability of Evidence

{¶69} With respect to case number CR 2015 0361, Appellant attempts to

discredit the reliability of the testimony and evidence produced at trial, because “not

one single witness [***] actually had personal knowledge of Appellant allegedly

occupying the premises testified [to] at trial.” (Br. of Appellant at 10). Appellant

further classifies all of the testimony produced regarding occupation of the premises

as “hearsay.”

{¶70} However, we find that the State produced competent and credible

evidence that Appellant was occupying 1222 Catalpa Street in Lima, Ohio at the

time the officers conducted their raid. Specifically, officers testified that they

-28-
Case Nos. 1-17-44 and 1-17-45

observed Appellant leave the back of the duplex in an attempt to flee, and then run

back inside once he saw that officers had the duplex surrounded. Furthermore, the

evidence established that officers personally observed Appellant leave out of the

back of the residence prior to it being breached. With eyewitness testimony

confirming that Appellant was, in fact, inside the residence, we find no merit in

Appellant’s argument in regards to reliability.

Self-Serving Testimony

{¶71} The record reveals that the trial court did not characterize any

witness’s testimony as self-serving in either case number CR 2014 0118 or CR 2015

0361. Accordingly, on review, we do not find any indicia of self-serving testimony

in either case and Appellant does not argue that testimony was self-serving on

appeal.

Vague, Uncertain, Conflicting, or Fragmentary Evidence

{¶72} In case number CR 2014 0118, Appellant points to the evidence

produced at the suppression hearing to cast into doubt officers’ testimony at trial.

Specifically, Appellant argues that the officers, when testifying at the suppression

hearing, described a “much more leisurely encounter at the suppression hearing than

they did at trial.” (Br. of Appellant at 10). However, Appellant fails to develop this

argument and further fails to demonstrate how this “conflict” in testimonies between

the suppression hearing and trial creates a manifest miscarriage of justice warranting

-29-
Case Nos. 1-17-44 and 1-17-45

reversal. Even should Appellant establish that a true “conflict” exists in the

evidence presented at the suppression hearing and the trial, and that such issue was

properly before this Court, we find that the record contains competent, credible

evidence to support the trial court’s findings. Phelps v. Horn’s Crop Serv. Ctr., 3rd

Dist. Wyandot No. 16-89-8, 1990 WL 157282, * 2 (holding that the choice between

credible witnesses and their conflicting testimony rests solely with the finder of fact

and an appellate court may not substitute its own judgment for that of the finder of

fact).

{¶73} Accordingly, we find that the weight of the evidence supports

Appellant’s convictions. We further find that the jury did not lose its way and create

a manifest miscarriage of justice in convicting Appellant of possession of cocaine

and heroin in case number CR 2014 0118 or CR 2015 0361. Accordingly, we

overrule Appellant’s second assignment of error.

Appellant’s Third Assignment of Error

{¶74} In his third assignment of error, Appellant argues that his trial counsel

was ineffective, in part, because trial counsel failed to object to hearsay statements

during trial. For the reasons that follow, we disagree.

Standard of Review

{¶75} “‘When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that the counsel’s representation fell

-30-
Case Nos. 1-17-44 and 1-17-45

below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d

150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466

U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.’” Id., at 694. See

also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).

{¶76} In analyzing a claim for ineffective assistance of counsel, this court’s

scrutiny of counsel’s performance must be highly deferential, with a “‘strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-

88. “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s

performance.” Id.

Analysis

{¶77} At the outset, we note that Appellant, during the course of the

proceedings below, had five (5) different attorneys represent him. Interestingly,

Appellant does not specify which trial counsel was ineffective. However, it appears

from this assignment that Appellant questions the effectiveness of his trial counsel.

-31-
Case Nos. 1-17-44 and 1-17-45

{¶78} Appellant initially argues that his trial counsel was ineffective because

trial counsel failed to object to any of the hearsay regarding Appellant residing in

the residence during the raid by police officers, as charged in case number CR 2015

0361. However, we note that the failure to make objections is not alone enough to

sustain a claim of ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103. See also, State v. Holloway, 38 Ohio

St.3d 239, 244, 527 N.E.2d 831 (1988) (failure to object to error, alone, is not

enough to sustain a claim of ineffective assistance of counsel); State v. Gumm, 73

Ohio St.3d 413, 428, 1995-Ohio-24, 653 N.E.2d 253 holding modified by State v.

Wogenstahl, 75 Ohio St.3d 344, 1996-Ohio-219, 662 N.E.2d 311 (the failure to

make objections does not constitute ineffective assistance of counsel per se, as that

failure may be justified as a tactical decision).

{¶79} Next, Appellant argues that his trial counsel’s performance was

ineffective because trial counsel did not voir dire Sergeant Dana Sutherland

(“Sutherland”), the State’s marijuana expert witness. This argument lacks merit for

two reasons. First, the record reveals, and the Appellant concedes, that trial counsel

objected to the expert being certified as an expert witness, and the trial court

overruled the objection. (See, Trial Tr., Vol. II, at 286). And second, the record

reveals that the Appellant’s concerns with Sutherland’s qualifications to testify as

an expert were addressed by the trial court prior to trial. (Trial, 08/01/2017 Tr., Vol.

-32-
Case Nos. 1-17-44 and 1-17-45

I, at 11). Given the trial court’s rulings, we do not find that Appellant’s trial

counsel’s performance fell below an objective standard of reasonable representation

under the facts presented.

{¶80} Lastly, Appellant argues that trial counsel was ineffective because his

trial counsel failed to file a proper motion to sever the counts at the appropriate time

during trial. However, the record is clear, and the Appellant concedes, that

objections to the State’s motions to consolidate were made and a motion to sever

was filed prior to trial. (See, CR 2014 0118, Doc. No. 139; CR 2015 0361, Doc.

No. 48). Despite Appellant’s objections and motion, the trial court found that the

charges were of similar character and part of a common scheme or course of

criminal conduct, then consolidated the cases and joined them for purposes of trial.

(CR 2014 0118, Doc. No. 163; CR 2015 0361, Doc. No. 82). Thus, because the

trial court had already ruled on Appellant’s motion to sever, Appellant has failed to

demonstrate that a subsequent trial counsel’s performance fell below an objective

standard of reasonableness by failing to file an additional motion to sever, and we

overrule Appellant’s third assignment of error in its entirety.

Appellant’s Fourth Assignment of Error

{¶81} In his fourth assignment of error, Appellant argues that the trial court

erred by denying his motion to dismiss his cases based upon a speedy trial violation.

Specifically, Appellant argues that the continuance granted at the request of the

-33-
Case Nos. 1-17-44 and 1-17-45

State beyond the February 21, 2017 trial date was unreasonable. For the reasons

that follow, we disagree.

Standard of Review

{¶82} “Our standard of review upon an appeal raising a speedy trial issue is

to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3rd

Dist. Marion No. 9-06-18, 2007-Ohio-335, ¶ 30. See also, State v. DePue, 96 Ohio

App.3d 513, 516, 645 N.E.2d 745 (4th Dist.1994). “If any ambiguity exists, we

construe the record in favor of the accused.” Id.

{¶83} The applicable statutory speedy trial provision, R.C. 2945.71(C)(2),

provides that a person charged with a felony shall be brought to trial within two

hundred and seventy (270) days after the person’s arrest. R.C. 2945.71(C)(2). In

computing time under division (C)(2), “each day during which the accused is held

in jail in lieu of bail on the pending charges shall be counted as three days.” R.C.

2945.71(E).

{¶84} Further, R.C. 2945.73(B) provides:

Upon motion made at or prior to the commencement of trial, a person
charged with an offense shall be discharged if he is not brought to trial
within the time required by sections 2945.71 and 2945.72 of the
Revised Code.

R.C. 2945.73(B). “R.C. 2945.71 and R.C. 2945.73 are ‘mandatory and must be

strictly complied with by the State.’” King at ¶ 32, quoting State v. Pudlock, 44

Ohio St.2d 104, 105, 338 N.E.2d 524 (1975). “However, R.C. 2945.72 allows for

-34-
Case Nos. 1-17-44 and 1-17-45

an extension of the time that the accused must be brought to trial under certain

circumstances.” Id.

Analysis

{¶85} In the instant matter, both the State and Appellant agree that

Appellant’s speedy trial rights were upheld throughout the proceedings up until

Appellant’s scheduled jury trial on February 21, 2017. However, at the request of

the State, Appellant’s trial was rescheduled for May 16, 2017, outside of the

Appellant’s statutory speedy trial period. Thus, the question before us is not

whether Appellant was brought to trial within the statutorily permitted time frame,

but rather, was the speedy trial violation permissible under the circumstances of the

case. We answer that question in the affirmative.

{¶86} R.C. 2945.72, entitled “extension of time for hearing or trial,” allows

for an extension of time that the accused must be brought to trial under certain

circumstances. R.C. 2945.72(H) provides:

The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only
by the following:

***

(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other
than upon the accused’s own motion.

(Emphasis added). R.C. 2945.72(H).

-35-
Case Nos. 1-17-44 and 1-17-45

{¶87} The resolution of this issue, therefore, depends upon whether the trial

court’s continuance was reasonable. “Determining the ‘reasonableness’ of the

continuance beyond the ninety-day stricture of R.C. 2945.71, invariably, ‘depends

on the peculiar facts and circumstances of a particular case.’” State v. Glass, 3rd

Dist. Auglaize No. 2-04-01, 2004-Ohio-4402, ¶ 10, quoting State v. Saffell, 35 Ohio

St.3d. 90, 91, 518 N.E.2d 934 (1988). “‘In addition, precedent requires that such a

continuance be necessary under the circumstances of the case.’” Id. quoting Saffell,

35 Ohio St.3d. 90, 91, 518 N.E.2d 934 (1988) citing City of Aurora v. Patrick, 61

Ohio St.2d 107, 108-09, 399 N.E.2d 1220 (1980).

{¶88} On February 3, 2017, the State requested a continuance of the trial

date, due to the Ohio Supreme Court’s decision in State v. Gonzales. See, State v.

Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405, reconsideration

granted, decision vacated, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419,

reconsideration denied, 149 Ohio St.3d 1409, 2017-Ohio-2822, 74 N.E.3d 466. In

Gonzales, the Ohio Supreme Court held that the offense level for possession of

cocaine was determined only by the weight of the actual cocaine, not by the total

weight of cocaine plus any filler. Id. at ¶ 22. This opinion was inconsistent with

prior case law on the same topic. Id. at ¶ 51. Given the new purity requirements,

the State requested a continuance to send Appellant’s cocaine to a lab equipped to

determine the weight of actual cocaine, separate from the filler weight.

-36-
Case Nos. 1-17-44 and 1-17-45

{¶89} The trial court, on February 9, 2017, granted the State’s request for a

continuance and set Appellant’s jury trial for May 16, 2017. (Case number CR 2014

0118, Doc. No. 182; case number CR 2015, Doc. No. 109). In granting the

continuance, the trial court acknowledged that State v. Gonzales was a significant

departure from previous precedent and custom. Furthermore, the trial court relied

on the Seventh District Court of Appeal’s decision in State v. High, wherein the

Appellate court held that an extension request by the State for testing of evidence

was reasonable. State v. High, 143 Ohio App.3d 232, 242, 2001-Ohio-3530, 757

N.E.2d 1176.

{¶90} We find that the continuance was reasonable in light of the need for

additional time to conduct testing (of the drugs in question) in accordance with

Gonzales. While Appellant argues that the State took “too long” (after the Gonzales

decision was announced) to request the continuance, we find that the State’s request

was made prior to the already scheduled jury trial.

{¶91} Appellant further argues that the continuance was unreasonable

because the trial court focused on its schedule in denying Appellant’s motion to

dismiss. However, “scheduling and docketing conflicts have been held to be

reasonable grounds for extending an accused’s trial date beyond the speedy trial

limit date by both [the Appellate Court] and the Supreme Court of Ohio. Glass, 3rd

Dist. Auglaize No. 2-04-01, 2004-Ohio-4402, ¶ 11. See also, State v. Lee, 48 Ohio

-37-
Case Nos. 1-17-44 and 1-17-45

St.2d 208, 210, 357 N.E.2d 1095 (1976) (continuance due to “crowded docket &

judge’s conference” was reasonable). Thus, we find that the continuance was

reasonable, and therefore met the exception requirement listed in R.C. 2945.72(H).

{¶92} For the foregoing reasons, we find Appellant’s fourth assignment of

error not well taken and overrule the same.

Appellant’s Fifth Assignment of Error

{¶93} In Appellant’s fifth assignment of error, Appellant argues that the trial

court was required to exclude Identification Officer Michael Carman’s (“Carman”)

expert testimony, because the State did not comply with Crim.R. 16(K). For the

reasons that follow, we find that the trial court did not err in allowing the State’s

expert witness to testify.

Standard of Review

{¶94} “The trial court has broad discretion over evidentiary rulings, and such

rulings will not be reversed on appeal absent an abuse of discretion.” State v.

Workman, 3rd Dist. Van Wert No. 15-06-09, 171 Ohio App.3d 89, 2007-Ohio-1360,

869 N.E.2d 713, ¶ 10. See also, In re Sherman, 3rd Dist. Hancock No. 05-04-47,

2005-Ohio-5888, ¶ 27. An “‘abuse of discretion’ implies that the trial court acted

unreasonably, arbitrarily, or unconscionably.” Id. quoting Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the abuse-of-

discretion standard, a reviewing court may not simply substitute its judgment for

-38-
Case Nos. 1-17-44 and 1-17-45

that of the trial court. Dindal v. Dindal, 3rd Dist. Hancock No. 5-09-06, 2009-Ohio-

3528, ¶ 6 citing Blakemore, supra.

Analysis

{¶95} Appellant alleges that the State violated Crim.R. 16(K) when it failed

to provide an expert witness’ report prior to the start of Appellant’s jury trial.

Crim.R. 16(K) states:

An expert witness for either side shall prepare a written report
summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s
qualifications. The written report and summary of qualifications shall
be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good
cause shown, which does not prejudice any other party. Failure to
disclose the written report to opposing counsel shall preclude the
expert’s testimony at trial.

Crim.R. 16(K). Additionally, Crim.R. 16(L), entitled regulation of discovery, goes
on to provide:

The trial court may make orders regulating discovery not inconsistent
with this rule. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply
with this rule or with an order issued pursuant to this rule, the court
may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems
just under the circumstances.

Crim. R. 16(L).

{¶96} Initially, we note that the State concedes that they should have

provided Appellant with an expert report prior to Appellant’s jury trial, pursuant to

-39-
Case Nos. 1-17-44 and 1-17-45

Crim. R. 16(K). We also note that the Appellant does not allege that the exclusion

of Carman’s testimony would have changed the outcome of the trial. Rather,

Appellant argues that Carman’s testimony was “very important” to the State’s case

and its inclusion (over objection) warrants him a new trial. Appellant directs this

Court to the Eleventh District Court of Appeal’s decision in State v. McGhee. State

v. McGhee, 11th Dist. Trumbull No. 2014-T-0106, 2017-Ohio-5773. In McGhee,

the Eleventh District held that the purpose of Crim.R. 16(K) is to prevent surprise

and trial by ambush. Id. at ¶ 19. While the State, in McGhee, had provided their

expert witness’ name to defense counsel at the appropriate time, it had failed to

provide the expert’s report to defense counsel until a couple days prior to trial. Id.

Finding that the expert testimony was “vital” to the State’s case, the court of appeals

reversed the defendant’s conviction and ordered a new trial. Id. at ¶¶ 20-21.

{¶97} However, Appellant’s reliance on McGhee ignores precedent from this

Court regarding the failure to provide an expert report. Specifically, in State v. Opp,

under circumstances factually similar to the case sub judice, the State failed to

provide an expert report. State v. Opp, 3rd Dist. Seneca No. 13-13-33, 2014-Ohio-

1138, ¶ 7. Relying, in part, on the Fifth District’s decision in State v. Viera, we

concluded that while Crim.R. 16(K) contains mandatory language for compliance,

such language, when read in context with Crim.R. 16(L), does not abolish the trial

court’s discretion in regards to evidentiary matters. Id. at ¶ 10. See, State v. Viera,

-40-
Case Nos. 1-17-44 and 1-17-45

5th Dist. Delaware No. 11CAA020020, 2011-Ohio-5263, ¶¶ 21-23 (Appellate court

found that the trial court did not err in allowing an expert to testify in spite of an

untimely expert’s report). We then went on to analyze other cases involving a

discovery violation with respect to an expert’s report in accordance with Crim.R.

16(K). Opp, after its examination of precedent from various appellate courts in

Ohio, found that while the State committed a discovery violation, that trial court did

not err in allowing the State’s expert witness to testify on a very limited issue which

did not prejudice the defendant. Id. at ¶ 20.

{¶98} Relying on Opp, we find that the trial court did not err in allowing the

State to present Carman’s limited expert testimony at trial. Specifically, the record

reveals that Carman was not testifying on the specifics of the case at hand, but rather,

provided testimony regarding his experience, in general, involving why fingerprints

may or may not exist on a handgun. (Trial, 08/02/2018 Tr., Vol. I, at 209).

Moreover, the trial court specifically found that Carman was not testifying about the

evidence in Appellant’s case, but merely on generalities involving a lack of

fingerprints on a handgun. (Id.). Accordingly, we find that the trial court did not

abuse its discretion by overruling Appellant’s Crim.R. 16(K) objection.

{¶99} Lastly, even if we were to find that the trial court erred in admitting

Carman’s testimony, we would affirm the ruling under the harmless error doctrine.

Harmless error is “‘any error, defect, irregularity, or variance, which does not affect

-41-
Case Nos. 1-17-44 and 1-17-45

[a] substantial right[] [***]’”. State v. Wilson, 3rd Dist. Allen No. 1-09-53, 2010-

Ohio-2947, ¶ 26 quoting Crim.R. 52(A). Furthermore, “harmless error does not

affect the outcome of the case and, thus, does not warrant a judgment to be

overturned or set aside.” Id.

{¶100} For the reasons discussed above, we overrule Appellant’s fifth

assignment of error.

Appellant’s Sixth Assignment of Error

{¶101} In his sixth assignment of error, Appellant argues that the trial court

erred by consolidating his two trials. Specifically, Appellant argues that the

evidence was not “simple and direct,” which would permit joinder of the cases. We

disagree.

Standard of Review

{¶102} “A defendant who asserts that joinder is improper has the burden of

making an affirmative showing that his rights will be prejudiced thereby.” State v.

Shurelds, 3rd Dist. Allen No. 1-91-28, 1992 WL 147559, *2, cause dismissed, 66

Ohio St.3d 1430, 608 N.E.2d 760 (1993). Furthermore, a defendant “must

demonstrate that the trial court abused its discretion in refusing to separate the

charges for trial.” State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981).

An “‘abuse of discretion’ implies that the trial court acted unreasonably, arbitrarily,

or unconscionably.” Id. quoting Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

-42-
Case Nos. 1-17-44 and 1-17-45

1140 (1983). “When applying the abuse-of-discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court.” Id. Absent a clear

showing of abuse of discretion, a trial court’s decision regarding joinder will not be

disturbed. Torres, supra.

Analysis

{¶103} Crim.R. 13, entitled “trial together of indictments or information or

complaints,” provides the statutory authority for joinder, which states:

The court may order two or more indictments or informations or both
to be tried together, if the offenses or the defendants could have been
joined in a single indictment or information. The procedure shall be
the same as if the prosecution were under such single indictment or
information.

The court may order two or more complaints to be tried together, if
the offenses or the defendants could have been joined in a single
complaint. The procedure shall be the same as if the prosecution were
under such single complaint.

Crim.R. 13.

{¶104} In determining whether the indictments could have been joined in a

single indictment, Crim.R. 8(A) states: “[t]wo or more offenses may be charged in

the same indictment, * * * if the offenses charged, * * * are of the same or similar

character, or are based on the same act or transaction, or are based on two or more

acts or transactions connected together or constituting parts of a common scheme or

plan, or are part of a course of criminal conduct.” Crim.R. 8(A).

-43-
Case Nos. 1-17-44 and 1-17-45

{¶105} In examining the purposes and policies behind joinder, courts have

expressed that: “[j]oinder and the avoidance of multiple trials are favored to

conserve judicial resources, including time and expense, reduce the chance of

incongruous results in successive trials before different juries, and diminish

inconvenience to the witnesses.” State v. Clifford, 135 Ohio App.3d 207, 211, 733

N.E.2d 621 (1st Dist.1999), cause dismissed, 87 Ohio St.3d 1422, 717 N.E.2d 1108

(1999). “To prevail on a claim that the trial court erred in consolidating charges for

trial, the defendant must demonstrate affirmatively (1) that his rights were

prejudiced, (2) that at the time that the trial court ruled on the motion to consolidate,

he provided the court with sufficient information so that it could weigh the

considerations favoring joinder against the defendant’s right to a fair trial, and (3)

that given the information provided to the court, it abused its discretion in

consolidating the charges for trial.” (Emphasis added). Id.

{¶106} In reviewing Appellant’s argument, we find that the Appellant failed

to demonstrate affirmatively exactly how his rights were prejudiced by joinder.

Even though Appellant argues that questions exist concerning his actual dominion

and control over items of contraband, we find this argument addresses the

sufficiency of the evidence, not whether Appellant was prejudiced by the joinder of

the cases.

-44-
Case Nos. 1-17-44 and 1-17-45

{¶107} Next, Appellant argues that the evidence in one case would not have

been admissible in the other case. However, this is not the standard for joinder

announced in Crim.R. 13 or Crim.R. 8(A).

{¶108} Lastly, Appellant argues that “it is undeniable that juries do not like

fugitives.” (See, Br. of Appellant at 18). Appellant then argues that this fact,

standing alone, was sufficient to establish that the trial court abused its discretion

by joining the two cases. However, Appellant provides us no support for such

assertion. Thus, when reviewed in its entirety, Appellant’s argument fails to

demonstrate affirmatively that his rights were prejudiced and thus, Appellant has

failed to demonstrate that the trial court erred in joining the two cases.

{¶109} For the reasons set forth above, we overrule Appellant’s sixth

assignment of error.

Appellant’s Seventh and Eighth Assignments of Error

{¶110} Appellant argues that the trial court erred by denying his motions to

suppress in each of his underlying cases. For the reasons that follow, we disagree.

Standard of Review

{¶111} “A review of the denial of a motion to suppress involves mixed

questions of law and fact.” State v. Lewis, 3rd Dist. Auglaize No. 2-16-13, 2017-

Ohio-996, 86 N.E.3d 974, ¶ 8 citing State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, the trial court assumes

-45-
Case Nos. 1-17-44 and 1-17-45

the role of trier of fact, and as such, is in the best position to evaluate the evidence

and the credibility of witnesses. Id. “An appellate court must accept the trial court’s

findings of facts if they are supported by competent, credible evidence.” Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Accepting these facts

as true, the appellate court must then independently determine, without deference to

the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Id.

Analysis – Motion to Suppress in Case Number CR 2014 0118

{¶112} Appellant argues that in case number CR 2014 0118, law

enforcement officials lacked probable cause or reasonable suspicion of criminal

activity to detain Appellant. Appellant further argues that law enforcement officers

impermissibly detained him after he chose not to engage Kunkleman (in

conversation) and walked away from officers. And lastly, Appellant argues that the

search of the vehicle started prior to his arrest. Appellant contends that these three

factors, collectively, resulted in a violation of his Fourth Amendment rights.

{¶113} “The Fourth Amendment to the United States Constitution generally

prohibits warrantless searches and seizures, and any evidence obtained during an

unlawful search or seizure will be excluded from being used against the defendant.”

Frye, 3rd Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 63. “Neither the Fourth

Amendment to the United States Constitution nor Section 14, Article I of the Ohio

-46-
Case Nos. 1-17-44 and 1-17-45

Constitution explicitly provides that violations of its provision against unlawful

searches or seizure will result in the suppression of evidence obtained as a result of

such violation, but the United States Supreme Court has held that the exclusion of

evidence is an essential part of the Fourth Amendment.” State v. Jenkins, 3rd Dist.

Union No. 14-10-10, 2010-Ohio-5943, ¶ 9 citing Mapp v. Ohio, 367 U.S. 643, 649,

81 S.Ct. 1684 (1961). The primary purpose of the exclusionary rule is to remove

the incentive to violate the Fourth Amendment. Id. citing State v. Jones, 88 Ohio

St.3d 430, 434, 2000-Ohio-374, 727 N.E.2d 886 overruled on other grounds by State

v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175 (2003).

{¶114} “The Fourth and Fourteenth Amendments to the United States

Constitution prohibit any governmental search or seizure, including a brief

investigative stop, unless supported by an objective justification.” State v. Andrews,

57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991) citing United States v. Cortez, 449

U.S. 411, 417, 101 S.Ct. 690 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct.

2752 (1980); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868 (1968).

{¶115} However, in crafting exceptions to Fourth Amendment violation

claims, “the United States Supreme Court [in Terry] held that a police officer may

stop and investigate unusual behavior, even without probable cause to arrest, when

he reasonably concluded that the individual is engaged in criminal activity.” Id.

citing Terry, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968). “In assessing that conclusion,

-47-
Case Nos. 1-17-44 and 1-17-45

the officer ‘must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion.’” Id. quoting Terry, at 21.

{¶116} Upon reviewing the record, we find that the State produced

competent and credible evidence that the officers had specific and articulable facts,

along with the rational inferences from those facts, to reasonably warrant the

intrusion into Appellant’s vehicle. The evidence produced at the suppression

hearing demonstrated that law enforcement responded to a call that a suspicious

vehicle (with its car alarm going off5) was parked in the parking lot of 234 North

Main Street in Lima, Ohio in the early morning hours of March 21, 2014. (Mot. to

Suppress Hrg., 06/30/2016 Tr. at 8-9). Kunkleman, who was the first officer to

respond to the call, testified that Appellant was out of the vehicle when he

(Kunkleman) exited his vehicle, and refused to engage him (Kunkleman) in

conversation. (Mot. to Suppress Hrg., 06/30/2016 Tr. at 10). Rather, Appellant

turned back to the vehicle and started to lean into the driver’s area, where

Kunkleman was unable to observe what Appellant was doing with his hands. (Id.).

Kunkleman also testified that when he approached Appellant’s vehicle, he smelled

5
Dash cam video footage entered into evidence revealed that a car alarm was going off when officers arrived.
(See, Mot. to Suppress Hrg., 06/30/2016, State’s Ex. 2 at 3:26:20 AM).

-48-
Case Nos. 1-17-44 and 1-17-45

an overwhelming odor of marijuana6 emanating from the vehicle. (Id.). Kunkleman

then shined his flashlight into Appellant’s vehicle and observed a digital scale laying

on the driver’s side floorboard. (Id. at 11). Kunkleman testified that as a result of

Appellant’s actions, the smell of marijuana, and the observation of a digital scale on

the floorboard, he decided to detain Appellant for his safety. (Id. at 11-12).

{¶117} Hillard, who observed the interaction between Appellant with

Kunkleman, testified that he smelled the odor of marijuana coming from

Appellant’s vehicle. (Id. at 42). Hillard testified that when he looked inside the

vehicle he saw, in plain view, cellphones, a digital scale, and raw marijuana in the

center console, as well as a brown paper bag partially sticking out from under the

seat. (Id. at 42-43). Hillard opened the brown paper bag and saw what he believed

to be crack cocaine in it. (Id. at 43). Based on what was located in the vehicle,

Appellant was placed under arrest. (Id.).

{¶118} We find, upon the totality of the circumstances, that Kunkleman and

Hillard had probable cause to suspect that criminal activity was afoot, warranting

further investigation. We further find that the search was not based solely upon “an

unlawful arrest” of the Appellant, but upon Appellant’s actions, coupled with

observations of the officers and the smell of raw marijuana. Thus, the trial court did

6
We note that the smell of marijuana, alone, by a person qualified to recognize the odor, sufficiently
establishes probable cause to search the vehicle from which the marijuana odor is detected. State v. Moore,
90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804.

-49-
Case Nos. 1-17-44 and 1-17-45

not err in denying the motion to suppress based upon the warrantless search of the

vehicle and the seventh assignment of error is overruled.

Analysis – Motion to Suppress in Case Number CR 2015 0361

{¶119} Testimony from the suppression hearing in case number CR 2015

0361 revealed the following: On January 12, 2015, Godfrey, a member of the West

Central Ohio Crime Task Force, received a telephone call from the landlord of 1222

Catalpa Street in Lima, Ohio regarding Appellant living in part of the duplex that

was not rented to him. 7 (Mot. to Suppress Hrg., 10/20/2018 Tr. at 6-7). Godfrey

was further informed that a maintenance man for the Catalpa residence had

attempted to inspect the residence but was denied entry by Appellant. (Id. at 8).

Godfrey knew Appellant had active warrants for his arrest, so he set up a

surveillance of 1222 Catalpa Street on January 13, 2015. (Id. at 8-9). On January

17, 2015, Godfrey observed a Chrysler 300 in the driveway with temporary tags.

(Id. at 10). When the Chrysler 300 left the residence, Godfrey followed the vehicle.

(Id. at 11). The Ohio State Highway Patrol, in conjunction with the West Central

Ohio Crime Task force, conducted a traffic stop of the vehicle due to a window tint

violation. (Id.). Kunkleman, who was assisting Godfrey with 1222 Catalpa Street

surveillance, spoke with the individuals in the Chrysler 300 and learned that they

were visiting their friend “Ray” at the Catalpa residence in question. (Id. at 12).

7
The record suggests that the landlord identified the Appellant after seeing a local “most wanted” television
news report.

-50-
Case Nos. 1-17-44 and 1-17-45

The passenger of the Chrysler identified “Ray” as Appellant, and informed officers

that Appellant had been living at the address for about a month. (Id. at 12). Because

of this information, Godfrey verified that Appellant had active warrants and then set

up a perimeter around 1222 Catalpa Street to arrest Appellant. (Id.).

{¶120} After the residence was surrounded, Godfrey knocked on the front

door and ordered Appellant to come out. (Id. at 13). Instead, Appellant exited the

rear of the house, but quickly ran back to the residence after observing law

enforcement officials surrounding the duplex. (Id.). Officers eventually gained

entry into the house, and the Appellant was arrested without incident. (Id. at 15).

After Appellant’s arrest, law enforcement officers conducted a protective sweep of

the residence to make sure that there were no other individuals or threats within the

house. (Id.). In conducting the protective sweep of the residence, law enforcement

officials observed a black tent in one of the rooms. (Id.). Because the tent was large

enough for someone to hide in, officers looked inside it, finding marijuana plants

and a “grow operation” inside. (Id. at 15-16).

{¶121} Based on observing the marijuana grow tent in the residence, officers

secured the residence and sought out a search warrant for the premises. (Id. at 17-

18). The reviewing judge found probable cause and signed the affidavit/search

warrant for the residence. (Id. at 39-40; State’s Ex. 1). Based on the search of the

-51-
Case Nos. 1-17-44 and 1-17-45

residence, law enforcement officials found guns, drugs, electronics, I.D.’s, and

paperwork. (Id. at 41; State’s Ex. 1).

{¶122} “In Payton [v. New York], the United States Supreme Court

concluded that ‘for Fourth Amendment purposes, an arrest warrant founded on

probable cause implicitly carries with it the limited authority to enter a dwelling in

which the suspect lives when there is reason to believe the suspect is within.’” State

v. Crawford, 3rd Dist. Logan No. 8-04-21, 2005-Ohio-243, ¶ 24 quoting Payton v.

New York, 445 U.S. 573, 603, 100 S.Ct. 1371 (1988). “Under Payton, therefore,

officers may effectuate an arrest warrant at a location when they believe that the

subject of the warrant lives at a residence and that belief is supported by probable

cause.” Id. Appellant asserts that officers lacked probable cause to enter the

premises. We find otherwise. Specifically, law enforcement received a tip that

Appellant was residing in a residence in Lima, and as a result of that tip officers set

up a surveillance to see if they observed Appellant come or go. While they did not

observe Appellant leave the residence, they did observe another individual leave the

residence, and after a lawful traffic stop, that individual disclosed that Appellant

was, in fact, inside the residence. Based on those two factors, law enforcement

attempted to enter the residence. However, prior to actually entering the residence

to secure Appellant, Appellant was observed leaving the residence out the back and

then returning inside the residence once he observed law enforcement officials

-52-
Case Nos. 1-17-44 and 1-17-45

outside. Thus, under the totality of the circumstances, we find law enforcement had

probable cause to enter 1222 Catalpa Street.

{¶123} Next, Appellant contends that the protective sweep of the residence

was unlawful, and as a result the search warrant and affidavit that was obtained as

a result of that sweep was unconstitutional. However, as the Ohio Supreme Court

held in State v. Adams, “[o]fficers making arrests in a home are permitted to conduct

a protective sweep, which is a ‘quick and limited search of the premises, incident to

an arrest and conducted to protect the safety of the police officers and others.’” State

v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 188 quoting

United States v. Stover, 474 F.3d 904, 911 (6th Cir.2007). Furthermore, as the

United States Supreme Court recognized in Maryland v. Buie, a protective sweep

“occurs as an adjunct to the serious step of taking a person into custody for the

purpose of prosecuting him for a crime.” Maryland v. Buie, 494 U.S. 325, 333, 110

S.Ct. 1093 (1990). Because an in-home arrest puts the officer at the disadvantage

of being on his adversary’s “turf,” officers are permitted to sweep the residence for

hidden individuals for their own protection. Id.

{¶124} And lastly, Appellant argues that the trial court failed to suppress

evidence concerning the contents of a Kindle and an IPad found in the residence.

Appellant argues that because “virtually every electronic utensil and gadget in

existence has some level of computer mechanism involved,” the search warrant

-53-
Case Nos. 1-17-44 and 1-17-45

authorizing a search of “computers, computer hardware, computer software, cell

phones and the contents…any and all material evidence of violations” was overly

broad.

{¶125} “The particularity requirement of the Fourth Amendment was a

response to ‘those general warrants known as writs of assistance under which

officers of the Crown had so bedeviled the colonists.’” State v. Armstead, 9th Dist.

Medina No. 06CA0050-M, 2007-Ohio-1898, ¶ 10 quoting Stanford v. State of Tex.,

379 U.S. 476, 481, 85 S.Ct. 506 (1965). “A proper search warrant leaves nothing

to the discretion of the officer executing it: ‘the requirement that warrants shall

particularly describe the things to be seized makes general searches under them

impossible and prevents the seizure of one thing under a warrant describing another.

As to what is to be taken, nothing is left to the discretion of the officer executing the

warrant.’” Id. quoting State of Tex., at 485.

{¶126} However, not all broad or generic descriptions of things to be seized

are invalid under the Fourth Amendment. “A broad and generic description is valid

if it ‘is as specific as circumstances and nature of the activity under investigation

permit’ and enables the searchers to identify what they are authorized to seize.” Id.

quoting United States v. Harris, 903 F.2d 770, 775 (10th Cir.1990). Contrary to

Appellant’s argument, we find that that the “computer” language of search warrant

-54-
Case Nos. 1-17-44 and 1-17-45

notified searchers what they were authorized to seize, in this case, an electronic

tablet and an IPad.

{¶127} Furthermore, as correctly noted by the trial court, even if the warrant

failed the particularity test, the “good-faith exception” to the exclusionary rule

would apply in this instance. As this Court held in State v. McClanahan, “the

[United States Supreme] Court determined that the exclusionary rule of the Fourth

Amendment ‘should not be applied so as to bar the use in the prosecution’s case-in-

chief of evidence obtained by officers acting in objectively reasonable reliance on a

search warrant issued by a detached and neutral magistrate but ultimately found to

be unsupported by probable cause.’” State v. McClanahan, 3rd Dist. Seneca No.

13-03-02, 2003-Ohio-4279, ¶ 18 quoting State v. George, 45 Ohio St.3d 325, 330,

544 N.E.2d 640 (1989) citing United States v. Leon, 468 U.S. 897, 918-19, 104 S.Ct.

3405 (1984). In the case at hand, there was no testimony regarding bad faith on part

of the officers who searched the residence where Appellant was hiding.

{¶128} For the foregoing reasons, we overrule Appellant’s eighth

assignment of error.

Conclusion

{¶129} Having found no error prejudicial to Appellant herein in the

particulars assigned and argued, we overrule all of Appellant’s assignments of error.

-55-
Case Nos. 1-17-44 and 1-17-45

Accordingly, we affirm the judgments of the Allen County Common Pleas Court.

Judgments Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr

-56-