State v. Nichols

[Cite as State v. Nichols, 2020-Ohio-6960.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DAVID NICHOLS : Case No. 2020 CA 0027
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2019-CR-231

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 29, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP DARIN AVERY
Prosecuting Attorney 105 Sturges Avenue
Richland County Mansfield, Ohio 44903

JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2020 CA 0027 2

Baldwin, J.

{¶1} Defendant-appellant David Nichols appeals from the partial denial by the

Richland County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is

the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 8, 2019, the Richland County Grand Jury indicted appellant on

one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a felony

of the fifth degree. At his arraignment, appellant entered a plea of not guilty to the charge.

{¶3} Appellant filed a Motion to Suppress on August 7, 2019, seeking to

suppress statements made by appellant. Appellant also sought to suppress evidence

seized as a result of the search of his person and the truck which he had been in. A

hearing on the motion was held on September 4, 2019.

{¶4} Deputy Bryce Ernsberger of the Richland County Sheriff’s Office testified

that he was on duty on August 24, 2018 and was working from 2:00 p.m. to 10:00 p.m.

He testified that he pulled into a parking lot of a market after he ran a license plate on a

truck in the parking lot and the learned that the owner of the vehicle, Brinda Nichols, had

an outstanding warrant for failure to appear. Brinda Nichols was in the passenger seat

of the truck. Deputy Ernsberger had her step out of the truck and searched her before

arresting her. He testified that no contraband was found in her purse, but that he did find

an empty baggie consistent with the packaging of drugs.

{¶5} After arresting Brinda Nichols, the Deputy made contact with appellant, who

was standing about 20 or 30 feet from the truck. Appellant had been in the driver’s seat

and while Brinda was being searched, had walked over to the market. Deputy Ernsberger
Richland County, Case No. 2020 CA 0027 3

testified that while his body camera was on at the point, the audio was not recording

because he either bumped it or turned it off, but did not recall. He testified that he

questioned appellant when he initially made contact with appellant and Brinda because

appellant had been fidgeting around in the truck, and was “[c]ontinually moving his hands

around the truck, making me believe something might be illegal in the truck.” Transcript

at 10. Appellant, when asked what was in the truck, told the Deputy that there was a crack

pipe in the ashtray in the middle of the truck.

{¶6} The Deputy then searched the truck and located the crack pipe in the

ashtray and three baggies of what appeared to be cocaine in the center console.

Appellant told the Deputy that the substance in the bag was his and his wife’s cocaine

but later said that the cocaine was his. The Deputy testified that the audio portion of the

body camera stopped when he walked from his cruiser up to appellant when appellant

was standing near the market and then after he was placed in the cruiser. He testified

that he did not realize that the audio was not recording during his conversation with

appellant until several days later.

{¶7} On cross-examination, Deputy Ernsberger testified that Brinda Nichols

matched his description of the owner of the vehicle. He testified that appellant got out of

the truck as he was arresting Brinda Nichols and left the immediate area and that he only

approached appellant again after he found the empty baggie in Brinda’s purse.

{¶8} Deputy Ernsberger testified that he did not recall purposefully muting his

body camera. He testified that when he was dealing with Brinda Nichols, he did not think

that he had a reason to keep appellant there at that time. After finding the baggie, he re-

approached appellant. The audio was off at the time. He testified that he put appellant
Richland County, Case No. 2020 CA 0027 4

into his cruiser but did not Mirandize him at any time. When asked whether he then

searched the truck without permission, the Deputy testified that appellant had advised

that there was an illegal item in the truck, so he had probable cause at that time.

{¶9} On redirect, Deputy Ernsberger testified that once appellant told him that

the crack pipe was in the ashtray, appellant was not under arrest at that time. He testified

that he had not made up his mind that he was going to arrest appellant once told of the

crack pipe. He testified that appellant told him of the crack pipe before they even walked

over to appellant’s truck. He testified that was when it changed to a detention.

{¶10} Appellant testified that on August 24, 2018, he and his wife were sitting in a

parking lot at a corner market when Deputy Ernsberger arrested his wife. He testified that

they were sitting in the parking lot while his wife rolled cigarettes for him. Appellant

testified that he left the truck and went into the market and that when he came out, Deputy

Ernsberger called over to him. He did not recall telling the Deputy that there was a crack

pipe in the truck. Appellant testified that the Deputy did not ask if he could search

appellant’s person and that when the Deputy had him get up against the truck, he did not

feel that he could leave the area. He also testified that he did not give permission for the

truck to be searched.

{¶11} On cross-examination, appellant testified that his wife had been the driver

of the truck and that they switched seats so that she could roll cigarettes for him. He

testified that as his wife was getting arrested, he went into the market to buy cigarettes.

He testified that he probably could have stayed in the market, but the Deputy called him

back over and told him to “Come here”. Transcript at 33. The Deputy never went into the

market. Appellant testified that he was going to have to walk home once his wife was
Richland County, Case No. 2020 CA 0027 5

arrested. Appellant testified that he complied with the Deputy’s order because he did not

know that he had the right to refuse to talk to him. He denied telling the Deputy that there

was a crack pipe in the truck and denied admitting to the Deputy that he had smoked

crack a couple of hours before or that the baggies had contained cocaine. He denied

voluntarily talking to the Deputy. Appellant did not recall saying that the cocaine was his.

{¶12} On redirect, appellant testified that he did not feel that he could walk away

when Deputy Ernsberger called him over or when he was searched. He testified that he

was never Mirandized.

{¶13} The trial court, pursuant to a Judgment Entry filed on September 26, 2019,

overruled appellant’s Motion to Suppress the evidence located in the truck, finding that

the Deputy had probable cause to search the same. The trial court ordered that any

statements that appellant made while in the back of the police cruiser be suppressed

since appellant was never Mirandized.

{¶14} Thereafter, appellant pled no contest to the charge and was, on February

5, 2020, sentenced to 24 months of community control and fined $250.00.

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

{¶16} “I. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE

FRUITS OF THE ILLEGAL SEIZURE OF THE DEFENDANT AND SEARCH OF HIS

VEHICLE AND PERSON.”

I

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

refusing to suppress the fruits of the illegal seizure of appellant and the search of his

vehicle and person. We disagree.
Richland County, Case No. 2020 CA 0027 6

{¶18} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661

N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

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

a motion to suppress on appeal. First, an appellant may challenge the trial court's finding

of fact. In reviewing a challenge of this nature, an appellate court must determine whether

the trial court's findings of fact are against the manifest weight of the evidence. See 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. See Williams,

supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate

or final issues raised in a motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's
Richland County, Case No. 2020 CA 0027 7

conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

{¶20} Appellant initially argues that he was illegally seized by the Deputy.

Appellant argues that the Deputy’s order to him to “come here” when the Deputy was

wearing a uniform and had arrested a fellow vehicle passenger constituted a seizure for

Fourth Amendment purposes.

{¶21} The Fourth Amendment to the United States Constitution, as well as Section

14, Article I of the Ohio Constitution, prohibits unreasonable searches and seizures. State

v. Kinney, 83 Ohio St.3d 85, 87, 1998–Ohio–425; Katz v. United States (1967), 389 U.S.

347, 351, 88 S.Ct. 507, 511. However, “not all personal intercourse between policemen

and citizens involves ‘seizures' of persons. Only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen may we

conclude that a ‘seizure’ has occurred” within the meaning of the Fourth

Amendment. Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, fn. 16 (1968).Even when

a law enforcement [officer] phrases a statement in an imperative or declarative—rather

than in an interrogative—fashion, courts have generally ruled that an imperative or

declarative statement, by itself, does not transform a consensual encounter into a

seizure.” State v. Blankenship, 4th Dist. Ross No. 13CA3417, 2014-Ohio-3600, 2014 WL

4161479, ¶ 16, citing Columbus v. Body, 10th Dist. Franklin No. 11AP-609, 2012-Ohio-

379, 2012 WL 353764, State v. Duncan, 9th Dist. Summit No. 21155, 2003-Ohio-241,

2003 WL 150091, and United States v. Brown, 447 Fed.Appx. 706, 708–709 (6th

Cir.2012). “Instead, courts must examine the totality of the circumstances present in each

case in order to ascertain whether an imperative or declarative statement constitutes a
Richland County, Case No. 2020 CA 0027 8

sufficient show of authority to ripen a consensual encounter into a seizure subject to

Fourth Amendment scrutiny.” (Citation omitted.) Id.

{¶22} In State v. Smith, 45 Ohio St.3d 255, 544 N.E.2d 239 (1989), the Supreme

Court of Ohio held that a consensual encounter did not ripen into a seizure when an officer

stated “hey, come here a minute,” to the defendant, and none of the officers on the scene

displayed any weapons, physically touched the defendant, used a threatening tone of

voice, ordered the defendant into the police cruiser, indicated that the defendant's

noncompliance would lead to his arrest, or block the defendant's exit with their

cruiser. Id. at 258–259, 544 N.E.2d 239, reversed on other grounds, Smith v. Ohio, 494

U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990).

{¶23} Likewise, in Columbus v. Body, 10th Dist. Franklin No. 11AP-609, 2012-

Ohio-379, 2012 WL 353764, the Tenth District Court of Appeals determined that an

officer's statement “come over here,” did not constitute a seizure under circumstances

where the officer acted without the threatening presence of several officers, did not

activate his siren or search light, did not attempt to block the defendant's path, did not

attempt to pursue the defendant, did not display his weapon, and did not use a threatening

voice. Id. at ¶ 20.

{¶24} The Body court also noted that “[f]ederal courts have also recognized

that ‘simply calling out to someone to come over to talk does not constitute a

seizure.’ ” Id. at ¶ 18, quoting United States v. Brown, 2012 WL 29209 (C.A.6, 2012),

citing United States v. Matthews, 278 F.3d 560, 562 (6th Cir.2002), abrogated on other

grounds, United States v. McMurray, 653 F.3d 367 (6th Cir.2011) (holding that an officer's
Richland County, Case No. 2020 CA 0027 9

statement “hey, buddy, come here,” did not constitute a seizure because the addressee

could have “politely declined to do so, and walked away”).

{¶25} {¶ 23} More recently, in State v. Blankenship, 4th Dist. Ross No. 13CA3417,

2014-Ohio-3600, 2014 WL 4161479, the Fourth District Court of Appeals held there was

a consensual encounter where an officer told the defendant to “step over here,” and did

not otherwise engage in conduct that could be construed as a show of authority sufficient

to constitute a seizure. Id. at ¶ 23–24. Specifically, the officer did not pursue the

defendant, continue to interrogate the defendant against his expressed desire, call the

defendant to halt, block the defendant's path, hold the defendant's identification or other

property, physically grab or move the defendant, display his weapon, activate his siren or

cruiser lights, or indicate that the defendant's noncompliance would lead to his

arrest. Id. at ¶ 24. The Blankenship court also noted that the officer was alone, and thus

acted without the “ ‘threatening presence of several officers.’ ” Id., quoting United States

v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

{¶26} Appellant specifically contends that the Trooper’s order to appellant to

“come here” constitutes a seizure. In the case sub judice, we find that the encounter was

a consensual encounter. We find that the Trooper’s request that appellant “come here”

did not turn the encounter into a seizure. No evidence exists that the officer used a

threatening voice when he told appellant to “come here,” that he restrained appellant in

any way, or displayed any physical force or weapon. Appellant testified that the Trooper

called out to him after appellant exited the market. At the time, appellant was standing 20

or 30 feet from his truck. After appellant told the Deputy about the crack pipe, the Deputy

had probable cause to search the truck and appellant.
Richland County, Case No. 2020 CA 0027 10

{¶27} Moreover, we note that while the Deputy testified that appellant admitted to

having a crack pipe in the truck prior to the Deputy’s search of appellant and prior to the

search of the vehicle, appellant testified that he did not remember telling the Deputy about

a crack pipe. The trial court, based on the testimony and a review of the body camera,

found the Deputy’s testimony to be more credible than appellant’s testimony. The trial

court, noted that “when the audio of the body camera comes back on the defendant is

responding to a question from Dep. Ernsberger about the last time he smoked “it”. It

appears to the Court that the defendant is talking about the crack pipe.” The trial court

further stated, in relevant part, as follows:

{¶28} Based on the testimony of the witness and a review of the body camera

audio the Court finds Dep. Ernsberger’s testimony to be more credible than the

defendant’s testimony. Accordingly, the Court finds that Dep. Ernsberger had probable

cause to search the vehicle. Once searching the vehicle Dep. Ernsberger located the

crack pipe and three small baggies containing cocaine. Accordingly the defendant’s

motion to suppress the evidence located inside the vehicle is hereby overruled as Dep.

Ernsberger had probable cause to search the vehicle.

{¶29} Having reviewed the body camera video, we agree.

{¶30} Furthermore, we find that the crack pipe and cocaine would have been

inevitably discovered. The inevitable-discovery rule allows the admission of illegally

obtained evidence where “it is established that the evidence would have been ultimately

or inevitably discovered during the course of a lawful investigation.” State v. Perkins, 18

Ohio St.3d 193, 480 N.E.2d 763 syllabus (1985).
Richland County, Case No. 2020 CA 0027 11

{¶31} As is stated above, appellant did not have a driver’s license and his wife

had been arrested. Thus, the truck would have been searched prior to being impounded.

The crack pipe was in the ashtray in the middle of the truck. We find that the crack pipe

and the cocaine would have been inevitably discovered.

{¶32} Appellant also argues that the repeated and unexplained muting of the body

camera in this case constitutes spoliation of evidence “that gives rise to a presumption in

favor of a defendant concerning the conversation that but for the officer’s muting would

have been available to the trial court.”

{¶33} “Spoliation” is defined as: “[t]he intentional destruction, mutilation,

alteration, or concealment of evidence[.]” Black's Law Dictionary (7th Ed. 2000) 1133.

{¶34} Trooper Ernsberger testified that he turned on the body camera before he

made or as he was making contact with Brinda Nichols. He testified that when he made

contact with appellant, his body camera was on, but the audio was not recording. When

asked why the audio was not recording, he testified that he either bumped it or turned off

the audio, but did not recall. The body camera video was introduced as joint exhibit A.

{¶35} The Trooper testified that it was the Sheriff’s Department’s protocol to

activate the camera when making official contact with someone for some sort of law

enforcement action. He testified that he did not realize that the audio did not record during

the time of his conversation with appellant until several days later when he reviewed the

video. He further testified that he must have realized that it was off because it was turned

back on when he was searching the cruiser. He testified that it was “[f]airly easy” to turn

off the audio and that once he realized that the body camera was not recording audio, he

turned it back on. Transcript at 15. On cross-examination, Trooper Ernsberger testified
Richland County, Case No. 2020 CA 0027 12

that it was common practice to mute the body camera during a stop or investigation but

that he did not recall purposely muting his body camera.

{¶36} We find that there was no evidence that the Trooper intentionally

destroyed or concealed evidence. The trial court found that the audio was inadvertently

turned off. In addition, this case involves a criminal, not a civil matter. Spoliation of

evidence is inapplicable in a criminal case State v. Pace, 3rd Dist. Hancock No. 5–12–

30, 2013-Ohio-2143, 2013 WL 2459877, ¶ 17, State v. Drummond, 2015-Ohio-939, 31

N.E.3d 1216, 1228.

{¶37} Based on the foregoing, appellant’s sole assignment of error is overruled.

{¶38} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.