State v. Bedsole

[Cite as State v. Bedsole, 2022-Ohio-3693.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2021-09-089
CA2021-09-090
:
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: 10/17/2022

DOUGLAS BEDSOLE, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case Nos. 21CR37747 and 21CR38007

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.

Johnna M. Shia, for appellant.

HENDRICKSON, J.

{¶1} Appellant, Douglas Bedsole, appeals the decision of the Warren County Court

of Common Pleas denying his motion to suppress evidence in Case No. 21CR37747, and

finding him guilty as charged in Case No. 21CR38007. For reasons discussed below, we

affirm the trial court's rulings.

Facts and Procedural History

{¶2} The facts and procedural history of this appeal stem from two different criminal
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cases which were consolidated sua sponte by this Court.1 We will recite the facts of each

case then address appellant's respective assignments of error accordingly.

Case No. 21CR37747

{¶3} On November 25, 2020, Detective Nicholas Behymer, of the Warren County

Sheriff's Office, was investigating a South Lebanon vehicle theft and a Deerfield Township

burglary. When the stolen vehicle associated with the crimes was located, Detective

Behymer recovered DNA from cigarette butts found in the vehicle. At some point after

submitting the evidence for testing, Detective Behymer was informed of a DNA match with

appellant. On February 1, 2021, Detective Behymer submitted an application for a search

warrant for a buccal swab of appellant, as well as a supporting affidavit, in an effort to

confirm appellant's identity as the perpetrator.

{¶4} On February 2, 2021, Detective Behymer submitted an additional application

for a search warrant for real-time Global Positioning System ("GPS") data from appellant's

cell phone, along with a supporting affidavit. Substantial portions of the facts section of the

affidavit were copied directly from the February 1 affidavit. The judge approved the search

warrant. Meanwhile, on January 24, 2021, an arrest warrant was issued for appellant based

upon a charge of grand theft auto. Detective Behymer later testified that he had become

aware of the arrest warrant at some point before applying for the cell phone data warrant.

However, he failed to include this information in his affidavit.

{¶5} Based upon information provided by AT&T pursuant to the cell phone data

search warrant, Detective Behymer received historical cell phone location data that enabled

him to determine that appellant was in the vicinity of Hyde Park or Oakley, in Hamilton

1. Additionally, appellant was charged in a third case, Case No. 21CR38010. However, that case and those
facts are not subject to this appeal, and we consequently do not address the case in this opinion.

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County, Ohio. Officers determined that appellant's sister lived in that area, and procured

information including a description of her vehicle and residence. Lieutenant Chris Peters

and Sergeant Brian Hounshell were dispatched to appellant's sister's address pursuant to

both the historical cell phone GPS data and live cell phone GPS updates that were being

sent to Detective Behymer. The officers observed an individual who appeared to match

appellant's description get into a vehicle with a woman and drive onto the interstate.

Detective Behymer then received cell phone GPS data updates which matched the vehicle's

path up Interstate 71. Lieutenant Peters and Sergeant Hounshell followed the vehicle to

Warren County.

{¶6} The officers checked the vehicle's license plate and determined that it was

stolen. They directed other officers to initiate a traffic stop. When the law enforcement

vehicle activated its lights, Lieutenant Peters testified that he saw an object flung from the

passenger window of the vehicle being pursued. On stopping to investigate, he found that

it was a handgun. Appellant was arrested and subsequently indicted on two counts of

having a weapon while under disability, two counts of tampering with evidence, one count

of improperly handling a firearm in a motor vehicle, one count of carrying a concealed

weapon, and one count of possessing drug abuse instruments.

{¶7} On August 7, 2021, appellant filed a motion to suppress, alleging that the

affidavit was deficient because it failed to connect appellant's cell phone number to him. At

the suppression hearing, Detective Behymer testified that he learned that the cell phone

number belonged to appellant "through speaking with other people that know [appellant]"

who "provided [him] with a phone number and the location of his sister's residence."

However, he admitted that he failed to disclose that information or the identities of those

who assisted him when obtaining the warrant. Lieutenant Peters, who was Detective

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Behymer's supervisor, testified that appellant's wife was the source of the cell phone

number, but her involvement was intentionally withheld to protect her identity.

{¶8} On September 1, 2021, the trial court issued a written decision denying the

motion. The trial court found that there was probable cause to support the search warrant,

noting that while the affidavit and search warrant were "inartful at times," there was "ample

evidence upon which to conclude [appellant] had committed a crime." On September 9,

2021, appellant pled no contest to the offenses as charged. He was sentenced to a total of

twenty-four months in prison, to be served consecutively to the sentence imposed in Case

No. 21CR38007. Appellant now appeals the denial of his suppression motion, raising one

assignment of error.

Case No. 21CR38007

{¶9} On the evening of December 8, 2020, corrections officers Heilyse Ventura

and Josh Hartmann were on duty at the "B pod" at the Warren County Jail, where appellant

was then incarcerated. Following observation that aroused their suspicion, they conducted

a drug investigation in cell 107, sending the inmates to have body scans administered.

During a search of the cell, Officer Ventura received information that there were drugs in

cell 117, where appellant was staying, and more specifically, that appellant had drugs. Cell

117 is directly across from cell 107 and visible therefrom. Following the tip, appellant and

his cellmate were handcuffed and sent to have body scans administered. No drugs were

subsequently found in appellant's cell.

{¶10} Sergeant Larry Laird performed a body scan of appellant and detected an

abnormality near his genitals that was inconsistent with "naturally occurring anatomy."

Lieutenant John Denniston agreed with Sergeant Laird's finding and a strip search of

appellant was then conducted. Appellant was ordered to remove his clothing, squat, and

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cough. He did so and the officers observed a black object between his buttocks. At the

officers' request, appellant produced the object and informed the officers that it was

marijuana. He was once again instructed to squat and cough, at which point the officers

observed a green object emerge from his rectum. When he was asked what it was,

appellant stood up, denied having anything, and was observed by the officers to push it

back into his rectum using his middle finger.

{¶11} Sergeant Laird continued to press appellant, who continued to deny having

anything else. Appellant was restrained, and Sergeant Laird contacted Detective Brian

Lewis to prepare a search warrant to conduct a body cavity search. The jail's policy dictates

a two-hour limit on the use of the restraint chair for an inmate, so after two hours, appellant

was removed from the chair. As appellant stood up, Sergeant Laird observed a small

"silicone or plastic container" fall from appellant's gown onto the ground. Following a

second body scan and strip search, officers thought they saw an additional black object in

appellant's rectum. However, no further objects were discovered. Laboratory results

confirmed that the contents of the first container removed from appellant's rectum were

cannabinoids and the contents of the second container, which had fallen, were opioids.

Appellant was transported to the hospital for the body cavity search, which did not produce

any further drugs.

{¶12} On May 3, 2021, appellant was indicted on one count of tampering with

evidence, one count of aggravated possession of drugs, and one count of possession of

drugs. The matter proceeded to a bench trial on August 26, 2021. At trial, the court heard

testimony from Officer Ventura, Officer Hartmann, Sergeant Laird, and appellant himself.

Appellant took exception to the officers' testimony that he pushed the green container into

his anus, testifying "I did not shove nothing up my ass." He testified that he had merely

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placed the drugs between his buttocks, as opposed to within his rectum, that he had done

so "for safekeeping," and that he had kept the drugs between his buttocks for at least a day

before they were discovered by the officers. As such, he argued that because the drugs

were concealed before the officers' investigation began, the state was unable to prove they

were placed there for the purpose of impeding an investigation.

{¶13} The trial court found appellant guilty of all counts. Appellant was sentenced

to twelve months in prison on each count, to be served concurrently to each other and

consecutively to the sentence imposed in Case No. 21CR37747, for a total of thirty-six

months in prison between the two cases. Appellant now appeals the verdict, raising one

assignment of error.

{¶14} Assignment of Error No. 1:

{¶15} THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION TO

SUPPRESS.

{¶16} In his first assignment of error, appellant argues that the trial court erred by

denying his motion to suppress the search of his cell phone in Case No. 21CR37747. In

support of this claim, appellant argues that the search warrant affidavit submitted by

Detective Behymer was insufficient to establish the requisite probable cause necessary for

the issuance of the search warrant. Specifically, appellant argues that (1) the affidavit failed

to establish the necessary nexus between the cell phone number and the and criminal

behavior, and (2) the affidavit failed to provide any facts as to the veracity or basis of

knowledge of the person supplying the cell phone number. We disagree.

Law and Standard of Review

{¶17} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Pallo, 12th Dist. Clermont No. CA2019-12-105, 2020-

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Ohio-4182, ¶ 16. When considering a motion to suppress, the trial court, as the trier of fact,

is in the best position to weigh the evidence to resolve factual questions and evaluate

witness credibility. State v. Abner, 12th Dist. Warren No. CA2021-05-048, 2021-Ohio-4549,

¶ 12. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is

bound to accept the trial court's findings of fact if they are supported by competent, credible

evidence. State v. Wilson, 12th Dist. Butler No. CA2019-08-141, 2020-Ohio-3227, ¶ 16.

An appellate court, however, independently reviews the trial court's legal conclusions based

on those facts and determines, without deference to the trial court's decision, whether as a

matter of law, the facts satisfy the appropriate legal standard. State v. Kirk, 12th Dist.

Clermont No. CA2019-07-053, 2020-Ohio-323, ¶ 9.

{¶18} Both the Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution protect individuals from unreasonable searches and

seizures.2 State v. Walton, 12th Dist. Butler No. CA2020-12-124, 2021-Ohio-3958, ¶ 9. As

the Fourth Amendment provides,

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.

{¶19} In determining the sufficiency of probable cause in an affidavit submitted in

support of a search warrant, the task of the issuing judge is simply to make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit before

him, including the veracity and basis of knowledge of persons supplying hearsay

2. The Ohio Supreme Court has held that in felony cases, Article I, Section 14 of the Ohio Constitution provides
the same protection as the Fourth Amendment to the United States Constitution. State v. Banks-Harvey, 152
Ohio St.3d 368, 2018-Ohio-201, ¶ 16. Appellant brings his claims under both constitutions, and all analysis
herein reflects both documents. See State v. Caldwell, 12th Dist. Butler No. CA2021-02-017, 2021-Ohio-
3777, ¶ 16, fn.3.

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information, there is a fair probability that contraband or evidence of a crime will be found

in a particular place. State v. Collins, 12th Dist. Preble No. CA2016-09-009, 2017-Ohio-

4371, ¶ 23. The issuing judge or magistrate is confined to the averments contained in the

affidavit supporting the issuance of the search warrant. State v. Reedjik, 12th Dist. Warren

No. CA2020-12-086, 2021-Ohio-2879, ¶ 12.

{¶20} Thus, in determining whether a search warrant was issued upon a proper

showing of probable cause, reviewing courts must examine the totality of the

circumstances. State v. Moore, 12th Dist. Fayette No. CA2017-11-023, 2018-Ohio-3122, ¶

32. The duty of a reviewing court is simply to ensure that the issuing judge or magistrate

had a substantial basis for concluding that probable cause existed based on the information

contained in the four corners of the affidavit filed in support of the warrant. State v. Nelson,

12th Dist. Clermont No. CA2017-08-042, 2018-Ohio-2819, ¶ 19. Furthermore, in

conducting any after-the-fact scrutiny of an affidavit submitted in support of a search

warrant, reviewing courts must accord great deference to the issuing judge's determination

of probable cause, and doubtful or marginal cases in this area should be resolved in favor

of upholding the warrant. State v. Shoults, 12th Dist. Fayette No. CA2018-05-009, 2019-

Ohio-1400, ¶ 17. Therefore, when reviewing the decision to issue a warrant, neither a trial

court nor an appellate court will conduct a de novo determination as to whether the affidavit

provided sufficient probable cause. State v. Risner, 12th Dist. Preble No. CA2017-06-007,

2018-Ohio-1569, ¶ 18.

Analysis

{¶21} In the case sub judice, the trial court found that there was probable cause to

support the cell phone search warrant. "While the affidavit and search warrant are inartful

at times," the trial court concluded that "there is ample evidence upon which to conclude

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the Defendant had committed a crime." The trial court further found that "it is not necessary

that the particular phone or phone number be associated with that crime," but that "[i]t is

sufficient that there is probable cause the Defendant has violated the law and the data

associated with the cell phone number will assist in ascertaining the Defendant's

whereabouts." We agree with the trial court's reasoning.

{¶22} Detective Behymer averred in his affidavit that "it is necessary to obtain the

real-time GPS or cell site and sector location information, or location data demonstrating

the physical whereabouts of any mobile electronic device associated with telephone

number (513-496-8322) for a 60 day period * * *." (Emphasis and bold sic.) In the same

paragraph, Detective Behymer averred that such information was necessary "in order to

ascertain the location of the individual in possession of (Douglas Bedsole) cell phone."

(Emphasis and bold sic.) While it is true that the affidavit does not contain information

regarding how the cell phone number is connected with appellant, it makes clear that the

cell phone number is associated with appellant. Earlier in the affidavit, Detective Behymer

had already given sufficient information to establish probable cause that appellant had

committed a crime, reciting the facts associated with the February 1 buccal swab search

warrant affidavit which established that appellant stole multiple vehicles. Here, Detective

Behymer made clear that the warrant would assist in the apprehension of a criminal

suspect.

{¶23} The affidavit in support of a search warrant must "name or describe the person

to be searched or particularly describe the place to be searched, name or describe the

property to be searched for and seized, state substantially the offense in relation thereto,

and state the factual basis for the affiant's belief that such property is there located." Crim.R.

41(C)(1). Detective Behymer does exactly that in his affidavit. The affidavit to the warrant

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identified with specificity the placed to be searched, i.e., the cell phone associated with the

number 513-496-8322. It described with particularity the property to be seized, i.e., "the

real-time GPS or cell site and sector location information, or location data demonstrating

the physical whereabouts of any mobile electronic device associated" with that number. It

described in detail appellant's connection to the crime being investigated and the specific

facts supporting his identity as the perpetrator of that crime. And it represented that

Detective Behymer had good cause to believe that real-time GPS or cell site and sector

location information would demonstrate the physical whereabouts of the cell phone "in order

to ascertain the location of the individual in possession of (Douglas Bedsole) cell phone,"

and that AT&T was in possession of that information.

{¶24} However, after reviewing the affidavit, we find there was a lack of particularity

as to the reliability of the complainant, specifically with regard to the source or basis of the

complainant's information regarding the cell phone number. See State v. Adkins, 12th Dist.

Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-Ohio-1698, ¶ 66. It is unclear why

Detective Behymer did not note in his affidavit that he received the source from appellant's

wife, or at least from a confidential informant. Nonetheless, the failure to note the source

of the phone number does not defeat probable cause as we are unconcerned with whether

individual facts supply probable cause. Id. Rather, it is the totality of the circumstances

which control. Risner, 2018-Ohio-1569, at ¶ 17. Having reviewed the information set forth

in Detective Behymer's affidavit, we conclude that the affidavit set forth sufficient information

such that the issuing judge had a substantial basis for concluding that probable cause

existed to believe that appellant had committed a crime, and appellant's real-time cell phone

location information would assist in his apprehension. See Nelson, 2018-Ohio-2819, at ¶

19.

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{¶25} Additionally, we need not reach the good-faith exception to the exclusionary

rule because "'[t]o trigger the exclusionary rule, police conduct must be sufficiently

deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such

deterrence is worth the price paid by the justice system.'" State v. Commins, 12th Dist.

Clinton Nos. CA2009-06-004 and CA2009-06-005, 2009-Ohio-6415, ¶ 25, quoting Herring

v. United States, 555 U.S. 135, 144, 129 S.Ct. 695 (2009). We find that there is no evidence

that Detective Behymer was acting deliberately in his failure to note the source of his

knowledge regarding appellant's cell phone number. As such, the exclusionary rule does

not apply, and consideration of the good-faith exception to that rule is immaterial to our

analysis.

{¶26} Appellant's first assignment of error is overruled.

{¶27} Assignment of Error No. 2:

{¶28} BEDSOLE'S TAMPERING WITH EVIDENCE CONVICTION IS NOT

SUPPORTED BY SUFFICIENT EVIDENCE NOR THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶29} In his second assignment of error, appellant argues that his conviction for

tampering with evidence in Case No. 21CR38007 is not supported by sufficient evidence

and is against the manifest weight if the evidence. Once again, we disagree.

Standard of Review

{¶30} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Tolle, 12th Dist. Preble No. CA2020-10-015, 2021-Ohio-3401,

¶ 9. When reviewing the sufficiency of the evidence underlying a criminal conviction, an

appellate court examines the evidence in order to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable

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doubt. State v. Roberts, 12th Dist. Warren No. CA2020-12-089, 2021-Ohio-3073, ¶ 12.

The relevant inquiry is, after viewing the evidence in the light most favorable to the

prosecution, whether any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Terry, 12th Dist. Warren No.

CA2021-04-029, 2021-Ohio-4043, ¶ 9.

{¶31} "Unlike a challenge to the sufficiency of the evidence, a manifest weight of the

evidence challenge examines the 'inclination of the greater amount of credible evidence,

offered at a trial, to support one side of the issue rather than the other.'" State v. Moore,

12th Dist. Fayette No. CA2020-09-016, 2021-Ohio-1856, ¶ 13, quoting State v. Barnett,

12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a

conviction is against the manifest weight of the evidence, the reviewing court must look at

the entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. McMurray, 12th Dist. Preble

No. CA2020-08-013, 2021-Ohio-3562, ¶ 11.

{¶32} An appellate court will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. State v. Ostermeyer, 12th Dist. Fayette No. CA2021-01-002,

2021-Ohio-4116, ¶ 35. A determination that a conviction is supported by the manifest

weight of the evidence will also be dispositive of the issue of sufficiency. State v. Worship,

12th Dist. Warren No. CA2020-09-055, 2022-Ohio-52, ¶ 34.

Law and Analysis

{¶33} Appellant argues that the tampering with evidence conviction in Case No.

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21CR38007 was not supported by sufficient evidence. R.C. 2921.12(A)(1) provides that

"[n]o person, knowing that an official proceeding or investigation is in progress, or is about

to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any record,

document, or thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation."

{¶34} "A conviction for tampering with evidence requires 'proof that the defendant

intended to impair the value or availability of evidence that related to an existing or likely

official investigation or proceeding.'" State v. Lee, 12th Dist. Fayette Nos. CA2020-09-014

and CA2020-09-015, 2021-Ohio-2544, ¶ 39, quoting State v. Straley, 139 Ohio St.3d 339,

2014-Ohio-2139, ¶ 19. "'Likelihood is measured at the time of the act of alleged tampering.'"

State v. Wallace, 12th Dist. Fayette No. CA2015-09-019, ¶ 12, quoting Straley at ¶ 19.

"Tampering with evidence requires a person to act with purpose, meaning the person has

a specific intention to cause a certain result." State v. Taylor, 12th Dist. Fayette No.

CA2018-11-021, 2019-Ohio-3437, ¶ 51.

{¶35} We begin our analysis by noting that the decision whether, and to what extent,

to credit the testimony of particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness. State v. Altman, 12th Dist. Clermont No.

CA2021-12-071, 2022-Ohio-2380, ¶ 15. It is well-established that determinations regarding

witness credibility, conflicting testimony, and the weight to be given such evidence are

primarily for the trier of fact. State v. K.W., 12th Dist. Warren No. CA2016-01-004, 2016-

Ohio-7365, ¶ 26. The trial court, as the trier of fact, is free to believe all, part, or none of

the testimony of any witness who appears before it. State v. Cephas, 12th Dist. Butler No.

CA2021-05-051, 2021-Ohio-4356, ¶ 13.

{¶36} Viewing the evidence in the light most favorable to the prosecution, it is clear

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from the facts that appellant's efforts to conceal the drugs satisfy the definition of tampering

with evidence. Appellant argues that he had kept the drugs between his buttocks for at

least a day before they were discovered by the officers, and therefore, the state was unable

to prove they were placed there for the purpose of impeding an investigation. Although

appellant may have placed the drugs between his buttocks or within his rectum prior to the

officers instituting their investigation, the very fact of appellant's incarceration in a jail where

officers testified that drug searches regularly occur means that appellant knew an

investigation was "likely to be instituted." This is corroborated by appellant's own testimony

that he placed the drugs between his buttocks "for safekeeping and to prevent anyone else

from getting them." "Anyone else" in this instance includes officers conducting routine

investigations.

{¶37} Additionally, viewing the evidence in the light most favorable to the

prosecution, even supposing appellant's initial concealment of drugs in his rectum or

between his buttocks does not constitute tampering, his reinsertion of the drugs as they

began coming out does. Officers testified that during their investigation, a second container

of drugs emerged from appellant's anus, and when he was asked what it was, appellant

stood up, denied having anything, and was observed by the officers to push it back into his

rectum using his middle finger. While appellant denies this occurred, "[i]t is well-established

that when conflicting evidence is presented at trial, a conviction is not against the manifest

weight of the evidence simply because the trier of fact believed the prosecution testimony."

State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17; see also

State v. Jackson, 12th Dist. Butler No. CA2001-10-239, 2002-Ohio-4705, ¶ 48 ("A

conviction is not against the manifest weight of the evidence merely because there is

conflicting evidence before the trier of fact"). In a bench trial, the trial court acts as the

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factfinder and determines both the credibility of the witnesses and the weight of the

evidence. State v. Hensley, 12th Dist. Butler No. CA2021-04-040, 2021-Ohio-3702, ¶ 29.

Here, the trial court, as factfinder, determined that the officers were credible, and appellant

was not.

{¶38} In making its decision which witnesses to believe and which to disbelieve, the

trial court did not lose its way or create a manifest miscarriage of justice. After reviewing

the record, weighing inferences, and examining the credibility of the witnesses, we find that

appellant's conviction for tampering with evidence is not against the manifest weight of the

evidence and was therefore supported by sufficient evidence. As such, appellant's second

assignment of error is also without merit and therefore overruled.

{¶39} Judgment affirmed.

PIPER, P.J., and S. POWELL, J., concur.

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