STATE OF OHIO, Appellee, v. NATHANIEL BOLLHEIMER, Appellant.
CASE NO. CA2019-02-014
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
1/13/2020
[Cite as State v. Bollheimer, 2020-Ohio-60.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 18CR34459
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
The Helbling Law Firm, LLC, John J. Helbling, 6539 Harrison Avenue, Box 124, Cincinnati, Ohio 45247, for appellant
{¶ 1} Appellant, Nathaniel Bollheimer, appeals from his conviction in the Warren County Court of Common Pleas for aggravated possession of drugs. For the reasons outlined below, we affirm.
{¶ 2} In July 2018, Bollheimer was indicted for aggravated possession of drugs in violation of
{¶ 3} Bollheimer entered a plea of not guilty to the charge. Thereafter, in September 2018, Bollheimer filed a motion to suppress, wherein he argued that the evidence obtained from the search of Room 259 should be suppressed because there was no probable cause that Bollheimer was engaged in or about to engage in criminal activity, and he did not otherwise consent to the search. After a hearing, the trial court denied Bollheimer‘s motion. In doing so, the trial court found that Bollheimer failed to meet his burden of proving that he had a reasonable expectation of privacy in Room 259 at the time of the search.
{¶ 4} The matter proceeded to a jury trial. The state presented four witnesses in its case-in-chief, and Bollheimer presented three witnesses in his defense. The jury returned a guilty verdict, and the trial court sentenced Bollheimer to 24 months in prison. Bollheimer now appeals, raising four assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT-APPELLANT‘S MOTION TO SUPPRESS.
{¶ 7} In his first assignment of error, Bollheimer argues the trial court erred in denying his motion to suppress the evidence found in Room 259 after the officers entered the room with only an arrest warrant.
{¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burkhead, 12th Dist. Preble No. CA2008-11-022, 2009-Ohio-4466, ¶ 7; State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist. Warren No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. State v. Lange, 12th Dist. Butler No. CA2007-09-232, 2008-Ohio-3595, ¶ 4; State v. Bryson, 142 Ohio App.3d 397, 402 (12th Dist.2001). After accepting the trial court‘s factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. State v. Forbes, 12th Dist. Preble No. CA2007-01-001, 2007-Ohio-6412, ¶ 29; State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-2530, ¶ 17.
{¶ 9} Bollheimer initially argues that his motion to suppress should have been granted because he maintained a privacy interest in Room 259 and did not consent to the search of the room. As such, Bollheimer claims his Fourth Amendment rights were violated when the officers entered Room 259 in order to effectuate his arrest.
{¶ 10} “The Fourth Amendment generally prohibits police from making a warrantless,
{¶ 11} In Payton, the United States Supreme Court held that “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.” Payton at 603. “‘Accordingly, pursuant to Payton, an arrest warrant is sufficient to enter a person‘s residence to effectuate the warrant if the police have reason to believe that the suspect lives in the home and is in fact at the home at the time the arrest warrant is executed.‘” State v. Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, ¶ 10, quoting State v. Zerucha, 11th Dist. Ashtabula No. 2015-A-0031, 2016-Ohio-1300, ¶ 13. Federal courts have indicated that “[t]he protections against warrantless intrusions into the home announced in Payton *** apply with equal force to a properly rented hotel room during the rental period.” United States v. Junkman, N.D. Iowa No. CR96-4033, 1997 U.S. Dist. LEXIS 24888, *3 (June 24, 1997), citing United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986) and United States v. Wicks, 995 F.2d 964, 969 (10th Cir.1993). (Emphasis added.)
{¶ 12} Similarly, Ohio courts have found that a person‘s motel room, like a person‘s home, must be free of warrantless intrusions and that any lesser standard is presumptively unreasonable. State v. Nicole, 4th Dist. Athens No. 99CA49, 2001-Ohio-2451, *12; State v. Miller, 77 Ohio App. 3d 305, 312 (8th Dist.1991); State v. Montgomery, 2d Dist. Clark No. 98 CA 82, 2000 Ohio App. LEXIS 1339, *11 (Mar. 31, 2000). However, despite the right to be free from warrantless intrusions, once the motel guest “voluntarily abandons the room, his
{¶ 13} At the suppression hearing, a housekeeper for the motel testified that the checkout time for the motel is 11:00 a.m. and that guests are expected to check out at that time. According to the housekeeper, if guests stayed after 11:00 a.m. without paying for an additional night she had authority to “kick them out.” On the date of the search, the housekeeper went to Room 259 around 11:00 a.m. to “see if [Bollheimer and Cullers] were going to stay in another night or *** if they were checking out that day.” Neither guest responded to the housekeeper‘s knocking. As a result, using her key, the housekeeper opened the door and saw Cullers by the counter and Bollheimer lying on the bed. At that point, the housekeeper informed the two guests that it was time to check out, to which they eventually responded that they were unsure if they were staying over or checking out. The housekeeper then went to the front office, which sent her back to Room 259. According to the housekeeper, the only reason the front desk would have sent her back to Room 259 was because the guests had not paid for an additional night. Thereafter, the police arrived at the motel around 11:15 a.m., showed her photographs of two individuals, and asked if she recognized the men depicted in the photographs. The housekeeper identified the men in the photographs as the guests staying in Room 259. The housekeeper then led the officers to Room 259, knocked on the door, and stated, “housekeeping.” Like her initial encounter with the guests in Room 259, the men did not respond to her knocking, and she used her key to open the door. At that time, the officers announced their presence and entered Room 259.
{¶ 14} Bollheimer argues that, although a motel room may be searched upon consent of motel employees once a guest has abandoned the premises, it was impermissible here because the housekeeper was unsure whether the guests had paid for an additional night and because they had not returned the key to their room. We disagree.
{¶ 15} There was competent credible evidence presented at the suppression hearing that Bollheimer had relinquished Room 259 at the time of the search. Specifically, the housekeeper testified that if guests plan to stay for an additional night, they are required to pay for that night before their rental period expires. If the guests fail to pay for the additional night, they are expected to leave at checkout time. Here, the record indicates that Bollheimer did not pay for an additional night before he was required to check out of Room 259. The record also reflects that, despite the housekeeper‘s statement that it was time to check out, neither Bollheimer nor Cullers stated whether the pair intended to stay another night or leave the motel. As such, we find Bollheimer automatically relinquished all rights of privacy to the room when his rental period expired.
{¶ 16} We are unpersuaded by Bollheimer‘s argument that, like the Eighth District held in Miller, a guest must return his key to the motel management before a motel guest automatically relinquishes his room at checkout time. State v. Miller, 77 Ohio App. 3d 305, 313 (8th Dist.1991), citing United States v. Savage, 564 F.2d 728, 733 (5th Cir.1997). In this case, there was no testimony presented at the suppression hearing as to whether the key was returned prior to the search of Room 259. Even assuming arguendo that Bollheimer did not return the key prior to the search, we agree with our sister court that the return of the key is of less significance than the fact that the checkout time had passed. State v. Montgomery, 2d Dist. Clark No. 98 CA 82, 2000 Ohio App. LEXIS 1339, *11 (Mar. 31, 2000). This viewpoint is shared by several circuit courts, including the Sixth Circuit, which have indicated that once a guest‘s rental period expires or has been lawfully terminated, that guest “does not
{¶ 17} It is undisputed that the officers arrived at the motel after the designated checkout time and that Bollheimer remained in the room after that time. As such, because Bollheimer had stayed past his checkout time, never expressed an intent to pay for an additional night, and failed to pay for an additional night before his rental period expired, we find Bollheimer effectively surrendered his tenancy and automatically relinquished Room 259 at the checkout time. At that point, the housekeeper, as a motel employee, was authorized to provide the officers with consent to search Room 259. Montgomery at *11.
{¶ 18} We also reject Bollheimer‘s argument that the officers should have determined the rental status of the room prior to entering. Rather, we find the officers were permitted to enter the room to execute the arrest warrants, regardless of the room‘s rental status. As discussed above, in situations involving hotel and motel rooms, if the person named in the arrest warrant is a tenant residing in the hotel room, Payton permits the officers to enter the room to effectuate the arrest warrant if they have a reasonable belief that the person named in the arrest warrant is a tenant and present inside the room. Payton, 445 U.S. at 603. “Reasonable belief is established by looking at common sense factors and evaluating the totality of the circumstances.” State v. Cooks, 2017-Ohio-218 at ¶ 11, citing United States v. Pruitt, 458 F.3d 477, 482 (6th Cir.2006). “A reasonable belief is something less than
{¶ 19} In the instant matter, there was no testimony at the suppression hearing as to whether Bollheimer or Cullers was the registered tenant of the motel room. However, Deputy Green testified he received information that both individuals were staying in Room 259. He then confirmed, prior to arriving at the motel, that both individuals had active arrest warrants in Warren County. Upon the officers’ arrival, the information regarding Bollheimer‘s and Cullers’ presence in Room 259 was corroborated by the housekeeper, who testified that after viewing the photographs of the two individuals, she recognized them as the men staying in Room 259 and told the officers the men were in the room at that time.
{¶ 20} Based upon the totality of the circumstances, we find it was reasonable for the officers to believe that either Bollheimer or Cullers, each a subject of a corresponding arrest warrant, was a tenant of Room 259 on the day in question. Further, it was reasonable for the officers to believe the individuals were inside the room considering the information provided by Bollheimer‘s mother, and the housekeeper‘s statement to the officers that the individuals remained in Room 259. Because the officers had arrest warrants for Bollheimer and Cullers, and maintained a reasonable belief that either Bollheimer or Cullers were a tenant present inside of the motel room, the officers were constitutionally permitted to enter the room to effectuate their arrest. Accordingly, because the initial entry into Room 259 was lawful pursuant to Payton, the officers properly seized the drug paraphernalia that was in plain view. State v. Meyers, 12th Dist. Warren No. CA2003-03-037, 2004-Ohio-1717, ¶ 34.
{¶ 21} In accordance with the above, the trial court did not err in denying Bollheimer‘s motion to suppress. Bollheimer‘s first assignment of error is therefore, overruled.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE JURY ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY FINDING HIM GUILTY OF AGGRAVATED POSSESSION WITHOUT SUFFICIENT
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE JURY ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY FINDING HIM GUILTY OF AGGRAVATED POSSESSION AGAINST THE WEIGHT OF THE EVIDENCE.
{¶ 26} In his second and third assignments of error, Bollheimer argues the state failed to supply sufficient evidence to support the charge of aggravated possession, and that his conviction was against the manifest weight of the evidence. We disagree.
{¶ 27} 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 doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 28} A manifest weight of the evidence challenge, on the other hand, 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. 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶ 29} In reviewing the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in the best position to judge the credibility of witnesses and determine the weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th Dist.). An appellate court, therefore, 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. Id.
{¶ 30} Although the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different, 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. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 31} As noted above, Bollheimer was convicted of aggravated possession of drugs in violation of
{¶ 32} Bollheimer does not dispute that the substance Deputy Green discovered in Room 259 was methamphetamine, or that the amount of methamphetamine was equal to or exceeded the bulk amount but was less than five times the bulk amount. Rather, he argues that the state failed to prove that he knowingly possessed the drugs found in the motel room.
{¶ 33} As defined by
{¶ 34} “An accused has ‘constructive possession’ of an item when the accused is conscious of the item‘s presence and is able to exercise dominion and control over it, even if the item is not within the accused‘s immediate physical possession.” State v. Jester, 12th Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. Constructive possession may be proven by circumstantial evidence alone. Williams at ¶ 15. This is because “[c]ircumstantial and direct evidence are of equal evidentiary value.” State v. Frye, 5th Dist. Richland No. 17CA5, 2017-Ohio-7733, ¶ 46, citing State v. Jenks, 61 Ohio St.3d 259, 272 (1991). “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.” State v. Caudill, 12th Dist. Madison No. CA2017-05-011, 2018-Ohio-550, ¶ 12.
{¶ 35} At trial, Deputy Green testified that on the day of the search, he responded to a call that Bollheimer and Cullers, who had active arrest warrants at the time, were staying in Room 259 of a Motel 6 in Warren County. Consistent with the testimony he provided at the suppression hearing, Deputy Green then indicated that he arrived at the motel around 11:20 a.m. and made contact with the housekeeper. The housekeeper then led the deputy and his fellow officers to Room 259 where Bollheimer and Cullers were staying. The housekeeper knocked on the door and neither Bollheimer nor Cullers responded. At that time, the
{¶ 36} Deputy Green also testified that in the process of arresting Cullers, he observed drug paraphernalia and “obvious meth” on the vanity. According to Deputy Green, the drug paraphernalia, including meth pipes, a glass plate, a ten-dollar bill, and baggies of a substance later confirmed to be methamphetamine, littered “almost the whole entire counter.” Deputy Green indicated the amount of methamphetamine found in Room 259 was “a lot.” The deputy then sent the substance discovered in Room 259 to the laboratory for testing, which revealed that the baggies contained methamphetamine in the weight of .16 grams and 7.54 grams.
{¶ 37} The state then presented testimony from the housekeeper. In addition to testifying regarding the events leading up to the entry and search of Room 259, which mirrored her testimony from the suppression hearing, the housekeeper further testified that she saw Bollheimer and Cullers checking in together the day before they were arrested. Although she did not see Bollheimer and Cullers go to Room 259, she recognized them when she knocked on the room‘s door to inquire about their rental status.
{¶ 38} Cullers also testified at trial and indicated he and Bollheimer checked in to the motel and were staying in Room 259 the day of their arrests. He further indicated he and Bollheimer were the only people to stay in Room 259 and that they were both in the room for the same amount of time. According to Cullers, Bollheimer was coming down from methamphetamine when the police arrived. While he could not recall whether he and Bollheimer purchased the drugs together, he described the drugs as “ours.” Cullers further confirmed that he and Bollheimer both used the methamphetamine that was found in Room 259 and described Bollheimer‘s use of that methamphetamine. Specifically, Cullers testified Bollheimer “heated it up” and snorted the methamphetamine with a straw that was found on the bathroom vanity in Room 259 on the day of their arrests.
{¶ 39} Lastly, the state presented testimony from Deputy John Mann, who testified that after securing the scene, he transported Bollheimer from the motel to the jail. According to Deputy Mann, upon arriving at the jail he began the booking process with Bollheimer. During the booking process, Bollheimer answered a few questions, and indicated he had used methamphetamine the previous evening.
{¶ 40} Bollheimer then presented the testimony of Officer Richardson, who completed the prebooking process with Bollheimer at the jail after Bollheimer‘s arrest. The officer testified that he met with Bollheimer and completed a prebooking questionnaire. The officer further testified that, when completing the questionnaire, he marked that Bollheimer did not admit to ingesting drugs to avoid arrest and that the officer did not believe Bollheimer appeared under the influence of drugs or alcohol. However, on cross-examination, Officer Richardson testified he may not have marked that Bollheimer was under the influence if Bollheimer had admitted to using methamphetamine the day before. The officer further testified that if Bollheimer was coming down from methamphetamine use, he may not have marked that Bollheimer was under the influence of drugs or alcohol.
{¶ 41} Bollheimer claims that the evidence presented at trial proves that Cullers was the only individual who possessed the drugs found in Room 259. According to Bollheimer, “there was no evidence of [Bollheimer] actively participating in anything other than sleeping.” However, after a full and thorough review of the record, we find Bollheimer‘s conviction for aggravated possession of drugs was not against the manifest weight of the evidence.
{¶ 42} In support of his claim, Bollheimer relies heavily on the fact that he did not have drugs on his person when he was arrested and that the drugs were closer to Cullers at the time of the search. Notwithstanding those facts, there was ample evidence in the record from which the jury could have concluded that Bollheimer was conscious of the methamphetamine‘s presence in Room 259 and that he was able to exercise dominion and control over that item. Specifically, Cullers’ testimony revealed that he and Bollheimer were the only individuals staying in Room 259 and that they both were in the room for the same amount of time. According to Deputy Green, when he entered the room, there was “a lot” of meth on the bathroom vanity and the meth pipes, glass plate, baggies, and other drug paraphernalia covered the entire vanity. Although Bollheimer was lying on a bed when officers entered the room, the record reflects the bathroom vanity and bed were in close proximity to one another. As such, the testimony presented at trial established that a significant amount of drugs was discovered in the small motel room where Bollheimer and Cullers spent equal time, and that those drugs were readily accessible and in close proximity to Bollheimer at the time of the search. Such testimony constitutes circumstantial evidence that Bollheimer was in constructive possession of the drugs. State v. Fultz, 12th Dist. Butler No. CA2015-06-103, 2016-Ohio-1486, ¶ 23.
{¶ 43} Furthermore, Cullers’ testimony, if believed, established that Bollheimer had dominion or control over the drugs found in Room 259 because he had access to and used them. Notably, despite Bollheimer‘s claims to the contrary, Cullers testified the
{¶ 44} In light of the foregoing, having found Bollheimer‘s conviction for aggravated possession of drugs was not against the manifest weight of the evidence, we necessarily conclude the state presented sufficient evidence to support the jury‘s finding of guilt. Accordingly, Bollheimer‘s second and third assignments of error are overruled.
{¶ 45} Assignment of Error No. 4:
{¶ 46} THE JUDGE COMMITTED PREJUDICIAL ERROR IN NOT GIVING THE PROPER JURY INSTRUCTION IN ACCORDANCE WITH
{¶ 47} In his fourth assignment of error, Bollheimer contends the trial court erred in giving the jury an accomplice testimony instruction which did not comply with
{¶ 48} A trial court must charge a jury with instructions that are a correct and complete statement of the law. Marshall v. Gibson, 19 Ohio St.3d 10, 12 (1985). However, the precise language of a jury instruction is within the discretion of the trial court. State v. Bailey, 8th Dist. Cuyahoga No. 81498, 2003-Ohio-1834, ¶ 51, citing State v. Guster, 66 Ohio St.2d 266, 271 (1981).
{¶ 49} In situations where an accomplice testifies against a defendant, trial courts are statutorily required to give a special jury instruction.
The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.
In the case at bar, the trial court instructed the jury as follows:
You have heard testimony from Justin Cullers who is another person who pleaded guilty to charges arising out of the same crime charged in this case. We will call this person an accomplice, one who knowingly assists or joins another in the commission of a crime. Whether Justin Cullers was an accomplice and the weight to be given to his testimony, are matters for you to determine. An accomplice may have special motives for testifying. The testimony of a person you find to be an accomplice, should be viewed with grave suspicion and weighed with great caution.
{¶ 51} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.