STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM R. DAILEY, DEFENDANT-APPELLANT.
CASE NO. 8-10-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
October 4, 2010
[Cite as State v. Dailey, 2010-Ohio-4816.]
Appeal from Logan County Common Pleas Court Trial Court No. CR 09-03-0043
Judgment Affirmed
APPEARANCES:
Marc S. Triplett, for Appellant
Daniel J. LaRoche, for Appellee
{1} Defendant-appellant, William R. Dailey (hereinafter “Dailey“), appeals the Logan County Court of Common Pleas’ judgment dismissing his motion to suppress and its judgment entry of sentence. For the reasons that follow, we affirm.
{2} This case stems from the events that took place on January 10, 2009, in Bellefontaine, Ohio. On that particular day, Brad Stafford (hereinafter “Stafford“) was working at the Wal-Mart store in Bellefontaine, Ohio, in the asset protection department. (June 17, 2009 Tr. at 28). One of Stafford‘s duties was to deter theft by walking through the store dressed in an inconspicuous manner, observe customers, and, if necessary, apprehend shoplifters. (Id. at 30). Around 5:30 p.m. that day, Stafford observed Dailey in the store‘s electronics department, located at the back of the store, walk up to a display of DVDs, pick up several DVDs, and then start walking towards the front of the store. (Id. at 29-31, 52). Stafford followed Dailey, who was still holding the stack of DVDs, until he briefly lost sight of him for a few moments; however, when Dailey re-emerged, he was no longer holding the DVDs. (Id.). Then Stafford observed Dailey take a computer off a nearby shelf, place it in his shopping cart, and head to the exit of the store at an accelerated pace. (Id.). As a result, Stafford started chasing after Dailey. (Id.). An employee at the front of the store yelled at Dailey in an attempt to stop him,
{3} After Dailey left the scene, Stafford went back inside with the coat and set off the store‘s anti-theft device at the store‘s entrance. (Id. at 8). Stafford looked through the coat and discovered several DVDs and a cell phone. (Id.).
{4} Officer Jason Lapp of the Bellefontaine Police Department responded to the incident. (August 7, 2009 Tr. at 15). He talked to Stafford about what had happened and was given the jacket and the cell phone. (Id.). Officer Lapp tried to turn on the cell phone, but it died immediately, so Stafford provided him a charger from the store. (Id. at 15-16). After re-charging the cell phone, Officer Lapp was able to locate the contact information stored in the cell phone‘s directory and made a call to one of the contacts. (Id. at 15-16). Officer Lapp spoke to a woman, and through the course of their conversation, was able to obtain enough information regarding the identification of the cell phone‘s owner. (Id. at 17). Officer Lapp used this information to obtain a photograph of Dailey, which
{5} On March 10, 2009, the Logan County Grand Jury indicted Dailey on one count of robbery in violation of
{6} On June 17, 2009, the trial court held an evidentiary hearing on Dailey‘s motion to suppress the identification testimony of Mr. Stafford. The parties did not dispute that Officer Lapp had shown Mr. Stafford a single photograph which contained Dailey‘s picture. Ultimately, the trial court overruled the motion.
{7} On August 7, 2009, the trial court conducted another evidentiary hearing on Dailey‘s second motion to suppress the data contained in his cell phone that he argued had been obtained by an improper warrantless search. The trial court overruled his second motion to suppress.
{8} On September 30, 2009, Dailey entered into a plea agreement with the State, whereby he entered a no contest plea to an amended charge of robbery
{9} The trial court filed its judgment entry of sentence on November 10, 2009, but because of an error, the trial court issues its Nunc Pro Tunc judgment entry of sentence on December 22, 2009.
{10} Dailey now appeals and raises two assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF THE DATA IN HIS CELL PHONE.
{11} In his first assignment of error, Dailey argues that the trial court erred when it denied his motion to suppress the warrantless search of the data in
{12} A review of the denial of a motion to suppress involves mixed questions of law and fact. 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 the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. See State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given to the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Burnside, 2003-Ohio-5372, at ¶ 8. With respect to the trial court‘s conclusions of law, however, our standard of review is de novo and we must decide whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{13} In this particular case, the trial court overruled Dailey‘s motion to suppress and found that “[t]he Defendant‘s constitutional rights were not violated by the police in using the information in the cell phone to identify the Defendant since the Defendant abandoned the cell phone.” (Aug. 13, 2009 JE at 3). After reviewing the record and the applicable law, we agree with the trial court‘s decision.
{14} The
{15} Nevertheless, “[i]t has long been settled that ‘[a] defendant has no standing under the
“Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so
that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.”
Freeman, 64 Ohio St.2d at 296, quoting United States v. Colbert (C.A.5, 1973), 474 F.2d 174, 176, internal citations omitted. The State also bears the burden of establishing, by a preponderance of the evidence, that the defendant abandoned the property at issue. State v. Dennis, 182 Ohio App.3d 674, 2009-Ohio-2173, 914 N.E.2d 1071, ¶ 41, citing State v. Dubose, 164 Ohio App.3d 698, 2005-Ohio-6602, 843 N.E.2d 1222, ¶ 43.
{16} In this particular case, we believe that it was clear that Dailey voluntarily abandoned his cell phone when he slipped out of his coat and left it and its contents behind in order to escape being detained by a Wal-Mart store employee. When Stafford reached Dailey at the Wal-Mart sliding doors, Dailey turned around and tried to elbow him in the face. A physical altercation ensued between the two, which eventually spilled into the store‘s parking lot. At one point, Stafford grabbed Dailey‘s jacket, but Dailey managed to maneuver his way out of the jacket and quickly ran off, leaving his jacket in Stafford‘s possession. At no time thereafter did Dailey request his jacket or any of its contents be returned to him.
{17} Dailey claims that he did not voluntarily abandon his cell phone because his relinquishment of his coat was the result of the restraints placed upon him by Stafford. We disagree and fail to see how being restrained by Stafford
{18} Nevertheless, Dailey argues that the warrantless search of his phone was in violation of his constitutional rights. In support of his argument, Dailey cites to State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, in which the Supreme Court considered whether a warrantless search of a cell phone‘s data subsequent to a search incident to arrest was a violation of a defendant‘s
{20} First of all, the manner in which law enforcement obtained the cell phones in the two cases differ significantly. In Smith, the police had seized the defendant‘s cell phone as a result of arresting him. Id. at ¶ 3. Here, Dailey‘s cell phone was possessed as a result of him leaving his coat behind in an attempt to escape being apprehended by a Wal-Mart employee. Second, the basis for the warrantless search conducted on the defendant‘s cell phone in Smith was completely different than the basis for the warrantless search in this case. In Smith, the State argued that the search had been lawful because it had been performed as a search incident to an arrest. Id. at ¶ 11. Here, the State argued, and the trial court found, that Dailey had no standing to object to a warrantless search of his cell phone because he had left it behind while he was fleeing the scene of the incident.
{21} Furthermore, we note that while the Supreme Court pointedly disagreed with the State‘s position that a warrantless search of a cell phone conducted as a search incident to arrest was permissible under the
{22} Dailey‘s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION FOR ADDITIONAL JAIL TIME CREDIT.
{23} In his second assignment of error, Dailey argues that the trial court erred when it limited Dailey‘s jail-time credit to only the time between the date of his no contest plea (when the trial court revoked his personal recognizance bond) and the sentencing hearing. In particular, Dailey claims that jail-time credit should have been applied to his Logan County sentence for time he served on his re-incarceration in Marion County for a community control violation when his Logan County sentence was to be served concurrently with his Marion County sentence.
{25}
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced * * *.
Thus, a defendant is only entitled to jail-time credit for confinement that is related to the offense for which he is being sentenced. State v. Daughenbaugh, 3d Dist. No. 16-09-05, 2009-Ohio-3823, ¶ 18, citing Pitts, 2007-Ohio-5197, at ¶ 16; State v. Brooks, 9th Dist. No. 05CA008786, 2006-Ohio-1485, ¶ 6.
{26} On appeal, Dailey claims that he is entitled to additional jail-time credit for the entire time he had been in custody since his January 10, 2009 arrest. However, as the statute explicitly states, a defendant is only entitled to “the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted or sentenced.” Here, Dailey was never confined because of this offense until after he entered his no contest plea.
{27} Moreover, although Daily seems to suggest that his Marion County sentence for his community control violation “arose out of the offense for which he was convicted or sentenced” in Logan County, it is clear that the two offenses are not related under the definition of
{28} Notwithstanding the above, Dailey claims that he was entitled to jail-time credit for the time he spent in custody on the Marion County community control violation. This is because his sentence in this Logan County case was ordered to be served concurrently with the Marion County sentence, and that his community control violation was based on his conduct in Logan County. In support of his position, Dailey cites to the State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. In Fugate, the Ohio Supreme Court held that “when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously.” Id. at ¶ 22. However, this holding only applies when the defendant is actually entitled to the jail-time credit pursuant to
{29} Dailey‘s second assignment of error is, therefore, overruled.
{30} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., and ROGERS, J., concur.
/jnc