368 N.E.2d 332 | Ohio Ct. App. | 1977
This cause came on to be heard upon the appeal; the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Clermont County; and the transcript of the proceedings, the briefs and the arguments of counsel.
Defendant was charged with two thefts in two separate indictments: the theft of assorted automotive tools and the theft of a pickup truck. These two indictments, though not consolidated, were handled and considered as one in the trial court. Fischer's motions to suppress evidence having been heard and denied, he entered pleas of no contest to both indictments, thus preserving the constitutional question raised in seeking the suppression of evidence. He appeals on two grounds: that the court committed error in holding that the affidavit in support of the search warrant *54 was effective, and the court erred in finding him guilty of two thefts because there was, as a matter of law, only one theft, the tools being in the pickup truck at the time it was stolen.
We overrule the first assignment of error, and sustain the second assignment of error.
As to the first assignment, we conclude that the affidavit presented to the magistrate contains sufficient reliable data to meet the constitutional requirements of probable cause under the
The police took Fischer and his vehicle in custody, cited him for driving without a license, and thereafter obtained the search warrant.
It will be noted that the constitutional requirements of probable cause are fulfilled by the direct testimony of the affiant-officer; he observed both the presence of the red tool box and the absence of a certain amount of green *55 paint, both plainly in view, when he was entitled to be where he was, doing what he was then authorized to do. Thus, the warrant could have been issued upon his statements alone without the need to rely on the statements from the anonymous phone caller. The first assignment of error is without merit.
As to the second assignment of error, it was error to convict and sentence Fischer on both of the indictments. R. C.
The state objects to the assertion of this assignment of error, claiming that Fischer waived any error because he did not object or otherwise call this error to the attention of the trial judge, and that the sentences were concurrent. We disagree. We believe that in enacting R. C.
"* * * [P]lain error may be identified as obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings."
The second assignment of error is well taken. *56
Having determined that the trial court committed error prejudicial to Fischer in convicting and sentencing him for the theft of the assorted automotive tools, we reverse his conviction of this offense, and dismiss this charge. Concurrently, we affirm the conviction and judgment for the theft of the pickup truck.
Judgment affirmed in part and reversed in part.
BETTMAN, P. J., CRAWFORD and BLACK, JJ., concur.
CRAWFORD, J., retired, was assigned to active duty under authority of Section 6(c), Article IV, Constitution.