STATE OF OHIO v. SCOTT GASSER
C.A. No. 15CA0046-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA
October 31, 2016
2016-Ohio-7538
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 14CR0376
MOORE, Judge.
{¶1} Defendant-Appellant Scott M. Gasser appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} Based upon Mr. Gasser‘s behavior during a traffic stop and following his arrest, Mr. Gasser was indicted in June 2014, on one count of tampering with evidence in violation of
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT OVERRULED [MR. GASSER‘S] MOTION TO SUPPRESS.
{¶3} Mr. Gasser argues in his fourth assignment of error that the trial court erred in denying his motion to suppress. Specifically, he asserts that the canine sniff of the vehicle was outside the permissible scope of the stop.
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶4} On appeal, Mr. Gasser appears to assert that the decision of Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609 (2015), stands for the proposition that a canine sniff of a vehicle is outside the permissible scope of a traffic stop initiated solely for a minor traffic violation. He does not challenge the validity of the stop itself.
{¶5} We read nothing in Rodriguez that supports Mr. Gasser‘s contention. See State v. Jackson, 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 29 (“[W]e view Rodriguez not as a departure from precedent, but merely as an illustrative example of the type of [canine] sniff test that unjustifiably prolongs a traffic stop.“). Instead, Rodriguez reaffirmed the validity of the holding of Illinois v. Caballes, 543 U.S. 405 (2005). See Rodriguez at 1612. “In * * * Caballes * * * [the Supreme] Court held that a canine sniff conducted during a lawful traffic stop does not violate the Fourth Amendment‘s proscription of unreasonable seizures.” Rodriguez at 1612; see
{¶6} At the suppression hearing, Deputy David King of the Medina County Sheriff‘s Office testified that he was in the patrol division and also a canine handler at the time of the stop. At the time, Deputy King and his canine partner were certified through the Summit County Sheriff‘s Office.
{¶7} Deputy King testified that on May 30, 2014, while he was on duty, he received information that Mr. Gasser was possibly in a green Ford Taurus going to Cleveland to buy heroin. Deputy King was also provided with the license plate number of the vehicle. Around 11:00 p.m., Deputy King was in his patrol car with his canine partner observing traffic on I-71 southbound near the 211 mile marker when he noticed a green Taurus pass him. The vehicle
{¶8} Deputy King approached the driver‘s side, told the driver that he had observed her drive over the fog line and requested her license and proof of insurance. She was only able to supply her license. Mr. Gasser was seated in the backseat behind the driver. Deputy King also asked the passengers for identification; all of the three passengers except for Mr. Gasser complied.
{¶9} Deputy King then gave the drivers’ licenses to another deputy who had arrived on the scene and asked that deputy to run the information through the computers. Deputy King then retrieved his canine partner from his car and walked the dog around the vehicle. The dog alerted to the rear driver‘s side door, near where Mr. Gasser had been seated.
{¶10} Deputy King estimated that less than five minutes passed between the time he pulled the vehicle over and the time he began the canine sniff, which he estimated took approximately one minute. At that point, the other officer had not been able to complete the computer searches and a ticket or warning had not been issued. Deputy King testified that, based upon his training and experience, a traffic stop involving four occupants could not be completed in less than five minutes.
{¶12} Mr. Gasser‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT FOUND MR. GASSER GUILTY OF TAMPERING WITH EVIDENCE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT SUCH FINDINGS.
{¶13} Mr. Gasser argues in his first assignment of error that his conviction is based upon insufficient evidence. As Mr. Gasser has argued his assignments of error concerning sufficiency and weight together in his brief, it is somewhat difficult at times to discern which arguments he believes concern weight and which he believes concern sufficiency. See
{¶14} The issue of whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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.
{¶16} At around 9:00 p.m. on May 30, 2014, Agent John Stayrook with the Medina County Drug Task Force received information from an informant that Mr. Gasser would be going to, and coming back from, Cleveland that day. The informant also provided the make and model of the car as well as the license plate number. Agent Stayrook supplied that information to other law enforcement agencies in the area.
{¶18} After receiving the information from Agent Stayrook, Deputy King went out with his canine partner to patrol southbound I-71 traffic from a median strip dividing the northbound and southbound lanes of travel. Deputy King indicated that his marked patrol car was not hidden from view or concealed. He testified that his canine partner was trained to detect the odor of marijuana, heroin, ecstasy, cocaine, and methamphetamine.
{¶19} At around 11:00 p.m., Deputy King observed a vehicle matching the description drive by. As it passed him, he pulled out and followed it. He discovered that the license plate matched the one that was relayed to him. As the vehicle was exiting the highway, he saw the front and rear passenger side tires cross the fog lines. He also observed a lot of movement from the rear passengers in the vehicle. He became concerned that the passengers could have been reaching for a weapon or trying to conceal something. Deputy King stated that, based on his training and experience, it appeared to him that the occupants knew he was behind them. Deputy King did not notice anyone in the vehicle discard anything out the window.
{¶20} Mr. Wojdacz testified that the occupants of the vehicle saw the police car sitting in the median strip and noticed when the car pulled behind them. Mr. Wojdacz testified that he
{¶21} A little over a mile or so from the exit, Deputy King initiated a traffic stop. There were four people in the vehicle; the driver, a female, and three males. Mr. Gasser was seated in rear seat on the driver‘s side of the vehicle. Mr. Wojdacz was seated next to Mr. Gasser. Upon interacting with police, Mr. Gasser volunteered that he had just been picked up from work. He also told officers that he had been at work all day which he claimed was evidenced by the mulch all over his clothes. Deputy King testified that he did not observe any mulch on Mr. Gasser‘s clothes or shoes.
{¶22} While another deputy ran the occupants’ information, Deputy King walked his canine partner around the vehicle. The dog alerted on the rear driver‘s side door, near where Mr. Gasser was seated. The occupants were asked to exit the vehicle and the passengers were patted down.1 No contraband was found. Deputy King testified that narcotics are not always found in vehicle searches after a dog alerts. The drugs could be concealed on a person, hidden in a compartment in the vehicle, or the alert could have resulted from a drug, such as marijuana, being smoked in the car days before. The occupants of the vehicle were then transported to the Medina County Jail.
{¶23} Agent Michael Barnhardt with Medina County Drug Task Force assisted Agent Stayrook with interviewing the occupants of the vehicle. Prior to interviewing Mr. Gasser, the agents spoke with the other occupants. Agent Stayrook testified at trial that Mr. Wojdacz never told him that the occupants used the heroin in the car. Mr. Gasser stated that the agents did not have anything on him, they did not find anything on him, and he did not know why he was there.
{¶24} The agents then advised Mr. Gasser that he was possibly looking at a possession charge if he did have drugs on his person. Mr. Gasser indicated he did not have any. He then told the agents that when Deputy King was pulling him over, he threw “it” out the window. Mr. Wojdacz also testified that he told police that Mr. Gasser threw “it” out the window.
{¶25} The agents then advised Mr. Gasser that they were going to get a search warrant for an x-ray because they believed he still had drugs on his person. The interview was terminated and Agent Stayrook and Deputy King searched the area of the traffic stop for at least two hours and did not find any narcotics.
{¶26} A warrant was obtained and Mr. Gasser was transported to the local hospital. Deputy Scott Donato with the Medina County Sheriff‘s Office was dispatched to transport Mr. Gasser from the jail to the emergency room of the hospital for a court-ordered examination. Deputy Donato was the primary officer guarding Mr. Gasser while he was at the hospital. He was accompanied by Agent Stayrook. According to Deputy Donato, Mr. Gasser was “very vocal” about not having an examination and was very uncooperative with the medical staff. Mr. Gasser stated that he already “flushed it[,]” but would not specify what it was he flushed. Deputy Donato indicated that the jail cell where Mr. Gasser was held prior to being taken to the hospital did not have plumbing.
{¶28} Mr. Gasser was taken back to the jail and placed in a holding cell with a toilet and a sink. When Agent Stayrook arrived back at the jail, Mr. Gasser was screaming that he “flushed it three times[.]” Later, as the other three occupants were released from the jail, Agent Stayrook overheard Mr. Gasser yelling to them, screaming profanities, thanking them for snitching on him, and telling them that he would get even with them when he got out.
{¶29} Viewing the evidence in a light most favorable to the State, we conclude that sufficient evidence was presented from which a jury could reasonably conclude that Mr. Gasser tampered with evidence. Mr. Wojdacz testified that Mr. Gasser had bought heroin that evening and that the four of them had used it in the car. However, Mr. Wojdacz did not know whether any heroin remained after they snorted it. Notably, the drug dog alerted on the vehicle near where Mr. Gasser was seated providing additional evidence that drugs of some kind were in the car at some point in time. Mr. Gasser‘s later behavior at the hospital, which led to hospital staff not executing the search warrant, could allow a trier of fact to infer that some drugs remained on his person that he did not want the authorities to find.
{¶30} Certainly at the point in time that Mr. Gasser was taken to the jail the first time and informed that officers were seeking a search warrant of his person because they believed he still had drugs on his person, there was evidence from which a jury could reasonably conclude that Mr. Gasser knew an official investigation involving drugs was in progress. See
{¶31} In light of Mr. Gasser‘s limited argument on appeal, his first assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. GASSER‘S CONVICTION FOR RECEIVING STOLEN PROPERTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶33} When a defendant asserts that his conviction is against the manifest weight of the evidence:
an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶34} Mr. Gasser points out that many of his statements concerning the disposal of evidence were unlikely to be true. He notes that even though there was evidence that he told police he threw drugs out the window before the traffic stop, no drugs were found along the roadside, nor did Deputy King observe him toss anything out of the window. Additionally, he points out that the first time he told police that he flushed the drugs he did not have access to plumbing facilities. Finally, he argues that his statement that he “flushed it three times[]” does not make any sense as he was in a holding cell “in the presence of law enforcement.” We note that the jury could have nonetheless reasonably believed that Mr. Gasser disposed of evidence. For example, the jury could have concluded that, given Mr. Gasser had access to plumbing facilities in his second cell, he could have disposed of the drugs notwithstanding “the presence of law enforcement.” We remain mindful that “[t]he jury was able to observe the witnesses’ demeanor during [] testimony and use these observations to weigh the credibility and resolve the
{¶35} Mr. Gasser‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY ALLOWING THE STATE TO PRESENT IRRELEVANT AND PREJUDICIAL EVIDENCE DURING THE TRIAL.
{¶36} Mr. Gasser argues in his third assignment of error that the trial court erred and committed plain error in allowing the State to present irrelevant and prejudicial testimony at trial.
{¶37} “The trial court has broad discretion in the admission or exclusion of relevant evidence.” State v. Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 104. “In order to find an abuse of discretion, we must determine that the trial court‘s decision was unreasonable, arbitrary or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶39}
(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.
{¶40} Specifically, Mr. Gasser challenges the admission of the testimony of Agent Stayrook about “methods of concealment, descriptions of heroin, and the amount able to be purchased with sixty dollars[.]” During this line of questioning, Mr. Gasser‘s trial counsel only objected to two questions:
[Prosecutor:] Okay have you had experience in any of those capacities you‘ve described, in any of those positions you‘ve had in drug investigations where you‘ve encountered people that have secreted narcotics first I‘m going to say in their pants?
[Agent Stayrook:] Yes.
[Prosecutor:] Is that common?
[Agent Stayrook:] Yes
[Defense counsel]: Objection.
[Trial court]: Overruled.
The second objection occurred later in the line of inquiry:
[Prosecutor:] Okay. * * * [I]f you can, show me with your hands how much would a gram of heroin be.
[Defense counsel:] Objection.
[Trial court:] Basis?
[Defense counsel:] This has no relevance. There‘s been no testimony to the amount of heroin that was purchased, that there was even an amount of heroin purchased so this is all just speculation.
[Trial court:] Overruled.
{¶41} The prosecution then asked Agent Stayrook how big a gram of heroin would be as compared to common objects. Agent Stayrook indicated that it would be a little smaller than a BB.
{¶42} With respect to these two questions, we cannot say that the trial court abused its discretion in admitting this testimony. This testimony occurred at the end of trial, after the jury had already heard about Mr. Gasser‘s behavior at the hospital and had heard that Mr. Gasser claimed to have flushed drugs while he was in a cell with a toilet and a sink. Mr. Wojdacz had also already testified and acknowledged that it seemed correct that he told the police that he put in his share of $60 to buy heroin, that $60 would not buy much heroin, and that $100 would probably buy half a gram. In addition, defense counsel had also elicited testimony from Mr. Wojdacz that one gram of heroin was probably the most he ever had used at once. Agent Stayrook‘s testimony would thus support the State‘s theory of the case that Mr. Gasser secreted heroin because the testimony tended to demonstrate that it was possible to do so and that doing so was within the realm of Agent Stayrook‘s experience. In other words, if there was evidence that Mr. Gasser possessed an amount of heroin that was so great such that it could not be physically hidden on his person, the State‘s theory of the case would not be supportable.
{¶43} To the extent Mr. Gasser asserts that even if the testimony was relevant, it was inadmissible because it was confusing and unfairly prejudicial, we see no merit in that contention. Mr. Gasser‘s argument appears to be that this testimony was the State‘s way of attempting to improperly establish the existence of, and amount of, heroin. However, Mr.
{¶44} Nonetheless, even if the testimony was inadmissible, we cannot say that the admission of the testimony affected Mr. Gasser‘s substantial rights. See
{¶45} While Mr. Gasser maintains that he objected to the entire line of questioning, there is nothing in the record that supports that contention. Accordingly, the remainder of his argument will be reviewed for plain error. Pursuant to
{¶47} For reasons previously articulated above, we likewise cannot say that admission of the other challenged portions of Agent Stayrook‘s testimony amounted to plain error. Mr. Gasser has not demonstrated that the testimony was inadmissible, and thus has not demonstrated error, let alone plain, or obvious error. See Jackson at ¶ 51, quoting Rogers at ¶ 22. We also fail to see how admission of the foregoing testimony affected Mr. Gasser‘s substantial rights in light of the other testimony admitted at trial. See
{¶48} Mr. Gasser‘s third assignment of error is overruled.
III.
{¶49} Mr. Gasser‘s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JEREMY SAMUELS, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.