STATE OF OHIO v. BARRY O. MANSO
C.A. No. 26727
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
March 31, 2014
[Cite as State v. Manso, 2014-Ohio-1388.]
CARR, Judge.
COUNTY OF SUMMIT; CASE No. CR 2012-07-2088; APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CARR, Judge.
{1} Appellant, Barry Manso, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{2} On July 22, 2012, Manso was driving his pickup truck on Work Drive in Akron, Ohio when he was pulled over by police for committing a traffic violation. During the stop, police discovered crack cocaine on the driver‘s seat. Manso was subsequently indicted on one count of possession of cocaine, a felony of the fifth degree. Manso filed a motion to suppress the evidence discovered as a result of the traffic stop. After a hearing on October 25, 2012, the trial court denied the motion to suppress. The matter then proceeded to a jury trial where Manso was found guilty of the sole charge in the indictment. The trial court sentenced Manso to a twelve-month term of incarceration, which was suspended on the condition that he successfully
{3} On appeal, Manso raises six assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SUPPRESS.
{4} In his first assignment of error, Manso argues that the trial court erred in denying his motion to suppress. Manso has argued on appeal that there was no legitimate basis to stop his vehicle, and also that there was no justification to remove him from his vehicle. This Court disagrees.
{5} A motion to suppress evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8. “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.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 (4th Dist.1997).
{6} The
{7} In his motion to suppress, Manso argued that there was not a legitimate basis to stop his vehicle. While Manso generally asserted that there was no basis to “initially stop the vehicle in question and further detain him against his will,” Manso did not set forth any argument regarding the officer‘s decision to remove Manso from the vehicle. At the outset of the suppression hearing, defense counsel clarified that the suppression was about “nothing more than [the] reason to stop.” Defense counsel further explained that he was only interested in what happened prior to the traffic stop. During closing arguments, Manso argued for the first time that his removal from the vehicle was unlawful. The State attempted to respond, but the trial court intervened and indicated that it would deny the motion based on the sole issue before the court, namely whether the stop was lawful. As Manso did not properly raise the removal issue before the trial court, we will not address that issue in the first instance on appeal. State v. Smallwood, 9th Dist. Summit No. 24282, 2009-Ohio-1987, ¶ 11.
{8} At the suppression hearing, Officers Jason Belacic and Michael Miles testified that at approximately 2:00 a.m. on July 22, 2012, they were conducting surveillance on a known drug house on Peckham St. in Akron. After approximately five minutes, the officers noticed short term traffic activity at the house. When a man exited the house and entered his vehicle after just a two-minute stay, the officers followed the pickup truck as it drove eastbound on Peckham St. and then turned northbound onto Wildwood Ave. The officers followed the pickup truck for three blocks until it approached the stop sign at the intersection of Wildwood Ave. and Work Dr. Both Officer Belacic and Officer Miles testified that they observed the pickup truck
{9} When Manso testified at the suppression hearing, he was asked if he remembered running the stop sign. Manso answered, “I might not have made a complete stop.” When asked if he had a specific recollection of the traffic violation, Manso answered, “Yeah, yes, I do. I remember where I stopped or maybe [did] not stop[] good enough.” Manso then indicated that it might have been a “California stop[.]” On cross-examination, Manso again acknowledged that while he made an attempt to stop, he might not have made a complete stop. Manso explained that a “California stop” was akin to a “quick stop” where the driver does not make a proper stop.
{10} At the conclusion of the hearing, the trial court stated that it found the officers’ testimony to be credible. The trial court further found that Manso “basically admitted to the California stop” and that the trial court was familiar with that term. The trial court issued its journal entry denying the motion on November 20, 2012.
{11} In this case, both officers testified that they observed Manso fail to stop at a stop sign. Manso himself did not deny that he failed to make a complete stop, and admitted to making a “California stop.” Under these circumstances, the trial court correctly determined that the officers were permitted to initiate a stop based on the traffic violation.
{12} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT FOR POSSESSION OF COCAINE.
THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL‘S CRIMINAL RULE 29 MOTION.
{13} In his second and fourth assignments of error, Manso argues that the State did not present sufficient evidence to support his conviction for possession of cocaine. Specifically, Manso argues that the State failed to prove that he had knowledge of the cocaine found in his vehicle. This Court disagrees.
{14} Manso was convicted of possession of cocaine in violation of
{15}
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.
{16} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
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.
Id. at paragraph two of the syllabus.
{17} A review of the trial transcript reveals that during the early morning hours of July 22, 2012, Officers Jason Belacic and Michael Miles were conducting surveillance on a known drug house located at 927 Peckham St. in Akron. The officers observed a dark-colored pickup truck pull up to the house. The driver exited the pickup truck and entered the house from the side door. Two minutes later the same individual exited the house and jumped into his truck. Officer Belacic testified that this behavior was suspicious because the house was a known drug location, and his training and experience led him to believe that the short stop was indicative that a drug transaction had just occurred. The officers began to pursue the pickup truck in their cruiser. Both officers testified that after a short time, they observed the pickup truck roll a stop sign as it turned onto Work Dr. In light of the traffic violation, the officers initiated a traffic stop. The officers never lost sight of the pickup truck, driven by Manso, after it left the known drug house on Peckham St.
{18} During the traffic stop, Manso told Officer Belacic that he had been visiting a friend, “Mike.” Manso did not know Mike‘s last name, and he was not certain of the name of the street where Mike resided. When Manso exited the vehicle, Officer Miles testified that he saw “two individual rocks” of crack cocaine “sitting right in the middle of the [] driver‘s seat.” Officer Miles testified that while “two rocks” were discovered on the night of the incident, the crack had been “broken up” by the time it was presented as an exhibit at trial. During the inventory of Manso‘s vehicle, Officer Miles found a crack pipe above the driver‘s side visor.
{19} The evidence presented at trial was sufficient to sustain Manso‘s conviction for possession of cocaine in violation of
{20} Manso‘s second and fourth assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE VERDICT OF GUILTY FOR POSSESSION OF DRUGS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{21} In his third assignment of error, Manso argues that his conviction was against the manifest weight of the evidence. This Court disagrees.
{22} Unlike a sufficiency inquiry, a determination of whether a conviction is against the manifest weight of the evidence does not permit this Court to view the evidence in the light most favorable to the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. Summit No. 21654, 2004-Ohio-1422, ¶ 11. Rather,
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).
Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id.
{23} This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{24} In support of his assignment of error, Manso argues that the jury‘s finding that he had knowledge of the drugs in his vehicle was against the weight of the evidence given that such a small amount of cocaine was found on the driver‘s seat. Manso further contends that the officers’ testimony was not credible because it is extremely unlikely that they would have been able to see such a small amount of cocaine.
{25} As noted above, Officer Miles testified that he observed “two individual rocks” of crack cocaine on the driver‘s seat where Manso had been sitting. Officer Miles made this observation only minutes after the officers had observed Manso make a short stop at a known drug house. Officer Miles explained that while the cocaine had been “broken up” by the time it was introduced as an exhibit at trial, the cocaine “was in two rocks” when he saw it during the traffic stop. Officer Belacic testified that on the night of the stop, he saw the crack cocaine after Officer Miles removed it from the vehicle. Officer Belacic described the crack as “two white rocks” that were about the size of a pen tip. Robert Michael Velton also testified on behalf of the State. Mr. Velton is an assistant director for the Ohio Bureau of Criminal Identification and Investigation and also works part-time as a drug chemist for the Akron police department. Mr. Velton tested the substance recovered in Manso‘s vehicle. Mr. Velton described the substance as a “residue amount” and explained that the sample was “a small amount of white crumb-like substance.” Mr. Velton further testified that it was his opinion within a reasonable degree of scientific certainty that the substance recovered in the vehicle tested positive for cocaine.
{27} The third assignment of error is overruled.
ASSIGNMENT OF ERROR V
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE FROM HIS TRIAL COUNSEL.
{28} In his fifth assignment of error, Manso argues that trial counsel was ineffective. This Court disagrees.
{29} In order to prevail on a claim of ineffective assistance of counsel, Manso must show that “counsel‘s performance fell below an objective standard of reasonableness and that prejudice arose from counsel‘s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any
{30} In his merit brief, Manso alludes to the fact that trial counsel did not renew his
{31} Manso‘s primary argument in support of his assignment of error is that it is unclear whether defense counsel informed Manso of his
{32} The fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ENSURING THAT APPELLANT WAS AWARE OF HIS RIGHT AGAINST SELF-INCRIMINATION AND DETERMINING THAT HE WAS KNOWINGLY AND INTELLIGENTLY WAIVING HIS RIGHT TO REMAIN SILENT BY TESTIFYING.
{33} In his final assignment of error, Manso argues that the trial court abused its discretion by not ensuring that Manso was aware of his right to remain silent prior to testifying in his own defense at the suppression hearing and at trial. This Court disagrees.
{34} “Generally, the defendant‘s right to testify is regarded both as a fundamental and a personal right that is waivable only by an accused.” State v. Bey, 85 Ohio St.3d 487, 499 (1999). The Supreme Court of Ohio has held that “a trial judge is not required to conduct an inquiry with the defendant about the decision whether to testify.” Id. In reaching this conclusion, the Supreme Court noted that such an inquiry is unnecessary, and arguably could be
{35} Here, the trial court was not required to conduct an inquiry into whether Manso was aware of his right against self-incrimination. Moreover, there is nothing in the record to suggest that Manso was not aware of right against self-incrimination or that trial counsel neglected to advise him of his rights. It follows that Manso cannot prevail on his assignment of error.
{36} Manso‘s sixth assignment of error is overruled.
III.
{37} Manso‘s assignments of error are overruled. The judgment of the Summit 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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
DONNA J. CARR
FOR THE COURT
HENSAL, J. CONCURS.
BELFANCE, P. J. CONCURRING IN JUDGMENT ONLY.
{38} I concur in the majority‘s judgment.
{39} With respect to Mr. Manso‘s first assignment of error, I agree that his motion to suppress was properly denied. Notably, on appeal, Mr. Manso has not challenged the trial court‘s determination that he was precluded from arguing whether his removal from the vehicle was lawful because the issue was not properly before the trial court. Accordingly, I would overrule his argument pertaining to his alleged unlawful removal from the vehicle on that basis.
{40} In Mr. Manso‘s fourth assignment of error, he asserts that the trial court erred in failing to grant his Crim.R. 29 motion. When reviewing a Crim.R. 29 motion, this Court is limited to examining the sufficiency of the State‘s evidence. See State v. Nurse, 9th Dist. Summit No. 26363, 2013-Ohio-785, ¶ 4. I would conclude Mr. Manso forfeited this argument when his counsel failed to renew the Crim.R. 29 motion. See State v. Arnold, 9th Dist. Summit No. 24685, 2009-Ohio-6077, ¶ 5.1 However, because that forfeiture does not foreclose a
{41} In light of the foregoing, in order to demonstrate prejudice with respect to Mr. Manso‘s argument that his trial counsel was ineffective for failing to renew the
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.