STATE OF OHIO v. CAPRICE L. MASON
C.A. No. 27715
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 30, 2016
[Cite as State v. Mason, 2016-Ohio-7081.]
WHITMORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CR 2014 09 2761 (B)
WHITMORE, Judge.
{1} Defendant-Appellant, Caprice L. Mason, appeals from her conviction in the Summit County Court of Common Pleas. This Court affirms.
I
{2} In August and September 2014, Akron police were investigating Tommy Higgins and Mason1 for trafficking in drugs. Detective Kandy Shoaff (“Det. Shoaff“) testified that a confidential informant made multiple drug purchases at 321 Glenwood Ave., Akron, Ohio, which was the home of Higgins and Mason.
{3} The confidential informant told Det. Shoaff that Mason and Higgins would be transporting drugs on August 31st and that the drugs would most likely be hidden on a female in
{4} The police obtained a search warrant for 321 Glenwood Ave. The day the search warrant was to be executed, Det. Shoaff received information that Mason and Higgins were in Brimfield and would have drugs hidden in a car оr on one of the car‘s occupants. Det. Shoaff requested that the car be stopped. After observing a lane change violation, police stopped the car at the exit ramp of Route 8 and Glenwood Ave., approximately four blocks from the house.
{5} Higgins, Mason, and two other females were in the car. All four were transported to the house. During this time, Mason was handcuffed and transported in police cruiser. According to Det. Shoaff, Mason was “being detained” at this point in time.
{6} Det. Shoaff‘s supervisor authorized a strip search of Mason. Prior to the search, Det. Shoaff asked Mason if she had “anything [the detective] should know about” on her. After an initial denial, Mason indicated that she had drugs in her underwear. Mason then retrieved a bag containing multiple drugs from her buttocks area. In addition, $241 was discovered in her bra. Det. Shoaff placed Mason under arrest. The search of the home uncovered a digital scale in the kitchen.
{7} Mason was indicted for (1) possession of heroin, a fourth-degree felony; (2) trafficking in heroin, a fourth-degree felony; (3) aggravated trafficking in drugs (methamphetamine), a fourth-degree felony; (4) two counts of aggravated possession of drugs (methamphetamine and oxycodone), fifth-degree felonies; and (5) possessing criminal tools, a
{8} A change of plea hearing was held. At the beginning of the plea hearing, the State moved to amend some of the drug counts based on BCI testing results. The BCI results demonstrated that the amount of heroin was less than the amount charged making those offenses fifth-degree felonies. In addition, the methаmphetamine charges were amended to read methadone; the degree of those offenses was unchanged. The trial court granted the amendments “to reflect the accurate state of the evidence.” The State, then, provided a recitation of facts. Mason pled no contest, and the trial court found her guilty.
{9} The court merged the possession of heroin charge into the trafficking in heroin charge and one of the aggravated possession of drugs charges into the aggravated trafficking charge. The court ordered the $241 forfeited and imposed the following prison terms: 1 year for trafficking in heroin, 6 months for aggravated trafficking in drugs, 6 months for aggravated possession of drugs, and 1 year for possessing criminal tools. The court ordered the sentences to run concurrently to one another but consecutive to a two-year sentence Mason received for a community control violation in another case.
{10} Mason appeals raising four assignments of error for our review.
THE TRIAL [COURT] VIOLATED APPELLANT‘S DUE PROCESS RIGHTS WHEN IT SENTENCED APPELLANT FOR VIOLATING HER COMMUNITY CONTROL WHERE APPELLANT NEVER PLEAD GUILTY OR WAS FOUND GUILTY AFTER A HEARING TO VIOLATING THE TERMS AND CONDITIONS OF HER COMMUNITY CONTROL[.]
{11} In her first assignment of error, Mason argues that the trial court improperly revoked her community сontrol in case number CR 2013-12-3378(D). We are without jurisdiction to address the merits of this assignment of error as Mason has not appealed from the 2013 case.
{12} A notice of appeal shall designate the judgment or order appealed.
{13} Mason filed a notice of appeal in case number CR 2014-09-2671(B) and designated that she was appealing from the judgment entry therein dated February 12, 2015. She, subsequently, moved this Court to amend her notice of appeal to also include the order denying her motion to suppress filed on January 20, 2015 in the 2014 case. This Court granted her leave to file the amended notice of appeal.
{14} Neither her initial notice of appeal nor her amended notice of appeal designate any orders from the 2013 case. Consequently, the 2013 case is not before us in this appeal.
{15} As Mason‘s first assignment of error concerns an order in a case that she did not appeal, we are without jurisdiction to review it.
THE TRIAL [COURT] VOILATED [SIC] APPELLANT[‘]S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENT[S] WHEN IT RULED THAT THE STOP, DETENTION AND SEARCH OF THE VEHICLE OF WHICH APPELLANT WAS A PASSENGER, AND THE CONTEMPORANEOUS ARREST, DETENTION AND SEARCH OF APPELLANT WAS VALID, WHEN THERE WAS NO PROBABLE CASUE [SIC] FOR ARREST AND NEITHER THE VEHICLE OR ITS OCCUPANTS WERE PRESENT OR RECENTLY PRESENT AT 321 GLENWOOD AVE[.], SUMMIT COUNTY, OHIO WHICH RESIDENCE WAS THE SUBJECT OF A SEARCH WARRANT[.]
Assignment of Error Number Three
THE TRIAL COURT ERRED WHEN IT BASED ITS DECISION DENYING APPELLANT‘S MOTION TO SUPPRESS ON OHIO‘S STRIP SEARCH LAW WHERE APPELLANT‘S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VOILATED [SIC] [.]
{16} For ease of analysis, wе combine Mason‘s second and third assignments of error. In these assignments of error, Mason argues that the trial court erred in denying her motion to suppress. We disagree.
{17} On appeal from a no contest plea, a defendant may assert that the trial court prejudicially erred in ruling on a pretrial motion to suppress evidence.
Appellate review of a mоtion 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 supрorted by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusions 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.
{18} As a preliminary matter, we address the State‘s argument that Mason‘s suppression challenge, аnd therefore our review, is limited to whether she was illegally detained when she
{19} Mason first argues that she was improperly stopped and detained based on the search warrant for the home. She notes that police have limited authority to detain occupants of a hоme while a search warrant is executed, but individuals cannot be brought to the scene in order to be searched. Compare Michigan v. Summers, 452 U.S. 692 (1981) with Bailey v. United States, 133 S.Ct. 1031 (2013). She argues that the “traffic stop pursuant to the search warrant for 321 Glenwood was beyond the scope of the search warrant.” As noted above, Mason withdrew her challenge to the traffic stop below; therefore, this issue is not prоperly before us.
{20} Mason next argues that she was arrested without probable cause when she was detained and transported to her home. Encounters with police span a continuum from consensual encounters to investigatory stops to seizures tantamount to an arrest. State v. McLemore, 9th Dist. Lorain No. 13CA010435, 2014-Ohio-2116, ¶ 9. Consensual encounters generally do not
{21} In the instаnt matter, Mason was handcuffed and transported in a police cruiser from the site of the traffic stop to her home. There is no doubt that she was seized. The issue is whether that seizure was an investigatory stop or tantamount to an arrest.
{22} “In order to be termed an investigatory stop, the seizure must be temporary, lasting no longer than needed to effectuate the purpose of the stop, and the investigation must be conducted by the least intrusive means possible to allow the officer to verify or dispel the officer‘s suspicion in a short period of time.” Snyder at ¶ 13. Ordinarily, the line between an investigatory stop and a seizure amounting to an arrest is crossed when police forcibly remove a person from a place where she is entitlеd to be and transport her to the police station (or similar location) for investigatory purposes. McLemore at ¶ 21. Nonetheless, not every transport of an individual rises to the level of an arrest. See id. at ¶ 22, citing State v. Ha, 9th Dist. Medina No. 07CA0089-M, 2009-Ohio-1134, ¶ 15-20 and State v. Hillman, 9th Dist. Wayne Nos. 07CA0048 and 07CA0049, 2008-Ohio-3204, ¶ 27-30. In addition, handcuffing a suspect does not per se transform an investigatory stop into an arrest. Snyder at ¶ 13.
{24} In Hillman, there was “no arrest when [a] defendant [was] transported to [the] police station for [a] strip search because it was impracticable for the search to take place at [the] defendant‘s current location.” McLemore at ¶ 22, citing Hillman at ¶ 27-30. Similarly, the trial court in the present case noted, a “strip search could not be performed at the location of the traffic stop.” We agree. As in Hillman, a strip search could not be performed along a public roadway and it was reasonable to transport Mason to a nearby private location. See also
{26} Prior to searching Mason, Det. Shoaff asked her if she had anything on her that the detective should be concerned about for her safety. After an initial denial, Mason reported that “she had something on her that she would like to tell [Det. Shoaff] about.” She told the detective that she had a “baggie” and then retrieved a bag containing drugs from the buttocks area of her underwear. Thus, she was not subject to a search for the drugs.
{27} Mason‘s second and third assignments of error are overruled.
Assignment of Error Number Four
THE TRIAL COURT ERRED IN FINDING THE DEFENDANT-APPELLANT GUILTY UPON DEFENDANT-APPELLANT‘S PLEA OF NO CONTEST IN THAT THE RECITATION OF FACTS PRESENTED BY THE STATE FAILED TO ESTABLISH A PRIMA FACIA CASE OF THE ALLEGED CHARGES OR THE LOCATION WHERE THE ALLEGED OFFENSES OCCURRED[.]
{28} In her fourth assignment of error, Mason argues that the trial court erred in finding her guilty following her no contest plea. We disagree.
{29} Initially, we note that Mason, in part, challenges the sufficiency of the evidence under this assignment of error. She identifies the standard of review for a sufficiency of the evidence challenge. In addition, she contends that “[n]o evidence was presented” as to various matters. By pleading no contest, Mason waived any challenge to the sufficiency of the evidence. See State v. Polansky, 9th Dist. Medina No. 13CA0012-M, 2014-Ohio-2571, ¶ 7. Thus, to the
{30} “Generally speaking, a no contest plea waives all nonjurisdictional defects to a felony conviction and leaves open for review only the sufficiency of the indictment.” State v. Cianci, 9th Dist. Lorain No. 3947, 1986 WL 6675, *2 (June 11, 1986). “According to
{31} In the present matter, each count in the indictment tracked the statutory language for the offense charged. At the beginning of the plea hearing, the State requested that the indictment be amended based on BCI testing results. More particularly, the amount of heroin was less than originally charged and the substance originally charged as methamphetamine was actually mеthadone. The trial court granted the amendment “to reflect the accurate state of the evidence.” While Mason notes in her brief that she objected to the amendment below, she does not argue on appeal that the amendment was improperly granted.
{32} In its recitation of facts, the State detailed that police obtained a search wаrrant for 321 Glenwood Ave., a home belonging to Mason and Higgins. The day the search, a car driven by Higgins was stopped a few blocks from the home. The car‘s four occupants, including
{33} The State continued that another passenger in the car that day observed multiple drug transactions at the home. The State elaborated that the passenger would testify that, within 18 to 24 hours before the arrest, she had witnessed six or seven drug transactions at the home. The passenger had observed both Mason and Higgins engaging in drug transactions, handling the drugs or taking the money. In addition, she had observed both Mason and Higgins weigh the drugs on the digital scale that was found in the kitchen.
{34} Mason contends that the “statements of facts negate the elements of the offenses charged.” Mason notes that thе BCI report “revealed the drugs were not in fact what they were initially alleged.” But, she also acknowledges that the State was permitted to amend the indictment on the day of the plea. Mason pled no contest after the indictment was amended. Therefore, she pled to, and admitted the facts in, the indictment as amended to reflect the BCI results. Moreover, Masоn does not directly state which elements, or even which counts, were negated by the State‘s recitation of the facts. We will not make an argument on her behalf. See
{35} Mason‘s fourth assignment of error is overruled.
{36} We lack jurisdiction to address Mason‘s first assignment of error. Her second, third, and fourth 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
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.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
AVIVA L. WILCHER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.