State v. MooreState v. Moore
Decided: March 31, 2021
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
LaRon C. A. Bankston, for appellant.
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ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Edward Moore, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to five years in prison after he was found guilty, following a bench trial, of trafficking in heroin, possession of heroin, trafficking in cocaine, and possession of cocaine.
{¶ 2} On February 14, 2018, appellant was indicted on one count of trafficking in heroin in violation of
{¶ 3} On November 19, 2018, appellant filed a motion to suppress, requesting that the trial court suppress evidence of illegal drugs that were discovered by law enforcement officers during their search of appellant‘s vehicle on February 28, 2017. In support of his request, appellant asserted that the “officers did not have the constitutionally requisite reasonable suspicion or probable cause to justify confronting, detaining, and arresting him for the instant offense.”
{¶ 4} The matter proceeded to a hearing on appellant‘s motion to suppress on November 27, 2018. Only one witness, detective Andrew Pennington of the Toledo Police Department, was called to testify at the hearing.
{¶ 6} After receiving the anonymous tip, Pennington and his partner, wearing plain clothes, traveled to the parking lot, parked their unmarked cruiser, and began observing the vehicles that were entering and exiting the lot. Over the course of several minutes, Pennington noticed that the vehicles had license plates and county stickers that suggested that the drivers did not live at that location. Moreover, Pennington observed that the drivers of these vehicles pulled into the lot and parked, but did not exit their vehicles. Pennington testified that, in his experience as a narcotics officer, such unusual activity “resonates into maybe somebody buying drugs or something illegal or contraband [of] that sort, which gives us red flags to pay attention to it.”
{¶ 7} While Pennington and his partner continued to observe the goings-on at the parking lot, they were addressed by the driver of a vehicle that was parked next to their cruiser. The driver rolled down his window and asked Pennington if he had “heard from the guy yet.” After Pennington responded in the negative, the driver indicated that he was going to call the unidentified individual. Thereafter, Pennington and his partner noticed a taxi pull into the parking lot, carrying a female passenger whom they knew to
{¶ 8} Eventually, Pennington observed a blue Chrysler 200 pull into the parking lot without using a turn signal.1 After pulling into the lot, the driver of the Chrysler backed into a parking spot near Pennington, prompting the occupants of the other vehicles in the lot to simultaneously exit their vehicles and approach. Pennington testified that several of the individuals had cash in their hand, and were “holding it out as if they were making a purchase of some sort.” At that point, Pennington and his partner decided to exit the vehicle and approach the Chrysler. Pennington explained his decision to intercede prior to observing any drug transactions as follows: “We decided that we needed to probably act now instead of waiting to see if a bunch of people buy drugs because we don‘t want people to buy drugs and overdose and possibly cause death.”
{¶ 9} As Pennington approached the Chrysler, he saw the driver, whom he identified at the hearing as appellant, and also observed an individual approach appellant and initiate a “hand-to-hand” transaction with appellant. Pennington elaborated that he observed the individual reach into the driver‘s side window of appellant‘s vehicle in an effort to exchange money for drugs. Pennington conceded on cross-examination that he
{¶ 10} Thereafter, Pennington ordered appellant out of his vehicle and separated appellant from the rest of the individuals that were standing in the parking lot at the time. Pennington subsequently learned that appellant did not possess a valid driver‘s license, prompting him to place appellant under arrest for operating his vehicle without a driver‘s license.
{¶ 11} After making the arrest, Pennington conducted an inventory search of appellant‘s vehicle prior to impounding it. During the search, Pennington “opened up the middle [console] and we noticed it – it was very – I‘m sorry I‘m trying to find the right word here. It moved; it was very loose as if it like, has been messed with or tinkered with.” Pennington then maneuvered the center console and “it popped off and there was narcotics found right in that middle [console‘s] location.” According to Pennington, the narcotics were individually packaged for sale. Pennington then seized the narcotics and waited on the tow truck to arrive. The narcotics were subsequently sent to the Toledo Police Forensic Laboratory for testing, which confirmed the presence of 14.55 grams of heroin and 2.13 grams of cocaine.2
{¶ 13} In response, appellant argued that the inventory search was not conducted according to Toledo Police Department policy and procedure. Further, appellant challenged the state‘s reliance upon appellant‘s violations for failure to use a turn signal and operating a vehicle without a driver‘s license as a justification for the inventory search, noting that appellant was not ultimately cited for either such violation.
{¶ 14} Upon hearing these arguments, the trial court took the matter under advisement. Subsequently, the trial court denied appellant‘s motion to suppress, and the matter proceeded to a bench trial on July 22, 2019.
{¶ 15} At the outset of the trial, the state entered a nolle prosequi as to the misdemeanor charge of illegal use or possession of drug paraphernalia. Thereafter, the state called Pennington to the stand as its first witness. In essence, Pennington recounted the same facts he had previously provided during his testimony at the hearing on appellant‘s motion to suppress. Additionally, Pennington testified that the parking lot
{¶ 16} As its second and final witness, the state called Pennington‘s partner, detective Paul Martorana, to the stand. Martorana largely repeated Pennington‘s testimony, also indicating that the REACH Academy was “within a thousand feet” of the parking lot at which appellant was arrested.
{¶ 17} At the conclusion of Martorana‘s testimony, the state rested. Appellant then moved the trial court for an acquittal under
{¶ 18} Appellant‘s sentencing hearing was held on August 6, 2019, at which time the trial court imposed concurrent prison sentences of five years for trafficking in heroin, four years for possession of heroin, 11 months for trafficking in cocaine, and 11 months for possession of cocaine. Additionally, the trial court ordered appellant to serve the five-year prison sentence imposed in this case consecutively to the sentence appellant was serving in case No. CR0201702256.
{¶ 19} Thereafter, appellant filed his timely notice of appeal.
B. Assignments of Error
{¶ 20} On appeal, appellant assigns the following errors for our review:
- I. The Trial Judge erred in denying Appellant‘s Motion to Suppress.
- II. The evidence presented at trial was insufficient to support a conviction.
- III. The finding of guilty for possession and trafficking [was] against the manifest weight of the evidence.
A. Motion to Suppress
{¶ 21} In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress. The parties do not dispute that appellant was validly stopped after Pennington and Martorana observed him commit a traffic violation. Further, the validity of appellant‘s arrest is not challenged, as it was supported by the officers’ discovery that appellant was operating his vehicle without a driver‘s license. Thus, the only issue here is whether the subsequent search of appellant‘s vehicle ran afoul of the Fourth Amendment‘s prohibition against warrantless searches.
{¶ 22} Our review of the trial court‘s denial of appellant‘s motion to suppress “presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court‘s factual findings if they are supported by competent credible evidence, and “independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 23} In this case, appellant argues that the trial court erred in denying his motion to suppress, because Pennington‘s search under the center console of his vehicle was unconstitutional without a search warrant. According to appellant, Pennington‘s purported inventory search of the vehicle was pretextual because the intent of the search was to find contraband, not to inventory the contents of the vehicle.
{¶ 25} In defending against a motion to suppress evidence that was recovered during a warrantless search, the state has the burden of showing that the search fits within one of the defined exceptions (which includes the automobile exception) to the Fourth Amendment‘s warrant requirement. Athens v. Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).
{¶ 26} Under the automobile exception, police may conduct a warrantless search of a vehicle if the officers have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 155-156, 45 S.Ct. 280, 69 L.Ed. 543 (1925). “Where police officers have probable cause to search an entire vehicle, they may
{¶ 27} Probable cause to search exists where “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. U.S., 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Whether probable cause existed depends on the objective factors articulated by the officer. In re L.S., 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, ¶ 16.
{¶ 28} At the suppression hearing held in this case, Pennington testified at length as to the observations he made prior to appellant‘s arrest. These observations included the anonymous tip he received, in which drug activity was reported at the parking lot, the presence of several occupied vehicles in the parking lot prior to appellant‘s arrival, including a taxi occupied by a known drug addict, and the conversation Pennington had with the driver of the vehicle parked next to Pennington in which the driver made comments consistent with his desire to purchase drugs. Pennington further observed all of these passengers exit their vehicle simultaneously upon appellant‘s arrival, approach appellant‘s vehicle with cash in hand, and form a line at appellant‘s window. One of
{¶ 29} All of these observations, when taken together and filtered through Pennington‘s experience in drug interdiction, were sufficient to warrant a person of reasonable prudence in the belief that appellant‘s vehicle contained contraband or evidence of a crime. Therefore, Pennington had the requisite probable cause to justify his warrantless search of appellant‘s vehicle under the automobile exception to the Fourth Amendment warrant requirement. Further, Pennington had probable cause to search the hidden compartment under the center console, as he testified that, in his experience as a police officer, contraband is oftentimes concealed in such compartments. See State v. Davenport, 2017-Ohio-688, 85 N.E.3d 443 (2d Dist.) (concluding that officer‘s testimony that, in his experience as a police officer, people routinely stored contraband in cup holders, gave the officer probable cause to search the loose cup holder compartment of a vehicle‘s center console under the automobile exception, after the officer detected a faint odor of burnt marijuana emanating from the vehicle).
{¶ 30} Accordingly, appellant‘s first assignment of error is not well-taken.
B. Sufficiency of the Evidence
{¶ 31} In his second assignment of error, appellant contends that the state‘s evidence was insufficient to support his convictions.
{¶ 32} In reviewing a record for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier
{¶ 33} Here, appellant was convicted of one count of trafficking in heroin in violation of
{¶ 34} Under
{¶ 35} As noted above, detectives Pennington and Martorana observed significant circumstantial evidence supporting a reasonable inference that appellant traveled to the parking lot on the morning of his arrest in order to sell drugs. His potential customers arrived ahead of him, waited in their vehicles in a residential parking lot where they had no other business, simultaneously exited their vehicle with wads of cash in hand, and approached appellant. Moreover, the officers observed one of these customers handing
{¶ 36} Next, appellant argues that the evidence was insufficient to establish that he trafficked in cocaine and heroin under
{¶ 37} In essence, appellant claims that trafficking was not established by the state, because Pennington and Martorana arrested appellant before any drug transactions actually occurred. According to appellant, “it is entirely reasonable that he was there as a bookie, or as a neighborhood money-man.” This argument is entirely speculative given the lack of any evidence to support it. Moreover, it fails to recognize that we are required to view the state‘s evidence in a light most favorable to the state. When viewed in this manner, the evidence recited above, along with Pennington‘s testimony that the seized drugs were individually packaged in quantities consistent with sale to end users, is sufficient to establish that appellant transported cocaine and heroin with the intention of
{¶ 38} Finally, appellant contends that the state failed to prove that the parking lot was within 1,000 feet of REACH Academy, as required in order to support the enhancement language contained in
{¶ 39} At trial, the state introduced evidence in the form of an aerial map and testimony from both Pennington and Martorana that established the fact that the parking lot where appellant was arrested was within 1,000 feet of the REACH Academy.5 Specifically, Pennington testified that the parking lot where appellant attempted to sell heroin and cocaine was “within a stone‘s throw” of the REACH Academy, and then clarified that the distance between the two points was less than 1,000 feet. Martorana likewise testified that the distance between the parking lot and the REACH Academy was less than 1,000 feet, and the aerial map introduced by the state without objection revealed a precise, straight-line distance between the two points of 802.59 feet.
{¶ 41} In Goins, a ravine separated the location of a controlled buy of crack cocaine from Goins at his residence from a nearby school. Id. at *2. The distance between the school and the edge of appellant‘s property was measured with a laser speed control, but the distance between Goins’ residence and the edge of his property, the spot from which the distance measurement was taken, was not measured. Id. A sketch of the area and the measurements were introduced, but the county sheriff admitted that the drawing was not to scale, and that neither the ravine nor the property line of the school were illustrated. Id. Taken together, the Fifth District concluded that “the evidence offered by the State was insufficient as a matter of law to sustain the State‘s charge that the offense was committed within 1000 feet of school premises.” Id.
{¶ 42} In his brief, appellant contends that Goins stands for the proposition that “a perfect, straight-line measurement is the incorrect technique to use in determining whether a drug offense is committed within one thousand feet of a school.” However, this is a mischaracterization of the holding in Goins.
{¶ 43} The salient fact in Goins that was relied upon by the court in arriving at its conclusion that the state‘s evidence was insufficient to establish the 1,000-foot distance
{¶ 44} Contrary to appellant‘s contention that a straight-line measurement is an inappropriate measure of distance under
{¶ 45} In approving of the use of such evidence to establish the 1,000-foot requirement, we acknowledged that “[s]everal appellate district have found that GIS mapping systems are an acceptable and reliable method for measuring distance.” Id. at ¶ 44, citing Dickerson v. Miller‘s TLC, Inc., 8th Dist. Cuyahoga No. 96995, 2012-Ohio-2493, ¶ 17 (“Google Maps, and other satellite imaging programs, are generally considered to provide accurate and reliable measurements” and expert testimony is not necessary to explain the system to most lay persons); State ex rel. O‘Brien v. Heimlich, 10th Dist. Franklin No. 08AP-521, 2009-Ohio-1550, ¶ 20; State v. Franklin, 164 Ohio
{¶ 46} Examining the record in this case in light of the foregoing authority, we find that the state produced sufficient documentary and testimonial evidence to establish that appellant‘s attempted drug sales occurred within 1,000 feet of the REACH Academy. Consequently, we reject appellant‘s sufficiency argument as to the felony enhancements under
{¶ 47} In sum, we find that the state‘s evidence was sufficient to establish that appellant possessed and trafficked cocaine and heroin on February 28, 2017, at a location that was in the vicinity of a school. Accordingly, appellant‘s second assignment of error is not well-taken.
C. Manifest Weight of the Evidence
{¶ 48} In his third assignment of error, appellant argues that his convictions were against the manifest weight of the evidence.
{¶ 49} When reviewing a manifest weight claim, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Our role is to determine “whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest
{¶ 50} In support of his contention that his convictions are against the manifest weight of the evidence introduced by the state at trial, appellant adopts the same arguments he raised, and we rejected, in his second assignment of error. Given the uncontested evidence introduced by the state at trial as to each of the elements of the offenses for which appellant was convicted, we do not find that this is the exceptional case in which the evidence weighs heavily against the convictions. Accordingly, appellant‘s convictions are not against the manifest weight of the evidence, and we find his third assignment of error not well-taken.
III. Conclusion
{¶ 51} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas is affirmed. The costs of this appeal are assessed to appellant under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, P.J.
JUDGE
Myron C. Duhart, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.