STATE OF OHIO v. ANTONIO OLIVER
No. 106305
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 13, 2018
2018-Ohio-3667
KATHLEEN ANN KEOUGH, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 13, 2018
Erin E. Hanson
The Rockefeller Building, Suite 1300
614 W. Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Kelly Needham
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Antonio Oliver, appeals his convictions. For the reasons that follow, we find no merit to the appeal.
{2} In April 2017, Oliver was named in a six-count indictment charging him with aggravated burglary, abduction, drug possession, resisting arrest, and two counts of assault. The case was tried before a jury, and the following evidence was presented.
{3} In the early morning hours of March 25, 2017, Officers Alex Rekhter and Josh Bayer of the Mayfield Heights police department responded to the Staybridge Suites to assist with a drunken mаle asleep outside his hotel room. The officers helped the male into his hotel room and left the premises. Approximately two and one-half hours later, they received another call that two men were fighting in the Staybridge Suites lobby. The events that precipitated this second call started at the side entrance to the hotel.
{4} The jury viewed surveillance video from the Staybridge Suites that showed a woman, identified as Susan Connors (“Susan“), with her two dogs opening the door for a male, later identified as Oliver, who was standing outside a side-entrance to the hotel. The video shows Susan abruptly backing away аnd retreating as Oliver approached her. According to Susan, Oliver chased her down the hallway and she screamed for her sister-in-law, Sandra McLaughlin-Tablers (“Sandra“), to let her into their hotel room.
{5} Sandra testified that she and her husband, James Tabler (“James“) (collectively “the Tablers“), were getting ready for breakfast when she heard Susan screaming. Sandra looked outside into the hallway and saw a large man chasing Susan
{6} However, James exited the bedroom, and he and Oliver started to struggle. According to Sandra, she and Susan were trying to push Oliver out of their hotel room, but also trying to free James from Oliver‘s grip. She stated that when they reached the main hallway, she began screaming for “help,” telling Oliver to “let go,” and asking people to “help us; he‘s on drugs.” According to Sandra, no one helped thеm until they reached the main lobby, where an employee assisted them. Sandra testified that she and James both received bruising to their arms, and her arm was bleeding. She stated that she was “scared to death” for her safety; she thought “they were all going to die” when Oliver forced himself into their hotel room. Susan‘s testimony was similar to and corroborated Sandra‘s testimony.
{7} Ivan Mitchell, an employee at Staybridge Suites, testified that he intervened and assisted the Tablers because they were calling for help. He stated that he saw Oliver
{8} The jury also viewed surveillance video from the main lobby area that captured Oliver holding onto James‘s arm and sweatshirt. Sandra and Ivan could be seen pulling at Oliver and hitting his arm, trying to get him to release James. Susan was on her cell phone, calling the police.
{9} Officer Robert Lord was the first to respond to the call and found Oliver in the hotel lobby. Oliver refused to comply with commands to place his hands on the wall; instead he turned and took steps toward the officer. According to Officer Lord, Oliver was “likely on drugs” because he was frothing at the mouth, and his eyes were not “normal” — “he looked at me, but past me.” After Oliver failed to comply with several warnings, Officer Lord deployed his taser twice. Officers Rekhter and Bayer arrived following the taser deployment and assisted Officer Lord with Oliver, who they discovered was the male they previously encountered that morning.
{10} The officers testified that they were able to secure one handcuff on Oliver‘s wrist, but when the taser cycle ended, Oliver grabbed the other loose handcuff and would not let it go. According to the officers, he became increasingly aggressive and repeatedly refused rеquests to place his hands behind his back. The officers had to initiate the taser seven times in total to finally secure Oliver. The jury watched video and listened to audio taken from several body cameras of the responding officers.
{12} Oliver testified in his own defense. He testified that he was staying at the Staybridge Suites to “cool off” from a disagreement between him and his wife. He stated that he was drinking alcohol and called a friend to have a drink with him. When his friend arrived, Oliver went to the friend‘s car and smoked PCP. He stated that he does not do drugs often, but did so on this occasion. Oliver stated that he did not remember much of what happened after he smoked PCP. He recalled wanting to get back to his hotel room and vaguely remembered the police officers helping him. He did not recall the interaction and altercation with the Tablers and Susan. When Oliver was shown the surveillance video, he admitted that he was the person with Susan in the hallway, and the one holding onto James in the lobby. He stated that his actions were out of character, but admitted he should be held responsible for them.
{13} The jury found Oliver not guilty of aggravated burglary, but guilty of the lesser included offense of burglary; not guilty of abduction, but guilty of the lesser included offense of unlawful restraint; and not guilty of both counts of assault, but guilty of drug possession and resisting arrest as charged in the indictment. The trial court imposed a total jail sentence of six months.
I. Confrontation
{15} Prior to trial, the state filed a motion requesting that the Tablers be permitted to testify via Skype, a live video broadcasting link, because they lived out of state and James was still recovering from his liver transplant and receiving dialysis. The state requested that Sandra also be allowed to testify via Skype because she was caring for James. Oliver objected, contending that allowing the victims to testify remotely violated his right to confrontation, and that the state failed to demonstrate exceptional circumstances existed to allow for video testimony. Following a hearing, the trial court issued a written decision, finding that allowing the alleged victims to testify via video was justified because they lived out of state, and one of the witnesses was on dialysis, making travel difficult. The court also concluded that the other elements of confrontation would be satisfied based on its intention to swear in the witnesses, who would be subject to cross-examination, and the jury and defendant would have the ability to observe the witnesses’ demeanor. Ultimately, however, only Sandra testified at trial; James did not.
{16} Days before trial was scheduled to commence, the state filed another motion requesting that Susan be permitted to testify via live broadcast because she lived out of state and had bеen in Ohio previously for six months caring for James. The prosecutor also maintained that Susan had a job, suggesting an added difficulty. The court did not conduct a hearing or rule on this motion prior to trial. On the day of trial and immediately prior to Susan testifying, the trial court considered the motion and Oliver‘s
{17} In his first assignment of error, Oliver contends that the trial court erred by allowing these two witnesses to testify via live video link, thus depriving him of a meaningful chance to confront the witnesses against him.
{18} The Sixth Amendment to the United States Constitution provides, “[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.” The Confrontation Clause of the Sixth Amendment is made applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 59, 752 N.E.2d 904 (2001), fn. 4. Consequently, this constitutional right applies to both federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.
{19} However, the United States Supreme Court has held that although “the Confrontation Clause reflects a preference for face-to-face confrontation at trial,” that “preference must occasionally give way to considerations of public policy and the
In holding that the right to confrontation is not absolute, the court detailеd a number of important reasons for that right, including (1) the giving of testimony under oath, (2) the opportunity for cross-examination, (3) the ability of the fact finder to observe demeanor evidence, and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant.
State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14, citing Craig at 845-846. “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig at 845.
{20} In Marcinick, this court utilized the two-part analysis from Craig to determine whether the admission of testimony via teleconference at trial violated the defendant‘s right of confrontation. This court held:
To qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation — oath, cross-examination, and observation of the witness‘s demeanor.
Marcinick at ¶ 18, citing Harrell v. State, 709 So.2d 1364, 1369 (Fla.App.1998), citing Craig at 849-851. Applying the Craig analysis, this court found in Marcinick that the teleconferencing testimony of the social worker witness who was out of the country, did not violate the defendant‘s right to confrontation because the state demonstrated that the witness was unavailable, established the admissibility of the testimony, and the twо-way video link preserved the reliability elements of confrontation. Id. at ¶ 22.
{22} Regarding Sandra‘s testimony, the trial court conducted a hearing prior to trial. The record demonstrates that Sandra lived in Louisville, Kentucky and was caring for James, who was currently undergoing diаlysis following a liver transplant. James was unable to travel to Ohio to testify. Therefore, under the fact-specific circumstances, Sandra was unavailable to testify in person. Moreover, the testimony of Sandra was admissible and relevant because she was an eyewitness and a named victim in one of the assault charges. Further, the Skype procedure satisfied the other elements of confrontation. The record demonstrates that Sandra was under oath when she testified, subject to cross-examination, and the jury and Oliver were able to observe her demeanor. Accordingly, the circumstancеs in this case satisfy the Craig elements.
{23} Oliver contends, however, that the video-link system often interrupted, negating the reliability elements of confrontation. The trial transcript reveals that on three occasions, the video-link-system “broke up.” During those instances, Oliver did not object or note any issues during the testimony. In fact, Oliver did not conduct any cross-examination of Sandra despite these video-link disruptions. Moreover, during these moments of disruption, the prosecutor acknowledged that the video-link broadcast
{24} The trial court erred, however, in allowing Susan to testify via Skype because, unlike Sandra, Susan was not unavailable. Although the state filed a pretrial motion for Susan to testify, the trial court did not conduct a hearing or rule on the motion prior to trial. The basis for the request to testify remotely was because Susan lived in Jacksonville, Florida and had previously been in Ohio for six months caring for her brother, James. Prior to Susan testifying, the state also stated that Susan had a job; suggesting that she was unavailable. However, during her testimony, Susan testified that she was not employed and had been in Cleveland previously for only five months. Based on the case-specific circumstances, Susan was not unavailable to testify in person but rather inconvenienced. We find that this reasoning is an insufficient justification. Although the reliability elements of confrontation were satisfied — she was under oath, subject to cross-examination, and observable — the unavailability threshold was not met.
{25} Nevertheless, the trial court‘s error is harmless because allowing Susan to testify via Skype was not prejudicial. Pursuant to
{26} A review of the rеcord demonstrates that Susan‘s testimony was cumulative to that of Sandra‘s. Both Sandra and Susan testified about the circumstances surrounding Oliver‘s actions in gaining access to their hotel room and the physical altercation that ensued inside the hotel room. Moreover, the jury viewed surveillance video showing the initial interactions between Oliver and Susan. Based on the testimony given by Sandra, the trial court‘s error in allowing Susan to testify remotely was harmless beyond a reasonable doubt. Sandra‘s testimony alone overwhelmingly supported Oliver‘s convictions for burglary and unlawful restraint.
{27} Accordingly, Oliver‘s first assignment of error is overruled.
II. Effective Assistance of Counsel — Motion to Suppress
{28} To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel‘s performance fell below an objective standard of reasonable representation and (2) he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s
{29} Trial counsel‘s “failure to file a suppression motion does not constitute per se ineffective assistance of counsel” since “[f]iling a motion to suppress is not without risks.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Madrigal at 389. Courts must look to the facts of the case to determine whether counsel made a tactical decision not to file such a motion. Madrigal at id. Further, counsel is not ineffective for failing to file a motion to suppress if there was no reasonable probability of success or there was no prejudice to the defendant. State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001).
{30} In this case, Oliver contends in his second assignment of error, that his counsel was ineffective for not filing a motion to suppress the drugs found during the warrantless search of his hotel room.
{31} “[T]he Fourth Amendment protection against unreasonable searches and seizures is not limited to one‘s home, but also extends to such places as hotel or motel rooms.” United States v. Bautista, 362 F.3d 584, 589, (9th Cir.2004), quoting United States v. Cormier, 220 F.3d 1103, 1108-1109 (9th Cir.2000). A registered hotel guest
{32} However, once the hotel guest voluntarily abandons the room, his status is lawfully terminated, or the rental period has expired, the guest no longer has a legitimate expectation of privacy in the hotel room. Bautista at 589, citing United States v. Haddad, 558 F.2d 968, 975 (9th Cir.1977); State v. Miller, 77 Ohio App.3d 305, 602 N.E.2d 296 (8th Dist.1991). Whether a person‘s status as a guеst has been terminated or a person has been evicted, is determined by whether the hotel staff took affirmative steps to repossess the room. Wright at ¶ 9; State v. Nickelson, 7th Dist. Belmont No. 16 BE 0039, 2017-Ohio-7503. Once the guest is evicted or his status has been lawfully terminated, a hotel employee can consent to law enforcement‘s entry into a hotel room because the guest no longer has a reasonable expectation of privacy. Wright at id. However, law enforcement must also have actual or implied knowledge that the guest has been evicted from the hotel room before entering without a warrant. Wright at id., citing Miller at 312-313, and United States v. Bass, 41 Fed.Appx.735 (6th Cir.2002).
{33} Accordingly, a hotel guest who has not voluntarily abandoned his room or exceeded his rental period maintains a reasonable expectation of privacy unless the hotel staff takes affirmative steps to lawfully terminate his status as a guest or evicts him from his room. Additionally, law enforcement wishing to conduct a warrantless search of a hotel guest‘s room must have actual or implied knowledge that the guest has been evicted from his hotel room.
{35} In Wright, this court upheld the trial court‘s decision suppressing evidence discovered in Wright‘s hotel room following a warrantless search. Wright was arrested in the hotel lobby after police were called because he was disrupting other hotel guests and vandalizing property in the common area of the hotel. When the police arrived, they discovered Wright naked, sweating, and foaming at the mouth; Wright admittеd that had taken the drug PCP. Following Wright‘s removal from the hotel, the hotel staff asked police to check Wright‘s room for damages, and an employee opened the room for the officer. Once inside, an officer discovered drugs in an open dresser drawer. Wright moved to suppress the drugs because the officers conducted a warrantless search.
{36} This court held that absent evidence of any affirmative acts by the hotel staff to divest the defendant of his status as an occupant and guest of the hotel, the defendant maintained a reasonable expectation of privacy in his hotel room. Wright at ¶ 11-12. Accordingly, the warrantless search was unlawful. Id.
{38} Unlike in Wright, the appeal in this case follows a jury trial. It is difficult for a defendant to establish in hindsight on the basis of evidence contained in a trial transcript, that a suppression motion would have been granted. State v. Morrison, 4th Dist. Highland No. 03CA13, 2004-Ohio-5724. “[T]he record developed at trial is generally inadequate to determine the validity of the suppression motion” because the issues at triаl are different than the issues at a suppression hearing. State v. Culbertson, 5th Dist. Stark No. 2000CA00129, 2000 Ohio App. LEXIS 5257, *13-14 (Nov. 13, 2000); State v. Hohvart, 7th Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349 (insufficient evidence presented at trial to determine whether a motion to suppress would have been successful); see also State v. Abass, 5th Dist. Stark No. 2016CA00200, 2017-Ohio-7034; State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109; State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482.
{39} Following the close of the state‘s case and prior to making a
{40} In this case, the record is undeveloped to determine if a suppression motion would have likely been granted. The issue at trial was whether the state presented sufficient evidence to prove that Oliver committed the offenses as indicted; not whether the search of Oliver‘s hotel room was lawful. Therefore, the state did not need to set forth any testimony or evidence from the hotel manager regarding Oliver‘s status as a hotel guest to satisfy its burden of proving its case again Oliver. Acсordingly, we cannot say that the motion, if filed, would have likely been granted because the state presumably would have elicited testimony from the hotel manager about Oliver‘s status as a hotel guest to justify the warrantless search.
{41} Nevertheless, based on the record before us, we also find that no reasonable probability exists that a motion to suppress would likely have been granted. Officer
{42} Finally, even if the court granted the motion, sufficient evidence was presented to support Oliver‘s drug possession charge. As discussed later in our analysis of the third assignment of error, Oliver admitted to using PCP. This admission alone is sufficient to prove drug possession pursuant to
{43} Accordingly, we cannot say that counsel was ineffective for failing to file a motion to suppress. The assignment of error is overruled.
III. Sufficiency of the Evidence
{44} In his third assignment of error, Oliver contends that the trial court erred in denying his
{46} Oliver first contends that the trial court erred in denying his
{48} Pursuant to
{49} Oliver was also convicted of drug possession in violation of
{50} Additionally, when questioned about the drugs in his hotel room, Oliver stated that he did not recall bringing the drugs into his room but that they were not there when he initially arrived at the hotel and he did not remember anyone else bringing the drugs into his room. Accordingly, there was sufficient evidence that the drugs discovered in his hotel room belonged to him.
{51} Pursuant to
{52} Oliver‘s third assignment of error is overruled.
{53} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden at ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility оf witnesses and determines whether in resolving conflicts in the evidence, the jury 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. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{54} In this case, the jury‘s verdict demonstrates that it rendered a decision based on the evidence presented. The jury was able to view the video surveillance and compare that to the testimony given at trial. They wеre able to witness the initial interaction between Oliver and Susan, and then observe Oliver holding onto James in the hotel lobby. Oliver admitted that he used PCP with his friend. Additionally, the body camera videos showed the interaction between Oliver and the officers, including the officers’ repeated commands to stop resisting. This case is not the exceptional case in which the evidence weighs heavily against the convictions. Accordingly, Oliver‘s final assignment of error is overruled.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this аppeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY