State v. PerryState v. Perry
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
J. Charles Ruiz-Bueno, Charles Ruiz-Bueno Co., L.P.A., 36130 Ridge Road, Willoughby, OH 44094 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Kyle J. Perry, appeals the judgments of the Lake County Court of Common Pleas denying his motions to suppress evidence from two alleged unconstitutional automobile searches, and denying his motion in limine seeking to limit testimony regarding his cellular-telephone location via triangulation. Appellant also appeals the judgment of conviction after trial by jury on the basis of insufficient evidence and ineffective assistance of counsel. Additionally, appellant appeals the entry of sentence, arguing the trial court erred in failing to merge certain offenses for sentencing
{¶2} Appellant was implicated in a series of burglaries after stolen items were recovered from automobiles during two respective warrantless searches. As the investigation unfolded, additional incriminating items were later recovered in appellant‘s temporary residence at the Mosley Select Suites Hotel after a search warrant for the premises was executed.
{¶3} A 14-count indictment was filed against appellant, charging him with the following: five counts of burglary, second-degree felonies in violation of
{¶4} Soon thereafter, appellant filed a multitude of pre-trial motions. First, appellant filed multiple motions to suppress, arguing that the evidence obtained during the automobile searches on May 22, 2010, and July 20, 2010, should have been suppressed.
{¶5} During the hearing on the motions, Officer Steven Shum of the Wickliffe Police Department testified concerning the automobile search on May 22, 2010. Officer Shum explained that he initiated a traffic stop around 1:00 a.m. of an automobile which
{¶6} Based on his suspicions, which arose from the marijuana residue, the strong odor, Ivery‘s admission, the missing rear license plate, the removed dome light, and the dark clothing, Officer Shum proceeded to open and search the trunk of the automobile, suspecting that more criminal activity was afoot. In the trunk, Officer Shum did not find drugs but did find “burglary tools,” including pry bars, a sledge hammer, a ball-joint tool, a duffle bag, a ski mask, ear warmers, and another set of gloves. The license plate and several screws were also located in the truck, casting doubt on
{¶7} Officer Isaac Petric of the Wickliffe Police Department testified to the second stop on July 20, 2010, at 2:40 a.m. Officer Petric testified he saw Ivery driving a vehicle. Officer Petric had a familiarity with Ivery due to his past dealings with law enforcement. Officer Petric ran Ivery‘s name through dispatch, and it was discovered that Ivery‘s license was suspended. As a result, Officer Petric initiated a stop. Ivery, driving appellant‘s vehicle, pulled into the Mosley Select Suites, where appellant happened tо be staying. Ivery pulled into an aisle of the parking lot, but not into a parking space. Soon after the stop, Officer Petric confirmed through dispatch that Ivery had a warrant out for his arrest. After Ivery was placed under arrest, the decision to impound the vehicle was made. Officer Shum arrived on scene and executed an inventory search of the automobile, finding a plastic bag containing jewelry. At some point, appellant, apparently recognizing his car in the front parking lot, exited the hotel from the lobby area and inquired into the stop and the status of his automobile. Officer Petric informed him that his car was being towed and the driver had been arrested.
{¶8} Upon consideration, the trial court denied appellant‘s motions to suppress.
{¶10} Appellant now appeals and asserts seven assignments of error, which are addressed out of numerical order.
{¶11} Appellant‘s second assignment of error states:
{¶12} “The trial court committed prejudicial error by denying Defendant-Appellant‘s Motion to Suppress regarding the search of the vehicle‘s trunk on May 22, 2010.”
{¶13} An appellate court‘s review of a decision on a motion to suppress involves issues of both law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. During a suppression hearing, the trial court acts as the trier of fact and sits in the best position to weigh the evidence and evaluate the credibility of the witnesses. Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, an appellate court is required to uphold the trial court‘s findings of fact provided they are supported by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). Once an appellate court determines if the trial court‘s factual findings are supported, the court must then engage in a de novo review of the trial court‘s application of the law to those facts. State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-2796, ¶13, citing State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶14} Appellant first argues that the evidence obtained during the May 22, 2010 search was improper. Appellant does not contest the initial stop. Appellant additionally does not contest the continued seizure or the search of the passenger compartment of
{¶15} Proceeding to the facts and law upon which the trial court relied, there are problematic elements. The most significant is the extension of the search from the interior of the car to the trunk. It is well established that police action of stopping an automobile and detaining its occupant is a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979), paragraph two of the syllabus. Thus, an automobile stop is “subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren v. United States, 517 U.S. 806, 810 (1996). However, a mere conclusion that an officer had probable cause to conduct a reasonable search does not end an inquiry into the constitutionality of a warrantless search. A determination still must be made as to whether there existed an exception to the warrant requirement of the Fourth Amendment in order to uphold the warrantless search. See State v. Moore, 90 Ohio St.3d 47, 51 (2000). (“Having concluded that Sergeant Greene had probable cause to conduct a reasonable search, we must determine whether there existed an exception to the warrant requirement of the Fourth Amendment in order for Sergeant Greene to have searched defendant‘s person and his vehicle.“)
{¶16} It is well founded that searches conducted without a warrant are per se unreasonable, subject only to certain “carefully drawn” and limited exceptions. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, ¶10, citing Jones v. United States, 357 U.S. 493, 499 (1958) and Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (1971).
{¶17} The ‘automobile exception’ to the Fourth Amendment‘s warrant requirement established in Carroll v. United States, 267 U.S. 132, applies to searches of vehicles that are supported by probable cause to believe that the vehicle contains contraband. In this class of cases, a search is not unreasonable if based on objective facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. Id. at paragraph (a) of the syllabus.
{¶18} This exception rests on the impracticability of requiring a warrant for an automobile—the mobility of which is readily apparent. The inherent mobility of an automobile creates a certain exigency: there is a danger that the contraband will be removed, lost, or destroyed if a warrant is not immediately obtained. State v. Moore, 90 Ohio St.3d at 52, citing Cupp v. Murphy, 412 U.S. 291, 294-296 (1973). As explained by the United States Supreme Court: “[T]he car is movable, the occupants are alerted, and the car‘s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.” Chambers v. Maroney, 399 U.S. 42, 51 (1970). Thus, under this exception, there is no need to justify the search by demonstrating a separate exigency. Maryland v. Dyson, 527 U.S. 465, 466 (1999).
{¶19} However, the Ohio Supreme Court did not extend the search of a vehicle to the trunk in Moore. Instead, as appellant correctly notes, probable cause to search
{¶20} As recently explained by the Second Appellate District:
{¶21} The Fourth Amendment limits searches to places where evidence of criminal activity is likely to be found. Farris stands for the proposition that the odor of burnt marijuana in a vehicle‘s passenger compartment, standing alone, doesn‘t present a likelihood that the vehicle‘s trunk contains marijuana. The point of distinction is whether the character or nature of drugs found ‘in plain view’ (or smell) in the passenger compartment presents a likelihood that the vehicle‘s trunk contains drugs or other contraband, such that a search of the trunk is justified by the automobile exception to the warrant requirement. State v. Griffith, 2d Dist. No. 24275, 2011-Ohio-4476, ¶20.
{¶23} We find the evidence and circumstances detailed above afforded Officer Shum probable cause to believe that, based on the totality of the circumstances, appellant and Ivery were actively engaged in criminal activity and that additional evidence of criminal activity would be discovered in the trunk. The trial court noted the fact that Officer Shum‘s observations were in no small part due to his 20-year tenure as an officer and his experience in dealing with marijuana. Therefore, having determined that probable cause existed to search the vehicle, as the Ohio Supreme Court noted in
{¶24} It may be true, as appellant argues, that had Officer Shum elected to use the drug-sniffing dog, the dog would not have indicated the presence of drugs in the trunk. However, the failure to use an on-scene drug-sniffing dog does not negate the determination of probable cause based on other circumstances. Here, after the search of the cabin, probable cause was already established based on other factors, including suspicions of criminal activity not related to the odor of marijuana.
{¶25} Appellant additionally argues there is evidence of a pretextual intent to search the trunk. First, appellant argues that Officer Shum made the decision to search the trunk at the moment of the stop, indicating a pretext. In his testimony, Officer Shum indicated he intended to search the entire vehicle, including the trunk, based on the odor of marijuana alone. However, Officer Shum did not search the trunk until more evidence was discovered in the interior cabin. Appellant additionally argues that Officer Shum had more than ten interactions with appellant and was aware of his criminal history. However, the record does not suggest that Officer Shum‘s decision to search the trunk was based on his familiarity with appellant or Ivery. Officer Shum affirmed that he had no pre-disposed thoughts about what might be in their vehicle.
{¶26} Appellant‘s second assignment of error is without merit.
{¶27} Appellant‘s third assignment of error states:
{¶29} Next, appellant argues that evidence obtained during the July 20, 2010 stop should be suppressed. In particular, appellant asserts that his car, which was pulled over in the Mosley Select Suites parking lot, did not need to be impounded or inventoried because he was on scene, was a validly-licensed driver, and could have easily moved his car to a parking spot. Appellant therefore concludes the impoundment was merely a pretext for an investigatory search.
{¶30} It must be reiterated that warrantless searches are per se unreasonable under the Fourth Amendment, subject to only a few well-defined and carefully-limited exceptions. City of Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988). One such exception is at issue here—the inventory search. The United States Supreme Court recognized this exception in South Dakota v. Opperman, 428 U.S. 364 (1976), explaining that a routine inventory search of a lawfully-impounded vehicle is reasonable pursuant to the Fourth Amendment when performed in accordance with standard, established local procedures, and when the search is not a pretext for an investigatory search. Id. at syllabus. The Ohio Supreme Court adopted this rule in State v. Hathman, 65 Ohio St.3d 403 (1992), paragraph one of the syllabus: “To satisfy the requirements of the Fourth Amendment to the United States Constitution, an inventory search of a lawfully impounded vehicle must be conducted in good faith and in accordance with reasonable standardized procedure(s) or established routine.”
{¶32} The United States Supreme Court in Opperman explained that automobiles are impounded to preserve the interests of public safety and “efficient movement of vehicular traffic.” Id. at 368. Moreover, the Court listed three distinct justifications for an inventory search of a lawfully-impounded vehicle: (1) to protect the owner‘s property while it remains in police custody; (2) to protect the police against claims or disputes over lost or stolen property; and (3) to protect the police from any possible danger. Id. at 369. See also Colorado v. Bertine, 479 U.S. 367 (1987) and State v. Peagler, 76 Ohio St.3d 496, 501 (1996).
{¶34} Naturally, what is “reasonable” must be judged against the facts on a case-by-case basis. However, the United States Supreme Court in Opperman and Bertine has provided an instructive roadmap on important “reasonable” considerations. For instance, in Opperman, several factors weighed in the state‘s favor: (1) the automobile was lawfully impounded pursuant to a standard procedure; (2) the owner was not present to make other arrangements for the vehicle‘s safekeeping; (3) valuable belongings were noticed in plain view; and (4) there was no suggestion that the impoundment was a pretext for concealing an investigatory police motive. Opperman, 428 U.S. at 375-376.
{¶36} A police officer‘s bare conclusory assertion that an inventory search was done pursuant to police department policy is not sufficient, standing alone, to meet the state‘s burden of proving that a warrantless search was reasonable because it fits within the inventory search exception to the warrant requirement. Rather, the evidence presented must demonstrate that the police department has a standardized, routine policy, demonstrate what that policy is, and show how the officer‘s conduct conformed to that standardized policy. State v. Wilcoxson, 2d Dist. No. 15928, 1997 Ohio App. LEXIS 3566, *9-10 (July 25, 1997).
{¶37} In the present case, there is a municipal ordinance dictating when impoundment is proper. The applicable provision of the Wickliffe Ordinances, Section 303.08(a)(9), states that “[p]olice officers are authorized to provide for the removal of a vehicle * * * [w]hen any vehicle has been operated by any person who is driving * * * while his license has been suspended or revoked and is located upon a public street or other property open to the public for purposes of vehicular travel or parking.” The ordinance does not outline the scenario whereby other acceptable transportation methods are or could be available. The Wickliffe Police Department‘s Towing Procedures state that “[t]hose vehicles impounded by the Wickliffe Police Department shall be carefully inventoried and documented by the impounding officer or an assisting
{¶38} Here, Officer Petric testified to the specifics of this protocol, the department‘s adherence to the ordinance, and his conformance to it during the stop. Specifically, Officer Petric explained that, as soon as the decision was made to arrest Ivery, the decision to impound the vehicle was also made, pursuant to the ordinance. The trial court, in making its findings of fact, determined that, although the car was not on a public street, it was still situated on property open to the public for purposes of travel. The record supports this finding as Officer Petric testified that the automobile was parked only a few feet from the road into the parking lot of the Mosley Select Suites, essentially blocking entry/exit into the lot. That is, the automobile was not placed in a parking spot, but instead was in a lane designated for travel.
{¶39} At the time of the stop, appellant, who had loaned Ivery his automobile, was staying at the Mosley Select Suites. Appellant‘s chief argument is that the impoundment was unreasonable because appellant was on scene and capable of moving his automobile to a parking spot (about ten feet away), he was not incapacitated, and he had a valid driver‘s license. Certainly, appellant‘s argument is appropriate in the context of the interests outlined above: if the validly-licensed owner of the car is present and need only move the car a few feet, vehicular traffic is not impaired and public safety is not jeopardized. In fact, assuming there was any traffic in the hotel parking lot at 3:00 a.m., it may be more appropriate to have the car moved in a more expeditious fashion rather than wait 15 to 20 minutes, as the record established, for a tow truck.
{¶41} One commentator notes the importance of this factual determination concerning whether the owner is present and capable of making other less intrusive, more convenient arrangements in lieu of impoundment:
{¶42} Implicit in [Opperman‘s] approach to inventories was the rationale that the impounding of the illegally parked vehicle was lawful because the owner was not present to make other arrangements for the automobile. That theory has not been pursued in subsequent litigation and merits clarification. It is one way of ensuring that the impoundment is not a pretext to conduct a search. Katz, Ohio Arrest, Search, and Seizure, Section 13:09 (2011 Ed.).
{¶44} However, notwithstanding appellant‘s arguments, in adopting the rule in Hathman, the Ohio Supreme Court relied on Bertine, supra, which gave approval to routine impoundments conferred by standardized police procedures even if less intrusive alternatives for the removal of the vehicle were readily available. In Bertine, the United States Supreme Court stated:
{¶45} The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because * * * Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. * * * And while giving Bertine an opportunity to make alternative arrangements would undoubtedly have been possible, we said in Lafayette: ‘[T]he real question is not what could have been achieved,’ but whether the Fourth Amendment requires such steps * * *.
{¶46} The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means.
{¶47} We conclude that here, as in [Illinois v.] Lafayette [462 U.S. 640,] reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure. (Footnote omitted.) Id. at 373-374.
{¶48} Bertine therefore makes it clear that the existence of other available options to move the automobile is not necessarily dispositive on the question of reasonableness. See State v. Gordon, 95 Ohio App.3d 334, 339 (8th Dist.1994). (“The fact that this court might, as a matter of hindsight, be able to devise equally reasonable rules requiring a different procedure does not render a search executed pursuant to established standard procedures, such as those in this case, constitutionally infirm.“) While the determination of alternative measures may indicate a pretext in some situations, any evidence of such an unconstitutional investigatory pretext cannot be determined on this record. It is not clear from the record exactly when appellant arrived on scene. During the suppression hearing, no officer was able to testify as to when appellant came out of the hotel and into the parking lot to inquire what was happening with his car. As Officer Petric acknowledged, the inventory search may have already been completed and the tow truck en route by the time appellant arrived. This is plausible as the inventory occurred in the field prior to the physical impoundment of the
{¶49} Further, Officer Petric was unequivocal in his testimony that Ivery‘s criminal past had no bearing on the decision to impound the automobile. Instead, the decision to place Ivery under arrest, based on the warrant for his arrest, and the fact that the automobile was blocking a throughway influenced the decision. Clearly, Ivery was unavailable to move the car as he had no valid operator‘s license. Officer Petric additionally explained he was not aware that appellant, the owner of the car, lived at the Mosley Select Suites until appellant walked from the hotel lobby to the parking lot. Both Officer Petric and Officer Shum additionally testified that appellant did not ask to move his car. If it was clear from the record that appellant was present and available to move his car prior to commencement of the inventory, the challenge would be subject to a different analysis.
{¶50} As the state met its burden of establishing that there was a routine impoundment protocol pursuant to local law that was properly followed, it was incumbent upon appellant to provide some evidence suggesting a pretextual investigative intent. See State v. Pullen, 2012-Ohio-1858, ¶45 (O‘Grady, J., concurring). (“[T]he failure to show whether the crack cocaine was seized before his mother arrived [to move the vehicle] is chargeable to Defendant, not the State. On this record, there was no basis to suppress the evidence officers seized.“)
{¶52} Appellant‘s third assignment of error is without merit.
{¶53} Appellant‘s fourth assignment of error states:
{¶54} “The trial court committed prejudicial error by denying Defendant-Appellant‘s Motion in Limine regarding the State‘s use of expert testimony regarding triangulation pinpointing with cell phone towers in contradiction of Ohio Criminal Rule 16[K], and by allowing such testimony at trial.”
{¶55} In his fourth assignment of error, appellant tаkes particular exception to the testimony of AT&T Radio Engineer Joseph R. Mouse. Appellant argues Mr. Mouse offered an expert opinion regarding the approximate whereabouts of a certain cell phone at the time of the various thefts. Such an opinion was not proper and should have been excluded, appellant contends, because it was in direct contravention to
{¶56}
{¶57} A witness may testify as an expert if all of the following apply:
{¶58} (A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
{¶59} (B) The witness is qualified as an expert by specialized knowledge, skill, exрerience, training, or education regarding the subject matter of the testimony;
{¶60} (C) The witness’ testimony is based on reliable scientific, technical, or other specialized information[.]
{¶61} A trial court‘s evidentiary rulings are reviewed under an abuse of discretion standard. State v. Poling, 11th Dist. No. 2008-A-0071, 2010-Ohio-1155, ¶19, citing State v. Sweeney, 11th Dist. No. 2006-L-252, 2007-Ohio-5223, ¶22. Even where a court abuses its discretion in the admission of evidence, we must review whether the defendant suffered material prejudice due to the ruling. Id.
{¶62} The trial testimony of Mr. Mouse placed a phone number ending in “6676” in the general vicinity of the theft offenses at particular times. This was accomplished by reviewing the date and time a call was placed, then determining which cell-phone tower provided the service; a method known as “triangulation.” The phone number on the account was listed to one Lisa Reed, which was ultimately linked to Ivery‘s phone—not appellant‘s. This very point was elicited on cross-examination by trial counsel.
{¶63} Here, the trial court determined Mr. Mouse was “an expert in so far as he possesses knowledge outside the realm of the normal juror.” However, the trial court ultimately concluded that Mr. Mouse was “testifying as to factual matters rather than opinion matters” and that such testimony was not unduly prejudicial. After a review of the record, we determine that this finding was not an abuse of discretion, and the testimony was properly admitted.
{¶64} First, the record reflects, and trial counsel acknowledged, that the state previously disclosed via supplemental discovery that it intended to call witnesses to testify concerning the authenticity of the cell phone records and also provide technical insights into how cell phones operate in conjunction with different tower sites to provide geographical information. The record indicates, and trial counsel acknowledged, that these records were made available to him. Thus, appellant was effectively put on notice as to the nature of the testimony.
{¶65} Next, a review of the testimony indicates that Mr. Mouse did not make independent findings, nor did he form a conclusion or opinion about the reliability of triangulation. Mr. Mouse testified to how a cell phone works, how the device utilizes nearby towers for connectivity, and how the serviсe provider records this information. This testimony constituted general background information interpreting cell phone
{¶66} Finally, trial counsel during sidebar also acknowledged that he contacted a prospective expert witness concerning the use of cell phonе towers to determine a person‘s location. Trial counsel explained that he was unable to properly summarize the immense information (hundreds of pages of cellular phone records) to formulate an understandable question. However, trial counsel also explained the following: “I could not, from the conversation that I had [with the prospective expert], elicit from him in my opinion testimony that on the whole, cell phone tracking technology is unreliable.”
{¶67} Parenthetically, we note that witness Angela Lott, a customer representative with Verizon Wireless, testified concerning appellant‘s cell phone records. Appellant does not object to this witness‘s testimony in his merit brief. Indeed, Ms. Lott only testified to the records she brought from Verizon. Further, unlike Mr.
{¶68} Appellant‘s fourth assignment of error is without merit.
{¶69} Appellant‘s first assignment of error states:
{¶70} “Defendant-Appellant was denied effective assistance of counsel by the trial court which inured to his prejudice at trial.”
{¶71} In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate that trial counsel‘s performance fell below an objective standard of reasonable representation, and there is a rеasonable probability that, but for counsel‘s error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus, adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim can be disposed of by showing a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial counsel‘s performance was deficient. Id. at 142, citing Strickland at 695-696. There is a general presumption that trial counsel‘s conduct is within the broad range of professional assistance. Id. at 142-143.
{¶72} Though not individually framed, compounded in this assignment of error is appellant‘s initial claim that appellant‘s motion to appoint new counsel should have been granted. Appellee has separately responded to this claim; thus, we will initially determine the propriety of the trial court‘s denial of appellant‘s motion to substitute counsel.
{¶73} “Decisions relating to the substitution of counsel are within the sound discretion of the trial court.” State v. Jones, 91 Ohio St.3d 335, 343 (2001), citing
{¶74} Here, it is clear from the record appellant harbored feelings of suspicion and, at times, animosity toward his appointed trial counsel, an attorney with the Lake County Public Defender‘s Office. As a result, appellant filed two pre-trial notices of ineffective assistance and a motion to disqualify or substitute counsel. However, many of these suspicions seemed to be mildly alleviated by the trial court, and at one point, appellant affirmed on the record he was satisfied with trial counsel‘s work in the latest motion to suppress. The trial court went to great lengths to explore the relationship between appellant and his trial counsel. The trial court held two hearings on the motions on May 5, 2011, and July 8, 2011. There, appellant explained to the trial court his dissatisfaction with counsel, including his belief that trial counsel did not review the discovery. Appellant also requested either he represent himself pro se, or that the attorney who represented him in a separate Cuyahoga County case represent him again. During the hearing, the trial court conducted an extensive inquiry into each of appellant‘s complaints and the overall relationship between appellant and his trial counsel.
{¶76} Appellant additionally argues his trial counsel was ineffective during his trial for multiple reasons. First, appellant contends there was a complete lack of trust and confidence throughout the attorney-client relationship which undermined his ability to participate in the defense. However, appellant does not demonstrate how he was prejudiced in any way during trial from this representation. For instance, appellant contends trial counsel was unprepared to cross-examine thе state‘s witness on a critical point regarding cell phone location. The record does not support this assertion. As explained above, trial counsel cross-examined Mr. Mouse in an effort to undercut the cell phone triangulation process. In fact, the record indicates that trial counsel elicited counter-points on cross-examination from multiple witnesses. Further, appellant argues his trial counsel failed to call a known witness regarding cell phone triangulation. Again, this position is not supported by the record. Rather, as explained above, trial counsel
{¶77} Appellant‘s first assignment of error is without merit.
{¶78} Appellant‘s fifth assignment of error states:
{¶79} “The evidence adduced at trial was insufficient to convict Defendant Appellant.”
{¶80} The test for determining the issue of sufficiency 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, citing Jackson v. Virginia, 443 U.S. 307 (1979). Thus, the claim of insufficient evidence invokes a question of due process, the resolution of which does not allow for a weighing of the evidence. State v. Lee, 11th Dist. No. 2010-L-084, 2011-Ohio-4697, ¶9.
{¶81} First, though appellant‘s name was not listed on the room at the Mosley Select Suites, there is ample testimony to conclude this was “appellant‘s room.” This is an important consideration because nearly all of the stolen items were uncovered in this hotel room. Kriste Simmons testified that she visited appellant in “his” hotel room multiple times. Robin Schneider also testified that she visited appellant on a consistent and regular basis at the Mosley Select Suites. Further, Mosley Select Suites’ security guard Thomas Babb testified that he frequently observed appellant and was also called about noise complaints concerning the room. Babb stated that every time he
{¶82} Additionally, as explained above, a witness from AT&T, Joseph Mouse, and a witness from Verizon, Angela Lott, testified to the general location of cell phones linked with Ivery and appellant using respective phone records and maps of service areas. These records implicated both appellant and Ivery in many of the charges. Evidence presented indicates that cell phone towers in the region of the theft offenses received signals from one, or both, of these cell phones.
{¶83} On counts 1 through 5, burglary, the state had the burden of proving that appellant did, by force, stealth, or deception, knowingly trespass in occupied structures or in a separately-secured or occupied portion of occupied structures that is a permanent or temporary habitation of the respective victims, when a person other than appellant was present or likely to be present, and with purpose to commit in the habitation a criminal offense, namely theft.
{¶84} On count 1, Ruth McLeod testified that her home in Madison Township was broken into on May 5, 2010, and personal belongings were stolen, including a Toshiba laptop and an Olympus digital camera. The laptop and camera were uncovered during the search of appellant‘s car on May 22, 2010. Additionally, cell phone records indicate that both Ivery and appellant were in the vicinity of McLeod‘s residence on May 5, 2010.
{¶85} On count 2, Jean and Wesley Moon testified that their home in Madison Township was broken into on May 14, 2010. Personal belongings, including a Minolta
{¶86} On count 3, Timothy Herubin testified that his apartment in Willoughby Hills was broken into and several personal belongings, including a 42-inch Phillip LCD Television and a Beretta “Tomcat” .32 caliber handgun, were taken. Mr. Herubin was able to identify a television like the one taken from his home. This identification was made from a photograph taken from appellant‘s hotel room at the Mosley Select Suites. Herubin stated that the television looked similar to his because the “Phillips” decal was situated on the same place and it also appeared to be 42 inches. Witness Michael Arnett, who was responsible for the video surveillance system in the complex, alleged he saw an African-American male (inferring Ivery) and a Caucasian male (inferring appellant) walking in a hallway in the complex. He also claims to have recognized the duo once again as the perpetrators on the surveillance video. Though this testimony was, in part, later discredited, the jury could have still believed Arnett‘s version of events. A firearm specification was attached to count 3, involving the stolen Beretta handgun. The jury had a sufficient basis to connect appellant to the stolen handgun through the testimony of Herubin and Arnett.
{¶87} On count 4, Helen Nekic testified her home in Timberlake, Ohio, was broken into sometime on June 5, 2010, or in the morning of June 6, 2010. Many unique
{¶88} With regard to count 5, Sergio Difranco explained that his residence in Willoughby Hills, Ohio, was broken into. Some of his stolen property, such as a Tag Heuer watch, was later recovered in appellant‘s hotel room.
{¶89} On counts 6 through 10, receiving stolen property, the state had the burden of proving that appellant received, retained, or disposed of property, knowing or having reasonable cause to believe that the property had been obtained through the сommission of a theft offense.
{¶90} There is no requirement that forensic evidence connect a party directly to stolen property. Requiring a latent print reading on all recovered or suspected stolen property is simply not necessary. In fact, “[p]ossession of stolen property for purposes of the receiving stolen property statute,
{¶92} With regard to count 7, Deborah and Stanley Freeland testified to personal belongings stolen from their home in excess of $500. These items were later recovered in appellant‘s hotel room. Similarly, on counts 8 and 10, Curtis and Betty Jo Eaton testified to their stolen belongings being worth over $500. One such stolen item, a handgun, provided a basis for the firearm specification attached to count 10.
{¶93} With regard to counts 11, 12, and 13, having weapons under disability, the state had the burden of proving that appellant knowingly acquired, had, carried, or used a firearm and that appellant had been convicted of a felony offense of violence.
{¶94} As explained above, possession need not be “actual,” but instead can be constructive. This court has held this proposition is also true as applied to weapons: “A
{¶95} Evidence from trial indicates the following weapons were recovered from appellant‘s room under a dresser at the Mosley Select Suites: a Harrington & Richardson Arms .32 caliber revolver (count 11); a Forehand & Wadsworth .32 caliber revolver (count 12); and a Sturm Ruger .357 magnum revolver (count 13). Firearms Examiner Mitch Wisniewski testified that all three weapons were operational. Though appellant was not present when the warrant for the hotel room was executed, we conclude that the presence of the weapons in appellant‘s established room constitutes constructive possession.
{¶96} Finally, as to count 14, engaging in a pattern of corrupt behavior, the state had the burden of proving that appellant, while associated with an enterprise, conducted or participated in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity.
{¶98} Though the statute describes what an enterprise may include, it does not actually define what an enterprise requires. Such an omission has been previously recognized by appellate courts in Ohio. To better understand this statute, the Twelfth Appellate District recently analyzed the definition of “enterprise” and adopted a “streamlined” definition from the federal case of Boyle v. U.S., 556 U.S. 938 (2009), noting “‘an association-in-fact enterprise is simply a continuing unit that functions with a common purpose.‘” State v. Barker, 12th Dist. No. CA2011-08-088, 2012-Ohio-887, ¶10, quoting Boyle at 2245-2246.
{¶99} Appellant contends, with little specificity, that there was no basis to support his conviction under this count. Based on the evidence adduced at trial involving the various dealings of Ivery and appellant, there is a sufficient basis on which to conclude that the duo engaged in an enterprise which carried out the common purpose to engage in theft.
{¶100} After viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of all charges proven beyond a reasonable doubt. Appellant‘s fifth assignment of error is without merit.
{¶101} Appellant‘s sixth assignment of error states:
{¶103} Under his sixth assignment of error, appellant argues that the court committed a sentencing error by failing to include lesser offenses with the charge of engaging in a pattern of corrupt activity. Appellant contends that counts 1 through 13 should have merged with count 14 because the charges are allied offenses of similar import. In so doing, appellant explains his sentence would be reduced from 21 years to nine years. However, the record belies this assertion. The jury was instructed that the incidents of corrupt activity alleged to make up the pattern of corrupt activity consist of all the burglary charges (counts 1 though 5) and all the receiving stolen property charges (counts 6 through 10). The three counts of weapons under disability were not included in the “pattern,” because they have no bearing on the concept of “enterprise” in this case. The question on review is therefore whether the charges of burglary and receiving stolen property merge with engaging in a pattern of corrupt activity.
{¶104}
{¶105}
{¶106} Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶107} The Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶48, set forth a new standard for determining whether merger is apposite: “In determining whether offenses are allied offenses of similar import under
{¶108}“Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶109} Here, the state relies on the Twelfth Appellate District case State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222. There, the appellant argued that the trial court erred by failing to merge the charges of trafficking in marijuana and engaging in a pattern of corrupt activity. Id. at ¶63. The court concluded that the act of trafficking marijuana was committed with a separate animus from engaging in a pattern of corrupt activity. Id. at ¶66. The court held: “Engaging in a pattern of corrupt activity requires an additional state of mind from trafficking in marijuana to form an enterprise.
{¶110}In reviewing the facts of this case under the Johnson test, it is clear that commission of a single offense could not establish a “pattern” of corrupt activity. Therefore, the commission of each individual offense, standing alone, would not result in committing the offense of engaging in a pattern of corrupt activity. State v. Reyes, 6th Dist. No. WD-03-059, 2005-Ohio-2100. Further, it is the establishment of the enterprise for the purpose of committing crimes that the statute proscribes. The corrupt activity does not actually require the commission of the underlying offense.
{¶111}In addition to receiving property knowing or having reason to believe the property was stolen (counts 6 through 10) and knowingly trespassing in an occupied structure to commit theft when a person other than appellant was present or likely to be present (counts 1 through 5), appellant had to conduct or participate in, directly or indirectly, the affairs of the enterprise. As explained above, the record indicates that appellant and Ivery engaged in an enterprise with the common purpose to commit theft offenses. Occasionally, the duo would use Ivery‘s resources, such as his sister‘s car, and sometimes they would use appellant‘s resources, such as his personal automobile. The intermingling of resources required the duo to sustain a relationship and act in concert.
{¶113} Appellant‘s sixth assignment of error is without merit.
{¶114} Appellant‘s seventh assignment of error states:
{¶115}“The trial court committed prejudicial error by sentencing Defendant Appellant without proper calculation of credit for time served.”
{¶116}In appellant‘s final assignment of error, he contends that the trial court erred in failing to grant credit for jail time served. The trial court afforded appellant no credit for time served. Appellant argues he should receive a credit of 220 days. Appellant has calculated this figure from January 11, 2011, to his sentencing on August 18, 2011. On January 11, 2011, the trial court ordered a warrant to convey appellant, who, at the time, was incarcerated in the Cuyahoga County Jail awaiting disposition on a separate case, to the Lake County Sheriff‘s Department for arraignment on January 21, 2011. The entry explained that appellant was to remain in Lake County Jail until further order of the court.
{¶117}
{¶118} The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum
term or the parole eligibility date of the prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner‘s competence to stand trial or sanity, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term. (Emphasis added.)
{¶119} The statute essentially codifies the Equal Protection principle that defendants shall not be subjected to disparate treatment based on economic status; that is, for instance, defendants unable to make bail while awaiting trial must be credited for the time they are confined. See State v. Mason, 7th Dist. No. 10 CO 20, 2011-Ohio-3167, ¶14, citing State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856.
{¶120} As the statute indicates, “a defendant is not entitled to jail-time credit for any period of incarceration arising from facts that are separate or distinguishable from those on which the current (or previous) sentence was based.” State v. Chafin, 10th Dist. No. 06AP-1108, 2007-Ohio-1840, ¶9.
{¶121} The state argues the Cuyahoga County Court of Common Pleas already gave appellant credit for the time he served in Lake County. Appellant does not confirm or deny the crediting of any time from the Cuyahoga County court, but instead argues any such time is a “nullity” because those charges arose from the same set of facts that comprised the offenses for which he was sentenced in Lake County.
{¶123} This case presents similar facts as State v. Mason, 2011-Ohio-3167. There, Mason argued he should have been credited 27 days, which was the time he served in the Columbiana County jail after sentencing on unrelated charges in Stark County. The Seventh Appellate District, noting the evidentiary burden in such a case, explained:
Mason is not entitled to jail-time credit for days he served on an unrelated case. See
R.C. 2967.191 . Absent evidence that Stark County did not include these days as time served or other evidence indicating that Mason was being held at the time on the Columbiana County charges, Mason has failed to meet his evidentiary burden. Id. at ¶22.
{¶124} On this record, there is no indication that Cuyahoga County failed to include those days as time served. In fact, per the Cuyahoga County Court of Common Pleas’ docket, we take notice that appellant received 456 days for time served credited on his cases in Cuyahoga County. Further, there is no indication that the charges arose from the same set of facts that comprised the offenses for which he was sentenced in Lake County. Appellant highlights the testimony of Sergeant Kwiatkowski of the Walton Hills Police Department, where the witness explained that he aided in the investigation with the Wickliffe Police Department. However, with nothing more, this does not establish that the same set of facts provided the basis for both charges.
{¶125} Appellant‘s seventh assignment of error is without merit.
{¶126} The judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.