State v. SmithState v. Smith
Case Information
*1
[Cite as
State v. Smith
,
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT STATE OF OHIO, Case No. 2011CA00140
Appellee, JUDGES:
Hon. William B. Hoffman, P.J.
v. Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
SMITH,
Appellant. O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR0489 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 30, 2011 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO, MATTHEW PETIT PROSECUTING ATTORNEY, 116 Cleveland Ave. North, Suite 808 STARK COUNTY, OHIO Canton, Ohio 44702 By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Hoffman, P.J.
(¶1) Defendant-appellant Daymion Smith appeals his June 1, 2011 conviction entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE (¶2) On March 29, 2011, Parole Officer Rick Polinori received an anonymous phone tip regarding a parolee absconder, Toriano Howard. The tip stated Howard was living at an apartment complex where he was engaged in selling drugs. The caller further alleged Howard was in possession of a firearm. Polinori testified he then personally verified Howard was leasing the
apartment at #11, 139 17 th Street N.W., Canton, Ohio. The terms of Howard’s post- release control provided his person, car and home were subject to a warrantless search at any time. Polinori then contacted the Canton Police Department for assistance in apprehending Howard on the parole violation at the apartment. Polinori and members of the Canton Police Department proceeded to the
apartment, where they surrounded the building and announced their presence. Appellant answered the door to the apartment, and told the officers he lived in the apartment but was unsure whether anyone else was inside. As a result, the officers performed a protective sweep of the premises, searching a bedroom and finding a substance suspected to be cocaine in plain view, along with cash and a scale. The bedroom was later determined to be Appellant’s. The officers proceeded to secure the property and to obtain a search warrant. Subsequent to the search, Appellant was charged with one count of
trafficking in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(f), a first degree felony; *3 trafficking in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(d), a third degree felony; possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(e), a first degree felony; possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(b), a fourth degree felony. On May 25, 2011, Appellant filed a motion to suppress the evidence seized incident to the search of the premises. The trial court overruled the motion to suppress. Appellant then entered a plea of no contest to the charges. The trial court accepted the plea, convicted and sentenced Appellant to three years incarceration on the first degree trafficking and possession charges, three years on the third degree trafficking offense, and six months on the fourth degree possession charge. Appellant now appeals, assigning as error:
(¶8) “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE THE STATE OBTAINED IN VIOLATION OF THE APPELLANT’S FOURTH AMENDMENT RIGHTS.” Appellate review of a trial court's decision to grant or deny a motion to
suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio
App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 1996–Ohio–134, 661
N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they
are supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio
App.3d 142,
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio
App.3d 486,
and upon less than probable cause.” State v. Cowans, 87 Ohio St.3d 68, 76, 1999–
Ohio–250,
parolee engaging in the sale of illegal drugs. Appellant was a parolee absconder and
had consented to a search of his residence. Polinori confirmed the parolee’s name was
on the lease, and the parolee was living at the apartment. Accordingly, we find the
officers legally entered the apartment without a warrant. When Appellant opened the
door and informed the officers he was uncertain as to whether anyone else was in the
apartment, the officers properly performed a protective sweep of the premises to
ascertain if Appellant was present, and the officers observed cocaine in plain view
during the lawful search. Maryland v. Buie (1990),
affirmed.
Judgment affirmed.
Wise, J. and Edwards, J. concur.
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. 2011CA00140
Appellee, JUDGES:
Hon. William B. Hoffman, P.J.
v. Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
SMITH,
Appellant. JUDGMENT ENTRY For the reasons stated in our accompanying Opinion, Appellant’s conviction in the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ John W. Wise _____________________ HON. JOHN W. WISE s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS