State v. Brown

2012 Ohio 195

• Court: Ohio Court of Appeals
• Decided: January 20, 2012
• Docket: 24297
• Status: Published

Opinion

[Cite as State v. Brown, 2012-Ohio-195.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24297

v. : T.C. NO. 10CR922

ANTHONY L. BROWN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 20th day of January , 2012.

MELISSA M. REPLOGLE, Atty. Reg. No. 0084215, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2661 Commons Blvd., Suite 214, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Anthony L. Brown appeals his conviction and sentence for

two counts of having a weapon while under disability, in violation of R.C. 2923.13(A)(2), 2

both felonies of the third degree. Brown filed a timely notice of appeal with this Court on

October 13, 2010.

I

{¶ 2} The incident which forms the basis for the instant appeal occurred on March

24, 2010, when Parole Officer Andrew Siefring from the Ohio Adult Parole Authority

(OAPA) received information from a confidential informant (CI) that Brown was in

possession of a firearm in violation of the terms of his parole in Case No. 2007 CR 200,

wherein he was previously convicted of aggravated robbery. Based on the information,

Officer Siefring, accompanied by Parole Officer Timothy Jones, went to Brown’s residence

located at 19 Fountain Avenue in Dayton, Ohio.

{¶ 3} Upon arriving at the residence, the officers were greeted at the front door by a

male teenager and an older female, later identified as Brown’s younger brother and

grandmother, respectively. Officer Siefring explained that he and Officer Jones were there

to speak with Brown. Brown’s brother or grandmother purportedly permitted the officers to

enter the residence. They were advised that Brown was located in an upstairs bedroom. As

they reached the top of the stairs, the officers encountered Brown coming out of a bedroom.

Officer Siefring informed Brown that they had received information that he had a firearm,

and they wanted to investigate the accusation. Officer Siefring handcuffed Brown and

detained him in the hallway while Officer Jones went into the bedroom.

{¶ 4} Upon entering, Officer Jones observed a female in the bedroom who was not

fully dressed. After allowing her the opportunity to dress, Officer Jones searched the

bedroom and discovered a rifle standing in a purportedly open closet. Officer Jones 3

immediately exited the room and informed Brown of his Miranda rights. Officer Siefring

entered the bedroom in order to conduct a more thorough search and discovered a small

derringer-type firearm in a tennis shoe on the floor in the bedroom. Dayton Police Officers

Mark Spiers and Susan Benge were called to the scene to assist the parole officers. Officer

Spiers informed Brown of his Miranda rights for a second time, after which Brown admitted

that his fingerprints would be found on the firearms, but the guns were not his. Brown was

subsequently arrested and transported to jail by Officer Benge.

{¶ 5} On April 19, 2010, Brown was charged by indictment with two counts of

having a weapon while under disability. At his arraignment on May 11, 2010, Brown stood

mute, and the trial court entered a plea of not guilty on his behalf. Brown filed a motion to

suppress on June 2, 2010. A hearing was held on said motion on June 25, 2010. On July

9, 2010, the trial court issued a written order overruling Brown’s motion to suppress.

Shortly thereafter, Brown pled no contest to both counts of having a weapon while under

disability. On September 22, 2010, the trial court sentenced Brown to five years on each

count to be served concurrently to each other, as well as concurrent with an eleven-year

sentence in a separate conviction in a Case No. 2010 CR 1459/1.

{¶ 6} It is from this judgment that Brown now appeals.

II

{¶ 7} Brown’s sole assignment of error is as follows:

{¶ 8} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE WHEN THE STATE FAILED TO ESTABLISH THE

CONSENTING PARTY FOR THE SEARCH HAD AUTHORITY OVER THE 4

PREMISES.”

{¶ 9} In his sole assignment, Brown contends that the trial court erred when it denied

his motion to suppress because the State failed to establish by a preponderance of the

evidence that Officers Siefring and Jones gained valid consent before entering and searching

Brown’s residence. Brown also argues that no evidence was adduced at the hearing which

established that he automatically consented to random warrantless searches of his residence

by being placed on supervised parole with the OAPA.

{¶ 10} Upon review, it is apparent from the record that the trial court did not make

any findings of fact pursuant to Crim. R. 12(F) before it overruled Brown’s motion to

suppress. Crim.R. 12(F) mandates that a trial court state its essential findings on the record

when factual issues are involved in determining a motion to suppress. In order to invoke

this provision, trial counsel must request the trial court to state its essential findings of fact

on the record. State v. Benner (1988), 40 Ohio St.3d 301, 317. While it is error for the

trial court to fail in providing requested findings of fact, is not prejudicial where the record

provides an appellate court with a sufficient basis to review the assignments of error. Id. at

317-318. We note that Brown did not specifically request findings of fact; however, the

record, standing alone, is insufficient to allow a full review of Brown’s claims on appeal

regarding his motion to suppress. Significantly, in the order overruling Brown’s motion, the

trial court indicates that its rationale was the facts and conclusions of law set forth on the

record at the conclusion of the hearing, but no findings were actually made. Thus, the trial

court has failed to provide us with a sufficient basis upon which to determine whether its

decision was supported by competent, credible evidence. 5

{¶ 11} Brown’s sole assignment of error is sustained.

III

{¶ 12} Brown’s sole assignment of error having been sustained, his conviction is

reversed, and the case is remanded to the trial court to make findings of fact and conclusions

of law based on the evidence adduced at the suppression hearing. In the event the court

again denies the motion to suppress, the court may reinstate the judgment entry of

conviction.

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Melissa M. Replogle Thomas M. Kollin Hon. Mary Katherine Huffman