State v. Downs

2014 Ohio 589

• Court: Ohio Court of Appeals
• Decided: February 11, 2014
• Docket: 13-CA-77
• Status: Published

Opinion

[Cite as State v. Downs, 2014-Ohio-589.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-77 (consolidated with : 13-CA-76) TRENT M. DOWNS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case Nos. 13 CR 00020 & 08 CR 581

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 11, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KENNETH W. OSWALT SIOBHAN R. CLOVIS LICKING COUNTY PROSECUTOR 36 N. Second St. P.O. Box 919 PAULA M. SAWYERS Newark, OH 43058 20 S. Second St., 4th Floor Newark, OH 43055 Licking County, Case No.13-CA-77 2

Delaney, J.

{¶1} Defendant-Appellant Trent M. Downs appeals his conviction and sentence

for aggravated possession of drugs, in violation of R.C. 2925.11(A)(C)(1)(a), and the

revocation of his community control sanctions. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 1, 2009, Defendant-Appellant Trent M. Downs was sentenced to

five years of community control sanctions after he was convicted for improperly

discharging a firearm at or into a habitation, a second degree felony in violation of R.C.

2923.161(A)(1); having weapons while under disability, a third degree felony in violation

of R.C. 2923.12(A)(3); and using weapons while intoxicated, a first degree

misdemeanor in violation of R.C. 2923.15(A)(1). State of Ohio v. Trent M. Downs,

Licking County Court of Common Pleas, Case No. 08 CR 581. If Downs violated the

terms of his community control sanctions, the sentencing entry stated the trial court

could impose consecutive prison terms of three years each for the felonies and a

concurrent jail term of six months for the misdemeanor.

{¶3} On January 11, 2013, Downs was indicted for one count of aggravated

possession of methamphetamine, in violation of R.C. 2925.11(A)(C)(1)(a). The State

filed a motion to revoke community control on January 22, 2013. Downs filed a motion

to suppress and the trial court held a hearing on the motion on April 15, 2013. The

following evidence was adduced at the hearing.

{¶4} On October 25, 2012 at approximately 8:50 p.m., Officer Blake Duncan of

the Newark Police Department was on duty in the area of Glenbrook Drive off Churchill

Downs in Newark, Ohio. (T. 7). Glenbrook Drive is located near the Glenbrook Licking County, Case No.13-CA-77 3

Apartment complex. Seven to ten days earlier, Officer Duncan met with the

management of the Glenbrook Apartment complex to discuss the drug activity in the

apartment complex. (T. 14).

{¶5} Officer Duncan was driving behind a vehicle on Derby Downs. The

vehicle had come from the Glenbrook Apartment complex area. (T. 8). The vehicle

approached 21st Street and Officer Duncan saw the vehicle stop at the stop sign and

turn southbound from Derby Downs onto 21st Street. (T. 8). As the vehicle made the

turn onto 21st Street, Officer Duncan observed the driver of the vehicle engage the turn

signal when he made the turn. (T. 8). The dash cam video admitted at trial showed that

Downs did not activate his turn signal until he reached the intersection. Officer Duncan

initiated a traffic stop of the vehicle for a turn signal violation. (T. 8). R.C. 4511.39

requires drivers to activate the turn signal at least 100 feet prior to making the turn.

{¶6} Officer Duncan stopped and approached the vehicle. The driver was

Downs. Officer Duncan was familiar with Downs. (T. 16). Officer Duncan saw Downs

in the Glenbrook Apartment complex before the traffic stop. (T. 9). Officer Duncan

asked Downs where he had been. Downs said he had stopped at a friend’s house in

Glenbrook. (T. 16). Officer Duncan advised Downs of the reason for the traffic stop.

(T. 9). Officer Downs did not ask to see Downs’s license or registration at the time of

the stop. (T. 11). Officer Duncan asked Downs for his consent for Officer Duncan to

search the vehicle. Downs gave his consent to search the vehicle. (T. 9). Officer

Duncan asked him to exit the vehicle and walk around to the passenger side of the

vehicle. (T. 17). Officer Duncan asked Downs for his consent to check his person as Licking County, Case No.13-CA-77 4

well as his pockets. Downs gave his consent to search his person. (T. 9-10). Officer

Duncan did not tell Downs that he did not have to give his consent to search. (T. 16).

{¶7} Officer Duncan testified the reason for his search of the vehicle and

person was because Downs came from the drug complaint area. (T. 10). Officer

Duncan found a cigarette pack containing methamphetamines when he searched

Downs’s person. (T. 10). After Officer Duncan found the drugs, he asked Downs if he

would provide a urine sample at the police station. Downs agreed and followed Officer

Duncan to the police station in his own vehicle and gave a urine sample. (T. 10).

Officer Duncan did not arrest Downs and Downs was released. (T. 10). Officer Duncan

did not issue Downs a traffic citation for the turn signal violation.

{¶8} The trial court denied the motion to suppress by judgment entry dated May

24, 2013.

{¶9} A change of plea and sentencing hearing were held on July 26, 2013.

Downs pleaded no contest to the charge of aggravated possession of

methamphetamine and the trial court found Downs guilty. Downs was sentenced to a

prison term of ten months, to be served concurrently to his sentence for the community

control violations.

{¶10} Downs admitted his community control violations. The trial court

sentenced Downs to a prison term of two years on the count of improperly discharging a

firearm at or into a habitation.

{¶11} Downs now appeals from the trial court's judgments regarding the motion

to suppress and revocation of community control. This case comes to us on the Licking County, Case No.13-CA-77 5

accelerated calendar. App.R. 11.1 governs accelerated-calendar cases and states in

pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for

the court's decision as to each error to be in brief and conclusionary form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶12} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than in

a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-5690, ¶ 6

citing Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655

(10th Dist.1983).

{¶13} This case will be decided with the above principles in mind.

ASSIGNMENTS OF ERROR

{¶14} Downs raises two Assignments of Error:

{¶15} “I. IN VIOLATION OF MR. DOWNS’ STATED [SIC] AND FEDERAL

CONSTITUTIONAL RIGHTS TO BE FREE OF UNREASONABLE SEARCHES, THE

TRIAL COURT ERRED IN DENYING MR. DOWN’S [SIC] MOTION TO SUPPRESS

BECAUSE MR. DOWNS DID NOT GIVE VALID CONSENT TO THE SEARCH THAT

LED TO THE DISCOVERY OF DRUGS IN HIS POCKET. Licking County, Case No.13-CA-77 6

{¶16} “II. IN VIOLATION OF MR. DOWNS’ STATED [SIC] AND FEDERAL

CONSTITUTIONAL RIGHTS TO BE FREE OF WARRANTLESS SEARCH AND

SEIZURE, THE TRIAL COURT ERRED IN REVOKING MR. DOWNS’ COMMUNITY

CONTROL AND SENTENCING HIM TO TWO YEARS IN PRISON BASED ON

EVIDENCE OBTAINED FROM AN ILLEGAL SEARCH.”

ANALYSIS

I. Motion to Suppress

{¶17} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist .1998). 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, 154, 661 N.E.2d

1030 (1996). A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d

142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court's conclusion, whether the trial court's decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

{¶18} There are three methods of challenging a trial court's ruling on a motion to

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. Licking County, Case No.13-CA-77 7

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See Williams,

supra.

{¶19} Finally, as here, an appellant may argue the trial court has incorrectly

decided the ultimate or final issues raised in a motion to suppress. When reviewing this

type of claim, an appellate court must independently determine, without deference to

the trial court's conclusion, whether the facts meet the appropriate legal standard in any

given case. State v. Curry, 95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).

{¶20} “It is well-settled law in Ohio that reasonable and articulable suspicion is

required for a police officer to make a warrantless stop.” State v. Bay, 5th Dist. Licking

No. 06CA113, 2007–Ohio–3727, ¶ 65, citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). “ * * * [R]easonable suspicion is not proof beyond a

reasonable doubt, but is judged by all the surrounding circumstances.” State v. Boyd,

5th Dist. Richland No. 96-CA-3, 1996 WL 608378 (Oct. 10, 1996). However, when

police observe a traffic offense being committed, the initiation of a traffic stop does not

violate Fourth Amendment guarantees, even if the stop was pretextual or the offense so

minor that no reasonable officer would issue a citation for it. State v. Mullins, 5th Dist.

Licking No. 2006-CA-00019, 2006 WL 2588770 (Sept. 8, 2006), ¶ 26, citing Whren v.

United States, 517 U.S. 806, 116 S.Ct. 1769, 1774–75 (1996).

{¶21} R.C. 4511.39(A) states, “No person shall turn a vehicle or trackless trolley

or move right or left upon a highway unless and until such person has exercised due Licking County, Case No.13-CA-77 8

care to ascertain that the movement can be made with reasonable safety nor without

giving an appropriate signal in the manner hereinafter provided. When required, a

signal of intention to turn or move right or left shall be given continuously during not less

than the last one hundred feet traveled by the vehicle or trackless trolley before turning,

except that in the case of a person operating a bicycle, the signal shall be made not less

than one time but is not required to be continuous.” The evidence presented at the

motion to suppress hearing established Downs did not utilize his turn signal until he had

reached the intersection. Pursuant to Whren, the initiation of the traffic stop was

proper.

{¶22} Downs next argues he did not give valid consent for a search of his car

and person. It is undisputed that a person waives his Fourth Amendment protection by

consenting to a warrantless search. State v. Barnes, 25 Ohio St.3d 203, 208, 495

N.E.2d 922, 926 (1986) citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90

L.Ed. 1453 (1946), Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973), State v. Pi Kappa Alpha Fraternity, 23 Ohio St.3d 141, 491 N.E.2d

1129 (1986). The question of whether consent to search was voluntary or the product

of duress or coercion, express or implied, is a question of fact to be determined from the

totality of the circumstances. Schneckcloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct.

2041, 36 L.Ed.2d 854 (1973). The standard for measuring the scope of consent is

objective reasonableness, i.e., what a reasonable person would have understood by the

exchange between the officer and the suspect. Florida v. Jimeno, 500 U.S.248, 251,

111 S.Ct. 1801, 114 L.E.2d 297 (1991). Licking County, Case No.13-CA-77 9

{¶23} At the hearing, Officer Duncan testified as to the circumstances under

which Downs consented to the officer’s search of Downs’s car and person. While

Downs was in the vehicle, Officer Duncan asked Downs for his consent to search the

vehicle. Downs gave his consent to search the vehicle. (T. 9). Officer Duncan asked

him to exit the vehicle and walk around to the passenger side of the vehicle. (T. 17).

Officer Duncan asked Downs for his consent to check his person as well as his pockets.

Downs gave his consent to search his person. (T. 9-10). Officer Duncan did not tell

Downs that he did not have to give his consent to search. (T. 16). Officer Duncan

found a cigarette pack containing methamphetamines when he searched Downs’s

person. (T. 10).

{¶24} When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243,

652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). The

trial court relied on State v. Fowler, 10th Dist. Franklin No. 10AP-658, 2011-Ohio-3156,

to find that Downs consented to the search while he was lawfully detained during a

traffic stop for violation of R.C. 4511.39. The trial court next found the undisputed

evidence showed that Downs gave Officer Duncan consent to search both the vehicle

and his person. Considering the totality of the circumstances, we agree with the trial

court’s determination that the evidence showed Downs’s consent to the search was

freely and voluntarily given.

{¶25} The first Assignment of Error is overruled. Licking County, Case No.13-CA-77 10

II. Revocation of Community Control Sanctions

{¶26} Downs argues in his second Assignment of Error that the trial court erred

in revoking Downs’s community control and sentencing him to two years in prison.

Downs’s argument is based on his first Assignment of Error that the motion to suppress

should have been granted based on the illegal search of Downs’s car and person.

{¶27} Based on our resolution of the first Assignment of Error, we disagree with

Downs’s second Assignment of Error. The second Assignment of Error is overruled.

CONCLUSION

{¶28} The first and second Assignments of Error of Defendant-Appellant Trent

M. Downs are overruled.

{¶29} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.