[Cite as State v. Eason, 2016-Ohio-5516.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103575
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD EASON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-577863-A
BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 25, 2016 ATTORNEY FOR APPELLANT
Gerald R. Walton Spectrum Bldg., Suite 200 6060 Rockside Woods Blvd. Independence, Ohio 44131
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Janna R. Steinruck Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Richard Eason (“appellant”), brings this appeal challenging his
conviction for having weapons while under disability. Specifically, appellant argues that (1) the
trial court erred by denying his motion to suppress and (2) his conviction for having weapons
while under disability violated his protections against double jeopardy and was inconsistent with
the jury’s verdict. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} On September 1, 2015, Officer Thomas Rini of the Cleveland Heights Police
Department was on patrol at approximately 5:00 a.m. when he observed what he perceived to be
a suspicious vehicle parked on Greyton Road. The vehicle’s engine was running and the
driver’s side door was ajar. Officer Rini reported the vehicle to dispatch, requested back-up,
and approached the vehicle. Officer Rini observed a male, who he later identified as appellant
that appeared to be sleeping in the driver’s seat. The keys were in the ignition, the vehicle’s
engine was running, and the vehicle was in park. Officer Rini attempted to determine whether
appellant was sleeping or if he needed medical attention. Officer Christopher Wolske arrived
on the scene to assist Officer Rini.
{¶3} The officers spent two to three minutes attempting to wake appellant. Appellant
eventually woke up, attempted to close the vehicle’s door, and stated “I’m good. I’m fine.”
Officer Rini ordered appellant to step out of the vehicle. Appellant appeared to be disoriented
when he exited the vehicle; he was swaying and having a difficult time standing and keeping his
balance. Appellant appeared to be confused about where he was. According to Officer Rini,
appellant’s eyes were watery and he detected an odor of alcohol on his breath. Appellant informed Officer Rini that he was not asleep and that he was waiting to pick up a friend.
{¶4} Based upon his observations and his interaction with appellant, Officer Rini
decided to administer standardized field sobriety tests. First, Officer Rini administered the
one-leg stand test. Officer Rini terminated the test after appellant was unable to comply with
his instructions. Second, Officer Rini administered the walk and turn test. Appellant was
unable to maintain his balance, and he stepped off of the straight line three times. Furthermore,
appellant was unable to keep his arms at his sides, failed to look at his feet, and stopped counting
after two steps. Officer Rini terminated the test. Third, Officer Rini administered the
horizontal gaze nystagmus test. Officer Rini observed nystagmus in both of appellant’s eyes,
indicating that appellant may be appreciably impaired.
{¶5} After administering the field sobriety tests, Officer Rini arrested appellant for
operating a vehicle under the influence of alcohol or drugs (“OVI”). The officers conducted a
pat-down of appellant and recovered a black iPhone and approximately $529 in cash. The
officers ordered appellant’s vehicle to be towed and conducted an inventory search of the vehicle.
{¶6} During the inventory search, officers recovered the following items from the
vehicle:1 (1) a loaded .45-caliber Hi-Point semiautomatic handgun in the glove compartment; (2)
a red cooler on the middle bench seat containing crack cocaine, marijuana, two digital scales, a
marijuana grinder, a tied-off sandwich bag containing what appeared to be crack cocaine, and
tiny plastic baggies; (3) an open bottle of Hennessy cognac and an unopened can of beer on the
middle bench seat; (4) an open bottle of Hennessy cognac underneath the front passenger seat;
and (5) a black Kyocera cell phone between the driver’s seat and front passenger seat.
1 Officer Rini explained that the vehicle was a minivan with a front driver’s seat and passenger seat, a middle bench seat, and a rear bench seat. {¶7} Officer Rini cited appellant for (1) OVI, in violation of R.C. 4511.19(A)(2)(a), (2)
OVI, in violation of R.C. 4511.19(A)(1)(e), (3) failure to reinstate license, in violation of R.C.
4510.21, (4) driving under suspension, in violation of R.C. 4510.11, and (5) driving under a
twelve-point suspension, in violation of R.C. 4510.037(J). In Cleveland Heights Municipal
Court, appellant pled guilty to having physical control of a vehicle while under the influence, in
violation of R.C. 4511.194.
{¶8} In Cuyahoga C.P. No. CR-13-577863-A, the Cuyahoga County Grand Jury
returned a nine-count indictment charging appellant with: (1) trafficking, a fourth-degree felony
in violation of R.C. 2925.03(A)(2); (2) drug possession, a fifth-degree felony in violation of R.C.
2925.11(A); (3) trafficking, a third-degree felony in violation of R.C. 2925.03(A)(2); (4) drug
possession, a third-degree felony in violation of R.C. 2925.11(A); (5) possessing criminal tools, a
fifth-degree felony in violation of R.C. 2923.24(A); (6)-(7) carrying concealed weapons,
fourth-degree felonies in violation of R.C. 2923.12(A)(2); (8) having weapons while under
disability, a third-degree felony in violation of R.C. 2923.13(A)(3); and (9) improperly handling
firearms in a motor vehicle, a fourth-degree felony in violation of R.C. 2923.16(B). Counts 1
through 4 contained one-year firearm specifications, and all counts contained forfeiture
specifications. Appellant pled not guilty to the indictment. The trial court declared appellant
to be indigent and assigned a public defender as counsel.
{¶9} During pretrial proceedings, appellant moved to suppress the evidence recovered
from his vehicle at the time of his arrest. After conducting a hearing, the trial court denied
appellant’s motion to suppress the evidence.
{¶10} On July 27, 2015, the matter proceeded to trial. Counts 1 through 7 and 9 were
tried to the jury; Count 8 was tried to the trial court. At the close of trial, the jury found appellant not guilty of Counts 1 through 7 and 9. The trial court found appellant guilty of Count
8. The trial court ordered a presentence investigation report and set the matter for sentencing.
The trial court sentenced appellant to community control for a period of one and one-half years.
{¶11} Appellant filed the instant appeal assigning two errors for review:
I. The trial court’s denial of the motion to suppress was contrary to established Eighth District Precedent.
II. The bench trial for, and conviction of the appellant of having weapons while
under disability was a clear violation of appellant’s constitutional rights to be free
from double jeopardy and his right to a jury trial.
II. Law and Analysis
A. Motion to Suppress
{¶12} In his first assignment of error, appellant argues that the trial court erred by denying
his motion to suppress the evidence recovered at the time of his arrest. Specifically, appellant
contends that (1) the officers did not have a reasonable, articulable suspicion that appellant
engaged in criminal activity to justify removing him from the vehicle, (2) the officers violated
Cleveland Heights Ordinances (“CHO”) 303.11 by towing his vehicle, and (3) the officers
illegally searched the vehicle without a warrant.
1. Standard of Review
{¶13} This court reviews a decision on a suppression motion under a mixed standard of
review. “In 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 evaluate witness credibility.” State v. Curry, 95
Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must accept the
trial court’s findings of fact in ruling on a motion to suppress if the findings are supported by
competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to the trial court’s conclusion of law, the reviewing court applies a
de novo standard of review and decides whether the facts satisfy the applicable legal standard.
Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
2. Initial Encounter
{¶14} Appellant does not dispute that the officers had probable cause to arrest him for
OVI after smelling alcohol on his breath and administering field sobriety tests. Instead,
appellant argues that because the officers did not suspect that he was engaged in criminal
activity, they did not have the right to remove him from the vehicle and detain him. Appellant
appears to argue that everything that occurred after the illegal seizure is inadmissible.
{¶15} The Fourth Amendment to the United States Constitution prohibits warrantless
searches and seizures, rendering them, per se, unreasonable unless an exception applies. Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, as set
forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is a common exception
to the Fourth Amendment warrant requirement. Under Terry, both the stop and seizure must be
supported by a reasonable suspicion of criminal activity. The state must be able to point to
specific and articulable facts that reasonably suggest criminal activity “may be afoot.” Terry at
9. Inarticulable hunches, general suspicion, or no evidence to support the stop is insufficient as
a matter of law. State v. Smith, 8th Dist. Cuyahoga No. 89432, 2008-Ohio-2361, 8.
{¶16} A traffic offense meets the requirements under Terry, constituting reasonable
grounds for an investigative stop. State v. Davenport, 8th Dist. Cuyahoga No. 83487,
2004-Ohio-5020, ¶ 16, citing State v. Carlson, 102 Ohio App.3d 585, 596, 657 N.E.2d 591 (9th
Dist.1995). However, the scope of a detention “must be carefully tailored to its underlying
justification * * * and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
{¶17} When a law enforcement officer, during a valid investigative stop, ascertains
reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may then
further detain and implement a more in-depth investigation of the individual. State v. Robinette,
80 Ohio St.3d 234, 685 N.E.2d 762 (1997). Accord State v. Dieckhoner, 8th Dist. Cuyahoga
No. 96694, 2012-Ohio-805, ¶ 15. An officer may expand the scope of the stop and may
continue to detain the vehicle without infringing on the Fourth Amendment “if during the scope
of the initial stop an officer encounters additional specific and articulable facts which give rise to
a reasonable suspicion of criminal activity beyond that which prompted the stop,* * * for as long
as the new articulable and reasonable suspicion continues.” State v. Waldroup, 100 Ohio
App.3d 508, 513, 654 N.E.2d 390 (12th Dist.1995).
{¶18} In the instant matter, it is undisputed that appellant violated the overnight parking
ban set forth in CHO 351.09. CHO 351.09 provides, in relevant part, “[n]o person * * * shall
park any vehicle on any street in the City between the hours of 3:00 a.m. and 6:00 a.m.”
Appellant argues that CHO 303.11 authorized the officers to issue a parking violation notice.
However, appellant argues that the officers’ observations did not warrant further investigation
into the matter and that the officers did not have the right to remove him from the vehicle. We
disagree.
{¶19} Officer Rini explained that he pulled up to the vehicle in which appellant was
sitting because the car was illegally parked, the driver’s door was ajar, and the vehicle’s engine
was running. Officer Rini testified that before he approached the vehicle, he ran the vehicle’s
license plates and determined that the vehicle’s registered owner was a female. Furthermore,
before approaching the vehicle, Officer Rini contacted dispatch and requested that another unit meet him at the scene to check on the vehicle. Officer Rini explained that he initially
approached the vehicle before the additional unit arrived and observed appellant sleeping in the
driver’s seat. Officer Rini testified that the keys were in the ignition, the car was in park, the
engine was running, the dashboard lights were on, and he heard music coming from the vehicle.
Officer Rini testified that based on his initial observations, he “didn’t know if the person in the
vehicle was alive or in need of medical assistance or simply sleeping.”
{¶20} Officer Rini testified that Officer Wolske arrived on the scene and that they
attempted to wake appellant by tapping him on the shoulder, speaking to him, shining flashlights
inside the vehicle, and banging on the door. The officers were able to wake appellant after two
to three minutes. When appellant woke up, he immediately grabbed the driver’s door and
attempted to close it. Appellant informed the officers that he was “good” and “fine.”
Appellant attempted to close the driver’s door two more times, but Officer Rini prevented him
from doing so. Officer Rini explained why he prevented appellant from closing the door: “I
didn’t know who [the individual] was, what he was doing in that vehicle, if he was going to
attempt to drive away. I didn’t know if he needed medical assistance at that point.”
{¶21} Officer Rini testified that when appellant woke up, “[h]e appeared, in the way he
was talking, disoriented, wasn’t sure where he was.” Officer Rini explained that he asked
appellant if he knew where he was and that appellant said “Caledonia Avenue” when he was in
fact parked on Greyton Road. Officer Rini testified that he asked appellant for his
identification, but that appellant would not provide it to him. Officer Rini testified that he
removed appellant from the vehicle, explaining, “I didn’t know if he was the operator of the
vehicle, if he was in there attempting to steal things or take anything from the vehicle. I had
asked him to identify himself and he hadn’t. I felt for — I didn’t want him attempting to drive away in the vehicle, so it was easier for me to get him out of the vehicle and speak with him.”
{¶22} Officer Rini testified that he removed appellant from the vehicle because he was
concerned about appellant’s health and well-being, appellant refused to provide identification to
the officers, and he did not want appellant to attempt to drive away from the officers.
{¶23} Following a hearing on appellant’s motion to suppress the evidence, the trial court
concluded:
The parking violation alone gave Officer Rini justification to investigate [appellant’s] behavior and to order him out of the vehicle.
***
The testimony during the suppression hearing was that Officer Rini observed [appellant’s] vehicle parked illegally on Greyton Road. The vehicle was idling, and the front driver’s side door was open.
Officer Rini approached and saw [appellant] sleeping in the driver’s seat and that [appellant] was unresponsive. Both officers attempted to wake [appellant] but were unsuccessful for two to three minutes.
When [appellant] did awake, he attempted to close the door, telling officers, “I’m good.” He did this several times.
Officer Rini stated that he prevented [appellant] from closing the door and stated that he was concerned for [appellant’s] safety and the safety of the public.
[I]t just belies credibility that an officer would see a running vehicle at 5:00 a.m. in the morning, parked illegally, with the driver sleeping, and the driver’s front door open, and that the officer simply issue a citation and move on.
Further investigation in this case was warranted. I think it was necessary. And
based on this, I find that Officer Rini had probable cause to escort [appellant]
from the vehicle.
{¶24} After thorough review, we find that the trial court’s findings are supported by
competent and credible evidence in the record. The evidence shows that Officer Rini observed the parking violation and this served as a lawful basis to stop the vehicle. Officer Rini further
testified that he observed appellant in the front seat and that he did not know whether he “was
alive or in need of medical assistance or simply sleeping.” When the officers were able to wake
appellant, he appeared to be disoriented and did not know what street he was on. Officer Rini
testified that he asked appellant for his identification, but that appellant would not provide it to
him. Furthermore, the officers testified that appellant tried to close the vehicle’s front driver’s
door three times and that the vehicle was running. Based upon the totality of the circumstances,
the officers’ observations created reasonable and articulable suspicion that criminal activity was
afoot, justifying further investigation and the detention of appellant.
{¶25} Once a motor vehicle has been lawfully detained for a traffic violation, the police
officers may order the driver to get out of the vehicle, even if the officer does not have reasonable
suspicion of criminal activity. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977); State v. Hoskins, 8th Dist. Cuyahoga No. 80384, 2002-Ohio-3451, ¶ 14;
State v. Travis, 8th Dist. Cuyahoga No. 98420, 2013-Ohio-581, ¶ 14. Thus, even if appellant
had not appeared to be disoriented, refused to provide his identification to the officers, or not
attempted to close the driver’s door, the officers were justified in ordering him to exit the vehicle.
See Hoskins at ¶ 14.
{¶26} In support of his argument that the trial court erred by denying his motion to
suppress, appellant directs this court to State v. Medlar, 93 Ohio App.3d 483, 638 N.E.2d 1105
(8th Dist.1994). In Medlar, a North Olmsted police officer observed a vehicle illegally parked
at Great Northern Mall. When the officer observed the parking violation, the vehicle was
unoccupied. However, rather than writing the parking citation and leaving it on the vehicle, the
officer waited for the driver to return so that he could personally serve him with the parking citation. Defendant-appellant returned to the illegally parked vehicle and began to drive away.
The officer stopped appellant, administered field sobriety tests, and placed him under arrest for
driving under the influence of alcohol.
{¶27} On appeal, appellant challenged the trial court’s denial of his motion to suppress
the evidence, arguing that the parking violation did not justify the officer’s Terry stop. This
court reversed the trial court’s judgment, finding that the officer’s investigatory stop was
unwarranted because “[t]he parking violation had been completed before [appellant] entered his
vehicle, therefore, there was nothing for [the officer] to investigate.” Id. at 487. This court
emphasized that the officer was not able to point to specific and articulable facts that reasonably
warranted an investigatory stop of appellant. This court concluded that “[t]he ‘totality of the
circumstances’ [did] not demonstrate [appellant] engaged in criminal activity except for the
illegal parking for which the officer could or should have simply issued a citation and placed it
on the windshield.” Id. at 491.
{¶28} Appellant’s reliance on Medlar is misplaced. Officer Rini testified that when an
unoccupied vehicle is illegally parked, he ordinarily leaves a parking ticket on the windshield.
However, unlike Medlar, the vehicle was not unoccupied when Officer Rini observed the parking
violation. Furthermore, unlike Medlar, Officer Rini’s observations upon approaching the
vehicle, as outlined above, warranted further investigation.
{¶29} Appellant further suggests that a police officer may only order an occupant to exit a
vehicle when the driver committed a traffic violation, and that officers may not order an
individual who committed a parking violation out of a vehicle. In State v. Jones, 8th Dist.
Cuyahoga No. 92820, 2009-Ohio-5701, an East Cleveland police officer approached a vehicle
that was parked in violation of a city parking ordinance. On appeal, defendant-appellant challenged the trial court’s denial of his motion to suppress the evidence, arguing that the officer
did not have the right to detain him because he only observed a parking violation, not a criminal
violation. This court affirmed the trial court’s judgment, concluding that the officer “had
probable cause to approach [appellant] because he observed [appellant] violating an East
Cleveland parking ordinance. The fact that it was a parking violation, and not a traffic
violation, is a distinction without a difference.” Id. at 32, citing State v. Nevins, 2d Dist.
Montgomery No. 15968, 1997 Ohio App. LEXIS 1839 (May 9, 1997) (police officer observed a
parking violation and thus, had probable cause to stop a vehicle). In the instant matter, we find
that the officers had probable cause to approach appellant because they observed him parked in
violation of CHO 351.09. Furthermore, we find that the officers’ further investigation and
detention of appellant were warranted based on their observations after approaching the vehicle.
{¶30} Based on the foregoing analysis, we find that the officers lawfully seized appellant.
3. Tow
{¶31} Appellant argues that the officers violated CHO 303.11 by towing the vehicle.
Specifically, appellant argues that CHO 303.08(b)(4) required the officers to inquire whether a
licensed driver could move the vehicle before ordering a tow.
{¶32} CHO 303.08(b) provides, in relevant part, “[p]olice officers are authorized to
provide for the removal and impoundment of a motor vehicle when such vehicle is in violation of
subsections (b)(1) * * * and if the conditions outlined in subsection (b)(4) hereof are not
satisfied.” CHO 303.08(b)(1) authorizes police officers to remove and impound any vehicle
that “is left unattended due to the removal of an ill, injured or arrested operator.”
CHO 303.08(b)(4) provides: No tow or impoundment authorized by [CHO 303.08(b)] shall be undertaken and completed unless:
A. The operator of the vehicle is unwilling or unable to remove or provide for the removal of the vehicle in question.
B. Satisfactory arrangements are made for removal of such vehicle and the vehicle is not actually removed within three hours from such time.
{¶33} On the other hand, the state argues that the vehicle was lawfully impounded
pursuant to CHO 303.08(a)(5). CHO 303.08(a)(5) provides that “[p]olice officers are authorized
to provide for the removal and impounding of a vehicle * * * [that] has been used in or
connected with the commission of a felony or misdemeanor of the first degree.” In the instant
matter, appellant was arrested for OVI, a first-degree misdemeanor in violation of
R.C. 4511.19(A)(1)(a).
{¶34} The trial court concluded:
[appellant’s] vehicle was lawfully impounded pursuant to the City of Cleveland Heights ordinance 303.08[.]
The Cleveland Heights ordinance 303.08 Subsection (a)(5), permits impounding a vehicle when it has been used in or connected with the commission of a felony or a misdemeanor of the first degree.
And although [defense counsel] and [appellant], you cite to other sections of the code which requires further action of the part of the officers before impounding a vehicle, such as contacting somebody else to remove the vehicle, [appellant] was arrested, and according to what I found so far, lawfully so, for an OVI, which is a first degree misdemeanor.
{¶35} After reviewing the record, we conclude that it contains competent and credible
evidence to support the trial court’s findings.
{¶36} Officer Rini explained that he ordered the vehicle to be towed because (1)
appellant used the vehicle in the commission of a crime, specifically operating a vehicle while intoxicated, a first-degree misdemeanor, (2) he did not believe that appellant was able to drive
the vehicle away based on his determination that appellant “was appreciably impaired [and]
unable to operate a motor vehicle,” and (3) the Cleveland Heights Police Department does not
leave parked or abandoned vehicles on the side of the road. Officer Rini acknowledged that he
did not ask appellant if he could call somebody to move the vehicle. However, Officer Rini
knew that appellant was not the registered owner of the vehicle when he ordered the tow.
Furthermore, although Officer Rini had identified the vehicle’s registered owner by running the
license plates, he testified that he did not attempt to contact the owner before towing the vehicle
because he did not have the owner’s phone number.
{¶37} For all of the foregoing reasons, we find that the officers lawfully impounded the
vehicle. CHO 303.08(a)(5) expressly authorized the officers to remove and impound the vehicle
after arresting appellant for OVI, a first-degree misdemeanor. Furthermore, we find no merit to
appellant’s argument that the officers violated CHO 303.08(b)(4) by towing the vehicle. It is
undisputed that appellant was not the owner of the vehicle. Officer Rini determined that
appellant was disoriented and “appreciably impaired.” Under these circumstances, we cannot
say that the tow was unlawful because the officers did not give appellant an opportunity to make
arrangements for the vehicle to be removed.
{¶38} Accordingly, we find that the vehicle in which the officers found appellant was
lawfully towed and impounded.
4. Inventory Search
{¶39} Appellant argues that the officers “illegally search[ed] [appellant’s] vehicle in a
manner which far exceeded the scope of any ‘inventory search[.]’” Specifically, appellant
claims that Officer Wolske unlawfully searched the glove compartment “without any proof of evidence that the glovebox was unlocked.” Appellant’s argument is entirely unsupported by the
record.
{¶40} Inventory searches are a well-defined exception to the warrant requirement of the
Fourth Amendment. State v. Mesa, 87 Ohio St.3d 105, 108, 717 N.E.2d 329 (1999). Inventory
searches involve administrative procedures conducted by law enforcement officials and are
intended to protect an individual’s property while it is in police custody, protect the police
against claims of lost, stolen, or vandalized property, and protect police from dangerous
instrumentalities. Id. at 109. Because inventory searches are administrative caretaking
functions unrelated to criminal investigations, the policies underlying the Fourth Amendment
warrant requirement are not implicated. Id. Rather, the validity of an inventory search of a
lawfully impounded vehicle is judged by the Fourth Amendment’s standard of reasonableness.
Id. “To satisfy the requirements of the Fourth Amendment, 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.” State v. Hathman, 65 Ohio St.3d 403, 407,
604 N.E.2d 743 (1992).
{¶41} The trial court concluded:
I find that the inventory search conducted by the arresting officers, which is an exception to the warrant requirement, was lawful and that the contents recovered during that search are admissible as evidence in this case.
At the time the search was conducted, [appellant’s] vehicle was lawfully impounded pursuant to the City of Cleveland Heights ordinance 303.08, and the inventory search was conducted to Cleveland Heights vehicle inventory procedure.
The Cleveland Heights ordinance 303.08 Subsection (a)(5), permits impounding a vehicle when it has been used in or connected with the commission of a felony or a misdemeanor of the first degree.
And although [defense counsel] and [appellant], you cite to other sections of the code which requires further action of the part of the officers before impounding a vehicle, such as contacting somebody else to remove the vehicle, [appellant] was arrested, and according to what I found so far, lawfully so, for an OVI, which is a first degree misdemeanor.
So I find that the search was conducted in compliance with the city’s inventory procedure which allowed the officers to search the unlocked areas of the vehicle and open closed containers.
{¶42} After reviewing the record, we conclude that it contains competent and credible
evidence to support the trial court’s findings. In State v. Semenchuk, 122 Ohio App.3d 30, 701
N.E.2d 19 (8th Dist.1997), this court held that “testimony to the effect that the officer was
adhering to standard police procedures” is sufficient in demonstrating that the inventory search
was lawful. Id. at 40.
{¶43} In the instant matter, there is ample evidence that the decision to conduct the
inventory search of the vehicle was made in good faith and in accordance with the city of
Cleveland Heights’ standardized procedure regarding such searches. Officer Rini testified that
he conducted a vehicle inventory with Officer Wolske after ordering the tow. Officer Rini
stated that the Cleveland Heights Police Department has an established policy for conducting
vehicle inventories, and that he followed the procedure when he conducted the inventory search
of appellant’s car. Officer Rini explained that “we checked any unlocked compartments; the
glove box, the trunk, areas underneath the driver’s seat. * * * on the driver’s side door, the
pocket in the door. In the sun visors. Any boxes that are — packages that are in the vehicle.”
Officer Rini testified that the department’s policy authorizes officers to search closed containers
but not locked containers. Officer Rini stated that if something is locked inside a vehicle, “you
list it on the inventory as a locked container or a locked glove box,” and that officers are required
to obtain a search warrant before searching the locked compartments or containers.
{¶44} Officer Rini explained that he searched the back seat of the vehicle and Officer Wolske searched the front seat of the vehicle. Officer Rini testified that Officer Wolske told
him that the vehicle’s glove compartment was unlocked. Officer Rini stated that he observed a
red cooler in the backseat. Even though the cooler was closed, Officer Rini explained that he
opened it because it was unlocked.
{¶45} Appellant suggests that the officers should have locked the vehicle and obtained a
search warrant before searching the vehicle. However, Officer Rini testified that the
department’s procedure does not call for such a course of action, explaining that “[w]e would
have to put an officer sitting at that vehicle. You can’t leave the vehicle unattended and come
back with a search warrant to search it. [A] [w]indow could be smashed or the door could be
forced open and anything that was in that vehicle could have been taken at that point.”
{¶46} Accordingly, the record establishes that the officers conducted the inventory search
of the vehicle in a lawful and reasonable manner, complying with the department’s established
inventory procedure.
{¶47} Furthermore, appellant’s assertion that the vehicle’s glove compartment was locked
is entirely unsupported by the record. The trial court did not find appellant’s version of the
events to be credible, concluding that “[a]lthough there was an allegation that the glove
compartment was locked, Officer Rini testified that it was unlocked, and this testimony was not
contradicted by other evidence.” As a reviewing court, we defer to the trial court’s credibility
determinations. The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact, who observed the witness in person. State v. Dunbar, 8th
Dist. Cuyahoga No. 99740, 2014-Ohio-383, 18, citing State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967).
{¶48} Based on the foregoing analysis, we find that the officers’ inventory search was lawful.
{¶49} For all of the foregoing reasons, the trial court’s findings regarding (1) the officers’
initial encounter and detention of appellant, (2) the tow and impoundment of the vehicle, and (3)
the inventory search of the vehicle are supported by competent, credible evidence. Furthermore,
following our de novo review of the trial court’s conclusions of law, we find that the court’s
findings satisfy the applicable legal standards. Accordingly, the trial court did not err in denying
appellant’s motion to suppress.
{¶50} Appellant’s first assignment of error is overruled.
B. Having Weapons While Under Disability Conviction
{¶51} In his second assignment of error, appellant argues that his conviction for having
weapons while under disability violated his protections against double jeopardy, was barred by
the doctrine of collateral estoppel, and was inconsistent with the jury’s verdict.
1. Double Jeopardy
{¶52} Appellant contends that the trial court’s verdict violated his double jeopardy
protections. In response, the state argues that double jeopardy is not implicated in the instant
matter because this case does not involve successive prosecutions, but rather a single,
multi-count proceeding before different fact finders.
{¶53} Double jeopardy was established by the Fifth Amendment to the Constitution of
the United States, which states: “No person shall * * * be subject for the same offence to be
twice put in jeopardy of life or limb * * * .” The Fifth Amendment has been made applicable to
the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct.
2056, 23 L.Ed.2d 707 (1969). It is well established that the Double Jeopardy Clause protects
against successive prosecutions for the same offense after acquittal or conviction. State v. Edwards, 8th Dist. Cuyahoga Nos. 94568 and 94929, 2011-Ohio-95, ¶ 17, citing Brown v. Ohio,
432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
{¶54} In the instant matter, it is undisputed that the appellant was not subjected to
successive prosecutions for the same offenses. All of the nine counts in this case were tried as
part of a single prosecution. Accordingly, we find that double jeopardy is inapplicable.
2. Collateral Estoppel
{¶55} Appellant contends that his conviction for having weapons while under disability
was barred by the doctrine of collateral estoppel. Specifically, appellant argues that the jury’s
verdict finding him not guilty of the offenses of possessing criminal tools, carrying concealed
weapons, and improperly handling firearms in a motor vehicle “factually negated elements of
proof necessary to establish [his conviction for] having weapons while under disability.”
Appellant further suggests that his conviction was barred by the collateral estoppel component of
double jeopardy because the jury found him not guilty of the offenses of possessing criminal
tools, carrying concealed weapons, and improperly handling firearms in a motor vehicle before
the trial court found him guilty of having weapons while under disability.
{¶56} The United States Supreme Court held that the rule of collateral estoppel is
embodied by the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397
U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
Collateral estoppel is the doctrine that recognizes that a determination of facts
litigated between two parties in a proceeding is binding on those parties in all
future proceedings. Collateral estoppel “means simply that when an issue of
ultimate fact has once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future lawsuit.[”] (Emphasis added.) State v. Lovejoy, 79 Ohio St.3d 440, 443, 683 N.E.2d 1112 (1997), quoting
Ashe at 443.
{¶57} As outlined above, the instant matter neither involves successive prosecutions nor
future proceedings. Nevertheless, appellant argues that the doctrine of collateral estoppel can be
implicated in a single proceeding, directing this court to Galloway v. Maryland, 371 Md. 379,
809 A.2d 653 (2002).
{¶58} In Galloway, the defendant-appellant was charged, in relevant part, with use of a
handgun in the commission of a felony or crime of violence, carrying a handgun, and two counts
of possession of a firearm after having been previously convicted of a crime. Id. at 383. The
use of a handgun in the commission of a felony or crime of violence and carrying a handgun
counts were tried to a jury, and the jury found appellant not guilty of the offenses. The
possession of a firearm after having been previously convicted of a crime counts were tried to the
trial court, and the trial court found appellant guilty of the offenses. On appeal, appellant raised
two issues: (1) whether the trial court’s verdict contradicting the jury’s acquittal on the issue of
possession was barred under the Double Jeopardy Clause of the Fifth Amendment and Maryland
common law, and (2) whether the trial court erred by rendering an inconsistent verdict. Id. at
384-385. The appellate court explained the inconsistent verdicts regarding the issue of
possession:
At a given point in time, the jury held that appellant did not possess the handgun. The trial court necessarily held that, at the same given point in time, appellant, a felon, was in possession of the same handgun.
In the present case, there is only one issue, one “scenario.” Appellant, at the point in time at issue, was either carrying the weapon or he was not. The jury found that he was not carrying it; subsequently, based on the identical evidence presented only once in the same trial, the judge found that, at the identical point in time, he was. * * * [T]he judge’s verdict in the case sub judice effectively nullifies the jury’s verdict. It is, without question, inconsistent.
Id. at 400-402.
{¶59} The appellate court reversed appellant’s convictions, concluding that “[t]he trial
court should have honored the jury’s verdict and not rendered inconsistent verdicts. Upon
receiving the jury’s verdicts, the trial judge should have dismissed [the possession of a firearm
after having been previously convicted of a crime counts].” Id. at 416. However, in reversing
the trial court’s judgment, the court noted that it relied on Maryland common law principles, not
on the constitutional issue of double jeopardy or collateral estoppel. Id. at 394.
{¶60} In the instant matter, the defense’s theory of the case was that neither the vehicle
nor the firearm belonged to appellant and that appellant had no knowledge that the firearm was in
the vehicle’s glove compartment. Appellant argues that because the jury concluded that the state
failed to prove that he knowingly carried, had, or transported the firearm recovered from the
vehicle’s glove compartment, the trial court was precluded from concluding that he knowingly
had or possessed the firearm for the purposes of the offense of having weapons while under
disability.2 After thorough review, we find that the jury’s acquittal did not preclude the trial
court’s verdict finding appellant guilty of having weapons while under disability. For the
reasons that follow, Ohio law does not require acquittal on the separate charge of having
weapons while under disability based on the jury’s verdict. Accordingly, appellant’s reliance on
Galloway is misplaced.
3. Inconsistent Verdicts
2 Appellant’s argument would be appropriate in a sufficiency challenge rather than an alleged double jeopardy or collateral estoppel violation. However, because appellant fails to assign sufficiency of the evidence as error, it is not properly before this court for review. See App.R. 16(A)(7). {¶61} Appellant contends that the trial court’s verdict was inconsistent with, and
contradicted by, the jury’s verdict. In response, the state argues that the conviction should not
be reversed on inconsistency grounds, emphasizing that having weapons while under disability is
a separate and distinct offense from the offenses on which the jury returned a verdict of not
guilty.
{¶62} The Supreme Court of Ohio has held that the counts of an indictment “are not
interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to
different counts, but only arises out of inconsistent responses to the same count.” (Emphasis
added.) Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112, at paragraph one of the syllabus. The
court further explained that “[d]ouble jeopardy and collateral estoppel do not apply where the
inconsistency in the responses arise out of inconsistent responses to different counts, not out of
inconsistent responses to the same count.” Id. at paragraph two of the syllabus.
{¶63} In State v. Brown, 8th Dist. Cuyahoga No. 89754, 2008-Ohio-1722,
defendant-appellant was charged with attempted murder, felonious assault, and having a weapon
while under disability. All counts were tried to a jury except for the count charging the appellant
with having a weapon while under disability, which was tried to the bench. The jury acquitted
the appellant of attempted murder and felonious assault, and the trial court found him guilty of
having a weapon while under disability.
{¶64} On appeal, the appellant challenged his conviction for having a weapon while
under disability, arguing that the trial court’s verdict was inconsistent with the jury’s acquittal on
the charges of attempted murder and felonious assault. This court rejected appellant’s
arguments, concluding, in relevant part:
In Ohio, inconsistency requiring acquittal does not arise out of a jury’s inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. * * * This is so because the several counts of an indictment are independent, and a verdict responding to a designated count will be construed in the light of the count designated, and no other. * * * In contrast with civil cases, consistency between verdicts on several counts of a criminal indictment is unnecessary and, where the defendant is convicted on one or some counts and acquitted on others, the conviction will generally be upheld, irrespective of its rational incompatibility with the acquittal.
In State v. Hunter, [2d Dist.] Montgomery No. 13614, 1993 Ohio App. LEXIS 3655 [(July 23, 1993)], the court found the defendant guilty of having a weapon while under a disability, and the jury was unable to reach a verdict on a separate charge of carrying a concealed weapon. On appeal, the court held that the two offenses contained separate elements; therefore, the verdicts did not present a logical inconsistency. Id. The court further noted that “even had [the defendant] been found not guilty by the jury on the charge of carrying a concealed weapon, that would not require acquittal on the separate charge of having a weapon under disability.” Id. * * *
Similarly, we do not find that the jury’s acquittal on the charges of attempted murder and felonious assault are inconsistent with the trial court’s determination of guilt on having a weapon while under a disability. These three offenses are separate charges, each requiring proof beyond a reasonable doubt on a different set of elements * * *.
Id. at ¶ 27-29.
{¶65} In State v. Webb, 10th Dist. Franklin No. 10AP-2289, 2010-Ohio-6122,
defendant-appellant challenged the trial court’s guilty verdict for having weapons while under
disability. Appellant argued that the trial court’s verdict was inconsistent with the jury’s
inability to reach a verdict on the count of improperly handling firearms in a motor vehicle, and
that his conviction was barred by double jeopardy and collateral estoppel. Furthermore,
appellant argued that the improper handling and having weapons while under disability counts
were “effectively the same count.” Id. at ¶ 60. The appellate court rejected appellant’s
arguments, concluding that there was no basis requiring reversal of appellant’s conviction for
having weapons while under disability. Id. at ¶ 63. {¶66} In State v. Wingfield, 2014-Ohio-2053, 11 N.E.3d 732 (8th Dist.), the jury acquitted
defendant-appellant of carrying concealed weapons and tampering with evidence, and the trial
court found him guilty of having weapons while under disability. On appeal, appellant argued
that his conviction for having weapons while under disability was not supported by sufficient
evidence.3 This court vacated appellant’s conviction, concluding:
An appellate court is not permitted to speculate about the reason for the inconsistency when it determines the validity of a verdict. State v. Morris, 8th Dist. Cuyahoga No. 94923, 2011-Ohio-824, [¶ 12,] citing State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218, ¶16 (10th Dist). We conclude, without speculating, that the state failed to present sufficient evidence to prove beyond a reasonable doubt that Wingfield was guilty of having weapons while under disability. As such, Wingfield’s motion for acquittal should have been granted.
Id. at ¶ 31.
{¶67} In the instant matter, we find that the jury and the trial court rendered inconsistent
verdicts. The jury concluded that appellant did not knowingly carry, have, or transport the
firearm for the purposes of carrying concealed weapons and improperly handling firearms in a
motor vehicle. On the other hand, the trial court concluded that appellant did knowingly
acquire, have, carry, or use the same firearm for the purposes of having weapons while under
disability. However, under Ohio law, the inconsistency between the jury’s and the trial court’s
verdicts does not require acquittal on the charge of having weapons while under disability.
{¶68} The inconsistent verdicts did not pertain to the same count, but rather to separate
and distinct counts in the indictment. The counts in the indictment charging appellant with
carrying concealed weapons, improperly handling firearms in a motor vehicle, and having
3 As previously noted, appellant does not challenge his conviction for having weapons while under disability on sufficiency grounds. See also State v. Smith, 10th Dist. Franklin No. 14AP-33, 2014-Ohio-5443 (defendant-appellant challenged the trial court’s verdict finding him guilty of having weapons while under disability on sufficiency and manifest weight grounds after the jury acquitted him of aggravated burglary, aggravated robbery, weapons while under disability are independent, and the verdicts on the designated counts are
construed in the light of the designated counts, and no other. Browning v. State, 120 Ohio St.
62, 165 N.E. 566 (1929). Each count of a multi-count indictment is deemed distinct and
independent of all other counts, and thus inconsistent verdicts on different counts do not justify
overturning a verdict of guilt. See State v. Hicks, 43 Ohio St.3d 72, 78, 538 N.E.2d 1030
(1989); State v. Brown, 12 Ohio St.3d 147, 465 N.E.2d 889 (1984), paragraph one of the
syllabus. Consistency between verdicts on several counts of a criminal indictment is
unnecessary, and where the defendant is convicted on one or some counts and acquitted on others
the conviction will generally be upheld, irrespective of its rational incompatibility with the
acquittal. State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist.1985).
{¶69} Accordingly, we find that the inconsistency between the jury’s and the trial court’s
verdicts does not require reversal of appellant’s conviction for having weapons while under
disability.
{¶70} For all of the foregoing reasons, we find no merit to appellant’s second assignment
of error. Appellant’s conviction for having weapons while under disability did not violate his
protections against double jeopardy and was not precluded by the doctrine of collateral estoppel.
Furthermore, we cannot say that the inconsistency between the jury’s and the trial court’s
verdicts, rendered on separate and independent counts of the indictment, requires reversal of
appellant’s conviction. Thus, appellant’s second assignment of error is overruled.
III. Conclusion
{¶71} After thoroughly reviewing the record, we find that the trial court did not err by
denying appellant’s motion to suppress. Based on the totality of the circumstances, the officers
kidnapping, and felonious assault.) (1) lawfully approached appellant’s vehicle and seized appellant, (2) lawfully towed and
impounded the vehicle after arresting appellant for OVI, and (3) lawfully conducted an inventory
search of the vehicle before it was towed.
{¶72} We cannot say that appellant’s conviction for having weapons while under
disability requires reversal. The conviction neither violates appellant’s protections against
double jeopardy nor is precluded by the doctrine of collateral estoppel. Furthermore, the
inconsistency between the jury’s and the trial court’s verdicts does not require reversal of
appellant’s conviction because the verdicts pertained to separate, distinct, and independent
counts in the indictment.
{¶73} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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 convictions having been affirmed,
any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR