State v. Howell

2021 Ohio 1417

• Court: Ohio Court of Appeals
• Decided: April 22, 2021
• Docket: 2020 CA 0062
• Status: Published

Opinion

[Cite as State v. Howell, 2021-Ohio-1417.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. 2020 CA 0062 LAMAR HOWELL : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2019- CR-0801

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 22, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP GLORIA L. SMITH Prosecuting Attorney 670 Meridian Way, #188 BY: JOSEPH SNYDER Westerville, OH 43082 Assistant Prosecutor 38 South Park Street Mansfield, OH 44902 [Cite as State v. Howell, 2021-Ohio-1417.]

Gwin, J.,

{¶1} Defendant-appellant Lamar BN Howell [“Howell”] appeals from the April 13,

2020 Judgment Entry of the Richland County Court of Common Pleas that denied his

motion to suppress.

Facts and Procedural History

{¶2} On November 25, 2019 Howell was indicted for Count One: Aggravated

Possession of Drugs, in violation of R.C. 2925.11(A)&(C)(1)(c), a felony of the second

degree, with a Forfeiture Specification, in violation of R.C. 2941.1417; Count Two:

Having Weapons While Under Disability, in violation of R.C. 2923.13(A)(3)&(B), a felony

of the third degree, with a Forfeiture Specification, in violation of R.C. 2941.1417, and

Count Three: Possession of a Fentanyl-Related Compound, a violation of R.C.

2925.11(A)&(C)(11)(a), a felony of the fifth degree.

{¶3} On February 11, 2020, Howell filed a motion to suppress all evidence seized

from Howell’s person incident to his arrest, arguing that there was a lack of probable

cause for the arrest. The following evidence was presented during the evidentiary hearing

on Howell’s motion to suppress held in the trial court on April 1, 2020.

{¶4} Howell’s 13 year-old son came to Mansfield from his mother’s home in

Columbus sometime in October 2019. Supp. T. at 28-29.1 He brought a handgun with him

in his backpack that had been given to him by a friend. Supp. T. 30. Howell picked up his

son in Columbus and drove him to his home in Mansfield. Id. Howell’s son did not tell

Howell about the gun. Id. at 32.

1For clarity the transcript of the April 1, 2020 hearing on Howell’s motion to suppress will be referred to a “Supp.T.” Richland County, Case No. 2020 CA 0062 3

{¶5} Howell’s son made a video at Howell’s residence that showed the boy with

the handgun. Supp. T. at 32. This video was posted on the internet where some of the

boy’s classmates watched it. Id. Sometime on September 26, 2019, Howell was called to

his son’s school concerning the video. Supp. T. at 7. The school resource officer, Officer

Brewster, contacted Detective Dave Scheurer to meet Howell at Howell’s residence.

Supp. T. at 7.

{¶6} At the residence Howell executed a written consent to search form provided

to him by the officers. Supp. T. at 8; State’s Exhibit 1. Howell then told Detective Scheurer

that he could show him where the gun was hidden. Id. at 9. Howell then led the officers

around the house purporting to look for the handgun. Id. at 10. After approximately thirty

minutes, Detective Scheurer believed that Howell was being evasive. Id. Detective

Scheurer contacted Howell’s parole officer for assistance. Id. at 10-11. Eventually,

Detective Scheurer found a box for the handgun in a dresser in the living room area. Id.

at 12. Howell told Detective Scheurer that Howell’s ex-girlfriend owned the handgun and

had left the box at his residence. Id.

{¶7} Detective Scheurer called the school resource officer to see if Howell’s son

knew the whereabouts of the handgun. Detective Scheurer was informed that the boy

had stated the gun was in the attic in a pink milk crate. Supp. T. at 11. Finding no pink

milk crate in the attic, Detective Scheurer eventually located the handgun in a laundry

basket underneath some clothing. Id. He then arrested Howell for having a weapon while

under disability. During the search incident to arrest the drugs in question were found in

Howell’s pocket. Supp. T. at 13. Richland County, Case No. 2020 CA 0062 4

{¶8} The trial court overruled Howell’s motion to suppress by Judgment Entry

filed April 13, 2020.

{¶9} On August 28, 2020, Howell entered a plea of No Contest plea to Count

One: Aggravated Possession of Drugs, a felony of the second degree, with forfeiture

specification, and to Count Three: Possession of a Fentanyl-Related Compound, a felony

of the fifth degree. The state dismissed Count Two: Having Weapons under Disability.

{¶10} On Count One, Howell was sentenced to 4 to 6 years mandatory time in

prison, and on Count Three Howell was sentenced to 12 months in prison, sentences to

be served concurrent to each other, with 3 years mandatory post-release control.

Assignments of Error

{¶11} Howell raises two Assignments of Error:

{¶12} “I. THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THERE

WAS PROBABLE CAUSE TO ARREST APPELLANT FOR HAVING A WEAPON

UNDER DISABILITY.

{¶13} “II. THE TRIAL COURT'S FINDINGS OF FACT WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

I & II.

{¶14} In his First Assignment of Error, Howell maintains his awareness of the

handgun arose because he saw his son's video at the school with the resource officer,

and therefore, the officers did not have sufficient probable cause to arrest him for having

unlawful possession of the gun. In his Second Assignment of Error, Howell contends the

state failed to present the testimony of the school resource officer, and without this Richland County, Case No. 2020 CA 0062 5

testimony, the state did not meets its burden that there was probable cause to arrest

Howell for possessing an unlawful weapon.

Standard of Appellate Review – Motion to Suppress

{¶15} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. 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 witness

credibility. See, State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must

defer to the trial court’s factual findings if competent, credible evidence exists to support

those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328,

332, 713 N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d

1268 (4th Dist. 1996). However, once this Court has accepted those facts as true, it must

independently determine as a matter of law whether the trial court met the applicable legal

standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122

S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court’s findings

of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight

should be given “to inferences drawn from those facts by resident judges and local law

enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663. Richland County, Case No. 2020 CA 0062 6

Issue for Appellate Review: Whether there was sufficient evidence to

establish that the officers had probable cause to arrest Howell for Having

Weapons While under Disability.

{¶16} R.C. 2923.13 Having Weapons While under Disability provides in relevant

part,

(A) Unless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordinance, if any of the following apply:

***

(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been

a felony offense of violence.

{¶17} In the case at bar, the defense stipulated that Howell was under disability

at the time the officers searched his home. Supp. T. at 13. Therefore the only issue is

whether the officers had probable cause to believe that Howell had knowledge that the

handgun was in his home. “Whether a person acts knowingly can only be determined,

absent a defendant's admission, from all the surrounding facts and circumstances,

including the doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d

695 (1st Dist. 2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,

2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott,

104 Ohio App.3d 812, 663 N.E.2d 412 (10th Dist. 1995). Richland County, Case No. 2020 CA 0062 7

{¶18} The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Because arrests are “seizures” of “persons,” they must be reasonable under the

circumstances. See, Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d

639 (1980). A warrantless arrest is reasonable if the officer has probable cause to believe

that the suspect committed a crime in the officer’s presence. Atwater v. Lago Vista, 532

U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In District of Columbia v. Wesby,

the United States Supreme Court defined the standard as follows,

To determine whether an officer had probable cause for an arrest,

“we examine the events leading up to the arrest, and then decide ‘whether

these historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause.’” Maryland v. Pringle,

540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Ornelas

v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911

(1996)). Because probable cause “deals with probabilities and depends on

the totality of the circumstances,” 540 U.S., at 371, 124 S.Ct. 795, it is “a

fluid concept” that is “not readily, or even usefully, reduced to a neat set of

legal rules,” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983). It “requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.” Id., at 243–244, n. 13, 103

S.Ct. 2317 (1983). Probable cause “is not a high bar.” Kaley v. United

States, 571 U.S. ––––, ––––, 134 S.Ct. 1090, 1103, 188 L.Ed.2d 46 (2014).

___U.S.___, 138 S.Ct. 577, 586, 199 L.Ed.2d 453(2018). Richland County, Case No. 2020 CA 0062 8

{¶19} “When the constitutional validity of an arrest is challenged, it is the function

of a court to determine whether the facts available to the officers at the moment of the

arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been

committed”. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142(1964), citing

Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543. Accord,

State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39. In State v.

Perez, the Ohio Supreme Court added,

“Probable cause does not require the same type of specific evidence

of each element of the offense as would be needed to support a conviction.”

Adams v. Williams (1972), 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d

612. Rather, probable cause is a “practical, nontechnical conception,”

Brinegar v. United States (1949), 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed.

1879, that “turn[s] on the assessment of probabilities in particular factual

contexts.” Illinois v. Gates (1983), 462 U.S. 213, 232, 103 S.Ct. 2317, 76

L.Ed.2d 527.

124 Ohio St.3d 122, 2009-Ohio-6169, 920 N.E.2d 104, ¶73 (emphasis in original).

{¶20} R.C. 2925.01(K) defines possession as follows: “‘Possess’ or ‘possession’

means having control over a thing or substance, but may not be inferred solely from mere

access to the thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.” R.C. 2901.21 provides the requirements for

criminal liability and provides that possession is a “voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware of the possessor’s Richland County, Case No. 2020 CA 0062 9

control of the thing possessed for sufficient time to have ended possession.” R.C.

2901.21(D)(1).

{¶21} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d

174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d

787(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362(1982), syllabus. To

establish constructive possession, the evidence must prove that the defendant was able

to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d

316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial

evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93(8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86

Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th

Dist. Licking No. 2004 CA 68, 2005-Ohio-4714,¶ 50; State v. Moses, 5th Dist. Stark No.

2003CA00384, 2004-Ohio-4943,¶ 9. Ownership of the contraband need not be

established in order to find constructive possession. State v. Smith, 9th Dist. Summit No.

20885, 2002-Ohio-3034, ¶ 13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d

585(8th Dist. 1993). Furthermore, possession may be individual or joint. Wolery, 46 Ohio

St.2d at 332, 348 N.E.2d 351. Multiple individuals may constructively possess a particular

weapon simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000-Ohio-1986.

The Supreme Court has held that knowledge of illegal goods on one’s property is

sufficient to show constructive possession. State v. Hankerson, 70 Ohio St.2d 87, 91, 434

N.E.2d 1362, 1365(1982), certiorari denied, 459 U.S. 870, 103 S.Ct. 155, 74 L.Ed.2d

130(1982). Richland County, Case No. 2020 CA 0062 10

{¶22} In the case at bar, Howell’s son posted a video from Howell’s home in which

the son displayed a handgun. Howell told Detective Scheurer that he could show him

where the gun was hidden. Supp. T. at 9. Howell claimed he forgot where he put the gun

as he led the officers around the home purporting to retrieve the weapon. Howell claimed

he did not know about the handgun until he viewed the online video made by his son;

however upon, finding a box belonging to the handgun in the living room Howell claimed

the handgun belonged to his girlfriend, suggesting that Howell was aware of the

handgun’s presence. Howell’s misleading and evasive behavior gave the officers reason

to discredit everything he had told them. For example, the officers could infer from

Howell’s leading them around the home indicating his inability to remember where he had

put the handgun that Howell was lying and that his lies suggested a guilty mind. Upon

finding the box belonging to the handgun in the living room and Howell’s contention that

the handgun was his ex-girlfriends the officers could infer that Howell was aware a

handgun was in the home.

{¶23} “Probable cause” is a lesser standard of proof than a “beyond reasonable

doubt” standard. “An officer is not required to determine whether someone who has been

observed committing a crime might have a legal defense to the charge.” State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4538, 894 N.E.2d 1204, ¶ 17. The question of whether a

defendant might have a possible defense to a charge is irrelevant in our analysis of

whether an officer has probable cause to initiate an arrest. Id.

{¶24} 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. Downs, 5th Dist. Licking Nos. 13-CA-77, 13-CA-76, 2014-Ohio-589, Richland County, Case No. 2020 CA 0062 11

1117, citing State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). The Ohio

Rules of Evidence give a trial judge broad discretion concerning the admissibility of

evidence presented at a suppression hearing. State v. Edwards, 5th Dist. Tuscarawas

No. 2003 AP 09 0077, 2004-Ohio-870, 2004 WL 362209, ¶ 18. However, at a suppression

hearing, a trial court may rely on hearsay and other evidence, even though that evidence

would not be admissible at trial. See Maumee v. Weisner, 87 Ohio St.3d 295, 298, 720

N.E.2d 507(1999), quoting United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406,

65 L.Ed.2d 424. (1980).

{¶25} Viewing the circumstances as a whole, a reasonable officer would conclude

that there was probable cause to believe Howell knew that there was a gun in his house.

The trial judge neither lost his way nor created a miscarriage of justice in finding that the

officers had probable cause to arrest Howell. Based upon the totality of the

circumstances, the arrest of Howell for Having Weapons While Under Disability was

supported by probable cause. Richland County, Case No. 2020 CA 0062 12

{¶26} Howell’s First and Second Assignments of Error are overruled.

{¶27} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, J.,

Baldwin, P.J., and

Hoffman, J., concur