[Cite as State v. Hughes, 2013-Ohio-459.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : JOSEPH Q. HUGHES : Case No. 12CA0005 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2008CR208
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TOM C. ELKIN SAMUEL H. SHAMANSKY 60 East High Street DONALD L. REGENSBURGER Mount Gilead, OH 43338 523 South Third Street Columbus, OH 43215 Morrow County, Case No. 12CA0005 2
Farmer, J.
{¶1} On December 5, 2008, the Morrow County Grand Jury indicted appellant,
Joseph Hughes, on three counts of theft in violation of R.C. 2913.02, one count of theft
in office in violation of R.C. 2921.41, three counts of tampering with evidence in violation
of R.C. 2911.12, and four counts of receiving stolen property in violation of R.C.
2913.51. Said charges arose from the theft of numerous items including air
conditioners belonging to Morrow County. Appellant was a patrolman with the Mount
Gilead Police Department.
{¶2} On October 15, 2009, appellant filed a motion to suppress, claiming an
unlawful search of his residence. By journal entry filed April 7, 2011, the trial court
denied in part and granted in part the motion, finding any seized evidence pertaining to
LED lights was improper.
{¶3} A jury trial commenced on November 21, 2011. The jury found appellant
guilty of the theft counts, the theft in office count, two of the tampering with evidence
counts, and three of the receiving stolen property counts. By journal entry filed January
25, 2012, the trial court sentenced appellant to an aggregate term of two years in
prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT'S ADMISSION OF EVIDENCE PROCURED AS A
DIRECT RESULT OF THE UNLAWFUL SEARCH OF APPELLANT'S HOME
VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND Morrow County, Case No. 12CA0005 3
SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION."
II
{¶6} "TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ADMISSIBILITY OF
STATE'S EVIDENCE AND PRESERVE THE ISSUE FOR APPEAL CONSTITUTES
INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS IN VIOLATION OF
APPELLANT'S RIGHTS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO
{¶7} Appellant claims the trial court erred denying his motion to suppress in
part. We disagree.
{¶8} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist. 1993). 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. State
v. Williams, 86 Ohio App.3d 37 (4th Dist. 1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly Morrow County, Case No. 12CA0005 4
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the 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 (8th Dist. 1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶9} Appellant rented a farmhouse owned by Walter Berg. T. at 34. Mr. Berg
had appellant's permission to enter the basement and purge the well to flush the water
lines as needed. T. at 42-43. On July 5, 2008, Mr. Berg entered the basement and
observed several air conditioners. T. at 45-46. Shortly thereafter, Mr. Berg read a
newspaper article about stolen air conditioners. T. at 48. Mr. Berg returned to the
basement, repurged the well, photographed the air conditioners, and contacted the
police. T. at 49, 51. After the air conditioners were identified in the photographs as the
stolen air conditioners, the police obtained and executed a search warrant and
discovered the stolen property. T. at 15, 98. Additional search warrants followed which
turned up more stolen property. T. at 118, 138-139, 167. The police did not become
involved with the case until after Mr. Berg had taken the photographs. T. at 31-32, 58-
59.
{¶10} Appellant argues the issuance of the first search warrant was based on an
illegal and warrantless search of his residence by Mr. Berg. Appellant argues the trial Morrow County, Case No. 12CA0005 5
court erred in finding Mr. Berg "was a private citizen operating under no color of
authority of governmental action." See, Judgment Entry filed April 7, 2011. As stated
by the Supreme Court of Ohio in State v. Morris, 42 Ohio St.2d 307, 316 (1975), "Fourth
Amendment protection against unlawful searches and seizures applies only to action by
government authorities or their agents." The Morris court then explained:
The unlawful acts of private individuals in conducting illegal
searches and seizures are not subject to constitutional proscription.
Where, however, a warrantless search is not an exclusively private
undertaking but involves some degree of police participation, then courts
must look to the facts surrounding the search in order to determine
whether it is an unreasonable police search or an excepted private search.
{¶11} We find Mr. Berg's testimony, substantiated by Lieutenant Chad McGinty,
established there was no police involvement or action until after the photographs had
been taken. Mr. Berg, as a private individual on his own accord, re-entered the
basement and took photographs of what he believed to be stolen air conditioners. He
then went to the police. Armed with the photographs, Lieutenant McGinty was able to
have the stolen air conditioners identified which led to the procurement of a search
warrant.
{¶12} Upon review, we find the trial court did not err in denying appellant's
motion to suppress.
{¶13} Assignment of Error I is denied. Morrow County, Case No. 12CA0005 6
{¶14} Appellant claims his trial counsel was ineffective. We disagree.
{¶15} The standard this issue must be measured against is set out in State v.
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[Cite as State v. Hughes, 2013-Ohio-459.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : JOSEPH Q. HUGHES : Case No. 12CA0005 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2008CR208
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TOM C. ELKIN SAMUEL H. SHAMANSKY 60 East High Street DONALD L. REGENSBURGER Mount Gilead, OH 43338 523 South Third Street Columbus, OH 43215 Morrow County, Case No. 12CA0005 2
Farmer, J.
{¶1} On December 5, 2008, the Morrow County Grand Jury indicted appellant,
Joseph Hughes, on three counts of theft in violation of R.C. 2913.02, one count of theft
in office in violation of R.C. 2921.41, three counts of tampering with evidence in violation
of R.C. 2911.12, and four counts of receiving stolen property in violation of R.C.
2913.51. Said charges arose from the theft of numerous items including air
conditioners belonging to Morrow County. Appellant was a patrolman with the Mount
Gilead Police Department.
{¶2} On October 15, 2009, appellant filed a motion to suppress, claiming an
unlawful search of his residence. By journal entry filed April 7, 2011, the trial court
denied in part and granted in part the motion, finding any seized evidence pertaining to
LED lights was improper.
{¶3} A jury trial commenced on November 21, 2011. The jury found appellant
guilty of the theft counts, the theft in office count, two of the tampering with evidence
counts, and three of the receiving stolen property counts. By journal entry filed January
25, 2012, the trial court sentenced appellant to an aggregate term of two years in
prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT'S ADMISSION OF EVIDENCE PROCURED AS A
DIRECT RESULT OF THE UNLAWFUL SEARCH OF APPELLANT'S HOME
VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND Morrow County, Case No. 12CA0005 3
SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION."
II
{¶6} "TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ADMISSIBILITY OF
STATE'S EVIDENCE AND PRESERVE THE ISSUE FOR APPEAL CONSTITUTES
INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS IN VIOLATION OF
APPELLANT'S RIGHTS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO
{¶7} Appellant claims the trial court erred denying his motion to suppress in
part. We disagree.
{¶8} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist. 1993). 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. State
v. Williams, 86 Ohio App.3d 37 (4th Dist. 1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly Morrow County, Case No. 12CA0005 4
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the 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 (8th Dist. 1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶9} Appellant rented a farmhouse owned by Walter Berg. T. at 34. Mr. Berg
had appellant's permission to enter the basement and purge the well to flush the water
lines as needed. T. at 42-43. On July 5, 2008, Mr. Berg entered the basement and
observed several air conditioners. T. at 45-46. Shortly thereafter, Mr. Berg read a
newspaper article about stolen air conditioners. T. at 48. Mr. Berg returned to the
basement, repurged the well, photographed the air conditioners, and contacted the
police. T. at 49, 51. After the air conditioners were identified in the photographs as the
stolen air conditioners, the police obtained and executed a search warrant and
discovered the stolen property. T. at 15, 98. Additional search warrants followed which
turned up more stolen property. T. at 118, 138-139, 167. The police did not become
involved with the case until after Mr. Berg had taken the photographs. T. at 31-32, 58-
59.
{¶10} Appellant argues the issuance of the first search warrant was based on an
illegal and warrantless search of his residence by Mr. Berg. Appellant argues the trial Morrow County, Case No. 12CA0005 5
court erred in finding Mr. Berg "was a private citizen operating under no color of
authority of governmental action." See, Judgment Entry filed April 7, 2011. As stated
by the Supreme Court of Ohio in State v. Morris, 42 Ohio St.2d 307, 316 (1975), "Fourth
Amendment protection against unlawful searches and seizures applies only to action by
government authorities or their agents." The Morris court then explained:
The unlawful acts of private individuals in conducting illegal
searches and seizures are not subject to constitutional proscription.
Where, however, a warrantless search is not an exclusively private
undertaking but involves some degree of police participation, then courts
must look to the facts surrounding the search in order to determine
whether it is an unreasonable police search or an excepted private search.
{¶11} We find Mr. Berg's testimony, substantiated by Lieutenant Chad McGinty,
established there was no police involvement or action until after the photographs had
been taken. Mr. Berg, as a private individual on his own accord, re-entered the
basement and took photographs of what he believed to be stolen air conditioners. He
then went to the police. Armed with the photographs, Lieutenant McGinty was able to
have the stolen air conditioners identified which led to the procurement of a search
warrant.
{¶12} Upon review, we find the trial court did not err in denying appellant's
motion to suppress.
{¶13} Assignment of Error I is denied. Morrow County, Case No. 12CA0005 6
{¶14} Appellant claims his trial counsel was ineffective. We disagree.
{¶15} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶16} Appellant argues his trial counsel was deficient in failing to object at trial to
the admission of the "tainted" evidence obtained via Mr. Berg's unconstitutional search.
Although defense counsel did not object, the matter was preserved for appeal because
of the filing of the motion to suppress. The motion challenged the issuance of the
search warrant pursuant to Mr. Berg's actions which is the same argument advanced in
this assignment of error. We do not find any deficiency by trial counsel. Morrow County, Case No. 12CA0005 7
{¶17} Assignment of Error II is denied.
{¶18} The judgment of the Court of Common Pleas of Morrow County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
_s/ William B. Hoffman_____________
JUDGES
SGF/sg 108 [Cite as State v. Hughes, 2013-Ohio-459.]
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : JOSEPH Q. HUGHES : : Defendant-Appellee : CASE NO. 12CA0005
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morrow County, Ohio is affirmed. Costs to
appellant.