State v. Kay

2022 Ohio 2862

• Court: Ohio Court of Appeals
• Decided: August 17, 2022
• Docket: CT2021-0058
• Status: Published

Opinion

[Cite as State v. Kay, 2022-Ohio-2862.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. CT2021-0058 DALTON C. KAY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2021-0224

JUDGMENT: Affirmed in part; Reversed in part; Final Judgment Entered

DATE OF JUDGMENT ENTRY: August 17, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH JAMES S. SWEENEY Prosecuting Attorney James Sweeney Law, LLC Muskingum County, Ohio 285 South Liberty Street Powell, Ohio 43065 TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2021-0058 2

Hoffman, J. {¶1} Defendant-appellant Dalton C. Kay appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him upon his plea of no contest to

improperly handling a firearm in a motor vehicle (R.C. 2923.16(B)) and operating a motor

vehicle while intoxicated (R.C. 4511.19(A)(1)(a)), and sentencing him to five years of

community control, with 90 days of local incarceration. Plaintiff-appellee is the state of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On April 16, 2021, Appellant operated his pickup truck the wrong direction

on Interstate 70, driving east in the westbound lanes. Appellant passed several vehicles,

drove into the median, and then returned to the westbound lane, continuing to drive the

wrong direction. Appellant exited the highway by driving the wrong way up the exit ramp,

and stopped at a truck stop.

{¶3} When police arrived at the truck stop, a man informed them Appellant had

pulled into the truck stop at a high rate of speed, and parked between a dumpster and a

parked semi-truck. Officers found Appellant passed out behind the wheel. When he

awakened, officers noted Appellant’s pupils were dilated, his eyes were droopy, his

speech was slurred, and a strong odor of alcohol emanated from Appellant.

{¶4} Appellant was unsure where he was going, or where he was headed.

Appellant attempted several times to reach into the console area of the vehicle near his

leg, despite being told by the officers to stop reaching. The officers asked Appellant to

exit the vehicle. Appellant resisted by holding on to the steering wheel and using his

knees on the dashboard; however, officers were able to extract Appellant from the vehicle

and place him in a cruiser. Muskingum County, Case No. CT2021-0058 3

{¶5} Sgt. Todd Henry went to Appellant’s vehicle to attempt to find identification.

Upon looking inside the video, Sgt. Henry notified other officers on the scene he could

see a gun in plain view. A Ruger security .9mm semi-automatic pistol was found in the

center console area, with nine rounds in the magazine.

{¶6} Appellant was indicted by the Muskingum County Grand Jury with

improperly handling a firearm in a motor vehicle and operating a motor vehicle while

intoxicated. Appellant filed a motion to suppress the gun found in the vehicle. After an

evidentiary hearing, the trial court overruled the motion, finding the gun was in plain view

and the search was a valid inventory search. Appellant entered a plea of no contest to

both charges and was convicted. The trial court sentenced him to five years community

control, with 90 days of local incarceration. As a sanction of community control, the trial

court ordered, “Upon completion of Defendant’s local incarceration, Defendant shall not

remain in or return to Muskingum, County Ohio.” Judgment Entry, October 20, 2021,

Community Control Sanction 14.

{¶7} It is from the October 20, 2021 judgment of the trial court Appellant

prosecutes his appeal, assigning as error:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

OVERRULING APPELLANT’S MOTION TO SUPPRESS.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

FORBID APPELLANT FROM RETURNING TO MUSKINGUM COUNTY. Muskingum County, Case No. CT2021-0058 4

I.

{¶8} In his first assignment of error, Appellant argues the trial court erred in

overruling his motion to suppress the firearm found in his car. He argues the search was

not a valid protective sweep or inventory search, and the trial court’s finding the weapon

was located in plain view is against the weight of the evidence presented at the

suppression hearing.

{¶9} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second, an

appellant may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact, in which case an appellate court can reverse the trial court for committing

an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993). Finally,

assuming the trial court's findings of fact are not against the manifest weight of the

evidence and it has properly 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, 641

N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. Muskingum County, Case No. CT2021-0058 5

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter determination

of reasonable suspicion and probable cause should be reviewed de novo on appeal.”

{¶10} “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).

{¶11} Under the plain view exception to the search warrant requirement, police

may seize items in plain view during a lawful search if (1) the seizing officer is lawfully

present at the place from which the evidence can be plainly viewed; (2) the seizing officer

has a right of access to the object itself; and (3) the object's incriminating character is

immediately apparent. Horton v. California, 496 U.S. 128, 136–37 (1990).

{¶12} Trooper Bryan Parrish testified Sgt. Henry walked up to Appellant’s vehicle

to look for identification, and advised there was a gun in the vehicle. Tr. 12. Trooper Kyle

Dickinson then confirmed to Trooper Parrish there was a gun in the area where Appellant

had been reaching during earlier police interaction with Appellant. Tr. 12. Trooper

Dickinson testified Sgt. Henry stated he was going to the vehicle to look for Appellant’s

identification. He testified Sgt. Henry walked to the open door of the vehicle, shined his

flashlight inside, and said to Tpr. Dickinson, “Right there is a gun.” Tr. 26. Trooper

Dickinson testified, “So, in plain view, you could see the gun alongside the center console

of the pocket of the vehicle.” Tr. 26. Sgt. Henry did not testify at the suppression hearing.

{¶13} Appellant argues the trial court’s finding the gun was in plain view is against

the manifest weight of the evidence because in their reports, Troopers Parrish and

Dickinson stated the gun was found during a protective sweep of the vehicle, and did not Muskingum County, Case No. CT2021-0058 6

state the gun was in plain view. Appellant also argues the testimony the gun was in plain

view is against the weight of the evidence because the officers did not see the gun earlier

while interacting with Appellant while Appellant was still in the car.

{¶14} In his report, Tpr. Dickinson wrote after securing Appellant, he and Sgt.

Henry performed a protective sweep of the vehicle and “immediately noticed” a hand gun

along the side of a center console. Def. Ex. 1. Tpr. Parrish wrote in his police report Tpr.

Dickinson conducted a protective sweep of the area Appellant was reaching for, and

found a gun. Def. Ex. 1. Sgt. Henry wrote in his report he went to Appellant’s vehicle to

find his identification, as Appellant stated his wallet was in the vehicle. Sgt. Henry’s report

states, “When I opened the door to find his ID, I immediately observed the handgrip of a

handgun standing above a side pocket of the center console on the driver side.” Def. Ex.

1. We find the reports may conflict with the officer’s testimony regarding whether Sgt.

Henry went to the truck to find identification or to conduct a protective sweep, but both

Tpr. Dickinson’s report and Sgt. Henry’s report support the trial testimony and the finding

of the trial court the handgun was in plain view.

{¶15} Appellant also argues if the weapon was in plain view, the officers should

have seen it when interacting with Appellant during the time Appellant was still in the

vehicle. However, it appears from the testimony concerning Appellant’s continued

attempts to reach for something next to him the weapon may have been obscured by

Appellant’s physical presence in the vehicle. In addition, the officers’ testimony

concerning Appellant’s condition when they first encountered him in the vehicle indicates

the officers were focused on Appellant’s physical condition rather than on the contents of

the vehicle during their initial encounter. Muskingum County, Case No. CT2021-0058 7

{¶16} We find the trial court’s finding the gun was in plain view is not against the

manifest weight of the evidence. Having found the trial court did not err in overruling the

motion to suppress based on the plain view doctrine, we need not reach Appellant’s

arguments concerning protective sweep and inventory search.

{¶17} The first assignment of error is overruled.

II.

{¶18} In his second assignment of error, Appellant argues the trial court erred in

imposing a community control sanction forbidding Appellant from returning to Muskingum

County after completing his residential sanction.

{¶19} Pursuant to R.C. 2951.02, the trial court is granted broad discretion in

setting conditions of probation. In order to find an abuse of discretion, we must find the

trial court's decision was unreasonable, arbitrary or unconscionable, and not merely an

error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140

(1983).

{¶20} “Generally, a court will not be found to have abused its discretion in

fashioning a community-control sanction as long as the condition is reasonably related to

the probationary goals of doing justice, rehabilitating the offender, and insuring good

behavior.” State v. Chapman, 163 Ohio St.3d 290, 2020-Ohio-6730, 170 N.E.3d 6, ¶8.

However, a condition “cannot be overly broad so as to unnecessarily impinge upon the

probationer's liberty.” Id., quoting State v. Jones, 49 Ohio St.3d 51, 52, 550 N.E.2d 469

(1980). In determining whether a condition of community control is related to the interests

of doing justice, rehabilitating the offender, and insuring his good behavior, the court

should consider whether the condition (1) is reasonably related to rehabilitating the Muskingum County, Case No. CT2021-0058 8

offender, (2) has some relationship to the crime of which the offender was convicted, and

(3) relates to conduct which is criminal or reasonably related to future criminality and

serves the statutory ends of community control. Jones, supra, at 53.

{¶21} This Court has held a sentence banishing a criminal defendant from Stark

County was not a permissible penalty, and exceeded the authority of the sentencing court.

State v. Jerido, 5th Dist. Stark No. 1997CA00265, 1998 WL 400919, *1. We similarly find

in the instant case the community control sanction banishing Appellant from Muskingum

County is not reasonably related to the probationary goals of doing justice, rehabilitating

Appellant, and insuring his good behavior, and the trial court abused its discretion in

banishing Appellant from Muskingum County.

{¶22} The second assignment of error is sustained. Muskingum County, Case No. CT2021-0058 9

{¶23} The judgment of the Muskingum County Common Pleas Court is affirmed

in part and reversed in part. Pursuant to App. R. 12(B), we hereby enter final judgment

deleting Community Control Sanction fourteen, which states, “Upon completion of

Defendant’s local incarceration, Defendant shall not remain in or return to Muskingum,

County Ohio,” from the trial court’s sentence. In all other respects, the judgment is

affirmed,

By: Hoffman, J. Wise, Earle, P.J. and Delaney, J. concur