State v. Starr

2019 Ohio 834

• Court: Ohio Court of Appeals
• Decided: March 11, 2019
• Docket: CA2018-05-049
• Status: Published

Opinion

[Cite as State v. Starr, 2019-Ohio-834.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-05-049

: OPINION - vs - 3/11/2019 :

EUGENIA STARR, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 17 CR 33757

David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice Drive, Lebanon, Ohio 45036, for appellee

James A. Anzelmo, 446 Howland Drive, Gahanna, Ohio, 43230, for appellant

PIPER, J.

{¶ 1} Appellant, Eugenia Starr, appeals her conviction and sentence in the Warren

County Court of Common Pleas for aggravated drug possession.1

{¶ 2} On the morning of December 6, 2017, three police officers arrived at Michael

Gilliam's residence to investigate a complaint of theft and assault. Gilliam met the officers

1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose of issuing this opinion. Warren CA2018-05-049

and invited them inside his home. Gilliam told the officers that appellant lived with him and

he had called because appellant used his truck, without permission, to buy

methamphetamine. Gilliam also claimed that appellant spit at him when he confronted her

about the unauthorized use.

{¶ 3} Upon entering the house, the officers found appellant sitting on a couch in the

front room. One of the officers began to question appellant about the possibility of finding

drugs in her bedroom. After several minutes of conversing with the officers, appellant

consented to a search of her room. Thereafter, appellant and two officers moved toward

appellant's bedroom. At that point, an officer informed appellant that she was going to be

searched for weapons before the second officer conducted the bedroom search. When

asked if she had any weapons, appellant produced a pocket knife. The officer proceeded to

pat appellant down and found a plastic, straw-like object containing methamphetamine in one

of the pockets of appellant's pants.

{¶ 4} Based on this event, appellant was indicted for possession of drugs. Appellant

moved to suppress the evidence obtained from the pat down. After a hearing, the trial court

denied the motion. Appellant then pled no contest to the charge, was found guilty, and

sentenced to three years of community control. At the sentencing hearing, appellant did not

request that the court waive costs. Appellant now appeals her conviction and sentence

raising two assignments of error.

{¶ 5} Assignment of Error No. 1:

{¶ 6} THE TRIAL COURT ERRED BY DENYING STARR'S MOTION TO SUPPRESS

EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HER RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I

OF THE OHIO CONSTITUTION. -2- Warren CA2018-05-049

{¶ 7} Appellant argues in her first assignment of error that the trial court erred by

denying her motion to suppress evidence because the pat down exceeded the scope of a

weapons search. Specifically, she argues it was not immediately apparent to the officer the

object was contraband.

{¶ 8} Appellate review of a motion to suppress presents mixed questions of law and

fact. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 14. The appellate court

must defer to the trial court's findings of fact when supported by competent, credible

evidence. Id. The appellate court then independently determines, without deference to the

trial court, whether the facts satisfy the applicable legal standard. State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

{¶ 9} Both the Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit the government from conducting unreasonable

searches and seizures. State v. Grant, 12th Dist. Preble No. CA2014-12-014, 2015-Ohio-

2464, ¶ 13. For our purposes, the Ohio Supreme Court has interpreted the protections

afforded by the Ohio Constitution to be coterminous with the United States Constitution.

Banks-Harvey at ¶ 16. Under the Fourth Amendment, the government may only conduct a

search or seizure with a warrant issued through judicial process. Id. at ¶ 17, citing Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967).

{¶ 10} Yet, some exceptions exist to allow law enforcement to act without first securing

a valid warrant. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130 (1993). One

such exception is the protective pat down to search for concealed weapons. Id. at 372-373;

See also State v. Evans, 67 Ohio St.3d 405, 408-409, 1993-Ohio-186. An officer may

conduct a search for weapons on a person when the officer reasonably believes that the

individual is armed or otherwise a threat to the officer and the public. State v. Jimenez, 12th

Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 14. The standard of reasonableness is -3- Warren CA2018-05-049

determined by the specific, articulable facts of the situation and the rational inferences

derived therefrom. Id.

{¶ 11} The protective pat down is not a general search of the person, because the

scope of the search must be limited to the discovery of weapons. Dickerson at 373.

Nevertheless, under the "plain-feel" doctrine, an officer may seize contraband discovered

during the weapons search if it is immediately apparent the object is illegal. Id. at 374-376;

State v. Bean, 12th Dist. Butler No. CA2015-07-136, 2016-Ohio-876, ¶ 18. To satisfy the

immediate apparent requirement, the officer must have probable cause to "associate the

object with criminal activity" given the totality of circumstances. Grant at ¶ 17.

{¶ 12} Appellant does not argue that her pat down was improperly initiated. Instead,

she argues that it could not have been immediately apparent to the officer that the object

found in her pocket was contraband because the officer testified at the suppression hearing

that the object was removed "for not knowing what was in [Appellant's] pocket." Appellant's

argument lacks merit, in part, because appellant's use of that quotation from the officer's

testimony is taken out of context from the entire testimony.

{¶ 13} After a review of the record, we find that the pat down was proper and the

officer had probable cause to associate the object with criminal activity. At the suppression

hearing, the officer testified that through her training and experience, she was familiar with

illicit drugs and their various paraphernalia. Further, the officer testified that prior to arriving

at the residence, another officer had identified the location as a known drug house.

Moreover, the officer testified that while the initial investigation was focused on assault and

theft, she expanded the investigation to include illegal drug possession after speaking to

Gilliam.

{¶ 14} Therefore, when the officer spoke to appellant, she noted that appellant had

physical characteristics consistent with chronic methamphetamine abuse, such as sunken -4- Warren CA2018-05-049

facial features, noticeable scabbing, and an overall "skinny" appearance. Additionally, the

officer testified that appellant's behavior seemed abnormal for 6:00 am, because appellant

appeared wide awake and obsessed with cleaning the garage.

{¶ 15} As noted above, the officers received consent to search appellant's bedroom.

Before the bedroom search, one officer told appellant that she was going to be patted down.

At that point, appellant produced a pocket knife. An officer began the pat down and felt a

hard, plastic object in the front hip pocket of appellant's pants. Contrary to appellant's

assertion, at the hearing, the officer testified that it was immediately apparent to her that the

object was contraband. Specifically, the officer testified: "I believed it was some type of

narcotics," because "when people transport drugs, they have it in some type of plastic

container or baggy." This testimony occurred during direct examination immediately after the

statement quoted by appellant. The full context of the officer's testimony demonstrates that it

was immediately apparent to the officer. Moreover, the facts establish that the officer had

probable cause to believe the hard, plastic object was contraband. The officer had

experience recognizing and recovering illicit drugs and their paraphernalia, an on-scene

witness directly informed the officer about appellant's possession of methamphetamine, and

appellant displayed physical characteristics of methamphetamine use. Therefore, the officer

properly seized the object as part of the pat-down search.

{¶ 16} Accordingly, the trial court correctly denied the motion to suppress and

appellant's first assignment of error is overruled.

{¶ 17} Assignment of Error No. 2:

{¶ 18} STARR RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION

{¶ 19} In her second assignment of error, appellant argues that her counsel provided -5- Warren CA2018-05-049

ineffective assistance by failing to request the court waive costs at her sentencing hearing. 2

Appellant contends that because the trial court appointed counsel at both the trial and

appellate levels, this alone proved that she was indigent, would be unable to pay, and should

have had court costs waived.

{¶ 20} To prevail on an ineffective assistance of counsel claim, appellant must show

two components: counsel's performance was deficient and that the deficiency prejudiced

appellant. State v. Manning, 12th Dist. Butler No. CA2017-08-113, 2018-Ohio-3334, ¶ 19;

citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). To prove the

deficiency component, appellant must demonstrate that her counsel's performance fell below

an objective standard of reasonableness. Strickland at 688-690. For the prejudice

component, appellant must establish that there is a reasonable probability the result would

have been different but for her counsel's deficiency. Id. at 694. The failure to satisfy either

component is fatal to an ineffective assistance claim. Manning at ¶ 20. Counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment. Id.; see also State v. Burns, 12th Dist. Clinton

No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.

{¶ 21} Pursuant to R.C. 2947.23(A), the trial court shall impose the costs of

prosecution on a criminal defendant as part of a judgment. The Ohio Supreme Court has

held it is proper for a court to impose costs on an indigent defendant. State v. White, 103

Ohio St.3d 580, 2004-Ohio-5989, syllabus. Nevertheless, R.C. 2947.23(C) grants a trial

court the authority to waive, suspend, or modify payment of costs at "the time of sentencing

or at any time thereafter." Thus, appellant retains the ability to petition the trial court for a

waiver of costs. Therefore, appellant's ineffective assistance claim fails, because she cannot

2. We note that this issue is currently pending before the Supreme Court of Ohio as a certified conflict between the districts in State v. Davis, 152 Ohio St.3d 1441, 2018-Ohio-1600, Case No. 2018-0312. -6- Warren CA2018-05-049

demonstrate prejudice given she retains the ability to move for a waiver of costs pursuant to

R.C. 2947.23(C). See also State v. Mack, 4th Dist. Washington Nos. 17CA34 and 17CA35,

2018-Ohio-5165, ¶ 30-32 (counsel was not ineffective for failing to request waiver of costs

because it did not cause prejudice); and State v. West, 2d Dist. Greene No. 2015-CA-72,

2017-Ohio-7521, ¶ 31-32 (counsel was not ineffective for failing to request waiver of costs,

because it was neither deficient on counsel's part, nor prejudicial to defendant given the on-

going ability to request a waiver of costs pursuant to R.C. 2947.23[C]).

{¶ 22} Consequently, appellant has failed to establish the prejudice component

required for her ineffective assistance claim and her second assignment of error is overruled.

{¶ 23} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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