State v. Sturgill

2022 Ohio 4574

• Court: Ohio Court of Appeals
• Decided: December 16, 2022
• Docket: 22-COA-011
• Status: Published

Opinion

[Cite as State v. Sturgill, 2022-Ohio-4574.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 22-COA-011 VERONICA STURGILL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Case No. 21-CRI-041

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL, ESQ. JUSTIN WEATHERLY, ESQ. Ashland County Prosecuting Attorney Henderson, Mokhtari, & Weatherly 1231 Superior Avenue East NADINE HAUPTMAN, ESQ. Cleveland, Ohio 44114 Assistant Prosecuting Attorney 110 Cottage Street – Third Floor Ashland, Ohio 44805 Ashland County, Case No. 22-COA-011 2

Hoffman, J. {¶1} Defendant-appellant Veronica Sturgill appeals the judgment entered by the

Ashland County Common Pleas Court convicting her following her pleas of no contest to

possession of cocaine (R.C. 2925.11(A),(C)(4)(d)), corrupting another with drugs (R.C.

2925.02(A)(4)(a), (C)(3)(a)), and trafficking in marijuana (R.C. 2925.03(C)(3)(a),(b)), and

sentencing her to an aggregate prison term of two to three years. Plaintiff-appellee is the

state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 18, 2020, Officer Leah Zeisler of the Ashland Police Department

saw a group of girls walking in a Taco Bell parking lot after the City of Ashland’s juvenile

curfew of midnight. Two of the girls were Appellant’s minor daughters. When Ofcr. Zeisler

took the girls home to Appellant’s apartment, she noted a strong odor of marijuana in the

home, and observed marijuana and assorted drug paraphernalia in Appellant’s living

room. Appellant admitted to Ofcr. Zeisler she smoked marijuana, and her minor

daughters also smoked marijuana. The officer contacted Ashland County Children’s

Services, and a safety plan was put into place.

{¶3} On March 3, 2021, Ashland Police received a complaint of marijuana smoke

emanating from Appellant’s apartment, and wafting into nearby apartments. Officer

Geisler responded, along with Officer Kyle Dress and Officer Lee Eggeman. Although

one of Appellant’s daughters was 18 years old at this time, the younger daughter was 12

years old. While en route to Appellant’s home, Ofcr. Zeisler briefed Ofcr. Dress

concerning the incident in June of 2020.

{¶4} As the officers approached Appellant’s apartment, they noted a heavy odor

of marijuana. Ofcr. Dress knocked on the door. Although officers could hear people Ashland County, Case No. 22-COA-011 3

scurrying inside and saw the door handle turn to open before closing again, no one came

to the door. After several minutes of knocking, Appellant appeared, opened the front

door, and stepped outside to the stoop, quickly closing the door behind her.

{¶5} Ofcr. Dress asked Appellant why it took so long to answer the door.

Appellant replied she did not hear him knock because she was upstairs listening to music.

He advised her as to why the officers were there, noting they could smell marijuana

coming from the house, which Appellant denied. Officer Dress next asked Appellant if

there were children inside the house. Appellant confirmed her two children were in the

house, as well as a juvenile friend of her daughters from school.

{¶6} Ofcr. Dress told Appellant they would like to check the house. Appellant

responded they could not come in the house without a warrant. Ofcr. Dress asked

Appellant if she wanted Children’s Services involved. A conversation ensued, in which

Appellant asked Ofcr. Dress what he wanted to do. He stated he wanted to go inside.

Appellant paused, then said “Okay.” Supp. Tr. 31. Once inside the residence, police

found marijuana, drug paraphernalia, and cocaine.1

{¶7} Appellant was indicted by the Ashland County Grand Jury with possession

of cocaine, corrupting another with drugs, and trafficking in marijuana.

{¶8} Appellant filed a motion to suppress evidence taken from her home. The

trial court overruled the motion, finding exigent circumstances existed for the warrantless

entry to the home, and further found Appellant consented to the entry.

1 While the State’s brief cites extensively to State’s Exhibit 1, Officer Dress’s body camera video, for facts surrounding the search of the house, it appears from the transcript of the proceedings only 3 minutes and 30 seconds of the video was played at the suppression hearing, stopping at the point where the officers entered the apartment. We further note State’s Exhibit 1 as provided to this Court includes only audio from the body camera video, and does not include video imaging. Ashland County, Case No. 22-COA-011 4

{¶9} Appellant thereafter entered pleas of no contest to all charges, and was

convicted. The trial court sentenced Appellant to two to three years incarceration for

possession of cocaine, fifteen months incarceration for corrupting another with drugs, and

six months incarceration for trafficking in marijuana, to be served concurrently for an

aggregate term of incarceration of two to three years. It is from the March 22, 2022

judgment of the trial court Appellant prosecutes her appeal, assigning as error:

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO SUPPRESS WHEN IT FOUND THAT THE SEARCH OF

APPELLANT’S HOME WAS PREDICATED ON PROBABLE CAUSE AND

WAS THE RESULT OF VOLUNTARY CONSENT.

{¶10} In her sole assignment of error, Appellant argues the trial court erred in

overruling her motion to suppress. She first argues the coercive tactics used by the police

at her door amounted to a warrantless arrest, and the statements she made to the officers

were therefore a product of a custodial interrogation.2 She also argues her consent to

the officers’ entry was not voluntary, and the entry and search was not based on exigent

circumstances.

{¶11} 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

2Although raised in her motion to suppress in the trial court, they were not the focus of the suppression hearing, and the trial court did not address these arguments in its judgment. The suppression hearing and subsequent judgment entry focused solely on the issues of exigent circumstances and consent for the warrantless entry into Appellant’s apartment. Ashland County, Case No. 22-COA-011 5

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, 1995-Ohio-243, 652 N.E.2d 988;

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.

{¶12} “[T]he weight of the evidence and credibility of witnesses are primarily for

the trier of the facts. * * * This principle is applicable to suppression hearings as well as

trials.” State v. Fanning, 1 Ohio St.3d 19, 20, 1 OBR 57, 437 N.E.2d 583(1982). Accord

State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212(1967), paragraph

one of the syllabus; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972(1992).

{¶13} Appellant first argues she was arrested without probable cause when she

answered the door, as she was confronted with three armed police officers, interrogated

immediately, and not free to leave. Ashland County, Case No. 22-COA-011 6

{¶14} The existence of an arrest is dependent the existence of four requisite

elements: (1) An intent to arrest, (2) under real or pretended authority, (3) accompanied

by an actual or constructive seizure or detention of the person, and (4) which is so

understood by the person arrested. State v. Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324,

1326–27 (1978).

{¶15} The record does not support Appellant’s contention she was under arrest

when she answered the door. While police questioned her about the marijuana

complaint, they did not indicate any intent to arrest Appellant. Although she argues the

officers were armed, the record does not reflect the officers brandished weapons or

otherwise indicated an intent to restrain her movement. We find from the record before

this Court the conduct of the officers did not prohibit Appellant from going back inside the

house, or from staying inside the house in the first instance when police came to the door.

{¶16} Appellant similarly argues she was “in custody” from the moment she

answered the door, and officers failed to Mirandize her. A duty to administer Miranda

warnings arises only when an accused is taken into custody. Miranda v. Arizona, 384

U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For purposes of Miranda warnings,

“custody” is defined as a formal arrest or restraint on the freedom of movement to the

degree associated with a formal arrest. State v. Mason, 82 Ohio St.3d 144, 154, 694

N.E.2d 932 (1998). In order to determine whether a person was in custody, the court

should apply a totality-of-circumstances test, including where the interrogation occurred,

whether the investigation had focused on the subject, whether the objective indicia of

arrest were present, and the length of the questioning involved. Stansbury v. California,

511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Ashland County, Case No. 22-COA-011 7

{¶17} We find Appellant was not in custody when questioned by the officers at her

front door. She voluntarily answered the door. There was no evidence the officers

attempted to restrain her movement in any way, nor was there evidence they prevented

her from going back inside the house.

{¶18} Appellant next argues the trial court erred in finding the warrantless entry

and search of her house was justified by exigent circumstances.

{¶19} “The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution secure an individual's right to be free from unreasonable

searches and seizures.” State v. Moore, 2d Dist. No. 20198, 2004-Ohio-3783, at ¶ 10. “It

is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573,

586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Indeed, the “physical entry of the home is

the chief evil against which the wording of the Fourth Amendment is directed * * *.” United

States v. United States Dist. Ct, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

However, warrantless searches and seizures are not in violation of the Fourth

Amendment when such falls within one of the few specifically established and well

delineated exceptions.

{¶20} One such exception is an entry or search based on exigent circumstances.

The exigent circumstances exception relies on the premise the existence of an

emergency situation, demanding urgent police action, may excuse the failure to procure

a search warrant. See Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d

732 (1984). Although there is no precise list of all the exigent circumstances which might

justify a warrantless search, exigent circumstances generally must include the necessity Ashland County, Case No. 22-COA-011 8

for immediate action which will “ ‘protect or preserve life or avoid serious injury’,” or will

protect a governmental interest that outweighs the individual's constitutionally protected

privacy interest. State v. Price, 134 Ohio App.3d 464, 467, 731 N.E.2d 280, (1999),

quoting Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

{¶21} While the emergency aid exception does not require probable cause,

officers must have reasonable grounds to believe there is an immediate need to act in

order to protect lives or property, and there must be some reasonable basis for

associating an emergency with the location. State v. Bubenchick, 5th Dist. Stark No.

2014CA00020, 2014-Ohio-5056, 2014 WL 6066188, ¶ 14 citing State v. Gooden, 9th Dist.

Summit No. 23764, 2008-Ohio-178, 2008 WL 186646, ¶ 10. In their community

caretaking roles, officers may intrude on a person's privacy to carry out community-

caretaking functions to enhance public safety. State v. Stanberry, 11 th Dist. Lake No.

2002-L-028, 2003-Ohio-5700, 2003 WL 22427922, ¶ 23, citing State v. Norman, 136 Ohio

App.3d 46, 54, 735 N.E.2d 953 (1999). “The key to such permissible police action, is the

reasonableness required by the Fourth Amendment.” Stanberry at ¶ 23.

{¶22} In the instant case, police were greeted at Appellant’s door with a very

strong odor of burning marijuana. Appellant confirmed her two daughters, one of whom

was a minor, were inside the home, along with a friend who was also a minor. Police

were aware from past experience with Appellant she allowed her minor children to smoke

marijuana in her home. Further, police had previously encountered Appellant’s minor

daughters outside alone late at night, after the city’s curfew. When the children were

returned to Appellant’s home on the prior occasion, Ofcr. Zeisler similarly encountered an

odor of marijuana coming from Appellant’s home. We find the governmental interest in Ashland County, Case No. 22-COA-011 9

protecting children as part of its caretaking function to enhance public safety justifies the

warrantless entry in this case. The children inside Appellant’s home were exposed to a

potentially hazardous situation where illegal use of marijuana by minors was tolerated –

all while the children were under the supervision of Appellant who apparently had been

using marijuana herself. Exigent circumstances existed in this case.

{¶23} Appellant also argues the trial court erred in finding she gave consent to

enter and search the apartment. She argues her consent was involuntary, as it was

coerced by Ofcr. Dress’s threat to contact Children’s Protective Services.

{¶24} “The following factors are generally used in Ohio to decide if a defendant's

consent to search has been given voluntarily: ‘(1) whether the defendant's custodial status

was voluntary; (2) whether coercive police procedures were used; (3) the extent and level

of the defendant's cooperation with the police; (4) the defendant's awareness of his or her

right to refuse consent; (5) the defendant's education and intelligence; [and] (6) the

defendant's belief that no incriminating evidence will be found.’ ” State v. Gomez, 5th Dist.

No. CT2018-0025, 2019-Ohio-481, 130 N.E.3d 1065, ¶ 46, quoting State v. Mabry, 2d

Dist. Montgomery No. 26242, 2015-Ohio-4513, 2015 WL 6592460, ¶ 15.

{¶25} After Ofcr. Dress asked to come inside and search the house, Appellant

initially responded police would have to get a warrant. Making an apparent reference to

Ofcr. Zeisler’s involvement in the past incident, Appellant stated she was not doing this

again. At this point, Ofcr. Dress stated, “So you want Children’s Services involved?”

State’s Ex. 1. Appellant responded she did not, and Ofcr. Dress noted she had contact

before with both Children’s Services and the police. Appellant again asked what Ofcr.

Dress wanted to do, and he stated he wanted to go inside to see if anything else was Ashland County, Case No. 22-COA-011 10

inside. Appellant at this point allowed the officers to enter, after a brief discussion about

how many of the officers needed to come inside.

{¶26} Appellant testified at the suppression hearing she felt the officer was

threatening to call Children’s Services if she didn’t consent to the search, and further she

could avoid the involvement of Children’s Services by consenting to the search. Supp.

Tr. 48.

{¶27} The trial court found as follows:

While Officer Dress asked Defendant if she wanted the officers to

involve Children’s Services (by implication drawing Defendant’s attention to

the prior removal of her minor children), there was no threat of imminent

removal of the children. Officer Dress had no information which would have

justified any conclusion that Defendant’s current situation would ultimately

require Children’s Services involvement, but the statement reflects the

Officer’s concern for the health and safety of Defendant’s minor child who

was present in the residence. The Court does not find this statement to

constitute undue coercion.

{¶28} Judgment Entry, March 30, 2022.

{¶29} We find the trial court did not err in finding the reference to calling Children’s

Services did not render Appellant’s consent involuntary. The first implication to the past

incident involving the police and Children’s Services was made by Appellant when she

stated she wasn’t doing this again. Appellant did not immediately respond after the officer Ashland County, Case No. 22-COA-011 11

asked if she wanted Children’s Services involved, but paused, thought about her decision,

and asked again what the officer wanted to do. Appellant clearly understood she had the

right to refuse entry, as she initially told police they would need to get a warrant. Further,

the trial court was in a better position than this Court to judge the credibility of Appellant’s

testimony she believed allowing the officers to search was the only way to avoid

involvement by Children’s Services.

{¶30} As noted by the trial court, there “appears to be no issue as to the

consensual nature of the subsequent searches” after the initial entry of the apartment.

{¶31} The assignment of error is overruled. The judgment of the Ashland County

Common Pleas Court is affirmed.

By: Hoffman, J. Gwin, P.J. and Delaney, J. concur