State v. Eli , 97 N.E.3d 863 ( 2017 )


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  • [Cite as State v. Eli, 2017-Ohio-7667.]
    COURT OF APPEALS
    LICKING COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                 :       JUDGES:
    :       Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                    :       Hon. John W. Wise, J.
    :       Hon. Earle E. Wise, Jr., J.
    -vs-                                          :
    :
    MARTEZ ELI                                    :       Case No. 17-CA-1
    :
    Defendant-Appellant                   :       OPINION
    CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
    Pleas, Case No. 15 CR 828
    JUDGMENT:                                             Affirmed
    DATE OF JUDGMENT:                                     September 15, 2017
    APPEARANCES:
    For Plaintiff-Appellee                                For Defendant-Appellant
    PAULA SAWYERS                                         STEPHEN T. WOLFE
    20 South Second Street,                               1350 West 5th Avenue
    Newark, OH 43055                                      Suite 124
    Columbus, OH 43212
    Licking County, Case No. 17-CA-1                                                          2
    Wise, Earle, J.
    {¶1}   Defendant-Appellant, Martez Eli appeals the October 25, 2016 judgment
    entry denying his motion to suppress and the December 13, 2016 judgment of conviction
    and sentence of the Court of Common Pleas of Licking County, Ohio. Plaintiff-Appellee
    is the state of Ohio.
    FACTS AND PROCEDURAL HISTORY
    {¶2}   On October 15, 2015, Officer Lisa Walls of the Adult Parole Authority, went
    to 75 Allen Street in Newark to attempt a field contact with Eric Osler, a parolee under her
    supervision. She was accompanied by Parole Officers Greer and Wells. Walls had
    information indicating Osler was in possession of a firearm and was dealing drugs. As a
    person under the supervision of the Adult Parole Authority, Osler is subject to warrantless
    searches of his person, home, and vehicle pursuant to R.C. 2951.02 and/or R.C.
    2967.131. He further was to have no contact with his son, defendant-appellant Martez Eli.
    Osler signed conditions of supervision outlining his understanding of these conditions.
    {¶3}    On arrival at Osler’s residence, the officers were admitted by the
    homeowner, Tisha Aldridge. They found Osler in his bedroom, lying in bed. The officers
    placed Osler in custody, cleared the living room and had Osler sit on the sofa. Asked
    where the firearm was, Osler initially denied he had one. He further denied there was
    anyone in the house besides himself, Aldridge and her 17-year-old son. He later admitted
    two of his sons, including Eli, were upstairs with one of their girlfriends.
    {¶4}   Officers had the three come downstairs and sit in the living room. They were
    not handcuffed, nor were they under arrest. The officers were familiar with Eli and his
    Licking County, Case No. 17-CA-1                                                             3
    brother and aware that they are known to possess firearms. Officers therefore wanted to
    keep the men visible during the search for officer safety.
    {¶5}       Osler finally admitted he possessed a firearm and that it was in the bed
    where officers had found him. Officers seized the fully loaded weapon. Additional
    searching of Osler’s room yielded methamphetamine, ammunition of different calibers,
    burner phones and drug paraphernalia. The officers requested assistance from the
    Central Ohio Drug Enforcement Task Force (CODE), as is their procedure when they find
    drugs or firearms.
    {¶6}       Detective Kyle Boerstler of the Licking County Sherriff’s Office and assigned
    to CODE, arrived at the scene. He was assisted by Officer Fumi and Detective Kimble of
    the Newark Police Department who were also called to the scene. Aldridge gave Boerstler
    consent to search her home. Before searching Boerstler asked those seated in the living
    room who lived in the home. Eli stated he lived there “from time to time.” Boerstler thus
    asked is Eli had any belongings in the home, and Eli denied having any possessions in
    the home. Boerstler asked those in the living room to remain there during the search for
    officer safety.
    {¶7}       Officer Fumi began the search in an upstairs bedroom where he found a
    black backpack. Inside the backpack was a baggy containing 254 oxycodone pills, a
    second baggy containing heroin, and some marijuana. He alerted Boerstler, who took the
    backpack and its contents downstairs.
    {¶8}       Boerstler asked those gathered in the living room who owned the backpack.
    Eli stated it belonged to him.
    Licking County, Case No. 17-CA-1                                                         4
    {¶9}   A more through search of the backpack produced a Greyhound Bus ticket
    with Eli listed as the passenger, and dated September 21, 2015, $94.00 in cash, a piece
    of mail addressed to Eli, a photo of Eli and his girlfriend, small jeweler bags commonly
    used to package drugs for sale, and a wallet containing Eli’s expired driver’s license. Eli
    was not arrested following the search and discovery of the drugs in his backpack.
    {¶10} On July 21, 2016, the Licking County Grand Jury returned an indictment
    charging Eli with one count of aggravated possession of oxycodone in an amount equal
    to or exceeding five times the bulk amount, but less than fifty times the bulk amount in
    violation of R.C. 2925.11(A)(C)(1)(c), a felony of the second degree, and possession of
    heroin in violation of R.C. 2925.11(A)(C)(6)(a), a felony of the fifth degree.
    {¶11} On August 26, 2016, Eli filed two motions to suppress. One to suppress his
    statements for lack of Miranda warnings, and a second to suppress the drugs discovered
    in the backpack. On October 11, 2016, a hearing was held on the matter. The trial court
    denied Eli’s motions by judgment entry on October 25, 2016. The court found that Eli
    lacked standing to challenge the search of the backpack because he abandoned the
    backpack by denying ownership of anything in the home. The court found Eli could not
    therefore retain a reasonable expectation of privacy in the same.
    {¶12} The trial court further found that Eli was not in custody and thus Miranda
    warnings were not required. The court explained that while Eli was asked to remain in the
    living room during the search, he was not handcuffed and there was no evidence
    presented at the hearing to indicate Eli believed he was under arrest or detained in any
    manner. Finally, the trial court noted that after the search was concluded, Eli was free to
    leave and did so.
    Licking County, Case No. 17-CA-1                                                    5
    {¶13} The matter proceeded to a jury trial on December 12, 2016. The jury
    convicted Eli as charged. He was subsequently sentenced to a mandatory four years
    incarceration for aggravated possession of oxycodone and nine months incarceration for
    possession of heroin. Eli was ordered to serve the sentences concurrently.
    {¶14} Eli filed an appeal and the matter is now before this court for review.
    Assignments of error are as follows:
    I
    {¶15} "THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS
    SEARCH OF THE BACKPACK BY LAW ENFORCEMENT OFFICERS WAS JUSTIFIED
    BECAUSE APPELLANT HAD VOLUNTARILY ABANDONED IT."
    II
    {¶16} "THE TRIAL COURT ERRED IN FINDING THAT THE UNCOUNSELED
    STATEMENTS OF APPELLANT WERE ADMISSIBLE BECAUSE HE WAS NOT
    DETAINED."
    III
    {¶17} "THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF
    THE EVIDENCE."
    IV
    {¶18} "THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
    SUPPORT THE CONVICTIONS."
    V
    {¶19} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
    FOR ACQUITTAL PURSUANT TO CRIM. R. 29."
    Licking County, Case No. 17-CA-1                                                             6
    I, II
    {¶20} We will address appellant's first and second assignments of error
    simultaneously as both concern his detention and the search of property belonging to
    him. In his first assignment of error, Eli contends the trial court incorrectly interpreted the
    facts when it found he had abandoned the backpack and thus forfeited any reasonable
    expectation of privacy. In his second assignment of error, Eli argues the trial court erred
    when it determined he was not in custody for purposes of Miranda.
    STANDARD OF REVIEW
    {¶21} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio
    St.3d 165, 2016-Ohio-154, 
    47 N.E.3d 821
    , ¶ 12:
    "Appellate review of a motion to suppress presents a mixed question
    of law and fact." State v. Burnside, 
    100 Ohio St. 3d 152
    , 2003-Ohio-5372,
    
    797 N.E.2d 71
    , ¶ 8. In ruling on a motion to suppress, "the trial court
    assumes the role of trier of fact and is therefore in the best position to
    resolve factual questions and evaluate the credibility of witnesses." 
    Id., citing State
    v. Mills, 
    62 Ohio St. 3d 357
    , 366, 
    582 N.E.2d 972
    (1992). On
    appeal, we "must accept the trial court's findings of fact if they are supported
    by competent, credible evidence." 
    Id., citing State
    v. Fanning, 
    1 Ohio St. 3d 19
    , 20, 
    437 N.E.2d 583
    (1982). Accepting those facts as true, we must then
    "independently determine as a matter of law, without deference to the
    conclusion of the trial court, whether the facts satisfy the applicable legal
    standard." 
    Id. Licking County,
    Case No. 17-CA-1                                                            7
    {¶22} As the United States Supreme Court held in Ornelas v. U.S., 
    517 U.S. 690
    ,
    
    116 S. Ct. 1657
    , 1663, 
    134 L. Ed. 2d 94
    (1996), "…as a general matter determinations of
    reasonable suspicion and probable cause should be reviewed de novo on appeal."
    CUSTODY PURSUANT TO A VALID SEARCH AND MIRANDA
    {¶23} Eli argues that because he was not permitted to leave the house during
    the search, he was detained and therefore entitled to Miranda warnings. We disagree.
    {¶24} First, Miranda v. Arizona, 
    384 U.S. 436
    , 444, 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966) provided:
    The prosecution may not use statements, whether exculpatory or
    inculpatory, stemming from custodial interrogation of the defendant unless
    it demonstrates the use of procedural safeguards effective to secure the
    privilege against self-incrimination. By custodial interrogation, we mean
    questioning initiated by law enforcement officers after a person has been
    taken into custody or otherwise deprived of his freedom of action in any
    significant way.
    {¶25} But “police are not required to administer Miranda warnings to everyone
    whom they question.” State v. Biros, 
    78 Ohio St. 3d 426
    , 440, 
    678 N.E.2d 891
    (1997),
    citing Oregon v. Mathiason, 
    429 U.S. 492
    , 495, 
    97 S. Ct. 711
    , 
    50 L. Ed. 2d 714
    , 719 (1977).
    This is true when an individual is not in police custody, or is merely temporarily restrained.
    {¶26} The temporary restraint of a person, such as that required of those present
    in a home during the execution of a search warrant, does not invoke the “full panoply of
    Licking County, Case No. 17-CA-1                                                           8
    Fourth Amendment protections * * * for no actual arrest has occurred.” State v. Schultz,
    
    23 Ohio App. 3d 130
    , 135, 
    491 N.E.2d 735
    (1985), citing Florida v. Royer, 
    460 U.S. 491
    ,
    
    103 S. Ct. 1319
    , 
    75 L. Ed. 2d 229
    (1983). Temporary restraint of occupants during the
    search of a home is justified by “substantial law enforcement interests” such as officer
    safety, occupant safety and the orderly execution of the search, so as long as police have
    an articulable basis for suspecting criminal activity. State v. Jester, 12th Dist. Butler No.
    CA2010-10-264, 2012-Ohio-544 ¶ 18 citing Michigan v. Summers, 452, U.S. 692, 
    101 S. Ct. 2587
    , 
    69 L. Ed. 2d 340
    (1981).
    {¶27} The instant matter is factually similar to State v. Schultz 
    23 Ohio App. 3d 130
    , 
    491 N.E.2d 735
    (1985). In Schultz, defendant Schultz was an overnight guest in a
    home that was searched for drugs pursuant to a warrant. Schultz was detained in the
    home during the search. At some point, officers asked Schultz whether a coat belonged
    to him, and Schultz replied that it did. Schultz was arrested after cocaine was found in the
    coat.
    {¶28} On appeal, the Tenth District Court of Appeals held that police were not
    required to administer Miranda warnings before they asked Schultz about the coat,
    because he was only in an intermediate level of detention similar to an on-the-scene
    investigation in a Terry stop. Schultz at 135, 
    491 N.E.2d 735
    , citing Terry v. Ohio, 
    391 U.S. 1
    , 
    88 S. Ct. 1503
    , 
    20 L. Ed. 2d 381
    (1968). The court held Schultz’s detention
    amounted to general on-scene questioning, like that described in Miranda as “a legitimate
    and necessary part of the fact-finding process undertaken by the police at the scene of
    the criminal activity.” Schultz at 135-136. The detention incident to the search was thus
    not so custodial in nature as to require Miranda warnings. 
    Id. Licking County,
    Case No. 17-CA-1                                                         9
    {¶29} Likewise here, we find Eli’s detention while the officers executed the search
    was reasonable. Officer Walls was familiar with Eli, his brother, and Osler, and was aware
    that all three are known to possess firearms and thus presented officer safety concerns.
    Supp. Hrg. at 14-15. Further, Eli was not in custody and therefore Miranda warnings were
    not required. He was not handcuffed, nor told was he under arrest. Eli was in fact released
    after officers completed the search of the home. Supp. Hrg. at 38.
    BACKPACK SEARCH
    {¶30} As for the search of the backpack, the Fourth Amendment to the United
    States Constitution prohibits warrantless searches and seizures, rendering them per se
    unreasonable unless an exception applies. Katz v. United States, 
    389 U.S. 347
    , 
    88 S. Ct. 507
    , 
    19 L. Ed. 2d 576
    (1967). Here, the initial search of Osler, his bedroom, and common
    areas was pursuant to Osler’s status as a parolee, and the Adult Parole Authority’s
    statutory power to search the home of a parolee without a warrant. Responding assisting
    law enforcement officers received the consent of the homeowner to search the entire
    residence. Eli does not dispute the validity of the consent to search. When an individual
    voluntarily consents to a search, no Fourth Amendment violation occurs. State v.
    Carothers, 5th Dist. Tuscarawas No. 2015 AP 04 0017, 2015-Ohio-4569 ¶ 25, citing
    United States v. Drayton, 
    536 U.S. 194
    , 207, 
    122 S. Ct. 2105
    , 
    153 L. Ed. 2d 242
    (2002).
    {¶31} Additionally, abandoned property is an exception to the warrant
    requirement. Before the search began, Eli stated he had no belongings in the home. Eli
    thereby abandoned the backpack. “A person who abandons property has no objectively
    reasonable expectation of privacy in it. A warrantless search of abandoned property does
    not violate the Fourth Amendment because any expectation of privacy is forfeited upon
    Licking County, Case No. 17-CA-1                                                          10
    abandonment.” State v. Gould, 131 Ohio St. 3d, 179, 2012-Ohio-71, 
    963 N.E.2d 136
    ¶
    37.
    {¶32} Accordingly, we overrule the first and second assignments of error
    III, IV, V
    {¶33} Eli’s final three assignments of error will be addressed together as all can
    be resolved by examining the evidence presented at trial.
    {¶34} In his third and fourth assignments of error, Eli argues the evidence
    presented by the state was insufficient to support his convictions and his convictions are
    against the manifest weight of the evidence. In his fifth assignment of error, Eli argues the
    trial court erred when it denied his Crim.R. 29 motion for acquittal. We disagree.
    {¶35} On review for sufficiency, a reviewing court is to examine the evidence at
    trial to determine whether such evidence, if believed, would support a conviction. State
    v. Jenks, 
    61 Ohio St. 3d 259
    , 
    574 N.E.2d 492
    (1991). "The relevant inquiry is whether,
    after viewing the evidence in a light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime proven beyond a reasonable
    doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979). On review for manifest weight, a reviewing
    court is to examine the entire record, weigh the evidence and all reasonable inferences,
    consider the credibility of witnesses and determine "whether in resolving conflicts in the
    evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
    that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio
    App.3d 172, 175, 
    485 N.E.2d 717
    (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
    St.3d 380, 
    678 N.E.2d 541
    (1997). The granting of a new trial "should be exercised only
    Licking County, Case No. 17-CA-1                                                        11
    in the exceptional case in which the evidence weighs heavily against the conviction."
    Martin at 175.
    {¶36} Crim.R. 29 governs a motion for acquittal. Subsection (A) states the
    following:
    The court on motion of a defendant or on its own motion, after the
    evidence on either side is closed, shall order the entry of a judgment of
    acquittal of one or more offenses charged in the indictment, information, or
    complaint, if the evidence is insufficient to sustain a conviction of such
    offense or offenses. The court may not reserve ruling on a motion for
    judgment of acquittal made at the close of the state's case.
    {¶37} The standard to be employed by a trial court in determining a Crim.R. 29
    motion is set out in State v. Bridgeman, 
    55 Ohio St. 2d 261
    , 
    381 N.E.2d 184
    (1978),
    syllabus: “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
    acquittal if the evidence is such that reasonable minds can reach different conclusions as
    to whether each material element of a crime has been proved beyond a reasonable
    doubt.”
    THE CHARGES
    {¶38} Eli was charged with aggravated possession of oxycodone in an amount
    equal to or exceeding five times the bulk amount, but less than fifty times the bulk amount
    in violation of R.C. 2925.11(A)(C)(1)(c). To prove the charge the state was required to
    produce evidence to show that Eli knowingly obtained, possessed, or used oxycodone in
    Licking County, Case No. 17-CA-1                                                       12
    an amount equal to or exceeding five times the bulk amount, but less than fifty times the
    bulk amount.
    {¶39} Eli was further charged with possession of heroin in violation of
    2925.11(A)(C)(6)(a). To prove this charge, the state was required to produce evidence to
    show Eli knowingly obtained, possessed, or used heroin.
    {¶40} We note that Ohio law recognizes the concept of “constructive possession”
    of illegal drugs. State v. Brunner, 5th Dist. Stark No. 2016CA00134, 2017-Ohio-2618 ¶
    18 citing In re D.P., 9th Dist. Summit No. 24591, 2009-Ohio-4335, ¶ 7, and State v. Wolery
    (1976), 
    46 Ohio St. 2d 316
    , 329, 
    348 N.E.2d 351
    (1976). The jury in this matter was
    provided with a constructive possession instruction. T. at 140.
    THE EVIDENCE
    {¶41} At trial, the state presented evidence from Officer Fumi and Detective
    Boerstler outlining the search of the residence, and the discovery of the backpack. After
    first denying he had any possessions in the home, Eli claimed ownership of the backpack
    after it was discovered by officers. The backpack contained the drugs as well as items
    personal to Eli – his expired Ohio driver’s license, a bus ticket showing Eli as the
    passenger and dated one month earlier, a piece of mail addressed to Eli, and a photo of
    Eli and his girlfriend. T. at 92-94.
    {¶42} Before resting its case, the state read the jury stipulations agreed upon by
    Eli and the state. Eli stipulated that the 254 pills found in the backpack were properly
    tested and found to be oxycodone, and that the bulk amount of oxycodone is 15 pills. Eli
    further stipulated that the white powder found in the backpack was properly tested and
    found to be heroin. Eli rested without presenting any evidence.
    Licking County, Case No. 17-CA-1                                                       13
    {¶43} Eli claimed ownership of the backpack. However, even if he had denied
    ownership, the state could still rely on circumstantial evidence and constructive
    possession to prove its case. Circumstantial evidence is sufficient to prove the essential
    elements in a criminal case. State v. Willey, 5th Dist. Guernsey No. 98 CA 6, 
    1999 WL 3962
    (Nov. 24, 1998) citing State v. Hopfer, 
    112 Ohio App. 3d 521
    , 558, 
    679 N.E.2d 321
    (1996). “Constructive possession exists when an individual knowingly exercises dominion
    and control over an object, even though that object may not be within his immediate
    physical possession. (State v. Wolery, 
    46 Ohio St. 2d 316
    , 
    348 N.E.2d 351
    , explained and
    followed.) ” State v. Hankerson, 
    70 Ohio St. 2d 87
    , 
    434 N.E.2d 1362
    (1982), syllabus. The
    backpack was found in a room Eli had occupied moments before, and contained items
    indicating it belonged to Eli.
    Licking County, Case No. 17-CA-1                                                          14
    {¶44} Accordingly, we find the state presented ample evidence to survive a
    Crim.R. 29 motion, and to support Eli’s convictions. We further find the evidence does not
    weigh heavily against Eli's conviction. The third, fourth, and fifth assignments of error are
    therefore overruled.
    By Wise, Earle, J.
    Gwin, P.J. and
    Wise, John, J. concur.
    EEW/sg 807