State v. Moscoso , 2018 Ohio 2877 ( 2018 )

[Cite as State v. Moscoso, 2018-Ohio-2877.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
REMBER Y. MOSCOSO : Case No. CT2018-0012
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0271
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 19, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHEAL HADDOX JAMES A. ANZELMO
Prosecuting Attorney Anzelmo Law
446 Howland Drive
By: GERALD V. ANDERSON II Gahanna, Ohio 43230
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0012 2
Baldwin, J.
{¶1} Defendant-appellant Rember Moscoso appeals his conviction and sentence
from the Muskingum County Court of Common Pleas on drug-related charges. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 9, 2017, the Muskingum County Grand Jury indicted appellant on
one count of possession of drugs (methamphetamines) in violation of R.C. 2925.11(A), a
felony of the first degree. The count was accompanied by forfeiture and major drug
offender specifications. Appellant also was indicted on one count of trafficking in drugs
(methamphetamines) in violation of R.C. 2925.03(A)(2), a felony of the first degree, with
major drug offender and forfeiture specifications and one count of fabrication of a vehicle
with a hidden compartment in violation of R.C. 2923.241(C), a felony of the second
degree. Because appellant was determined to be indigent, the trial court appointed
counsel to represent him. At his arraignment on August 16, 2017, appellant entered a
plea of not guilty to the charges.
{¶3} On October 11, 2017, appellant filed a Motion to Suppress Evidence,
seeking to suppress “any and all evidence obtained in the course of, as a result of, and
subsequent to, the arrest of Defendant and the search of his hotel room…” Appellant
argued, in part, that the search of his hotel room was improper due to lack of consent
and/or lack of a search warrant. Appellee filed a response to the Motion to Suppress on
October 24, 2017. A suppression hearing was held on November 10, 2017.
{¶4} At the hearing, Detective Adam Hoskinson of the Licking County Sheriff’s
Office testified that he was assigned to the Central Ohio Drug Enforcement (“CODE”)
Muskingum County, Case No. CT2018-0012 3
Task Force. He testified that on July 11, 2017, he was in a marked cruiser when he
noticed a vehicle following too close to a gasoline tanker truck in front of it. He testified
that the vehicle later changed lanes but did not “signal for at least 100 feet” before it did
so. Transcript of November 10, 2017 hearing at 15. Detective Hoskinson testified that he
initiated a traffic stop of the vehicle which was a silver Kia Sportage with Illinois plates
which had been rented from Enterprise Rent-A-Car in the name of Amber Connor. The
following testimony was adduced when he was asked if the registration came back with
anything of note to him:
{¶5} A: …[T]he Illinois plate, it came back as a rental vehicle. Rental vehicles
have stickers, they are like bar codes on them usually in several places. Typically either
the front window, the side passenger window, or on the rear window. I did not see any of
these stickers on the vehicle, so that raised a lot of suspicions to me like why is that; and
with my training and education, it tells me that a lot of the times the drug traffickers, drug
couriers will remove those stickers to make it appear that somebody actually is private
ownership of the vehicle to blend in with traffic.
{¶6} Q: Okay. Through your training and experience, do drug couriers
oftentimes use rental vehicles?
{¶7} A: Yes, they like to use rental cars, one, because of the seizure clause, if
they get caught. Two, they are dependable cars, you know, they would rather drive a
2016, 2017 car over 2005 or 2010 because they are newer and more dependable, and
they blend in better.
{¶8} Transcript of November 10, 2017 hearing at 16.
Muskingum County, Case No. CT2018-0012 4
{¶9} After he pulled the vehicle over and approached the passenger’s side,
Detective Hoskinson immediately smelled an “odor, abundant amount of raw marijuana
coming from inside the vehicle” Transcript of November 10, 2017 hearing at 16-17. He
testified that he could observe marijuana flakes throughout the center console area of the
vehicle. The driver of the vehicle, Jose DeJesus Barragan Buenrostro, consented to a
search of the same and of his person and had flakes of marijuana on his shirt and pants.
The Detective located three hotel key cards to the Quality Inn in Zanesville, Ohio on
Buenrostro’s person. A search of the vehicle yielded a Quality Inn hotel receipt for room
324 in the hotel which was in Zanesville, Ohio. The name on the receipt was appellant
Rember Moscoso. A large bag with two or three ounces of suspected marijuana was
found in the center console. When he opened up the rear cargo area of the Kia, Detective
Hoskinson located a spare tire sitting on the carpeted area and noticed that the lug pattern
on the spare tire was for four lugs when the tires on the vehicle had five lugs. Because
he was concerned that there could be a hidden compartment in the tire, he examined the
tire and saw that there was a rectangular cut with a flap sticking up on the tire. He testified
that this was a common way of transporting illegal narcotics or contraband. There was
nothing inside the compartment, but a residue of methamphetamine was later found
inside the tire. Also in the vehicle, a traffic citation from Oklahoma City that had been
issued in the name of Hector Gomez was located. Buenrostro, who did not have a driver’s
license, was arrested on an outstanding ICE holder and the hidden compartment
violation.
{¶10} Detective Hoskinson then contacted Detective Mike Patrick with the
Zanesville Police Department who is also a Detective with the Zanesville/Muskingum
Muskingum County, Case No. CT2018-0012 5
County Drug Unit to follow up with the hotel because he thought that there might be drugs
in the hotel room. Detective Todd Kanavel of the Muskingum County Sheriff’s Office who
is also an agent with CODE, testified that he followed up with the hotel at the direction of
Detective Patrick. He testified that the hotel manager told him that appellant had checked
into room 324 on July 8, 2017 but had transferred to room 210 on July 11, 2017 to save
money. Detective Kanavel and Detective Patrick then went to room 210 at approximately
3:30 p.m. on July 11, 2017 and knocked on the door. They could hear at least one male
voice inside the room talking. Detective Kanavel identified himself and Detective Patrick
to appellant and asked to talk to him. Appellant, according to Detective Patrick, invited
them into the room. When the Detectives entered the room, they saw Hector Gomez also
was in the room laying on the bed. Both Gomez and appellant provided California IDs.
Appellant already knew about Buenrostro’s arrest and asked if this had anything to with
their friend Jose, who had been arrested with the marijuana. The Detectives indicted that
it did and appellant said that the marijuana in the car was all that they had, Detective
Kanavel testified that both men, when asked indicated that they did not have any drugs
or guns in the room and when he asked them individually if they could check through the
room for guns and drugs they consented. Approximately $15,000 in U.S. currency was
located in a black bag that appellant later identified as his. Appellant stated that the
money was used to pay MMA (mixed martial arts) fighters. The two men told Detective
Kanavel that they had flown from California into Akron on July 10, 2017 looking for MMA
fighters. The Detective, however, knew that this was a lie because they had checked into
the hotel on July 8th. Appellant also claimed that, in Akron, a woman named Amber met
them and rented a car for them.
Muskingum County, Case No. CT2018-0012 6
{¶11} Detective Kanavel testified that the amount of money found concerned him,
so he contacted Detective Romano of the Newark Police Department who was with
CODE. He then told the two men that Detective Romano wanted to talk to them and they
said that it would not be a problem. Neither man objected to the Detectives remaining in
the room while waiting the 30 to 45 minutes that it would take for Detective Romano to
arrive from Newark. When Detective Romano arrived, he spoke with appellant and
Gomez individually. The two gave conflicting stories about how and when they traveled
to Ohio. Both men were then arrested for further investigation into the marijuana that was
located in the car. When they were asked if they wanted the Detectives to clear out all of
their stuff and put it into bags so that they could get their $250.00 hotel deposit back and
have the stuff transported to Licking County along with them, where further investigation
was to be conducted, the two men agreed and the Detectives started gathering their
belongings. As they were gathering up the belongings, Detective Romano found an
unzipped black duffle bag full of methamphetamine under one of the beds that appellant
had been sitting on. The methamphetamine was in 13 gallon-size zip lock bags. When
asked, he testified that the men never revoked his permission to be in the room or their
consent for him to search for anything. Romano testified that in a cabinet behind a
microwave, he found a styrofoam coffee cup containing what looked like
methamphetamine.
{¶12} The trial court, as memorialized in a Journal Entry filed on November 16,
2017, denied the Motion to Suppress, holding, in part, that the occupants of the hotel
room gave consent to search the room and that no coercive tactics were used and “no
claims of false authority made.”
Muskingum County, Case No. CT2018-0012 7
{¶13} Thereafter, on November 28, 2017, appellant entered a plea of no contest
to possession of drugs and trafficking in drugs and the specifications and the trial court
found appellant guilty. The charge of fabrication of a vehicle with a hidden compartment
was tried to the bench. No testimony was taken, but rather the parties stipulated to the
facts. The parties stipulated that Detective Hoskinson stopped Jose Barragan Buenrostro
on July 11, 2017 for a traffic violation and found an altered tire in the cargo section of the
vehicle driven by him. They stipulated that the spare tire located in the vehicle did not
match the lug pattern on the vehicle and that there was “a purposeful cut …in the outside
of the discovered tire giving access to its interior. ..Inside the cut tire was
methamphetamine residue”. Transcript from November 28, 2017 at 48. The parties also
stipulated that the Detectives discovered a plastic baggie containing marijuana in the
center console of the vehicle and that a baggie was found stowed in the trunk
compartment where the spare tire normally would have been. There was a stipulation that
“Detectives Hoskinson, Romano, Kanavel, and Patrick would testify that this baggie would
match the type characteristics of the baggies of methamphetamine later discovered in
Zanesville and for which the defendants have already pled no contest.” Transcript from
November 28, 2017 at 49. The parties also stipulated that the phone found on Barragan
contained videos containing recorded conversations between Barragan and appellant
and Gomez about methamphetamine. The trial court found appellant guilty of the
fabrication of a vehicle with a hidden compartment charge.
{¶14} Appellant on January 29, 2018, filed a Motion to Waive Mandatory Fine due
to indigency. Pursuant to an Entry filed on January 31, 2018, the trial court ordered that
for purposes of sentencing, Counts One and Two would merge and appellant would be
Muskingum County, Case No. CT2018-0012 8
sentenced under Count Two, and sentenced appellant to a mandatory term of eleven
years and imposed mandatory fine of $10,000.00 and a to stated prison term of four years
on Count Three. The trial court ordered that the prison sentences be served consecutively
with each other for an aggregate prison sentence of 15 years. The trial court also ordered
appellant to pay all court costs.
{¶15} Appellant now raises the following assignments of error on appeal:
{¶16} I. THE TRIAL COURT ERRED BY DENYING MOSCOSCO’ S MOTION
TO SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE
FOURTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION
14, ARTICLE I OF THE OHIO CONSTITUTION.
{¶17} II. MOSCOSCO’ S CONVICTION FOR FABRICATION OF A VEHICLE
WITH A HIDDEN COMPARTMENT IS BASED ON INSUFFICIENT EVIDENCE IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 AND
16, ARTICLE 1 OF THE OHIO CONSTITUTION.
{¶18} III. THE TRIAL COURT UNLAWFULLY ORDERED MOSCOSO TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITES STATES
CONSTITUTION.
{¶19} IV. THE TRIAL OUR ABUSED ITS DISCRETION BY ORDERING
MOSCOSCO TO PAY A FINE, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER
Muskingum County, Case No. CT2018-0012 9
THE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
{¶20} V. THE TRIAL COURT ERRED BY ORDERING MOSCOSO TO PAY
COSTS, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 16 ARTICLE I OF THE OHIO CONSTITUTION.
I
{¶21} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Motion to Suppress. We disagree.
{¶22} There are three methods of challenging 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 (4th Dist.1991).
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, 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
Muskingum County, Case No. CT2018-0012 10
App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994); State v. Claytor, 85 Ohio App.3d 623, 620
N.E.2d 906 (4th Dist. 1993); Guysinger, supra. 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 911 (1996), “... as a
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.” 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).
{¶23} Appellant argues that his consent was not voluntary but was submission to
police authority and that Romano’s search exceeded the consent. Because appellant
challenges the trial court's decision regarding the ultimate issue raised in his motion to
suppress; we must independently determine whether the facts meet the appropriate legal
standard.
{¶24} It is well-established a defendant waives his or her Fourth Amendment
protection by consenting to a warrantless search. State v. Barnes, 25 Ohio St.3d 203,
208, 495 N.E.2d 922 (1986), citing Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256,
90 L.Ed. 1453 (1946), Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973), “The standard of proof to show a waiver of Fourth Amendment rights
is less strict than that required to demonstrate a waiver of Fifth or Sixth Amendment rights.
It need not be shown that there has been a knowing and intelligent waiver. Rather, the
court must examine the totality of the circumstances to determine the voluntariness of
Muskingum County, Case No. CT2018-0012 11
consent.” Barnes, supra, at 208-209, citing Schneckloth, supra, and United States v.
Mendenhal, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶25} “Voluntary consent, determined under the totality of the circumstances, may
validate an otherwise illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234,
241, 1997 Ohio 343, 685 N.E.2d 762, citing Davis v. United States, supra, at 593-594.
Important factors in determining the voluntariness of consent are: (1) The voluntariness
of the defendant's custodial status; (2) The presence of coercive police procedures; (3)
The extent and level of the defendant's cooperation with the police; (4) The defendant's
awareness of his right to refuse to consent; (5) The defendant's education and
intelligence; and (6) The defendant's belief that no incriminating evidence will be found.
State v. Hall, Tuscarawas App. Nos.2000AP030025, 2000AP030026, unreported, 2000
WL 1862650 #3 (Dec. 14, 2000), citing State v. Webb, 2nd Dist. No. 17676, 2000 WL
84658 unreported (Jan. 28, 2000).
{¶26} Any search beyond the permitted intrusion would not be based on a
voluntary relinquishment of the right to be free from warrantless searches. See State v.
Mack , 118 Ohio App.3d 516, 519, 693 N.E.2d 821 (1997), appeal not allowed (1997), 79
Ohio St.3d 1418, 680 N .E.2d 156. And if an individual may limit the scope of his consent
to search, he may revoke that consent entirely. See, e.g., United States v. Drayton, 536
U.S. at 207, 122 S.Ct. 2105, 153 L.Ed.2d 242; Painter v. Robertson (C.A.6, 1999), 185
F.3d 557, 567. Of course, an item properly seized prior to the withdrawal of consent is not
subject to suppression under the Fourth Amendment. State v. Riggins, 1st Dist. No.
C0306262, 2004-Ohio-4247.
Muskingum County, Case No. CT2018-0012 12
{¶27} The prevailing rule among Ohio courts is that consent to a search may be
limited in time, duration, area, and intensity, or may revoked at any time, even after the
search has begun. See Lakewood v. Smith, 1 Ohio St.2d 128, 130, 205 N.E.2d 388(1965); State v. Crawford, 151 Ohio App.3d 784, 2003-Ohio-902, 786 N.E.2d 83 (2d
Dist.); State v. Mack, 118 Ohio App.3d at 519, 693 N.E.2d 821 (6th Dist.); State v. Rojas
(1997), 92 Ohio App.3d 336, 635 N.E.2d 66 (8th Dist.); State v. Arrington (1994), 96 Ohio
App.3d 375, 645 N.E.2d 96 (12th Dist.).
{¶28} Whether a search is authorized by warrant or by consent, the scope of the
search is limited by the terms of its authorization. See Walter v. United States, 447 U.S.
649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). See also, State v. Robinson, 103 Ohio
App.3d 490, 495, 659 N.E.2d 1292. Where a suspect places express limitations on the
scope of a consensual search, those limitations must be observed. For example, where
a suspect tells the police, “The search is over. I am calling off the search,” his consent
has been revoked. United States v. Dichiarinte, 445 F.2d 126, 128-29 (C.A.7, 1971). A
suspect may also communicate the limitation of a search by his actions. Where a suspect
voluntarily opens his door to the police but then closes the door, barring the officers'
progress into his apartment, he has communicated the withdrawal of his consent to the
initial intrusion. See State v. Robinson, 103 Ohio App.3d 490, 495, 659 N.E.2d 1292(1995).
{¶29} The scope of an individual's consent is often not as readily discernible and
is not to be determined by the subjective belief of the suspect. Rather, “[t]he standard for
measuring the scope of a suspect's consent is that of ‘objective reasonableness 'what
would the typical reasonable person have understood by the exchange between the
Muskingum County, Case No. CT2018-0012 13
officer and suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d
297 (citations omitted).
{¶30} The scope of a search is defined by its expressed purpose or by the nature
of the object being sought. See id., citing United States v. Ross, 456 U.S. 798, 102 S.Ct.
2157, 72 L.Ed.2d 572 (1982); see, also, Hiibel v. Sixth Judicial Dist. Court of Nevada,
Humboldt County, 542 U.S. 177, 124 S.Ct. at 2457-2458.
{¶31} At the suppression hearing, there was testimony that Detective Kanavel
knocked on the door to room 201 of the hotel at approximately 3:30 p.m. on July 11, 2017
and that appellant opened the door. Both Detective Kanavel and Detective Patrick were
outside the door and identified who they were and Detective Kanavel testified that he
asked appellant if he could talk with him. The detectives testified that once appellant
consented and said for them to come on in, they went into the room, shut the door, and
appellant “said does this have anything to do with Jose [DeJesus Buenrostro], and I told
him yes.” Transcript of suppression hearing at 71. Hector Gomez was also in the room
at the time. Both men told the Detectives that they did not have any other drugs in the
room or guns and when each was asked individually if they cared if the Detectives “would
check through the room for guns and drugs and they stated no, it was no problem.”
Transcript of suppression hearing at 59.
{¶32} Detective Kanavel testified that he saw a black bag that appellant identified
as being his and that he located approximately $15,000 in U.S. currency in the bag. While
he was searching the bag, Detective Patrick was searching Gomez’s stuff on the other
side of the room. Appellant and Gomez were advised that Detective Romano with CODE
wanted to talk to them further because of the money that had been located and that when
Muskingum County, Case No. CT2018-0012 14
asked if that was a problem, they both indicted that it was not. Detective Kanavel testified
that he asked if they cared if “We just hang out here with you until he gets here, they
stated that it would be no problem, so we sat there in the room for probably about 40, 45
minutes watching ESPN, talking sports, and talking about the MMA fighting and that.”
Transcript of suppression hearing at 62. When he told them that it would take a half hour
to 35 minutes because Detective Romano was in Licking County and that it would take a
while, the two men did not complain and were friendly. Once Detective Romano arrived,
both men agreed to be individually interviewed by him along with Detective Patrick. At the
time no one was handcuffed and guns were not pointed at anyone. Detective Kanavel
testified that the consent to search the room for drugs and guns was started at 3:35 p.m.
and that during the course of the search, both men identified what possessions in the
room belonged to them. The consent search ceased at approximately 3:40 p.m. The
following is an excerpt from Detective Kanavel’s testimony at the suppression hearing:
{¶33} Q: Okay. At any point when you were talking to these guys, did they revoke
your permission to be in the same room?
{¶34} A: No, they did not.
{¶35} Q: Did they ever revoke their consent for you to be searching for anything?
{¶36} A: No.
{¶37} Q: Did you refresh your permission repeatedly throughout this interaction?
{¶38} A: Yes.
{¶39} Q: At the end when you were - - when they were being placed under arrest
in the room and they were going to be taken to Licking County, and you asked to get their
stuff and put it in a bag –
Muskingum County, Case No. CT2018-0012 15
{¶40} A: Yes.
{¶41} Q: - - was it your purpose to be rooting around the room and finding drugs,
or were you just trying to get their stuff in a bag and get them out of there?
{¶42} A: Just gather all their stuff.
{¶43} Q: So if somebody gives you permission to gather all their stuff in a hotel
room so it could be taken with them, do they take that to mean clear out the hotel room
of all the personal property?
{¶44} A: Yes.
{¶45} Q: Not just the specific bags that they have pointed out, but instead all
personal property?
{¶46} A: Correct.
{¶47} Transcript of suppression hearing at 102-103.
{¶48} Based on the foregoing, we find that the trial court did not err in finding that
the consent to search was “voluntary, uncoerced and valid” and that the detectives
“[c]ontinually refreshed the voluntariness of the encounter, and continued to meet with
complete cooperation from the Defendant [appellant] and co-defendant which cements
the voluntariness of the consensual interaction of the parties.” There is no evidence that
the scope of consent was ever limited or revoked by either appellant or Gomez at any
time. As noted by appellee, the Detectives had clear consent to gather the belongings of
the two men in the hotel room so that they could get back their $250.00 deposit when the
room was vacated. Both the cup containing drugs and the bag containing money were
discovered as a result of this “gathering”.
Muskingum County, Case No. CT2018-0012 16
{¶49} We find, therefore, that the trial court did not err in denying the Motion to
Suppress.
{¶50} Appellant’s first assignment of error is, therefore overruled.
II
{¶51} Appellant, in his second assignment of error, contends that his conviction
for fabrication of a vehicle with a hidden compartment is based on insufficient evidence.
{¶52} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. It is well-established that the State bears the burden of
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–
15, 2010 WL 27862, ¶ 11.
{¶53} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237 N.E.2d 212(1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.
{¶54} Appellant was convicted of designing or operating a vehicle with a hidden
compartment used to transport a controlled substance in violation of R.C. 2923.241(C).
R.C. 2923.241 states, in relevant part, as follows:
(A) As used in this section:
Muskingum County, Case No. CT2018-0012 17
(1) “Controlled substance” has the same meaning as in section 3719.01
of the Revised Code.
(2) “Hidden compartment” means a container, space, or enclosure that
conceals, hides, or otherwise prevents the discovery of the contents of the
container, space, or enclosure. “Hidden compartment” includes, but is not
limited to, any of the following:
(a) False, altered, or modified fuel tanks;
(b) Any original factory equipment on a vehicle that has been modified
to conceal, hide, or prevent the discovery of the modified equipment's
contents;
(c) Any compartment, space, box, or other closed container that is
added or attached to existing compartments, spaces, boxes, or closed
containers integrated or attached to a vehicle.
(3) “Vehicle” has the same meaning as in section 4511.01 of the Revised
Code and includes, but is not limited to, a motor vehicle, commercial tractor,
trailer, noncommercial trailer, semitrailer, mobile home, recreational
vehicle, or motor home.
(4) “Motor vehicle,” “commercial trailer,” “trailer,” “noncommercial
trailer,” “semitrailer,” “mobile home,” “manufacturer,” “recreational vehicle,”
and “motor home” have the same meanings as in section 4501.01 of the
Revised Code.
(5) “Motor vehicle dealer” has the same meaning as in section 4517.01
of the Revised Code.
Muskingum County, Case No. CT2018-0012 18
(B) No person shall knowingly design, build, construct, or fabricate a
vehicle with a hidden compartment, or modify or alter any portion of a
vehicle in order to create or add a hidden compartment, with the intent to
facilitate the unlawful concealment or transportation of a controlled
substance.
(C) No person shall knowingly operate, possess, or use a vehicle with a
hidden compartment with knowledge that the hidden compartment is used
or intended to be used to facilitate the unlawful concealment or
transportation of a controlled substance.
{¶55} In the case sub judice, there was testimony that a spare tie with a three-
sided flap cut into the sidewall was located in the vehicle. It was placed inside the vehicle
to make it appear that it was the correct spare tire for the vehicle. The cut, according to
the testimony, appeared to be purposeful and not the result of a non-deliberate cause.
There was drug residue found inside the tire.
{¶56} A spare tire clearly falls under the original factory equipment of a vehicle
even though, as noted, the spare at issue was not the actual spare from the Kia in this
case. The spare tire to the vehicle in question was removed and replaced with the spare
tie that was found in the vehicle. As noted by appellee, “[t]he cut located on the underside
of the spare tire in the vehicle was consistent with the creation of a hidden compartment
under the statute.” The trial court, at the conclusion of the bench trial, stated on the
record, in relevant part, as follows:
{¶57} THE COURT: The Court does find that the tire specifically is - - does
provide a hidden compartment and is the hidden compartment as stated in 2923.241 (2)
Muskingum County, Case No. CT2018-0012 19
and (B) says any original factory equipment on the vehicle that has been modified to
conceal, hide, or prevent the discovery of modified equipment’s contents. Clearly, the
methamphetamine or drugs were placed inside that they modified with the slices, it was
intended to hide the drugs inside.
Because the tire was sitting on top of the spare tire area doesn’t mean that
tire wasn’t designed - - that tire still was designed to conceal the drugs.
And based upon that, I find you guilty of Count 3 also.
{¶58} Transcript from November 28, 2017 at 80.
{¶59} Based on the foregoing, we find that after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found that appellant
knowingly operated, possessed, or used a vehicle with a hidden compartment with
knowledge that the hidden compartment was used or intended to be used to facilitate that
unlawful concealment or transportation of a controlled substance,
{¶60} Appellant’s second assignment of error is, therefore, overruled.
III
{¶61} Appellant, in his third assignment of error, argues that the trial court erred
in sentencing him to consecutive sentences in contravention of R.C. 2929.14(C)(4).
Appellant specifically contends that the record does not support consecutive sentences.
{¶62} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences.
Appellant was sentenced to eleven years in prison on Count 2 and four years in prison
on Count 3. The trial court ordered that the sentences run consecutively, for an aggregate
Muskingum County, Case No. CT2018-0012 20
prison sentence of 15 years. We note that Counts 1 and 2 merged for purposes of
sentencing and that the State of Ohio elected to proceed with sentencing on Count 2.
{¶63} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption
by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v.
Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, ¶ 23. This statute requires
the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Nos. C–
110828 and C–110829, 2012–Ohio–3349, 2012 WL 3055158, ¶ 15.
{¶64} R.C. 2929.14(C)(4) provides as follows:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
Muskingum County, Case No. CT2018-0012 21
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶65} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender's conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post-release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two
or more of the offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct would adequately reflect the
seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12–CA–00018, 2013–Ohio–2058, 2013
WL 2152488, ¶ 36.
{¶66} Recently, in Bonnell, supra, syllabus, the Supreme Court of Ohio stated
that:
Muskingum County, Case No. CT2018-0012 22
{¶67} In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.
{¶68} Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Bonnell, ¶ 29. “[A]s long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a
consecutive sentence contrary to law. Bonnell, ¶ 34. However, a trial court's inadvertent
failure to incorporate the statutory findings in the sentencing entry after properly making
those findings at the sentencing hearing does not render the sentence contrary to law;
rather, such a clerical mistake may be corrected by the court through a nunc pro tunc
entry to reflect what actually occurred in open court. Bonnell, ¶ 30.
{¶69} The trial court, in the case sub judice, stated on the record in sentencing
appellant to consecutive sentences:
{¶70} The Court does find that consecutive sentences are necessary to protect
the public and punish the offender. But consecutive sentences are not disproportionate
to the seriousness of the conduct and the danger posed to the public by your actions.
{¶71} Additionally, at least two of these multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or more of the multiple
offenses so committed was so great or unusual that no single prison term for any of the
offenses committed as part of these courses of conduct adequately reflects the
Muskingum County, Case No. CT2018-0012 23
seriousness of your conduct, therefore, the 15-year prison sentence. Transcript of
suppression hearing at 102-103.
{¶72} While appellant argues that the record does not support the trial court’s
findings, we disagree. Appellant was caught with 57,000 unit doses, or 12.2 pounds of
crystal methamphetamine. There was evidence at the sentencing hearing that appellant
had a prior conviction for felony possession of cocaine in California and an outstanding
warrant for obstructing official business through falsification in Texas. The trial court, at
the sentencing hearing, noted that by appellant’s own admission, he was making at least
$20,000.00 a month in the drug trade in California. There was also evidence that appellant
had a conviction for driving without a license from 2014.
{¶73} Based on the foregoing, we find that the trial court’s findings for imposing
consecutive sentences were supported by the record and that the trial court did not err in
imposing consecutive sentences.
{¶74} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶75} Appellant, in his fourth assignment of error, challenges the trial court’s
imposition of a mandatory fine of $10,000.00 on appellant with respect to County Two, a
felony of the first degree. Specifically, Appellant claims that the trial court did not consider
appellant's indigent status.
{¶76} R.C. 2929.18 governs the imposition of financial sanctions as a part of
sentencing in felony cases. Specifically, R.C. 2929.18(A) (3) (a) permits the imposition of
a fine not more than twenty thousand dollars for a felony of the first degree. Prior to
Muskingum County, Case No. CT2018-0012 24
imposing such a financial sanction, the court must consider, “the offender's present and
future ability to pay the amount of the sanction or fine.” R.C. 2929.19(B) (5).
{¶77} The decision to impose or waive a fine rests within the sound discretion of
the court and will not be reversed on appeal absent an abuse of that discretion. State v.
Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-626, 687 N.E.2d 750. “The term ‘abuse of
discretion’ connotes more than an error of law or of judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
{¶78} As this Court stated in State v. Gornall, 5th Dist. Ashland No. 2004-COA-
002, 2016-Ohio-7599 at paragraph 46:
{¶79} As this Court explained in State v. Perry, 5th Dist. Ashland No.2004-CA-
00066, 2005-Ohio-85:
“ ‘[T]here are no express factors that must be taken into consideration or
findings regarding the offender's ability to pay that must be made on the
record.’ State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-
Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) ‘to
determine whether the offender is able to pay the [financial] sanction or is
likely in the future to be able to pay it,’ a court is not required to do so. State
v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported
(‘although the trial court must consider the offender's ability to pay, it need
not hold a separate hearing on that issue’). ‘All that R.C. 2929.19(B)(6)
requires is that the trial court consider the offender's present and future
ability to pay.’ State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-
Muskingum County, Case No. CT2018-0012 25
1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746
N.E.2d 642. See also State v. Thompson, 5th Dist. No. 06-CA-62, 2008-
Ohio-435, at ¶ 19. While it would be preferable for the trial court to expressly
state on the record that it has considered a defendant's present and future
ability to pay a fine, it is not required. State v. Parker, 2nd Dist. No.
03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01
CA2806, 2002-Ohio-5343. “The court's consideration of that issue may be
inferred from the record under appropriate circumstances.” Id. at paragraph
27.
{¶80} Appellant, on January 29, 2018, filed a motion to waive the mandatory fine
due to his indigency. In his affidavit that was attached to the motion, he alleged that he
had previously been determined to be indigent by the court and unable to retain counsel
to represent him and that he remained an indigent person. At the sentencing hearing in
this matter, the trial court stated that based on appellant’s admission that he was earning
at least $20,000.00 month in the drug trade in California, which appellant confirmed at the
sentencing hearing, it was not going to find appellant indigent and was not going to waive
the mandatory fine. We find that the trial court considered appellant’s ability to pay a fine
and that the trial court’s decision was not unreasonable, arbitrary or unconscionable. We
find no abuse of discretion in the trial court’s imposition of the mandatory fine.
{¶81} Appellant’s fourth assignment of error is, therefore, overruled.
V
{¶82} Appellant, in his fifth assignment of error, argues that the trial court erred in
ordering him to pay court costs when he was indigent.
Muskingum County, Case No. CT2018-0012 26
{¶83} In regard to court costs, we note R.C. 2947.23(A)(1)(a) states in pertinent
part: “In all criminal cases, including violations of ordinances, the judge or magistrate shall
include in the sentence the costs of prosecution, including any costs under section
2947.231 of the Revised Code, and render a judgment against the defendant for such
costs. * * *.” (Emphasis added). Accordingly, even if a defendant is indigent, a sentencing
court must include the costs of prosecution in the sentence and render a judgment against
the defendant for costs. State v. McHenry, 5th Dist. Stark No. 2017CA00119, 2017–Ohio–
7672, ¶ 12, citing State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393,
¶ 8. But see R.C. 2949.092. Furthermore, appellant did not object to the imposition of
court costs, even though the trial court orally stated they were part of the sentence, and
the trial court did not find appellant indigent based on appellant’s admission that he was
making at least $20,000.00 a month in the drug trade in California. . Sentencing Tr. at 15-
16. Upon review, we find no reversible error in this instance in regard to the imposition of
court costs.
{¶84} Appellant's fifth assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2018-0012 27
{¶85} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.