State v. McCray , 2015 Ohio 3049 ( 2015 )

[Cite as State v. McCray, 2015-Ohio-3049.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26519
:
v. : T.C. NO. 2014 CR 1229/1
:
STACEY McCRAY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the __31st__ day of ____July___, 2015.
...........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DAVID E. STENSON, Atty. Reg. No. 0042671, Talbott Tower, Suite 316, 131 N. Ludlow
Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
STACEY McCRAY, 4434 Linchmere Drive, Dayton, Ohio 45415
Defendant-Appellant
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FROELICH, P.J.
{¶ 1} After the trial court overruled her motion to suppress evidence, Stacey
McCray pled no contest in the Montgomery County Court of Common Pleas to
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possession of cocaine in an amount less than five grams. The trial court sentenced her
to community control for a period not to exceed five years. The court imposed financial
obligations, including an obligation to pay court costs, and suspended her driver’s license
for six months. McCray appeals from her conviction.
{¶ 2} McCray’s appellate counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he believed “this appeal
would be a frivolous appeal as outlined in Anders.” Counsel raised two potential
assignments of error, namely that the trial court erred in considering hearsay testimony at
the suppression hearing and that the trial court erred in finding McCray guilty when the
State “failed to meet its burden of proving the Appellant had committed a crime.” By
entry, we informed McCray that her attorney had filed an Anders brief on her behalf and
granted her 60 days from that date to file a pro se brief. No pro se brief has been filed.
{¶ 3} We have conducted our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with
appellate counsel that there are no potentially meritorious issues for review.
I. Motion to Suppress
{¶ 4} On June 11, 2014, McCray and a co-defendant, Antonio Boyd, were
indicted for possession of cocaine in an amount less than five grams, in violation of R.C.
2925.11(A). On July 9, 2014, McCray moved to suppress the evidence seized from her
automobile, arguing that she was unlawfully stopped and detained, that she was
unlawfully patted down, and that she was arrested without probable cause. She further
argued that her statements to the police were not voluntary and were made in violation of
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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{¶ 5} A hearing was held on August 19, 2014, during which two Trotwood police
officers, Michael Richardson and Brent Rasor, testified. Their testimony established the
following facts.
{¶ 6} At 10:54 a.m. on November 30, 2013, Officer Richardson was dispatched to
1777 Shiloh Springs Road in Trotwood on a report of possible drug activity involving a
male with a gun. The call log (State’s Exhibit 1), which Richardson stated was a written
transcript of the information relayed by the dispatcher to the officers, indicated that the
dispatch involved a report of a male “with a gun banging on the door at 1777 Shiloh
Springs.” The dispatch further indicated that the male was with a female, who had driven
a car to that location. The call log indicated the races of the man and the woman; both
Richardson and Rasor testified that they believed the dispatcher had stated a different
race for the male at the door.
{¶ 7} Richardson had no information about the individual who had reported the
possible drug activity to the police. Richardson testified that the Shiloh Springs address
was associated with several prior dispatches, including assaults and two drug overdoses.
{¶ 8} Officer Richardson arrived at the address approximately two minutes after
the dispatch. Sergeant Rasor, who was also dispatched, arrived around the same time,
but pulled into the parking lot after Richardson. Another officer, Officer Derrick, had
already arrived.
{¶ 9} Officer Richardson testified that, when he arrived at the scene, he observed
a man and a woman on the doorsteps of 1777 Shiloh Springs. A black Toyota with a
man in the passenger seat was parked, running, directly in front of the building.
Richardson ran the license plate of the vehicle and learned that it was registered to
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Stacey McCray. A description of McCray was included; the description matched the
woman Richardson saw in front of 1777 Shiloh Springs.
{¶ 10} Richardson approached the woman for the purpose of “get[ting] her
information and explain[ing] to her why we were called there.” Richardson stated that
she identified herself as McCray. Richardson testified that McCray was not under arrest,
but she was not free to leave, because he was investigating possible drug activity.
{¶ 11} On cross-examination, Officer Richardson indicated that Officer Derrick
was talking to McCray near the front of her car when he (Richardson) arrived. After
Richardson began talking with McCray, Officer Derrick focused on McCray’s male
companion.
{¶ 12} As Officer Richardson was speaking with McCray, Sgt. Rasor approached
and asked McCray for consent to search her vehicle. Richardson indicated that Rasor
asked her three times. McCray did not respond to the first two requests, but said “no” to
the third request. Immediately after McCray said “no,” Sgt. Rasor had the male
passenger get out of McCray’s vehicle, Rasor got his K-9 partner, Atos, and Rasor walked
the dog around McCray’s car. The dog alerted on the front passenger door of the
vehicle.
{¶ 13} Officer Richardson and Sgt. Rasor searched the vehicle. When
Richardson opened the driver’s door, he immediately saw two clear capsules with white
powder in the driver’s armrest. Sgt. Rasor located a plastic bag of suspected marijuana,
cocaine, and heroin between the front passenger seat and the right side of the front
console. After finding the capsules, Richardson patted down McCray for weapons and
placed her in his cruiser. Nothing was found as a result of the pat down.
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{¶ 14} Once McCray was in the cruiser, Officer Richardson informed McCray of
her Miranda rights, reading them from a card provided by the Montgomery County
Prosecutor’s Office. McCray indicated that she understood her rights, and she agreed to
talk to the officer. There was no evidence regarding whether McCray made incriminating
statements.
{¶ 15} As a potential assignment of error, appellate counsel raised whether the
trial court erred in admitting hearsay evidence, State’s Exhibit 1. We agree with
appellate counsel that this a frivolous issue. As we stated in State v. Ginn, 2d Dist.
Montgomery No. 25325, 2013-Ohio-1692:
“[T]he rules of evidence normally applicable in criminal trials do not operate
with full force and effect in hearings before the judge to determine the
admissibility of evidence.” U.S. v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct.
988, 39 L.Ed.2d 242 (1974). A Crim.R. 12(C)(3) motion to suppress
evidence challenges its admissibility. Therefore, in ruling on the motion,
the court may rely on hearsay and other evidence, even though that
evidence would not be admissible at trial. U.S. v. Raddatz, 447 U.S. 667,
100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Evid.R. 101(C)(1) creates an
exception to the Rules of Evidence with respect to “[d]eterminations
prerequisite to the admissibility of evidence when the issue is to be
determined by the court under Evid.R. 104.” That rule provides that
questions concerning admissibility shall be determined by the court. Such
determinations implicate the right of confrontation in only a limited way, if at
all. State v. Tucker, 2d Dist. Montgomery No. 20956, 2005-Ohio-5227.
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Ginn at ¶ 25.
{¶ 16} In addition, upon review of the suppression hearing transcript, we find no
arguable issue that the trial court erred in overruling the motion to suppress. Within
minutes of the dispatch involving drugs and a weapon, several police officers arrived at
1777 Shiloh Springs Road, a residence known for drug activity, and located a man and a
woman and a vehicle owned by the woman in front of the residence. A canine officer
trained in drug detection was among the officers who arrived. Shortly after his arrival,
Sgt. Rasor walked his police dog around McCray’s vehicle, and the dog alerted to drugs in
the vehicle.
{¶ 17} Significantly, a police officer need not have a reasonable suspicion that a
vehicle contains contraband prior to summoning a canine drug unit. State v. Matthews,
2d Dist. Miami No. 2014-CA-23, 2015-Ohio-1750, ¶ 10; State v. Thomas, 2d Dist.
Montgomery No. 22833, 2009-Ohio-3520, ¶ 15. Furthermore, the use of a trained
narcotics dog to sniff an automobile does not constitute a “search” under the Fourth
Amendment. Thomas at ¶ 15, citing State v. Pryor, 2d Dist. Montgomery No. 20800,
2005-Ohio-2770, ¶ 13; Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842(2005). Reasonable suspicion that a vehicle contains drugs is not required prior to
conducting a canine sniff of the vehicle during a traffic stop so long as the duration of the
traffic stop is not extended beyond what is reasonably necessary to resolve the issue that
led to the stop and issue a traffic citation. State v. Johnson, 2d Dist. Montgomery No.
20624, 2005-Ohio-1367, ¶ 19. If a trained canine alerts to the odor of drugs from a
lawfully stopped and detained vehicle, an officer has probable cause to search the vehicle
for contraband. State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 17.
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{¶ 18} Under the totality of the circumstances, based on the record of the
suppression hearing, we find no non-frivolous claim that the trial court erred in denying
the motion to suppress.
II. Plea
{¶ 19} Six days after the trial court overruled her motion to suppress, McCray
entered a no contest plea to possession of cocaine. In accepting her plea, the trial court
stated, “I will accept your plea of no contest. I will find that you are guilty and I’m going to
base that upon the indictment and I’m also basing it upon the evidence that I found in the
motion to suppress that was introduced at the motion to suppress [hearing]. As a result
of that evidence, I will find that you are guilty * * *.”
{¶ 20} Appellate counsel raises that the State “failed to meet its burden of proving
the Appellant had committed a crime.” In essence, counsel raises a manifest weight
argument. We find this argument to be frivolous.
A conviction following a no-contest plea does not derive from evidence
adduced at a trial, but from the no-contest plea, itself, which is “an
admission of truth of the facts alleged in the indictment[.]” Crim.R.
11(B)(2). Therefore, a conviction based upon a no-contest plea is not
amenable to review on appeal to see whether it is against the manifest
weight of the evidence. State v. McGhee (January 18, 1995), Montgomery
App. No. 14515.
State v. Hall, 2d Dist. Montgomery No. 23488, 2009-Ohio-6390, ¶ 27.
{¶ 21} The trial court based its finding of guilt, in part, on McCray’s admission of
the truth of the facts alleged in the indictment. This admission, alone, provided a
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sufficient basis for the court’s finding of guilt. The fact that the court also relied in part on
the evidence from the suppression hearing did not create a burden on the State to
establish that McCray had committed the offense; to the contrary, the trial court merely
expressed that the evidence from the suppression hearing buttressed McCray’s
admission of the truth of the allegations in the indictment.
III. Conclusion
{¶ 22} In accordance with our obligation under Penson, we have reviewed the
entire record, including the court’s docket and the complete transcripts of the suppression
hearing, the plea hearing, and the sentencing hearing. Based on the record, we find this
appeal is frivolous.
{¶ 23} The trial court’s judgment will be affirmed. We note that the trial court’s
final judgment entry states that McCray pled guilty, instead of no contest, to possession of
cocaine. The matter will be remanded to correct this typographical error in the final
judgment entry.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Carley J. Ingram
David E. Stenson
Stacey McCray
Hon. Richard Skelton