State v. Sieng , 2018 Ohio 5103 ( 2018 )

[Cite as State v. Sieng, 2018-Ohio-5103.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-39
v. : (C.P.C. No. 14CR-6388)
Virsna A. Sieng, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 18, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Keith A. Yeazel, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Virsna A. Sieng, appeals from a judgment of the
Franklin County Court of Common Pleas convicting appellant of possession of cocaine, in
violation of R.C. 2925.11, with a firearm specification, and having a weapon while under
disability, in violation of R.C. 2923.13. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The testimony at the suppression hearing reveals that on July 10, 2014,
Detective Marcus Blevins of the Hilliard Division of Police was conducting surveillance of a
home where appellant lived with his parents at 5521 Mirage Drive in Hilliard, Ohio. Blevins
was part of the High Intensity Drug Trafficking Area ("HIDTA") task force, a cooperative
No. 18AP-39 2
effort between state and federal law enforcement to combat illegal drug activities in
Columbus, Ohio and surrounding areas.
{¶ 3} At approximately 8:44 a.m., Blevins observed a Columbus Division of Police
("CPD") "paddy wagon" arrive at the residence. (Tr. Vol. 1 at 42.) According to Blevins, he
met with one of the responding CPD officers, Brian Bishop, shortly after Bishop left
appellant's residence, and Bishop told him it was the second time that morning that CPD
had responded to a call from a female at the residence who reported a break-in. Bishop
reported that a sweep of the residence revealed no intruder.
{¶ 4} At approximately 10:19 a.m., Blevins saw CPD return to the residence a third
time. On this occasion, police determined appellant's girlfriend was suffering either from
a drug overdose or mental health issues, and they called paramedics to the scene.
Appellant's girlfriend was taken to the hospital for medical assistance.
{¶ 5} About one-half hour later, a maroon Chevrolet Impala with Vermont license
plates stopped in front of appellant's residence, and Blevins saw the driver get out of the
vehicle and go inside appellant's home. Less than one hour later, the same man left the
residence and drove away. Blevins called CPD Detective Clint Smith, another member of
the HIDTA task force, to provide Smith with the vehicle description and request a traffic
stop.
{¶ 6} According to Smith, after he caught up with the Impala, he observed the
operator commit numerous traffic violations. Because Smith was operating an unmarked
police vehicle, he radioed ahead to Deputy Sheriff Robert McKee, a certified K-9 patrol
officer with the Franklin County Sheriff's Office, who was also a member of the HIDTA task
force. Smith provided McKee with a description of the vehicle and informed him of the
events that he and Blevins had previously observed. McKee followed the Impala and
observed the vehicle operator "[f]ail to yield for a red light at Roberts and Hillard-Rome."
(Tr. Vol. 1 at 65.) On cross-examination, however, McKee could not recall whether he had
personally observed the violation or he had received the information from Smith.
{¶ 7} McKee stopped the Impala at approximately 1:00 p.m., and he subsequently
learned that the operator, Fredrick Akins, was a federal parolee who had been convicted of
crimes related to illegal narcotics. According to McKee, as he walked his dog, Blek, around
the vehicle, Blek alerted to the presence of narcotics. A subsequent search of the vehicle
No. 18AP-39 3
did not reveal any narcotics. McKee explained that trained drug detection dogs will often
alert to the presence of narcotics for a period of time after they have either been consumed
or removed from the vehicle.
{¶ 8} About the same time McKee completed the traffic stop, Smith arrived at the
scene and spoke with Akins. According to Smith, Akins admitted that he had just been to
appellant's home and that he believed appellant had a firearm and a large quantity of
cocaine in the home. He told Smith appellant was looking for a way to get the cocaine out
of his house. Akins also told Smith appellant was under the influence of narcotics.
{¶ 9} Smith relayed the information to Blevins who was still watching appellant's
home. At or about that same time, Blevins observed appellant leave his house and proceed
on foot to his vehicle. According to Blevins, appellant had his "head on a swivel," which
meant that he was scanning the area carefully as he approached his vehicle. (Tr. Vol. I at
20.) Blevins then saw appellant remove an item or package from the trunk of his car before
going back inside. Blevins described the item as a white plastic bag. Blevins next observed
appellant return to his vehicle a short time later and drive off. Blevins requested a traffic
stop and gave Smith and McKee a description of appellant's Acura.
{¶ 10} Smith testified at the suppression hearing that after he caught up with
appellant's vehicle, he observed appellant commit several traffic violations, including
failure to signal when turning south from Roberts Road onto Hilliard-Rome Road. Smith
relayed this information to McKee. As McKee began to follow appellant's Acura in his
cruiser, he personally observed appellant fail to signal as he turned his vehicle eastbound
on Feder Road from Hilliard-Rome Road. McKee initiated a traffic stop at approximately
2:02 p.m. and began walking Blek around appellant's vehicle. Blek alerted to the presence
of narcotics in the trunk area of the Acura, but no drugs were found.
{¶ 11} Smith arrived at the scene while McKee was still walking Blek around
appellant's vehicle, and he engaged appellant in conversation. When the traffic stop was
nearly completed, Smith told appellant "we're pretty much done here unless you want to
tell me what's going on at your house." (Tr. Vol. 1 at 147.) When appellant told Smith he
was just returning from the store when McKee stopped him, Smith confronted appellant
with the information he had received from Blevins. Smith told appellant that based on the
information he had received from Blevins and Akins, he believed he could obtain a warrant
No. 18AP-39 4
to search appellant's home. Appellant then admitted that he had a firearm in the home,
and he indicated that he did not want his parents' home "torn up" during a search. (Tr. Vol.
1 at 117.)
{¶ 12} Appellant elected to consent to a search of the home, executed a consent to
search form at approximately 2:23 p.m., and gave Smith the key to the house. The form
was co-signed by Smith and Special Agent James Ratterman of the Department of
Homeland Security, another member of the HIDTA task force. Smith believed appellant
signed the consent form because he was under the impression his parents' home would be
torn up in the search if police were required to seek a warrant. Smith stated, however,
"there was no threat of tearing anything up." (Tr. Vol. 1 at 152.)
{¶ 13} Appellant then rode back to his home in another officer's vehicle, followed by
Smith, Ratterman, and McKee. When they arrived at appellant's home, Ratterman read
appellant his Miranda rights while he and appellant were sitting in Ratterman's vehicle
with Smith looking on from the opened passenger side window. Miranda v. Arizona, 384
U.S. 436 (1966). Appellant proceeded to execute a written waiver of his Miranda rights in
the presence of both officers. He then told Smith that a firearm and cocaine could be found
in the home. Appellant also told Smith that he purchased a kilogram of cocaine for $42,000
and that he had already sold half that kilogram for $21,000 or $22,000.
{¶ 14} Smith, Ratterman, and appellant waited outside as other officers searched
the home. An initial search of the home uncovered a .45 caliber handgun under the
mattress in appellant's bedroom, where appellant had told Smith it could be found. When
the officers searching the home indicated they could not find the cocaine, appellant
volunteered to show them where it was. Appellant then led officers to a planter in the
hallway outside his bedroom. A plastic baggie containing an off-white powdery substance,
later identified as one-half kilogram of cocaine, was found either under or inside the
planter.
{¶ 15} On December 5, 2014, a Franklin County Grand Jury indicted appellant for
possession of cocaine equal to or in excess of 100 grams, in violation of R.C. 2925.11, a
felony of the first degree, and having a weapon while under disability, in violation of R.C.
2923.13, a felony of the third degree. The cocaine possession charge was accompanied by
a one-year firearm specification under R.C. 2941.141(A) and a major drug offender
No. 18AP-39 5
specification, pursuant to R.C. 2941.1410(A), which enhanced the degree of the cocaine
possession charge to a first-degree felony.
{¶ 16} On February 12, 2015, appellant filed a motion to suppress both the physical
evidence discovered in the search of his home and any statements appellant made to police
as having been obtained in violation of appellant's constitutional rights under the Fourth
and Fifth Amendments to the U.S. Constitution. The trial court conducted an evidentiary
hearing on the motion on June 17, 2017, and on July 12, 2017, the trial court issued a
decision denying the motion.
{¶ 17} The case proceeded to trial and plaintiff-appellee, State of Ohio, presented
the testimony of Blevins, Smith, and McKee, as well as testimony of Hilliard Division of
Police Sergeant Joshua Cohill and Hilliard Division of Police Lieutenant Douglas Lightfoot,
who were members of the team that conducted the search of appellant's home.1 Appellant
took the stand and testified in his own defense. Appellant told the jury the cocaine and
firearm had been planted at his home by Akins. A jury subsequently found appellant guilty
of all charges, and the trial court sentenced appellant to an aggregate prison term of 15
years. Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
{¶ 18} Appellant assigns the following as trial court error:
[1.] The Trial Court Erred in Overruling Sieng's Motion to
Suppress.
[2.] The verdict was supported by insufficient evidence.
[3.] The verdict is against the manifest weight of the evidence.
III. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 19} In his first assignment of error, appellant contends the trial court erred when
it denied his motion to suppress the physical evidence seized in the search of his home and
the statements appellant made to police. We disagree.
1Appellee also presented the testimony of Michelle Anderson, a forensic scientist with the Ohio Bureau of
Criminal Identification.
No. 18AP-39 6
{¶ 20} "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, ¶ 8. "When considering
a motion to suppress, the trial court assumes the role of fact finder and, accordingly, is in
the best position to resolve factual questions and evaluate witness credibility." Columbus
v. Body, 10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 9, citing Burnside at ¶ 8, citing State v.
Mills, 62 Ohio St.3d 357, 366 (1992). "As such, an appellate court must accept the trial
court's factual findings if they are supported by competent, credible evidence." Body at ¶ 9,
citing Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). "However, after
accepting those facts as true, an appellate court 'must independently determine, whether
the facts satisfy the applicable legal standard, without giving any deference to the
conclusion of the trial court.' " State v. Drake, 10th Dist. No. 16AP-258, 2017-Ohio-755,
¶ 12, quoting State v. Holland, 10th Dist. No. 13AP-790, 2014-Ohio-1964, ¶ 8, citing
Burnside at ¶ 8.
{¶ 21} Appellant's first assignment of error is predicated, in large part, on his
contention that McKee did not have legal grounds to justify the initial traffic stop. We
disagree.
{¶ 22} " 'It is well-established that stopping an automobile, thus temporarily
detaining its occupants, constitutes a seizure under the Fourth Amendment to the United
States Constitution.' " State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 16,
quoting State v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 17, citing Delaware
v. Prouse, 440 U.S. 648, 653 (1979). "Further, 'the seizure of a person without the authority
of a warrant is per se unreasonable, and therefore unconstitutional, unless an exception
applies.' " Phillips at ¶ 16, quoting Dorsey at ¶ 17, citing Katz v. United States, 389 U.S.
347, 357 (1967). " 'One such exception is commonly known as an investigative or Terry
stop.' " Phillips at ¶ 16, quoting Dorsey at ¶ 17, citing Terry v. Ohio, 392 U.S. 1 (1968).
{¶ 23} " 'To legitimately effectuate a traffic stop [under Terry], an officer must have
a reasonable and articulable suspicion of criminal activity.' " State v. Bello-Mancilla, 10th
Dist. No. 16AP-787, 2017-Ohio-8003, ¶ 12, quoting State v. Johnson, 10th Dist. No. 16AP-
689, 2017-Ohio-5527, ¶ 18. "Reasonable suspicion entails some minimal level of objective
justification, 'that is, something more than an inchoate and unparticularized suspicion or
"hunch," but less than the level of suspicion required for probable cause.' " State v. Jones,
No. 18AP-39 7
188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio
App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27. State v. Mays, 119 Ohio St.3d 406,
2008-Ohio-4539, ¶ 7, quoting State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one
of the syllabus.
{¶ 24} This court has previously held that observation of a traffic violation by an
officer is sufficient to establish the reasonable and articulable suspicion required to stop a
vehicle. State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 10. See also State
v. Small, 10th Dist. No. 17AP-551, 2018-Ohio-3943, ¶ 20, quoting State v. Fasline, 7th Dist.
No. 12 MA 221, 2014-Ohio-1470, ¶ 19 ("A law enforcement officer has 'sufficient cause to
conduct a traffic stop if the officer witnesses a violation of a traffic law.' "). The Supreme
Court of Ohio has also determined that "[w]hen an officer observes a vehicle drifting back-
and-forth across an edge line, the officer has a reasonable and articulable suspicion that the
driver has violated R.C. 4511.33." Mays at ¶ 16. See also State v. Comer, 10th Dist. No.
13AP-955, 2014-Ohio-5755, ¶ 11. In Dayton v. Erickson, 76 Ohio St.3d 3 (1996), the
Supreme Court found that an officer who saw the defendant fail to signal a turn had not
merely reasonable, articulable suspicion but "clearly had probable cause to stop" the
vehicle. Id. at 11.
{¶ 25} Here, the testimony admitted at the suppression hearing shows that McKee
personally observed appellant fail to signal as he turned his vehicle eastbound on Feder
Road from Hilliard-Rome Road. McKee testified at the suppression hearing as follows:
Q. After you were finished with the traffic stop on Mr. Akins,
did you have occasion to stop another car that day with regard
to this same investigation?
A. Yes, ma'am.
Q. And how did that occur?
A. Detective Clint Smith was also on the task force was telling
us about where he observed violations on the subject. And
then I -- when I finally caught up to him at Fisher, Hilliard-
Rome and Feder Road, I observed him fail to signal.
***
Q. And I believe your testimony was that you did personally
see [appellant] commit a traffic violation?
A. I did.
Q. And do you recall what that was?
No. 18AP-39 8
A. Fail to signal when turned eastbound on Feder Road from
Hilliard-Rome.
Q. And where, in fact, was he stopped?
A. The Marathon Gas Station there on the corner.
Q. Of?
A. Hilliard-Rome and Feder.
Q. Thank you. And prior to you personally witnessing a
traffic violation, were you given information from Detective
Clint Smith that he also had, in fact, witnessed a traffic
violation?
A. Yes, I was. Several marked lanes and I believe fail to signal
also.
(Tr. Vol. 1 at 68, 71-72.)
{¶ 26} McKee testified the traffic stop of appellant's vehicle was based on his
personal observation of a traffic violation and the information he had previously received
from Smith. On cross-examination, McKee admitted he did not document his observation
of appellant's traffic violation in his K-9 use report. McKee also acknowledged that he did
not cite appellant for a traffic violation.
{¶ 27} McKee's testimony at the suppression hearing, if believed, clearly established
that a reasonable suspicion existed to stop appellant's vehicle for a traffic violation. While
McKee's admissions on cross-examination may have provided the trial court with a basis to
question McKee's credibility, the trial court's decision denying appellant's motion contains
a finding that "Deputy McKee observed defendant commit a traffic violation[] and stopped
his car." (July 12, 2017 Entry at 2.)
{¶ 28} As previously noted, "[w]hen considering a motion to suppress, the trial court
assumes the role of fact finder and, accordingly, is in the best position to resolve factual
questions and evaluate witness credibility." Body at ¶ 9, citing Burnside at ¶ 8, citing Mills
at 366. The trial court obviously believed McKee's testimony that he personally observed
appellant commit a traffic violation immediately prior to initiating the traffic stop. We
cannot say McKee's failure to document his observations on his K-9 use report rendered
his testimony unworthy of belief. Under Terry, and the above-cited Ohio case law
interpreting the Fourth Amendment, the observation of a traffic violation by McKee
No. 18AP-39 9
provided McKee with the reasonable suspicion required to make a traffic stop of appellant's
vehicle. Erickson; McCandlish.
{¶ 29} Appellant next contends any statements appellant made to Smith about the
firearm at his home should have been excluded from evidence as being obtained in violation
of appellant's Fifth Amendment rights because appellant had not been informed of his
Miranda rights prior to the interrogation. In Miranda, the United States Supreme Court
recognized certain procedural safeguards for securing the privilege against self-
incrimination guaranteed by the Fifth Amendment to the U.S. Constitution and Article I,
Section 10 of the Ohio Constitution. Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834,
¶ 8, citing Malloy v. Hogan, 378 U.S. 1, 3 (1964). "What are now commonly known as
Miranda warnings are intended to protect a suspect from the coercive pressure present
during a custodial interrogation." (Emphasis added.) Oles at ¶ 9, citing Miranda at 469.
"A custodial interrogation is '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.' " Oles at ¶ 9, quoting Miranda at 444. "If a suspect provides responses
while in custody without having first been informed of his or her Miranda rights, the
responses may not be admitted at trial as evidence of guilt." Oles at ¶ 9, citing Miranda at
479.
{¶ 30} Appellant's primary argument for excluding statements appellant made to
Smith is his claim that the initial traffic stop was not supported by a reasonable suspicion
that appellant had committed a traffic violation. However, as we have determined, the
evidence supports the trial court's conclusion that McKee lawfully stopped appellant's
vehicle for a traffic violation. In Berkemer v. McCarty, 468 U.S. 420 (1984), the United
States Supreme Court "recognized that although a traffic stop 'significantly curtails the
"freedom of action" of the driver and passengers, if any, of the detained vehicle,' the stop
alone does not render a suspect 'in custody' and therefore does not trigger the need for
Miranda warnings." Oles at ¶ 11, quoting Berkemer at 436, 440.
{¶ 31} The Supreme Court of Ohio in Oles determined that a traffic stop becomes a
custodial interrogation when, under the totality of the circumstances, a reasonable person
in defendant's position would have understood himself to be in custody. Id. at ¶ 13, citing
Berkemer at 442. In Oles, a trooper asked defendant to sit in the front seat of his patrol car
No. 18AP-39 10
during a lawful traffic stop, but the trooper did not perform a pat-down search or place
defendant in handcuffs. The officer's subsequent questioning and detention of defendant
in the patrol car was short in duration, and the interaction between defendant and the
trooper was nonthreatening and nonintimidating. The Supreme Court held that under
such circumstances, a reasonable person in defendant's position would not have
understood himself to be in custody. Id. at ¶ 31.
{¶ 32} Here, the trial court found appellant "was not in custody" at the time he made
certain statements to Smith regarding the presence of a firearm at his residence. (July 12,
2017 Entry at 4.) The evidence supports the trial court's finding. On cross-examination,
Smith described his encounter with appellant during the traffic stop as follows:
Q. Now, when you approached [appellant] at the scene of the
traffic stop, what was the nature of his custody status?
A. He was just standing outside the vehicle while Deputy
McKee ran his dog around the vehicle.
Q. And was he under detention?
A. I mean, he wasn't free to leave at that very moment.
Deputy McKee was still in the process of conducting his initial
traffic stop and I just engaged in a conversation.
Q. Well, even after Deputy McKee was done with his business
he was not free to leave, correct?
A. Well, he was advised he could leave. I said, we're pretty
much done here unless you want to tell me what's going on at
your house. And then --
Q. So he could have just declined and you would have let him
go?
A. I felt at this point I had enough to probably justify writing
a search warrant for the residence. I had him positively ID'd.
I could file a warrant on him at a later time. So if he wanted
to depart at that time I probably would have let him go.
(Tr. Vol. 1 at 147-48.)
{¶ 33} The totality of the circumstances in this case would not have led a reasonable
person in appellant's position to believe he was in custody at the time Smith engaged him
in conversation and ultimately obtained appellant's admission that he had a firearm at his
home. The evidence shows appellant was standing outside his vehicle when Smith
No. 18AP-39 11
approached him, and the lawful traffic stop was still underway at that time.2 Appellant was
not handcuffed or restrained in any way, nor was appellant placed in a police vehicle. Smith
asked appellant where he was coming from and then confronted appellant with the
information he had learned from Blevins. When the traffic stop was completed, Smith told
appellant "we're pretty much done here unless you want to tell me what's going on at your
house." (Tr. Vol. 1 at 147.) Smith also offered his opinion that he had gathered sufficient
facts to obtain a search warrant for the home. Appellant subsequently informed Smith that
he had a firearm at his home. Appellant orally consented to a search of his home and then
signed a consent form.
{¶ 34} The evidence submitted at the suppression hearing does not reveal any
intimidating or threatening behavior on Smith's part that would have given appellant the
impression that he was not free to leave once the traffic stop had been completed. To the
contrary, appellant was advised he could leave once the traffic stop had concluded. In our
view, the evidence submitted at the suppression hearing supports the trial court's
conclusion that appellant was not in custody either when he made statements to Smith
about the firearm or when he consented to the search of his parents' home. Thus, Miranda
warnings were not required at that time. Berkemer; Oles.
{¶ 35} Appellant also contends that his consent to a search was coerced by Smith's
alleged threat to tear up his parents' home if he was required to obtain a warrant. Though
Smith testified he told appellant he had sufficient information to obtain a warrant if
appellant did not consent to a search, he denied making any such threat.
{¶ 36} The question of whether consent to a search was voluntary or the product of
duress or coercion, express or implied, is a question of fact to be determined from the
totality of the circumstances. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 99,
citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). The standard for measuring
the scope of consent under the Fourth Amendment is objective reasonableness, i.e., what a
typical reasonable person would have understood by the exchange between the officer and
2 "In diligently pursuing the purpose of a traffic stop, police officers 'also may engage in other investigative
techniques unrelated to the underlying traffic infraction or the safety of the officers.' " Small, 2018-Ohio-
3943, at ¶ 21, quoting United States v. Hill, 852 F.3d 377, 382 (4th Cir.2017), citing Rodriguez v. United
States, __ U.S. __, 135 S.Ct. 1609, 1614-15 (2015). "The officer 'may also ask the driver and passengers about
matters unrelated to the traffic stop itself, so long as those questions do not measurably extend the duration
of the stop.' " Small at ¶ 21, quoting Rodriguez at 1615.
No. 18AP-39 12
the suspect. Roberts at ¶ 99, citing Florida v. Jimeno, 500 U.S. 248, 251 (1991). Where a
police officer "does not falsely claim possession of a search warrant, but rather candidly
informs a person why a search is needed, either with his consent or with a search warrant,
and the person clearly understood that he had a constitutional right to withhold consent, a
finding of voluntariness is appropriate." State v. Clelland, 83 Ohio App.3d 474 (4th
Dist.1992), citing State v. Danby, 11 Ohio App.3d 38 (6th Dist.1983).3
{¶ 37} In this instance, the information gathered by the HIDTA task force during the
surveillance of appellant's home, the canine alerting to the trunk of appellant's vehicle, and
the statements made by Akins regarding the presence of a firearm and cocaine in
appellant's home arguably provided Smith with sufficient facts to obtain a search warrant
based on probable cause. There is also no evidence that appellant was told he could not
refuse consent. Under the circumstances, Smith's statement to appellant he had sufficient
information to obtain a warrant cannot be considered coercive in nature. Clelland; Danby.
Additionally, appellant signed a form entitled "Consent to Search Without A Warrant,"
which provides in relevant part:
I, [appellant], have been informed of my constitutional right
not to have a search made of my premises * * * without a
search warrant. No promises, threats, duress, or coercion
have been made to me or against me. Having been informed
of my right to refuse to consent to such a search, and
understanding that evidence and/or contraband found as a
result of such may be seized and used against me in a court of
law.
(State's Ex. MH-1 at 1, filed Jan. 17, 2018.)
{¶ 38} The voluntariness of a consent is a question of fact that depends on the
totality of the circumstances. Roberts at ¶ 99; Schneckloth at 227. See also State v.
Childress, 4 Ohio St.3d 217 (1983), paragraph one of the syllabus. The government bears
the burden of proving consent to the search by clear and positive evidence. Danby at 41.
See also Florida v. Royer, 460 U.S. 491, 497 (1983). The trial court determined appellant
voluntarily consented to the search of his parents' home. An appellate court will not reverse
a trial court's determination that consent was voluntary unless that determination is clearly
3In State v. Lattimore, 10th Dist. No. 03AP-467, 2003-Ohio-6829, this court stated that coercion is not
demonstrated merely because a suspect is being temporarily detained for the traffic violation or formally
detained at the time of consent. Id. at ¶ 17, citing United States v. Watson, 423 U.S. 411, 424 (1976).
No. 18AP-39 13
erroneous. State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502, ¶ 36; State v.
Hassey, 9 Ohio App.3d 231, 237 (10th Dist.1983); Lattimore at ¶ 9. On this record, we
cannot say the trial court erred when it found appellant's consent was voluntarily given.
{¶ 39} For the foregoing reasons, appellant's first assignment of error is overruled.
B. Appellant's Second Assignment of Error
{¶ 40} In appellant's second assignment of error, appellant contends that his
convictions were not supported by sufficient evidence. We disagree.
{¶ 41} "Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict." State v. Kurtz, 10th Dist. No. 17AP-382, 2018-
Ohio-3942, ¶ 15, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the
evidence is legally sufficient to support a verdict is a question of law, not fact. Id. In
determining whether the evidence is legally sufficient to support a conviction, " '[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. Robinson, 124 Ohio St.3d 76, 2009-Ohio-
5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
"A verdict will not be disturbed unless, after viewing the evidence in a light most favorable
to the prosecution, it is apparent that reasonable minds could not reach the conclusion
reached by the trier of fact." State v. Patterson, 10th Dist. No. 15AP-1117, 2016-Ohio-7130,
¶ 32, citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
{¶ 42} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency
of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that
"in a sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each element of the crime").
"Further, 'the testimony of one witness, if believed by the jury, is enough to support a
conviction.' " Patterson at ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-874, 2011-
Ohio-1024, ¶ 42. See also State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
No. 18AP-39 14
{¶ 43} R.C. 2925.11(A) prohibits any person from knowingly obtaining, possessing,
or using a controlled substance. R.C. 2925.01(K) defines "[p]ossess" or "possession" as
"having control over a thing or substance, but may not be inferred solely from mere access
to the thing or substance through ownership or occupation of the premises upon which the
thing or substance is found."
{¶ 44} The offense of having a weapon while under disability is defined by R.C.
2923.13, in relevant part, as follows:
(A) Unless relieved from disability under operation of law or
legal process, no person shall knowingly acquire, have, carry,
or use any firearm or dangerous ordnance, if any of the
following apply:
***
(3) The person is under indictment for or has been convicted
of any felony offense involving the illegal possession * * * in
any drug of abuse.
{¶ 45} Appellant's sufficiency argument does not challenge appellee's evidence that
cocaine and an operable firearm were recovered in the search of his home. Nor does he
contend that the quantity of cocaine found in the search of his home was insufficient to
satisfy the major drug offender specification. Appellant also concedes he has a disqualifying
conviction for purposes of having a weapon while under disability.
{¶ 46} In making his argument that appellee presented insufficient evidence to
support his conviction of cocaine possession, beyond a reasonable doubt, appellant claims
that "[t]he only evidence connecting [appellant] to the cocaine is proximity." (Appellant's
Brief at 16.) Appellant contends that under Ohio law, the mere proximity of appellant to
the cocaine found in his home, standing alone, is insufficient to establish constructive
possession. Though we agree generally with appellant's proposition of law, appellant's
sufficiency argument completely overlooks the trial testimony from Smith and Cohill.
During his direct examination, Smith recalled the conversation he and Ratterman had with
appellant just after appellant executed a waiver of his Miranda rights and during the search
of appellant's home. Smith testified as follows:
Q. * * * Now, after reading the defendant his rights, did he
speak with you?
No. 18AP-39 15
A. Yeah. We had a fairly pleasant conversation. He discussed
the fact that he was concerned about his parents finding out
due to the fact he lived in their residence and that he had
bought a kilo of cocaine for $42,000.
Q. I'm sorry, how much?
A. $42,000.
Q. Okay.
A. He had sold half of it. He still owed about $21,000, if I'm
correct on that number. And then we referenced the gun. I
asked him about the gun and he said the gun is in his bedroom
underneath his mattress. And we talked about the fact that
he's a registered felon and cannot possess a firearm. And he,
again, reiterated the fact that he didn't want to be in any
trouble and he had gotten the gun from a young male white
that he knew as Mike for $500. And he believed it may be
stolen but wasn't sure.
Q. Did he talk about how much, that if he sold cocaine and
how much?
A. He did. He mentioned the fact that he sold it usually by
the ounce. He never sold smaller than that, and went about
$1,400 an ounce.
Q. Did you have any discussions that you remember, sir,
about his parents' bedroom and if he had anything in his
parents' bedroom?
A. Yes. He said that there might be some of the money, the
proceeds from the previous half key that had been sold, half
kilogram. So he said he had that -- I'm trying to remember
the number -- maybe 21, $22,000. He wasn't sure how much
of it was left, but some of it might be in their room and that
he'd given his parents some for vacation and some other
sundries.
(Tr. Vol. 2 at 62-64.)
{¶ 47} Smith also testified that when the officers searching appellant's home could
not immediately find the cocaine, appellant went into the home and guided officers to the
planter in the hallway outside his bedroom where officers found the plastic bag containing
cocaine. Cohill testified that when he also found bottles containing lidocaine during the
search of appellant's home and asked appellant what he used them for, appellant told him
that he "used [it] to cut cocaine." (Tr. Vol. 2 at 234.)
No. 18AP-39 16
{¶ 48} In Phillips, 2014-Ohio-5162, this court addressed the concept of constructive
possession for purposes of a conviction for cocaine possession as follows:
" 'Possession of a controlled substance may be actual or
constructive.' " State v. Saunders, 10th Dist. No. 13AP-668,
2014-Ohio-1746, ¶ 18, quoting State v. Pilgrim, 184 Ohio App.
3d 675, 2009-Ohio-5357, ¶ 27, 922 N.E.2d 248 (10th Dist.).
" 'A person has actual possession of an item when it is within
his immediate physical control.' " Id., quoting Pilgrim at ¶ 27.
" 'Constructive possession exists when a person knowingly
exercises dominion and control of an object, even though the
object may not be within the person's immediate physical
possession.' " Id., quoting Pilgrim at ¶ 27. " '[T]he surrounding
facts and circumstances, including the defendant's actions,
constitute evidence from which the trier of fact can infer
whether the defendant had constructive possession over the
subject drugs.' " Id., quoting Pilgrim at ¶ 28, citing State v.
Stanley, 10th Dist. No. 06AP-323, 2007-Ohio-2786, ¶ 31.
Inherent in a finding of constructive possession is the
determination that a defendant had knowledge of the items
purportedly possessed. State v. Alexander, 8th Dist. No.
90509, 2009-Ohio-597, ¶ 24.
Id. at ¶ 116.
{¶ 49} There is no doubt the testimony of Smith and Cohill, if believed, is sufficient
to support appellant's conviction of cocaine possession beyond a reasonable doubt.
Appellant's statements to these officers, if believed, establishes appellant's constructive
possession of the cocaine found in the hallway just outside his bedroom. See State v.
Walker, 10th Dist. No. 14AP-905, 2016-Ohio-3185 (sufficient evidence supported
defendant's conviction for possession of cocaine with a firearm specification, under R.C.
2925.11(A) and 2941.141(A), based on constructive possession because the evidence showed
defendant resided at the apartment and had knowledge of, as well as dominion and control
over, the drugs and weapon located in the dresser drawer of the northeast bedroom).
Though appellant denied making the statements attributed to him by Smith and Cohill and
testified at trial that the cocaine found in the search of his home was planted by Akins, in
ruling on a challenge to the sufficiency of the evidence, this court is required to construe
the evidence in appellee's favor. Accordingly, we hold that the conviction for cocaine
possession was supported by sufficient evidence.
No. 18AP-39 17
{¶ 50} With regard to the conviction of having a weapon while under disability
("WUD"), appellee's evidence established that appellant told Smith he had a firearm
underneath the mattress in his bedroom and that he had purchased the handgun for $500
from a friend by the name of Mike. Appellant also acknowledged that as a felon, he was
prohibited from possessing a firearm. Police subsequently found the handgun in the
location appellant had indicated. Such evidence is clearly sufficient to satisfy the elements
of R.C. 2923.13.
{¶ 51} Appellant contends, however, that his testimony at trial that Akins planted
the weapon in his bedroom was more believable than appellee's evidence. However, such
an argument challenges the weight and credibility of the evidence, not the sufficiency of the
evidence. This court has held that when appellant's sufficiency of the evidence argument
raises an issue of witness credibility, we will address the argument in or analysis of the
manifest weight of the evidence. Bankston, 2009-Ohio-754, at ¶ 4; State v. Harris, 10th
Dist. No. 17AP-350, 2018-Ohio-3872, ¶ 27; State v. Connally, 10th Dist. No. 16AP-53, 2016-
Ohio-7573, ¶ 37-38. Accordingly, we shall address appellant's argument in connection with
our ruling in appellant's third assignment of error.
{¶ 52} Similarly, appellant's claim that the WUD conviction is not supported by
sufficient evidence because appellee failed to produce fingerprint or DNA evidence
connecting appellant to the gun also resolves to an issue of credibility. The evidence shows
appellee chose not to test the firearm recovered from under appellant's mattress to
determine the presence of appellant's fingerprints or DNA. When Lightfoot was asked to
explain why fingerprint or DNA analysis was not requested for the bag of cocaine and the
firearm, the following exchange took place:
Q. Okay. The only way to find out whether your suspect's
DNA or fingerprint is on an item is by ordering the testing,
right?
A. That would be correct.
Q. And you stated that this was unnecessary because
[appellant] admitted ownership, right?
A. In my opinion, yes, sir.
Q. And these alleged admissions were not recorded in any
manner, correct?
A. Not that I'm aware of. I did not record them.
No. 18AP-39 18
Q. Would you agree it would be good practice, even with an
admission, to request this type of testing in order to
corroborate the admission?
A. He knew where it was. He admitted ownership.
Q. Please answer my question.
A. The answer is no. He admitted -- and the reason why is
because he admitted it was his and he knew where it was.
Q. So no need to bother with other testing?
A. I don't see a reason to, sir.
(Tr. Vol. 2 at 201-02.)
{¶ 53} In our view, the testimony of Smith and Cohill, if believed, was clearly
sufficient to establish appellant's constructive possession of the firearm, even in the absence
of corroborating fingerprint or DNA evidence. Walker. The fact that appellee elected not
to order such testing does not alter the fact that appellant admitted to the officers that he
owned the firearm found under his mattress. Whether appellant's testimony or that of the
officers was more believable is a matter of witness credibility, which is not the subject of
this court's sufficiency analysis. Bankston; Connally.
{¶ 54} Finally, with regard to the firearm specification, R.C. 2941.141(A) requires
imposition of a one-year mandatory prison term on an offender when the offender "had a
firearm on or about the offender's person or under the offender's control while committing
the offense." "Generally, '[o]n or about his person or under his control,' or actual possession
'means that "the firearm was either carried on the defendant's person or was so near the
defendant's person as to be conveniently accessible and within his immediate physical
reach." ' " State v. Carson, 8th Dist. No. 104998, 2017-Ohio-7243, ¶ 15, quoting State v.
Smith, 8th Dist. No. 93593, 2010-Ohio-4006, ¶ 11, quoting 2 Ohio Jury Instructions, CR
Section 4 at 127 (2008). "Thus, 'all that is necessary is that the defendant have the firearm
on or about his person or under his control "at some point" during the crime's
commission.' " (Emphasis sic.) Walker at ¶ 64, quoting State v. Harry, 12th Dist. No.
CA2008-01-013, 2008-Ohio-6380, ¶ 53.
{¶ 55} Smith testified that appellant admitted ownership of the cocaine and the
firearm and police found the cocaine hidden under a planter in the hallway outside
appellant's bedroom where police had found the firearm. Blevins testified appellant was in
No. 18AP-39 19
the home alone just prior to the time appellant left to pick up Akins. Thus, appellee
produced sufficient evidence to support appellant's conviction of the firearm specification.
See State v. Brown, 107 Ohio App.3d 194 (3d Dist.1995) (weapon found in bedroom, while
defendant was in living room, was under defendant's control); Walker at ¶ 74 (evidence
sufficient to establish defendant's guilt of a firearm specification where the gun and drugs
were found in the same bedroom dresser drawer in the apartment leased by defendant).
{¶ 56} For the foregoing reasons, appellant’s second assignment of error is
overruled.
C. Appellant's Third Assignment of Error
{¶ 57} In appellant's third assignment of error, appellant contends that his
convictions were against the manifest weight of the evidence. We disagree.
{¶ 58} "In considering a defendant's claim that a jury verdict is against the manifest
weight of the evidence, '[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines 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. Williams, 10th Dist. No. 10AP-779, 2011-Ohio-4760, ¶ 20, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). "Further, '[t]he discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.' " Williams at ¶ 20, quoting Martin at 175.
{¶ 59} "Unlike the standard of review for sufficiency of the evidence, 'a reviewing
court does not construe the evidence most strongly in favor of the prosecution when using
a manifest-weight standard of review.' " Williams at ¶ 21, quoting State v. Woullard, 158
Ohio App.3d 31, 2004-Ohio-3395, ¶ 81 (2d Dist.). A manifest weight of the evidence
challenge " 'questions the believability of the evidence and asks a reviewing court to
determine which of the competing inferences is more believable.' [Woullard at ¶ 81.]
However, an appellate court 'may not substitute its judgment for that of the trier of fact on
the issue of the credibility of the witnesses unless it is patently apparent that the factfinder
lost its way.' " Williams at ¶ 21, quoting Woullard at ¶ 81.
{¶ 60} Having determined that the evidence presented by appellee, if believed, was
sufficient to convict appellant of cocaine possession beyond a reasonable doubt, the
No. 18AP-39 20
manifest weight analysis requires this court to 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. Appellant's manifest weight
argument is that his own testimony at trial was more believable than the evidence presented
by appellee.
{¶ 61} At trial, appellant testified about the events that led to his arrest. According
to appellant, he called 911 on three occasions on the morning of July 10, 2014 because his
girlfriend, Jasmine Rodgers, continued to let unidentified individuals into the residence,
including a black male with a gym bag who ran in appellant's front door and out the back
door. Appellant also recalled hearing someone using his kitchen sink while he and Rodgers
were at the back door. Appellant denied that he or Rodgers was under the influence of
drugs.
{¶ 62} Appellant testified that after Rodgers was taken away by paramedics, his
friend Akins stopped by and asked appellant to step outside with him while he smoked a
"Black & Mild." (Tr. Vol. 4 at 572.) Akins proceeded to ask appellant about the earlier police
visits. According to appellant, while he and Akins were conversing, appellant observed a
vehicle drive slowly by Akins' vehicle while the passenger appeared to jot down the license
plate number. When appellant asked Akins about this, Akins said it was nothing to worry
about.
{¶ 63} Akins then followed appellant as he walked through the house to the back
yard to tend to his dog. According to appellant, Akins then asked to use the restroom and
insisted on using the upstairs bathroom instead of the downstairs bathroom. Akins then
left appellant's home and drove away.
{¶ 64} Appellant testified that when he next went upstairs, he noticed a white plastic
bag in the flower pot outside his bedroom and a "metal thing" sticking out from under the
sheets of his bed. (Tr. Vol. 4 at 575.) Appellant testified that "[i]t looked like the back of a
handgun." (Tr. Vol. 4 at 575.) According to appellant, Akins then called him on the
telephone and asked for a ride because he had been pulled over by police.
{¶ 65} On his way to pick up Akins, appellant was pulled over by McKee. Appellant
recalled that Smith arrived during the traffic stop and told appellant that Blevins had just
No. 18AP-39 21
seen him put something in the trunk of the Acura. Appellant denied putting anything in
the trunk of the Acura and made the following statement to Smith:
I was like -- come here, sir. * * * I'm like, where's Akins at,
man. He just called me and said he's pulled over by the police.
I know you guys know where he's at. Where he at? And he
was like, what's going on? Because he just put something in
my house, man. Where's he at? Where is he at? He's like calm
down, calm down. He put what in your house? I seen
something white in the flower plant and I seen a gun that's
sticking outside my bed.
(Tr. Vol. 4 at 577-78.)
{¶ 66} According to appellant, he requested that Smith immediately return to the
house with him, but Smith informed him he first needed appellant to sign a consent form.
Appellant testified that he signed the form and that he was transported by another officer
back to his home where the search took place. Appellant stated he remained outside while
the search took place, and he denied telling Smith that he had purchased the drugs or
speaking with any Hilliard police officer. According to appellant, when Smith showed him
the plastic bag of cocaine found in the house, he told Smith it was planted by Akins.
Appellant testified that Akins was motivated to set him up because Akins was on probation
after being caught with 600 pounds of marijuana.
{¶ 67} Appellant argues that his own trial testimony was more believable than that
of appellee's witness and that his testimony presented the jury with a "plaus[i]ble" theory
of innocence. (Appellant's Brief at 21.) Accordingly, appellant maintains his convictions
are against the manifest weight of the evidence.
{¶ 68} "In conducting a manifest weight of the evidence review [an appellate court]
may consider the credibility of the witnesses." Kurtz, 2018-Ohio-3942, at ¶ 18, citing State
v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6. "Though appellate courts must
sit as a 'thirteenth juror' when considering a manifest weight argument, it must also give
great deference to the trier of fact's determination on the credibility of the witnesses." Kurtz
at ¶ 31, citing State v. Favor, 10th Dist. No. 08AP-215, 2008-Ohio-5371, ¶ 10, citing State
v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037. The trier of fact is in the best
position to take into account the inconsistencies in the evidence, as well as the demeanor
No. 18AP-39 22
and manner of the witnesses, and to determine which witnesses are more credible. State
v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58.
{¶ 69} "The trier of fact is free to believe or disbelieve any or all of the testimony
presented." Kurtz at ¶ 31, citing State v. Jackson, 10th Dist. No. 06AP-1267, 2008-Ohio-
1277, ¶ 11. Accordingly, "[a] defendant is not entitled to a reversal on manifest weight
grounds merely because inconsistent evidence was offered at trial." Favor at ¶ 10, citing
State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831. "Neither is a conviction
against the manifest weight of the evidence because the trier of fact believed the state's
version of events over the defendant's version." State v. Rankin, 10th Dist. No. 10AP-1118,
2011-Ohio-5131, ¶ 29, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19;
State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 17. "Mere disagreement
over the credibility of witnesses is not a sufficient reason to reverse a judgment on manifest
weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 25, appeal
not allowed, 140 Ohio St.3d 1455, 2014-Ohio-4414, citing State v. G.G., 10th Dist. No.
12AP-188, 2012-Ohio-5902, ¶ 7.
{¶ 70} Though we agree that appellant's testimony presented the jury with a
conceivable theory of innocence, the jury was not required to believe appellant's testimony.
The jury was free to consider the conflicting evidence and make threshold determinations
as to weight and credibility. Our independent review of the evidence in this case, including
the testimony of appellant and his witnesses, convinces us that the jury did not lose its way
and create a manifest injustice in finding appellant guilty of all the charges in the
indictment. Accordingly, we hold appellant's convictions were supported by sufficient
evidence and not against the manifest weight of the evidence. Appellant's third assignment
of error is overruled.
IV. CONCLUSION
{¶ 71} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.
_____________