State v. Martre , 2022 Ohio 639 ( 2022 )

[Cite as State v. Martre, 2022-Ohio-639.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1199
Appellee Trial Court No. CR2017-1937
v.
Derrick Martre, Sr. DECISION AND JUDGMENT
Appellant Decided: March 4, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Derrick Martre, Sr., pro se.
*****
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court upon the pro se appeal of the Lucas County
Court of Common Pleas judgment, denying the request for return of property of
appellant, Derrick Martre. Finding no error, we affirm.
II. Background and Procedural History
{¶ 2} This matter originated with indictment on June 2, 2017. Appellant was
charged with one count of domestic violence in violation of R.C. 2919.25(A) and (D)(3),
a felony of the fourth degree. In prosecuting that charge, the state obtained video and
images from appellant’s cell phone, pursuant to a search warrant. The video and images
depicted criminal acts arising in Lima, Ohio, and this evidence was forwarded to that
jurisdiction for additional proceedings.
{¶ 3} On August 17, 2017, appellant filed a motion in limine to preclude the state
from introducing “images from his telephone as evidence,” arguing the videos
“supposedly taken in Lima, Ohio” were unrelated to the incident alleged in the domestic
violence case.
{¶ 4} The next day, appellant entered a plea of guilty to the lesser offense of
attempted domestic violence in violation of R.C. 2923.02 and 2929.25(A) and (D)(3), a
felony of the fifth degree, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
160, 27 L.Ed.2d 162 (1970). The trial court sentenced him to a one-year term of
community control, with 6 months to be served at CCNO, and credit for 86 days. On
November 28, 2017, the trial court ordered appellant’s community control terminated
unsuccessfully. While not part of the record of this appeal, the parties appear to agree
that the Allen County Court of Common Pleas sentenced appellant to a 12-year aggregate
term arising from charges based on the video and/or images taken from the cell phone.
2.
{¶ 5} Over a year later, on December 14, 2018, appellant filed a pro se motion for
discovery. Within the motion, appellant acknowledged the use of the evidence obtained
from his cell phone in the Allen County criminal proceedings, and he sought discovery as
part of his appeal of the Allen County conviction. On March 21, 2019, the trial court
denied the motion for discovery.
{¶ 6} On March 26, 2019, appellant filed a motion to subpoena the search warrant
used to access video and/or images from his cell phone, seeking a copy of the warrant.
On March 29, 2019, the trial court denied the motion.
{¶ 7} On April 12, 2019, appellant filed a motion for release of property, noting he
had secured a copy of the warrant from the Toledo Municipal Court. Within his latest
motion, appellant sought a return of his cell phone and requested “a document be sent to
Allen County Common Pleas Court under Case# 20170387 stating the data downloaded
from my phone was illegally obtained.” On May 21, 2019, the trial court denied the
motion.
{¶ 8} On May 2, 2019, appellant filed a motion to withdraw his guilty plea
pursuant to Crim.R. 32.1. In support, he argued his Fourth Amendment rights were
violated by the seizure and subsequent search of his cell phone, and that the data obtained
was therefore inadmissible in the Allen County proceeding. On July 17, 2019, the state
filed opposition to the motion, noting the search warrant obtained in the present case as
well as the separate determination in the Allen County proceedings that the cell phone
3.
warrant was proper, relative to a ruling on a motion to withdraw the plea in that case. On
August 9, 2019, the trial court denied the motion. Appellant appealed the denial of his
May 2, 2019 motion to withdraw guilty plea on August 26, 2019 in Lucas No. L-19-
1185.
{¶ 9} On September 20, 2019, appellant filed a motion to correct or modify the
record pursuant to App.R. 9(E) with the trial court, seeking again to address the validity
of the search warrant as applicable in the underlying case. Specifically, appellant asked
the trial court to make the search warrant document part of the record for his appeal in
Lucas No. L-19-1185,1 and to “provide a finding and fact and conclusion of law so that
the obvious errors and constitutional violations may be addressed with the SUPREME
COURT.” On September 24, 2019, the trial court denied the motion.
{¶ 10} Appellant filed a notice of appeal of the trial court’s denial of his
September 20, 2019 motion on October 15, 2019, in Lucas No. L-19-1236. As both
appeals challenged the validity of the search warrant in the underlying case, the two
pending appeals were consolidated. On May 22, 2020, we affirmed the trial court’s
determination, noting:
1
Appellant sought similar action in the Allen County proceeding by filing a mandamus
action with the Third District Court of Appeals against the Allen County Common Pleas
trial court judge. The Ohio Supreme Court affirmed the Third District Court of Appeal’s
dismissal of appellant’s petition for mandamus relief, seeking to compel the Allen
County trial court to add a certified copy of the search warrant to the record in the Allen
County proceeding. See State ex rel. Martre v. Reed, Judge, 161 Ohio St.3d. 281, 2020-
Ohio-4777, 162 N.E.3d 773.
4.
The warrant for appellant’s cell phone was properly issued and his
phone was constitutionally searched. The warrant appears to be based upon
probable cause, was issued by a neutral magistrate, and was issued prior to
the search being conducted.
State v. Martre, 6th Dist. Lucas No. L-19-1236, 2020-Ohio-3067, ¶ 13.
{¶ 11} On October 29, 2019, appellant filed a motion in the trial court seeking a
certified copy of complaint and indictment at the state’s expense. The trial court denied
the motion on November 18, 2019. On April 29, 2020, appellant filed another motion in
the trial court, this time seeking a certified copy of the search warrant. On May 14, 2020,
the trial court denied the motion.
{¶ 12} On June 9, 2020, appellant appealed the trial court’s denial of his motion
for a certified copy of the search warrant in Lucas No. L-20-1096. The appeal was
dismissed on December 2, 2020, after appellant failed to file a brief.
{¶ 13} On March 30, 2021, appellant filed a motion seeking a return of property
(his cell phone and memory card), as provided by R.C. 2933.241.2 The trial court
scheduled the motion for hearing, and after hearing, denied the motion and ordered the
Toledo Police to destroy the phone. In its entry of May 18, 2021, the trial court
referenced a bench opinion, dictated but not prescribed. Appellant filed an appeal of this
2
R.C. 2933.241 governs procedure in taking property pursuant to a search warrant and
requires “[t]he officer taking property under a warrant” to provide a copy of the warrant
and a written inventory of property taken.
5.
decision on June 7, 2021, in Lucas No. L-21-1112, but on July 20, 2021, filed a motion to
dismiss the appeal. On August 4, 2021, we ordered the appeal dismissed.
{¶ 14} On August 2, 2021, appellant filed a subsequent motion to return property,
and the state of Ohio opposed the motion.3 In its opposition, the state noted that video
and/or images retrieved from the phone were used in securing a conviction on two counts
of gross sexual imposition and two counts of illegal use of a minor in nudity-oriented
material in Allen County. The state acknowledged that the Toledo Police retain the
phone and memory card in the Toledo Police Department property room. “However,
because video recordings on that phone depicted sexual contact with children,” the state
argued that phone could not be returned “in its present state” without violating R.C.
2907.321 and 2907.322, Ohio’s pandering statutes. The state further argued that even if
it were possible to delete the video, the possibility the data might be restored or retrieved
through back-up systems rendered the phone contraband as containing pornography, and
therefore, not subject to return under the law.
{¶ 15} On September 21, 2021, the trial court held a hearing on the motion for
return of property and took the matter under advisement.4 Appellant filed a request for
findings of fact and conclusions of law as to the motion for return of property on October
3
On the same date, appellant filed a petition for postconviction relief, which the state
also opposed. The trial court denied the petition, and appellant did not appeal that
judgment.
4
This hearing was combined with the hearing on appellant’s petition for postconviction
relief, based on the scheduling order of the trial court.
6.
8, 2021. The trial court denied the request for findings of fact and conclusions of law on
October 13, 2021.
{¶ 16} On October 13, 2021, the trial court ruled on the pending motion. The trial
court denied appellant’s request for return of property, finding R.C. 2981.13 barred the
return of contraband to appellant. Specifically, the trial court noted the phone contained
images that led to his no contest plea in the sex offense case in Allen County, resulting in
a 12-year prison sentence.
{¶ 17} On October 22, 2021, appellant renewed his request for findings of fact and
conclusions of law regarding his request for return of property, arguing the trial court
failed to address such findings or conclusions within its October 13, 2021 judgment
entry.
{¶ 18} On October 26, 2021, appellant filed a notice of appeal of the denial of his
request for return of property. In the docketing statement, appellant identified potential
issues as failure to give effect to “the statute” and failure to determine whether the search
of the phone was illegal, requiring suppression of the evidence.
{¶ 19} On October 27, 2021, the trial court denied appellant’s second motion for
findings of fact and conclusions of law. Appellant filed a notice of appeal from the
second entry on November 23, 2021 in Lucas No. L-21-1232. That separate appeal
remains pending, and has not been consolidated with the present appeal.
7.
III. Assignment of Error
{¶ 20} In challenging the denial of his request for return of property, appellant
combines three issues within a single assignment of error, as follows:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S R.C.
2981.03(A)(4) MOTION FOR RETURN OF PROPERTY
ISSUE ONE:
WHETHER THE TRIAL COURT WAS REQUIRED TO TREAT
THE R.C. 2981.03(A)(4) MOTION AS A POST SENTENCE MOTION
TO SUPPRESS
ISSUE TWO:
WHETHER THE TRIAL COURT WAS REQUIRED TO MAKE
AN INDEPENDENT DETERMINATION OF THE WARRANT’S
LEGALITY UNDER R.C. 2981.03(A)(4)
ISSUE THREE:
WHETHER THE TRIAL COURT COULD HAVE RETURNED
THE PROPERTY AND ORDERED THE CONTRABAND TO BE
DESTROYED
IV. Analysis
{¶ 21} Appellant argues that the trial court erred in denying a return of his
property, as unlawfully seized pursuant to R.C. 2981.03(A)(4). As part of his argument,
8.
appellant raises settled issues concerning the validity of the seizure of his cell phone and
the subsequent search of that property. We previously determined the warrant was valid
and the search constitutionally sound. See Martre, 6th Dist. Lucas No. L-19-1236, 2020-
Ohio-3067 at ¶ 13. Therefore, the trial court could not address the issue but was “bound
to adhere to the appellate court’s determination of the applicable law.” (Citation omitted)
Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
{¶ 22} In the present appeal, we need not revisit the propriety of the warrant and
search. “[T]he decision of an appellate court in a prior appeal will ordinarily be followed
in a later appeal in the same case and court.” (Citations omitted) Nolan at 4; see also
Sullinger v. Sullinger, 6th Dist. Lucas No. L-19-1261, 2020-Ohio-3549, ¶ 19 (“The law
of the case doctrine provides that a “decision of a reviewing court in a case remains the
law of that case on the legal questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels.”) (additional citations omitted.). Therefore, we
address only the third issue raised by appellant concerning the trial court’s decision to
deny the motion for return of property. Appellant challenges this decision, based on
argument that the trial court could have ordered a return of the cell phone and memory
card in conjunction with an order to destroy the identified contraband stored on that cell
phone.
{¶ 23} As an initial matter, we note there is no forfeiture proceeding evident in the
record of this case. However, we have previously held that a request for the return of
9.
property may be pursued three ways: as a civil replevin action, through a motion within
an existing forfeiture proceeding, or through a post-dismissal or postconviction motion
pursuant to R.C. 2981.03(A)(4) or 2981.11(A)(1). State v. Holloway, 6th Dist. Wood No.
WD-20-021, 2021-Ohio-1843, ¶ 11-24.
{¶ 24} Appellant sought return of his property, after his conviction in the Allen
County Common Pleas Court, by filing a motion in the Lucas County case pursuant to
R.C. 2981.03(A)(4). “[C]ourts routinely address postconviction motions for the return of
seized property, including in criminal cases after the charges have been dismissed.”
Flores v. Kelsey, 6th Dist. Wood No. WD-18-065, 2018-Ohio-3886, ¶ 4, citing State v.
Harris, 10th Dist. Franklin No. 99AP-684, 2000 WL 249161, *2-3 (Mar. 7, 2000). A
property owner may seek the return of unlawfully seized property under R.C.
2981.03(A)(4), or the return of lawfully seized property under R.C. 2981.11(A)(1).
{¶ 25} Pursuant to R.C. 2981.03(A)(4):
A person aggrieved by an alleged unlawful seizure of property may
seek relief from the seizure by filing a motion in the appropriate court that
shows the person's interest in the property, states why the seizure was
unlawful, and requests the property's return. If the motion is filed before an
indictment, information, or a complaint seeking forfeiture of the property is
filed, the court shall schedule a hearing on the motion not later than twenty-
one days after it is filed. * * * At the hearing, * * * [i]f the property
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seized is not titled or registered under law, the person shall demonstrate by
a preponderance of the evidence that the seizure was unlawful and that the
person is entitled to the property. * * *.
As required by the statute, the trial court held a hearing on the motion. At the hearing,
appellant was required to prove, by a preponderance of the evidence, both an unlawful
seizure and his entitlement to the property. State v. Moreno, 2017-Ohio-479, 85 N.E.3d
238, ¶ 24 (2d Dist.). Considering the preponderance of the evidence standard, we will
not reverse the trial court’s decision where the record contains competent, credible
evidence to support that decision. Cleveland v. Tarulli, 8th Dist. Cuyahoga No. 110188,
2021-Ohio-3462, ¶ 12, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,
376 N.E.2d 578 (1978), syllabus.
{¶ 26} In this case, we already determined that appellant’s property was lawfully
seized, rejecting appellant’s argument regarding the legality of the search warrant used to
seize and search appellant’s cell phone. Martre, 6th Dist. Lucas No. L-19-1236, 2020-
Ohio-3067, at ¶ 13. Therefore, the trial court correctly denied the motion under R.C.
2981.03(A)(4). Additionally, even if appellant had pursued a return of lawfully seized
property under R.C. 2981.11(A)(1), the trial court determined the cell phone and memory
card constituted contraband. Video and images contained on the cell phone were
evidence in a separate case in another jurisdiction, leading to convictions for gross sexual
imposition and illegal use of a minor in nudity-oriented material.
11.
{¶ 27} R.C. 2981.11(A)(1) provides:
Any property that has been lost, abandoned, stolen, seized pursuant
to a search warrant, or otherwise lawfully seized or forfeited and that is in
the custody of a law enforcement agency shall be kept safely by the agency,
pending the time it no longer is needed as evidence or for another lawful
purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13
of the Revised Code.
R.C. 2981.13(A) requires contraband to be disposed of as provided by R.C. 2981.12,
which in turn mandates “[o]bscene materials shall be destroyed.” R.C. 2981.12(A)(3);
see also Crim.R. 26 (“Physical property, other than contraband, as defined by statute,
under the control of a Prosecuting Attorney for use as evidence in a hearing or trial
should be returned to the owner at the earliest possible time.”) (emphasis added.).
{¶ 28} Appellant argues the trial court erred in finding the cell phone and memory
card were contraband. The trial court rejected appellant’s argument that the files could
be deleted prior to returning the cell phone, and instead found deletion of video and
images stored on the device and memory card could potentially be reversed, and the files
recovered. Other courts have reached a similar conclusion in considering electronic
storage and the possibility of file recovery. See, e.g., State v. Van Tielen, 12th Dist.
Brown No. CA2018-02-002, 2018-Ohio-3421, ¶ 14, citing State ex rel. Toledo Blade Co.
v. Seneca Cty. Bd. of Commissioners, 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d
12.
961, ¶ 24-25 (where computer contained images depicting child pornography, computer
and hard drives must be destroyed to prevent file recovery).
{¶ 29} The entirety of appellant’s argument disputes the facts that were ostensibly
presented at the hearing before the trial court. Because appellant failed to include a
transcript of that hearing as part of the record on appeal, we have no way to know
whether there was a lack of competent, credible evidence to support the trial court’s
determination regarding the cell phone and memory card as contraband. “When portions
of the transcript necessary for resolution of assigned errors are omitted from the record,
the reviewing court has nothing to pass upon and thus, as to those assigned errors, the
court has no choice but to presume the validity of the lower court's proceedings, and
affirm.” Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d 287, 2005-Ohio-6509, 893
N.E.2d 14, ¶ 37, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384 (1980).
{¶ 30} Considering the record on appeal, including the prior determination of a
lawful search warrant, we find no unlawful seizure of appellant’s property and no error
by the trial court in determining that property was subject to disposal as contraband.
Appellant’s assigned error, therefore, is not well-taken.
13.
V. Conclusion
{¶ 31} Upon due consideration, we find substantial justice was done to the party
complaining and we affirm the judgment of the Lucas County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
14.