State v. Goldsmith , 2015 Ohio 261 ( 2015 )

[Cite as State v. Goldsmith, 2015-Ohio-261.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 13CA116
DARNELL L. GOLDSMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2013 CR0451D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 15, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. RANDALL E. FRY
Prosecuting Attorney 10 West Newlon Place
Richland County, Ohio Mansfield, Ohio 44902
By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA116 2
Hoffman, P.J.
{¶1} Defendant-appellant Darnell L. Goldsmith appeals his conviction entered
by the Richland County Court of Common Pleas on two counts of burglary and one
count of possession of criminal tools. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} About 1:00 a.m., on the morning of July 8, 2013, the victim herein, K.S.,
was sleeping on a couch in her living room at 76 Penn Avenue where she lives with her
husband. K.S. was startled awake by a man standing across the room from her. He took
a couple steps toward her stating, "Don't say anything and I won't hurt you." When he
saw bottles of medications near the love seat across from her, he told K.S. he was
taking her medications. K.S. screamed for her husband and ran upstairs. The burglar
then ran out the back door. K.S. called 911 to report the home invasion, and police
responded in minutes. K.S. described the burglar as wearing a black sweat jacket,
pants and a black stocking cap.
{¶3} Shortly thereafter, Officer Rietschlin of the Mansfield Police Department
observed Appellant walking across Park Avenue West, 4 or 5 blocks from K.S.’s house
on Penn Avenue. Appellant was wearing dark long sleeved clothing generally matching
the description of the burglar. The clothing was noted as being out of season for the
weather. Officer Rietschlin exited his vehicle, and Appellant then proceeded in
approaching Officer Rietschlin. The officer asked Appellant if he would consent to a pat
down search, and Appellant agreed to the search. Officer Rietschlin found a black
stocking cap, a pair of gloves, a small flashlight and a screwdriver in Appellant’s jacket
pockets. Appellant told the officer he had just found these four items. Another officer
Richland County, Case No. 13CA116 3
brought K.S. to the scene, a spotlight was turned on Appellant’s face and K.S. identified
Appellant as the person who was in her house during the home invasion.
{¶4} Appellant later filed a notice of alibi stating he was walking home from his
mother's house to his baby's mother’s house on King Street when Officer Rietschlin
stopped him. Subsequently, while being held in the jail pending trial, he engaged in a
recorded phone call with Pastor Mackey, in which he admitted to being at K.S.’s house
on the evening in question.
{¶5} On August 12, 2013, Appellant was indicted by the Richland County
Grand Jury on two counts of burglary, both felonies of the second degree, in violation of
R.C. 2911.12(A)(1) and (A)(2); and one count of possession of criminal tools in violation
of R.C. 2923.24(A), a felony of the fifth degree.
{¶6} On October 8, 2013, Appellant filed a motion to suppress evidence. A
hearing on the motion was held on October 22, 2013. Appellant argued the items
discovered on his person in the initial pat down should be suppressed because the pat
down was improper. The trial court denied the motion to suppress.
{¶7} Appellant waived his right to a jury trial, and the matter proceeded to a
bench trial on December 5, 2013. The trial court found Appellant guilty on all counts.
The trial court imposed a total prison term of seven years incarceration after the two
burglary counts were merged as allied offenses.
{¶8} Appellant appeals, assigning as error:
{¶9} "THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL
ASKED QUESTIONS CONCERNING TESTIMONY GIVEN BY WITNESSES AT A
Richland County, Case No. 13CA116 4
PRELIMINARY HEARING WITHOUT HAVING A TRANSCRIPT OF THE
PRELIMINARY HEARING
{¶10} "THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL DID
NOT FILE A MOTION TO SUPPRESS THE OUT OF COURT IDENTIFICATION OF
THE APPELLANT
{¶11} "THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S
MOTION TO SUPPRESS BASED THAT [SIC] ON THE INITIAL POLICE STOP OF
THE APPELLANT VIOLATED THE APPELLANT'S FOURTH AMENDMENT RIGHTS
OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION
ARTICLES I AND XIV."
I.& II.
{¶12} Appellant’s first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶13} Appellant asserts he was denied the effective assistance of trial counsel.
The standard this issue must be measured against is set out in State v. Bradley, 42
Ohio St. 3d 136 (1989), paragraphs two and three of the syllabus. Appellant must
establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. ( State v. Lytle [1976], 48 Ohio St. 2d 391, 2
Richland County, Case No. 13CA116 5
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶14} Initially, Appellant alleges his trial counsel was ineffective in failing to
cross- examine K. S., the victim herein, regarding her alleged prior inconsistent
statements. Counsel did not attempt to impeach K.S. using the preliminary hearing
transcript or the police report. Appellant specifically focuses on statements regarding
the number and names of medications taken from the home during the night of the
incident.
{¶15} Upon review, we find this issue ancillary to the issue before the trial court
as to whether Appellant committed the offense of burglary. The specific names and
indications of the medications, as well as the victim’s recollections thereof, are not at
issue herein. Further, her exact recollection of the same does not adversely reflect on
K.S.'s credibility. The record before this Court does not affirmatively demonstrate any
inconsistencies existed.
{¶16} Accordingly, we find Appellant has not established the outcome of the trial
would have been otherwise had trial counsel cross-examined K.S. as to her alleged
prior inconsistent statements on the issue. Further, we note, a transcript of the
preliminary hearing was not made a part of the record on appeal. Therefore, Appellant
cannot establish prejudice as a result thereof.
Richland County, Case No. 13CA116 6
{¶17} Appellant further maintains his trial counsel was ineffective in failing to
move the trial court to suppress the out-of-court identification of Appellant by K.S., the
victim herein. Specifically, Appellant asserts the motion would have allowed trial
counsel to present evidence as to whether there was a basis to suppress the in-court
identification. Appellant maintains at the hearing on the motion to suppress, trial counsel
would have had the opportunity to present evidence to show the circumstances
surrounding the out-of-court identification were not proper and violated the due process
afforded to Appellant.
{¶18} Appellant does not articulate a basis for suppressing the out-of-court
identification, nor does Appellant establish the outcome of the trial would have been
otherwise but for the alleged error of counsel. Based upon the victim's testimony, we
find it unlikely the in-court identification was so impermissibly unreliable so as to warrant
exclusion. Accordingly, we find Appellant has not established prejudice as a result of
counsel’s performance.
{¶19} The first and second assignments of error are overruled.
III.
{¶20} In the third assignment of error, Appellant maintains the trial court erred in
denying Appellant’s October 8, 2013 motion to suppress the arrest herein on the
grounds the officer who approached Appellant did not have probable cause to do so.
{¶21} There are three methods of challenging on appeal 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
Richland County, Case No. 13CA116 7
St.3d 19 (1982); State v. Klein, 73 Ohio App. 3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App. 3d 592 (4th Dist.1993). 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 (4th Dist.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 App. 3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio
App.3d 623 (4th Dist.1993); Guysinger.
{¶22} The Fourth Amendment to the United States Constitution protects
individuals against unreasonable searches and seizures. Without a search warrant, a
search is per se unreasonable unless it falls under a few established exceptions. Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Once the
defendant shows the search was warrantless, the burden shifts to the state to show it
was permissible under one of the exceptions. Id. Consent is one exception to the
warrant requirement. If an individual voluntarily consents to a search, then no Fourth
Amendment violation occurs. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S. Ct.
2041, 36 L. Ed. 2d 854 (1973).
{¶23} The law within the State of Ohio recognizes three types of police-citizen
encounters. The three types of encounters are consensual encounters, Terry stops, and
Richland County, Case No. 13CA116 8
arrests. State v. Stonier, 5th Dist. Stark No. 2012 CA 00179, 2013-0hio-2188, 41; citing
State v. Taylor, 106 Ohio App. 3d 741, 747-749, 667 N.E.2d 60 (2nd Dist.1995). A
consensual encounter occurs when a police officer approaches a citizen in public,
engages that person in conversation, requests information, and that person is free to
refuse to answer and walk away. Id. A consensual encounter does not implicate the
Fourth Amendment’s protection unless the police officer has in some way restrained the
person's liberty by a show of authority or force such that a reasonable person would not
feel free to decline the officer's request or otherwise terminate the encounter. Taylor, at
747. An officer's request to examine a person's identification or search a person's
belongings does not make an encounter nonconsensual. Florida v. Rodriguez, 469 U.S.
1, 4-6, 105 S. Ct. 308 (1984); Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382 (1991).
Additionally, the request to conduct a pat-down does not render an encounter non-
consensual. State v. Hardin, 2nd Dist. Montgomery No. 20305, 2005-0hio-130, 19- 20.
{¶24} A Terry stop is an investigatory detention. Such a stop is valid if the officer
has reasonable and articulable suspicion of criminal activity. Taylor at 749. For such a
stop to be valid, the officer must be able to point to specific facts when coupled with
reasonable inferences from those facts to reasonably warrant the intrusion. The stop
"must be viewed within the totality of the circumstances" presented to the officer at the
time. State v. Freeman, 64 Ohio St. 2d 291, 414 N.E.2d 1044, (1980), paragraph one of
syllabus. "An officer need not shrug his shoulders at suspected criminal activity because
he lacks probable cause to arrest; rather a brief stop of a suspicious individual, in order
to determine his identity or to maintain the status quo while obtaining more information
may be reasonable in light of the facts known to the officer at the time." Freeman, at
Richland County, Case No. 13CA116 9
295-296; citing Adams v. Williams, 407 U.S. 143, 145-146, 92 S. Ct. 1921 (1972)
(internal citations removed).
{¶25} An officer can conduct a limited protective search for concealed weapons
when the officer has reasonably concluded the individual whose suspicious behavior he
is investigating at close range is armed and presently dangerous to the officer or others.
State v. Evans, 67 Ohio St. 3d 405, 408, 618 N.E.2d 162 (1993). The officer does not
need to be certain the person has a weapon on them to initiate a pat down. State v.
Smith, 56 Ohio St. 2d 405, 384 N.E.2d 280 (1978). Rather, the standard by which the
officer is judged is that of a reasonably prudent man under the circumstances, who
would be warranted in the belief his safety was in danger. Id. at 407.
{¶26} The only evidence presented at the suppression hearing was the
testimony of Mansfield Police Officer Jacob Rietschlin. Officer Rietschlin testified he
received a call regarding a burglary at 76 Penn. Ave. in progress around 1:00 a.m.
[Suppression Transcript 6.] He stopped in a high crime area of Park Avenue and
Sherman, where there were not many people about. [Transcript 7-8]. The officer heard
over the radio the suspect was a black male, around 6 feet tall, wearing a dark jacket
and dark pants. [Transcript at 7.] Officer Rietschlin saw Appellant crossing Park Avenue
and observed he resembled the description of the individual involved in the burglary. He
was heading away from the scene of the crime, and was four to five blocks away. He
was spotted walking rapidly away from the incident location about five minutes after the
incident first came out on the radio. [Transcript at 7-10, 15, 19.] The officer pulled over
and exited his vehicle. Appellant approached the officer. Officer Rietschlin informed
Appellant he matched the description of a suspect in a burglary, and then asked
Richland County, Case No. 13CA116 10
Appellant to consent to a pat down. Appellant complied without objection. [Transcript at
10-12]. During the pat down, Officer Rietschlin found a stocking hat, gloves, a small
flashlight, and a screwdriver in Appellant’s jacket pockets. [Transcript at 13.] Appellant
was dressed oddly for the warm night and gave no reason for wearing weather-
inappropriate clothes. Appellant claimed to have found the items.
{¶27} The trial court overruled the motion to suppress, finding Appellant was
patted down as part of a consensual encounter. We agree. Appellant initiated the
encounter with Officer Rietschlin as he approached the officer, he consented to the pat
down search. The evidence does not demonstrate Appellant was not free to leave or the
officer in anyway detained Appellant.
{¶28} Assuming arguendo the stop at issue should be classified as a Terry stop,
we find the officer had enough evidence to demonstrate reasonable, articulable
suspicion to stop Appellant. Appellant was observed four to five blocks from the scene
of the burglary, moving away from the residence only five minutes after the burglary
occurred. Appellant matched the description provided by the victim of the crime, and
was wearing weather inappropriate attire at the time. Appellant was a black male,
around six feet tall, and dressed in a dark jacket zipped up and dark jeans - matching
the description of the perpetrator. The evidence introduced at the suppression hearing
would constitute reasonable and articulable facts justifying a Terry stop to initiate further
investigation.
{¶29} The third assignment of error is overruled.
Richland County, Case No. 13CA116 11
{¶30} The judgment entered by the Richland County Court of Common Pleas
overruling the motion to suppress is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Wise, J. concur