State v. Tillman ( 2022 )

[Cite as State v. Tillman, 2022-Ohio-4341.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
IDRISSA TILLMAN : Case No. 2022 CA 00018
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
21 CR 243
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 5, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM HAYES MICHAEL R. DALSANTO
Licking County Prosecuting Attorney P.O. Box 98
Newark, Ohio 43058
By: ROBERT N. ABDALLA
Assistant Prosecuting Attorney
20 South 2nd Street
Newark, Ohio 43055
Licking County, Case No. 2022 CA 00018 2
Baldwin, J.
{¶1} Defendant-appellant Idrissa Tillman appeals his conviction and sentence
from the Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 6, 2021, the Licking County Grand Jury indicted appellant on one
count of possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(e), a felony of the
third degree, and one count of trafficking in marijuana in violation of R.C.
2925.03(A)(2)(C)(3)(e), also a felony of the third degree. The indictment also contained a
specification seeking forfeiture of U.S. currency. At his arraignment on May 11, 2021,
appellant entered a plea of not guilty to the charges.
{¶3} On July 27, 2021, appellant filed a Motion to Suppress all evidence and
derivative evidence related to the April 23, 2021 traffic stop of appellant. Appellee filed a
response to the same on August 6, 2021. On October 1, 2021, appellant filed a Motion to
Pre-Approve Funds for an Expert Witness. Appellant specifically sought funds to hire an
expert witness to testify that the odor of legal hemp and illegal marijuana are
indistinguishable.
{¶4} An oral hearing on the Motion to Suppress was held on December 21, 2021.
At the hearing, Deputy Dustin Prouty of the Muskingum County Sheriff’s Office testified
that he was attached to the Central Ohio Drug Enforcement Task Force and did drug
interdiction work. He testified that on April 23, 2021, he was in uniform in a marked cruiser
watching for drug smugglers when he noticed a suspicious car traveling eastbound on
State Route 70. He testified that he believed the car was suspicious because the driver
put both hands on the wheel and sat back in his seat as he approached the officer. Deputy
Licking County, Case No. 2022 CA 00018 3
Prouty notified Detective Justin Woodyard about his observations and decided to follow
the vehicle. He witnessed the car exit the highway and pull into a gas station. Deputy
Prouty later followed the vehicle back onto the highway at which time he observed the
vehicle traveling significantly over the speed limit. As a result, the Deputy pulled the
vehicle over. Detective Woodyard showed up around the same time as the stop.
{¶5} Deputy Prouty testified that when he made contact with the driver of the
vehicle, who was appellant, he “[i]mmediately could smell a strong odor of raw marijuana.”
Transcript of December 21, 2021 hearing at 14. The Deputy had appellant and his two
passengers exit the vehicle. Deputy Prouty indicated to appellant that he was conducting
a probable cause search based on the smell of marijuana. Deputy Prouty testified that
appellant got agitated and told him that “you don’t smell marijuana—there’s no marijuana
in there [his vehicle].” Transcript of December 21, 2021 hearing at 16. Upon searching
the vehicle, Deputy Prouty found a large amount of vacuum sealed bags in the trunk with
marijuana inside. Deputy Prouty also found a bag full of marijuana edibles. Appellant and
his two passengers were arrested. On cross-examination, Deputy Prouty testified that a
bag of marijuana and a marijuana cigarette were found in the cabin of the vehicle.
{¶6} Detective Justin Woodyard of the Licking County Sheriff’s Office testified
that he was assigned to the Central Ohio Drug Enforcement Task Force. He testified that
he was working undercover on drug interdiction on April 23, 2021 when he received
information from Deputy Prouty. He testified that Deputy Prouty informed him that he had
observed criminal indicators. Detective Woodyard responded to the scene and observed
appellant who was pumping gas. After appellant’s vehicle left the gas station, the
Detective observed appellant speeding and failing to use his turn signals. Once Deputy
Licking County, Case No. 2022 CA 00018 4
Prouty pulled appellant’s vehicle over, Detective Woodyard arrived at the traffic stop. He
testified when he approached the driver’s side door, he immediately “detected the odor
of raw marijuana emitting from the vehicle.” Transcript of December 21, 2021 hearing at
64. When appellant exited the vehicle, he told Detective Woodyard that there was a bag
of marijuana in the driver’s side door pocket. Marijuana was found in that location and a
marijuana joint was found in the center console. Detective Woodyard testified that this
occurred after appellant was informed that a probable cause search was going to be
conducted and he was ordered out of his vehicle.
{¶7} On cross-examination, Detective Woodyard testified that he was trained
that because hemp was indistinguishable from marijuana without a lab test, all suspected
marijuana needed to be sent to the lab for further testing for confirmation.
{¶8} At the conclusion of the hearing, the trial court denied both appellant’s
motion for expert witness fees as well as appellant’s Motion to Suppress. The trial court,
in denying the first motion, stated, in relevant part, as follows:
{¶9} THE COURT: All right. Well, let - - let me address the issue of a - - on a -
- of an expert. I don’t think an expert here is - - is necessary. I’ll accept the contention
that there’s no - - for the purpose of - - argument, that there’s no distinction between the
odor of raw - - of hemp and marijuana. I’ll take that as true. But even if I do that, that does
not mean that the case law - - um - - holding that an odor - - an overwhelming odor - - a
powerful odor of raw marijuana authorizing a warrantless search of a vehicle all of the
sudden comes to an end. I - - I - - there’s no case that says it does.
Even though hemp is now - - uh - - recognized as legal, it’s still highly regulated
and I will point to - - uh - - Code Section 928, et seq. - - uh - - which is the codified version
Licking County, Case No. 2022 CA 00018 5
of the legalization of hemp. However, um - - the cultivation and processing of hemp
require licenses that required - - they’re required to be issued by the Department of
Agriculture.
So, even though it may be legal now to possess hemp or hemp-related products,
that doesn’t mean - - uh - - that it itself is still not a highly regulated product or commodity,
or - - um - - process; it is - - it is. You have to have a license to process it, you have to be
licensed to cultivate it, and there’s even a regulation or a statute that prohibits the
transportation of hemp in violation of rules adopted under 928.03. I’m not sure what those
rules are, but - - uh - - the fact that it’s still a highly regulated commodity, I think undercuts
this notion or this argument that since hemp is legal and there’s no distinction between
marijuana and hemp, the case law that says the odor of raw marijuana authorizing a
search warrant or a warrantless search of a vehicle now is - - is - - us - - pointless or has
no - - uh - - justification anymore, I just don’t see it that way. So that’s why I’m not going
to grant the Motion for an Expert. I understand. I’ll accept argument - - uh - - arguendo
this notion that there’s no distinction. Even if there’s not, I believe the overwhelming odor
- - uh - - powerful odor of raw marijuana or hemp coming from a motor vehicle will - - uh
- - under the case law still authorize a police officer to search.
{¶10} Transcript of December 21, 2021 hearing at 103-105. The trial court, in
denying the Motion to Suppress, found that appellant’s driving justified a traffic stop. The
trial court noted that there was testimony that appellant drove on the berm to get onto the
entrance to the ramp and that appellant was traveling in excess of 100 miles per hour.
The trial court further found that appellant’s admission that there was marijuana in the
driver’s side door at “about the same time or before” the trunk was searched” in
Licking County, Case No. 2022 CA 00018 6
combination with the strong odor of marijuana authorized the warrantless search of the
vehicle. A Decision and Entry denying both motions was filed on December 28, 2021.
{¶11} On January 27, 2022, appellant withdrew his former not guilty plea and
entered a plea of no contest to both charges and the forfeiture specification. Pursuant to
a Judgment Entry filed on March 7, 2022, appellant was placed on community control for
a period of three (3) years and was fined $5,000.00. In addition, appellant’s driver’s
license was suspended for one (1) year and appellant was ordered to forfeit $10,788.00.
{¶12} Appellant now raises the following assignments of error on appeal:
{¶13} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS BECAUSE THE SEARCH
OF THE APPELLANT’S VEHICLE WAS NOT SUPPORTED BY PROBABLE CAUSE OR
THE PROBABLE CAUSE WAS ONLY FOR A MINOR MISDEMEANOR.”
{¶14} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DENIED APPELLANT’S MOTION FOR PRE-APPROVAL OF EXPERT FEES
BECAUSE THERE WAS S REASONABLE PROBABILITY THAT THE EXPERT WOULD
AID IN THE APPELLANT’S DEFENSE AND THE DENIAL OF AN EXPERT RESULATED
IN AN UNFAIR HEARING.”
I
{¶15} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Motion to Suppress because the search of his vehicle was not supported by
probable cause or the probable cause was only for a minor violation. We disagree.
{¶16} Appellate review of a motion to suppress is a mixed question of law and
fact. State v. Burnside, 100 St.3d 152, 2003-Ohio-5372, 100 Ohio St.3d 152, 797 N.E.2d
Licking County, Case No. 2022 CA 00018 7
71, ¶8. The trial court is the finder of fact in evaluating a motion to suppress; therefore, it
is in the best position to resolve factual questions and evaluate the credibility of witnesses.
Id. The trial court's findings of fact must be accepted by an appellate court if they are
supported by competent, credible evidence. Id. “Accepting facts as true, the appellate
court must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id. That is, the appellate
court will review the application of the legal standard to the facts de novo. Id.{¶17} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. State v. Goins, 5th Dist. Morgan No. 05-9, 2006-Ohio-74, ¶10. First,
an appellant may challenge the trial court's finding of fact. Id. Second, an appellant may
argue the trial court failed to apply the appropriate test to correct law to the findings of
fact. Id. Finally, an appellant may argue the trial court has incorrectly decided the ultimate
or final issue raised in the motion to suppress. Id. 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, 96, 641 N.E.2d 1172 (8th Dist.1994).
{¶18} Appellant, in the case sub judice, does not challenge the initial stop of his
vehicle, but argues that the search of his vehicle was not supported by probable cause.
Generally, “[f]or a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant.” State v. Moore,
90 Ohio St.3d 47, 49, 2000-Ohio-10, 734 N.E.2d 804. However, “the smell of marijuana,
alone, by a person qualified to recognize the odor, is sufficient to establish probable cause
to search a motor vehicle”, pursuant to the automobile exception to the warrant
Licking County, Case No. 2022 CA 00018 8
requirement. There need not be other tangible evidence to justify a warrantless search of
the vehicle. Id. at 48.
{¶19} At the suppression hearing, Detective Woodyard testified that he smelled
the “odor of raw marijuana emitting from the vehicle.” Transcript of December 21, 2021
hearing at 64. He testified that had dealt with marijuana thousands of times in his 17 year
career in law enforcement and that he was familiar with the smell of marijuana. Deputy
Prouty testified that he had handled drugs and had seen and smelled a lot of marijuana
throughout his career. Because both testified that they had experience detecting the smell
of marijuana, the standard in Moore has been satisfied. “The fact that illegal marijuana
and legal forms of hemp have the same odor is irrelevant so long as some forms of
marijuana remain illegal. Thus, Moore remains good law and any detection of the odor
would give probable cause to search.” State v. Withrow, 2022-Ohio-2850, 194 N.E.3d
804, ¶ 19.
{¶20} Appellant’s first assignment of error is, therefore, overruled.
II
{¶21} Appellant, in his second assignment of error, contends that the trial court
erred in denying his Motion to Pre-Approve Funds for an Expert Witness. Appellant
specifically sought funds to hire an expert witness to testify that the odor of legal hemp
and illegal marijuana are indistinguishable.
{¶22} The Ohio Supreme Court has repeatedly recognized that “due process and
fundamental fairness require the state to provide an indigent criminal defendant with
‘access to the raw materials integral to the building of an effective defense.’ “State v.
Brady, 119 Ohio St.3d 375, 2008–Ohio–4493, 894 N.E.2d 671, ¶ 21, quoting Ake v.
Licking County, Case No. 2022 CA 00018 9
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). See also State v. Mason,
82 Ohio St.3d 144, 149, 1998-Ohio-370, 694 N.E.2d 932. Specifically, the Ohio Supreme
Court has recognized that “due process * * * requires that an indigent criminal defendant
be provided funds to obtain expert assistance at state expense only where the trial court
finds, in the exercise of a sound discretion, that the defendant has made a particularized
showing (1) of a reasonable probability that the requested expert would aid in his defense,
and (2) that denial of the requested expert assistance would result in an unfair trial.”
Mason at 150, 694 N.E.2d 932.
{¶23} Pursuant to Ake and Mason, it is appropriate for a court to consider the
following factors in determining whether the provision of an expert witness is necessary:
“(1) the effect on the defendant's private interest in the accuracy of the trial if the requested
service is not provided, (2) the burden on the government's interest if the service is
provided, and (3) the probable value of the additional service and the risk of error in the
proceeding if the assistance is not provided.” Mason, 82 Ohio St.3d at 149, 694 N.E.2d
932, citing Ake, 470 U.S. at 78–79, 105 S.Ct. 1087, 84 L.Ed.2d 53. In the absence of a
particularized showing of need, due process as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution and Section 16, Article I of the Ohio
Constitution does not require the provision of an expert witness. Mason at 150, 694
N.E.2d 932. The appointment of defense experts is within the sound discretion of the trial
court. State v. Jalowiec, 91 Ohio St. 3d 220, 236, 2001-Ohio-26, 744 N.E.2d 163, 180. In
order to find that there was as abuse of discretion, we must find that the trial court's
decision was arbitrary, unconscionable or unreasonable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 218, 218, 450 N.E.2d 1140 (1983).
Licking County, Case No. 2022 CA 00018 10
{¶24} We find that the trial court did not abuse its discretion in denying appellant’s
motion because the trial court’s decision was not arbitrary, unconscionable or
unreasonable. The trial court, without the need for expert testimony, accepted appellant’s
assertion that there was no way to distinguish between the odor of raw marijuana and
hemp. We concur with the trial court that “the overwhelming odor—uh—powerful odor of
raw marijuana or hemp coming from a motor vehicle will…under the case law still
authorize a police officer to search.” Transcript of December 21, 2021 hearing at 105. As
is stated above, “[t]he fact that illegal marijuana and legal forms of hemp have the same
odor is irrelevant so long as some forms of marijuana remain illegal. Thus, Moore remains
good law and any detection of the odor would give probable cause to search.” State v.
Withrow, 2022-Ohio-2850, ¶ 19, 194 N.E.3d 804, ¶ 19. There was, therefore, no need for
expert testimony that there was no way to distinguish between the odor of raw marijuana
and hemp.
{¶25} Appellant’s second assignment of error is, therefore, overruled.
Licking County, Case No. 2022 CA 00018 11
{¶26} Accordingly, the judgment of the Licking County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Gwin, J. concur.