State v. Miller ( 2014 )

[Cite as State v. Miller, 2014-Ohio-2327.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13-CA-52
TODD M. MILLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 2012-CR-545
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 30, 2014
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellee
SCOTT P. WOOD GREGG MARX
Dagger, Johnston, Miller, Prosecuting Attorney
Ogilvie & Hampson
144 East Main Street By: Jocelyn S. Kelly
P.O. Box 667 Assistant Prosecuting Attorney
Lancaster, Ohio 43130 Fairfield County, Ohio
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 13-CA-52 2
Hoffman, P.J.
{¶1} Defendant-appellant Todd Miller appeals the May 8, 2013 Judgment Entry
entered by the Fairfield County Court of Common Pleas denying his motion to suppress.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 28, 2012, officers of the Fairfield County Sheriff's Office and
the Street Crime Reduction and Apprehension Program ("SCRAP") responded to
information received relative to the manufacture of methamphetamine at 106 East
Walnut Street, Pleasantville, Fairfield County, Ohio. The officers arrived at the address
and immediately detected an odor associated with the manufacture and production of
methamphetamine. Upon further investigation, the officers observed objects in a
nearby dumpster associated with the manufacture and production of methamphetamine.
The officers proceeded to knock on the front and back doors of the residence, but no
one responded. The officers then spoke with neighbors near the property, who
confirmed a male, matching Appellant's description, resided at the residence.
{¶3} The officers made the decision to enter the premises based upon exigent
circumstances. At the same time, Bill Burt, the property manager for McCafferty
Rentals arrived and notified the officers the residence was a rental property owned by
McCafferty Rentals. Mr. Burt identified the lessee as Melissa Davis. Appellant was not
listed as a lessee to the property. Mr. Burt called Melissa Davis at her work, and
informed her deputies were at her home and wanted to enter. According to Mr. Burt,
Ms. Davis provided consent for them to do so.
Fairfield County, Case No. 13-CA-52 3
{¶4} Mr. Burt then provided the officers with a key to the residence. Upon
entering the residence, the officers discovered Appellant, along with items associated
with the manufacture, production and use of methamphetamine located inside the
residence. As a result, the officers arrested Appellant.
{¶5} On December 7, 2012, Appellant was indicted on one count of illegal
manufacture of drugs, in violation of R.C. 2925.04(A), a felony of the first degree, and
one count of illegal assembly or possession of chemicals for the manufacture of drugs,
in violation of R.C. 2925.04(A)(1), a felony of the second degree.
{¶6} On February 20, 2013, Appellant filed a motion to suppress all evidence
obtained as a result of the entry and search of his residence without a warrant.
{¶7} The trial court conducted a hearing on the motion to suppress on April 1,
2013, and April 10, 2013. Via Judgment Entry filed May 8, 2013, the trial court denied
Appellant's motion to suppress.
{¶8} On June 24, 2013, Appellant entered a plea of no contest to the charges.
The State agreed the offenses merged and elected sentencing as to the illegal
assembly count only. The trial court sentenced Appellant to the mandatory minimum
period of incarceration of three years.
{¶9} Appellant appeals, assigning as error:
{¶10} "I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE."
I.
{¶11} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App. 3d 328, 332,
Fairfield County, Case No. 13-CA-52 4
713 N.E.2d 1 (4th Dist .1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St. 3d 148, 154, 661 N.E.2d 1030
(1996). A reviewing court is bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App. 3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court
must independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams, 86 Ohio App. 3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶12} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486,
597 N.E.2d 1141 (4th Dist.1991). 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. See, Williams,
supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate
or final issues raised in a 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, 96, 620 N.E.2d 906 (8th Dist.1994).
Fairfield County, Case No. 13-CA-52 5
{¶13} In reviewing a trial court's ruling on a motion to suppress, the weight of the
evidence and credibility of witnesses are primarily for the trier of fact. State v. Smith, 80
Ohio St. 3d 89, 105–106, 684 N.E.2d 668 (1997).
{¶14} Appellant asserts Melissa Davis' consent to the warrantless search of her
residence was not freely and voluntarily given; therefore, the evidence resulting from the
warrantless search should be suppressed.
{¶15} At the suppression hearing, Mr. Burt, the property manager, testified:
{¶16} "Q. Okay. So you stopped and talked to the officers. And then did you
speak with Melissa Davis that day?
{¶17} "A. Yes, I did.
{¶18} "Q. And why did you speak with her?
{¶19} "A. I called her at that point and told her that there was officers at the
house and they were looking for this gentleman, did she know him, and she said yes.
And then she said that it was her boy friend.
{¶20} "And I said, 'Well, the officers would like to enter the house.' Of course, I
have keys on the truck.
{¶21} "And I said, 'The officers would like to enter the house. Do you have a
problem with that?
{¶22} "And she said, 'No I don't. I don't have anything to hide.' She said, 'Go
ahead and give them a key.'
{¶23} "And then I handed the phone to the officer that was standing by me and
she told him the same thing. And I gave them the key and they entered the house.
{¶24} "Q. Now, you say you handed the phone to one of the officers there.
Fairfield County, Case No. 13-CA-52 6
{¶25} "A. Yes.
{¶26} "Q. Did you overhear the conversation between the two of them?
{¶27} "A. Yes. I was standing right there.
{¶28} "Q. Did you hear both sides of the conversation?
{¶29} "A. Yes, because the cell phone was on loud and I could hear her talking
to him.
{¶30} "Q. Okay. What was the demeanor of the officer who spoke to her that
day? What was his tone of voice?
{¶31} "A. It was a normal tone of voice. He was basically - - he asked her the
same thing that I did and she answered him that, you know, it was for him to enter the
house.
{¶32} "Q. Did he mention getting a search warrant to her?
{¶33} "A. He told her that at that time, he did not have one. I did hear that, that
he did not have one, but they could possibly get one. And that was basically the end of
the conversation.
{¶34} "And she said, 'Go ahead and enter.'
{¶35} "And with me overhearing that, I didn't have a problem with it. And I
handed them the keys and they went in at that point.
{¶36} "Q. Did you mention a search warrant to her when you'd spoken to her
before handing the phone over?
{¶37} "A. I told her, I said, 'They're here and they want to enter, but they have
stated they don't have a search warrant. Do you have a problem with them going in?'
{¶38} "And she said, 'No.'
Fairfield County, Case No. 13-CA-52 7
{¶39} "And that's when she said, 'I have nothing to hide. They're more than
welcome to go in."
{¶40} Tr. at 102-104.
{¶41} Melissa Davis also testified to the telephone conversation,
{¶42} "Q. Who called you first - - again, regarding the entry into your home, who
was the first person to contract you by phone?
{¶43} "A. The landlord, Bill.
{¶44} "Q. Okay. And that's Mr. Burt?
{¶45} "A. Yes.
{¶46} "Q. And what was the nature of that conversation? Do you recall that
conversation?
{¶47} "A. Yes.
{¶48} "Q. And what was the nature of that conversation?
{¶49} "A. He called and said that he had members of the Fairfield County
SCRAP team wanting to get into my home. And then he turned the phone over to
Detective Campbell.
{¶50} "Q. Okay. So that's all he said was, 'There's law enforcement officers here
at your house and they want to get in.'
{¶51} "A. That's correct.
{¶52} "Q. And then he handed the phone over?
{¶53} "A. Yes.
{¶54} "Q. Did he ask you any questions?
{¶55} "A. No.
Fairfield County, Case No. 13-CA-52 8
{¶56} "Q. So when he handed the phone over, who did you speak with?
{¶57} "A. Detective Campbell.
{¶58} "Q. Now, did you know Campbell - - Officer Campbell prior to this date?
{¶59} "A. No.
{¶60} "Q. This is the first time you ever talked to him?
{¶61} "A. Correct.
{¶62} "Q. And what was the nature of that conversation, if you remember?
{¶63} "A. He said to me that they had got a report of an odor coming from my
house the night before and that they wanted permission to come into the house.
{¶64} "He said, 'We're going in regardless, so you can give me permission or I
can kick the door in. That's your choice.'
{¶65} "At that point, I told him he could go in.
{¶66} "Q. Okay. So - - and this is important. You're testifying - - and how sure
are you that he said that?
{¶67} "A. 100 percent sure.
{¶68} "Q. So he gave you the alternative. He said, 'We're going in no matter
what.'
{¶69} "A. Yes, he did.
{¶70} "Q. He said, 'You can give us permission and we can unlock the door and
go in without breaking anything, or we're going to break the door and go in.'
{¶71} "A. That's correct.
{¶72} "Q. Those are the only two choices he gave you?
{¶73} "A. Yes.
Fairfield County, Case No. 13-CA-52 9
{¶74} "Q. And of those two choices, why did you choose the consent as
opposed to him breaking the door down?
{¶75} "A. At that time, it was going through my head that I don't want to have to
pay for a door and - - -
{¶76} "Q. You don't want damage to your place.
{¶77} "A. Correct.
{¶78} "Q. And you don't want to pay for it.
{¶79} "A. That's correct.
{¶80} "Q. So that's why you gave him consent.
{¶81} "A. Yes.
{¶82} "Q. Did you think you had a choice as to whether or not you could consent
to let him in or not?
{¶83} "A. No. I thought I had to let him.
{¶84} "Q. And if you did not give him consent, what was going to happen?
{¶85} "A. He was going to break in my door and go in anyways."
{¶86} Tr. at 122-125
{¶87} Detective Lyle Campbell testified,
{¶88} "Q. Okay. So what involvement or what information did you get from Mr.
Burt, that the lessee was Melissa Davis; correct?
{¶89} "A. Correct.
{¶90} "Q. And what, if anything, did you do after learning that?
{¶91} "A. He advised that he would make contact with her. He called her from
his cell phone, put it on speaker phone.
Fairfield County, Case No. 13-CA-52 10
{¶92} "Q. Okay.
{¶93} "A. He had her work number, I guess.
{¶94} "Q. Okay. And did you speak with her?
{¶95} "A. Yes, I did.
{¶96} "Q. What, if anything, did you say to her?
{¶97} "A. I advised Melissa exactly why we were there; that we had reason to
believe that there was meth being manufactured in her residence and asked her for
verbal consent. Like I said, it was on speaker phone, so Sergeant Hamler, I believe,
was present, along with maybe Lieutenant Voris and Mr. Burt. I asked her for consent
to enter the residence. Like I said, Mr. Burt was on the speaker phone too, so he was
able to hear that she was giving me consent. Like I said, he's the one that provided the
number that we made contact with; therefore, I would assume he would know who it
was. It wasn't like I dialed the number.
{¶98} "She said that's fine. He provided us with a key and went in the
residence.
{¶99} "Q. Did she identify herself on the phone to you as Melissa Davis?
{¶100} "A. Yes.
{¶101} "Q. Okay. Did you promise her anything in order to obtain her consent?
{¶102} "A. No, I did not.
{¶103} "Q. Did you threaten her?
{¶104} "A. No, I did not.
{¶105} "Q. Did you inform her that you planned to get a warrant if she did not give
consent?
Fairfield County, Case No. 13-CA-52 11
{¶106} "A. No."
{¶107} Tr. at 19-21.
{¶108} The trial court's May 8, 2013 Judgment Entry includes Findings of Fact,
which state,
{¶109} "11. Deputy Campbell asked Mr. Burt about the lessee of the residence.
He stated that he knew that person to be Melissa K. Davis. Mr. Burt was unfamiliar with
the name of the Defendant. Mr. Burt also observed a strong chemical odor near 106
East Walnut Street, although he did not get close enough to the residence to determine
if it was emanating from the home or the dumpster.
{¶110} "12. Mr. Burt called Melissa K. Davis using a number that he knew to be
associated with her work. Ms. Davis answered. Mr. Burt informed her that deputies
from the Fairfield County Sheriff's Office were present and wanted to enter her
residence. She replied that they could do so.
{¶111} "13. Mr. Burt then gave his phone to Deputy Campbell. Deputy Campbell
requested Melissa K. Davis' permission to enter the residence without a warrant. She
provided consent for them to do so."
{¶112} In reviewing the legal sufficiency of the evidence to support a verdict by
the trier of fact, it is the mind of the trier of fact, rather than the reviewing court, that
must be convinced. State v. Thomas, 70 Ohio St. 2d 79, 434 N.E.2d 1356 (1982). In
applying this standard of review, the question of credibility of conflicting testimony and
the weight to be accorded certain evidence are matters left primarily to the trier of fact.
State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967).
Fairfield County, Case No. 13-CA-52 12
{¶113} A reviewing court should not disturb the decision below unless it finds that
reasonable minds could not reach the conclusion reached by the trier of fact. Jenks,
supra, 61 Ohio St.3d at 273.
{¶114} The trier of fact “has the best opportunity to view the demeanor, attitude,
and credibility of each witness, something that does not translate well on the written
page.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159, 1997–Ohio–260.
{¶115} Based upon the testimonial evidence reviewed above, and conceding the
trial court had the best opportunity to weigh the truthfulness and credibility of the
witnesses, we do not find the trial court erred in finding Melissa Davis freely and
voluntarily consented to the search of the residence.
{¶116} Furthermore, upon review, we find Appellant's arguments relative to the
constitutionality of R.C. 2933.33 waived, as Appellant failed to raise the arguments
before the trial court herein. In addition, based upon our analysis and disposition set
forth above relative to Melissa Davis' consent to the officer's search of the property
without a warrant, we find the argument moot.
Fairfield County, Case No. 13-CA-52 13
{¶117} The May 8, 2013 Judgment Entry entered by the Fairfield County Court of
Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur