State v. Johnson , 92 N.E.3d 1256 ( 2017 )

[Cite as State v. Johnson, 2017-Ohio-5527.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-689
v. : (C.P.C. No. 15CR-5562)
Nicholas M. Johnson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 27, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: James H. Banks, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Nicholas M. Johnson, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of trafficking in drugs, in
violation of R.C. 2953.03. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 4, 2015, Franklin County Sheriff's Deputy Travis Carter
arrested appellant for heroin possession following a traffic stop. On November 13, 2015, a
Franklin County Grand Jury indicted appellant for trafficking in heroin, in violation of
R.C. 2925.03, a felony of the first degree.
{¶ 3} On December 31, 2015, appellant filed a motion to suppress the evidence
discovered by police in the warrantless search of his person. Plaintiff-appellee, State of
No. 16AP-689 2
Ohio, did not file a written memorandum in opposition. The trial court conducted an
evidentiary hearing on the motion on July 28, 2016. The facts underlying appellant's
arrest are set out in the testimony at the suppression hearing. Detective John C. Whitacre
testified that he was a 23-year veteran of the Columbus Division of Police who had been
working on the narcotics squad since 2013. Whitacre testified that in September 2015, he
began investigating a group of individuals who allegedly operated a narcotics ring on the
east side of Columbus. According to Whitacre, he received information through
informants regarding the names, addresses, and vehicles used by the suspects. Whitacre
subsequently obtained a court order to install GPS monitors on the suspect vehicles. As a
result of surveillance, Whitacre's team arrested several suspects on the east side of
Columbus on heroin trafficking charges.
{¶ 4} Whitacre testified that the members of a suspected heroin trafficking ring
on the west side of Columbus subsequently began using the same vehicles. After
obtaining another warrant, Whitacre's team began surveilling individuals suspected of
drug trafficking. As a result of the continued surveillance, Whitacre's team subsequently
made several arrests and recovered large sums of cash and narcotics from various
individuals. One of the individuals identified by Whitacre's team as a member of the drug
trafficking ring was Ivan Navarro. The police suspected Navarro was delivering drugs to
individuals he met briefly in certain public parking lots. On October 22, 2015, police
followed Navarro to a Walmart parking lot on Rome-Hilliard Road, where he parked next
to a pickup truck with no visible registration tag. The driver of the pickup truck
approached Navarro's vehicle and retrieved a box, which he placed in his pickup truck. A
state trooper followed the pickup truck when it left the parking lot and stopped it. It was
discovered that the box contained $29,000 in cash.
{¶ 5} On November 4, 2015, Navarro arrived at the same Walmart parking lot
and parked next to a 2006 Lexus, which displayed no front license plate. Police observed
the driver of the vehicle, later identified as appellant, enter Navarro's vehicle, stay for a
short time, and then return to his vehicle. Though the surveillance team did not see an
exchange between the two men, they suspected a drug transaction had taken place.
Whitacre testified that he instructed the surveillance team, which included Detective
Mark Johnson, to follow appellant's vehicle as it left the parking lot. Johnson testified
No. 16AP-689 3
that he followed appellant's vehicle on I-270, but he backed off when he saw a marked
Franklin County Sheriff's vehicle come up behind appellant's vehicle. Johnson did not
observe the subsequent traffic stop.
{¶ 6} Carter, a 16-year veteran of the Franklin County Sheriff's Department, made
the traffic stop of appellant's vehicle. Carter testified that because he was a member of the
High Intensity Drug Trafficking Area ("HIDTA") Task Force, he was able to receive a
transmission over the encrypted walkie-talkie system from a Sergeant Biney asking if
there were any officers in the vicinity of I-270 and Georgesville Road. When Carter
responded, Biney told him that Whitacre requested a traffic stop of a vehicle failing to
display a front license plate and possibly containing evidence of illegal narcotics. After
obtaining a description of the suspect vehicle and its location, Carter came up behind the
suspect's vehicle after it exited I-270 and initiated a traffic stop.
{¶ 7} According to Carter, he approached appellant's vehicle on the passenger
side, asked appellant for his license and vehicle registration, and instructed appellant to
get out of the vehicle. Carter walked around the back of appellant's vehicle and met
appellant at the rear of the vehicle. Carter asked appellant if he had any weapons and he
responded that he did not. When Carter asked appellant for permission to conduct a pat-
down search for weapons, appellant responded "[y]es." (July 28, 2016 Tr. at 45.) As
Carter began patting down appellant, he noticed a bulge in appellant's right front pants
pocket. When Carter asked appellant what it was, "he fled on foot." (Tr. at 46.) Carter
gave chase and caught up with appellant when he stumbled and fell in the parking lot of a
Certified gas station. Carter placed appellant in handcuffs and then "searched all pockets
incident to arrest and found a large bag of what appeared to be brown powder heroin in
his right front pocket." (Tr. at 46.)
{¶ 8} Detective Clint A. Smith subsequently arrived at the scene of the arrest and
conducted an interview of appellant who was handcuffed in the back of a police cruiser.
During the interview, appellant admitted that he was a heroin user and that the heroin
found on his person was intended for his own personal use. Appellant denied that he sold
drugs. Smith subsequently authored a report regarding the events leading to appellant's
arrest and interrogation. Smith's HIDTA Task Force Report ("report") was admitted into
evidence as Defendant's Exhibit 1.
No. 16AP-689 4
{¶ 9} Immediately following the hearing on appellant's motion to suppress, the
trial court announced its decision denying the motion. Appellant subsequently pleaded
no contest to the charge in the indictment. On September 8, 2016, the trial court
sentenced appellant to a prison term of three years, suspended appellant's driver's license
for six months, and imposed a monetary sanction of $20,000.
{¶ 10} Appellant timely appealed to this court from his conviction and sentence.
II. ASSIGNMENTS OF ERROR
{¶ 11} Appellant sets forth the following assignments of error:
[1.] THE TRIAL COURT ERRED IN OVERRULING
DEFENDANT-APPELLANT'S MOTION TO SUPPRESS
EVIDENCE.
[2.] THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT.
III. STANDARD OF REVIEW
{¶ 12} "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.
No. 16AP-689 5
IV. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 13} In appellant's first assignment of error, appellant contends that the trial
court erred when it denied his motion to suppress the evidence uncovered in the
warrantless search of his person, as well as the statements made by appellant at the scene.
{¶ 14} "A motion to suppress evidence challenges the warrantless search and
seizure at issue as being in violation of the Fourth Amendment of the United States
Constitution and Article I of the Ohio Constitution." State v. Hannah, 10th Dist. No.
15AP-12, 2015-Ohio-4964, ¶ 12, citing State v. Lynch, 196 Ohio App. 3d 420, 2011-Ohio-
5502 (8th Dist.), citing State v. Williams, 8th Dist. No. 81364, 2003-Ohio-2647, ¶ 7. The
Fourth Amendment to the United States Constitution, as well as Article I, Section 14 of
the Ohio Constitution, prohibits unreasonable searches and seizures rendering them per
se unreasonable unless an exception applies. State v. Kinney, 83 Ohio St. 3d 85, 87
(1998). "One such exception, recognized by the United States Supreme Court in Terry v.
Ohio, 392 U.S. 1 (1968), permits a police officer to 'stop or detain an individual without
probable cause when the officer has a reasonable suspicion, based on specific, articulable
facts, that criminal activity is afoot.' " State v. Pinckney, 10th Dist. No. 14AP-709, 2015-
Ohio-3899, ¶ 18, quoting State v. Jones, 188 Ohio App. 3d 628, 2010-Ohio-2854, ¶ 16
(10th Dist.). The purpose of the limited search authorized by Terry " 'is not intended to
discover evidence of a crime, but to allow the officer to pursue his duties "without fear of
violence." ' " Pinckney at ¶ 18, quoting State v. Cordell, 10th Dist. No. 12AP-42, 2013-
Ohio-3009, ¶ 13, quoting Adams v. Williams, 407 U.S. 143, 146 (1972).
{¶ 15} The holding in Terry has been extended to automobile stops. State v.
Hines, 92 Ohio App. 3d 163, 167 (10th Dist.1993). Under Terry, "[p]olice may frisk people
for weapons during a traffic stop if there is a reasonable belief that they may be armed."
Hines at 167, citing Pennsylvania v. Mimms, 434 U.S. 106 (1977). "An officer may initiate
a protective search when, based on the totality of the circumstances, there is a reasonable
suspicion the person is armed." Hines at 167, citing State v. Bobo, 37 Ohio St. 3d 177
(1988), paragraph two of the syllabus.
{¶ 16} In addition to the stop-and-frisk doctrine under Terry, the Supreme Court
of Ohio has recognized that "consent signifying waiver of constitutional rights" is also an
No. 16AP-689 6
exception to the search warrant requirement. State v. Alihassan, 10th Dist. No. 11AP-578,
2012-Ohio-825, ¶ 8, citing State v. Akron Airport Post No. 8975, 19 Ohio St. 3d 49, 51
(1985). To establish the consent exception to the probable cause and warrant
requirements the state has the burden of establishing by clear and positive evidence that
consent was freely and voluntarily given. State v. Posey, 40 Ohio St. 3d 420, 427 (1988),
citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
{¶ 17} Appellant first contends that Carter violated appellant's constitutional rights
by initiating the traffic stop without a reasonable suspicion that appellant was involved in
criminal activity. We disagree.
{¶ 18} To legitimately effectuate a traffic stop, an officer must have a reasonable
and articulable suspicion of criminal activity. State v. Young, 6th Dist. No. E-13-011,
2015-Ohio-398, ¶ 21, citing State v. Hageman, 180 Ohio App. 3d 640, 2009-Ohio-169,
¶ 11 (6th Dist.). "Once the officer has initiated the stop, he or she may detain the vehicle
no longer than is necessary to carry out the purpose of the stop which typically amounts to
'a time period sufficient to issue a ticket or a warning.' " Young at ¶ 21, quoting State v.
Kelly, 188 Ohio App. 3d 842, 2010-Ohio-3560, ¶ 25 (12th Dist.).
{¶ 19} R.C. 4503.21(A) provides, in relevant part, that "[n]o person who is the
owner or operator of a motor vehicle shall fail to display in plain view on the front and
rear of the motor vehicle the distinctive number and registration mark, including any
county identification sticker and any validation sticker." Ohio courts have held that an
officer's observation of an R.C. 4503.21(A) violation provides a reasonable suspicion
justifying a Terry stop. Columbus v. Gullick, 10th Dist. No. 07AP-520, 2008-Ohio-3168,
¶ 13. See also Young at ¶ 26; State v. Phillips, 2d Dist. No. 22918, 2009-Ohio-3519; State
v. Craze, 5th Dist. No. 09 COA 017, 2010-Ohio-812; State v. Cromes, 3d Dist. No. 17-06-
07, 2006-Ohio-6924; State v. Brooks, 11th Dist. No. 2005-L-200, 2007-Ohio-344. Here,
the evidence reveals that Carter is a member of the HIDTA Task Force and that just prior
to the traffic stop, he received information over the encrypted walkie-talkie system that
the HIDTA Task Force was investigating appellant for suspected illegal drug activity and
that appellant was driving his vehicle without a front license plate. Carter was informed
that Whitacre had requested a traffic stop.
No. 16AP-689 7
{¶ 20} Appellant argues that the absence of a front license plate could not have
provided a justification for the traffic stop because Carter admitted, on cross-examination,
that he initiated the traffic stop before confirming that the violation occurred. The trial
court disagreed, citing the decision of this court in State v. Muldrow, 10th Dist. No. 15AP-
1119, 2016-Ohio-4774. The trial court determined that the information communicated to
Carter by and through the members of the HIDTA Task Force provided a reasonable
suspicion to justify a Terry stop under the collective knowledge doctrine. We agree.
{¶ 21} In Muldrow, this court stated that under "the 'collective knowledge
doctrine,' * * * knowledge of law enforcement officers is imputed to other officers." Id. at
¶ 18. This court explained the doctrine as follows:
The collective knowledge doctrine recognizes that "[a] police
officer need not always have knowledge of the specific facts
justifying a stop and may rely, therefore, upon a police
dispatch or flyer." Maumee v. Weisner, 87 Ohio St. 3d 295,
297, 1999 Ohio 68, 720 N.E.2d 507 (1999), citing United
States v. Hensley, 469 U.S. 221, 231, 105 S. Ct. 675, 83 L. Ed.
2d 604 (1985). "[T]he admissibility of the evidence uncovered
during such a stop does not rest upon whether the officers
relying upon a dispatch or flyer 'were themselves aware of
the specific facts which led their colleagues to seek their
assistance.' It turns instead upon 'whether the officers who
issued the flyer' or dispatch possessed reasonable suspicion to
make the stop.' "
(Emphasis sic.) Id.
{¶ 22} In this instance, Whitacre personally observed appellant's Lexus in the
Walmart parking lot and he was able to determine that the vehicle did not have a front
license plate. Based on the registration information Whitacre could see, he was able to
learn the name of the vehicle owner and he forwarded that information to other members
of his team along with the description of the vehicle. As Johnson followed appellant's
vehicle after it left the Walmart parking lot, he "began airing over the radio his location,"
and he was able to confirm the license plate violation. (Tr. at 59.) Carter testified that
Biney, via the HIDTA Task Force encrypted walkie-talkie system, "asked if anyone was in
the area of 270 and Georgesville Road on the west side of Franklin County." (Tr. at 44.)
Biney informed Carter that Whitacre "wanted me to stop a vehicle that was possibly
No. 16AP-689 8
involved in narcotics activity [and] did not have a front license plate." (Tr. at 45.) Thus,
the evidence in the record establishes that Carter received information regarding the
suspected narcotics activity involving appellant's vehicle and the license plate violation
through Whitacre, who had personally observed the license plate violation. Under
Muldrow, it does not matter that Carter did not observe the equipment violation prior to
initiating the traffic stop or that he did not speak directly with Whitacre.
{¶ 23} Appellant argues that Muldrow is distinguishable because the defendant in
that case had been a suspect in an ongoing narcotics investigation and had been observed
leaving a residence which was the subject of a search warrant, whereas appellant had not
previously been suspected of involvement in the narcotics activity being investigated by
the HIDTA Task Force. We agree that Muldrow is not on all fours with the present case.
Nevertheless, we find that the logic of the collective knowledge doctrine applies with equal
weight to this case inasmuch as the critical fact justifying the Terry stop in this case was
the equipment violation observed by Whitacre and reported to Carter through the
members of the HIDTA Task Force.
{¶ 24} The crux of the collective knowledge doctrine is that knowledge of law
enforcement officers is imputed to other officers. Muldrow at ¶ 18. Under Muldrow,
where an officer making an investigative stop relies solely on information provided in a
dispatch, a Terry stop is constitutionally valid provided the state demonstrates at a
suppression hearing that the facts precipitating the dispatch justified a reasonable
suspicion of criminal activity. Muldrow at ¶ 21. Here, the relevant information regarding
the description of appellant's vehicle and the absence of a front license plate were
observed by Whitacre and communicated to Carter via other members of the HIDTA Task
Force. The license plate violation provided a legal justification for the traffic stop.
Whether the additional information regarding the suspected narcotics transaction would
have justified a reasonable suspicion of drug possession is neither relevant nor dispositive
of the legality of the traffic stop in this case.
{¶ 25} Appellant next contends that the equipment violation was merely a pretext
for conducting an illegal narcotics investigation given Carter's admission that he stopped
appellant's vehicle with the intent to conduct an investigation into illegal drug activity.
However, the Supreme Court has stated that "[w]here a police officer stops a vehicle based
No. 16AP-689 9
on probable cause that a traffic violation has occurred or was occurring, the stop is not
unreasonable under the Fourth Amendment to the United States Constitution even if the
officer had some ulterior motive for making the stop, such as a suspicion that the violator
was engaging in more nefarious criminal activity." Dayton v. Erickson, 76 Ohio St. 3d 3
(1996), syllabus. See also State v. Ewing, 10th Dist. No. 09AP-776, 2010-Ohio-1385, ¶ 16;
State v. Stokes, 10th Dist. No. 07AP-960, 2008-Ohio-5222, ¶ 29. Because we have
determined that the equipment violation observed by Whitacre's team and communicated
to Carter provides a justifiable reason for initiating a Terry stop of appellant's vehicle,
Carter's subjective intent in making the traffic stop is irrelevant to the Fourth Amendment
analysis. Erickson; Ewing; Stokes.
{¶ 26} Appellant next contends that Carter detained appellant for a longer period
of time than was necessary to conduct a traffic stop for purposes of a license plate
violation. The evidence in the record does not support appellant's contention.
{¶ 27} Carter provided the following testimony regarding the traffic stop:
I approached the vehicle and the driver, [appellant], asked
him for his license and registration, had him go ahead and
step out of the vehicle. He approached to the rear of the
vehicle, and I asked him if he had any weapons on him. He
stated, "No." I asked if I could pat him down for weapons. He
said, "Yes."
As I began to pat him down, I did notice a bulge in his front
right pocket and I proceeded to ask what that was when he
fled on foot basically in kind of a northeast direction into an
open field behind a gas station. It's a Certified Gas Station on
Alkire and Holt. As [appellant] was running he stumbled and
I was able to apprehend him without incident after he had
stumbled.
After I placed him in handcuffs I searched all pockets incident
to arrest and found a large bag of what appeared to be brown
powder heroin in his right front pocket.
(Tr. at 45-46.)
{¶ 28} "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle without violating the Fourth
Amendment." Mimms at 111, n. 6. However, even with consent, Terry requires that "[a]
No. 16AP-689 10
search for weapons in the absence of probable cause to arrest * * * must be limited to that
which is necessary for the discovery of weapons which might be used to harm the officer
or others nearby." Id. at 25-26. Carter estimated that the elapsed time between asking
appellant to exit his vehicle and requesting permission to conduct a pat-down search for
weapons was "30 to 45 seconds at the most." (Tr. at 47.) Carter considered this to be a
"normal" period of time for such a traffic stop. (Tr. at 47.) There is no evidence in the
record to rebut Carter's recollection of the traffic stop. Accordingly, there is no support in
the record for appellant's contention that Carter unreasonably extended the duration of
the traffic stop in order to investigate suspected drug possession. According to Carter,
appellant gave his consent for a pat-down search for weapons just 30 to 45 seconds after
he asked appellant to exit the vehicle.
{¶ 29} Appellant contends, however, that his consent to a pat-down search for
weapons was not voluntary. In State v. Limoli, 10th Dist. No. 11AP-924, 2012-Ohio-4502,
this court set out the test for determining whether, in the context of a traffic stop, a
person's consent to a pat-down search for weapons is voluntary. This court stated:
In determining the voluntariness of consent to a search, a
court must apply a different standard when a consent is given
during a lawful police detention as opposed to an unlawful
detention. When a person is lawfully detained by police and
consents to a search, the state must show by clear and
convincing evidence that the consent was freely and
voluntarily given. Important factors in determining the
voluntariness of consent are: (1) the voluntariness of the
defendant's custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of the defendant's
cooperation with the police; (4) the defendant's awareness of
his right to refuse to consent; (5) the defendant's education
and intelligence; and (6) the defendant's belief that no
incriminating evidence will be found.
(Emphasis sic.) (Citation and internal quotations omitted.) Id. at ¶ 22.
{¶ 30} Our review of the evidence in the record supports the trial court's
conclusion that appellant's consent to the pat-down search was voluntary. We have
determined that the initial traffic stop was lawful due to the equipment violation. The
evidence establishes that appellant gave his consent for the pat-down search only 30 to 45
seconds after Carter instructed him to exit his vehicle. There is no evidence that appellant
No. 16AP-689 11
resisted Carter's request to exit the vehicle or that he was otherwise uncooperative. There
is no evidence that Carter employed coercive tactics in order to obtain consent to search.
Thus, the record contains clear and convincing evidence that appellant's consent to a pat-
down search for weapons was freely and voluntarily given.
{¶ 31} Finally, appellant argues that Carter's search of appellant following the foot
chase was illegal because appellant had not committed an arrestable offense. Carter
testified as follows:
Q. When he ran off, did you say anything to him?
A. I yelled at him to stop running, and he did not comply.
Q. Was that some kind of a crime to do that?
A. Yes. It's an obstruction.
Q. Is it an arrestable offense?
A. Yes.
(Tr. at 48.)
{¶ 32} R.C. 2921.31(A) defines the offense of obstructing official business as
follows:
No person, without privilege to do so and with purpose to
prevent, obstruct, or delay the performance by a public official
of any authorized act within the public official's official
capacity, shall do any act that hampers or impedes a public
official in the performance of the public official's lawful duties.
{¶ 33} Ohio appellate authority, including authority from this district, holds that
fleeing from a police officer who is lawfully attempting to detain a suspect under the
authority of Terry is an affirmative act that hinders or impedes the officer in the
performance of the officer's duties and constitutes a violation of R.C. 2921.31, obstructing
official business. State v. Harris, 10th Dist. No. 05AP-27, 2005-Ohio-4553, ¶ 16. See also
State v. Lewis, 2d Dist. No. 27152, 2017-Ohio-1195, ¶ 12; State v. Willis, 12th Dist. No.
CA2012-08-155, 2013-Ohio-2391; State v. Certain, 180 Ohio App. 3d 457, 2009-Ohio-148
(4th Dist.); State v. Dice, 3d Dist. No. 9-04-41, 2005-Ohio-2505; State v. Hasley, 7th Dist.
No. 03 MA 215, 2004-Ohio-7065; State v. Jackson, 1st Dist. No. C-990371 (Apr. 14,
No. 16AP-689 12
2000). Because the evidence shows that appellant fled a lawful traffic stop, Carter had
probable cause to arrest appellant for obstructing official business. Harris. "A search
incident to arrest is not only an exception to the warrant requirement; it is also a
reasonable search under the United States and Ohio Constitutions." State v. White, 10th
Dist. No. 07AP-246, 2007-Ohio-7143, ¶ 11, citing United States v. Robinson, 414 U.S. 218,
235 (1973); State v. Mathews, 46 Ohio St. 2d 72, 74-75 (1976). Because appellant
committed an arrestable offense when he fled from the lawful Terry stop, the search of
appellant's person following his apprehension was constitutionally reasonable as a search
incident to arrest. White.
{¶ 34} For the foregoing reasons, we find that Carter did not violate appellant's
Fourth Amendment rights by conducting the traffic stop in question and searching
appellant's person. Accordingly, we hold that the trial court did not err when it denied
appellant's motion to suppress the evidence discovered in the warrantless search of
appellant's person.
{¶ 35} In his motion to suppress, appellant also sought to exclude the statements
he made to Smith claiming that he made the statements before being advised of his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). The evidence in the
record belies appellant's claim. Smith's report reveals the following:
Detective Smith conducted the interview of [appellant] in the
presence of Deputy Carter while he was secured in the rear of
the F.C.S.O. marked vehicle. Detective Smith read the
Miranda warning to [appellant]. [Appellant] stated that he
would talk to Detective Smith but did not want to sign the
rights waiver form. Verbal consent was given in front of
Detective Smith and Deputy Carter, who signed the rights
waiver form as witness to his verbal consent. The contents of
the interview are as follows:
-[Appellant] hoped to escape by running
-The heroin in his pocket was for personal use
-He does not sell heroin
-The heroin was to support his habit
-That amount of heroin would last him a month
-He didn't want to talk anymore if there was no opportunity to
not go to jail.
No. 16AP-689 13
The interview was concluded, and [appellant] was transported
and slated by F.C.S.O.
(Defendant's Ex. 1.)
{¶ 36} Smith's written report establishes that appellant made the statements
attributed to him after he received Miranda warnings. There is no evidence in the record
contradicting the information in the report regarding the Miranda warnings. Thus, there
is no support for appellant's contention that police violated his Miranda rights.
{¶ 37} For the foregoing reasons, we hold that the trial court did not err when it
denied appellant's motion to suppress the evidence uncovered in the search of appellant's
person and the initial interrogation by police. Accordingly, appellant's first assignment of
error is overruled.
B. Second Assignment of Error
{¶ 38} In appellant's second assignment of error, appellant argues that the trial
court erred and abused its discretion by imposing a fine of $20,000. We disagree.
{¶ 39} Appellant first contends that the trial court misconstrued the relevant
statutory law when it imposed a $20,000 fine. R.C. 2929.18 pertaining to "[f]inancial
sanctions," provides, in relevant part, as follows:
(A)(3) Except as provided in division (B)(1), (3), or (4) of this
section, a fine payable by the offender to the state, to a
political subdivision when appropriate for a felony, or as
described in division (B)(2) of this section to one or more law
enforcement agencies, in the following amount:
(a) For a felony of the first degree, not more than twenty
thousand dollars;
***
(B)(1) For a first, second, or third degree felony violation of
any provision of Chapter 2925., 3719., or 4729. of the Revised
Code, the sentencing court shall impose upon the offender a
mandatory fine of at least one-half of, but not more than, the
maximum statutory fine amount authorized for the level of
the offense pursuant to division (A)(3) of this section. If an
offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an
No. 16AP-689 14
indigent person and is unable to pay the mandatory fine
described in this division, the court shall not impose the
mandatory fine upon the offender.
(Emphasis added.)
{¶ 40} Because the trial court convicted appellant of a first-degree felony under
R.C. 2929.18, a $10,000 fine is mandatory. Appellant contends that the trial transcript
shows that the trial court believed that the mandatory fine was $20,000. The transcript
of the sentencing hearing provides as follows:
[Prosecuting Attorney:] It's my understanding he's wishing to
withdraw his formerly entered plea of not guilty and enter a
plea of no contest to that offense, trafficking in heroin, as a
felony of the first degree.
That offense is punishable by up to three years to eleven years
of mandatory incarceration in the Ohio Department of
Rehabilitation, up to a $20,000 fine, which is a mandatory
fine, five years of mandatory post-release control when
incarcerated and a mandatory Bureau of Motor Vehicle
driver's license suspension for not less than six months nor
more than five years.
***
THE COURT: All right. By signing this document, you're
pleading no contest to the count of trafficking in heroin.
That's a felony in the first degree. That carries a mandatory
prison sentence from three to eleven years and a mandatory
fine of $20,000. You're not eligible for probation. You have
to go to prison because it's mandatory.
(Emphasis added.) (Sept. 6, 2016 Tr. at 8, 10.)
{¶ 41} The September 6, 2016 "Entry of No Contest Plea" signed by appellant, his
trial counsel, and the trial court correctly identifies the fine for appellant's offense as "up
to $20,000" and further identifies the mandatory portion of the fine as "at Least One-Half
of the Maximum for the Underlying Offense." Though language used by the trial court at
the sentencing hearing and in the subsequent judgment entry suggest that the trial court
may have believed a $20,000 fine was mandatory, the trial court was aware that there is a
No. 16AP-689 15
mandatory fine for appellant's offense of "up to" $20,000. Accordingly, the record does
not disclose a legal error with regard to the amount of the fine.
{¶ 42} Appellant next contends that the trial court erred by failing to consider his
ability to pay the fine. We disagree.
{¶ 43} Appellant pleaded no contest to the indictment and the trial court
proceeded immediately to sentencing. Consequently, there was no presentence
investigation. Appellant did not file an affidavit with the trial court prior to sentencing
alleging that he is indigent and unable to pay the mandatory fine. R.C. 2929.18(B)(1).
Because appellant did not file an affidavit of indigence alleging he is "unable to pay the
mandatory fine," the trial court was required to impose a fine on appellant of at least
$10,000, one-half of the $20,000 authorized by statute. State v. Pilgrim, 184 Ohio
App.3d 675, 2009-Ohio-5357, ¶ 79 (10th Dist.), citing State v. Gipson, 80 Ohio St. 3d 626
(1998); State v. Burnett, 10th Dist. No. 08AP-304, 2008-Ohio-5224, ¶ 9.
{¶ 44} The only evidence in the record regarding appellant's ability to pay is
statements made by the prosecutor and defense counsel at the sentencing hearing. The
transcript of the sentencing hearing reveals appellant is 31 years old, he works at Buffalo
Wild Wings, has two children (ages 9 and 13), and he purchased the heroin found in his
possession at an estimated price of $6,000 for 160 grams. According to the prosecutor,
160 grams of heroin results in a minimum of 1,500 doses. The prosecutor did not
estimate the street value of the heroin seized from appellant, but he did opine that the
amount of heroin appellant purchased made him "a pretty high-level drug dealer." (Tr. at
19.) Appellant will be 34 years old on completion of a three-year sentence.
{¶ 45} "[T]he burden is upon the offender to affirmatively demonstrate that he or
she is indigent and is unable to pay the mandatory fine." (Emphasis sic.) Gipson at 635.
A trial court need only consider whether the defendant has the ability to pay a fine, "a trial
court need not affirmatively find that an offender is able to pay." State v. Plemons, 2d
Dist. No. 26434, 2015-Ohio-2879, ¶ 8. This court reviews a trial court's decision on an
offender's present and future ability to pay a mandatory fine for an abuse of discretion.
State v. Small, 10th Dist. No. 14AP-659, 2015-Ohio-3640, ¶ 40.
{¶ 46} R.C. 2929.19(B)(5) states that "[b]efore imposing a financial sanction under
section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised Code,
No. 16AP-689 16
the court shall consider the offender's present and future ability to pay the amount of the
sanction or fine." The trial court's judgment entry provides, in relevant part, as follows:
The Court has considered the Defendant's present and future
ability to pay a fine and financial sanction and does, pursuant
to R.C. 2929.18, hereby render judgment for the following fine
and/or financial sanctions: Defendant shall pay a
mandatory fine in the amount of $20,000. Defendant
shall pay court costs in an amount to be determined.
(Emphasis sic.) (Sept. 8, 2016 Jgmt. Entry at 2.)
{¶ 47} Because appellant failed to submit an R.C. 2929.18(B)(1) affidavit and
because the judgment entry states that the court "considered" appellant's ability to pay,
the record discloses no error or abuse of discretion on the part of the trial court with
regard to the fine. Pilgrim at ¶ 80 ("Because the record lacks evidence showing
defendant's inability to pay the mandatory fine the trial court imposed, defendant did not
carry his burden to affirmatively demonstrate his inability to pay the mandatory fine.").
Moreover, the record contains some evidence to support a finding that appellant has the
present and future ability to pay the fine.
{¶ 48} For the foregoing reasons, appellant's second assignment of error is
overruled.
V. CONCLUSION
{¶ 49} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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