State v. Mock , 106 N.E.3d 154 ( 2018 )

[Cite as State v. Mock, 2018-Ohio-268.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104997
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRONE MOCK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-597566-A
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: January 25, 2018
ATTORNEYS FOR APPELLANT
David N. Patterson
Patterson & Simonelli
30432 Euclid Avenue, Suite #101
Wickliffe, Ohio 44092
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Erica D. Barnhill
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Tyrone Mock, appeals from his convictions for multiple counts
related to a check-fraud ring that operated in northeast Ohio. Appellant claims that
evidence gathered against him should have been suppressed based on constitutional
violations, and that his convictions are against the manifest weight of the evidence and
not supported by sufficient evidence. After a thorough review of the record and law, this
court affirms.
I. Factual and Procedural History
{¶2} Appellant cultivated a large check-fraud ring that operated throughout
northeast Ohio. He enticed Jerome Bohanon (“Bohanon”), an employee of a
check-cashing business, to supply him with business names, bank account and routing
numbers, and recent check numbers. Appellant would then research the businesses and
determine when would be the best time to attempt to cash the checks so as to avoid
security procedures in place at many banks.
{¶3} Appellant, along with Jonnell George (“George”), would then recruit
individuals to cash these checks and split the money. After recruiting an individual,
appellant would create counterfeit checks for amounts just below $1,000, using the
information obtained from Bohanon. The checks were made payable to the actual names
of the person cashing the checks. Appellant told several of these individuals that they
would only face minor criminal repercussions from the scheme and could make anywhere
from $200 to $400 per transaction.
{¶4} Police departments around northeast Ohio, as well as bank investigators,
noticed a spike in fraudulent checks. Based on the similarities between the checks,
officers in the Rocky River Police Department believed that the separate incidents were
related. Detective William Duffy (“Det. Duffy”) interviewed a suspect, D.H., who was
identified as an individual that had cashed some fraudulent checks. She detailed her
participation in the scheme and how she came to be involved. She also disclosed that she
received the check from a person named “Ike” and gave police Ike’s phone number. She
showed them text messages she received from “Ike,” asking her if she wanted to cash
more checks. She also described his car, a white Oldsmobile Aurora.
{¶5} Det. Duffy, by way of a court order signed by a municipal court judge,
obtained phone records from a cell phone carrier for the number provided by D.H. The
subscriber information did not provide a name, and the address was for a California
residence. Det. Duffy determined that the cell phone was one he considered a “burner”
phone, or an anonymous cell phone. Using the call logs, Detective Craig Witalis (“Det.
Witalis”) was able to link the number to other phone numbers and an address on
Monticello Boulevard in Richmond Heights, Ohio. After checking records, detectives
learned that there was a 1999 white Oldsmobile Aurora owned by someone that resided at
the address. Rocky River detectives obtained a search warrant signed by a common
pleas court judge to place a GPS tracker on the car, and with the assistance of Rocky
River Detective Tracey Hill, who is also a sworn Cuyahoga County Sheriff’s deputy, did
so on May 11, 2015. Det. Witalis, along with several other officers, conducted
surveillance when the car moved.
{¶6} Bohanon testified he provided appellant with information useful in creating
counterfeit checks in exchange for money. Det. Witalis testified that from their
surveillance of appellant, a pattern emerged. Appellant would visit Bohanon’s place of
employment, and then a few days later, appellant would drive to different banks.
Sometimes appellant would arrive with another person in his car. Other times appellant
would meet another person at the location. The other person would then go into the
bank, come out, and meet up with appellant. Officers took pictures and recorded the
location of the stops using software for the GPS tracker. At trial, Det. Witalis
authenticated surveillance photos of these encounters.
{¶7} Detectives also investigated other individuals that participated in the scheme,
and several gave statements implicating appellant.
{¶8} Officers eventually gained enough information to seek a search warrant for
the Monticello Boulevard home, which was issued. There, officers found items appellant
used to create forged checks, including check stock, printers, legitimate checks from
certain businesses together with forged copies from those businesses, computer programs
with past templates of forged checks, cash, and computer searches of businesses that had
been the target of the check fraud.
{¶9} Appellant was arrested and charged in a 185-count indictment with engaging
in a pattern of corrupt activity, conspiracy, money laundering, forgery, theft,
telecommunications fraud, identity theft, and possession of criminal tools.
{¶10} Appellant filed three suppression motions. In his first, he argued that the
search warrant for the placement of a GPS tracker was defective. In his supplemental
suppression motion, he again sought to have all information related to the GPS tracker
excluded, and also argued that the state improperly obtained phone records. On the day
of the suppression hearing, appellant filed a pro se supplemental suppression motion
arguing the GPS issue and other constitutional issues.
{¶11} A suppression hearing was held where the state called two detectives to
testify about their investigation of D.H. Det. Duffy testified about D.H.’s statements
regarding a phone number belonging to an individual named “Ike” that provided
fraudulent checks to her, and that he then sought a court order from a municipal court
judge for phone records regarding that number. The detective testified about the
information that was disclosed to the judge, and appellant’s attorney questioned the
witnesses about information that was not disclosed. This information included the fact
that D.H. lied to police about her address, and that she was recently hospitalized for
mental illness. Other issues raised in appellant’s suppression motions were not
addressed at the hearing, and appellant called no witnesses and did not introduce any
exhibits. Appellant’s attorney did ask a few questions of the detective regarding the
circumstances under which they attached the GPS unit to the car, but the warrant for GPS
tracking was not introduced during the hearing.
{¶12} The trial court took the matter under advisement and later announced a
decision in court and set forth the decision in a journal entry denying the motions. On
the record, the court stated,
[t]he standard for an order for cell phone records is less than
probable cause under 18 USC 2703(d). The standard is specific articulable
facts that give the court reasonable grounds to believe that the records
sought are relevant and material to an ongoing criminal investigation.
In this case the police reports indicate that there were — that this
confidential informant * * * had been identified through bank photos as
one of the people passing stolen and counterfeited checks. She was
interviewed, and, in fact, during one of her interviews, she received a text
message from this telephone number at issue in which a person identified as
Ike wanted to know if she wanted to cash more checks.
This was actually done in the presence of the — well, no it wasn’t
done with — but the informant * * * did show Detective Duffy a March
15th text message which requested her involvement in further check
cashing schemes.
The basis of the suppression was that [the judge] was not informed
of the informant’s psychiatric history as well as the fact that she may have
misrepresented her residential address as being with her parents as opposed
to being at a psychiatric unit of Richmond Hospital, is my recollection.
Regardless of that, though, there was a pattern of — strike that.
Before I go further, she did describe the car that this person known to her as
Ike would pick her up in and taker her to various banks. In fact, her parents
at one point dropped her off at a residence, I believe in East Cleveland
where the vehicle was consistent with the description provided by [the
informant].
And finally, and I think probably most important, in Crawford —
State v. Crawford, that’s a 2013 case, the Ohio Supreme Court indicated
that citing a U.S. Supreme Court case that a person that has no reasonable
expectation of privacy in his or her telephone records as opposed to the
contents of those phone calls.
That being the case, this was issued pursuant to the requirements of
the statute. However, even if it were in error that it did not comply with
the statutory mandates, that is not a basis for suppression. In fact, I believe
there was some case law that indicates that the exclusionary rule may be
invoked to express [sic] only evidence obtained as a result of a
constitutional violation. Here there’s no constitutional violation. The United
States Supreme Court has ruled that there is no expectation to privacy in
one’s telephone number.
Therefore, I’m going to deny the motion to suppress.
(Tr. 57-59.)
{¶13} Prior to trial, 65 counts were dismissed at the state’s request. At trial, seven
codefendants, including Bohanon, testified against appellant. At the conclusion of trial,
11 counts were dismissed at the state’s request. Of the counts that remained, appellant
was found not guilty of several counts of forgery and money laundering. He was found
guilty of engaging in a pattern of corrupt activity (“RICO”), a violation of R.C.
2923.32(A)(1); conspiracy, a violation of R.C. 2923.01(A)(1); 28 counts of forgery,
violations of R.C. 2913.31(A)(3); 29 counts of money laundering, violations of R.C.
1315.55(A)(3); 9 counts of petty theft, violations of R.C. 2913.02(A)(3); 7 counts of
aggravated theft, violations of R.C. 2913.02(A)(3); 6 counts of telecommunications fraud,
violations of R.C. 2913.05(A); 1 count of identity theft, a violation of R.C. 2913.49(C); 1
count of forging identification cards, a violation of R.C. 2913.31(A)(2); and 1 count of
possession of criminal tools, a violation of R.C. 2923.24(A).
{¶14} At sentencing, the trial court merged the conspiracy count into the RICO
count at the state’s request. The court also merged each count of theft and forgery with
each corresponding money laundering count. If a theft and forgery count did not have a
corresponding money laundering count, then those counts were sentenced separately.
This resulted in an aggregate 13-year prison sentence, composed of a 10-year prison term
for the RICO count, a 2-year term for each of the 29 counts of money laundering imposed
concurrent to each other but consecutive to the RICO sentence, and a 1-year term for
fourth-degree felony telecommunications fraud imposed consecutive to the RICO and
money laundering counts. The following sentences were imposed concurrent to each
other and all other counts: 11 months for each of the four counts of fifth-degree felony
telecommunications fraud, 17 months for the other fourth-degree felony
telecommunications fraud, 30 months for the identity fraud, 11 months for the possession
of criminal tools, 17 months for forgery, and 6 months for theft.
{¶15} Appellant was also ordered to pay restitution and advised of postrelease
control. He then filed the instant appeal assigning three errors and one supplemental
error for review:
I. The trial court erred in denying appellant’s motion to suppress affidavits
and warrants for installation and monitoring of a GPS tracking device
which violated his rights under the Fourth Amendment of the United States
and Article I Section 14 of the Ohio Constitution[s] and the court[’s] failure
to give appellant findings of facts and conclusion[s] of law on relevant
constitutional issues thereby denying appellant[] due process.
II. The trial court erred in denying appellant a fair trial, due to the state and
detectives in this case intentionally failing to disclose through discovery
material exculpatory evidence relating to accomplice/co-defendants which
violated his rights under the Fourth Amendment of the United States and
Article I Section 10 of the Ohio Constitution[s].
III. The trial court erred in denying appellant[’s] Rule 29 motion for
acquittal as to the charges when the state presented insufficient evidence to
sustain appellant’s convictions and/or appellant’s convictions [are] against
the manifest weight of the evidence and thereby appellant was denied due
process under the Fourth Amendment of the United States and Article I
Section 10 of the Ohio [Constitutions] thereby denying appellant[] due
process.
Supplemental Assignment of Error. Appellant was denied the effective
assistance of trial counsel, in violation of his Sixth Amendment right, and
due process of law, when trial counsel failed to conduct a pretrial
investigation and interview crucial witnesses, and trial counsel[‘]s failure to
file a motion to suppress deficient and invalid search warrant to search and
seize the contents of computer and the warrantless to [sic] search and
seiz[ure] of cell phone contents in violation of appellant’s Fourth
Amendment rights.
II. Law and Analysis
A. Suppression of Evidence
{¶16} Appellant’s first assignment of error argues that the court erred in denying
the suppression of evidence that was obtained through the installation of a GPS
monitoring device on his car. In the course of arguing these issues, he also takes issue
with the way in which the state obtained cell phone records.
{¶17} This court’s review of a decision on a motion to suppress is a mixed
question of law and fact. State v. Lennon, 8th Dist. Cuyahoga No. 104344,
2017-Ohio-2753, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. This court defers to the trial court on its factual findings, but reviews de
novo the trial court’s application of those facts to the applicable law. Id., citing
Burnside.
The Fourth Amendment to the United States Constitution protects people
from illegal searches and seizures. In order to employ Fourth Amendment
protections, a defendant must have a “constitutionally protected reasonable
expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). The United States Supreme Court has
directed reviewing courts to consider a two-part test in order to determine
whether the Fourth Amendment is implicated. “First, has the individual
manifested a subjective expectation of privacy in the object of the
challenged search? Second, is society willing to recognize that expectation
as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809,
90 L.Ed.2d 210 (1986), citing Katz at 360.
State v. Lemasters, 12th Dist. Madison No. CA2012-12-028, 2013-Ohio-2969, ¶ 8.
{¶18} To the extent appellant challenges the decision related to the search warrants
for the attachment of a GPS tracking device, this court cannot properly address those
arguments. Appellant’s initial suppression motion references the warrants and
accompanying affidavits, but those documents were not attached.1 At the suppression
hearing, appellant did not introduce those documents as exhibits. As a result, those
documents were not before the trial court at the appropriate time. We cannot discern the
merit of appellant’s arguments without these documents. Statements made in a search
warrant affidavit enjoy a presumption of validity. State v. Taylor, 174 Ohio App.3d 477,
2007-Ohio-7066, 882 N.E.2d 945 (1st Dist.). Without evidence to the contrary, this
court is bound to find the statements made in the affidavit valid and, thus, the warrants
valid.
{¶19} The evidence adduced at the suppression hearing indicated that police were
investigating an incident where a person cashed fraudulent checks made to resemble
payroll checks. Officers interviewed an individual, D.H., and she provided them with a
phone number that she says was used to contact her in order to arrange the provision of a
1Thesuppression motion electronically filed with the clerk’s office references
these motions as attached, but they are not attached to the official version
contained in this court’s record. An undocketed, unfiled version of this document
with the attachments exists in the file received by this court, but is not properly a
part of this court’s record.
fraudulent check to her. She indicated the person with whom she communicated was
named “Ike,” and the two had exchanged text messages and talked over the phone. With
her permission, officers examined her phone and viewed the text messages that were
exchanged between that phone number and the person being interviewed. Det. Duffy
then approached a municipal court judge for an order directing the cell phone provider to
release records related to the account. Det. Duffy relayed the steps in the investigation
that had occurred and the statements made by the individual under the investigation.
Det. Duffy did not disclose that this individual had a history of mental illness and was
recently hospitalized for mental health treatment, and did not disclose that this individual
lied about her current address. The judge issued a court order directing AT&T to
produce subscriber records relating to the phone number provided, including address, call
logs, location data, and text messages.
{¶20} Det. Duffy and Det. Witalis received information regarding the phone
number from AT&T, and the subscriber information was not helpful. The account
information provided did not include a name, and the address listed was a California
address. Det. Witalis described the phone as a “burner” or anonymous phone. Using
information contained in the call logs, Det. Witalis testified that he determined, through
the frequency of the calls and other information, that the phone was likely related to an
address on Monticello Boulevard in Richmond Heights, Ohio. A records check revealed
a car registration for a white Oldsmobile Aurora owned by a person at that address.
Upon surveillance of that address, he observed a car that matched the description
provided by D.H., a white Oldsmobile Aurora.
{¶21} First, the trial court held that appellant did not have an expectation of
privacy because he denied being the owner of the phone, the subscriber using the phone,
or associated with the phone in any way.
For a person to have been aggrieved by an unlawful search or seizure, he or
she “‘must have been a victim of a search or seizure, one against whom the
search was directed, as distinguished from one who claims prejudice only
through the use of evidence gathered as a consequence of a search or
seizure directed at someone else.’”
State v. Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 45, quoting
Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969),
quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
This, alone, is a basis to affirm the trial court’s decision. Appellant has maintained that
these records do not pertain to him. Therefore, he would not be aggrieved by a search of
these records.
{¶22} However, because the state has asserted that these are records that relate to
appellant in that they pertain to a cell phone used by appellant, in an abundance of
caution, this court will analyze the matter further.
{¶23} This court has previously found no privacy right exists for cell phone
records maintained by a phone company. Id. at ¶ 47 (“telephone users have no right of
privacy in the numerical information they convey to the telephone company. Courts have
also held that this reasoning applies to cell phone records obtained from cell phone
companies as well.”), citing State v. Neely, 2d Dist. Montgomery No. 24317,
2012-Ohio-212; United States v. Dye, N.D.Ohio No. 1:10CR221, 2011 U.S. Dist. LEXIS
47287 (Apr. 27, 2011). Information that has been voluntarily turned over to third parties
does not enjoy protection because a person does not have a legitimate expectation of
privacy in such information.
{¶24} The Second District has reaffirmed its holding in Neely and found that an
individual has no constitutional privacy interest in cell phone location data, or ping data,
maintained by a cell phone carrier.2 State v. Taylor, 2d Dist. Montgomery No. 25764,
2014-Ohio-2550. The request for information sent to the phone company in that case
requested location data, call logs, and subscriber information. Id. at ¶ 8.
{¶25} The court order in the present case also sought text messages. The request
for text messages could lead to the disclosure of metadata about appellant’s
communications as well as the content of communications where a privacy interest may
exist. 18 U.S.C.S. 2703(c) specifically limits its application to records of electronic
communications, but subsection (b) provides for the release of the contents of
communications of a remote computing service only with prior notice to the subscriber
and other restrictions.
{¶26} It is unclear from the suppression hearing whether any contents of text
This issue is currently pending before the United States Supreme Court.
2
Carpenter v. United States, Supreme Court Case No. 16-402.
messages were, in fact, turned over and, if they were, whether they were used against
appellant in any manner. If the requested information turned over by the phone company
was limited to the date, time, and phone numbers of exchanged text messages, then
appellant would not have a privacy interest in that metadata.
{¶27} Det. Duffy testified that he used the call logs of the anonymous cell phone to
link that number to others that were frequently called. Through an investigation of those
numbers, using searches of publicly available information, he was able to identify a
residential address that was in some way associated with the person that used the
anonymous phone. An Ohio Bureau of Motor Vehicles search yielded a vehicle
matching the description given to police that was also associated with the address.
{¶28} There is no indication that the contents of the communications to which
appellant had a reasonable expectation of privacy were turned over as a result of the court
order or, if the contents of text messages were turned over, were used in the investigation
against appellant as a result of the court order. Appellant has the burden of at least prima
facie establishing a violation of his Fourth Amendment right to privacy, and without
showing that the contents of text messages were, in fact, turned over to police, appellant
has not made that showing.
{¶29} Appellant argues that the records disclosed to police were not turned over in
discovery. This court cannot review such a claim, but it is apparent that appellant did not
ask the detectives that testified at the suppression hearing whether the contents of text
messages were disclosed. Further, the records were not otherwise used at trial.
Therefore, the trial court did not err in this respect when denying appellant’s motion to
suppress.
{¶30} Appellant also argues that there were material omissions made to the judge
issuing the order that should have resulted in a lack of reasonable suspicion. Generally,
when this court is reviewing this type of issue, there is a search warrant affidavit that
details the information relayed to the authorizing judge. In this case, there is no affidavit
relating to the court order used to obtain cell phone records, but Det. Duffy testified about
the information relayed to the issuing judge.3 Det. Duffy readily admitted that he did not
disclose that the witness had lied to him about her residence, and that he did not disclose
that she was recently hospitalized for mental illness.
{¶31} Appellant likens this to cases where a search warrant affidavit contained
material misstatements or omissions, allegedly causing them to be fatally deficient. See
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In those
cases,
[a] defendant who claims that a warrant is flawed because it is based upon a
false statement must prove by a preponderance of the evidence that the
affiant made a false statement, either intentionally, or with reckless
disregard for the truth. State v. Tinsley, 2d Dist. No. 23542, 2010 Ohio
The same procedure has been used in the investigation of the sharing of
3
child pornography online where courts have affirmed the denial of motions to
suppress. See, e.g., Lemasters, 12th Dist. Madison No. CA2012-12-028,
2013-Ohio-2969.
3535, ¶ 23, citing Franks [v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct.
2674, 57 L.Ed.2d 667 (1978)].
State v. Perry, 8th Dist. Cuyahoga No. 97572, 2012-Ohio-4273, ¶ 15.
{¶32} The Perry court went on to note that “‘[e]ven if the affidavit contains false
statements [or omissions] made intentionally or recklessly, a warrant based on the
affidavit is still valid unless, with the affidavit’s false material set to one side [or with the
omissions included], the affidavit’s remaining content is insufficient to establish probable
cause.’” Id. at ¶ 16, quoting State v. Sells, 2d Dist. Miami No. 2005-CA-8,
2006-Ohio-1859, ¶ 11, citing State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819(1992).
{¶33} Here, this issuance of the court order for records is governed by a standard
less than probable cause due to the lack of a privacy interest in the requested records. 18
U.S.C.S. 2703(d). According to this statute, the standard for the issuing judge is whether
“the governmental entity offers specific and articulable facts showing that there are
reasonable grounds to believe that the contents of a wire or electronic communication, or
the records or other information sought, are relevant and material to an ongoing criminal
investigation.” This standard is similar to that fleshed out in the Terry line of cases.
United States v. Warshak, 631 F.3d 266, 291 (6th Cir.2010), citing Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this standard, an investigative
search is reasonable when the state actor is able to point to articulable facts that give rise
to a reasonable suspicion of criminal activity. State v. Eddy, 8th Dist. Cuyahoga No.
104417, 2017-Ohio-7398, ¶ 19, citing Terry.
{¶34} Assuming for the sake of argument that appellant has standing and an
interest in the cell phone records, even with the omissions appellant points out, there still
exists a reasonable suspicion of criminal activity based on the factual recitation above.
{¶35} The GPS search warrants and affidavits are not attached to any of
appellant’s suppression motions filed with the clerk. However, an undocketed, unfiled
copy of appellant’s May 18, 2016 suppression motion is included in the lower court file.
This document has hand-written notations and other irregularities. Therefore, given
these limitations, this court will examine appellant’s arguments in light of these warrants
and affidavits.
{¶36} Attached to a May 7, 2015 GPS warrant is an affidavit executed by Det.
Witalis. There, he describes the investigation of several individuals passing bad checks
and the individuals supplying these checks. The information provided by D.H. was set
forth, including the phone contact she had with a person named “Ike” and the fact that he
drove a white Oldsmobile Aurora. Det. Witalis averred that he was able to use phone
records from the number provided by D.H. to hone in on a person closely associated with
that phone number that also owned a white Oldsmobile Aurora. Detectives and a secret
service agent then met with D.H. again and she picked appellant out of a photo array and
identified him as Ike. Further surveillance of the address that Det. Witalis identified as
being closely related to the cell phone number provided by D.H. resulted in Det. Witalis
observing appellant driving the white Oldsmobile Aurora.
{¶37} This court’s review is further hampered by the nature of the record in this
case because there are two documents purporting to be GPS warrants issued on May 7,
2015, for the same vehicle and appear to be copies of the same warrant. However, the
affidavit attached to each is different. The second May 7, 2015 search warrant affidavit
avers similar statements, but also included that an officer had taken a statement from J.M.
She was caught attempting to pass a fraudulent check and indicated that it was supplied
to her by someone who identified himself by the name of “Black” and drove a white
Oldsmobile Aurora.
{¶38} A June 24, 2015 warrant for an extension of the original GPS warrant
indicated that appellant’s vehicle was at several banks when attempts were made to pass
fraudulent checks. Det. Witalis also averred that the vehicle visited a check cashing
business — the same check cashing business that employed Bohanon — prior to visiting
the various financial institutions where fraudulent checks were passed.
{¶39} Regardless, at the suppression hearing, appellant argued in his opening
statement that the GPS warrant affidavits were deficient, but then failed to pursue the
issue further at the suppression hearing. All the evidence adduced was in relation to the
court order issued by a municipal court judge for phone records, not the GPS warrants
that were issued by a common pleas court judge. Appellant adduced testimony that
detectives failed to disclose facts about D.H. — she had a history of mental illness
including recent hospitalization, and she lied to police about her address — but that was
in the context of the court order to obtain cell phone records. As this court recognized in
Perry, it is the defendant’s burden to demonstrate a material misstatement or omission in
a search warrant affidavit under Franks. Perry, 8th Dist. Cuyahoga No. 97572,
2012-Ohio-4273, ¶ 15. Appellant failed to do so at the suppression hearing.
{¶40} Therefore, appellant’s first assignment of error is overruled.
B. Failure to Disclose Evidence
{¶41} In his second assignment of error, appellant claims that the state failed to
disclose certain allegedly exculpatory evidence relevant to the suppression issues.
{¶42} The United States Supreme Court has held, that the “[s]uppression by the
prosecution of evidence favorable to an accused who has requested it violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), syllabus.
{¶43} Appellant does not point to anything in the record that this court can review
for what was or was not disclosed in discovery. Appellant claims that there was certain
information not used at trial that was not disclosed. Specifically, appellant points to a
photo array that was shown to D.H. that was referenced at the suppression hearing, the
telephone records that were turned over to police as a result of D.H.’s information, and
D.H.’s statements to police. This court cannot determine what was or was not turned
over in discovery. Therefore, this assigned error is overruled.
C. Sufficiency and Manifest Weight
{¶44} In a single assignment of error, appellant argues that his convictions are not
supported by sufficient evidence and are against the manifest weight of the evidence.
Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that
is, a finding that a conviction is supported by the manifest weight of the
evidence necessarily includes a finding of sufficiency. State v. McCrary,
10th Dist. [Franklin] No. 10AP-881, 2011-Ohio-3161, ¶ 11. * * * Thus, a
determination that a conviction is supported by the weight of the evidence
will also be dispositive of the issue of sufficiency. Id. * * *.
State v. Baatin, 10th Dist. Franklin No. 11AP-286, 2011-Ohio-6294, ¶ 8. See also State
v. Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946, ¶ 11. Because appellant
does not assign these errors separately, and a sufficiency analysis is subsumed by a
manifest weight analysis in this case, this court will address the arguments together.
The weight of the evidence concerns the inclination of the greater amount
of credible evidence offered to support one side of the issue rather than the
other. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of
fact, but must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. Id. An appellate court should
reserve reversal of a conviction as being against the manifest weight of the
evidence for only the most “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 35.
{¶45} Appellant was convicted of engaging in a pattern of corrupt activity as
defined by R.C. 2923.32(A)(1). This statutes provides “[n]o person employed by, or
associated with, any enterprise shall conduct or participate in, directly or indirectly, the
affairs of the enterprise through a pattern of corrupt activity or the collection of an
unlawful debt.”
{¶46} R.C. 2923.31 defines certain terms set forth in the prohibition. The statute
defines an enterprise as “any individual, sole proprietorship, partnership, limited
partnership, corporation, trust, union, government agency, or other legal entity, or any
organization, association, or group of persons associated in fact although not a legal
entity.” R.C. 2923.31(C). The statute defines a pattern of corrupt activity as “means
two or more incidents of corrupt activity, whether or not there has been a prior conviction,
that are related to the affairs of the same enterprise, are not isolated, and are not so closely
related to each other and connected in time and place that they constitute a single event.”
R.C. 2923.31(E). Finally, the statute defines corrupt activity as engaging in, attempting
to engage in, or conspiring to engage in a wide range of listed offenses including those
that apply to this case, such as money laundering, theft, forgery, and telecommunications
fraud.
{¶47} Money laundering, as it relates to this case, is defined in R.C.
1315.55(A)(3), and provides, “[n]o person shall conduct or attempt to conduct a
transaction with the purpose to promote, manage, establish, carry on, or facilitate the
promotion, management, establishment, or carrying on of corrupt activity.”
{¶48} Appellant was also convicted of conspiracy (R.C. 2923.01(A)(1), which
prohibits one from planning or aiding in planning the commission of, among other
offenses, engaging in a pattern of corrupt activity, with the purpose to, or promoting or
facilitating, the commission of such an offense. R.C. 2923.01(A)(1).
{¶49} Forgery as relevant here, provides that “[n]o person, with purpose to
defraud, or knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess
with purpose to utter, any writing that the person knows to have been forged.” R.C.
2913.31(A)(3).
{¶50} Theft prohibits one “with purpose to deprive the owner of property or
services,” from knowingly obtaining or exerting control “over either the property or
services in any of the following ways: (2) Beyond the scope of the express or implied
consent of the owner or person authorized to give consent; (3) By deception.” R.C.
2913.02(A)(2) and 2913.02(A)(3).
{¶51} Telecommunications fraud criminalizes the use of telecommunications in a
scheme to defraud. It provides,
[n]o person, having devised a scheme to defraud, shall knowingly
disseminate, transmit, or cause to be disseminated or transmitted by means
of a wire, radio, satellite, telecommunication, telecommunications device,
or telecommunications service any writing, data, sign, signal, picture,
sound, or image with purpose to execute or otherwise further the scheme to
defraud.
R.C. 2913.05(A).
{¶52} Finally, appellant was convicted of possessing criminal tools. This is
defined in pertinent part, stating, “[n]o person shall possess or have under the person’s
control any substance, device, instrument, or article, with purpose to use it criminally.”
R.C. 2923.24(A).
{¶53} Appellant does not attack the individual elements of any given conviction,
but claims that there is insufficient evidence on all convictions because the evidence
adduced at trial demonstrated that codefendant Jonnell George was the actual perpetrator
of these crimes. This argument ignores volumes of evidence introduced at trial. The
evidence seized from appellant’s home, the testimony of codefendants that pointed to
both appellant and George as the contacts through which they received checks to cash,
and the surveillance evidence of appellant driving with people or meeting people at
various locations with banking institutions where fraudulent checks were cashed or
attempts to cash checks were made at that time. Many of those people testified about
their contact with appellant and George.
{¶54} The testimony adduced at trial demonstrated that appellant conspired with
others to engage in a scheme to defraud various businesses and financial institutions by
creating counterfeit payroll checks and having people that were in desperate need for
money use their real names to cash those checks. For instance, Jovan Blackwell
identified appellant in court as the individual from which he received fraudulent checks.
Appellant drove Blackwell to banks in Willoughby and Mayfield, and Blackwell cashed
checks made out from Target Staffing and Executive Caterers accounts. Blackwell then
split the money with appellant. Those checks, along with surveillance photos
documenting the trips, were submitted by the state as exhibits at trial.
{¶55} Bohanan, appellant’s source of financial account information, also testified
that appellant paid him for this information.
{¶56} In total, nine codefendants testified about their interactions with appellant,
George, or both. Appellant attempts to attack the veracity of these witnesses’ testimony
because they were testifying as part of plea agreements, or through minor inconsistencies
in that testimony. The overwhelming weight of evidence, including all the machinations
of appellant’s criminal enterprise found in the basement office of his residence,
demonstrates that appellant’s convictions are not against the manifest weight of the
evidence and are supported by sufficient evidence.
{¶57} Appellant’s third assignment of error is overruled.
D. Ineffective Assistance of Counsel
{¶58} In his supplemental assignment of error, appellant argues that counsel was
ineffective for not properly investigating witnesses, seeking to suppress the results of a
search of appellant’s computer based on a lack of jurisdiction, and seeking to suppress the
contents of phone records obtained after a search of cell phones found in appellant’s car
after he was arrested.
{¶59} A claim of ineffective assistance of counsel requires a defendant to show
that (1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 327, 731 N.E.2d 645 (2000),
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The defendant must show that there exists a reasonable probability that, were it
not for counsel’s errors that rendered performance constitutionally deficient, the results of
the proceeding would have been different. State v. White, 82 Ohio St.3d 16, 23, 693
N.E.2d 772 (1998).
{¶60} In evaluating a claim of ineffective assistance of counsel, a court must give
great deference to counsel’s performance. Strickland at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th
Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
{¶61} First, appellant claims that it was incumbent on trial counsel to interview the
original codefendant that pointed Det. Duffy and Det. Witalis in appellant’s direction.
Appellant claims there is no police report or other information to corroborate statements
made by these detectives during the suppression hearing that D.H. provided any evidence
against appellant. In fact, appellant argues that the identification of D.H.’s contact as
“Ike” and the fact that the phone number she provided did not belong to appellant
constitutes exculpatory evidence that the state was required to turn over in discovery.
{¶62} This court does not have in the record before it what evidence was or was
not exchanged in discovery. But we do know that police reports documenting the
contents of D.H.’s statements to police were introduced at the suppression hearing. This
court has already determined that the omissions appellant raises, when included in the
overall information provided to the municipal court judge, still provide a valid basis to
obtain cell phone records. Therefore, there is no likelihood of a different result had this
information been more thoroughly explored in the suppression hearing. Further,
corroboration did exist in D.H.’s statements to police in the form of police reports and the
car she identified as appellant’s.
{¶63} Within this argument, appellant goes on for several pages documenting
alleged failings that bear no relation to anything that would be in the record before this
court. Therefore, we cannot address them. The specific arguments include appellant
asserting that trial counsel was ineffective for failing to investigate the circumstances
surrounding a May 7, 2015 affidavit of Det. Witalis. The search warrant affidavits were
addressed above and there is no indication that additional investigation would have led to
a finding that the warrant lacked probable cause. Further, these issues with the search
warrants were never raised or properly argued at the suppression hearing. This would
constitute a better argument for ineffective assistance of counsel, but it is not advanced
here.
{¶64} Appellant also argues that trial counsel was deficient when he failed to seek
the suppression of evidence obtained from the search of appellant’s computer that was
recovered during the search of his home. Appellant claims the search warrant for a
search of the computer was issued by a Summit County common pleas court judge who
did not have jurisdiction in the case. Appellant directs this court’s attention to a search
warrant and affidavit that does not exist in our record. This court cannot determine the
validity of any aspect of this argument.
{¶65} Finally, appellant argues counsel was ineffective for failing to seek the
suppression of evidence recorded from the search of three cell phones recovered from
appellant’s car. Appellant argues that the search of these cell phones was conducted
without a warrant and should have been suppressed. Again, however, there is nothing in
this court’s record that would substantiate that claim.
{¶66} Appellant’s final assignment of error is overruled.
III. Conclusion
{¶67} The trial court properly denied appellant’s motions to suppress on the issues
that were raised and argued at the suppression hearing. Those that were not maintained
or raised by appellant, pro se, do not constitute reversible error here. Appellant’s
convictions are supported by sufficient evidence and are not against the manifest weight
of the evidence.
{¶68} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR