State v. Calimeno , 2013 Ohio 1177 ( 2013 )

[Cite as State v. Calimeno, 2013-Ohio-1177.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98376
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANGEL CALIMENO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-555340
BEFORE: Celebrezze, P.J., Rocco, J., and McCormack, J.
RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEY FOR APPELLANT
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Andrew Rogalski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Angel Calimeno, appeals from his convictions in the
Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred in
denying his motion to suppress evidence, that his convictions are not supported by legally
sufficient evidence, and that his convictions are against the manifest weight of the
evidence. After careful review of the record and pertinent case law, we affirm.
{¶2} On October 12, 2011, appellant and codefendant, Rafael Perez, were indicted
for the crimes of burglary in violation of R.C. 2911.12(A)(2), a felony of the second
degree; theft in violation of R.C. 2913.02(A)(1), a felony of the fourth degree; and
vandalism in violation of R.C. 2909.05(A), a felony of the fifth degree.
{¶3} Prior to trial, appellant sought the suppression of evidence seized by the West
Tennessee Violent Crime and Drug Task Force in connection with a traffic stop of a
vehicle driven by appellant on October 9, 2011. The trial court held a suppression
hearing on January 6, 2012, and heard testimony from two witnesses — Special Agent
John Carter of the West Tennessee Violent Crime and Drug Task Force and Detective
James Lobenthal of the Brecksville Police Department. On January 9, 2012, the trial
court denied the motion in regard to the physical evidence seized by the West Tennessee
Violent Crime and Drug Task Force, ruling that the stop and search was constitutional.
The trial court did, however, rule that any inculpatory statements made by appellant after
he was under custodial interrogation would be excluded from trial.
{¶4} Appellant’s jury trial commenced on April 10, 2012. The following
evidence was adduced at trial. At approximately 10:00 a.m. on October 9, 2011, Officer
John Carter of the West Tennessee Violent Crime and Drug Task Force was patrolling
Interstate 40 in Tennessee. While monitoring westbound traffic from a stationary
position, Officer Carter observed a silver Toyota crest a hill in the fast lane and abruptly
switch lanes behind an 18-wheeler truck without using a turn signal. Officer Carter
pulled out onto the highway and caught up with the Toyota. While following the Toyota,
Officer Carter observed it inch closer behind the 18-wheeler until it was “less than a car
length or right at a car length” behind the truck while traveling approximately 60 miles
per hour. Based on these perceived traffic infractions, Officer Carter executed a traffic
stop of the Toyota.
{¶5} Officer Carter approached the passenger side of the Toyota to advise the
occupants of the basis of his stop and to request the driver’s license, registration, and
proof of insurance. He identified appellant as the driver of the vehicle and codefendant
Perez as the front-seat passenger. He testified that appellant immediately appeared to be
nervous. He explained that appellant’s voice quivered when he responded to inquiries
and that his hands were shaking. Officer Carter described the vehicle as having a “lived
in look” based on the trash on the floorboards and a bucket of change in the back seat.
When asked, appellant provided Officer Carter with a rental car contract, which stated
that the vehicle was rented to a non-present third-party named Omar Reyes Ortega and
was due back in Texas by October 6, 2011, three days prior to the stop.
{¶6} At that time, Officer Carter asked appellant to step outside the vehicle, where
he questioned appellant about his travel plans and history, about Perez, and whether there
was anything illegal in the vehicle. When asked about whether the vehicle contained
large sums of money, appellant was reluctant to answer before responding “no.” Officer
Carter then repeated the same routine questions to Perez. Officer Carter testified that
appellant and Perez provided conflicting accounts of where they had traveled from and
did not know each other’s last names. Additionally, Perez stated that he had
approximately two thousand dollars in his wallet. Based on his experience, observations,
and the responses of appellant and Perez, Officer Carter suspected that the occupants may
have been engaged in some further criminal activity. Officer Carter returned to his
vehicle to call for backup.
{¶7} Thereafter, Officer Carter requested appellant’s consent to search the vehicle
using a standard consent-to-search form. Officer Carter testified that appellant consented
to the search and signed the form without hesitation. Having obtained voluntary consent,
Officer Carter searched the vehicle and located the following items: $11,434 in cash; a
bucket of coins and coin wrappers; a large stack of foreign currency; several pieces of
women’s jewelry; four cell phones; a Home Depot receipt; two pieces of paper with
handwritten lists of names and locations of Chinese restaurants throughout various cities
in northeast Ohio; a GPS device; and an old bank deposit slip of Broadview Heights,
Ohio, resident Jennie Wee.
{¶8} Based on the items recovered from appellant’s vehicle, Officer Carter
contacted the Broadview Heights Police Department and learned that Jennie Wee lived in
Brecksville, Ohio, and owned a Chinese restaurant. Officer Carter photographed the
items recovered from appellant’s vehicle and emailed the photos to Detective James
Lobenthal of the Brecksville Police Department. Subsequently, Det. Lobenthal flew to
Memphis, Tennessee, to retrieve the evidence discovered in appellant’s vehicle.
{¶9} Officer Michael John Bauman of the Brecksville Police Department testified
that on October 9, 2011, he was dispatched to investigate the residence of Jennie Wee.
Officer Bauman testified that on arriving at the Wee residence, he knocked on the front
door and received no response. While examining the perimeter of the residence, Officer
Bauman observed a red purse on a paved walkway in the backyard and detected a
shattered rear window. Believing a potential home invasion had occurred, Officer
Bauman radioed for additional units to respond. Thereafter, Brecksville police entered
the residence through the broken window and discovered that the home had been
“ransacked.” Officer Bauman further testified that there was significant damage to the
master bedroom, including large “ruts or grooves” in the wooden floor.
{¶10} Using the Home Depot receipt recovered from appellant’s vehicle, the
Brecksville police obtained video evidence from a Home Depot in Macedonia, Ohio.
The surveillance video captured two adult males, including an individual matching
appellant’s general description, purchasing three pieces of wrecking equipment
(construction-type pry bars) at 8:51 p.m. on October 8, 2011. Significantly, Officer
Carter confirmed that the Home Depot receipt recovered from appellant’s vehicle
memorialized the purchase of three pieces of wrecking equipment at the Macedonia store
location at 8:51 p.m. on October 8, 2011.
{¶11} Additionally, Officer Bauman testified that appellant’s GPS device led the
Brecksville police to a Motel 6 in Richfield, Ohio. Officer Bauman made contact with
the hotel manager, Drushar Shah, and discovered that a room had been rented to Omar
Reyes Ortega, the individual identified on the Toyota’s rental agreement, on two
consecutive nights — October 7 and October 8. During the course of his investigation,
Officer Bauman searched a large construction dumpster located near the hotel room
rented to Ortega. Inside the dumpster, Officer Bauman discovered numerous articles and
documents belonging to Ms. Wee, including photographs, receipts, tax documents, credit
cards, mail, social security cards, and a passport. Subsequently, officers recovered the
Wees’ safe from a wooded area just miles from the Motel 6.
{¶12} Motel 6 employee Eric Nimon testified that he witnessed three individuals
in the rented room that weekend and described them as “African American or
dark-complexioned Mexicans.” He saw them go in and out of the room on several
occasions and noticed a silver or grey sedan parked outside the room.
{¶13} Jennie Wee testified that she lives at the residence on Hunting Valley Lane
in Brecksville, Ohio, with her husband and two children and owns and operates Frankie’s
Wok, a Chinese restaurant. Mrs. Wee testified that on Saturday, October 8, she and her
family went out of town for the day. Mrs. Wee testified that prior to leaving, she asked
her friend Rudy Mandinec to mow her grass while she and her family were away, and he
agreed to do this. When they left, all doors and windows were locked and no one was
given permission to enter the residence. Mrs. Wee testified that she was contacted by the
Brecksville Police on October 9, 2011, at approximately 4:00 p.m. and immediately
returned home. Mrs. Wee testified that her home was in disarray, and the safe previously
located in her bedroom closet was missing. According to Mrs. Wee, the safe contained
approximately “17 to 18,000 in cash” including many two-dollar bills, various items of
jewelry, tax papers, social security cards, foreign currency, wrapped coins, and receipts.
Subsequently, Mrs. Wee confirmed that the items recovered from appellant’s vehicle
and the Motel 6 dumpster belonged to her. Finally, Mrs. Wee testified that the substantial
damage to her property required her to pay a $1,000 deductible to her insurance company
and resulted in approximately $14,000 in repairs.
{¶14} At the conclusion of trial, the jury found appellant guilty on all counts. On
May 11, 2012, the trial court held a sentencing hearing and ordered appellant to pay
restitution in the amount of $1,000 and serve an aggregate three-year term of
imprisonment.
{¶15} Appellant now brings this timely appeal, raising two assignments of error
for review.
Law and Analysis
I. Manifest Weight and Sufficiency of the Evidence
{¶16} In his first assignment of error, appellant argues that his convictions are
against the manifest weight of the evidence and are not supported by sufficient evidence.
{¶17} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶18} “A manifest weight challenge, on the other hand, questions whether the
prosecution met its burden of persuasion.” State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356(1982). The manifest weight of the evidence standard of review requires us to 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. State v. Otten, 33 Ohio App.3d 339, 515
N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary power to
grant a new trial should be exercised only in exceptional cases where the evidence weighs
heavily against the conviction. Thompkins, supra.
{¶19} We are mindful that the weight to be given the evidence and the credibility
of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has
the authority to “believe or disbelieve any witness or accept part of what a witness says
and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).
{¶20} In the instant case, appellant was convicted of burglary under R.C.
2911.12(A)(2), which provides in pertinent part:
[n]o person, by force, stealth, or deception, shall * * * trespass in an
occupied structure * * * that is a permanent or temporary habitation of any
person when any person other than an accomplice of the offender is present
or likely to be present, with purpose to commit in the habitation any
criminal offense[.]
{¶21} Appellant was also convicted of theft in violation of R.C. 2913.02(A)(1),
which provides that “[n]o person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or services * * *
[w]ithout the consent of the owner or person authorized to give consent[.]”
{¶22} Finally, appellant was convicted of vandalism in violation of R.C.
2909.05(A), which states that “[n]o person shall knowingly cause serious physical harm
to an occupied structure or any of its contents.” “Serious physical harm” means
“physical harm to property that results in loss to the value of the property of one thousand
dollars or more.” R.C. 2909.05(F)(2).
{¶23} In challenging the sufficiency of the evidence supporting his convictions,
appellant relies solely on his broad contention that the state failed to present any direct
evidence to establish that he was the individual who unlawfully entered the Wee
residence. Appellant submits that it is not sufficient to stack inference upon inference in
order to reach the conclusion that he was present in the Wee residence at the time the
alleged offenses were committed. Thus, appellant argues that “at best, the evidence at trial
might have supported a conviction for receiving stolen property, but certainly not for the
other charged offenses.” For the following reasons, we disagree.
{¶24} Although the state’s case depends on circumstantial evidence, it is well
established that circumstantial evidence carries the same weight as direct evidence and
“is sufficient to sustain a conviction if that evidence would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d
101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231,
238, 553 N.E.2d 1026 (1990). See also State v. Walker, 55 Ohio St.2d 208, 212, 378
N.E.2d 1049 (1978); State v. Nevius, 147 Ohio St. 263, 274-275, 71 N.E.2d 258 (1947).
Indeed, the body or substance of a crime “may be established by circumstantial evidence
where the inference of the happening of the criminal act complained of is the only
probable or natural explanation of the proven facts and circumstances.” Nevius at
paragraph five of the syllabus. In fact, circumstantial evidence may, at times, be “more
certain, satisfying and persuasive than direct evidence.” State v. Lott, 51 Ohio St.3d 160,
167, 555 N.E.2d 293 (1990).
{¶25} In the case subjudice, the state presented sufficient evidence to support the
jury’s determination that appellant committed the offenses of burglary, theft, and
vandalism. The evidence and testimony presented at trial demonstrated that on the
evening of October 8, 2011, the Wee residence was unlawfully entered through a broken
back window. As a result of the burglary, the Wee residence was “ransacked” and
suffered significant property damage. Additionally, various personal documents and items
were taken from the residence, including a large safe previously located in the Wees’
bedroom closet. According to Mrs. Wee, the safe contained approximately $17,000 to
$18,000 in cash including many two-dollar bills, various items of jewelry, tax papers,
social security cards, foreign currency, wrapped coins, receipts, and other paperwork.
{¶26} Subsequently, appellant’s vehicle was stopped by Officer Carter in western
Tennessee at approximately 10:00 a.m., or less than 24 hours after the Wee residence was
unlawfully entered. Following the lawful detention and subsequent search of appellant’s
vehicle, Officer Carter discovered $11,434 in cash and various documents, articles, and
pieces of property belonging to the Wees. Mrs. Wee later confirmed that the items
recovered from appellant’s vehicle belonged to her and were previously located inside her
safe. See State v. Bice, 12th Dist. No. CA2008-10-098, 2009-Ohio-4672, ¶ 31 (“the
unexplained possession of recently stolen property may give rise to a permissible
inference from which a jury may conclude, beyond a reasonable doubt, that the accused is
guilty of burglary or theft”).
{¶27} In addition to the evidence retrieved from appellant’s vehicle, further
investigation by the Brecksville Police Department led officers to a Home Depot in
Macedonia, Ohio, where they discovered video images of two dark-complexioned males
purchasing three pieces of wrecking equipment at 8:51 p.m. The time, date, and materials
purchased matched the Home Depot receipt discovered inside appellant’s vehicle, thereby
indicating that appellant was in Northeast Ohio at the time the Wee residence was
unlawfully entered. Furthermore, appellant’s GPS device led officers to a Motel 6 in
Richfield, Ohio, where officers learned that Omar Reyes Ortega had rented a room on two
consecutive nights — October 7 and October 8. Motel 6 employee Eric Nimon testified
that he witnessed a silver or grey sedan outside the room and Ortega with two individuals
who matched appellant’s and Perez’s descriptions. Finally, Officer Bauman testified that
he retrieved numerous paper documents belonging to Mrs. Wee from the dumpster
located just outside the motel room rented to Ortega.
{¶28} Collectively, the circumstantial evidence adduced at trial, coupled with
appellant’s undisputed possession of Jennie Wee’s recently stolen property, permitted the
jury to conclude that appellant unlawfully entered the Wee residence and committed the
alleged offenses once inside. Construing this evidence and the reasonable inferences
therefrom in a light most favorable to the state, as we must, a rational trier of facts could
find all of the essential elements of burglary, theft, and vandalism.
{¶29} Furthermore, we are unable to conclude that this is the exceptional case in
which the evidence weighs heavily against appellant’s convictions. The jury, as the trier
of fact, was in the best position to weigh the credibility of the witnesses and was free to
find the testimony of the state’s witnesses to be credible. The testimony presented by the
state’s witnesses was consistent and provided a causal link between the unlawful entry
into the Wee residence on October 8, 2011, and appellant’s arrest in western Tennessee
on October 9, 2011. Deferring to the jury’s assessment of the credibility of the witnesses,
as we must, we cannot say that the trier of fact lost its way and performed a miscarriage
of justice in convicting appellant of burglary, theft, and vandalism.
{¶30} Appellant’s first assignment of error is overruled.
II. Motion to Suppress Evidence
{¶31} In his second assignment of error, appellant argues that the trial court erred
when it denied his motion to suppress.
{¶32} Appellate review of the denial of a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court assumes the role
of trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d 545, 552,
1995-Ohio-104, 651 N.E.2d 965; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972(1992).
{¶33} Consequently, when reviewing a ruling on a motion to suppress, deference
is given to the trial court’s findings of fact so long as they are supported by competent,
credible evidence. Burnside at ¶ 8. However, an appellate court reviews de novo
whether the trial court’s conclusions of law, based on those findings of fact, are correct.
State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034 (4th Dist.1995).
{¶34} We find that the trial court’s findings of fact were supported by competent
and credible evidence. Accordingly, we turn to the constitutionality of the search and
seizure.
{¶35} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Searches conducted outside the judicial process, by
officers lacking a prior judicial warrant, are per se unreasonable and subject to a few
specifically established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). One of those exceptions is the rule regarding investigative stops
announced in Terry. Under Terry, police officers may briefly stop and/or temporarily
detain individuals in order to investigate possible criminal activity if the officers have a
reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin, 2d
Dist. No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry, supra. Thus, a police officer may
lawfully stop a vehicle, motorized or otherwise, if he has a reasonable, articulable
suspicion that the operator has engaged in criminal activity, including a minor traffic
violation. See State v. Buckner, 2d Dist. No. 21892, 2007-Ohio-4329, ¶ 8. Moreover, the
stop is constitutionally valid regardless of the officer’s underlying subjective intent or
motivation for stopping the vehicle in question. Dayton v. Erickson, 76 Ohio St.3d 3,
1996-Ohio-431, 665 N.E.2d 1091.
{¶36} In evaluating the facts and inferences supporting the stop, a court must
consider the totality of the circumstances as “viewed through the eyes of a reasonable and
cautious police officer on the scene, guided by his experience and training.” State v.
Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988). Thus, “if the specific and
articulable facts available to an officer indicate that a driver may be committing a
criminal act, which includes the violation of a traffic law, the officer is justified in
making an investigative stop.” Euclid v. Jones, 8th Dist. No. 97868, 2012-Ohio-3960, ¶
16, citing State v. Hoder, 9th Dist. No. 03CA0042, 2004-Ohio-3083, ¶ 8.
{¶37} Under Tennessee law, it is impermissible to follow another vehicle more
closely than is reasonable. Section 55-8-124 of the Tennessee Code specifies that: “(a)
The driver of a motor vehicle shall not follow another vehicle more closely than is
reasonable and prudent, having due regard for the speed of the vehicles and the traffic
upon and the condition of the highway.”
{¶38} Here, the evidence presented at the suppression hearing established that
Officer Carter observed appellant’s vehicle “shift or jerk from the fast lane into the slow
lane of the highway behind a tractor trailer” and then proceed to follow “too close or at an
unsafe distance behind the tractor trailer.” Under these circumstances, we agree with the
trial court that Officer Carter had reasonable suspicion to conduct an investigatory stop of
appellant. Accordingly, regardless of the officer’s motivation, the initial stop was lawful
based on the observed traffic violation.
{¶39} Having established that the initial seizure of appellant was constitutional,
our inquiry turns to the circumstances following the stop. Generally, “the duration of the
detention should be limited to the time necessary to make the traffic stop and issue a
citation.” State v. Foster, 87 Ohio App.3d 32, 40, 621 N.E.2d 843 (2d Dist.1993). “The
lawfulness of the initial stop will not support a ‘fishing expedition’ for evidence of
crime.” State v. Dieckhoner, 8th Dist. No. 96694, 2012-Ohio-805, ¶ 13. However,
[i]f during the initial valid detention of a motorist, a police officer notices
additional specific and articulable facts that give rise to a reasonable
suspicion of criminal activity beyond that which prompted the stop, then the
officer may further detain the motorist and conduct a more in-depth
investigation, including a request for consent to search.
State v. Studley, 2d Dist. No. 2010 CA 81, 2011-Ohio-5563, ¶ 57.
{¶40} “In deciding whether a reasonable suspicion exists, courts must examine the
‘totality of the circumstances’ of each case to determine whether the detaining officer has
a ‘particularized and objective basis’ for suspecting legal wrongdoing.” State v.
Spindler, 4th Dist. No. 01CA2624, 2002-Ohio-2037, quoting United States v. Arvizu, 534
U.S. 266, 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
{¶41} In forming a reasonable, articulable suspicion, law enforcement officers may
“draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that might well elude an
untrained person.” (Citations omitted.) State v. Troutman, 3d Dist. No. 9-11-17,
2012-Ohio-407, ¶ 25, quoting Arvizu at 273-274. Therefore, determining whether the
officer’s actions were justified depends on the totality of the circumstances, which must
“be viewed through the eyes of the reasonable and prudent police officer on the scene
who must react to the events as they unfold.” State v. Andrews, 57 Ohio St.3d 86, 87,
565 N.E.2d 1271 (1991).
{¶42} Based on the distinctive combination of factors present in this case, we find
that Officer Carter had a reasonable, articulable suspicion to further detain appellant.
The facts presented at the suppression hearing demonstrated that, while conducting the
traffic stop, Officer Carter learned additional information and observed behavior that
raised a reasonable suspicion of criminal activity beyond the initial traffic stop and
warranted further investigation. These “specific and articulable facts” included the
contents of the vehicle, appellant’s nervousness, the inconsistent factual accounts given
by appellant and Perez, and, most importantly, the fact that neither appellant’s nor Perez’s
name appeared on the rental agreement.
{¶43} We recognize that some courts have held that general nervousness is not
indicative of criminal conduct. See State v. Ferrante, 196 Ohio App.3d 113,
2011-Ohio-4870, 962 N.E.2d 383 (2d Dist.); but see State v. Christopher, 12th Dist. No.
CA2009-08-041, 2010-Ohio-1816, ¶ 26 (“Ohio courts have held that ‘[n]ervous, evasive
behavior is a pertinent factor in determining reasonable suspicion’”). However, in the
instant case, appellant’s suspicious behavior was coupled with inconsistent answers to
basic questions and the unauthorized operation of a vehicle rented to a non-present third
party. Thus, the totality of the facts herein would cause more than a mere inchoate hunch
or unparticularized suspicion in a reasonable police officer.
{¶44} Accordingly, we conclude that the totality of the circumstances, combined
with rational inferences that can be drawn from the situation, provided Officer Carter
with reasonable suspicion to lawfully continue appellant’s detention in order to further
investigate the matter.
{¶45} As to the subsequent search, we note that a recognized exception to the
Fourth Amendment’s warrant requirement is a search conducted based on consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The
state must prove that the consent was freely and voluntarily given, as demonstrated by a
totality of the circumstances. Id. The essential question is whether the consent was
voluntary or the product of express or implied duress or coercion, as determined from
the totality of the circumstances. Id. at 227.
{¶46} The standard for measuring the scope of consent under the Fourth
Amendment is objective reasonableness, i.e., what a typical reasonable person would
have understood by the exchange between the officer and the suspect. Florida v. Jimeno,
500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “Police officers act in full
accord with the law when they ask citizens for consent.” United States v. Drayton, 536
U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).
{¶47} In this matter, the evidence presented at the suppression hearing
demonstrated that appellant voluntary consented to the search of his vehicle. It is
undisputed that appellant gave his consent “without reserve or hesitation” and signed a
consent form that stated, in relevant part, “I further understand that my consent is freely
and voluntarily given with the right to refuse and without any threats, coercion, or
promises of immunity by any agent of the West Tennessee Judicial Violent Crime and
Drug Task Force.” Moreover, there is no indication in the record to support appellant’s
position that the police-dominated atmosphere negated the voluntary nature of his
consent. Thus, based on the circumstances of the instant case, we find the trial court
properly determined that Officer Carter obtained appellant’s voluntary consent before
performing the search.
{¶48} Appellant’s second assignment of error is overruled.
{¶49} Based on the foregoing, we affirm appellant’s convictions and the trial
court’s denial of appellant’s motion to suppress evidence seized from his vehicle.
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., PRESIDING JUDGE
KENNETH A. ROCCO, J., and
TIM McCORMACK, J., CONCUR