State v. Kubat , 2015 Ohio 4062 ( 2015 )

[Cite as State v. Kubat, 2015-Ohio-4062.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-13-046
Appellee Trial Court No. 12CR1069
v.
Thomas E. Kubat DECISION AND JUDGMENT
Appellant Decided: September 30, 2015
*****
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney,
and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Andrew R. Mayle, Jeremiah S. Ray and Ronald J. Mayle,
for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from the denial in part of appellant Thomas Kubat’s
motion to suppress evidence seized as a result of the execution of three search warrants
issued against him, and from the sentence imposed on his conviction of five counts of
unlawful sexual conduct with a minor following a plea of no contest. For the reasons that
follow, the judgment of the trial court is affirmed in part and vacated in part.
{¶ 2} The undisputed facts relevant to the issues raised on appeal are as follows.
On July 17, 2012, the Sandusky County Sheriff’s Office received a call reporting possible
sexual assault on the caller’s minor daughter (“victim”). Responding officers spoke to
the victim and her mother. The victim, then age 14, reported having a sexual relationship
with appellant, then 33 years old, since August or September 2011. She reported that
most of the conduct occurred in a pole barn located at appellant’s residence but that some
took place in local motels. The most recent activity occurred on July 15 and 16, 2012.
The victim also reported that, on multiple occasions, appellant had told her to send him
nude photographs of herself using a cell phone he provided her, which she did. The
victim provided officers with appellant’s full name and stated that appellant sometimes
picked her up at her home in a black Dodge Durango or a small silver vehicle.
{¶ 3} The following day, July 18, 2012, two search warrants were prepared and
signed by a judge for the purpose of searching appellant’s home and obtaining a DNA
specimen. The body of the first warrant contained a six-paragraph summary of specific
allegations supporting probable cause for a search of appellant’s residence. The body of
the second warrant contained additional allegations relating to the victim having
submitted to a rape kit with DNA swabs collected. Both warrants described a “black and
plaid blanket” upon which appellant and the victim had engaged in sexual intercourse
multiple times.
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{¶ 4} On August 16, 2012, a third warrant was prepared and signed by the judge.
The warrant ordered a forensic examination of the computer systems seized pursuant to
the July 18 warrant. This warrant was to expire pursuant to its terms on October 16,
2012. The search was to be performed by Detective Dec with the forensic unit of the
Toledo Police Department. The record reflects that Detective Dec submitted his report
on January 21, 2013, over three months later than the expiration date specified in the
warrant.
{¶ 5} On September 12, 2012, appellant was indicted on 11 counts of unlawful
sexual conduct with a minor in violation of R.C. 2907.04(A)(3) and 11 counts of rape in
violation of R.C. 2907.02(A)(2). Appellant entered pleas of not guilty and was released
on personal recognizance with the requirement that he wear a GPS unit. On February 8,
2013, the indictment was amended to reflect three counts of pandering obscenity
involving a minor in violation of R.C. 2907.321(A)(1) and 13 counts of unlawful sexual
conduct with a minor. Appellant again entered pleas of not guilty to all counts.
{¶ 6} On March 15, 2013, appellant moved to suppress all evidence seized as a
result of the three warrants. As to the first warrant, prepared by Detective David Meyer,
appellant asserted that it was deficient in several respects. First, appellant argued that the
affidavit gave no indication how the affiant officer concluded that the address identified
as 2819 Buchanan Road, Fremont, Ohio, was associated with appellant or why the affiant
believed the items listed would probably be located at that address. Appellant asserted
that omission alone would invalidate the warrant under our decision in State v. Wildman,
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185 Ohio App. 3d 346, 2009-Ohio-6986, 923 N.E.2d 1240 (6th Dist.). Additionally,
appellant argued that there was no showing that evidence of the crimes under
investigation would be found inside any of the computer or electronic devices listed.
Appellant also asserted that there was no showing in the affidavit that appellant owned
any of the devices listed and no showing of probable cause that the items were kept at the
Buchanan Road address. Finally, as to the first warrant, appellant noted that a sleeping
bag was seized when the affidavit listed a blanket.
{¶ 7} Next, appellant asserted that officers took a DNA swab without a warrant to
do so but that “if there was a warrant,” it failed to specify why appellant would be found
at the Buchanan Road address, which is where the buccal swab was taken. Finally,
appellant asserted as to the computer equipment seized that the search occurred outside
the 60-day window and was therefore a warrantless search.
{¶ 8} A hearing was held on the motion on April 25, 2013. By judgment entry
filed May 13, 2013, the trial court granted the motion to suppress as to the warrant to
search appellant’s computer equipment based on the expiration of the time limit set forth
in the warrant. As to the first two warrants, the motion to suppress was denied. The trial
court stated that, in analyzing those warrants, it made its decision based on “practical
common sense” that there was a fair probability contraband or other evidence of a crime
would be found at the Buchanan Road address. The trial court noted that the victim
described sexual intercourse which had occurred with appellant on a plaid and black
blanket in the pole barn located at appellant’s residence and at other locations. The trial
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court found that the affidavits upon which the warrants were based contained adequate
information regarding the circumstances giving rise to the officers’ beliefs that evidence
or contraband would be found at that address. Further, the trial court noted that the
defendant’s address had been verified pursuant to a LEADS search and the information
passed on to the affiant. The trial court also stated that the affiant noted the presence at
the residence of appellant’s vehicle according to the information given him by the
department. The trial court concluded that there was a sufficient showing in the four
corners of the affidavit for the issuing judge to find the existence of probable cause.
{¶ 9} On October 17, 2013, appellant entered pleas of no contest to five counts of
unlawful sexual conduct with a minor (Counts 5, 6, 13, 14 and 15 of the indictment), all
third-degree felonies in violation of R.C. 2907.04(A)(3). The pleas were accepted and
appellant was adjudged guilty. On December 4, 2013, appellant was sentenced to five
years imprisonment on each count. The trial court ordered the sentences for Counts 5 and
6 to be served concurrently. Counts 13, 14 and 15 were ordered served concurrently and
consecutive to the sentence for Counts 5 and 6, for an aggregate term of ten years.
{¶ 10} In support of his appeal, appellant sets forth the following four assignments
of error:
I. First assignment of error: Because the affidavit underlying the
applicable search warrant failed to explain how appellant’s address was
obtained or confirmed – and therefore failed to provide the factual basis for
the affiant’s belief that contraband would be located at that place – the trial
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court erred in not suppressing all items seized during execution of the
search warrant at appellant’s home.
II. Second assignment of error: The lead investigator’s affidavit in
support of the DNA search warrant failed to factually justify the bodily
intrusion upon appellant and therefore the trial court erred in failing to
suppress the buccal swab taken by police from appellant’s mouth.
III. Third assignment of error: The trial court’s consecutive
sentence was unlawful because the court never found that a consecutive
sentence would not be disproportionate to either the seriousness of the
appellant’s conduct or the danger appellant poses to the public.
IV. Fourth assignment of error: The trial court erred in imposing
consecutive sentences upon a finding arising under R.C. 2929.14(C)(4)(b)
because that provision does not apply to this case.
{¶ 11} In support of his first assignment of error, appellant asserts, as he did in his
motion to suppress, that Detective Meyer failed to explain in his affidavit how appellant’s
address was obtained. Appellant argues that the omission compels reversal under this
court’s decision in State v. Wildman, supra. Appellant asserts Wildman holds that a
search warrant affidavit must explain how a residential address sought to be searched was
obtained or confirmed and that, if it does not, suppression is mandatory.
{¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. When considering a motion to suppress, the trial court assumes
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the role of trier of fact and is, therefore, in the best position to resolve factual questions
and evaluate witness credibility. State v. Mills, 62 Ohio St. 3d 357, 366, 582 N.E.2d 972(1992). A disputed motion to suppress judgment supported by competent, credible
evidence must not be disturbed. State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583(1982).
{¶ 13} It is undisputed that the affidavit in this case does not contain language
stating how the officers obtained appellant’s home address—the address contained in the
warrant. However, the affidavit does clearly set forth valuable information provided by
the victim and her mother, which must not be discounted. The affidavit sets forth the
victim’s full name and age. She was 14 at the time the affiant interviewed her—old
enough to reliably report the full name of the person she claimed had sexual intercourse
with her 80 to 100 times for nearly one year, and whom she had known previously.
Affiant stated that he interviewed the minor child’s mother, who advised she found a
credit card issued to Thomas E. Kubat in her daughter’s bedroom. Mother told affiant
that Kubat was the father of one of her daughter’s friends. The detective stated in the
affidavit that he interviewed the victim, who told him that she had been engaging in
sexual conduct with Thomas Kubat since August or September 2011. The victim stated
that most of the conduct occurred in the weight room located in a pole barn at appellant’s
residence. The victim advised that they sometimes used a black and plaid blanket when
they engaged in sexual activity. She further stated that appellant sometimes picked her
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up in a black Dodge Durango or a small silver vehicle. All of the foregoing information
was included in the affidavit.
{¶ 14} Appellant argues that there is a fatal gap in the affidavit’s content. To
argue, however, that without that information there was absolutely no basis upon which
probable cause could be found to search the premises at 2819 Buchanan Road is in this
case unreasonable, especially in light of the aforementioned details provided by the
victim. We note also that appellant does not challenge the victim’s veracity or the basis
of her knowledge.
{¶ 15} “A neutral and detached magistrate may issue a search warrant only upon
the finding of probable cause.” State v. Gilbert, 4th Dist. Scioto No. 06CA3055, 2007-
Ohio-2717, ¶ 13, citing United States v. Leon, 468 U.S. 897, 914-915, 104 S. Ct. 3405, 82
L. Ed. 2d 67 (1984); Crim.R. 41(C). In evaluating an affidavit for probable cause, an
issuing magistrate must apply a “totality-of-the-circumstances” test. State v. George, 45
Ohio St. 3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, citing Illinois v.
Gates, 462 U.S. 213, 238-239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The magistrate
must “make a practical, common sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id., quoting Gates at 238-239.
{¶ 16} In George, supra, the Supreme Court of Ohio articulated the standard of
review for a determination of probable cause based on an affidavit in support of a search
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warrant. Pursuant to George, a reviewing court should “ensure that the magistrate had a
substantial basis for concluding that probable cause existed” and should not substitute its
judgment for that of the magistrate. Id. at paragraph two of the syllabus, citing Gates,
supra. Further, the reviewing court “should accord great deference to the magistrate’s
determination of probable cause, and doubtful or marginal cases in this area should be
resolved in favor of upholding the warrant.” Id.
{¶ 17} Having acknowledged the applicable standard of review, we turn to
appellant’s argument that the affidavit was flawed because it did not indicate how
officers located appellant’s address. In support of his claim, appellant relies on our
decision in Wildman, supra, 185 Ohio App. 3d 346, 2009-Ohio-6986, 923 N.E.2d 1240.
In Wildman, this court reviewed the appellant’s claim that the affidavit in support of a
search warrant executed on his home did not satisfy the probable-cause requirement in
part because nothing in the affidavit indicated how his address was obtained or
confirmed. Appellant asserts that Wildman is directly analogous. In Wildman, the
affidavit in support of one of the search warrants failed to set forth that officers
confirmed appellant’s address by running his license plate and driving by the address
where they saw his vehicles. This court concluded that:
[A]lthough the information contained in the affidavit particularly described
the place to be searched, it failed to provide any information as to how
appellant’s address was obtained or confirmed and, therefore, failed to
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provide the factual basis for the affiant’s belief that contraband would be
located at that place. Id. at ¶ 15.
{¶ 18} This court determined in Wildman that the issuing magistrate did not have a
substantial basis for concluding that probable cause existed to search the home for which
the warrant was issued and that the officers’ beliefs that probable cause existed to search
the property was unreasonable. Wildman further stated that an officer’s reliance on a
warrant can be objectively reasonable only if his belief that the affidavit contains facts
sufficient to create probable cause is itself objectively reasonable. Id. at ¶ 19, citing State
v. Klosterman, 114 Ohio App. 3d 327, 323, 683 N.E.2d 100 (2d Dist.1996).
{¶ 19} Upon consideration, we now determine that the decision in Wildman must
be limited to the facts of that particular case. While respectful of our prior decision, we
now apply the relevant law to the specific circumstances and language of the affidavit in
this case. As the United States Supreme Court instructed in George, supra, and Gates,
supra, the appropriate test is essentially a totality of the circumstances test. Additionally,
and most importantly, we emphasize that Wildman does not stand for the sweeping
proposition that in all cases where an affidavit fails to indicate how the address to be
searched was ascertained and determined to be associated with the defendant said
affidavit is flawed and must be suppressed.
{¶ 20} In Leon, supra, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 67, wherein the
United States Supreme Court reversed an appellate court’s decision affirming a grant of
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motions to suppress evidence, the Supreme Court emphasized the importance of applying
the reasonableness standard when a search warrant is challenged. Leon holds:
Suppression remains an appropriate remedy if the magistrate or
judge in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his
reckless disregard of the truth, or if the issuing magistrate wholly
abandoned his detached and neutral judicial role. Nor would an officer
manifest objective good faith in relying on a warrant based on an affidavit
so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. Id. at paragraph one of the syllabus.
{¶ 21} Of course, in some circumstances, an officer will have no reasonable
grounds for believing that a warrant was properly issued. Such is not the case here.
Rather than focus on what was not in the affidavit here, we look at what was contained
therein: appellant’s full name, as provided by the victim, and as seen on the credit card
found in the victim’s bedroom; statements made by the victim alleging 80-100 instances
of sexual conduct with appellant over a period of approximately one year; the victim’s
statements that most of the sexual conduct occurred in the weight room in a pole barn at
appellant’s residence, and the victim’s statement that appellant would sometimes pick her
up in a black Dodge Durango or a small silver vehicle.
{¶ 22} In summary, our decision in Wildman must be interpreted as being limited
to the facts of that case and based on the totality of circumstances which existed therein.
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Further, we find that in this case, based on the information contained in Detective
Meyer’s affidavit as set forth above, the issuing judge had a substantial basis for
concluding, based on the totality of the circumstances, that probable cause existed to
search appellant’s property located at 2819 Buchanan Road, Fremont, Ohio.
Additionally, we find that the officer’s belief that the affidavit contained facts sufficient
to create probable cause was itself objectively reasonable. It certainly would have been a
better practice had the officer explicitly identified the Buchanan Road location as
appellant’s residence and further specified his basis for the identification. Nevertheless,
in considering the totality of the circumstances and in our review of the four corners of
the affidavit, there is a substantial and reliable evidentiary basis to support a reasonable
inference that the listed address on Buchanan Road was appellant’s residence and that the
affiant had received the address from the victim, who was intimately familiar with the
location. See, e.g., State v. Koen, 152 P.3d 1148 (Alaska 2007).
{¶ 23} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 24} In support of his second assignment of error, appellant asserts that the
affidavit in support of the warrant for the DNA search did not factually justify the bodily
intrusion and that the buccal swab taken by police therefore should have been suppressed.
Appellant argues that any reasonable police officer would have known not to rely on the
warrant for the buccal swab for the same reasons explained in connection with his first
assignment of error.
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{¶ 25} Appellant further asserts that Detective Meyer’s affidavit did not state
whether the police had other DNA evidence with which appellant’s DNA profile could be
compared. When asked at the suppression hearing whether the police had in their
possession anything with which to compare appellant’s DNA sample, the detective stated
that they had some of the victim’s clothing, which would be examined by BCI. He
explained the obvious—that if there was DNA found on the clothing it could be
compared to appellant’s DNA sample. Appellant appears to argue, without support, that
the police were not entitled to collect a DNA sample of appellant pursuant to warrant
unless they already had in their possession an identified sample of his DNA from another
source. This argument has no merit.
{¶ 26} The affidavit in support of the warrant stated that “[o]n or about July 18,
2012, [the victim] was transported to the hospital and a rape kit and associated swabs
were obtained.” The fact that any evidence obtained from the rape kit had not yet been
analyzed at the time the warrant was served (that same day) and was not yet available for
comparison should not be used to invalidate the warrant. From his experience as a police
officer, and based on information contained in the affidavit which included the victim’s
description of the 80-100 instances of sexual conduct with appellant Thomas E. Kubat,
Detective Meyer reasonably concluded that probable cause existed to execute a search
warrant and obtain appellant’s DNA sample.
{¶ 27} Accordingly, appellant’s second assignment of error is not well-taken.
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{¶ 28} In his third assignment of error, appellant asserts that his consecutive
sentences were unlawful because the trial court did not find that a consecutive sentence
would not be disproportionate to either the seriousness of appellant’s conduct or the
danger appellant poses to the public.
{¶ 29} R.C. 2953.08(G)(2) specifies two grounds for an appellate court to overturn
the imposition of consecutive sentences: (1) the appellate court, upon its review, clearly
and convincingly finds that “the record does not support the sentencing court’s findings”
under R.C. 2929.14(C)(4); or (2) the sentence is otherwise clearly and convincingly
contrary to law. The appellate court’s standard of review is not whether the sentencing
court abused its discretion. R.C. 2953.08(G)(2).
{¶ 30} While the trial court need not quote the statute verbatim, the R.C.
2929.14(C)(4) findings must be made in the sentencing entry. Furthermore, the findings
that the trial court makes in its sentencing entry must be supported by the record from the
sentencing hearing. R.C. 2953.08(G)(2)(a). Thus, R.C. 2929.14(C)(4) requires that the
trial court make the following findings: (1) that the consecutive sentence is necessary to
protect the public from future crime or to punish the offender; (2) that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct; and (3)
that one of the circumstances listed in R.C. 2929.14(C)(4)(a)-(c) applies.
{¶ 31} Pursuant to R.C. 2929.14(C)(4)(a-c), the trial court must find one of the
following:
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The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to [* * *], or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that the
consecutive sentences are necessary to protect the public from future crime
by the offender. R.C. 2929.14(C)(4).
{¶ 32} Accordingly, pursuant to the first prong of R.C. 2953.08(G)(2), we must
look at R.C. 2929.14(C)(4), which sets forth certain findings that a trial court must make
prior to imposing consecutive sentences. Under R.C. 2929.14(C)(4), the sentencing court
must engage in a three-step analysis and make certain findings as set forth above before
imposing consecutive sentences. State v. Bever, 4th Dist. Washington No. 13CA21,
2014-Ohio-600 (citations omitted).
{¶ 33} While the sentencing court is required to make these findings, it is not
required to give reasons explaining the findings. Bever, supra, at ¶ 17, citations omitted.
However, it must be clear from the record that the sentencing court actually made the
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required statutory findings. Id. A failure to make the findings required by R.C.
2929.14(C)(4) renders a consecutive sentence contrary to law. Id.
{¶ 34} In the case before us, a review of the record reveals that the trial court made
only two of the three findings required under R.C. 2929.14(C)(4) before it imposed
consecutive sentences. The trial court did find that consecutive sentences were necessary
to punish appellant. It also found, pursuant to R.C. 2929.14(C)(4)(b), that “at least two of
the multiple offenses were committed as part of one or more courses of conduct and the
harm caused by two or more of the multiple offenses was so great that no single prison
sentence for any of the offenses committed adequately reflects the seriousness of the
offender’s conduct.” However, the trial court did not find that “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender posed to the public * * *.” See R.C. 2929.14(C)(4).
{¶ 35} Because the trial court did not make all of the R.C. 2929.14(C)(4) findings
on the record prior to imposing consecutive sentences, we find that its imposition of
consecutive sentences was contrary to law. Accordingly, appellant’s third assignment of
error is well-taken.
{¶ 36} Finally, we address appellant’s fourth assignment of error. Appellant
argues that the trial court’s finding pursuant to R.C. 2929.14(C)(4)(b) that at least two of
the multiple offenses were committed as part of one or more courses of conduct was in
error because no two offenses in this case were tied to a common course of conduct; thus,
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appellant asserts, R.C. 2929.14(C)(4)(b) cannot be applied. (R.C. 2929.14(C)(4)(a) and
(c) do not apply here.)
{¶ 37} Appellant has failed to demonstrate how the disputed language in his
sentencing judgment entry was contrary to law—i.e., how at least two of the multiple
offenses of unlawful sexual conduct with a minor (between 80 and 100 separate acts,
according to the victim) committed over a period of a year were somehow not tied to one
or more courses of conduct. There is no evidence in the record to support appellant’s
claim and, accordingly, appellant’s fourth assignment of error is not well-taken.
{¶ 38} Upon consideration of the foregoing, we hereby vacate that portion of the
trial court’s judgment imposing consecutive sentences and remand this matter to the trial
court for resentencing. See State v. Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP-
265 and 13AP-266, 2013-Ohio-5446, ¶ 38 (“[W]hen the trial court fails to articulate the
appropriate findings required by R.C. 2929.14(C)(4), the case is to be remanded for the
trial judge to consider whether consecutive sentences are appropriate under [R.C.
2929.14(C)(4)] and, if so, to enter the proper findings on the record.”). The remainder of
the trial court’s judgment is affirmed. The costs of this appeal shall be shared equally
amongst the parties pursuant to App.R. 24.
Judgment affirmed, in part,
and vacated, in part.
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State v. Kubat
C.A. No. S-13-046
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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