State v. Wheeler

[Cite as State v. Wheeler, 2017-Ohio-4013.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27282
:
v. : T.C. NO. 15-CR-3208
:
ERIC WHEELER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___26th ___ day of _____May_____, 2017.
...........
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLES E. McFARLAND, Atty. Reg. No. 0031808, 338 Jackson Road, New Castle,
Kentucky 40050
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Eric Wheeler appeals his conviction and sentence for
one count of possession of cocaine (twenty grams but less than twenty-seven grams), in
violation of R.C. 2925.11(A) & R.C. 2925.11(C)(4)(d), a felony of the second degree.
-2-
Wheeler filed a timely notice of appeal with this Court on May 13, 2016.
{¶ 2} The incident which forms the basis for the instant appeal occurred on the
night of October 15, 2015, at approximately 10:15 p.m. when Dayton Police Officer Mark
Orick was assisting other officers with the recovery of a stolen vehicle near the
intersection of North Main Street and Parkwood Avenue in Dayton, Ohio. After engaging
in a foot chase of a separate suspect involved in the vehicle theft, Officer Orick began
walking northbound on the west side North Main Street in order to recover some property
the officer discarded during the chase. When he reached the intersection of North Main
Street and Laura Avenue, Officer Orick observed an individual, later identified as the
appellant, Wheeler, standing on the opposite side of North Main Street. Officer Orick
testified that he also observed an unidentified female sitting on the steps of a vacant
house on the same side of North Main Street where he was walking. Officer Orick further
testified that Wheeler and the female subject were the only people he observed in the
vicinity at that time. Officer Orick testified that the area where he was located is a high-
crime area from which the Dayton Police Department receives approximately eighty drug
related complaints on a monthly basis.
{¶ 3} Shortly after observing Wheeler and the female, Officer Orick heard a loud
noise which he immediately identified as a gunshot based upon his training and
experience. Officer Orick testified that gunshot came from the area where Wheeler was
located on North Main Street. Significantly, Officer Orick testified that he recognized the
loud noise as a gunshot because he had been fired upon previously in the line of duty.
After hearing the gunshot, Officer Orick observed the female sitting in the doorway visibly
recoil from the sound. Officer Orick then looked across the street at Wheeler and
-3-
observed that he did not exhibit any surprise or shock at the sound of the gunshot.
Rather, Officer Orick testified that while maintaining eye contact with him, Wheeler began
slowly walking backwards while placing something on the ground with a light throwing
motion.
{¶ 4} Believing that Wheeler fired the gunshot, Officer Orick drew his service
weapon and ordered him to get down on the ground. Wheeler did not comply with Officer
Orick’s order and continued walking backwards. At that point, Sergeant Riegel arrived
at the scene in his cruiser to assist Officer Orick. Together, Officer Orick and Sgt. Riegel
placed Wheeler on the ground and handcuffed him.
{¶ 5} Shortly thereafter, Officer Jason Berger arrived at the scene in his police
cruiser. Officer Berger testified that he also heard the noise that Officer Orick believed
to be a gunshot. While Officer Berger testified that he did not identify the noise as a
gunshot, he admitted that Officer Orick was a great deal closer to Wheeler, and therefore
in a better position to perceive the nature of the threat. Officer Orick and Sgt. Riegel
handed the handcuffed Wheeler off to Officer Berger so that they could check the area
for a gun. We note that the officers did not locate any guns during their search, but did
find a water bottle that Wheeler had placed on the ground while being approached by
Officer Orick.
{¶ 6} Informed by Officer Orick that Wheeler was suspected of having fired a
gunshot, Officer Berger conducted a Terry pat down for his own safety. While patting
Wheeler down, Officer Berger, without any manipulation, immediately felt what he
recognized to be a gel cap used to package and sell heroin in Wheeler’s right front pants
pocket. Officer Berger proceeded to remove the gel cap from Wheeler’s pocket where
-4-
he also discovered two baggies containing crack cocaine. Officer Berger did not recover
any weapons from Wheeler. Officer Berger testified that he placed Wheeler under arrest
and read him his Miranda rights. Thereafter, Wheeler invoked his right to counsel, and
Officer Berger transported him to the Safety Building for processing.
{¶ 7} On October 23, 2015, Wheeler was indicted for one count of possession of
cocaine, a felony of the second degree, and one count of possession of heroin, a felony
of the fifth degree. At his arraignment on November 5, 2015, Wheeler pled not guilty to
the charges contained in the indictment.
{¶ 8} On November 10, 2015, Wheeler filed a motion to suppress all of the physical
evidence obtained by police during Officer Berger’s pat-down on October 15, 2015. A
hearing was held before the trial court on said motion on February 11, 2016. On May
13, 2016, the trial court issued a decision and entry overruling Wheeler’s motion to
suppress.
{¶ 9} On August 25, 2016, Wheeler pled no contest to one count of possession of
cocaine (twenty grams but less than twenty-seven grams), in violation of R.C. 2925.11(A)
& R.C. 2925.11(C)(4)(d), a felony of the second degree. In return for Wheeler’s no
contest plea, the State dismissed the remaining count for possession of heroin. On
September 28, 2016, the trial court sentenced Wheeler to a mandatory two years in prison
and waived payment of the mandatory fine. Wheeler’s judgment entry of conviction was
filed the next day on September 29, 2016.
{¶ 10} It is from this judgment that Wheeler now appeals.
{¶ 11} Wheeler’s first assignment of error is as follows:
{¶ 12} “THE TRIAL COURT ERRED IN RECORDING IN THE TERMINATION
-5-
ENTRY THAT WHEELER HAD PLED GUILTY TO POSSESSION OF COCAINE AND
HEROIN.”1
{¶ 13} In his first assignment, Wheeler contends that the trial court erred since it
characterized his plea as guilty when in fact the plea was no contest. Initially, we note
that the State concedes that the trial court erred in this respect. Although the trial court
did not correctly state in the judgment entry of conviction that Wheeler had
pled no contest, Wheeler has not alleged or demonstrated any prejudice in his sentencing
as a result of this clerical error. State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-
Ohio-3056, ¶ 24.
{¶ 14} It is clear from the record, especially the plea form signed by the parties,
that everyone understood Wheeler was pleading no contest to one count of possession
of heroin. As we recently held in State v. Mayberry, 2014–Ohio–4706, 22 N.E.3d 222, ¶
34 (2d Dist.), when it is necessary for the trial court to correct its sentencing entry, we will
remand the case for correction of the error. Therefore, upon remand, the trial court may
issue a nunc pro tunc order and entry with imposition of sentence that properly identifies
the no contest plea. Redavide at ¶ 24.
{¶ 15} Wheeler’s first assignment of error is sustained.
{¶ 16} Wheeler’s second assignment of error is as follows:
{¶ 17} “THE TRIAL COURT ERRED IN DENYING DEFENDANT WHEELER’S
MOTION TO SUPPRESS THE DISCOVERY OF DRUGS BY OFFICER BERGER.”
1 We note that although the record clearly establishes that Wheeler pled no contest to
one count of possession of cocaine, his judgment entry of conviction incorrectly states
that he pled guilty to the charge. We further note that Wheeler’s first assignment
incorrectly suggests that he was convicted of two charges when in fact one count
(possession of heroin) was dismissed upon a no contest plea to possession of cocaine.
-6-
{¶ 18} In his second and final assignment, Wheeler argues that the trial court erred
when it overruled his motion to suppress. Specifically, Wheeler argues that Officer Orick
did not have a reasonable, articulable suspicion sufficient to justify a brief investigatory
stop to detain and question him concerning his involvement or knowledge of the gunshot
Officer Orick reported to have heard. Wheeler also contends that the pat-down
performed by Officer Berger was limited to searching for weapons. Therefore, Wheeler
asserts that the drugs found in his possession during the pat-down should have been
suppressed.
{¶ 19} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St. 3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8.
At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id. See
also State v. Carter, 72 Ohio St. 3d 545, 552, 651 N.E.2d 965 (1995). 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, citing State
v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982). With respect to the trial court's
conclusions of law, however, our standard of review is de novo; therefore, we must decide
whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124
Ohio App. 3d 706, 710, 707 N.E.2d 539 (4th Dist.1997).
{¶ 20} “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). Investigatory detention, often referred to as a Terry stop,
allows an officer to briefly stop and temporarily detain individuals in order to investigate
-7-
possible criminal activity. State v. Strozier, 172 Ohio App. 3d 780, 2007–Ohio–4575, 876
N.E.2d 1304 (2d Dist.), citing Terry v. Ohio. An investigatory stop does not constitute an
arrest or place the suspect in custody. State v. Jones, 188 Ohio App. 3d 628, 2010-Ohio-
2854, 936 N.E.2d 529, ¶ 16 (10th Dist.). It is well established that “[a]n individual is
subject to an investigatory detention when, in view of all the circumstances surrounding
the incident, by means of physical force or show of authority, a reasonable person would
have believed that he was not free to leave or is compelled to respond to questions.” State
v. Love, 2d Dist. Montgomery No. 23902, 2011–Ohio–1287, ¶ 18, quoting In re D.W., 184
Ohio App. 3d 627, 2009–Ohio–5406, 921 N.E.2d 1114, ¶ 13–16 (2d Dist.).
{¶ 21} During a brief investigatory stop, without placing the suspect in custody or
under arrest, an officer is entitled to ask questions to confirm his suspicions that criminal
activity occurred. During a Terry stop, an officer can ask for identification or sufficient
information to write a citation or to run a background check for outstanding warrants, often
called a “field investigation”. State v. Wortham, 145 Ohio App. 3d 126, 761 N.E.2d 1151
(2d Dist.2001). See also State v. Harrison, 2d Dist. Montgomery No. 25128, 2013–
Ohio–1235.
{¶ 22} Also, during a Terry stop, it is sometimes considered reasonable for the
investigating officer to conduct a “protective search” by patting down the suspect to
discover and remove weapons. State v. Robinette, 80 Ohio St. 3d 234, 685 N.E.2d 762
(1997); State v. Andrews, 57 Ohio St. 3d 86, 89, 565 N.E.2d 1271 (1991). The primary
purpose of a protective search and seizure is to assure public and officer safety.
“Pursuant to Terry, police officers are allowed to perform limited protective searches for
concealed weapons when the surrounding circumstances create a suspicion that an
-8-
individual may be armed and dangerous.” State v. Harding, 180 Ohio App. 3d 497, 2009–
Ohio–59, 905 N.E.2d 1289 (2d Dist.), overruled on other grounds, State v. Gardner, 2d
Dist. Montgomery No. 24308, 2011–Ohio–5692.
{¶ 23} “The purpose of this limited search is not to discover evidence of crime, but
to allow the officer to pursue his investigation without fear of violence * * *.” State v.
Evans, 67 Ohio St. 3d 405, 408, 618 N.E.2d 162 (1993), quoting Adams v. Williams, 407
U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); see also State v. Olden, 2d Dist.
Montgomery No. 23137, 2010–Ohio–215, ¶ 25. In other words, “the protective pat
down under Terry is limited in scope to its protective purpose and cannot be employed by
the searching officer to search for evidence of crime.” State v. Holley, 2d Dist.
Montgomery No. 20371, 2004–Ohio–4264, ¶ 10.
{¶ 24} “The frisk, or protective search, approved in Terry is limited in scope to a
pat-down search for concealed weapons when the officer has a reasonable suspicion that
the individual whose behavior he is investigating at close range may be armed and
dangerous. While probable cause is not required, the standard to perform a protective
search, like the standard for an investigatory stop, is an objective one based on the totality
of the circumstances. The rationale behind the protective search is to allow the officer
to take reasonable precautions for his own safety in order to pursue his investigation
without fear of violence.” State v. Millerton, 2015–Ohio–34, 26 N.E.3d 317, ¶ 27 (2d Dist.),
quoting State v. Andrews, 57 Ohio St. 3d 86, 89, 565 N.E.2d 1271 (1991).
{¶ 25} “These circumstances must be viewed through the eyes of a reasonable
and prudent police officer on the scene who must react to events as they unfold. State v.
Andrews, 57 Ohio St. 3d 86, 565 N.E.2d 1271 (1991). Accordingly, the court must take
-9-
into consideration the officer's training and experience and understand how the situation
would be viewed by the officer on the street. Id.” State v. Heard, 2d Dist. Montgomery No.
19322, 2003–Ohio–906, ¶ 14.
{¶ 26} In the instant case, the record establishes that just after investigating a
separate criminal incident, Officer Orick was walking down a section of North Main Street
known as a high-crime area with significant drug activity. Compare State v. Andrews, 57
Ohio St. 3d 86, 88, 565 N.E.2d 1271 (1991) (stating that “[a]n area's reputation for criminal
activity is an articulable fact which is a part of the totality of circumstances surrounding a
stop to investigate suspicious behavior”). Almost immediately after observing Wheeler
walking down the opposite side of the street, Officer Orick heard what he identified, based
upon his training and experience, as a gunshot coming from the area where Wheeler was
walking. Believing that Wheeler was possibly armed and dangerous, Officer Orick drew
his weapon and ordered Wheeler to stop and lay down on the ground. Not only did
Wheeler not immediately stop and do as Officer Orick ordered, he kept walking
backwards away from the officer. Wheeler also placed something on the ground with a
light throwing motion, while still walking backwards away from Officer Orrick. Turning
and walking away upon seeing a police officer, or other nervous and evasive behavior,
can be considered by an officer in the reasonable suspicion determination. State v.
Sellers, 2d Dist. Montgomery No. 26121, 2014–Ohio–5366, ¶ 15 (suspect's change of
direction upon seeing police car is a fact to be considered in reasonable suspicion
determination). It was only after Sgt. Riegel arrived that Wheeler stopped walking away,
and the officers were able to handcuff him and place him on the ground. The preceding
factors combine to create a reasonable suspicion that Wheeler had committed or was
-10-
committing an offense. Therefore, Officer Orick's initial decision to stop Wheeler was
lawful. We also find that, contrary to Wheeler’s assertion, the trial court did not direct the
testimony of Officer Orick in any way.
{¶ 27} Additionally, Officer Berger's frisk was lawful. “Authority to conduct a pat
down search for weapons does not automatically flow from a lawful stop.” State v.
Stewart, 2d Dist. Montgomery No. 19961, 2004–Ohio–1319, ¶ 16. An officer may search
a lawfully stopped suspect for weapons “if the officer reasonably believes the suspect
may be armed.” State v. Montague, 2d Dist. Montgomery No. 25168, 2013–Ohio–811, ¶
13, citing State v. Evans, 67 Ohio St. 3d 405, 408, 618 N.E.2d 162 (1993). Wheeler
argues that Officer Berger’s decision to conduct a pat down was not justified because he
testified that he did not initially think that the loud noise he heard was a gunshot. Officer
Berger clarified his testimony by stating that Officer Orick was closer in proximity to where
the loud noise originated; thus, Officer Orick was in a better position to ascertain whether
the loud noise was actually a gunshot. We note that the trial court expressly found
Officer Orick and Berger to be “credible in every respect.”
{¶ 28} Although not discussed by the trial court, we note that whether probable
cause exists must be determined by examining the collective knowledge of the
police. United States v. Barraza, 492 F. Supp. 2d 816 (S.D.Ohio 2005); Thacker v. City of
Columbus, 328 F.3d 244, 256 (6th Cir.2003). Moreover, the determination of probable
cause requires an examination of the objective reasonableness of the facts with the
officers' subjective intentions being irrelevant. Whren v. United States, 517 U.S. 806, 116
S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Here, Officer Berger was acting on an order from
Officer Orick to stop and frisk an individual that he concluded may be armed and
-11-
dangerous. Regarding the stop and frisk, Officer Orick's knowledge supporting his
reasonable articulable suspicion that Wheeler was armed and dangerous may reasonably
be imputed to Officer Berger. See Sellers at ¶ 19 (“whether probable cause exists must
be determined by examining the collective knowledge of the police.”) It is well-
established that when an order to stop or arrest a suspect is communicated to officers in
the field, the underlying facts constituting probable cause need not be communicated, so
long as the individual or agency issuing the order can justify the intrusion on Fourth
Amendment rights. See United States v. Hensley, 469 U.S. 221, 231, 105 S. Ct. 675, 83
L. Ed. 2d 604 (1985).
{¶ 29} In Wortham, we stated that:
If an officer detains an individual suspected of criminal behavior in
reliance on information received from a fellow officer, who has a reasonable
suspicion to make a stop, he need not have independent grounds for
suspecting criminal activity but may rely on the information given via the
dispatch. However, the [S]tate must show that the officer who provided the
information had a valid reasonable suspicion of criminal activity.
Wortham, 145 Ohio App. 3d 126, 130, 761 N.E.2d 1151, citing Maumee v. Weisner, 87
Ohio St. 3d 295, 298, 720 N.E.2d 507 (1999). In light of the preceding analysis, Officer
Berger had a reasonable and articulable belief that Wheeler may have been armed and
posed a danger to the officers. Accordingly, Officer Berger was entitled to conduct a
limited protective search for weapons for his safety.
{¶ 30} The closest question, however, is whether, in the course of the pat down for
weapons, Officer Berger lawfully seized the heroin gel cap and the two baggies containing
-12-
cocaine from Wheeler's pocket.
{¶ 31} Under the plain feel doctrine, an officer conducting a pat down for weapons
may lawfully seize an object if he has probable cause to believe that the item is
contraband. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d
334 (1993); State v. Phillips, 155 Ohio App. 3d 149, 2003-Ohio-5742, 799 N.E.2d
653, ¶ 41-42 (2d Dist.). The “incriminating character” of the object must be “immediately
apparent,” meaning that the police have probable cause to associate an object with
criminal activity. Dickerson, 508 U.S. at 375; State v. Buckner, 2d Dist. Montgomery No.
21892, 2007-Ohio-4329, ¶ 9. The officer may not manipulate the object to identify the
object or to determine its incriminating nature. Dickerson, supra; State v. Lawson, 180
Ohio App. 3d 516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 25 (2d Dist.).
{¶ 32} The criminal character of an object may be immediately apparent because
of the nature of the article and the circumstances in which it is discovered. State v.
Dunson, 2d Dist. Montgomery No. 22219, 2007-Ohio-6681, ¶ 24. “In that situation, the
totality of those circumstances, including the officer's experience and explanation, must
be sufficient to present probable cause to believe that the identity of the object he feels is
specific to criminal activity.” Id.
{¶ 33} Regarding the pat down of Wheeler, Officer Berger provided the following
testimony:
The State: Officer Berger, can you describe for the Court how you
did the pat down?
Officer Berger: When I do a pat down, initially I go to the waist and
do a flat across – around the waist. And I go down the pant legs, flat hand,
-13-
both one on the outside, one on the inside, straight down the leg, each let
[sic]. Then I go up the torso and over the arms.
Q: Okay. And you said it’s a flat hand? You never manipulate your
hand in any way?
A: No.
Q: Just move it straight up and down?
A: Correct.
Q: And you conducted a pat down just like this on Mr. Wheeler,
correct?
A: Yes.
Q: And describe for the Court how that pat down went.
A: I felt a gel capsule in Mr. Wheeler’s right pants pocket.
Q: And how did you know that that was a gel capsule?
A: I’ve encountered many gel capsules containing felony drugs, just
working the streets.
Q: So in your training experience, you felt what you knew to be a gel
capsule?
A: Yes.
Q: And you were able to retrieve that gel capsule?
A: Yes.
Q: And when you –describe for the Court how you did that.
A: When I went in to retrieve the gel capsule, I just pulled two baggies
of what appeared to be crack cocaine.
-14-
{¶ 34} The trial court found that based on his training and law enforcement
experience, Officer Berger’s testimony that he immediately knew what he felt in Wheeler’s
right pants pocket was a gel capsule likely containing illegal contraband was credible.
We agree. As is clear from the above excerpt, Officer Berger’s testimony made clear
that the probable illegal nature of the gel capsule was immediately apparent to him. State
v. Price, 2d Dist. Montgomery No. 25362, 2013-Ohio-2020, ¶ 15.
{¶ 35} In its decision overruling the motion to suppress, the trial court correctly
concluded that Officer Orick had a reasonable, articulable suspicion that Wheeler was
armed and that this suspicion justified the subsequent pat down. The trial court also
correctly concluded that Officer Berger's knowledge regarding the shape and feel of gel
capsules and his belief that he felt a gel capsule in Wheeler’s pants pocket provided
probable cause and justified the seizure of the gel capsule and the two baggies of
cocaine. Upon review, we conclude that the trial court's factual conclusions are
supported by competent, credible evidence, and it did not err in refusing to suppress the
State's evidence.
{¶ 36} Wheeler’s second assignment of error is overruled.
{¶ 37} Wheeler’s first assignment of error having been sustained, this cause is
remanded for the sole purpose of correcting the termination entry to reflect the correct
nature of the plea. In all other respects, the judgment of the trial court is affirmed.
.............
HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Michael J. Scarpelli
Charles E. McFarland
-15-
Hon. Steven K. Dankof