State v. Bell

[Cite as State v. Bell, 2012-Ohio-4853.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 15
v. : T.C. NO. 11CR371
JACKIE L. BELL II : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 19th day of October , 2012.
..........
ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia,
Ohio 45385
Attorney for Plaintiff-Appellee
SCOTT BISSELL, Atty. Reg. No. 0085229, 3080 Ackerman Blvd., Suite 320, Kettering, Ohio 45429
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Jackie Bell, II, appeals his conviction and sentence for one
count of possession of heroin (in an amount exceeding 100 unit doses but less than 500 unit doses), in
violation of R.C. 2925.11(A), a felony of the second degree. Bell filed a timely notice of appeal with
this Court on January 31, 2012.
2
{¶ 2} On May 19, 2011, at approximately 7:00 a.m., police officers were dispatched to a
residence in Fairborn, Ohio, to investigate the death of an individual named Brandon Murray as a
result of a possible drug overdose. During the investigation, the police officers discovered a cell
phone under Murray’s body. The last call made from the cell phone, as well as several other
outgoing calls, were made to a phone number known to the police officers as belonging to the
appellant, Bell. Through their investigation, the police officers also received information that on the
night before his death, Murray traveled to a Motel 6 in Fairborn to meet Bell who was renting a room
there.
{¶ 3} Based on the information they had received, Officers Hiles and Hardman of the
Fairborn Police Department traveled to the Motel 6. Upon arriving, the police officers discovered
that Room 158 at the motel was registered to Bell. The police officers went to the room and made
contact with Bell and a female, Katie Hovatic, who was also present in the room. The officers had
been ordered to secure the room until a search warrant could be obtained, and they ordered Bell and
Hovatic to vacate the premises. Prior to obtaining the search warrant, the officers conducted a
protective sweep of the motel room in order to determine whether anyone else was present. Although
no one else was found inside the room, Officer Hardman observed two small pieces of plastic baggies
in plain view during the protective sweep. Once the sweep was completed, the officers left the room
until the search warrant arrived.
{¶ 4} Once the police secured the warrant, they conducted a complete search of Bell’s
motel room wherein they discovered a pill bottle containing 125 capsules of heroin, another pill bottle
containing non-encapsulated heroin, a cigar containing marijuana, two pieces of torn plastic baggie,
two cell phones, and Bell’s driver’s license. Based on the evidence seized from the motel room, Bell
was arrested and taken to jail.
{¶ 5} On July 1, 2011, Bell was charged by indictment with one count of trafficking in
3
heroin, two counts of possession of heroin, and one count of tampering with evidence. At his
arraignment on July 22, 2011, Bell pled not guilty to all of the counts in the indictment. Bell filed a
motion to suppress on October 25, 2011, in which he argued that the Fairborn Police unlawfully
seized his motel room prior to the issuance of the search warrant thereby requiring suppression of the
contraband discovered after the warrant was obtained. A hearing was held on Bell’s motion to
suppress on December 22, 2011. The trial court overruled Bell’s motion to suppress in a written
decision issued on January 23, 2012.
{¶ 6} Bell’s case went to trial on January 23, 2012. After opening statements were made
by both parties, the State dismissed one count of possession of heroin, as well as the tampering with
evidence count. At the close of the State’s case, Bell made a Crim. R. 29 motion for acquittal with
respect to the count for trafficking in heroin, which the trial court sustained. The jury, however,
found Bell guilty of the remaining count of possession of heroin, a felony of the second degree.
Shortly thereafter, the trial court sentenced Bell to five years in prison and three years of mandatory
post-release control.
{¶ 7} It is from this judgment that Bell now appeals.
{¶ 8} Bell’s first assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRONEOUSLY OVERRULED THE APPELLANT’S
MOTION TO SUPPRESS.”
{¶ 10} In his assignment, Bell contends that the trial court erred when it overruled his
motion to suppress. Specifically, Bell argues that the trial court erred by failing to suppress any and
all evidence obtained as a result of the unlawful search and seizure of his motel room prior to
obtaining a search warrant.
{¶ 11} In regards to a motion to suppress, “the trial court assumes the role of trier of facts
and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.” State
4
v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist. 1996), quoting State v. Venham, 96
Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must accept the trial
court’s findings of fact if they are supported by competent, credible evidence in the record. State v.
Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d
586, 639 N.E.2d 498 (2d Dist. 1994). Accepting those facts as true, the appellate court must then
determine, as a matter of law and without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.{¶ 12} The Fourth Amendment protects individuals from an unreasonable search in their
homes. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. White,
175 Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d 904 (9th Dist.). The sanctity of the home
extends to any area where one has a legitimate and reasonable expectation of privacy, including a
motel room. State v. Norris, 2d Dist. Montgomery No. 17689, 1999 WL 1000034 at * 2-3 (Nov. 5,
1999). Police may not enter one’s home to perform a search or to seize without a warrant, absent
consent or exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980). The United States Supreme Court has held that an exigent circumstance is (1) an
emergency situation which arises when a person in the home is in need of “immediate aid” or there is
a life-threatening situation, or (2) a “hot pursuit.” Mincey v. Arizona, 437 U.S. 385, 392-393, 98 S.Ct.
2408, 57 L.Ed.2d 290 (1978);State v. Bowe, 52 Ohio App.3d 112, 113, 557 N.E.2d 139 (9th
Dist.1988). “The need to protect or preserve life or avoid serious injury is justification for what
would be otherwise illegal.” Id. at 392. An important factor in determining whether exigent
circumstances exist is the gravity of the underlying offense. Welsh v. Wisconsin, 466 U.S. 740, 753,
104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
{¶ 13} A warrantless entry into one’s home is justified if the person whose property is
being searched voluntarily gives consent to the entry. State v. Asworth, 10th Dist. Franklin No.
90AP-916, 1991 WL 54181, *4 (April 11, 1991), citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct.
5
2793, 111 L.Ed.2d 148 (1990). In examining the record, we find no indication of Bell’s consent to
permit the police officers to enter his motel room. More importantly, both Detective Ryan Whittaker
and Detective Ben Roman specifically testified at the suppression hearing that no exigent
circumstances existed prior to the police officers’ decision to remove the occupants of the motel room
and perform a warrantless protective sweep of the room. Accordingly, we agree with the trial court
which concluded that there were clearly no exigent or emergency circumstances which justified the
officers’ warrantless protective sweep of Bell’s motel room. Thus, we reject the State’s argument
that the officers’ initial warrantless entry into Bell’s motel room was justified by any exception to the
warrant requirement. Further, we note that the record is devoid of any evidence that the officers who
performed the protective sweep had any probable cause to believe that anyone else was present in the
room after they removed Bell and his female friend.
{¶ 14} Bell also argues that the search warrant was tainted because the officers’
observations regarding the pieces of plastic baggie made during the initial warrantless entry into
Bell’s motel room could not constitute proper grounds for a valid search warrant. The U.S. Supreme
Court, however, has held that, after excising tainted information from a supporting affidavit, “if
sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the
warrant was nevertheless valid.” United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d
530 (1984). It is well-settled that “the ultimate inquiry *** is not whether the underlying affidavit
contained allegations based upon illegally obtained evidence, but whether, putting aside all tainted
allegations, the independent and lawful information stated in the affidavit suffices to show probable
cause.” State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, quoting United State
v. Levasseur, 620 F.Supp. 624, 631 (E.D.N.Y.1985). In the instant case, the officers’ observations
during the initial illegal entry into Bell’s motel room are not critical to establishing probable cause.
Therefore, we find that the trial court properly excised the officers’ observations regarding the pieces
of plastic baggie (paragraph seven) from the supporting affidavit for the warrant.
[Cite as State v. Bell, 2012-Ohio-4853.]
{¶ 15} Now, we must determine whether the remainder of the supporting affidavit
independently suffices to establish probable cause for the search warrant. The record reflects that
Det. Ryan Whittaker appeared before a Fairborn Municipal Court judge on May 19, 2011, and
requested a warrant to search 800 N. Broad Street, Room 158, for heroin and various other drug
related paraphernalia. After setting forth his qualifications in the beginning of the affidavit, Det.
Whittaker averred as follows:
{¶ 16} “2. On May 19, 2011 at approximately 0330 hours Sgt. Ricketts, Officer May, and
Officer Bair were dispatched to 329 E. Emerson Ave. apartment C reference [sic] an unconscious
non breathing subject. Fairborn Fire Department was also dispatched to the scene. Upon arrival
Officer May met with Fairborn medic J. Lawrence who stated he had documented the death of a
Brandon Murray at 0335 hours. The residence of 329 E. Emerson Ave. apt. C was secured and a
death investigation was initiated. The tenant of 329 E. Emerson Ave. apt. C was determined to be
Emily Minehart who was also present. During the investigation Sgt. Ricketts contacted Greene
County Coroner Investigator Huston to respond to the scene. During the investigation Greene
County Coroner Investigator Huston located a needle mark on Murray’s left forearm.
{¶ 17} “3. During the investigation Officer Bair spoke with Nicole Bayard at 335 E.
Emerson Ave. apartment C. Bayard informed Officer Bair that Murray arrived at her residence at
approximately 2000 hours on May 18, 2011. She further stated that Murray left several times
between 2000 hours on May 18, 2011 and 0100 hours on May 19, 2011. Bayard further stated
during one of those times he went to Sabrina Chafin’s apartment located 211 E. Emerson Ave.,
Fairborn and borrowed her cell phone. Officer Bair continued to speak with Bayard and she stated
that Murray admitted to using heroin, vicodin, and xanax. Bayard advised her brother Dillon Bayard
arrived and Murray and Dillon left together. Officer Bair spoke with Dillon and he stated he arrived
at his sister’s apartment and left with Murray. Dillon stated that Murray asked him to take him to the
Motel 6 because ‘Jay’ owed him money. Dillon stated after going to the Motel 6 he took Murray
7
back to E. Emerson Ave. and Murray walked towards Minehart’s apartment 329 E. Emerson Ave.
Apartment C. During the investigation a cell phone was located under Brandon Murray’s body.
The phone was a LG Trac fone [sic] black in color. The phone’s last outgoing call was to phone
number (614) 783-8659. The Trac fone was later found to belong to Sabrina Chafin. Officer Bair
later made contact with Sabrina Chafin who identified her phone and stated that Brandon Murray
arrived at her residence at 2100 hour on May 18, 2011 to borrow the phone. At 0955 hours on May
19, 2011, Sabrina Chafin gave consent for Officers to search her cell phone. When searching the cell
phone Det. Roman and affiant located a call from Chafin’s phone to (614) 783-8569, time stamped
0118 hours on May 19, 2011. Det. Roman and the Affiant further located three additional calls to
cell phone (614) 783-8569.
{¶ 18} “4. On May 19, 2011 I spoke with Det. Roman of the Fairborn Police Department.
Det. Roman stated that he had previously identified ‘Jay’ as Jackie Bell II. Det. Roman further stated
that he had received information from a credible and reliable source that Jackie Bell II is involved in
drug trafficking. The source stated that he/she has purchased heroin from Bell in the past for $10.00
a capsules [sic]. The source further stated that he/she has been purchasing heroin from Bell for
approximately four months. The source also provided Det. Roman with a phone number for Jackie
Bell and that phone was (614) 783-8569. The same phone number last dialed from the phone located
under the body of Brandon Murray. Det. Roman further advised his source has provided credible
information in the past on drug traffickers and has completed controlled drug purchases in the past
under the guidance of Det. Roman.
{¶ 19} “5. On May 19, 2011, Det. Jahns spoke with the front desk clerk identified as
Brenda Royse at the Motel 6. The clerk stated that the room is rented by a male identified as Jackie
Bell II. Royse stated that a maintenance employee identified as Michael Wick had been in Jackie
Bell’s room on May 18, 2011. Royse advised Wick came to her and stated he observed a large
amount of currency in the room. Brenda Royse further stated that Jackie Bell II is paying day by day
8
and paying with U.S. currency.
{¶ 20} “6. On May 19, 2011 Det. Roman contacted Michael Wick and spoke with him over
the phone. During the phone conversation Wick informed Det. Roman that he was in Jackie Bell’s
room on May 18, 2011 at approximately 1545 for maintenance work and observed a black male and
white female inside the room. Wick further informed Det. Roman that he observed a large stack of
money several inches thick. Wick stated he would estimate the stack of money to be approximately
three inches thick. Wick stated that he believed this was suspicious and informed the desk clerk
Brenda Royse.”
{¶ 21} Upon review, we find no error in the trial court’s suppression ruling. “In
determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant,
‘[t]he task of the issuing magistrate is simply to 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.’ ” State v. George, 45 Ohio St.3d 325, 544
N.E.2d 640 (1989), paragraph one of the syllabus, following and quoting Illinois v. Gates, 462 U.S.
213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶ 22} “In reviewing the sufficiency of probable cause in an affidavit submitted in support
of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute
its judgment for that of the magistrate by conducting a de novo determination as to whether the
affidavit contains sufficient probable cause upon which that court would issue the search warrant.
Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit
submitted in support of a search warrant, trial and appellate courts should accord great deference to
the magistrate’s determination of probable cause, and doubtful or marginal cases in this area should
9
be resolved in favor of upholding the warrant.” Id. at paragraph two of the syllabus (citation omitted).
{¶ 23} In the instant case, the municipal court judge possessed a substantial basis for
concluding that probable cause existed. Det. Whittaker’s affidavit established Bell was known to
police as a drug trafficker. Det. Roman’s “reliable” source informed him that “he/she” had
purchased encapsulated heroin from Bell in the recent past. The source also stated that “he/she” had
been buying heroin from Bell for the past four months. Bell’s phone number was the last number
called from a cell phone in the possession of Brandon Murray, who had just died from a potential
drug overdose. Additionally, the affidavit stated that Murray had contact with Bell at the Motel 6 on
the night before his death. Lastly, the affidavit states that a maintenance worker observed a large
stack of money in Bell’s motel room which he believed to be suspicious. Based on the independent
information contained in the affidavit, it was clearly reasonable for the municipal court judge to
conclude that heroin would be found in Bell’s motel room. Thus, the search warrant was supported
by probable cause.
{¶ 24} Bell’s first assignment of error is overruled.
{¶ 25} Bell’s second and final assignment of error is as follows:
{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
APPELLANT TO A SENTENCE OF FIVE YEARS IN PRISON AND FORFEITING THE
APPELLANT’S MONEY.”
{¶ 27} In his final assignment, Bell argues that the trial court erred when it sentenced him
to five years in prison. Additionally, Bell argues that the trial court erred when it ordered him to
forfeit the $122.00 in the motel room at the time of his arrest. In support of his argument, Bell points
out that the forfeiture specification was attached to Count I of the indictment which was dismissed at
the close of the State’s case upon a Crim. R. 29 motion for acquittal made by Bell’s counsel. Since
the count to which the forfeiture specification was attached was dismissed, Bell asserts that he cannot
10
be ordered to forfeit the money.
{¶ 28} A trial court has broad discretion in sentencing a defendant and a reviewing court
will not interfere with the sentence unless the trial court abused its discretion. State v. Reese, 2d Dist.
Montgomery No. 21825, 2007-Ohio-6696; State v. Durham, 2d Dist. Montgomery No 21589,
2007-Ohio-6262; State v. Rose, 2d Dist. Montgomery No. 21673, 2007-Ohio-4212; State v. Slone, 2d
Dist. Greene No. 2005 CA 79, 2007-Ohio-130. A court will not typically be found to have abused its
discretion in sentencing if the sentence it imposes is within the statutory limits. State v. Muhammad,
8th Dist. Cuyahoga No. 88834, 2007-Ohio-4303; State v. Burge, 82 Ohio App.3d 244, 249, 611
N.E.2d 866 (10th Dist.1992).
{¶ 29} After Foster, trial courts are not required to make any findings or give reasons
before imposing any sentence within the authorized statutory range, including maximum, consecutive,
or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
syllabus at ¶ 7. Courts, nevertheless, are still required to comply with the sentencing laws unaffected
by Foster, such as R.C. 2929.11 and 2929.12 which require consideration of the purposes and
principles of felony sentencing and the seriousness and recidivism factors. State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. However, a sentencing court does not have to make any
specific findings to demonstrate its consideration of those general guidance statutes. Foster at ¶ 42;
State v. Lewis, 2d Dist. Greene No. 06 CA 119, 2007-Ohio-6607. And, where the record is silent, a
presumption exists that the trial court has considered the factors. State v. Adams, 37 Ohio St.3d 295,
297, 525 N.E.2d 1361 (1988). Further, where a criminal sentence is within statutory limits, an
appellate court should accord the trial court the presumption that it considered the statutory mitigating
factors. State v. Taylor, 76 Ohio App.3d 835, 839, 603 N.E.2d 401 (2d Dist.1992); State v. Crouse,
39 Ohio App.3d 18, 20, 528 N.E.2d 1283 (2d Dist.1987). Consequently, the appellant has an
affirmative duty to show otherwise.
11
{¶ 30} Initially, we note that Bell concedes that the sentences imposed by the trial court are
within the applicable statutory ranges for the offenses. We also note that the trial court affirmatively
stated in its second amended judgment entry that it considered both R.C. 2929.11 and 2929.12 before
imposing sentence. The record establishes that the trial court was aware that Bell did not have a
felony record, and his misdemeanor record was minimal. The trial court, however, did note that Bell
was found in possession of a large quantity of heroin. The trial court also noted that Brandon
Murray, who was an acquaintance (and apparent customer) of Bell’s, died from a drug overdose. It is
clear from the record that the trial court did not abuse its discretion when it sentenced Bell to five
years in prison.
{¶ 31} Lastly, Bell argues that the trial court erred when it ordered the forfeiture of the
money found in the motel room because Count I, to which the forfeiture specification was attached,
was dismissed, and Bell was acquitted. Upon review, we find Bell’s argument in this regard to be
without merit. Pursuant to R.C. 2981.04(B), “[i]f a person *** is convicted of an offense *** and the
complaint, indictment, or information charging the offense or act contains a specification covering
property subject to forfeiture under section 2981.02 of the Revised Code, the trier of fact shall
determine whether the person’s property shall be forfeited. ***”
{¶ 32} R.C. 2981.02 provides that “[p]roceeds derived from or acquired through the
commission of an offense” are subject to civil forfeiture under R.C. 2981.05. “Proceeds” include
“any property derived directly or indirectly from an offense,” including money. R.C.
2981.01(B)(11)(a). An “offense” is “any act or omission that could be charged as a criminal offense
* * * whether or not a formal criminal prosecution * * * began at the time the forfeiture is initiated.”
R.C. 2981.01(B)(10). Here, Bell was convicted of “an” offense; specifically, he was convicted of
possession of heroin, in violation of R.C. 2925.11(A). In the indictment, the specification identifies
the $122.00 that Bell had in his possession at the time of his arrest as subject to forfeiture “as
12
provided by law under Chapter 2981 of the Ohio Revised Code.”
{¶ 33} The judgment of conviction specifically states as follows:
The Court finds that the defendant has been
convicted: by a jury after a jury trial; on January 24,
2012, of the following offenses: Forfeiture Specification:
The Grand Jurors further find and specify that certain property
is subject to criminal forfeiture to the State of Ohio, by and
through the Greene County Prosecutor, for distribution
to the Fairborn Police Department, as provided by law under
Chapter 2981 of the Ohio Revised Code, to wit: cash monies
in the amount of $122.00, which the defendant had in his
possession and said monies are proceeds of criminal offenses.
{¶ 34} The judgment of conviction also states that Bell was found guilty by a jury of
possession of heroin. We note that the conviction for possession of heroin was accompanied by a
verdict form signed by all twelve jurors. Following the jury’s guilty verdict and despite that the
judgment entry of conviction contains the forfeiture specification, the record establishes that the trial
court did not submit the specification to the jury for further findings, as required by R.C. 2981.04(B).
Because the trial court did not follow the correct procedure mandated by R.C. 2981.04(B), its
decision to order the forfeiture of Bell’s money was made in error and is hereby reversed and vacated.
{¶ 35} Bell’s second and final assignment of error is overruled in part and sustained in part.
{¶ 36} The trial court’s improper forfeiture of Bell’s money is reversed and vacated. In all
other respects, the judgment of the trial court is affirmed.
..........
13
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Elizabeth A. Ellis
Scott Bissell
Hon. Stephen A. Wolaver