State v. Geiger

[Cite as State v. Geiger, 2016-Ohio-7571.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 15AP-1120
(C.P.C. No. 14CR-5148)
v. :
(REGULAR CALENDAR)
Travis L. Geiger, :
Defendant-Appellant. :
D E C I S I O N
Rendered on November 1, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Yeura R. Venters, Public Defender, and John W.
Keeling, for appellant. Argued: John W. Keeling.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶1} Travis L. Geiger, defendant-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to
a plea of no contest, of possession of cocaine, in violation of R.C. 2925.11, a first-degree
felony; and tampering with evidence, in violation of R.C. 2921.12, a third-degree felony.
Specifically, in this appeal, appellant contests the trial court's denial of his motions to
suppress evidence.
{¶2} On the afternoon of December 6, 2013, Ryan Steele, a patrol officer with the
Columbus Police Department, saw appellant in a parked car in an area known for drug
No. 15AP-1120 2
sales. Officer Steele radioed other officers to wait for appellant's vehicle to leave and then
watch for a traffic violation. Appellant drove away and parked on another street. Officer
Steele positioned his cruiser behind appellant's vehicle and approached appellant's
vehicle. Officer Steele initially was going to engage in a consensual encounter with
appellant but then saw the vehicle was parked in a no parking zone. Officer Steele asked
appellant if he knew he was parked in a no parking zone and asked for appellant's
identification. Appellant, a man who weighs approximately 400 pounds, asked Officer
Steele if he could get out of the vehicle to retrieve his identification from the center
console. Appellant got out of the vehicle and leaned inside. Officer Steele observed
appellant remove a bag with a white substance from the center console. Officer Steele
initially testified that he was standing behind appellant when he observed the bag but, on
cross-examination, testified that he was in front of the vehicle and observed the bag
through the front windshield. Steele then positioned himself to the rear of the driver's
door and saw appellant's hand was empty. Steele could see the top of the bag in
appellant's coat pocket. Steele was not certain about what the bag contained, so he asked
appellant if he could search him, and appellant raised his hands, which Steele considered
a manifestation of consent. Steele then retrieved the bag of cocaine from appellant's coat
pocket.
{¶3} Appellant was indicted for possession of cocaine and tampering with
evidence. On October 29, 2014, appellant filed three motions to suppress, seeking to
(1) suppress evidence stemming from the search of his vehicle, (2) suppress evidence
stemming from the search of his person, and (3) suppress any statements made during
such searches. The trial court held a hearing on the motions to suppress, at which Steele,
among others, testified. At a second hearing on the motions to suppress, the trial court
decided to recall Steele at a later hearing to clarify his testimony. The trial court held a
third hearing on the motions to suppress and, after receiving testimony from Steele, the
court denied appellant's motions to suppress. Appellant subsequently entered a plea of no
contest.
{¶4} On November 12, 2015, the trial court entered a judgment finding appellant
guilty of possession of cocaine and tampering with evidence. The court sentenced
appellant to 4 years of imprisonment on the possession of cocaine count and 12 months of
No. 15AP-1120 3
imprisonment on the tampering with evidence count, with the sentences to run
concurrently. The court also imposed a fine of $10,000, a 24-month suspension of
appellant's driving privileges, and 5 years of post-release control. Appellant appeals the
judgment of the trial court, asserting the following two assignments of error:
[I.] THE TRIAL COURT ERRED WHEN IT OVERRULED
THE DEFENDANT'S MOTION[S] TO SUPPRESS EVIDENCE
OBTAINED AS A RESULT OF AN INVESTIGATION AND
DETENTION THAT EXCEEDED THE SCOPE OF THE
GROUNDS JUSTIFYING THE INITIAL DETENTION,
WHICH WAS TO ISSUE A PARKING CITATION.
[II.] THE TRIAL COURT ERRED WHEN IT FOUND THE
DEFENDANT GUILTY OF TAMPERING WITH EVIDENCE
WHEN THE FACTS PRESENTED BY THE STATE
INDICATED THAT THE DEFENDANT WAS NOT GUILTY
OF THIS OFFENSE.
{¶5} Appellant argues in his first assignment of error that the trial court erred
when it denied his motions to suppress evidence obtained as a result of an investigation
and detention that exceeded the scope of the grounds justifying the initial detention,
which was to issue a parking citation. An appellate review of a ruling on a motion to
suppress evidence presents mixed questions of law and fact. State v. Long, 127 Ohio
App.3d 328, 332 (4th Dist.1998). During a suppression hearing, the trial court assumes
the role of the trier of fact and is, therefore, in the best position to resolve questions of fact
and evaluate witness credibility. State v. Mills, 62 Ohio St. 3d 357, 366 (1992); State v.
Hopfer, 112 Ohio App. 3d 521, 548 (2d Dist.1996). As a result, an appellate court must
accept a trial court's factual findings if they are supported by competent and credible
evidence. State v. Guysinger, 86 Ohio App. 3d 592, 594 (4th Dist.1993). The reviewing
court must then review the trial court's application of the law de novo. State v. Russell,
127 Ohio App. 3d 414, 416 (9th Dist.1998).
{¶6} The State of Ohio, plaintiff-appellee, argues that appellant never raised an
argument challenging the scope or duration of the detention in either his motions to
suppress or the suppression hearings. The state claims these issues cannot be raised now
for the first time on appeal, and, thus, appellant waived them for purposes of appeal. The
state contends that appellant only argued at the hearings that Officer Steele's testimony
No. 15AP-1120 4
was not credible and there was no probable cause, while his generic motions challenged
only the search of his car and the "stop and frisk" without any specific arguments as
applied to the facts of this case.
{¶7} Crim.R. 12 provides, in relevant part, as follows:
(C) Pretrial motions. Prior to trial, any party may raise by
motion any defense, objection, evidentiary issue, or request
that is capable of determination without the trial of the
general issue. The following must be raised before trial:
***
(3) Motions to suppress evidence, including but not limited to
statements and identification testimony, on the ground that it
was illegally obtained. Such motions shall be filed in the trial
court only.
***
(H) Effect of failure to raise defenses or objections. Failure by
the defendant to raise defenses or objections or to make
requests that must be made prior to trial, at the time set by
the court pursuant to division (D) of this rule, or prior to any
extension of time made by the court, shall constitute waiver of
the defenses or objections, but the court for good cause shown
may grant relief from the waiver.
{¶8} When a defendant seeks to suppress evidence, he must apprise the
prosecutor of the grounds on which he challenges the validity of the evidence. Xenia v.
Wallace, 37 Ohio St. 3d 216, 218 (1988). The failure of a defendant to adequately specify
the grounds for his motion to suppress evidence results in a waiver of that issue on
appeal. Id. The defendant must "raise the grounds upon which the validity of the search or
seizure is challenged in such a manner as to give the prosecutor notice of the basis for the
challenge." Id. at paragraph one of the syllabus. The Supreme Court of Ohio has further
held that a motion to suppress must "state with particularity the legal and factual issues to
be resolved," thereby placing the prosecutor and court "on notice of those issues to be
heard and decided by the court and, by omission, those issues which are otherwise being
waived." State v. Shindler, 70 Ohio St. 3d 54, 58 (1994).
No. 15AP-1120 5
{¶9} Here, appellant's motions to suppress raised no specific issues and were
only general motions containing boilerplate language. At the hearings on the motions to
suppress, neither party raised the prolonged detention issue in its opening or closing
arguments. The only issues appellant's counsel raised at the three hearings were that
Officer Steele's testimony was not credible due to inconsistencies in his testimony and the
lack of probable cause. At the second hearing, appellant's counsel summarized his
position by stating:
All of this goes to the credibility and these other things of the
officer's testimony in terms of this Court making a
determination on probable cause. I think the officer's
testimony is not credible. I think there was no probable cause.
And I think that's the state of the evidence.
(July 16, 2015 Tr. at 11-12.)
{¶10} At the third hearing, during which Officer Steele was recalled as a witness by
the court for clarification, appellant's counsel stated after the close of testimony:
I think the bottom line is there was no probable cause for the
actions of this officer. The officer's credibility has been
extremely compromised because of all these different
statements in the same hearing and then different statements
today. I mean, who do we believe? What do we believe? We'd
ask the Court to grant our motion.
(July 20, 2015 Tr. at 35.)
{¶11} In the trial court's oral pronouncement, the court did not make any
reference to the prolonged detention issue appellant raises under this assignment of error.
The trial court's decision was based on its belief that Officer Steele's testimony at the third
suppression hearing was credible, and because he was able to observe the contraband, he
had the right to take the contraband from appellant and proceed from there. Appellant
never moved the trial court to amend his written motions to suppress to include the
prolonged detention issue and did not attempt to establish "good cause" for relief from the
waiver. Crim.R. 12(H).
{¶12} Furthermore, appellant cannot raise his prolonged detention argument for
the first time in his appeal to this court. "It is well-settled law that issues not raised in the
No. 15AP-1120 6
trial court may not be raised for the first time on appeal because such issues are deemed
waived." State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 13. This waiver rule
applies to arguments not asserted either in a written motion to suppress or at a
suppression hearing. State v. Johnson, 10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 14.
Appellant never made that argument either in his written motions to suppress or at the
suppression hearings. As noted above, the trial court also did not expressly consider that
argument in ruling on appellant's motions to suppress. Accordingly, appellant waived
this prolonged detention argument for purposes of this appeal by failing to raise it in the
trial court in any manner.
{¶13} For the foregoing reasons, we find that appellant waived the prolonged
detention argument by failing to raise it in his motions to suppress or at the suppression
hearings. In addition, we find appellant waived the argument by raising it for the first
time on appeal. Therefore, appellant's first assignment of error is overruled.
{¶14} Appellant argues in his second assignment of error that the trial court erred
when it found he was guilty of tampering with evidence when the facts presented by the
state at the plea hearing indicated that he was not guilty of the offense. R.C. 2921.12,
provides, in pertinent part:
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document,
or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation;
(2) Make, present, or use any record, document, or thing,
knowing it to be false and with purpose to mislead a public
official who is or may be engaged in such proceeding or
investigation, or with purpose to corrupt the outcome of any
such proceeding or investigation.
{¶15} Here, after appellant entered his no-contest plea, the trial court informed
appellant that "the State will present the Court with facts and if those facts are sufficient,
there will be a finding of guilty." (Sept. 24, 2015 Tr. at 8.) The court then asked the state
to present the facts, and the following exchange took place:
No. 15AP-1120 7
MS. SACKSTEDER: Your Honor, on December 6 of 2013, the
Defendant, Travis Geiger, was sitting in a car that was parked
in a no parking zone at North Ohio and Toronto in Columbus,
Ohio, Franklin County, Ohio. Columbus police officers
approached him, asked him for his driver's license. The
Defendant asked to get out of his car so he could get the
driver's license from the center console.
The officer was watching him as he was retrieving his driver's
license and saw him put what appeared to be a large baggie of
cocaine into his coat pocket. The officers then asked the
Defendant for consent to search his person. The Defendant
agreed. The officers found in the coat pocket 51.77 grams of
cocaine, a Schedule II controlled substance.
This cocaine was, in fact, analyzed by a chemist and found to
be that much cocaine.
This did all occur in Franklin County, Ohio.
THE COURT: What's the Tampering all about, counsel? I
need to --
MS. SACKSTEDER: Your Honor, it was the hiding the
cocaine in his coat pocket when the officers had asked him for
his driver's license.
I believe the Tampering does -- the statute does read that he
did -- knowing that an official proceeding or investigation was
in progress or was about to be or likely to be instituted did
alter, destroy, conceal, or remove any record, document, or
thing with purpose to impair its value or availability as
evidence.
THE COURT: Mr. Gordon, anything you wish to add, sir?
MR. GORDON: No, Your Honor.
THE COURT: With respect to the Possession of Cocaine, the
Court will enter a finding of guilty based upon the facts
submitted to the Court.
I'm having some issues with the Tampering.
No. 15AP-1120 8
MS. SACKSTEDER: Your Honor, I would submit that it is
directly in line with the statute. Mr. Geiger was approached,
asked to get out of his car to retrieve his driver's license --
THE COURT: He wasn't asked to get out of his car, was he?
MS. SACKSTEDER: He was not. He requested to get out of
his car so he could reach into the center console for his
driver's license. It will be the State's belief that that was in
order to give him a better position to hide the cocaine, conceal
it in his coat pocket that he knew was in the center console.
THE COURT: Did he ever get his license?
MS. SACKSTEDER: I don't recall that, Your Honor.
THE COURT: I don't either. I know we've had hearings in
this matter and - -
MS. SACKSTEDER: It does indicate Officer Steele asked Mr.
Geiger for his driver's license. He said he didn't have it -- oh,
he said he had it, but. It -- he wasn't able to locate it in his
pants pocket. Mr. Geiger exited the vehicle to better locate his
driver's license.
He then reached back in the vehicle and opened the center
console. The officer positioned himself so he could see.
Officer Steele believed Mr. Geiger was attempting to conceal
what appeared to be contraband, which appeared to be
cocaine or crack cocaine.
It does not indicate if he did ever give them his driver's
license. However, he was, if the Court recalls, cited for the
failure to signal by the officer -- other officer, Officer Gitlitz,
who was following him in a different cruiser.
THE COURT: I was consulting my previous notes in this case
which is what the time was.
The Court will enter a finding of guilty on the Tampering,
Count 2, also.
(Sept. 24, 2015 Tr. at 9-12.)
No. 15AP-1120 9
{¶16} Appellant argues there was no "official" investigation into a drug offense
that was existing or likely to happen at the time appellant hid the cocaine in his coat
pocket. Appellant maintains that when he was reaching for his identification (and
cocaine) in his console, the only investigation involved a parking violation, and his
attempt to hide the cocaine did not impair any evidence that related to the parking
violation investigation.
{¶17} Although the trial court showed pause in finding the facts supported a
finding of guilty as to the tampering with evidence charge, when a defendant pleads no
contest, he admits to "the truth of the facts alleged in the indictment." Crim.R. 11(B)(2).
"[W]here the indictment * * * contains sufficient allegations to state a felony offense and
the defendant pleads no contest, the court must find the defendant guilty." State v. Bird,
81 Ohio St. 3d 582, 584 (1998). The indictment for appellant's tampering charge in the
present case provided he "did, knowing that an official proceeding or investigation was in
progress, or was about to be or likely to be instituted, alter, destroy, conceal, or remove
any record, document, or thing with purpose to impair its value or availability as evidence
in such proceeding or investigation." These allegations sufficiently stated the tampering
offense.
{¶18} An exception to the rule in Bird exists where "the prosecutor presents a
statement of facts and those facts positively contradict the felony charged in the
indictment by negating an element essential to the commission of the offense alleged."
State v. Cooper, 168 Ohio App. 3d 378, 2006-Ohio-4004, ¶ 6 (2d Dist.). In such a case,
"the court may not make a finding of guilt on the basis of the charges alleged in the
indictment." Id.
{¶19} Here, the state's statement of facts did not positively contradict a tampering
with evidence charge by negating the element of knowledge that an official investigation
was in progress or was likely to be instituted. Although appellant might have had a cogent
argument that the evidence did not support all of the elements to the offense of tampering
with evidence had he decided to proceed to trial and develop certain facts, nothing the
state presented in its statement of facts at the plea hearing "positively contradict[ed]" the
facts or "negat[ed] an element" stated in the indictment. It is unclear why appellant
attempted to conceal the cocaine in his coat pocket. Appellant may have needed to move
No. 15AP-1120 10
the cocaine out of necessity because the cocaine was blocking access to his identification,
or he may have moved the cocaine because he feared Officer Steele would see it while he
retrieved his identification. Under these scenarios, appellant would have concealed it in
his coat pocket knowing that an official investigation was likely to be instituted if Officer
Steele saw him move the cocaine, which turned out to be the case. Appellant may have
also concealed the cocaine in his coat pocket believing Officer Steele had already seen it
when he opened the console. Under this scenario, it is clear that appellant concealed the
cocaine knowing that an investigation was likely to be instituted. It was appellant's own
action in attempting to move the cocaine while in close proximity to an observing officer
that initiated an official investigation into the contents of the bag, and appellant knew it
was likely under the circumstances. The facts recited by the state would not negate or
positively contradict any element of the offense of tampering with evidence. For the
foregoing reasons, we find the trial court did not err when it accepted appellant's no-
contest plea to the tampering with evidence charge. Therefore, appellant's second
assignment of error is overruled.
{¶20} Accordingly, appellant's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
LUPER SCHUSTER, J., concurs.
HORTON, J., concurs in part and dissents in part.
HORTON, J., concurring in part and dissenting in part.
{¶21} The majority finds that appellant waived his first assignment of error, i.e.,
the trial court erred when it overruled defendant's motion to suppress evidence obtained
as a result of an investigation and detention that exceeded the scope of the grounds
justifying the initial detention, which was to issue a parking citation, by failing to raise it
in his motion to suppress or at the hearing. (Majority Decision at ¶ 13.) I believe that such
rationale raised by the majority creates an improper expansion of the notice requirements
for defendants.
{¶22} The majority uses Xenia v. Wallace, 37 Ohio St. 3d 216 (1988), to support its
position that when a defendant wishes to suppress evidence, he must provide the
No. 15AP-1120 11
prosecutor notice of the basis for the challenge. (Majority Decision at ¶ 8.) In Xenia, the
Supreme Court of Ohio affirmed the court of appeals which reversed the trial court's
denial of defendant's motion to suppress. In doing so, the court emphasized that once the
defendant demonstrates a warrantless search or seizure and adequately clarifies the
ground for the challenge is lack of probable cause, then the prosecutor bears the burden
on going forward with evidence whether probable cause existed. Id. at paragraph two of
the syllabus. The Xenia standard, which merely requires the defendant to "adequately"
put the prosecution on notice of the basis for the challenge, is not erroneous. Id. at 220. In
that case, the court faulted the defendant's initial motion for merely asserting that a
breathalyzer test was "illegally obtained," with no further explanation of the grounds for
the challenge: "The motion does not clarify whether the illegality is due to violation of the
Fourth Amendment, another constitutional provision, or some unnamed statute or rule of
common law." Id. The defendant even neglected to file a memorandum of law to support
the motion. Id. These deficiencies were remedied at the evidentiary hearing, where the
defendant's attorney stated that the officers had lacked the probable cause required to
stop his client. Id. at 221. Thus, although the Xenia court found that defendant's motion
to suppress lacked clarity, it still found that the state had enough notice given the
information elicited at the motion to suppress hearing.
{¶23} I believe this is similar to the instant case, in that appellant satisfied Xenia's
notice requirement. Here, his motion to suppress may have been light on particulars, but
it was adequate under the Xenia standard to put the prosecution on notice of the grounds
for the challenge. Unlike the deficient motion filed by the Xenia defendant, appellant cited
the Fourth Amendment to the U.S. Constitution, as well as Article I, Section 14, Ohio
Constitution, both of which prohibit unreasonable searches and seizures. Furthermore,
appellant's motion mentioned Terry v. Ohio, 392 U.S. 1 (1968), a seminal Supreme Court
case examining the constitutionally valid scope of a warrantless seizure. See Terry at 17-
18 (citing cases and noting that it had "held in the past that a search which is reasonable
at its inception may violate the Fourth Amendment by virtue of its intolerable intensity").
Although the majority describes appellant's motion as mere "boilerplate," it would have
sufficed under Xenia to put the prosecution on notice of the grounds for suppression.
(Majority Decision at ¶ 9.) Furthermore, the trial court judge felt it was adequate to put
No. 15AP-1120 12
the state on notice as it conducted a hearing on defendant's motion to suppress evidence
over the state's memorandum contra.
{¶24} The state noted in the first paragraph of its memorandum contra: "[a]s
defendant fails to sufficiently provide both a legal and factual basis upon which to
properly decide the issues, said motion should be overruled. * * * Notwithstanding, an
evidentiary hearing relative to claims of improper search and/or seizure will establish that
the evidence sought to be introduced by the state was obtained by Constitutionally valid
means and that no applicable Exclusionary Rule bars its admission into evidence."
(May 27, 2015 Memo Contra Mot. to Suppress at 1.)
{¶25} The trial court conducted three hearings on the warrantless search.
Consequently, the state has the burden to prove a valid search and/or seizure, which
undoubtedly includes a demonstration that the seizure was not an unduly long detention
based on the circumstances. I believe the state had sufficient notice on all issues regarding
the valid search and seizure (alleged prolonged detention) and the state met its burden
given the facts found by the trial court. As the majority noted in the decision, appellate
review involves mixed questions of law and fact and "an appellate court must accept a trial
court's factual findings if they are supported by competent and credible evidence."
(Majority Decision at ¶ 5.)
{¶26} The trial court made the following statement in conveying its version of the facts:
THE COURT: All right. You know, I had Officer Steele come
back because I wanted some clarification as to his testimony
in this matter. And I think in reviewing everything that has
been testified to we come down to -- the
salient point here is what occurred once he approached that
vehicle.
***
So the Court in reviewing this motion has to look at what
occurred once the officer approached that vehicle and what
transpired after that.
Listening to the testimony today, the Court is convinced
that the officer had the ability to walk up to the front
of the vehicle and observe Mr. Geiger attempt to
retrieve his driver's license and get out the vehicle.
No. 15AP-1120 13
Also, just looking at the exhibits, I think the comments with
respect to how open the doors were, especially when you look
at the vehicle from -- in Exhibit A, and looking at it, the door's
not open all the way. The door's open maybe halfway. And if
the door was fully open and Mr. Geiger was reaching inside
and the officer said he walked around to his right side of Mr.
Geiger as he was doing whatever he was doing with respect to
from the console to his pocket, the officer testified he
observed a bag in his pocket that he believed to be
contraband. If he observed that, and as he testified he did, and
it was contraband, he had the right to take the contraband
from the Defendant and proceed from there.
I think based upon the testimony that the Court has received
in this matter that the motion to suppress should be denied,
and the Court will deny it at this time.
(Emphasis added.) (July 20, 2015 Tr. at 35-37.)
{¶27} The trial court does not mention the questioning of appellant–apparently
because it did not find a problem with it. Again, the trial court held three hearings due to
the conflicting nature of Officer Steele's testimony, which included the conversation he
had with appellant when he initially approached appellant. The trial court simply does not
conclude that Officer Steele's initial conversation with appellant presented any problems.
{¶28} The trial court made no mention that the officer's conduct converted the
limited detention into a prolonged drug investigation due to an improper request to
search his vehicle as appellant suggests. Therefore, I do not believe the waiver doctrine as
applied by the majority is necessary when the court clearly rejects appellant's version of
the facts. However, I concur with the majority in judgment only with respect to appellant's
first assignment of error.
{¶29} I respectfully dissent as to the majority's decision regarding the second
assignment of error.
____________________