State v. Welch

[Cite as State v. Welch, 2015-Ohio-284.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27212
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
COREY ALAN WELCH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 12 3344
DECISION AND JOURNAL ENTRY
Dated: January 28, 2015
BELFANCE, Presiding Judge.
{¶1} Corey Welch appeals from his convictions in the Summit County Court of
Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On November 28, 2012, police received a report that a 12-year-old girl had been
sexually assaulted. The victim told the officers who arrived on scene that she thought she had
been drugged, had had her clothes removed, and that Mr. Welch may have taken pictures of her
while she was undressed. One of the officers spoke with Detective Joe Holsopple on the phone
and told him that it appeared that Mr. Welch was doing something with his phone. Detective
Holsopple told the officer to confiscate Mr. Welch’s phone.
{¶3} Mr. Welch was detained for questioning and taken down to the police station.
After questioning Mr. Welch, the officers placed him under arrest. Although the timeline is
unclear, at some point that day the victim’s mother (“Mother”) contacted the police and told
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them that she did not want Mr. Welch’s items in the home any longer and that she planned to
throw them out on the curb. Detective Holsopple advised her not to do that and said that an
officer would be over shortly to collect Mr. Welch’s things. An officer drove to the home and
took Mr. Welch’s personal items contained in a duffel bag. The next day, the police secured a
search warrant for both the phone and the duffel bag.
{¶4} Mr. Welch was indicted for rape of a minor less than 13 years of age, gross sexual
imposition, and two counts of corrupting another with drugs. A supplemental indictment
charged Mr. Welch with two counts of kidnapping, two counts of sexual battery, an additional
count of rape, and illegal use of a minor in nudity-oriented material. Mr. Welch moved to
suppress the evidence recovered from the search of his cell phone and duffel bag, and the trial
court denied his motion. Mr. Welch subsequently pleaded no contest to the charges, and the trial
court sentenced him to an aggregate prison term of 41 years to life.
{¶5} Mr. Welch has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
WELCH’S MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS
PERSON AND RESIDENCE IN VIOLATION OF ARTICLE I SECTION 10 OF
THE OHIO CONSTITUTION AND THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶6} Mr. Welch argues in his first assignment of error that the trial court erred in
denying his motion to suppress because the officers violated his rights under the Fourth
Amendment to the Constitution of the United States and Article I, Section 10 of the Ohio
Constitution when they seized his duffel bag and phone without a warrant. We disagree.
{¶7} The Supreme Court of Ohio has held that
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[a]ppellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must accept
the trial court’s findings of fact if they are supported by competent, credible
evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
{¶8} The trial court made the following findings of fact. Mr. Welch had been staying
with the victim’s family for approximately one week prior to the reported incident and had been
sleeping on a couch in the family living room. On November 28, 2012, the police received a
report of a sexual assault involving a minor child. When the police arrived, the victim told them
that she had woken up naked to find Mr. Welch taking pictures of her. “Officers observed [Mr.
Welch] holding his cell phone and were concerned that he may be deleting evidence, i.e.
photographs of the minor victim.” Officers secured Mr. Welch’s cell phone, and he was taken to
the police department for questioning and subsequently arrested. “Later that day, [Mother]
telephoned the police station and stated that [Mr. Welch] did not live there, that she didn’t want
his property there and that she was going to throw [his] personal belongings ‘out on the curb[.]’”
The officer told her not to do that and an officer returned to the house and took Mr. Welch’s
duffel bag, computer, and other items. The officer took the belongings to the police station and
obtained a search warrant for the items the next day.
{¶9} Neither party has challenged the factual findings of the trial court, and our own
review of the evidence leads us to conclude that the trial court’s findings of fact are supported by
competent, credible evidence. Thus, we accept the trial court’s findings as true. Id. at ¶ 8.
{¶10} Mr. Welch argues that the warrantless seizures of his phone and his duffel bag
violated his rights pursuant to the Fourth Amendment to the United States Constitution and
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Article I, Section 10 of the Ohio Constitution. The Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Ohio Constitution both protect individuals from
unreasonable searches. State v. Roberts, 9th Dist. Medina No. 13CA0065-M, 2014-Ohio-4126, ¶
6. The touchstone of the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547
U.S. 398, 403 (2006). “Searches and seizures conducted outside the judicial process are per se
unreasonable under the Fourth Amendment, subject to well-delineated exceptions.” State v.
Robinson, 9th Dist. Summit No. 26741, 2014-Ohio-579, ¶ 13, citing Katz v. United States, 389
U.S. 347, 357 (1967). One such exception is when officers seek to prevent the imminent
destruction of evidence. Stuart at 403.
{¶11} Because police secured Mr. Welch’s phone and bag at different points in time, we
address his arguments separately.
The Phone
{¶12} Mr. Welch does not appear to dispute that the police were justified in seizing the
phone when they observed him on it in order to prevent the destruction of evidence. See id.
Instead, he argues that, “once the phone was secured from [him] and was under the care, custody,
and control of law enforcement, it would have been proper to request a warrant prior to
permanently depriving him of his property.”
{¶13} Apparently, Mr. Welch believes that the police needed to immediately procure a
warrant in order to continue seizing his phone. However, the next day, the police did obtain a
warrant prior to searching his phone. Thus, it is unclear whether Mr. Welch believes that the
warrant was insufficient to continue to seize his phone (i.e., the warrant only permitted the police
to search his phone but not to seize it) or that the 24-hour period from the point when the police
seized the phone and when the warrant was issued rendered the seizure unconstitutional.
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Although it would appear that a search warrant implicitly grants authority to seize the item that is
the object of the search, Mr. Welch has not cited any authority for either proposition, nor has he
developed either argument. See App.R. 16(A)(7). Accordingly, given the limited appellate
argument, Mr. Welch’s first assignment of error is overruled to the extent it challenges the
police’s seizure of his phone.
The Duffel Bag and Other Items
{¶14} Mr. Welch also argues that the seizure of his personal property left at the house
violated the Fourth Amendment and Article I, Section 10 of the Ohio Constitution because it was
seized without a warrant and no exception to the warrant requirement applied.
{¶15} As noted above, Detective Holsopple received a phone call from Mother, who
told him that she had found Mr. Welch’s personal items in her home and that she planned to
throw them out onto the curb. Detective Holsopple was concerned that evidence could be
destroyed so he sent Officer Laurenti to retrieve the items. Mr. Welch does not seem to suggest
that the threat of Mother to throw his possessions out of the house was not an exigent
circumstance. See Stuart, 547 U.S. at 403 (Warrantless seizure permitted to prevent the
destruction of evidence.). Instead, he argues that Detective Holsopple negated the potential
exigency by having told Mother not to throw out the evidence. He suggests that, since Detective
Holsopple told Mother not to throw out the evidence, police should have sought a warrant or
obtained Mr. Welch’s consent to seize the duffel bag.
{¶16} We reiterate that the touchstone of Fourth Amendment analysis is one of
reasonableness and that the question is whether the police officers’ actions were reasonable
under the totality of the circumstances. See Stuart, 547 U.S. at 403. See also Missouri v.
McNeely, ___ U.S. ___, 133 S. Ct. 1552, 1559 (2013). In this case, Mother had just learned that
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her 12-year-old daughter claimed that Mr. Welch had drugged, sexually abused, and
photographed her while he was babysitting her. Thus, even though Detective Holsopple had told
Mother to not discard Mr. Welch’s personal property, we cannot say that his concern that Mother
would ignore his directive was unreasonable under the circumstances. On the whole, the record
supports the conclusion that exigent circumstances existed such that it was reasonable for police
to recover the bag prior to it being discarded.1 Therefore, we cannot conclude that the police’s
seizure of Mr. Welch’s belongings was unreasonable under the circumstances of this case.
{¶17} Accordingly, Mr. Welch’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED
WELCH TO CONSECUTIVE MAXIMUM TERMS FOR EACH CHARGE
FOR WHICH HE WAS CONVICTED.
{¶18} In Mr. Welch’s second assignment of error, he challenges the trial court’s
imposition of consecutive, maximum sentences.
{¶19} This Court reviews sentences pursuant to the two-step approach set forth in State
v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912.
First, [we] must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court’s decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.
Id. at ¶ 26. “An abuse of discretion implies that the court’s decision is arbitrary, unreasonable, or
unconscionable.” Smith v. Smith, 9th Dist. Summit No. 26013, 2012-Ohio-1716, ¶ 8, citing
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
1
We note that, while Mother could not give police permission to search Mr. Welch’s
belongings, police might be warranted in taking the belongings into custody had she delivered
them to police. See Georgia v. Randolph, 547 U.S. 103, 116 (2006), citing Coolidge v. New
Hampshire, 403 U.S. 443, 489 (1971).
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{¶20} “Trial courts have full discretion to impose a prison sentence within the statutory
range and are no longer required to make findings or give their reasons for imposing maximum *
* * sentences.” State v. Foster, 109 Ohio St. 3d 2006-Ohio-856, paragraph seven of the syllabus.
[N]evertheless, in exercising its discretion, the [trial] court must carefully
consider the statutes that apply to every felony case. Those include R.C. 2929.11,
which specifies the purposes of sentencing, and R.C. 2929.12, which provides
guidance in considering factors relating to the seriousness of the offense and
recidivism of the offender.
State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, ¶ 38.
{¶21} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others and to punish the offender using the minimum sanctions
that the court determines accomplish those purposes without imposing an unnecessary burden on
state or local government resources.” R.C. 2929.11(A). R.C. 2929.12 in turn provides that a
sentencing judge has discretion to determine the most effective means of complying with the
purposes and principles of sentencing. In exercising its discretion, the sentencing judge “shall
consider” seriousness and recidivism factors pertinent to the ultimate achievement of the
purposes of felony sentencing articulated in R.C. 2929.11(A). R.C. 2929.12(A). R.C.
2929.12(B) includes factors that suggest that the offense is more serious. R.C. 2929.12(C)
includes factors suggesting the offense is less serious. The recidivism factors—factors indicating
an offender is more or less likely to commit future crimes—are set forth in R.C. 2929.12(D) and
(E). In addition, with respect to consecutive sentences, the trial court was required to comply
with R.C. 2929.14(C)(4), which provides,
If multiple prison terms are imposed on an offender for convictions of multiple
offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
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to the danger the offender poses to the public, and if the court also finds any of the
following:
(a) 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 section 2929.16, 2929.17, or 2929.18 of the Revised Code, 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 consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶22} At the sentencing hearing, the trial court imposed sentence after
having considered the presentence investigation, the statements of counsel, all
information before the Court, based upon the facts and circumstances,
consideration of the relevant sentencing factors, applying the minimum sanction
that the Court has determined will protect the public and punish you without
imposing an unnecessary burden on State or local resources, [and] considering all
the seriousness and recidivism factors[.]
{¶23} Mr. Welch acknowledges that, “[o]n its face,” it appears that the trial court
addressed the statutory requirements of R.C. 2929.11, R.C. 2929.12, and R.C. 2929.14(C)(4).
Nevertheless, he points to the trial court having expressly identified aggravating seriousness
factors without similar express consideration of the mitigating recidivism factors enumerated in
2929.12(D) and (E). Mr. Welch appears to suggest that the trial court acted contrary to law
because it failed to engage in the statutorily mandated sentencing inquiry. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, at ¶ 26. However, we do not find that argument well taken in light of
the record. Notwithstanding, Mr. Welch also suggests that the trial court did not weigh the
recidivism factors when juxtaposed with the seriousness factors, essentially arguing that the trial
court abused its discretion. Again, based on the record before us, we do not find that argument
well taken.
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{¶24} We note that, in making this argument, Mr. Welch addresses the length of his
prison terms in the aggregate rather than on an individual basis. See State v. Holdcroft, 137 Ohio
St.3d 526, 2013-Ohio-5014, ¶ 6, quoting State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, ¶
8 (“‘Ohio’s felony-sentencing scheme is clearly designed to focus the judge’s attention on one
offense at a time.’”). See also Saxon at paragraph two of the syllabus (“The sentencing-package
doctrine has no applicability to Ohio sentencing laws: the sentencing court may not employ the
doctrine when sentencing a defendant and appellate courts may not utilize the doctrine when
reviewing a sentence or sentences.”). In addition, Mr. Welch does not point to any portion of the
record to suggest that the imposition of a maximum sentence for the offense of corrupting a
minor with drugs or illegal use of a minor in nudity-oriented material was an abuse of discretion,
nor does he suggest that the record does not support the trial court’s findings pursuant to R.C.
2929.14(C)(4) for imposing consecutive sentences. See App.R. 16(A)(7).
{¶25} Based on Mr. Welch’s argument and our own review of the record, we cannot
conclude that the trial court failed to comply with all applicable rules and statutes in imposing
sentence such that Mr. Welch’s sentence is clearly and convincingly contrary to law. Nor can
we conclude that the trial court abused its discretion in its imposition of maximum terms of
imprisonment it ultimately imposed upon Mr. Welch or in its decision to order the terms be run
consecutively. Accordingly, his second assignment of error is overruled.
III.
{¶26} Mr. Welch’s assignments of error are overruled and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
DONALD J. MALARCIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.