author: CYNTHIA WESTCOTT RICE, J.

text:
    The BOARD OF COUNTY COMMISSIONERS, Plaintiff-Appellee, v. Vincent PRINDLE, et al., Defendants-Appellants.
    NOS. 2016-T-0117 2016-T-0118
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided April 16, 2018
    Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481; and James M. Brutz, Assistant Prosecutor, 842 Youngstown-Kingsville Road, Vienna, OH 44473 (For Plaintiff-Appellee).
    Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483 (For Defendants-Appellants).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellants, Vincent Prindle and Vickie Prindle, appeal the judgment of the Trumbull County Court of Common Pleas in favor of appellee, The Board of County Commissioners ("the county"), denying appellants' complaint for a writ of mandamus. At issue is whether the trial court abused its discretion in denying the writ and in finding that appellants failed to present clear and convincing evidence of a permanent taking of access rights to their property. For the reasons that follow, we affirm.

{¶ 2} On February 19, 2014, the county filed, in Case No. 2014-CV-00354, a petition for appropriation of a temporary easement on appellants' commercial real property located on High Street in Cortland to perform the work necessary to reconstruct a walk, drive, parking lot, and grading in connection with a county road-widening project. The easement was to last for 18 months from the date of entry by the county. Appellants filed an answer denying the material allegations of the complaint.

{¶ 3} While the appropriation case was pending, the road-widening project began in late October 2014, and was completed one month later in late November 2014.

{¶ 4} On November 25, 2015, after the county's appropriation case had been pending for nearly two years, appellants filed, in Case No. 2015-CV-02094, a separate action for a writ of mandamus. They alleged that, during the county's use of the temporary easement, it installed curbing along appellants' property in the road right of way. They alleged the curbing blocks appellants' vehicular access to the building on the property. Appellants demanded a writ of mandamus to compel the county to amend its appropriation action to include a taking of appellants' access rights. The county filed an answer denying the material allegations of the complaint.

{¶ 5} On March 16, 2016, the trial court consolidated the county's appropriation action with appellants' mandamus action. Each case had its own trial docket until the two actions were consolidated, after which, the case proceeded on the appropriation case docket. Following a trial, the court resolved the mandamus action by a judgment entered pursuant to Civ.R. 54(B), and the appropriation action remains pending. On appeal, appellants filed two notices of appeal, one for each of the cases. Both notices state that the judgment being appealed is the court's judgment denying appellants' complaint for a writ of mandamus. While the appeals were pending, this court, sua sponte, consolidated them for all purposes, and the parties' respective briefs included both appellate case numbers. The only issues raised on appeal involve the mandamus action.

{¶ 6} The matter was referred to the magistrate, who held a trial on appellants' complaint for mandamus on July 14 and 15, 2016.

{¶ 7} Vincent Prindle testified that he took title to the property as a gift from his mother-in-law in 2009. He said that the store-front building on the property was built in 1960 by his father-in-law, and that since that time it has been used as a laundromat, a church, a music store, and, finally, a used furniture store operated by appellants' most recent tenant, Patti Keller.

{¶ 8} Mr. Prindle said that, before the construction project, there was no curbing in front of the property. He said that during the project, curbing was installed along the front of the property, except for access to the parking lot on the north (left) side of the building. He said that at the front of the building, there is a ramp leading to the main entrance, which is a set of double doors. He said that, due to the curb, there is no way to drive directly from the street to the ramp for loading/unloading. He said that for this reason, Ms. Keller moved out of the building.

{¶ 9} Mr. Prindle said the parking lot on the north side of the building continues to provide ingress and egress for the building. He said the building can still be entered through the ramp and main entrance at the front of the store. He said the building can also be accessed through a door on the north side of the building. He said he could not recall if he lost any parking spots in the parking lot due to the project. He said that before the construction project, patrons of the property who parked in front of the building exited the property by backing into the road. He was not aware of Cortland's ordinance prohibiting this practice.

{¶ 10} Mr. Prindle said that since Ms. Keller left the building in September 2014, he has not listed the property for sale or rent and he now uses the building for storage.

{¶ 11} Patti Keller testified she owns a used furniture business. She said she operated her business out of appellants' building from 2009 to September 2014.

{¶ 12} Ms. Keller said that before the road-widening project, she used the ramp in front of the main entrance to load and unload furniture by backing her box truck from the road onto the ramp. She said her employees then brought the furniture down the ramp and put it in the truck. She said that before the project, there were two parking spaces in front of the building. She also had full use of the parking lot.

{¶ 13} Ms. Keller said that she moved out of the building in late September 2014, when she saw the future plans for the project, which included the installation of curbing along the front of the store. She said she moved out within days of seeing these plans because she would no longer be able to load/unload her truck at the main entrance and she would lose the two parking spaces in front of the store. Work on the project did not begin until late October 2014, one month after she moved out.

{¶ 14} Gary Shaffer, Trumbull County Deputy Engineer and project manager for the road-widening project, testified that the county used the temporary easement in front of the building to store materials and equipment. Although the term of the easement was for 18 months, the county only used it for about one month from October 30, 2014 to November 26, 2014, when work on the project was completed.

{¶ 15} Mr. Shaffer said that the county can do virtually anything it chooses for the public good within the road right-of-way.

{¶ 16} Mr. Shaffer said that during construction of the project, a six-inch curb was built at the edge of the road within the right of way along the frontage of appellants' property, except for the entrance to the parking lot on the north side of the building. Next to the curb, a two-foot wide tree lawn and then a sidewalk were installed. He said the right-of-way extends one foot past the edge of the sidewalk, which means the right of way comes right up to the base of appellants' ramp.

{¶ 17} While Mr. Shaffer testified that the curbing is an obstruction to the front of the building, he also said that, after the project, the driveway leading to the parking lot continues to provide ingress and egress access to the property.

{¶ 18} Donald Whitman, Cortland Safety Director, who is also a professional engineer and attorney, testified that curbing was installed to match curbing installed on other streets in the city consistent with Ohio Department of Transportation policies. He said that during the design process for the instant project, a public meeting was held on December 5, 2011, to solicit public comment from affected property owners and that Mr. Prindle attended that meeting. Mr. Whitman said that during the meeting, plans were displayed for the public, depicting the proposed curbing in front of appellants' property. Mr. Prindle admitted that he attended the meeting; that he was provided with a copy of the plans; and that he never complained about the proposed curbing.

{¶ 19} Mr. Whitman said that curbing is a standard practice according to the Ohio Department of Transportation Location and Design Manual for urban roads with low speed limits. He said that since the speed limit is 35 mph in the area, curbing was necessary for the safety of vehicular movement.

{¶ 20} Mr. Whitman referenced Cortland Ord. 1125.09(d), effective 1996, which provides: "All [commercial] off-street parking * * * shall be designed so that vehicles can turn around within the area and enter the street, road, or highway in such a manner as to completely eliminate the necessity of backing into the street, road, or highway." Mr. Whitman said that Ord. 1125.09(d) "requires businesses to have a parking area design so that vehicles can turn around completely on that property prior to entering the road right of way [to] eliminate the necessity of backing into the street, road, or highway." (Emphasis added.) He said the purpose of this ordinance is for the safety of the motoring public.

{¶ 21} Further, Ord. 1125.09(e) requires that commercial property owners provide off-street parking spaces in compliance with the dimensions specified.

{¶ 22} Mr. Whitman said that appellants did not lose any parking spaces in front of the building as a result of the curbing because, even before the curbing, the front of the building could not legally be used for parking. This is because backing a car out into the road (which Mr. Whitman indicated would be necessary to enter the road) would violate the city's parking regulations.

{¶ 23} Mr. Whitman said that when a new business comes into the city, he explains the parking requirements to the owner. He said that when Ms. Keller moved in, he told her she could not park in front of the building and that she could only park in the parking lot.

{¶ 24} On July 25, 2016, the magistrate issued her decision recommending that the writ of mandamus be denied. In support, the magistrate found that, after the construction, access remains to the frontage of the property and that, as such, access to the property from High Street was not destroyed or substantially impaired. Further, the magistrate found that parking in front of the building was prohibited by the city's parking ordinances.

{¶ 25} Appellants filed objections to the magistrate's decision. The court overruled the objections and adopted the magistrate's decision. The court found that appellants failed to show they had a clear legal right to a writ of mandamus and denied the writ. The court made the finding under Civ.R. 54(B) that there is no just reason for delay, making its judgment a final, appealable order. Appellants appeal the trial court's judgment, asserting three assignments of error. Because the assigned errors are related, they are considered together. They allege:

{¶ 26} "[1.] The magistrate and trial court committed prejudicial error and abused its [sic] discretion in determining that access to the Prindles' property from High Street was not destroyed or substantially impaired.

{¶ 27} "[2.] The magistrate and trial court committed prejudicial error and abused their discretion in applying city of Cortland Ordinance 1125.09(d) to deprive the owners of a writ of mandamus for the taking of their access rights.

{¶ 28} "[3.] The magistrate and trial court committed prejudicial error and absued [sic] its [sic] discretion in applying Cortland Ordinance 1125.02 and 1125.09 and determining that the owners [sic] use of the parking spaces did not constitute a nonconforming use as a reason to deprive the owners of a writ of mandamus for the blocking of its access."

{¶ 29} The Tenth District, in State ex rel. BDFM Co. v. Ohio Department of Transportation , 10th Dist. Franklin No. 11AP-1094, 2013-Ohio-107, 2013 WL 209132, stated:

{¶ 30} In the context of a taking, "The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation. * * * Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged." State ex rel. Shemo v. Mayfield Hts. , 95 Ohio St.3d 59, 63 [765 N.E.2d 345] (2002) * * *. Because "[m]andamus is an extraordinary writ that must be granted with caution," a party seeking a writ of mandamus must "establish entitlement to the requested extraordinary relief by clear and convincing evidence." State ex rel. Liberty Mills, Inc. v. Locker , 22 Ohio St.3d 102, 103 [488 N.E.2d 883] (1986) ; State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office , 133 Ohio St.3d 139, 2012-Ohio-4246 [976 N.E.2d 877], ¶ 16 * * *. BDFM at ¶ 14.

{¶ 31} Further, this court, in RG Steel Warren, L.L.C. v. Biviano , 11th Dist Trumbull No. 2014-T-0064, 2015-Ohio-5463, 2015 WL 9485688, ¶ 59, stated:

{¶ 32} In order to be entitled to a writ of mandamus, a relator must establish: (1) a clear legal right to the relief sought, (2) a clear legal duty on the part of the respondent to perform the requested act, and (3) the lack of an adequate remedy in the ordinary course of the law.
State ex rel. United Auto., Aerospace & Agricultural Implement Workers of Am. v. Bur. of Workers' Comp ., 108 Ohio St.3d 432, 2006-Ohio-1327 [844 N.E.2d 335] ¶ 34. The relator bears a heavy burden in a mandamus case and must submit facts and produce proof that is plain, clear, and convincing before a court is justified in using the "strong arm of the law" by granting a writ of mandamus . State ex rel. Pressley v. Indus. Comm. of Ohio , 11 Ohio St.2d 141, 161 [228 N.E.2d 631] (1967). Further, mandamus is * * * issued only when the right and duty are absolutely clear; the writ will not issue in doubtful cases . State ex rel. E. Cleveland v. Norton , 8th Dist. Cuyahoga No. 98772, 2013-Ohio-3723 [2013 WL 4680515] ¶ 2, citing State ex rel. Taylor v. Glasser , 50 Ohio St.2d 165 [364 N.E.2d 1] (1977). (Emphasis added.)

{¶ 33} Thus, appellants, as the parties seeking a writ of mandamus, had the burden to prove their entitlement to the writ by clear and convincing evidence. As such, they were required to prove that they had a clear legal right to compensation for a permanent taking of access rights to their property; that the county had a clear legal duty to compensate them for such alleged taking; and that appellants had no adequate remedy at law.

{¶ 34} With respect to the issues presented here, the Tenth District, in Vineyard Fellowship v. Anderson , 10th Dist., 2015-Ohio-5083, 53 N.E.3d 910, discussed the city's authority under a public right-of-way, as follows:

{¶ 35} The term "right-of-way" "is generally understood as referring to the easement acquired by the public in that portion of the land of the owner thereof over which a road or highway passes, with all the powers and privileges that are necessarily incident to such easement ." 1988 Ohio Atty.Gen.Ops. No. 88-080 * * *.
{¶ 36} * * *
{¶ 37} [N]ormally this right-of-way would include the shoulder or berm. R.C. 4511.01(UU)(2) defines "[r]ight-of-way" as "[a] general term denoting land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to transportation purposes. When used in this context, right-of-way includes the roadway, shoulders or berm, ditch, and slopes extending to the right-of-way limits under the control of the state or local authority."
{¶ 38} * * *
{¶ 39} In Ohio, "while the public has the right of improvement and uninterrupted travel, the abutting owner has the right to all uses of the land not inconsistent with this right of travel and improvement." Callen v. Columbus Edison Elec. Light Co. , 66 Ohio St. 166, 172 [64 N.E. 141] (1902). " ' * * * The abutting owner has every right to all uses of the land not inconsistent with such right of improvement and travel , or with the rights of access thereto of other abutting owners.' " Miller v. Berryhill Nursery Co. , 7 Ohio App.2d 30, 33 [218 N.E.2d 467] (2d Dist. 1966), quoting 27 Ohio Jurisprudence 2d 207, Highways and Streets, Section 165.
{¶ 40} The easement for a public highway includes the right to construct, maintain, and improve a safe and convenient roadway. "The [City] has the right to improve and use the land upon which a common highway has been established ." State ex rel. E. Ohio Gas Co. v. Bd. of Cty. Comm. of Stark Cty. , 5th Dist., 2012-Ohio-4533 [980 N.E.2d 1056] ¶ 40.
{¶ 41} There was testimony in the record that the City could install sidewalks along Cooper Road and, under Ohio law, the sidewalk would then also be considered part of the street and the public right-of-way . * * * Pretzinger v. Sunderland , 63 Ohio St. 132, 140 [57 N.E. 1097] (1900) (sidewalk considered part of street). (Emphasis added.) Vineyard,supra , at ¶ 28-35.

{¶ 42} Since the grant or denial of a writ of mandamus necessarily requires the trial court to exercise discretion, an appellate court reviews such decision under the abuse of discretion standard. BDFM at ¶ 13.

{¶ 43} I. THE RAMP AND MAIN ENTRANCE TO THE BUILDING

{¶ 44} Here, the trial court, in adopting the magistrate's decision, found: "In the case at bar, after construction there remains access to the frontage of the property to the north of the building. As such, the [court] cannot find that access to the property from High Street was destroyed or substantially impaired."

{¶ 45} Appellants do not dispute that they still have access to the parking lot as well as the ramp and main entrance to the building. Rather, they argue the county's installation of curbing during the project destroyed their access from the street directly to the ramp/main entrance for loading/unloading without creating an alternative access. However, appellants' argument lacks merit because they still have access to the ramp/main entrance from High Street just a few feet to the left of the ramp .

{¶ 46} Photographs of the front of the building, taken after construction was completed, show a large paved area between the driveway (leading to the parking lot) and the ramp (leading to the main entrance). These photographs show the driveway provides direct and unobstructed access from the street to the side of the ramp. The driveway and paved area next to the ramp are clearly large enough and close enough to the ramp for a truck to back up to the side of the ramp. Cortland Safety Director Whitman testified the city's parking regulations allow vehicles to back into a driveway or parking lot of a business from the street. Thus, after the construction project, appellants and users of their property can back their trucks from the street into the driveway and then to the side of the ramp to be loaded or unloaded. They can then legally exit the property by driving forward into the street.

{¶ 47} Ms. Keller testified that her box truck would "back up to the ramp" and "we would bring stuff down the ramp this way and [put it] into the box truck." With the truck backed up to the side of the ramp, appellants can just as easily load or unload the truck from that location. Thus, contrary to appellants' argument, the curbing did not prevent them from using the ramp and main entrance to load and unload merchandise. As a result, there was no taking because, after the construction, trucks can still be loaded and unloaded at the ramp.

{¶ 48} Appellants' reliance on State ex rel. OTR v. Columbus , 76 Ohio St.3d 203, 667 N.E.2d 8 (1996), and Hilliard v. First Industrial, L.P., 158 Ohio App.3d 792, 2004-Ohio-5836, 822 N.E.2d 441 (10th Dist.), is misplaced as those cases are easily distinguishable. In OTR , the Court held that re-grading of the city street resulted in a taking because it prevented an abutting business owner from ever having access to the street. Id. at 209, 667 N.E.2d 8. In Hilliard , a taking occurred where the city's construction project destroyed a road leading to the property's loading dock without creating an alternative road to the dock. Id. at 794, 822 N.E.2d 441.

{¶ 49} II. PARKING IN FRONT OF THE BUILDING

{¶ 50} Turning now to appellants' argument that the county has deprived them of the right to use the front of their building for parking, this argument also lacks merit.

{¶ 51} The trial court found that because appellants took title to the property in 2009, which was long after the effective date of Ord. 1125.09, that ordinance applies to them. Appellants essentially make two arguments in support of their position that they are entitled to park in front of the building. Under the first, they argue that, without the curbing, they could comply with Ord. 1125.09(d). Under the second, they argue this ordinance does not apply to them. Both arguments lack merit.

{¶ 52} First, appellants try to show that, without the curbing, it was possible to design parking so as to comply with Ord. 1125.09(d). As noted above, that section requires that all off-street commercial parking "be designed so that vehicles can turn around within the area and enter the street * * * in such a manner as to completely eliminate the necessity of backing into the street * * *."

{¶ 53} Appellants argue that, before the curbing, vehicles parked in front of the building could be angled in such a way as to avoid encroaching in the right-of-way. In making this argument, they rely on Deputy Engineer Shaffer's testimony that if vehicles were parked at a "severe" angle (nearly parallel to the front of the building), they could avoid being in the right-of-way. However, even if parking at an angle would avoid encroaching in the right-of-way, this does not mean cars would have enough room to turn around on appellants' property before entering the street without backing into it, as required by the ordinance.

{¶ 54} Since the right of way comes right up to the ramp making it impossible for appellants to turn around on their property, they argue the ordinance should be interpreted to allow them to back up into the right-of-way and use both their property and the right-of-way to turn around before entering the street. However, according to the clear terms of the ordinance, vehicles are required to turn around on the owner's property before they enter the street. Further, nothing in the ordinance suggests the right of way can be used to turn around. According to Safety Director Whitman, the right-of-way is owned by the city. Thus, it is to be used for public uses, such as streets, curbs, tree lawns, and sidewalks, not for private uses. If the right-of-way could be used to turn around, this would defeat the purpose of the ordinance-to promote the safety of the motoring public. Further, as Mr. Whitman said, Ord. 1125.09(d) requires businesses like appellants' to have a parking area design so that vehicles can turn around "completely" on that property before exiting the property.

{¶ 55} Further, pursuant to the case law outlined above, the city had the right to install the curb, tree lawn, and sidewalk within the right-of-way and, once installed, appellants could not use the right-of-way to turn around because this would be inconsistent with the city's right of improvement and uninterrupted travel. Vineyard, supra .

{¶ 56} We agree with the trial court's finding that appellants failed to prove that, without the curbing, it is possible to design parking spots in front of the building so that vehicles could turn around within the area and enter the street without having to back out, as required by Ord. 1125.09(d). Thus, appellants had no right to park in front of the building and the city's improvement project did not result in a taking of such alleged right.

{¶ 57} We also agree with the trial court's finding that appellants failed to prove they were entitled to park in front of the building because they failed to prove that parking there could satisfy the size requirements for parking spaces in Ord. 2511.09(e).

{¶ 58} Second, appellants argue (somewhat awkwardly) that since the prior tenants were commercial, they, i.e., appellants, should be permitted to park in front of the building as a nonconforming use without having to comply with Ord. 1125.09(d).

{¶ 59} A nonconforming use is a lawful use of property in existence at the time of enactment of a zoning ordinance that does not conform to the requirements under the new ordinance. Janson v. John Bininato, Zoning Inspector , 11th Dist. Ashtabula Nos. 2015-A-0039 and 2015-A-0040, 2016-Ohio-2796, 2016 WL 1734260, ¶ 24. Appellants fail to cite any case law holding that the nonconforming use doctrine applies to matters of public safety, such as regulations prohibiting the practice of backing out into a public street. Further, appellants failed to prove that at the time Ord. 1125.09(d) was enacted, parking in front of the building was lawful, i.e., that it was in compliance with all land use or other applicable regulations. Moreover, Mr. Whitman indicated that any such use was abandoned under Ord. 1125.02 because, after 1125.09(d) was enacted, the property was vacant for more than two years before Ms. Keller moved in. We therefore agree with the trial court's finding that appellants failed to prove that parking in front of the building constitutes a nonconforming use allowed under Ord. 1125.02.

{¶ 60} Further, appellants' argument that Ord. 1125.02(b), which provides that a nonconforming use may be changed to a conforming use, is irrelevant. This provision applies when a property owner uses a parcel for a nonconforming use (e.g., a commercial use in a district zoned residential) and later decides to use the property for a residential use. Under Ord. 1125.02(b), the residential use would be allowed. However, since there is no dispute that appellants' property is zoned commercial and has previously been used for commercial purposes, Ord. 1125.02(b) does not apply.

{¶ 61} Finally, appellants argue that Ord. 1125.09(d) is unconstitutional because it confiscates appellants' alleged "back-out" rights without compensation. However, the issue was not litigated in trial and appellants fail to demonstrate on appeal that they had a right to back out into the street or that Ord. 1125.09(d) is unconstitutional.

{¶ 62} Based on the record, the trial court did not abuse its discretion in denying appellants a writ of mandamus and in finding they failed to present clear and convincing evidence that the county destroyed or substantially impaired their access to the main entrance or to the front of the building for parking.

{¶ 63} For the reasons stated in this opinion, the assignments of error are overruled. It is the order and judgment of this court that the judgment of the Trumbull County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J., concurs in judgment only,

COLLEEN MARY O'TOOLE, J., dissents.


source: Caselaw Access Project

author: DIANE V. GRENDELL, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Donald William DEWEES, Defendant-Appellant.
    NO. 2017-T-0038
    Court of Appeals of Ohio, Eleventh District, Trumbull County.
    Decided April 30, 2018
    Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman and Ashleigh Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
    Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-Appellant).
   DIANE V. GRENDELL, J.

{¶ 1} Defendant-appellant, Donald W. DeWees, appeals his convictions and sentences following a jury trial in the Trumbull County Court of Common Pleas for Attempted Rape and Kidnapping. The issues before this court are whether charges for Kidnapping and Attempted Rape merge where the victim has been moved to a secretive confinement before the attempt is made to avoid detection and whether the victim's alcoholism renders her testimony unbelievable where it is inherently more probable than the defendant's version. For the following reasons, we affirm the decision of the court below.

{¶ 2} On September 12, 2016, the Trumbull County Grand Jury indicted DeWees for Attempted Rape (Count 1), a felony of the second degree in violation of R.C. 2923.02(A) and 2907.02(A)(2) and (B), and Kidnapping (Count 2), a felony of the first degree in violation of R.C. 2905.01(A)(4) and (C)(1).

{¶ 3} On September 15, 2016, DeWees was arraigned and entered pleas of not guilty.

{¶ 4} On February 27 and 28, 2017, the case was tried before a jury at which the following testimony was given:

{¶ 5} A.G.L. testified that she dated DeWees for about three and a half years until November 2015, and that they remained friends thereafter.

{¶ 6} On August 5, 2016, A.G.L. made plans to spend the day fishing with a new boyfriend, Daniel Pigg, at a canoe livery located within walking distance of her home on East Jay Street in Newton Falls.

A.G.L. arrived at the livery at about 4:00 p.m. Aware of her plans for the day, DeWees arrived next at the livery with a cooler of beer which they began drinking. Pigg arrived within a half-hour and the three engaged in casual conversation.

{¶ 7} DeWees began asking questions about A.G.L. and Pigg's relationship and then insulting A.G.L. A.G.L. described the situation as awkward and she wanted to leave.

{¶ 8} At about 6:00 p.m., A.G.L. left the livery having made arrangements via text-messaging to meet Pigg later to go camping. She went home to pack some camping gear in a book bag and walked back to a paved trail (the Newton Falls Trail) leading to the campsite.

{¶ 9} As she emerged from a tunnel passing underneath railroad track, DeWees confronted her, calling her a "cheat" and a "liar" among other things, and they began to argue. DeWees grabbed A.G.L. by the hair and neck and dragged her up an incline about five or six feet from the trail. DeWees pushed A.G.L. to the ground on her back and said that he wanted to have his way with her before Pigg did. DeWees sat on her and started to tear her clothes off. A.G.L. resisted and DeWees punched her several times in the face. DeWees took off her clothes (a tank top, boxers, and "boy shorts") only leaving her bra on. DeWees then stood up and A.G.L. kicked him hard in the groin. DeWees went to the ground coughing.

{¶ 10} A.G.L. was able to run back to the paved trail where she grabbed a towel from her bookbag to cover herself. A.G.L. continued running back to her home on Jay Street with DeWees following her on a bicycle. At the house, she met Norman Reese, who also resides at that address, and called 911. A recording of the 911 call was played for the jury on which A.G.L. told the dispatcher that DeWees "hit me several times in the head and tried to rape me." A.G.L. had a laceration on the side of her head, a bruised lip, and a swollen face. There were other visible marks and injuries on her neck and back.

{¶ 11} On cross-examination, A.G.L. admitted she was an alcoholic and had drunk about eight beers during the course of the day on August 5. The defense also impeached A.G.L. with letters she had written indicating that, contrary to her testimony on direct, she was still involved with DeWees in December of 2015.

{¶ 12} Daniel Pigg testified that he arrived at the canoe livery on August 5, 2016, around 5:00 p.m. after leaving work for the day. He drank about three beers before DeWees became upset and began verbally abusing A.G.L. A.G.L. said she did not have to take this and left. Pigg also left on the pretext that he was going to buy more beer. Instead, he went home to get camping gear and meet A.G.L. later that evening.

{¶ 13} Pigg reached the campsite at approximately 9:00 p.m. After waiting about forty-five minutes for A.G.L. to arrive, he called her but she did not answer. He called her a second time and she answered while running back to her home. She was crying and emotional and told him that DeWees had just beat her up and tried to rape her. Pigg could hear DeWees in the background yelling that he did not do anything.

{¶ 14} Norman J. Reese testified that, in August 2016, he was living on East Jay Street with A.G.L., who was helping him take care of himself following a stroke. At about 10:00 p.m. that evening, A.G.L. came banging on the door (it was locked), crying and dirty. A.G.L. was screaming at someone on a bicycle and he was hollering back. When asked, A.G.L. said that DeWees had beat her up and tried to rape her.

{¶ 15} Adam C. Gilger of the Newton Falls Police Department was dispatched to A.G.L.'s home on August 5, 2016. Gilger took a verbal statement from A.G.L. but deferred taking a written statement until the next day since she appeared intoxicated. That evening, Gilger searched the trail by the tunnel for A.G.L.'s clothes but did not find anything.

{¶ 16} Sergeant Steven Storm of the Newton Falls Police Department executed the warrant for DeWees' arrest on August 9, 2016. After being taken into custody, DeWees stated that he, A.G.L., and Pigg had been drinking at the canoe livery. A.G.L. and Pigg left and did not return. DeWees said he eventually left also on his bicycle and came upon A.G.L. and Pigg having sex by the railroad tunnel. DeWees began calling A.G.L. names and Pigg ran away. DeWees offered no explanation for A.G.L.'s injuries.

{¶ 17} DeWees also told Sergeant Storm that he returned to the trail the next day to retrieve his sunglasses and found A.G.L.'s "torn up clothes." DeWees said he put the clothes in his beer cooler and left the cooler at the canoe livery. Storm went to the livery and found the cooler as described by DeWees. Inside were underwear, a tank top, and a tie string-"all balled up and twisted."

{¶ 18} Christine Hammett, a forensic scientist for the Bureau of Criminal Investigation (BCI), tested the clothing retrieved from DeWees' cooler for blood and semen. The underwear and tank top tested presumptive positive for blood and no semen was identified. The string did not have stains for analysis.

{¶ 19} Michelle Matozel, a forensic scientist for BCI, performed DNA testing on samples taken from A.G.L.'s underwear and tank top. Matozel confirmed the existence of A.G.L.'s blood on the underwear and tank top. The samples also revealed a mixture of DNA.

{¶ 20} Hallie Dreyer, a forensic scientist for BCI, performed Y-STR testing (male specific) on samples taken from A.G.L.'s underwear and tank top. She testified that neither DeWees nor his paternal male relatives could be excluded as minor contributors to the DNA samples and that the estimated frequency of DeWees' profile among unrelated males was 1 in 621 (the highest possible probability obtainable at the time of testing given the number of available profiles). Dreyer also opined that the profile was not indicative of more than one male contributor.

{¶ 21} On cross-examination, Dreyer testified that she could not identify the source of the DNA (e.g. blood, semen, touch) and that she only had a profile from DeWees for comparison.

{¶ 22} DeWees testified that, on August 5, 2016, he made plans to meet A.G.L., who was then his girlfriend, at the canoe livery. They had spent about two hours drinking beer when Pigg arrived. DeWees left to purchase more beer and the three of them continued drinking. At about 7:30 or 8:00 p.m., A.G.L. left to go home because she was tired and wanted to rest. About fifteen minutes later, Pigg left to obtain more beer.

{¶ 23} When Pigg did not return after about 40 minutes, DeWees decided to visit a friend and began riding his bicycle north along the trail. After passing the railroad tunnel, DeWees heard A.G.L. so he stopped and got off the bicycle. He called her name and saw someone run away into the woods who looked like Pigg, but he could not be sure because it was becoming dark.

{¶ 24} DeWees found A.G.L. up an embankment about 25 feet from the trail, lying on a towel, naked except for a bra. He became upset and called her a slut and a whore and asked if there was anyone else in town she was screwing. A.G.L. yelled back and kicked him in the groin. When he doubled over, she began to punch him on the back of the head. He slapped her. She came at him again and he shoved her. A.G.L. fell face first back down the embankment. She then grabbed her towel and left. DeWees followed A.G.L. on his bicycle to "make sure she made it home."

{¶ 25} The next day, DeWees returned to the place where he and A.G.L. had had their altercation to look for his sunglasses. He also found A.G.L.'s shirt, underwear, and hair tie. He put them in his cooler and left the cooler at the canoe livery.

{¶ 26} On cross-examination, DeWees was unable to explain how the blood might have gotten on A.G.L.'s clothes, except that maybe she was menstruating that day and forgot her "wad."

{¶ 27} On March 1, 2017, the jury returned guilty verdicts as to each count of the Indictment.

{¶ 28} On March 15, 2017, a sentencing hearing was held. Over the objection of defense counsel, the trial court did not merge the convictions. The court ordered DeWees to serve a sentence of ten years for Kidnapping concurrently with eight years for Attempted Rape for an aggregate sentence of ten years. The court further advised DeWees that he would be subject to mandatory periods of post release control of five and three years respectively and classified as a Tier III Sex Offender.

{¶ 29} On March 21, 2017, DeWees' sentence was memorialized in a written Entry on Sentence.

{¶ 30} On April 18, 2017, DeWees filed a Notice of Appeal. On appeal, DeWees raises the following assignments of error:

{¶ 31} "[1.] The trial court erred, as a matter of law, by sentencing appellant on both the attempted rape and kidnapping charges as the charges are allied offenses of similar import."

{¶ 32} "[2.] The appellant's convictions are against the manifest weight of the evidence."

{¶ 33} The first assignment of error raises the issue of whether DeWees may stand convicted of both Attempted Rape and Kidnapping.

{¶ 34} Ohio's multiple counts or allied offenses of similar import statute provides:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

R.C. 2941.25 ; State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of the syllabus ("a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus").

{¶ 35} "In determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors-the conduct, the animus, and the import." Ruff at paragraph one of the syllabus. "Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus.

{¶ 36} "An appellate court should apply a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination." State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

{¶ 37} Specific to the charges of Kidnapping and Rape, the Ohio Supreme Court has recognized that "implicit within every forcible rape * * * is a kidnapping." State v. Logan , 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). In applying R.C. 2941.25(B) to the charge of Kidnapping, then, the Court has adopted the following guidelines:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

Id. at syllabus.

{¶ 38} DeWees argues that the Kidnapping and Attempted Rape convictions should have merged: "there is simply nothing in the record indicating that Appellant forcibly moved the alleged victim up the small embankment for any other purpose than the alleged attempted sexual assault." Appellant's brief at 9. We disagree.

{¶ 39} The evidence at trial fairly demonstrates that the purpose of DeWees' confinement and asportation of A.G.L. was to remove her to a secretive confinement and thus avoid the possibility of detection while committing the sexual assault. DeWees accosted A.G.L. on the Newton Falls Trail, a paved all-purpose trail along the Mahoning River. Rather than raping her there, he dragged her up an embankment to where train tracks pass over the trail. A.G.L. testified that the location was "not visible from the sidewalk." Consistent with DeWees' purpose, Officer Gilger was unable to find evidence of the rape when he searched the area that evening. DeWees, however, was able to recover A.G.L.'s clothes the following day.

{¶ 40} Thus, the charges of Kidnapping and Attempted Rape were distinguished by separate conduct and animus (or motivation as it is characterized in Ruff ). The Kidnapping consisted of DeWees removing A.G.L. by force, dragging her by the hair and neck, from a public walkway where she was found to a place not visible from that walkway for the purpose of raping her without detection. R.C. 2905.01(A)(4).

Nothing impeded him from committing the rape where he found her. Once removed from the trail, DeWees pushed her to the ground and sat on her while removing her clothes. The restraint of her liberty at that point was clearly to facilitate the rape itself. R.C. 2907.02(A)(2).

{¶ 41} "Secret confinement, such as in an abandoned building or nontrafficked area, without the showing of any substantial asportation, may, in a given instance, also signify a separate animus and support a conviction for kidnapping apart from the commission of an underlying offense." Logan , 60 Ohio St.2d at 135, 397 N.E.2d 1345. There are many cases to support the proposition Kidnapping and Rape should not merge where the Kidnapping serves the distinct purpose of concealing the Rape. State v. Helms , 7th Dist. Mahoning No. 15 MA 0183, 2017-Ohio-4383, 2017 WL 2628556, ¶ 17 ("Helms drove the victim to a different location to rape her; he did not rape her in the location where he began making sexual advances * * * demonstrat[ing] that the rape and kidnapping were committed with a separate animus"); State v. Terry , 10th Dist. Franklin No. 15AP-176, 2015-Ohio-3847, 2015 WL 5555259, ¶ 16 (where the victim was dragged around the corner from her residence and forced into a dark, open garage, "the movement of the victim prior to the rape, although not long in duration, * * * was not merely incidental to the rape"); State v. Zanders , 8th Dist. Cuyahoga No. 99146, 2013-Ohio-3619, 2013 WL 4510664, ¶ 29 (the restraint and force used in "dragg[ing] the victim by the back of her hair from a pay phone across the street and then through an open field to a secluded 'cubbyhole' in the rear yard behind a building * * * was separate and distinct from the force exercised during acts of the rape"); State v. Merryman , 4th Dist. Athens No. 12CA28, 2013-Ohio-4810, 2013 WL 5914864, ¶ 52 ("[h]e could have performed oral sex upon the victim in the hallway but Merryman had a separate animus for the kidnapping, i.e. he wanted his actions to be secret; this separate animus supports a separate conviction for kidnapping").

{¶ 42} Admittedly, there are similar cases which support the contrary conclusion that the Kidnapping and Attempted Rape charges should have merged. See, e.g., State v. Johnson , 2014-Ohio-4750, 22 N.E.3d 249, ¶ 108 (3d Dist.) (Johnson's act of moving the victim from an alley "to an area under a porch on the exterior of an apparently abandoned apartment building[,] * * * threaten[ing] to kill [her] * * *, and order[ing] her to perform fellatio * * * demonstrates that Johnson's restraint and movement of M.F. had no significance apart from facilitating the rape") (cases cited); State v. Lundy , 8th Dist. Cuyahoga No. 105117, 2017-Ohio-9155, 2017 WL 6540626, ¶ 33-34 (although "Lundy obviously removed G.H. from the bus stop in order to avoid detection," the act "was brief and the movement was slight" so that "the kidnapping was incidental to the rape itself" and "there was no separate animus for the kidnapping").

{¶ 43} Given the fact-specific nature of the inquiry, we need not expressly adopt one line of cases and reject the other. More than once the Ohio Supreme Court has "recognize[d] that this analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases." Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 32, quoting State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52. "But different results are permissible, given that the statute instructs courts to examine a defendant's conduct-an inherently subjective determination." (Citation omitted.) Id.

{¶ 44} Given the facts of this case, it is clear that the Kidnapping and Attempted Rape resulted from distinct conduct and motivation. The act of dragging A.G.L. by the hair and neck neither directly facilitated nor was immediately motivated by the desire to commit the rape (which could be considered a secondary effect of the conduct). This conduct was not, in the words of the Logan court, a priori necessary to commit the rape. Rather, again in the words of the Logan court, its purpose was the secretive confinement of A.G.L. so that the rape could be committed without detection. Pushing A.G.L. to the ground, sitting on her, and tearing her clothes off was the conduct properly constituting the Attempted Rape. Finally, we emphasize that, under Ruff , either distinct conduct or a distinct animus/motivation is sufficient for the charges not to merge. Ruff at paragraph three of the syllabus ("a defendant * * * may be convicted of all the offenses if any one of the following is true * * * the conduct shows that the offenses were committed separately, or * * * the conduct shows that the offenses were committed with separate animus").

{¶ 45} The first assignment of error is without merit.

{¶ 46} Under the second assignment of error, DeWees argues that his convictions are against the manifest weight of the evidence.

{¶ 47} "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.' " (Citation omitted.) State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A challenge to the weight of the evidence compels a reviewing court to consider "the evidence's effect of inducing belief" and ask "whose evidence is more persuasive-the state's or the defendant's?" State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Citation omitted.) Thompkins at 387, 678 N.E.2d 541.

{¶ 48} DeWees does not contend that there was insufficient evidence to support his convictions, but that his version of the events of August 5, 2016, is more credible than A.G.L.'s version. We disagree. DeWees emphasizes A.G.L.'s alcoholism and the discrepancies in her version of events. We find neither her alcoholism nor the discrepancies particularly material.

{¶ 49} A.G.L.'s ability to recall events properly was not an issue in the present case. The condition of her face and absence of clothing are not in dispute. Nor is DeWees' identity an issue inasmuch as he admits being with A.G.L. at the scene of the crime and striking her. A.G.L. within minutes of the attack and consistently thereafter described DeWees' conduct as Attempted Rape. Moreover, the jury heard A.G.L.'s 911 call and could form its own opinion of her coherence therefrom.

{¶ 50} The discrepancies in A.G.L.'s testimony are not significant and only cast slight doubt on her overall credibility. DeWees maintains that his testimony and A.G.L.'s testimony were the only "particularly meaningful testimony" on the issue of guilt. When the two versions of the events are compared (even excepting the substantial evidence corroborating her version), A.G.L.'s is easily the more believable. A.G.L.'s injuries are more consistent with an assault than with a "face plant" from being pushed down the embankment. DeWees maintains that A.G.L. was already naked when he struck her but offers no plausible explanation for the blood on her clothing, or why he would hide her clothes in his cooler afterwards.

{¶ 51} DeWees' convictions do not constitute a miscarriage of justice. The second assignment of error is without merit.

{¶ 52} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas, finding DeWees guilty of Kidnapping and Attempted Rape, is affirmed. Costs to be taxed against the appellant.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O'TOOLE, J.,

concur.

      Dreyer tested four samples: one sample from the tank top and three from the underwear. The tank top and one of the underwear samples yielded DNA consistent with DeWees. The two other underwear samples did not yield sufficient data for comparison.

      "No person, by force, * * * shall remove another from the place where the other person is found * * * [t]o engage in sexual activity."

      "No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force * * *."


author: McFarland, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. SKY LAKE and Tracy L. Ellis, Defendants-Appellants.
    Nos. 17CA15 17CA16
    Court of Appeals of Ohio, Fourth District, Lawrence County.
    Released: April 27, 2018
    Stephen T. Wolfe, Wolfe Law Group, LLC, Columbus, Ohio, for Appellants.
    Brigham Anderson, Lawrence County Prosecutor, and Daniel Kasaris, Special Assistant Lawrence County Prosecutor/Senior Assistant Ohio Attorney General, Cleveland, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   McFarland, J.

{¶ 1} Appellants, Tracy Ellis and Sky Lake, Inc., in a consolidated appeal, challenge the decisions of the trial court denying their motions to suppress filed in separate cases below. On appeal, Appellants contend that 1) the trial court erred in finding that the warrantless search by law enforcement officers was justified; and 2) the trial court erred in finding that a warrant obtained after warrantless police entry was issued on valid probable cause. However, in light of our determination that the trial court reasonably concluded that staff at Sky Lake impliedly consented to law enforcement officers entering a game room that contained illegal gambling machines, Appellants' constitutional rights were not violated by the warrantless search, or subsequent search pursuant to a warrant, that occurred as a result. Therefore, Appellants were not entitled to suppression of the evidence obtained as a result of the search. Accordingly, both of Appellants' assignments of error are overruled and the judgment of the trial court is affirmed.

FACTS

{¶ 2} Appellants, Tracy Ellis and Sky Lake, Inc., were indicted on April 19, 2016 on multiple misdemeanor and felony counts. Tracy Ellis was indicted for twenty-four counts, including three first degree misdemeanor counts of gambling, twelve third degree felony counts of money laundering, four fifth degree felony counts of possession of criminal tools, three first degree misdemeanor counts of operating a gambling house and two first degree felony counts of engaging in a pattern of corrupt activity. Sky Lake, Inc. was separately indicted on identical counts.

{¶ 3} The indictments stemmed from a several months-long investigation by investigators from the Charitable Law Section of the Ohio Attorney General's Office, which was initiated after an anonymous complaint was made indicating that illegal gambling machines were located at Sky Lake, Inc. The record indicates that Appellant Sky Lake, Inc. is a public pay lake and restaurant owned by Appellant Tracy Ellis, and is located in Lawrence County, Ohio. Both Appellants denied the charges and their cases proceeded in the trial court as separate cases. Motions to suppress were filed in each case and a joint hearing on the motions was held June 15, 2017.

{¶ 4} The State presented Damon Roberts as its sole witness in the suppression hearing. A review of the suppression hearing transcript indicates that Roberts, at the time of the investigations, was a major case investigator with the Charitable Law Section of the Ohio Attorney General's office. Roberts testified that he and his partner, Tim Meyers, initially visited Sky Lake on the evening of January 17, 2014, after receiving an anonymous complaint. He testified that he and Meyers entered the establishment, ordered food and ate. He testified that while standing at the bar drinking coffee after he ate, he could hear bells and pinging sounds and that he was able to observe monitors that were lit up in a dark room near the bar. He testified that based on his experience he recognized the sounds to be those of slot machines. He testified the door to the room with what appeared to be slot machines was kept closed, but did not appear to be locked, and that he observed individuals leaving the room. He then left and did not return until March 14, 2014.

{¶ 5} During his second visit, Roberts testified that he entered the restaurant with Meyers, he approached the clerk at the counter, and he asked the clerk to give him five ten dollar bills in exchange for a fifty dollar bill. He testified that he told the clerk at that time that he wanted change for the games or machines. The clerk obliged and made change from cash contained in her apron. Roberts testified that he and Meyers then walked into the game room, which was about ten steps away from the counter where the clerk was located. Roberts testified that he did not have to be buzzed into the room and that the door to the room was unlocked. Roberts testified that there was a sign on the outside of the door to the game room marked either "private" or "employees only." Upon viewing photos of the facility, Roberts clarified that the door he went through to access the game room was marked "private," rather than "employees only," and that the reference in his written reports indicating the door was marked "employees only" was a mistake.

{¶ 6} A review of the transcript further reveals that after entering the game room, the investigators played the machines, printed vouchers and then cashed out by following instructions posted in the game room directing them to ring the doorbell in order for a clerk to come to the game room. Roberts testified that the clerk wrote their names down and then paid them from the pocket of her apron. Roberts testified that he went back three additional times after his March visit until July when a search warrant was obtained and executed.

{¶ 7} Appellants presented one witness in support of their suppression motion, Carol Ellis, wife of Tracy Ellis. Mrs. Ellis testified that there are three doors as evidenced in the photos introduced at the hearing. The door to the far left is located behind the counter, has no sign, and leads into the kitchen. She testified that the middle door is also located behind the counter, is marked "employees only," and leads into the bait room. She testified that the door to the far right leads into the game room and is marked "private." She testified it was her understanding that the door into the game room was kept locked and that individuals had to be "buzzed in" by the clerk. However, she also conceded that she had never worked at Sky Lake, had never tried to go into the game room and was not there on the dates at issue.

{¶ 8} After permitting oral closing arguments, the trial court issued a written decision on July 3, 2017 denying both of the motions to suppress. In reaching its decision, the trial court noted that although Sky Lake was open to the public, it had a right to preserve certain areas as private. However, the trial court determined that Roberts was given implied consent to enter the game room when the clerk provided him change in response to his request for her to do so in order that he could play the machines, followed by the fact that he then walked into the game room unimpeded, played games, printed vouchers, and exchanged them for cash. The trial court reasoned that the fact pattern demonstrated, at the least, implicit consent to his presence in the game room. The trial court further opined that it was unclear whether the buzzer was operational or if the door was already unlocked on the dates at issue, but that if the door was locked and Roberts was in fact buzzed in, as described by Mrs. Ellis in her testimony, then Sky Lake had expressly consented to Roberts' presence in the game room.

{¶ 9} Thereafter, Appellants entered into plea negotiations whereby they pleaded no contest to the following counts, in exchange for the dismissal of the remaining counts: Tracy Ellis-two counts of first degree misdemeanor gambling and six counts of fifth degree felony possession of criminal tools ; and Sky Lake, Inc.-two counts of third degree felony money laundering and one count of attempted engaging in a pattern or corrupt activity, a third degree felony. Appellant Tracy Ellis was sentenced to a one-year term of community control, as well as ninety days of house arrest, court costs, and forfeiture of $68,251.96. Appellant Sky Lake, Inc. was sentenced to a forfeiture of any and all interest it had in the $68,251.96, which were proceeds of criminal activity.

{¶ 10} Appellants separately appealed to this Court and the appeals were thereafter consolidated. Appellants now jointly raise two assignments of error for our review.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS SEARCH BY LAW ENFORCEMENT OFFICERS WAS JUSTIFIED BY CONSENT.
II. THE TRIAL COURT ERRED IN FINDING THAT A WARRANT OBTAINED AFTER WARRANTLESS POLICE ENTRY WAS ISSUED ON VALID PROBABLE CAUSE."

LEGAL ANALYSIS

{¶ 11} Because Appellant's assignments of error are interrelated, they lend themselves to a joint analysis and we therefore address them in conjunction with one another. Appellants jointly contend, in their first assignment of error, that the trial court erred in finding that the warrantless search by law enforcement officers was justified by consent. In their second assignment of error, Appellants contend that the trial court erred in finding that a warrant obtained after warrantless police entry was issued on valid probable cause. Because both of these determinations were made by the trial court in the context of denying Appellants' motions to suppress, we first consider our standard of review when reviewing a trial court's denial of a motion to suppress.

Standard of Review

{¶ 12} Appellate review of a trial court's decision on a motion to suppress raises a mixed question of law and fact. State v. Crocker , 2015-Ohio-2528, 38 N.E.3d 369, ¶ 60 (4th Dist.) ; citing State v. Hobbs , 133 Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the trial court acts as the trier of fact in suppression hearings and is in the best position to resolve factual issues and evaluate the credibility of witnesses, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then "independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Hobbs at ¶ 8 ; citing Burnside at ¶ 8.

Fourth Amendment

{¶ 13} "The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' " State v. Eatmon , 4th Dist. Scioto No. 12CA3498, 2013-Ohio-4812, 2013 WL 5914938, ¶ 11. " Section 14, Article I of the Ohio Constitution also prohibits unreasonable searches and seizures." Id. "Because Section 14, Article I and the Fourth Amendment contain virtually identical language, the Supreme Court of Ohio has interpreted the two provisions as affording the same protection." Id. ; citing State v. Orr , 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001).

{¶ 14} " 'The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of the Amendment, and the American colonial experience. * * *' " State v. Penn , 61 Ohio St.3d 720, 723, 576 N.E.2d 790 (1991) ; quoting Marshall v. Barlow's, Inc. 436 U.S. 307, 311-312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The Supreme Court of Ohio has further held that "Ohio's parallel provision to the Fourth Amendment also protects commercial buildings in the same manner it protects private homes and offices * * *." Id.

{¶ 15} "Searches and seizures conducted without a prior finding of probable cause by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions." Id. at ¶ 12 ; citing Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). " 'Once the defendant demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the [S]tate to establish that the warrantless search or seizure was constitutionally permissible.' " Id. ; quoting State v. Smith , 4th Dist. Ross No. 12CA3308, 2013-Ohio-114, 2013 WL 209155, ¶ 12.

{¶ 16} It is clear that in this case, law enforcement visited Sky Lake four times to gather information and make observations without a warrant. Further, the observations made and information gathered during those warrantless entries into Sky Lake served as the basis for the later issuance of a search warrant, which resulted in the confiscation of several gambling machines and over $68,000.00.

Consent

{¶ 17} "One of the well-delineated exceptions to the general prohibition against a warrantless search occurs when the person consents to the search." See State v. Bloomfield , 4th Dist. Lawrence No. 14CA3, 2015-Ohio-1082, 2015 WL 1289784, ¶ 29 ; citing State v. Ossege , 2014-Ohio-3186, 17 N.E.3d 30, ¶ 13 (12th Dist.), and State v. Morris , 42 Ohio St.2d 307, 318, 329 N.E.2d 85 (1975). Consent is not an exception to the warrant requirement that is premised upon exigent circumstances; rather it is a decision by a citizen to waive Fourth Amendment rights. Katz, Ohio Arrest, Search & Seizure, Section 20:3 (2015). "No Fourth Amendment violation occurs when an individual voluntarily consents to a search." State v. Carothers , 2015-Ohio-4569, 47 N.E.3d 483, ¶ 25 (5th Dist.) ; citing United States v. Drayton , 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Consent searches are an important tool in police investigations because "a valid consent may be the only means of obtaining important and reliable evidence." Schneckloth v. Bustamonte , 412 U.S. 218, 227-228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

{¶ 18} Consent to search can be "obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises." Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). "The authority which justifies third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." State v. Gordnoshnka , 8th Dist. Cuyahoga No. 86319, 2006-Ohio-563, 2006 WL 302354, ¶ 11 ; citing United States v. Matlock , 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ; see also State v. Gibson , 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224, ¶ 18 (4th Dist.).

{¶ 19} The State is required to establish, by clear and convincing evidence, that consent to the search was freely and voluntarily given by one with authority to do so. State v. Posey , 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988) ; State v. Connors-Camp , 2nd Dist. Montgomery No. 20850, 2006-Ohio-409, 2006 WL 235046 ¶ 29 ; see also State v. Penn, supra, at 724, 576 N.E.2d 790 (discussing a terminated employee's versus a current employee's authority to provide consent to search his place of employment). " '[W]hether a consent to search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.' " Posey at 427, 534 N.E.2d 61 ; quoting Schneckloth, supra, at 227, 93 S.Ct. 2041. Further, it is not necessary that the consenting third party have actual authority over the premises. State v. Portman , 2nd Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, 2014 WL 4823868, ¶ 13, citing United States v. Ayoub , 498 F.3d 532, 537 (6th Cir.2007). Even if an officer erroneously believes that a third-party is authorized to give consent, using an objective standard, third-party consent is valid if an officer looking at the then-available facts could reasonably conclude that the third-party had apparent authority to consent. Rodriguez at 186, 110 S.Ct. 2793.

Analysis

{¶ 20} Here, as set forth above, the record reveals that Damon Roberts and his partner entered Sky Lake, Inc., a public restaurant and pay lake on several occasions. On the first visit they simply ordered food, drank coffee and made observations regarding a room marked private that, when the door would open for people to exit, appeared to contain several screens or monitors that were lit up and that emitted pinging sounds and bells, which, in Robert's experience, were likely slot machines. On their second visit, the two gained entry via the public entrance and went straight to the counter where they found a clerk working. Roberts asked the clerk for change for a fifty dollar bill so he could play the games. The clerk obliged, gave him five ten dollar bills from her apron, and stood by while he and his partner entered the game room located approximately ten steps away. Once in the game room, the men played games, printed vouchers, and then summoned the clerk as instructed by a sign on the interior door in order to cash out. The clerk paid them their winnings from cash contained in her apron and they left. Roberts and his partner made additional visits and had the same experience in terms of accessing the room and being paid their winnings.

{¶ 21} Based upon this fact pattern, we find that the trial court reasonably concluded that staff at Sky Lake, Inc. impliedly consented to the entrance of two undercover officers into their game room in order to observe and play their illegal gambling machines. Further, as noted by the trial court, it is unclear from the record before us whether or not the clerk who gave them change to play the gambling machines may have actually buzzed them in to the game room, or whether the door was simply unlocked. If it was the latter scenario, we agree with the trial court in its opinion that Sky Lake, Inc. staff expressly consented to the entry into the game room, despite it being marked private. We find that State v. Posey, supra, is instructive to our analysis, and further find it applicable and controlling to our disposition of this matter.

{¶ 22} In State v. Posey, supra, the Supreme Court of Ohio explained as follows:

"As the United States Supreme Court has held, '[t]he touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy.' " California v. Ciraolo (1986), 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (quoting Katz, supra, 389 U.S. at 360, 88 S.Ct. at 516 ). Accordingly, '[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz, supra, at 351, 88 S.Ct. at 511. Entry into a home or office with the consent of the owner or occupier is thus not a 'search' within the protection of the Fourth Amendment. Maryland v. Macon (1985), 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370." Posey at 427 [534 N.E.2d 61].

However, we are also mindful that an individual may preserve an area as private in an area otherwise accessible to the public. Katz, supra, at 351, 88 S.Ct. 507.

{¶ 23} Posey involved the entrance into a private, nonprofit fraternal organization by undercover officer. The undercover officer entered the private establishment as the guest of a member of the club, and the doorkeeper at the entrance did not ask to see the credentials of the club member upon entrance. Id. at 421, 534 N.E.2d 61. Once inside, the pair ordered drinks and observed gambling activity consisting of electronic draw poker machines and instant win tickets. Id. The officer actually engaged in those activities while there, and then, based upon his observations, he obtained a search warrant and conducted a search. Id.

{¶ 24} In Posey , the appellants argued that no voluntary consent could have been given because the officer did not identify himself as a law enforcement officer and did not disclose that his purpose there involved the investigation of alleged illegal gambling. Id. at 427, 534 N.E.2d 61. Despite the argument, the Court found, under the totality of the circumstances, that "consent was freely and voluntarily given and there was no deception perpetrated." Id. In reaching this decision, the Court noted the following facts: 1) that the only thing "deceptive" about the officer's entry was that he did not openly identify himself as law enforcement; 2) that he entered as a guest of a member, "as could any member of the general public[;] and 3) that apparently no credentials were checked at the door, which the Court identified as a further indication that the club had "no reasonable expectation of privacy." Id. at 428, 534 N.E.2d 61. Thus, the Posey court found valid consent was given by staff members of a private club to enter the club, the entire premises of which was considered to be private, because no credentials were checked prior to entry.

{¶ 25} In contrast, Sky Lake, Inc. is a public establishment that any member of the public can enter. Further, despite attempting to reserve the gambling room as private by putting a sign marked "private" on the door into the game room, staff checked no credentials and asked for no identification of Roberts and his partner prior to allowing them to enter to play the machines. Based upon these facts we find Sky Lake, much like the appellants in Posey , had no reasonable expectation of privacy as to the game room.

{¶ 26} Ultimately, the Supreme Court of Ohio in Posey held as follows:

"Accordingly, we hold that when an individual gives consent to another to enter a private area wherein illegal activities are being conducted, the consent does not lose its status of being freely and voluntarily given merely because it would not have been given but for the fact that the other person failed to identify himself as a police officer."

Others courts have adopted and applied the reasoning set forth in Posey as well. See State v. Loom Lodge 1245, et al. , 10th Dist. Franklin Nos. 90AP-415, 90AP-438, 90AP-439, 90AP-567 and 90AP-575, 1990 WL 179968 (two police officers gained entry to various lodges by virtue of their private membership to investigate whether illegal gambling activities were occurring, where they ordered drinks, observed and played gambling machines and then left without revealing their identity, using the information gathered to obtain a search warrant); State v. VFW Post 431 , 2004-Ohio-3566, 2004 WL 1497554, ¶ 47-48 (involving a scenario where a law enforcement officer made two entries into the VFW, by virtue of his personal membership, without a warrant to gather information used to obtain a warrant); State v. Baker , 87 Ohio App.3d 186, 191-192, 621 N.E.2d 1347 (1993) (applying Posey to a scenario involving an undercover officer gaining entry to a private hall by invitation of a member, where the officer did not encounter any person at the door and no one checked his credentials.)

{¶ 27} In Loom Lodge , the court reasoned as follows:

"Here, the invitation to enter was for the purpose of engaging in all the activity available at the post upon payment of the appropriate price, including the gambling activity. Thus, although the entry was not expressly for the purpose of engaging in gambling activity, it was one of the activities permitted." Loom Lodge at *3.

The Loom Lodge court also reasoned that the officers' initial entry into the Lodge was not a search, nor a seizure, but rather that "[a]ll they gained was what their eyes could observe in plain view once they gained entry," and that "this information was then used as a basis for obtaining a search warrant, and only upon execution of this search warrant was evidence obtained and seized." Id. Under those circumstances, the court reasoned that there was nothing indicating that the entry was unlawful, even though the court characterized it as "deceptive," "where the officers seized no evidence and conducted no real search[.]" Thus, even characterizing the officers' entry as deceptive, the Loom Lodge court, relying on Posey , found the officers' entry into the private lodge to be lawful and thus, any observations of items in plain view to be fair game, in light of their lawful presence in the club.

{¶ 28} Considering the above-cited case law, which consistently finds, relying on the Supreme Court of Ohio's holding in Posey, supra, that entry by undercover officers into private clubs is lawful 1) when the officers enter as a member without disclosing that they are police officers; 2) enter with a member through a door where a doorperson is present but does not request to see the credentials of the member prior to entry; or 3) enter with a member through a door without encountering a person or having to provide credentials. We find the reasoning of Posey applies, even more so, to the facts herein where the establishment at issue is not a private club, but rather a public restaurant and pay lake. Although we are mindful Appellants do have a right to maintain certain areas as private in their otherwise public facility, the facts here do not demonstrate that Appellants actually had a reasonable expectation of privacy as to the game room.

{¶ 29} Here, Appellants provided no testimony indicating an individual had to be a member or had to present certain credentials in order to enter. There was no testimony indicating what requirements the officers had to meet in order to lawfully enter the game room. There was also no testimony that the individuals Roberts saw exiting the room were private members or had some distinction setting them apart from the general public, or other restaurant/pay lake customers, which allowed them to lawfully enter the game room. Instead, the evidence in the record demonstrates that all one had to do was inform a staff member that he or she wished to play the machines, and then proceed to walk into the game room. Thus, Appellants did not evidence a reasonable expectation of privacy as to the game room, despite the existence of a sign marked "private" over the door.

{¶ 30} Applying the foregoing case law to the facts of this case, we find that Roberts and his partner lawfully entered Sky Lake, Inc. This included entry into the game room, without any form of deception and with the voluntary consent of Appellants, where they proceeded to make lawful observations confirming their suspicions that illegal gambling activity was occurring, which served as the basis for the grant of a subsequent warrant. Under the totality of the circumstances, we find no violation of the Fourth Amendment under this set of facts. As a result, we find no error on the part of the trial court in denying Appellants' motions to suppress filed in each case. Accordingly, both of Appellants' assignments of error are overruled and the judgments of the trial court are affirmed.

JUDGMENT AFFIRMED.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

      It appears that Roberts prepared written reports related to his visits to Sky Lake, Inc. on March 14, 2014, May 24, 2014, June 20, 2014, and July 1, 2014. In each report he indicated that the door to the game room was marked "employees only."

      Mrs. Ellis testified that once in the bait room, one can go through a door to the left in order to enter the kitchen, or can go through a door to the right to enter the game room (through a door which has no sign). Roberts, however, testified that he at no point walked behind the counter in order to gain entrance into the game room.

      The record indicates that counts fifteen and sixteen, which originally charged Ellis with third degree felony money laundering, were both amended to fifth degree felony possession of criminal tools.

      Count twenty-three, first degree felony engaging in a pattern of corrupt activity, was amended to third degree attempted engaging in a pattern of corrupt activity.