author: CARR, Judge.

text:
    STATE of Ohio, Appellee v. Tommy W. HIGGINS, Appellant
    No. 27700
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: February 7, 2018
    TOMMY W. HIGGINS, pro se, Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Defendant-Appellant Tommy Higgins appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms but remands the matter for the issuance of a nunc pro tunc entry.

I.

{¶ 2} In September 2014, Higgins was indicted on one count of possession of heroin, a fourth degree felony, one count of trafficking in heroin, a fourth degree felony, one count of aggravated trafficking in drugs (methamphetamine), a fourth degree felony, one count of aggravated possession of drugs (methamphetamine), a fifth degree felony, one count of possessing criminal tools, a fifth degree felony, and one count aggravated possession of drugs (oxycodone), a fifth degree felony. The first four counts included accompanying forfeiture specifications.

{¶ 3} Initially, Higgins was represented by counsel; however, counsel was later allowed to withdraw and Higgins thereafter appeared pro se. The matter proceeded to a jury trial. Prior to opening statements, the indictment was amended to reflect that counts one, two, and three were fifth degree felonies; thereby rendering all counts fifth degree felonies. In addition, the counts involving methamphetamine were amended to reflect that the drug was methadone. After the jury had been sworn, the trial court granted Higgins' motion to unseal search warrants. At that point, Higgins opted to be represented by counsel. The trial court then warned Higgins that he was giving up his right to proceed pro se and that he could not "change [his] mind halfway through the trial." Higgins agreed and his stand-by counsel took over. The trial court allowed Higgins' counsel to have the weekend to prepare for trial. That Monday morning, counsel for Higgins sought to file a motion to suppress to challenge the search warrants. Based upon the desire to file a motion to suppress, Higgins' counsel moved for a mistrial and the motion was granted.

{¶ 4} Repeatedly before and during the second trial, Higgins sought to waive his right to counsel and return to self-representation. The trial court denied his requests. Following the close of evidence, counsel for Higgins renewed his Crim.R. 29 motion and the trial court granted it with respect to count three (involving aggravated trafficking in methadone). The counts were then renumbered and the jury found Higgins guilty of the remaining counts but found that the funds at issue were not subject to forfeiture. Higgins was sentenced and has appealed, pro se, raising six assignments of error for our review.

{¶ 5} Subsequent to the filing of the notice of appeal, the trial court issued a nunc pro tunc judgment entry. The State relied on said entry in responding to one of Higgins' assignments of error. In light of the foregoing, the Court ordered the State to supplement the record with the entry so that the Court could determine whether it could be considered in resolving the appeal. The State timely complied with the order.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING THE CRIMINAL RULE 29 MOTION, BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF PRODUCTION AT THE CLOSE OF ITS CASE-IN-CHIEF.

{¶ 6} Higgins argues in his first assignment of error that the trial court erred in denying his Crim.R. 29 motion. Specifically, he argues that the State failed to demonstrate that he possessed the drugs and also that the State failed to prove that he possessed the requisite amount of drugs to constitute fourth degree felonies. Further, he argues that, because the State failed to demonstrate that he possessed the requisite amount of drugs, he asserts the State also failed to demonstrate that it met its burden that he possessed criminal tools.

{¶ 7} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279, 574 N.E.2d 492 (1991).

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

{¶ 8} Higgins first argues that there was insufficient evidence that he possessed the drugs that were found on his wife's person. As Higgins has not challenged other elements of the offenses, we limit our analysis accordingly. The drugs found on his wife were heroin, methadone and oxycodone. With respect to those drugs, Higgins was found guilty of possessing heroin, trafficking in heroin, aggravated possession of drugs (methadone ), and aggravated possession of drugs (oxycodone).

{¶ 9} Even prior to the search at issue in the instant matter, police had a history with Higgins. In August 2014, Officer Justin Morris of the Akron Police Department had an encounter with Higgins in front of his residence. Higgins told Officer Morris that he would "beat [Officer Morris'] a** * * * in court." Higgins also stated he was a drug dealer, drug user, and a gang leader. However, no drugs or weapons were found on Higgins at the time.

{¶ 10} Prior to the search involved in this case, another search was conducted at Higgins' residence. Shortly after that search, a message appeared on a Facebook page of an individual purporting to be Tommy Higgins. That message stated, "Akron police u hit u missed haha!!! That pack in and shop back open...Wit my signature stamps.." (Sic.) Detective Kandy Shoaff with the Akron Police Department Narcotics Unit interpreted that post to mean that the police had missed something when the police executed the prior search warrant.

{¶ 11} Detective Shoaff testified that police were investigating Higgins for heroin trafficking at his residence. Detective Shoaff collected information from a couple of sources and drug buys were conducted. Ultimately, police sought and obtained a search warrant for Higgins' residence for trafficking in heroin. That search was conducted September 3, 2014.

{¶ 12} Sharee Richerson was familiar with Higgins because she was dating his stepson. As of September 3, 2014, she had been staying at Higgins' house with Higgins and his wife for a couple of days. While she was there she observed several drug transactions at the house. She testified that people would come over and buy drugs and that Higgins and his wife would handle the drugs and the money. Higgins would weigh the drugs in the kitchen using a scale. To her knowledge, the only drug they sold was heroin. However, she asserted that she, Higgins, and his wife would use Percocet.

{¶ 13} On September 3, 2014, Higgins, Higgins' wife, Richerson, and another woman went to Walmart. Higgins' wife drove to Walmart; however, on the way back from Walmart, after they observed a police car, Higgins' wife stopped at a Taco Bell and switched places with Higgins. As they were switching places, Higgins gave drugs to his wife. Richerson observed Higgins' wife put the drugs in her pants.

{¶ 14} Shortly before the vehicle returned home, police stopped the car; Higgins had failed to use his turn signal and was driving under suspension. No drugs were found in the car or during a pat down search of the occupants. After the home was secured, police brought Higgins, his wife, Richerson, and the other woman back to Higgins' house.

{¶ 15} While in the house, Richerson attempted to spit out a bill with a white powdery substance on it without anyone noticing; however, police observed her do it and confiscated the money. Richerson thought the substance was a controlled substance, but testing did not reveal the presence of anything illegal. Richerson, who had a criminal record, including drug-related charges, entered into a plea deal with the State and pled to a misdemeanor charge of attempted possession based upon her conduct. Richerson acknowledged at trial that she expected to leave the rehabilitation facility early based upon her testimony. She also testified that someone (other than Higgins or Higgins' wife) called her and offered her money not to testify.

{¶ 16} A scale that resembled a lighter was found in a kitchen cabinet. Police also conducted a strip search of the occupants of the vehicle. Prior to being searched, Higgins' wife was acting erratically; she was "sweating profusely, she was hollering, screaming, throwing herself on the ground[, and] crying." Thereafter, she told police she had a bag hidden on her person. A bag containing individual bags of heroin, methadone, and oxycodone was found in Higgins' wife's buttocks and $241 was found in her bra. No other drugs or contraband was recovered. Police arrested Higgins because they believed that the drugs were Higgins' based upon prior heroin buys involving Higgins that occurred within the house and because the police received information that it was Higgins' practice to hide drugs on his wife's person. Higgins' wife and Richerson were also arrested. Sergeant Michael Yohe of the Akron Police Department Street Narcotics Uniform Detail unit testified that it was very common for drug dealers to attempt to hide drugs if they are stopped by the police. He indicated that often male drug dealers will give females drugs to hide in their pants or bra. Sergeant Yohe testified that drug dealers are aware that oftentimes police officers are male and would not be able to fully search a woman.

{¶ 17} After considering the evidence presented in the State's case in a light most favorable to the State we cannot conclude that the State failed to present evidence that Higgins possessed the drugs found on Higgins' wife's person. R.C. 2925.01(K) defines possession as "having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." "This Court has repeatedly held that a person may knowingly possess a substance or object through either actual or constructive possession. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession." (Internal quotations and citations omitted.) State v. Rowe , 9th Dist. Summit No. 27870, 2016-Ohio-5395, 2016 WL 4382784, ¶ 9. "Additionally, [p]ossession of a drug includes possessing individually, or jointly with another person. Joint possession exists when two or more persons together have the ability to control an object, exclusive of others." (Internal quotations and citation omitted.) Id.

{¶ 18} Here, the State presented evidence that when Higgins and his wife traded places at the Taco Bell, Higgins handed his wife drugs which she put in her pants. Heroin, methadone, and oxycodone were later recovered from Higgins' wife's buttocks during a strip search. Prior to the search, police had received information that it was Higgins' practice to have his wife hide drugs on her person. There was also testimony that Higgins and his wife sold heroin out of their home on several occasions during the few days prior to their arrest. Richerson testified that both Higgins and his wife handled the drugs and that Higgins weighed the drugs on a scale in the kitchen.

{¶ 19} Given the foregoing, we cannot say that the trial court erred in denying Higgins' Crim.R. 29 motion. Viewing the evidence in a light most favorable to the State, the State presented sufficient evidence that Higgins possessed the drugs found on his wife's person.

{¶ 20} With respect to Higgins' argument that the State failed to demonstrate that the amount of the drugs for the possession and trafficking in heroin counts was sufficient to qualify as fourth degree felonies we note that the indictment was orally amended prior to trial to reflect that the counts were fifth degree felonies. The offenses of trafficking and possession of heroin as fifth degree felonies do not contain an element requiring the State to demonstrate a particular amount of heroin was recovered. See R.C. 2925.03(C)(6) and 2925.11(C)(6). Moreover, at sentencing, the trial court noted that all the counts were fifth degree felonies and sentenced within the range provided by R.C. 2929.14. See R.C. 2929.14(A)(5). Accordingly, Higgins' argument is without merit.

{¶ 21} However, notwithstanding the foregoing, the judgment entry does contain a clerical error as it reflects that counts one and two were fourth degree felonies even though the trial court correctly recited at the sentencing hearing that they were fifth degree felonies. Because it is clear from the record that such is only a clerical error, we remand the matter for the trial court to issue a nunc pro tunc entry to reflect that Higgins was found guilty of fifth degree felonies with respect to counts one and two and that the sentence imposed for count two was for a fifth degree felony as well. See State v. Kilmire , 9th Dist. Summit Nos. 27319, 27320, 2015-Ohio-665, 2015 WL 774855, ¶ 19.

{¶ 22} As to Higgins' argument with respect to possessing criminal tools, we question whether Higgins properly preserved this argument for review as it does not appear that this count was addressed during the Crim.R. 29 motion. See State v. Thornton , 9th Dist. Summit No. 23417, 2007-Ohio-3743, 2007 WL 2119863, ¶ 13. And while Higgins has undoubtedly preserved a general sufficiency challenged based on this same issue, see id. , he has limited his argument on appeal to the denial of his Crim.R. 29 motion.

{¶ 23} However, even if we were to address the merits of Higgins' argument, we would overrule it. He maintains that the State had to prove that he possessed the scale with the intent to use it in the commission of a felony offense. See R.C. 2923.24(C). Specifically, he argues that "without sufficient evidence to find Mr. Higgins guilty as charged of committing fourth degree drug possession and trafficking, the State implicitly failed to meet its burden of production as it applied to his charge of possessing criminal tools."

{¶ 24} This count related to a scale that was found in Higgins' house. There was testimony that the scale resembled a lighter and was found in a kitchen cabinet. Richerson testified that Higgins sold heroin, that she observed several drug transactions while she was staying at Higgins' home, that he used a scale to weigh the drugs, and that he would weigh the drugs in the kitchen. Under the circumstances, which include that the jury found Higgins guilty of four fifth degree felony drug-related offenses, we fail to see how the State failed to prove that Higgins intended to use the scale in the commission of a felony offense. See R.C. 2923.24(C) ; R.C. 2925.11(C)(6) (categorizing possession of heroin as a felony); R.C. 2925.03(C)(6) (categorizing trafficking in heroin as a felony).

{¶ 25} Higgins' first assignment of error is overruled; however, the trial court is ordered to issue a nunc pro tunc entry to correct the clerical errors identified above.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT MISSTATED ITS JURY CHARGE BY OMITTING THE WORD "TOGETHER" FROM THE OHIO JURY INSTRUCTION ARCHIVE 409.50.

{¶ 26} Higgins argues in his second assignment of error that the trial court committed plain error in omitting the word together from the jury instruction on joint possession.

{¶ 27} Because Higgins did not object to the trial court's joint possession instruction, he has forfeited all but plain error. State v. Yuschak , 2016-Ohio-8507, 78 N.E.3d 1210, ¶ 57. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "To constitute plain error, the error must be obvious and have a substantial adverse impact on both the integrity of, and the public's confidence in, the judicial proceedings. A reviewing court must take notice of plain error only with the utmost caution, and only then to prevent a manifest miscarriage of justice." (Internal citations omitted.) State v. Klingel , 2017-Ohio-1183, 88 N.E.3d 455, ¶ 29. "This Court may not reverse the judgment of the trial court on the basis of plain error, unless appellant has established that the outcome of trial clearly would have been different but for the alleged error." Id.

{¶ 28} Here, the trial court instructed the jury that "[j]oint possession exists when two or more persons have the ability to control an object exclusive of others." Higgins argues that the trial court should have instructed the jury that "[t]wo or more person may have possession if together they have the ability to control it, exclusive of others." (Emphasis sic.) See also Ohio Jury Instructions , CR Section 417.21(4) (2017). He argues that the absence of the word together from the trial court's instructions amounts to plain error.

{¶ 29} While Higgins makes a conclusory assertion that the omission of the word together probably misled the jury, he has not explained why that would be the case. Further, Higgins has not argued, let alone demonstrated, that the result of his trial would have been different had the trial court included the word together in the instruction. See App.R. 16(A)(7) ; see also Klingel at ¶ 29. We note there was evidence that Higgins gave the drugs to his wife to hide, which, when considered with the other circumstances, allows for the reasonable inference that Higgins possessed the drugs.

{¶ 30} Higgins' second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT'S FAILURE TO INQUIRE INTO MR. HIGGINS' REQUEST FOR SELF-REPRESENTATION PRIOR TO THE SECOND TRIAL DENIED MR. HIGGINS A FAIR TRIAL AND DENIED HIM DUE PROCESS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶ 31} Higgins argues in his third assignment of error that the trial court failed to inquire into his request for self-representation prior to, and during, the second trial.

{¶ 32} "The Sixth Amendment guarantees that a criminal defendant has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so." (Internal quotations and citations omitted.) State v. Eggeman, 9th Dist. Medina No. 14CA0085-M, 2015-Ohio-5177, 2015 WL 8553346, ¶ 34. "Significantly, however, the right to self-representation occupies no hallowed status similar to the right to counsel enshrined in the Sixth Amendment. While the right to counsel attaches unless affirmatively waived, the right to self-representation does not attach until asserted." (Internal quotations and citation omitted.) State v. Perry, 9th Dist. Summit No. 25271, 2011-Ohio-2242, 2011 WL 1848889, ¶ 11. Given the important benefits afforded by the right to counsel, "courts [must] indulge in every reasonable presumption against waiver of the right to counsel" and "a strict standard must be applied when determining the adequacy of a criminal defendant's invocation of the right to self-representation." (Internal quotations and citations omitted.) Id. "A defendant may not invoke the * * * right if the * * * demand is untimely, equivocal, made for the purpose of delay, or is not knowingly and intelligently made." (Internal quotations and citation omitted.) Id. at ¶ 11. Accordingly, "[a] request for self-representation may be denied when circumstances indicate that the request is made for purposes of delay or manipulation of the trial process." State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 68. The Supreme Court has noted that a request is not unequivocal if it is made as an expression of frustration, see State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 73, and has found a request to be untimely if made three days before trial. See id. at ¶ 76. Nonetheless, "[i]f a trial court denies the right to self-representation when the right has been properly invoked, the denial is per se reversible error." (Internal quotations and citations omitted.) Eggeman at ¶ 34.

{¶ 33} Prior to the first trial, Higgins was initially represented by counsel. However, he also began to file motions pro se. In one of those motions, Higgins sought to be made co-counsel with his attorney, yet he also claimed to not be indigent and sought to retain counsel. At a pretrial hearing, the trial court addressed these motions and pointed out to Higgins that, if he was represented by counsel, the trial court could not address his pro se filings. When the court questioned Higgins about whether he was indigent, he initially declined to answer the question and then responded that he was not. When appointed counsel then moved to withdraw based on Higgins not being indigent, Higgins then asserted that he was indigent. The court ultimately allowed trial counsel to withdraw and informed Higgins that he could hire his own attorney. At that point, Higgins indicated he wanted to represent himself.

{¶ 34} Higgins continued to represent himself at additional hearings, however, stand-by counsel was also appointed to assist him if need be. While Higgins objected to the presence of stand-by counsel, the trial court declined to remove him. The matter proceeded to the first trial. Prior to jury selection, the trial court informed Higgins that:

[I]f you choose to ask your stand-by counsel to speak for you, in other words, you decide it's too much for you and you're overwhelmed and you want him to start talking for you because you're frustrated about the way things are going, then that's fine.
But once he starts speaking for you, you've relinquished your right to proceed pro se and [the trial court] would then activate [stand-by counsel] as your counsel of record and you would not be permitted at that point to speak any more in court except as a witness if you're testifying. You understand?

{¶ 35} Higgins responded affirmatively. A jury was then selected and sworn. Prior to opening statements, the trial court granted Higgins' motion to unseal certain search warrants. At that point, Higgins opted to have stand-by counsel represent him and the following exchange took place:

[Higgins]: I would like to proceed with [stand-by counsel] on the case.
[Trial court]: You want to turn it over to [stand-by counsel] now?
[Higgins]: Yeah.
[Trial court]: Okay. You understand that means you're not going to be able to argue your own motions anymore, you're not going to be able to speak? * * *
[Higgins]: You got it.
[Trial court]: You understand?
[Higgins]: Yeah.
[Trial court]: Okay. You can't change your mind halfway through the trial.
[Higgins]: I'm not.
[Trial court]: Okay. So you are now relinquishing your right to proceed pro se and you're asking stand-by counsel * * * to take over from here on out?
[Higgins]: Correct.

{¶ 36} The trial court then allowed Higgins' counsel to have the weekend to prepare for trial. That Monday morning, counsel for Higgins sought to file a motion to suppress to challenge the search warrants. Based upon the desire to file a motion to suppress, Higgins' counsel moved for a mistrial and the motion was granted.

{¶ 37} Weeks later, prior to the second trial, Higgins again began to file pro se motions. At a pretrial hearing, the trial court again explained to Higgins that, as he was represented by counsel, only counsel could file motions. The trial court also asked Higgins whether he remembered asking that counsel represent him and Higgins responded affirmatively. Higgins then expressed disagreement with the way in which counsel was handling the matter and requested to waive counsel. The trial court denied his motion and later reminded Higgins that it was his decision to allow stand-by counsel to represent him.

{¶ 38} Prior to jury selection in the second trial, Higgins asserted that the trial court denied him the right to self-representation. The trial court again asked him whether he remembered agreeing to have stand-by counsel represent him. This time, Higgins stated that he could not recall asking for stand-by counsel to represent him. The trial court then told Higgins that they were no longer going to have conversations about the issue if Higgins was going to lie to the court.

{¶ 39} During trial Higgins again raised the issue of self-representation on multiple occasions. At one point, the trial court told Higgins that he had already made his choice to be represented by counsel after initially appearing pro se and that that the court was not going to revisit the issue.

{¶ 40} Finally, following the verdict and prior to sentencing, Higgins told the trial court that he "wanted to represent [him]self in the whole trial, period, and [he] was just denied that." The trial court responded that it would "just note for the record, as it has numerous times before, that Mr. Higgins has kind of gone back and forth on the issue of whether he wanted to represent himself to the point where the court felt he was playing games and attempting to manipulate * * * and delay this process." The trial court then informed Higgins that it did allow Higgins to represent himself and they had begun a previous trial. The trial court reminded Higgins that "[a]t the conclusion of jury selection [he] changed [his] mind based on some issues that arose in discovery and asked the Court to appoint [stand-by] counsel." The trial court indicated that it had "told [Higgins] then that [they] would not be going back to any other situation regarding [his] pro se status at that point."

{¶ 41} After considering the totality of the circumstances, we cannot say that the trial court erred in denying Higgins' requests to represent himself made immediately before and during the second trial. Higgins made those requests to appear pro se after he had previously appeared pro se and then relinquished that right when faced with a situation he felt he could not handle. Higgins was informed at that time that he would not be able to return to pro se representation. It would not be unreasonable for the trial court to conclude that if Higgins again represented himself pro se, additional situations would arise that would cause Higgins to seek representation, which would in turn only further delay the trial. As noted above, "[a] defendant may not invoke the * * * right if the * * * demand is untimely, equivocal, made for the purpose of delay, or is not knowingly and intelligently made." (Internal quotations and citations omitted.) Perry, 2011-Ohio-2242, 2011 WL 1848889, at ¶ 11.

{¶ 42} Higgins' third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED A POLICE OFFICER TO TESTIFY OVER OBJECTION ABOUT ALLEGED CONFESSIONS OF OTHER CRIMES FROM PREVIOUS INTERACTIONS WITH MR. HIGGINS.

{¶ 43} Higgins argues in his fourth assignment of error that the trial court erred in allowing certain other acts testimony over objection. Specifically, Higgins challenges Officer Morris' testimony that Higgins said he would "beat [Officer Morris'] a** * * * in court" and that Higgins admitted to Officer Morris that Higgins was a drug dealer, drug user, and a gang leader.

{¶ 44} This Court reviews a trial court's decision to admit other acts for an abuse of discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. Evid.R. 404(B) provides in part that evidence of other crimes, wrong or acts "may * * * be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The State argued at trial, and on appeal, that the testimony was admitted, inter alia, to demonstrate Higgins' intent to sell drugs. Prior to the officer's testimony, the trial court gave a limiting instruction to the jury. A limiting instruction was also repeated during the jury instructions.

{¶ 45} Higgins has only made a very limited argument on appeal. See App.R. 16(A)(7). He has not explained why the testimony was inadmissible for the limited purpose of demonstrating intent. See State v. Cornwell, 2015-Ohio-4617, 48 N.E.3d 169, ¶ 28, quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20 (discussing the three-step analysis trial courts should conduct in evaluating the admissibility of other acts evidence). Further, even if we were to determine that the evidence was inadmissible, we can only conclude that, in light of the other evidence presented, which included testimony from Richerson that she observed Higgins selling drugs, and the limiting instruction provided to the jury, any error in its admission was harmless. See State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 33 ("[I]n determining whether to grant a new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), an appellate court must consider both the impact of the offending evidence on the verdict and the strength of the remaining evidence after the tainted evidence is removed from the record.").

{¶ 46} Higgins' fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT'S SENTENCING ENTRY IS VOID AS A MATTER OF LAW BECAUSE IT IMPOSES A SEVEN-YEAR SENTENCE AFTER ADDING A TWO-YEAR SENTENCE TO A FOUR-YEAR SENTENCE FROM A PRIOR CASE.

{¶ 47} Higgins argues in his fifth assignment of error that his sentence is void essentially for what he believes is a mathematical error on the part of the trial court. While there is a typographical error in the trial court's February 10, 2015 judgment entry, we conclude that such can be corrected in the nunc pro tunc entry that is already necessitated by this Court's resolution of Higgins' first assignment of error.

{¶ 48} "In reviewing a felony sentence, [t]he appellate court's standard for review is not whether the sentencing court abused its discretion." (Internal quotations omitted.) State v. Boatright , 2017-Ohio-5794, 94 N.E.3d 1007, ¶ 44, quoting State v. Howard , 9th Dist. Lorain No. 15CA010857, 2016-Ohio-7077, 2016 WL 5604070, ¶ 5, quoting R.C. 2953.08(G)(2). "[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law." (Internal quotations omitted.) Boatright at ¶ 44, quoting Howard at ¶ 5, quoting State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. "Clear and convincing evidence is that which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." (Internal quotations and citations omitted.) Boatright at ¶ 44, quoting Howard at ¶ 5.

{¶ 49} The trial court, in its February 10, 2015 judgment entry, ordered that Higgins' sentence in the instant matter be served consecutively to his sentence in another case, for a total of seven years. However, Higgins points out that that that sentencing entry also provides that Higgins aggregate sentence in the instant matter was only two years. Accordingly, he argues that his total sentence should be six years, as his sentence in the other case was a suspended sentence of four years.

{¶ 50} First, this Court notes that, to the extent the trial court commented on the length of Higgins' sentence in another case, aside from ordering the sentence in the instant matter to run consecutively to the sentence in the other case, such comment had no effect, irrespective of whether that commentary was correct or incorrect. Moreover, the only matter before this Court is the propriety of the sentence in the instant case. In reviewing the sentencing transcript, it is clear that the trial court sentenced Higgins to an aggregate term of three years in this case. The trial court sentenced Higgins to one-year terms on each of four counts. The trial court then ordered that counts three and five run concurrently to each other and that counts two and four run consecutively to each other and consecutively to counts three and five.

{¶ 51} Unfortunately, the February 10, 2015 sentencing entry states that the sentences imposed in counts two and four shall be served consecutively with each other but concurrently with the sentences in counts three and five and that the sentences in counts three and five shall be served concurrently with each other. Thus, the February 10, 2015 entry provides for an aggregate term of two years in the instant case. Such error is clearly a clerical error which would not render the sentence contrary to law. See State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30 (stating that a trial court's failure to incorporate the findings it properly made at a sentencing hearing into a judgment entry did not render the sentence contrary to law, but instead, was a clerical error).

{¶ 52} The March 5, 2015 judgment entry, which the Court supplemented the record with, purports to be a nunc pro tunc entry. That entry correctly recites the sentence imposed at the sentencing hearing: an aggregate term of three years. We note that this Court has in the past questioned whether a trial court retains jurisdiction to issue a nunc pro tunc entry while an appeal is pending. See State v. Kirby , 9th Dist. Summit No. 27060, 2014-Ohio-5643, 2014 WL 7275536, ¶ 35, fn. 5. Here, because the trial court is required to issue a nunc pro tunc entry pursuant to this Court's resolution of Higgins' first assignment of error, we see no need to resolve that issue in this appeal. The trial court is ordered to include the correction it included in the March 5, 2015 entry in the forthcoming entry. See Bonnell at ¶ 30 ("[A] clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.")

{¶ 53} In light of Higgins' limited argument, Higgins has not demonstrated that his sentence is void or contrary to law. Higgins' fifth assignment of error is overruled but the matter is remanded for the issuance of a nunc pro tunc entry.

ASSIGNMENT OF ERROR VI

MR. HIGGINS WAS NOT AFFORDED A FAIR TRIAL AND A RIGHT TO EFFECTIVE COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.

{¶ 54} Higgins argues in his sixth assignment of error that he was denied effective assistance of trial counsel because his trial counsel failed to subpoena a witness.

{¶ 55} In order to prevail on a claim of ineffective assistance of counsel, Higgins must show that his "counsel's performance fell below an objective standard of reasonableness and that prejudice arose from counsel's performance." State v. Reynolds , 80 Ohio St.3d 670, 674, 687 N.E.2d 1358 (1998), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland at 686, 104 S.Ct. 2052. Thus, a two-prong test is necessary to examine such claims. First, Higgins must show that counsel's performance was objectively deficient by producing evidence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997), citing Strickland at 687, 104 S.Ct. 2052. Second, Higgins must demonstrate that but for counsel's errors, there is a reasonable probability that the results of his trial would have been different. Keith at 534, 684 N.E.2d 47.

{¶ 56} Prior to the mistrial, the State informed Higgins' counsel that, the day prior, the State located and spoke to the fourth passenger in the vehicle. The State indicated that that witness told the State that "she was texting the entire time and she didn't see any drug activity in the car." That witness did not testify at the second trial. Prior to the conclusion of the second trial, Higgins' counsel requested a continuance to subpoena that witness based upon what Higgins was then reporting to his counsel. Higgins' counsel stated that he was told that the witness "had given statements through jail calls that maybe would have helped his defense [and that he] had not known about her testimony before [that day]." Higgins also told the court that it was based upon what the State previously stated on the record. The trial court declined to grant a continuance.

{¶ 57} We cannot say that Higgins' counsel was ineffective for failing to subpoena the witness. We note that, "generally speaking, the decision to call, or not call, witnesses falls within the purview of trial strategy." State v. Ball, 9th Dist. Summit No. 26537, 2013-Ohio-3506, 2013 WL 4107937, ¶ 41. Even assuming that the witness would have testified consistent with the statement, Higgins cannot demonstrate that her testimony would support his defense. At best, the statement indicates that the witness was not paying attention to what was occurring around her and, thus, could not say one way or another whether Higgins handed his wife the drugs. To the extent that the witness would have added anything additional to the statement, or to the extent that the alleged jail calls contained additional information, such is purely speculative. See State v. Moreland , 2016-Ohio-7588, 73 N.E.3d 950, ¶ 77 ("[S]peculation regarding the prejudicial effects of counsel's performance will not establish ineffective assistance of counsel.") (Internal quotations and citations omitted.). The substance of those calls is not in our record and thus Higgins cannot establish he was prejudiced by his counsel's failure to subpoena the witness. See id.

{¶ 58} Higgins' sixth assignment of error is overruled.

III.

{¶ 59} Higgins' assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed;

however, the matter is remanded for the trial court to correct the clerical errors outlined above via a nunc pro tunc entry.

Judgment affirmed, and cause remanded.

HENSAL, P.J.

TEODOSIO, J.

CONCUR.

      Higgins was not sentenced on count one as the trial court determined counts one and two were allied and the State elected to have Higgins sentenced on count two.

      Additionally, the entry omits any reference to the length of Higgins' sentence in the other case.


source: Caselaw Access Project

author: LARRY A. JONES, SR., J.:

license: Public Domain

text:
    ALPHA PLAZA INVESTMENTS, LTD., Plaintiff-Appellee v. CITY OF CLEVELAND, Defendant-Appellant
    No. 105419
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 8, 2018
    Barbara A. Langhenry, Director of Law, BY: L. Stewart Hastings, John Patrick Lynch Mills, Assistant Directors of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 4411, ATTORNEYS FOR APPELLANT
    John R. Christie, Lewis, Brisbois, Gisgaard & Smith, L.L.P., 1375 East 9th Street, Suite 2250, Cleveland, Ohio 44114, ATTORNEY FOR APPELLEE
    BEFORE: Jones, J., McCormack, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} In this appeal, defendant-appellant the city of Cleveland, division of water, appeals the trial court's January 2017 judgment denying its motion for summary judgment based on immunity. For the reasons that follow, we affirm.

I. Factual and Procedural Background

{¶ 2} Plaintiff-appellee Alpha Plaza Investments, Ltd. ("Alpha Plaza") is the landlord for commercial property located in Highland Heights, Ohio. The city of Cleveland provides water for the tenant businesses in Alpha Plaza.

{¶ 3} In April 2016, Alpha Plaza initiated this action against the city, asserting relief under two counts. In Count 1, Alpha Plaza alleged that, beginning in 2015, the city overcharged it for water usage at the property. It alleged that (1) it maintains "individual sub-meters for each tenant," (2) at all relevant times, the tenants' usage was consistent, and (3) two leak detection companies it hired did not find any leaks. Alpha Plaza further alleged that it informed the city of the overcharge, but the city "has refused to credit for the charges, or make any determination as to the meter and whether or not the same was functioning properly during all relevant times."

{¶ 4} In Count 2, Alpha Plaza alleged that it is "entitled to a refund or credit to its account in an amount of approximately $45,278.20, based on historical use rates and overcharges," and sought that amount in damages under the theory of unjust enrichment.

{¶ 5} The city filed a motion for summary judgment, in which it contended that it is "immune under R.C. § 2744.02 from Plaintiff's intentional tort claims of unjust enrichment and overcharging." The city further maintained that "[e]ven if Plaintiff's overcharging claims were construed as negligence, Plaintiff cannot show that the City acted negligently in any way while providing water service to Plaintiff's retail property." Alpha Plaza opposed the city's motion. The trial court found the city's contention that Alpha Plaza's claim of overbilling was an intentional tort "curious." The court held that a "fair reading of the Complaint and knowledge of applicable law establishes that [Alpha Plaza] has pled a claim of negligence per se," for which immunity would not apply. Thus, the trial court denied the city's motion for summary judgment as it related to Alpha Plaza's claim of overbilling.

{¶ 6} However, the trial court found the city's motion well taken as to Alpha Plaza's unjust enrichment claim: "Equitable claims of promissory estoppel, unjust enrichment, and quantum merit are not actionable against a municipality." Trial court's January 23, 2017 judgment, citing Sylvester Summers, Jr. Co., L.P.A. v. E. Cleveland , 8th Dist. Cuyahoga No. 98227, 2013-Ohio-1339, 2013 WL 1384892, ¶ 23. Accordingly, the court granted summary judgment in favor of the city on Alpha Plaza's unjust enrichment claim.

{¶ 7} The city now appeals, and presents the following three assignments of error for our review:

I. The Trial Court erred in denying summary judgment to the Defendant under the statutory immunity provisions of R.C. § 2744, et seq., because Plaintiff's overbilling claim does not fall under any of the exceptions to political subdivision immunity.
II. The Trial Court erred in denying summary judgment to the Defendant under the statutory immunity provisions of R.C. § 2744.02(A)(1), because Plaintiff's Complaint fails to allege that any purportedly negligent act was performed by Defendants' employees.
III. The Trial Court erred in denying summary judgment to the Defendant on Plaintiff's "negligence" claim because it is undisputed that Defendant's meters are functioning.

II. Law and Analysis

{¶ 8} Generally, an order denying a motion for summary judgment is not a final appealable order subject to appellate review. However, R.C. 2744.02(C) states that "[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of any alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." Further, the Ohio Supreme Court has held, "when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and there is therefore a final, appealable order pursuant to R.C. 2744.02(C)." Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, syllabus. Accordingly, the trial court's judgment is a final appealable order.

{¶ 9} This court reviews a trial court's decision on a motion for summary judgment under the de novo standard. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his or her favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 370, 696 N.E.2d 201 (1998).

{¶ 10} The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If a motion for summary judgment is properly made and supported, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial and may not merely rest on the allegations or denials in the pleadings. Id. at 294, 662 N.E.2d 264.

{¶ 11} The Ohio Supreme Court has set forth a three-tiered analysis to determine whether a political subdivision is immune from tort liability: the first tier is to establish immunity under R.C. 2744.02(A)(1) ; the second tier is to analyze whether any of the exceptions to immunity under R.C. 2744.02(B) apply; if so, then under the third tier, the political subdivision has the burden of showing that one of the defenses of R.C. 2744.03 applies. See Cater v. Cleveland , 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998) ; Hubbard v. Canton City School Bd. of Edn. , 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10-12. If a defense applies, then immunity is reinstated. Id. ; Fedarko v. Cleveland , 2014-Ohio-2531, 12 N.E.3d 1254, ¶ 10-12 (8th Dist.).

Intentional Tort or Negligence Claim

{¶ 12} Alpha Plaza claims that the city is subject to liability under R.C. 2744.02(B)(2), which provides in part that "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." The city does not dispute that the maintenance and operation of a municipal corporation water supply system is a proprietary function of a political subdivision. As previously alluded to, the city's issue, as raised in its first assignment of error, is that it believes Alpha Plaza's complaint set forth an intentional tort claim, as opposed to a negligence claim.

{¶ 13} Upon review, we agree with the trial court that a "fair reading" of Alpha Plaza's complaint demonstrates that it was not asserting an intentional tort claim against the city. It is true that the words "negligent" or "negligence" were not used in the complaint, but it is equally true that the words "intentionally" or "knowingly" were also absent from the complaint. Moreover, after the city raised the issue in its motion, Alpha Plaza sought leave to file an amended complaint to clarify that its claims sound in negligence. That motion has not yet been ruled on, but presumably will be when the case is remanded to the trial court.

{¶ 14} In light of the above, the city's first assignment of error is overruled.

Negligent Acts of a Political Subdivision or an Employee of the Political Subdivision

{¶ 15} In its second assignment of error, the city maintains that even if Alpha Plaza's complaint is not found to state an intentional tort claim, it nonetheless fails to state a negligence cause of action because it is "devoid of identifying any of [the city's] employees * * *" who allegedly acted negligently. According to the city, identification of its employees is required under R.C. 2744.02(B)(2).

{¶ 16} It is true that subsection (2) of R.C. 2744.02(B) only mentions negligent acts committed by a political subdivisions employees: "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." But the introduction to the provision states that a "political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function." (Emphasis added.) R.C. 2744.02(B). Further, it has been "held and * * * is well recognized that a political subdivision acts through its employees." Elston v. Howland Local Schools , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 19, citing Spires v. Lancaster , 28 Ohio St.3d 76, 502 N.E.2d 614 (1986) (" 'It is undeniable that the state can only act through its employees and officers.' ") Spires at 79, 502 N.E.2d 614, quoting Drain v. Kosydar , 54 Ohio St.2d 49, 56, 374 N.E.2d 1253 (1978).

{¶ 17} Based on the above, we find the city's second assignment of error to be without merit and overrule it.

Review of Denial of Summary Judgment Based on Merits of Case

{¶ 18} In its final assignment of error, the city contends that if this court determines, as we have, that the trial court correctly found that Alpha Plaza stated a negligence claim, summary judgment was improperly granted on Alpha Plaza's claim. Alpha Plaza contends, however, that we cannot consider the merits of the case, only the issue of immunity.

{¶ 19} An appeal from the denial of a motion seeking judgment against a plaintiff's claim based on sovereign immunity is limited to review of only the trial court's decision denying the political subdivision the benefit of immunity. Windsor Realty & Mgt., Inc. v. N.E. Ohio Regional Sewer Dist. , 2016-Ohio-4865, 68 N.E.3d 327, ¶ 15 (8th Dist.) ; Reinhold v. University Hts. , 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, 2014 WL 1775999, ¶ 21. In Windsor , for example, this court declined to consider the appellants' (the Northeast Ohio Regional Sewer District and the city of Cleveland) assignments of error relative to the trial court's denial of their motion to dismiss based on grounds other than immunity. See id. at ¶ 10, 13, 15-21.

{¶ 20} And in Reinhold , the Reinholds, University Heights residents, sued the city and two contractors used by the city claiming negligence after raw sewage backed up in their basement. The city filed a motion for judgment on the pleadings on the ground that it was immune from liability; the trial court denied its motion. The city subsequently filed a motion for summary judgment, again on the ground of immunity; that motion was also denied.

{¶ 21} The city of University Heights appealed, and this court affirmed the trial court's judgment. In response to arguments not relative to immunity that were raised by the city, this court responded, "we only have jurisdiction to decide the issue of sovereign immunity and not the issues that go to the merits of the claims." Id. at ¶ 21.

{¶ 22} Further, although the city's motion sought judgment not only on immunity grounds, but also on the merits of the case, the trial court did not address the merits in its judgment. "A court of appeals cannot consider [an] issue for the first time without the trial court having had an opportunity to address the issue." State v. Peagler , 76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996). The city's third assignment of error is, therefore, overruled, as premature.

{¶ 23} Judgment affirmed. Case remanded for further proceedings.

TIM McCORMACK, P.J., and EILEEN T. GALLAGHER, J., CONCUR


author: MARY J. BOYLE, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Jamil H. MCDONALD, Defendant-Appellant
    No. 105276
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 8, 2018
    Ruth R. Fischbein-Cohen, 3552 Severn Road, Suite 613, Cleveland, Ohio 44118, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Erin Stone, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., McCormack, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Jamil McDonald ("McDonald"), appeals his convictions. He raises two assignments of error for our review:

1. The case lacked sufficient evidence.
2. It was error not to merge the counts.

{¶ 2} Finding merit in part to his second assignment of error, we reverse in part and remand for resentencing in order for the state to elect which allied offense to pursue for purposes of sentencing.

I. Procedural History and Factual Background

{¶ 3} In January 2016, McDonald and his brother, Johnathan McDonald ("Johnathan"), were indicted in the same case on six counts. McDonald was indicted on five of them: one count of drug trafficking (heroin) in violation of R.C. 2925.03(A)(2), a third-degree felony; two counts of drug possession in violation of R.C. 2925.11(A), a third-degree felony (heroin) and a fifth-degree felony (alpha-PVP); possessing criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony because it contained a furthermore clause that McDonald intended to use the tools to commit a felony; and one count of having a weapon while under disability in violation of R.C. 2923.13(A)(3), a third-degree felony. The trafficking and third-degree possession counts carried one-year firearm specifications, and all of the counts carried one or more forfeiture specifications for various items, including a gun, six cell phones, two tablets, four digital scales, money ($379), three hydraulic presses, and packaging material. McDonald and his brother entered pleas of not guilty to all charges and were tried together before a jury, where the following evidence was presented.

{¶ 4} Michael Griffis, a detective for the Solon Police Department, testified that he is currently assigned to the Southeast Area Law Enforcement Narcotics Task Force ("SEALE"). Detective Griffis explained that SEALE is a "multi-jurisdictional drug task force" covering seven cities in the southeast portion of Cuyahoga County. Detective Griffis had been a police officer for approximately 12 years and had been assigned to the SEALE task force for almost five years.

{¶ 5} Detective Griffis testified that in July 2015, he received a phone call from the commander of the Westshore Enforcement Bureau ("WEB"), which is "another multi-jurisdictional drug task force" similar to SEALE, but on the "west side." Detective Griffis received information from the WEB commander that McDonald was trafficking heroin out of his home in Maple Heights. Detective Griffis explained that after receiving that information, he began the process of corroborating the information.

{¶ 6} Detective Griffis ran McDonald's name and address in the police department's computer system to find out if McDonald lived at the address, which he did. Detective Griffis and his partner, Detective Mark Witkiewicz, then began "periodic surveillance" of the home. Detective Griffis stated that while surveying McDonald's home, they saw him leaving his house in a rental car, which corroborated the information he received from the WEB commander. Detective Griffis explained that the "vast majority" of drug traffickers use rental cars for two reasons: to avoid being detected by police and to avoid forfeiture laws.

{¶ 7} Detective Griffis testified that on September 24, 2015, he "executed a trash pull" at McDonald's house. He explained that a "trash pull" means collecting someone's trash to look for "illegal activity." In this case, he was searching for "signs of drug trafficking." Detective Griffis found mail in the trash addressed to McDonald, which confirmed he had the right trash. He also found mail addressed to Beverly Bell at the same address.

{¶ 8} Detective Griffis also found the remains of "six plastic baggies" in McDonald's trash that police call "tear offs." Detective Griffis explained that "tear offs" are the"discarded portions of plastic" bags that drug traffickers throw away after they have packaged the drugs in smaller "street-sale quantities." He said that "tear offs" are "one of the biggest things" they look for "as far as the signs somebody is selling narcotics." The contents of the "trash pull" were shown to the jury, including the six "tear offs."

{¶ 9} After the "trash pull," Detective Griffis prepared and obtained a search warrant from Garfield Heights Municipal Court to search McDonald's house, which police executed on September 29, 2015. Detectives Griffis and Witkiewicz decided to wait until they saw McDonald leave the residence and then have Officer Kyle French, a Maple Heights police officer, conduct a traffic stop of McDonald, where they would then inform him of the search warrant. Detectives Griffis and Witkiewicz were present when Officer French stopped McDonald in his rental car. Detectives Griffis and Witkiewicz asked McDonald to exit the vehicle to inform him of the search warrant. Detectives Griffis stated that because McDonald's driver's license was suspended, they conducted an inventory search of the car and towed his vehicle. They found 0.23 grams of "Molly," a "street name" for ecstasy, which is a "substituted cathinone" also known as "MDMA" and "alpha-PVP."

{¶ 10} McDonald remained with Officer French, and detectives Griffis and Witkiewicz went back to McDonald's house to conduct the search with the help of several other officers from various jurisdictions, including Detective Brian Sara from the Bedford Police Department. The officers "knocked and announced" their presence two or three times when they noticed a male looking out from an upstairs window. At that point, they entered the home. The officers immediately secured the male, who turned out to be McDonald's brother, Johnathan. They placed Johnathan in handcuffs and proceeded to "clear the house" and search it.

{¶ 11} Detectives Griffis searched the master bedroom. He found a Raven Arms .25 caliber pistol in a box near a night stand. Detectives Griffis also found $55 in the room as well. There were two other bedrooms in the house, but the officers did not find any contraband in them.

{¶ 12} Detective Sara searched the kitchen of the home. He found a white powdery substance in separate drawers in the kitchen that turned out to be 5.05 grams and 2.4 grams of heroin. He also found several items from the kitchen, including a coffee grinder with "massive amounts" of white powder residue in it, "tear offs," a pie tin with white powder residue inside, three hydraulic presses, vinyl gloves, a "McDonald's spoon," playing cards (some with the white powder residue on them), sandwich bags, and smaller "baggies." Detective Sara explained that all of these items are commonly used in drug trafficking.

{¶ 13} Detective Witkiewicz searched the living room and found $56 and four digital scales, as well as six cell phones and two tablets. He stated that there was white powder on "almost every single one of them." Detective Witkiewicz also "bagged" the evidence from the other officers and created the inventory list from the search warrant.

{¶ 14} Detectives Griffis and Sara testified that heroin can be "cut" with other materials to "stretch" or increase the amount of profits. When people "cut" heroin, they will throw it in a coffee grinder to grind it up with another substance. They will then put the combined substance "into a press," and then "press it back down" into a "rock" so they can sell it. They further explained that playing cards are used in drug trafficking to cut and mix drugs with other agents and to "divvy it out into packages." And they also described another tool used by traffickers, which was a "McDonald's coffee spoon." The spoon is a small spoon that people use to stir cream in coffee. Drug traffickers use the spoon to measure approximately "a half a gram of heroin."

{¶ 15} Detective Griffis further explained that six cell phones and two tablets were also retrieved from the house, which he said drug traffickers use to make drug deals. Detective Griffis stated that in his experience, it is "normal" to find "larger quantities of electronics" when people are trafficking drugs because they are trying to hide their identity. He said that he finds multiple electronics "99 percent of the time."

{¶ 16} A forensic scientist from the Ohio Bureau of Criminal Investigation testified that the substances found in the kitchen contained heroin and the substance found in McDonald's car contained alpha-PVP.

{¶ 17} At the close of the state's case, McDonald moved for a Crim.R. 29 acquittal that the trial court denied.

{¶ 18} Tamillya Netters testified for the defense. She said that she has two children; McDonald is the father of one of them. She stated that when police searched the home, she had just recently moved into McDonald's home. She and McDonald shared the upstairs master bedroom, and the two children slept in the other two bedrooms on the second floor of the home. Netters testified that the gun found in the master bedroom was hers, and neither McDonald nor his brother knew about the gun. There was paperwork inside the gun box stating that Netters purchased the gun.

{¶ 19} Netters further testified that Johnathan only lived with McDonald for a couple of months and only moved in with him because his mother's house burned down. She said that Johnathan slept on a couch in a back room on the first floor that was behind the kitchen. Netters explained that Johnathan had always intended to move back in with his mother when she got a new house.

{¶ 20} Netters also testified that McDonald had been in an accident at the beginning of July 2015, and his car was totaled. She said that is why he was driving rental cars around at the time of his arrest.

{¶ 21} The jury found McDonald not guilty of having a weapon while under disability, but guilty of drug trafficking (heroin), both counts of drug possession (heroin and alpha-PVP), and possessing criminal tools. With respect to the one-year firearm specifications, the jury found that McDonald did not have a firearm on or about his person or under his control while committing the offenses. With respect to the forfeiture specifications, the jury found that the cash, cell phones, tablets, and gun were not subject to forfeiture, but that the scales, hydraulic presses, and packing materials were subject to forfeiture. The jury found Johnathan not guilty of all charges.

{¶ 22} The trial court sentenced McDonald to a total of nine months in prison: nine months for drug trafficking (heroin), nine months for drug possession (heroin), six months for drug possession of alpha-PVP, and six months for possessing criminal tools, all to run concurrent to each other. The trial court further notified McDonald that he would be subject to a discretionary period of three years of postrelease control. It is from this judgment that McDonald appeals.

II. Sufficiency of the Evidence

{¶ 23} In his first assignment of error, McDonald argues that his drug trafficking convictions were not supported by sufficient evidence.

{¶ 24} " '[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary 1433 (6th Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, "the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 25} McDonald challenges his convictions for drug trafficking and possessing criminal tools. Drug trafficking under R.C. 2925.03(A)(2) provides that "[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution[.]" Possessing criminal tools under R.C. 2923.24(A) provides that "[n]o person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally."

{¶ 26} McDonald argues that the state failed to present sufficient evidence that he committed the offenses because (1) there was no evidence that police properly corroborated the anonymous tip and even if the "trash pull" could be considered corroboration, there were no photos to prove the contents of the "trash pull," (2) there was no evidence establishing who the "real dealer" was because other people lived in the house, (3) there was no evidence of how pure the heroin was, (4) police failed to test the various "criminal tools" for DNA or fingerprints, and (5) police failed to obtain cell phone records from the cell phones that were found to determine if McDonald was trafficking drugs. We disagree with all of McDonald's arguments.

{¶ 27} The state presented evidence that when police received the information that McDonald was selling heroin out of his house and driving rental cars, they corroborated that information before obtaining a search warrant. First, Detective Griffis testified that drug dealers use rental cars to avoid detection by police and to avoid forfeiture laws. Police surveyed McDonald's house and observed him using two rental cars over a period of almost three months. They conducted a "trash pull" and discovered "tear offs," which both Detectives Griffis and Sara testified are indicative of breaking down larger bags of drugs into "street-size" quantities. Police also found mail belonging to McDonald in the contents of the trash. Although McDonald maintains that there were no photos of the "trash pull" to prove its contents, the actual contents of the trash pull were admitted into evidence.

{¶ 28} Although there was not direct evidence that McDonald was the "real dealer," there was certainly substantial circumstantial evidence. The heroin and criminal tools were found in the kitchen of the home. Although three adults lived in the home at the time of the search, the state only charged McDonald and his brother. Netters testified that she knew nothing about heroin or any drugs ever being in the home, let alone being sold from the home. Netters further explained that Johnathan had only lived with McDonald for a short time and that it was a temporary situation. This is sufficient evidence for a reasonable factfinder to find that Netters and Jonathan had nothing to do with trafficking heroin and to find McDonald guilty of trafficking beyond a reasonable doubt.

{¶ 29} Regarding the state not proving the purity of the heroin, it did not have to. See State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419 (held that the entire " 'compound, mixture, preparation, or substance,' including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession"). Although Gonzales dealt with cocaine, it is equally applicable to heroin. The state established through the testimony of a forensic scientist at the Ohio Bureau of Criminal Investigation that the substances found in the kitchen contained heroin. This was sufficient evidence that the substances were heroin. See id.

{¶ 30} McDonald's final two arguments, that his convictions were not supported by sufficient evidence because police failed to test the various "criminal tools" for DNA or fingerprints and failed to obtain cell phone records, are also without merit. Detective Griffis testified that he did not test for fingerprints or DNA or obtain cell phone records because he believed they had enough evidence against McDonald without doing so. We agree.

{¶ 31} Circumstantial evidence and direct evidence possess the same probative value, and therefore circumstantial evidence, like direct evidence, can support a finding of proof beyond a reasonable doubt if the trier of fact so finds. State v. Jenks , 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991). Circumstantial evidence is proof of a fact from which the existence of other facts reasonably may be inferred. Id. Moreover, a conviction based solely on circumstantial evidence is no less sound than one based on direct evidence. State v. Begley , 12th Dist. Butler No. CA92-05-076, 1992 WL 379379, *2 (Dec. 21, 1992), citing State v. Apanovitch , 33 Ohio St.3d 19, 514 N.E.2d 394 (1987). Indeed, a conviction based upon purely circumstantial evidence may be just as reliable as a conviction based on direct evidence, if not more so. Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960), citing Rogers v. Missouri Pacific RR. Co. , 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

{¶ 32} In this case, there was substantial circumstantial evidence that McDonald committed the offenses beyond a reasonable doubt. Again, police found "tear offs" in the trash as well as in the kitchen. They found 6.65 grams of heroin in the kitchen, along with a coffee grinder with a white powdery residue in it, hydraulic presses, smaller "street-size baggies," playing cards, a pie pan, three hydraulic presses, and a "McDonald's spoon," which measures out approximately a half a gram of heroin. The detectives thoroughly explained how drug traffickers use each item, including the process of "cutting" and "stretching" heroin with other substances to make more profit from it.

{¶ 33} McDonald also raises several arguments about the gun that was found in the master bedroom of the home, but jury found McDonald not guilty of having a weapon while under disability and further found that he did not have a firearm on or about his person or under his control while committing the offenses. Thus, we need not address McDonald's arguments about the gun.

{¶ 34} Accordingly, we find that the state presented sufficient evidence that McDonald was trafficking heroin and that he used and possessed criminal tools for trafficking heroin. McDonald's first assignment of error is overruled.

III. Allied Offenses

{¶ 35} In his second assignment of error, McDonald argues that the trial court erred when it did not merge all of his trafficking, possession, and criminal tools convictions because they were all allied offenses of similar import. We agree, and the state concedes that the trial court erred by not merging the offenses of trafficking heroin and possessing heroin, but we find no error with respect to McDonald's remaining arguments.

{¶ 36} An appellate court should apply a de novo standard of review in reviewing whether two offenses are allied offenses of similar import. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. McDonald failed to object to the imposition of multiple punishments. Nonetheless, the Ohio Supreme Court has held that the imposition of multiple sentences for allied offenses of similar import is plain error. State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough , 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845.

{¶ 37} The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. State v. Martello , 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7 ; North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). But the Double Jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter , 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the dispositive issue is "whether the General Assembly intended to permit multiple punishments for the offenses at issue." State v. Childs , 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).

{¶ 38} In Ohio, this constitutional protection is codified in R.C. 2941.25. " R.C. 2941.25 essentially codified the judicial merger doctrine." State v. Cabrales , 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23. The Ohio Supreme Court has explained that "[m]erger is 'the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.' " Id. at ¶ 23, fn. 3, quoting Maumee v. Geiger , 45 Ohio St.2d 238, 243-244, 344 N.E.2d 133 (1976).

{¶ 39} R.C. 2941.25 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.

{¶ 40} The Ohio Supreme Court set forth the test to determine if two offenses are allied offenses of similar import in State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. It explained:

Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant's conduct to determine whether one or more convictions may result because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

Id. at ¶ 30-31.

{¶ 41} Whether trafficking and possession are allied offenses, however, was answered by the Ohio Supreme Court in State v. Cabrales , 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. At paragraph two of the syllabus, the court held that: "Trafficking in a controlled substance under R.C. 2925.03(A)(2) and possession of that same controlled substance under R.C. 2925.11(A) are allied offenses of similar import under R.C. 2941.25(A), because commission of the first offense necessarily results in commission of the second." Here, McDonald was convicted of trafficking heroin under R.C. 2925.03(A)(2) and possessing heroin under R.C. 2925.11(A). Accordingly, the trial court erred by not merging them.

{¶ 42} McDonald's remaining arguments, however, are without merit. He was also convicted of possessing alpha-PVP and criminal tools. These offenses are not allied offenses to each other or trafficking heroin or possessing heroin.

{¶ 43} When looking at McDonald's conduct in this case, it is clear that he did not commit these offenses with the same conduct. The officers found the alpha-PVP in McDonald's car when he was stopped by police just before they executed the search warrant on his house. The heroin was found in the kitchen, where the "criminal tools" were also found. Possessing heroin is not the same conduct as possessing alpha-PVP. Possessing criminal tools is not the same conduct as trafficking or possessing drugs. Thus, besides trafficking and possessing heroin, which are allied offenses, the remaining offenses were committed separately and, thus, are not allied offenses of similar import.

{¶ 44} McDonald's second assignment of error is overruled in part and sustained in part.

{¶ 45} Judgment affirmed in part, reversed in part, and remanded for resentencing in order for the state to elect which allied offense to pursue for purposes of sentencing.

FRANK D. CELEBREZZE, JR., J., CONCURS;

TIM McCORMACK, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

TIM McCORMACK, P.J., CONCURRING IN JUDGMENT ONLY:

{¶ 46} I agree with the majority's disposition of both of McDonald's assignments of error. I disagree, though, with the treatment of McDonald's argument that the case lacked sufficient evidence to find that he was the "real dealer."

{¶ 47} Specifically, I believe it is essentially unfounded for this court to determine that there was sufficient evidence for a reasonable factfinder to find that the other two persons living in the same house with McDonald, in close quarters, had nothing to do with trafficking heroin. It would be unfair and inaccurate for this court to state that there was sufficient evidence for a reasonable factfinder to find that the other two were involved to some degree in trafficking heroin. It is equally unfounded and inaccurate to find that they "had nothing to do with trafficking heroin." Further, such a conclusion is an unnecessary step in determining that there was sufficient evidence to convict McDonald. For that reason, I would have excluded the speculative discussion of McDonald's guilt as it related to the other household members.


text:
    STATE of Ohio, Plaintiff-Appellant v. Abdul HAKIM, Defendant-Appellee
    No. 105679
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 8, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Eben McNair, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Mark Stanton, Cuyahoga County Public Defender, BY: Christopher Maher, Cullen Sweeney, Assistant Public Defenders, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Plaintiff-appellant, state of Ohio, appeals from a judgment granting defendant-appellee, Abdul Hakim's (a.k.a. Abdul Asmar and Darryl Brown) ("Hakim") motion to suppress drugs and criminal tools found during the execution of a search warrant upon a residence. Specifically, the state argues that the trial court erred because the search and seizure of items beyond those articulated in the search warrant was justified under the plain view or plain smell doctrines outlined in Fourth Amendment jurisprudence. Upon review of the record and relevant law, we affirm the trial court's decision.

I. Procedural History and Facts

{¶ 2} In July 2016, police sought and obtained a search warrant to search a home located on Hastings Avenue in East Cleveland. According to the warrant, police were authorized to search the following items:

Firearms; ammunitions; casings; magazines; holsters; documentation (including ledgers) pertaining to firearms, ammunition, and/or their ownership purchase or sale; documentation and other items relating to the identification of Abdul Hakim ALI EL aka Darryl Brown aka Abdul Asmar and/or any ownership interest in the premises and any and all evidence pertaining to violations of the laws of the State of Ohio, to wit: R.C. 2923.12 and R.C. 2923.13.

{¶ 3} The next day, agents with the Bureau of Alcohol Tobacco Firearms and Explosives ("ATF"), along with East Cleveland police, executed a search upon the property. In doing so, the officers seized a shotgun shell, a Sig Sauer firearm, a magazine, ammunition, a prescription pill bottle with a white powder substance inside, suspected marijuana, two digital scales, sandwich bags, and $2,500 in cash.

{¶ 4} By indictment filed in September 2016, Hakim was charged with two counts of having weapons while under disability, one count of drug trafficking, one count of drug possession, and one count of possessing criminal tools. Hakim pleaded not guilty at his arraignment and subsequently filed a motion to suppress. He argued that the government failed to establish probable cause to support the issuance of a search warrant for the residence and that, even if the warrant was supported by probable cause, the government exceeded the permissible scope of the warrant when it searched for and seized items not related to the illegal handling of firearms. On March 29, 2017, the court commenced a hearing on the motion to suppress that lasted several days.

II. Suppression Hearing

{¶ 5} Arguments at the suppression hearing were bifurcated along with Hakim's two theories for suppression: (1) there was lack of probable cause to issue the warrant, and (2) the government impermissibly exceeded the scope of the warrant.

A. Probable Cause

{¶ 6} Defense counsel argued that all evidence found in the course of executing the search warrant should be suppressed because the affidavit in support of the warrant did not establish probable cause. Specifically, counsel claimed that the affidavit did not contain probable cause to believe that Hakim was a resident at the Hastings property or that firearms would be found there. Counsel also claimed that the search-warrant affidavit usurped the issuing judge's authority by making allegations that Hakim was a "sovereign citizen" and that sovereign citizens were particularly dangerous.

{¶ 7} In making these arguments, defense counsel focused on two paragraphs of the search-warrant affidavit. The first was paragraph 35, which outlined the apparent domicile relationship between Hakim and the owner of the Hastings property. It noted that Hakim and the owner of the property had a history of living together based on, among other things, a records check that showed that Hakim took out utilities in his name while living with the owner at a different address in 2012. Defense counsel argued that the 2012 utilities report was the only factual connection that showed a shared domicile and that its relevance was diminished due to the lapse in time and a change in address. Moreover, defense counsel argued that the affidavit implied that the 2012 record of utilities was not the only thing that connected Hakim to the individual living in the Hastings property, but offered no factual basis for the court to draw that conclusion.

{¶ 8} The second paragraph at issue, paragraph 36, was one that stated that Hakim was a sovereign citizen and that "sovereign citizens believe they are not subject to law or government rules and are known to acquire and maintain firearms and other weapons." Defense argued that this paragraph improperly "juiced-up" the search warrant by adding unverified allegations as to how sovereign citizens act.

B. Scope

{¶ 9} ATF agent, John Remick-Cook, provided the sole testimony regarding the execution of the search warrant. His testimony is summarized as follows.

{¶ 10} On June 14, 2016, Agent Remick-Cook, along with several other ATF agents and local law enforcement officers, executed a search warrant on the Hastings Avenue property. Hakim was home at the time of the search. The officers were looking for "firearms and ammunition and documents in support of firearms ownership."

{¶ 11} During the search, the officers came upon two locked safes in a bedroom closet: a smaller safe on top of a larger one. Hakim gave the officers the combinations to open the safes. They searched the small safe first. The officers immediately saw and removed a handgun from the smaller of the two safes and continued to remove other items. One of these items in the small safe was a common, translucent-orange prescription pill bottle with a label on it.

{¶ 12} Agent Remick-Cook testified that he could not immediately tell what was inside the bottle so he picked it up and began moving it around at "various angles." He admitted that with the label, the bottle only had "a limited portion in which you can look inside to try to inspect the contents." During the manipulation of the bottle he saw what appeared to be plastic bags inside. According to his testimony, this "indicate[d] either narcotics in the pill bottle, or it could have been ammunition wrapped up in a plastic bag so as to keep it from making noise, bouncing off the side of the pill bottle." The agent testified that he did not shake the bottle to see what might be inside, but instead opened it and took out its contents. He found a white powder substance inside several plastic bags.

{¶ 13} The agent further testified that he and the other officers found suspected marijuana inside a balled-up paper towel that was also in the small safe. Although the agent could not say whether it was him or one of his fellow officers who opened the paper towel to discover its contents, he testified that he could smell marijuana emanating from the safe after it was opened, and that it was clear the smell was coming from the paper towel. On cross-examination, Agent Remick-Cook admitted that he failed to mention the plain smell of marijuana in his written report of the executed search and that he was mentioning that fact for the first time on cross-examination at the suppression hearing.

{¶ 14} The officers further recovered two digital scales, plastic sandwich bags, and $2,500 in cash from the larger safe within the closet. The agent could not recall any details about the digital scales or the "baggies," and there were no photos of them. The agent testified, however, that these items were indicative of narcotics activity and were seized for that reason.

C. Ruling

{¶ 15} On April 12, 2017, the court reconvened to announce its ruling on the motion to suppress. The court found that the warrant affidavit contained sufficient probable cause based on objective facts for the issuing court to conclude that Hakim lived at the Hastings Avenue residence and that there was reason to believe that firearms were in the home. The court further concluded that the statement concerning the alleged dangerousness of sovereign citizens was unsupported by facts and was, therefore, improper. Nevertheless, the court found that the warrant was still valid and supported by probable cause even if that paragraph were excised from the affidavit. Therefore, the court declined to suppress the evidence on grounds that the search warrant lacked probable cause or was otherwise invalid.

{¶ 16} On the issue of scope, the court suppressed the pill bottle and its contents on the basis that any evidence of illegal activity was not immediately apparent and in plain view when the officer manipulated the bottle, opened it, and removed its contents. The court also suppressed the suspected marijuana found inside the paper towel, the two digital scales, the plastic bags, and cash, after finding that items were not immediately incriminating in appearance to warrant further investigation without a valid search warrant.

{¶ 17} The court did not suppress the firearm or other items related to the improper handling of firearms. Following the court's ruling, the prosecution asked to stay proceedings pending appeal. The court granted the motion to stay, and the present appealed followed.

III. Motion to Suppress

{¶ 18} On appeal, the state argues that the trial court erred in suppressing the pill bottle and its contents, digital scales, plastic bags, and cash because they were in plain view and their illegal nature was immediately apparent. The state also contends that the court improperly suppressed the evidence of suspected marijuana because the officers had probable cause to believe, based on the plain smell emanating from the safe, that marijuana was inside the paper towel prior to their opening it. We do not agree.

A. Standard of Review

{¶ 19} "Appellate review of a motion to suppress involves a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Appellate courts must defer to the trial court's findings of fact because it is in the best position to evaluate the credibility of witnesses and resolve factual discrepancies. Id ., citing State v. Mills , 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). An appellate court must accept a trial court's findings of fact if they are supported by competent, credible evidence. Id ., citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). Once the facts have been accepted, the court proceeds to a de novo review of whether the facts satisfy the applicable legal standard for the action taken. Id. at ¶ 9, citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

B. Fourth Amendment

{¶ 20} The Fourth Amendment to the United States Constitution provides that:

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.

{¶ 21} The Fourth Amendment commands in relevant part, that no warrants shall issue except those "particularly describing" the things to be seized. The permissible scope of a search is therefore governed by the terms set forth in the search warrant. See Walter v. United States , 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). "If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more." Horton v. California , 496 U.S. 128, 140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

{¶ 22} The Fourth Amendment's particularity requirement assures that the police cannot indiscriminately rummage through citizens' personal effects. See Coolidge v. New Hampshire , 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Thus, to prevent a "wide-ranging exploratory search," the warrant must enable the executing officers to ascertain and identify with reasonable certainty those items that the issuing judge has authorized them to seize. See Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) ; Steele v. United States , 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

{¶ 23} In this case, the search warrant permitted the officers to search and seize "[f]irearms; ammunitions; casings; magazines; holsters; documentation (including ledgers) pertaining to firearms, ammunition, and/or their ownership purchase or sale[.]" It did not give the officers the right to search for drugs. The state contends, however, that the plain view and plain smell doctrines permitted the officers to seize the drugs and drug-related items in this case. For the following reasons, we disagree.

1. Plain View

{¶ 24} The state argues that the trial court erred in suppressing the white powder that was in the pill bottle because it was in plain view. The plain view doctrine allows police officers to search and seize evidence not described in a search warrant when three conditions are met: (1) the police are lawfully in a position to observe an item firsthand, (2) police inadvertently discovered the object, and (3) the incriminating nature of the object was immediately apparent. State v. Halczyszak , 25 Ohio St.3d 301, 303, 496 N.E.2d 925 (1986), citing Coolidge ; State v. Williams , 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978) (adopting the plain view test in Ohio). If all three requirements are met, police may search and seize the items observed without an additional warrant. Halczyszak at 303, 496 N.E.2d 925.

{¶ 25} Because police were lawfully at the Hastings Avenue property to execute the search warrant for firearms, the first prong of the plain view test is met. The Ohio Supreme Court defines the last two requirements of the plain view doctrine as follows:

The "inadvertent discovery" requirement may be satisfied when police lack antecedent probable cause, i.e., an advance particularized knowledge of, or intent to seize, those objects ultimately seized.
The "immediately apparent" requirement of the "plain view" doctrine is satisfied when police have probable cause to associate an object with criminal activity.
In ascertaining the required probable cause to satisfy the "immediately apparent" requirement, police officers may rely on their specialized knowledge, training and experience[.]

Halczyszak at paragraphs two, three, and four of the syllabus.

{¶ 26} After review, we find that officers executing the search warrant at the Hastings Avenue property did not have advanced particular knowledge of, or intent to seize, the drug-related items before they entered the home and began their search. Therefore, the second requirement of the plain view test is also met. Thus, whether police violated the Fourth Amendment by searching and seizing evidence of suspected drug activity turns on the third requirement, i.e., whether the criminality of the objects was immediately apparent. We agree with the trial court that it was not.

{¶ 27} With respect to the prescription pill bottle and the white powder found inside, Agent Remick-Cook testified that when he first saw the bottle he was not sure what was inside. The criminal nature of the item was not immediately apparent to him; he only suspected that the item contained contraband once he manipulated the bottle by picking it up, turning it, and trying to peer inside the opaque outer container. Even then, he had no confirmation of criminal activity or probable cause to believe that the bottle and its contents were criminal in nature. Nevertheless, the agent decided to open the bottle, pull out its contents, and look inside, at which point he saw a white powder inside plastic bags that he believed to be an illicit substance. While white powder in plain view may have been enough to amount to probable cause of criminal activity to seize the object, the white powder in this case was not immediately apparent and was only discovered through a warrantless search of the bottle that involved manipulation and opening. Accordingly, the plain view doctrine does not justify the agent's search of the pill bottle and its contents and, thus, the trial court did not err when it suppressed them.

{¶ 28} We further find little merit to the state's argument that the agent believed there might have been evidence of illegal gun ownership inside the bottle. Although the agent testified that he believed there could have been ammunition inside, other testimony discredited the statement. The agent was clear that he never shook the item to see if it rattled or otherwise made any noise that would indicate it contained a bullet, and the agent was evasive when questioned about the weight of the item. The circumstances by which the agent came to search the pill bottle and the observations that he made beforehand belie the agent's testimony that he believed there might be a bullet inside. Therefore, the court did not err in suppressing the evidence, despite the agent's testimony on this point.

{¶ 29} The state contends that State v. Johnson , 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, 2013 WL 658159, supports its arguments in this case. But Johnson is distinguishable because when police opened the safe in that case, they immediately saw-in plain view-what appeared to be a white powder substance they believed to be cocaine. Once they saw the suspected cocaine in plain view, they were authorized to seize other items that might contain drug-related contraband or be used in connection with drugs or drug paraphernalia. Id. at ¶¶33-35. Here, however, the white powder was not in plain view. It was concealed within a pill bottle and, thus, the incriminating nature of its contents was not immediately apparent as it was in Johnson . Accordingly, we disagree with the state that Johnson supports its arguments in this case.

2. Plain Smell

{¶ 30} The state further argues that the trial court erred when it suppressed the marijuana that the agent found in the "balled up" paper towel. We disagree. Although the trial court did not make any findings of fact with respect to the agent's credibility, it implicitly found the agent's testimony on this issue to be lacking. Agent Remick-Cook never stated anything about smelling marijuana in his summary report of the executed search warrant. He also failed to mention it in his direct examination. It was only upon cross-examination-when defense counsel heavily questioned the agent about how he came to open the paper towel-that the agent mentioned smelling marijuana after the safe was opened. Accordingly, we find no error on the part of the trial court's suppression of the marijuana.

3. Other Items

{¶ 31} Lastly, we cannot say that the court erred in suppressing the digital scales, plastic bags, and $2,500 in cash. None of these is apparently incriminating alone, and there was no evidence that the digital scales or plastic bags contained any drug residue when seized. Furthermore, it is not unusual for a person to store money in a secure location such as a safe.

{¶ 32} Without the prior discovery of the suspected illicit substances found in the pill bottle and paper towel, the police lacked probable cause to seize these items as evidence of criminal activity. Because the pill bottle and paper towel were illegally searched in violation of the Fourth Amendment's warrant requirement, those items were properly suppressed and cannot be taken into consideration when determining whether the police had probable cause to believe that the scales, bags, and money were part of an illegal enterprise.

{¶ 33} Accordingly, we affirm the decision of the trial court granting Hakim's motion to suppress evidence of the drugs, digital scales, plastic bags, and money.

{¶ 34} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and EILEEN T. GALLAGHER, J., CONCUR

      The state's assignment of error is: "The trial court erre[d] in granting defendant's motion to suppress evidence."

      Both parties agreed below that police could search the safe pursuant to the warrant and, thus, there was no issue with respect to police searching the safe.

      He could not recall how many plastic bags, but agreed that there were at least two according to the photos.