author: Miller, Judge.

text:
    FULTON RAILROAD CO. LTD., The Sawyer Place Company, and Cincinnati Barge & Rail Terminal, LLC., Plaintiffs-Appellants, v. CITY OF CINCINNATI, City Council of the City of Cincinnati, and City Planning Commission of the City of Cincinnati, Defendants-Appellees.
    NO. C-160901
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 29, 2017
    Barrett & Weber, C. Francis Barrett and Joshua L. Goode, Cincinatti, for Plaintiffs-Appellants,
    Paula Boggs Muething, City Solicitor, Marion E. Haynes, Assistant City Solicitor, and Emily E. Woerner, Assistant City Solicitor, for Defendants-Appellees.
    OPINION.
   Miller, Judge.

{¶ 1} We affirm the trial court's reluctant determination that the residential zoning designation placed on riverfront land near downtown Cincinnati, presently and historically used for industrial purposes, is constitutional. The city is empowered to zone property in an effort to change the character of a neighborhood. Appellants did not meet their high burden of establishing that the zoning applied to their property is unconstitutional. Nor did they establish a total regulatory taking, i.e., that the zoning deprived the owner of all economically viable uses of the land, assuming such a claim was properly pled.

Facts

{¶ 2} Fulton Railroad Company ("Fulton"), Sawyer Place Company ("Sawyer"), and Cincinnati Barge & Rail Terminal, LLC, ("Cincinnati Barge") claim that the zoning of the property at issue as "Riverfront Residential/Recreational" ("RF-R") is unconstitutional. The subject property, owned by Fulton and Sawyer, consists of 26-plus acres along the Ohio River, upriver from downtown Cincinnati. It abuts the Theodore M. Berry International Friendship Park to the west, light industrial property to the east, and residential property to the northwest. Approximately 18 of these acres are out of the floodplain-making the property somewhat unique.

{¶ 3} The property, used for commercial and industrial purposes for at least 200 years, is currently used by Cincinnati Barge as a barge terminal. Materials are offloaded from barges, stored in yards, and loaded onto trucks and railcars for further transport. For decades, the city has wanted the property to be used for high-end residential purposes, and has zoned it accordingly. Despite this zoning, the code allows Cincinnati Barge to continue its operations as a legal, nonconforming use.

{¶ 4} In 2007, the city rezoned the property to Planned Development 46 ("PD-46") via Cincinnati Ordinance 39-2007. Before this change, the property, which consists of multiple parcels, had a unified zoning designation of "Planned Development 17" ("PD-17"). Prior to PD-17 zoning, the parcels were in two zoning categories, "R-5(T)" and "RF-2." The PD-46 designation allows development for office, hotel, and residential mixed-uses. Among other requirements, a final development plan had to be submitted and approved to keep the PD-46 designation. If a final development plan was not approved, Cincinnati Ordinance 39-2007 provided that the property would "revert" to RF-R, a zoning classification it never previously had.

{¶ 5} In 2014, after numerous extensions, the city denied Sawyer's request to modify PD-46 to adopt its present use as the final development plan, and also denied its request for yet another extension to submit a final development plan. The PD-46 designation terminated. Under Cincinnati Ordinance 39-2007, the property "reverted" to RF-R.

Procedural Posture

{¶ 6} Appellants filed this action seeking a declaration that RF-R zoning is unconstitutional as applied to the subject property. Appellants contended, in relevant part, that (1) the zoning designation deprived them of economically viable uses; (2) the uses permitted by the RF-R zoning were not "reasonably practical" uses; (3) the RF-R zoning bears no reasonable relationship to the preservation of the public health, safety, morals, or general welfare; and (4) the zoning failed to substantially advance a legitimate government interest. Appellants also moved for a declaration that Cincinnati Ordinance 39-2007 did not authorize RF-R zoning after the expiration of the PD-46 overlay district because the zoning should have "reverted" to what had existed prior to Cincinnati Ordinance 39-2007-namely PD-17, or a combination of R-5(T) and RF-2.

{¶ 7} The case proceeded to a bench trial, during which numerous experts testified concerning the purpose of the zoning and the economies of developing the property as zoned. Appellants' experts surmised that developing the property for residential purposes in accordance with the RF-R designation was not economically feasible. The city primarily argued that the zoning designation was constitutional because it had a substantial relationship to the city's plan to meet the demand of new residents seeking high-end housing close to downtown Cincinnati and on the Ohio River, and that a high-end residential development was likely to increase property tax revenues. Each side offered experts to rebut the other's experts.

{¶ 8} In an advisory "letter decision" before it formally entered judgment, the trial court indicated that it was sympathetic to appellants' plight, and went so far as to voice skepticism regarding the legal burden placed upon landowners. The trial court nevertheless recognized that it was constrained to apply the law as it found it, and informed the parties that it intended to rule that the zoning was constitutional. The court directed the city to prepare a proposed entry.

{¶ 9} The trial court later entered extensive findings of fact and conclusions of law, in which it incorporated its letter-decision, and held that appellants had not met their burden to demonstrate that the zoning regulation was "clearly arbitrary, unreasonable, or without substantial relation to the public health, safety, morals, and general welfare of the community." On this basis alone, the court determined that the zoning regulation was constitutional as applied to the subject property. The court did not directly address appellants' economic-feasibility argument in its conclusions of law, although it made factual findings that appellants had failed to prove that the property could not be developed for a residential use.

{¶ 10} The trial court also concluded that the RF-R designation was not "revisionary zoning," as appellants had contended, because the "clear intent" of the city's ordinance "was to apply RF-R, Riverfront Residential/Recreational, zoning to the subject property should the Planned Development 46 zoning lapse." The court dismissed appellants' complaint with prejudice, and entered judgment in favor of the city.

Analysis

{¶ 11} In appellants' sole assignment of error, they contend that the trial court erred as a matter of law because it failed to apply the proper test for determining the constitutionality of zoning, and that it failed "to follow the required standards" for considering whether the zoning as applied to their property is constitutional. Through artful wording, appellants attempt to shoehorn our review solely into a question of law that we review de novo. However, appellants subdivide their assignment of error into six issues. As the city correctly points out, not all of the issues present questions of law. We will address the standard of review for each issue as they come.

{¶ 12} The judgment was consistent with the findings of fact. In the first issue presented for review, appellants argue that the trial court's letter-decision indicates that the court found the zoning to be arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare, and yet failed to enter judgment in appellants' favor.

{¶ 13} Application of the law to the trial court's findings presents a legal question that we review de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm , 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995) ; Castlebrook Ltd. v. Dayton Properties Ltd. Partnership , 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992). A zoning regulation that is arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare is unconstitutional. State ex rel. Ridge Club v. Amberley Village , 1st Dist. Hamilton No. C-070012, 2007-Ohio-6089, 2007 WL 3406918, ¶ 11. Appellants do not challenge any particular finding of fact. Rather, in support of their argument, appellants point to the trial court's statements regarding its frustration with the state of the law.

{¶ 14} Appellants are correct that, in its letter-decision, the trial court expressed an unambiguous preference to declare the zoning unconstitutional-if it could do so under the law. What the trial court so eloquently put was, "The law does not permit me to so find , but if I could I would find the mere desire to turn this unique property into a use it has not had for 200 years, no matter how often stated, is arbitrary and capricious without investigation as to whether the change is feasible." (Emphasis added.) Rather than being a factual finding in appellant's favor, this is an express statement of judicial restraint. The trial court stated a desire for a different legal standard. The trial court preferred the city be required to conduct an economic-feasibility analysis before rezoning property in a manner that would limit its current use. As the trial court recognized, this isn't the law.

{¶ 15} The trial court also preferred that the city not be permitted "to explicitly preference one economic group over another to benefit its own treasury." As the trial court correctly recognized, and as discussed more fully under appellants' third and fourth issues presented for review, these factors do not render a zoning regulation unconstitutional.

{¶ 16} In its journalized findings of fact, the trial court found,

RF-R zoning is consistent with the publically-stated plans for the subject property. The reasons for the plans include that the City will benefit from additional high-end housing options in the East End neighborhood, which supports the demand for new residents interested in living near the city center and the Ohio River, and that high-end residential development are [sic] likely to increase property tax revenues generated by the subject property as compared with the property tax revenues generated by the current operations on the subject property. Plaintiffs have not proven that the subject property cannot be developed for a residential use beyond fair debate. There are simply too many things not known at this time.

The court's judgment follows from these findings of fact.

{¶ 17} Appellants contend that the court's findings require reversal under Karches v. Cincinnati , 38 Ohio St.3d 12, 526 N.E.2d 1350 (1988). Interestingly, Karches involved property owners who wanted to construct a river barge terminal on the Ohio River underneath the I-275 Combs-Hehl Bridge near Coney Island in Cincinnati's California neighborhood. The Supreme Court reinstated the trial court's judgment that the zoning for the site was unconstitutional because it was cost prohibitive to construct the houses above the floodplain, and the allowed commercial uses had either been tried and failed or were cost prohibitive. Id. at 20-22, 526 N.E.2d 1350. The trial court in that case also found that the zoning decreased the value of the property. Id.

{¶ 18} While the issues here are strikingly similar, the factual findings are strikingly different. Here, most of the property is out of the floodplain, which arguably reduces development costs vis-à-vis those in Karches . Here, a barge terminal is already in place, in use, and is not required to cease operations. The trial court here found, unlike in Karches, that appellants failed to prove that residential use was not economically viable. Moreover, the trial court found that residential development here is likely to increase the value of the property and the corresponding real estate taxes paid to the city. Karches does not require reversal.

{¶ 19} Accordingly, appellants' first issue presented for review is not well taken. The judgment is wholly consistent with the factual findings.

{¶ 20} The Disjunctive Test. In their second issue presented for review, appellants argue that the trial court misapplied the law because it considered only one test to determine constitutionality when it should have considered two. Determining what the law is presents a question of law that we review de novo. This issue is less a dispute over what the law is, and more a dispute over whether appellants properly asserted a takings claim.

{¶ 21} In their complaint, appellants sought a declaration that the zoning was unconstitutional because "The uses permitted of the subject real property ... are not economically viable uses." If a property has been totally deprived of its economic value through zoning, a total regulatory taking has occurred. Lucas v. South Carolina Coastal Council , 505 U.S. 1003, 1027, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). A large portion of the trial focused on the economic viability of the zoning, with experts testifying to the issue on behalf of both sides. The parties tried the issue, and the trial court issued findings thereon. So even if a takings claim was not pled, it was arguably tried by consent of the parties under Civ.R. 15(B), and "shall be treated in all respects as if * * * [it] had been raised in the pleadings." But, to the extent that the takings issue was raised, it was within the context of a declaratory judgment, not in mandamus.

{¶ 22} The constitutionality of zoning may be challenged via declaratory judgment. Union Oil Co. of California v. City of Worthington , 62 Ohio St.2d 263, 267, 405 N.E.2d 277 (1980) ("[I]n a declaratory judgment action, upon finding existing zoning unconstitutional as applied to specific real property, the trial court should give notice to the zoning authority that, within a reasonable time certain, it may, at its option, rezone the property.") Unaddressed by Ohio law is whether a takings claim can be successfully pursued via declaratory judgment where mandamus is not sought. Compare Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 (dismissing a mandamus takings claim for lack of standing, but not addressing whether declaratory relief would be appropriate). We decline to resolve this issue today because, as explained below, the zoning ordinance is valid under both tests.

{¶ 23} Appellants correctly state that, in this appellate district, the legal standard for as-applied zoning challenges is set forth in Ridge Club , 1st Dist. Hamilton No. C-070012, 2007-Ohio-6089, 2007 WL 3406918. There are two separate tests in Ridge Club . Id. at ¶ 11. One renders an ordinance unconstitutional where "the zoning classification is arbitrary and unreasonable, having no substantial relationship to the health, safety, and welfare of the municipality." Id. Second, an unconstitutional uncompensated taking occurs where the zoning "denies the economically viable use of the land * * *." Id. So, a party can challenge the constitutionality of a zoning ordinance on either or both of these grounds. The second ground is applicable only where a taking is alleged.

{¶ 24} The city contends that there was no error, and argues that the economic-viability test is not good law. At one time, the Ohio Supreme Court treated the two tests as conjunctive-meaning, to prevail, a plaintiff had to establish that the zoning ordinance was unconstitutional under both tests. See Gerijo, Inc. v. Fairfield , 70 Ohio St.3d 223, 638 N.E.2d 533 (1994). So, even if a zoning designation deprived an owner of all economically viable use of land, the zoning would be upheld if it "advanced a legitimate government interest." Id. at syllabus; see Meck & Perlman, Ohio Planning and Zoning Law , Section 10:7 (2017).

{¶ 25} Later, the Supreme Court recognized that requiring both prongs be met was inappropriate, and the test became disjunctive. Goldberg Cos., Inc. v. Richmond Hts. City Council , 81 Ohio St.3d 207, 213, 690 N.E.2d 510 (1998). As stated by a leading treatise on Ohio zoning law, the Supreme Court in Goldberg "abandoned the conjunctive test for the disjunctive test. From this point on, the rule in Ohio is that a zoning ordinance can be overturned by a court if it fails to substantially advance legitimate state interests or deprives a landowner of economically viable use of property." Meck & Perlman at Section 10:8. The city argues that Goldberg did not adopt a disjunctive test, but instead abandoned the economic-viability test altogether. The landowner there did not assert an economic-viability argument-i.e., a taking, so the test was not relevant to that case. The Supreme Court explained as much in State ex rel. Shemo v. Mayfield Hts. , 95 Ohio St.3d 59, 63, 765 N.E.2d 345 (2002) (" Shemo II ").

{¶ 26} Completely abandoning the economic-viability test would run afoul of the United States Supreme Court Fifth Amendment precedent. A state regulation that deprives land of all economically beneficial use constitutes a taking, per se. Lucas , 505 U.S. at 1027, 112 S.Ct. 2886, followed by Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). A government that undertakes a total regulatory taking must either pay just compensation or "the State may elect to rescind its regulation and thereby avoid having to pay compensation for a permanent deprivation." Lucas at fn. 17. Appellants here sought rescission of the RF-R zoning designation via declaratory judgment. We reserve for another day whether this is an appropriate manner to bring a takings claim.

{¶ 27} The RF-R zoning is neither arbitrary nor unreasonable. In their fourth issue, appellants contend that the trial court should have found that the zoning ordinance is arbitrary and unreasonable, having no substantial relationship to the health, safety, and welfare of the municipality. See Ridge Club , 1st Dist. Hamilton No. C-070012, 2007-Ohio-6089, 2007 WL 3406918, at ¶ 11. We review this argument to determine if the court's judgment was against the manifest weight of the evidence. See Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20 ; State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In support of their argument, appellants again point to statements that the trial court made in its letter-decision expressing frustration at the state of the law. The trial court's factual findings are different than appellants contend.

{¶ 28} Here, the trial court found:

RF-R zoning is consistent with the publicly-stated plans for the subject property. The reasons for the plans include that the City will benefit from additional high end housing options in the East End neighborhood, which supports the demand [of] new residents interested in living near the city center and the Ohio River, and that high end residential development are [sic] likely to increase property tax revenues generated by the subject property as compared with the property tax revenues generated by the current operations on the subject property.

These findings are supported by the record.

{¶ 29} Zoning with the purpose of growing the tax base and increasing the vibrancy of the riverfront in a neighborhood near the city center is neither arbitrary nor unreasonable. It certainly has a substantial relationship to the welfare of the municipality. See State ex rel. Phillips Supply Co. v. Cincinnati , 2012-Ohio-6096, 985 N.E.2d 257, ¶ 30 (1st Dist.) (holding that zoning that promoted economic stability and strong neighborhoods was rationally related to the health, safety, and welfare of the city's citizens). Moreover, the zoning is reasonable because, as discussed, it allows for the continuation, expansion, and substitution of appellants' nonconforming use.

{¶ 30} The RF-R zoning is currently economically viable. In their third issue presented for review, appellants argue that they proved at trial that the RF-R zoning designation denies them all economically viable uses of their property. They essentially argue that the trial court's findings to the contrary are against the manifest weight of the evidence. We will review this argument without passing on whether it is relevant to the analysis of the constitutionality of the zoning or if an uncompensated taking was properly alleged.

{¶ 31} For our review, we weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the finder of fact clearly lost its way, thereby creating a manifest miscarriage of justice so that the judgment must be reversed and a new trial ordered. Eastley , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 20 ; Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541. In weighing the evidence, we are mindful that every reasonable presumption must be made in favor of the judgment and the findings of fact. Eastley at ¶ 21.

{¶ 32} A landowner does not, of course, have the right to have his land zoned for its most advantageous economic use. Ridge Club , 1st Dist. Hamilton No. C-070012, 2007-Ohio-6089, 2007 WL 3406918, at ¶ 13. The central inquiry in an economic-deprivation analysis-"total regulatory taking" in federal parlance-is whether the zoning ordinance denies an owner of all economically viable use of his land. Id. The word "all" is significant. A zoning ordinance is unconstitutional if it " 'restricts the use of the land so as to render it valueless, the permitted uses are not economically feasible, or the regulation permits only uses which are highly improbable or practically impossible under the circumstances * * *.' " Id. , quoting Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals , 38 Ohio St.3d 184, 186, 527 N.E.2d 825 (1988). At trial, appellants had the burden to demonstrate that the ordinance at issue is unconstitutional "beyond fair debate." Ridge Club at ¶ 10, citing Cent. Motors Corp. v. Pepper Pike , 73 Ohio St.3d 581, 583-584, 653 N.E.2d 639 (1995). This is a high standard of proof-the civil equivalent to the criminal "beyond a reasonable doubt" standard. Id.

{¶ 33} Here, the trial court found that appellants did not prove beyond fair debate "that the subject property cannot be developed for a residential use," as permitted by the RF-R zoning designation. This finding is supported by the record.

{¶ 34} Appellants presented a development plan that they argued showed that the land as zoned was not economically feasible. However, the trial court found the feasibility analysis to be inconclusive. We will expound on a few examples of the evidence that, when every inference is made favorable to the city, demonstrate the trial court did not lose its way.

{¶ 35} Appellants' experts opined that 13.5 acres of the site would be excavated to a depth of ten feet and refilled-completely removing and replacing 210,000 cubic yards of material at an estimated cost of $10.5 million. The city's expert opined that appellants' expert overestimated both the per unit cost and amount of site preparation work needed. The city's expert countered that only 100,000 cubic yards of excavation and embankment was necessary at a cost of only $650,000. According to the city, total site preparation costs were estimated at only $6 million compared to appellants' estimate of $25 million. It was reasonable for the court to find the city's expert to be more credible, or at the very least that appellants did not meet their burden of establishing the development costs beyond fair debate, which it did when it concluded that "[p]laintiffs have not proven that the subject property cannot be developed for a residential use beyond fair debate. There are simply too many things not known at this time."

{¶ 36} Moreover, the trial court could have concluded that the "site density"-i.e., the number of housing units-in appellants' plan was too low because it was based upon an overly restrictive reading of the city code. The city's expert observed that the site could accommodate many more residences. Appellants' expert agreed, but indicated that would lower the value of each site.

{¶ 37} We also note that appellants could not establish that the present zoning is economically unviable because, unlike in Ridge Club , there is an economically-viable business on the property. Granted, the uses are non-conforming, but they are specifically permitted to continue. See Cincinnati Municipal Code 1447-03. With city approval, the present uses can expand or be replaced by other nonconforming uses. See Cincinnati Municipal Code 1447-09 and 1447-11. Of course, what becomes of the property if the present uses cease is a question for another day. The appellants did not prove beyond fair debate that the zoning is not economically viable now.

{¶ 38} The term "revert" did not render the zoning unlawful . In their fifth issue, appellants claim that "reverting" to RF-R zoning after the termination of the PD-46 designation was illegal and invalid. Our review of the legal meaning of the ordinance is de novo. Ceccarelli v. Levin , 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.

{¶ 39} After seven years and several extensions of the deadline to submit a final development plan under the PD-46 zoning, the City Planning Commission decided not to afford appellants another extension. Cincinnati Ordinance 39-2007, which zoned the property PD-46, provided "That a Final Development Plan shall be approved by the City Planning Commission in accordance with Section 1429-11(C) of the Cincinnati Municipal Code, or the property will revert to the RF-R, Riverfront Residential/Recreational District."

{¶ 40} The trial court concluded, "The use of the word 'revert' was unfortunate and inaccurate but if the City had used another word, the same thing would have been accomplished." Appellants now argue that the property could not possibly "revert" to a zoning designation it never had. They do not contend that the reference to RF-R in the ordinance was unintentional or a scrivener's error. Their argument is purely semantical. Appellants contend that the property should have "reverted" to the PD-17 designation it had under the former zoning code before the ordinance at issue changed the zoning to RF-R with a PD-46 designation. Under the former code, the property had two different zoning designations, R-5(T) and RF-2, with a designation entitled Planned Development 17. The R-5(T) and RF-2 designations no longer exist in the city's zoning code. Appellants cite no precedent regarding how the ordinance should be interpreted. Their only citation is to a single aged case that was an ode against "contract zoning." See Hausmann & Johnson, Inc. v. Berea Bd. Of Bldg. Code Appeals , 40 Ohio App.2d 432, 320 N.E.2d 685 (8th Dist. 1974).

{¶ 41} In response, the city relies on Mishr v. Poland Bd. of Zoning Appeals , 76 Ohio St.3d 238, 667 N.E.2d 365 (1996), in which a divided Supreme Court ruled that an ordinance repealing a rezoning ordinance implicitly reinstated the prior zoning. The majority found the intent to reinstate the prior zoning to be clear, and concluded that a reading that would render the property unzoned to be absurd. Id. at 240, 667 N.E.2d 365. The dissent adopted the reasoning of the court of appeals that "[t]he only way the property in question could have been returned to the designation it had under the 1978 ordinance would have been for the repealing ordinance to contain language sufficient to revive that designation." Id. at 240-241, 667 N.E.2d 365.

{¶ 42} Following Mishr , the clear intent of Cincinnati Ordinance 39-2007 was to rezone the property to RF-R if a final development plan was not approved. The ordinance also likely satisfies the concerns of the Mishr dissent. RF-R is expressly stated. This specific designation in Cincinnati Ordinance 39-2007 controls over the general provision in the zoning code. See Springdale v. CSX Ry. Corp. , 68 Ohio St.3d 371, 376, 627 N.E.2d 534 (1994) (holding that specific statutory provisions prevail over general ones). And there is a reason why the verb "revert" was used. Cincinnati Municipal Code 1429-19(c) states that if a PD District expires "the zoning of the PD District revert [sic] to the zoning district designation in effect immediately before the PD designation." Cincinnati Ordinance 39-2007 used "revert" to align itself with the language of the city code. The best, fairest reading of Cincinnati Ordinance 39-2007 is that it simultaneously rezoned the property PD-46 and changed the underlying zoning to RF-R.

{¶ 43} The sixth issue is moot. In their sixth and final issue, appellants contend that "when zoning is unconstitutional as applied * * *, it is the duty of the trial court to determine whether the proposed use of the property is reasonable and proper."

{¶ 44} As we have already determined that the trial court correctly found the zoning to be constitutional, we have no occasion to visit the final issue raised by appellants and we disregard it as moot.

Conclusion

{¶ 45} The assignment of error is overruled. The trial court's well-reasoned judgment that the zoning is constitutional as presently applied to the property in question is affirmed.

Judgment affirmed.

Zayas, P.J., and Myers, J., concur.

      The parties impliedly dispute, but did not thoroughly brief, whether an unconstitutional taking without just compensation can be properly alleged via a declaratory judgment action where mandamus has not been sought. Whether this request for a declaration was an effort to assert such a claim, or was merely an argument to support its as-applied challenge to the zoning, is also unclear. As discussed below, we can resolve this case without resolving this issue, and reserve it for another day.

      The trial court also stated, "I would find it arbitrary and capricious to force a small business out of business without full compensation * * *." However, there was no finding that Cincinnati Barge is being forced out of business at this time. Moreover, appellants elected not to seek a writ of mandamus to force an inverse condemnation proceeding, so compensation was not an available remedy.

      Although case law discusses economic "viability," the experts tend to prefer the term "feasibility." There appears to be no substantive difference.


source: Caselaw Access Project

author: FRANK D. CELEBREZZE, JR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Tyrone MOCK Defendant-Appellant
    No. 104997
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    David N. Patterson, Patterson & Simonelli, 30432 Euclid Avenue, Suite # 101, Wickliffe, Ohio 44092, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Erica D. Barnhill, Assistant Prosecuting Attorney, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, Tyrone Mock, appeals from his convictions for multiple counts related to a check-fraud ring that operated in northeast Ohio. Appellant claims that evidence gathered against him should have been suppressed based on constitutional violations, and that his convictions are against the manifest weight of the evidence and not supported by sufficient evidence. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} Appellant cultivated a large check-fraud ring that operated throughout northeast Ohio. He enticed Jerome Bohanon ("Bohanon"), an employee of a check-cashing business, to supply him with business names, bank account and routing numbers, and recent check numbers. Appellant would then research the businesses and determine when would be the best time to attempt to cash the checks so as to avoid security procedures in place at many banks.

{¶ 3} Appellant, along with Jonnell George ("George"), would then recruit individuals to cash these checks and split the money. After recruiting an individual, appellant would create counterfeit checks for amounts just below $1,000, using the information obtained from Bohanon. The checks were made payable to the actual names of the person cashing the checks. Appellant told several of these individuals that they would only face minor criminal repercussions from the scheme and could make anywhere from $200 to $400 per transaction.

{¶ 4} Police departments around northeast Ohio, as well as bank investigators, noticed a spike in fraudulent checks. Based on the similarities between the checks, officers in the Rocky River Police Department believed that the separate incidents were related. Detective William Duffy ("Det. Duffy") interviewed a suspect, D.H., who was identified as an individual that had cashed some fraudulent checks. She detailed her participation in the scheme and how she came to be involved. She also disclosed that she received the check from a person named "Ike" and gave police Ike's phone number. She showed them text messages she received from "Ike," asking her if she wanted to cash more checks. She also described his car, a white Oldsmobile Aurora.

{¶ 5} Det. Duffy, by way of a court order signed by a municipal court judge, obtained phone records from a cell phone carrier for the number provided by D.H. The subscriber information did not provide a name, and the address was for a California residence. Det. Duffy determined that the cell phone was one he considered a "burner" phone, or an anonymous cell phone. Using the call logs, Detective Craig Witalis ("Det. Witalis") was able to link the number to other phone numbers and an address on Monticello Boulevard in Richmond Heights, Ohio. After checking records, detectives learned that there was a 1999 white Oldsmobile Aurora owned by someone that resided at the address. Rocky River detectives obtained a search warrant signed by a common pleas court judge to place a GPS tracker on the car, and with the assistance of Rocky River Detective Tracey Hill, who is also a sworn Cuyahoga County Sheriff's deputy, did so on May 11, 2015. Det. Witalis, along with several other officers, conducted surveillance when the car moved.

{¶ 6} Bohanon testified he provided appellant with information useful in creating counterfeit checks in exchange for money. Det. Witalis testified that from their surveillance of appellant, a pattern emerged. Appellant would visit Bohanon's place of employment, and then a few days later, appellant would drive to different banks. Sometimes appellant would arrive with another person in his car. Other times appellant would meet another person at the location. The other person would then go into the bank, come out, and meet up with appellant. Officers took pictures and recorded the location of the stops using software for the GPS tracker. At trial, Det. Witalis authenticated surveillance photos of these encounters.

{¶ 7} Detectives also investigated other individuals that participated in the scheme, and several gave statements implicating appellant.

{¶ 8} Officers eventually gained enough information to seek a search warrant for the Monticello Boulevard home, which was issued. There, officers found items appellant used to create forged checks, including check stock, printers, legitimate checks from certain businesses together with forged copies from those businesses, computer programs with past templates of forged checks, cash, and computer searches of businesses that had been the target of the check fraud.

{¶ 9} Appellant was arrested and charged in a 185-count indictment with engaging in a pattern of corrupt activity, conspiracy, money laundering, forgery, theft, telecommunications fraud, identity theft, and possession of criminal tools.

{¶ 10} Appellant filed three suppression motions. In his first, he argued that the search warrant for the placement of a GPS tracker was defective. In his supplemental suppression motion, he again sought to have all information related to the GPS tracker excluded, and also argued that the state improperly obtained phone records. On the day of the suppression hearing, appellant filed a pro se supplemental suppression motion arguing the GPS issue and other constitutional issues.

{¶ 11} A suppression hearing was held where the state called two detectives to testify about their investigation of D.H. Det. Duffy testified about D.H.'s statements regarding a phone number belonging to an individual named "Ike" that provided fraudulent checks to her, and that he then sought a court order from a municipal court judge for phone records regarding that number. The detective testified about the information that was disclosed to the judge, and appellant's attorney questioned the witnesses about information that was not disclosed. This information included the fact that D.H. lied to police about her address, and that she was recently hospitalized for mental illness. Other issues raised in appellant's suppression motions were not addressed at the hearing, and appellant called no witnesses and did not introduce any exhibits. Appellant's attorney did ask a few questions of the detective regarding the circumstances under which they attached the GPS unit to the car, but the warrant for GPS tracking was not introduced during the hearing.

{¶ 12} The trial court took the matter under advisement and later announced a decision in court and set forth the decision in a journal entry denying the motions. On the record, the court stated,

[t]he standard for an order for cell phone records is less than probable cause under 18 USC 2703(d). The standard is specific articulable facts that give the court reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation.
In this case the police reports indicate that there were-that this confidential informant * * * had been identified through bank photos as one of the people passing stolen and counterfeited checks. She was interviewed, and, in fact, during one of her interviews, she received a text message from this telephone number at issue in which a person identified as Ike wanted to know if she wanted to cash more checks.
This was actually done in the presence of the-well, no it wasn't done with-but the informant * * * did show Detective Duffy a March 15th text message which requested her involvement in further check cashing schemes.
The basis of the suppression was that [the judge] was not informed of the informant's psychiatric history as well as the fact that she may have misrepresented her residential address as being with her parents as opposed to being at a psychiatric unit of Richmond Hospital, is my recollection.
Regardless of that, though, there was a pattern of-strike that. Before I go further, she did describe the car that this person known to her as Ike would pick her up in and taker her to various banks. In fact, her parents at one point dropped her off at a residence, I believe in East Cleveland where the vehicle was consistent with the description provided by [the informant].
And finally, and I think probably most important, in Crawford - State v. Crawford , that's a 2013 case, the Ohio Supreme Court indicated that citing a U.S. Supreme Court case that a person that has no reasonable expectation of privacy in his or her telephone records as opposed to the contents of those phone calls.
That being the case, this was issued pursuant to the requirements of the statute. However, even if it were in error that it did not comply with the statutory mandates, that is not a basis for suppression. In fact, I believe there was some case law that indicates that the exclusionary rule may be invoked to express [sic] only evidence obtained as a result of a constitutional violation. Here there's no constitutional violation. The United States Supreme Court has ruled that there is no expectation to privacy in one's telephone number.
Therefore, I'm going to deny the motion to suppress.

(Tr. 57-59.)

{¶ 13} Prior to trial, 65 counts were dismissed at the state's request. At trial, seven codefendants, including Bohanon, testified against appellant. At the conclusion of trial, 11 counts were dismissed at the state's request. Of the counts that remained, appellant was found not guilty of several counts of forgery and money laundering. He was found guilty of engaging in a pattern of corrupt activity ("RICO"), a violation of R.C. 2923.32(A)(1) ; conspiracy, a violation of R.C. 2923.01(A)(1) ; 28 counts of forgery, violations of R.C. 2913.31(A)(3) ; 29 counts of money laundering, violations of R.C. 1315.55(A)(3) ; 9 counts of petty theft, violations of R.C. 2913.02(A)(3) ; 7 counts of aggravated theft, violations of R.C. 2913.02(A)(3) ; 6 counts of telecommunications fraud, violations of R.C. 2913.05(A) ; 1 count of identity theft, a violation of R.C. 2913.49(C) ; 1 count of forging identification cards, a violation of R.C. 2913.31(A)(2) ; and 1 count of possession of criminal tools, a violation of R.C. 2923.24(A).

{¶ 14} At sentencing, the trial court merged the conspiracy count into the RICO count at the state's request. The court also merged each count of theft and forgery with each corresponding money laundering count. If a theft and forgery count did not have a corresponding money laundering count, then those counts were sentenced separately. This resulted in an aggregate 13-year prison sentence, composed of a 10-year prison term for the RICO count, a 2-year term for each of the 29 counts of money laundering imposed concurrent to each other but consecutive to the RICO sentence, and a 1-year term for fourth-degree felony telecommunications fraud imposed consecutive to the RICO and money laundering counts. The following sentences were imposed concurrent to each other and all other counts: 11 months for each of the four counts of fifth-degree felony telecommunications fraud, 17 months for the other fourth-degree felony telecommunications fraud, 30 months for the identity fraud, 11 months for the possession of criminal tools, 17 months for forgery, and 6 months for theft.

{¶ 15} Appellant was also ordered to pay restitution and advised of postrelease control. He then filed the instant appeal assigning three errors and one supplemental error for review:

I. The trial court erred in denying appellant's motion to suppress affidavits and warrants for installation and monitoring of a GPS tracking device which violated his rights under the Fourth Amendment of the United States and Article I Section 14 of the Ohio Constitution[s] and the court['s] failure to give appellant findings of facts and conclusion[s] of law on relevant constitutional issues thereby denying appellant[ ] due process.
II. The trial court erred in denying appellant a fair trial, due to the state and detectives in this case intentionally failing to disclose through discovery material exculpatory evidence relating to accomplice/co-defendants which violated his rights under the Fourth Amendment of the United States and Article I Section 10 of the Ohio Constitution[s].
III. The trial court erred in denying appellant['s] Rule 29 motion for acquittal as to the charges when the state presented insufficient evidence to sustain appellant's convictions and/or appellant's convictions [are] against the manifest weight of the evidence and thereby appellant was denied due process under the Fourth Amendment of the United States and Article I Section 10 of the Ohio [Constitutions] thereby denying appellant[ ] due process.
Supplemental Assignment of Error. Appellant was denied the effective assistance of trial counsel, in violation of his Sixth Amendment right, and due process of law, when trial counsel failed to conduct a pretrial investigation and interview crucial witnesses, and trial counsel[']s failure to file a motion to suppress deficient and invalid search warrant to search and seize the contents of computer and the warrantless to [sic] search and seiz[ure] of cell phone contents in violation of appellant's Fourth Amendment rights.

II. Law and Analysis

A. Suppression of Evidence

{¶ 16} Appellant's first assignment of error argues that the court erred in denying the suppression of evidence that was obtained through the installation of a GPS monitoring device on his car. In the course of arguing these issues, he also takes issue with the way in which the state obtained cell phone records.

{¶ 17} This court's review of a decision on a motion to suppress is a mixed question of law and fact. State v. Lennon , 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, 2017 WL 1957124, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. This court defers to the trial court on its factual findings, but reviews de novo the trial court's application of those facts to the applicable law. Id. , citing Burnside .

The Fourth Amendment to the United States Constitution protects people from illegal searches and seizures. In order to employ Fourth Amendment protections, a defendant must have a "constitutionally protected reasonable expectation of privacy." Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The United States Supreme Court has directed reviewing courts to consider a two-part test in order to determine whether the Fourth Amendment is implicated. "First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo , 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), citing Katz at 360 [88 S.Ct. 507].

State v. Lemasters , 12th Dist. Madison No. CA2012-12-028, 2013-Ohio-2969, 2013 WL 3463219, ¶ 8.

{¶ 18} To the extent appellant challenges the decision related to the search warrants for the attachment of a GPS tracking device, this court cannot properly address those arguments. Appellant's initial suppression motion references the warrants and accompanying affidavits, but those documents were not attached. At the suppression hearing, appellant did not introduce those documents as exhibits. As a result, those documents were not before the trial court at the appropriate time. We cannot discern the merit of appellant's arguments without these documents. Statements made in a search warrant affidavit enjoy a presumption of validity. State v. Taylor , 174 Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945 (1st Dist.). Without evidence to the contrary, this court is bound to find the statements made in the affidavit valid and, thus, the warrants valid.

{¶ 19} The evidence adduced at the suppression hearing indicated that police were investigating an incident where a person cashed fraudulent checks made to resemble payroll checks. Officers interviewed an individual, D.H., and she provided them with a phone number that she says was used to contact her in order to arrange the provision of a fraudulent check to her. She indicated the person with whom she communicated was named "Ike," and the two had exchanged text messages and talked over the phone. With her permission, officers examined her phone and viewed the text messages that were exchanged between that phone number and the person being interviewed. Det. Duffy then approached a municipal court judge for an order directing the cell phone provider to release records related to the account. Det. Duffy relayed the steps in the investigation that had occurred and the statements made by the individual under the investigation. Det. Duffy did not disclose that this individual had a history of mental illness and was recently hospitalized for mental health treatment, and did not disclose that this individual lied about her current address. The judge issued a court order directing AT & T to produce subscriber records relating to the phone number provided, including address, call logs, location data, and text messages.

{¶ 20} Det. Duffy and Det. Witalis received information regarding the phone number from AT & T, and the subscriber information was not helpful. The account information provided did not include a name, and the address listed was a California address. Det. Witalis described the phone as a "burner" or anonymous phone. Using information contained in the call logs, Det. Witalis testified that he determined, through the frequency of the calls and other information, that the phone was likely related to an address on Monticello Boulevard in Richmond Heights, Ohio. A records check revealed a car registration for a white Oldsmobile Aurora owned by a person at that address. Upon surveillance of that address, he observed a car that matched the description provided by D.H., a white Oldsmobile Aurora.

{¶ 21} First, the trial court held that appellant did not have an expectation of privacy because he denied being the owner of the phone, the subscriber using the phone, or associated with the phone in any way.

For a person to have been aggrieved by an unlawful search or seizure, he or she " 'must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' "

State v. Crawford , 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, 2013 WL 1791228, ¶ 45, quoting Alderman v. United States , 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), quoting Jones v. United States , 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). This, alone, is a basis to affirm the trial court's decision. Appellant has maintained that these records do not pertain to him. Therefore, he would not be aggrieved by a search of these records.

{¶ 22} However, because the state has asserted that these are records that relate to appellant in that they pertain to a cell phone used by appellant, in an abundance of caution, this court will analyze the matter further.

{¶ 23} This court has previously found no privacy right exists for cell phone records maintained by a phone company. Id. at ¶ 47 ("telephone users have no right of privacy in the numerical information they convey to the telephone company. Courts have also held that this reasoning applies to cell phone records obtained from cell phone companies as well."), citing State v. Neely , 2d Dist. Montgomery No. 24317, 2012-Ohio-212, 2012 WL 175340 ; United States v. Dye , N.D.Ohio No. 1:10CR221, 2011 WL 1595255 (Apr. 27, 2011). Information that has been voluntarily turned over to third parties does not enjoy protection because a person does not have a legitimate expectation of privacy in such information.

{¶ 24} The Second District has reaffirmed its holding in Neely and found that an individual has no constitutional privacy interest in cell phone location data, or ping data, maintained by a cell phone carrier. State v. Taylor , 2d Dist. Montgomery No. 25764, 2014-Ohio-2550, 2014 WL 2700846. The request for information sent to the phone company in that case requested location data, call logs, and subscriber information. Id. at ¶ 8.

{¶ 25} The court order in the present case also sought text messages. The request for text messages could lead to the disclosure of metadata about appellant's communications as well as the content of communications where a privacy interest may exist. 18 U.S.C.S. 2703(c) specifically limits its application to records of electronic communications, but subsection (b) provides for the release of the contents of communications of a remote computing service only with prior notice to the subscriber and other restrictions.

{¶ 26} It is unclear from the suppression hearing whether any contents of text messages were, in fact, turned over and, if they were, whether they were used against appellant in any manner. If the requested information turned over by the phone company was limited to the date, time, and phone numbers of exchanged text messages, then appellant would not have a privacy interest in that metadata.

{¶ 27} Det. Duffy testified that he used the call logs of the anonymous cell phone to link that number to others that were frequently called. Through an investigation of those numbers, using searches of publicly available information, he was able to identify a residential address that was in some way associated with the person that used the anonymous phone. An Ohio Bureau of Motor Vehicles search yielded a vehicle matching the description given to police that was also associated with the address.

{¶ 28} There is no indication that the contents of the communications to which appellant had a reasonable expectation of privacy were turned over as a result of the court order or, if the contents of text messages were turned over, were used in the investigation against appellant as a result of the court order. Appellant has the burden of at least prima facie establishing a violation of his Fourth Amendment right to privacy, and without showing that the contents of text messages were, in fact, turned over to police, appellant has not made that showing.

{¶ 29} Appellant argues that the records disclosed to police were not turned over in discovery. This court cannot review such a claim, but it is apparent that appellant did not ask the detectives that testified at the suppression hearing whether the contents of text messages were disclosed. Further, the records were not otherwise used at trial. Therefore, the trial court did not err in this respect when denying appellant's motion to suppress.

{¶ 30} Appellant also argues that there were material omissions made to the judge issuing the order that should have resulted in a lack of reasonable suspicion. Generally, when this court is reviewing this type of issue, there is a search warrant affidavit that details the information relayed to the authorizing judge. In this case, there is no affidavit relating to the court order used to obtain cell phone records, but Det. Duffy testified about the information relayed to the issuing judge. Det. Duffy readily admitted that he did not disclose that the witness had lied to him about her residence, and that he did not disclose that she was recently hospitalized for mental illness.

{¶ 31} Appellant likens this to cases where a search warrant affidavit contained material misstatements or omissions, allegedly causing them to be fatally deficient. See Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In those cases,

[a] defendant who claims that a warrant is flawed because it is based upon a false statement must prove by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth. State v. Tinsley , 2d Dist. No. 23542, 2010 Ohio 3535 [2010 WL 2990860], ¶ 23, citing Franks [v. Delaware , 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ].

State v. Perry , 8th Dist. Cuyahoga No. 97572, 2012-Ohio-4273, 2012 WL 4243706, ¶ 15.

{¶ 32} The Perry court went on to note that " '[e]ven if the affidavit contains false statements [or omissions] made intentionally or recklessly, a warrant based on the affidavit is still valid unless, with the affidavit's false material set to one side [or with the omissions included], the affidavit's remaining content is insufficient to establish probable cause.' " Id. at ¶ 16, quoting State v. Sells , 2d Dist. Miami No. 2005-CA-8, 2006-Ohio-1859, 2006 WL 964573, ¶ 11, citing State v. Waddy , 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992).

{¶ 33} Here, this issuance of the court order for records is governed by a standard less than probable cause due to the lack of a privacy interest in the requested records. 18 U.S.C.S. 2703(d). According to this statute, the standard for the issuing judge is whether "the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." This standard is similar to that fleshed out in the Terry line of cases. United States v. Warshak , 631 F.3d 266, 291 (6th Cir.2010), citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this standard, an investigative search is reasonable when the state actor is able to point to articulable facts that give rise to a reasonable suspicion of criminal activity. State v. Eddy , 8th Dist. Cuyahoga No. 104417, 2017-Ohio-7398, 2017 WL 3775353, ¶ 19, citing Terry .

{¶ 34} Assuming for the sake of argument that appellant has standing and an interest in the cell phone records, even with the omissions appellant points out, there still exists a reasonable suspicion of criminal activity based on the factual recitation above.

{¶ 35} The GPS search warrants and affidavits are not attached to any of appellant's suppression motions filed with the clerk. However, an undocketed, unfiled copy of appellant's May 18, 2016 suppression motion is included in the lower court file. This document has hand-written notations and other irregularities. Therefore, given these limitations, this court will examine appellant's arguments in light of these warrants and affidavits.

{¶ 36} Attached to a May 7, 2015 GPS warrant is an affidavit executed by Det. Witalis. There, he describes the investigation of several individuals passing bad checks and the individuals supplying these checks. The information provided by D.H. was set forth, including the phone contact she had with a person named "Ike" and the fact that he drove a white Oldsmobile Aurora. Det. Witalis averred that he was able to use phone records from the number provided by D.H. to hone in on a person closely associated with that phone number that also owned a white Oldsmobile Aurora. Detectives and a secret service agent then met with D.H. again and she picked appellant out of a photo array and identified him as Ike. Further surveillance of the address that Det. Witalis identified as being closely related to the cell phone number provided by D.H. resulted in Det. Witalis observing appellant driving the white Oldsmobile Aurora.

{¶ 37} This court's review is further hampered by the nature of the record in this case because there are two documents purporting to be GPS warrants issued on May 7, 2015, for the same vehicle and appear to be copies of the same warrant. However, the affidavit attached to each is different. The second May 7, 2015 search warrant affidavit avers similar statements, but also included that an officer had taken a statement from J.M. She was caught attempting to pass a fraudulent check and indicated that it was supplied to her by someone who identified himself by the name of "Black" and drove a white Oldsmobile Aurora.

{¶ 38} A June 24, 2015 warrant for an extension of the original GPS warrant indicated that appellant's vehicle was at several banks when attempts were made to pass fraudulent checks. Det. Witalis also averred that the vehicle visited a check cashing business-the same check cashing business that employed Bohanon-prior to visiting the various financial institutions where fraudulent checks were passed.

{¶ 39} Regardless, at the suppression hearing, appellant argued in his opening statement that the GPS warrant affidavits were deficient, but then failed to pursue the issue further at the suppression hearing. All the evidence adduced was in relation to the court order issued by a municipal court judge for phone records, not the GPS warrants that were issued by a common pleas court judge. Appellant adduced testimony that detectives failed to disclose facts about D.H.-she had a history of mental illness including recent hospitalization, and she lied to police about her address-but that was in the context of the court order to obtain cell phone records. As this court recognized in Perry , it is the defendant's burden to demonstrate a material misstatement or omission in a search warrant affidavit under Franks . Perry , 8th Dist. Cuyahoga No. 97572, 2012-Ohio-4273, ¶ 15. Appellant failed to do so at the suppression hearing.

{¶ 40} Therefore, appellant's first assignment of error is overruled.

B. Failure to Disclose Evidence

{¶ 41} In his second assignment of error, appellant claims that the state failed to disclose certain allegedly exculpatory evidence relevant to the suppression issues.

{¶ 42} The United States Supreme Court has held, that the "[s]uppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), syllabus.

{¶ 43} Appellant does not point to anything in the record that this court can review for what was or was not disclosed in discovery. Appellant claims that there was certain information not used at trial that was not disclosed. Specifically, appellant points to a photo array that was shown to D.H. that was referenced at the suppression hearing, the telephone records that were turned over to police as a result of D.H.'s information, and D.H.'s statements to police. This court cannot determine what was or was not turned over in discovery. Therefore, this assigned error is overruled.

C. Sufficiency and Manifest Weight

{¶ 44} In a single assignment of error, appellant argues that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.

Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency. State v. McCrary , 10th Dist. [Franklin] No. 10AP-881, 2011-Ohio-3161 [2011 WL 2536451], ¶ 11. * * * Thus, a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency. Id. * * *.

State v. Baatin , 10th Dist. Franklin No. 11AP-286, 2011-Ohio-6294, 2011 WL 6147389, ¶ 8. See also State v. Jackson , 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946, 2015 WL 2451750, ¶ 11. Because appellant does not assign these errors separately, and a sufficiency analysis is subsumed by a manifest weight analysis in this case, this court will address the arguments together.

The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

State v. Ball , 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, 2014 WL 1340226, ¶ 35.

{¶ 45} Appellant was convicted of engaging in a pattern of corrupt activity as defined by R.C. 2923.32(A)(1). This statutes provides "[n]o person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt."

{¶ 46} R.C. 2923.31 defines certain terms set forth in the prohibition. The statute defines an enterprise as "any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity." R.C. 2923.31(C). The statute defines a pattern of corrupt activity as "means two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event." R.C. 2923.31(E). Finally, the statute defines corrupt activity as engaging in, attempting to engage in, or conspiring to engage in a wide range of listed offenses including those that apply to this case, such as money laundering, theft, forgery, and telecommunications fraud.

{¶ 47} Money laundering, as it relates to this case, is defined in R.C. 1315.55(A)(3), and provides, "[n]o person shall conduct or attempt to conduct a transaction with the purpose to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of corrupt activity."

{¶ 48} Appellant was also convicted of conspiracy ( R.C. 2923.01(A)(1), which prohibits one from planning or aiding in planning the commission of, among other offenses, engaging in a pattern of corrupt activity, with the purpose to, or promoting or facilitating, the commission of such an offense. R.C. 2923.01(A)(1).

{¶ 49} Forgery as relevant here, provides that "[n]o person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess with purpose to utter, any writing that the person knows to have been forged." R.C. 2913.31(A)(3).

{¶ 50} Theft prohibits one "with purpose to deprive the owner of property or services," from knowingly obtaining or exerting control "over either the property or services in any of the following ways: (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception." R.C. 2913.02(A)(2) and 2913.02(A)(3).

{¶ 51} Telecommunications fraud criminalizes the use of telecommunications in a scheme to defraud. It provides,

[n]o person, having devised a scheme to defraud, shall knowingly disseminate, transmit, or cause to be disseminated or transmitted by means of a wire, radio, satellite, telecommunication, telecommunications device, or telecommunications service any writing, data, sign, signal, picture, sound, or image with purpose to execute or otherwise further the scheme to defraud.

R.C. 2913.05(A).

{¶ 52} Finally, appellant was convicted of possessing criminal tools. This is defined in pertinent part, stating, "[n]o person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally." R.C. 2923.24(A).

{¶ 53} Appellant does not attack the individual elements of any given conviction, but claims that there is insufficient evidence on all convictions because the evidence adduced at trial demonstrated that codefendant Jonnell George was the actual perpetrator of these crimes. This argument ignores volumes of evidence introduced at trial. The evidence seized from appellant's home, the testimony of codefendants that pointed to both appellant and George as the contacts through which they received checks to cash, and the surveillance evidence of appellant driving with people or meeting people at various locations with banking institutions where fraudulent checks were cashed or attempts to cash checks were made at that time. Many of those people testified about their contact with appellant and George.

{¶ 54} The testimony adduced at trial demonstrated that appellant conspired with others to engage in a scheme to defraud various businesses and financial institutions by creating counterfeit payroll checks and having people that were in desperate need for money use their real names to cash those checks. For instance, Jovan Blackwell identified appellant in court as the individual from which he received fraudulent checks. Appellant drove Blackwell to banks in Willoughby and Mayfield, and Blackwell cashed checks made out from Target Staffing and Executive Caterers accounts. Blackwell then split the money with appellant. Those checks, along with surveillance photos documenting the trips, were submitted by the state as exhibits at trial.

{¶ 55} Bohanan, appellant's source of financial account information, also testified that appellant paid him for this information.

{¶ 56} In total, nine codefendants testified about their interactions with appellant, George, or both. Appellant attempts to attack the veracity of these witnesses' testimony because they were testifying as part of plea agreements, or through minor inconsistencies in that testimony. The overwhelming weight of evidence, including all the machinations of appellant's criminal enterprise found in the basement office of his residence, demonstrates that appellant's convictions are not against the manifest weight of the evidence and are supported by sufficient evidence.

{¶ 57} Appellant's third assignment of error is overruled.

D. Ineffective Assistance of Counsel

{¶ 58} In his supplemental assignment of error, appellant argues that counsel was ineffective for not properly investigating witnesses, seeking to suppress the results of a search of appellant's computer based on a lack of jurisdiction, and seeking to suppress the contents of phone records obtained after a search of cell phones found in appellant's car after he was arrested.

{¶ 59} A claim of ineffective assistance of counsel requires a defendant to show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. State v. Smith , 89 Ohio St.3d 323, 327, 731 N.E.2d 645 (2000), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that there exists a reasonable probability that, were it not for counsel's errors that rendered performance constitutionally deficient, the results of the proceeding would have been different. State v. White , 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

{¶ 60} In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel's performance. Strickland at 689, 104 S.Ct. 2052. "A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." State v. Pawlak , 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, 2014 WL 2167887, ¶ 69.

{¶ 61} First, appellant claims that it was incumbent on trial counsel to interview the original codefendant that pointed Det. Duffy and Det. Witalis in appellant's direction. Appellant claims there is no police report or other information to corroborate statements made by these detectives during the suppression hearing that D.H. provided any evidence against appellant. In fact, appellant argues that the identification of D.H.'s contact as "Ike" and the fact that the phone number she provided did not belong to appellant constitutes exculpatory evidence that the state was required to turn over in discovery.

{¶ 62} This court does not have in the record before it what evidence was or was not exchanged in discovery. But we do know that police reports documenting the contents of D.H.'s statements to police were introduced at the suppression hearing. This court has already determined that the omissions appellant raises, when included in the overall information provided to the municipal court judge, still provide a valid basis to obtain cell phone records. Therefore, there is no likelihood of a different result had this information been more thoroughly explored in the suppression hearing. Further, corroboration did exist in D.H.'s statements to police in the form of police reports and the car she identified as appellant's.

{¶ 63} Within this argument, appellant goes on for several pages documenting alleged failings that bear no relation to anything that would be in the record before this court. Therefore, we cannot address them. The specific arguments include appellant asserting that trial counsel was ineffective for failing to investigate the circumstances surrounding a May 7, 2015 affidavit of Det. Witalis. The search warrant affidavits were addressed above and there is no indication that additional investigation would have led to a finding that the warrant lacked probable cause. Further, these issues with the search warrants were never raised or properly argued at the suppression hearing. This would constitute a better argument for ineffective assistance of counsel, but it is not advanced here.

{¶ 64} Appellant also argues that trial counsel was deficient when he failed to seek the suppression of evidence obtained from the search of appellant's computer that was recovered during the search of his home. Appellant claims the search warrant for a search of the computer was issued by a Summit County common pleas court judge who did not have jurisdiction in the case. Appellant directs this court's attention to a search warrant and affidavit that does not exist in our record. This court cannot determine the validity of any aspect of this argument.

{¶ 65} Finally, appellant argues counsel was ineffective for failing to seek the suppression of evidence recorded from the search of three cell phones recovered from appellant's car. Appellant argues that the search of these cell phones was conducted without a warrant and should have been suppressed. Again, however, there is nothing in this court's record that would substantiate that claim.

{¶ 66} Appellant's final assignment of error is overruled.

III. Conclusion

{¶ 67} The trial court properly denied appellant's motions to suppress on the issues that were raised and argued at the suppression hearing. Those that were not maintained or raised by appellant, pro se, do not constitute reversible error here. Appellant's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence.

{¶ 68} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and TIM McCORMACK, J., CONCUR

      The suppression motion electronically filed with the clerk's office references these motions as attached, but they are not attached to the official version contained in this court's record. An undocketed, unfiled version of this document with the attachments exists in the file received by this court, but is not properly a part of this court's record.

      This issue is currently pending before the United States Supreme Court. Carpenter v. United States , Supreme Court Case No. 16-402.

      The same procedure has been used in the investigation of the sharing of child pornography online where courts have affirmed the denial of motions to suppress. See, e.g., Lemasters , 12th Dist. Madison No. CA2012-12-028, 2013-Ohio-2969.