author: MELODY J. STEWART, P.J.:

text:
    IN RE: D.C. Minor Child
    No. 105433
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Mark A. Stanton, Cuyahoga County Public Defender, John T. Martin, Sarah E. Gatti, Assistant Public Defenders, 310 West Lakeside Avenue, Suite 200, Cleveland, OH 44113, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, Kristen L. Sobieski, Jillian J. Snyder, Assistant County Prosecutors, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE.
    Michael B. Telep, 4438 Pearl Road, Cleveland, OH 44109, Guardian Ad Litem.
    BEFORE: Stewart, P.J., Boyle, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, P.J.:

{¶ 1} The juvenile court adjudicated appellant D.C. delinquent for committing acts which, if committed by an adult, would constitute the crimes of rape, kidnapping, and gross sexual imposition. The issues raised in this appeal concern the sufficiency and weight of the evidence, equal protection, the admission of irrelevant evidence, allied offenses, and ineffective assistance of counsel.

I. Sufficiency of Evidence

{¶ 2} The first assignment of error complains that there was insufficient evidence to prove that D.C. compelled the victim to engage in sexual conduct. The victim testified that D.C. grabbed the victim's hand and "drove" it "into my bottom." D.C. maintains that testimony about a hand being driven into a person's "bottom" did not establish penetration sufficient to prove rape.

{¶ 3} We apply the same standard of review for questions involving the sufficiency of the evidence in juvenile delinquency adjudications as we do for adult criminal defendants: we view the evidence most favorably to the state to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. In re Washington , 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998) ; In re J.S. , 8th Dist. Cuyahoga No. 102800, 2015-Ohio-4990, 2015 WL 7777976, ¶ 13.

{¶ 4} The state charged D.C. with committing an act that, if committed by an adult, would constitute the offense of rape under R.C. 2907.02(A)(2). That statute states that no person shall engage in sexual conduct with another when the other person is less than thirteen years of age. The phrase "sexual conduct" is defined as, among other things, "the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another." R.C. 2907.01(A). The sexual conduct need not be personally accomplished by the defendant-a defendant can be found guilty of rape even though he did not personally insert an object into a victim " 'if he caused the penetration to be committed by an innocent agent.' " State v. Ludwick , 11th Dist. Ashtabula No. 2002-A-0024, 2004-Ohio-1152, 2004 WL 454691, ¶ 58, quoting Lafave & Scott, Criminal Law , Section 6.6(a), at 570 (2d Ed.1986).

{¶ 5} The victim, who was eight years old at the time the offense occurred (he was 12 years old by the time of trial), gave the following testimony:

Q: Okay. And what did he make you do with your finger?
A: He drove my hand with his own hand.
Q: Where?
A: At my rear. He drove my hand to my rear, and then-
Court: He drove your hand into what, into your rear?
A: He held my hand and he held it up to my bottom, and then-
Court: Into your bottom?
A: Into my bottom.
Court: Okay.

{¶ 6} Child victims tend to have a limited understanding of human physiology. This fact and the tendency of parents to have their children use euphemisms for intimate parts of the body make it difficult to know exactly what children mean when they give testimony about certain sexual conduct. The inherent imprecision of euphemisms for intimate body parts becomes an issue for purposes of anal rape. "If the evidence shows that the defendant made contact only with the victim's buttocks, there is not sufficient evidence to prove the defendant guilty of the crime of anal rape." State v. Wells , 91 Ohio St.3d 32, 740 N.E.2d 1097 (2001).

{¶ 7} In cases finding sufficient proof of anal penetration, victims have given testimony showing actual penetration. See, e.g. , State v. Landers , 2d Dist. Greene No. 2015-CA-74, 2017-Ohio-1194, 2017 WL 1193799, ¶ 79 (victim testified that "penis went 'in' her 'butt' and went into her 'butthole,' but not all the way"); State v. Phillips , 6th Dist. Lucas No. L-09-1149, 2010-Ohio-2577, 2010 WL 2299126, ¶ 58 (victim testified she felt what she believed was fingers "in my bottom" and answered affirmatively when asked if "fingers in her bottom meant your butt where you go to poop out of?"); State v. Molen , 2d Dist. Montgomery No. 21941, 2008-Ohio-6237, 2008 WL 5064887, ¶ 31 (victim testified that defendant shoved something "up his butt" and that what had been put in his butt was "tickling [his] stomach"). That kind of evidence is not present in this case.

{¶ 8} The victim's testimony did not establish what he meant by his "bottom." Nor does the testimony indicate that penetration of the anal opening occurred. We acknowledge that the victim testified that D.C. drove his hand "into" his bottom, but without additional context, we cannot conclude that the word "bottom" meant anal opening as opposed to merely between the cheeks of the victim's buttocks.

{¶ 9} We are aware that it can be difficult to elicit from a child victim the kind of specificity needed to prove the penetration required to establish an anal rape. But as this testimony stands, the essential element of anal penetration was not proven, despite the state's contention otherwise. We have no choice but to conclude that the state's evidence was insufficient to establish penetration of the anal opening. The court erred by adjudicating D.C. delinquent of rape.

{¶ 10} We agree with D.C., however, that the evidence is sufficient to justify a finding on the lesser included offense of gross sexual imposition under R.C. 2907.05(A)(4). That section states that no person shall have sexual contact with another when the other person is less than thirteen years of age. "Sexual contact" is defined as "any touching of an erogenous zone of another, including without limitation the * * * buttock * * * for the purpose of sexually arousing or gratifying either person." The evidence showed that D.C. forced the victim to touch his own buttock for the purpose of sexual arousal. We therefore sustain this assignment of error and find D.C. delinquent of gross sexual imposition.

II. Manifest Weight of the Evidence

{¶ 11} The second and fourth assignments of error complain that the delinquency adjudication is against the manifest weight of the evidence. Given our holding that there was insufficient evidence to sustain the rape adjudication, D.C.'s argument with respect to rape is moot. See App.R. 12(A)(2)(c). The remainder of the manifest weight of the evidence assignment of error is that the victim was inherently unbelievable because he admitted to lying about various allegations regarding the charges in this case that he made to his parents and the police.

{¶ 12} We preface our discussion here by noting that D.C. is not challenging the weight of the evidence supporting any of the individual counts for which he was adjudicated delinquent. Instead, he offers a general argument that the victim was inherently unbelievable given that he freely admitted lying to the police and his father when divulging the abuse. For example, the victim told the police that D.C. made him put his penis in D.C.'s "butt," but testified at trial "[t]hat was a lie. I never did that." The victim also told the police that D.C.'s brother exposed his private parts to him, but at trial testified that "[t]hat never happened" and that "it wasn't the truth." The victim told the police that he did not wish to press charges against D.C., but claimed at trial that he lied about that at his mother's urging. The victim also admitted that he lied about telling his father's girlfriend that his friend's father had shown him "pornographic material involving young boys."

{¶ 13} Undoubtedly, the victim's admissions undermined his credibility. And it is difficult to accept the state's argument that the victim somehow rehabilitated what he described as his "lying habits" with the assertion that "every day I always try to tell the truth." Nevertheless, it fell to the trial judge to assess the victim's overall credibility. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (the weight of the evidence and credibility of witnesses are matters primarily for the finder of fact).

{¶ 14} The court plainly found aspects of the victim's testimony credible. There was a basis for this. The victim's father testified that the manner in which the victim broke down emotionally when divulging the nature of the acts perpetrated against him seemed to be cathartic. And there were points in the victim's testimony where he became emotional in a way that the court could have found belied any assertion that they were contrived. The trial judge was in the better position to assess the credibility of the witnesses, and for that reason we must defer to the trier of fact. State v. Fry , 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 146. That reasonable people might have viewed the victim's lies more critically is not a basis for finding that the trial judge lost his way by finding the victim credible enough to prove the allegations made against D.C.

III. Equal Protection

{¶ 15} The state charged D.C. with four counts of gross sexual imposition under R.C. 2907.05(A)(4). He maintains that, because he was only 11 years old at the time he engaged in the acts with the victim and was himself a child, he was thus a victim of sexual molestation under authority of In re D.B. , 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, where the syllabus states: " R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13 who engages in sexual conduct with another child under 13."

{¶ 16} The problem with applying D.B. to this case is that D.B. dealt with statutory rape under R.C. 2907.02(A)(1)(b) and this assigned error deals with gross sexual imposition under R.C. 2907.05(A)(4). The court in D.B. found application of the statutory rape statute "unconstitutionally vague" when both the alleged rapist and the victim are under the age of 13 because the want of a culpable mental element for the offense meant that "each child is both an offender and a victim[.]" Id. at ¶ 24. In other words, because the statute required no showing of force or aggression in order to charge the offense, the distinction between an offender and victim "breaks down" when both are under the age of 13 and the decision to prosecute one child over the other results in discriminatory enforcement. Id.

{¶ 17} We have held that D.B. does not apply to the offense of gross sexual imposition under R.C. 2907.05(A)(4) because that statute defines the offense in terms of "sexual contact," where the touching is for the purpose of sexually arousing or gratifying either person. In re K.A. , 8th Dist. Cuyahoga Nos. 98924 and 99144, 2013-Ohio-2997, 2013 WL 3582013, ¶ 10. We concluded that the offense of statutory rape, which contains no element of mental culpability, is different from the offense of gross sexual imposition, which does require a person to act with "purpose" to achieve sexual gratification. Id. at ¶ 11. We thus found no arbitrary and discriminatory enforcement involved when the state charged a child who was under the age of 13 with gross sexual imposition under R.C. 2907.05(A)(4). Id. at ¶ 12.

{¶ 18} D.C. acknowledges our decision in K.A. , but argues that it was wrongly decided and that we should overrule it. We decline to do so, and note that several other appellate districts in this state have followed K.A. or have reached similar conclusions. See, e.g., In re B.O. , 2017-Ohio-43, 80 N.E.3d 1085, ¶ 11 ; In re M.B. , 5th Dist. Ashland No. 15-COA-028, 2016-Ohio-4780, 2016 WL 3570621, ¶ 83 ; In re T.A. , 2d Dist. Champaign Nos. 2011-CA-28 and 2011-CA-35, 2012-Ohio-3174, 2012 WL 2866605, ¶ 26 (offense of gross sexual imposition under R.C. 2907.05(A)(4)"permits ready differentiation between victim and offender"); In re D.S. , 10th Dist. Franklin No. 15AP-487, 2016-Ohio-2810, 2016 WL 2348325, ¶ 15 ; In re K.C. , 2015-Ohio-1613, 32 N.E.3d 988, ¶ 13 (1st Dist.).

IV. Irrelevant Evidence

{¶ 19} During trial, the state asked both D.C. and his mother questions regarding D.C.'s brother's status as sexual offender registrant. D.C. argues that this evidence was irrelevant because there was no evidence that the brother was present when any of the offenses were committed. He maintains that the state used the evidence to improperly suggest that the brother's conduct adversely reflected D.C.'s character.

{¶ 20} The state maintains that D.C. opened the door to testimony about the brother being a sexual offender registrant because his mother, who testified for his defense, was the first person to mention it. This is not true. During redirect-examination of D.C. by the state, the assistant prosecuting attorney asked the victim why he lied to the police when claiming that D.C.'s brother exposed himself. The victim replied, "I just thought that [his mother] wanted me to say something about [the brother] because she told me that [the brother] had been a registered sex offender."

{¶ 21} Nevertheless, D.C. did not object to this testimony, so he forfeited all but plain error.

State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 44. We find no plain error sufficient to conclude that a manifest miscarriage of justice occurred. See State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 22} First, during recross-examination of the victim, defense counsel asked the victim whether he said the things he said to the police because his mother "told you a lot of things to tell the police, didn't she?" The victim responded, "[s]he only told me a few things about how [D.C.'s] family is above the law and how [the brother] is a registered sex offender * * *." So rather than attempt to minimize any mention of the brother's status as a sexual offender registrant, D.C. addressed it directly. Second, the testimony did not prejudice D.C. because nothing in the record indicates that the court viewed testimony about D.C.'s brother's status as a sexual offender registrant as somehow reflecting on D.C. We assume that in a bench trial a judge does not use evidence for any improper purpose. State v. Murray , 8th Dist. Cuyahoga No. 91268, 2009-Ohio-2580, 2009 WL 1564818, ¶ 25. D.C.'s argument is in essence a claim that the trial judge imputed the brother's status as a sexual offender registrant to D.C. Even without the presumption that the court did not do so, we find it difficult to accept an argument that the court imputed acts committed by a registered sex offender to his 11-year-old brother. Without a record showing that the court did impute the brother's conduct to D.C., we have no basis for finding that any miscarriage of justice occurred.

V. Allied Offenses

{¶ 23} The complaint alleged eight counts of gross sexual imposition: four counts were alleged violations of R.C. 2907.05(A)(4) ; four counts alleged violations of R.C. 2907.05(A)(1). D.C. argues that all the offenses involved sexual contact such that a single act of sexual contact satisfied the elements of both R.C. 2907.05(A)(1) and (A)(4). He thus maintains that the victim suffered the same injury and the counts should have merged for disposition.

{¶ 24} Some of the gross sexual imposition counts alleged the same type of conduct in what the victim called the "try not to laugh" game. This "game" involved D.C. and the victim rubbing their clothed genitals against the other in various positions of simulated sexual intercourse. The victim testified that they played the game "five or six times." In addition, the victim testified that on two occasions, D.C. made the victim touch his own penis. In total, these were as many as eight separate acts. The eight acts were committed separately, so they do not merge. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25 (offenses do not merge if "the offenses were committed separately[.]").

VI. Ineffective Assistance of Counsel

{¶ 25} D.C. raises two claims of ineffective assistance of counsel: that on cross-examination of the victim, trial counsel brought up evidence of rape that the state failed to offer and that trial counsel failed to object to hearsay.

{¶ 26} In direct examination of the victim, the state elicited no testimony to prove the rape count. In cross-examination of the victim, defense counsel played a recording of the victim's statement to the police and asked the victim whether he told the police that D.C. "made you stick your finger somewhere?" The victim replied that he did tell the police that. Defense counsel then asked for specifics on what happened, causing the victim to testify that D.C. drove his hand into his own bottom.

{¶ 27} The state maintains that this questioning was a matter of trial strategy by defense counsel. We can conceive of no trial strategy where defense counsel willingly elicits testimony tending to prove the state's case. But we need not address this argument further because we have vacated the adjudication for rape and modified it to an adjudication for gross sexual imposition. The claim, therefore, is moot.

{¶ 28} The remaining question is whether defense counsel was ineffective for failing to object to hearsay offered by the victim's father. This included statements that the victim had been more "open" about discussing with the father what happened to him, that the victim had "always said the same thing to me" about what happened, and that to the extent the victim was reticent about sharing what happened with this father, the victim opened up to his counselors and that his counselors told the father that what he said to them "always coincided."

{¶ 29} Even if we assume without deciding that defense counsel should have objected to the statements, we find no prejudice sufficient to warrant reversal. The court's adjudication found support in otherwise properly admitted evidence. There is no reasonable probability that, but for counsel's error, the result of the trial would have been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 30} Judgment affirmed in part, reversed in part, and modified.

ANITA LASTER MAYS, J., CONCURS;

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY

      The facts do not support a finding of guilt on the lesser included offense of attempted rape because there was no evidence that D.C. was attempting to force the victim to penetrate his own anus.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Clinton M. YOUNG, III, Defendant-Appellant
    No. 105444
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Allison S. Breneman, 1220 West 6th Street, Suite 303, Cleveland, OH 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, Kelly N. Mason, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Stewart, P.J., Boyle, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, P.J.:

{¶ 1} Defendant-appellant Clinton M. Young, III appeals the trial court's denial of his motion to suppress a firearm and several baggies of marijuana and pills police discovered after placing him under arrest. Upon review, we overrule his sole assigned error and affirm.

{¶ 2} The record developed at the suppression hearing reveals that one evening, a Parma Heights resident called 911 to report two males breaking glass in an intersection. The caller stated that the suspects were heading south on Edgehill Drive towards the intersection where Edgehill merges into Pearl Road, and that one of them was on a bicycle. Two police officers, in separate patrol cars, responded to the scene.

{¶ 3} The officers arrived to the vicinity within minutes of being dispatched. The first officer came upon Young, who was riding a bicycle on the sidewalk, heading south on Pearl Road near Edgehill Drive. He relayed this information to the second officer and continued to search for additional suspects. The second officer saw Young on his bicycle, immediately turned his cruiser around, and activated his lights. Young stopped. The other officer arrived shortly thereafter and they questioned Young about what he was doing and if he knew about the broken glass. They asked Young if they could see his identification and Young complied. The officers ran Young's information through dispatch and were alerted to the fact that Young had an active warrant. After arresting Young, police discovered the firearm and contraband. Young moved to suppress the items arguing that the police did not have a right to stop him. The trial court denied his motion.

{¶ 4} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Because the trial court is in the best position to resolve issues of fact, we defer to its findings, so long as they are supported by competent, credible evidence. Id. Accepting those facts as true, and without deference to the trial court, we independently determine whether those facts satisfy the applicable legal standard. Id.

{¶ 5} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures as per se unreasonable, subject to a few exceptions. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Any evidence obtained in violation of the Fourth Amendment may not then be used by the state against an accused at trial. Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). An investigatory stop is considered a "seizure" within the context of the Fourth Amendment when a person is detained, to the extent that a reasonable person would not feel free to leave. State v. Raine , 8th Dist. Cuyahoga No. 90681, 2008-Ohio-5993, 2008 WL 4949851, ¶ 18, citing United States v. Montgomery , 377 F.3d 582, 587-588 (6th Cir.2004).

{¶ 6} An investigative or " Terry " stop, where an officer briefly detains a person based on a reasonable suspicion that the person may be involved in criminal activity, is one exception to the general prohibition to warrantless searches and seizures. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such stops, when predicated on reasonable suspicion and conducted for investigative purposes, do not run afoul of the Constitution. Hiibel v. Sixth Judicial Dist. Court , 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Reasonable suspicion may be based on information that is less reliable than what is required to establish probable cause. Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, it requires "at least a minimal level of objective justification." Illinois v. Wardlow , 528 U.S. 119, 121, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

{¶ 7} A Terry stop is valid where the officer's reasonable suspicion is based on specific and articulable facts that the individual in question is, was, or soon will be engaged in criminal activity. State v. Arafat , 8th Dist. Cuyahoga No. 102662, 2016-Ohio-385, 2016 WL 529706, ¶ 20. During the stop, police "may ask the detainee a moderate number of questions to determine his identity * * *." Berkemer v. McCarty , 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The detainee, however, is under no obligation to respond. Id. And if the detainee's answers do not give the officer probable cause to arrest him, then the police must release him. Id. at 439-440, 104 S.Ct. 3138.

{¶ 8} Consensual encounters with the police are not subject to Fourth Amendment protections. State v. White , 8th Dist. Cuyahoga No. 92229, 2009-Ohio-5557, 2009 WL 3389156, ¶ 9. During a consensual encounter, police officers need not articulate any reasonable suspicion. Id. They may engage in conversation, ask questions, and check identification. Id. " 'A person is seized within the contemplation of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " State v. Miller , 148 Ohio App.3d 103, 2002-Ohio-2389, 772 N.E.2d 175, ¶ 18 (8th Dist.), quoting State v. Bussey , 8th Dist. Cuyahoga No. 75301, 1999 WL 1087494, 2 (Dec. 2, 1999). Where a person does not attempt to leave, a seizure may still be implicated by the presence of multiple officers, drawn weapons, physical touching, or language and tone indicating that compliance is required. See United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

{¶ 9} Young argues that the officers' request for his identification was unnecessary to their investigation of the broken glass and was only done as a means of checking for warrants. He argues that he could not, and did not, voluntarily provide his identification to the police because at the point the officers asked him for it, he was not free to leave and had no choice but to comply with their request.

{¶ 10} When the police encountered Young, one immediately turned around, activated his lights, and approached him. That officer did not remember exactly what he said to engage Young, but testified that his tone was not angry or loud, that he did not yell at Young, nor did he order him to stop his bicycle. The officer testified to saying something to the effect of "hey, can I talk to you?" The other officer arrived within a short time, at which point the officers asked Young where he was coming from, where he was going, what he was doing, and why he was in the area. They asked him if he knew anything about the broken-glass incident. Neither officer drew a weapon or physically touched Young. One officer described the manner in which he addressed Young as being a "normal conversational tone."

{¶ 11} With regard to whether a reasonable person would have felt free to leave at this point, both of the officers' testimony, as well as Young's were clear that Young was not free to leave. But see Whren v. United States , 517 U.S. 806, 810-813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (subjective motivations of police are irrelevant in probable cause analysis). Young argues, therefore, that the encounter was an investigatory stop and not a consensual encounter. Even assuming that to be true, the police had reasonable suspicion to believe that Young was involved in the glass-breaking incident. The 911 call indicated that one of the suspects was a male on a bicycle heading in the same direction as Young was heading. Admittedly this description is generic, but Young fit it. This, combined with testimony from one of the officers that there was nobody else outside at that time of night, compels us to find that the stop was lawful.

{¶ 12} " 'Ordinarily, an investigating officer is free to ask a person for identification without implicating the [Fourth] Amendment.' " Hiibel , 542 U.S. at syllabus, 124 S.Ct. 2451, 159 L.Ed.2d 292, quoting INS v. Delgado , 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Courts have recognized that police may ask a suspect for identification during an investigatory stop to check for warrants. See, e.g. , State v. Millerton , 2015-Ohio-34, 26 N.E.3d 317, ¶ 23 (2d Dist.) (citing cases); State v. Smith , 10th Dist. Franklin No. 04AP-859, 2005-Ohio-2560, 2005 WL 1220742, ¶ 38 (request for identification immediately related to investigatory stop).

{¶ 13} The officers testified that they asked Young for his identification. They did not demand it or order that he show it. Young complied with the request. He could have refused. And if his refusal and answers to the officers' questions did not give them probable cause to arrest him, he would have been free to go. See McCarty 468 U.S. at 440, 104 S.Ct. 3138, 82 L.Ed.2d 317.

{¶ 14} Alternatively, Young argues that we should consider the officers' request for identification as a "frisk" because he did not believe he could decline the request. He cites to no authority for us to conclude as much. Because Young was free to refuse the request, we likewise decline to view the officers' request as a "frisk."

{¶ 15} Moreover, even assuming that the officers' only reason for asking to see Young's identification was to check for warrants, our analysis does not change.

See United States v. Young , 707 F.3d 598, 605-606 (6th Cir.2012) (reasonable to run unrelated warrant check during stop; it may help clear person's name or provide officer's important information about the person). We therefore overrule Young's assignment of error.

{¶ 16} Judgment affirmed.

MARY J. BOYLE, J., and ANITA LASTER MAYS, J., CONCUR


author: LUPER SCHUSTER, J.

text:
    ORTHOPEDIC & NEUROLOGICAL CONSULTANTS, INC., et al., Plaintiffs-Appellants, v. The CINCINNATI INSURANCE COMPANY, Defendant-Appellee.
    No. 17AP-407
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on January 18, 2018
    On brief: Ice Miller LLP, James E. Davidson, Columbus, Nicholas B. Reuhs, and Derek R. Molter, for appellants. Argued: Nicholas B. Reuhs.
    On brief: Peters & Nye LLP, and Nancy K. Tordai ; Freund, Freeze & Arnold, and Sandra R. McIntosh, Columbus, for appellee. Argued: Nancy K. Tordai.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Plaintiffs-appellants, Carl Berasi, D.O., Mark E. Gittins, D.O., Gregory A. Mavian, D.O., Daryl R. Sybert, D.O., Michael B. Cannone, D.O., Larry T. Todd, D.O., Desmond J. Stutzman, D.O., Jeffrey E. Gittins, D.O., Martin Taylor, D.O., Donald Rohl, D.O., Ying Chen, D.O., Robert J. Nowinski, D.O., and Jeremy Mathis, D.O. ("individual appellants"), and Orthopedic & Neurological Consultants, Inc. ("ONC"), appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, The Cincinnati Insurance Company ("Cincinnati Insurance"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This matter arises from an insurance coverage dispute. In June 2016, Michael J. Simek, M.D., Scott M. Otis, M.D., and Emily J. Yu, M.D. ("Simek plaintiffs"), filed an amended complaint ("Simek complaint") in the Franklin County Court of Common Pleas against appellants ("Simek case"). In the Simek complaint, the Simek plaintiffs asserted multiple claims against appellants relating to appellants' alleged fiduciary and contractual obligations to the Simek plaintiffs as partners in a real estate partnership and as shareholders in the ONC medical practice. The Simek complaint alleges that, at differing times between 1998 and 2009, the Simek plaintiffs became employee-shareholders in ONC and partners in the real estate partnership. The Simek complaint further alleges that the individual appellants wrongfully took action to maximize their own personal income, to the detriment of the Simek plaintiffs, in breach of their fiduciary duties to the Simek plaintiffs. As a result, the Simek plaintiffs decided not to continue as ONC shareholders and partners in the real estate partnership. Consequently, on May 1, 2014, the Simek plaintiffs each signed three documents: a purchase of partnership interest agreement, under which the Simek plaintiffs would sell their partnership interests to the individual appellants; a stock purchase agreement to effectuate the buyout of the Simek plaintiffs' shares in ONC; and a new employment agreement with ONC. The Simek complaint plainly alleges breaches of the stock purchase agreement and the partnership interest purchase agreement. The parties dispute whether the Simek plaintiffs have alleged a claim for breach of an employment agreement.

{¶ 3} A few days after the filing of the Simek complaint, appellants initiated an action alleging that Cincinnati Insurance had breached its duties to defend and indemnify them in the Simek case. Effective July 18, 2015, Cincinnati Insurance insured appellants through a "Health Care Institutions Blue Chip Policy" ("policy"). The policy includes separate coverage provisions, only one of which is relevant for the purpose of this appeal-Part II of the policy, "Employment Practices Liability Coverage" ("EPL Coverage"). Generally, the policy's EPL Coverage part provides coverage for losses incurred by appellants resulting from employment related claims. In their complaint, appellants allege that Cincinnati Insurance wrongfully denied their demand for a defense and indemnification in the Simek case.

{¶ 4} In December 2016, appellants moved for partial summary judgment on the asserted basis that Cincinnati Insurance has a duty to defend them in the Simek case. Cincinnati Insurance also moved for summary judgment, arguing that it has no duty or obligation to defend or indemnify appellants in the Simek case. In May 2017, the trial court found no duty to defend and therefore partially granted Cincinnati Insurance's motion for summary judgment. Conversely, the trial court denied appellants' motion for partial summary judgment. Because it found no duty to defend, the trial court determined that resolution of the indemnification issue was premature and therefore denied Cincinnati Insurance's motion as to that issue. Based on these rulings, the trial court entered final judgment in favor of Cincinnati Insurance.

{¶ 5} Appellants timely appeal.

II. Assignments of Error

{¶ 6} Appellants assign the following errors for our review:

1. The trial court erred when it granted the defendant's motion for summary judgment in part and entered judgment in favor of the defendant.
2. The trial court erred when it denied the plaintiff's motion for partial summary judgment.

III. Discussion

{¶ 7} In their first assignment of error, appellants assert the trial court erred in granting in part Cincinnati Insurance's motion for summary judgment and entering judgment in favor of Cincinnati Insurance, and their second assignment of error alleges the trial court erred in denying their motion for partial summary judgment. The primary issue presented by both of these assignments of error is whether the trial court erred in finding that Cincinnati Insurance has no duty to defend appellants in the Simek case. Thus, we address the assignments of error together.

{¶ 8} The duty to defend is broader than and distinct from the duty to indemnify. Ward v. United Foundries, Inc. , 129 Ohio St.3d 292, 2011-Ohio-3176, 951 N.E.2d 770, ¶ 19 ; Ohio Govt. Risk Mgt. Plan v. Harrison , 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 19. The scope of the allegations in the complaint against the insured determines whether an insurer has a duty to defend the insured. Ward at ¶ 19. An insurer's duty to defend is absolute when the complaint contains allegations stating a claim that is potentially or arguably within the scope of coverage of the insurance policy. Cardiothoracic & Vascular Surgical Specialists, Inc. v. Travelers Indemn. Co. , 10th Dist. No. 05AP-1355, 2006-Ohio-6947, 2006 WL 3805675, ¶ 20, citing Sanderson v. Ohio Edison Co. , 69 Ohio St.3d 582, 635 N.E.2d 19 (1994), paragraph one of the syllabus; Ward at ¶ 19, citing Ohio Govt. Risk Mgt. Plan at ¶ 19. The actual substance of the complaint, not how it is categorized, determines the nature of the claims against the insured. Bosak v. H & R Mason Contrs., Inc. , 8th Dist. No. 86237, 2005-Ohio-6732, 2005 WL 3475817, ¶ 13. If an insurer must defend one claim within a complaint, it must defend the insured on all other claims within the complaint "even if they bear no relation to the policy coverage." Cardiothoracic & Vascular Surgical Specialists, Inc. at ¶ 20.

{¶ 9} However, there is no duty to defend "if there is no set of facts alleged in the complaint which, if proven true, would invoke coverage." Cincinnati Indemn. Co. v. Martin , 85 Ohio St.3d 604, 605, 710 N.E.2d 677 (1999) ; see Cincinnati Ins. Co. v. Robert W. Setterlin & Sons , 10th Dist. No. 07AP-47, 2007-Ohio-5094, 2007 WL 2800383, ¶ 11 ("[A]n insurer need not defend any action or any claims within the complaint when all the claims are clearly and indisputably outside of the contracted policy coverage."). Further, "courts will not imply that a cause of action has been pled in a complaint merely because the allegations in the complaint indicate that another cause of action might have happened." Erie Ins. Exchange v. Lansberry , 7th Dist. No. 07 CO 6, 2008-Ohio-1553, 2008 WL 852453, ¶ 42.

{¶ 10} Here, the policy expressly provides that Cincinnati Insurance has the duty to defend appellants against any "claim." (Ex. B, Health Care Institutions Blue Chip Policy at 5, attached to June 10, 2016 Compl.) The policy defines a "claim" in pertinent part to mean a civil proceeding commenced by the filing of a complaint, brought by a past or present employee, alleging the "breach of any oral, written or implied employment contract or quasi-employment contract," an "[e]mployment related misrepresentation," and "wrongful retaliation." (Ex. B at 6-7.) According to appellants, the Simek complaint contains factual allegations that fit within that coverage.

{¶ 11} Specifically, appellants argue that the Simek complaint invokes Cincinnati Insurance's duty to defend because the complaint alleges that appellants: (1) breached Dr. Simek's May 1, 2014 employment agreement by improperly exercising a liquidated damages provision of that employment agreement; (2) breached all three of the May 1, 2014 employment agreements by improperly backing out of those agreements; (3) failed to abide by representations regarding the May 1, 2014 employment agreements or other employment agreements and therefore made employment-related misrepresentations; and (4) retaliated against the Simek plaintiffs because they retained counsel to negotiate the May 1, 2014 employment agreements. Appellants' argument concerning the liquidated damages provision of Dr. Simek's May 1, 2014 employment agreement was the only one of these arguments that they made in the trial court. Because an argument not raised in the trial court is waived for the purpose of appeal, we will not consider the merits of the remaining arguments.

Harding Pointe, Inc. v. Ohio Dept. of Job & Family Servs. , 2013-Ohio-4885, 1 N.E.3d 804, ¶ 43.

{¶ 12} In support of their argument that the Simek complaint invokes Cincinnati Insurance's duty to defend, appellants cite the following allegations of the Simek complaint:

52. Plaintiff Michael Simek signed the Stock Purchase Agreement on May 1, 2014, with the Individual Defendants of the Medical Corporation in which the Individual Defendants and the Medical Corporation agreed to repurchase his 2.715 shares in the Medical Corporation for a total value of $100,000.
53. The Individual Defendants and/or the Medical Corporation made regular installment payments on the amount due until November 1, 2014, after which date they have failed to make additional installments due and have refused to make any further payments on this obligation.
54. Individual Defendants and the Medical Corporation claimed the reason for non-payment was the Plaintiff's breach of a non-compete provision in his May 1, 2014 Employment Agreement. The Employment Agreement which contained the non-compete provision, however, had a separate liquidated damages provision to redress any breach of that non-compete provision.
55. In addition to the withholding of installment payments due for the Medical Corporation stock purchase, Individual Defendants and the Medical Corporation have also exercised the liquidated damages provision set forth in the Employment Agreement by withholding receivables otherwise due to Plaintiff Michael Simek under that Employment Agreement since his last day of employment.
56. Individual Defendants and the Medical Corporation have improperly claimed two forms of damages for any breach of the non-compete provision in the Employment Agreement, despite the fact that the liquidated damages provision in the Employment Agreement was put in place by the parties, in the Employment Agreement drafted by the Medical Corporation, to address just such a breach.

(Ex. A, Simek Compl. at 15-16, attached to June 10, 2016 Compl.)

{¶ 13} Based on our reading of these factual allegations, as well as the remainder of the Simek complaint, we find it clearly evident that the Simek plaintiffs do not seek liability against appellants based on any alleged violation of the liquidated damages provision of Dr. Simek's May 1, 2014 employment agreement. The Simek plaintiffs set forth the factual allegations of paragraphs 52-56 under their complaint's first separately captioned claim (count one), which was for breach of the stock purchase agreement. Although the manner in which a plaintiff categorizes factual allegations does not determine the actual nature of the claims brought, the substance of the singular theory of recovery set forth in the Simek complaint's first count is consistent with the label the Simek plaintiffs gave that claim. The gravamen of count one of the Simek complaint is that appellants breached their stock purchase agreement with Dr. Simek, and that Dr. Simek has suffered damages as a proximate result of that breach. The Simek complaint's reference to Dr. Simek's May 1, 2014 employment agreement merely reflects the Simek plaintiffs' attempt to discredit appellants' asserted rationale for not paying Dr. Simek for the repurchase of his interest in the medical corporation as required under the stock purchase agreement. Thus, contrary to appellants' argument, the Simek plaintiffs have not brought any claim premised on any alleged violation of that employment agreement.

{¶ 14} For these reasons, we agree with the trial court's conclusion that Cincinnati Insurance has no duty to defend appellants in the Simek case. Therefore, the trial court properly granted in part Cincinnati Insurance's motion for summary judgment, denied appellants' motion for partial summary judgment, and entered judgment in favor of Cincinnati Insurance. Accordingly, appellants' first and second assignments of error are overruled.

IV. Disposition

{¶ 15} Having overruled appellants' first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN, P.J., and TYACK, J., concur.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Dewan ANDERSON, Defendant-Appellant
    No. 27482
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on January 19, 2018
    MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 N. Dixie Drive, Dayton, Ohio 45414, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Dewan Anderson appeals from his conviction and sentence following a no-contest plea to one count of cocaine possession, a fifth-degree felony.

{¶ 2} In his sole assignment of error, Anderson challenges the trial court's denial of a suppression motion he filed prior to entering his plea. Specifically, he contends the trial court erred in finding that the police officer had a reasonable, articulable suspicion of criminal activity to justify stopping and detaining him.

{¶ 3} The only witness at the suppression hearing was Dayton police officer Jordan Wortham. He testified that he was on patrol on the afternoon of October 5, 2016 when he responded to a report of a silent burglary alarm being activated at a cell-phone business located at 2001 North Main Street. He promptly responded to that address, parked his cruiser across the street facing the business, and monitored the scene. (Tr. at 7, 9). Within a matter of seconds, Wortham saw Anderson walk around the side of the business toward him. Upon seeing the marked cruiser, Anderson abruptly stopped, turned around, and walked the other direction. (Id. at 10). Wortham found Anderson's actions suspicious and decided to make an investigatory stop. He explained his reasoning as follows:

As I look at the business I see the defendant, Mr. Anderson, walk to the left side which would be the south side of the business. I see him appear from directly behind it and he was walking casually until he looked up at my cruiser, and as he looked up at my cruiser he abruptly stopped. * * * [T]hen he quickly turned away facing west away and proceeded to briskly walk so he hurried his walk. He wasn't casually walking like he was when he was directly behind the business until he saw me.
So that heightened my suspiciousness of the fact that he abruptly stopped and looked at me, turned away really fast. The business alarm was activated. He's in close proximity of the business. He's a few feet away from the business. I have to stop him to investigate further into his possible involvement of the burglar alarm being activated at the business.

(Id. at 10).

{¶ 4} Wortham proceeded to testify that he did not recall seeing anyone else in the area. (Id. ). After observing Anderson make an abrupt about-face and walk out of sight, Wortham caught up to him in the cruiser. (Id. at 12). He approached on foot and ordered Anderson to stop. (Id. at 12). As he did so, he noticed a "distinct bulge" protruding from Anderson's waist band. (Id. ). Based on his experience and the appearance of the bulge, Wortham suspected that it might be a handgun, particularly in light of the fact that he was investigating an activated alarm and a possible burglary in a noted high-crime area. (Id. at 12-13). As a result, he decided to conduct a weapons frisk. (Id. at 13). Upon doing so, he recognized the "distinct" feel of packaged marijuana and pill capsules where he saw the bulge. (Id. ). As he conducted the pat down, he also detected a strong odor of marijuana coming from Anderson. (Id. at 14).

{¶ 5} On cross examination, Wortham reviewed a cruiser-cam video of the incident. Wortham acknowledged that the video actually showed three or four people other than Anderson entering or leaving the store or walking past. (Id. at 17-18). Wortham explained that he did not approach any of these people because they were "not suspicious." (Id. at 19). Unlike Anderson, who abruptly stopped, turned around, and disappeared from sight upon seeing the police cruiser, these other people appeared to be just walking. (Id. at 18-20). Wortham also admitted that Anderson was not free to go upon being approached by the officer. (Id. at 21). Wortham testified that he patted Anderson's outer clothing and immediately knew that what he felt in Anderson's waist band was drugs. (Id. at 24, 33). In fact, Anderson possessed multiple plastic baggies containing marijuana and pill capsules. (Id. at 26).

{¶ 6} In the following exchange with defense counsel, Wortham reiterated his suspicion when he observed Anderson:

Q. Okay. You had indicated that you thought he was suspicious. What made you think this guy was suspicious? Because he walks up and turns around and walks back and-
A. No, the fact that he's walking behind the business. He sees my cop car and abruptly stops, looks at me, quickly blades his body away, turns his face away as if he's trying to get away from me, that raises my suspicion of this whole incident and that's why I wanted to make contact to investigate further into this matter to see if he's possibly involved [in] breaking into the rear of this business.
Q. Okay. And that's the suspiciousness of his behavior; is that what you're saying? That's what made-
A. The fact that he was in close proximity of the business, the alarm was activated, he's walking behind the business, he looks up, sees my cop car, abruptly stops, turns, blades his body away from my cop car, tries to walk as if he's walking trying to get away from me.
In my experience, if you're not breaking the law you're not going to look at a cop or a police officer, stop abruptly quick and try to turn away from an officer unless you're doing something you shouldn't be doing, and that raised my suspicion that he saw me and wanted to just abruptly stop and turn away and briskly walk away from it.
* * *
Q. Okay. You had indicated "bladey." Where did he blade? At what point?
A. I used the word "blade" as if you turn your shoulders at an angle as if I'm looking at you right now, if I wanted to demonstrate to the Court, blade (turning), somewhat of a turning. I'm looking at the Court and I turn my body. I use the term "blade," blade your body.
Q. So if you're walking and you decide to turn the other way, that's blading to you?
A. In the totality of the circumstances of the activated alarm, him looking directly at me and then turning really quickly, I use the term "blade," turn really quick as if he's trying to conceal his face, turn away from me so he's not detected.

(Id. at 27-28).

{¶ 7} Based on the evidence presented, the trial court found that Wortham was justified in stopping and detaining Anderson to investigate the alarm. The trial court also found that Wortham's frisk of Anderson was justified by the officer's reasonable concern that the "bulge" in Anderson's waist band might be a weapon. As set forth above, that frisk resulted in Wortham feeling what he immediately recognized as drugs. Therefore, the trial court found no basis for suppression and overruled Anderson's motion. (Doc. # 18).

{¶ 8} Anderson subsequently pled no contest to one count of cocaine possession, a fifth-degree felony. The trial court accepted the plea, found him guilty, and imposed community-control sanctions.

{¶ 9} In his assignment of error, Anderson challenges only whether Wortham had reasonable, articulable suspicion of criminal activity to justify stopping and detaining him. His entire argument is as follows:

It appears both from testimony at the motion to suppress hearing and in the video, introduced as an exhibit at trial, that the trial court erroneously found that Officer Wortham had a reasonable and articulable suspicion that Anderson was involved in criminal activity. A view of the tape does not show Anderson to be "blading" or otherwise abruptly changing his path. Moreover, the testimony of the officer on cross-examination admitted that he had seen more people than just Anderson at the scene, and that he saw Anderson only very briefly before stopping him at which time he had [not] yet seen a "bulge" in Anderson's pants. In the instant case, Officer Wortham had an "articulable" suspicion that Anderson might be involved in criminal activity, but the suspicion was not "reasonable," in that he had not observed enough conduct by Anderson to reasonably believe he had been involved in criminal activity and to justify stopping and detaining him.
When the video is viewed and the testimony supra considered, it is clear that the trial court's ruling is against the manifest weight of the evidence.

(Appellant's brief at 7).

{¶ 10} Upon review, we find Anderson's argument to be unpersuasive. The sole issue he raises is whether Wortham had reasonable, articulable suspicion for an investigatory detention under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Reasonable suspicion entails some minimal level of objective justification for making a stop-that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." State v. Jones , 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27, 88 S.Ct. 1868.

{¶ 11} When assessing the existence of reasonable suspicion, we evaluate the "totality of the circumstances."

State v. Shepherd , 122 Ohio App.3d 358, 365, 701 N.E.2d 778 (2d Dist.1997), citing State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988). These circumstances must be considered " 'through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.' " State v. White , 2d Dist. Montgomery No. 18731, 2002 WL 63294, *2 (Jan 18, 2002), quoting State v. Andrews , 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

{¶ 12} With the foregoing standards in mind, we see no error in the trial court's ruling. Wortham had more than an inchoate and unparticularized suspicion or hunch when he detained Anderson. He was responding to a report of a burglary alarm being activated at a business. Upon his arrival, his cruiser-cam video recorded three or four people in the vicinity. It also recorded Anderson as he walked around the side of the business and, upon seeing the marked cruiser, immediately stopped, turned around, and walked the other direction and out of sight. Having reviewed the video, we agree with Wortham's assessment that Anderson's behavior was suspicious whereas the behavior of the other people at the scene was not. Based on the burglary alarm, Anderson's proximity to the business, and Anderson's suspicious behavior, which we find to be supported by the testimony and the video, we believe Wortham possessed reasonable, articulable suspicion to justify briefly detaining him to investigate further.

{¶ 13} In his reply brief, Anderson raises two additional arguments, asserting that no basis for a weapons frisk existed and that Wortham's actions exceeded a weapons frisk. These arguments also lack merit. An officer may conduct a weapons frisk during a Terry stop if he has reasonable grounds to believe that the suspect may be armed and pose a danger to the officer. State v. Grefer , 2d Dist. Montgomery No. 25501, 2014-Ohio-51, 2014 WL 98626, ¶ 24-26. Here Wortham was investigating a burglary alarm at a business in a high-crime area. Wortham observed Anderson acting suspiciously in close proximity to the business. As he approached Anderson, Wortham noticed a "distinct bulge" protruding from Anderson's waist band. Based on his experience and the appearance of the bulge, Wortham suspected that it might be a handgun. Under these circumstances, we believe Wortham had reasonable grounds to believe Anderson might be armed and dangerous. Therefore, a weapons frisk was permissible.

{¶ 14} Finally, we conclude that the pat-down at issue did not exceed the scope of a permissible weapons frisk. "Under the plain-feel doctrine, an officer conducting a pat down for weapons may lawfully seize an object if he has probable cause to believe that the item is contraband." State v. Wheeler , 2d Dist. Montgomery No. 27282, 2017-Ohio-4013, 2017 WL 2303651, ¶ 31. Upon patting Anderson's outer clothing, Wortham immediately recognized the distinct feel of packaged marijuana and pill capsules. As a result, he was entitled to seize the drugs.

{¶ 15} Based on the foregoing reasoning, we overrule Anderson's assignment of error and affirm the judgment of the Montgomery County Common Pleas Court.

DONOVAN, J. and TUCKER, J., concur.