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State v. Corpening

December 5, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ANDRE CORPENING, DEFENDANT-APPELLANT.



Criminal Appeal from the Court of Common Pleas, Case No. 2006 CR 00148. Judgment: Affirmed.

The opinion of the court was delivered by: Colleen Mary O'toole, J.

OPINION

{¶1} Appellant, Andre Corpening, appeals from the May 4, 2007 judgment entry of the Ashtabula County Court of Common Pleas, in which he was sentenced for possession of cocaine.

{¶2} On June 2, 2006, appellant was indicted by the Ashtabula County Grand Jury on one count of possession of cocaine, a felony of the third degree, in violation of R.C. 2925.11. On June 12, 2006, appellant filed a waiver of his right to be present at the arraignment and the trial court entered a not guilty plea on his behalf.

{¶3} On June 23, 2006, appellant filed a motion to suppress statements and evidence.*fn1 Appellee, the state of Ohio, filed a response in opposition on July 21, 2006.

{¶4} A suppression hearing was held on September 1, 2006.

{¶5} At that hearing, Thomas P. Perry ("Patrolman Perry"), with the Ashtabula Police Department, testified for appellee that on March 24, 2006, at around 9:30 p.m., he was on duty in his marked cruiser accompanied by his canine. He observed appellant's vehicle make a left hand turn without a turn signal directly in front of him into a residential driveway, 1116 West 41st Street. Patrolman Perry was forced to apply his brakes abruptly in order to avoid a collision. He intended to cite appellant for failure to yield and failure to use a turn signal.

{¶6} After pulling into the driveway, appellant immediately opened the driver's side door and exited the vehicle. Patrolman Perry identified himself and asked appellant to stop. He complied. For purposes of his safety, Patrolman Perry performed a pat down search of appellant. Patrolman Perry stated that the reason he patted appellant down was because he was patrolling a high crime area known for drug trafficking and he recognized appellant from prior drug related cases. Patrolman Perry then summoned his patrol canine to sniff the exterior of appellant's car. When the canine came around to the driver's side front door, he stopped, his respiration increased, and he started to frantically scratch the door. At that time, Patrolman Perry opened the car door and located two bags of suspected crack cocaine in the door handle. Several other officers arrived at the scene, and a field test confirmed that the substance was crack cocaine. Appellant was then placed under arrest for possession of cocaine.

{¶7} On cross-examination, Patrolman Perry testified that he did not find any weapons or drugs on appellant's person during the pat down. He also stated that he did not give appellant a traffic citation after the search.

{¶8} James Alan Dwer ("Dwer") testified for appellant that he and appellant are cousins. Dwer, the renter of 1116 West 41st Street, stated that appellant had permission to use his driveway.

{¶9} Antonio Parker ("Parker") testified for appellant that he lived at 1122 West 41st Street, and was sitting outside on his porch on the night at issue. Parker saw appellant, his cousin, turn his vehicle from West Avenue, stop for kids to cross the street, and turn into Dwer's driveway. Parker never noticed any near collision between appellant's car and another vehicle. He said that appellant was coming off the porch on 1116 West 41st Street when Patrolman Perry pulled into the driveway.

{¶10} On cross-examination, Parker testified that he did not know if appellant used his turn signal or not when he pulled into Dwer's driveway.

{¶11} According to appellant, he waited for a few kids to cross the street, pulled into Dwer's driveway, then exited his vehicle. He testified that he did not almost cause a collision, and did not remember if he had used his turn signal. Appellant stated that as he got to the steps in front of Dwer's house, Patrolman Perry asked him to come off the steps, then pulled in the driveway. Appellant indicated that Patrolman Perry patted him down and searched his vehicle, without his consent.

{ΒΆ12} On cross-examination, appellant stated that it was possible that he made the turn ...


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