APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE Nos. 12-CRB-2526 12-CRB-4525
DAWN M. KING, Attorney at Law, for Appellant.
GERTRUDE WILMS, Chief Prosecuting Attorney, and THOMAS D. BOWN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BETH WHITMORE, Judge.
(¶1} Defendant-Appellant, Gilbert Dickson, appeals from the judgment of the Akron Municipal Court. This Court affirms.
(¶2} In early March 2012, Donald and Shannon Alexander noticed their dog, Papa Bear, was missing from their back yard. After several days of searching the neighborhood, they decided to make up flyers in hopes of finding the family pet. The flyer offered a reward, but did not specify how much. Shannon posted a flyer at a local convenient store on her way to work. Shortly thereafter she received a call from Pierre Cabell. Shannon asked Cabell to call Donald because she was on her way to work.
(¶3} Donald received a call from Cabell, and, according to Donald, offered him $100 for the return of Papa Bear. According to Cabell, Donald offered $500 for the dog. The two agreed to meet at the corner of Archwood and Grant to make the exchange. However, Cabell did not bring Papa Bear, and Donald did not have the money. Cabell showed Donald pictures of the dog on his cell phone, and Donald identified him as Papa Bear. Donald testified that he told Cabell that Shannon had the $100 reward and that he would get it to him as soon as she finished work later that night. Cabell then told Donald he needed to call his uncle. Cabell called Gilbert Dickson, known as Uncle Dave, and handed the phone to Donald. According to Donald, Dickson demanded $500 for the return of the dog. Donald hung up and returned home, ultimately calling the police.
(¶4} Officers Michael Stanar and David Rouse responded to the Alexanders' home to take the report of a stolen dog. Donald relayed to the officers his conversations with Cabell and Dickson and the attempted exchange. Officers Stanar and Rouse both called Cabell's cell phone in an attempt to negotiate the return of the Papa Bear.
(¶5} Sometime thereafter, Cabell called Shannon again and said he only wanted to deal with her. Shannon testified that Dickson demanded $500 or he would shoot Papa Bear. Ultimately, another meet was setup and the police became involved again. The police, using an unmarked minivan, had a female officer pose as Shannon. Additional officers hid in the back of the minivan and waited for Cabell to arrive. Cabell arrived, but again did not have Papa Bear with him. When Cabell approached the minivan and asked for the money, the officers arrested him.
(¶6} Cabell told the officers that Papa Bear was at a house up the street and led the officers to Dickson's house. Officer Rouse arrived first, knocked on the back door, and asked for "Uncle Dave." Dickson came to the door and became very upset, demanding money for the dog. Ultimately, the officers were unable to calm Dickson and arrested him.
(¶7} Dickson was charged with (1) obstructing official business, in violation of Akron City Code ("A.C.C.") 136.11(A), a misdemeanor of the second degree; (2) disorderly conduct, in violation of A.C.C. 132.01(A)/(E), a misdemeanor of the fourth degree; (3) coercion, in violation of A.C.C. 135.08, a misdemeanor of the second degree; and (4) receiving stolen property, in violation of A.C.C. 131.17, a misdemeanor of the first degree. A jury found Dickson not guilty of receiving stolen property, but convicted him of the remaining charges. The court sentenced Dickson to (1) ninety days incarceration for obstruction, suspended on the condition of completing one year of probation, (2) thirty days incarceration for disorderly conduct, suspended on the condition he obey all laws for one year, and (3) one year of probation for coercion.
(¶8} Dickson now appeals and raises three assignments of error for our review.
Assignment of Error Number One
MR. DICKSON WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
(¶9} In his first assignment of error, Dickson argues that his trial counsel was ineffective for "fail[ing] to move to dismiss both the obstructing official business and disorderly conduct charges." We disagree.
(¶10} To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. This Court need not address both Strickland prongs if the defendant has failed to prove either one. State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10. In a direct appeal, we review a claim of ineffective assistance of counsel de novo. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 53
(¶11} While Dickson has captioned his argument as a motion to dismiss, he does not challenge the validity of the indictment. Instead, the substance of his argument is that the police violated his constitutional right against an unreasonable search and seizure. See U.S. Constitution, Fourth and Fourteenth Amendments. Ohio Constitution, Article I, Section 14. The proper motion would be a motion to suppress based on the constitutional violation.
A "motion to suppress" is defined as a "[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self-incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of [the] U.S. Constitution."
State v. French, 72 Ohio St.3d 446, 449 (1995), quoting Black's Law Dictionary 1014 (6th Ed.1990). The exclusion of such evidence is "designed to deter police misconduct * * * ." U.S v. Leon, 468 U.S. 897, 916 (1984).
(¶12} However, "[a]n accused 'cannot invoke the [F]ourth [A]mendment to suppress evidence of his own unlawful conduct which was in response to police actions in violation of the amendment.'" State v. Johnson, 173
Ohio App.3d 669, 2007-Ohio-6146, ¶ 22 (9th Dist) (Carr, J, concurring), quoting Dayton v. Joy, 2d Dist. Montgomery Nos. CA11846 & CA11847, 1990 WL 98379, *2 (July 2, 1990). "In cases where the response has been a physical attack upon the officer making the illegal arrest or search, courts have held that the evidence of this new crime is admissible." State v. Barnes, 2d Dist. Montgomery No. 16434, 1997 WL 752590, *3 (Dec. 5, 1997). To apply the exclusionary rule in those cases "would in effect give the victims of illegal searches a license to assault and murder the officers involved - a result manifestly unacceptable." Barnes at *4, quoting LaFave, Search and Seizure, Section 11.4(j) (3d Ed.1996).
(¶13} Assuming without deciding that the officers violated Dickson's Fourth Amendment rights by entering his home, this violation would not serve to exclude evidence of his unlawful conduct against an officer. Officer Rouse testified that when he entered the home, Dickson was "irate." According to the testimony of Officers Rouse and Todd Stump, Dickson continued to shout and cuss at them while they attempted to calm him down and to deescalate the situation. Officer Rouse testified that Dickson then pushed him. It was at that point that Officer Rouse ...