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State v. Parsons

Court of Appeals of Ohio, Third District, Henry

April 10, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CULLEN A. PARSONS, DEFENDANT-APPELLANT.

         Appeal from Henry County Common Pleas Court Trial Court No. 15-CR-0082

          Karin L. Coble and Tim A. Dugan for Appellant.

          Hawken Flanagan for Appellee

          OPINION

          PRESTON, P.J.

         {¶1} Defendant-appellant, Cullen A. Parsons ("Parsons"), appeals the April 25, 2016 judgment entry of sentence of the Henry County Court of Common Pleas. For the reasons that follow, we affirm in part, and reverse in part.

         {¶2} This case stems from a September 2, 2015 incident in which Kyle Kern ("Kern") was running along a road in Henry County when someone driving a silver Honda Civic fired multiple shots in his direction. Because of prior run-ins with Parsons, Kern recognized the silver Honda Civic as belonging to Parsons. On October 1, 2015, the Henry County Grand Jury indicted Parsons on: Count One of attempted murder in violation of R.C. 2903.02(A), a first-degree felony, with a firearm specification under R.C. 2941.146 and a forfeiture specification under R.C. 2941.1417; Count Two of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with a firearm specification under R.C. 2941.146 and a forfeiture specification under R.C. 2941.1417; and Count Three of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(A), a fourth-degree felony, with a forfeiture specification under R.C. 2941.1417. (Doc. No. 2). Parsons pled not guilty to the counts of the indictment. (Oct. 2, 2015 Tr. at 2). (See also Doc. No. 8).

         {¶3} On November 16, 2015, Parsons filed a "motion to suppress evidence obtained during unlawful search." (Doc. No. 12). Specifically, Parsons requested "that the firearm and vehicle seized by the State be suppressed." (Id.). The trial court held a hearing on Parsons's motion to suppress on December 9, 2015. (Dec. 9, 2015 Tr. at 2). On December 17, 2015, Parsons moved to supplement the record of the suppression hearing with "the alleged victim's September 2, 2015 recorded statement made to" a law enforcement officer. (Doc. No. 16). The State filed a response indicating that it did not object to Parsons's request to supplement the record. (Doc. No. 17). On December 24, 2015, the trial court granted Parsons's motion to supplement the record of the suppression hearing. (Doc. No. 19). On January 26, 2016, Parsons filed a "supplemental memorandum in support of motion to suppress evidence." (Doc. No. 20). On January 21, 2016, the trial court filed a judgment entry in which it granted Parsons's motion to suppress "as to any evidence seized from the silver Honda Civic" but denied the motion "as it relates to the handgun seized." (Doc. No. 23).

         {¶4} The case proceeded to a bench trial on March 7 and 8, 2016. (March 7-8, 2016 Tr. at 6). The trial court found Parsons guilty of all of the counts and specifications of the indictment. (Mar. 9, 2016 Tr. at 3-4). (See also Doc. No. 35).

         {¶5} On April 21, 2016, Parsons filed a "motion for merge of convictions in regards to sentencing of defendant, " requesting that the trial court merge Counts One and Two for purposes of sentencing. (Doc. No. 45). The trial court granted Parsons's motion. (See Apr. 21, 2016 Tr. at 4); (Doc. No. 46). The trial court held its sentencing hearing that same day and sentenced Parsons to: seven years in prison as to Count One and five years in prison, to be served consecutively to the seven-year prison term as to Count One, as to the specification under R.C. 2941.146; five years in prison as to Count Two and five years in prison, to be served consecutively to the five-year prison term as to Count Two, as to the specification under R.C. 2941.146; and 12 months in prison as to Count Three. (Apr. 21, 2106 Tr. at 6-7); (Doc. No. 45). The trial court ordered that the sentences imposed as to Counts One, Two, and Three and their respective specifications be served concurrently for a cumulative term of 12 years in prison. (Id. at 7); (Id.). The trial court also ordered forfeiture of the handgun. (Id.); (Id.).

         {¶6} Parsons filed a notice of appeal on May 2, 2016. (Doc. No. 47). He raises six assignments of error for our review. For ease of our discussion, we will address his first assignment of error, followed by his fourth and fifth assignments of error together, then his second, third, and sixth assignments of error.

         Assignment of Error No. I

         The search of the vehicle violated the Fourth Amendment, and all fruits of that search should have been suppressed.

         {¶7} In his first assignment of error, Parsons argues that the trial court erred by failing to suppress the handgun as evidence. Parsons argues that the search resulting in discovery of the handgun was conducted without a warrant and not pursuant to any exception to the warrant requirement of the Fourth Amendment. In other words, Parsons argues that the search resulting in discovery of the handgun and the seizure of the handgun were conducted in violation of his Fourth Amendment rights. For that reason, he argues, the trial court erred by not suppressing the handgun as evidence. For the reasons below, we conclude that the law enforcement officers' entry on the property and search of the automobile-which led to discovery of the handgun outside the vehicle-were lawfully conducted under the automobile and plain view exception to the Fourth Amendment.

         {¶8} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶9} Parsons argues that the search resulting in seizure of the handgun was conducted in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution generally prohibits warrantless searches and seizures, and any evidence obtained during an unlawful search or seizure will be excluded from being used against the defendant. State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12. The Fourth Amendment does not explicitly provide "that violations of its provisions against unlawful searches and seizures will result in the suppression of evidence obtained as a result of such violation, but the United States Supreme Court has held that the exclusion of evidence is an essential part of the Fourth Amendment." State v. Jenkins, 3d Dist. Union No. 14-10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).

         {¶10} "At a suppression hearing, the State bears the burden of establishing that a warrantless search and seizure falls within one of the exceptions to the warrant requirement, and that it meets Fourth Amendment standards of reasonableness." Steinbrunner at ¶ 12, citing Xenia v. Wallace, 37 Ohio St.3d 216 (1988), at paragraph two of the syllabus, State v. Kessler, 53 Ohio St.2d 204, 207 (1978), and Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999).

         {¶11} In this case, the State offered the testimony of two witnesses at the suppression hearing. The State's first witness was Henry County Sheriff Michael Bodenbender ("Bodenbender"), who testified that, on September 2, 2015, he responded to a dispatch to Washington Township and came in contact with Kern. (Dec. 9, 2015 Tr. at 3-4). Bodenbender testified that Kern informed him that as he was running that evening, someone in "a small silver Honda" fired several shots at him. (Id. at 5). According to Bodenbender, Kern said that 10 to 15 minutes before the shots were fired, "he did see the same car and he recognized the car because it is his neighbors [sic], it was Cullen Parsons driving it." (Id. at 5-6). At that point, Bodenbender testified that he went to Parsons's residence to try to locate him or the vehicle. (Id. at 7).

         {¶12} Bodenbender described what happened as he pulled into Parsons's driveway:

I was the first one in the driveway and as I pulled in he came, Cullen came running out from what would have been my right side. There was a pine tree, a large pine tree on this side and I didn't see him, he came running, he ran right in front of me, and then I stopped and he came up right to the door of my patrol car and I had ordered him back, get back, get back, because I couldn't even open my door, he was that close to me. He had a Budweiser, a bottle of Budweiser in his hand and I told him to get back, which he did, but as he did he turned around and he threw something. I didn't know what it was so I got out and ordered him to the ground, he complies, he gets down on the ground and then one of the, I believe it was [Henry County Deputy Sheriff Ross Saneholtz ("Saneholtz")] comes up and I said pat him down and handcuff him, I am going to go see what he threw.

(Id. at 7-8). According to Bodenbender, he located car keys where he observed Parsons throw something. (Id. at 8).

         {¶13} Bodenbender testified that they located the silver Honda Civic described by Kern at Parsons's residence, and it was "further up the drive and closer to the house" on Bodenbender's left hand side as he pulled into the driveway. (Id.). Bodenbender and other law enforcement personnel approached the vehicle to identify it, and in doing so, Bodenbender noticed "that there was like a twelve pack of Budweiser bottles that was open"-the same type of Budweiser bottle that he observed Parsons holding when Bodenbender pulled in the driveway. (Id. at 9). Bodenbender could not recall when Parsons was placed in handcuffs. (Id. at 11). According to Bodenbender, at the time of this incident, he was aware of a history of several disagreements between Kern and Parsons's family, and Bodenbender was personally familiar with that history. (Id. at 13).

         {¶14} On cross-examination, Bodenbender testified that he does not believe he wrote out a report or provided information to any other officer about all of his recollections from the incident. (Id. at 17). When Parsons's counsel asked Bodenbender if he believed it was significant that there was no mention in the police report of Kern identifying Parsons as driving the vehicle earlier that evening, Bodenebender responded, "Not really." (Id. at 19). Bodenbender testified that he is friends with Kern. (Id. at 22, 27). According to Bodenbender, he ordered Parsons to the ground and "told the guys to watch him while [he] went and saw what he threw." (Id. at 23). Bodenbender testified that had Parsons "got up after being told to stay there he would have been arrested." (Id.). Bodenbender testified that Parsons's parents were at the property, "answered lots of questions, " and told him that they wanted him off of the property because he had no authority to search. (Id. at 28, 34). According to Bodenbender, Parsons's parents both indicated that they had not driven the car earlier that day. (Id.). Bodenbender testified that "twenty minutes tops" transpired from when he received the phone call about the shooting to the time he was at the Parsons's property. (Id. at 29). According to Bodenbender, he did not check to see if one of the keys in the set that Parsons threw was the key for the vehicle in question. (Id. at 30-31).

         {¶15} The State also called Saneholtz to testify at the suppression hearing. (Id. at 35). Saneholtz testified that he responded to the report of the drive-by shooting and spoke with Kern. (Id. at 37). According to Saneholtz, Kern informed him that he was running westbound on Road S3 when he heard what he thought were firework pops behind him, and he turned around and saw a silver Honda Civic 10 to 15 feet behind him. (Id.). Kern heard more shots and saw what he described "as a muzzle flash or fireball coming from the driver's seat of the car, " so he did a "duck-spin move." (Id.). The car continued traveling westbound past him, and Kern observed some more shots. (Id.). According to Saneholtz, Kern "believed he recognized the vehicle to be owned by his neighbors, the Parsons vehicle, " but Kern could not identify the driver at the time of the shooting. (Id. at 37-38). Saneholtz testified that Kern said he is "familiar with the vehicle." (Id. at 37). According to Saneholtz, Kern informed him that, earlier in Kern's run that evening, "the same vehicle passed him and at the time it was operated by Cullen Parsons." (Id. at 38).

         {¶16} Saneholtz testified that, while he was speaking with Kern, a passerby and nearby resident, Jeremy Johnson ("Johnson"), "advised he went by the [Parsons] residence and saw the silver Honda Civic in the front yard with all four doors open." (Id.). Saneholtz testified that, at that time, a decision was made to travel to the Parsons residence to further investigate the incident. (Id. at 39-40). Saneholtz described what happened when they arrived at the Parsons residence:

The Sheriff was in the lead I followed him in my patrol car, he was in his own patrol car. As he approached the residence he had a spotlight he was shining on the residence and as he turned into the driveway a male subject appeared, he about hit him from the way it looked, you know, he passed in front of the vehicle and I just had enough room to pull my patrol car in behind his. So I get out and he's ordering the individual to the ground and he was identified as Cullen Parsons at that time. As he was going to the ground under his own power the Sheriff observed him toss something and when I got up there the Sheriff notified me of what he saw and we secured Cullen at that time. Deputy Birtcher arrived then and that's when the Sheriff and Deputy Birtcher continued to pat him down and secure him and they were the ones that actually placed the handcuffs on him at the time.

(Id. at 40). According to Saneholtz, at the time Bodenbender retrieved the item Parsons threw, Parsons was in handcuffs with Birtcher there with him. (Id. at 41).

         {¶17} When asked to describe the driveway into the Parsons residence, Saneholtz responded, "The driveway goes in and then it kind of bends slightly to the left and meets up with the garage." (Id.). According to Saneholtz, from the roadway to the garage following the drive, the "[t]otal distance might be 75 yards at the extreme." (Id. at 42). Saneholtz testified that when he came into contact with Parsons, it was immediately as he entered the driveway. (Id.). According to Saneholtz, he observed a silver Honda Civic matching the description provided by Kern. (Id.). When asked where he observed the silver Honda Civic, Saneholtz testified that, "as the driver makes the bend up to the garage there were two vehicles up there, " and the silver Honda Civic "was farther back closer to the road, actually parked in the grass" off the driveway. (Id.). When asked how much farther up the driveway the silver Honda Civic was from where Parsons was, Saneholtz responded, "maybe 25 yards at the most." (Id. at 43). Saneholtz testified that he felt the hood of the silver Honda Civic, and it was warm, "and it felt like it was recently driven." (Id.).

         {¶18} Counsel for the State asked Saneholtz if he made any other observations about the silver Honda Civic other than the warm hood, and Saneholtz responded:

While checking the area around the vehicle just to see what I could see and looking inside the glass I happen to get on the driver side of the vehicle and I just noticed, something caught my eye on the ground, it looked like a piece of trash or paper and I just happened to shine my light up and up from there, maybe another 10-15 yards away there was a pine tree that was cut up just a little bit and my light illuminated a handgun laying on the ground.
I was standing by the driver's side of that Honda Civic and just happened to notice something on the ground, I think it was a piece of trash or a paper, and as I was shining my light up it met the bottom of the tree and it was just plain as day right there, it was just obvious it was a black handgun.

(Id. at 44-45). When asked when this happened, Saneholtz responded, "That would have been, we had him secured on the ground. I walked up to check the cars right then and it was right after that when I checked the car that I believe they also recovered the key right in that time frame too." (Id. at 46). Saneholtz testified that law enforcement officers seized the silver Honda Civic that night because they believed they would "find shell casings or possibly even gunshot residue inside the vehicle." (Id. at 46-47). Saneholtz added, "Our understanding is you have about a five hour window for gunshot residue." (Id. at 47).

         {¶19} On cross-examination, Saneholtz testified that he was the first person on the scene of the shooting and the first person to speak with Kern. (Id. at 47-48). Saneholtz got there a few minutes before Bodenbender and prepared the report in the case; however, in preparing the report, Saneholtz never reviewed its contents with Bodenbender. (Id. at 48-50). Saneholtz testified that Kern did not give a description of the person who was shooting at him from the silver Honda Civic. (Id. at 50-51). Saneholtz admitted that he "neglected to put * * * in the report" that Kern identified Parsons as the person driving a silver Honda Civic earlier in the evening. (Id. at 52). Saneholtz agreed that this is "a significant piece" of evidence. (Id.). According to Saneholtz, Johnson-the person who informed them of the silver Honda Civic in the driveway of the Parsons residence-overheard the dispatch on the scanner, so he knew the make and model of the vehicle for which law enforcement were looking. (Id. at 53-54).

         {¶20} Saneholtz testified that he observed Bodenbender, while still in his patrol car, order Parsons to get on the ground and not leave. (Id. at 56-59). Once Birtcher arrived, Bodenbender had Saneholtz "go check on the car hoods" and "take a look at the Honda." (Id. at 61-63). According to Saneholtz, Birtcher placed Parsons in handcuffs. (Id. at 62). Saneholtz heard Bodenbender tell Parsons he was under arrest for felonious assault. (Id. at 66). Saneholtz testified that the hood of the silver Honda Civic was "very warm, " but he admitted he did not know whether it was recently driven or simply left in place with the engine running. (Id. at 67-68). According to Saneholtz, he approached the silver Honda Civic multiple times. (Id. at 70). The first time Saneholtz approached the silver Honda Civic, Parsons "was still on the ground." (Id.). He then walked back to where Bodenbender was to inform him the hood was warm. (Id.). After that, Saneholtz went back to the silver Honda Civic "[t]o look inside the vehicle to see if [he] could see anything." (Id. at 71). According to Saneholtz, around the time he went up to the silver Honda Civic the second time, Parsons was put in the patrol car. (Id.). Saneholtz testified that Parsons's parents came out of the house after he checked the silver Honda Civic. (Id. at 65).

         {¶21} We will first address Parsons's argument that certain facts of the trial court's factual findings supporting its suppression decision are not supported by competent, credible evidence in the record. He disputes the trial court's finding that Saneholtz "testified the hood of the silver Honda Civic was warm and indicated to him that it had been recently driven." (Doc. No. 23 at 7). This is an accurate statement of Saneholtz's testimony, to which Parsons did not object. (See Dec. 9, 2015 Tr. at 43). Regardless, this fact is not material to our disposition of Parsons's legal arguments under this assignment of error, which we will address below.

         {¶22} Parsons also argues that the trial court's finding that Saneholtz "made one, continuous search of the Honda" is not supported by competent, credible evidence. (Appellant's Brief at 15). In its analysis, the trial court stated:

Deputy Saneholtz approached the vehicle and checked to see if the hood of the vehicle was warm or cool. As he testified the hood of the silver Honda Civic was warm and indicated to him that it had been recently driven. The Deputy then proceeded to look into the vehicle with his flashlight. He then testified as he turned his flashlight beam picked up what he believed to be a gun located 10-15 yards from the car near a pine tree.

         (Doc. No. 23 at 7). Our review of the record fails to reveal a factual finding or legal conclusion by the trial court that Saneholtz "made one, continuous search of the Honda" as Parsons argues. (Appellant's Brief at 15). Nevertheless, even ignoring this statement by the trial court, the record supports our holding in this case that Saneholtz's actions fell within the automobile and plain-view exceptions to the Fourth Amendment.

         {¶23} Parsons does not appear to dispute that the law enforcement officers were entitled to initially enter the Parsons property in the manner they did. Indeed, "[a] law enforcement officer, acting without a warrant, has the same rights on another's property as any other visitor." State v. Green, 7th Dist. Belmont No. 14 BE 0055, 2016-Ohio-4915, ¶ 102, citing State v. Ash, 4th Dist. Pickaway No. 15CA1, 2015-Ohio-4974, ¶ 11. "As such, a police officer may go onto private property in areas impliedly open to the public." Id., citing Ash at ¶ 11, citing State v. Tallent, 6th Dist. Lucas No. L-10-1112, 2011-Ohio-1142. These areas include "walkways, driveways, or access routes leading to the residence." State v. Cook, 5th Dist. Muskingum Nos. 2010-CA-40 and 2010-CA-41, 2011-Ohio-1776, ¶ 65, citing State v. Birdsall, 6th Dist. Williams No. WM-09-016, 2010-Ohio-2382, ¶ 13. In this case, even setting aside any probable cause they may have had, when the officers pulled into the Parsons's driveway, they were in an area impliedly open to the public and were therefore allowed to be there. See id. at ¶ 67.

         {¶24} We next address whether Saneholtz's discovery of the firearm was in compliance with the Fourth Amendment. "A warrantless search of an automobile, where police officers have probable cause to believe such vehicle contains contraband, is one of the well-recognized exceptions to the constitutional requirement of a search warrant." State v. James, 5th Dist. Muskingum No. CT2015-0059, 2016-Ohio-7660, ¶ 23. "This 'automobile exception' allows a police officer to conduct a warrantless search of portions of a motor vehicle provided he or she has probable cause to believe it contains evidence of a crime." Id., citing Carroll v. United States, 267 U.S. 132, 158-159, 45 S.Ct. 280 (1925). See also State v. Turner, 2nd Dist. Montgomery No. 27065, 2016-Ohio-7983, ¶ 24 ("'The police must have "probable cause" to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.'"), quoting State v. Kessler, 53 Ohio St.2d 204, 208 (1978), citing Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472 (1968). "Probable cause is 'a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction.'" Turner at ¶ 24, quoting Kessler at 208, citing Carroll at 149.

         {¶25} In this case, the trial court stated, "[N]o Ohio Court has extended the search of a vehicle absent some exigent circumstance to a car legally parked at the defendant's residence." (Doc. No. 23 at 4-5, citing State v. Sprague, 12th Dist. Clermont No. 88-05-037, 1989 WL 36301 (Apr. 17, 1989)). This statement is incorrect. "It no longer matters that the automobile is on private property instead of public property." State v. Miller, 4th Dist. Washington No. 06CA57, 2007-Ohio-6909, ¶ 19, citing United States v. Graham,275 F.3d 490, 509-510 (6th Cir.2001). See also State v. Miller, 11th Dist. Trumbull No. 2011-T-0016, 2011-Ohio-5860, ¶ 27-31, quoting Miller at ¶ 19 and State v. Underwood, 12th Dist. Butler No. CA2003-03-057, 2004-Ohio-504, ¶ 17. As the Eleventh District Court of Appeals noted in Miller, the Sprague case, ...


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