from Henry County Common Pleas Court Trial Court No.
L. Coble and Tim A. Dugan for Appellant.
Flanagan for Appellee
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.
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).
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).
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).
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.).
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 No. I
search of the vehicle violated the Fourth Amendment, and all
fruits of that search should have been suppressed.
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.
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).
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.
"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).
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).
Bodenbender described what happened as he pulled into
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
(Id. at 7-8). According to Bodenbender, he located
car keys where he observed Parsons throw something.
(Id. at 8).
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).
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
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).
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).
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.).
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
(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).
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).
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).
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.
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
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
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.
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
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.
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,