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State v. White

Court of Appeals of Ohio, Second District, Montgomery

October 27, 2017

STATE OF OHIO Plaintiff-Appellee
DEMETRIUS WHITE Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-1164

          ALICE B. PETERS, Atty. Reg., Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          CHRISTOPHER B. EPLEY, Atty. Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the August 31, 2016 Notice of Appeal of Demetrius White. White appeals from his judgment entry of conviction, after a bench trial, on one count of improperly handling a firearm in a motor vehicle, in violation of R.C. 2923.16(B), a felony of the fourth degree. The trial court sentenced White to community control sanctions for a period not to exceed five years. We hereby affirm the judgment of the trial court.

         {¶ 2} White was indicted on May 29, 2015, and he pled not guilty on June 25, 2015. On February 23, 2016, White signed a Waiver of Counsel form, and the court held a hearing on the waiver. At the hearing, Attorney Enrique G. Rivera-Cerezo indicated that he was appointed to represent White in August of 2015. After the court went over the elements of improperly handling a firearm in a motor vehicle, the affirmative defenses thereto, the potential penalties upon conviction, and advised White against proceeding pro se, White expressed a continued desire to represent himself. Pursuant to White's request to proceed pro se, the court advised White that Rivera-Cerezo would be available on a "standby" basis at trial but would not be engaged in trial preparation or participate in the proceeding.

         {¶ 3} On April 25, 2016, a final pretrial conference was held, at which Attorney Kenneth Hanson appeared on behalf of White and requested a continuance so that White could apply for diversion. The court continued the trial date until May 31, 2016 and relieved Rivera-Cerezo "of the role of advisor." On April 26, 2016, Hanson filed a "Notice of Appearance of Counsel/ Substitution of Counsel."

         {¶ 4} On May 31, 2016, the trial court issued an "Order of Appointment" designating Attorney Justin M. McMullen as counsel for White, noting that White is indigent and unable to afford counsel. On June 6, 2016 the court held a scheduling conference, where the prosecutor indicated as follows:

Turning to page 6, under scheduling conferences, Demetrius White, Case Number 2015CR1164, Justin McMullen standing in as standby counsel although, Your Honor, last we were here, my understanding is Mr. McMullen was just appointed. I believe, after speaking with our appellate division, we do need to hold a brief hearing so that the defendant, the Court can make a determination that the defendant can represent himself since after the last hearing, he did retain private counsel.

The court scheduled a hearing for June 8, 2016.

         {¶ 5} At the June 8, 2016 hearing, White indicated to the court that he wished to proceed pro se. White stated as follows:

* * * I didn't seek Kenneth Hanson out to be my attorney. I actually seeked [sic] him out to be an expert witness and when he viewed the facts of the case, he decided, he asked me if he could be my attorney and he would represent me pro bono. And I figured that would be the best interest to have an attorney representing me, so I agreed.
And then the day we came here to discuss, I think it was before the last court date, he told me that he could get the charges dismissed if I just took the Diversion Program because, you know, just like give a little - get a little. But then after coming to court, I realized that that was not, indeed, the case.
So after we left court, I contacted him several times trying to understand what happened and what with the situation [sic]. He never responded back to me or my text messages, my calls to his office. So I just figured - - I did leave a message letting him know that I was going to continue the case and I wasn't going to take the program and he never responded back. So I just assumed he wasn't going to take the case.

         {¶ 6} The court repeated the advisements and inquiry of the first hearing on White's request to proceed pro se. White executed a "Wavier of Jury Trial" and a "Waiver of Counsel" at this second hearing. The State indicated that its offer of Diversion was rescinded.

         {¶ 7} On June 13, 2016, the court held another final pretrial conference, whereupon White asked the court to take judicial notice of the fact that delivering pizzas carries a high risk of assault, and that the Dayton Police Department implemented "special training" for delivery drivers in 2011. The court declined to do so.

         {¶ 8} The bench trial occurred on June 23, 2016. At the start of the proceedings the court noted Justin McMullen was proceeding as trial counsel and not acting in a standby capacity, as White indicated that he wished to proceed with counsel's representation. The parties then stipulated that White does not have a valid license or a temporary emergency license to carry a concealed firearm, or a license to carry a concealed weapon issued in another State with the benefit of reciprocity in Ohio. The parties further stipulated that White is not under disability or prohibited from owning a firearm.

         {¶ 9} Roger Hoff testified that he is a patrol officer in the City of Trotwood Police Department, having been employed in law enforcement for over 17 years. Hoff stated that on April 14, 2015, he was patrolling alone in a marked cruiser when he observed White, alone, in a blue Oldsmobile Cutlass, heading north on Salem Avenue near Wolf Road. He stated that White's license plate light was not working, and that he accordingly initiated a traffic stop. Hoff testified that he observed White "reaching over towards the front passenger seat area" in what Hoff characterized as a "furtive movement." Hoff stated that the surrounding area is known for drug activity. He testified that he approached White's vehicle on the passenger side. Hoff stated that he advised White of the reason for the stop, namely that his license plate light was not working. Hoff testified that White gave him his driver's license and proof of insurance, as well as the title to the vehicle.

         {¶ 10} According to Hoff, he observed that White was dressed as a pizza delivery driver. He stated that there were a number of items on the front seat beside White, including a jacket that was "pushed over to the side." In response to a question from Hoff regarding White's destination, Hoff testified that White advised him that he had just left work at Domino's and was on his way to his girlfriend's house in the Englewood area. Hoff testified that he did not observe anything in plain view inside the vehicle that he considered dangerous. Hoff stated that he advised White to remain in his vehicle and returned to his cruiser to perform a records check. Once in his cruiser, Hoff testified that he again observed White reach over towards the front passenger side of his vehicle. According to Hoff, there are "a number of concealment places in any vehicle."

         {¶ 11} Hoff stated that Officer Jackson arrived on the scene while he was in his cruiser, and that he asked Jackson to approach White's vehicle to "see what he's reaching for and kind of keep an eye on him." Hoff stated that Jackson then got his attention by waiving for Hoff to approach the vehicle. Hoff testified that he approached White's vehicle on the driver's side and asked White to exit his vehicle. Hoff stated that he detained White and placed him in his cruiser. He testified that at the time, he had learned from the records check that White was under a license suspension for failure to reinstate his license. According to Hoff, White's vehicle was titled to him, but "he still had the plates of the former owner attached to it which is a fourth degree misdemeanor." Hoff stated that White "would be cited at the very least for the DUS and the vehicle would be impounded since it is, technically, an unlicensed motor vehicle."

         {¶ 12} Hoff testified that he advised White that his vehicle would be impounded, and that White "advised me that there was an AR-style type rifle in the front seat of the vehicle." Hoff stated that he returned to White's vehicle. He testified that "the winter coat had shifted, " and he could see the "buttstock of what * * * was commonly found on AR-style type rifles." Hoff stated that the rifle "is a very common semiautomatic type of rifle that is out in possession of the general public today."

         {¶ 13} Hoff testified that he removed the rifle from White's vehicle and determined that it "was a .22 long-rifle, " and that it did not contain a magazine. He testified that he also retracted the bolt to ensure that there was no ammunition in the chamber. Hoff testified that he then conducted an inventory search of the vehicle pursuant to Police Department policy, and that he found ammunition behind the passenger seat on top of trash that was piled on the floorboard of the car. He stated that magazine "was loaded with a number of live rounds" for a .22 long rifle. Hoff testified that the magazine was not contained inside any sort of separate container. He stated that the magazine was within arm's reach of the driver of the vehicle. Hoff testified that when "I found the firearm and I found the loaded magazine, determined that I absolutely had a violation of law, went back and I mirandized the defendant. He stated he understood his Miranda rights and then he waived his right to any attorney and stated that he would answer my questions."

         {¶ 14} Hoff testified that he asked White why he had the rifle in his car, and that White "didn't really give me any kind of a reasons why he had it up there." According to Hoff, White "said initially that the rifle was stored in his trunk while he was working and * * * when he got off work, he moved it from the trunk to the front passenger compartment of the vehicle. He stated that the rifle was never loaded and that he never had a magazine in the rifle." Hoff identified photos taken by him of White's vehicle and the front passenger compartment "including the coat that was used to conceal the rifle and the magazine and the location of the magazine in the vehicle." He testified that "when we searched the vehicle, we immediately found the magazine so nothing in the vehicle except for the coat, when I moved the rifle, had been moved or displaced. So it's exactly how the vehicle was when it was pulled over." Hoff stated that he packaged the rifle and magazine and he identified the box he put them in marked with his initials and an evidence tag. He removed the weapon from the box and identified it as being in the same condition as when he recovered it. Hoff also identified the magazine, and he testified that it differed from the photograph thereof because it was not loaded so the "follower was visible. Finally, Hoff identified the 19 live rounds of ammunition that were inside the magazine when he recovered it. He testified that the rifle could be loaded and ready to fire in a few moments.

         {¶ 15} On cross-examination, when asked if the rifle could be used for purposes of self-defense inside a vehicle, Hoff responded, "not generally, because it's not something that can be carried, carried concealed, carried outside of a vehicle without having issues on that." He noted that the stop occurred at 2:05 a.m. Hoff stated that at the time of White's arrest, he was not aware that White had previously been robbed while delivering pizzas. He testified that he is "aware of other pizza delivery driver robberies, " and that he investigated the robbery of a pizza delivery driver named Fortis Stover in April of 2015 that occurred within a mile or two of White's traffic stop.

         {¶ 16} When asked if he believed pizza delivery drivers were "being targeted" in the area he patrols, Hoff responded that "generally when we have a pizza delivery driver that's robbed, it's usually a call that's come in. They ask for a pizza to be delivered to a vacant house. Once the pizza delivery driver is out of their vehicle and approaching and trying to deliver the pizza, they will ambush him outside of the vehicle and then initiate a robbery." Hoff stated that occasionally "after that, they've stolen the pizza delivery driver's keys and taken their vehicle."

         {¶ 17} On redirect examination, Hoff stated that a pizza delivery robbery does not occur "every day even every month. At times, it seems it goes in spurts." Hoff stated that while he was on patrol, he was not aware of any threats that were made against White.

         {¶ 18} John Porter testified that he is the deputy chief of police at the Trotwood Police Department, with 31 years of law enforcement experience. The court designated Porter an expert in rifles and firearms at the State's request. Porter testified that he tested White's rifle in April of 2016 by firing six rounds at the Miami Valley Shooting Grounds. He stated that he tested the rifle in a manner that is generally accepted to test rifles. Porter stated that he concluded to a reasonable degree of scientific certainty that "the weapon operates correctly and at the time that it was most likely seized, it was operating in [a] correct manner in fashion and form as designed." Porter stated that the ammunition seized with the weapon was appropriate for use with the weapon.

         {¶ 19} At the conclusion of Porter's testimony, the State rested, and White moved for an acquittal. The court overruled the motion. Ronald Strehle then testified that he is a "Crime Prevention and Analysis [sic] for the West Patrol Operations Division" of the Dayton Police Department, having been so employed for five years. He stated that he also has 16 years of patrol experience with the Dayton Police prior to his current position. Strehle testified as follows:

Back in the last part of 2011 and 2012, we saw about a 40 percent increase in pizza delivery driver robberies. We instituted a Safe Delivery project which included pizza delivery drivers, Chinese food, any kind of food delivery. We gave a class on what to do if they felt something was wrong because reading the reports, we found in about 75 percent of those cases the driver may have felt something was wrong. And we gave them instructions to do something different - - call back the number, don't deliver the food, drive around the block see what was going on. Basically, their safety was their responsibility because they're the only ones that are there.

         {¶ 20} Strehle stated that they try to conduct the training twice a ...

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