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State v. Bashada

Court of Appeals of Ohio, Fifth District, Muskingum

November 8, 2017

STATE OF OHIO Plaintiff - Appellant
v.
STEPHEN M. BASHADA Defendant-Appellee

         Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0078

          For Plaintiff-Appellant D. MICHAEL HADDOX Prosecuting Attorney GERALD V. ANDERSON II Assistant Prosecuting Attorney

          For Defendant-Appellee C. JOSEPH MCCOY, CARL E. MCCOY

          Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Plaintiff-appellant State of Ohio appeals from the Journal Entry of the Muskingum County Court of Common Pleas granting defendant-appellee Stephen Bashada's Motion to Suppress.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On February 22, 2017, the Muskingum County Grand Jury indicted appellee on one count of possession of drugs (Oxycodone) in violation of R.C. 2925.11(A), a felony of the fifth degree, one count of possession of drugs (hashish) in violation of R.C. 2925.11(A), a minor misdemeanor, and one count of possession of drugs (marijuana) in violation of R.C. 2925.11(A), a minor misdemeanor. At his arraignment on March 29, 2017, appellee entered a plea of not guilty to the charges.

         {¶3} Thereafter, on June 1, 2017, appellee filed a Motion to Suppress. Appellee, in his motion, argued, in part, that the trooper who stopped his vehicle did not have reasonable articulable suspicion that appellee was engaged in criminal activity when conducting the stop and that all evidence seized as a result of the stop should be suppressed. A hearing on the Motion to Suppress was held on June 20, 2017. The following testimony was adduced at the hearing.

         {¶4} Ohio State Highway Patrol Trooper Samuel K. Hendricks testified that on June 5, 2016, he was sitting on Interstate 70 when he observed appellee, who he estimated as approximately 30 years old, slow down just prior to the 55 mile per hour zone. The Trooper testified that as he started catching up with appellee, appellee got off on the Fifth Street ramp. When he ran a registration check on appellee's vehicle, Trooper Hendricks received information that the vehicle was a black 2015 Honda hatchback owned by a 57 year old female from Loveland, Ohio. According to the Trooper, the vehicle that he observed was dark gray. He was unsure of the year of the vehicle.

         {¶5} Because he was concerned that the vehicle might have been stolen based on the issue with registration, Trooper Hendricks initiated a traffic stop. He testified that he immediately observed criminal behavior. Trooper Hendricks testified that appellee only rolled down the window a couple of inches and that appellee was very nervous and had trouble getting his driver's license out because his hands were trembling. Trooper Hendricks further testified that while he was waiting for appellee to produce insurance, he observed marijuana debris loose around the gear shift area. He then had appellee exit the vehicle and sit in his cruiser. Appellee, according to the Trooper Hendricks, told him that he had marijuana in the center console of the vehicle. After the Zanesville Police arrived, Trooper Hendricks searched appellee's vehicle and found a small amount of marijuana, a marijuana vaporizer, and some hash butter. In the luggage on the backseat, he found an orange pill bottle containing three dosage units of oxycodone hydrochloride. Trooper Hendricks, when asked, testified that he did not believe that appellee had a prescription for them.

         {¶6} On cross-examination, Trooper Hendricks testified that at the time he ran the registration check on the vehicle, he had not observed any traffic violations. He testified that he decided to run the vehicle's license plates because it appeared that appellee tried to avoid him by abruptly exiting the highway and that appellee was excessively nervous after the vehicle was stopped. Trooper Hendricks also testified that he decided to stop the vehicle because appellee slowed down when he saw the Trooper and exited the highway, because the color of the vehicle did not match the registration, and because the out of county vehicle was registered to a 57 year old woman. Trooper Hendricks indicated that he was concerned that the vehicle had been stolen and the plates on the vehicle had been changed.

         {¶7} The following testimony was adduced when Trooper Hendricks was asked by the trial court whether the year and make listed on the vehicle registration matched the vehicle that appellee was driving:

         {¶8} THE WITNESS: That - - on the registration, yeah. I confirmed with the VIN, sir, yes. The vehicle had ...


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