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State v. Clayton

Court of Appeals of Ohio, Twelfth District, Warren

November 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
GREGORY CLAYTON, Defendant-Appellant.


          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for plaintiff-appellee

          Thomas G. Eagle, for defendant-appellant


          M. POWELL, J.

         {¶ 1} Defendant-appellant, Gregory Clayton, appeals his conviction in the Warren County Court of Common Pleas for possession of marijuana.

         {¶ 2} Around 1:30 a.m. on February 11, 2014, Warren County Sheriffs Deputy Andrew Grossenbaugh was parked in his police cruiser along Interstate 71 and observed a Chrysler Pacifica traveling southbound at 64 m.p.h. in a 70 m.p.h. zone. The Pacifica's speed was unremarkable to the deputy. However, after passing the deputy's police cruiser, the Pacifica slowed to 53 m.p.h., which the deputy found to be suspicious. Deputy Grossenbaugh began following the Pacifica. After he observed it make several marked lane and lane change violations, he initiated a traffic stop.

         {¶ 3} Upon approaching the vehicle, the deputy found appellant in the driver's seat and Jason Raphael in the front passenger seat, speaking on a cell phone. According to Deputy Grossenbaugh, the cell phone conversation alerted him to the possibility of drug activity because it is common for drug couriers to call and alert their contact when they are stopped by police. The deputy observed eight large, block-shaped packages, tightly taped and wrapped with moving blankets, upon the folded-down back seats of the Pacifica. The deputy thought the packages were suspicious because drug couriers often wrap drugs with moving blankets and the packages were similar in size and shape to bales of marijuana. The Pacifica was also traveling along Interstate 71, which is a known drug corridor.

         {¶ 4} During Deputy Grossenbaugh's initial contact with appellant and Raphael, both men were extremely nervous, shaking excessively, and avoiding eye contact. The deputy obtained identification from appellant but Raphael was unable to produce identification or his social security number. Instead, Raphael provided the deputy with his Horseshoe Casino player's card, a name, and a date of birth. The deputy also observed five cell phones and an air freshener in the vehicle.

         {¶ 5} Sergeant (then Deputy) Randy Asencio arrived at the scene and the officers separately interviewed appellant and Raphael. The Pacifica was registered to an 84-year-old woman from Cincinnati, Ohio, who appellant claimed was his aunt. Appellant provided conflicting explanations as to where he was going but ultimately stated he was moving "furniture or antiques" of his recently deceased aunt. Appellant stated he was moving the furniture from Columbus to Cincinnati. Deputy Grossenbaugh did not believe the bundles were furniture or antiques because they were all similar in shape and size and he believed the tight wrapping of the packages would damage the antiques. There was confusion during the officers' interviews with appellant and Raphael regarding whether the men were transporting the packages from Columbus or Cincinnati. In addition, the two men provided inconsistent stories as to how long they had known each other.

         {¶ 6} A canine unit arrived at the scene. Appellant and Raphael were each placed in the back of the officers' separate police cruisers. Before being placed in the cruisers, the men consented to a search of their persons and rolling papers were found on Raphael. Although the canine unit did not alert to the presence of drugs, both officers believed the wrapped packages in the back of the Pacifica were bales of marijuana and the canine unit's failure to alert did not lessen their suspicions. Consequently, Deputy Grossenbaugh contacted Detective Dan Schweitzer of the Warren County Drug Task Force for assistance to obtain a search warrant. Detective Schweitzer arrived at the scene and after viewing the packages, he too believed they were bales of marijuana. Appellant declined a request for consent to search the Pacifica and the officers decided to obtain a search warrant for the vehicle.

         {¶ 7} Thereafter, appellant and Raphael were separately transported to the Warren County Sheriff's Office. The Pacifica was taken to the Drug Task Force headquarters where Detective Schweitzer drafted the affidavit for a search warrant. At approximately 6:00 a.m., the warrant was signed by a judge and the search warrant was executed. The bundles in the back of the vehicle were found to be bales of marijuana.

         {¶ 8} On March 17, 2014, appellant and Raphael were each indicted for trafficking in marijuana, in violation of R.C. 2925.03(A)(2), and possession of marijuana, in violation of R.C. 2925.11(A), both second-degree felonies since the marijuana equaled or exceeded 40, 000 grams. Appellant was also indicted for permitting drug abuse, in violation of R.C. 2925.13(A), a fifth-degree felony.

         {¶ 9} Appellant and Raphael moved to suppress the evidence found from the search of the vehicle and their persons along with the statements both made to the police. Following an evidentiary hearing, the trial court suppressed the evidence seized as a result of the search of the Pacifica and evidence obtained from appellant. The trial court reasoned that while the initial traffic stop and detention was lawful, once the canine failed to alert to the presence of drugs, further detention of appellant and the Pacifica was illegal. The trial court, however, denied the motion to suppress the evidence obtained from Raphael's person or the statements he made to the police.

         {¶ 10} The state appealed the suppression of the marijuana found in the Pacifica. On August 10, 2015, we reversed the trial court's decision, finding that considering the information known to the officers prior to the time the canine unit responded to the scene, the officers had probable cause to search the Pacifica pursuant to the automobile exception, and therefore, the continued detention of the vehicle to obtain a search warrant did not violate the Fourth Amendment to the United States Constitution. State v. Raphael, 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-3179, ¶ 31. We remanded the matter to the trial court for further proceedings.

         {¶ 11} Appellant sought a discretionary appeal to the Ohio Supreme Court. Initially, the supreme court accepted jurisdiction to review the Fourth Amendment issue pursuant to the recent decision of the United States Supreme Court in Rodriguez v. United States, _ U.S. 135 S.Ct. 1609 (2015). However, the Ohio Supreme Court later dismissed the appeal for failure to prosecute when appellant's then appellate counsel failed to file a merit brief. State v. Raphael, 145 Ohio St.3d 1431, 2016-Ohio-1328. The supreme court subsequently denied appellant's motion for reconsideration and his pro se motion for relief and pro se application for reopening the appeal. State v. Raphael, 145 Ohio St.3d 1473, 2016-Ohio- 3028; and State v. Raphael, 147 Ohio St.3d 1457, 2016-Ohio-8121.

         {¶ 12} The matter was then returned to the trial court for further proceedings. On remand, appellant and Raphael were tried jointly in a bench trial. Neither testified at trial. Deputy Grossenbaugh, Sergeant Asencio, Detective Schweitzer, and Franklin Police Officer Steven Dunham testified on behalf of the state.[1] The trial court heard closing arguments from the parties and took the matter under advisement. On January 13, 2017, the trial court found appellant guilty of marijuana possession and permitting drug abuse, but not guilty of trafficking in marijuana, and sentenced him to a mandatory eight years in prison.

         {¶ 13} Appellant now appeals, raising two assignments of error.

         {¶ 14} Assignment of Error No. 1:


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