Court of Appeals of Ohio, Twelfth District, Warren
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No.
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, for plaintiff-appellee
G. Eagle, for defendant-appellant
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
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
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,
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. 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
14} Assignment of Error No. 1:
15} THE TRIAL COURT ERRED IN CONVICTING THE
DEFENDANT WITHOUT ...