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State v. Benton

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TYRONE BENTON DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611910-A

          ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Anne Kiran Mikhaiel Assistant County Prosecutor

          BEFORE: Laster Mays, Kilbane, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendant-appellant Tyrone Benton ("Benton") appeals the trial court's decision to deny his motion to suppress evidence, reverse his conviction, and find him not guilty. We affirm the trial court's decision.

         {¶2} Benton was charged with one count of having a weapon while under disability in violation of R.C. 2923.13(A)(2). He pleaded no contest and was sentenced to a 36-month suspended prison sentence, 12 months of community control sanctions, and to pay a $250 fine along with court costs of $100.

         I. Facts

         {¶3} On November 22, 2017, Garfield Heights police officers responded to a dispatched call regarding a shooting and homicide at Skills Barbershop. Officer Bryan Cwiklinski ("Officer Cwiklinski") testified at the suppression hearing that he arrived at the barbershop as the homicide victim was being taken out of the barbershop into the ambulance. (Tr. 18.) Officer Cwiklinski entered the barbershop and observed three males, one of which was Benton. (Tr. 19.) After Officer Cwiklinski determined that the barbershop was an active crime scene, he instructed all three men to exit the barbershop. (Tr. 19.) Once outside, Officer Cwiklinski spoke to one of the men and patted him down for weapons. (Tr. 21.) During this time, Officer Cwiklinski observed Benton leaving the barbershop. Benton threw a backpack into a vehicle. (Tr. 21.) Officer Cwiklinski asked Benton what he threw into the car, and Benton told him it was just books. (Tr. 23.)

         {¶4} Officer Cwiklinski informed two detectives that arrived at the scene, Detectives Biegacki and Herron that he saw Benton leave the barbershop and place a backpack into a vehicle. (Tr. 24.) Detective Biegacki testified that when Officer Cwiklinski informed him about the backpack, he was concerned because at that point he "didn't know what it was, could have been evidence; could have been a firearm; could have been anything related to this homicide, we didn't know." (Tr. 47.)

         {¶5} Detective Biegacki asked Benton if there was a firearm in the backpack, and Benton answered yes. (Tr. 48.) Detective Biegacki testified, "[d]o you mind if we go into your car and get this weapon, and he was cooperative. And so I had Detective Herron give him a consent form, which he filled out." (Tr. 48-49.)

         {¶6} Detective Herron testified that he approached Benton with a consent-to-search form. (Tr. 76.) Detective Herron stated, "[a]t the very bottom of that consent form there is something I read, and I read on every consent, because consents are always challenged. So I read the consent form to him and I reiterate during the consent, if we're executing it, he can stop at any time." (Tr. 76.)

         {¶7} After finding a second gun inside another vehicle, and receiving conflicting stories from all men, the police arrested the three men. After obtaining a search warrant, the police searched Benton's vehicle. They found a brown backpack containing a hi-point 9mm pistol and a loaded magazine on the passenger side of the vehicle seat.

         {¶8} Benton testified at the suppression hearing as well. He stated that he initially denied the police requested to search his vehicle but was told that "this is a murder scene now and that we are going to check the car. We are going to get a warrant. We are going to seize the car. We are going to confiscate it ...


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