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State v. Dennis

Court of Appeals of Ohio, Ninth District, Summit

June 27, 2018

STATE OF OHIO Appellee
v.
BRIAN DENNIS Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 06 1690

          ALAN M. MEDVICK, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Defendant-Appellant Brian Dennis appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} On June 22, 2013, police located a vehicle that had been reported stolen at a residence in Akron. The resident of the home informed police that the person they were looking for was in the back. Police found Dennis in a back bedroom. When Dennis was arrested, police found a loaded .45 caliber handgun on the bed where Dennis had been seated. Upon searching Dennis, police found a substance that was determined to be cocaine in his pocket, and, upon searching the vehicle, police found a substance determined to be heroin and a scale.

         {¶3} Dennis was indicted on one count of possession of heroin, one count of possession of cocaine, one count of having weapons while under disability, and one count of receiving stolen property. Dennis filed a motion to suppress and a hearing was held. The trial court denied the motion in a brief entry. The matter proceeded to a jury trial. The jury found Dennis not guilty of receiving stolen property but guilty of the remainder of the charges. The trial court sentenced Dennis to an aggregate term of three years.

         {¶4} Dennis appealed and this Court reversed the trial court's decision concluding that the trial court's failure to make findings of fact with respect to its ruling on the motion to suppress hindered our review. State v. Dennis, 9th Dist. Summit No. 27692, 2016-Ohio-8136, ¶ 6. We therefore remanded the matter for the trial court to set forth factual findings with respect to its ruling on the motion to suppress. Id. Upon remand the trial court issued an entry ruling on the motion to suppress that included factual findings. Dennis has again appealed, raising two assignments of error for our review.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS.

         {¶5} Dennis argues in his first assignment of error that the trial court erred in denying his motion to suppress. Specifically, he asserts that the trial court erred in determining that Dennis did not have standing to file a motion to suppress and in concluding that the officer received consent to enter the residence. Because we conclude the trial court did not err in concluding that Dennis did not possess an expectation of privacy in the premises, we need not address the issue of consent.

         {¶6} A motion to suppress evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8. "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶7} "The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution secure an individual's right to be free from unreasonable searches and seizures." State v. Hoang, 9th Dist. Medina No. 11CA0013-M, 2012-Ohio-3741, ¶ 39, quoting State v. Moore, 2d Dist. Montgomery No. 20198, 2004-Ohio-3783, ¶ 10. "The United States Supreme Court has found that the 'capacity to claim the protection of the Fourth Amendment depends * * * upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.'" Hoang at ¶ 39, quoting Minnesota v. Olson,495 U.S. 91, 95 (1990). "The Supreme Court of Ohio has adopted this rule of law and generally refers to an individual's 'legitimate expectation of privacy' as having 'standing' to bring such an action." Hoang at ¶ 39, fn. 1, citing State v. Williams,73 Ohio St.3d 153, 166 (1995). "Such an ...


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