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State v. Page

Court of Appeals of Ohio, Sixth District, Erie

July 20, 2018

State of Ohio Appellee
Kiedrin Page Appellant

          Trial Court No. 2015-CR-362

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Martha S. Schultes, Assistant Prosecuting Attorney, for appellee.

          John D. Toth, for appellant.


          SINGER, J.

         {¶ 1} Appellant, Kiedrin Page, appeals from the March 14, 2017 judgment of the Erie County Court of Common Pleas convicting him of possession of heroin, R.C. 2925.11(A) and (C)(6)(a), following a bench trial, and trafficking in heroin, R.C. 2925.03(A)(1) and (C)(6)(b), and tampering with evidence, R.C. 2921.12(A)(1), following a jury trial. For the reasons which follow, we affirm.

         {¶ 2} On October 14, 2015, appellant was indicted on multiple charges. Count 1, which alleged possession of heroin, was based on the events of August 4, 2015, when heroin was allegedly found when appellant was searched following his arrest on an outstanding warrant issued relating to Count 2. Count 2, which alleged trafficking in heroin, was based on allegations that on June 25, 2015, appellant knowingly offered to sell one gram of heroin within 1, 000 feet of the Osborne Elementary School. Count 3, which alleged tampering with evidence, was based on allegations that on June 25, 2015, appellant hid the suspected heroin in his mouth and swallowed it, with purpose to impair its value or availability as evidence in the police investigation.

         {¶ 3} Appellant moved to suppress the evidence obtained after his seizure on June 25, 2015. The trial court denied the motion. Appellant consented to a bench trial on Count 1 and a jury trial was held on Counts 2 and 3. Appellant was convicted of all three counts and sentenced to four years of community control on each of the counts. The sentences for Counts 2 and 3 were ordered to be served concurrently to each other and consecutively to the sentence for Count 1, for a total of eight years of community control. On appeal, appellant asserts the following assignments of error:

         Assignment of Error I

         The Trial Court incorrectly denied the suppression motion in this matter. The denial of the Appellant's suppression motion in the matter was not supported by competent and credible information.

         Assignment of Error II

         The trial court abused its discretion when allowing evidence in violation of rule 404(B).

         Assignment of Error III

         The evidence was insufficient to support the school specification on the drug trafficking count of the indictment.

         {¶ 4} In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress evidence obtained after he was illegally seized. He argues there were no articulable facts warranting a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889 (1968).

         {¶ 5} The review of a ruling on a motion to suppress involves a mixed question of law and fact. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50. We must "accept the trial court's findings of fact which are supported by competent and credible evidence * * * and determine, without any deference to the trial court, whether the facts satisfy the applicable legal standard." Id.

         {¶ 6} The Fourth Amendment of the United States Constitution protects individuals against unreasonable police seizures and searches. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Map v. Ohio, 367 U.S. 643, 654-655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applicable to the states through the Fourteenth Amendment). Any seizure that occurs "'outside the judicial process, without prior approval by a judge or magistrate, is per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." Robinette. The burden of establishing the exception is on the prosecution. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

         {¶ 7} Two exceptions are presented in this case. The first exception is the investigative stop and frisk. See Terry, ¶ 20. This type of seizure is a reasonable seizure and search under the Fourth Amendment if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent, and the stop and frisk investigation is kept to a minimal intrusion. Terry at 21-22; United States v. Sharpe, 470 U.S. 675, 687-688, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

         {¶ 8} Appellant argues the holdings in Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 42, superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 48, apply to this case. We disagree. Those cases involve anonymous tips which were not sufficiently corroborated by the police to ensure their reliability to be part of the formation of an officer's reasonable suspicion of criminal activity. J.L.; Jordon. In the case before us, all of the facts were directly observed by the officers.

         {¶ 9} The second exception allows an officer to stop and arrest an individual without a warrant if the officer has probable cause to believe the person has committed a felony. Carroll v. United States,267 U.S. 132, 156-157, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 26. "Probable cause is a stricter standard than reasonable and articulable suspicion." State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. It is determined under an objective standard of whether a reasonable police officer would have believed the defendant had committed a crime. State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ΒΆ 14. Running from the police, following a reasonable order to stop, is a factor which can ...

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