Court of Appeals of Ohio, Fifth District, Fairfield
from the Fairfield County Court of Common Pleas, Case No.
2017 CR 00798
Plaintiff-Appellee R. KYLE WITT Fairfield County Prosecutor
By: CHRISTOPHER A. REAMER Assistant Prosecuting Attorney
Defendant-Appellant JAMES A. ANZELMO
JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon.
Craig R. Baldwin, J.
Defendant-appellant Matthew Warren appeals his conviction and
sentence from the Fairfield County Court of Common Pleas.
Plaintiff-appellee is the State of Ohio.
OF THE FACTS AND CASE
On June 14, 2017, Detective Alex Sinewe of the Lancaster
Police Department was dispatched to an address in Fairfield
County to respond to a call that an unresponsive male named
Matt had overdosed. When he arrived at the scene at around
5:00 p.m., he entered a home and found appellant in a chair
unconscious "with a female standing over top of him
slapping his face and chest telling him to wake up."
Trial transcript at 57-58. The Detective called for the
medics. He testified that he did not see any kind of drug
paraphernalia in the house.
While Detective Sinewe was in the house, the medics
administered Narcan to appellant who continued fading in and
out of consciousness. The Detective discovered that appellant
had an outstanding warrant for his arrest and testified that
he intended to place appellant under arrest after appellant
received medical treatment at the hospital. Prior to the
ambulance leaving to take appellant to the hospital,
Detective Sinewe checked appellant's pockets and
waistband "and anywhere where that (sic) he would
possibly be able to conceal something." Trial Transcript
at 66. He testified that he found "a small purple screw
top container which we found contained a couple of unknown
powders and white pills" along with car keys and other
items. Trial Transcript at 68. The powder was in two baggies.
At the time of the search, appellant was not conscious.
There was testimony at trial that when appellant was in a
state of consciousness, he told the medics that he had taken
Heroin and Xanax. Appellant was strapped in a gurney in the
ambulance which was pursuant to standard medical protocol to
ensure appellant's safety. While in the ambulance,
appellant got out of the restraints and attempted to run.
Appellant scuffled with the medics and it took three people
to get appellant under control. One of the medics, Ruth
Shahan, yelled to appellant that he was trying to run because
he knew that the police were behind the ambulance. Appellant
had indicated that he did not know that he had an outstanding
warrant for his arrest. Appellant was then transported to the
At trial, Keith Taggart, a forensic scientist testified that
he tested the items found in appellant's pockets and that
one of the items, an off-white powder weighing less than 09.1
grams, was found to contain fentanyl and carfentanil. He
further testified that the other plastic baggie contained
gabapentin, which is not a controlled substance. When asked
if he was able to distinguish how much fentanyl and how much
carfentanil was located in the one baggie, Taggart testified
that their laboratory "does not quantitate how much
substance is present." Trial transcript at 131. He
testified that he did not know whether carfentanil is an
analog to fentanyl. On redirect, he testified that the two
are identified as separate and distinct Schedule II
Tyson Nye, a firefighter/paramedic, testified that appellant
admitted to using heroin. He testified that when they got
appellant out of the house, police informed them that
appellant had an outstanding warrant for his arrest and that
no one communicated that to appellant. Nye testified that he
opened the back of the ambulance and was charged by appellant
who hit Nye and almost knocked him backwards onto the
pavement below. Nye testified that he could have been killed
if he had hit his head on the pavement. There also was
testimony that William Gibson, a firefighter, had a cut on
his left elbow and Ruth Shahan suffered leg and hand injuries
due to appellant's continued struggle inside the
ambulance. Gibson testified that he never informed appellant
that there was an outstanding warrant and the he did not hear
anyone convey that information to appellant. Photographs of
the injuries were admitted at trial.
On December 7, 2017, appellant was indicted on two counts of
aggravated possession of drugs in violation of R.C.
2925.11(A) AND (C)(1)(a), felonies of the fifth degree, and
one count of selling, purchasing, distributing or delivering
dangerous drugs in violation of R.C. 4729.51 (EW)(1)(c) and
4729.99, a misdemeanor of the first degree. At his
arraignment on December 15, 2017, appellant entered a plea of
not guilty to the charges. Appellant was appointed counsel at
state expense. A superseding indictment was filed on January
25, 2018 that added three counts of assault in violation of
R.C. 2903.13(a) and (C)(5), felonies of the fourth degree.
On February 2, 2018, appellant filed a Motion to Suppress the
drugs found in his pocket, arguing that they were found
during an unconstitutional search. At his arraignment on
February 5, 2018, appellant entered a plea of not guilty to
the charges contained in the superseding indictment.
Following a hearing held on February 28, 2018, the trial
court denied appellant's Motion to Suppress. The trial
court, in its April 26, 2018 Entry, found that Detective
Sinewe's search of appellant's person was justified
by probable cause and made incident to a valid arrest.
Thereafter, a jury trial commenced on July 24, 2018. The jury
found appellant guilty of the drug charges and guilty of
assaulting Tyson Nye and Ruth Shahan, but not guilty of
assaulting William Gibson.
As memorialized in a Judgment Entry filed on August 10, 2018,
appellant was sentenced to an aggregate prison sentence of
four (4) years and seven (7) months. The trial court also
ordered appellant to pay fines in the total amount of $6,
450.00, but suspended the fines, and ordered appellant to pay
Appellant now raises the following assignments of error on
"I. THE TRIAL COURT ERRED BY DENYING WARREN'S MOTION
TO SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS
RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED
BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION."
"II. THE TRIAL COURT ERRED BY NOT HOLDING A TRIAL ON THE
ASSAULT CHARGES SEPARATE FROM THE DRUG POSSESSION CHARGES, IN
VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
"III. MATTHEW WARREN'S CONVICTIONS FOR AGGRAVATED
DRUG POSSESSION AND ASSAULT ARE BASED ON INSUFFICIENT
EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO
"IV. MATTHEW WARREN'S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I
OF THE OHIO CONSTITUTION."
"V. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE
WARREN'S AGGRAVATED DRUG POSSESSION OFFENSES, IN
VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION."
"VI. WARREN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
Appellant, in his first assignment of error, argues that the
trial court erred in denying his Motion to Suppress.
Appellate review of a trial court's decision to grant or
deny a motion to suppress involves a mixed question of law
and fact. State v. Long, 127 Ohio App.3d 328, 713
N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the
trial court assumes the role of trier of fact and, as such,
is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75
Ohio St.3d 148, 1996-Ohio-134, 661 N.E.2d 1030. A reviewing
court is bound to accept the trial court's findings of
fact if they are supported by competent, credible evidence.
State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist. 1996). Accepting these facts as true, the
appellate court must independently determine as a matter of
law, without deference to the trial court's conclusion,
whether the trial court's decision meets the applicable
legal standard. State v. Williams, 86 Ohio
App.3d 37, 42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on
There are three methods of challenging a trial court's
ruling on a motion to suppress on appeal. First, an appellant
may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must
determine whether the trial court's findings of fact are
against the manifest weight of the evidence. See, State
v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982);
State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141
(4th Dist. 1991). Second, an appellant may argue the trial
court failed to apply the appropriate test or correct law to
the findings of fact. In that case, an appellate court can
reverse the trial court for committing an error of law.
State v. Williams, supra. Finally, an appellant may
argue the trial court has incorrectly decided the ultimate or
final issues raised in a motion to suppress. When reviewing
this type of claim, an appellate court must independently
determine, without deference to the trial court's
conclusion, whether the facts meet the appropriate legal
standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 620 N.E.2d 906 (8th Dist. 1994).
Appellant specifically contends that the trial court erred in
concluding that the Detective had reasonable suspicion of
appellant's criminal activity and in concluding that the
search was incident to an arrest.
At the suppression hearing, Detective Alex Sinewe testified
that he was familiar with appellant because he had had a
"couple of dealings with [appellant] on different types
of calls, suspicious person type calls." Transcript of
Suppression hearing at 22. He tested that he was on a SWAT
team that had dealings with appellant when they raided a
house for drug trafficking. The house was a known drug
residence according to the Detective. The Detective further
testified that it was normal routine to check any individual
who was overdosing for any outstanding warrants through
dispatch and that such an individual would have medical
treatment prior to be arrested. Detective Sinewe further
testified that when they were transporting an individual who
was overdosing in an ambulance, there were safety concerns
because drugs and weapons typically went hand in hand and
that it was standard procedure to check any individual for
weapons or other items that could cause injury to the
During the suppression hearing, Detective Sinewe testified
that the house where appellant was located was known to law
enforcement as a drug house where trafficking occurred.
Appellant's girlfriend, who was in the house, was a known
drug user. Detective Sinewe testified that he believed that
appellant stated that he had taken heroin and that he ran
appellant for outstanding warrants and learned that appellant
had an outstanding warrant for his arrest. He testified that
appellant was going to be arrested after he received medical
treatment and that another individual in the house approached
him and told him that appellant had drugs in his pocket.
The Fourth Amendment to the United States Constitution and
Section 14, Article I, Ohio Constitution, prohibits the
government from conducting unreasonable searches and seizures
of persons or their property. See Terry v. Ohio ,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State
v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271
(1991). [A] full search of the person incident to a lawful
custodial arrest is not only an exception to the warrant
requirement of the Fourth Amendment but is also a
'reasonable' search under that amendment."
State v. Mathews, 46 Ohio St.2d 72, 74, 346 N.E.2d
151 (1976), citing United States v. Robinson, 414
U.S. 218, 94 S.Ct. 467, 38 L.E.2d 427 (1973). Moreover,
"[w]here the police officer has probable cause to arrest
independent of the items obtained in the search, but does not
arrest until shortly after the search, the search is not
offensive to the Fourth Amendment to the United States
Constitution." State v. Bing, 134 Ohio App.3d
444, 447-48, 731 N.E.2d 266 (9th Dist.1999), citing
Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct.
2556, 65 L.Ed.2d 633, 645-646 (1980).
In order to justify a search as one incident to arrest, there
must be probable cause to arrest. State v. Robinson,
9th Dist. Wayne No. 10CA0022, 2012-Ohio-2428. The test for
probable cause to arrest without a warrant is whether
"the facts and circumstances known to the officer
warrant a prudent man in believing the offense has been
committed." State v. Perez, 124 Ohio St.3d 122,
920 N.E.2d 104, 2009-Ohio-6179, ¶ 73, quoting Henry
v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4
L.Ed.2d 134 (1959).
In the case sub judice, Detective Sinewe searched
appellant's person before he was arrested. While
appellant was unconscious at the time:
A search of one found in an unconscious condition is both
legally permissible and highly necessary. There is a positive
need to see if the person is carrying some indication of a
medical history, the rapid discovery of which may save his
life; there is also a need to identify persons so found in
order to notify relatives or friends. That the cause of
appellant's being unconscious was not known in no way
impaired but rather enhanced the need and inherent power to
State v. Paidousis, 10th Dist. Franklin No.
00AP-118, 2001 WL 436079 (May 1, 2001) at 4, citing to
Vauss v. United States,370 ...