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State v. Warren

Court of Appeals of Ohio, Fifth District, Fairfield

July 17, 2019

STATE OF OHIO Plaintiff - Appellee
v.
MATTHEW WARREN Defendant-Appellant

          Appeal from the Fairfield County Court of Common Pleas, Case No. 2017 CR 00798

          For Plaintiff-Appellee R. KYLE WITT Fairfield County Prosecutor By: CHRISTOPHER A. REAMER Assistant Prosecuting Attorney

          For Defendant-Appellant JAMES A. ANZELMO

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} Defendant-appellant Matthew Warren appeals his conviction and sentence from the Fairfield County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 hospital.

         {¶5} 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 narcotics.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 court costs.

         {¶12} Appellant now raises the following assignments of error on appeal:

         {¶13} "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."

         {¶14} "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 CONSTITUTION."

         {¶15} "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 CONSTITUTION."

         {¶16} "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."

         {¶17} "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."

         {¶18} "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 CONSTITUTION."

         I

         {¶19} Appellant, in his first assignment of error, argues that the trial court erred in denying his Motion to Suppress.

         {¶20} 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 other grounds.

         {¶21} 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).

         {¶22} 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.

         {¶23} 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 EMT's.

         {¶24} 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.

         {¶25} 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).

         {¶26} 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).

         {¶27} 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 search appellant.

State v. Paidousis, 10th Dist. Franklin No. 00AP-118, 2001 WL 436079 (May 1, 2001) at 4, citing to Vauss v. United States,370 ...


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