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State v. Freshwater

Court of Appeals of Ohio, Eleventh District, Lake

July 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSHUA C. FRESHWATER, Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas. Case No. 2018 CR 000012.

          Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, (For Plaintiff-Appellee).

          Mandy J. Gwirtz, Mandy Gwirtz, LLC, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Joshua C. Freshwater, appeals from the judgment entry of sentence issued by the Lake County Court of Common Pleas on October 4, 2018, following a jury trial. Appellant was found guilty of trafficking in marihuana, a fourth-degree felony in violation of R.C. 2925.03(A)(2), and possessing criminal tools, a fifth-degree felony in violation of R.C. 2923.24, both of which included forfeiture specifications for currency and contraband/instrumentalities. The charges stem from a traffic stop that resulted in the search of appellant's rental vehicle, the seizure of contraband from the vehicle, and the seizure of a large amount of cash from appellant's person. The trial court sentenced appellant to two concurrent eleven-month prison terms.

         {¶2} On appeal, appellant asserts the following assignments of error for our review:

[1.] The trial court erred when it permitted an expert to testify as to the ultimate issue to be decided by the jury, in violation of the rights to due process and fair trial per the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
[2.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.
[3.] The trial court erred when it overruled the defendant-appellant's motion to suppress where the officer had no specific and articulable suspicion upon which to base his stop of the defendant-appellant's vehicle, in violation of the defendant-appellant's right to be free from unreasonable search and seizure as guaranteed by the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.

         For the reasons that follow, appellant's assignments of error are without merit, and the trial court's judgment is affirmed.

         {¶3} We first consider appellant's third assignment of error, in which he argues the trial court erred in denying his motion to suppress evidence.

         {¶4} "Appellate review of a motion to suppress presents a mixed question of law and fact. 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." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. 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. Fanning, 1 Ohio St.3d 19 (1982) and State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶5} The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, guarantees an individual's right to be free from unreasonable searches and seizures. Accord Ohio Constitution, Article I, Section 14. Police action of stopping an automobile and detaining its occupant is a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979), paragraph two of the syllabus. Thus, an automobile stop is "subject to the constitutional imperative that it not be 'unreasonable' under the circumstances." Whren v. United States, 517 U.S. 806, 810 (1996).

         {¶6} A traffic stop is not "unreasonable" when it is premised upon either an articulable reasonable suspicion of criminal activity or probable cause to believe a crime was committed. State v. Calori, 11th Dist. Portage No. 2006-P-0007, 2007-Ohio-214, ¶19, citing Terry v. Ohio, 392 U.S. 1, 21 (1968), State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶35, and Dayton v. Erickson, 76 Ohio St.3d 3 (1996), syllabus. See also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶23 ("an officer who has probable cause necessarily has a reasonable and articulable suspicion, which is all the officer needs to justify a stop"). This determination "requires an objective assessment of a police officer's actions in light of the facts and circumstances then known to the officer." Erickson, supra, at 6 (citation omitted).

         {¶7} An officer's observation of a traffic violation provides probable cause to stop a vehicle. See Mays, supra, at ¶24, and State v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068, 2015-Ohio-958, ΒΆ20. "Where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more ...


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