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State v. Snowden

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

STATE OF OHIO Plaintiff-Appellee
DEONTE D. SNOWDEN Defendant-Appellant

          Trial Court Case No. 2016-CR-1809 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          MATTHEW M. SUELLENTROP, Atty. Reg. No. 0089655, Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} Defendant-appellant Deonte D. Snowden appeals his conviction and sentence for two counts of murder (proximate result), in violation of R.C. 2903.02(B), both unclassified felonies, both counts accompanied by a three-year firearm specification; one count of felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree, accompanied by a three-year firearm specification; one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree, accompanied by a three-year firearm specification; one count of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a felony of the third degree; and one count of bribery (corrupt witness), in violation of R.C. 2921.02(C), a felony of the third degree. After some of the offenses were merged, the court imposed an aggregate sentence of 21 years to life. Snowden filed a timely notice of appeal with this Court on August 21, 2018.

         {¶ 2} Shortly after 11:00 p.m. on the night of June 6, 2016, Theodora Watson and her three grandsons, "D.O." (16 years old at the time), "D.E." (13), and "D.S." (10), were getting into her car outside her home in order to drive to a restaurant. Watson and D.E. testified that, just as they were about to leave, the victim, William Sarver, walked up to the driver's side of the vehicle and began a conversation with Watson. Watson testified that Sarver had lived in her neighborhood for several years, and the two were well acquainted. In fact, Sarver, whose nickname in the neighborhood was "Carl Lewis," would routinely shovel the snow at Watson's residence and go to the store for her.

         {¶ 3} Watson testified that when Sarver learned that Warner was going to buy food, he handed her a $20 bill to pay for dinner. While she was speaking to Sarver, defendant- appellant Snowden walked up her driveway talking on a cell phone. Snowden was Watson's husband's nephew, and she had known him for his entire life. Snowden's nickname around the neighborhood was "DeeDot." D.E. also testified that he observed Snowden walking up the driveway toward the vehicle after Sarver had already approached the vehicle and begun speaking with Watson. Unlike Watson and D.E., D.S. testified that he observed Snowden walk up to Watson's vehicle before Sarver arrived. Nevertheless, Watson, D.E., and D.S. all testified that, after a short time, Snowden and Sarver got into an argument while they were standing near Watson's vehicle.

         {¶ 4} Watson testified that Snowden initially slapped Sarver in the face with an open hand, knocking Sarver backwards. Sarver then slapped Snowden in the same manner. Watson, D.S., and D.E. testified that Snowden then pulled a handgun from the waistband of his pants and fired a single shot, striking Sarver in the abdomen. Watson and D.S. testified that, because it was dark, they never saw the handgun with which Snowden shot Sarver. D.E. testified, however, that from his vantage point inside the vehicle, he was able to see the handgun in Snowden's hand as Snowden shot Sarver.

         {¶ 5} Watson, D.S., and D.E. testified that there were no other individuals standing close to Watson's vehicle when Snowden shot Sarver. Specifically, Watson, D.S., and D.E. each testified that Derrick Watson, Theodora's adult son and the boys' father, was not present when Snowden shot Sarver. In fact, they each testified that Derrick did not appear at the scene of the shooting until after the paramedics and police had arrived. Watson testified that there were some people standing in the street talking, but when the shot was fired, they all ran away. Watson, D.S., and D.E. all testified that after shooting Sarver, Snowden ran to a black sedan and drove away. D.S. and D.E. testified that the vehicle was a black Chevrolet Impala. All three witnesses had observed Snowden in the same vehicle in the past.

         {¶ 6} Watson, D.S., and D.E. immediately got out and attempted to help Sarver, who had fallen over into the open rear driver's-side door of Watson's vehicle. Watson called 911 using her cordless home phone, which she had taken with her when they initially left the house for food. We note that the record establishes that, while on the phone with the 911 operator, Watson stated that she was unable to identify the perpetrator. At trial, Watson testified that she told the operator that she could not provide the name of the perpetrator because she was scared and nervous immediately after the shooting occurred. Watson testified that she had no doubt that Snowden shot Sarver. When the paramedics arrived at the scene, Sarver was put in an ambulance and transported to Miami Valley Hospital, where he was later pronounced dead as a result of the gunshot wound.

         {¶ 7} Upon arriving at the scene, police officers placed Watson, D.S., and D.E. in separate cruisers to await questioning by detectives. The record establishes that they each separately identified Snowden as the perpetrator and provided a description of his vehicle. Police also discovered a spent .40 caliber shell casing on the ground near Watson's vehicle. We note that no handgun was recovered during the investigation of Sarver's shooting.

         {¶ 8} Detective Brad Daugherty from the Montgomery County Sheriff's Office was one of the detectives assigned to investigate Sarver's death. Detective Daugherty testified that he knew Snowden from working with him on other investigations, and he possessed Snowden's cell phone number. Detective Daugherty further testified that he had spoken with Snowden earlier in the day on June 6, 2016, prior to the shooting. After completing an "exigent circumstance" form, Detective Daugherty requested that the phone service provider "ping" Snowden's cell phone in an attempt to locate him. When an attempt was made to "ping" Snowden's cell phone on the night of the shooting, Detective Daugherty was informed that Snowden's cell phone had been turned off. When the cell phone was "pinged" the following day on June 7, 2016, it was discovered that the cell phone had been turned back on and was in the possession of Snowden's girlfriend. Snowden, however, was not with his girlfriend.

         {¶ 9} On June 7, 2016, the police also located Snowden's black Impala car parked in an alleyway against a garage. The vehicle was approximately half a block away from Snowden's mother's house. Police officers found that a large garbage can and a box had been placed in front of the tires of the vehicle. The officers also learned that Snowden's vehicle had been outfitted with distinctive after-market black rims. Dayton Police Detective David House testified that he viewed the placement of the garbage can and box in front of the rims of the vehicle as an intentional attempt at concealment. The police were unable to ascertain Snowden's whereabouts.

         {¶ 10} On July 14, 2016, Snowden was indicted for two counts of murder (proximate result) and two counts of felonious assault (serious physical harm and deadly weapon), each of which was accompanied by a three-year firearm specification; he was also indicted on one count of having weapons while under disability (prior drug conviction).

         {¶ 11} Detective Daugherty testified that in October 2016, he was provided with a phone number of a cell phone in Snowden's possession. Detective Daugherty testified that the cell phone was "pinged" to a location in Maricopa, Arizona. Thereafter, Detective Daugherty contacted the U.S. Marshals to assist in Snowden's apprehension. Snowden was arrested in Maricopa and extradited back to Dayton, Ohio, where he was taken into custody and placed in jail. At his arraignment on October 25, 2016, Snowden stood mute, and the trial court entered a plea of not guilty on his behalf.

         {¶ 12} On November 22, 2017, Snowden waived his right to a jury trial on the count of having weapons while under disability. Thereafter, the remaining charges in the indictment were tried to a jury on November 27-29, 2017. However, the jury could not reach a verdict regarding any of the offenses, and the trial court declared a mistrial.

         {¶ 13} It eventually came to light that in late November 2017, D.E., who testified at trial, received a phone call from Snowden who was in jail. During the conversation, Snowden offered D.E. $2, 500 to give testimony favorable to him at trial. On November 30, 2017, Snowden also called Watson from the jail and asked her to change her story regarding her recollection of the events surrounding Sarver's shooting.

         {¶ 14} On March 23, 2018, Snowden was additionally charged in a "B Indictment" with one count of bribery (corrupt witness), in violation of R.C. 2921.02(C), a felony of the third degree. On June 26, 2018, Snowden filed a motion for leave to a file a motion to suppress accompanied by a proposed motion to suppress, based upon the authority of Carpenter v. United States, ___U.S.___, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The trial court granted Snowden's motion for leave on July 2, 2018. The trial court held a hearing on Snowden's motion to suppress on July 9, 2018, immediately prior to the beginning of his second trial. After hearing from both parties, the trial court overruled Snowden's motion to suppress from the bench.

         {¶ 15} During the same hearing, Snowden also made an oral motion for the trial court to sever the "B Indictment" from the "A Indictment" for purposes of trial. The trial court overruled Snowden's motion to sever from the bench. Thereafter, the case proceeded to trial, and on July 11, 2018, the jury found Snowden guilty on all counts presented to it. On July 13, 2018, the trial court found Snowden guilty of having weapons under disability following a bench trial. The trial court merged the two counts of murder and the two counts of felonious assault and merged all of the accompanying firearm specifications. The State elected to proceed on Count I, murder (proximate result), which carried a mandatory sentence of 15 years to life in prison. The trial court also sentenced Snowden to three years in prison for having weapons under disability, to be served concurrently to his sentence for murder. The trial court sentenced Snowden to three years for bribery, to be served consecutively to the sentence for murder. Finally, the trial court sentenced Snowden to three years in prison for the firearm specification, to be served consecutively to Snowden's sentence for murder. The aggregate sentence was 21 years to life in prison. The court also ordered Snowden to pay restitution, court costs, and extradition costs.

         {¶ 16} It is from this judgment that Snowden now appeals.

         {¶ 17} Snowden's first assignment of error is as follows:


         {¶ 18} In his first assignment, Snowden contends that the trial court erred when it overruled his motion to suppress the cell phone "pinging" information that was used to attempt to locate him on the night of the shooting and the following day. In support of his argument, Snowden relies upon the U.S. Supreme Court's recent opinion in Carpenter, ___U.S.___, 138 S.Ct. 2206, 201 L.Ed.2d 507.

         {¶ 19} Initially, we note that defense counsel withdrew his challenge to the "pings" that occurred in Maricopa, Arizona. Accordingly, Snowden has waived this portion of his argument on appeal, and we decline to address it.

         {¶ 20} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Retherford at 592. "Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id.

         {¶ 21} The threshold issue in every Fourth Amendment analysis is whether a particular government action constituted a "search" or "seizure" within the meaning of the Amendment. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In its early jurisprudence, the Supreme Court determined whether a particular action was a "search" or "seizure" based on principles of property trespass. In Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), however, the Court recognized that the Fourth Amendment also protects certain expectations of privacy, not just physical intrusions on constitutionally protected areas. Id.; Carpenter at 2213. Under Katz, to prove a Fourth Amendment violation, a defendant must show (1) that the person had a subjective expectation of privacy and (2) that the subjective expectation of privacy is one that society recognizes, or is prepared to recognize, as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), citing Katz at 361 (Harlan, J, concurring).

         {¶ 22} After Katz, the Supreme Court rejected the government's "contention that it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity." United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The Supreme Court found "[i]ndiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight." (Footnote omitted). Id. at 716. Later, the Supreme Court held that when "the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

         {¶ 23} More recently, the Supreme Court held that attaching a GPS tracking device to a vehicle constitutes a search under the Fourth Amendment. United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Two years later, the Supreme Court held that "a warrant is generally required before such a search [of a cell phone], even when a cell phone is seized incident to arrest." Riley v. California, 573 U.S. 373, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). The Court recognized that cell phones hold "the privacies of life," id. at 2495, quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and noted that "[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought." Id.

         {¶ 24} In Carpenter, ___U.S.___, 138 S.Ct. 2206, 201 L.Ed.2d 507, the defendant challenged on Fourth Amendment grounds the government's warrantless acquisition -pursuant to 18 U.S.C. 2703 -- of his cell-site location information ("CSLI") from his wireless telecommunications carrier that had been sent to cell towers by his cell phone and stored by that carrier. Id. at at 2211-12. The CSLI data acquired in Carpenter identified the defendant's movements across nearly 13, 000 specific location points during a 127-day span. Id. at 2212.

         {¶ 25} The government, in response, invoked the third-party doctrine to justify its warrantless acquisition of the CSLI from the carrier. Id. at 2219. The Supreme Court held, however, that the government's acquisition of the CSLI from the carrier constituted a search for which the government needed a warrant, because the defendant retained a reasonable expectation of privacy in the CSLI at issue even though he had shared it with his wireless carrier. Id. at 2217-20.

         {¶ 26} Carpenter reasoned that, given the location information that CSLI conveyed and the fact that a cell phone user transmits it simply by possessing the cell phone, if the government could access the CSLI that it had acquired without a warrant in that case, then the result would be that "[o]nly the few without cell phones could escape" what would amount to "tireless and absolute surveillance." Id. at 2218. Carpenter thus declined to extend the third-party doctrine to the CSLI at issue in that case and instead determined that the defendant did have a reasonable expectation of privacy in the CSLI that he sought to suppress. Id. at 2219-20.

         {¶ 27} However, the Carpenter court also stated the following regarding the limited application of its ruling:

Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or "tower dumps" (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith [442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220] and Miller [425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71] or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not "embarrass the future." Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300, 64 S.Ct. 950, 88 L.Ed. 1283 (1944).

(Emphasis added.) Id. at 2220. Accordingly, the Supreme Court has not addressed the narrow issue presented in the instant case: whether police action that causes an individual's cell phone to transmit its real-time location intrudes on any reasonable expectation of privacy.

         {¶ 28} Using Snowden's cell phone number on the night of the shooting, Detective Daugherty requested that the phone service provider "ping" Snowden's cell phone in an attempt to locate him. When an attempt was made to "ping" Snowden's cell phone, Detective Daugherty was informed that Snowden's cell phone had been turned off. When the cell phone was "pinged" the following day, it was discovered that the cell phone had been turned back on and was in the possession of Snowden's girlfriend. Snowden, however, was not present. Therefore, the information gathered by the police in the instant case amounted to "real-time CSLI," and in Carpenter, the U.S. Supreme Court expressly declined to discuss the application of the Fourth Amendment to such conduct by law enforcement.

         {¶ 29} Carpenter specifically addressed the government's ability to utilize cell phone data without a warrant to ascertain a suspect's location and movement over a period of weeks, months, and years. In the instant case, Detective Daugherty pinged Snowden's phone twice, in real time, in an effort to ascertain his whereabouts on the night of the shooting and the following day.

         {¶ 30} Here, we find that the trial court should have addressed the applicability of Carpenter to Snowden's case, and incorrectly declined to do so. We note that the State in its brief acknowledges that such an analysis should have been done as Snowden's case was still pending at the time that Carpenter was decided. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), syllabus. The Griffith court held that new rules for the conduct of criminal prosecutions must be "applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Id. at 328; see also State v. Thompson, 161 Ohio App.3d 334, 2005-Ohio-2508, 830 N.E.2d 394, ¶ 21-25 (2d Dist.) (applying new criminal law retroactively to case pending on direct appeal).

         {¶ 31} We conclude that Carpenter has retroactive applicability to Snowden's case. However, "the question of whether a constitutional right is retroactive is distinct from the question of whether an individual is entitled to a remedy from any constitutional violation." See United States v. Leyva, E.D. Mich. No. 16-cr-20723, 2018 WL 6167890 (Nov. 26, 2018) (stating that Carpenter is retroactive). As the Supreme Court explained in Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011):

Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroactive application under Griffith lifts what would otherwise be a categorical bar to obtaining redress for the government's violation of a newly announced constitutional rule. Retroactive application does not, however, determine what "appropriate remedy" (if any) the defendant should obtain. Remedy is a separate, analytically distinct issue. As a result, the retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.

Id. at 243-244.

         {¶ 32} As an initial matter, we reject the State's argument that Carpenter explicitly limited its holding to the collection of seven days or more of CSLI. In fact, the language used by the U.S. Supreme Court arguably suggests just the opposite in the following excerpt:

* * * [W]e need not decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.

Carpenter at 2272, fn 3.

         {¶ 33} In this case, although the State's request for CSLI was limited to a two-day period, there is no rationale that such a request is not a "search." See State v. Burke, 11th Dist. Trumbull Nos. 2018-T-0032, 2018-T-0035, 2019-Ohio-1951, ¶ 31-32. Before compelling a wireless carrier to turn over a subscriber's CSLI, the State's obligation is a familiar one - obtain a warrant. This is logically true whether it is one day, two days, three days, or seven days or more of data obtained.

         {¶ 34} We note that the State argues that even if the police were required to obtain a warrant prior to pinging Snowden's phone on the dates in question, their failure to do so was harmless because they were ultimately unable to locate him. As previously stated, the first ping of Snowden's phone revealed that it had been turned off. The second ping indicated that, although the phone had been turned back on, it was in the possession of Snowden's girlfriend, and he was not present. Thus, the State argues that the failure of the police to get a warrant was ultimately inconsequential, and therefore the evidence should not be suppressed. We should not be preoccupied with what the State learned, but rather the manner in which the government obtained information about Snowden's cell phone. Furthermore, the State's argument in this regard is undermined by the fact that, at trial, the State argued in its closing argument that Snowden's phone being turned off immediately after the shooting was indicative of his guilt insofar as he was trying to elude law enforcement. Thus, it is apparent that the trial court's refusal to suppress the cell phone pings were not inconsequential as they were used by the State as evidence of Snowden's guilt at trial.

         {¶ 35} Nevertheless, even though obtaining a CSLI without a warrant violates the Fourth Amendment, such evidence need not be suppressed if exigent circumstances exist, and/or the officers acted in good faith.

The suppression of evidence" 'is not an automatic consequence of a Fourth Amendment violation.'" State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, * * * 25 N.E.3d 993, [¶ 24] quoting Herring v. United States, 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). "The exclusionary rule is a judicially created remedy for Fourth Amendment violations. The question whether the evidence seized in violation of the Fourth Amendment should be excluded is a separate question from whether the Fourth Amendment was violated." State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, * * * 46 N.E.3d 638, [¶ 92] citing United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) and United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Burke at ¶ 29.

         {¶ 36} The Carpenter court indicates that certain case-specific exceptions may support a warrantless search of cell-site records under certain circumstances, including "when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id. at 2222, quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

         {¶ 37} In the instant case, Snowden shot the victim in the presence of multiple witnesses. An important factor in determining whether exigent circumstances exist is the gravity of the underlying offense. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Upon review, we find that an exigency existed. State v. Johnson, 187 Ohio App.3d 322, 2010-Ohio-1790, 931 N.E.2d 1162 (2d Dist.) ("generally, the exigent-circumstances exception to the Fourth Amendment's warrant requirement can apply when the delay associated with obtaining a warrant would result in endangering police officers or other individuals, or would result in concealment or destruction of evidence"). Snowden was identified as the perpetrator, fled the scene, and was armed. Furthermore, Snowden had knowledge that the eyewitnesses observed him commit the homicide, and therefore could implicate him. Thus, exigent circumstances took the police conduct herein outside of the warrant requirement.

         {¶ 38} Furthermore, the good faith exception to the warrant requirement is applicable. At the time the police obtained Snowden's CSLI phone records, the police conduct was lawful under both federal and state law in this jurisdiction. An officer who conducts a search in reliance on binding appellate precedent does no more than" 'ac[t] as a reasonable officer would and should act'" under the circumstances. United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), quoting Stone v. Powell, 428 U.S. 465, 539-540, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Therefore, "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Davis, 564 U.S. 229, 241, 131 S.Ct. 2419, 180 L.Ed.2d 285.

         {¶ 39} The good-faith exception to the exclusionary rule provides that evidence will not be suppressed "when the police act with an objectively 'reasonable good-faith belief that their conduct is lawful or when their conduct involves only simple, 'isolated' negligence." Id. at 238. "To trigger the exclusionary rule," the U.S. Supreme Court has said, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Accordingly, "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." Davis at 241.

         {¶ 40} As was the case in Burke, at the time of the search of Snowden's CSLI, Carpenter had not yet been decided by the U.S. Supreme Court. The Sixth Circuit's precedent was that individuals "have no such expectation [of privacy] in the locational information" obtained from a wireless carrier. United States v. Carpenter, 819 F.3d 880, 888 (6th Cir.2016). According to the Sixth Circuit, obtaining such information was not considered a "search" under the Fourth Amendment. Id. at 890. See also State v. Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550, ¶ 7 (finding that appellant had no reasonable expectation of privacy in the pings emitted by the cell phone in his possession; "[therefore, no search warrant was required regardless of whether exigent circumstances existed").

         {¶ 41} Upon review, we therefore conclude that the detectives who obtained Snowden's CSLI from his service provider "did so in compliance with binding precedent and with an objectively reasonable good-faith belief that their actions were lawful." Burke at ¶ 32.[1] Thus, applying Carpenter retroactively leads us to conclude that Snowden's Fourth Amendment rights were violated by the failure to obtain a warrant, but the trial court was not required to exclude the evidence because the presence of exigent circumstances obviated the warrant requirement and the good-faith exception applied. Therefore, the trial court did not err when it overruled Snowden's motion to suppress.

         {¶ 42} Snowden's first assignment of error is overruled.

         {¶ 43} Snowden's second assignment of error is as follows:


         {¶ 44} In his second assignment, Snowden argues that the trial court erred when it overruled his motion to sever the trial of his "B Indictment" for bribery from the trial for the offenses in his "A Indictment" that were directly related to the shooting of Sarver. As previously stated, the "B Indictment" contained one count of bribery stemming from Snowden's offer to pay D.E. $2, 500 to change his testimony.

         {¶ 45} Crim.R. 8(A) provides as follows:

Joinder of offenses. Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.

         {¶ 46} "The law favors joinder to prevent successive trials, to minimize the possibility of incongruous results in successive trials before different juries, to conserve judicial resources, and to diminish the inconvenience to witnesses." State v. Goodner, 195 Ohio App.3d 636, 2011-Ohio-5018, 961 N.E.2d 254, ¶ 39 (2d Dist.), citing State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).

         {¶ 47} Crim.R. 14 provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.

         {¶ 48} Even if offenses are properly joined pursuant to Crim.R. 8(A), a defendant may move to sever the charges pursuant to Crim.R. 14. In order to affirmatively show that his rights have been prejudiced by the joinder, the defendant must furnish the trial court with information sufficient to allow the court to weigh the considerations favoring joinder against the defendant's right to a fair trial; to obtain reversal on appeal, the defendant must demonstrate that the trial court abused its discretion in refusing to separate the charges for trial. Goodner at ¶ 42. Thus, we review the trial court's decision on severance under an abuse of discretion standard. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

         {¶ 49} A defendant normally cannot establish prejudice, however, where either (1) the evidence of each of the crimes joined at trial is simple and direct or (2) the State could have introduced evidence of one offense in a separate trial of the other offense had severance been granted. State v. Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-5354, ¶ 16. If the evidence of other crimes would be admissible at separate trials, any "prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials," and a court need not inquire further. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992), citing Drew v. United States, 331 F.2d 90 (D.C. Cir.1964).

         {¶ 50} Initially, we note that evidence that tends to demonstrate the attempted bribery of a witness by a defendant is admissible against that defendant since such an attempt is an admission of guilt. See State v. Hunt, 8th Dist. Cuyahoga No. 84528, 2005-Ohio-1871, at ¶ 8. Accordingly, had the trial court granted Snowden's motion to sever, his phone call to D.E. from the jail offering $2, 500 for D.E. to change his testimony would have been admissible to establish Snowden's consciousness of guilt regarding his role in the murder of Sarver. If the charges had been severed, the State would necessarily have called several of the same witnesses from the trial on the underlying charges to prove motive and interest in connection with the bribery charges, which would have wasted judicial resources and subjected the witnesses to a needless second turn on the stand. Thus, we conclude that since the evidence of Snowden's attempt to bribe D.E. would have been admissible at Snowden's murder trial, the trial court did not err when it overruled his motion to sever.

         {¶ 51} Snowden's second assignment of error is overruled.

         {¶ 52} Snowden's third assignment of error is as follows:


         {¶ 53} In his third assignment, Snowden argues that the trial court made several prejudicial evidentiary rulings which require that his convictions be reversed and that he be granted a new trial.

         {¶ 54} Relevant evidence is generally admissible whereas irrelevant evidence is not. Evid.R. 402. "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. Relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Evid.R. 402; Evid.R. 403(A).

         {¶ 55} Trial courts have discretion over the admission or exclusion of evidence, and we review the court's decision for abuse of discretion. State v. Dyer, 2017-Ohio-8758, 100 N.E.3d 993, ¶ 24 (2d Dist.). "A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a situation in which a trial court did not engage in a 'sound reasoning process.' Abuse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

         Theodora Watson's Testimony

         {¶ 56} The first instance of allegedly prejudicial testimony admitted into evidence over objection occurred when, during direct examination, the prosecutor asked Watson if she had ever changed her story regarding the events surrounding Sarver's shooting on the night of June 6, 2016. The following exchange occurred regarding a recorded conversation between Watson and Snowden on November 30, 2017, when Snowden was in jail:

The State: Ma'am, do you remember back in November of 2017 testifying in another hearing regarding this matter?
Watson: Yes.
Q: And the phone call I'm about to play for you, was that after you received this call from Mr. Snowden?
A: Yes.
(State's Exhibit 29 marked for ...

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