Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-618102-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Callista A. Plemel and Eben McNair, Assistant
Prosecuting Attorneys, for appellee.
Crook, Attorney at Law, L.L.C., and Jay F. Crook, for
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE
1} Defendant-appellant Joseph Riffle
("Riffle") appeals from a jury trial where Riffle
was found guilty of one count of cultivation of marijuana
with a firearm specification, one count of drug possession
with a firearm specification, and forfeiture specifications
requiring the forfeiture of five firearms. For the reasons
that follow, we affirm.
Statement of the Facts
2} On June 6, 2017, the Cleveland Police received an
anonymous Cuyahoga County Crime Stoppers email identifying
Riffle's home address, 12901 Erwin Avenue, Cleveland,
Ohio, and stating marijuana plants were growing in the
backyard. Detective Pitts, Sergeant Dunst, and Detective
Follmer went to McGowan Avenue, one street south of Erwin
Avenue, to establish surveillance. Detective Pitts and
Sergeant Dunst walked up the driveway of the house behind
Riffle's and from the neighbor's backyard looked over
a wooden fence. Detective Pitts described the fence as four
to six feet tall. The evidence shows the officers did not use
a ladder but looked over the fence and observed marijuana
plants. Detective Pitts also smelled the distinct odor of
growing marijuana plants. The officers informed Detective
Follmer of their observations.
The officers continued surveillance efforts while Detective
Follmer returned to the First District to draft a search
warrant and supporting affidavit and obtain the necessary
signature. Upon executing the search warrant that same day,
the officers first encountered Riffle exiting his home from
the back doorway. Riffle was instructed that the officers had
a search warrant for the house. Riffle denied having anything
on his body, including drugs. Riffle was handcuffed and told
he was under arrest for violating state law by cultivating
marijuana in his backyard. Bodycam footage from the arrest
shows an officer asked, "What's in the house"
and Riffle responded "marijuana." The footage shows
Riffle was under arrest, but his wife had not provided entry
through the front door or put the dogs in a secure area away
from the police. Riffle and an officer discussed Mrs.
Riffle's confusion and fear of the officer's presence
and Riffle then stated, "There's weed
downstairs." This comment was not in response to a
question from an officer. An officer escorted Riffle into the
living room and asked for his identification. Riffle's
identification was in the garage. Since the garage was being
inspected, Riffle was told to "wait a second"
before he obtained his identification. No questions were
posed to Riffle. Riffle then commented, "Yeah, go right
ahead. There's nothing bad. There's nothing whatever.
I got; I got my two guns are here. One downstairs in my band
room. One is in my bedroom and there's nothing. I got no
weapons on me." The bodycam footage shows Riffle was
subsequently asked whether there was any money in the house.
Riffle responded "no" and provided an itemization
of the guns in the home. It is not clear whether Riffle was
asked to identify all the guns. Riffle also stated the
marijuana "is mine." The officers ultimately found
four plants growing in the backyard as well as lighting, grow
pots, marijuana, and numerous firearms inside the house.
Riffle was arrested and charged with three counts:
cultivation of marijuana with a one-year firearm
specification; drug trafficking with a one-year firearm
specification and forfeiture specifications related to
multiple weapons; and drug possession with a one-year firearm
specification and forfeiture specifications related to
multiple weapons. Riffle pled not guilty on July 14, 2017. A
suppression hearing was held on January 2, 2018. Riffle
attempted to exclude the introduction of any evidence
obtained through the search warrant. The motion to suppress
was denied on January 10, 2018. The case proceeded to a jury
trial on April 30, 2018. The jury found Riffle guilty on all
counts except drug trafficking, and Riffle was sentenced to a
total prison term of one year, nine months. Riffle filed this
timely appeal on June 21, 2018, and presents the following
assignments of error:
First Assignment of Error: Appellant was prejudiced by
ineffective counsel in that trial counsel failed to fail
[sic] a motion to suppress regarding evidence obtained from
the custodial interrogation of Mr. Riffle.
Second Assignment of Error: The trial court committed
reversible error in failing to find that the statements by
the officers contained in the Affidavit offered to procure
the warrant, when the statements containing material
omissions of fact and material statements of factual
impossibility, were sufficient to create probable cause to
allow for the issuance of a warrant to search Mr.
Third Assignment of Error: Mr. Riffle was prejudiced by the
ineffective assistance of trial counsel in that Trial Counsel
failed to raise the issue of a Brady violation for a failure
of the State of Ohio to ever provide a copy of the email
containing the "tip" from the confidential
informant accusing Mr. Riffle of criminal activity.
Fourth Assignment of Error: Appellant's trial counsel was
ineffective in failing to file a motion in limine with
regards to the introduction of seven (7) firearms into
evidence and the trial court committed clear error in
allowing the presentation and introduction of the seven (7)
rifles as evidence into trial when it is established before
the hearing that operability has not been established.
Fifth Assignment of Error: The numerous errors and
ineffective acts throughout the trial process, while
providing grounds for reversal of Mr. Riffle's conviction
by themselves, also provide grounds for reversal as their
cumulative nature resulted in a deprivation of Mr.
Riffle's due process right to a fair trial.
Law and Analysis
Ineffective Assistance of Counsel
5} Since Riffle argues ineffective assistance of
counsel in his first and third assignments of error, these
arguments will be addressed collectively. Riffle's
ineffective assistance of counsel argument regarding a motion
in limine is discussed below under Section B, Firearms
6} The Ohio Supreme Court has repeated the
well-established standard for reviewing claims of ineffective
assistance of counsel: "[r]eversal of convictions for
ineffective assistance of counsel requires that the defendant
show, first, that counsel's performance was deficient
and, second, that the deficient performance prejudiced the
defense so as to deprive the defendant of a fair trial."
State v. Linder, 8th Dist. Cuyahoga No. 106600,