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State v. Bennie Boy Shough

Court of Appeals of Ohio, Fifth District, Licking

August 16, 2019

STATE OF OHIO Plaintiff-Appellee
v.
BENNIE BOY SHOUGH Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Case No. 18CR345

          For Plaintiff-Appellee: WILLIAM C. HAYES LICKING CO. PROSECUTOR PAULA M. SAWYERS

          For Defendant-Appellant: STEPHEN T. WOLFE WOLFE LAW GROUP, LLC

          JUDGES Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          DELANEY, J.

         {¶1} Appellant Bennie Boy Shough appeals from the April 24, 2019 judgment entry of conviction and sentence of the Licking County Court of Common Pleas, incorporating the November 13, 2018 judgment entry overruling his motion to suppress. Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶2} The instant case has a lengthy procedural history including, e.g., withdrawals of counsel, appointments of counsel, applications for disqualification of the trial court, and appellant's repeated failures to appear. The following statement of facts and procedural history addresses the portions of the record which is relevant to the instant appeal. The following facts are adduced from the record of the suppression hearing.

         {¶3} On January 3, 2018, officers of the Newark Police Department were dispatched to an address on Prior Street for a report of shots fired. Upon their arrival, they observed appellant standing outside the residence near a running car. They made contact with appellant and patted him down for weapons. As Ptl. Benner patted appellant down, Sgt. Bline observed a plastic baggie hanging out of appellant's pocket containing a granular substance. When asked what the baggie contained, appellant stated, "Speed." The substance tested positive as 19.2 grams of methamphetamine.

         {¶4} Appellant's neighbor testified as a defense witness at the suppression hearing. She acknowledged she is the person who called 911 on the night in question. The neighbor agreed she does not like appellant and does not want him living in her neighborhood, but reiterated that she called police because she heard shots fired from appellant's residence. When police arrived on the scene, she directed them to the residence, and to appellant standing in the driveway.

         {¶5} Appellant was charged by indictment with one count of aggravated drug possession (methamphetamine) pursuant to R.C. 2925.11(A)(C)(1)(c), a felony of the second degree. Appellant entered a plea of not guilty.

         {¶6} Appellant filed a motion to suppress and appellee filed a memorandum in opposition. The matter proceeded to evidentiary hearing on October 26, 2018. The trial court overruled the motion to suppress via judgment entry dated November 13, 2018.

         {¶7} On April 24, 2019, appellant appeared before the trial court and changed his previously-entered plea of not guilty to one of no contest. The trial court deferred sentencing pending completion of a pre-sentence investigation. On April 24, 2019, the trial court sentenced appellant to a prison term of 5 years to be followed by a mandatory period of three years of post-release control.

         {¶8} Appellant now appeals from the trial court's judgment entry of conviction and sentence dated April 24, 2019, incorporating the trial ...


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