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State v. Barnhart

Court of Appeals of Ohio, Sixth District, Erie

December 6, 2019

State of Ohio Appellee
v.
Paul M. Barnhart Appellant

          Trial Court No. 2014 CR 0609

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.

          Mary Elaine Hall, for appellant.

          DECISION AND JUDGMENT

          SINGER, J.

         {¶ 1} Appellant, Paul Barnhart, appeals the August 3, 2018 judgment of the Erie County Court of Common Pleas. For the following reasons, we affirm the judgment.

         {¶ 2} Appellant sets forth four assignments of error:

Assignment of Error No. 1: The trial court erred when it denied defense counsel's Rule 29 Motion to Dismiss * * * not because it denied the Motion to Suppress Det. Adam West's testimony, but when the trial court allowed the admission of items seized from Holly Robuck - obtained from an uncharged third party at the time of the residence check, who did not consent to search the bedroom, nor have the apparent authority to give consent to search the bedroom[, ] the closet, the clothesbasket and the dresser, which she shared in common with the defendant-probationer, Paul M. Barnhart?
Assignment of Error No. 2: Defense trial counsel for the defendant-appellant, Paul M. [Barnhart, ] * * * provided ineffective assistance of counsel when he failed to file a Motion to Suppress all [of] the evidence seized from the shared common bedroom with Holly Robuck, pursuant to Taylor v. United States, 600 F.3d 678 (6th Cir. 2010) and made stipulations to admit State's Exhibits 3, 4 & 7 as against the defendant?
Assignment of Error No. 3: Whether the trial court committed error when it admitted evidence from the defendant-appellant-probationer, Paul M. Barnhart's cellphone against him at trial?
Assignment of Error No. 4: Whether the trial court committed plain and structural error when it did not amend the written jury instructions on Constructive Possession * * * over the objection of defense trial counsel, regarding the possible constructive possession of drugs by third party, Holly Robuck?

         Background Case No. 2014 CR 0007

         {¶ 3} On August 30, 2013, an indictment was found by the grand jury charging appellant with one count of possession of marijuana, a fifth-degree felony. The indictment was filed in the Erie County Court of Common Pleas, case No. 2014 CR 0007.

         {¶ 4} On February 27, 2014, appellant was arraigned and pled not guilty to the charge.

         {¶ 5} On August 18, 2014, appellant entered a guilty plea/intervention in lieu of conviction to the possession charge. Also on August 18, 2014, appellant was presented with and signed a "Waiver of Rights/Consent to Search" form ("waiver form"). Counsel for appellant signed the waiver form too. The waiver form stated, in pertinent part:

I have been advised that while subject to * * * Probation/ Intervention in Lieu of Conviction ("IILC") that there may exist times when the Erie County Adult Probation Department ("APD") may want to conduct a warrantless search or seizure of my property or my possessions or myself to ensure that I am in compliance with my * * * Probation/IILC. Further, that the APD's reasons to conduct such searches and seizures is based on a standard lesser than probable cause. It would be based on a reasonable suspicion standard. Additionally, that the conditions of my * * * Probation/IILC may require me to submit to warrantless searches and seizure of my property, my possessions, and myself * * *
I acknowledge that I am knowingly, intelligently, or voluntarily waiving my Constitutional Rights against warrantless searches and seizures by signing this Waiver of Rights/Consent to Search Form.

         {¶ 6} On November 13, 2014, the court accepted the guilty plea and found appellant was eligible for intervention in lieu of conviction. Appellant was sentenced to probation for a period not to exceed three years, beginning November 14, 2014, and was subject to numerous conditions. The court's judgment entry was filed on November 18, 2014.

         {¶ 7} On December 1 and 2, 2014, the Sandusky Police Department received anonymous complaints from a male caller on a drug tip hotline that appellant was in possession of approximately two ounces of cocaine and 13 pounds of medical marijuana concealed in five-gallon buckets. The tipster informed police that appellant was on probation and resided at a certain address on Harrison Street. Police had also received complaints, throughout the previous year, that appellant was involved in drug trafficking. Police contacted Erie County Probation and a probation officer confirmed that appellant was on probation and lived at that address. The probation officer requested that police assist in conducting a probation check at the Harrison Street home.

         {¶ 8} On the morning of December 3, 2014, appellant met with his probation officer and completed a monthly probation report. Appellant indicated he lived at the Harrison Street home ("the home") with his mother, who owned the home, and her husband.

         {¶ 9} Later on December 3, 2014, a probation officer and police arrived at the home and knocked on the door to conduct a check, pursuant to the authority granted under the waiver form. Appellant answered the door and was advised of the probation check of the home. Appellant was asked if anyone else was in the home, and he said no. However, as police and the probation officer walked up the stairs to appellant's second floor bedroom, appellant called out, "Holly, my probation officer is here." Holly Robuck, appellant's then-girlfriend, was in appellant's bedroom, trying to hide drugs in a clothes basket. Further searching revealed more drugs, empty buckets with green residue, a digital scale, money and paperwork. Both appellant and Robuck were detained.

         {¶ 10} Robuck was never charged with any crimes as a result of the search and seizure. However, appellant was charged with a probation violation as well as other crimes.

         {¶ 11} On October 27, 2017, appellant filed a motion to suppress the items seized by police as a result of the alleged unlawful search, seizure and arrest. Appellant claimed his Fourth Amendment rights were violated "because the information upon which [his] parole officer based the search was unreliable, due to its source and the police officer to whom it was conveyed." Appellant argued "the actual content of the tip is ultimately unknown, but certainly unreliable. The informant, according to several sources, had an improper relationship with the officer to whom she reported the tip." Appellant maintained "[w]ithout reasonable suspicion, the parole officer and especially the police violated [appellant's] Fourth Amendment right by searching his mother's house and his bedroom." The state opposed the motion.[1]

         {¶ 12} On August 1, 2018, a hearing was held and the trial court terminated appellant's intervention in lieu of conviction and sentenced him to 11 months in prison. On August 3, 2018, the court filed its judgment entry. Appellant did not file an appeal.

         Case No. 2014 CR 0609

         {¶ 13} In late December 2014, appellant was charged with possessing criminal tools. Thereafter, an indictment was found by the grand jury charging appellant with the following counts: Count 1-preparation of cocaine for sale (27.37 grams), a first-degree felony; Count 2-possession of cocaine (27.37 grams), a first-degree felony; Count 3-aggravated possession of drugs (13 tablets of Oxycodone), a fifth-degree felony; and Count 4-possession of drugs (2 tablets and 1 partial tablet of Hydrocodone), a fifth-degree felony. These charges originated out of the December 3, 2014 search. On February 11, 2015, the indictment was filed in the Erie County Court of Common Pleas, case No. 2014 CR 0609.

         {¶ 14} On February 26, 2015, appellant was arraigned and ...


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