State v. Abernathy, 2008 Ohio 2949 (Ohio App. 6/6/2008)
| Decision Date | 06 June 2008 |
| Docket Number | No. 07CA3160.,07CA3160. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Percy J. Abernathy Iii, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
David H. Bodiker,2 Ohio Public Defender, and Jeremy J. Masters, Assistant State Public Defender, 8 East Long Street, 11th Floor, Columbus, Ohio 43215, Attorney for Appellant1.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, 602 Seventh Street, Room 310, Portsmouth, Ohio 45662, Attorney for Appellee.
DECISION AND JUDGMENT ENTRY
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. The jury found Percy Abernathy, defendant below and appellant herein, guilty of: (1) first-degree felony drug possession in violation of R.C. 2925.11(A); (2) first-degree felony drug trafficking in violation of R.C. 2925.03(A)(2); (3) fifth-degree felony drug possession in violation of R.C. 2925.11(A); and (4) possession of criminal tools in violation of R.C. 2923.24(A).
{¶ 2} Appellant raises the following assignments of error for review:
{¶ 3} On August 27, 2006, a confidential informant contacted Portsmouth Police Department Narcotics Investigator Todd Bryant to advise him that a man named "P" planned to be in town to deliver drugs. The informant agreed with the police to arrange a drug transaction with "P" and placed an unmonitored phone call to "P." "P" requested that the informant meet him in Rosemount. The informant discussed the meeting location with law enforcement officers, and the officers requested that he call "P" back and request that they meet in the Kroger parking lot on Gay Street. The informant then called "P" and asked that he meet him at the Kroger parking lot.
{¶ 4} Approximately ten to fifteen minutes after the last phone call, the man the informant identified to officers as "P" entered the Kroger parking lot and circled the lot about three times as if he were "looking for someone." The officers then decided to stop "P's" vehicle. "P," later identified as appellant, exited the vehicle and Portsmouth Police Investigator Steven Timberlake performed a pat-down search for weapons. He discovered a small plastic bag containing marijuana in appellant's pants pocket. The officers then handcuffed appellant and searched his vehicle. The search uncovered crack cocaine, among other items.
{¶ 5} The Scioto County Grand Jury returned an indictment charging appellant with: (1) first-degree felony possession of cocaine; (2) first-degree felony trafficking in crack cocaine; (3) fifth-degree felony possession of cocaine; (4) tampering with evidence; and (5) possession of criminal tools.
{¶ 6} Subsequently, appellant filed a motion to suppress evidence. He asserted that "his detention and arrest were made without probable cause." On May 4, 2007, the trial court held a suppression hearing.
{¶ 7} At the hearing, Investigator Bryant testified that on the evening of August 27, 2006 the informant called appellant on appellant's cell phone to arrange for appellant to deliver crack cocaine. The informant arranged for appellant to meet him at the Kroger parking lot. Law enforcement officers set up surveillance and the informant remained in a vehicle with officers. Approximately ten to fifteen minutes after the informant's last phone call to appellant, appellant arrived at the Kroger parking lot in a green Chevrolet Trailblazer with Kentucky registration. Investigator Bryant explained that when appellant arrived, Investigator Bryant stated that after appellant exited the vehicle, Officer Timberlake conducted a pat-down search of appellant. After the pat-down search revealed marijuana, the officers searched appellant's vehicle and discovered approximately fifty grams of crack cocaine in the vehicle.
{¶ 8} Investigator Bryant also explained that he knew the informant, that he had worked with him in the past, and that the informant had proved to be reliable. Investigator Bryant further noted that the informant had purchased drugs from appellant in the past.
{¶ 9} The prosecution argued that Investigator Bryant's testimony demonstrated that the officers possessed probable cause to stop appellant's vehicle. The trial court agreed and overruled appellant's motion to suppress.
{¶ 10} At the jury trial, the confidential informant testified that on August 27, 2006, he contacted Investigator Bryant about making a drug purchase from appellant. He stated that he met appellant about a year earlier and that he frequently purchased crack cocaine from him. The informant stated that he probably purchased drugs hundreds of times from appellant during the past year. The informant explained that on August 27, 2006 he called appellant and told him that he wanted to purchase a $100 bag of crack cocaine. Appellant told him to meet him in Rosemount. They eventually agreed to meet at the Kroger parking lot. He and Investigator Bryant waited in a van in the parking lot and about ten minutes later appellant appeared. The informant stated that he could not predict what type of vehicle appellant would be driving because appellant usually drove rental vehicles, which meant that he showed up with different vehicles almost every time.
{¶ 11} Investigator Timberlake testified that after the officers stopped appellant's vehicle, he ordered appellant to exit the vehicle and patted him down for weapons. While patting him down, Investigator Timberlake felt a plastic baggie in his cargo pocket, which he believed contained drugs. The officer removed the baggie from appellant's pocket and discovered that it contained marijuana. At that point, the officers handcuffed appellant and searched his vehicle.
{¶ 12} After the state rested, appellant's counsel objected to "everything being introduced in to evidence." He asserted: The court stated that it had previously ruled on the issues.
{¶ 13} The jury found appellant guilty of: (1) first-degree felony possession of cocaine; (2) first-degree felony trafficking in crack cocaine; (3) fifth-degree felony possession of cocaine; and (4) possession of criminal tools, but not guilty of tampering with evidence.
{¶ 14} On May 18, 2007, the trial court sentenced appellant to serve: (1) a mandatory nine-year prison term on the first-degree felony possession of cocaine offense; (2) a mandatory nine-year prison term on the trafficking charge; (3) twelve months for the fifth-degree felony drug possession charge; and (4) twelve months for the possession of criminal tools charge. The court also ordered the sentences to be served consecutively for a total sentence of twenty years. This appeal followed.
{¶ 15} In his first assignment of error, appellant argues that the trial court erred by denying his motion to suppress evidence. In particular, he asserts that the law enforcement officers lacked reasonable, articulable suspicion of criminal activity sufficient to justify a stop of his vehicle. Specifically, appellant contends that the informant's tip was not sufficiently reliable to justify the stop. Appellant additionally argues that the trial court erred by failing to suppress the evidence uncovered as a result of the frisk. He contends that the officers lacked reasonable suspicion that he was armed and dangerous.
{¶ 16} The prosecution asserts that the officers possessed probable cause that appellant was trafficking in drugs and, thus, their stop of appellant's vehicle did not violate the Fourth Amendment prohibition against unreasonable seizures. The prosecution then asserts that because the officers possessed probable cause to seize appellant, they also possessed probable cause to search him.
{¶ 17} Our analysis begins with the well-settled premise that appellate review of a trial court's decision on a motion to suppress evidence involves mixed questions of law and fact. See, e.g., State v. Book, 165 Ohio App.3d 511, 847 N.E.2d 52, 2006-Ohio-1102, at ¶9; State v. Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1. In hearing such motions, trial courts assume the role of trier of fact and are in the best position to resolve factual disputes and to evaluate witnesses credibility. See, e.g., State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, 2003-Ohio-5372, at ¶8; State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Appellate courts must accept a trial court's factual findings so long as competent and credible evidence supports those findings. See, e.g., State v. Metcalf (1996), 111 Ohio App.3d 142, 145, 675 N.E.2d 1268; State v. Harris (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7. Appellate courts then independently review whether the trial court properly applied the law to the facts. See, e.g., Book, supra at ¶9; State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141. With these principles in mind,...
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