State v. Braxton

• Decision Date: 21 March 1995
• Docket Number: No. 66859,66859
• Citation: 656 N.E.2d 970,102 Ohio App.3d 28
• Parties: The STATE of Ohio, Appellee, v. BRAXTON, Appellant. *
• Court: Ohio Court of Appeals

Page 28

102 Ohio App.3d 28

656 N.E.2d 970

The STATE of Ohio, Appellee, v. BRAXTON, Appellant. ^*

No. 66859.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided March 21, 1995.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty. and Jeffrey H. Margolis, Asst. Pros. Atty., for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

NUGENT, Judge.

This is an appeal from a judgment of conviction from the Cuyahoga County Court of Common Pleas stemming from a jury verdict finding defendant-appellant, Charles Braxton, guilty, as indicted, of receiving stolen property, a motor vehicle, in violation of R.C. 2913.51, together with a violence specification.

The facts as adduced from appellant's jury trial are set forth as follows:

On April 23, 1993, Steve Vukmer, appellant's parole officer, visited appellant's home as part of a regularly scheduled visit and in response to a conversation with a drug counsellor at the CAAA drug treatment program. As is customary, Vukmer was accompanied by Kenneth McAllister, another parole officer.

As Vukmer and McAllister knocked on the side door of appellant's house, they observed a car parked behind the house in a grassy area of the driveway. According to Vukmer, appellant answered the door and gave Vukmer and McAllister permission to go inside. Vukmer testified that as a condition of parole, appellant had signed, on two separate occasions, a conditional release form which stated the following:

"9. I agree to a search without warrant of my person, my motor vehicle, or any place of residence by a parole officer at any time."

Once inside, Vukmer spoke to appellant about the conditions of his parole. As Vukmer spoke with appellant, McAllister noticed automobile parts scattered throughout the house. McAllister observed a tool box and parts to a luggage rack lying in the kitchen, as well as hubcaps, a radiator and other auto parts scattered elsewhere in the house. McAllister also noticed that appellant's hands were greasy and that appellant had a greasy bandage on his thumb. Both witnesses further testified that they observed a dark, oil-based cleaning solvent inside a bathtub in a bathroom off the kitchen.

After McAllister brought his observations to Vukmer's attention, McAllister took the pieces of the luggage rack and went outside to check on the car behind the house. McAllister testified that the luggage rack made a perfect fit with the car. McAllister stated that the screw holes of the luggage rack fitted perfectly with the holes on the car and that the rust and dirt lines of the luggage rack matched those on the car.

Vukmer testified further as to the condition of the car. He stated that the car was on blocks, the wheels were missing, the steering column was peeled, the key hole was punched out, the car was stripped, and the hood was partially open. Moreover, both witnesses testified that the car was very close to appellant's home. Vukmer stated the car was within five feet of appellant's house. McAllister added that the back of appellant's house was approximately three car lengths from another house, which shared the driveway with appellant's house. Both witnesses added that the car was clearly in appellant's yard.

McAllister then obtained the car's vehicle identification number and ran the number through the LEADS computer. Through the computer, McAllister learned that the car had been reported stolen on March 16, 1993. The Cleveland Police Department was then contacted. Vukmer and McAllister then placed appellant under arrest and read him his constitutional rights.

Cleveland Police Officers Diane Elfers and Tanya Allen responded to the scene. Officer Elfers independently confirmed that the luggage rack fitted the car and further ran the VIN through the LEADS computer, confirming that it had been stolen. Officer Elfers added that she could barely get between the house and the car to check the VIN because the car was so close to appellant's house. Officers Elfers and Allen placed appellant under arrest, confiscated the luggage rack and had the car towed.

Appellant stipulated that the car was, in fact, stolen. After moving unsuccessfully for a judgment of acquittal pursuant to Crim.R. 29, appellant called his sixteen-year-old stepson, Eugene Rodgers, as his sole witness. Eugene testified that he found the luggage rack lying outside the house and brought it inside. Eugene stated, "I probably thought I could sell them or something, find some kind of use out of them." Eugene never saw his stepfather with the luggage rack nor did he ever see his stepfather around the car. For that matter, Eugene claimed that he did not know when the car arrived in his back yard nor did he even know the car was in his back yard.

On cross-examination, Eugene acknowledged that he had known the car was probably stolen. He further testified that his father had never threatened or harmed him, although Eugene did admit to talking to appellant's parole officer about illegal activity in the household. Eugene further denied speaking with appellant's parole officer in February 1993.

As a rebuttal witness, Vukmer then testified, over objection, that he spoke with Eugene on February 2, 1993. Eugene told Vukmer that appellant was terrorizing the household and spending rent money on substances other than household goods, and had threatened Eugene and thrown his stereo across the room.

Based on the foregoing, the jury found appellant guilty of receiving stolen property, a motor vehicle. Appellant further stipulated before the trial court to the specification of a prior crime of violence. The trial court then sentenced appellant to a term of incarceration of four to ten years. Appellant timely appeals, raising the following assignments of error for our review:

"I. The defendant was denied due process of law when the court overruled his motion to suppress evidence by reason of the search conducted by parole officers.

"II. The defendant was denied due process of law when the court did not grant a motion to suppress with respect to the unlawful search by the police officers for the city of Cleveland.

"III. The defendant was denied a fair trial when the prosecutor improperly cross-examined defense witness, Eugene Rodgers, on immaterial and inadmissible matters.

"IV. The defendant was denied a fair trial when the court permitted a rebuttal witness, Steve Vukmer, to testify concerning conversations with Eugene Rodgers which sought to bring out other bad acts of the defendant.

"V. The defendant was denied due process of law when he was not furnished discovery concerning alleged statements and the prosecutor was allowed to use these statements at trial.

"VI. The defendant was denied a fair trial by reason of improper argument by the prosecutor.

"VII. The defendant was denied due process when the court would not instruct upon the lesser included offense of possession of automobile parts.

"VIII. The defendant was denied due process of law when the jury was misinformed concerning critical elements of the offense and reasonable doubt.

"IX. The defendant was denied due process of law when the court refused to answer a jury question and responded it [sic ] in a misleading manner.

"X. The defendant was denied due process of law when the court overruled motions for judgment of acquittal.

"XI. The defendant was denied effective assistance of counsel by reason of errors and omissions of counsel."

I

In appellant's first and second assignments of error, he argues that the trial court erred in overruling his motion to suppress. Appellant contends that both the parole officers and the police officers violated his Fourth Amendment right to be free from unreasonable searches and seizures.

It is well settled that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585; State v. Sneed (1992), 63 Ohio St.3d 3, 6-7, 584 N.E.2d 1160, 1165; see, also, Arkansas v. Sanders (1979), 442 U.S. 753, 759-760, 99 S.Ct. 2586, 2590-2591, 61 L.Ed.2d 235, 241-242. One such recognized exception is a search to which consent is voluntarily given. United States v. Matlock (1974), 415 U.S. 164, 165, 94 S.Ct. 988, 990, 39 L.Ed.2d 242, 246; Sneed, supra.

It is further well settled that consent to a warrantless search will not be held invalid nor the resulting search unreasonable when one with authority over the premises voluntarily permits the search. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Sneed, supra; State v. Morris (1988), 48 Ohio App.3d 137, 548 N.E.2d 969, paragraph two of the syllabus. The Fourth Amendment protection against unreasonable searches and seizures is less stringent, however, when applied to probationers or parolees if a warrantless search is conducted pursuant to a valid state regulation. Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709; Latta v. Fitzharris (C.A.9, 1975), 521 F.2d 246, 250.

In the present case, it is undisputed that appellant agreed to the rules and regulations contained on the conditional release form, which he had signed on two separate occasions. In the conditional release form, appellant consented "to a search without warrant of my person, my motor vehicle, or my place of residence by a parole officer at any time." Such conditions to probation or parole are clearly related to the "interests of doing justice, rehabilitating the offender, and insuring his good behavior." State v. Jones (1990), 49 Ohio St.3d 51, 53, 550 N.E.2d 469, 470. Moreover, a consensual search pursuant to such conditions and regulations has been upheld as being an exception to the warrant requirement. See State v. Carter (June 28, 1993), Stark App. No. CA-9102, unreported, 1993 WL 274293...