State v. Henson, 2006 Ohio 2861 (Ohio App. 5/31/2006)
| Decision Date | 31 May 2006 |
| Docket Number | No. 05CA13.,05CA13. |
| Citation | 2006 Ohio 2861 |
| Court | Ohio Court of Appeals |
| Parties | State of Ohio, Plaintiff-Appellee, v. Wayne Henson, Defendant-Appellant. |
Elizabeth E. Agar and R. Scott Croswell, III, Cincinnati, Ohio, for Appellant.
James B. Grandey, Prosecuting Attorney, and Shari L. Harrell, Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Wayne Henson, ("Appellant"), appeals from his conviction of aggravated possession of methamphetamine, in violation of R.C. 2925.11, after a bench trial in the Highland County Court of Common Pleas. Appellant alleges that the trial court 1) erred in overruling his motion to suppress evidence seized from the vehicle he was accused of operating at the time of his arrest; 2) erred to his prejudice in conducting a bench trial without a written waiver of his right to trial by jury and in failing to rule on his pretrial motion to suppress statements; and 3) erred to his prejudice when it denied counsel's motions for a verdict of acquittal and when it rendered a verdict of guilty which was not supported by the credible, admissible evidence. While we find Appellant's first assignment of error to be without merit, we nevertheless vacate Appellant's conviction based upon our finding that the trial court was without jurisdiction to conduct a bench trial absent a written waiver from Appellant. As such, Appellant's third assignment of error is rendered moot. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.
{¶2} The record reveals the following facts pertinent to this appeal. On September 18, 2004, a deputy observed an unoccupied vehicle parked at a vacant residence in Highland County. When the deputy observed Appellant exit a garage on the property, he asked Appellant for identification and inquired as to why he was on the property. Appellant stated that his name was Wayne Henson and his brother owned the property. The deputy then requested identification and conducted a LEADS check, which showed an active warrant for Appellant's arrest from Brown County, the same county in which the deputy was employed. Because these events occurred in Highland County, the deputy notified the Highland County Sheriff's Department and then placed Appellant under arrest. However, later information revealed the warrant had been issued mistakenly and was invalid. A summons, rather than a warrant should have been issued, as Appellant had already appeared and posted bond on the other prior charge.
{¶3} Despite Appellant's failure to admit to driving the vehicle and despite the fact that the vehicle was not registered to Appellant, the deputy obtained Appellant's consent to search the vehicle. Once the Highland County deputies arrived, a preliminary search of the vehicle was performed, which revealed a marijuana cigarette, as well as methamphetamine. A subsequent inventory search was conducted by another Highland County deputy prior to the vehicle being towed.
{¶4} As a result of the foregoing, Appellant was indicted and charged with aggravated possession of methamphetamine, in violation of R.C. 2925.11, a felony of the second degree. The indictment was later amended to a felony of the third degree. Appellant filed separate motions to suppress both his statement and evidence. Following a hearing on the motions, the trial court denied Appellant's motions to suppress.1
{¶5} The matter was set for jury trial on June 16, 2005. The morning of the scheduled trial, after a jury had been summoned, Appellant's counsel informed the court that Appellant wished to waive his right to jury trial and instead proceed with a trial to the court. Appellant orally waived his right to a jury trial and the court conducted a bench trial, ultimately finding Appellant guilty of the crime charged and sentencing Appellant to a two year term of imprisonment. As a result, Appellant filed his timely notice of appeal, assigning the following errors for our review.
{¶6} "I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE FROM THE VEHICLE HE WAS ACCUSED OF OPERATING AT THE TIME OF HIS ARREST.
{¶7} II. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN CONDUCTING A BENCH TRIAL WITHOUT A WRITTEN WAIVER OF DEFENDANT'S RIGHT TO TRIAL BY JURY AND IN FAILING TO RULE ON HIS PRETRIAL MOTION TO SUPPRESS STATEMENTS.
{¶8} III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE WHEN IT DENIED COUNSEL'S MOTIONS FOR VERDICT OF ACQUITTAL, AND AGAIN WHEN IT RENDERED A VERDICT OF GUILTY WHICH WAS NOT SUPPORTED BY CREDIBLE, ADMISSIBLE EVIDENCE."
{¶9} Appellant makes several arguments in support of his first assignment of error, which asserts that the trial court erred in overruling his motion to suppress evidence. Specifically, Appellant argues that 1) the trial court erred in finding that the only question raised by defendant's motion was whether the deputy's conduct was reasonable; 2) the court erred in finding that mere suspicion of criminal activity constituted "reasonable and probable cause to believe" that he was committing a felony; 3) his consent to search was not voluntary because it was elicited after an unauthorized arrest on an invalid warrant and was not preceded by Miranda warnings; 4) the search of the automobile after his arrest cannot be justified under the automobile exception to the warrant requirement when the officer had no probable cause to believe that evidence of a crime was contained in it; 5) the search of the automobile after his arrest cannot be justified as a routine inventory search under the circumstances; 6) the search of the automobile cannot be justified as incident to arrest without a valid basis for the arrest; 7) the search of the automobile cannot be justified by the "plain view" exception, because the officer's testimony indicated that he first arrested Appellant, then opened the car doors and searched inside before he saw any evidence; and 8) the arrest of Appellant and search of the automobile cannot be saved by the "good faith" exception, because the officers good faith reliance on an unlawful warrant doesn't supply probable cause for an arrest where none exists.
{¶10} In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 298 N.E.2d 137. Accordingly, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the legal standard set forth in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868.
{¶11} The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if the officer had a reasonable suspicion, based on specific and articulable facts, that criminal behavior has occurred or is imminent. Terry, supra; State v. Bird (1988), 49 Ohio App.3d 156, 551 N.E.2d 622. In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which would warrant an officer of reasonable caution in the belief that the action taken was appropriate, i.e., that the accused is engaged or about to engage in criminal activity. Terry, supra, 392 U.S. at 19-20.
{¶12} Appellant essentially challenges every stage in the entire process including the initial stop, subsequent detention and investigation arrest, consent to search and the ultimate search of the vehicle and seizure of evidence. Appellant's arguments in support of suppression of evidence begin with the premise that his initial stop was not justified, arguing that the facts here did not create in the deputy a reasonable suspicion necessary for the initial stop.2 Based upon the information contained in the record, we disagree.
{¶13} The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus; State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044, paragraph one of the syllabus; State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141. In the case at bar, the deputy relied on his personal knowledge that the residence involved was vacant. The deputy knew the residence to be vacant because he regularly visits some people that live in that area and he had also been called to a fire occurring at the residence sometime in 2003. Therefore, based on the totality of the circumstances, we believe the deputy was justified in initially stopping Appellant.
{¶14} Further, this court has held that "[n]o Fourth Amendment seizure occurs when a law enforcement officer "merely approach[es] an individual on the street or in another public place, * * * ask[s] him if he is willing to answer some questions, [or] * * * questions * * * him if the person is willing to listen * * * . State v. Bennett (June 21, 2000), Ross App. No. 99CA2509, 2000 WL 821616; citing Florida v. Royer (1983), 460 U.S. 491, 497, 103 S.Ct. 1319; see, also, Florida v. Bostick (1991), 501 U.S. 425, 434, 111 S.Ct. 2382 (). "Additionally, `no seizure occurs when police * * * ask to examine the individual's identification * * * so long as the officers do not convey a message that compliance with their requests is required." Bennett, supra, citing Bostick, 501 U.S. at 437; see, also, Royer, 460 U.S. at 501. Here, although Appellant was not on the street or in a public place, he was not the owner of the private property where the initial encounter occurred and therefore, did not enjoy a heightened expectation of privacy.
{¶15} Accordingly, we...
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