State v. Jackson
| Decision Date | 29 November 2012 |
| Docket Number | Case No. 2012-CA-20 |
| Citation | 2012 Ohio 5548 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. GREGORY JACKSON Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
OPINION
For Plaintiff-Appellee
JOHN NIEFT
Assistant Prosecuting Attorney
For Defendant-Appellant
EDWIN VARGAS
Vargas Law Firm
The Gehring Building
{¶1} Appellant Gregory L. Jackson ("Jackson") appeals from the March 7, 2012 judgment entry of the Richland County Court of Common Pleas convicting him of two counts of Having Weapons While Under a Disability felonies of the third degree in violation of R.C. 2923.13 and one count of Possession of Heroin, in an amount exceeding ten grams but not exceeding 50 grams, a felony of the second degree in violation of R.C. 2925.11(A). Plaintiff-appellee is the State of Ohio.
{¶2} Jackson was released on parole in September 2010 from prison after serving 20 years for murder. Parole officer Kenneth Kaufman ("Kaufman") supervised him. Jackson moved recently to 628 Johns Avenue with his wife Tonya Jackson. ("Tonya").
{¶3} About August 16, 2011, Gerado Wilson called 9-1-1 to report that a man named "Greg" whose nickname was "Dirty" robbed him at gunpoint. He said that Greg had been recently released from prison after serving 20 years for murder. Wilson described his assailant's car.
{¶4} On the morning of August 17, 2011, a caller who refused to give his identity called 9-1-1 to say he had just seen a man get out of a maroon Chevrolet Suburban .brandishing a gun on Johns Avenue. He also gave the license plate number on the car as FGS 8760.
{¶5} The police dispatcher ran the license number and it came back to a red Chevrolet Suburban owned by Jackson, who had the alias "Dirty." When officers were dispatched to the scene, the dispatcher reminded them the likely connection betweenthe armed robbery reported the previous day and the man with a gun on Johns Avenue to which they were dispatched.
{¶6} Officers also asked that Jackson's parole officer be contacted to assist them. The dispatcher arranged for Kaufman to come to the scene. The officers found Jackson's Suburban parked on Johns Avenue near 638 and 642 Johns Avenue, but were not sure in which house Jackson could be found. They also feared to enter with an armed suspect. Officers obtained Jackson's telephone number from Kaufman and called the number in an attempt to have Jackson come out of the house.
{¶7} The police called three times and spoke to both Jackson and Tonya. Shortly thereafter, a police officer who had been stationed behind the houses saw Jackson stick his head out the side door at 628 Johns Avenue. Jackson sprinted away when he saw the officer. Jackson ran into Kaufman and a police officer before he could get more than 20 feet from the door. They arrested Jackson and placed him in a cruiser.
{¶8} Jackson had come out of the house without the reported gun, and officers knew there was at least one additional person in the house. They decided to do a "protective sweep" through the house to see if there was anyone else in the house.
{¶9} The officers brought Tonya out on the porch of the home while officers looked through the first and second floor and the basement. No other persons were found, and no incriminating evidence was discovered. The house was full of boxes and totes filled with household goods, showing evidence of a recent move.
{¶10} Parole office Kaufman had been instructed by his supervisor to search the house from top to bottom for the gun under the parole officer's authority to search a parolee's residence. Officer Rich Miller recognized Tonya from a previous encounterand began talking to her. He explained to her that they had to search for the gun described in the reports and asked her permission to search. Tonya said she did not want all the drawers and boxes in her house dumped out on the floor. Officer Miller promised her they would not do that.
{¶11} Officer Miller called the dispatcher to have a consent to search form sent to the house. Officer Miller reviewed the consent form with Tonya. Tonya filled in her name and address at the top and signed the consent form. Officer Miller filled in the date and witnessed Tonya's signature.
{¶12} During the search of the house, in Jackson's bedroom, Officer Vanosdale found a backpack with a handgun and drugs as well as a shaving kit with another handgun. Bill Adams of the Mansfield Police Department Crime Laboratory was then called to the scene to photograph and seize the evidence, which he did. Also found inside the backpack in Jackson's bedroom was latex gloves, bullets, scales, and various small bags.
{¶13} The guns were found to be operable. The drugs found were tested and found to be 6.16 grams of marijuana and 11.85 grams of heroin.
{¶14} Jackson was indicted by the Richland County Grand Jury on three counts. Jackson moved to suppress the evidence found in the search due to a lack of reasonable suspicion for Kaufman to authorize a search and lack of voluntary consent from Tonya.
{¶15} During the suppression hearing Jackson presented evidence from a neighbor who testified that she had seen and heard the Mansfield Police Department kick in the door to Jackson's home from a few houses down. Tonya testified the frontdoor was locked with a deadbolt and that the police kicked in the door. She brought in photos, which do not show a deadbolt but only a standard latch strike plate in a splintered and badly deteriorated doorframe. Tonya further testified that she signed the form under duress and without knowledge of its contents. Tonya testified that Officer Miller told her that if she did not sign the form she would go to jail. In fact, she testified that she told the police while she was on the porch of her house that she did not want them to search her house without a warrant. Tonya also admitted completing and signing the consent form, as well as verbally confirming that information in a tape-recorded statement taken by Officer Miller.
{¶16} By Judgment Entry filed February 28, 2012, the trial court overruled Jackson's motion to suppress. After a two-day trial, the jury returned with verdicts of guilty on all charges. On March 7, 2012, Jackson was sentence to eight years on Count Three possession of heroin in excess of 10 grams in violation of R.C. 2925.11, a felony of the second degree and to three years on Counts One and Two violations of having a weapon while under disability, in violation of R.C. 2923.13, felonies of the third degree. All counts were to be served concurrently, for an aggregate sentence of eight years.
{¶17} Jackson raises five assignments of error,
{¶18} "I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS WHEN THE APPELLANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED BY A WARRANTLESS SEARCH.
{¶19} "II. THE TRIAL COURT ERRED IN ADMITING [SIC.] THE TESTIMONY RELATED TO THE LAB RESULTS OF TESTS PERFORMED WITHOUT THE
TESTIMONY OF THE ACTUAL LAB TECHICIAN [SIC.] WHO CONDUCTED THE TESTS VIOLATING THE DEFENDANTS RIGHT TO CONFRONTATION.
{¶20} "III. THE APPELLANT'S TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO THE TESTIMONY OF ADAMS AND ADMISSION OF TESTIMONY RELATED TO THE LAB RESULTS OF TESTS PERFORMED WITHOUT THE TESTIMONY OF THE ACTUAL LAB TECHICIAN [SIC.] WHO CONDUCTED THE TESTS.
{¶21} "IV. APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22}
I.
{¶23} Jackson contends that the trial court erred by overruling his motion to suppress. Jackson argues that his motion to suppress evidence was improperly overruled because 1). The Mansfield Police Department did not have probable cause; 2). The consent granted by Tonya Jackson was not voluntary, and 3.) Kaufman did not have a reasonable suspicion to support a search and in fact, he did not conduct a search.
{¶24} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 2003-Ohio-5372, ¶8. When ruling on a motion to suppress, the trial court assumes the role oftrier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988(1995); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583(1982). Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra. However, once an appellate court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, also, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.
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