State v. Lumbus

• Decision Date: 04 February 2016
• Docket Number: No. 102273.,102273.
• Citation: 59 N.E.3d 580
• Parties: STATE of Ohio, Plaintiff–Appellee v. Brian LUMBUS, Jr., Defendant–Appellant.
• Court: Ohio Court of Appeals

59 N.E.3d 580

STATE of Ohio, Plaintiff–Appellee

v.Brian LUMBUS, Jr., Defendant–Appellant.

No. 102273.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 4, 2016.

John B. Gibbons, Cleveland, OH, for appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor by James D. May, Assistant Prosecuting Attorney, Cleveland, OH, for appellee.

Before: CELEBREZZE, P.J., KILBANE, J., and S. GALLAGHER, J.

FRANK D. CELEBREZZE, JR., P.J.

{¶ 1} Defendant-appellant, Brian Lumbus, Jr. (“Lumbus”), brings this appeal challenging his convictions in the trial court. Specifically, Lumbus argues that the trial court erred by (1) failing to suppress unlawfully obtained evidence and (2) permitting a police officer to offer expert opinions. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} A multi-agency investigation was launched after several bank customers complained that unauthorized or counterfeit checks had been drawn on their accounts. Bank investigators pursued internal leads and discovered that a bank call-center employee employed by Fifth Third Bank and U.S. Bank at the same time was conveying sensitive personal and financial information of bank customers to individuals in Cuyahoga County. Investigators determined that the recipients of the information wrote phony checks on customer accounts, opened “instant credit” accounts, and withdrew money from the accounts belonging to the victim-customers.

{¶ 3} On December 23, 2011, the Cuyahoga County Grand Jury charged Lumbus and 13 other defendants in a 222–count indictment. Relevant to the instant appeal, the Cuyahoga County Grand Jury charged Lumbus with Count 1 engaging in a pattern of corrupt activity, Count 2 conspiracy to engage in a pattern of corrupt activity, Count 3 conspiracy to engage in aggravated theft, Counts 4–5 aggravated theft, Counts 6–8 grand theft, Counts 22–34 identity fraud, Counts 54–59 identity fraud, Count 66 grand theft, Count 79 tampering with evidence, Count 105 attempted tampering with evidence, Count 106 obstructing justice, Counts 108–109 tampering with records, Count 127 identity fraud, Counts 137–138 identity fraud, and Count 222 possessing criminal tools with a forfeiture specification. Lumbus pled not guilty to the indictment.

{¶ 4} A jury trial commenced on February 26, 2014. On February 27, 2014, the trial court granted Lumbus's motion for a mistrial. The case was reassigned, and a second jury trial commenced on October 6, 2014.

{¶ 5} On October 1, 2014, the trial court held a hearing on Lumbus's motion to suppress (1) evidence discovered in his vehicle following a traffic stop and inventory search, and (2) evidence discovered in his grandmother's garage located at 7028 Roy Avenue in Cleveland, Ohio. The trial court determined that the traffic stop and the inventory search were lawful. Furthermore, although the trial court ruled that the search of the Roy Avenue garage was unlawful, the court ruled that Lumbus did not have standing to challenge the constitutionality of the search.

{¶ 6} Lumbus also moved to suppress evidence recovered when officers executed search warrants at 15678 Friend Avenue, in Maple Heights, Ohio, and 9501 Pratt Avenue, in Cleveland, Ohio. The trial court denied Lumbus's suppression motions.

{¶ 7} After resting its case, the state of Ohio dismissed Counts 6, 22, 24, 25, 30, 31, 79, 105, 108, 109, 127, 137, and 138. The trial court denied Lumbus's motion for a Rule 29(A) judgment of acquittal. Lumbus rested his case and the trial court denied his second motion for a Rule 29(A) judgment of acquittal.

{¶ 8} On October 30, 2014, the jury found Lumbus guilty of Counts 1, 2, 3, 4, 5, 7, 26, 27, 28, 29, 32, 34, 54, 55, 56, 57, 58, 59, 66, 106, and 222. The jury found Lumbus not guilty of Count 23. Furthermore, Count 33 was nolled.

{¶ 9} On November 5, 2014, the trial court held a sentencing hearing. The trial court imposed the following sentence: (1) ten years of imprisonment on Count 1; (2) nine months of imprisonment on Count 4, concurrent to Count 1; (3) nine months of imprisonment on Count 5, concurrent to Count 1; (4) nine months of imprisonment on Count 7, concurrent to Count 1; (5) nine months of imprisonment on Count 66, concurrent to Count 1; (6) nine months of imprisonment each on Counts 26, 27, 28, 29, 32, and 34, consecutive to each other and concurrent to Count 1; (7) six months of imprisonment each on Counts 54, 55, 56, 57, 58, and 59, with 55 concurrent to 56 and the remaining counts consecutive to each other and concurrent to Count 1; and (8) nine months of imprisonment on Count 222, concurrent to Count 1. The trial court imposed five years of mandatory postrelease control. Furthermore, the trial court imposed the following orders of restitution: (1) $234,776 to U.S. Bank; (2) $110,000 to Fifth Third Bank; (3) $29,500 to First Merit Bank; and (4) $63,700 to National City Bank and/or PNC Bank. The trial court credited Lumbus with 271 days of time served.

{¶ 10} Lumbus filed the instant appeal assigning four errors for review:

I. The trial court erred and denied [Lumbus] his right to due process of law by failing to suppress evidence and prohibit the introduction of evidence obtained unlawfully in a traffic stop by the Westlake Police Department.

II. The trial court erred and denied [Lumbus] his right to due process of law by failing to suppress and prohibit the introduction of evidence obtained unlawfully by the United States Secret Service and the Cuyahoga County Sheriff's Department in the search of Lumbus, vehicles associated with him and by the search of his grandmother's premises at 7028 Roy Avenue, Cleveland, Ohio 44104.

III. The trial court erred and denied [Lumbus] his right to due process of law by failing to suppress evidence obtained through defective search warrants not supported by probable cause.

IV. The trial court erred and denied Lumbus his right to due process of law by permitting an untrained and unqualified Bay Village patrol officer to offer expert opinions about his forensic analysis of the contents of various electronic storage devices.

II. Law and Analysis

A. Traffic Stop

{¶ 11} First, Lumbus challenges the constitutionality of the traffic stop, arguing that the officer's method of determining his speed was “suspect.” Lumbus further disputes the legality of the traffic stop, arguing that the police never issued him a speeding citation.

{¶ 12} Appellate review of a suppression ruling involves mixed questions of law and fact. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71. When ruling on a motion to suppress, the trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight of the evidence. See State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992) ; State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). An appellate court must accept the trial court's findings of fact as true if they are supported by competent and credible evidence. Burnside at ¶ 8. The appellate court must then determine, without any deference to the trial court, whether the facts satisfy the applicable legal standard. Id.

{¶ 13} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right to be free from unreasonable searches and seizures. State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). The United States Supreme Court has held that a traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

{¶ 14} The Fourth Amendment imposes a reasonableness standard upon the exercise of discretion by government officials. Delaware at 653–654, 99 S.Ct. 1391. Accordingly, “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 654, 99 S.Ct. 1391. To justify a particular intrusion, the officer must demonstrate “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 15} In the instant matter, we find that the police officer had a reasonable and articulable suspicion that Lumbus was speeding, in violation of R.C. 4511.21. R.C. 4511.21(D)(5) provides “[n]o person shall operate a motor vehicle * * * [a]t a speed exceeding the posted speed limit upon a highway[.]”

{¶ 16} Officer Jeremiah Bullins of the Westlake Police Department testified during the trial court's suppression hearing. Officer Bullins testified that he was on routine patrol on November 14, 2010. Officer Bullins testified that he was driving westbound on Interstate 90 when he observed a white Yukon Denali traveling westbound. Officer Bullins testified “[a]s [the driver] was passing me I could see he was going at a high rate of speed. He was passing other vehicles.” Officer Bullins testified that, in his opinion, the vehicle was operating in excess of the posted speed limit, a violation of R.C. 4511.21. Officer Bullins testified that he pulled behind the vehicle and paced the vehicle for approximately one mile from Clague Road to Columbia Road. Officer Bullins explained the method of pacing a vehicle to determine its speed:

A pace is when you keep equal distance between both vehicles and using our speedometers you can tell how fast the vehicle in front of you is going as long as you keep the equal distance.

I paced the vehicle at 72 miles per hour and I paced them from Clague Road to Columbia Road and initiated a traffic stop.

Furthermore, Officer Bullins explained that he did not, and could not, use his radar detector to determine the vehicle's speed because his patrol car was not...