State v. Messenger, 2010 Ohio 479 (Ohio App. 2/16/2010)
| Decision Date | 16 February 2010 |
| Docket Number | No. 9-09-19.,9-09-19. |
| Citation | 2010 Ohio 479 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Ryan Messenger, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Appeal from Marion County Common Pleas Court, Trial Court No. 08-CR-491.
Judgment Affirmed.
Kevin P. Collins for Appellant.
Brent W. Yager for Appellee.
{¶1} Defendant-appellant, Ryan Messenger1 (hereinafter "Messenger"), appeals the Marion County Court of Common Pleas' judgment of conviction and sentence. For the reasons that follow, we affirm.
{¶2} On November 26, 2008, Messenger was indicted on count one of weapons under a disability in violation of R.C. 2923.13(A)(2), a third degree felony, and count two of domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor. (Doc. No. 1). On December 1, 2008, Messenger was arraigned and entered pleas of not guilty to both counts. (Doc. No. 3).
{¶3} On December 23, 2008, the State filed a supplemental indictment charging Messenger with count three, a one-year firearm specification as to count one. (Doc. No. 11). On December 29, 2008, Messenger appeared pro se, was arraigned, and entered a plea of not guilty to count three of the amended indictment. (Doc. No. 13).
{¶4} On March 10, 2009, Messenger, pro se, filed a motion to suppress a four-page handwritten letter he had written to Keith Mabe, which was found at Mabe's residence, and an excerpt from Patrolman Isom's incident report. (Doc. No. 43).
{¶5} On March 19, 2009, the State filed a supplemental indictment charging Messenger with count three of theft in violation of R.C. 2913.02(A)(1), a third degree felony and count four of having weapons while under disability in violation of R.C. 2923.13(A)(2), a third degree felony. (Doc. No. 63).2
{¶6} On March 20, 2009, the court held a hearing on Messenger's motion to suppress evidence, and, on March 23, 2009, the trial court filed its entry denying the motion. (Doc. Nos. 51, 71). At the conclusion of the motion hearing, the State moved to dismiss count three of the supplemental indictment filed December 23, 2008, a one-year firearm specification as to count one, which motion was granted by the trial court. (Doc. No. 70).
{¶7} On April 2-3, 2009, the matter proceeded to a jury trial. The jury found Messenger guilty on count one of having weapons while under a disability and count two of domestic violence but not guilty on count three of theft. (Doc. Nos. 93-95).
{¶8} On April 8, 2009, the trial court sentenced Messenger to five (5) years imprisonment on count one and one hundred eighty (180) days on count two. (Apr. 8, 2009 Sentencing Hearing Tr. at 451); (Apr. 9, 2009 JE, Doc. No. 98). The trial court further ordered that these terms be served concurrently to each other. (Id.).
{¶9} On May 7, 2009, the trial court appointed appellate counsel, and Messenger filed his notice of appeal. (Doc. Nos. 101, 103). Messenger now appeals raising twelve assignments of error for our review. We elect to address some of Messenger's assignments of error out of the order they appear in his brief and to combine his assignments of error where appropriate.
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS HIS LETTER TO KEITH MABE.
{¶10} In his first assignment of error, Messenger argues that the trial court erred by denying his motion to suppress his letter to Keith Mabe. Specifically, Messenger asserts that he had capacity to challenge the search of Mabe's residence since he was an overnight guest. Alternatively, Messenger argues that Mabe never voluntarily consented to the search of his home. We disagree.
{¶11} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. See State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965.
{¶12} When reviewing a ruling on a motion to suppress, deference is given to the trial court's findings of fact so long as they are supported by competent, credible evidence. Burnside at ¶8. With respect to the trial court's conclusions of law, however, our standard of review is de novo and we must decide whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{¶13} Whether a defendant has standing to challenge the constitutionality of the search of a home depends upon "whether the defendant had an expectation of privacy in the home that society is prepared to recognize as reasonable." State v. Williams (1995), 73 Ohio St.3d 153, 166, 652 N.E.2d 721, citing Rakas v. Illinois (1978), 439 U.S. 128, 131, 99 S.Ct. 421, 424, 58 L.Ed.2d 387, 393, fn. 1, and State v. Steele (1981), 2 Ohio App.3d 105, 107, 440 N.E.2d 1353. However, "[t]he burden is upon the defendant to prove facts sufficient to establish such an expectation." Williams, 73 Ohio St.3d at 166. An overnight guest may have a reasonable expectation of privacy in another's home, but whether that expectation is reasonable depends upon the totality of the circumstances. Minnesota v. Olson (1990), 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85; State v. Coleman (1997), 118 Ohio App.3d 522, 525, 693 N.E.2d 825, citing Williams, 73 Ohio St.3d at 166.
{¶14} The evidence presented at the suppression hearing demonstrated that Messenger was Keith Mabe's childhood friend of seventeen (17) years. (Mar. 20, 2009 Tr. at 21). Mabe testified that he lived with his mother at 148 Kenmore Avenue (hereinafter the "residence" or "house"), but Messenger never "lived" at this residence. (Id. at 21-22). Mabe estimated that, at one point, Messenger was staying at the residence five to six (5-6) days per week, but the last time Messenger stayed there was the night before he was arrested, on November 24th or 25th of 2008. (Id. at 22, 24). Mabe testified that he consented to the search of the residence on January 25, 2009, and that the letter Messenger wrote to him (State's exhibit 1) was found during that search. (Id. at 23-24). Mabe further testified that Messenger had been at the residence twice within the past two (2) weeks prior to the suppression hearing, but Messenger did not stay overnight. (Id. at 24-25). Messenger did not have any specific room in the house nor did he have a dresser for his clothes, though Messenger may have left "a shirt or two there." (Id. at 25).
{¶15} On cross-examination, Mabe testified that, a year or two ago, Messenger was "pretty much living" at the residence. (Id. at 27). Mabe testified that he gave no restrictions on Messenger as a guest and that Messenger had permission to use any of the household items. (Id. at 27-28). Messenger washed and dried his clothes and took showers at the residence. (Id. at 28). Mabe testified that on the day of the search, January 23, 2009, Messenger was in jail. (Id. at 30). Mabe further testified that, on the day of Messenger's arrest, Messenger was moving into the residence but was ultimately arrested and unable to move in. (Id. at 32). On redirect, Mabe testified that, at the time of Messenger's arrest, he was living with Jessica Mullins. (Id. at 42). Messenger had his clothes and belongings at the apartment he shared with Mullins. (Id.). Mabe testified that Messenger did not have his belongings in the residence, except for a shirt or some miscellaneous items that Messenger left there. (Id. at 42-43).
{¶16} Based upon the totality of the circumstances, we cannot conclude that the trial court erred in finding that Messenger failed to establish standing to challenge the constitutionality of the search of Mabe's residence. The facts of this case are analogous to those in Williams, supra. Like the defendant-appellant in Williams, the residence searched belongs to another person (Mabe's mother); Messenger possibly had some personal items (one or two shirts) in the residence; and Messenger was staying somewhere else at the time of the search (jail). 73 Ohio St.3d at 166. Although there was evidence that Messenger was staying at Mabe's residence almost daily a year or two ago, for several months prior to the search Messenger was in jail and not an overnight guest in the house. The fact that Messenger was not an overnight guest at the time of the search is an important factor to consider. Williams, 73 Ohio St.3d at 166 () (emphasis added); State v. Davis (1992), 80 Ohio App.3d 277, 285, 609 N.E.2d 174 ().
{¶17} Aside from lacking a reasonable expectation of privacy in Mabe's residence, Messenger also lacked a reasonable expectation of privacy in the letter he sent through the U.S. postal service to Mabe. State v. Haberek (1988), 47 Ohio App.3d 35, 41-43, 546 N.E.2d 1361. "[A]n individual has no legitimate expectation of privacy when he reveals information to a third party on the assumption it will be used for only a limited purpose and the third party betrays such confidence and conveys the information to the government." Id., citing Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, citing U.S. v. Miller (1976), 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71. Furthermore, the letter at issue here was left on the kitchen counter outside its envelope in open sight available for anyone in the residence to read. Accordingly, Messenger did not have a "reasonable expectation of privacy" in the letter; and therefore, he lacked standing to challenge the search...
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