State v. Rice, 2010 Ohio 531 (Ohio App. 2/16/2010)

• Decision Date: 16 February 2010
• Docket Number: No. 09-CA-0063.,09-CA-0063.
• Parties: State of Ohio, Plaintiff-Appellee, v. Vickey L. Rice, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2010 Ohio 531

State of Ohio, Plaintiff-Appellee, v. Vickey L. Rice, Defendant-Appellant.

No. 09-CA-0063.

Court of Appeals of Ohio, Fifth District, Licking County.

Date of Judgment Entry: February 16, 2010.

Criminal appeal from the Licking County Court of Common Pleas, Case No. 08-CR-474

Affirmed.

Kenneth Wayne Oswalt, By: Earl Frost, Licking County Prosecutor, 20 S. 2nd St., 4th Fl., Newark, OH 43055, for Plaintiff-Appellee.

Robert C. Bannerman, Box 77466, Columbus, OH 43207-0098, for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.

OPINION

GWIN, P.J.

{¶1} Appellant Vickey L. Rice appeals her conviction in the Licking County Court of Common Pleas for one count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(c), a felony of the third degree and one count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree. The appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On June 28, 2008, James Eckard called the Newark Police Department to request that an officer accompany him to the home of the appellant. Mr. Eckard requested the officer's presence while he removed his personal property from the residence. Mr. Eckard had also telephoned appellant and informed her of his plan.

{¶3} Mr. Eckard had been in jail for one hundred days prior to entering a halfway house on May 30, 2008. For approximately two months prior to going to jail, Mr. Eckard had been living at his mother's house. Mr. Eckard had only stayed at the appellant's residence for one month prior to going to live with his mother. He left the appellant's residence and moved in with his mother because he and appellant ended their relationship. Mr. Eckard did not sign any rental agreements for the residence. He did not have any keys to the appellant's home.

{¶4} The police officers arrived at the appellant's residence before Mr. Eckard. The officers knocked on appellant's door and informed appellant of the reason for their presence. A short time later, appellant, his daughter and the daughter's boyfriend arrived at appellant's home. Appellant and Mr. Eckard began to argue and everyone proceeded to enter the residence. The police alleged that appellant appeared to be animated, fidgety, and displayed other signs of narcotics use. Police inquired of appellant as to whether she was using drugs. Appellant responded that she was not.

{¶5} While inside the residence, the officers notice what appeared to be a bag of crack cocaine in the living room next to the television. Appellant denied the drugs were hers and gave the officers permission to search her home. In addition to the drugs that were found in plain view, the officers also recovered a bag of crack cocaine from inside a purse, digital scales and another bag of white powder, a metal rod, metal screens and a chore boy. These items were not in plain view.

{¶6} Upon testing, the contraband was found to be Schedule II Controlled substances: 6.2 grams of Crack Cocaine and .17 grams of Methamphetamine.

{¶7} Appellant was indicted on two felony counts: Count 1, Possession of Crack Cocaine, in violation of R.C. 2925.11(A)(C)(4)(c), a felony of the 3rd degree, punishable by a maximum term of 5 years in prison, and a maximum fine of $10,000; Count 2, Aggravated Possession of Drugs, in violation of R.C. 2925.11(A) (C) (1) (a), a felony of the 5th degree, punishable by a maximum term of 1 year in prison, and a maximum fine of $2,500. Each Count carried a mandatory driver's license suspension of between 6 months and 5 years.

{¶8} Appellant filed a motion to suppress; the State filed a response, and on October 21, 2008, the trial court conducted an evidentiary hearing on the motion. By Judgment Entry filed January 5, 2009, the trial court overruled appellant's motion to suppress.

{¶9} Appellant then changed her not guilty plea to one of no-contest. The trial court found appellant guilty and sentenced her to 2 years on Count 1 and 9 months on Count 2, with each count running consecutively to each other, and consecutively with Licking County Common Pleas Court case No. 08-CR-0524. Appellant was also placed on 3 years of post-release control.

{¶10} Appellant timely appealed and raises the following three assignments of error for our consideration:

{¶11} "I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE.

{¶12} "II. WITH RESPECT TO JOINT PROPERTY APPELLANT'S CONVICTION FOR POSSESSION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR INSUFFICIENT AS A MATTER OF LAW.

{¶13} "III. APPELLANT'S FOURTH AMENDMENT AND OHIO ARTICLE 1 SECTION 14 RIGHTS WERE VIOLATED."

I & III.

{¶14} In her first assignment of error, appellant argues that the trial court erred in denying her motion to suppress. In her third assignment of error appellant contends that her fourth amendment rights were violated. Because we find the issues raised in appellant's first and third assignments of error are closely related, for ease of discussion we shall address the assignments of error together.

{¶15} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 485; State v Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, "... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."

{¶16} The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects. Illinois v. Rodriguez (1990), 497 U.S. 177, 181, 110 S.Ct. 2793, (citing Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, and Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367). The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, Id. (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041), or "from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected," United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988. See also United States v. Ayoub (6th Cir 2007), 498 F.3d 532, 537.

{¶17} In United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988, the United States Supreme Court held that a third party with common authority over the premises can consent to a search. In fn. 7, the Matlock court explained "common authority" as follows:

{¶18} "Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

{¶19} This rule was extended in Illinois v. Rodriguez (1990), 497 U.S. 177, 110 S.Ct. 2793, wherein the United States Supreme Court held at paragraph two of the syllabus, "A warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not."

{¶20} As noted in Rodriquez at 186, the standard is one of reasonableness:

{¶21} "As we put it in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949):

{¶22} "`Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.'

{¶23} "We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search. Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply...