State v. Roger Dale Howell
| Decision Date | 17 November 1998 |
| Docket Number | 98-LW-4111,97 CA 824 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. ROGER DALE HOWELL, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: James R. Kingsley, 157 West Main Street Circleville, Ohio 43113.
COUNSEL FOR APPELLEE: Mark Ochsenbein, 266 East Main Street, Jackson Ohio 45640.
DECISION
This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The jury found Roger Dale Howell, defendant below and appellant herein, guilty of having a weapon while under a disability in violation of R.C 2923.13.
Appellant raises the following assignments of error for review:
Our review of the record reveals the following facts pertinent to the instant appeal. On March 10, 1997, Parole Officer Paul S. Koch conducted a search of appellant's residence, vehicle, and person.[1] Parole Officer Koch's search revealed two firearms. On May 20, 1997, the Jackson County Grand Jury returned an indictment charging appellant with having a weapon while under a disability in violation of R.C. 2923.13.
On October 30, 1997, the trial court held a hearing regarding appellant's motion to suppress evidence. Parole Officer Koch testified that he felt he had "reasonable cause" to search appellant's person, vehicle, and residence because appellant has a history of possessing firearms and illegal drugs. Furthermore, Parole officer Koch believed that he had reasonable cause to search because Linda Sickles, appellant's live-in companion, stated in a domestic violence complaint filed with Jackson County Sheriff's Deputy Matteson that appellant possessed marijuana and firearms.
The trial court denied appellant's motion to suppress evidence. The trial court found that appellant's history of possessing firearms and Sickles' assertion that appellant possessed firearms and marijuana supplied Parole officer Koch with reasonable cause to search appellant's person, vehicle, and residence.
On November 3, 1997, the trial court held a jury trial. During voir dire, the trial court excused one of the prospective jurors due to financial hardship. The juror informed the trial court that he is self-employed as a timber cutter and that he would not earn money were he to serve as a juror. The juror stated that each day he spends in court requires him to shut down his operation. Appellant objected to the juror's dismissal.
During the state's case-in-chief, Parole officer Koch testified that in 1994, a Texas court convicted appellant of a felony offense. Texas placed appellant on probation. Pursuant to the Interstate Compact, appellant relocated to Ohio, and in April of 1995, Koch began supervising appellant's probation. As part of appellant's conditions of probation, Koch informed appellant that a convicted felon cannot possess firearms.
Parole Officer Koch further testified that in August of 1995, law enforcement officers conducted a search of appellant's residence and seized several firearms. Although Koch believed appellant had violated the conditions of his probation, Texas did not revoke appellant's probation and appellant remained under Koch's supervision until August of 1996.[4] In February of 1997, Koch resumed supervising appellant's probation. Parole Officer Koch stated that on March 10, 1997, he searched appellant's vehicle and residence. Inside the vehicle, Koch discovered four shotgun shells and a twelve gage shotgun. Inside the residence, Koch found a twenty gage Remington shotgun. Koch noted that the twelve gage shotgun had been seized during the 1995 search.
Appellant testified in his defense. Appellant stated that
he understood that his conditions of probation prohibited him
from possessing firearms. Appellant claimed that shortly after
the 1995 seizure of his firearms, appellant spoke with Jackson
County Sheriff Greg Kiefer. Appellant testified that he had
advised Sheriff Kiefer that appellant had a contract to sell
three of the seized firearms to Larry Queen. Appellant asserted
that the sheriff had stated that he would honor appellant's
agreement to sell the three firearms. With respect to the
remaining firearms, appellant stated that Sheriff Kiefer had
informed appellant that the sheriff would "overlook [appellant]
having a gun out there." Appellant claimed that the sheriff
returned the firearms to appellant. Appellant further testified
that at the time the firearms were returned to him, appellant
knew that he was not permitted to possess firearms. Appellant
testified, however, that he believed the sheriff could give
appellant permission to possess firearms.
Near the conclusion of the trial, appellant filed proposed jury instructions. Appellant requested the court to instruct the
jury on the affirmative defense of entrapment. The trial court
found that appellant had failed to present sufficient evidence of
entrapment to warrant the instruction and denied appellant's
request to instruct the jury on entrapment.
On November 3, 1997, the jury found appellant guilty of having a weapon while under a disability.
On December 15, 1997, the trial court sentenced appellant to eleven months imprisonment. Appellant filed a timely notice of appeal.
In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. In support of his first assignment of error, appellant argues that law enforcement officers searched his home, vehicle, and other property without a warrant and that the state failed to establish any applicable exception to the warrant requirement. Additionally, appellant asserts that the state failed to establish that the searching officer had "reasonable cause" to search appellant's home vehicle, or person. Appellant contends that the searching officer based his "reasonable cause" to search upon the information of an unreliable and unverifiable informant.
The state asserts that the trial court properly denied appellant's motion to suppress evidence. The state contends that a law enforcement officer's "reasonable cause" to believe that a probationer is violating the terms of his probation supports warrantless searches of probationers.
Initially, we note that in a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988, 995; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584. Accordingly, a reviewing court must defer to the trial court's findings of fact if supported by competent, credible evidence. See Dunlap, supra; State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172, 1174. The reviewing court then must independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. See Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d at 1174; State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported.
The Fourth Amendment to the United States Constitution protects individuals against unreasonable governmental searches and seizures. In Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, the Supreme Court held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." See, also, State v. Sneed (1992), 63 Ohio St.3d 3, 67, 584 N.E.2d 1160, 1165; State v. Braxton (1995), 102 Ohio App.3d 28, 36, 656 N.E.2d 970, 975.
One of the exceptions to the warrant requirements exists when "`special needs' beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Griffin v. Wisconsin (1987), 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (quoting New Jersey v. T.L.O. (1985), 469 U.S 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (Blackmun, J., concurring)); see, also, Skinner v. Railway Labor Executives' Assn. (1989), 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639. In determining whether the warrant and probable-cause requirement are impracticable in a given set of circumstances, courts must "balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context." Skinne...
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