State v. Tabasko

• Decision Date: 15 April 1970
• Docket Number: No. 69-385,69-385
• Citation: 51 O.O.2d 64,22 Ohio St.2d 36,257 N.E.2d 744
• Parties: , 51 O.O.2d 64 The STATE of Ohio, Appellee, v. TABASKO, Appellant.
• Court: Ohio Supreme Court

Page 36

22 Ohio St.2d 36

257 N.E.2d 744, 51 O.O.2d 64

The STATE of Ohio, Appellee, v. TABASKO, Appellant.

No. 69-385.

Supreme Court of Ohio.

April 15, 1970.

Syllabus by the Court

In a criminal prosecution, the allegedly erroneous admission in evidence of items unlawfully seized is harmless beyond a reasonable doubt and does not provide grounds for reversal of the conviction where the pertinent testimony of witnesses at the trial is not the product of such seizure and is overwhelmingly sufficient to independently establish the elements of the offense beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.)

The facts material to the issues presented in this appeal, as disclosed by the record before us, are substantially as follows:

Appellant, Charles A. Tabasko, Jr., leased a 15-room house at 244 North Enterprise Street in Bowling Green for the purpose of providing a residence for himself and others who rented rooms in the house.

On June 28, 1967, a search warrant was issued upon the affidavit of a police office of the Bowling Green Police Department, authorizing the search of Tabasko and the residence for narcotics.

The warrant stated that the officer had good cause to believe that the offense of possession of narcotics and implements used for administration of narcotics was being committed and that cause was based upon:

'1. Information from a police investigation.

'2. Information received also from a reliable police informant.

'3. Also information received from other reliable sources.'

At approximately 10:00 p. m. on June 28, 1967, the residence was entered through unlocked or open doors by law enforcement officers from the Bowling Green Police Department, the Federal Bureau of Narcotics, the Wood County Sheriff's office, the Bowling Green University Police Department, the Ohio Bureau of Narcotics and the Wood County Prosecuting Attorney's office.

When the police entered the premises, appellant was out of town. However, at that time the house was occupied by six or seven people, including Miss Susan Hird, James Meyers and John Betchik.

A systematic search of the premises turned up packets of marijuana, cigarette butts containing marijuana, pipes containing marijuana, marijuana seeds, ashtrays containing marijuana, a list of 'things to be done' by the residents during appellant's absence and a copy of the lease.

As a result of this search, Hird, Betchik and Meyers, all of whom were residents of the house, pleaded guilty to charges of unlawful possession of narcotic drugs.

Appellant was indicted for violation of R.C. 3719.101.

Appellant's pretrial motion to suppress 'any evidence seized on or about the 28th day of June, 1967, on or about the premises at 244 North Enterprise Street, Bowling Green, Ohio,' was overruled by the trial court.

Appellant was tried alone before a jury. The items seized in the search of the house were admitted in evidence. Hird, Meyers and Betchik testified and their testimony indicated that the house was run as a community enterprise, and that marijuana was used in the house with regularity.

The jury returned a verdict of guilty, and judgment was entered thereon. Appellant appealed to the Court of Appeals, which affirmed the judgment.

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

Daniel T. Spitler, Pros. Atty., for appellee.

Gerald A. Messerman, Cleveland, for appellant.

CORRIGAN, Justice.

The first question to be determined in this appeal is appellant's claim that the trial court erred in admitting in evidence at his trial the items seized during the search of the house. Appellant urges that the seizure was unlawful, because the search warrant was based upon an affidavit which was invalid because it lacked facts establishing probable cause and that the contemporaneous arrest of some of the occupants of the house did not validate the search and seizure.

At the outset, we note that appellant in this case was not charged with possession of narcotics himself but rather with violation of R.C. 3719.101, which provides:

'No person shall knowingly permit the use of any store, shop, warehouse, dwelling house, vehicle, boat, aircraft, or any other place whatever owned or controlled by him for the illegal keeping, dispensing, or administering of narcotic drugs.'

Under that statute, as applicable to this case, it was necessary for the state to establish that appellant knowingly permitted the use of the dwelling house for the illegal keeping or administering of narcotics and that the dwelling house was controlled by him.

In seeking to establish those elements, the state presented three witnesses who were occupants of the house and each of whom had previously entered pleas of guilty to charges of unlawful possession of narcotic drugs.

Following are excerpts from the testimony of those witnesses.

James R. Meyers, who moved into the home on June 1, 1967, testified:

'Q. Is this your pipe?

'A. Yes.

'Q. And did you smoke marijuana in it?

'A. I believe I did.

'Q. Did other persons use that pipe to smoke marijuana during the time you lived at 244 North Enterprise?

'A. Yes.

'Q. Who?

'A. Everybody living in the house except Carl Holloway.

'Q. Does that include Charles A. Tobasko (sic)?

'A. Yes, it does.

'Q. When did Charles A. Tobasko (sic) use it in your presence?

'A. As for a certain date, I couldn't tell you. I know he has smoked in my presence.

'Q. How many occasions if you have an estimate?

'A. Two that I can remember. That's all.

'Q. Were these prior to the raid, but after June one?

'A. Yes, that's right.

'Q. Were they at 244 North Enterprise?

'A. Yes.

'Q. Did you ever have occasion to smoke in different rooms of the house other than your own?

'A. Yes.

'Q. What rooms of the house did you smoke in?

'A. We used to sit in the upstairs kitchen sometimes. Once I remember smoking in Charlie's room (the appellant's), once in Susan Hird's room. * * *'

The testimony of John Betchik, one of the occupants of the home from the first week in June 1967, is as follows:

'Q. Did you smoke marijuana at 244 North Enterprise, Bowling Green, from the time you moved in until the bust on the twenty-eighth of June?

'* * *

'A. Yes.

'* * *

'Q. Did you ever smoke with Charles A. Tobasko (sic)?

'A. Yes, I have.

'* * * 'Q. You did smoke with Mr. Tobasko (sic) when you got there?

'A. Yes.

'Q. Did you smoke after that date with Mr. Tobasko (sic)?

'A. I don't believe so.

'Q. Where did you smoke with Mr. Tobasko (sic)?

'A. Upstairs in the kitchen.

'* * *

'Q. Did Mr. Tobasko (sic) know that there was marijuana in this house and that it was being smoked?

'* * *

'A. I would assume Charlie was as aware of it as anyone else living in the house.'

Susan Hird testified, in part:

'Q. Have you ever been in the presence of the defendant in this case, Charles Tobasko (sic), when you were smoking marijuana?

'A. Yes, sir.

'* * *

'Q. When?

'A. I can't give you a specific date.

'Q. Can you give me a period of time?

'A. Sometime during the time you mentioned before.

'Q. How frequently would you smoke?

'A. In Charlie's presence?

'* * *

'Q. Yes.

'A. I don't know. Charlie wasn't around. Charlie would come in and go out. You never knew when he was there and when he wasn't.

'Q. Can you give us your best estimations of the time that he would be in when you were smoking?

'* * *

'A. You want me to give you a number of times?

'Q. Yes, to your best estimation.

'A. I'm sorry. I can't give you a number of times. We smoked continually.

'The Court: Miss Hird, he asked you how many times. Was it ten or one or fifty or none?

'The Witness: Ten, maybe-I don't know. During a period of two weeks, whenever Charlie walked into a room and we were sitting there.

'Q. How often did you smoke in the house when you lived there?

'* * *

'A. Well, we usually smoked in the evenings, especially in my case since I was going to school and I had to function at school, so we smoked in the evenings.

'Q. Who was there when you smoked in the evenings?

'A. Joh (sic), Jimmy, sometimes Charlie (appellant), sometimes Al. It just depended on whoever was around. Most of the people in the house generally.

'Q. Was there always marijuana in the house?

'A. Most of the time, yes. As far as I can remember, there was always some.'

The record shows that Susan Hird moved into the home on June 10th, 11th or 12th, 1967, and the search of the home took place on June 28, 1967.

Of itself, the foregoing testimony overwhelmingly established beyond a reasonable doubt the fact that appellant knowingly permitted the use of the dwelling for the keeping and administering of narcotics. In fact, it reveals that he also participated in using the house for such purposes.

Such testimony, alone, was overwhelmingly sufficient to prove the elements of knowingly permitting the dwelling to be used for the keeping and administering of narcotics without the necessity of referring to the items seized at the house. We are, therefore, of the opinion that even if those items were improperly admitted in evidence at the trial such admission did not operate to appellant's prejudice. The state's case was made without reference to the items seized during the search, and, therefore, we are able to conclude that even if there were error 'it was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

The remaining essential element of R.C. 3719.101 necessary for the state to prove in order to convict appellant, was that appellant controlled the dwelling.

In seeking to prove that element of the offense, the state called the owner of the house, Mr. Johnson, as a witness. His testimony established that appellant personally rented the house, that appellant...