State v. Trego
| Decision Date | 30 March 2023 |
| Docket Number | 22CA18 |
| Citation | 2023 Ohio 1114 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Kevin Trego, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Renee Severyn, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney Chillicothe, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Kevin Trego appeals from a judgment of the Ross County Court of Common Pleas convicting him of aggravated possession of drugs. Trego presents three assignments of error asserting that the police conducted an improper inventory search in violation of his constitutional rights, that trial counsel was ineffective in failing to file a motion to suppress evidence obtained through the unconstitutional search, and that his conviction was against the manifest weight of the evidence. For the reasons which follow, we overrule the assignments of error and affirm the trial court's judgment.
{¶2} In August 2021, the Ross County grand jury indicted Trego on one count of aggravated possession of drugs in violation of R.C. 2925.11, a fifth-degree felony. Trego pleaded not guilty. The matter proceeded to a jury trial in March 2022.
{¶3} Officer Morgan Music of the Chillicothe Police Department testified that on September 21, 2020, at approximately 4:20 a.m., he initiated a traffic stop of a vehicle traveling northbound on Paint Street in Chillicothe with tags which had expired in December 2019. Trego was the driver and had a passenger who was not identified at trial. Trego immediately stopped the vehicle, and Officer Music did not see him make any furtive movements. The vehicle was registered to Joshua Wallace; however, Officer Music testified that Trego acknowledged ownership of the vehicle. Trego told Officer Music that he had just gotten the vehicle "from a brother of a * * * stepson or something" and "had been working on it."
{¶4} Officer Music determined the vehicle had to be towed from the scene, so he had to remove the occupants from the vehicle and complete an inventory to document the contents of the vehicle. After removing Trego from the vehicle, Officer Music searched him. Officer Music testified that when he searches someone, In one of Trego's pants pockets, Officer Music found a clear container with a crystal rock residue inside and asked Trego "if it was methamphetamine that was in it at one point." Trego "said no it wasn't." Officer Music searched the vehicle and testified that he believed he was leaning over the center console when he saw "a green pipe" which he knew "to be used to smoke methamphetamine, beside the driver seat, next to the center console." He found a bag containing a "crystal rock substance" under the flap protecting the mirror on the sun visor above the driver's seat. Officer Music also found tools, "a bag full of * * * deodorants and things like that," and miscellaneous paperwork in the vehicle. He testified that the vehicle was not very clean and contained a "fair amount" of trash. He testified that none of the items in the vehicle were tested for indicia of ownership, like fingerprints, and there was nothing on the sun visor with Trego's name on it. He also acknowledged that he did not contact Wallace, check Wallace's criminal history, check BMV records for the vehicle, or put the VIN number on the inventory sheet even though he had testified the number "should be on" it.
{¶5} The state introduced into evidence photographs depicting the clear container with the crystal rock residue inside, the pipe, and the bag with the crystal rock substance inside. The state also introduced into evidence the crystal rock substance and presented evidence that testing by the Ohio Bureau of Criminal Investigation revealed it was 0.29 grams, plus or minus 0.04 grams, of a white crystalline material found to contain methamphetamine, a schedule II controlled substance. The residue and pipe were not tested for the presence of a controlled substance.
{¶6} Trego testified that on September 21, 2020, he was driving a White Acura which he was in the process of buying from Wallace, his stepfather's nephew's son. Trego could not recall when he first saw the vehicle. However, he testified that he inquired about buying it and inspected it. The battery was dead, and he had to "jump" the vehicle. The "exhaust was extremely loud," and the vehicle did not have a catalytic converter, so he "arranged to get parts to fix it so it wouldn't be so loud." He paid a "couple hundred dollars" for the vehicle "a couple days" before the traffic stop. He worked on the vehicle "a couple of different times" but could not recall when, and he and Wallace were "working on getting the title notarized." At some point, Trego arranged to "come get the car" and did so at 4:00 a.m. the day of the traffic stop.
{¶7} Trego did not deny that the clear container was in his pocket but denied knowing the pipe and methamphetamine were in the Acura. He testified that prior to getting in the driver's seat the morning of the traffic stop, he had only gotten in the vehicle "to start it." When he first saw the vehicle, the interior was not perfectly clean and contained various objects "like empty pop bottles and cans stuff like that." When asked if it was fair to say there were half empty bottles of Mountain Dew in the vehicle during the traffic stop, Trego testified, Trego testified that he did not clean the vehicle. He initially testified that he was not sure whether he had any belongings in the vehicle other than the tools he was using to fix it, but he later testified the only things in the car that belonged to him were the tools. Trego admitted that he had struggled with a drug problem "over the years," but he testified that he had been in treatment for a little over six months and "clean" almost nine months. He testified that when he did use drugs, he did not "ride around with them" in his car but instead stored them and used them at home. He testified that he never used drugs in the Acura. When the prosecutor asked Trego if he had four theft convictions, Trego testified he had more than four.
{¶8} The jury found Trego guilty. The trial court sentenced him to three years of community control sanctions and notified him that if he violated the conditions of the sanctions, the court could impose a longer time under the same sanctions, more restrictive sanctions, or a 12-month prison term. This appeal followed.[1]
{¶9} Trego presents three assignments of error:
{¶10} Before we address the merits of the assignments of error, we must address a preliminary matter. The first section of the "Law and Argument" portion of Trego's appellant's brief is titled: " After an introductory paragraph, this section is divided into two subsections. The first subsection is titled: This subsection is further divided into two sub-subsections titled: and The second subsection is titled:
{¶11} The state asks us to summarily affirm the trial court's judgment with respect to the issues raised in the first and second assignments of error on the ground that Trego failed to separately argue the assignments of error as required by the appellate rules. The state asserts that the appellant's brief "comingles the argument for the two separate assignments of error, which is confusing because different standards of review apply." The state asserts that "[t]his is especially troublesome" because Trego's arguments appear to be broader than his assignments of error.
{¶12} Trego acknowledges that he placed his arguments for the first and second assignments of error under "the same main heading because both claims arise out of the same set of operative facts-the unconstitutional inventory search." However, he...
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