Opinion
2022 CA 00149
07-10-2023
STATE OF OHIO, Plaintiff-Appellee v. ROBERT ANTHONY GARCIA, Defendant-Appellant
For Plaintiff-Appellee KYLE STONE, PROSECUTING ATTORNEY VICKI L. DeSANTIS ASSISTANT PROSECUTOR For Defendant-Appellant D. COLEMAN BOND
Criminal Appeal from the Court of Common Pleas, Case No. 2022 CR 00572
For Plaintiff-Appellee KYLE STONE, PROSECUTING ATTORNEY VICKI L. DeSANTIS ASSISTANT PROSECUTOR
For Defendant-Appellant D. COLEMAN BOND
Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J. Judges
OPINION
Wise, J.
{¶1} Appellant Robert Anthony Garcia appeals his sentence and conviction on one count of Trafficking in a Fentanyl-Related Compound and one count of Possession of a Fentanyl-Related Compound, entered in the Stark County Court of Common Pleas following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are as follows:
{¶4} The charges in this case stem from a traffic stop which occurred on March 10, 2022. On that date, Trooper Matthew Boyer, from the Ohio State Highway Patrol, was working the Canton Safe Streets Task Force, which had put out a BOLO based on information that Appellant Garcia had picked up illegal contraband from Cleveland and was on his way back to Canton. (Supp. T. at 9-10).
{¶5} Trooper Boyer was to perform a probable cause traffic stop to confirm if contraband was present in the car. Id. Trooper Boyer observed a car matching the description of the BOLO dispatch traveling southbound on Interstate 77 going about 50 mph. (Supp. T. at 11). The car was in the right lane travelling approximately one car length behind another car. It had dark tinted windows. Id. Trooper Boyer testified that both of these offenses were violations of the Ohio Revised Code. Id.
{¶6} Trooper Boyer activated his emergency lights and siren to initiate a traffic stop, but Appellant continued driving. (Supp. T. at 12). Appellant then exited onto U.S. 62 eastbound and only pulled over when the car in front of Appellant almost stopped in the middle of the road, causing him to stop. Id. A second cruiser was then able to pull in front of Appellant to prevent him from taking off again. Id
{¶7} Trooper Boyer approached Appellant with his body cam recording, as he would during a normal traffic stop. (Supp. T. at 16). He observed that there was a passenger in the car. (Supp. T. at 26). Trooper Boyer told Appellant that he stopped him for the dark-tinted windows. (Supp. T. at 24). During the encounter, Trooper Boyer smelled a strong odor of marijuana from inside the car. Id. Because Appellant could not produce any identification, Trooper Boyer asked Appellant to exit the car. Id. Trooper Boyer then explained, as best he could due to the language barrier, that he needed to pat Appellant down for weapons. (Supp. T. at 17). At that point, Trooper Boyer testified that based upon the odor of marijuana he would be detaining Appellant by placing him in a patrol car. Id. He explained that due to safety concerns, the policy was to pat down a suspect for weapons prior to placing them in a cruiser. Id.
{¶8} During the pat down, Trooper Boyer felt a hard object which he believed to be either contraband or a firearm in the groin area of Appellant's clothing, which he knew was not normal. (Supp. T. at 18). Appellant, upon request by the trooper, removed and handed over a plastic bag containing several hundred pills to Trooper Boyer. Id.
{¶9} On May 17, 2022, the Stark County grand jury indicted Defendant-Appellant, Robert Anthony Garcia, on one count of trafficking in a fentanyl-related compound, in violation of R.C. §2925.03(A)(2)/(C)(9)(g), a felony of the first degree, and one count of possession of a fentanyl-related compound, in violation of R.C. 2925.11 (A)/(C)(11)(f), a felony of the first degree.
{¶10} On July 1, 2022, Appellant filed a motion to suppress.
{¶11} On July 26, 2022, the trial court held a hearing on Appellant's motion to suppress.
{¶12} By Judgment Entry filed August 29, 2022, the trial court overruled the motion to suppress, finding the stop justified and that the narcotics seized during the pat down were located through lawful means.
{¶13} On September 26, 2022, a jury trial commenced in this matter.
{¶14} At trial the State called Trooper Matthew Boyer and Jennifer Creed, from the Canton/Stark County Crime Lab. The defense did not call any witnesses.
{¶15} On September 27, 2022, following deliberations, the jury found Appellant guilty of trafficking and possession of a fentanyl related compound.
{¶16} On September 29, 2022, a sentencing hearing was held wherein the trial court sentenced Appellant to an indefinite sentence with a minimum prison term of 11 years, up to a maximum prison term of 16 ½ years for trafficking. The trial court merged the possession count into the trafficking count for sentencing purposes only. (See Judgment Entry 10/19/2022).
{¶17} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶18} "I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE REVERSED.
{¶19} "II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶20} "III. THE TRIAL COURT ERRED BY NOT GIVING A JURY INSTRUCTION FOR THE LESSER INCLUDED OFFENSE, OVER APPELLANT'S OBJECTION.
{¶21} "IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS."
I., II.
{¶22} We address Appellant's first and second assignments of error together, as they raise related issues of whether the judgment convicting Appellant of trafficking in drugs and possession of drugs are against the manifest weight and sufficiency of the evidence
{¶23} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175.
{¶24} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶25} Appellant herein was convicted of Trafficking in a fentanyl-related compound, in violation of R.C. §2925.03(A)(2) and (C)(9)(g), and Possession of a fentanyl-related compound, in violation of R.C. §2925.11(A) and (C)(11)(f), which state:
R.C. §2925.03 Trafficking Offenses
(A) No person shall knowingly do any of the following:
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(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
***
(C) Whoever violates division (A) of this section is guilty of one of the following:
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(9) If the drug involved in the violation is a fentanyl-related compound or a compound, mixture, preparation, or substance containing a fentanyl-related compound and division (C)(10)(a) of this section does not apply to the drug involved, whoever violates division (A) of this section is guilty of trafficking in a fentanyl-related compound. The penalty for the offense shall be determined as follows:
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(g) If the amount of the drug involved equals or exceeds five hundred unit doses but is less than one thousand unit doses or equals or exceeds fifty grams but is less than one hundred grams and regardless of whether the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
R.C. §2925.11 Drug Possession Offenses
(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.
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(C) Whoever violates division (A) of this section is guilty of one of the following:
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(11) If the drug involved in the violation is a fentanyl-related compound and neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the drug involved, or is a compound, mixture, preparation, or substance that contains a fentanyl-related compound or is a combination of a fentanyl-related compound and any other controlled substance and neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the drug involved, whoever violates division (A) of this section is guilty of
possession of a fentanyl-related compound. The penalty for the offense shall be determined as follows
***
(f) If the amount of the drug involved equals or exceeds five hundred unit doses but is less than one thousand unit doses or equals or exceeds fifty grams but is less than one hundred grams, possession of a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
{¶26} Appellant herein contends that the State failed to sufficiently prove that he possessed an amount of fentanyl-related compound equal to or exceeding the bulk amount because Ms. Creed tested only a sample of the 734 pills seized and did not test each individual pill.
{¶27} Appellate courts that have addressed this issue have accepted the random sampling method of testing, recognizing that "the random-sampling method of testing creates a reasonable inference that all similar contraband contains the same controlled substance as that tested, at least when the contraband is recovered together and similarly packaged." State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, 787 N.E.2d 691, ¶ 81 (10th Dist.); State v. Gartrell, 2014-Ohio-5203, 24 N.E.3d 680, ¶ 96 (3rd Dist.); State v. Edwards, 10th Dist. Franklin No. 12AP-992, 2013-Ohio-4342, ¶ 40; State v. Mitchell, 8th Dist. Cuyahoga No. 93076, 2010-Ohio-520, ¶ 11-12 (testing one rock sufficient to establish entire substance is crack cocaine when similar in appearance and packaged together in one bag); State v. Smith, 10th Dist. Franklin No. 97APA05-660, *2 (Dec. 23, 1997) (rejecting defendant's argument that testing small portion of substance in bag insufficient to establish that entire contents of bag contained cocaine).
{¶28} This Court has similarly held that Ohio law does not require in the present context that the entire contraband substance be tested or that there must be a quantitative analysis done to prove chemical purity. State v. Douglass, 5th Dist. Licking No. 2019 CA 00056, 2020-Ohio-1214, ¶ 20.
{¶29} Moreover, other appellate courts have refused to "set requirements on the percentage of a substance that must be analyzed to support such an inference, as it depends on the facts and circumstances of each case." State v. Garnett, 9th Dist. Medina No. 12CA0088-M, 2013-Ohio-4971, ¶ 7. Thus, "if [an] appellant wishes to object to the evidence on the grounds that it is not random or representative, it is incumbent upon him to introduce by expert witness or otherwise sufficient evidence to show the unreliability of the testing." State v. Reynolds, 4th Dist. Ross No. 1185, 1985 WL 8354, (Sept. 26, 1985).
{¶30} Here, the Appellant did not object to the qualifications of the State's expert nor did he present testimony of any expert witness to attempt to show that the lab analyst's testing methodology was unreliable.
{¶31} We therefore reject Appellant's contention that the lab analyst's testimony in the case sub judice is not sufficient to establish that he possessed a fentanyl-related compound equal to or in excess of five-hundred unit doses or equal to or exceeding fifty grams and find that the expert's testimony constituted sufficient evidence to support such finding.
{¶32} Appellant also states, without any supporting argument, that the state failed to present any evidence that he was engaged in trafficking.
{¶33} At trial, the jury heard testimony from both Trooper Boyer and Jennifer Creed. Trooper Boyer testified that Appellant was transporting contraband drugs from Cleveland to Canton, Ohio. During a pat-down search of Appellant following a traffic stop, Trooper Boyer felt a hard object in the groin area of Appellant's pants, which Appellant removed upon request. Said object was a baseball-sized bag of pills containing fentanyl.
{¶34} Ms. Creed then testified that the weight of the pills was 54.86 grams. (T. at 201). She stated that all of the pills "were consistent, uniform, the same size, color, and shape." Id. She explained that she tested a random sampling of 10 of the 734 pills and determined that said pills contained a fentanyl-related compound. (T. at 194-197). She explained that if any of the pills had appeared to be different from the other, she would have tested as many additional pills as necessary to establish said contents. (T. at 204-205).
{¶35} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We note circumstantial evidence is that which can be "inferred from reasonably and justifiably connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph five of the syllabus. "[Circumstantial evidence may be more certain, satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595 N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶36} Accordingly, we find Appellant's convictions for trafficking and possession are supported by sufficient evidence and are not otherwise against the manifest weight of the evidence.
{¶37} Assignments of Error I and II are denied.
III.
{¶38} In his third assignment of error, Appellant argues the trial court erred in failing to give a jury instruction on the lesser included offense. We disagree.
{¶39} Jury instructions are within the sound discretion of the trial court, and the court's decision will not be disturbed on appeal absent an abuse of discretion. State v. DeMastry, 155 Ohio App.3d 110, 2003-Ohio-5588, 799 N.E.2d 229 (5th Dist.), ¶ 54, citing State v. Musgrave, 5th Dist. Knox No. 98CA10, 2000 WL 502688 (April 24, 2000), and State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist. 1993). Jury instructions must be reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988).
{¶40} In this case, Appellant was charged with trafficking and possessing more than a fentanyl-related compound. Because he was charged with possessing and trafficking a bulk amount of more than 500 unit doses, the jury was required to make a special finding.
{¶41} The jury was instructed in pertinent part:
Charge count one, trafficking in a fentanyl-related compound, Revised Code 2925.03(A)(2)(C)(9)(g). The Defendant is charged with trafficking in a fentanyl-related compound.
Before you can find the Defendant guilty you must find beyond a reasonable doubt that on or about March 10th, 2022, and in Stark County, Ohio, the Defendant did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a controlled substance, when the Defendant Robert Anthony Garcia knew or had reasonable cause to believe that the controlled substance was intended for sale or resale by the offender or another person and the drug involved was a fentanyl-related compound.
***
Additional finding, count one. If you find the Defendant guilty of count one, it is your duty to deliberate further and to decide whether the amount of the drug involved equals or exceeds five hundred unit doses or more but is less than one thousand unit doses.
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Charge count two, possession of a fentanyl-related compound, Revised Code 2925.11(A)(C)(11)(f). The Defendant is charged with possession of a fentanyl-related compound.
Before you can find the Defendant guilty you must find beyond a reasonable doubt that on or about March 10th, 2022, and in Stark County, Ohio, the Defendant did knowingly obtain, possess or use a controlled substance.
And the drug involved was a compound, mixture, preparation or substance that contained a fentanyl-related compound or was a
combination of a fentanyl-related compound and another controlled substance.
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Additional finding count two. If you find the Defendant guilty of count two, it is your duty to deliberate further and to decide whether the amount of the drug involved equals or exceeds five hundred unit doses or more but is less than one thousand unit doses.
(T. at 243-248).
{¶42} This language mirrors that of the jury instruction for drug trafficking found in the Ohio Jury Instructions CR 525.03. The comment to that pattern instruction states in pertinent part:
R.C. §2925.03(C) establishes a sentencing scheme whereby the degree of the offense is determined by the amount of the controlled substance sold or offered for sale. The amount is expressed in terms of "bulk amount," grams, or unit doses depending on the identity of the controlled substance involved. In accordance with R.C. §2925.03(E) and R.C. §2945.75, if the amount of the controlled substance involved increases the degree of the offense, the jury (or the trial judge in a non-jury trial) must determine the amount of the controlled substance involved at the time of the offense and, if a guilty verdict is returned, shall return the findings as part of the verdict.
{¶43} The degree of offense increases with each level of the bulk amount possessed/trafficked:
{¶44} R.C. 2925.03 Trafficking Offenses
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(9) If the drug involved in the violation is a fentanyl-related compound or a compound, mixture, preparation, or substance containing a fentanyl-related compound and division (C)(10)(a) of this section does not apply to the drug involved, whoever violates division (A) of this section is guilty of trafficking in a fentanyl-related compound. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(9)(b), (c), (d), (e), (f), (g), or (h) of this section, trafficking in a fentanyl-related compound is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(b) Except as otherwise provided in division (C)(9)(c), (d), (e), (f), (g), or (h) of this section, if the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the fourth degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount of the drug involved equals or exceeds ten unit doses but is less than fifty unit doses or equals or exceeds one gram but is less than five grams, trafficking
in a fentanyl-related compound is a felony of the fourth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term for the offense. If the amount of the drug involved is within that range and if the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the third degree, and there is a presumption for a prison term for the offense.
(d) Except as otherwise provided in this division, if the amount of the drug involved equals or exceeds fifty unit doses but is less than one hundred unit doses or equals or exceeds five grams but is less than ten grams, trafficking in a fentanyl-related compound is a felony of the third degree, and there is a presumption for a prison term for the offense. If the amount of the drug involved is within that range and if the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the second degree, and there is a presumption for a prison term for the offense.
(e) Except as otherwise provided in this division, if the amount of the drug involved equals or exceeds one hundred unit doses but is less than two hundred unit doses or equals or exceeds ten grams but is less than twenty grams, trafficking in a fentanyl-related compound is a felony of the second degree, and the court shall impose as a mandatory prison term one
of the prison terms prescribed for a felony of the second degree. If the amount of the drug involved is within that range and if the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved equals or exceeds two hundred unit doses but is less than five hundred unit doses or equals or exceeds twenty grams but is less than fifty grams and regardless of whether the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
(g) If the amount of the drug involved equals or exceeds five hundred unit doses but is less than one thousand unit doses or equals or exceeds fifty grams but is less than one hundred grams and regardless of whether the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
(h) If the amount of the drug involved equals or exceeds one thousand unit doses or equals or exceeds one hundred grams and regardless of whether the offense was committed in the vicinity of a school, in the vicinity of a juvenile, or in the vicinity of a substance addiction services provider or a recovering addict, trafficking in a fentanyl-related compound is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
R.C. 2925.11 Drug Possession Offenses
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(C) Whoever violates division (A) of this section is guilty of one of the following:
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(11) If the drug involved in the violation is a fentanyl-related compound and neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the drug involved, or is a compound, mixture, preparation, or substance that contains a fentanyl-related compound or is a combination of a fentanyl-related compound and any other controlled substance and neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the drug involved, whoever violates division (A) of this section is guilty of possession of a fentanyl-related compound. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(11)(b), (c), (d), (e), (f), or (g) of this section, possession of a fentanyl-related compound is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved equals or exceeds ten unit doses but is less than fifty unit doses or equals or exceeds one gram but is less than five grams, possession of a fentanyl-related compound is a felony of the fourth degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(c) If the amount of the drug involved equals or exceeds fifty unit doses but is less than one hundred unit doses or equals or exceeds five grams but is less than ten grams, possession of a fentanyl-related compound is a felony of the third degree, and there is a presumption for a prison term for the offense.
(d) If the amount of the drug involved equals or exceeds one hundred unit doses but is less than two hundred unit doses or equals or exceeds ten grams but is less than twenty grams, possession of a fentanyl-related compound is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.
(e) If the amount of the drug involved equals or exceeds two hundred unit doses but is less than five hundred unit doses or equals or exceeds twenty grams but is less than fifty grams, possession of a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved equals or exceeds five hundred unit doses but is less than one thousand unit doses or equals or exceeds fifty grams but is less than one hundred grams, possession of a fentanyl-related compound is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
(g) If the amount of the drug involved equals or exceeds one thousand unit doses or equals or exceeds one hundred grams, possession of a fentanyl-related compound is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.
{¶45} Because Appellant was charge with trafficking and possessing a bulk amount of a fentanyl-related compound, the jury was required to make a special finding as explained above. In this case, the jury did in fact find that the State met is burden of proof and found that the bulk amount was greater than 500 unit does and less than 1,000 unit doses.
{¶46} Had the jury found Appellant guilty of the trafficking and possession charges but then found that the State had failed to prove he possessed/trafficked the bulk amount as charged in this case, Appellant's conviction would only have been a fifth-degree felony, rather than a first-degree felony.
{¶47} This is not a matter of a lesser included offense, but rather a special finding which, when found beyond a reasonable doubt, elevates the degree of the offense.
{¶48} We therefore find no error in the trial court refusing to give an instruction for a lesser included offense.
{¶49} Appellant's third assignment of error is overruled.
IV.
{¶50} In his fourth and final assignment of error, Appellant argues the trial court erred in denying his motion to suppress. We disagree.
{¶51} 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. See, State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E .2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141; 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. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141, overruled on other grounds. 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, supra. As the United States Supreme Court held in Ornelas v. U.S., (1996), 517 U.S. 690, 116 S.Ct. 1657, "... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶52} In a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. Guysinger, supra, at 594 (citations omitted). Accordingly, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Id., citing State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, 1992 W L 91647.
{¶53} Herein, Appellant contends Trooper Boyer did not have a sufficient legal cause to justify the traffic stop or the pat-down search.
{¶54} "Before a law enforcement officer may stop a vehicle, the officer must have a reasonable suspicion, based upon specific and articulable facts that an occupant is or has been engaged in criminal activity." State v. Gedeon (1992), 81 Ohio App.3d 617, 618. Reasonable suspicion constitutes something less than probable cause. State v. Carlson (1995), 102 Ohio App.3d 585, 590. "[I]f the specific and articulable facts available to an officer indicate that a motorist may be committing a criminal act, * * * the officer is justified in making an investigative stop." Id. at 593. The propriety of an investigative stop must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of the syllabus.
{¶55} Thus, if the specific and articulable facts indicate to the officer the driver of an automobile may be committing a criminal act, which includes a violation of a traffic law, the officer can justifiably make an investigative stop. State v. Carlson (1995), 102 Ohio App.3d 585, 593, 657 N.E.2d 591. In a situation where the officer has observed a traffic violation, the stop is constitutionally valid. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9, 665 N.E.2d 1091.
{¶56} At the hearing on the motion to suppress, Trooper Boyer testified that he observed Appellant's vehicle following too closely to the vehicle in front of him and that his windows were tinted too dark.
{¶57} It is well established an officer may stop a motorist upon his or her observation the vehicle in question violated a traffic law. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996). "[E]ven a de minimis traffic violation provides probable cause for a traffic stop." Id. at 9. "Trial courts determine whether any violation occurred, not the extent of the violation." State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶ 27. Moreover, an officer is not required to prove the suspect committed an offense beyond a reasonable doubt or even satisfy the lesser standard of probable cause to believe the defendant violated the law. Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (1997)
{¶58} Trooper Boyer further testified that Appellant failed to immediately stop after he activated his emergency lights. The trooper then testified that upon approaching the vehicle, he encountered a strong odor of marijuana coming from inside the vehicle. He asked Appellant for his driver's license and when he could not produce it, he asked Appellant to step out of the vehicle. He then performed a pat-down search for weapons prior to placing Appellant in the back of his police cruise. Upon witnessing Appellant repeatedly touching and adjusting something in his groin area, Trooper Boyer felt a large, hard object in Appellant's groin area and asked Appellant to remove it. Appellant then pulled a large bag of pills out of his pants and placed it on top of the car.
{¶59} As we observed in State v. Brandon, 5th Dist. No. CT2015-0039, 2016-Ohio-271, 58 N.E.3d 444, at ¶ 27, the Ohio Supreme Court has noted an officer may ask a driver to sit in his or her patrol car to facilitate a traffic stop, but the question of whether the driver may be searched for weapons before entering the patrol car is more problematic. Id., citing State v. Lozada, 92 Ohio St.3d 74, 2001-Ohio-149, 748 N.E.2d 520. In Lozada, the Court found the placement of a driver in a patrol car during a routine traffic stop may be constitutionally permissible, but may not be used simply to justify a search of the driver. Id. The Lozada Court held it is unreasonable for an officer to search a driver for weapons before placing him or her in a patrol car if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer. Id. It is reasonable, however, to place a driver in a patrol car and even subject him or her to a pat-down search for weapons where placement of the person in the patrol car is justified to protect the officer or the driver from dangerous conditions. Id.
{¶60} In this case, as set forth above, Trooper Boyer knew that Appellant was suspected of picking up illegal contraband and transporting it from Cleveland. He observed Appellant commit a traffic violation, following too close to the vehicle in front of him. He also observed that the tinting of the windows appeared to be too dark. "Traffic stops based upon observation of a traffic violation are constitutionally permissible." State v. McLaughlin, 5th Dist. Tuscarawas No. 2021 AP 07 0017, 2022-Ohio-1227, ¶ 29, citing Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-431, 665 N.E.2d 1091. This Court has held that any traffic violation, even a de minimis violation, may form a sufficient basis upon which to stop a vehicle. State v. Bangoura, 5th Dist. No. 08 CA 95, 2009-Ohio-3339, 2009 WL 1916902, ¶ 14, citing State v. McCormick, 5th Dist. No. 2000CA00204, 2001 WL 111891 (Feb. 2, 2001); State v. Woods, 5th Dist. Licking No. 12-CA-19, 2013-Ohio-1136, 2013 WL 1209351, ¶ 60.
{¶61} Upon approaching Appellant's vehicle, Trooper Boyer observed a strong odor of marijuana coming from inside the car. He then requested Appellant's driver's license and when he could not produce it, he asked him to exit the vehicle.
{¶62} He then witnessed Appellant touching and adjusting a large bulge in the groin area of his pants. Trooper Boyer explained that he was concerned that Appellant was concealing a gun in his pants. (Supp. T. at 22). Trooper Boyer then performed a pat-down search for weapons. He explained to the trial court that when he felt the object, it was apparent to him that it was something that did not belong there. (Supp. T. at 29-31). He then asked Appellant to remove the object, which turned out to be a baseball-size bag of pills, later identified as containing a fentanyl-related compound.
{¶63} Authority to conduct a pat down search does not flow automatically from a lawful stop and a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment requires an officer to have a "reasonable fear for his own or others' safety" before frisking. Id. Specifically, "[t]he officer ... must be able to articulate something more than an 'inchoate and unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry, supra, 392 U.S. at 27, 88 S.Ct. 1868. Whether that standard is met must be determined from the standpoint of an objectively reasonable police officer, without reference to the actual motivations of the individual officers involved. United States v. Hill, 131 F.3d 1056, 1059 (D.C.Cir.1997), citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
{¶64} Although Terry limits the scope of the search to weapons, the discovery of other contraband during a Terry search will not necessarily preclude its admissibility. In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the United States Supreme Court adopted the "plain feel" doctrine as an extension of the "plain view" doctrine. The Supreme Court stated,
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.
{¶65} Dickerson, 508 U.S. at 375-376, 113 S.Ct. 2130, 124 L.Ed.2d 334. Accord, State v. Evans, 67 Ohio St.3d 405, 414, 618 N.E.2d 162 (1993), paragraph two of the syllabus.
{¶66} Based on the foregoing, we find the traffic stop and subsequent pat-down search for weapons was justified, and the trial court's denial of Appellant's motion to suppress was based on competent, credible evidence.
{¶67} Appellant's fourth assignment of error is overruled.
{¶68} For the reasons stated in the foregoing opinion, the decision of the Stark County Common Pleas Court is affirmed.
By: Wise, J. Hoffman, P J, and King, J, concur