Opinion
CT2024-0050
09-24-2024
STATE OF OHIO Plaintiff-Appellee v. KEON REEVES Defendant-Appellant
For Plaintiff-Appellee JOSEPH A. PALMER For Defendant-Appellant CHRIS BRIGDON
Appeal from the Court of Common Pleas, Case No. CR2023-0785
For Plaintiff-Appellee JOSEPH A. PALMER
For Defendant-Appellant CHRIS BRIGDON
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Andrew J. King, J.
OPINION
King, J.
{¶ 1} Defendant-Appellant Keon Reeves appeals the April 15, 2024 judgment of conviction and sentence of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In the early morning hours of December 2, 2023, Muskingum County Sheriff's Deputy Blake Browning was on routine patrol near West Pike in Zanesville. While patrolling the parking lot at a Shell gas station, Browning randomly ran the plates on a Ford Mustang. The plates came back to an elderly woman from Franklin County.
{¶ 3} Browning continued to drive around the parking lot. As he did, Reeves stepped out of the Shell store, made eye contact with Browning and was visibly startled. Browning thought this odd.
{¶ 4} Browning continued to patrol the area around the gas station. Sometime later, Browning saw the Mustang again, this time traveling in the opposite direction of Browning on West Pike near the McDonald's. As Browning passed the Mustang he watched the vehicle in his mirrors and noted it lacked license plate illumination. Browning turned around and followed the Mustang into the McDonald's where it had turned in.
{¶ 5} Reeves was behind the wheel of the Mustang and alone. He pulled into the drive thru lane. Browning activated his overhead lights and pulled up behind Reeves. Browning approached the passenger side of the Mustang and Reeves rolled the window all the way down. When he did, Browning detected a strong odor of marijuana. Browning advised Reeves that his license plate light was nonoperational. Reeves asked if he could get out of the car to "punch the rear bumper to try to fix it." Browning denied the request and asked Reeves for his identification but Reeves ignored the request. Browning asked Reeves to exit the drive thru and pull into a parking spot. Reeves complied. T. 10-12.
{¶ 6} Browning placed his cruiser behind the Mustang and again approached the passenger side. This time Reeves only opened the window 1-2 inches. Browning again requested Reeves' identification, and Reeves refused to provide any identification. He claimed the stop was not legal, asked to speak to Browning's supervisor, and began recording the interaction. Browning advised Reeves he was not at Walmart and Browning was not obligated to get a supervisor on the scene. Reeves continued to refuse to cooperate while continually touching the car's gearshift as if considering leaving the scene. Browning therefore asked Reeves to turn off the car, get out of the car, and hand him the keys. Reeves refused. Browning attempted to open the passenger side door but Reeves refused to unlock the door.
{¶ 7} After numerous unfruitful requests, Browning advised Reeves that if he did not exit the vehicle, he was going to break the window and remove him from the car. Reeves continued to refuse to cooperate. Backup arrived on the scene. Browning broke the window, but Reeves passively resisted the deputies attempts to remove from the car. Once deputies managed to remove Reeves from the car, they discovered a gun in Reeves' waistband and several small baggies of white powder on his person. T. 15-17.
{¶ 8} A subsequent search of the Mustang produced an assortment of large quantities of drugs including marijuana, psilocybin, methamphetamine, cocaine, methylenedioxymethamphetamine, fentanyl, drug paraphernalia, and more than $3,500 in cash. Upon transport to the jail, additional drugs were found on Reeves' person.
{¶ 9} As a result of these events, on December 7, 2023, the Muskingum County Grand Jury returned an 18-count indictment charging Reeves with numerous counts of possession and trafficking in the aforementioned drugs, obstructing official business, improper handling of a firearm in a motor vehicle, having weapons under disability, possession of drug paraphernalia, and illegal conveyance of drugs of abuse into the grounds of a specified governmental facility. Docket item 1.
{¶ 10} Reeves pled not guilty to the charges and filed a motion to suppress. He alleged the traffic stop was invalid and deputies lacked probable cause to search his vehicle. T. 5, Docket item 19.
{¶ 11} On January 25, 2024, the trial court held a hearing on Reeves' motion. The state elicited the above outlined evidence. Reeves alleged the license plate light was operational the morning in question. He presented the testimony of a friend who worked on the Mustang on November 29, 2023 and stated he fixed a turn signal, tail light and trunk light on that day. He further alleged that 2006 Mustangs tend to have a voltage regulator issue which causes the plate light to fail to illuminate unless the vehicle is running. T. 36-38, 44.
{¶ 12} Tia Tibet also testified on Reeves' behalf. She and Reeves have a child in common. She stated she and Reeves were driving around in the car the night before Reeves' arrest on this matter. She stated they were followed by a police officer that evening, but never pulled over. She therefore assumed the plate light was operational. T. 49-50.
{¶ 13} Reeves testified on his own behalf. Because he believed Browning did not have the opportunity to view the plate light on the Mustang, he concluded the stop was invalid and unofficial and therefore demanded to speak to a supervisor. He further believed Browning pulled him over not due to a traffic violation, but rather because Browning was "harassing [him] or profiling [him]." He stated the car belongs to his mother. He claimed he routinely checks the vehicle, keeps it well maintained, and had checked the plate light between 9 p.m. and midnight that night and found it operational. T. 63-70.
{¶ 14} At the conclusion of evidence, the trial court denied Reeves' motion to suppress. T. 82.
{¶ 15} On February 12, 2024, Reeves entered pleas of no contest to each count of the indictment. The trial court found Reeves guilty and convicted him. The trial court merged several counts and sentenced Reeves to an aggregate mandatory indefinite prison term of 17 to 22 years incarceration. Docket item 41.
{¶ 16} Reeves filed an appeal and the matter is now before this court for consideration. He raises two assignments of error as follow:
I
{¶ 17} "DID THE TRIAL COURT ERR WHEN DENYING THE MOTION TO SUPPRESS EVIDENCE IN LIGHT OF THE COMPELLING EVIDENCE TO THE CONTRARY?"
II
{¶ 18} "WAS THE IMPOSITION OF CONSECUTIVE SENTENCES BETWEEN COUNT 17 AND COUNTS 1,2,4,6,8,10,13,14 AND 15 IN CONTRAVENTION OF STATUTE?"
I
{¶ 19} In his first assignment of error, Reeves argues the trial court erred in denying his motion to suppress. We disagree.
Applicable Law
{¶ 20} As stated by the Supreme Court of Ohio in State v. Leak, 2016-Ohio-154, ¶ 12:
"Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then "independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id.
{¶ 21} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 699 (1996):
We therefore hold that as a general matter determination of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.
{¶ 22} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The stop of a vehicle and the detention of its occupants by law enforcement, for whatever purpose and however brief the detention may be, constitutes a seizure for Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653 (1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, (1976). "Where a police officer stops a vehicle based upon probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution[.]" Dayton v. Erickson, 76 Ohio St.3d 3, 11-21 (1996). Officers may search the vehicle without a warrant under the automobile exception, which:
"allows police to conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband and exigent circumstances necessitate a search or seizure." State v.
Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992), citing Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A vehicle's mobility is the traditional exigency for the automobile exception to the warrant requirement. Id., citing California v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Therefore, "[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment * * * permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), citing Carney at 393, 105 S.Ct. 2066.
Additionally, "the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement. There need not be other tangible evidence to justify a warrantless search of the vehicle." Id. [Chambers v. Maroney] at 48, 90 S.Ct. 1975. See also State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985 (reaffirming that the smell of [burnt] marijuana in the passenger compartment of a vehicle establishes probable cause for a warrantless search of the passenger compartment, but not of the trunk)." 'When there is probable cause to search for contraband in a car, it is reasonable for police officers * * * to examine packages and containers without a showing of individualized probable cause for each one.'" State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262 ¶ 14[,] quoting Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
{¶ 23} State v. Graves, 2022-Ohio-4130, ¶ 43-44 (5th Dist.)
{¶ 24} In United States v. Ross, 456 U.S. 798, 825 (1982), the Supreme Court of the United States held: "the scope of the warrantless search authorized by that [automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."
Reeves' Arguments
{¶ 25} Reeves appears to argue the trial court's ruling on his motion to suppress was against the manifest weight of the evidence. When an appellant raises a manifest weight argument in the context of a denial of a motion to suppress, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380 (1997).
{¶ 26} Reeves argues Browning engaged in profiling and used the" 'license plate issue' as a fictitious reason for the stop." Brief of Appellant at 13. He argues his evidence was more credible than the state's and therefore the trial court "erred when it failed to acknowledge the overwhelming evidence presented in contradiction of the Deputy's testimony and flawed recreation of photographs." Id. at 15.
{¶ 27} First, R.C. 4513.05(A) provides, in relevant part: "Either a tail light or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate, when such registration plate is required, and render it legible from a distance of fifty feet to the rear. Any tail light, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted. . ." Second, police may stop a vehicle based on probable cause a traffic violation, even a minor one, has occurred or is occurring. State v. Scranton, 2016-Ohio-3128 citing Dayton v. Erickson,1996-Ohio-431, 11-12. Finally, as the 10th District has found:
Ohio courts repeatedly have held the failure to properly illuminate a license plate is a violation of R.C. 4513.05 and provides probable cause to initiate a traffic stop. See Weinheimer [2004-Ohio-801] at ¶ 10; State v. Held, 146 Ohio App.3d 365, 766 N.E.2d 201, 2001-Ohio-4312; Wilmington v. Conner (2001), 144 Ohio App.3d 735, 761 N.E.2d 663; State v. Bencie (Dec. 1, 2000), 11 th Dist. No.2000-P- 0004; State v. Andrews (Nov. 29, 1996), 2d Dist. No. 15673. Whether police officers have any other underlying intent for making the stop is of no consequence. Erickson at 11-12, 665 N.E.2d 1091.
{¶ 28} Reeves' arguments hinge entirely on his assertion that his testimony and that that of his two witnesses was more credible than that of Deputy Browning. He argues the license plate light was operable, even though the deputy's photographs show otherwise. Reeves' attempted, through the testimony of the friend who worked on his car, to convince the trial court that the car had to be running in order for the license plate light to illuminate. Because the deputy placed the key in "run" or "axillary" mode to take the photos and did not actually start the car, Reeves argues the photos prove nothing.
{¶ 29} But Reeves himself appeared to demonstrate knowledge that the plate light was glitchy. He asked Deputy Browning if he could "get out of the car to go punch the rear bumper to try to fix it." T. 10. Indeed, Reeves' mechanic had worked on lighting issues on the rear of the car four days prior. T. 36-37. The mechanic further testified 2006 Mustangs have "voltage regulator issues" impacting lighting which "might" cause the lights to fail to illuminate if the car is not running. T. 38, 45-47.
{¶ 30} The testimony of Tia Tibet was based entirely on assumption. She assumed because they were not stopped the night before for lack of license plate lighting, that the light was working that night and the following night as well. So too, even if the trial court found Reeves credible in his assertion that he had checked the license plate light between 9 p.m. and midnight, that does not lead to a conclusion that it was still operable at 3:00 a.m. We find the trial court did not err in finding Deputy Browning more credible than Reeves and his witnesses, and in finding the traffic stop was valid.
{¶ 31} Because the traffic stop was valid, the subsequent search of the vehicle was also valid based on Browning's testimony that he is trained to recognize the odor of marijuana and smelled marijuana in the Mustang. T. 10, 18-19; State v. Graves, 2022-Ohio-4130, ¶ 43-44 (5th Dist.)
{¶ 32} The trial court was in the best position to evaluate the credibility of witnesses and its ruling was based on competent, credible evidence. Accordingly, we find the trial court did not lose its way in resolving conflicts in the evidence in favor of the state and did not err in denying Reeves' motion to suppress.
{¶ 33} The first assignment of error is denied.
II
{¶ 34} In his second assignment of error, Reeves argues the trial court erred when it imposed consecutive sentences. We disagree.
{¶ 35} This court reviews felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 2016-Ohio-1002 ¶ 22; State v. Howell, 2015-Ohio-4049, ¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 36} R.C. 2929.14(C)(4) governs consecutive sentences. That section states:
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 37} "R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's consecutive-sentence findings, and the trial court's findings must be upheld unless those findings are clearly and convincingly not supported by the record." State v. Gwynne, 2023-Ohio-3851, ¶ 5. "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the syllabus.
{¶ 38} When imposing consecutive sentences, a trial court must state the required findings at the sentencing hearing. State v. Bonnell, 2014-Ohio-3177, ¶ 29. Because a court speaks through its journal, the court should also incorporate its statutory findings into the sentencing entry. Id. However, a word-for-word recitation of the language of the statute is not required. Id. As long as the reviewing court can discern the trial court engaged in the correct analysis and can determine the record contains evidence to support the findings, consecutive sentences should be upheld. Id.
Reeves' Argument
{¶ 39} We first note that Reeves did not object during the sentencing hearing to the imposition of consecutive sentences, thereby forfeiting all but plain error. State v. Wilson, 2013-Ohio-1520 (10th Dist.) ¶ 8. An error not raised in the trial court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978) at paragraph one of the syllabus; Crim.R. 52(B). In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the proceeding clearly would have been different but for the error. Id. at paragraph two of the syllabus. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.
{¶ 40} Reeves has not advanced a plain error argument. Instead, his argument is limited to a single sentence which alleges that during the sentencing hearing there was no discussion of R.C. 2929.14(C)(4) thereby rendering Reeves' sentence contrary to law. Upon review of the record, however, we find the trial court did indeed find consecutive sentences were necessary to protect the pubic and punish Reeves, that consecutive sentences were not disproportionate to the seriousness of his conduct and the danger he poses to the public, that his long history of criminal conduct demonstrated consecutive sentences were necessary to protect the public from future crime, and the harm that could have been caused by the amount of drugs involved could cause significant problems to the community. Transcript of Sentencing at 18.
{¶ 41} The trial court was not "required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry." Bonnell at ¶ 37. That was accomplished here. We find the imposition of consecutive sentences in this case was not contrary to law and Reeves is therefore unable to establish error plain or otherwise.
{¶ 42} The second assignment of error is overruled.
{¶ 43} The judgment of the Muskingum County Court of Common Pleas is affirmed.
King, J., Delaney, P.J. and Gwin, J. concur.