0"^/^^^^4

IN THE SUPREME COURT OF OHIO

No 2013-0201

STATE OF OHIO,

On Appeal from the LakeAppellee,

County Court of Appeals

V. = Eleventh Appellate District

KYLE `.J.e PERRY,

Appellant.Court of Appeals

Case No. 2011-L-125

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT KYLE J. PERRY

COUNSEL FOR APPELLANT PROSE

Kyle Perry

No.620-399

TRUMBULL CORRECTIONAL INST.,

5701 BURNETT ROAD

P.O.BOX 901

LENVITTSBURG, OHIO 44430::

APi^ 2 ^ ^bl

t;LtuK OF caURrSUPREME COURT OF QH14

COUNSEL FOR APPELLEE

CHARLES E. CULSON

PROSECUTING ATTORNEY

TERI R. DANIEL (0082157)

ASSISTANT PROSECUTING A.T,TORNEY

LAKE COUNTY ADMINISTRATION BLDG.

105 MAIN STREET, P.O.BOX 490

PAINESVILLE, OHIO 44077

(440) 350-2683

FAX (440) 350-2585

tdaniel@lakecountyohio,gcv

TABLE OF CONTENTSPages:

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC

OR GREAT GENERAL INTEREST AND INVOLVES A FELONY

AND SUBSTANTIAL CONSTITUTIONAL QUESTIONS .................. 1,2

STATE OF THE CASE.'AND FACTS ................................3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...............

Proposition of Law No.I: The Sixth Amendment to

the United States Constitution gurantees a person.charged

to a criminal offenses the inalienable right to counsel

of choice and substitution of counsel and to pro se self-

representation upon timely request to the court, and denial

may result in structural error mandating automatic'reversal

of the conviction ........................................... ... 4

CASELAW IN SUPPORT:

Strickland v. Washington (1984) 466 U.S. 668........ Passim

Faretta v. California (1975), 422 U.S. 806 ......... 4

State v. Gibson (1976), 45 Ohio St.2d 366 ........... 4

Von Moltke v. Gillies ( 1948), 332 U.S. 708:::::..... 4

Wheat v. United States ( 1988) ....................... 4

CONSTITUTIONAL AMENDMENTS:

Ohio Constitution Art. I, Sec. 10 and 16 ............ Passim

U.S.C.A. 14th ( DUE PROCESS CLAUSE) ..................Passim

U.S.C.A. 6th ( RIGHT TO COUNSEL AND RIGHT TO

(SELF-REPRESENTATION ...................Passim

U.S.C.A. 5th ( EQUAL PROTECTION UNDER LAWS AND

DOUBLE JEOPARDY CLAUSE , _: Passim

' -i-

TABLE OF CONTENTS CONT.D

Pages:

Proposition of Law No.II: It is an

Abuse of Discretion when the Fourteenth Amendment does

not permit an illegal search and seizure of property

corita-ined in a truck of a vehicle and results without an

arrest or custodial holding and any evidence seized is

inadmissible ............................................... 5

CASELAW IN SUPPORT:

Jones v. United States (1958), 357 U.S. 493,

499 ....................................................... 5

Coolidge v. New Hampshire ( 1971) 403 U.S.

454-455 ...................................................

United States v. Ross (1982), 456 U.S. 798... Passim

*Cupp v. Murphy ( 1973), 412 U.S.291,294-

296 ........................................................ Passim

*Carrol v. United States 267 U.S. 132 Id.at

para.(A) of the syllabus .................................... 5

*Chambers v. Maron-e.y^j ( 1970), 399 U.S.42,51... 5

*Maryland v. Dyson (1999), 527 U.S.465,466....Passim

CONSTITUTIONAL AMENDMENTS:

U.S.C.A. 4th Amendment ....................... Passim

U.S.C.A. 14th Amendment ......................Passim

-ii-

11

.,:.

TABLE OF CONTENTS,CONT.D

Pages:

Proposition of Law NO.III: It is an

abuse of discretion 'and clearly established federal law

governing illegal search and sel,zures and incorporated

in Propositiorz of Law No.II herein and throughout warrants

a de novo review............................................ 6

Passim on - Caselaw and Constitutional Amendments ........... Passim

Incorporation and Consolidation of Proposition No:II ...... Passim

*Opperman 428 U.S. (uncited in opinion ...... 6

*Opperman, 428 U.S. at 375-376 , Id in Opinion

at page 13, paragraphs 33-34 ................................ 6

South Dakota v. Oppermar) (1976), 428 U.S.364.. 6

CONSTITUTIONAL AMENDMENT:

U.S.C.A. 4th Amendment Search/Serizure........ passim

U.S.C. 14th Amendment .........................Passim

Proposition of Law IV: It is an abuse of

discretion when records involving telephone messages are

not secure by the owner of the cellphone and permission

without a warrant issued in constitutional mandates........ 7

U.S.C.A. 4th Ameridment................... ..... passim

Maryland v. Brady ............................Passim

--^^-- Bagley^v. United States. Passim

Pro ositian of Law No:V: - .

Insufficienb claims mandate a total review and the abuse

of discretion by the Appellate Panel!of Judge's resulted

in violation of clearly established federal law through

misapplication of Ohio Revised Code Section 2923.32(A)(1)

with Incorrect definition on "Enterprise" and/or "Patterri

of Corrupt Activity" as defined in Revised Code Section

2923.31 (C) and/or (E), and the decision must be remanded

for relief or dismissal of offenses ...................... 8

^ -• - ..e ^ .--^-:^^_^^a-"M ^'J1!- -^ '- A^^^^^ ^ r^{ t1 f^- -` - _ _

TABLE OF CONTENTS,CONT.D

Pages:

CASELAW IN SUPPORT:

United States v. Turkette (1981), 452 U.S.576,c;-^

583, 101 S.Ct. 2524, 2528-29 ................................. 8•g

Boyle v. United States (2009), 556 U.S. 938,

129 S.Ct. 2237 ............................................... 8,9

State v. Franklin, 2d Dist. Montgomery Nos.24011

24012, 2011 Ohio 6802, citing United States v. Turkette,

(1981), 452 U.S. 576, 583, 101 S.Ct. 2524,2528-29 ............ Passim

State v. McKnight, 837 N.E.2d 315 ................. Passim

State v. Berverly (2011), 2013-Ohio-1365 .......... 8

Jackson v. Virginia (1979), 443 U.S. 397.......... 9

OHIO REVISED CODE STATUTES:

Evidence Rules 702 and 404 (B) ..................... 7

O.R.C. § 2923.32(A)(1) ........................... Passim

O.R.C. § 2923.31(C)./(.E-)_.-^- ....... ................. Pass

The Ohio Rico Act................................. 1

The Federal Rico Act, Sec. 1962,Title 18,

U.S.Code ......................................... 1

CONSTITUTIONAL AMENDMENTS:

4th Amendment ..................................... Passim

5th Amendment ..................................... Passim

6th Amendment ..................................... Passim

14th Amendmant ..................................... Passim

O.Const. Art.I, Sec. 10 and 16 .....................

O.Const. Art.3, Section (B)(4) ..................... Passim

CONCLUSION ......................................................9

CERTIFICA-T-E_-OF=SERVICE- ... . . . . : . : . . . . . . . . . . ^ . . . . . . . . . . - - . : . . .^1 0_-_ . _ _ _- - , -- -- - ^ --- _ _ _ _

APPENDIX.-..r:.:.- ..........:.:.::.:........::....:.Appendix" Pages:

__-,: ----Judgmeri-t -Entryof Lake- Coutity ApP:Cts: -^--- - '

(Oct.22,2012) ............................. A--i

Opinion of Lake Co. Ct. App.(Oct.22,2012)..

-iv-

EXPLAINTATION OF WHY THIS CASE IS A CASE OF PUBLIC

OR GREAT GENERAL INTEREST AND INVOLVES A FELONY AND

SUBSTANTIAL CONSTITUTIONAL QUESTIONS

This case involves the interpretation of the legal terms

on "enterprise" and " pattern of corrupt activity " as setforth

in Ohio Revised Code Sections 2923.31 subdivision (C) and (C) in

relation the criminal offense of Pattern of Corrupt Activity as

defined in Ohio Revised Section 2923.32 (A)(1) as charged against

Appellant Kyle E. Perryt and'remains contrary to federal laws on

the same subject-matter under The Ohio Rico Act and (RC 2923.32);

The Federal RICO Act, Section 1962, Title 18, U.S.Code.

In this case the appeals court excluded the essential

definition of the.multi,par`•.tinstruction contained in United States

v. Turkette, (1981), 452 U.S.576,583, 101 S.Ct. 2524, 2528-29,

but applied the decision lodged in the expanded case of Bolye v.

United States (2009), 556 U.S.938, 129 S.Ct.2237 which mandates

a separate inquiry into three parts on whether the association

must have a structure; whether the structure must be "ascertain-

able"; and whether the structurelmust_go beyond what is inherent

in the pattern of racketering activity in which members egage.Id.

at 2244.

What is apparent from Ohio caselaw is clarity with whether

a jury instruction meets the federal test of clearly established

United States Supreme Court precedent.

Thus, the exsistence of an enterprise is an element that..:_

is distinct from the pattern of racketering,_and the exsistence

of an enterprise is a separate element that must be proven,a6d

proof of one does not necessary establish the other. Id. at 2245.

Again, the sufficiency of the evidence claim is resting

upon a abuse of discretion on the correct application of review.

-1-

Further, a defendant at any critical stage of a criminal

proceeding can institute a dimissal or counsel and/or request a

substitution_for representation.and a hearing before the court

may grant or deny such request. State v.. Jones, 91 Ohio St.3d

335, 343 (2001),citing Wheat v. United States (1988), 486 U.S.

153, 164, the constitutional interest is whether, the court in

hearing the request for substitution of counsel, failed to the

prejudice of appellant, his request for selfsrepresentation as

permitted under Farreta v. California (1975), 422 U.S. 806 and

the test required under Von Moltke v. Gillies (1948), 332 U.S.

708, under the structural error encompassing the Six Amendment

of the United States Constitution, to self-representation.

If the court is no longer required to inquire beyond a

mere illusion to determination of the inalienable right to self-

representation, then the public interest remain at the mercy of

the judge and a decision contrary to clearly established federal

law. This matter is ripe for interpretation by this court.

With regard to the Fourth Amendmant prohibition against

warrantless search and seizures, the constitutional issue before

the court is whether, an entrapment took place at the intial time

when police officers created a stop of vehicle for purposes that

a prior record established an identification and licenee;^paateo_:

number was known and a description of likely suspects known also.

After conducting a questionable serach that extended into

the locked truck, where upon opening, items were seen and taken

by law enforcement, without a an arrest or detainment to run a

background check of likely suspects to crimes, and were released.

This case is one of great public interest due to the risk

of not detaining suspects with probable cause and allowing for a

susupect of illegal obtained evidence for furture prosecution by

the state contrary to federal and state law.

This Supreme Court of Ohio must grant jurisdiction to hear

this case and review the erroneous and dangerous decisions of the

Lake County Court of Appeals decision on the assignments of error

raised timely.-2-

^..,

4

STATEMENT OF THE CASE AND FACTS

This-case involves a series of burglaries alledged to have

been committed by Kyle J. Perry, a co-defendant, Jimmie O. Ivery

and unknown other person or persons.

It involves the differences of vechicles in color and type,

Tr.p:.324; which was stopped due lack of a rear license plate on

May 22, 2010 Tr.p 351-352, the driver was Kyle J. Perry with said

co-defendant. The vehicle was-stopped,- alledgingly a smell or an

ordor of marijuana was noticed, resulting an interior search for

drugs, and resulted with the law enforcement officer ultimely

searching the truck. Tr.p. 354-362.

In the truck, the 'officer found the rear plate, and items

thought to bethought to be stolen Tr.p. 362-365, 366, 367.

Kyle J. Perry, the driver was ticketed and released, but

the property in the truck was confisicated. Tr.p. 369.

It is from this act that the exclusionary clause should

be invoked, and review is requested de novo on the constitutional

question of the facts relative to the case-in-chief for charges

levied being a pattern of corrupt activity as an enterprise.

When there are dissimilar crime acts with a.similar import

reflective of a structured pattern. See Statement of the Facts by

the State.

There are various descritpions of cars, pepole, times, and

operation of criminal activities that fail to support the crime

and ofenses charged through indictment or jury instructions.

A review for jurisdiction is warranted to establish clear

definitions of the terms.and essential elements essential to

uphold a constitutional verdict of guilty beyond a reasonable

doubt in this public interest and felony cause.

-3-

Proposition of Law No.I:

The Sixth Amendment to the United States Constitution

gurantees a person charged to a criminal offense^.the

inalienable right to counsel of choice and substitution

of counsel and to Pro se self-representation upon

timely request to the court, and denial may result in

structural error mandating automatic reversal of the

conviction.

In this instance Kyle(j^. Perry, the Appellant was deprived

of three components of the Sixth Amendment involving counsel and

adequate representation at a liberty interest proceeding leading

to trial by jury.

The substitution of trial counsel and the breakdown of the

attorney-client relationship and what jeopardized the appellant's

right to effective assistance of counsel. Strickland v.Washington

(1984), 466 U.S. 668; State v. Bradley '(1989), 42 Ohio St.3d 136;

Thus, this court is requested to review under the abuse of

dicretion by the trial court and appellate court the denial of

whether justification warranted a dismissal of court-appointed

counsel for retainment of counsel of choice at a critical stage

to the judicial proceedings. Wheat v. United States (1988), 486

U.S. 153, 164; State v. Jones (2001), 91 Ohio St.3d 335,3_43.

Under the public interest prong, the court failed to make

the necessary inquirey as to whether into the complaint for the

strict compliance with clearly established federal caselaw of

United States v. Jennings, 83 F.3d 143,148 (C.A.6,1996).

It is the courts lack of inquirey into the request for

Prose self-representation that even the appellate court failed

to compete the mandatory information on whether a defendant has

in fact waived the constitutional right knowingly from the facts

presented by the court that this court should review. Farreta v.

California (1975), 422 U.S. 806. Von Moltke v. Gillies (1948),

332 U.S. 708.

_ _4^_

Proposition of Law No.II:

Abuse of Discretion when the Fourteenth Amendment does

not permit an illegal search and seizure of property

contained in a:truck of a vehicle and results without

an arrest or custodial holding and any evidence seized

is inadmissible.

Under the above proposition, the state and appellate

court abused its discretion when not granting the motion to

suppress evidence obtained contrary to the Fourth Amendment,

when no exception is established to search the "vechiele'..

Clearly established federal law was given, but the state

appellate court failed to give reasonable interpretation to the

exception provisions of Jone,^^ United States (1958), 357 U.S.

493, 499; Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-

455, citing State v. Smith, 2009-Ohio-6426 at para.10 of the

opinion filed Oct.22,2012.

In application of the state's contention for a warrantless

search of the vechicle or the recognized "automobile exception",

under the Fourth Amendment's warrant requirementestablished under

Carroll v. United States, 267 U.S 132.

On establishing the primary facts to cause a warrantless

search, the state positioned that the automobile exception that

rested on the mobility of the vechile was not apparent at the

time of the intial stop of appellant. This automobile was not

movable at the time.

The state created the "exigency" when it knwe the person

stopped,had availability of a prior criminal history relative to

the current criminal offense of burglary and receiving stolen

property by the defendant-appellant. There remains a contrary to

federal standard encompassed within the Fourth Amendment govern-

ing warrantless searches. Carrol v. United States ,j267 U.S. 132,

Id. at paragraph ( a) of the syllabus.

Wherefore, this Supreme Cou'rt of Ohio should review this

proposition of law on the constitutional merits.

'^,^

Proposition of Law No.III:

It is an abuse of discretion and clearly established

federal law governing illegal search and seizures and

incorporated iri Proposition of Law No.II,herein and

throughout warrants a de novo review.

The inventory search is a direct result of an intrusion

to the initial Fourth Amendmentsearch and seizure prohibition

when a warrant was not obtained, when the automobile was never

in position for moving, and the search of the trurik revealed that

items without receipt were located, and afterward, appellant was

allowed to leave the initial stop by law enforcement.

Clearly established United States Supreme Court caselaw is

clear, that an inventory search/impoundment pursuant to Colorado

v. Bertine (1987), 479 U.S. 367, the facts reflecting that when

the initial law enforcement obtained illegally evidence from the

first illegal stop and search that seized property, was the cruz

wherefrom the investigative prong began and became an abuse of

discretion contrary to South Dakota v. opperman (1976), 428 U.S.

364, thus the inventory search (prior) to the second search and

seizure of the vechicle was an inventory serch used as a ruse to

for general rummaging in order to discover evidence, Florida v.

Wells (1990), 495 U.S. 1, 4, thus the reasonable standard should

be applied and was interwoven with the standard test in Opperman,

supra., Id. at 382-383.

Wherefore, the Supreme Court of Ohio is_requested to give

review on the federal standard as to whether the constitutional

question on the intial stop, seizure, and search of the trunk on

which items were confisicated and the appellant was relased in

fact and constitutes an entrapment.by state law enforcement.

See United States v. Turkette ( 1981), 452 U.S. 576; Boyle v.

United States (2009), 556 U.S. 938.

_6L

Proposition of Law No.IV:

It is an abuse of discretion when records involving

telephone messages are not secured by the owner of the

cellphone and'permission without a warrant issued in

constitutional mandates.

Appellant has presented that the cellphone is question

was owned by another, and that the records in fact were those

of,the co-defendant Ivery and not that of appellant, as records

at trial presented, said co-defendant was not positively at all

the alledged crimes, therefore, a separation of the testimony on

whether the records purported to be the same remained unanswered.

The above is contrary to Evid. R. 702 and involved other

act.s and wrongs, which could not be applicable through Evid. R.

404;*(B,)1, and thus remained a constitutional controvery over the

admissions without restrictions.

This court should review both evidence rules for whether

plain error was reached to prejudice the substantial rights of

the appellant.

-^y7:-

Pro osition of Law No.V:

Insufficient claims mandate a total review and the abuse

of discretion by the Appellate Panel:.of Judge's resulted

in violation of clearly established federal law through

misapplication of Ohio Revised Code Section 2923.32(A)(1)

with Incorrect definition on..Enterprise" and/or "Pattern

of Corrupt Activity" as defined in Revised Code Section

2923.31-(C) and/or (E), and the decision must be remanded

for relief or dismissal of offenses.

The court is requested to look at the jury instructions as

given in this instant criminal cause-with the terms of enterprise

and person, U.S. Demolition & Contracting,Inc., v. O'Rourke Con-str

Co. (1994) 640 N.E.2d 235;on the jury instructions 1-cv-445-OJI-

445.05. Id. at comments.

From the presentation of the appellate court, evidence of

as to pattern is misapplied in the context of continuous acts by

a specific group of persons, which is contrary to interpretation

for enterprise purposes and intent to convict. United States v.

Turkette (1981), 452 U.S. 576,583, see also, Boyle v. United

States (2009), 556 U.S. 938.

The Second Appellate District, Clark County,Ohio in State

v. Beverly, C.A. Case No. 2011 CA 64, rendered April 5, 2013,

2nd Dist. App., clearly addressed the term "enterprise" as it is

applied to the offense of a pattern of corrupt activity, R.C.

2923.32(A)(1) and 2923.31 (C) and (E) respectfully.

It addressed the manifested weight of evidence and each

form rather insufficient weight remains the constitutionally of

weight of evidence in the constitutional context of Article 3,

Section (B)(4)., wherein the concurrence of all three appellate

judges must agree for a reversal, and in this case a clear error

and abuse of discretion resulted under Angelkovski v. Buckeye .

Potato Chip (1983), 463 N.E.2d1280„ which defines application to

-'g!_

this constitutional abuse of discretion which connotes more than

error in judgment. It implies a decision without a reasonable

basis; one which is clearly wrong. That being the misapplication

of the term enterprise to the prejudice of appellant and subject

to any person or persons engaging in dissimilar acts at times

and places not structured.and contrary to R.C. 2923.32(A)(1) and

R.C. 2923.31 (C) and/or (E).

Under the clearl'y established federal test on insufficiency

claims Jackson v. Virginia, (1979), 443 U.S. 397, which invokes

a question of due process, which does not permit resolution or

allowance for a weighing of the evidence. State v. Lee, 11th Dist

No. 2010-L-084, 2011-Ohio-4697 at para.9, Crim.R. 29 (A) acquital

is a proper remedy in appellant's favor.

Wherefore, under the abuse of discretion claim setforth in

the-opinion and this memorandum in support prose, the court is

asked to accept briefing on this propositions contained hereon.

CONCLUSION AND REQUEST FOR JURISDICTION

Appellant, Prose, Kyle J. Perry respectfully requests the

Supreme Court of Ohio to accept jurisdiction and apply a de novo

review of the opinion rendered in State v. Kyle J. Perry, C.A.

Case No. 2011-L-125, 11th Dist. App. Decided October 22, 2012,

and now before this court of delayed appeal granted.

WHEREFORE, the review of the 40 pg-sj deci si^^~opinion is

before the court in its entirity and not in part for reviewing.

Res ect lly submitted,

Ky J. Pe r4y, Prose Appellant

No.620-399

Trumbull Correctional Inst.

5701 Burnett Road

P.O.Box 901

Leavittsburg, Ohio 44430-0901

^ 9^_

CERTIFICATE OF SERVICE

I hereby certify the following Memorandum In Support of

Jurisdiction is a true and accurate, and was sent this

day of apri1,2013,.via regular U.S.Mail with postage prepaid

by the institutional mailroom/cashier this samee^( Sf--day of

April,2013 and was requested to be forwarded to the:

OFFICE OF THE CLERK

THE SUPREME COURT OF OHIO

8th FLOOR

65 SOUTH FRONT STREET

COLUMBUS, OHIO 43215-3431

Request for electornic service to the following is

endorsed hereon this same dfS4-- day of April, 2013 to the

following:

CHARLES E. CULSON

COUNSEL FOR APPELLEE

PROSECUTING ATTORNEY FOR LAKE COUNTY, OHIO

LAKE COUNTY ADMINISTRATIVE BUILDING

105 MAIN STREET, P.O. BOX 490

PAINESVILLE, OHIO 44077

tdaniel@lakecountyohio.gov.

,;,^Ky e J. Perr Appellant Prose

-10-

STATE OF OHIO

COUNTY OF LAKE

STATE OF OHIO,

) IN THE COURT OF APPEALS)SS.) ELEVENTH DISTRICT

JUDGMENT ENTRY

Plaintiff-Appellee,

-Vs-

KYLE J. PERRY,

Defendant-Appellant.

CASE NO. 2011 -L-925

For the reasons stated in the opinion of this court, appellant's assignments

of error are without merit. It is the judgment and order of this court that the

judgment of the Lake County Court of Common Pleas is affirmed.

Costs to be taxed against appellant.

PR DING JU E TIMOTHY P. CANNON

FOR THE COURT

AppendixExhibit A-1

ICite as State v. Perry, 2012-Ohio-4888.1

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATEOFOHIO, . OPINION

Plaintiff-Appellee,

- vs -

KYLE J. PERRY,

Defendant-Appellant.

CASE NO. 2011-L-125

Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 000730.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

J. Charles Ruiz-Bueno, Charles Ruiz-Bueno Co., L.P.A., 36130 Ridge Road,Willoughby, OH 44094 ( For Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Kyle J. Perry, appeals the judgments of the Lake County Court

of Common Pleas denying his motions to suppress evidence from two alleged

unconstitutional automobile searches, and denying his motion in limine seeking to limit

testimony regarding his cellular-telephone location via triangulation. Appellant also

appeals the judgment of conviction after trial by jury on the basis of insufficient evidence

and ineffective assistance of counsel. Additionally, appellant appeals the entry of

sentence, arguing the trial court erred in failing to merge certain offenses for sentencing

and in failing to grant credit for jail time served. For the following reasons, the judgment

is affirmed.

{12} Appellant was implicated in a series of burglaries after stolen items were

recovered from automobiles during two respective warrantless searches. As the

investigation unfolded, additional incriminating items were later recovered in appellant's

temporary residence at the Mosley Select Suites Hotel after a search warrant for the

premises was executed.

{13} A 14-count indictment was filed against appellant, charging him with the

following: five counts of burglary, second-degree felonies in violation of R.C.

2911.12(A)(2), with a firearm specification attached to one count; three fifth-degree

felony counts of receiving stolen property, in violation of R.C. 2913.51(A); two fourth-

degree felony counts of receiving stolen property, in violation of R.C. 2913.51(A), each

with firearm specifications attached; three counts of having weapons under disability,

third-degree felonies in violation of R.C. 2923.13(A)(2), each with firearm specifications

attached; and one count of engaging in a pattern of corrupt activity, a first-degree felony

in violation of R.C. 2923.32(A)(1).

{¶4} Soon thereafter, appellant filed a multitude of pre-trial motions. First,

appellant filed multiple motions to suppress, arguing that the evidence obtained during

the automobile searches on May 22, 2010, and July 20, 2010, should have been

suppressed.

(15) During the hearing on the motions, Officer Steven Shum of the Wickliffe

Police Department testified concerning the automobile search on May 22, 2010. Officer

Shum explained that he initiated a traffic stop around 1:00 a.m. of an automobile which

2

failed to display a rear license plate. Appellant was the driver of the automobile and one

Jimmie Ivery was the passenger. Officer Shum testified he had familiarity with both

appellant'and Ivery, as he knew they were both involved in at least one prior burglary.

As Officer Shum inquired about the status of a rear license plate, he detected a "strong

odor" of marijuana from inside the car. Based on the strong odor, and after back-up

arrived, Officer Shum asked the occupants to step out of the vehicle so that an

automobile search could be executed. During the search, Ivery admitted that he had

been smoking marijuana earlier that day in response to what would be found in the

cabin and whether anyone had been smoking. Officer Shum noted that Ivery denied

that any marijuana was in the car. The search uncovered "little tiny bits" of what Officer

Shum believed to be marijuana located on the floor in front of the passenger seat.

Officer Shum testified the amount was so small it was immeasurable. The officer

observed dark gloves, a black stocking cap, and two pairs of shoes in the back seat

area. Additionally, the officer noted that the occupants were wearing dark dress pants

and the dome light of the automobile had been removed. A search of Ivery also

uncovered two blue plastic pen lights.

(¶6) Based on his suspicions, which arose from the marijuana residue, the

strong odor, Ivery's admission, the missing rear license plate, the removed dome light,

and the dark clothing, Officer Shum proceeded to open and search the trunk of the

automobile, suspecting that more criminal activity was afoot. In the trunk, Officer Shum

did not find drugs but did find "burglary tools," including pry bars, a sledge hammer, a

ball-joint tool, a duffle bag, a ski mask, ear warmers, and another set of gloves. The

license plate and several screws were also located in the truck, casting doubt on

3

appellant's excuse that he had no screws to affix the plate to his car. More importantly,

a Toshiba laptop computer, a pair of binoculars, a Minolta digital camera, and an

Olympus digital camera were uncovered. Officer Shum explained that, at that point, he

believed the electronics were "probably stolen"; thus, he seized the electronic

equipment and tools for further investigation. Appellant and Ivery were sent on their

way.

{4R7{ Officer Isaac Petric of the Wickliffe Police Department testified to the

second stop on July 20, 2010, at 2:40 a.m. Officer Petric testified he saw Ivery driving a

vehicle. Officer Petric had a familiarity with Ivery due to his past dealings with law

enforcement. Officer Petric ran ivery's name through dispatch, and it was discovered

that Ivery's license was suspended. As a result, Officer Petric initiated a stop. Ivery,

driving appellant's vehicle, pulled into the Mosley Select Suites, where appellant

happened to be staying. Ivery pulled into an aisle of the parking lot, but not into a

parking space. Soon after the stop, Officer Petric confirmed through dispatch that Ivery

had a warrant out for his arrest. After Ivery was placed under arrest, the decision to

impound the vehicle was made. Officer Shum arrived on scene and executed an

inventory search of the automobile, finding a plastic bag containing jewelry. At some

point, appellant, apparently recognizing his car in the front parking lot, exited the hotel

from the lobby area and inquired into the stop and the status of his automobile. Officer

Petric informed him that his car was being towed and the driver had been arrested.

{¶8{ Upon consideration, the trial court denied appellant's motions to suppress.

4

{19} The matter proceeded to a jury trial. After four days of testimony, the jury

found appellant guilty on all 14 counts and each respective specification. Appellant was

sentenced to a total of 21 years in prison.

{¶10} Appellant now appeals and asserts seven assignments of error, which are

addressed out of numerical order.

{¶11} Appellant's second assignment of error states:

{¶12} "The trial court committed prejudicial error by denying Defendant-

Appellant's Motion to Suppress regarding the search of the vehicle's trunk on May 22,

2010."

{¶13} An appellate court's review of a decision on a motion to suppress involves

issues of both law and fact. State v. Bumside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶8. During a suppression hearing, the trial court acts as the trier of fact and sits in the

best position to weigh the evidence and evaluate the credibility of the witnesses. Id.,

citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, an appellate court is

required to uphold the trial court's findings of fact provided they are supported by

competent, credible evidence. Id., citing State v. Fanning, 1 Ohio. St.3d 19 (1982).

Once an appellate court determines if the trial court's factual findings are supported, the

court must then engage in a de novo review of the trial court's application of the law to

those facts. State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-2796, ¶13, citing

State v. Djisheff, 11 th Dist. No. 2005-T--0001, 2006-Ohio-6201, ¶19.

{¶14} Appellant first argues that the evidence obtained during the May 22, 2010

search was improper. Appellant does not contest the initial stop. Appellant additionally

does not contest the continued seizure or the search of the passenger compartment of

5

the vehicle based on the smell of marijuana. However, appellant argues that it was

unreasonable to extend the search to the trunk of the automobile based solely on the

smell of marijuana coming from the interior cabin.

{¶15} Proceeding to the facts and law upon which the trial court relied, there are

problematic elements. The most significant is the extension of the search from the

interior of the car to the trunk. It is well established that police action of stopping an

automobile and detaining its occupant is a seizure under the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648 (1979), paragraph two of the syllabus. Thus, an

automobile stop is "subject to the constitutional imperative that it not be `unreasonable'

under the circumstances." Whren v. United States, 517 U.S. 806, 810 (1996).

However, a mere conclusion that an officer had probable cause to conduct a reasonable

search does not end an inquiry into the constitutionality of a warrantless search. A

determination still must be made as to whether there existed an exception to the

warrant requirement of the Fourth Amendment in order to uphold the warrantless

search. See State v. Moore, 90 Ohio St.3d 47, 51 (2000). (" Having concluded that

Sergeant Greene had probable cause to conduct a reasonable search, we must

determine whether there existed an exception to the warrant requirement of the Fourth

Amendment in order for Sergeant Greene to have searched defendant's person and his

vehicle.")

I¶16} It is well founded that searches conducted without a warrant are per se

unreasonable, subject only to certain "carefully drawn" and limited exceptions. State v.

Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, ¶10, citing Jones v. United States, 357

U.S. 493, 499 (1958) and Coolidge v. New Hampshire, 403 U.S. 443, •454-455 (1971).

6

One such exception is at issue in appellant's second assignment of error-the

automobile exception. In United States v. Ross, 456 U.S. 798 (1982), the United States

Supreme Court outlined the contours of the automobile exception to the warrant

requirement:

{¶17} The `automobile exception' to the Fourth Amendment's warrant

requirement established in Carroll v. United States, 267 U.S. 132,

applies to searches of vehicles that are supported by probable

cause to believe that the vehicle contains contraband. In this class

of cases, a search is not unreasonable if based on objective facts

that would justify the issuance of a warrant, even thoUgh a warrant

has not actually been obtained. Id. at paragraph (a) of the syllabus.

{¶18} This exception rests on the impracticability of requiring a warrant for an

automobile-the mobility of which is readily apparent. The inherent mobility of an

automobile creates a certain exigency: there is a danger that the contraband will be

removed, lost, or destroyed if a warrant is not immediately obtained. State v. Moore, 90

Ohio St.3d at 52, citing Cupp v. Murphy, 412 U.S. 291, 294-296 (1973). As explained

by the United States Supreme Court: "[T]he car is movable, the occupants are alerted,

and the car's contents may never be found again if a warrant must be obtained. Hence

an immediate search is constitutionally permissible." Chambers v. Maroney, 399 U.S.

42, 51 (1970). Thus, under this exception, there is no need to justify the search by

demonstrating a separate exigency. Maryland v. Dyson, 527 U.S. 465, 466 (1999).

(¶19) However, the Ohio Supreme Court did not extend the search of a vehicle

to the trunk in Moore. Instead, as appellant correctly notes, probable cause to search

7

the interior cabin of the vehicle does not automatically extend to the trunk. Rather, "[a]

trunk and a passenger compartment of an automobile are subject to different standards

of probable cause to conduct searches." State v. Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, ¶51. in Farrrs, the Ohio Supreme Court determined that the automobile

exception did not apply. Id. at ¶52. That is, the court held that the odor of burnt

marijuana emitting from the passenger compartment of an automobile, standing alone,

does not establish the requisite separate probable cause to extend the search to the

trunk. Id. There, the officer detected "only a light odor of marijuana, and the troopers

found no other contraband within the passenger compartment," thus lacking probable

cause to search the trunk. Id.

{¶20} As recently explained by the Second Appellate District:

{¶21} The Fourth Amendment limits searches to .places where evidence

of criminal activity is likely to be found. Farris stands for the

proposition that the odor of burnt marijuana in a vehicle's

passenger compartment, standing alone, doesn't present a

likelihood that the vehicle's trunk contains marijuana. The point of

distinction is whether the character or nature of drugs found 'in

plain view' (or smell) in the passenger compartment presents a

likelihood that the vehicle's trunk contains drugs or other

contraband, such that a search of the trunk is justified by the

automobile exception to the warrant requirement. State v. Griffith,

2d Dist. No.,24275, 2011-Ohio-4476, ¶20.

8

{¶22} Turning to the case sub judice, the trial court correctly cited the standard

outlined in Farris, supra, and noted distinguishable factual findings. Here, unlike in

Farris, Officer Shum testified that he detected a "very strong" odor of marijuana.

Though the trial court found this to be a raw odor, we find the record does not, in fact,

indicate whether this was a raw or burning scent. After searching the interior

compartment, Officer Shum additionally found little "bits of marijuana" in the cabin.

Further, Ivery conceded that he had been smoking marijuana earlier that day. Officer

Shum also testified during redirect and recross examination that he had suspicions of

further criminal activity due to the absence of a rear license plate and an interior dome

light, suggesting efforts to conceal the vehicle's identification and movements inside it.

He was also suspicious of the occupant's dark clothing and the presence of a black

stocking cap, dark gloves, and two pen lights-all of which came to the officer's

attention during the search of the interior and of ivery. Though these suspicions of theft

were not part of the trial court's suppression analysis (it instead only focused on the

officer's suspicions of drug usage), the court nonetheless detailed these other items

when setting forth its findings of fact.

{$23} We find the evidence and circumstances detailed above afforded Officer

Shum probable cause to believe that, based on the totality of the circumstances,

appellant and Ivery were actively engaged in criminal activity and that additional

evidence of criminal activity would be discovered in the trunk. The trial court noted the

fact that Officer Shum's observations were in no small part due to his 20-year tenure as

an officer and his experience in dealing with marijuana. Therefore, having determined

that -probable cause existed to search the vehicle, as the Ohio Supreme Court noted in

9

Moore, supra, we apply the automobile exception to permit the warrantless search of

the trunk of the vehicle. This is consistent with the holding of this court in a companion

case, State v. Ivery, 11th Dist. No. 2011-L-081, 2012-Ohio-1270, and also in State v.

Stone, '11th Dist. No. 2007-P-0048, 2008-Ohio-2615.

{¶24{ It may be true, as appellant argues, that had Officer Shum elected to use

the drug-sniffing dog, the dog would not have indicated the presence of drugs in the

trunk. However, the failure to use an on-scene drug-sniffing dog does not negate the

determination of probable cause based on other circumstances. Here, after the search

of the cabin, probable cause was already established based on other factors, including

suspicions of criminal activity not related to the odor of marijuana.

{¶25{ Appellant additionally argues there is evidence of a pretextual intent to

search the trunk. First, appellant argues that Officer Shum made the decision to search

the trunk at the moment of the stop, indicating a pretext. In his testimony, Officer Shum

indicated he intended to search the entire vehicle, including the trunk, based on the

odor of marijuana alone. However, Officer Shum did not search the trunk until more

evidence was discovered in the interior cabin. Appellant additionally argues that Officer

Shum had more than ten interactions with appellant and was aware of his criminal

history. However, the record does not suggest that Officer Shum's decision to search

the trunk was based on his familiarity with appellant or Ivery. Officer Shum affirmed that

he had no pre-disposed thoughts about what might be in their vehicle.

{¶26{ Appellant's second assignment of error is without merit.

(¶27) Appellant's third assignment of error states:

10

{¶28} "The trial court committed prejudicial error by denying Defendant-

Appellant's Motion to Suppress regarding the pre-textual tow and inventory of the

vehicle stopped on July 20, 2010."

(¶29) Next, appellant argues that evidence obtained during the July 20, 2010

stop should be suppressed. In particular, appellant asserts that his car, which was

pulled over in the Mosley Select Suites parking lot, did not need to be impounded or

inventoried because he was on scene, was a validly-licensed driver, and could have

easily moved his car to a parking spot. Appellant therefore concludes the impoundment

was merely a pretext for an investigatory search.

(¶30) It must be reiterated that warrantless searches are per se unreasonable

under the Fourth Amendment, subject to only a few well-defined and carefully-limited

exceptions. City of Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988). One such

exception is at issue here-the inventory search. The United States Supreme Court

recognized this exception in South Dakota v. Opperman, 428 U.S. 364 (1976),

explaining that a routine inventory search of a lawfully-impounded vehicle is reasonable

pursuant to the Fourth Amendment when performed in accordance with standard,

established local procedures, and when the search is not a pretext for an investigatory

search. Id. at syllabus. The Ohio Supreme Court adopted this rule in State v. Hathman,

65 Ohio St.3d 403 (1992), paragraph one of the syllabus: "To satisfy the requirements

of the Fourth Amendment to the United States Constitution, an inventory search of a

lawfully impounded vehicle must be conducted in good faith and in accordance with

reasonable standardized procedure(s) or established routine."

11

{¶31} There are two portions of an inventory search: (1) the impoundment of the

vehicle and (2) the inventory of the items therein. See State v. Wotring, 11th Dist. No.

2010-L-009, 2010-Ohio-5797, ¶15 and State v. Robinson, 2d Dist. No. 23175, 2010-

Ohio-4533, ¶30 ("although the inventory exception and impoundment are often

intermingled, they involve different considerations"). Here, the inventory of the

automobile occurred on scene prior to the impoundment of the vehicle. Though this is

not contested as unreasonable by appellant, it is worth noting that an inventory search

need not be made at the impound lot, but instead can be made on scene. At one point,

the Eighth Appellate District adhered to the rule that an automobile must be lawfully

impounded at the station house prior to a valid inventory search. State v. Smith, 80

Ohio App.3d 337 (8th Dist.1992). However, the Eighth District acknowledged that such

a rule was effectively overturned by the Ohio Supreme Court's decision in Hathman,

supra. See State v. Bailey, 8th Dist. No. 67333, 1995 Ohio App. LEXIS 3980, *6 (Sept.

14, 1995).

{1132} The United States Supreme Court in Opperman explained that

automobiles are impounded to preserve the interests of public safety and "efficient

movement of vehicular traffic." 428 U.S. at 368. Moreover, the Court listed three

distinct justifications for an inventory search of a lawfully-impounded vehicle: (1) to

protect the owner's property while it remains in police custody; (2) to protect the police

against claims or disputes over lost or stolen property; and (3) to protect the police from

any possible danger. Id. at 369. See also Colorado v. Bertine, 479 U.S. 367 (1987)

and State v. Peagler, 76 Ohio St.3d 496, 501 (1996).

12

{¶33) The overarching rationale for allowing such an exception tailored to the

above-framed justifications is the recognition "that police officers are not vested with

discretion to determine the scope of the inventory search." Bertine at 376 (Blackmun,

J., concurring), citing Opperman, 428 U.S. at 382-383. "This absence of discretion

ensures that inventory searches will not be used as a purposeful and general means of

discovering evidence of a crime." Id. Indeed, inventory searches " are an administrative

or caretaking function, rather than an investigative function." State v. Pu!len, 2d Dist.

No. 24620, 2012-Ohio-1858, ¶13, citing Opperman, 428 U.S. at 370. Thus, "an

inventory search must not be a ruse for a general rummaging in order to discover

evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). As inventory searches are unrelated

to criminal investigations, probable cause is not the governing standard, "but rather the

validity of the search is judged by the reasonableness standard." State v. Sanders, 8th

Dist: No. 97120, 2012-Ohio-1540, ¶13, citing State v. Hobbs, 8th Dist. No. 85889, 2005-

Ohio-3856, ¶20.

{¶34} Naturally, what is "reasonable" must be judged against the facts on a

case-by-case basis. However, the United States Supreme Court in Opperman and

Bertine has provided an instructive roadmap on important "reasonable" considerations.

For instance, in Opperman, several factors weighed in the state's favor: (1) the

automobile was lawfully impounded pursuant to a standard procedure; (2) the owner

was not present to make other arrangements for the vehicle's safekeeping; (3) valuable

belongings were noticed in plain view; and (4) there was no suggestion that the

impoundment was a pretext for concealing an investigatory police motive. Opperman,

428 U.S. at 375-376.

13

ۦ35} The Second Appellate District has previously explained the burden of

proof for suppression motions concerning inventory searches:

f¶361 A police officer's bare conclusory assertion that an inventory search

was done pursuant to police department policy is not sufficient,

standing alone, to meet the state's burden of proving that a

warrantless search was reasonable because it fits within the

inventory search exception to the warrant requirement. Rather, the

evidence presented must demonstrate that the police department

has a standardized, routine policy, demonstrate what that policy is,

and show how the officer's conduct conformed to that standardized

policy. State v. Wilcoxson, 2d Dist. No. 15928, 1997 Ohio App.

LEXIS 3566, *9-10 (July 25, 1997).

{¶37) In the present case, there is a municipal ordinance dictating when

impoundment is proper. The app[icable provision of the Wickliffe Ordinances, Section

303.08(a)(9), states that "[p]olice officers are authorized to provide for the removal of a

vehicle ***[w]hen any vehicle has been operated by any person who is driving * * *

while his license has been suspended or revoked and is located upon a public street or

other property open to the public for purposes of vehicular travel or parking." The

ordinance does not outline the scenario whereby other acceptable transportation

methods are or could be available. The Wickliffe Police Department's Towing

Procedures state that "[t]hose vehicles impounded by the Wickliffe Police Department

shall be carefully inventoried and documented by the impounding officer or an assisting

14

officer" and that all accessible areas or areas where items of value would be stored

should be checked.

{¶38} Here, Officer Petric testified to the specifics of this protocol, the

department's adherence to the ordinance, and his conformance to it during the stop.

Specifically, Officer Petric explained that, as soon as the decision was made to arrest

Ivery, the decision to impound the vehicle was also made, pursuant to the ordinance.

The trial court, in making its findings of fact, determined that, although the car was not

on a public street, it was still situated on property open to the public for purposes of

travel. The record supports this finding as Officer Petric testified that the automobile

was parked only a few feet from the road into the parking lot of the Mosley Select

Suites, essentially blocking entry/exit into the lot. That is, the automobile was not

placed in a parking spot, but instead was in a lane designated for travel.

{¶39} At the time of the stop, appellant, who had loaned Ivery his automobile,

was staying at the Mosley Select Suites. Appellant's chief argument is that the

impoundment was unreasonable because appellant was on scene and capable of

moving his automobile to a parking spot (about ten feet away), he was not

incapacitated, and he had a valid driver's license. Certainly, appellant's argument is

appropriate in the context of the interests outlined above: if the validly-licensed owner of

the car is present and need only move the car a few feet, vehicular traffic is not impaired

and public safety is not jeopardized. In fact, assuming there was any traffic in the hotel

parking lot at 3:00 a.m., it may be more appropriate to have the car moved in a more

expeditious fashion rather than wait 15 to 20 minutes, as the record established, for a

tow truck.

15

{¶40} Additionally, all three justifications for an inventory are utteriy frustrated in

this situation: if the owner is present and perfectly able to move the vehicle, then there

is no need to "protect the owner's property" while it remains in police custody because

the owner can take hold of the property immediately. There would be no need to

protect the police against claims or disputes over lost or stolen property. Further, there

would be no need to protect the police from any possible danger if the car was simply

moved. Thus, appellant contends the impoundment was a pretext for an investigatory

search, evidenced by the appropriate alternative arrangements which were clearly

available. While the ordinance indicates the officer is "authorized" to remove a vehicle

under the circumstances set forth therein, the propriety of exercising that authority

would be subject to attack if there was a reasonable alternative to the tow and attendant

inventory search.

{¶41} One commentator notes the importance of this factual determination

concerning whether the owner is present and capable of making other less intrusive,

more convenient arrangements in lieu of impoundment:

{¶42} Implicit in [Opperman's] approach to inventories was the rationale

that the impounding of the illegally parked vehicle was lawful

because the owner was not present to make other arrangements

for the automobile. That theory has not been pursued in

subsequent litigation and merits clarification. It is one way of

ensuring that the impoundment is not a pretext to conduct a search.

Katz, Ohio Arresf, Search, and Seizure, Section 13:09 (2011 Ed.).

16

^I

{¶43} indeed, this "alternative measures" question plays a role in the totality-of-

the-circumstances determination of a pretextual search and the quintessential inquiry of

reasonableness. See State v. Kemp, 8th Dist. No. 95802, 2011-Ohio-4235, ¶18 ("the

car's owner was under a FRA suspension, which meant that the car was not allowed to

be on the road with any driver"); State v. Goss, 9th Dist. No. 10CA009940, 2012-Ohio-

857, ¶11 ("Officer Medla decided to tow the vehicle after arresting Goss and discovering

that his only passenger could not take the vehicle"); State v. Pullen, 2012-Ohio-1858,

¶20 ("By the time Pullen's mother arrived at the scene, the officers had already begun

the inventory search of the vehicle and had no duty to turn the car over to her")

{¶44} However, notwithstanding appellant's arguments, in adopting the rule in

Hathman, the Ohio Supreme Court relied on Bertine, supra, which gave approval to

routine impoundments conferred by standardized police procedures even if less

intrusive altematives for the removal of the vehicle were readily available. In Bertine,

the United States Supreme Court stated:

{¶45} The Supreme Court of Colorado also expressed the view that the

c search in this case was unreasonable because * * * Bertine himself

could have been offered the opportunity to make other

arrangements for the safekeeping of his property. **"` And while

giving Bertine an opportunity to make alternative arrangements

would undoubtedly have been possible, we said in Lafayette: '[T]he

real question is not what could have been achieved,' but whether

the Fourth Amendment requires such steps * * *

17

(¶46{ The reasonableness of any particular governmental activity does

not necessarily or invariably turn on the existence of alternative

`less intrusive' means.

{¶47} We conclude that here, as in [Illinois v.] Lafayette [462 U.S. 640,1

reasonable police regulations relating to inventory procedures

administered in good faith satisfy the Fourth Amendment, even

though courts might as a matter of hindsight be able to devise

equally reasonable rules requiring a different procedure. (Footnote

omitted.) Id. at 373-374.

{¶48{ Bertine therefore makes it clear that the existence of other available

options to move the automobile is not necessarily dispositive on the question of

reasonableness. See State v. Gordon, 95 Ohio App.3d 334, 339 (8th Dist.1994). ("The

fact that this court might, as a matter of hindsight, be able to devise equally reasonable .

rules requiring a different procedure does not render a search executed pursuant to

established standard procedures, such as those in this case, constitutionally infirm.")

While the determination of alternative measures may indicate a pretext in some

situations, any evidence of such an unconstitutional investigatory pretext cannot be

determined on this record. It is not clear from the record exactly when appellant arrived

on scene. During the suppression hearing, no officer was able to testify as to when

appellant came out of the hotel and into the parking lot to inquire what was happening

with his car. As Officer Petric acknowledged, the inventory search may have already

been completed and the tow truck en route by the time appellant arrived. This is

plausible as the inventory occurred in the field prior to the physical impoundment of the

18

vehicle. The trial court accepted that the search had begun before appellant arrived on

the scene. It is clear that, when appellant asked what was happening with his car,

Officer Petric immediately to[d him it was being towed, suggesting that the search was

in progress and the truck was already called.

{149} Further, Officer Petric was unequivocal in his testimony that lvery's

criminal past had no bearing on the decision to impound the automobile. Instead, the

decision to place Ivery under arrest, based on the warrant for his arrest, and the fact

that the automobile was blocking a throughway influenced the decision. Clearly, Ivery

was unavailable to move the car as he had no valid operator's license. Officer Petric

additionally explained he was not aware that appellant, the owner of the car, lived at the

Mosley Select Suites until appellant walked from the hotel lobby to the parking lot. Both

Officer Petric and Officer Shum additionally testified that appellant did not ask to move

his car. If it was clear from the record that appellant was present and available to move

his car prior to commencement of the inventory, the challenge would be subject to a

different analysis.

{$54} As the state met its burden of establishing that there was a routine

impoundment protocol pursuant to local law that was properly followed, it was

incumbent upon appellant to provide some evidence suggesting a pretextual

investigative intent. See State v. Pullen, 2012-Ohio-1858, ¶45 (O'Grady, J.,

concurring). ("[T]he failure to show whether the crack cocaine was seized before his

mother arrived [to move the vehicle] is chargeable to Defendant, not the State. On this

record, there was no basis to suppress the evidence officers seized.")

19

{¶51} As a final matter, it must be noted that an identical challenge to this very

same impoundment was advanced by lvery in his respective appeal and upheld as

constitutional by this court on the authority of Bertine, supra. State v. Ivery, 2012-Ohio-

1270, 137. (" In the present case, there was no indication by the officers that the search

was performed in order to find evidence of criminal behavior[.]")

{¶52} Appellant's third assignment of error is without merit.

{¶53} Appellant's fourth assignment of error states:

(¶54) "The trial court committed prejudicial error by denying Defendant-

Appellant's Motion in Limine regarding the State's use of expert testimony regarding

triangulation pinpointing with cell phone towers in contradiction of Ohio Criminal Rule

16[K], and by allowing such testimony at trial."

{¶55} In his fourth assignment of error, appellant takes particular exception to

the testimony of AT&T Radio Engineer Joseph R. Mouse. Appellant argues Mr. Mouse

offered an expert opinion regarding the approximate whereabouts of a certain cell

phone at the time of the various thefts. Such an opinion was not proper and should

have been excluded, appellant contends, because it was in direct contravention to

Crim.R. 16(K). The rule requires a written report to be filed 21 days before trial,

"summarizing the expert witness's testimony, findings, analysis, conclusion, or opinion,

and shall include a summary of the expert's qualifications." Crim.R. 16(K). As Mr.

Mouse was deemed a fact witness, no such report was filed in this case. The purpose

of the rule is to avoid unfair surprise by providing notice to the defense and allowing the

defense an opportunity to challenge the expert's findings, analysis, or qualifications,

20

possibly with the support of an adverse expert who could discredit the opinion after

carefully reviewing the written report.

{¶56} Evid.R. 702 provides:

{¶57} A witness may testify as an expert if all of the following apply:

{¶58} (A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

{¶59} (B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter

of the testimony;

{¶60} (C) The witness' testimony is based on reliable scientific, technical,

or other specialized information[.]

{¶61} A trial court's evidentiary rulings are reviewed under an abuse of

discretion standard. State v. Poling, 11th Dist. No. 2008-A-0071, 2010-Ohio-1155, 119,

citing State v. Sweeney, 11th Dist. No. 2006-L-252, 2007-Ohio-5223, ¶22. Even where

a court abuses its discretion in the admission of evidence, we must review whether the

defendant suffered material prejudice due to the ruling. Id.

{¶62} The trial testimony of Mr. Mouse placed a phone number ending in "6676"

in the general vicinity of the theft offenses at particular times. This was accomplished

by reviewing the date and time a call was placed, then determining which cell-phone

tower provided the service; a method known as "triangulation." The phone number on

the account was listed to one Lisa Reed, which was ultimately linked to Ivery's phone-

not appellant's. This very point was elicited on cross-examination by trial counsel.

21

Thus, this portion of the trial testimony placed Ivery's phone in the vicinity of the theft

offenses in support of the alternative complicity charges. As appellant was seen, at

times, with one identified as lvery during the commission of the theft offenses, the

presence of Ivery's phone could have directly implicated appellant. Thus, to this extent,

the question of whether the testimony was properly admitted should be considered.

{163} Here, the trial court determined Mr. Mouse was "an expert in so far as he

possesses knowledge outside the realm of the normal juror." However, the trial court

ultimately concluded that Mr. Mouse was "testifying as to factual matters rather than

opinion matters" and that such testimony was not unduly prejudicial. After a review of

the record, we determine that this finding was not an abuse of discretion, and the

testimony was properly admitted.

^¶64} First, the record reflects, and trial counsel acknowledged, that the state

previously disclosed via supplemental discovery that it intended to call witnesses to

testify concerning the authenticity of the cell phone records and also provide technical

insights into how cell phones operate in conjunction with different tower sites to provide

geographical information. The record indicates, and trial counsel acknowledged, that

these records were made available to him. Thus, appellant was effectively put on notice

as to the nature of the testimony.

11651 Next, a review of the testimony indicates that Mr. Mouse did not make

independent findings, nor did he form a conclusion or opinion about the reliability of

triangulation. Mr. Mouse testified to how a cell phone works, how the device utilizes

nearby towers for connectivity, and how the service provider records this information.

This testimony constituted general background information interpreting cell phone

22

records. Mr. Mouse additionally explained different numbering codes in the phone

records and also identified calls on the records to their corresponding cell phone towers.

Again, Mr. Mouse simply interpreted records and explained the general method by

which the service provider uses nearby towers to place calls. That is, Mr. Mouse

factually explained the contexts of the complex and detailed phone records. Mr. Mouse

then simply compared the locations on the phone records to locations on the tower site

maps by matching the relevant numbers recorded by the service provider. Any

layperson could make this determination by examining the respective exhibits-it did

not require the use of an expert. Further, on cross-examination, trial counsel elicited the

points that the phone was not registered to appellant, and above all, the location of a

device bears no relation to the location of an individual person, but only a rough

approximation.

{166{ Finally, trial counsel during sidebar also acknowledged that he contacted a

prospective expert witness concerning the use of cell phone towers to determine a

person's location. Trial counsel explained that he was unable to properly summarize

the immense information (hundreds of pages of cellular phone records) to formulate an

understandable question. However, trial counsel also explained the following: "I could

not, from the conversation that I had [with the prospective expert], elicit from him in my

opinion testimony that on the whole, cell phone tracking technology is unreliable."

{167) Parenthetically, we note that witness Angela Loft, a customer

representative with Verizon Wireless, testified concerning appellant's cell phone

records. Appellant does not object to this witness's testimony in his merit brief. Indeed,

Ms. Loft only testified to the records she brought from Verizon. Further, unlike Mr.

23

Mouse, she did not testify as to how a cell phone works, or how a cell phone tower

would trace a signal.

{¶68} Appellant's fourth assignment of error is without merit.

{¶69} Appellant's first assignment of error states:

{¶70} "Defendant-Appellant was denied effective assistance of counsel by the

trial court which inured to his prejudice at trial."

{¶71} In order to prevail on an ineffective assistance of counsel claim, appellant

must demonstrate that trial counsel's performance fell below an objective standard of

reasonable representation, and there is a reasonable probability that, but for counsel's

error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio

St.3d 136 ( 1989), paragraph two of the syllabus, adopting the test set forth in Strickland

v. Washington, 466 U.S. 668 (1984). If a claim can be disposed of by showing a lack of

sufficient prejudice, there is no need to consider the first prong, i.e., whether trial

counsel's performance was deficient. Id. at 142, citing Strickland at 695-696. There is

a general presumption that trial counsel's conduct is within the broad range of

professional assistance. Id. at 142-143.

(¶72{ Though not individually framed, compounded in this assignment of error is

appellant's initial claim that appellant's motion to appoint new counsel should have been

granted. Appellee has separately responded to this claim; thus, we will initially

determine the propriety of the trial court's denial of appellant's motion to substitute

counsel.

{¶73) "Decisions relating to the substitution of counsel are within the sound

discretion of the trial court." State v. Jones, 91 Ohio St.3d 335, 343 (2001), citing

24

Wheat v. United States, 486 U.S. 153, 164 (1988). In Jones, the Ohio Supreme Court

set forth several factors to consider in weighing whether a trial court abused its

discretion in denying a motion to substitute counsel. Id. at 342. These factors include

"'the timeliness of the motion; the adequacy of the court's inquiry into the defendant's

complaint; and whether the conflict between the attorney and client was so great that it

resulted in a total lack of communication preventing an adequate defense."' Id., quoting

United States v. Jennings, 83 F.3d 143, 148 (C.A.6, 1996).

{174} Here, it is clear from the record appellant harbored feelings of suspicion

and, at times, animosity toward his appointed trial counsel, an attorney with the Lake

County Public Defender's Office. As a result, appellant filed two pre-trial notices of

ineffective assistance and a motion to disqualify or substitute counsel. However, many

of these suspicions seemed to be mildly alleviated by the trial court, and at one point,

appellant affirmed on the record he was satisfied with trial counsel's work in the latest

motion to suppress. The trial court went to great lengths to explore the relationship

between appellant and his trial counsel. The trial court held two hearings on the

motions on May 5, 2011, and July 8, 2011. There, appellant explained to the trial court

his dissatisfaction with counsel, including his belief that trial counsel did not review the

discovery. Appellant also requested either he represent himself pro se, or that the

attomey who represented him in a separate Cuyahoga County case represent him

again. During the hearing, the trial court conducted an extensive inquiry into each of

appellant's complaints and the overall relationship between appellant and his trial

counsel.

25

{¶75) Ultimately, the trial court was satisfied that trial counsel was providing

suitable representation. Trial counsel had filed multiple motions to suppress, including

at least one motion solely at the behest of appellant. The trial court explained to

appellant the serious and likely detrimental nature of pro se criminal representation at

the trial level, including the overwhelming complexities of various criminal legal

doctrines and the danger of conflating questioning with testimony, raising potential Fifth

Amendment quagmires. Additionally, given the overwhelming scope of the case

(ultimately 33 witnesses were called at trial), the trial court opined that any new counsel,

such as the requested attorney from Cuyahoga County, would have difficulty preparing

for trial in a short amount of time, whereas trial counsel was already familiar with the

case from arguing the various motions.

{¶75} Appellant additionally argues his trial counsel was ineffective during his

trial for multiple reasons. First, appellant contends there was a complete lack of trust

and confidence throughout the attorney-ckient relationship which undermined his ability

to participate in the defense. However, appellant does not demonstrate how he was

prejudiced in any way during trial from this representation. For instance, appellant

contends trial counsel was unprepared to cross-examine the state's witness on a critical

point regarding cell phone location. The record does not support this assertion. As

explained above, trial counsel cross-examined Mr. Moiase in an effort to undercut the

cell phone triangulation process. In fact, the record indicates that trial counsel elicited

counter-points on cross-examination from multiple witnesses. Further, appellant argues

his trial counsel failed to call a known witness regarding cell phone triangulation. Again,

this position is not supported by the record. Rather, as explained above, trial counsel

26

indicated that he did contact a prospective expert witness but did not believe the

witness would provide any helpful testimony.

(¶77} Appellant's first assignment of error is without merit.

f¶78} Appellant's fifth assignment of error states:

{¶79} "The evidence adduced at trial was insufficient to convict Defendant-

Appellant."

{¶80} The test for determining the issue of sufficiency 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."

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, citing Jackson

v. Virginia, 443 U.S. 307 (1979). Thus, the claim of insufficient evidence invokes a

question of due process, the resolution of which does not allow for a weighing of the

evidence. State v. Lee, 11th Dist. No. .2010-L-084, 2011-Ohio-4697, ¶9. Crim.R. 29(A)

requires the trial court to grant a motion for acquittal if the evidence is insufficient to

sustain a conviction on the charged offenses.

ۦ81} First, though appellant's name was not listed on the room at the Mosley

Select Suites, there is ample testimony to conclude this was "appellant's room." This is

an important consideration because nearly all of the stolen items were uncovered in this

hotel room. Kriste Simmons testified that she visited appellant in "his" hotel room

multiple times. Robin Schneider also testified that she visited appellant on a consistent

and regular basis at the Mosley Select Suites. Further, Mosley Select Suites' security

guard Thomas Babb testified that he frequently observed appellant and was also called

about noise complaints concerning the room. Babb stated that every time he

27

investigated a noise complaint, appellant was in the room. There was sufficient

evidence before the jury to determine that appellant lived in the room.

{¶82} Additionally, as explained above, a witness from AT&T, Joseph Mouse,

and a witness from Verizon, Angela Loft, testified to the general location of cell phones

linked with Ivery and appellant using respective phone records and maps of service

areas. These records implicated both appellant and Ivery in many of the charges.

Evidence presented indicates that cell phone towers in the region of the theft offenses

received signals from one, or both, of these cell phones.

{1[83} On counts 1 through 5, burglary, the state had the burden of proving that

appellant did, by force, stealth, or deception, knowingly trespass in occupied structures

or in a separately-secured or occupied portion of occupied structures that is a

permanent or temporary habitation of the respective victims, when a person other than

appellant was present or likely to be present, and with purpose to commit in the

habitation a criminal offense, namely theft. R.C. 2911.12(A)(2). Appellant argues there

were no witnesses who connected him to any of these alleged burglaries.

{¶84} On count 1, Ruth McLeod testified that her home in Madison Township

was broken into on May 5, 2010, and personal belongings were stolen, including a

Toshiba laptop and an Olympus digital camera. The laptop and camera were

uncovered during the search of appellant's car on May 22, 2010. Additionally, cell

phone records indicate that both Every and appellant were in the vicinity of McLeod's

residence on May 5, 2010.

{¶85} On count 2, Jean and Wesley Moon testified that their home in Madison

Township was broken into on May 14, 2010. Personal belongings, including a Minolta

28

digital camera and a pair of Bushnell binoculars, were taken. The digital camera and

binoculars were uncovered during the search of appellant's car on May 22, 2010.

Additionally, cell phone records place Ivery and appellant around the area of the crime

on the night and time in question. Further, Mrs. Moon, present during the burglary, was

able to identify a vehicle leaving her home similar to the one operated by appellant on

May 22, 2010.

{¶86} On count 3, Timothy Herubin testified that his apartment in Willoughby

Hills was broken into and several personal belongings, including a 42-inch Phillip LCD

Television and a Beretta "Tomcat" .32 caliber handgun, were taken. Mr. Herubin was

able to identify a television like the one taken from his home. This identification was

made from a photograph taken from appellant's hotel room at the Mosley Select Suites.

Herubin stated that the television looked similar to his because the "Phillips" decal was

situated on the same place and it also appeared to be 42 inches. Witness Michael

Arnett, who was responsible for the video surveillance system in the complex, alleged

he saw an African-American male (inferring fvery) and a Caucasian male (inferring

appellant) walking in a hallway in the complex. He also claims to have recognized the

duo once again as the perpetrators on the surveillance video. Though this testimony

was, in part, later discredited, the jury could have still believed Arnett's version of

events. A firearm specification was attached to count 3, involving the stolen Beretta

handgun. The jury had a sufficient basis to connect appellant to the stolen handgun

through the testimony of Herubin and Arnett.

{¶87} On count 4, Helen Nekic testified her home in Timberlake, Ohio, was

broken into sometime on June 5, 2010, or in the morning of June 6, 2010. Many unique

29

items were stolen, including four sets of sterling silverware, a bed comforter, blankets,

and pillows. The bed comforter was later found in use on appellant's bed in his room at

the Mosley Select Suites. Additionally, cell phone records place appellant and Ivery in

Timberlake near the vicinity of Nekic's residence on these days. Specifically, the

records indicate that Ivery's phone moved from a location near the Mosley Select Suites

to Timberlake, Ohio.

{¶88} With regard to count 5, Sergio Difranco explained that his residence in

Willoughby Hills, Ohio, was broken into. Some of his stolen property, such as a Tag

Heuer watch, was later recovered in appellant's hotel room.

{¶89} On counts 6 through 10, receiving stolen property, the state had the

burden of proving that appellant received, retained, or disposed of property, knowing or

having reasonable cause to believe that the property had been obtained through the

commission of a theft offense. R.C. 2913.51(A). Appellant contends there was no

forensic evidence that connected him to the stolen property.

{¶90} There is no requirement that forensic evidence connect a party directly to

stolen property. Requiring a latent print reading on all recovered or suspected stolen

property is simply not necessary. In fact, "[p]ossession of stolen property for purposes

of the receiving stolen property statute, R.C. 2913.51, may be constructive as well as

actual." State v. Hankerson, 70 Ohio St.2d 87, syllabus (1982). "Constructive

possession exists when an individual knowingly exercises dominion and control over an

object, even though that object may not be within his immediate physical possession."

Id., following State v. Wolery, 46 Ohio St.2d 316, 329 (1976).

30

(¶91} On count 6, Harry and Laura Risinger testified to items being stolen from

their home in West Springfield, Pennsylvania, valued over $500 including a Forehand &

Wadsworth .32 caliber revolver. Testimony further indicates that the Risinger home was

equipped with an alarm which sounded when the break-in occurred. Neighbor

Raymond Brzozowski, unsettled by the blaring siren, went to the Risinger lot to

investigate. Mr. Brzozowski testified to seeing individuals in a Cadillac with an Ohio

license plate ending in "4749," which was linked to appellant. The stolen items were

later uncovered in appellant's hotel room. On count 9, the Risingers also testified

regarding their stolen Forehand & Wadsworth .32 caliber revolver. This weapon was

also uncovered in appellant's hotel room, providing a basis for the finding that the

property was a weapon and for the firearm specification.

{¶92} With regard to count 7, Deborah and Stanley Freeland testified to personal

belongings stolen from their home in excess of $500. These items were later recovered

in appellant's hotel room. Similarly, on counts 8 and 10, Curtis and Betty Jo Eaton

testified to their stolen belongings being worth over $500. One such stolen item, a

handgun, provided a basis for the firearm specification attached to count 10.

(¶93} With regard to counts 11, 12, and 13, having weapons under disability, the

state had the burden of proving that appellant knowingly acquired, had, carried, or used

a firearm and that appellant had been convicted of a felony offense of violence. R.C.

2923.13(A)(2). Appellant argues there was no evidence he was in possession or

control or had knowledge of any weapons.

ۦ94} As explained above, possession need not be "actual," but instead can be

constructive. This court has held this proposition is also true as applied to weapons: "A

31

person can either actually or constructively possess a firearm to satisfy the element of

'having' in the offense [of having weapons under disability]." State v. Scarl, 11th Dist.

No. 2003-P-0125, 2004-Ohio-7227, ¶72, citing State v. Messer, 107 Ohio App.3d 51

(9th Dist.1995) and State v. Hardy, 60 Ohio App.2d 325, 327 (8th Dist.1978). In Scarl,

we explained that "constructive possession can be established by the fact that a

defendant had access to a weapon and had the ability to control its use." Id. at ¶73,

citing State v. Thomas, 11th Dist. No. 95-T-5253, 1996 Ohio App. LEXIS 4545 (Oct. 11,

1996). Further, "physical possession or ownership of the weapon is not necessary, and

mere access to a weapon can establish guilt." ld., citing State v. Wolery, 46 Ohio St.2d

316 (1976). Additionally, "circumstantial evidence can be used to support a finding of

constructive possession." (Citation omitted.) Id. at ¶74.

(¶95) Evidence from trial indicates the following weapons were recovered from

appellant's room under a dresser at the Mosley Select Suites: a Harrington &

Richardson Arms .32 caliber revolver (count 11); a Forehand & Wadsworth .32 caliber

revolver (count 12); and a Sturm Ruger .357 magnum revolver (count 13). Firearms

Examiner Mitch Wisniewski testified that all three weapons were operational. Though

appellant was not present when the warrant for the hotel room was executed, we

conclude that the presence of the weapons in appellant's established room constitutes

constructive possession.

{196{ Finally, as to count 14, engaging in a pattern of corrupt behavior, the state

had the burden of proving that appellant, while associated with an enterprise, conducted

or participated in, directly or indirectly, the affairs of the enterprise through a pattern of

corrupt activity. R.C. 2923.32(A)(1).

32

{¶97} R.C. 2923.31(C) defines "enterprise" to include the following: "any

individual, sole proprietorship, partnership, limited partnership, corporation, trust, union,

government'agency, or other legal entity, or any organization, association, or group of

persons associated in fact although not a legal entity." Enterprise includes illicit as well

as legitimate enterprises.

{¶98} Though the statute describes what an enterprise may include, it does not

actually define what an enterprise requires. Such an omission has been previously

recognized by appellate courts in Ohio. To better understand this statute, the Twelfth

Appellate District recently analyzed the definition of "enterprise" and adopted a

"streamlined" definition from the federal case of Boyle v. U.S., 556 U.S. 938 (2009),

noting °'an association-in-fact enterprise is simply a continuing unit that functions with a

common purpose."' State v. Barker, 12th Dist. No. CA2011-08-088, 2012-Ohio-887,

¶10, quoting Boyle at 2245-2246.

{¶99) Appellant contends, with little specificity, that there was no basis to

support his conviction under this count. 'Based on the evidence adduced at trial

involving the various dealings of fvery and appellant, there is a sufficient basis on which

to conclude that the duo engaged in an enterprise which carried out the common

purpose to engage in theft.

{¶100} After viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of all charges proven

beyond a reasonable doubt. Appellant's fifth assignment of error is without merit.

{¶101} Appellant's sixth assignment of error states:

33

{¶102} "The trial court committed prejudicial error by sentencing Defendant-

Appellant without proper consideration of allied offenses of Engaging in a Pattern of

Corrupt Activity, Burglary, Receiving Stolen Property, and Weapons under Disability."

{¶103} Under his sixth assignment of error, appellant argues that the court

committed a sentencing error by failing to include lesser offenses with the charge of

engaging in a pattern of corrupt activity. Appellant contends that counts 1 through 13

should have merged with count 14 because the charges are allied offenses of similar

import. In so doing, appellant explains his sentence would be reduced from 21 years to

nine years. However, the record belies this assertion. The jury was instructed that the

incidents of corrupt activity alleged to make up the pattern of corrupt activity consist of

all the burglary charges (counts 1 though 5) and all the receiving stolen property

charges (counts 6 through 10). The three counts of weapons under disability were not

included in the "pattern," because they have no bearing on the concept of "enterprise" in

this case. The question on review is therefore whether the charges of burglary and

receiving stolen property merge with engaging in a pattern of corrupt activity.

{11104} R.C. 2941.25(A) codifies the doctrine of merger, explaining that, "[w]here

the same conduct by defendant can be construed to constitute two or more allied

offenses of similar import, the indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one."

{¶105} R.C. 2941.25(B) provides the converse:

{¶106} Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more

offenses of the same or similar kind committed separately or with a

34

separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them.

{¶107} The Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, ¶48, set forth a new standard for determining whether merger is apposite:

"In determining whether offenses are allied offenses of similar import under R.C.

2941.25(A), the question is whether it is possible to commit one offense and commit the, . ,

other with the same conduct, not whether it is possible to commit one without

committing the other." The court went onto explain, "[ijf the offenses correspond to such

a degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import." Id.

{¶108} "Conversefy, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge." (Emphasis sic.) !d. at ¶51.

{¶109} Here, the state relies on the Twelfth Appellate District case State v.

Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222. There, the appellant argued

that the trial court erred by failing to merge the charges of trafficking in marijuana and

engaging in a pattern of corrupt activity. Id. at ¶63. The court concluded that the act of

trafficking marijuana was committed with a separate animus from engaging in a pattern

of corrupt activity. Id. at ¶66. The court held: " Engaging in a pattern of corrupt activity

requires an additional state of mind from trafficking in marijuana to form an enterprise.

35

Appellant possessed the intent to traffic in drugs, which does not require him to form an

enterprise." Id. at 167.

{1110) In reviewing the facts of this case under the Johnson test, it is clear that

commission of a single offense could not establish a"pattern" of corrupt activity.

Therefore, the commission of each individual offense, standing alone, would not result

in committing the offense of engaging in a pattern of corrupt activity. State v. Reyes,

6th Dist. No. WD-03-059, 2005-Ohio-2100. Further, it is the establishment of the

enterprise for the purpose of committing crimes that the statute proscribes. The corrupt

activity does not actually require the commission of the underlying offense. R.C.

2923.31(1) defines "corrupt activity" as "engaging in, attempting to engage in, conspiring

to engage in, or soliciting, coercing, or intimidating another person to engage in" a wide

variety of conduct.

{¶111} In addition to receiving property knowing or having reason to believe the

property was stolen (counts 6 through 10) and knowingly trespassing in an occupied

structure to commit theft when a person other than appellant was present or likely to be

present (counts 1 through 5), appellant had to conduct or participate in, directly or

indirectly, the affairs of the enterprise. As explained above, the record indicates that

appellant and Ivery engaged in an enterprise with the common purpose to commit theft

offenses. Occasionally, the duo would use Ivery's resources, such as his sister's car,

and sometimes they would use appellant's resources, such as his personal automobile.

The intermingling of resources required the duo to sustain a relationship and act in

concert.

36

{¶112} Evidence of the offense of engaging in a pattern of "corrupt activity" can

be established in a number of ways, including planning, purchase. of equipment, staking

out potential targets, or a variety of other behaviors. The formation of an enterprise and

engaging in activity in furtherance of that enterprise is evident in this case. Under the

facts and circumstances, it was proper not to consider the offenses allied.

{¶113} Appellant's sixth assignment of error is without merit.

{¶114} Appellant's seventh assignment of error states:

{¶115} "The trial court committed prejudicial error by sentencing Defendant-

Appellant without proper calculation of credit for time served."

{¶116} In appellant's final assignment of error, he contends that the trial court

erred in failing to grant credit for jail time served. The trial court afforded appellant no

credit for time served. Appellant argues he should receive a credit of 220 days.

Appellant has calculated this figure from January 11, 2011, to his sentencing on August

18, 2011. On January 11, 2011, the trial court ordered a warrant to convey appellant,

who, at the time, was incarcerated in the Cuyahoga County Jail awaiting disposition on

a separate case, to the Lake County Sheriffs Department for arraignment on January

21, 2011. The entry explained that appellant was to remain in Lake County Jail until

further order of the court.

{¶117} R.C. 2967.191 mandates a reduction of a prison term for related days of

confinement:

{¶118} The department of rehabilitation and correction shall reduce the

stated prison term of a prisoner or, if the prisoner is serving a term

for which there is parole eligibility, the minimum and maximum

37

term or the parole eligibility date of the prisoner by the total

number of days that the prisoner was confined for any reason

arising out of the offense for which the prisoner was convicted and

sentenced including confinement in lieu of bail while awaiting trial,

confinement for examination to determine the prisoner's

competence to stand trial or sanity, and confinement while

awaiting transportation to the place where the prisoner is to serve

the prisoner's prison term. (Emphasis added.)

{1119} The statute essentially codifies the Equal Protection principle that

defendants shall not be subjected to disparate treatment based on economic status;

that is, for instance, defendants unable to make bail while awaiting trial must be credited

for the time they are confined. See State v. Mason, 7th Dist. No. 10 CO 20, 2011-Ohio-

3167, ¶14, citing State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856.

{¶120} As the statute indicates, "a defendant is not entitled to jail-time credit for

any period of incarceration arising from facts that are separate or distinguishable from

those on which the current (or previous) sentence was based." State v. Chafin, 10th

Dist. No. 06AP-1108, 2007-Ohio-1840, ¶9.

{¶121} The state argues the Cuyahoga County Court of Common Pleas already

gave appellant credit for the time he served in Lake County. Appellant does not confirm

or deny the crediting of any time from the Cuyahoga County court, but instead argues

any such time is a "nullity" because those charges arose from the same set of facts that

comprised the offenses for which he was sentenced in Lake County.

38

{¶122} The record concerning this assignment of error is limited. A formal motion

for jail-time credit was filed by appellant, responded to by the state, and ruled upon by

the trial court afterthe notice of appeal was filed with this court. As such, the arguments

contained therein, and any attached exhibits before the trial court for consideration, are

not part of the record. However, the following is evident from the record: First,

appellant was incarcerated in Cuyahoga County before he was arraigned on charges in

Lake County; the Lake County trial court had to issue a warrant so that appellant could

be conveyed. Next, the trial court, on the record, noted that appellant would stay

incarcerated in Lake County so that he could more regularly meet with his defense.

Finally, after trial, appellant was returned to Cuyahoga County to ultimately face

charges there. .Thus, it is evident by Lake County's refusal to credit this time that it

considered appellant essentially "borrowed" from Cuyahoga County, and it would be up

to that jurisdiction to apply the credit.

{¶123} This case presents similar facts as State v. Mason, 2011-Ohio-3167.

There, Mason argued he should have been credited 27 days, which was the time he

served in the Columbiana County jail after sentencing on unrelated charges in Stark

County. The Seventh Appellate District, noting the evidentiary burden in such a case,

explained:

Mason is not entitled to jail-time credit for days he served on an unrelated

case. See R.C. 2967.191. Absent evidence that Stark County did not

include these days as time served or other evidence indicating that Mason

was being held at the time on the Columbiana County charges, Mason

has failed to meet his evidentiary burden. ld. at ¶22.

39

See also State v. McGrath, 8th Dist. No. 97207, 2012-Ohio-816, 117 ("It is the

defendant's burden to show the error in the calculation of jail-time credit"); State v.

Parsons, 10th Dist. No. 03AP-1176, 2005-Ohio-457, ¶9 ("We are unable to determine

whether. the trial court erred and appellant has failed to satisfy his burden"); State v.

Slager, 10th Dist. Nos. 08AP-581-582 & OBAP-709-710, 2009-Ohio-1804, ¶25 ("If the

defendant fails to demonstrate error, and no miscalculation in the jail-time credit is

apparent from the record, any claimed error must be overruled").

{¶124) On this record, there is no indication that Cuyahoga County failed to

include those days as time served. In fact, per the Cuyahoga County Court of Common

Pleas' docket, we take notice that appellant received 456 days for time served credited

on his cases in Cuyahoga County. Further, there is no indication that the charges arose

from the same set of facts that comprised the offenses for which he was sentenced in

Lake County. Appellant highlights the testimony of Sergeant Kwiatkowski of the Walton

Hills Police Department, where the witness explained that he aided in the investigation

with the Wickliffe Police Department. However, with nothing more, this does not

establish that the same set of facts provided the basis for both charges.

{¶125) Appellant's seventh assignment of error is without merit.

1¶1261 The judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.

40