[Cite as State v. Metz, 2019-Ohio-3370.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                             No. 107945
                 v.                              :

ANTHONY METZ,                                    :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 22, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-618532-C


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Cullen Sweeney, Assistant Public Defender, for appellant.


MARY EILEEN KILBANE, A.J.:

                   Defendant-appellant, Anthony Metz (“Metz”), appeals the trial

court’s denial of his motion to release his cell phone. For the reasons set forth below,

we affirm.
                 In July 2017, Metz and three codefendants were charged as a result of

an incident that occurred on April 6, 2017. Metz was charged with one count each

of rape and kidnapping.1 Metz’s three codefendants were each charged with rape

and kidnapping. Two of the codefendants were each charged with assault and one

codefendant was charged with pandering obscenity.

                 In March 2018, the matter proceeded to a joint bench trial. At the

conclusion of trial, the court found Metz and his codefendants guilty of all the

charges. The trial court sentenced Metz to 10 years for rape, to be served consecutive

to 5 years for kidnapping, for a total prison term of 15 years. Metz appealed his

convictions and sentence.2

                 In October 2018, Metz filed a motion for the return of his cell phone,

which was seized by the Cleveland Police Department during the investigation of the

underlying allegations. In the motion, Metz argued that the state had no legitimate

interest in retaining his cell phone because neither the cell phone nor any evidence

extracted was introduced at the trial. Metz also argued that the state had already

extracted all data from the cell phone.

                 The state opposed the motion, noting that Metz was found guilty of

participating in the sexual assault of a victim and the sexual assault was recorded



      1   The kidnapping charge included a sexual motivation specification.
      2 Metz’s direct appeal is currently pending before the court as State v. Metz, 8th
Dist. Cuyahoga No. 107212. The direct appeal of Metz’s three codefendants are also
pending before the court.
through the use of a cell phone. The state acknowledged that Metz’s cell phone was

not introduced as evidence, but argued his convictions remain pending on appeal

and the cell phone was potential evidence should a new trial be required.         In

addition, the state argued that Metz had not articulated a compelling reason for the

return of the cell phone at the present time and, given his 15-year prison sentence,

will suffer no prejudice.

               In November 2018, the trial court denied Metz’s motion for release of

his cell phone. Metz subsequently filed a motion for reconsideration arguing the

retention of the cell phone violates the Fourth Amendment to the United States

Constitution. Before the trial court could rule on the motion to reconsider and prior

to the state filing a responsive motion, Metz filed a notice of appeal raising the

following single assignment of error.

                               Assignment of Error

      The trial court erred in denying [Metz’s] motion for the return of his
      Apple iPhone.

               In the sole assignment of error, Metz argues the trial court erred in

denying his motion for the return of his cell phone. Under his assignment of error,

Metz contends the trial court erred in denying his motion because the state failed to

introduce the cell phone as evidence in the trial. Metz also claims the failure to

return his cell phone violates his Fourth Amendment rights.

               Under R.C. 2981.11(A)(1),

      [a]ny property that has been * * * seized pursuant to a search warrant,
      or otherwise lawfully seized * * * and that is in the custody of a law
      enforcement agency shall be kept safely by the agency, pending the
      time it no longer is needed as evidence or for another lawful purpose[.]

                 Based on the above statute, if an item is potentially needed for

evidence or for some other lawful purpose, it may be held. Alternatively, if the item

is no longer needed, it may be returned or otherwise disposed. State v. Bates, 6th

Dist. Williams No. WM-11-007, 2012-Ohio-1397, ¶ 14.

                 Directly pertinent to the above statute, the state argued in its motion

in opposition that Metz’s direct appeal remains pending in this court and the cell

phone is potential evidence should a new trial be ordered. Although, the motion was

denied without a hearing, the trial court could have reasonably determined, given

Metz’s pending appeal, it was possible for the convictions to be vacated and a new

trial ordered. If the matter was remanded for a new trial, the state might choose to

present the cell phone as evidence, despite not doing so in the first instance.

                 Under these circumstances, R.C. 2981.11(A)(1) permits the state to

retain control over the cell phone. State v. Bolton, 2017-Ohio-8903, 100 N.E.3d

1275, ¶ 16 (2d Dist.), citing State v. Rivera, 6th Dist. Lucas No. L-13-1170, 2014-

Ohio-742, ¶ 6.

                 Nonetheless, Metz argues the continued retention of his cell phone

contravenes the Fourth Amendment. Metz asserts that the search of his cell phone

uncovered no evidence of a sexual assault, but only personal information, and all the

data has been extracted, thus the state’s justification for seizing and searching the

cell phone has ceased to exist. Regardless of its evidentiary weight, Metz’s cell phone
is a piece of evidence that could be used during a potential retrial and may be held

under R.C. 2981.11(A). As a result of Metz’s pending appeal, and those of his

codefendants, the overriding concern is that the cell phone is potentially still useful

as evidence and should be retained by the state. Thus, at this time, we find no abuse

of discretion in denying Metz’s motion for the return of his cell phone.

               Accordingly, we overrule the sole assignment of error.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of out this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
RAYMOND C. HEADEN, J., CONCUR
