[Cite as State v. Barnett, 2019-Ohio-2313.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 18CA76
                                                :
 RANDY KRISTOPHER BARNETT                       :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court
                                                    of Common Pleas, Case No. 2018-CR-
                                                    0014



JUDGMENT:                                           AFFIRMED IN PART; VACATED IN
                                                    PART AND JUDGMENT ENTERED



DATE OF JUDGMENT ENTRY:                             June 10, 2019




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 GARY BISHOP                                        WILLIAM CRANMER
 RICHLAND COUNTY PROSECUTOR                         470 Olde Worthington Rd., Suite 200
                                                    Westerville, OH 43082
 JOSEPH C. SNYDER
 38 S. Park St.
 Mansfield, OH 44902
Richland County, Case No. 18CA76                                                          2

Delaney, J.

       {¶1} Defendant-Appellant Randy Kristopher Barnett appeals his August 9, 2018

conviction and sentence for Possession of Heroin, a fifth-degree felony in violation of R.C.

2925.11(A) and (C)(6)(a). Plaintiff-Appellee is the State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On January 17, 2018, Defendant-Appellant Randy Kristopher Barnett was

indicted on one count of Possession of Heroin, a fifth-degree felony in violation of R.C.

2925.11(A) and (C)(6)(a). Barnett was arraigned on February 20, 2018 and he entered a

plea of not guilty.

       {¶3} Barnett filed a motion to suppress on May 2, 2018. He argued the heroin

seized on March 22, 2017 should be suppressed because it was obtained during a

warrantless search of his person. A hearing was held on May 29, 2018 and the following

evidence was adduced at the hearing.

       {¶4} On March 22, 2017, Detective Nicole Gearhart of the Mansfield Police

Department METRICH Drug Enforcement Unit was on patrol in an unmarked car in a

high-crime area known for drug activity. (T. 7). During the patrol, Det. Gearhart observed

a known drug dealer walking in his area of residence near North Lake Park. (T. 6).

Because he was a known drug dealer, Det. Gearhart watched his activity. (T. 6). While

the known drug dealer was walking, Det. Gearhart observed a vehicle driving slowly

nearby. Barnett was in the front passenger seat of the vehicle. (T. 6). Det. Gearhart lost

sight of the vehicle, but then saw the vehicle drive out of an alley and drop off the known

drug dealer. (T. 6). Det. Gearhart followed the vehicle to the parking lot of an AutoZone

and she called Officer Kory Kaufman, a K9 officer of the Mansfield Police Department, to
Richland County, Case No. 18CA76                                                        3


make contact with the vehicle because based on her skills, training, knowledge, and

experience, she believed a drug transaction had occurred. (T. 6, 7). Barnett’s vehicle was

parked and Det. Gearhart parked her vehicle in a manner in which Barnett’s parked

vehicle could not leave. (T. 10-11).

       {¶5} Officer Kory Kaufman and his canine, Denise, of the Mansfield Police

Department arrived at the AutoZone. As he parked his car, Officer Kaufman saw Barnett

exit his vehicle. (T. 14). He denied parking his marked patrol vehicle to block Barnett’s

vehicle. Officer Kaufman exited his vehicle, left Denise in the vehicle, and asked Barnett

if he could speak with him. (T. 14). Barnett did not respond. Denise had been barking

loudly from inside the marked vehicle, so Officer Kaufman asked Barnett again if he could

speak with him. Barnett came over to the front of Officer Kaufman’s vehicle and they

started speaking. (T. 14). Officer Kaufman knew that Barnett was suspected of having

been associated with a drug transaction. He was concerned about officer safety and

asked Barnett if he could pat him down. (T. 14). Barnett consented. (T. 14).

       {¶6} Officer Kaufman conducted a pat down of Barnett. He had Barnett face the

marked unit and put his hands behind his back. (T. 15). Officer Kaufman grabbed

Barnett’s bottom hand, so he had control of his hands and leaned Barnett forward. (T.

15). As he conducted the pat down, Officer Kaufman saw the pocket of Barnett’s hoodie

bulge open, which made the inside of the pocket visible to him. (T. 15). Officer Kaufman

observed a small baggie containing a black or brown rock inside Barnett’s hoodie pocket,

which he thought was heroin. (T. 15). Officer Kaufman finished the pat down for weapons,

did not discover any weapons, and pulled out the small baggie from Barnett’s pocket. (T.

15). The contents of the baggie were determined to be heroin.
Richland County, Case No. 18CA76                                                          4


         {¶7} On May 30, 2018, the trial court overruled Barnett’s motion to suppress.

The trial court found that the interaction between Officer Kaufman and Barnett was a

consensual encounter followed by a consensual search. On seeing what he believed to

be heroin inside Barnett’s pocket, Officer Kaufman had probable cause to remove the

baggie from Barnett’s pocket.

         {¶8} A change of plea hearing was held on June 15, 2018. Barnett changed his

plea to no contest. The State recommended community control. The trial court ordered a

presentence investigation before sentencing.

         {¶9} The trial court held the sentencing hearing on August 8, 2018. The trial court

stated the presentence investigation report showed Barnett owed $80.00 in lab fees to

the Mansfield Police Department Crime Lab. (T. 37). The trial court found Barnett guilty

of Possession of Heroin. It sentenced Barnett to six months in prison and three years of

discretionary postrelease control. It ordered Barnett to pay restitution in the amount of

$80.00 to the Mansfield Police Department Crime Lab. (Sentencing Entry, August 9,

2018).

         {¶10} It is from the August 9, 2018 Sentencing Entry that Barnett now appeals.

                                ASSIGNMENTS OF ERROR

         {¶11} Barnett raises two Assignments of Error:

         {¶12} “I. THE TRIAL COURT VIOLATED APPELLANTS’ RIGHTS TO BE FREE

FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE U.S. AND OHIO

CONSTITUTIONS BY DENYING THE MOTION TO SUPPRESS.

         {¶13} “II. THE TRIAL COURT DID NOT HAVE THE LEGAL AUTHORITY TO

ORDER RESTITUTION PAYABLE TO THE LOCAL POLICE CRIME LAB.”
Richland County, Case No. 18CA76                                                             5


                                         ANALYSIS

                                         I. Consent

       {¶14} Barnett argues in his first Assignment of Error that the trial court should

have granted his motion to suppress because the totality of the circumstances

demonstrated Barnett’s encounter with Officer Kaufman and subsequent search by the

officer were not consensual. We disagree.

       {¶15} Appellate review of a trial court's decision to grant or deny a motion to

suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328,

713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996).

A reviewing court is bound to accept the trial court's findings of fact if they are supported

by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d

1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other

grounds.

       {¶16} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
Richland County, Case No. 18CA76                                                           6


597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

                                 Consensual Encounter

       {¶17} This Court has observed the law within the State of Ohio recognizes three

types of police-citizen encounters: (1) consensual encounters, (2) Terry stops, and (3)

arrests. State v. Yacobucci, 5th Dist. Delaware No. 18 CAC 07 0055, 2019-Ohio-3, ¶ 25

citing State v. Stonier, 5th Dist. Stark No. 2012 CA 00179, 2013-Ohio-2188, citing State

v. Taylor, 106 Ohio App.3d 741, 667 N.E.2d 60 (2nd Dist. 1995). In this case, the trial

court found Barnett consented to the encounter and search by Officer Kaufman.

       {¶18} In State v. Yacobucci, 5th Dist. Delaware No. 18 CAC 07 0055, 2019-Ohio-

36, we reviewed what constitutes a “consensual encounter.” A consensual encounter

occurs when a police officer approaches a person in a public place, engages the person

in conversation, requests information, and the person is free to refuse to answer and walk

away. State v. Taylor, supra. The United States Supreme Court “[has] held repeatedly

that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S.

429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “[M]erely approaching an individual on the

street or in another public place[,]” seeking to ask questions for voluntary, uncoerced
Richland County, Case No. 18CA76                                                           7

responses, does not violate the Fourth Amendment. United States v. Flowers, 909 F.2d

145 (6th Cir. 1990). “[E]ven when officers have no basis for suspecting a particular

individual, they may generally ask questions of that individual; ask to examine the

individual's identification; and request consent to search his or her luggage.” Florida v.

Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The person approached,

however, need not answer any question put to him, and may continue on his way. Florida

v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Moreover, he may not

be detained even momentarily for his refusal to listen or answer. Id. So long as a

reasonable person would feel free “to disregard the police and go about his business,”

California v. Hodari D, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the

encounter is consensual and no reasonable suspicion is required. Bostick, 501 U.S. at

434.

       {¶19} The Ohio Supreme Court has held that a police officer’s statement, “Hey,

come here a minute,” while nominally couched in the form of a demand, is actually a

request that a citizen is free to regard or disregard. State v. Yacobucci, 5th Dist. Delaware

No. 18 CAC 97 0055, 2019-Ohio-36, ¶ 27 citing State v. Smith, 45 Ohio St.3d 255, 544

N.E.2d 239 (1989).

       {¶20} In United States v. Mendenall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d

497, the United States Supreme Court made the following observation: “[w]e conclude

that a person has been “seized” within the meaning of the Fourth Amendment only if, in

view of all of the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.” Examples of circumstances that might indicate a

seizure, even where the person did not attempt to leave, would be the threatening
Richland County, Case No. 18CA76                                                         8


presence of several officers, the display of a weapon by an officer, some physical touching

of the person of the citizen, or the use of language or tone of voice indicating compliance

with the officer's request might be compelled. Id.

       {¶21} A consensual encounter does not implicate the Fourth Amendment's

protection against unreasonable searches and seizures unless the police officer has

restrained the person's liberty by a show of authority or physical force such that a

reasonable person would not feel free to decline the officer's request or otherwise

terminate the encounter. Id. at 747-48.

       {¶22} Barnett argues that under the totality of the circumstances, he was seized

by Officer Kaufman because there were multiple officers present, Officer Kaufman was in

a marked cruiser and wore his uniform, and Officer Kaufman asked to speak with Barnett

twice, the second time raising his voice because Denise was barking loudly from the

cruiser. The appellant in State v. Yacobucci raised a similar argument under comparable

circumstances, stating such an encounter could not be consensual. State v. Yacobucci,

2019-Ohio-36, ¶ 31. We disagreed with the appellant, finding under the totality of the

circumstances, the appellant’s encounter was consensual such that the Fourth

Amendment was not implicated. Id. at ¶ 32. “While Patterson displayed his lights and had

on a uniform, he did not physically touch or threaten appellant, did not order appellant

into the cruiser, did not draw his weapon, did not indicate non-compliance would lead to

arrest, and did not block appellant's way. Appellant did not ask if he was free to leave.”

Id.

       {¶23} In the present case, there was no testimony that Officer Kaufman displayed

the lights on his patrol unit. There was no evidence that Officer Kaufman threatened
Richland County, Case No. 18CA76                                                         9


Barnett, drew his weapon, or indicated that non-compliance would lead to arrest. Officer

Kaufman asked to speak with Barnett twice, the second time raising his voice to be heard

over Denise barking in the patrol unit. Denise was secured inside the vehicle and there

was no evidence that Officer Kaufman threatened to release the dog from the vehicle if

Barnett did not comply with his request. The encounter took place in the parking lot of an

AutoZone, a public area. Det. Gearhart was present, but record does not indicate that she

was close to Barnett or was behaving in a threatening manner.

       {¶24} Under the totality of the circumstances, we find this was a consensual

encounter such that the Fourth Amendment was not implicated.

                                   Protective Search

       {¶25} The trial court next found that Officer Kaufman’s protective search of

Barnett was likewise consensual.

       {¶26} It is well-established that warrantless searches, i.e., “searches conducted

outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment -- subject only to a few specifically

established and well-delineated exceptions.” (Footnote omitted.) State v. Orosz, 11th

Dist. No. 2016-L-057, 2017-Ohio-707, 86 N.E.3d 50, ¶ 25 quoting Katz v. United States,

389 U.S. 347, 357, 88 S.Ct. 507, 19 L.E.2d 576 (1967).

       {¶27} One such exception to a warrantless search is known variously as a

protective search, “patdown,” or “stop and frisk.” The exception entails “a reasonable

search for weapons for the protection of the police officer, where he has reason to believe

that he is dealing with an armed and dangerous individual, regardless of whether he has

probable cause to arrest the individual for a crime.” Id. at ¶ 26 citing Terry v. Ohio, 392
Richland County, Case No. 18CA76                                                         10


U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The officer need not be absolutely

certain that the individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was in

danger.” Id. “And in determining whether the officer acted reasonably in such

circumstances, due weight must be given, not to his inchoate and unparticularized

suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw

from the facts in light of his experience.” Id.

       {¶28} Officer Kaufman responded to the scene based on information from Det.

Gearhart that a possible drug transaction involving Barnett had taken place. The location

he was responding to was a known high crime area with drug activity. (T. 7). Officer

Kaufman testified that based on his skills, training, and experience, he was aware that

people involved in drug transactions often carry weapons. (T. 14). When he spoke with

Barnett, Officer Kaufman was concerned about officer safety. (T. 14). Officer Kaufman

testified he asked Barnett if he minded if he patted him down. (T. 14). Officer Kaufman

stated Barnett told him to go ahead. (T. 14).

       {¶29} In this case, we find the trial court did not err to find the protective search

was consensual. We next find that if not consensual, the protective search was

reasonable based on the circumstances of the scene. Officer Kaufman was speaking with

an individual possibly involved in a drug transaction in a known high crime area. The

inferences drawn by Officer Kaufman based on his experience were reasonable under

the circumstances.

       {¶30} Barnett’s first Assignment of Error is overruled.
Richland County, Case No. 18CA76                                                          11


                                 II. Restitution vs. Costs

       {¶31} At the August 8, 2018 sentencing hearing, it appears from the transcript that

the trial court reviewed Barnett’s presentence investigation report that showed Barnett

owed $80.00 in lab fees to the Mansfield Police Department Crime Lab. (T. 37). While not

specifically stated in the record, the parties do not contest the inference that the lab fees

were the cost of testing the black or brown rock in the plastic baggie found in Barnett’s

hoodie pocket on March 22, 2017. The rock was determined to be heroin, leading to

Barnett’s charge, conviction, and sentence for Possession of Heroin.

       {¶32} In its August 9, 2018 Sentencing Entry, the trial court ordered Barnett to pay

restitution in the amount of $80.00 to the Mansfield Police Department Crime Lab. Barnett

argues in his second Assignment of Error that the trial court was without authority to award

restitution to the Mansfield Police Department Crime Lab for the cost of lab fees because

the Mansfield Police Department Crime Lab is not a “victim.” We agree but find the error

harmless pursuant to R.C. 2925.511.

       {¶33} As part of a defendant's felony sentence, R.C. 2929.18(A)(1) allows a trial

court to order restitution “by the offender to the victim of the offender's crime * * * in an

amount based on the victim's economic loss.” If the court imposes restitution, the statute

further provides that restitution may be made “to the victim in open court, to the adult

probation department that serves the county on behalf of the victim, to the clerk of courts,

or to another agency designated by the court.” State v. Cartwright, 12th Dist. Fayette No.

CA2016-11-018, 2017-Ohio-7212, ¶ 10, appeal not allowed, 152 Ohio St.3d 1409, 2018-

Ohio-723, 92 N.E.3d 880, 2018 WL 1093936, ¶ 10 (2018). R.C. 2929.18 does not define

“victim.” Id. at ¶ 12.
Richland County, Case No. 18CA76                                                           12


       {¶34} It has been held that law enforcement or other governmental agencies are

not entitled to restitution on the ground the agencies are not victims under R.C.

2930.01(H)(1) or are simply expending funds or incurring expenses in the performance

of their duties. Id. at ¶ 16 citing State v. Toler, 174 Ohio App.3d 335, 2007–Ohio–6967

(3rd Dist.) (sheriff's office not entitled to restitution for costs incurred in extraditing

defendant; restitution available only to the actual victim of the offense); State v. Steward,

6th Dist. Lucas No. L–14–1083, 2015–Ohio–3081 (state conceded restitution to dog

warden for defendant's dogs' boarding and medical expenses was improper; dog warden

was not a victim under R.C. 2930.01 [H] ); State v. Samuels, 4th Dist. Washington No.

03CA8, 2003–Ohio–6106 (sheriff's office not entitled to restitution for voluntarily spending

its own funds to pursue a drug buy); Hunter, 2013–Ohio–3759 (fire department not

entitled to restitution for arson investigatory expenses; fire department was not a victim

under R.C. 2930.01[H][1] ); and State v. Wolf, 176 Ohio App.3d 165, 2008–Ohio–1483

(3rd Dist.) (fire departments not entitled to restitution for expenses incurred in conjunction

with an arson fire; fire departments were not the victims of defendant's arson offense).

       {¶35} In this case, the parties do not dispute the lab fees due to the Mansfield

Police Department Crime Lab were based on expenses incurred in the performance of its

public duty. While the Mansfield Police Department Crime Lab was not a “victim” under

R.C. 2929.18(A)(1) for the purposes of restitution, the trial court had statutory authority to

order Barnett to reimburse the Mansfield Police Department Crime Lab for the lab fees.

R.C. 2925.511 authorizes a sentencing court to order an offender to reimburse law

enforcement agencies for the costs of tests to identify the controlled substance at issue

in a drug possession offense, so long as the test comes back positive. The statute reads:
Richland County, Case No. 18CA76                                                       13


      In addition to the financial sanctions authorized or required under sections

      2929.18 and 2929.28 of the Revised Code and to any costs otherwise

      authorized or required under any provision of law, the court imposing

      sentence upon an offender who is convicted of or pleads guilty to a drug

      abuse offense may order the offender to pay to the state, municipal, or

      county law enforcement agencies that handled the investigation and

      prosecution all of the costs that the state, municipal corporation, or county

      reasonably incurred in having tests performed under section 2925.51 of the

      Revised Code or in any other manner on any substance that was the basis

      of, or involved in, the offense to determine whether the substance contained

      any amount of a controlled substance if the results of the tests indicate that

      the substance tested contained any controlled substance. No court shall

      order an offender under this section to pay the costs of tests performed on

      a substance if the results of the tests do not indicate that the substance

      tested contained any controlled substance.

      The court shall hold a hearing to determine the amount of costs to be

      imposed under this section. The court may hold the hearing as part of the

      sentencing hearing for the offender.

R.C. 2925.511.

      {¶36} Pursuant to R.C. 2925.511, the trial court was permitted to order Barnett to

reimburse the Mansfield Police Department Crime Lab for the costs of the tests performed

on the contents of the baggie found on Barnett’s person because the tests indicated the

contents of the baggie were a controlled substance, heroin. We find it was error for the
Richland County, Case No. 18CA76                                                         14


trial court to order Barnett to pay “restitution” instead of “costs” to the Mansfield Police

Department Crime Lab because it was not a “victim” entitled to restitution under R.C.

2929.18(A)(1). The error, however, was harmless considering R.C. 2925.511.

       {¶37} We vacate the portion of the trial court’s August 9, 2018 sentencing entry

ordering Barnett to pay restitution in the amount of $80.00 to the Mansfield Police

Department Crime Lab. Pursuant to our authority under App.R. 12(B), we enter judgment

that Barnett shall pay court costs and fees permitted pursuant to R.C. 2929.18 and R.C.

2925.511, including $80.00 to the Mansfield Police Department Crime Lab.

       {¶38} Barnett’s second Assignment of Error is sustained and overruled in part.

                                      CONCLUSION

       {¶39} The judgment of the Richland County Court of Common Pleas is affirmed

in part, vacated in part, and judgment rendered pursuant to App.R. 12(B).

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.
