[Cite as State v. Dennis, 2018-Ohio-2495.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      28593

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRIAN DENNIS                                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2013 06 1690

                                 DECISION AND JOURNAL ENTRY

Dated: June 27, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Brian Dennis appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     On June 22, 2013, police located a vehicle that had been reported stolen at a

residence in Akron. The resident of the home informed police that the person they were looking

for was in the back. Police found Dennis in a back bedroom. When Dennis was arrested, police

found a loaded .45 caliber handgun on the bed where Dennis had been seated. Upon searching

Dennis, police found a substance that was determined to be cocaine in his pocket, and, upon

searching the vehicle, police found a substance determined to be heroin and a scale.

        {¶3}     Dennis was indicted on one count of possession of heroin, one count of

possession of cocaine, one count of having weapons while under disability, and one count of

receiving stolen property. Dennis filed a motion to suppress and a hearing was held. The trial
                                                2


court denied the motion in a brief entry. The matter proceeded to a jury trial. The jury found

Dennis not guilty of receiving stolen property but guilty of the remainder of the charges. The

trial court sentenced Dennis to an aggregate term of three years.

       {¶4}    Dennis appealed and this Court reversed the trial court’s decision concluding that

the trial court’s failure to make findings of fact with respect to its ruling on the motion to

suppress hindered our review. State v. Dennis, 9th Dist. Summit No. 27692, 2016-Ohio-8136, ¶

6. We therefore remanded the matter for the trial court to set forth factual findings with respect

to its ruling on the motion to suppress. Id. Upon remand the trial court issued an entry ruling on

the motion to suppress that included factual findings. Dennis has again appealed, raising two

assignments of error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
       SUPPRESS.

       {¶5}    Dennis argues in his first assignment of error that the trial court erred in denying

his motion to suppress. Specifically, he asserts that the trial court erred in determining that

Dennis did not have standing to file a motion to suppress and in concluding that the officer

received consent to enter the residence. Because we conclude the trial court did not err in

concluding that Dennis did not possess an expectation of privacy in the premises, we need not

address the issue of consent.

       {¶6}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio
                                                3


St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court's findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as

true, the appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶7}    “The Fourth Amendment to the United States Constitution and Section 14, Article

I of the Ohio Constitution secure an individual’s right to be free from unreasonable searches and

seizures.” State v. Hoang, 9th Dist. Medina No. 11CA0013-M, 2012-Ohio-3741, ¶ 39, quoting

State v. Moore, 2d Dist. Montgomery No. 20198, 2004-Ohio-3783, ¶ 10. “The United States

Supreme Court has found that the ‘capacity to claim the protection of the Fourth Amendment

depends * * * upon whether the person who claims the protection of the Amendment has a

legitimate expectation of privacy in the invaded place.’” Hoang at ¶ 39, quoting Minnesota v.

Olson, 495 U.S. 91, 95 (1990). “The Supreme Court of Ohio has adopted this rule of law and

generically refers to an individual’s ‘legitimate expectation of privacy’ as having ‘standing’ to

bring such an action.” Hoang at ¶ 39, fn. 1, citing State v. Williams, 73 Ohio St.3d 153, 166

(1995). “Such an expectation is legitimate only if it is one that society is prepared to recognize

as reasonable.” Hoang at ¶ 39. “[T]he burden is upon the defendant to prove facts sufficient to

establish such an expectation.” Id.

       {¶8}    “The United States Supreme Court has recognized that an individual who is an

overnight guest may have a legitimate expectation of privacy in the home in which he is

visiting.” Hoang at ¶ 40, citing State v. Draper, 6th Dist. Fulton No. F-04-026, 2005-Ohio-920,

¶ 10, citing Olson at 96-97. “However, a guest who is merely present with the consent of the
                                                 4


householder does not necessarily enjoy the same expectation of privacy.” Hoang at ¶ 40, citing

Minnesota v. Carter, 525 U.S. 83, 90 (1998).

       {¶9}     On appeal, Dennis has only argued that the record establishes that he was an

overnight guest. Thus, he maintains that he did have a legitimate expectation of privacy in the

premises.     He has not made any argument that some other status conferred upon him an

expectation of privacy in the premises. See App.R. 16(A)(7).

       {¶10} At the hearing, Officer James Donohue and Dennis testified. Officer Donohue, a

patrol officer with the Akron Police Department testified that he was on duty on June 22, 2013

around 1:30 a.m. He received a call from dispatch stating a person had called in to report seeing

a stolen vehicle and had followed it to an address on Davis Street. Officer Donohue proceeded

to the address and located a vehicle matching the description and license plate number in the

driveway of the residence. Officer Donohue and another officer approached the front of the

residence and Officer Donohue’s partner and another officer approached the rear.            Officer

Donohue knocked on the door and a woman answered and identified herself as the homeowner.

Officer Donohue could not remember if she stated that she lived there with her children but he

did testify that she did not give any indication that she lived there with anyone in addition to her

children. Officer Donohue asked her about the vehicle, told her it was stolen, and asked if the

persons associated with it were in the house. She responded affirmatively and indicated the he

was in the back. The resident indicated that Officer Donohue needed to get a warrant and

Officer Donohue told her, “Don’t get caught up in his mess.” At that point, the woman said

something like “all right” and let the police inside. After the police entered, the woman started

to walk towards the back where Dennis was but Officer Donohue told her that he could not let

her back there because Dennis was a suspect in a felony case. The woman complied.
                                                 5


       {¶11} Officer Donohue proceeded to the back left portion of the house and found

Dennis sitting on the bed “looking intently at [his] cell phone[.]” Dennis did not appear to realize

that Officer Donohue was there. When Dennis noticed Officer Donohue, Dennis looked “very

startled[.]” Officer Donohue ordered Dennis to stand up and put handcuffs on him. Officer

Donohue then noticed a loaded .45 caliber handgun where Dennis had been seated.

       {¶12} Dennis testified that he had been staying at the residence for a week and a half,

almost two weeks at the time of his arrest. He indicated he was staying there because he and his

girlfriend got into a fight. Dennis testified that he was generally sleeping on the couch at the

residence but also slept in the bedroom sometimes. He asserted that he knew the homeowner all

of his life and that he “grew up with her.” However, when Dennis was asked what the resident’s

children’s names were, Dennis seemed to have difficulty remembering at least one of the

children’s names.

       {¶13} On the night in question, Dennis testified that he was sitting in the room with the

resident and they were waiting for some friends to come back with beer when they heard the

knock at the door. The resident went to answer the door, asked who it was, and Dennis heard her

say “[t]he police.” At the time, he thought it was their friends joking around because “they

w[ere] drunk and stuff.” However, when she opened the door, Dennis heard the police radios

and Dennis turned down the television to listen. According to Dennis he heard the whole

conversation between the police and the resident. He heard the woman tell the police, “please

don’t come in my house[.]” Then he heard what sounded like arguing, so he pulled out his

phone and was about to call his brother and tell him about the car that someone had given him

when the officer came around the corner to the bedroom. Dennis did not hear the woman give

police permission to enter the house.
                                                6


       {¶14} Dennis acknowledged that he was no longer staying with the woman at the time

of the hearing and that he had only spoken to her once since his arrest. Dennis was asked

whether he gave the police a different address as his residence and Dennis responded that that

was “the old address.”

       {¶15} The trial court concluded that Dennis lacked standing based in large part on its

finding that Dennis’ testimony was not credible. The trial court is in the best position to make

those credibility determinations. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. In

explaining why the trial court found Dennis’ testimony not credible the trial court stated the

following:

       Defendant testified that he has known the resident for his entire life, yet, he
       struggled to name her two children with whom he also claimed to be residing for
       the past one and half to two weeks. Defendant claimed to be upset and in the
       process of calling his brother after discovering the car someone gave him was
       stolen, yet, Officer Don[o]hue found Defendant looking “intently” at his cell
       phone unaware and then startled by Officer Don[o]hue’s appearance. Defendant
       did not go to [the residence] for the purpose of retiring for the night, rather, to
       celebrate the resident’s special occasion with some friends who were expected to
       be returning from the store with beer. Defendant’s testimony failed to rationally
       explain why he would give police officers an “old address * * *.” Upon review,
       the Court finds Defendant did not have a legitimate expectation of privacy in [the
       residence], therefore, lacks standing to file a motion to suppress.

       {¶16} After reviewing the totality of the evidence in light of Dennis’ arguments on

appeal, we cannot say the trial court erred in finding that Dennis lacked a legitimate expectation

of privacy in the residence and therefore lacked standing to contest the entry into the house. See

Hoang, 2012-Ohio-3741, at ¶ 39. In sum, the trial court did not believe that Dennis was an

overnight guest. The trial court’s rationale for finding that Dennis’ testimony was not credible

and therefore finding that he was not an overnight guest is supported by the record. As noted by

the trial court, there were portions of Dennis’ testimony that were not logical and were

inconsistent with his claim that he had been residing at the residence for almost two weeks and
                                                7


had known the resident for his entire life. Dennis offered no explanation as to why he would

have provided an “old address” to police instead of the address of the premises where he was

found. Dennis also had difficulty remembering the name of at least one of the resident’s children

despite allegedly living there and knowing her for his whole life. Moreover, there was evidence

from which one could reasonably infer that Dennis was over the house to party, as opposed to

stay the night; Dennis himself averred he and the resident were waiting for the return of their

friends, who were already drunk, and were coming back with beer even though it was already

1:30 a.m.

       {¶17} In light of Dennis’ argument on appeal, which is limited to asserting that Dennis

was an overnight guest, we cannot say that the trial court erred in concluding that Dennis lacked

a legitimate expectation of privacy in the residence; the trial court’s finding that Dennis was not

an overnight guest was supported by competent, credible evidence in light of the trial court’s

credibility determinations. Burnside at ¶ 8.

       {¶18} Dennis’ first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY ADMITTING, OVER OBJECTION OF
       TRIAL COUNSEL, THE USE OF AN INCIDENT REPORT TO “REFRESH
       THE RECOLLECTION” OF A WITNESS WHO DID NOT CREATE THE
       INCIDENT REPORT.

       {¶19} Dennis argues in his second assignment of error that the trial court abused its

discretion in admitting certain evidence. Specifically, Dennis alleges that, over objection, the

trial court allowed Officer Donohue, during his testimony, to utilize an incident report in

violation of Evid.R. 803(5), the hearsay exception for recorded recollection.

       {¶20} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court.” State v. Haywood, 9th Dist. Summit No. 28040, 2017-Ohio-8299, ¶ 53. “Absent an issue
                                                8


of law, this Court, therefore, reviews the trial court’s decision regarding evidentiary matters

under an abuse of discretion standard of review.” Id., quoting State v. Aguirre, 9th Dist. Lorain

No. 13CA010418, 2015-Ohio-922, ¶ 6. An abuse of discretion indicates that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶21} Evid.R. 803(5) allows for the admission of :

       A memorandum or record concerning a matter about which a witness once had
       knowledge but now has insufficient recollection to enable him to testify fully and
       accurately, shown by the testimony of the witness to have been made or adopted
       when the matter was fresh in his memory and to reflect that knowledge correctly.
       If admitted, the memorandum or record may be read into evidence but may not
       itself be received as an exhibit unless offered by an adverse party.

“In order to admit a statement as substantive evidence under Evid.R. 803(5), a party must

establish through the testimony of the witness that[:] (1) the witness does not have a present

recollection of the events in question; (2) the recorded recollection was made at a time when the

events were fresh in the witness’[] memory; (3) the recorded recollection was made or adopted

by the witness; and (4) the recorded recollection correctly reflects the prior knowledge of the

witness.” (Internal quotations and citations omitted.) State v. Martin, 9th Dist. Summit No.

25438, 2011-Ohio-1213, ¶ 13.

       {¶22} The State argues that there was no error because the report was used to refresh

Officer Donohue’s memory in accordance with Evid.R. 612. “While ‘[a] party may refresh the

recollection of a witness under Evid.R. 612 by showing him or her a prior statement[, ] * * * a

party may not read the statement aloud, have the witness read it aloud, or otherwise place it

before the jury.’” Martin at ¶ 15, quoting State v. Ballew, 76 Ohio St.3d 244, 254 (1996).

       {¶23} We note that Dennis has failed to specifically identify the location in the record of

the testimony that he challenges on appeal, see Loc.R. 7(F), and has also failed to specifically
                                               9


identify the testimony that he believes was inadmissible. Instead, he has broadly challenged the

portions of Officer Donohue’s testimony during which he utilized an incident report.

       {¶24} From what we can determine from the record, Officer Donohue utilized an

incident report during several questions and Dennis objected during several of those questions.

First, Officer Donohue was asked the time of the incident. Officer Donohue responded that he

could not say for sure without seeing the report. The prosecutor asked if seeing the report would

refresh Officer Donohue’s recollection and he responded affirmatively. The prosecutor then

handed Officer Donohue the report and asked him to look at it and let the prosecutor know when

his recollection was refreshed. Officer Donohue then provided the time of the incident.

       {¶25}     Shortly thereafter, Officer Donohue was asked what the make and model of the

vehicle under investigation was. Officer Donohue again asked to see the report and then

responded with the make and model of the vehicle.

       {¶26} Later in the testimony, Officer Donohue was asked for the serial number of the

gun. Officer Donohue noted that it would be in the incident report and asked the prosecutor if he

should read the number. The prosecutor responded affirmatively and Officer Donohue read the

serial number into the record.

       {¶27} Near the end of the direct examination, Officer Donohue was asked what Dennis’

date of birth was. Officer Donohue asked if he should read the date of birth and the prosecutor

answered affirmatively. Officer Donohue then read the date of birth. Immediately after, the

prosecutor asked for Dennis’ social security number and Officer Donohue provided it.

       {¶28} It appears that, despite the State’s argument to the contrary, at least some of

Officer Donohue’s testimony was not permitted under Evid.R. 612. Officer Donohue read the

serial number of the gun, Dennis’ date of birth, and, it appears, his social security number into
                                                10


the record from the incident report. Such is not permitted under Evid.R. 612. See Martin, 2011-

Ohio-1213, at ¶ 15. There is also an argument that that testimony runs afoul of Evid.R. 803(5) as

it is not clear from the record that Officer Donohue made or adopted the report or indicated that

the report correctly reflected his prior knowledge. See Martin at ¶ 15.

       {¶29} Notwithstanding the foregoing, this Court has also held that violations of Evid.R.

803(5) are subject to harmless error analysis. See id. at ¶ 13, citing State v. Moorer, 9th Dist.

Summit No. 24319, 2009-Ohio-1494, ¶ 16-17. Even assuming the testimony was not admissible,

Dennis has not explained how the admission of this testimony prejudiced him. We note that all

of the challenged testimony was admitted into evidence elsewhere. A forensic expert relayed the

serial number of the gun, Dennis himself provided his birth date and social security number

during his police interview that was played for the jury, and another officer testified about the

time of the incident and the make and model of the vehicle at issue. Moreover, during Dennis’

police interview, he acknowledged that the gun and drugs were his and admitted to having a

prior conviction for aggravated robbery. Given the foregoing, we can only conclude that any

error in the admission of the challenged testimony was harmless. See Martin at ¶ 13.

       {¶30} Dennis’ second assignment of error is overruled.

                                               III.

       {¶31} Dennis’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                11


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
