[Cite as State v. Dennis, 2016-Ohio-8136.]


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

STATE OF OHIO                                        C.A. No.      27692

        Appellee

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

                                 DECISION AND JOURNAL ENTRY

Dated: December 14, 2016



        HENSAL, Judge.

        {¶1}     Defendant-Appellant, Brian Dennis, appeals his convictions from the Summit

County Court of Common Pleas for possession of cocaine, possession of heroin, and having a

weapon while under disability. For the following reasons, this Court remands the matter for

further proceedings consistent with this opinion.

                                                I.

        {¶2}     According to the testimony adduced at the suppression hearing, in the early

morning hours of June 22, 2015, Akron Police received a call regarding a stolen vehicle. The

caller followed the vehicle until it pulled into the driveway of the home located at 964 Davis

Street in Akron.       Police officers arrived and observed the stolen vehicle backed into the

driveway. Two officers then secured the back of the home, while other officers, including

Detective (then Officer) James Donohue, knocked on the front door. A woman answered the

door, identified herself as the homeowner, and indicated that the driver of the vehicle was in the
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back bedroom. The homeowner then told Detective Donohue that he was not permitted to enter

her home without a warrant, to which he responded: “Don’t get caught up in his mess.”

According to Detective Donohue, the homeowner then said “[o]kay” or “all right” and allowed

the officers to enter.

        {¶3}     Officers located Mr. Dennis in the back bedroom, where he was watching

television and looking at his phone with the bedroom door open. According to Detective

Donohue, he ordered Mr. Dennis to stand up, which revealed a gun underneath where he had

been sitting. Officers then searched his person and found a bag of cocaine in his pocket. Upon

searching the vehicle, officers located a digital scale and a bag of heroin. Mr. Dennis was

arrested and taken to the police station for questioning. While there, Mr. Dennis admitted that

the cocaine, heroin, and gun were his. Regarding the vehicle, Mr. Dennis later testified that he

“rented” it from someone in exchange for cocaine, and did not know that it had been stolen.

        {¶4}    Mr. Dennis was charged with possessing heroin in violation of Revised Code

Section 2925.11(A)/(C)(6), possessing cocaine in violation of Section 2925.11(A)/(C)(4), having

a weapon while under disability in violation of Section 2923.13(A)(2), and receiving stolen

property in violation of Section 2913.51(A). Mr. Dennis pleaded not guilty, and the case

proceeded to a jury trial. After a two-day trial, the jury returned a verdict of guilty on all counts

except receiving stolen property. Mr. Dennis has appealed, raising four assignments of error for

our review.     For ease of consideration, we have combined Mr. Dennis’s first and second

assignments of error, as well as his third and fourth assignments of error.
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                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN [IT] OVERRULED THE
       DEFENDANT’S MOTION TO SUPPRESS, VIOLATING MR. DENNIS’S
       FOURTH AMENDMENT RIGHTS TO BE FREE FROM UNREASONABLE
       SEARCH AND SEIZURE. THE POLICE ENTERED THE HOME AND
       BEDROOM WHERE BRIAN DENNIS WAS STAYING WITHOUT A
       WARRANT, AND THE POLICE FOUND EVIDENCE USED AGAINST MR.
       DENNIS AT TRIAL, WHICH VIOLATED MR. DENNIS’S RIGHT TO A FAIR
       TRIAL, AND THE CONVICTION MUST BE REVERSED.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN [IT] RULED AGAINST THE
       DEFENDANT’S MOTION TO SUPPRESS EVIDENCE, ON THE GROUNDS
       THAT MR. DENNIS DID NOT HAVE AN EXPECTATION OF PRIVACY
       WHERE HE WAS STAYING. THIS VIOLATED MR. DENNIS’S RIGHT TO
       A FAIR TRIAL, MERITING REVERSAL OF BRIAN DENNIS’S
       CONVICTIONS.

       {¶5}    In his first assignment of error, Mr. Dennis argues that the trial court erred by

overruling his motion to suppress the evidence regarding the gun and drugs found on or near him

because the officers seized those items as a result of a warrantless and otherwise unlawful search

and seizure.   He, therefore, argues that the trial court’s denial of his motion violated his

constitutional right to be free from an unreasonable search and seizure. In his second assignment

of error, Mr. Dennis argues that the trial court erred by denying his motion to suppress on the

grounds that he did not have a reasonable expectation of privacy in the home and, therefore,

lacked standing. Regarding our standard of review,

       [a]ppellate review of a motion to suppress presents a mixed question of law and
       fact. 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. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. 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.
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(Citations omitted.) State v. Schmidt, 9th Dist. Lorain No. 13CA010499, 2015-Ohio-146, ¶ 19,

quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶6}    Criminal Rule 12(F) provides that, “[w]here factual issues are involved in

determining a motion, the court shall state its essential findings on the record.” Here, the trial

court’s journal entry denying Mr. Dennis’s motion to suppress contained no findings of fact.

While the transcript from the suppression hearing reflects that the trial court found that Mr.

Dennis lacked a reasonable expectation of privacy, it is unclear which facts precipitated the trial

court’s decision in that regard, or whether the trial court’s ultimate decision relied upon legal

conclusions derived from other facts contained in the record. Our review, therefore, is hindered

by the trial court’s failure to make findings of fact. State v. Payne, 9th Dist. Wayne No.

11CA0029, 2012-Ohio-305, ¶ 14, citing State v. Martin, 9th Dist. Summit No. 24812, 2009-

Ohio-6948, ¶ 13-15. Compare State v. Gilmore, 9th Dist. Summit No. 27344, 2015-Ohio-2931,

¶ 4, fn. 1 (concluding that the trial court’s failure to issue findings of fact did not hinder the

Court’s review because any factual dispute did not affect the outcome of the Court’s analysis).

Thus, due to our limited standard of review in suppression appeals, we must reverse the trial

court’s judgment as it relates to the suppression motion and remand this matter for the trial court

to set forth factual findings. See Payne at ¶ 14.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT VIOLATED MR. DENNIS’S SIXTH AMENDMENT
       RIGHT TO CROSS-EXAMINATION WHEN THE COURT PERMITTED THE
       STATE TO USE A POLICE REPORT DRAFTED BY OFFICER URIDALES
       (SIC), WHEN OFFICER URIDALES (SIC) WAS UNAVAILABLE TO GIVE
       TESTIMONY AND BE SUBJECT TO CROSS EXAMINATION.
                                                    5


                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY OVERRULING THE OBJECTION OF
       DEFENSE COUNSEL WHEN MULTIPLE POLICE OFFICERS WERE
       PERMITTED TO TESTIFY FROM A POLICE REPORT THEY DIDN’T
       DRAFT, WITHOUT A FOUNDATION ESTABLISHED BY THE
       PROSECUTOR FOR THE REPORT, IN VIOLATION OF THE RULE
       AGAINST HEARSAY.

       {¶7}    In light of our disposition of Mr. Dennis’s first and second assignments of error,

we conclude that any discussion of the remaining assignments of error would be premature and,

therefore, we will not address them at this time.

                                                III.

       {¶8}     The judgment of the Summit County Court of Common Pleas as it relates to Mr.

Dennis’s suppression motion is reversed, and the cause is remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       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.
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       Costs taxed to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT




CARR, P. J.
CONCURS.

MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶9}    I agree that this matter must be remanded to the trial court; however I disagree

that it must be remanded for the trial court to set forth findings of fact. Instead, I would conclude

that the transcript of proceedings sufficiently sets forth the trial court’s findings of fact such that

this Court could adequately review the merits of this appeal. Upon review of the merits, I would

sustain Mr. Dennis’ second assignment of error; I would conclude that the trial court erred in

determining that Mr. Dennis lacked standing because in so doing, the trial court based its

credibility determinations on matters outside the record and made factual findings that are not

supported by the record. Accordingly, I would remand the matter to the trial court to reconsider

the issue of standing.

       {¶10} Crim.R. 12(F) provides in part that, “[w]here factual issues are involved in

determining a motion, the court shall state its essential findings on the record.” Here, the trial

court did just that. It stated its findings on the record at the suppression hearing. There is

nothing in Crim.R. 12(F) requiring those findings to also appear in a journal entry resolving the

motion. See State v. Ronau, 6th Dist. Lucas No. L-02-1147, 2002-Ohio-6687, ¶ 10 (concluding
                                                 7


that the trial court’s recitation of its reasons for granting the motion to suppress on the record at

the suppression hearing was sufficient to satisfy Crim.R. 12(F)’s requirements).

       {¶11} In this case, at the end of the suppression hearing, the trial court made the

following statement concerning whether it believed Mr. Dennis’ testimony about what he

overheard: “[T]here’s a TV on. [Mr. Dennis is] in the back bedroom. There’s a knock at the

door of the front house. I looked at the description of the house on the auditor’s website while

we were talking. I think it’s actually, like, a 973 square feet ranch house, with three bedrooms. I

think that it is unlikely that Mr. Dennis heard many words or every little thing.”

       {¶12} Later, the trial court stated:

       If someone is staying at someone’s house for a couple of weeks and that person
       has small children and I’ve been friends with that person all my life, I think you
       should know the names of the children. Not only what they call them[.] I think
       you should know more about that and you don’t. And that gives me the indication
       that it was, at best, a flophouse for you, and at a flophouse I don’t think you have
       those same expectations of privacy that you might have if you are, for example,
       staying for a while. It’s a choice of words, but I’m going to deny the motion.

       {¶13} I would conclude that the foregoing statements by the trial court were sufficient to

constitute findings of fact as that phrase is used in Crim.R. 12(F) and that those findings were

sufficient to allow this Court to review the merits of Mr. Dennis’ appeal.

       {¶14} The first set of statements by the trial court is problematic because it evidences

that at least part of the trial court’s credibility determinations were based upon its consideration

of information not in the record.

       {¶15} The second set of statements by the trial court is also problematic for a few

reasons. First, there was no testimony, aside from Mr. Dennis’, about how many children Ms.

Clark had or what their names were. It is unclear whether the names Mr. Dennis referenced were

nicknames or legal names; Mr. Dennis only stated that, with respect to the girl’s name, that was
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the name he knew her by. Thus, it is difficult to conclude that Mr. Dennis did not know the

children’s names, which appears to be one of the reasons why the trial court discounted his

testimony. Additionally, it is unclear what precisely the trial court meant by characterizing the

residence as a “flophouse[,]” and it is thus also unclear if that characterization is supported by

the record.

       {¶16} Given the foregoing, I would conclude that the trial court erred in determining

that Mr. Dennis lacked an expectation of privacy in the residence because it based its credibility

determinations on facts outside the record and facts that are not supported by the record.

Therefore, I would remand the matter for the trial court to reconsider the issue. In light of the

remand, I would decline to address the remaining assignments of error at this time, as I believe

that doing so is premature.


APPEARANCES:

JACLYN PALUMBO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RACHEL M. RICHARDSON, Assistant
Prosecuting Attorney, for Appellee.
