[Cite as State v. Brooks, 2013-Ohio-3505.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2012 CA 0071
DEMONDRAY BROOKS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2011 CR 0856H


JUDGMENT:                                      Affirmed in Part; Reversed in Part and
                                               Remanded


DATE OF JUDGMENT ENTRY:                        August 14, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            DAVID HOMER
PROSECUTING ATTORNEY                           13 Park Avenue West
JILL M. COCHRAN                                Suite 609
ASSISTANT PROSECUTOR                           Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12CA71                                                            2

Wise, J.

       {¶1}   Appellant Demondray Brooks appeals his convictions and sentences on

several felony counts, including drug trafficking and possession, in the Court of

Common Pleas, Richland County. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

       {¶2}   On the evening of November 28, 2011, Mansfield police officers were

dispatched to a reported domestic disturbance at a house on Glenwood Heights

Avenue. Officer Sarah Mosier arrived in the area first; she waited briefly for backup

assistance. She and Officer Dave Johnson then went to the front door, where they were

met by a female resident, Ariel Hall. The officers noticed that Ariel had a black eye,

which she stated had been caused the day before. Ms. Hall also advised that a man

she called “Dray,” who sometimes lived in the residence, was present. Shortly

thereafter, a man carrying a handgun started down the interior stairs from the second

floor, but then ran back upstairs. As further discussed infra, the residence was further

searched, leading to the discovery of drugs and other contraband items.

       {¶3}   On January 6, 2012, subsequent to a preliminary hearing in the Mansfield

Municipal Court, appellant was indicted by the Richland County Grand Jury on three

counts of having weapons while under a disability (R.C. 2923.13(A)(3) – Counts I, II,

and IX), trafficking in drugs (R.C. 2925.03(A)(2) - Count III), domestic violence (R.C.

2919.25(A) - Count IV), receiving stolen property (R.C. 2913.51(A) – Count V), two

counts of aggravated menacing (R.C. 2903.21(A) – Counts VI and VII), and possession

of heroin (R.C. 2925.11(A)) – Count VIII).

       {¶4}   Appellant initially entered pleas of not guilty to all of the above counts.
Richland County, Case No. 2012 CA 0071                                                   3


       {¶5}   Appellant filed a motion to suppress on February 23, 2012. At that time,

appellant also requested a transcript of the preliminary hearing.1 Said motion was heard

by the trial court on March 30, 2012 and April 11, 2012.

       {¶6}   On April 13, 2012, the trial court overruled the motion to suppress.

       {¶7}   In a separate action (case no. 2012 CR 0023), Ariel Hall, the victim of the

domestic violence offense, was indicted for perjury after she gave conflicting accounts

regarding the perpetrator. She was arraigned on January 24, 2012; however, the case

was dismissed on the prosecutor's motion on April 17, 2012 after Hall had submitted a

proffer against appellant.

       {¶8}   Appellant’s case proceeded to a jury trial on July 23 and 24, 2012.

Appellant was thereafter found guilty by the jury on all charges, except that the jury

could not agree on a verdict on the count of receiving stolen property (Count V), which

was thereafter dismissed.

       {¶9}   On August 1, 2012, the trial court sentenced appellant as follows: Count I,

II, and IX, third degree felonies, three years, nine months, and three years, respectively,

to be served concurrently; Count VI and VII, first degree misdemeanors, six months,

concurrent to each other and the above three counts; Count III, a fourth degree felony,

twelve months, consecutive to an unstated sentence for Count IV, a fourth degree

felony, and consecutive to nine months on Count VIII, a fourth degree felony. Counts III,

IV, and VIII were also ordered to be served consecutive to Count I. In total, appellant

received a sentence of four years and nine months in prison.

1
   Ms. Hall purportedly had testified at the preliminary hearing that the person in her
home was a person named "Bingo" and that she had misidentified "Bingo" as "Dray" to
the police, causing them to believe that the person they saw was appellant. The
preliminary hearing transcript is not included in the record before us.
Richland County, Case No. 2012 CA 0071                                                 4


      {¶10} On August 3, 2012, appellant was ordered to be granted credit for 255

days of incarceration in the Richland County Jail.

      {¶11} Appellant filed a notice of appeal on August 13, 2012. He herein raises the

following three Assignments of Error:

      {¶12} “I. THE TRIAL COURT ERRED PREJUDICIALLY BY OVERRULING THE

DEFENDANT'S        MOTION      TO    SUPPRESS        WITHOUT     CONSIDERING        THE

DEFENDANT'S WITNESS.

      {¶13} “II.    THE SENTENCE IS CONTRARY TO LAW WHERE THE

CONSECUTIVE SENTENCES FOR TRAFFICKING IN DRUGS AND POSSESSION

OF HEROIN WERE ALLIED OFFENSES OF SIMILAR IMPORT.

      {¶14} “III. THE SENTENCE FOR COUNT IV IS VOID.”

                                               I.

      {¶15} In his First Assignment of Error, appellant contends the trial court erred in

overruling his motion to suppress. We disagree.

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

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State
Richland County, Case No. 2012 CA 0071                                                  5

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. As a general rule,

“determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911.

      {¶17} The Fourth Amendment to the United States Constitution protects the

“right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures * * *.” The United States Supreme Court has held

that “ ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.’ ”

(Brackets sic.) Payton v. New York (1980), 445 U.S. 573, 589-590, 100 S.Ct. 1371, 63

L.Ed.2d 639, quoting Silverman v. United States (1961), 365 U.S. 505, 511, 81 S.Ct.

679, 5 L.Ed.2d 734. The burden is upon the state to overcome the presumption that

warrantless searches of homes are per se unreasonable by demonstrating that the

search fell within one of the well-recognized exceptions to the warrant requirement.

State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 373 N.E.2d 1252. The

doctrine of exigent circumstances is one of these judicially recognized exceptions to the

search warrant requirement. See, e.g., State v. Akron Airport Post 8975 (1985), 19 Ohio

St.3d 49, 51, 482 N.E.2d 606. "Police officers, as officers of the peace, are charged with

the duty to prevent crime, 'preserve the peace,' and 'protect persons and property.’ ”

State v. Hyde (1971), 26 Ohio App. 2d 32, 33, 268 N.E.2d 820, citing R.C. 737.11.

Courts weigh the totality of the circumstances as to whether it was reasonable for an

officer to believe that someone inside a residence was in need of immediate aid. See

State v. Morris (Nov. 29, 1989), Montgomery App.No. 10992, 1989 WL 145175. Exigent
Richland County, Case No. 2012 CA 0071                                                     6


circumstances generally must include the necessity for immediate action that will

"protect or preserve life or avoid serious injury." See Mincey v. Arizona, 437 U.S. 385,

392-393, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408 (1978). The emergency justifies the

warrantless entry, and, while lawfully present, the police may seize evidence in plain

view. See Thompson v. Louisiana, 469 U.S. 17, 10 S.Ct. 409, 83 L.Ed2d 246 (1984);

State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, ¶ 16.

       {¶18} As an initial matter, we note the State responds herein that there may be a

question of appellant's standing to raise issues of the legality of the search, based on

testimony as to how often he stayed at Ms. Hall’s house. However, this issue was not

addressed by the trial court, and we find it is not necessary to reach it in the present

appeal.

       {¶19} The search in the case sub judice essentially consisted of two phases: the

officers’ initial entry into the residence, followed by the consented search after the police

discovery of guns under a mattress, as well as an open lockbox in one of the bedrooms

with a gun, drug paraphernalia, a digital scale, and what appeared to be heroin inside.

We will herein focus on the first phase.

       {¶20} The record indicates that after Officer Johnson joined Officer Mosier on

the scene, both officers approached the front door to 108 Glenwood Heights and

knocked. No one immediately answered the door, but Officer Mosier could hear small

children inside. A few minutes later, the door was answered by Ariel Hall, who had a

severely bruised and blackened eye. Ms. Hall would only speak in a whisper. The

officers both testified to smelling marijuana while they were standing in the entrance to

the home. When asked if there were other people in the house, Ms. Hall was somewhat
Richland County, Case No. 2012 CA 0071                                                   7


evasive but eventually indicated that her children and "Dray" were inside. Ms. Hall did

not invite the officers inside. Ms. Hall later testified that she told the officers several

times to leave and that had only called the police station to ask a question about

whether she could press charges against someone for previously causing injury to her.

       {¶21} A few minutes thereafter, appellant descended the stairs with a firearm in

hand, which he pointed at the officers. Officer Mosier did not initially see appellant come

down the stairs, but she heard Officer Johnson yell "gun." She then also saw appellant

on the stairs. The officers did not enter the home immediately, but waited for more

backup before entering. Officer Mosier went around the back of the house in case

someone tried to flee. She heard what sounded like an individual jumping out of the

window, not sure whether the person who fled the home was in fact appellant or

someone else. She did not pursue the subject. Because Officer Mosier did not get a

positive ID, and because Ms. Hall had been less than forthcoming with information, the

officers were unsure if it had been appellant who had fled or if there were other

dangerous persons in the house.

       {¶22} Ms. Hall took the children to her room and grabbed a large kitchen knife

that she kept by the bed, apparently scared that appellant would return. Officer Mosier

then asked Ms. Hall to get the children away from the scene, to a safe place, which she

did. Ms. Hall testified that while she was present, the officers were clearly looking for

other people in the house, by searching in closets and under beds. In the bedroom

described as belonging to appellant, the police located an open lockbox in plain view on

the bed with a silver gun, drug paraphernalia, a digital scale and bindles of what

appeared to be heroin. Two additional guns, including one similar to the one appellant
Richland County, Case No. 2012 CA 0071                                                   8


was carrying when he came down the stairs, were located between a mattress and a

box spring in a bedroom on the east side of the residence. After Ms. Hall had taken the

children to a safe place and returned to her home, she signed a consent-to-search form.

However, the guns and the drugs at issue were found before the consent form was

signed.

      {¶23} Thus, the situation presented is that officers responding to a domestic

disturbance call were faced with an armed man inside the house, a scared potential

victim with children, and someone, who may or may not have been appellant, escaping

out a window. The belief that an armed person might be still found within the home at

that point was reasonable. Even after Ms. Hall had taken the children to a neighbor and

returned, had the gunman still been in the house, a decision by the officers to seek a

warrant would likely have left Ms. Hall in danger. The evidence was all found during the

initial sweep of the home for persons or additional occupants. Considering the totality of

the circumstances, we find exigent circumstances existed regarding the safety of

anyone else in the home and the officers themselves; the warrantless entry and limited

search were thus justified. Accordingly, we hold the trial court did not err in denying the

motion to suppress the items seized from the open lockbox during the search of the

residence under the facts and circumstances of this case.

      {¶24} Appellant’s First Assignment of Error is overruled.

                                                II.

      {¶25} In his Second Assignment of Error, appellant argues the trial court erred in

convicting and sentencing him on both trafficking in drugs and possession of heroin,

based on the same seized quantity of drugs. We agree.
Richland County, Case No. 2012 CA 0071                                                  9


       {¶26} Appellant herein was sentenced to nine months in prison for trafficking in

drugs (R.C. 2925.03(A)(2)), a fourth degree felony, consecutive with nine months in

prison for possession of heroin (R.C. 2925.11(A)), also a felony of the fourth degree. It

is undisputed that both counts were based on the same ten packages of heroin, and

that the trafficking count was based on the fact that the drugs were packaged for

distribution in multiple units, not based on any act of distributing.

       {¶27} R.C. 2941.25 states as follows:

       {¶28} “(A) Where 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.

       {¶29} “(B) 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 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.”

       {¶30} The State herein concedes that the two charges at issue are allied

offenses under the facts and circumstances presented. Applying the analysis set forth

by the Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061,

2010–Ohio–6314, we find reversible error in the trial court’s failure to merge the offense

of trafficking in drugs (R.C. 2925.03(A)(2)) with possession of heroin (R.C. 2925.11(A))

under the facts of this case. Cf. State v. Goodson, Cuyahoga App.No. 94954, 2011-

Ohio-5820, ¶ 13. The matter sub judice will be remanded to the trial court to review
Richland County, Case No. 2012 CA 0071                                                    10

merger of these two offenses as provided by the Ohio Supreme Court in State v.

Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182, 2010–Ohio–2.

       {¶31} Appellant’s Second Assignment of Error is sustained.

                                                III.

       {¶32} In his Third Assignment of Error, appellant apparently seeks a declaration

from this Court that the sentence based on Count IV is “void.”

       {¶33} Article IV, Section 3(B)(2) of the Ohio Constitution provides that courts of

appeals have “such jurisdiction as may be provided by law to review and affirm, modify,

or reverse judgments or final orders of the courts of record inferior to the court of

appeals within the district.” According to the State, on September 19, 2012, after

appellant filed his notice of appeal, the trial court issued a nunc pro tunc entry correcting

a clerical error of omitting the sentence for Count IV that occurred in the initial

sentencing entry. The new sentencing entry purportedly indicates that appellant was

sentenced to one year on Count IV to run consecutively to Counts I, III, and VIII, which

appears to reflect the oral sentence that was given to appellant on the record at the

sentencing hearing. See Trial Tr. at 317. However, this post-appeal clerical action by

the trial court is not technically part of the record before us. We find the proper remedy

under these circumstances is to remand the sentencing entry as to Count IV.

       {¶34} Appellant’s request in the Third Assignment of Error to have any Count IV

sentence declared void is accordingly denied; however, in the interest of justice the

matter will be remanded solely for the trial court to review the clerical aspects of its

decision as to Count IV.
Richland County, Case No. 2012 CA 0071                                             11


      {¶35} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed in part, reversed in part,

and remanded for further proceedings concerning allied offenses and for a clerical

review of its sentence as to Count IV of the indictment.



By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. W. SCOTT GWIN


                                             ___________________________________
                                             HON. SHEILA G. FARMER

JWW/d 0730
Richland County, Case No. 12CA71                                                      12


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
DEMONDRAY BROOKS                            :
                                            :
       Defendant-Appellant                  :         Case No. 2012 CA 0071




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

       Costs to be split evenly between Appellant and the State.




                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. W. SCOTT GWIN


                                            ___________________________________
                                            HON. SHEILA G. FARMER
