[Cite as State v. Tolbert, 2015-Ohio-4733.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                   :    Case No. 15CA5

        Plaintiff-Appellee,                      :

        v.                                       :    DECISION AND
                                                      JUDGMENT ENTRY
DLONTAE TOLBERT,                                 :

        Defendant-Appellant.                     :    RELEASED: 11/12/2015


                                              APPEARANCES:

Angela Wilson Miller, Jupiter, Florida, for appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Nicole Tipton Coil,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Harsha, J.
        {¶1}     Following a bench trial the court convicted Dlontae Tolbert of trafficking in

drugs (heroin) and possession of drugs (heroin), merged the convictions as allied

offenses of similar import, and sentenced him on the drug-possession conviction to a

three-year prison term.

        {¶2}     Tolbert asserts that his trial counsel provided ineffective assistance by

failing to argue that a search warrant was invalid because it was issued by a probate

judge. At the time the search warrant was issued, controlling precedent from our court

authorized that procedure. Thus, trial counsel’s failure to raise this objection in his

motion to suppress did not constitute deficient performance. Moreover, because the

uncontroverted evidence introduced at the suppression hearing established that the

deputies executing the search warrant acted in reasonable good-faith reliance on the
Washington App. No. 15CA5                                                                 2


warrant, Tolbert cannot prove that he was prejudiced by his trial counsel’s failure to

raise this issue in his motion to suppress.

       {¶3}   Next Tolbert contends that the trial court violated his rights to due process

and a fair trial because it failed to sua sponte notify the parties of the error in the

probate judge issuing the search warrant. This assertion is also meritless because the

trial court would have been guided by both our then existing precedent and the

applicability of the good-faith exception to the warrant requirement.

       {¶4}   Tolbert also argues that the trial court erred in denying his motion to

suppress related testimony and videotaped footage taken from a pole camera that

purportedly violated his constitutional rights. However, Tolbert failed to establish at the

suppression hearing that he had standing to object to the search of the property. He

supports his claim that he had standing as a guest at the premises with trial testimony,

but the trial court’s ruling was based on the evidence at the suppression hearing. There

Tolbert submitted no evidence on this issue so he failed to bear his burden of proving

standing to object to the search warrant.

       {¶5}   Finally, Tolbert contends that the state failed to introduce sufficient

evidence to support his convictions for drug trafficking and drug possession. Asia

Peterson testified that at the request of Tolbert and his brother, she transported heroin

from Cleveland to Marietta, where Tolbert packaged it for distribution and sold it. She

further alerted officers to where they could locate Tolbert’s heroin, including in a pickle

jar and a coffee container buried outside and in one of his boots in the premises that

was the subject of the search warrant. Tolbert attacks Peterson’s credibility because

she agreed to testify against him in return for the dismissal of charges against her.
Washington App. No. 15CA5                                                             3


However, in a challenge to the sufficiency of the evidence, questions of credibility and

the weight to be assigned to the evidence are not at issue and are reserved for the trier

of fact. Our role is restricted to determine whether after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of trafficking in drugs and drug possession proven beyond a

reasonable doubt. The state’s evidence clearly passed this test because of Peterson’s

testimony and the recovered drugs.

         {¶6}   Therefore, we affirm the judgment of the trial court.

                                          I. FACTS

         {¶7}   The Washington County Grand Jury returned an indictment charging

D’Lontae Tolbert and Asia Peterson with one count of trafficking in drugs (heroin) and

one count of possession of drugs (heroin). Tolbert entered a not guilty plea to the

charges and received appointed counsel. After the trial court granted Tolbert’s motion

to sever the cases against him and Peterson for trial, Tolbert waived his right to a jury

trial.

         {¶8}   Just a few days before the scheduled trial date, Tolbert filed a motion to

suppress evidence seized by deputies pursuant to a search warrant for the home

located at 2460 Pleasant Ridge Road, Marietta, Ohio. He argues suppression was

required because the warrant was based on: (1) information supplied by a confidential

informant that did not provide the requisite probable cause, and (2) footage from a

surveillance camera installed on a utility pole on the premises, which constituted an

illegal warrantless search. The motion did not indicate that Tolbert had an interest in or

was a resident of the home and property being searched. Tolbert also filed a motion in
Washington App. No. 15CA5                                                            4


limine to exclude the state’s use of the surveillance footage because of unexplained

missing minutes in the approximate ten days of videotape that were not preserved.

       {¶9}   At the hearing on Tolbert’s motions his counsel argued the evidence

obtained by the execution of the search warrant at the Marietta home should be

suppressed because although the confidential informant gave detailed firsthand

information about drug activity in the Macksburg, Ohio home of Hill Franklin Smith, the

source did not indicate sufficient information about drug activity at the Marietta home.

He also argued that the installation and use of a video surveillance camera on a utility

pole located on the Marietta property of Nissa Keagy and Dean Griffin violated their

expectation of privacy. He did not claim that Tolbert was living at the Marietta home at

the time of the search, and Tolbert did not introduce any evidence—testimonial or

otherwise—at the hearing in support of his motions to suppress and in limine.

       {¶10} The state presented evidence of three witnesses—two Washington

County deputy sheriffs and one computer expert—as well as the search warrant issued

by the Washington County Probate Judge. That warrant authorized law enforcement to

search the residence premises of Keagy and Griffin, including the curtilage and multiple

buildings on the property at 2460 Pleasant Ridge Road, Marietta, and seize heroin,

cash, and other evidence of drug abuse and trafficking. In support of the warrant

Deputy Sheriff Joshua Staats provided an affidavit that proclaimed (1) he had been

conducting an investigation into drug trafficking by Hill Franklin Smith, (2) he received

information from a confidential informant that Smith was selling large amounts of heroin

that was being supplied by a black male and female from Detroit who stayed with Griffin

at his place in Marietta, (3) they had the local utility company install a video camera to
Washington App. No. 15CA5                                                              5


conduct surveillance at the Marietta residence of Keagy and Griffin, (4) the footage from

the surveillance camera showed Griffin, Keagy, a black male and female, and several

vehicles coming and going from the residence, and (5) the camera showed the black

male walking outside the residence and talking on his cellphone.

       {¶11} Deputy Sheriff Staats testified that he prepared the affidavit and received

the search warrant and that he discussed the facts set forth in his affidavit with the

prosecutor’s office beforehand. According to his testimony at the pretrial hearing,

Deputy Sheriff Staats believed that his affidavit demonstrated probable cause to search

the property of Keagy and Griffin and that the warrant was valid when it was issued.

       {¶12} After the hearing the state filed a written response in which it argued that

Tolbert had failed to claim or prove that he had legal standing to raise objections to the

search and seizure of evidence at Keagy and Griffin’s residence. After Tolbert filed a

reply, the trial court denied his motions to suppress and in limine. On the motion to

suppress, the trial court concluded that Tolbert “did not have standing to raise an issue

about the execution of a search warrant, and did not have standing to object to the

installation and use of a video camera at that residence.” The court further concluded

that even assuming he had standing, the search warrant was supported by probable

cause and that the video camera conducting surveillance of the residence was affixed to

the pole by the electric company, that the pole was not located on a private driveway,

and that the area viewed by the camera could also be viewed by law enforcement at

different areas of a nearby township road.

       {¶13} A subsequent bench trial produced the following evidence. In the spring

of 2014, the county sheriff’s office investigated drug activity at Hill Franklin Smith’s
Washington App. No. 15CA5                                                           6


home in Macksburg, Ohio, and at Nissa Keagy’s home on Pleasant Ridge Road in

Marietta. Through information provided by confidential informants and video

surveillance, law enforcement learned that Smith was being supplied with heroin from a

black male and female from Detroit who were staying at Keagy’s Marietta residence.

On June 12, 2014, they obtained search warrants for the Marietta and Macksburg

properties, and they executed them.

       {¶14} When the deputies executed the search warrant of the Marietta home,

neither Keagy nor Griffin were present, but they found a black male and female, Tolbert

and Asia Peterson, there. Tolbert identified himself to the deputies as Tyrone Jackson,

but Peterson informed them of his real name and in one of the bedrooms the deputies

found a bag containing clothes, his driver’s license, and social security card disclosing

his true identity. When officers asked Peterson where the heroin was, she informed

them where it was buried outside the residence in a pickle jar underneath some stones,

dirt, and leaves just outside the back bedroom window and in a coffee container buried

about 100 feet down a road from the residence, as well as in a boot in the back

bedroom. The pickle jar contained 6.33 grams of heroin in seven small bags, the boot

contained 2.68 grams of heroin in three small bags, and the coffee container had 61.15

grams of heroin and $5,950 in cash. The path leading to the buried coffee container

contained treadmarks consistent with the boots located in the back bedroom and video

surveillance footage showed a black male with dark colored boots walk a similar path

away from the residence.

       {¶15} According to Peterson she met and lived with Tolbert in Detroit for several

months; upon Tolbert’s suggestion, they moved to Marietta to transport and sell drugs
Washington App. No. 15CA5                                                              7


for him and his brother. They stayed at Keagy’s and Griffin’s residence, which acted as

a “trap house” for Tolbert’s drug operations. They initially were going to live in a trailer

on the property, but because it was not habitable, they ended up staying in a bedroom

in the house. Their stay there was supposed to be temporary and they were a couple

weeks away from going back to Detroit when the police executed the search warrant.

During their time in Washington County, Peterson travelled back to Detroit about five

times to get more heroin to sell and to Columbus two times to deliver proceeds from

heroin sales to Tolbert’s brother.

       {¶16} Peterson testified that Tolbert was responsible for the heroin she delivered

from Detroit and that in Marietta, Tolbert packaged the heroin for distribution and sold it.

She further testified that Tolbert buried heroin on Keagy’s and Griffin’s property because

he was afraid of a police raid and did not want Griffin, a heavy heroin user, to take it.

Peterson also identified the boots the police seized as Tolbert’s and that she saw

Tolbert put the heroin in his boot, where the deputies found it. On cross-examination

Peterson conceded that she had reached a plea deal in which she agreed to testify

against Tolbert, Keagy, and Griffin in return for the dismissal of the charges against her.

       {¶17} Tolbert testified that he travelled with Peterson, who was a prostitute,

because he was homeless. He said that he did not stay at Keagy’s and Griffin’s

Marietta residence every night when he was in the area because he would often stay

with random men and women he met. On the date the search warrant was executed,

Tolbert had left the Marietta premises with a woman named Kayla and told Peterson he

would not be back until the next day, but he “popped back up out of nowhere.”
Washington App. No. 15CA5                                                           8


       {¶18} Tolbert denied using or selling drugs, although he knew that other people

in the house used drugs, and he also denied knowing about the heroin and cash buried

in the back yard of the Marietta property. He additionally denied owning the boots

seized by the police. Tolbert admitted that he appeared on the video surveillance

walking back towards the area where the coffee container with the heroin and money

was located, but claimed that he had simply walked to that area to make private phone

calls to transsexual friends.

       {¶19} At the conclusion of the trial the court found him guilty of both charges,

determined that they were allied offenses of similar import, merged them, and

sentenced Tolbert to three years imprisonment and five years of postrelease control on

the drug possession conviction.

       {¶20} This appeal followed.

                                II. ASSIGNMENTS OF ERROR

       {¶21} Tolbert assigns the following errors for review:

       I. THE DEFENDANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF
       COUNSEL IS VIOLATED WHEN COUNSEL FAILS TO ARGUE IN HIS
       MOTION TO SUPPRESS THAT THE SEARCH WARRANT WAS ISSUED
       BY A PROBATE JUDGE AND, THEREFORE, VOID. U.S. CONST.
       AMENDS. V, VI, XIV; OHIO CONST. ART. I, §§ 2, 10 AND 16; R.C.
       2933.21.

       II. APPELLANT TOLBERT’S RIGHTS TO DUE PROCESS AND A FAIR
       TRIAL WERE VIOLATED BY THE COURT’S DENIAL OF A MOTION TO
       SUPPRESS WHERE THE SEARCH WARRANT WAS ISSUED BY A
       PROBATE JUDGE. U.S. CONST. AMENDS. V, VI, AND XIV; OHIO
       CONST. ART. 1, §§ 5 AND 16; R.C. 2933.21.

       III. THE TRIAL COURT ERRED IN DENYING APPELLANT TOLBERT’S
       MOTION TO SUPPRESS VIDEO FOOTAGE AND ANY TESTIMONY
       REFERENCING THE FOOTAGE AS THE POLE CAMERA THAT WAS
       USED TO OBTAIN IT WAS DONE SO IN VIOLATION OF TOLBERT’S
       CONSTITUTIONAL RIGHTS.
Washington App. No. 15CA5                                                              9



       IV. DUE PROCESS PERMITS CONVICTIONS ONLY UPON PROOF
       BEYOND A REASONABLE DOUBT. THE STATE FAILED TO
       INTRODUCE SUFFICIENT EVIDENCE UPON WHICH TO PREMISE
       CONVICTIONS FOR TRAFFICKING AND POSSESSION. TOLBERT
       WAS DEPRIVED OF DUE PROCESS AS GUARANTEED BY THE
       FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AS WELL AS
       ARTICLE I, §§ 2, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

                                  III. LAW AND ANALYSIS

                   A. Validity of Search Warrant Issued by Probate Judge

       {¶22} In his first assignment of error Tolbert asserts that his trial counsel

provided ineffective assistance by failing to argue that the search warrant executed at

the Marietta residence of Nissa Keagy and Dean Griffin was invalid because it was

issued by a probate judge.

       {¶23} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel's errors, the result of the proceeding would

have been different. State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d

1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Failure to establish either part of the test is fatal to an ineffective-

assistance claim. Strickland at 697, 104 S.Ct. 2052; State v. Bradley, 42 Ohio St.3d

136, 143, 538 N.E.2d 373 (1989).

       {¶24} In assessing counsel's performance, “an objective review of counsel's

performance must be conducted in light of professional norms prevailing when the

representation took place.” State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28

N.E.3d 1217, ¶ 68, citing Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 175 L.Ed.2d
Washington App. No. 15CA5                                                          10

255 (2009); Strickland at 688, 104 S.Ct. 2052. “Under the deficient-performance prong,

the court should ‘indulge a strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance.’ ” Herring at ¶ 68, quoting Strickland

at 689, 104 S.Ct. 2052.

      {¶25} At the time that his trial counsel sought to suppress the evidence seized

under a search warrant issued by the probate judge, precedent in our appellate district

permitted this procedure. In State v. Johnston, 4th Dist. Hocking No. 412, 1986 WL

8799, *16 (Aug 6, 1986), reversed in part on other grounds, 39 Ohio St.3d 48, 529

N.E.2d 898 (1988), we rejected a criminal defendant’s assignment of error claiming that

the trial court erred in overruling his motion to suppress evidence because the search

warrants were issued by a probate judge:

      Appellant's first argument is that the Probate Judge acted outside his
      jurisdiction in hearing the state's request and issuing the warrants. R.C.
      2933.21 provides for the issuance of warrants by “a judge of a court of
      record.” A probate judge is a judge of a court of record, the court of
      common pleas, of which his court is a division. R.C. 2101.01, State v.
      Cotton (1978), 56 Ohio St.2d 8. But R.C. 2931.01 provides that

      “(B) ‘Judge’ does not include the probate judge” and

      “(C) ‘Court’ does not include the probate court.”


      Appellant interprets this section as prohibiting a probate division judge
      from issuing a search warrant.

      We find no Ohio court has addressed appellant's claim that a probate
      judge may not issue a search warrant. When we consider the history of
      the Ohio judiciary system, we conclude that R.C. 2931.01(B) and (C) are
      merely relics from a past in which the probate courts were separate
      courts, not of record, with specific limited jurisdiction. The use of the
      phrase “judge of a court of record” in R.C. 2933.21 and Crim.R. 41 is
      sufficiently specific to supersede the general definition of “judge” and
      “court” in R.C. 2931.01 under the rules of construction codified at R.C.
Washington App. No. 15CA5                                                                 11


       1.12 and 1.51. Thus any judge of any court of record has authority to
       issue a search warrant.

       {¶26} Johnston remained binding precedent in this appellate district until 2015,

when the Supreme Court of Ohio in State v. Brown, 142 Ohio St.3d 92, 2015-Ohio-486,

28 N.E.3d 81, considered the state’s appeal from a 2-1 2013 decision by the Fifth

District Court of Appeals that held otherwise. In Brown at ¶ 10, the Supreme Court held

that based on the plain language of R.C. 2931.01, “unless appointed by the chief justice

pursuant to Article IV, Section 5(A)(3) of the Ohio Constitution [to temporarily sit or hold

court in the general division of the common pleas court], a probate judge does not have

authority to issue search warrants in criminal matters.”

       {¶27} However, Tolbert’s reliance on Brown is misplaced. His trial counsel did

not have the benefit of that 2015 decision when he filed his suppression motion and the

trial court ruled on it in 2014. Counsel’s performance must be gauged “when the

representation took place.” Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d

1217, at ¶ 68. And the applicable precedent at that time was this court’s holding in

Johnston, which interpreted the provisions to allow probate judges to issue search

warrants in criminal cases. Thus, counsel’s failure to raise what at the time was a

meritless objection was not deficient. That is, “ ‘[i]t is not ineffective assistance for a trial

lawyer to maneuver within the existing law, declining to present untested * * * legal

theories.’ ” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 219,

quoting State v. McNeill, 83 Ohio St.3d 438, 449, 700 N.E.2d 596 (1998). The objection

that Tolbert claims that his trial counsel should have raised was not merely untested—it

had been tested in our appellate jurisdiction and rejected.
Washington App. No. 15CA5                                                               12


       {¶28} Moreover, even assuming that his trial counsel’s failure to raise this

objection constituted deficient performance, Tolbert cannot establish that he suffered

prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the

proceeding would have been different. The exclusionary rule does not apply to bar

evidence obtained by officers acting in reasonable good-faith reliance on a search

warrant issued by a detached and neutral magistrate that is ultimately found to be

unlawful. Brown at ¶ 12, citing United States v. Leon, 468 U.S. 897, 909-925, 104 S.Ct.

3405, 82 L.Ed.2d 577 (1984).

       {¶29} In Brown the Supreme Court of Ohio agreed with the appellate court’s

determination that although the search warrants issued by the probate judge were

unlawful, the good-faith exception to the exclusionary rule applied to the evidence

obtained by officers under the illegal warrants. Id. at ¶ 11-12. To qualify for this

exception an officer’s reliance on the warrant must be objectively reasonable. State v.

Castagnola, __Ohio St.3d.__, 2015-Ohio-1565, __N.E.3d__, ¶ 98. Deputy Sheriff Staats

testified at the suppression hearing he consulted with the office of the prosecuting

attorney before requesting the warrants. And as the underlying court of appeals

decision in Brown indicated, there existed a “litany of appellate cases demonstrating the

common practice of probate division judges issuing search warrants throughout the

State of Ohio.” See State v. Brown, 2013-Ohio-2224, 992 N.E.2d 1172, ¶ 37 (5th Dist.),

and cases cited there. Therefore, Staats’s subjective belief that the warrant was valid

was also objectively reasonable. Under our facts, Tolbert would not have been entitled

to suppression of the evidence seized pursuant to the search warrant even if he had
Washington App. No. 15CA5                                                              13


raised this objection to the warrant because the good-faith exception to the exclusionary

rule applied.

       {¶30} Because Tolbert has not established either of the necessary requirements

for his ineffective-assistance claim, we overrule his first assignment of error.

       {¶31} In his second assignment of error Tolbert contends that the trial court

violated his rights to due process and a fair trial because it failed to sua sponte notify

the parties of the error caused by the probate judge issuing the search warrant. This

contention is also meritless because the trial court would have been guided by our

controlling precedent in Johnston and the application of the good-faith exception to the

exclusionary rule would have rendered any error in this regard harmless. We overrule

Tolbert’s second assignment of error.

                            B. Standing to Challenge the Search

       {¶32} In his third assignment of error Tolbert argues that the trial court erred in

denying his motion to suppress videotaped footage and testimony concerning the

footage, which was taken from a pole camera on Nissa Keagy’s and Dean Griffin’s

residential property.

       {¶33} Appellate review of a trial court's decision on a motion to suppress raises

a mixed question of law and fact. State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886,

975 N.E.2d 965, ¶ 6. Because the trial court acts as the trier of fact in suppression

hearings and is in the best position to resolve factual issues and evaluate the credibility

of witnesses, an appellate court must accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then
Washington App. No. 15CA5                                                            14


“independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” Hobbs at ¶ 8, citing Burnside at ¶ 8.

       {¶34} “The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State

v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. This

constitutional guarantee is protected by the exclusionary rule, which mandates

exclusion of the evidence obtained from the unreasonable search and seizure at trial.

Id.

       {¶35} The trial court denied Tolbert’s motion to suppress the video surveillance

footage and related testimony because he lacked standing to challenge the purported

warrantless search of Keagy’s and Griffin’s residential premises. “Fourth Amendment

rights are personal in nature and may not be vicariously asserted by others.” State v.

Horsley, 4th Dist. Scioto No. 12CA3473, 2013-Ohio-901, ¶ 12, citing Rakas v. Illinois,

439 U.S. 128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). “ ‘The rule followed by

courts today with regard to standing is whether the defendant had an expectation of

privacy * * * that society is prepared to recognize as reasonable.’ ” State v. Dixon, 4th

Dist. Scioto No. 11CA3413, 2012-Ohio-4689, ¶ 16, quoting State v. Williams, 73 Ohio

St.3d 153, 166, 652 N.E.2d 721 (1995).

       {¶36} It is well settled that “ ‘[a] person who is aggrieved by an illegal search and

seizure only through the introduction of damaging evidence secured by a search of a

third person’s premises or property has not had any of his Fourth Amendment rights

infringed.’ ” Horsley at ¶ 12, quoting Rakas at 134, 99 S.Ct. 421. Nevertheless, a

defendant’s status as an overnight guest at the time of the search is sufficient to show
Washington App. No. 15CA5                                                            15

that he had a reasonable expectation of privacy in his host’s home. Minnesota v. Olson,

495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

       {¶37} “The defendant bears the burden of demonstrating that he possessed ‘a

legitimate expectation of privacy’ in the place searched or the item seized.” Horsley at ¶

13, citing State v. Dennis, 79 Ohio St.3d 421, 426, 683 N.E.2d 1096 (1997).

Consequently, the burden is on the defendant to establish standing. Dixon at ¶ 16,

quoting Williams at 166, 652 N.E.2d 721; Katz, Baldwin’s Ohio Arrest, Search and

Seizure, Section 27:3 (2015) (“before a court may review the reasonableness of police

behavior, the defendant must be able to demonstrate that his Fourth Amendment right

to privacy was violated. A defendant has the burden of proving standing”).

       {¶38} Tolbert asserts on appeal that the evidence established that he had

standing to object to the video surveillance of Keagy’s and Griffin’s home because he

was a guest who stayed at the home. But at the suppression hearing Tolbert did not

introduce any evidence that he was a guest at the home; in fact, he did not introduce

any testimonial or documentary evidence whatsoever.

       {¶39} On appeal Tolbert cites evidence from the bench trial to support his claim

that the trial court erred in determining he lacked standing to object to the state’s search

of Keagy’s and Griffin’s residence. The state refers to the same source. They are both

mistaken. “ ‘[I]n reviewing a trial court’s ruling on a motion to suppress, an appellate

court may consider only evidence that was presented during the suppression hearing

and may not consider evidence presented at trial.’ ” State v. Gartrell, 2014-Ohio-5203,

24 N.E.3d 680, fn. 2 (3d Dist.), quoting State v. Monford, 190 Ohio App.3d 35, 2010-

Ohio-4732, 940 N.E.2d 634, ¶ 45 (10th Dist.).
Washington App. No. 15CA5                                                                           16


        {¶40} Because Tolbert did not introduce evidence at the suppression hearing

supporting his claim of standing to assert a challenge to the search, the trial court did

not err in overruling his motion.1 See Dixon, 2012-Ohio-4689, at ¶ 7-8, where we

rejected a similar argument because the defendant provided no evidence or testimony

at the suppression hearing in support of his argument that he had standing.

        {¶41} We overrule Tolbert’s third assignment of error.

                                     C. Sufficiency of the Evidence

        {¶42} In his fourth assignment of error Tolbert asserts that the state failed to

introduce sufficient evidence to support his convictions for drug trafficking and drug

possession. The standard when testing the sufficiency of the evidence is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a reasonable

doubt. State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, ¶ 15;

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. That analysis does not include a weighing of the evidence or witness

credibility. See State v. Hurt, 4th Dist. Gallia Nos. 11CA12 and 11CA13, 2013-Ohio-615,

¶ 14.

        {¶43} Asia Peterson testified that at the request of Tolbert and his brother, she

transported heroin from Cleveland to Marietta, where Tolbert packaged it for distribution

and sold it. Peterson further testified that Tolbert buried heroin on the property because



1  We acknowledge that in his reply to the state’s response to his motion to suppress, which was filed after
the hearing on his pretrial motions, Tolbert attached a copy of what he claimed was preliminary hearing
testimony of one of the police officers to support his claim of standing. There is no indication, however,
that the trial court credited this belated evidence, and there is no argument by Tolbert on appeal that the
trial court erred in failing to consider it. Therefore, we do not address it.
Washington App. No. 15CA5                                                              17


he was fearful of a police search, and she alerted them to where he hid it. Following her

guidance, the deputies seized three stacks of heroin. And Tolbert identified himself as

the black male on video surveillance who walked on the property to the general area

where the coffee container containing the cash and heroin was located.

       {¶44} Although Tolbert attacks Peterson’s credibility because she agreed to

testify against him in return for the dismissal of charges against her, we must “defer to

the trier of fact on questions of credibility and the weight assigned to the evidence.”

State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. That is, “

‘the weight to be given the evidence and the credibility are primarily for the trier of the

facts.’ ” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.2d 1023, ¶ 180,

quoting State v. DeHass, 10 Ohio St2d 230, 227 N.E.2d 212 (1967), paragraph one of

the syllabus. Such an analysis plays no part in a challenge to the sufficiency of the

evidence. Hurt at ¶ 14.

       {¶45} Consequently, the trial court was free to find Peterson’s testimony

credible, and after viewing the evidence in a light most favorable to the state, any

rational trier of fact could have found that it established the essential elements of the

drug trafficking and drug possession offenses. We overrule Tolbert’s fourth assignment

of error.

                                     IV. CONCLUSION

       {¶46} Because Tolbert failed to establish that the trial court committed prejudicial

error, we affirm the judgment of the trial court.


                                                                   JUDGMENT AFFIRMED.
Washington App. No. 15CA5                                                               18


                                    JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
