[Cite as State v. Wilson, 2013-Ohio-4643.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-13-04

        v.

MAURICE M. HENRY WILSON,                                  OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Union County Common Pleas Court
                            Trial Court No. 12-CR-0046

                                      Judgment Affirmed

                            Date of Decision: October 21, 2013




APPEARANCES:

        Alison Boggs for Appellant

        Terry L. Hord for Appellee
Case No. 14-13-04


PRESTON, P.J.

       {¶1} Defendant-appellant, Maurice M. Henry Wilson, appeals the Union

County Court of Common Pleas’ decisions overruling his motion to compel

discovery and overruling, in part, his motion to suppress evidence following a

traffic stop. For the reasons that follow, we affirm.

       {¶2} On August 17, 2011 around 2:56 p.m., Ohio State Highway Patrol

Trooper Travis Woodyard was stationary in his Chevy Tahoe patrol vehicle on

U.S. Route 33 just west of State Route 161 inside of Union County, Ohio. (Sept.

25, 2012 Tr. at 5-6, 13, 20, 33); (D’s Ex. A). Woodyard observed a Ford Taurus

in the left lane visibly slowing from 65 or 66 miles per hour (m.p.h.)—around the

speed limit of 65 m.p.h.—to 56 or 57 m.p.h. and causing cars to stack up behind it.

(Id. at 6, 21). As the Taurus passed, Woodyard observed a male driver, a female

passenger, and a male passenger in the back seat, later identified as Wilson, who

appeared to be asleep. (Id.). The Taurus continued past Woodyard in the left lane

below the speed limit impeding traffic. (Id.). Woodyard then observed the Taurus

move from the left lane to the right lane, cutting off a semi tractor-trailer. (Id.).

Woodyard decided to stop the driver for a traffic violation. (Id. at 7).

       {¶3} Prior to turning on his lights to execute the traffic stop, Woodyard

observed Wilson—who appeared to be sleeping when the Taurus passed

Woodyard 45 seconds earlier—moving around in the back seat “raising up and


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down, moving from side to side * * * bouncing all over * * * like a three year

old.” (Id.); (Id. at 21). When Woodyard approached the vehicle to advise the

driver, subsequently identified as Ryan Fissel, of the reason for the stop,

Woodyard observed that Fissel was “very, very nervous * * * couldn’t make eye

contact[, and] * * * had a very rapid heart beat [sic].” (Id. at 8). Woodyard then

noticed that Fissel had “track marks” on his arm, consistent with drug abuse; and,

Woodyard further noticed that Fissel looked like he had lost 40 pounds from when

his driver’s license was issued, even though that was only about four to five

months prior. (Id.). Woodyard began to suspect that Fissel was a heroin user. (Id.

at 8-9).

       {¶4} Woodyard asked Fissel to step out of his vehicle and escorted Fissel

back to his patrol vehicle, at which point Fissel’s heartbeat and breathing

escalated. (Id. at 9). Trooper James Cress arrived on the scene shortly thereafter

and watched the remaining passengers in the vehicle.         (Id. at 40, 51, 56).

Woodyard asked Fissel if he had any knives, needles, weapons, or things of that

nature on his person, and Fissel indicated “no.” (Id. at 10). Woodard then asked

to check for weapons, Fissel consented, and Woodyard identified something soft

with something hard inside of it in Fissel’s pocket, which Fissel indicated was his

eyeglass case. (Id.). Because Fissel was wearing his eyeglasses, Woodard asked

Fissel what was inside his eyeglass case, and Fissel indicated he did not know.


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(Id.). With Fissel’s consent, Woodard removed and opened the eyeglass case and

discovered two syringes, marijuana, and at least one foil ball containing heroin.

(Id.).

         {¶5} State Highway Patrol Lieutenant Kemmer, who arrived at the scene

shortly after Woodyard searched Fissel, talked to Woodyard who informed him

that Fissel had two syringes on his person. (Id. at 44). Thereafter, Kemmer made

contact with the right, front passenger, who was later identified as Natasha Fissel,

Ryan’s wife. (Id. at 11, 44). Kemmer asked Natasha to exit the vehicle, walked

her back to place her into his patrol vehicle, and asked her if she had anything that

was going to poke him if he conducted a pat-down for weapons. (Id. at 44).

Natasha stated that she had two syringes in the front of her pants, so Kemmer

removed them, but he found no further contraband on Natasha’s person. (Id. at

45). At that point, Kemmer placed Natasha into the back of his patrol vehicle and

began assisting Woodyard with the final passenger, Wilson. (Id.).

         {¶6} Around the time Woodyard and Kemmer were searching and securing

the Fissels, Cress briefly patted Wilson down for weapons but did not find

anything.    (Id. at 58, 62-63).   Woodyard returned to the vehicle, and Cress

informed Woodyard that he patted down Wilson for weapons and did not find any.

(Id.). Woodyard then asked Wilson if he could conduct an additional pat-down for

weapons, to which Wilson agreed. (Id. at 12-13, 63). During the additional pat-


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down, Woodyard found “something hard, up high in [Wilson’s] butt crack area,”

so he asked Wilson what it was, but Wilson said nothing. (Id. at 13). Because

Wilson was wearing very thick sweatpants and a pair of pajama pants or boxers,

Woodyard handcuffed and escorted Wilson back by his patrol vehicle out of the

view of traffic where Woodyard moved Wilson’s sweatpants out of the way and

patted-down Wilson’s second pair of pants. (Id. at 13, 29, 64). During this

subsequent pat-down Woodard determined that the unidentified item was

“something that had either foil balls or crack rocks.” (Id. at 14). Woodyard then

asked Wilson what the item was, and Wilson stated it was $1,000 worth of heroin.

(Id. at 41). Woodyard then asked Wilson if he would remove the drugs from his

person if he was unhandcuffed, and Wilson agreed. (Id.). Wilson removed the

drugs, Woodard then advised Wilson of his Miranda rights, and Cress placed

Wilson into a cruiser. (Id. at 14).

       {¶7} On March 13, 2012, the Union County Grand Jury indicted Wilson on

Count One of possession of heroin in violation of R.C. 2925.11(A), a second-

degree felony, and Count Two of aggravated drug trafficking in violation of R.C.

2925.03(A)(2), a second-degree felony, stemming from the August 17, 2011

traffic stop. (Doc. No. 1).

       {¶8} On March 23, 2012, Wilson was arraigned and entered pleas of not

guilty. (Doc. No. 5).


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       {¶9} On June 11, 2012, Wilson filed a motion to suppress all statements he

made and the evidence obtained during the traffic stop.         (Doc. No. 25).    In

particular, Wilson argued that law enforcement unlawfully detained him in

absence of any reasonable suspicion that he was violating or about to violate any

law, because he was merely a passenger in the vehicle. (Id.).

       {¶10} On June 19, 2012, the State filed a memorandum contra Wilson’s

motion to suppress, arguing that: (1) the initial traffic stop was lawful because

Trooper Woodyard had probable cause to believe that the driver was violating no

less than three separate traffic offenses, including: speeding, impeding traffic, and

reckless operation; (2) law enforcement was permitted to remove Wilson, a

passenger, from the vehicle without further suspicion of criminal activity; (3) law

enforcement was permitted to pat-down Wilson since they reasonably believed

that he could be armed; and, (4) the drug contraband was found during this lawful

pat-down for weapons. (Doc. No. 27).

       {¶11} On August 9, 2012, Wilson filed praecipes for service of subpoenas

duces tecum, pursuant to Crim.R. 17(A), upon Troopers Woodyard and Cress and

Lieutenant Kemmer “[t]o produce to Counsel for defense any and all video

recording [sic] from the traffic stop conducted on August 17, 2011 at 1456 hours

on or before Wednesday, August 15, 2012,” five days prior to the scheduled

hearing on the motion to suppress. (Doc. No. 41).


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       {¶12} Thereafter, the suppression hearing was continued to September 13,

2012 and then to September 25, 2012. (Doc. Nos. 55, 57).

       {¶13} On September 18, 2012, Wilson again filed praecipes for service of

subpoenas duces tecum upon the same law enforcement officers for the video from

the traffic stop. (Doc. No. 61).

       {¶14} On September 25, 2012, the trial court held a hearing on the motion

to suppress. During closing argument counsel for Wilson argued that “there

should have been a video that was available to the defendant * * * And the video

could have very well been exculpatory * * *.” (Tr. at 83). The trial court rejected

this argument, noting that counsel for Wilson failed to develop any evidence

during the hearing concerning the allegedly missing cruiser videos. (Id. at 84).

Thereafter, the trial court found that the initial traffic stop was lawful based upon

Trooper Woodyard’s reasonable articulable suspicion of a traffic violation, and

patting-down Wilson for weapons was reasonable in light of the suspected drug

trafficking involved. (Id. at 84-85). The trial court concluded that the physical

evidence obtained during the traffic stop was admissible, as well as any statements

Wilson made prior to being in custody or after his written waiver of rights was

executed. (Id. at 86-87). However, the trial court determined that the only issue

remaining was whether Wilson’s statement that the unidentified item was heroin—

made after Wilson was handcuffed but prior to Trooper Woodyard administering


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Miranda warnings—was admissible. (Id. at 86-87). The trial court asked the

parties to submit short briefs on this issue and adjourned the hearing. (Id. at 87).

       {¶15} The parties failed to file any briefs on this issue as requested by the

trial court. On October 19, 2012, the trial court issued its decision overruling the

motion to suppress as it related to all physical evidence obtained and all statements

Wilson made after his signed waiver of rights and statements Wilson made prior to

being handcuffed. (Doc. No. 68). However, the trial court concluded that Wilson

was in custody after Woodyard handcuffed him; and therefore, any statement

Wilson made after that but prior to Miranda warnings was inadmissible. (Id.).

       {¶16} On November 19, 2012, the trial court scheduled jury trial for

January 3-4, 2013. (Doc. No. 71).

       {¶17} On December 31, 2012, Wilson filed a motion to compel discovery

concerning the alleged destruction of cruiser videos from the traffic stop. (Doc.

No. 83). That same day, the trial court denied the motion, finding that this issue

was already addressed during the suppression hearing when counsel for Wilson

failed to produce any evidence on the same. (Doc. No. 84).

       {¶18} On January 3, 2013, Wilson withdrew his previously tendered not

guilty pleas and entered no contest pleas to both counts in the indictment. (Doc.

No. 86); (Jan. 3, 2013 Tr. at 5, 20-21). Thereafter, the trial court found Wilson




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guilty, ordered a pre-sentence investigation (PSI) report, and scheduled sentencing

for February 11, 2013. (Id.); (Id. at 21-23).

       {¶19} On February 11, 2013, the trial court held a sentencing hearing

whereat it determined that Count One of drug possession was an allied offense of

Count Two of aggravated drug trafficking. (Tr. at 3). The State elected to proceed

on Count Two for purposes of sentencing, and the trial court sentenced Wilson to

a mandatory six years imprisonment. (Tr. at 9). The trial court also ordered that

Wilson serve the six-year term of imprisonment consecutive to the term of

imprisonment imposed in Logan County Case No. CR 12030069. (Id.). The trial

court filed its judgment entry of sentence that same day. (Doc. No. 90).

       {¶20} On March 7, 2013, Wilson filed a notice of appeal. (Doc. No. 96).

Wilson raises two assignments of error for our review.

                            Assignment of Error No. I

       Appellant’s due process rights were violated when the trial court
       overruled appellant’s motion to compel discovery without a
       hearing as the allegation was that the appellee withheld possible
       Brady evidence.

       {¶21} In his first assignment of error, Wilson argues that the trial court

erred by denying his motion to compel discovery of potential Brady evidence

without first holding a hearing.

       In Brady v. Maryland, the United States Supreme Court held that:



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        [t]he suppression by the prosecution of evidence favorable to an

        accused upon request violates due process where the evidence is

        material either to guilt or to punishment, irrespective of the good

        faith or bad faith of the prosecution.

373 U.S. 83, 87, 83 S.Ct. 1194 (1963). However, the U.S. Supreme Court later

clarified that:

        The rule of Brady * * * arguably applies in three quite different

        situations. Each involves the discovery, after trial, of information

        which had been known to the prosecution but unknown to the

        defense.

United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392 (1976) (emphasis added).

        {¶22} Based upon this latter statement concerning Brady’s scope, the Ohio

Supreme Court has found that no Brady violation occurs when evidence is

discovered and presented during the trial. State v. Wickline, 50 Ohio St.3d 114,

116 (1990).       When a defendant discovers that the State withheld potentially

exculpatory evidence during the course of the trial proceedings, and not after,

Crim.R. 16(L), and not Brady, governs. Id. at 116-117.1




1
 At the time of the Ohio Supreme Court’s decision in Wickline, the applicable Rule of Criminal Procedure
governing discovery sanctions was Crim.R. 16(E)(1). However, Rule 16 of the Rules of Criminal
Procedure was subsequently amended on July 1, 2010, and the current section governing discovery
sanctions is Crim.R. 16(L)(1).

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         {¶23} Defense counsel subpoenaed “any and all video recording [sic] from

the traffic stop conducted on August 17, 2011 at 1456 hours” from all three law

enforcement officers prior to the motion to suppress hearing. (Doc. No. 41). After

the trial court partially granted Wilson’s motion to suppress, defense counsel filed

a motion to compel discovery of “evidence of the destruction or electronic failure

which caused the recorded video from the traffic stop on August 17, 2011.” (Doc.

No. 83). Counsel represented in the motion to compel that:

         At [the suppression hearing] law enforcement represented to counsel

         that while the two vehicles on site that day were equipped with

         recording devices and the stop and search was recorded there was

         some unidentified computer glitch that caused both videos to be

         destroyed.    Subsequent to this hearing, defense counsel has

         repeatedly requested proof of some form that this was an

         unavoidable technical error and not the result of bad faith in the

         destruction of evidence.

(Id.).   Based upon the foregoing, it is clear that the potentially exculpatory

evidence was apparent to defense counsel during the trial proceedings; and

therefore, the proper remedy was contained in Crim.R. 16(L), governing

discovery. Wickline at 116-117.




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       {¶24} While acknowledging that Brady violations generally occur when

exculpatory evidence is discovered after trial, Wilson points out that The Court of

Appeals for the Second Appellate District has rejected that bright-line rule, finding

that a Brady claim could exist “where other remedies were not readily available to

the defendant[], the evidence was undoubtedly material * * *, and the finder of

fact did not actually weigh the exculpatory evidence in reaching a verdict[.]” State

v. Aldridge, 120 Ohio App.3d 122, 146 (1997). We reject this argument. Aside

from the fact that this statement appears to be obiter dictum, the rule would not

apply here since Wilson had other remedies—namely those found in Crim.R.

16(L)—and it cannot be said that “the evidence is undoubtedly material,” because

the contents of the cruiser videos is not known. In this case, it can only be said

that the video evidence was “potentially exculpatory.”

       {¶25} We must also reject Wilson’s argument that a hearing was required

in this case. Wilson’s argument is based upon the faulty premise that an alleged

Brady violation occurred, which premise we have already rejected. Beyond that,

the cases Wilson cites in support of his argument for a hearing are post-conviction

cases, not direct appeals from discovery matters.

       {¶26} Wilson’s first assignment of error is, therefore, overruled.




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                            Assignment of Error No. II

       The trial court committed error when it suppressed some of
       appellant’s statements made during the traffic stop but ruled
       other statements and the physical evidence from the traffic stop
       were not suppressible, in violation of Section 10, Article I of the
       Ohio Constitution.

       {¶27} In his second assignment of error, Wilson argues that the trial court

erred by suppressing only the statements he made prior to Miranda warnings.

Wilson argues that his statements after Miranda warnings were part of a single

interrogation and should have also been suppressed. Wilson further argues that

the physical evidence must be suppressed because any search beyond the initial

pat-down was unconstitutional without a warrant.

       {¶28} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a suppression

hearing, the trial court assumes the role of trier of fact and, as such, is in the best

position to evaluate the evidence and the credibility of witnesses. Id.

       {¶29} When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside at ¶ 8. With respect to the trial court’s conclusions of

law, however, our standard of review is de novo and we must decide whether the




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facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d

706, 710 (4th Dist.1997).

      {¶30} In his motion to suppress, Wilson argued that his further detention

for multiple pat-down searches was unconstitutional absent any reasonable

suspicion that he—a passenger in the vehicle—had violated, was violating, or

about to violate the law. (Doc. No. 25). Wilson also argued that law enforcement

unreasonably expanded the scope of the search after the first pat-down revealed no

weapons. (Id.). At the suppression hearing, counsel for Wilson argued that the

initial traffic stop was unlawful; the continued detention of Wilson was unlawful

since law enforcement did not have an independent reason to detain Wilson apart

from Mr. Fissel’s actions; Wilson did not voluntarily consent to the pat-down

searches; law enforcement asked Wilson incriminating questions without the

benefit of Miranda warnings; and, law enforcement withheld potentially

exculpatory cruiser videos. (Sept. 25, 2012 Tr. at 79-83).

      {¶31} Now, on appeal, Wilson argues that “evidence gathered before the

Miranda warning was administered must be suppressed based on Section 10,

Article I of the Ohio Constitution and the pre- and post-Miranda statements are

inadmissible,” citing State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 9.

This argument is strikingly different than Wilson’s argument in the trial court. In

fact, nowhere in any of his filings or during the motion hearing did Wilson


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mention State v. Farris. “[T]he defendant must make clear the grounds upon

which he challenges the submission of evidence pursuant to a warrantless search

or seizure,” and the “[f]ailure on the part of the defendant to adequately raise the

basis of his challenge constitutes a waiver of that issue on appeal.” City of Xenia

v. Wallace, 37 Ohio St.3d 216, 218 (1988). See also State v. Wilson, 2d Dist.

Montgomery No. 22001, 2007-Ohio-6581, ¶ 12; State v. Mock, 11th Dist. Lake

No. 2012-L-066, 2013-Ohio-874, ¶ 7-10. We will not address Wilson’s new

arguments for suppression of the evidence in the first instance on appeal.

       {¶32} Before Woodyard patted Wilson down, Woodyard had observed that

Fissel was very nervous, had track marks on his arms indicative of drug abuse, and

observed Wilson making furtive movements in the rear of the vehicle. Woodyard

also had found drugs and drug paraphernalia upon both Fissel and Natasha. At

that point, Woodyard could have reasonably suspected that Wilson was involved

in drug trafficking, giving rise to a nearly automatic right to frisk for weapons.

State v. Evans, 67 Ohio St.3d 405, 413 (1993).           Wilson consented to the

subsequent pat-down for weapons and, during that consensual pat-down,

Woodyard identified, by plain feeling, drug contraband. Minnesota v. Dickerson,

508 U.S. 366, 375-376, 113 S.Ct. 2130 (1993). Consequently, the trial court did

not err by denying Wilson’s motion to suppress as it related to the physical




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evidence. The trial court also did not err by denying Wilson’s motion to suppress

statements he made after being fully advised of his Miranda rights.

       {¶33} Wilson’s second assignment of error is, therefore, overruled.

       {¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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