[Cite as State v. Reese, 2019-Ohio-399.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2018-CA-10
                                                 :
 v.                                              :   Trial Court Case No. 2017-CR-175
                                                 :
 STEPHEN SCOTT REESE                             :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 8th day of February, 2019.

                                            ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                         -2-




         {¶ 1} Defendant-appellant, Stephen Scott Reese, appeals from his convictions for

one count of aggravated possession of a controlled substance, a fifth degree felony under

R.C. 2925.11(A) and (C)(1)(a); three counts of possession of a controlled substance, fifth

degree felonies under R.C. 2925.11(A), (C)(2)(a) and (C)(4)(a); one count of illegal use

or possession of drug paraphernalia, a fourth degree misdemeanor under R.C.

2925.14(C)(1) and (F)(1); and one count of operating a vehicle under the influence of

alcohol or drugs, a first degree misdemeanor under R.C. 4511.19(A)(1)(a) and (G)(1)(a).

Presenting two assignments of error, Reese argues that his convictions should be

reversed because the trial court erred by overruling his motion to suppress evidence

obtained during an inventory search of his vehicle, and because his defense counsel did

not provide effective representation. We find that the trial court did not err by overruling

Reese’s motion to suppress, and that Reese’s defense counsel was not ineffective.

Accordingly, Reese’s convictions are affirmed.

                              I. Facts and Procedural History

         {¶ 2} On August 17, 2017, Reese was involved in an automobile accident in

Urbana while driving eastward on Lewis B. Moore Drive; Reese’s vehicle struck the rear

of the vehicle immediately preceding it at the intersection of Lewis B. Moore Drive and

South Main Street. The City of Urbana Division of Police concluded that the accident

resulted from Reese’s failure to maintain assured clear distance, a violation of R.C.

4511.21.1 Reese had neither a valid driver’s license nor automobile insurance at the



1   Reese was not issued a citation for his violation of R.C. 4511.21.
                                                                                           -3-


time.2 One passenger was travelling with Reese when the accident occurred.

       {¶ 3} The accident left Reese’s vehicle disabled, so the police officer in charge of

the scene directed that the vehicle be towed away and taken into police custody. 3

Transcript of Hearing on Defendant’s Motion to Suppress 5:2-6:1 and 8:1-9:20, Jan. 31,

2018 [hereinafter Hearing Transcript]. As required by General Order 28, § 4.3(C) of the

Urbana Police Division Policy and Procedures Manual, the officer made an inventory of

the vehicle’s contents before the vehicle was towed, “including, but not limited to, the

passenger compartment, [the] glove compartment, [the] trunk” and any “[u]nlocked

containers within the vehicle.” Hearing Transcript 11:20-11:23 and Ex. 2. Among other

things, the officer found a gym bag that contained a glass pipe for smoking

methamphetamine; a glass pipe for smoking crack cocaine; a single pill of clonazepam,

in a bottle of over-the-counter ibuprofen pills; and a single pill of tramadol, in a bottle of

over-the-counter testosterone supplements. 4       See id. at 15:2-15:16; Trial Transcript

139:19-142:10 and Exs. 9-10, Feb. 27, 2018. The officer then delivered a Miranda

warning, questioned Reese about the items found in his vehicle, and conducted three



2 Reese’s driving privileges had been suspended in Indiana for violations he committed
there. His Ohio driving privileges were consequently suspended pursuant to R.C.
4510.61.
3  The officer directed that Reese’s vehicle be taken into custody because Reese’s driving
privileges were suspended. Hearing Transcript 9:5-9:20. Like Reese’s vehicle, the
other vehicle was disabled by the accident, but it was removed from the intersection by
its owner, who made his own arrangements for the vehicle to be towed.
4  Clonazepam is a Schedule IV depressant. R.C. 3719.41(IV)(B)(9). Tramadol is not
listed by name in R.C. 3719.41, though it appears to be a Schedule IV controlled
substance. State v. Valiente-Mendoza, 6th Dist. Wood No. WD-16-067, 2018-Ohio-
3090, ¶ 17.
                                                                                         -4-


field sobriety tests. Hearing Transcript 15:2-17:2. Reese failed two of the three field

sobriety tests, after which the officer formally arrested him. Id. at 17:14-17:24. Another

officer spoke with Reese’s passenger, and the record does not indicate whether the

passenger was charged with a criminal offense in connection with the accident or the

contraband discovered in Reese’s vehicle.

       {¶ 4} On September 7, 2017, a Champaign County grand jury indicted Reese on

six charges: Count 1, aggravated possession of methamphetamine, a fifth degree felony

pursuant to R.C. 2925.11(A) and (C)(1)(a); Count 2, possession of cocaine, a fifth degree

felony pursuant to R.C. 2925.11(A) and (C)(4)(a); Count 3, possession of clonazepam, a

fifth degree felony pursuant to R.C. 2925.11(A) and (C)(2)(a); Count 4, possession of

tramadol, a fifth degree felony pursuant to R.C. 2925.11(A) and (C)(2)(a); Count 5, illegal

use or possession of drug paraphernalia, a fourth degree misdemeanor pursuant to R.C.

2925.14(C)(1) and (F)(1); and Count 6, operating a vehicle under the influence of alcohol

or drugs, a first degree misdemeanor pursuant to R.C. 4511.19(A)(1)(a) and (G)(1)(a).

Reese initially pleaded not guilty to all of the charges, but on November 13, 2017, he

elected to plead guilty to Counts 1, 2 and 6. The trial court, however, did not fully advise

Reese regarding the potential penalties—specifically, the prospect of a mandatory

driver’s license suspension for a maximum period of five years pursuant to R.C.

2925.11(E)—and on December 15, 2017, the court therefore granted Reese’s request to

withdraw his pleas.

       {¶ 5} Reese filed a motion to suppress on December 19, 2017, arguing that the

inventory search of his vehicle was merely a pretext for an unconstitutional investigatory

search. The trial court held a hearing on January 31, 2018, and on February 5, 2018, it
                                                                                            -5-


entered a decision overruling the motion. Reese appeared for a trial by jury on February

27, 2018.

       {¶ 6} As its first witness, the State called the officer who arrested Reese. The

judge later interrupted the State’s direct examination at “a natural break in [the officer’s

testimony]” to take a recess for lunch, and once the jury had exited the courtroom, the

judge asked the parties “whether * * * a resolution of the case, short of a jury verdict, [was]

a possibility.” Trial Transcript 145:8-145:11 and 147:2-147:8. In response, the State

indicated its willingness to enter into either of “two separate offers” it had made previously,

following which defense counsel conferred with Reese. Id. at 147:10-148:15. After

conferring with counsel, Reese decided to plead no contest as charged in the indictment

“[f]or the specific purpose of preserving the issue of suppression for an appeal.” Id. at

148:19-148:24. The judge found Reese guilty on Counts 1-3 and 5-6, proceeded to

sentence him to a five-year term of community control, and filed a corresponding

termination entry on February 28, 2018.5 Reese timely filed his notice of appeal on

March 5, 2018.

                                         II. Analysis


5  Count 4 of the indictment charged Reese with possession of tramadol as a violation of
R.C. 2925.11(A) on the basis of the allegation that tramadol is “a Schedule IV drug”; the
trial court found Reese not guilty on this charge. Before accepting Reese’s pleas, the
court instructed the State to summarize “the evidence for each and every charge,” and
with respect to Count 4, the State characterized tramadol as a “dangerous drug,” instead
of a Schedule IV controlled substance. See Trial Transcript 167:2-168:4 and 170:18-
171:22. Yet, because R.C. 2925.11(A) applies only to “controlled substance[s] [and]
controlled substance analog[s],” the judge determined that the State had not presented
evidence sufficient to prove Reese’s guilt; by way of illustration, the judge noted that the
State’s evidence would have been sufficient had Reese been charged in Count 4 with a
violation of R.C. 4729.51, which prohibits the sale, purchase, distribution, or delivery of
“dangerous or investigational drugs.” See id. at 173:2-174:1.
                                                                                         -6-


       {¶ 7} For his first assignment of error, Reese contends that:

              THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

       MOTION TO SUPPRESS EVIDENCE BECAUSE A SEARCH OF THE

       INTERNAL CONTENTS OF A GYM BAG FOUND IN THE INTERIOR OF

       A VEHICLE WAS UNREASONABLE AND OUTSIDE OF THE SCOPE OF

       THE CIRCUMSTANCES JUSTIFYING AN INVENTORY SEARCH AS A

       RESULT OF THE TOWING OF AN INOPERABLE VHEICLE [sic].

       {¶ 8} Reese argues that because the search of his vehicle included the contents

of unlocked baggage and other containers, it exceeded the scope of a constitutionally

permissible inventory search, or in other words, that it would have been proper only as a

search incident to arrest. See Appellant’s Br. 7. He posits that General Order 28 of the

Urbana Police Division Policy and Procedures Manual “is merely a pretext for * * *

evidentiary search[es] of * * * impounded vehicle[s].” Id.

       {¶ 9} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); see also State v. Taylor, 138 Ohio App.3d 139, 145, 740 N.E.2d 704

(2d Dist.2000) (noting that “the Fourth and Fourteenth Amendments to the United States

Constitution and Section 14, Article 1” of the Ohio Constitution “protect the same interests

in a consistent manner”). Warrantless searches and seizures violate this prohibition

unless conducted pursuant to one of the “few specifically established and well-delineated

exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967).        Among these exceptions are “[i]nventory searches

performed pursuant to standard police procedures on vehicles taken into police custody
                                                                                            -7-

as part of a community-caretaking function.” See State v. Leak, 145 Ohio St.3d 165,

2016-Ohio-154, 47 N.E.3d 821, ¶ 17, citing South Dakota v. Opperman, 428 U.S. 364,

369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Examples “of vehicles taken into custody”

for purposes of community-caretaking “include those that have been in accidents, * * *,

and those that cannot be lawfully driven.” Id. at ¶ 20, citing Opperman at 368-369.

       {¶ 10} Appellate “review of a [trial court’s ruling on a] motion to suppress presents

a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best position to weigh

* * * evidence * * * and evaluate [the credibility of] witness[es],” so an “appellate court

must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.

Graves, 12th Dist. Clermont No. CA 2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v.

Cruz, 12th Dist. Preble No. CA 2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial

court’s findings of fact as true, “the appellate court must then independently determine,

without deference to the [trial court’s legal] conclusion[s],” whether the “facts satisfy the

applicable * * * standard.” Burnside at ¶ 8, citing Fanning, and State v. McNamara, 124

Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997).

       {¶ 11} Here, the police officer ordered that Reese’s vehicle be towed and taken

into custody as authorized by General Order 28 of the Urbana Police Division Policy and

Procedures Manual. While testifying at the hearing on Reese’s motion to suppress, the

officer explained that he issued the order because Reese’s “vehicle was disabled” as the

result of “front-end damage” and was obstructing traffic through the intersection of Lewis

B. Moore Drive and South Main Street. See Hearing Transcript 8:1-8:13.
                                                                                           -8-


       {¶ 12} According to General Order 28, § 4.3(B), “a vehicle [that] has been

[rendered] inoperable,” or non-compliant with the equipment requirements specified in

R.C. Chapter 4513, “may be towed” if: (1) the vehicle’s “continued operation” would pose

a hazard to persons or property; and (2) the vehicle “is located upon any public street or

other property open to the public for purposes of vehicular travel or parking.” Hearing

Transcript 11:20-11:23 and Ex. 2. Although a vehicle “will not [usually] be stored at the

City Impound Lot” if towed by the Urbana Division of Police, the vehicle may “be towed to

the Urbana Police Division Impound [G]arage” with “prior approval from either the [chief

or the lieutenant of the Division]” if the vehicle “is to be held * * * for an investigative

purpose.” Id. at Ex. 2. Section 4.3(B) reflects the provisions of R.C. 4513.66(A)(1),

under which “a public safety official may” order the removal of a vehicle “without the

consent of the owner” following an accident “on any highway, public street, or other

property open to the public for purposes of vehicular travel” if the “vehicle is blocking the

highway, street, or other property” and “is unoccupied * * *.”

       {¶ 13} General Order 28, § 4.3(C) requires that a “motor vehicle inventory” be

completed “whenever a Division-initiated tow is performed on a motor vehicle.” Id. An

inventory search serves the purposes of: “(1) protect[ing] [the vehicle] and [its] contents

while [they are] in police custody, (2) * * * protect[ing] the Division [from] claims of lost,

stolen, or damaged property, and (3) * * * protect[ing] Division personnel and the public

[from personal] injury” and damage to property that could be caused by any “hazardous

materials * * * that [might] be in the vehicle.”        Id.   The inventory search should

“[g]enerally” be “conducted at the location where the vehicle is seized, and it must “extend

to all areas of the vehicle in which personal property or hazardous material may
                                                                                           -9-


reasonably be found, including, but not limited to, the passenger compartment, [the] glove

compartment, and [the] trunk.” Id. Additionally, § 4.3(C) states that the contents of

“[u]nlocked containers within the vehicle will be inventoried,” though “locked containers”

will be “opened and inventoried [only] if [the] key[s] or [the] combination[s] [to the locks]

[are] available.” Id. This section reflects federal and Ohio case law establishing that

such inventory searches are constitutionally permissible. See, e.g., Opperman, 428 U.S.

364, 368-371, 96 S.Ct. 3092, 49 L.Ed.2d 1000; Leak, 145 Ohio St.3d 165, 2016-Ohio-

154, 47 N.E.3d 821, ¶ 17; State v. Thompson, 2d Dist. Montgomery No. 26130, 2014-

Ohio-4244, ¶ 38.

       {¶ 14} Reese argues that the trial court “should have suppressed [the] evidence

obtained by law enforcement from the interior of [the] gym bag [discovered] during [the]

inventory search of [his] vehicle” because his vehicle was towed on the basis of

“inoperability, not [on the basis of] a lawful arrest.” Appellant’s Br. 7. The foregoing

case law, however, directly contradicts Reese’s proposition that General Order 28 “is

unreasonable and [amounts to] an infringement on the constitutional rights of [persons

whose vehicles are] subjected to [inventory] search[es].” Id. In Leak, for example, the

Ohio Supreme Court acknowledged that “[i]nventory searches performed pursuant to

standard police procedures on vehicles taken into police custody as part of a community-

caretaking function are reasonable.” Leak at ¶ 21, citing Opperman at 369. Inventory

searches, moreover, may constitutionally extend to “closed container[s]” within a vehicle

“if there is in existence a standardized policy or practice specifically governing the opening

of such containers.” State v. Hathman, 65 Ohio St.3d 403, 604 N.E.2d 743 (1992),

paragraph two of the syllabus; State v. Favors, 2d Dist. Montgomery No. 24921, 2012-
                                                                                          -10-

Ohio-3596, ¶ 21, citing Hathman at paragraph two of the syllabus.

       {¶ 15} The trial court found, “[i]n the absence of evidence to the contrary,” that

Reese’s vehicle “was disabled.”         (Emphasis omitted.)       Journal Entry Overruling

Defendant’s Motion to Suppress 9, Feb. 5, 2018 [hereinafter Journal Entry].

Acknowledging, as did the trial court, that the only evidence regarding the condition of the

vehicle after the accident was the officer’s testimony that “front-end damage” had

rendered the vehicle inoperable, we hold that the officer’s testimony was itself competent,

credible evidence sufficient to support the trial court’s finding on this issue.6 Journal

Entry 2 and 9; Hearing Transcript 8:5-8:9 and 24:24-25:12. We hold further that the trial

court had sufficient evidence, in the form of General Order 28, to support its finding that

the City of Urbana Division of Police had “a standardized policy or practice * * * govern[ing]

the search of closed containers within [a] vehicle during an inventory search.” Journal

Entry 10.

       {¶ 16} Standing alone, a “police officer’s assertion that an inventory search was

done pursuant to a police department policy is not sufficient” to meet “the State’s burden

of proving that a warrantless search was reasonable because it fits within the inventory

search exception to the warrant requirement.” State v. Myrick, 2d Dist. Montgomery No.

21287, 2006-Ohio-580, ¶ 13, citing State v. Wilcoxson, 2d Dist. Montgomery No. 15928,

1997 WL 452011, *4 (July 25, 1997).            Instead, “ ‘the evidence presented must



6 The trial court erred when it found that “[t]estimony was not presented as to whether
attempts were made by anyone to drive either [Reese’s vehicle or the other] vehicle to
the side of the road or to a place where the [damage to] the vehicle[s] * * * could be
inspected more thoroughly.” Journal Entry 2. The officer, in fact, testified on cross-
examination that he made no attempt to move Reese’s vehicle. Hearing Transcript 20:4-
20:7.
                                                                                           -11-


demonstrate that the police department has a standardized, routine policy[;] [must]

demonstrate what that policy is[;] and [must] show how the officer’s conduct conformed

to that standardized policy.’ ” Id., quoting Wilcoxson at *4. The evidence presented to

the trial court at the hearing on Reese’s motion to suppress indicated that General Order

28 is a standardized policy governing the conduct of vehicle inventory searches, including

containers within vehicles being searched, and that the officer properly ordered that

Reese’s vehicle be towed because it was disabled and was obstructing traffic on a public

road.    Accordingly, we hold that the trial court’s findings of fact were adequately

supported by the evidence, and that in its Journal Entry on Reese’s motion to suppress,

the trial court did not err in its application of the law. Reese’s first assignment of error is

overruled.

        {¶ 17} For his second assignment of error, Reese contends that:

              THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

        COUNSEL       WHEN      TRIAL     COUNSEL        FAILED     TO     QUESTION

        WITNESSES       AND    PRESENT WITNESSES              AT    A    MOTION     TO

        SUPPRESS HEARING.

        {¶ 18} Reese faults the performance of his defense counsel at the hearing on his

motion to suppress in two respects.           First, Reese criticizes counsel for neither

“question[ing] the extent of the damage that made [his vehicle] inoperable,” nor asking

“whether any attempts were made” to move his vehicle “to the side of the road” or to

another place where it could safely be inspected.7 Appellant’s Br. 8. Second, Reese


7 See note 6, above. Reese cites the trial court’s erroneous finding of fact that the officer
did not testify on the question of whether any attempt was made to move his vehicle out
of the intersection before the tow truck arrived. Appellant’s Br. 8.
                                                                                           -12-

criticizes counsel’s decision not to subpoena any witnesses to testify on his behalf. Id.

at 8-9.

          {¶ 19} To prevail on a claim of “ineffective assistance of counsel, a defendant must

satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38

(2d Dist.).      The Strickland test requires a showing that: “(1) defense counsel’s

performance was so deficient that [it did not fulfill the right to assistance of counsel]

guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *

defense counsel’s errors prejudiced the defendant.”           Id., citing Strickland at 687.

Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]

court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana,

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, the defendant

bears the burden to demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of [a given] proceeding would have been different.” Id.

at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A

failure “to make either showing defeats” the claim. Cardenas at ¶ 38.

          {¶ 20} The basic premise of Reese’s claim of ineffective assistance is that his

defense counsel should have attempted to prove that his vehicle was not disabled, which

would have negated the justification for the inventory search and, presumably, warranted

suppression of the evidence discovered by police at the scene of the accident. Reese,

however, has not shown, or even represented, that his vehicle was legally and

mechanically operable after the accident. See Appellant’s Br. 8. The police officer who
                                                                                         -13-


testified at the hearing on Reese’s motion to suppress indicated unequivocally that

Reese’s vehicle was disabled, adding that no attempt was made to move the vehicle to

the side of the road, or elsewhere, in light of the damage to the vehicle’s front end. See

Hearing Transcript 5:11-5:21, 8:1-9:20 and 24:24-25:12. Given that we must defer to the

trial court’s findings of fact if they are supported by competent, credible evidence, and

given the police officer’s sworn testimony that Reese’s vehicle was “disabled,” we hold

that Reese has not satisfied his burden to show that the trial court’s ruling on his motion

to suppress would have been different but for his defense counsel’s decision not to press

the officer for a more detailed description of the damage.

       {¶ 21} Similarly, Reese’s contention that counsel should have subpoenaed his

passenger, who was in his vehicle at the time of the accident, and the other police officer,

who interviewed the passenger at the scene, falls short of satisfying his burden. Reese

offers no insight into what evidence these witnesses would have provided had they been

called to testify, and instead, simply speculates that their testimony might have

established that his passenger “was a properly licensed,” unimpaired driver who could

have driven his vehicle from the site of the accident, thereby “avoid[ing] all ‘inventory

search’ issues pursuant” to General Order 28. See Appellant’s Br. 9. This speculation

is insufficient to meet Reese’s burden to show that the trial court’s ruling on his motion

would have been different had defense counsel called his passenger and the other officer

to testify. Nevertheless, even if Reese’s passenger had been legally and physiologically

capable of safely driving a motor vehicle, Reese would still have had to establish that his

vehicle was legally and mechanically operable.

       {¶ 22} A “postconviction action, rather than a direct appeal, is the proper
                                                                                     -14-

mechanism for asserting [a claim] that is based on evidence dehors the record.” State

v. Moon, 8th Dist. Cuyahoga No. 93673, 2014-Ohio-108, ¶ 13, citing State v. Cooperrider,

4 Ohio St.3d 226, 228-229, 448 N.E.2d 452 (1983), and State v. Curtis, 8th Dist.

Cuyahoga No. 89412, 2008-Ohio-916, ¶ 8. Here, as the record stands, it comprises no

evidence suggesting that the trial court’s ruling on Reese’s motion to suppress would

have been different but for the purported deficiencies in the performance of his defense

counsel, and Reese has not otherwise demonstrated as much.             Reese’s second

assignment of error is overruled.

                                    III. Conclusion

      {¶ 23} We find that the trial court did not err by overruling Reese’s motion to

suppress, and that Reese received adequate representation of counsel at the hearing on

his motion. Therefore, Reese’s convictions are affirmed.



                                    .............



DONOVAN, J. and HALL, J., concur.



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