[Cite as State v. Newsome, 2016-Ohio-3509.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2015-A-0046
        - vs -                                  :

RYAN KYLE NEWSOME,                              :

                 Defendant-Appellee.            :



Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00746.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellant).

William B. Norman, Norman & Tayeh, LLC, 11509 Lorain Avenue, Cleveland, OH
44111 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from the Judgment Entry of

the Ashtabula County Court of Common Pleas, granting the defendant-appellee, Ryan

Kyle Newsome’s, Motion to Suppress evidence found in the search of a residence

where he was arrested. The issue to be determined by this court is whether a motion to

suppress evidence is properly granted when an officer testifies that consent to search a

home was given through a statement to “go ahead” and search, although a reference to
consent had not been included in the police report and the officer stated that the

authority to search was based on the arrest warrant. For the following reasons, we

affirm the decision of the lower court.

       {¶2}   On January 29, 2015, the Ashtabula County Grand Jury issued an

Indictment, charging Newsome with Illegal Manufacture of Drugs, a felony of the second

degree, in violation of R.C. 2925.04(A) and (C)(3)(a); Illegal Assembly or Possession of

Chemicals for the Manufacture of Drugs, a felony of the third degree, in violation of R.C.

2925.041(A); and Aggravated Possession of Drugs, a felony of the second degree, in

violation of R.C. 2925.11(A) and (C)(1)(c).

       {¶3}   Newsome filed a Motion to Suppress on June 1, 2015. He argued, inter

alia, that evidence found during a search of his girlfriend’s home, various items related

to the manufacture and possession of methamphetamine, must be suppressed because

the police lacked a search warrant, exigent circumstances, or consent. The State’s

response included several justifications for the admission of the evidence, including that

Newsome lacked standing to challenge the search, the arrest warrant provided grounds

to search, and there were exigent circumstances.

       {¶4}   A suppression hearing was held on July 21, 2015.             The following

testimony was presented:

       {¶5}   Ashtabula County Sheriff’s Department Detective Brian Rose testified that

on December 2, 2014, he went to 1820 East 45th Street to serve an arrest warrant for

Newsome and his girlfriend, Tricia Kirk. Rose believed Newsome would be inside the

house based on anonymous phone tips that people had seen him there. Upon arrival,

Rose noticed no tire tracks in the snow-covered driveway, furthering his belief that the

subjects would be inside the house.       Kirk answered the door and was taken into

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custody. Rose testified that, after Kirk was placed under arrest, “[s]he told us we could

search * * * she said go ahead and look for him.” Rose did not put this in the police

report since “she always gives consent,” although he admitted that important

information should be included in the police report. During past unsuccessful attempts

to locate Newsome at the home, Kirk would “stall” the officers and “then allow

everybody in” to search for Newsome. Rose was questioned about the consent several

times on cross-examination.       When asked again whether Kirk gave consent, Rose

responded, “She did not tell us we couldn’t search, no,” then stating that she “said at

that time we could look for him,” and that he was sure Kirk had given consent.

         {¶6}   Upon searching the house, Rose saw items commonly used for the

manufacture of methamphetamine in plain view and smelled an odor associated with

fuel often used in meth labs. Newsome was located hiding in a compartment inside the

shower.

         {¶7}   Newsome testified that Kirk is his ex-girlfriend and he previously stayed in

her home on some occasions, including at the time of his arrest on December 2, 2014.

         {¶8}   In its August 20, 2015 Judgment Entry, the trial court granted the Motion

to Suppress, suppressing all evidence seized during the search conducted on

December 2, 2014. It concluded that there was no evidence the police had exigent

circumstances to enter the house, they were not permitted to enter the house under the

authority of the arrest warrant, and they did not have sufficient reliable information to

believe Newsome was present.

         {¶9}   The trial court also made the following findings regarding the consent

issue:




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                The first time [consent] was ever mentioned was on the cross-

                examination of Detective Rose, who acknowledged that he did not

                report anywhere that Kirk had given consent for the search.1 He

                testified that she had always given consent on the prior occasions

                when police officers came to her home seeking the defendant. He

                indicated that the police were relying on the arrest warrant when they

                entered the premises.           On questioning by the defense counsel,

                Detective Rose first stated that Kirk did not tell them they could not

                search; then she said that they could look for him and that he’s not

                there.    Detective Rose also stated that Kirk never stopped her

                consent to search. Upon further questioning about the specifics of

                her consent, Detective Rose testified that they asked if he, the

                defendant, was in there, and told her that they were going to look, to

                which Kirk responded, “That’s fine, go ahead, but he’s not here.”

                Rose also testified that they warned her that if they found the

                defendant there, she would also be charged.                      Detective Rose

                testified that Kirk was placed in handcuffs and that she was on the

                porch when he entered the house.

        {¶10} Based on this, the court found that the contention that consent was given

was “not tenable,” and “[t]he evidence that Tricia Kirk consented to the search of her




1. A review of the transcript reveals that during direct examination, Rose, when testifying about past
arrests at the home, stated: “just like when we were there, Tricia Kirk stalled them for a time period, and
then would allow everybody in to search for Ryan Newsome.” (Emphasis added.). In other words, Rose
was testifying that consent was given on this occasion as well, although he failed to provide any other
testimony to this effect at that time.

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home is equivocal, and, taken at its best, does not establish a voluntary consent by

her.”

        {¶11} The State timely appeals and raises the following assignment of error:

        {¶12} “The trial court erred in granting appellee’s motion to suppress.”

        {¶13} At a suppression hearing, “the trial court is best able to decide facts and

evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, 833 N.E.2d 1216, ¶ 41.         “Its findings of fact are to be accepted if they are

supported by competent, credible evidence, and we are to independently determine

whether they satisfy the applicable legal standard.” Id., citing State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Wysin, 11th Dist. Portage

No. 2013-P-0037, 2013-Ohio-5363, ¶ 27 (“[o]nce the appellate court accepts the trial

court’s factual determinations, the appellate court conducts a de novo review of the trial

court’s application of the law to these facts”) (citation omitted).

        {¶14} The State argues that the Motion to Suppress was improperly granted

solely based on the lower court’s erroneous conclusion that voluntary consent to search

was not given. The State contends that this finding was not consistent with Detective

Rose’s testimony.

        {¶15} “A search conducted pursuant to a valid consent is constitutionally

permissible.” Bainbridge v. Kaseda, 11th Dist. Geauga No. 2007-G-2797, 2008-Ohio-

2136, ¶ 28. Consent need not amount to a waiver and can be voluntary without being

an “intentional relinquishment or abandonment of a known right or privilege.” Johnson

v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To determine

whether valid consent exists, “the proper test is whether the totality of the circumstances

demonstrates that the consent was voluntary. * * * The state has the burden to prove

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consent was freely and voluntarily given by clear and convincing evidence.” Kaseda at

¶ 28; State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). Our “review

of the voluntariness of consent to search is ‘limited to a determination of whether the

trial court’s decision was “clearly erroneous.”’” (Citations omitted.) Kaseda at ¶ 27.

       {¶16} The trial court determined that voluntary consent was not given, describing

Rose’s testimony and holding that evidence supporting a finding of consent was

“equivocal.” It must be emphasized that “it is squarely within the province of the trial

court to assess the credibility of the witnesses by weighing their testimony and

observing their demeanor.” State v. McDivitt, 11th Dist. Lake No. 2011-L-129, 2012-

Ohio-2243, ¶ 36.     The findings made by the trial court show that it found Rose’s

testimony to lack credibility. After hearing Rose’s testimony, it found the assertion that

consent was given “not tenable,” pointed out flaws, and suppressed the evidence based

on the improper entry of the home and resulting search. Given the trial court’s ruling, it

is clear that it opted to disbelieve Rose’s testimony.

       {¶17} The trial court’s determination is consistent with the testimony presented

by Detective Rose, and is supported by competent, credible evidence. Rose did not

include in his police report any reference to the consent that was given by Kirk, even

though Rose confirmed that he “tr[ies] to” include all important information in his police

reports. This would presumably include the justification for entering a home without a

warrant. In addition, the wording of his statements, first that Kirk did not object to the

search and then that she consented, raises possible credibility questions. It is also

noteworthy that Rose testified he believed that a police search was justified under the

arrest warrant. It seems likely that a request for consent may not be made if police

already believed the search was justified. It must be stressed that “factual questions

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during suppression hearings are to be resolved by the trial court because it sits as the

trier of fact.” McDivitt at ¶ 36. While the State outlines Rose’s testimony that consent

was given and argues that there was no evidence of coercion, given that the trial court

found this testimony lacked credibility, it does not weigh in the State’s favor.

       {¶18} Thus, given that credibility is for the trier of fact to determine, as well as

the standard that this court must accept facts supported by competent, credible

evidence, there is no basis for reversal. We decline to second-guess the trial court’s

decision on this factual issue. Without the testimony of Detective Rose, the State failed

to meet its burden of showing that consent was voluntarily given. Bumper v. North

Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (“[w]hen a

prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the

burden of proving that the consent was, in fact, freely and voluntarily given”); State v.

McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 24 (2d Dist.).

       {¶19} The sole assignment of error is without merit.

       {¶20} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas, granting Newsome’s Motion to Suppress, is affirmed. Costs to be

taxed against appellant.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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