[Cite as State v. Zerucha, 2016-Ohio-1300.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2015-A-0031
        - vs -                                 :

ASHLEY SUE ZERUCHA,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2015 CR 143.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, P.O. Box 293, Jefferson,
OH 44047 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Ashley Sue Zerucha, appeals from the judgment of the

Ashtabula County Court of Common Pleas denying her motion to suppress evidence.

She additionally challenges her conviction, arguing she was prejudiced by remarks

made by the trial judge as well as her trial counsel’s alleged ineffectiveness. Based on

the following, we affirm.
      {¶2}   At approximately 9:30 p.m., February 3, 2015, Deputy Matthew Johns and

Sergeant Brian Cumberledge, of the Ashtabula County Sheriff Department, arrived at

1641 East Prospect Rd., Ashtabula City, Ashtabula County, to execute an arrest

warrant issued pursuant to an outstanding indictment issued against appellant. The

officers approached the building and noticed a closed-circuit camera in the common

area. They ascended to the second floor of the building where there were two separate

apartments. The officers observed a second closed-circuit monitor pointing at the area

where they were standing.

      {¶3}   Although neither officer knew which of the two apartments belonged to

appellant, they knew she had a small dog. They heard a dog barking in the west-most

apartment and knocked; a female voice responded, asking, “who is it?” The officers

answered “Sheriff’s office,” and the voice replied, “wait a minute.”     A male voice

subsequently advised, “Ashley’s not here.” The officers asked the person: “How did you

even know we were inquiring about Ashley?” A man opened the door to the apartment

and identified himself as Cory Felasco.

      {¶4}   The officers advised Felasco they had an arrest warrant for appellant.

Felasco stated appellant had borrowed his car and left the apartment earlier in the

evening. The officers, however, questioned Felasco about the female voice. Felasco

stated, without explanation, that he feigned the female voice in order to respond to the

knock. The officers advised Felasco they had reason to believe appellant was in the

apartment and entered the dwelling to locate her.

      {¶5}   Sergeant Cumberledge commenced a search of the living room and

kitchen area. During his search, Sergeant Cumberledge noticed the apartment had a

means of ingress and egress separate from the front door. The passage allowed the


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officer to leave appellant’s apartment and enter a hallway that eventually led to the

building’s basement.

      {¶6}   While Sergeant Cumberledge searched for appellant in the open areas of

the apartment, Deputy Johns searched appellant’s bedroom.            Upon entering the

bedroom, he observed a methamphetamine pipe on the bed. He further observed a

duffle bag underneath a small desk “overflowing” with coffee filters, funnels, tubing, and

chemicals associated with the manufacture of methamphetamine. The officer further

observed additional chemical containers in a small garbage can near the bag. The

officers recognized these items are commonly used in the “one-pot” method of

manufacturing methamphetamine.

      {¶7}   Detective Bryan Rose of the Ashtabula County Sheriff’s Department was

called to assist in the investigation and remediate the scene.      Upon his arrival, he

photographed and collected the items, separating them into buckets for eventual

destruction. During the remediation, Detective Rose observed a light bulb, small plastic

bags, and a container of salt. He also noticed a pop bottle underneath an end stand in

the living room.   The detective surmised the bottle had been used to manufacture

methamphetamine. He subsequently collected liquid from the bottle for testing.

      {¶8}   Test results later revealed a plastic bag retrieved from the apartment

contained methamphetamine residue; moreover, the liquid residue collected from the

bottle by Detective Rose contained methamphetamine.

      {¶9}   Appellant was indicted on one count of aggravated trafficking in drugs, in

violation of R.C. 2925.03, a felony of the first degree; one count of aggravated

possession of drugs, in violation of R.C. 2925.11, a felony of the first degree; one count

of illegal manufacture of drugs, in violation of R.C. 2925.04, a felony of the second


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degree; one count of illegal assembly or possession of chemicals for the manufacture of

drugs, in violation of R.C. 2925.04, a felony of the third degree; and one count of

possessing criminal tools, in violation of R.C. 2923.24, a felony of the fifth degree.

Appellant pleaded not guilty to the charges.

      {¶10} Appellant filed a motion to suppress evidence, which was denied. The

matter proceeded to a jury trial. Appellant failed to appear on the second day of trial.

The court subsequently revoked her bond and a capias was issued. Later that morning,

appellant was located and arrested.       The trial recommenced and the jury found

appellant guilty of all charges except the aggravated trafficking in drugs count, of which

she was acquitted. The trial court determined all counts were allied offenses which

merged for sentencing purposes. The state elected to proceed to sentencing on the

aggravated possession of drugs count. Appellant was sentenced to a seven-year term

of imprisonment.

      {¶11} Appellant assigns three errors for this court’s consideration.       Her first

assignment of error alleges:

             The trial court erred to the prejudice of the Appellant through the
             admission of evidence obtained from a search and seizure without
             a search warrant or consent from Appellant. The warrantless
             search is in violation of the Appellant’s rights under the
             Constitution[s] of the United State[s] and the State of Ohio.

      {¶12} Appellant argues the evidence seized from her apartment should have

been suppressed because the search occurred without her consent, without a valid

search warrant, and without a valid exception to the search warrant requirement of the

Fourth Amendment. We disagree.

      {¶13} Generally, the Fourth Amendment prohibits the police from making a

warrantless nonconsensual entry into a suspect’s home in order to make a felony arrest.


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Payton v. New York, 445 U.S. 573, 588-589 (1980). The Payton Court held, however,

that “an arrest warrant founded on probable cause implicitly carries with it the limited

authority to enter a dwelling in which the suspect lives when there is reason to believe

the suspect is within.” Id. at 603. Accordingly, pursuant to Payton, an arrest warrant is

sufficient to enter a person’s residence to effectuate the warrant if the police have

reason to believe that the suspect lives in the home and is in fact at the home at the

time the arrest warrant is executed. “Reasonable belief is established by looking at

common sense factors and evaluating the totality of the circumstances.” United States

v. Pruitt, 458 F.3d 477, 482 (6th Circ.2006), citing United States v. McKinney, 379 F.2d

259 (6th Circ.1967).

      {¶14} Appellant does not contest that the arrest warrant the officers were

executing was founded on probable cause. Moreover, she does not contest the fact

that the apartment in question was her residence. These facts, coupled with the female

voice that initially responded to their knock, provided the officers with sufficient reason

to believe appellant was concealed in the apartment.          We therefore conclude the

officers possessed the limited authority to enter the residence to confirm whether she

was present in order to arrest her pursuant to the warrant.

      {¶15} Next, we must consider whether the officers, upon entering the residence,

exceeded the limited authority conferred by Payton. We hold they did not.

      {¶16} It is long-settled law that objects falling within the plain view of an officer

who has a right to be in the position to have that view are subject to seizure and may be

introduced as evidence. Ker v. California, 374 U.S. 23, 43 (1963); State v. Williams, 55

Ohio St.2d 82, 85 (1978). The United States Supreme Court has observed:




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              What the ‘plain view’ cases have in common is that the police
              officer in each of them had a prior justification for an intrusion in the
              course of which he came inadvertently across a piece of evidence
              incriminating the accused. The doctrine serves to supplement the
              prior justification -- whether it be a warrant for another object, hot
              pursuit, search incident to lawful arrest, or some other legitimate
              reason for being present unconnected with a search directed
              against the accused -- and permits the warrantless seizure. Of
              course, the extension of the original justification is legitimate only
              where it is immediately apparent to the police that they have
              evidence before them; the ‘plain view’ doctrine may not be used to
              extend a general exploratory search from one object to another
              until something incriminating at last emerges.

Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).

       {¶17} Under the plain-view exception to the search warrant requirement, police

may seize evidence in plain view during a lawful search if (1) the seizing officer is

lawfully present at the place from which the evidence can be plainly viewed; (2) the

seizing officer has a right of access to the object itself; and (3) the object’s incriminating

character is immediately apparent. Horton v. California, 496 U.S. 128, 136-137 (1990).

       {¶18} In this case, Deputy Johns testified, upon entering into appellant’s

bedroom, he observed a pipe used for smoking methamphetamine on the bed. He also

observed an open duffle bag filled with items commonly used in the manufacture of

methamphetamine, e.g., coffee filters, tubes, funnels. In light of these observations and

the officer’s knowledge that methamphetamine labs are highly combustible, he notified

Detective Rose, who arrived at the scene to remediate the evidence. Detective Rose

observed additional evidence of a methamphetamine lab open and unconcealed in the

apartment: a pop bottle containing residue; salt; and small plastic baggies.

       {¶19} Deputy Johns noticed the pipe and the items in the duffel bag while

lawfully present. Because these items were unobstructed and within his plain sight, he

had a right of access to these objects. Finally, while the items in the bag, in isolation,


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might not be inherently incriminating, all of them together and their proximity to the pipe

permit the immediate inference they are incriminating. This analysis is also applicable

for the items seized as a result of Detective Rose’s observations. These items were in

plain view, the officers were in a place they were entitled to be when they observed

them, and they were therefore subject to seizure.

       {¶20} We note that the state cites R.C. 2933.33 as an independent justification

for the officer’s ultimate seizure of the items in appellant’s apartment. It provides:

              (A) If a law enforcement officer has probable cause to believe that
              particular premises are used for the illegal manufacture of
              methamphetamine, for the purpose of conducting a search of the
              premises without a warrant, the risk of explosion or fire from the
              illegal manufacture of methamphetamine causing injury to the
              public constitutes exigent circumstances and reasonable grounds
              to believe that there is an immediate need to protect the lives, or
              property, of the officer and other individuals in the vicinity of the
              illegal manufacture.

       {¶21} Although both Sergeant Cumberledge and Deputy Johns testified to the

dangerous and volatile nature of methamphetamine manufacturing, they had no

probable cause to believe such activities were occurring at appellant’s apartment until

they observed the equipment in the duffel bag in plain view. Moreover, there was

nothing, e.g., the pungent odor of methamphetamine manufacture, to suggest the lab

was active at the time the officers lawfully entered the premises.         Thus, under the

circumstances of this case, we decline to apply R.C. 2933.33 as a separate basis for

upholding the search.

       {¶22} Because the officers were lawfully present in the apartment and observed

the incriminating evidence in plain view, we hold the trial court did not err in denying

appellant’s motion to suppress.

       {¶23} Appellant’s first assignment of error lacks merit.


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      {¶24} Because they are related, we address appellant’s second and third

assignments of error together. They provide:

             [2.] The due process and fair trial rights of the Defendant-Appellant
             were violated by the ineffective assistance of her counsel, in
             violation of the Sixth and Fourteenth Amendments to the U.S.
             Constitution and Article I, Sections 10 and 16, of the Ohio
             Constitution.

             [3.] The Appellant’s right to a fair trial under the Sixth Amendment
             of the United States Constitution and the Constitution of the State
             of Ohio was violated by the Trial Judge’s prejudicial remarks.

      {¶25} Under appellant’s second assignment of error, she asserts the trial court’s

comments to the jury, in light of her failure to appear on the second day of trial, should

have been objected to and counsel should have moved for a mistrial. Appellant argues

this failure rises to ineffective assistance of counsel.      Similarly, under her third

assignment of error, appellant asserts the trial court’s comments were prejudicial and

tainted the jury. As a result, she argues the court’s remarks violated her right to a fair

trial. We disagree.

      {¶26} For appellant to prevail on her claim of ineffective assistance of counsel,

we must first conclude that counsel’s performance fell measurably below that which

might be expected from an ordinary fallible attorney. Second, we must conclude that

appellant suffered prejudice as a result of counsel’s deficient performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish prejudice, appellant must show,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. State v. Seiber, 56 Ohio St.3d 4, 11 (1990). A reviewing court indulges a

strong presumption that counsel’s conduct is within the wide range of reasonable

professional representation. Strickland, supra, at 689.




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       {¶27} Further, it is well settled that a trial judge must be aware of the effect of his

or her comments upon a jury. State v. Miller, 11th Dist. Trumbull No. 2004-T-0082,

2005-Ohio-5283, ¶21. This does not imply that a trial judge may not make comments

during the course of a trial. Id. When evaluating whether a trial judge’s remarks were

proper, an appellate court must decide whether the comments were prejudicial to a

defendant’s right to a fair trial. Id.

       {¶28} The record indicates appellant was injured in an auto accident on the

morning of her second day of trial. The court explained this to the jury and stated,

although her injuries did not appear serious, she was sent to the emergency room. The

court consequently adjourned until the following day.        Appellant, however, failed to

appear for trial the following morning. As a result of this absence, the court addressed

the jury, noting that a defendant’s absence is “just something that doesn’t happen very

often” and was “causing another bit of an unexpected delay.” The court continued:

               She was expected to be here today and I think had informed her
               lawyer that she would be, but right at this point we’re not exactly
               sure what happened. So we’re trying to confirm that she’s okay,
               that nothing else has happened to her, and at this point I’ve
               determined since you’ve been back there over an hour now and I
               know that that room is not the most comfortable one to be in, that
               I’m going to go ahead and take a recess now and just allow you to
               do whatever you want for the next couple of hours. * * *

               I do want to tell you that you know as jurors ultimately any decision
               that’s made in this case has to be based on the evidence so you
               shouldn’t be speculating or drawing any inferences about what’s
               happened and the delays that have occurred in the case. That
               should not enter into your consideration of the evidence in any way
               but for now, until I can confirm for sure what the situation is with
               Ms. Zerucha, I’m going to just go ahead as I said and allow you to
               have this morning free. So I apologize for what’s happening but
               sometimes these things cannot be helped.




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       {¶29} Even though the trial court noted the circumstances of appellant’s

absence were unusual and that her absence had caused an unexpected delay, these

observations were neither derogatory nor did they suggest the court was urging the jury

to treat appellant unfairly due to her absence. To the contrary, the follow-up comments

made by the court suggest the court was actually concerned for her well-being. The

court gave an appropriate limiting instruction that the jury should neither speculate on

the basis of appellant’s absence nor allow the delays to contaminate its deliberations.

       {¶30} “‘Mistrials should only be declared when the ends of justice so require and

a fair trial is no longer possible.’” State v. Albanese, 11th Dist. Portage No. 2005-P-

0054, 2006-Ohio-4819, ¶26, quoting State v. Franklin, 62 Ohio St.3d 118, 127 (1991).

Under the circumstances, the court’s comments did not compromise the fairness of

appellant’s trial.   Because the comments of the trial court were appropriate, we

conclude counsel did not act unreasonably in failing to object to the court’s statements

or move for a mistrial. We further hold appellant suffered no prejudice as a result of the

court’s comments.

       {¶31} Appellant’s second and third assignments of error lack merit.

       {¶32} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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