[Cite as State v. Head, 2017-Ohio-7473.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                 :       Hon. William B. Hoffman, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JAY EVERETT HEAD                             :       Case No. 2017CA00051
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2016CR0952




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    September 6, 2017



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      KRISTINA R. POWERS
Prosecuting Attorney                                 Stark County Public Defender's Office
                                                     201 Cleveland Ave. S.W., Suite 104
By: RONALD MARK CALDWELL                             Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00051                                                  2

Baldwin, J.

       {¶1}   Defendant-appellant Jay Everett Head appeals the denial by the Stark

County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 30, 2016, the Stark County Grand Jury indicted appellant on one

count of illegal manufacture of drugs in violation of R.C. 2925.04(A)(C)(3), a felony of the

second degree, and one count of illegal assembly or possession of chemicals for the

manufacture of drugs in violation of R.C. 2925.041 (A), a felony of the third degree. At his

arraignment on August 19, 2016, appellant entered a plea of not guilty to the charges.

       {¶3}   Appellant, on September 7, 2016, filed a Motion to Suppress, seeking to

suppress any evidence found as a result of the alleged illegal search of his home. A

hearing on the motion was held on October 13, 2016.

       {¶4}   At the hearing, Officer Brian Duman of the Uniontown Police Department

testified that he was in uniform in a cruiser on May 15, 2016 at approximately 3:30 a.m.

when he received a call that sent him to 2488 Edison Street Northwest in Uniontown. The

Police Department had received a call from a couple of neighbors saying that they had

observed multiple subjects with flashlights inside the home, which they indicated was

vacant because the current owner was deceased. Chief Britt, who arrived at the house

seconds after the call, arrived at the house about a minute before Officer Duman. They

also called for an additional unit from Hartville.

       {¶5}   Officer Duman testified that when he arrived, Chief Britt was attempting to

get appellant, who appeared in the kitchen window, to leave the house. He testified that
Stark County, Case No. 2017CA00051                                                 3


appellant walked outside through a side door and was detained until the Hartville unit

arrived. During such time, appellant was asked if anyone else was in the house and told

the officers that there might be. According to Officer Duman, Chief Britt and an officer

from the Hartville Police Department then went inside to do a protective sweep in an

attempt to locate additional subjects in the house. Appellant told Officer Duman that

someone might be in the attic and the attic was checked and found to be empty. While

checking the basement, both officers identified a possible methamphetamine laboratory

that was either functioning or in the process of being fully assembled. The house had

electricity and at least partially functioning plumbing. No other individuals were located

inside the house.

      {¶6}   When asked if appellant had told any of the officers that they could not go

inside the house to look for the additional suspects, Officer Duman indicated that

appellant had not. He testified that because the house was in such poor condition, it would

have been very difficult to determine if there was any forced entry. He did not recall

appellant having a key to the house on him. The following testimony was adduced when

Officer Duman was asked if there was any indication that the house was appellant’s

house:

      {¶7}    A: He had the address for that home on his driver’s license; however, he

hadn’t occupied it in several years as far as I’m aware. I had never seen him at that home

personally. I was aware of the fact that the owner of the home had passed away and that

there was some sort of civil proceeding involving the state of that home, but I didn’t know

anything further at the time. It just was a vacant home as far as I was concerned in my

normal patrol duties.
Stark County, Case No. 2017CA00051                                                   4


       {¶8}   Q: Explain to me what you mean by that.

       {¶9}   A: The owner of the home had passed away, the bills for his burial had

gone unpaid. There was an attorney that was involved and there was some sort of lien

or something placed upon the home. All I knew was it was, like I said, a vacant house

that is located on Edison Street.

       {¶10} Transcript at 14-15. Officer Duman further testified that he passed the

house multiple times during his normal patrol route and had not seen activity at the house

or lights on while patrolling during his shift from 10:00 p.m. to 6:00 a.m. According to him,

the grass was knee high and the house was in a serious state of disrepair.

       {¶11} On cross-examination, Officer Duman testified that the homeowner who

had passed away was appellant’s father. He testified that prior to the night in question,

he had not had contact with appellant or been to the specific address. Officer Duman

admitted that the address on the identification card that appellant produced that night was

the same address on Edison Street Northwest and that appellant told him that he was

entitled to the house. He further testified that appellant never told him that he did not

want the house to be searched. Officer Duman, when questioned about why the witness

statements indicated that flashlights were seen outside the house while, in his report, he

stated that they were inside the house, testified that he wrote his report from the

information that he had received from dispatch and         that there could have been a

miscommunication. According to Officer Duman, the report was written before the written

statements were obtained. He further testified that when he walked into the house with

Chief Britt, there was a strong ammonia odor similar to cat urine and that this was

indicative of a methamphetamine laboratory.
Stark County, Case No. 2017CA00051                                                    5


       {¶12} At the hearing, appellant testified that he had resided at the house off and

on since 1998 and that he had listed 2488 Edison Street Northwest in Uniontown on his

state issued ID card. He further testified that he was listed as an heir or beneficiary of his

father’s estate. According to appellant, there was a transfer on death deed that transferred

the house to him upon his father’s death. Appellant later produced documentation that he

was the heir to his father’s estate and that the house was part of the estate.

       {¶13} Appellant testified that he was at the house at 3:20 a.m. to redo the

hardwood floors and clean the house and that he had entered through the front door. He

testified that after he exited the house, he was asked if he had seen anyone with

flashlights outside the house and said that he had not. Appellant stated that he told the

officers that he was allowed to be at the house and that there was no one else in the

house. Appellant, when asked if he had given the officers permission to search the home,

testified that he told them “No”. He further testified that, when asked if he had seen any

people with flashlights, he responded that he had not.

       {¶14} On cross-examination, appellant admitted that he had told the officers that

he possibly heard something upstairs, but later saw “a” “the antenna” and coax cable

clacking against the side of the house,… and I said that’s what I heard.” Transcript at 43.

He denied telling the officers that there might be people in the house. Appellant alleged

that the police had changed their written report after obtaining witness statements with

respect to whether the flashlights were seen inside or outside of the house. He indicated

that he believed that the officers were making stuff up to get him.

       {¶15} As memorialized in a Judgment Entry filed on November 15, 2016, the trial

court overruled appellant’s Motion to Suppress. Thereafter, on February 15, 2017,
Stark County, Case No. 2017CA00051                                                    6


appellant withdrew his former not guilty plea and entered a plea of no contest to both

charges. Pursuant to a Judgment Entry filed on March 20, 2017, appellant was placed

on community control for a period of three years.

       {¶16} Appellant now raises the following assignment of error on appeal:

       {¶17} THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT’S

MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE.

                                                  I

       {¶18} Appellant, in his sole assignment of error, argues that the trial court erred in

overruling his Motion to Suppress. We disagree.

       {¶19} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th Dist.1993).

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. In that case, an appellate court can reverse the trial

court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not against the

manifest weight of the evidence and it has properly identified the law to be applied, an

appellant may argue the trial court has incorrectly decided the ultimate or final issue raised

in the motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the
Stark County, Case No. 2017CA00051                                                 7

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

      {¶20} Appellant, in the case sub judice, argues that the evidence was obtained as

a result of the illegal warrantless search of the house and should have been suppressed.

The Fourth Amendment to the United States Constitution and Section 14, Article I of the

Ohio Constitution enunciate the right of persons to be free from unreasonable searches

and seizures. However, exigent circumstances may justify warrantless entries upon

property. State v. Applegate, 68 Ohio St.3d 348, 1994-Ohio-356, 626 N.E.2d 942,

syllabus. The “emergency aid” doctrine is a narrow type of exigent circumstance which

allows the police “to enter a dwelling without a warrant and without probable cause when

they reasonably believe, based on specific and articulable facts, that a person within the

dwelling is in need of immediate aid.” State v. Gooden, 9th Dist. Summit No. 23764, 2008–

Ohio–178, at ¶ 6. Under this exception, Ohio courts have recognized that a police officer

may lawfully enter a structure to protect the property of the owner or occupant when the

police reasonably believe that the premises have been or are being burglarized. State v.

Sladeck, 132 Ohio App.3d 86, 89, 724 N.E.2d 488 (1st Dist.1998). As noted by the court

in State v. Wilson, 12th Dist. Clinton No. CA2006-03-008, 2007-Ohio-353 at paragraph

24, “[w]hen police reasonably believe that a burglary is in progress, an immediate

warrantless entry undertaken to investigate and protect the property and to assist any
Stark County, Case No. 2017CA00051                                                     8

victims inside has been upheld by the courts as a reasonable search. State v. Overholser

(July 25, 1997), Clark App. No. 96–CA–0073.”

       {¶21} In the case sub judice, there was testimony that the Uniontown Police

Department had received a call that neighbors had observed multiple suspects with

flashlights inside of the house. There was testimony that they told the officers that the

home was vacant, the owner deceased and that no one was supposed to be there. Officer

Duman testified that he had not observed any activity at the house during his normal

routine patrols and that the house was in serious disrepair, making it difficult to determine

if there was any forced entry, and the grass was knee high. According to Officer Duman,

when the officers spoke with appellant, he indicated that there might be other individuals

in the house. While appellant disputes this, the trial court, as trier of fact, was in the best

position to assess credibility.

       {¶22} Based on the foregoing, we agree with the trial court that, based upon the

totality of circumstances, the officers “had reason to believe [at the time of the search]

that a burglary was occurring at the residence and, therefore, an immediate warrantless

entry into the residence was permissible to investigate and protect the residence.” On

such basis, we find that the trial court did not err in overruling appellant’s Motion to

Suppress.

       {¶23} Appellant’s sole assignment of error is, therefore, overruled.
Stark County, Case No. 2017CA00051                                         9


      {¶24} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.
