[Cite as State v. Teeple, 2018-Ohio-1767.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-17-28

        v.

ROBERT A. TEEPLE,                                          OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. TRC 1700514

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                               Date of Decision:   May 7. 2018




APPEARANCES:

        Eric Allen Marks for Appellant

        Charles R. Hall for Appellee
Case No. 13-17-28


ZIMMERMAN, J.

       {¶1} Defendant-Appellant, Robert A. Teeple (“Teeple”) appeals his

convictions from the Seneca County Tiffin-Fostoria Municipal Court of one count

of Driving While Under the Influence (“OVI”) in violation of R.C.

4511.19(A)(1)(a); one count Stopping after accident; exchange of identity and

vehicle registration (“Hit-Skip”) in violation of R.C. 4549.02; and one count of

Operation Without Reasonable Control (“Failure to Control”), in violation of R.C.

4511.202. On appeal, Teeple argues that: (1) he was denied his right to effective

assistance of counsel, and (2) the trial court erred in finding him guilty of failure to

stop after an accident when there was insufficient evidence to make a finding of

guilt. For the reasons set forth below, we reverse the ruling of the trial court as to

Teeple’s “Hit-Skip” conviction only.

                        Factual and Procedural Background

       {¶2} On February 12, 2017, Trooper Sorg of the Ohio State Highway Patrol

was dispatched to a one-vehicle injury accident in Seneca County. (8/31/2017 Tr.

at 8). Trooper Sorg was advised that the driver was attempting to change a tire and

was believed to be under the influence. (Id.). As a result of the dispatch, the Seneca

County Sheriff’s Office EMS responded to the area but could not locate the vehicle.

(Id.). However, Officer Taggart, of the Fostoria Police Department, while in the

area, was stopped by a motorist who stated that they saw a maroon minivan pulling


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Case No. 13-17-28


into the parking lot of the union hall without a front tire. (Id.). The vehicle

description given to Officer Taggart matched the description of the vehicle involved

in the crash to which Trooper Sorg was dispatched. (Id.).

         {¶3} As a result of this information, Officer Taggart went to the United Auto

Workers (“UAW”) union hall in an attempt to locate the driver of the minivan. (Id.).

Individuals at the union hall told Officer Taggart that they were aware of Teeple,

the individual identified as the minivan’s driver, being in the union hall building but

they were not sure of his location therein. (Id.). So, Officer Taggart searched the

UAW hall and found Teeple in the back room of the hall’s kitchen with the lights

off. (Id. at 8-9). Officer Taggart secured Teeple into the back of his patrol vehicle.

(Id.).

         {¶4} Thereafter, Trooper Sorg obtained information from a witness at the

union hall who stated that they observed Teeple consume alcohol at the UAW hall

earlier in the day, before his accident. (Id.). Another Ohio State Highway Patrol

Officer, Trooper Donovan, obtained a statement from Teeple, wherein he (Teeple)

stated that he had not consumed any alcohol prior to the crash but may have had

three alcoholic drinks after the crash. (Id.). These witness accounts were part of

Trooper Sorg’s report.

         {¶5} As a result of the Ohio State Highway Patrol’s investigation, Teeple

was charged with one (1) count of OVI, in violation of R.C. 4511.19(A)(1)(A); one


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(1) count of Failure to Control, in violation of R.C. 4511.202; and one (1) count of

Hit-Skip, in violation of R.C. 4549.02. (Doc. No. 1). Teeple’s ticket alleged that at

approximately 4:10 P.M. on February 12, 2017, Teeple was involved in an injury

crash upon County Road 25. (Id.). Furthermore, Teeple’s ticket also indicated that

Teeple had five (5) prior OVI convictions, from: 2014, 1996, 1985, 1984, and 1982.

(Id.). Trooper Sorg personally served Teeple with the traffic citation on February

12, 2017. (Id.).

       {¶6} On February 14, 2017, Teeple’s attorney filed written pleas of not guilty

to all three charges on Teeple’s behalf in the trial court. (Doc. No. 2). Teeple had

his first pre-trial on March 27, 2017. (Doc. No. 4). A second pre-trial was

scheduled, and it was indicated that Teeple was likely filing a motion to suppress

by April 17, 2017. (Id.). However, a motion to suppress was never filed, and at

Teeple’s second pre-trial on May 2, 2017, Teeple’s charges were set for a jury trial.

(Doc. No. 5). At Teeple’s final pre-trial on July 6, 2017, Teeple waived his right to

a jury trial and a bench trial was scheduled for August 31, 2017. (Doc. No. 10).

       {¶7} On his scheduled bench trial date, Teeple changed his pleas of not guilty

to pleas of no contest to all charges. (Doc. No. 22). Upon his plea of no contest,

the trial court found Teeple guilty on all three counts and imposed a jail sentence,

fines, and probation conditions on Teeple. (8/31/2017 Tr. at 9-10; Doc. No. 22).




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From this judgment Teeple appeals, and presents the following assignments of error

for our review:

                        ASSIGNMENT OF ERROR NO. I

       APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
       AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 2,
       10, 16, & 19 OF THE OHIO CONSTITUTION.

                        ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN FINDING APPELLANT
       GUILTY OF [SIC] STOPPING AFTER AN ACCIDENT WHEN
       THERE WAS INSUFFICIENT EVIDENCE UPON WHICH A
       FINDING [SIC] GUILT COULD BE MADE.

       {¶8} Given the nature of the assignments of error, we elect to address them

out of order.

                             Second Assignment of Error

       {¶9} In his second assignment of error, Teeple argues that this Court must

dismiss his Hit-Skip conviction because the trial court lacked sufficient evidence

upon which a finding of guilt could be made. For the reasons that follow, we agree

and reverse the ruling of the trial court.

                                  Standard of Review

       {¶10} “R.C. 2937.07 states: “A plea to a misdemeanor offense of ‘no contest’

or words of similar import shall constitute a stipulation that the judge or magistrate

may make a finding of guilty or not guilty from the explanation of the circumstances

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of the offense.’” State v. Provino, 175 Ohio App.3d 283, 2007-Ohio-6974, 886

N.E.2d 888, ¶ 5.      “To find a defendant guilty, ‘the record must provide an

‘explanation of circumstances’ which includes a statement of the facts supporting

all of the essential elements of the offense.’” Id. quoting Broadview Hts. v. Krueger,

8th Dist. Cuyahoga No. 88998, 2007-Ohio-5337, 2007 WL 2875156, at ¶ 10. “This

rule prevents the trial court from finding offenders guilty ‘in a perfunctory fashion.’”

Broadview, at ¶ 10, citing City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150,

459 N.E.2d 532 (1984).

                                       Analysis

       {¶11} In this case, Teeple was convicted of Hit-Skip, in violation of R.C.

4549.02, which reads:

       (A)(1) In the case of a motor vehicle accident or collision with persons
       or property on a public road or highway, the operator of the motor
       vehicle, having knowledge of the accident or collision, immediately
       shall stop the operator’s motor vehicle at the scene of the accident or
       collision. The operator shall remain at the scene of the accident or
       collision until the operator has given the operator’s name and address
       and, if the operator is not the owner, the name and address of the
       owner of that motor vehicle, together with the registered number of
       that motor vehicle, to all of the following:

            (a) Any person injured in the accident or collision;

            (b) The operator, occupant, owner, or attendant of any
                motor vehicle damaged in the accident or collision;

            (c) The police officer at the scene of the accident or
                collision.


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       (2) In the event an injured person is unable to comprehend and record
       the information required to be given under division (A)(1) of this
       section, the other operator involved in the accident or collision shall
       notify the nearest police authority concerning the location of the
       accident or collision, and the operator’s name, address, and the
       registered number of the motor vehicle the operator was operating.
       The operator shall remain at the scene of the accident or collision until
       a police officer arrives, unless removed from the scene by an
       emergency vehicle operated by a political subdivision or an
       ambulance.

       (3) If the accident or collision is with an unoccupied or unattended
       motor vehicle, the operator who collides with the motor vehicle shall
       securely attach the information required to be given in this section, in
       writing, to a conspicuous place in or on the unoccupied or unattended
       motor vehicle.

       (B)(1) Whoever violates division (A) of this section is guilty of failure
       to stop after an accident. Except as otherwise provided in division
       (B)(2) or (3) of this section, failure to stop after an accident is a
       misdemeanor of the first degree.

R.C. 4549.02.

       {¶12} In finding Teeple guilty of Hit-Skip, the trial court relied on the face

of the citation, Trooper Sorg’s police report, and Teeple’s plea of no contest.

(8/31/2017 Tr. at 9). As to the Hit-Skip charge, Teeple’s citation contains the

following: the accident date and time; the make, model, year, and color of his

vehicle; Teeple’s personal information; and the revised code section relative to the

charge of Hit-Skip. (Doc. No. 1).

       {¶13} Further, as to Teeple’s plea of no contest, the following exchange with

the trial court took place:


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      The Court: And, Mr. Callejas, how does your client propose to
      plea?

      Mr. Callejas (attorney for Teeple): Your Honor, at this point, we
      would withdraw our formerly-tendered not-guilty pleas to each of
      the charges and enter guilty pleas to Counts A, B, and C.

      The Court: All right. Is that no contest?

      Mr. Callejas: Yes. No contest with a consent finding. We
      acknowledge that there are sufficient facts and circumstances for
      the Court to make a finding of guilty.

      The Court: And you understand, Mr. Teeple, by entering a plea
      of no contest, you’re admitting the truth of the facts as alleged on
      the face of the ticket?

      Teeple: Yes, I do.

      The Court: And you understand what the maximum possible
      penalties are.

      Teeple: Yes, I do.

      The Court: At this time, I’ll accept your pleas of no contest. Mr.
      Callejas, anything you want to tell me about what happened?

      Mr. Callejas: Your Honor, Mr. Teeple, after a union meeting, left
      the union hall, dropped his phone, reached for his phone,
      unfortunately went off the road, hit a sign. Did not even realize
      he hit the sign.

      The Court: Okay.

      Mr. Callejas: Started changing his tire, saw there were some
      difficulties, drove back to the union hall. At least at the union
      hall, Your Honor, and led to some drinking.

      ***


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(8/31/2017 Tr. at 5-6).

       {¶14} And lastly, the trial court referenced Trooper Sorg’s police report prior

to finding Teeple guilty of the Hit-Skip charge. (Id. at 9). The trial court read the

following part of the report into the record:

       The Court: All right. Let me just read over the police report.

       [The Court (reading from the police report)]: “Your Honor: On
       February 12th, 2017, I was dispatched to a one-vehicle injury
       accident on County Road 25 near Township Road 84. I was
       advised the driver was attempting to change a tire, was under the
       influence.

       Seneca County Sheriff’s Office EMS arrived in the area, could not
       locate the vehicle. While still attempting to locate the vehicle,
       Fostoria Police Department was stationary on North Union
       Street, south of Johns Road.

       Passer-bys [sic] stopped him and advised Officer Taggart they
       observed a maroon minivan without a front tire pulling into the
       parking lot of the union hall. The vehicle matched the description
       involved in the crash.

       Officer Taggart went to the UAW to attempt to locate the driver.
       When arrived inside, he spoke with a couple of subjects who
       acknowledged that they were not sure where he went. They later
       stated that he was in the building but unknown where he went.

       Arrived at the UAW hall and spoke with the two subjects. Officer
       Taggart located Mr. Teeple in the back room of the kitchen with
       the lights off attempting to hide.”

       [The Court]: Is that what you thought, Sergeant?

       Trooper Sorg: Yes, sir.



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        The Court [continuing reading the police report]: “Officer
        Taggart secured Mr. Teeple and placed him in the back of
        Trooper Donovan’s patrol car. Arrived on the scene. Obtained
        the statement from both subjects that were inside the UAW hall.

        Observed Mr. Teeple consumed alcohol while at the UAW hall
        earlier in the day, but before the crash. Did not know if he had
        consumed any after returning.

        Trooper Donovan obtained a statement from Mr. Teeple stating
        that he did not consume any alcohol prior to the crash but may
        have had three afterwards. Stated he consumed a beer, then had
        Mr. Teeple come back to the patrol car.” (Reading incoherently).
        “Okay. Sorry for making me handle this accident.”

        [The Court]: Trooper Sorg, since I have you here, is there
        anything else that you want to add, anything else you think I
        should take into consideration aside from the report?

        Trooper Sorg: No, sir.

        The Court: All right. Based upon my review of Trooper Sorg’s
        report, the face of the citation, and your pleas of no contest, there
        will be fines1 of guilty in all three cases.

(8/31/2017 Tr. at 9-10).

        {¶15} Teeple argues on appeal that the citation, the plea colloquy, and police

report, were void of evidence of the statutory elements of R.C. 4549.02 to support

a guilty finding by the trial court. In support, Teeple directs us to the decisions in

State v. Spence and State v. Provino.




1
  While the record contains “fines of guilty in all three cases,” such transcript appears to be nothing more
than a “scrivener’s error.” As the transcript is clear and convincing that the trial court made “findings of
guilty in all three cases,” we disregard the “fines” language.

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       {¶16} In State v. Spence, a driver hit a utility pole adjacent to a highway and

was charged with a violation of R.C. 4549.02(A). State v. Spence, 12 Dist. Clermont

No. CA2002-02-012, 2002-Ohio-3600, ¶ 13. In Spence, the driver pled no contest

to the charge, was convicted, and then appealed the conviction to the Twelfth

District Court of Appeals. That appellate court reversed the conviction, based on

the following reasoning:

       In the case at bar, the explanation of circumstances is insufficient to
       warrant a guilty finding under R.C. 4549.02. By its very terms, R.C.
       4549.02 provides that any accident subject to the section involves a
       collision with either a pedestrian or another motor vehicle. Here, there
       was no accident or collision involving a pedestrian or another vehicle.
       No person was injured nor any other motor vehicle damaged as a
       result of the accident.

       The facts of this case are more compatible with R.C. 4549.03 as they
       involve a collision with property located adjacent to a highway. Given
       that R.C. 4549.03 applies, it is highly unlikely that appellant could
       have readily determined the owner of the utility pole at 2:00 a.m., or
       that he had an adequate opportunity to identify the owner of the utility
       pole before being arrested. Furthermore, appellant was still well
       within the 24-hour period for reporting such an accident when he was
       arrested.

Spence at ¶¶ 12-13.

       {¶17} Teeple further points us to our own decision in State v. Provino, where

we followed Spence. Provino, 175 Ohio App.3d 283, 2007-Ohio-6974, 886 N.E.2d

888. In Provino, a driver slid off the road into a ditch and sustained damage to his

own vehicle. Id. at ¶ 2. The driver in Provino pled no contest to a violation of R.C.



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4549.02(A), was convicted, and appealed to this Court. We reversed Provino’s

conviction, holding that:

       We do not believe that the explanation of circumstances set forth in
       this case was sufficient to prove a violation of R.C. 4549.02(A). The
       statute requires that the defendant’s vehicle collide with either a
       pedestrian or another motor vehicle. See State v. Spence, 12th Dist.
       No. CA2002–02–012, 2002-Ohio-3600, 2002 WL 1495341, at ¶ 12.
       The evidence in this case is clear that Provino was involved in only a
       one-car accident with no pedestrian having been hit. In Spence, the
       defendant drove a friend’s vehicle into a telephone pole, causing
       damage to the vehicle. Id. at ¶ 3. In this case, the defendant simply
       lost control and went into a ditch. In both cases, “[n]o person was
       injured nor any other motor vehicle damaged as a result of the
       accident.” Id. at ¶ 12.

       Most of the cases reviewing R.C. 4549.02(A) refer to the statute as
       the “hit-skip” or “hit-and-run” statute. See generally State v. Johnson,
       9th Dist. No. 22789, 2006-Ohio-2277, 2006 WL 1236058; North
       Olmsted v. Gallagher (1981), 2 Ohio App.3d 414, 2 OBR 490, 442
       N.E.2d 470. Those cases all involve situations where the defendant
       strikes a pedestrian, a person riding a bike, or another vehicle where
       people are injured. This case does not present a similar scenario. R.C.
       4549.02(A) also applies when drivers hit parked vehicles and leave
       the scene without stopping to provide their information. Again, this
       case does not present that type of situation. As stated above, the only
       person who suffered any injury in this case was the owner of the
       vehicle because the left side of the Envoy was damaged. However, the
       owner already knew Provino’s identity because he had allowed
       Provino to use the vehicle. On this record, we find the explanation of
       circumstances is insufficient to warrant a guilty finding under R.C.
       4549.02(A).

Id. at ¶¶ 11-12.

       {¶18} We find the case at hand factually similar to Spence. Teeple, like

Spence, hit a road sign adjacent to the road at approximately 4:10 p.m. on February


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12, 2017. (See, Doc. No. 1; 8/31/2017 Tr. at 6). Teeple then left the scene before

law enforcement officers arrived.      Even though Teeple was located by law

enforcement at the UAW hall later that day, Teeple’s citation unequivocally

indicates that Teeple was served with it on February 12, 2017, the same day the

accident occurred. As such, Teeple was within the 24-hour period to report an

accident (to law enforcement) when he was served with his Hit-Skip citation. (Id.).

(See R.C. 4549.021)

       {¶19} While Provino is not as factually analogous to the case sub judice as

Spence, it is instructive because it emphasizes that a key element of R.C. 4549.02(A)

includes a “failure to notify” component. Thus, in order to find Teeple guilty of

Hit-Skip, in violation of R.C. 4549.02, multiple elements must exist, including that

there was an accident to, or collision with, persons or property upon the roadway,

and that Teeple failed to report the accident to all of the following people before he

left the scene: to “(a) [a]ny person injured in the accident or collision; (b) [t]he

operator, occupant, owner, or attendant of any motor vehicle damaged in the

accident or collision; and (c) [t]he police officer at the scene of the accident or

collision.” R.C. 4549.02(A).

       {¶20} First, we find the record void of evidence that Teeple’s accident

occurred “on a pubic road or highway.” Rather, the record reveals that Teeple went

off the roadway into a ditch and then struck a road sign. Therefore, the explanation


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of circumstances provided to the trial court (in the citation, plea colloquy, and police

report) was insufficient to establish the first prong under R.C. 4549.02, that Teeple’s

accident occurred “upon the roadway.”

       {¶21} Next, and in regards to the second prong of R.C. 4549.02, the

explanation of circumstances revealed that Trooper Sorg was dispatched to an

“injury accident.” However, there is no evidence in the record suggesting that

Teeple was involved in an injury accident. Moreover, the record suggests that

Teeple was the operator and/or owner of the motor vehicle that was involved in only

an accident. And, because his vehicle was the only vehicle involved in the accident,

he had no duty to notify himself of the accident.

       {¶22} And lastly, the record reveals that the law enforcement official who

arrived at the scene did not locate any vehicle or any person involved in an accident.

As such, Teeple was not able to report his accident to the police officer at the scene.

       {¶23} As the State was required to present circumstances that Teeple failed

to properly notify a specified person under the statute in the event of a qualifying

accident to, or collision with, persons or property upon the roadway, (and we find

no evidence that Teeple failed to report this incident to the statutorily specified

individuals) we find that the evidence in the record is insufficient to prove the

necessary elements of Hit-Skip under R.C. 4549.02(A).




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       {¶24} Therefore, Teeple’s second assignment of error is sustained as to his

conviction of Hit-Skip.

                             First Assignment of Error

       {¶25} In his first assignment of error, Teeple argues that his counsel was

ineffective because: (1) his counsel failed to file a motion to suppress; (2) his

counsel failed to secure a dismissal or finding of not guilty on Teeple’s Hit-Skip

charge; and (3) his counsel failed to inform him (Teeple) that he had an absolute

defense to the Hit Skip charge. For the reasons that follow, we disagree.

                                Standard of Review

       {¶26} “‘When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that the counsel’s representation fell

below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d

150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland v. Washington, 466

U.S. 668, 687-88, 104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.’” Id., at 694. See

also, State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).

       {¶27} In analyzing a claim for ineffective assistance of counsel, this court’s

scrutiny of counsel’s performance must be highly deferential, with a “‘strong

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


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Case No. 13-17-28


professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-

88.   “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s

performance.” Id.

                                         Analysis

                                 Motion to Suppress

       {¶28} Teeple initially argues that his trial counsel was ineffective for failing

to file a motion to suppress. Specifically, Teeple argues that his counsel should

have filed a motion to suppress because the record demonstrates that police officers

entered the United Auto Workers (“UAW”) hall without a warrant, without

permission from the organization, and without any applicable exceptions to the

warrant requirement present. Teeple further argues that after officers entered the

hall without permission and spoke to patrons, they conducted a warrantless search

of the premises, resulting in Teeple being located and confessing to consuming

alcohol. Teeple contends that without the fruits of the unwarranted search of the

UAW hall, the State would not have had sufficient evidence to proceed to trial on

the OVI charge and Teeple would not have entered a no contest plea to all three

charges contained within his citation.




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       {¶29} However, we note that the “‘failure to file a suppression motion does

not constitute per se ineffective assistance of counsel.’” State v. Madrigal, 87 Ohio

St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52 quoting Kimmelman v. Morrison,

477 U.S. 365, 384, 106 S.Ct. 2574 (1986). “There must also be a reasonable

probability that the motion will be successful.” State v. Newsome, 3rd Dist. Putnam

No. 12-12-03, 2012-Ohio-6119, ¶ 46 citing State v. Ligon, 3rd Dist. Defiance No.

4-2000-25, *2. Thus, this Court’s determination of whether Teeple’s trial counsel

was ineffective relies upon whether there was a reasonable probability that a motion

to suppress would have been successful. Id.; see also State v. Pierce, 3rd Dist.

Paulding No. 11-09-05, 2010-Ohio-478, ¶ 34.

       {¶30} “The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution protect individuals against unreasonable

searches and seizures by the government, and they protect privacy interests where

an individual has a reasonable expectation of privacy.” State v. Barnes, 3rd Dist.

Marion No. 9-16-58, 2017-Ohio-7284, ¶ 9 citing State v. Fielding, 10th Dist.

Franklin Nos. 13AP-654, 13AP-655, 2014-Ohio-3105, 15 N.E.3d 912, ¶ 15. “An

expectation of privacy is protected where an individual has manifested a subjective

expectation of privacy and that expectation is one that society recognizes as

reasonable.” Id. “Evidence seized in violation of the Fourth Amendment will be

suppressed pursuant to the exclusionary rule.” City of Marion v. Brewer, 3rd Dist.


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Case No. 13-17-28


Marion No. 9-08-12, 2008-Ohio-5401, ¶ 8. However, a defendant must have a

reasonable expectation of privacy in the evidence seized for standing to challenge

the search or seizure, and bears the burden of establishing that he/she had a

legitimate expectation of privacy in the area searched. Id.

       {¶31} Teeple directs this Court to the United States Supreme Court decision

of Mancusi v. DeForte, for the proposition that union members have an expectation

of privacy within their union hall. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120

(1968).   We are unpersuaded by such authority, however, because Mancusi’s

standing analysis for a Fourth Amendment violation was conducted in the context

of a union official who had his union office searched by law enforcement officials.

Id. at 369. There is nothing in the record before us to suggest that Teeple was a

UAW employee who had his office, at the UAW hall searched. Rather, Teeple was

a UAW member who hid at the local hall to evade police detection. Accordingly,

we find Teeple’s situation factually distinguishable from Mancusi.

       {¶32} Furthermore, Mancusi reiterated the United States Supreme Court

decision in Katz v. United States, which “ma[de] it clear that the capacity to claim

the protection of the [Fourth] Amendment depends not upon a property right in the

invaded place but upon whether the area was one in which there was a reasonable

expectation of freedom from governmental intrusion.” Id. citing Katz v. United

States, 389 U.S. 347, 352, 88 S.Ct. 507 (1967). In examining the record, we cannot


                                        -18-
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say that Teeple had a reasonable expectation of privacy when hiding in the kitchen

of the UAW hall.

         {¶33} Nonetheless, Teeple attempts to construe the Ohio Supreme Court

decision in AL Post 763 v. Ohio Liquor Control Comm., to support his proposition

that a private club has a limited expectation of privacy due to administrative rules

attached to liquor permits. See, AL Post 763 v. Ohio Liquor Control Comm., 82

Ohio St.3d 108, 1998-Ohio-367, 694 N.E.2d 905. However, in AL Post 763, the

Ohio Supreme Court specifically stated that they were only considering the permit

holder’s expectation of privacy in the context of an administrative search conducted

to monitor compliance with Ohio liquor laws and regulations. Id. at 113. In the

case sub judice, Teeple was not found during an administrative search, and was not

the permit holder of the commercial property. Thus, Teeple’s AL Post 763’s

argument is misplaced.

         {¶34} Because Teeple has failed to demonstrate to this Court that he had a

reasonable expectation of privacy in the UAW hall, and that there was a reasonable

probability that a motion to suppress would have been successful in the trial court

if filed, we find no merit in this prong of Teeple’s ineffective assistance of counsel

claim.




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         Failure to Secure a Dismissal or Finding of Not Guilty & Failure
              to Inform Appellant of an Absolute Defense to Hit-Skip

       {¶35} Appellant’s second and third arguments under this assignment of error

applies only to counsel’s ineffective assistance on his Hit-Skip charge. And because

we have reversed that conviction herein, we moot these arguments under this

assignment and overrule Teeple’s first assignment of error in its entirety.

                                      Conclusion

       {¶36} Finding error prejudicial to Teeple herein in the particulars assigned

and argued, we sustain Teeple’s second assignment of error and overrule and moot

Teeple’s first assignment of error.

       {¶37} Accordingly, for the aforementioned reasons, it is the order of this

Court that the Judgment Entry of the Tiffin-Fostoria Municipal Court relative to

Teeple’s conviction under R.C. 4549.02 (i.e. Hit-Skip) be, and hereby is, reversed.

However, the remainder of the trial court’s Judgment Entry is affirmed.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

PRESTON, J., concurs.
/jlr


WILLAMOWSKI, P.J., concurring separately.

       {¶38} I concur fully with the majority opinion as to the second assignment

of error. I concur with the majority as to the first assignment of error to the extent

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that the majority has properly addressed the first and second arguments made by the

appellant therein. However, I would address the third argument made by the

appellant in his first assignment of error as this argument relates to the appellant’s

plea to the OVI charge rather than the hit-skip charge.




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