[Cite as State v. Middlebrooks, 2019-Ohio-2149.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                          Court of Appeals No. S-18-032

        Appellee                                       Trial Court No. 18CR46

v.

Shawn E. Middlebrooks                                  DECISION AND JUDGMENT

        Appellant                                      Decided: May 31, 2019

                                                   *****

        Timothy F. Braun, Sandusky County Prosecuting Attorney,
        Mark E. Mulligan and Kenneth C. Walz, Assistant Prosecuting
        Attorneys, for appellee.

        Karin L. Coble, for appellant.

                                                   *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Shawn Middlebrooks, appeals the judgment of the Sandusky

County Court of Common Pleas, following a jury trial, convicting him of one count of

possession of drugs. For the reasons that follow, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} This case stems from an incident on September 9, 2017, wherein appellant

was apprehended while fleeing from a motel room that was under surveillance by the

U.S. Marshals. A subsequent search of the motel room, pursuant to a search warrant,

uncovered a box containing a digital scale and 16 grams of heroin.

       {¶ 3} On January 11, 2018, the Sandusky County Grand Jury indicted appellant on

one count of possession of drugs in violation of R.C. 2925.11(A) and (C)(6)(d), a felony

of the second degree, and one count of trafficking in drugs in violation of R.C.

2925.03(A)(2) and (C)(6)(e), a felony of the first degree.

       {¶ 4} On May 16, 2018, appellant moved to suppress any evidence gathered from

the motel room, arguing that the affidavit submitted to support the search warrant was

deficient. The affidavit detailed that the affiant, Captain Zachary Zender of the Sandusky

County Sheriff’s Office, was assisting several U.S. Marshals on the morning of

September 9, 2017, as they conducted surveillance on room 116 of the Great Lakes

Motel. At the time, the U.S. Marshals were looking for a fugitive who was not appellant.

Zender stated in the affidavit that the Great Lakes Motel is a well-known high traffic area

for drug activity. While they were conducting surveillance on the room, a white pickup

truck pulled into an adjacent parking lot, and a white male exited the vehicle and

approached room 116. One of the Marshals relayed to Zender that the white male

engaged in a hand-to-hand exchange with a black male in the doorway of room 116, and

then immediately returned to his truck.




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       {¶ 5} Believing that a drug transaction just occurred, Zender and several of the

U.S. Marshals followed the white pickup truck. When the truck pulled down a lane, a

stop was initiated. Zender stated that as the driver opened the door, he threw something

into a weedy area on the side of the lane. As they ordered the driver out of the vehicle, a

crack pipe was observed on the floorboard on the driver’s side of the white truck. The

driver was identified as D.A. D.A. admitted that the object he threw into the weedy area

was crack cocaine that he had just purchased from a black male he believed to be named

Sean Green. Zender then consulted with another drug task force officer, and came to the

belief that the black male who sold the crack cocaine was appellant, Sean Middlebrooks.

Zender then showed a picture of appellant to D.A., and D.A. confirmed that was the

individual who sold him the drugs.

       {¶ 6} At the hearing on the motion, Zender testified consistent with the

information in the affidavit. Following the hearing, the trial court found that the warrant

was based upon sufficient probable cause. Thus, it denied appellant’s motion to suppress.

       {¶ 7} The matter then continued to a jury trial. At the trial, Deputy U.S. Marshall

Rod Hartzell testified that he was the person observing room 116 of the Great Lakes

Motel. Hartzell was stationed away from the motel, and watched the room through a

telescope. Hartzell testified that he observed D.A. arrive and enter room 116. Two

minutes later, D.A. left the room. Hartzell admitted on cross-examination that he did not

observe a hand-to-hand transaction between D.A. and the black male in room 116.

Hartzell testified that he then relayed the information of the suspected drug activity, and




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he remained in his position conducting surveillance while the other U.S. Marshals

pursued and stopped D.A. Once a search warrant was obtained, Hartzell joined the other

U.S. Marshals in approaching room 116. Hartzell testified that once appellant saw the

three cars containing U.S. Marshals enter the parking lot of the Great Lakes Motel,

appellant fled on foot. Hartzell pursued appellant in his vehicle, and cut appellant off as

appellant was running between houses. A second U.S. Marshal arrived on foot shortly

thereafter, and apprehended appellant.

        {¶ 8} The state next called Marc Thompson, a task force officer with the U.S.

Marshals. Thompson testified that he was involved in the search of room 116, and that

he found the box containing the heroin and digital scale. Thompson testified that the box

was visibly located in an empty space in the wall underneath a window. The space was

accessible from inside the room, and included a small, covered enclosure that extended

slightly beyond the outside wall. On cross-examination, Thompson was not completely

sure whether the structure containing the box was also accessible from outside of the

room.

        {¶ 9} The state also called D.A. as a witness. D.A. testified that on September 9,

2017, he contacted appellant in an effort to purchase crack cocaine. D.A. was shown a

call log from appellant’s cell phone, and identified his number as making an incoming

call to appellant at 2:24 p.m., receiving an outgoing call from appellant at 2:33 p.m., and

making another incoming call to appellant at 2:36 p.m. D.A. testified that he then went to

the Great Lakes Motel, and purchased crack cocaine from appellant. According to D.A.,




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he did not observe any other people in the room while he was purchasing the drugs.

After the purchase, D.A. drove to a different location to use the drugs, and that is when

he was stopped by the U.S. Marshals. D.A. stated that as he opened the door to his truck,

he threw the crack cocaine into the weeds. D.A. recounted that he was told that the

officers were not really interested in him, and that they would not prosecute him for the

crack pipe if he assisted them in their investigation. D.A. then identified appellant as the

person who sold him the drugs.

       {¶ 10} Finally, Zender testified for the state. In addition to recounting the

circumstances that led him to obtain the search warrant, Zender testified that the motel

room was filled with appellant’s clothes and other possessions, and it looked like

appellant had been in the room for “some time.” Zender testified that they retrieved four

cell phones from appellant—three on his person, and one in the room—one of which

contained the call information from D.A. Zender also testified that $534 cash was found

on appellant’s person, which he stated was typical of persons who participate in the sale

of narcotics.

       {¶ 11} Following the presentation of evidence and closing arguments, the jury

returned with a verdict of guilty on the count of possession of drugs, and not guilty on the

count of trafficking in drugs. The trial court then continued the matter for sentencing.

       {¶ 12} At the sentencing hearing, the trial court ordered appellant to serve the

maximum prison term of eight years. The court also assessed court costs.




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                                 II. Assignments of Error

       {¶ 13} Appellant has timely appealed the July 27, 2018 judgment of the Sandusky

County Court of Common Pleas memorializing his conviction and sentence, and now

asserts three assignments of error for our review:

              1. The trial court erred by denying the motion to suppress the fruits

       of the search warrant pursuant to the exclusionary rule of the Fourth

       Amendment to the U.S. Constitution and Article I, Section 14, of the Ohio

       Constitution.

              2. The verdicts were not supported by sufficient evidence and fell

       against the manifest weight of the evidence.

              3. The trial court failed to impose costs at the sentencing hearing

       and failed to find appellant had the ability to pay costs, rendering the

       imposition of costs invalid.

                                        III. Analysis

                                  A. Motion to Suppress

       {¶ 14} In his first assignment of error, appellant argues that the trial court erred in

denying his motion to suppress because the affidavit supporting the search warrant was

defective.

       {¶ 15} “In reviewing the sufficiency of probable cause in an affidavit submitted in

support of a search warrant issued by a magistrate, neither a trial court nor an appellate

court should substitute its judgment for that of the magistrate by conducting a de novo




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determination as to whether the affidavit contains sufficient probable cause upon which

that court would issue the search warrant.” State v. George, 45 Ohio St.3d 325, 544

N.E.2d 640 (1989), paragraph two of the syllabus.

       Rather, the duty of a reviewing court is simply to ensure that the magistrate

       had a substantial basis for concluding that probable cause existed. In

       conducting any after-the-fact scrutiny of an affidavit submitted in support

       of a search warrant, trial and appellate courts should accord great deference

       to the magistrate’s determination of probable cause, and doubtful or

       marginal cases in this area should be resolved in favor of upholding the

       warrant.

Id.

       {¶ 16} In support of his assignment of error, appellant argues that the affidavit was

defective in four ways. First, appellant argues that Zender’s statement in his affidavit that

a hand-to-hand transaction was observed, was proven to be false at the trial. “To

successfully attack the veracity of a facially sufficient search warrant affidavit, a

defendant must show by a preponderance of the evidence that the affiant made a false

statement, either ‘intentionally, or with reckless disregard for the truth.’” State v. Waddy,

63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992), quoting Franks v. Delaware, 438 U.S.

154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “‘Reckless disregard’ means that

the affiant had serious doubts about the truth of an allegation.” State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 31. If an affidavit is found to




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contain a false statement, the reviewing court must then determine if the remaining

contents are sufficient to support a finding of probable cause. State v. Roberts, 62 Ohio

St.2d 170, 178, 405 N.E.2d 247 (1980).

       {¶ 17} Similarly, appellant’s second argument is that the affidavit was defective

because it was impermissibly based on Zender’s inference that a hand-to-hand drug

transaction occurred. “While search-warrant affidavits will inevitably include

undisclosed inferences, under Fourth Amendment analysis, there is ‘a line between

permissible police interpretation and usurpation of the magistrate’s function.’” State v.

Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 49, quoting People v.

Caffott, 105 Cal.App.3d 775, 782, 164 Cal.Rptr. 499 (1980). “If the inference is

significant, then the trial court should examine the affiant’s animus. If the affiant acted

intentionally or with conscious indifference, then the warrant should be invalidated and

the evidence suppressed. However, if the affiant acted negligently, then the misstatement

should be removed, the omitted underlying facts added, and the affidavit reassessed.”

(Internal citations omitted.) Id. at ¶ 50.

       {¶ 18} Here, appellant does not argue that the allegedly false statement of a hand-

to-hand transaction was made intentionally or with reckless disregard for the truth, nor

does he argue that Zender’s inference that a drug transaction occurred was made

intentionally or with conscious indifference. Importantly, we find that the record does

not support reaching such conclusions.




8.
       {¶ 19} Therefore, even assuming that it is necessary to exclude the statements

regarding a hand-to-hand transaction and the belief that a drug sale had occurred, the

remaining portions of the affidavit contain sufficient information to support the

magistrate’s finding of probable cause. Specifically, the affidavit contains information

that the Great Lakes Motel is a known high traffic drug area. In addition, D.A. was

followed and subsequently stopped by law enforcement after he left room 116 of the

Great Lakes Motel. During the stop, D.A. admitted that he just purchased crack cocaine

from an individual in room 116, and when shown a picture of appellant, confirmed that

was the individual who sold him the drugs. We hold that this information is sufficient to

support a finding of probable cause to believe that evidence of criminal drug trafficking

and possession would be located in room 116 of the Great Lakes Motel.

       {¶ 20} Appellant, in his third and fourth arguments challenges the information

provided by D.A. In his third argument, appellant argues that the information from D.A.

should not have been included in the search warrant affidavit, because that information

was obtained through an unconstitutional stop. However, appellant “has no standing to

challenge, on constitutional grounds, the admissibility of illegally obtained statements

made by a third party.” State v. Griffin, 6th Dist. Erie No. E-88-45, 1989 Ohio App.

LEXIS 4032, *7 (Oct. 27, 1989), citing United States v. Bruton, 416 F.2d 310, 312 (8th

Cir.1969); see also Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22

L.Ed.2d 176 (1969) (“The established principle is that suppression of the product of a

Fourth Amendment violation can be successfully urged only by those whose rights were




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violated by the search itself, not by those who are aggrieved solely by the introduction of

damaging evidence.”). Thus, there is no merit to appellant’s argument that D.A.’s

statements should be excluded.

       {¶ 21} As his fourth and final reason why the trial court erred in denying his

motion to suppress, appellant argues that D.A.’s statements fail to establish probable

cause because there is no basis to determine that D.A. was credible. We disagree. Unlike

an anonymous informant who provides hearsay information, law enforcement observed

D.A. approach room 116 of the Great Lakes Motel and leave a minute or two later.

Believing that a drug transaction had just occurred, Zender participated in a stop of D.A.

As he was being stopped, D.A. was observed throwing something out of the window,

which he later admitted was crack cocaine. In addition, a crack pipe was seen on the

floor board of his car. Thus, we find that D.A. was sufficiently credible in his admission

that he purchased drugs from appellant in room 116, which formed the basis for probable

cause sufficient to issue a search warrant.

       {¶ 22} Accordingly, we hold that the trial court did not err when it denied

appellant’s motion to suppress the evidence resulting from the search of room 116.

Appellant’s first assignment of error is not well-taken.

                          B. Sufficiency and Manifest Weight

       {¶ 23} In his second assignment of error, appellant argues that his conviction is

based on insufficient evidence and is against the manifest weight of the evidence.

Insufficiency and manifest weight are distinct legal theories. In reviewing a record for




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sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In contrast, when reviewing

a manifest weight claim,

       [t]he court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. The discretionary power to grant a

       new trial should be exercised only in the exceptional case in which the

       evidence weighs heavily against the conviction.

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶ 24} To prove that appellant was guilty of possession of drugs in violation of

R.C. 2925.11(A), the state must show that appellant “knowingly obtain[ed], possess[ed],

or use[d] a controlled substance or a controlled substance analog.” Appellant argues that

the state failed to prove that he possessed the drugs, or that he did so knowingly.

       {¶ 25} R.C. 2925.01(K) defines that “‘Possess’ or ‘possession’ means having

control over a thing or substance, but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises upon which the thing




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or substance is found.” “Possession of a controlled substance may be actual or

constructive.” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 17.

“Actual possession involves immediate physical control.” Id. “Constructive possession

exists when an individual exercises dominion and control over an object, even though

that object may not be within his immediate physical possession.” State v. Wolery, 46

Ohio St.2d 316, 329, 348 N.E.2d 351 (1976).

       {¶ 26} In Robinson, we upheld Robinson’s conviction for possession of drugs

where Robinson was the only person present in a very small house that he listed as his

place of residence, his wallet was laying out in the open, and his photographs were found

in a small bedroom that also contained counterfeit crack cocaine and torn corners of

plastic baggies with residue. Robinson at ¶ 20. In so doing, we contrasted that situation

with the one in State v. Joyner, 6th Dist. Lucas No. L-09-1058, 2010-Ohio-2794.

       {¶ 27} In Joyner, we reversed Joyner’s conviction for possession of drugs where

at the time the police executed a “no-knock” search warrant, Joyner was found on the

stairwell leading down to the living room. In the living room, small amounts of cocaine

were discovered on a plate, and a woman was standing in the living room. Notably, no

illicit narcotics or contraband were recovered from appellant’s person, appellant’s

driver’s license reflected a different address from the premises being searched, none of

the mail recovered was addressed to appellant, and none of the utilities were registered in

his name. Furthermore, there was no evidence linking a prior controlled purchase from

the residence with appellant. We reasoned that “[t]he mere presence of [Joyner] in the




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residence where illegal drugs were found is, without more, insufficient to establish

constructive possession.” Id. at ¶ 13. Thus, we held that “[Joyner’s] presence on a

stairwell does not establish dominion and control over a plate in the living room.” Id.

       {¶ 28} Here, in contrast to Joyner, and similar to Robinson, circumstantial

evidence exists to show that appellant knowingly exercised dominion and control over

the heroin. Appellant was observed entering and occupying room 116 of the Great Lakes

Motel. D.A. contacted appellant and purchased drugs from him in room 116 of the Great

Lakes Motel. D.A. testified that he did not observe anyone else in the room, and there

was no other testimony that anyone else was seen occupying room 116. Appellant’s

clothes, cell phone, and other items were found in the room, and according to Zender, it

looked like appellant had been there for “some time.” The drugs were found in a box that

was visible and accessible from inside the room. Finally, when appellant saw the U.S.

Marshals pull into the parking lot, he fled on foot, and when he was apprehended, $534 in

cash was found on his person, which Zender testified was consistent with individuals

involved in the sale of narcotics.

       {¶ 29} From this evidence, we hold that when viewed in the light most favorable

to the state, the jury’s conclusion that appellant knowingly possessed the heroin was not

based upon insufficient evidence. Likewise, upon weighing the evidence, we hold that

this is not the exceptional case where the jury lost its way and created a manifest

miscarriage of justice. Therefore, we hold that appellant’s conviction for possession of




13.
drugs in violation of R.C. 2925.11(A) is not based on insufficient evidence or against the

manifest weight of the evidence.

       {¶ 30} Accordingly, appellant’s second assignment of error is not well-taken.

                                          C. Costs

       {¶ 31} Finally, in his third assignment of error, appellant argues that the trial court

erred in imposing the costs of confinement and court-appointed counsel. The state agrees

that the costs of confinement and court-appointed counsel should not have been imposed,

but further argues that the trial court did not, in fact, impose those costs. Here, at the

sentencing hearing, the trial court stated, “I am going to assess court costs. I’m going to

order judgment thereon.” Likewise, the sentencing entry states, “Court costs are assessed

and judgment is awarded thereon.” At issue is the meaning of the term “court costs” as

used by the trial court.

       {¶ 32} In State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393,

the Ohio Supreme Court also addressed a trial court’s imposition of “court costs” against

an indigent defendant. The Ohio Supreme Court analyzed the issue under R.C. 2947.23,

which states, “In all criminal cases * * * the judge or magistrate shall include in the

sentence the costs of prosecution, * * * and render a judgment against the defendant for

such costs.” Ultimately, the court concluded that “R.C. 2947.23 requires a judge to

assess costs against all convicted criminal defendants, and waiver of costs is permitted --

but not required -- if the defendant is indigent.” White at ¶ 14.




14.
       {¶ 33} We hold that the trial court’s use of “court costs” means only the “costs of

prosecution” required by R.C. 2947.23. The trial court’s use of “court costs” does not

also mean the costs of confinement and appointed counsel provided for in R.C.

2929.18(A)(5)(a)(ii) and 2941.51(D), respectively, which are not mandatory, and which

require a separate finding that the offender has the ability to pay that was not made in this

case. We find that this holding is consistent with the Ohio Supreme Court’s framing of

the issue in White, and prevents us from creating error where error is not clear from the

record and in so doing violate the presumption of regularity that attaches to all judicial

proceedings. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684,

¶ 19. Importantly, if a trial court wishes to impose the separate costs of confinement and

appointed counsel, it must explicitly do so.

       {¶ 34} Therefore, because we hold that the trial court in this case only imposed the

costs of prosecution as required under R.C. 2947.23, appellant’s arguments pertaining to

the imposition of the costs of confinement and court appointed counsel are without merit.

       {¶ 35} Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 36} As a final matter, we recognize that our decision reaches a different result

than that in State v. McKeever, 6th Dist. Sandusky No. S-18-022, 2019-Ohio-1635, ¶ 22,

wherein we vacated an identical imposition of “court costs” because we could not discern

what costs were awarded, and “the imposition of the costs of confinement and appointed

counsel were not supported by the record.” As here, the defendant in McKeever argued

that the costs of confinement and appointed counsel should not have been imposed, and




15.
the state agreed. Notably, in McKeever, the state did not also argue that the trial court

never imposed the costs of confinement and appointed counsel. Thus, the state did not

suggest that there were additional costs imposed that should not be vacated, and we

distinguish McKeever on that basis.

                                      IV. Conclusion

       {¶ 37} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Sandusky County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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