[Cite as State v. Frias-Carvajal, 2011-Ohio-1197.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                        :     JUDGES:
                                                     :
                                                     :     Hon. Julie A. Edwards, P.J.
                        Plaintiff-Appellee           :     Hon. W. Scott Gwin, J.
                                                     :     Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :     Case No. 10-CA-33
OMAR RAPH FRIAS-CARVAJAL                             :
                                                     :
                                                     :
                       Defendant-Appellant           :     OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Delware County Court of
                                                         Common Pleas Case No. 09-CR-I-12-0557


JUDGMENT:                                                AFFIRMED

DATE OF JUDGMENT ENTRY:                                  March 8, 2011


APPEARANCES:

For Plaintiff-Appellee:                                    For Defendant-Appellant:

DAVID YOST 0056290                                         JOHN CORNELY 0072393
Delaware County Prosecutor                                 21 Middles St.
140 N. Sandusky St., 3rd Fl.                               P.O.Box 248
Delaware, Ohio 43015                                       Galena, Ohio 43021

DOUGLAS DUMOLT 0080866
(Counsel of Record)
Assistant Prosecuting Attorney
[Cite as State v. Frias-Carvajal, 2011-Ohio-1197.]


Delaney, J.

        {¶1}     Defendant-Appellant, Omar Raph Frias-Carvajal, appeals from a judgment

entered by the Delaware County Court of Common Pleas, convicting him of one count

of trafficking in heroin in violation of R.C. 2925.03(A)(2).

        {¶2}     On November 17, 2009, Detective James Owens of the Columbus Police

Department Strategic Response Bureau (“SRB”), received information from his sergeant

that the Hardin County, Ohio Sheriff’s Department had information regarding a possible

drug transaction that would be taking place at the Lake Club Apartments on Powell

Road in Delaware County, Ohio.                 Detective Owens stated that SRB has received

reliable information from the Hardin County Sherriff’s office at least three to five times

prior to this incident.         The officers did not know from whom the Hardin County

authorities received the information.

        {¶3}     Based upon the information regarding the possible drug transaction,

Detective Owens, along with other members of SRB, set up surveillance of the Lake

Club Apartments. According to the Hardin County Sheriff’s office, the car that was

coming down from Hardin County was a green Grand Prix, with a license plate of CUH-

3508.

        {¶4}     The officers waited approximately a half hour to forty-five minutes before

they saw a green Grand Prix with the license plate number CUH-3508 pull into the

parking lot and drive to the back of the lot before backing into a parking spot. The

occupants of the vehicle stayed in the vehicle as though they were waiting for someone.

        {¶5}     Several minutes later, a van pulled into the parking lot and drove around

as if the occupants of the van were looking for someone. The driver of the Grand Prix
Delaware County, Case No. 10-CA-33                                                    3


flashed his headlights and the van immediately drove up to the Grand Prix and the

driver of the van parked nose to nose with the Grand Prix. A male got out of the Grand

Prix and got into the van.

       {¶6}   At that time, officers were given the green light to approach the vehicles

and to investigate the matter. Detective Russ Sorrell, who was driving an unmarked

car, pulled behind the van, blocking it in. Detective Sorrell and Detective Ernest Rice

quickly approached the vehicles with guns drawn and identified themselves as police.

As Detective Sorrell approached the driver’s side of the van, he came upon Appellant,

who was sitting in the driver’s seat with 350 balloons of what appeared to be heroin in

his lap, along with $1,835.00. The man who exited the Grand Prix was sitting in the

back of the van. Both men were arrested.

       {¶7}   On November 17, 2009, Appellant was charged in Delaware County

Municipal Court with one count of possession of heroin, in violation of R.C. 2925.11(A),

a felony of the second degree.      On November 18, 2009, Appellant appeared for

arraignment. Appellant was not represented by counsel. The trial court was informed

by the deputy that a translator was needed as Appellant did not speak English. The trial

court confirmed Appellant did not speak English and attempted to communicate with

Appellant in Spanish with only limited success. The trial court then proceeded to

conduct the arraignment in English. Appellant was advised of the charges against him

and the court set bail at $50,000.00. The trial court stated it was appointing counsel

and would note a translator was needed at the time of the preliminary hearing.

       {¶8}   On November 24, 2009, the Delaware Municipal Court held a preliminary

hearing where Appellant was not represented by counsel. An interpreter was present
Delaware County, Case No. 10-CA-33                                                                               4


for the hearing and translated what was being said by the court to Appellant as well as

what was being said by Appellant to the court. After the hearing, the trial court found

probable cause that Appellant committed a crime under R.C. 2925.11 and bound the

case over to the Delaware County Common Pleas Court.

        {¶9}     On December 4, 2009, the Delaware County Grand Jury indicted

Appellant on one count of Trafficking in Heroin, in violation of R.C. 2925.03(A)(2), a

felony of the second degree, and one count of Possession of Heroin, in violation of R.C.

2925.11(A), also a felony of the second degree.                       Both counts contained forfeiture

specifications relating to the cash discovered during the arrest.

        {¶10} On December 14, 2009, Appellant was arraigned and he entered not

guilty pleas to both counts of the indictment. The trial court increased Appellant’s bail to

$150,000.00.

        {¶11} On December 22, 2009, Appellant’s attorney filed a Motion to Suppress

evidence obtained as a result of the arrest. Appellant argued, inter alia, that the police

officers lacked reasonable suspicion to stop the van and subsequently seize Appellant.

The State of Ohio filed its response on January 5, 2010. The trial court held a hearing

on January 22, 2010, and denied Appellant’s motion on February 1, 2010.

Subsequently, Appellant filed a Motion to Dismiss for violating his right to counsel under

the Sixth and Fourteenth Amendments of the United States Constitution by conducting

a preliminary hearing without appointing counsel to Appellant.                           The State of Ohio

responded and the trial court denied Appellant’s motion on April 9, 2010.1



1
 A video recording of the initial arraignment and the preliminary hearing is included in Joint Exhibit 1, which is
part of the appellate record for review. However, a transcript of the proceedings was not provided to this Court in
compliance with App.R. 9(B).
Delaware County, Case No. 10-CA-33                                                           5


         {¶12} Subsequently, Appellant entered a no contest plea to Trafficking in Heroin,

a violation of R.C. 2925.03(A)(2), a felony of the second degree and the attached

forfeiture specification. The Possession of Heroin charge was dismissed.             Appellant

was then sentenced to three years in prison.

         {¶13} It is from this entry that Appellant appeals, raising two Assignments of

Error:

         {¶14} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO SUPPRESS AS THE OFFICERS LACKED PROBABLE CAUSE TO ARREST HIM

AND SEARCH HIS VEHICLE INCIDENT TO ARREST.

         {¶15} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO DISMISS FOR VIOLATION OF HIS RIGHT TO COUNSEL AT THE PRELIMINARY

HEARING.”

                                               I.

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

denying Appellant’s Motion to Suppress because the officers lacked probable cause to

arrest him and search his vehicle incident to arrest. We disagree.

         {¶17} Appellate review of a trial court’s decision to grant or deny a motion to

suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio

App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d

1030. A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d
Delaware County, Case No. 10-CA-33                                                         6


142, 675 N.E.2d 1268.        Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision meets the applicable legal standard. State

v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶18} The Fourth Amendment of the Constitution of the United States

guarantees each citizen a right to be free from unreasonable governmental searches

and seizures. Specifically, it states:

       {¶19} “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.”

       {¶20} Even so, not all personal intercourse between policemen and citizens

involves “seizures” of persons. Only when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a citizen may we conclude

that a “seizure” has occurred within the meaning of the Fourth Amendment. Terry v.

Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, at fn. 16.

       {¶21} Under Terry, however, a police officer may constitutionally stop or detain

an individual without probable cause when the officer has reasonable suspicion, based

on specific, articulable facts, that criminal activity is afoot. Reasonable suspicion entails

some minimal level of objective justification, that is, something more than an inchoate

and unparticularized suspicion or ‘hunch’, but less than the level of suspicion required

for probable cause. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35.
Delaware County, Case No. 10-CA-33                                                         7


       {¶22} Blocking a person’s path or otherwise restraining movement is one

indication that an investigatory stop has occurred. State v. Lewis, 179 Ohio App.3d 159,

2008-Ohio-5805 (citations omitted).

       {¶23} An anonymous informant’s tip can give rise to a reasonable suspicion of

criminal activity. Alabama v. White (1990), 469 U.S. 325, 110 L.Ed.2d 301. Courts have

generally identified three classes of informants: the anonymous informant, the known

informant from the criminal world who has provided previous reliable tips, and the

identified citizen informant. City of Maumee v. Weisner, 87 Ohio St.3d 295, 299-300,

1990-Ohio-68, 720 N.E.2d 507. Anonymous tips normally require suitable corroboration

demonstrating “sufficient indicia of reliability to provide reasonable suspicion to make

the investigatory stop.” Florida v. J.L. (2000), 529 U.S. 266, 270, 120 S.Ct. 1375, 146

L.Ed.2d 254.

       {¶24} It is also well settled that “the propriety of an investigative stop by a police

officer must be viewed in light of the totality of circumstances.” State v. Bobo (1988), 37

Ohio St.3d 177, 524 N.E.2d 489, at paragraph one of the syllabus.

       {¶25} In the case below, the trial court determined that the initial interaction

between the SRB detectives and Appellant was an investigatory detention, not an

arrest. The trial court determined that no arrest occurred until after Detective Sorrell

observed the suspected heroin and cash in plain view on the Appellant’s lap and in the

van.

       {¶26} The period of time from which SRB was notified of the possible drug

transaction to the time that the actual transaction occurred was short.           When the

sergeant at SRB received the tip, he conveyed to the detectives that the Hardin County
Delaware County, Case No. 10-CA-33                                                     8


Sheriff’s office informed him that the two individuals in the green Grand Prix were en

route to the Polaris area of Delaware County to buy heroin. Detectives testified that

they had previously relied on tips from Hardin County multiple times and that those tips

had always been reliable.

      {¶27} As Detective Sorrell approached the van and the green Grand Prix in the

parking lot of the apartment complex, he had his firearm drawn and had identified

himself as a police officer. Immediately upon approaching the window on the driver’s

side of the van, Detective Sorrell observed a bag containing numerous balloons

consistent with how heroin is packaged on Appellant’s lap.       At that time, Detective

Sorrell ordered Appellant out of the vehicle and detained him.

      {¶28} We agree that an investigatory detention occurred and that the

circumstances described at the suppression hearing, taken as a whole, created a

reasonable suspicion that Appellant was engaged in illegal activity, and, therefore, the

officers’ investigatory stop did not violate the Fourth Amendment.

      {¶29} Based upon the information conveyed to them by the Hardin County

Sheriff’s office, as well as based on their independent observations of the green Grand

Prix with license plate number CUH-3508 pulling into the parking lot, backing into a spot

and waiting in the car until a van appeared, and then flashing their lights at the van so

that the van would pull up to them, we find that reasonable suspicion existed to support

the investigatory stop and detention of Appellant. At the time the officers observed the

suspected heroin in the Appellant’s lap, they had probable cause to arrest Appellant for

possession of drugs.
Delaware County, Case No. 10-CA-33                                                      9


       {¶30} The officers’ initial intent was not to arrest the suspects; rather it was to

approach the vehicles in order to investigate whether a drug transaction was occurring

or had occurred. State v. Ulmer, 4th Dist. No. 09CA3283, 2010-Ohio-695, ¶20; see also

State v. Payne (May 4, 1994), 2nd Dist. No. 13898, citing U.S. v. Hastomorir (1989),

881 F.2d 1551, 1556-7; United States v. Glenna (1989), 878 F.2d 967, 971-973; United

States v. Crittendon (1989), 883 F.2d 326, 329; United States v. Laing (1989), 889 F.2d

281, 285; United States v. Miller (1992), 974 F.2d 953, 956-957.

       {¶31} We find the trial court appropriately denied the Motion to Suppress.

       {¶32} Appellant’s first assignment of error is overruled.

                                                II.

       {¶33} In the second assignment of error, Appellant argues that the trial court

erred in failing to grant his motion to dismiss because he was denied his right to counsel

at the preliminary hearing.

       {¶34} A defendant has the right to be represented by counsel at every critical

stage of the criminal process. Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999,

26 L.Ed.2d 387; State v. Parrot (1971), 27 Ohio St.2d 205, 208, 272 N.E.2d 112. The

goal in so doing is to ensure that defendants proceed in the criminal process with “eyes

open” so that they can be informed as how to best defend themselves from prosecution.

Faretta v. California (1975), 422 U.S. 806, 835.

       {¶35} A preliminary hearing is a critical stage of the criminal process. Id. If a

defendant is not represented by counsel at a critical stage of the proceedings, he must

waive those rights under the Sixth and Fourteenth Amendments to the United States

constitution in a knowing, intelligent, and voluntary manner. Iowa v. Tovar (2004), 541
Delaware County, Case No. 10-CA-33                                                           10


U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209. In order to establish an effective waiver

of right to counsel, the trial court must make sufficient inquiry to determine whether

defendant fully understands and intelligently relinquishes that right. State v. Gibson

(1976), 45 Ohio St.2d 366, ¶2 of the syllabus.

           {¶36} In the case at bar, we are not convinced that Appellant knowingly,

voluntarily, and intelligently waived his right to counsel at his preliminary hearing.

           {¶37} Appellant was arraigned on November 18, 2009, without an interpreter

and without an attorney present. At the arraignment, Appellant stated that he did not

speak English.           He stated that he spoke Spanish, however the court proceeded to

conduct the arraignment in English without an interpreter present.2

           {¶38} Then, on November 24, 2009, a Preliminary Hearing was held in Delaware

County Municipal Court wherein Appellant was not represented by counsel; however,

an interpreter was present. It was clear from the exchanges between Appellant and the

trial court that Appellant was confused as to the nature of the proceedings and as to

why he did not have an attorney present.3

           {¶39} During the preliminary hearing, Appellant asked the trial court if he was

being sentenced that day. He also asked if he did not go forward that day if more

charges would be filed against him. He asked why he did not have an attorney and

indicated through his interpreter that he thought that one was appointed to him at the

arraignment.

           {¶40} The trial court did not fully and clearly explain the right to counsel, and the

Appellant never affirmatively waived the right on the record. There was no written


2
    Recording of Arraignment, Joint Exhibit 1.
3
    Recording of Preliminary Hearing, Joint Exhibit 1.
Delaware County, Case No. 10-CA-33                                                       11


waiver of counsel. Through a convoluted conversation wherein it never appeared that

Appellant and the trial court were on the same page, Appellant eventually conceded to

go forward with the preliminary hearing without counsel. Specifically, the trial court

asked Appellant if he would “like to give it a shot today”, to which Appellant replied in

the affirmative.

       {¶41} Witnesses testified on behalf of the State of Ohio and the trial court bound

Appellant’s case over to the Delaware County Common Pleas Court for presentation to

the Grand Jury for indictment.

       {¶42} As we previously stated, a preliminary hearing is a critical stage of the

proceedings. State v. Parrott (1971), 27 Ohio St.2d 205, 208, 272 N.E.2d 112. As a

critical stage of the proceeding, a defendant has a right to counsel under the Sixth and

Fourteenth Amendments to the United States Constitution.           Id.   Denial of right to

counsel at a critical stage of the proceeding invalidates a subsequent conviction unless

it can be proven that the denial of the right to counsel was harmless beyond a

reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

705.

       {¶43} When a defendant is charged with a serious offense and is unable to

obtain counsel, counsel shall be assigned to represent him at every stage of the

proceedings from his initial appearance before a court through appeal as of right, unless

the defendant, after being fully advised of his right to assigned counsel, knowingly,

intelligently, and voluntarily waives his right to counsel. Crim. R. 5(A); see also Crim. R.

44.
Delaware County, Case No. 10-CA-33                                                      12


       {¶44} At the preliminary hearing, the trial court did ask Appellant if he wanted

counsel, and Appellant stated that he did want counsel. After an extended conversation

about what would happen at the preliminary hearing, wherein the trial court repeated

that the hearing would consist of the court determining whether Appellant would stay in

jail pending the Grand Jury hearing his case for possible indictment, Appellant still

appeared confused but agreed to proceed with the hearing.

       {¶45} Certainly, no strict compliance with Crim. R. 44 was made, as there was

no written waiver of the right to counsel at the preliminary hearing. Moreover, we do not

find that there was substantial compliance with Crim. R. 44(A), as such an oral waiver

made with “an apprehension of the nature of the charges, the statutory offenses

included within them, the range of allowable punishments thereunder, possible

defenses to the charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter. State v. Martin (2004), 103

Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227.

       {¶46} However, a conviction that was not secured with a knowing, intelligent and

voluntary waiver of counsel may still stand if the denial of the right to counsel can be

proven to be harmless beyond a reasonable doubt. Coleman v. Alabama (1970), 399

U.S. 1, 90 SCt. 1999, citing Chapman v. California, supra. Such error can be proven to

be harmless unless it has a “substantial and injurious effect or influence in determining *

* * the verdict.” State v. Naugle, 182 Ohio App.3d 593, 599, 2009-Ohio-3268, 913

N.E.2d 1052.

       {¶47} Having reviewed the record and the recording of the preliminary hearing,

we do not find any substantial or injurious effect resulting from the lack of counsel at
Delaware County, Case No. 10-CA-33                                                    13


preliminary hearing.   At the hearing, Appellant declined to testify, and therefore no

incriminating statements were made.          Moreover, the testimony presented at the

preliminary hearing was substantially the same as the testimony presented at the

suppression hearing.

      {¶48} Appellant argues that he was denied five potential benefits from having

counsel represent him at his preliminary hearing: (1) exposure of weaknesses in the

prosecution’s case; (2) impeachment tools for trial; (3) discovery of the prosecution’s

case; (4) psychiatric examination of Appellant; and (5) information for a decision on the

amount of bail. We find Appellant’s arguments to be unpersuasive.

      {¶49} Appellant was appointed counsel on December 4, 2009.             At no time

between December 4, 2009, and his sentencing was Appellant’s case impacted by any

of these potential factors. Defense counsel filed a Motion to Suppress and a hearing

was held on that motion, thereby allowing defense counsel to expose any potential

weakness in the prosecution’s case as well as obtain impeachment information for trial.

Moreover, Appellant received discovery and also had the benefit of discovery

information revealed at the suppression hearing, which was filed prior to the Motion to

Dismiss for lack of counsel at the preliminary hearing. Finally, at no point during any

stage of the proceedings did defense counsel request a psychiatric evaluation of

Appellant.

      {¶50} Appellant’s argument that bail may have been set differently had counsel

been present at the preliminary hearing also does not sway us. Appellant’s bail of

$50,000.00 that was set at preliminary hearing was actually increased when he had

counsel present at his felony arraignment.
Delaware County, Case No. 10-CA-33                                                 14


      {¶51} Accordingly, we find no prejudice in Appellant’s lack of counsel at his

preliminary hearing and find any error to be harmless beyond a reasonable doubt.

      {¶52} Appellant’s second assignment of error is overruled.

      {¶53} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.

Edwards, P.J. and

Gwin, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. JULIE A. EDWARDS



                                       HON. W. SCOTT GWIN
[Cite as State v. Frias-Carvajal, 2011-Ohio-1197.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                        :
                                                     :
                        Plaintiff-Appellee           :
                                                     :
                                                     :
-vs-                                                 :    JUDGMENT ENTRY
                                                     :
OMAR RAPH FRIAS-CARVAJAL                             :
                                                     :
                       Defendant-Appellant           :    Case No. 10-CA-33
                                                     :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to Appellant.



                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY


                                                         _________________________________
                                                         HON. JULIE A. EDWARDS


                                                         _________________________________
                                                         HON. W. SCOTT GWIN
