[Cite as State v. Powell, 2018-Ohio-1276.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY

STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :     Case Nos. 17CA3586
                                                                17CA3587
v.                                              :
                                                      DECISION AND
NICHOLAS POWELL,                                :     JUDGMENT ENTRY

        Defendant-Appellant.                    :     RELEASED 03/29/2018


                                             APPEARANCES:

Michael L. Benson and Mark D. Tolles, II, Benson & Sesser, LLC, Chillicothe, Ohio for
defendant-appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio for plaintiff-appellee.


Hoover, P.J.,

        {¶ 1} Defendant-appellant, Nicholas Powell, appeals the judgments of the Ross County

Court of Common Pleas denying his motions to suppress, convicting him of 11 counts of

trafficking in cocaine, and sentencing him to 96 months in prison. On appeal, he argues that his

speedy trial and Fourth Amendment rights were violated. For the following reasons, we affirm

the judgment of the trial court.

                                    I. Facts and Procedural History

        {¶ 2} In November 2015, Powell was charged in case number 15 CR 375 with six counts

of trafficking in cocaine in violation of R.C. 2925.03, each a felony of the fifth degree; one count

of complicity to trafficking in cocaine in violation of R.C. 2923.03, a felony of the fifth degree;

and one count of trafficking in cocaine in violation of R.C. 2925.03, a felony of the fourth
Ross App. Nos. 17CA3586 and 17CA3587                                                                2


degree. In December 2015, he was charged in case number 15 CR 416 with four additional

counts of trafficking in cocaine in violation of R.C. 2925.03, felonies of the fifth degree.

       {¶ 3} In March 2016, Powell filed a multi-branch motion in both cases. Branch A

challenged the State’s preservation of evidence. Branch B alleged Fourth Amendment violations.

Branch C challenged the State’s compliance with Crim.R. 16. Branch D challenged the

admissibility of laboratory reports and other physical evidence. Finally, Branch E challenged the

admissibility of alleged hearsay statements.

       {¶ 4} In June 2016, a motion hearing was held where the State presented testimony from

three law enforcement officers. Detective Twila Goble of the Chillicothe Police Department

testified that in March 2015 she and her then-partner, Charles Campbell, used a confidential

informant, T.P., to conduct a controlled buy with Powell in order to establish probable cause to

search his home. T.P. was outfitted with an audio transmitter that allowed her and her partner to

hear the transaction. However, the audio was not preserved because “at that time we did not

believe [T.P.] would testify so we were just going for probable cause and normally in our

business we don’t save our recordings for a probable cause warrant.”

       {¶ 5} Thereafter, T.P. decided to testify against Powell so Detective Goble began

investigating him for drug trafficking. Between April 2015 and May 2015, T.P. conducted four

more controlled buys with Powell. T.P. was again outfitted with a recording device, which

captured video of each buy, as well as audio of one of them. However, the recordings were not

admitted into evidence at the suppression hearing.

       {¶ 6} Detective Christopher Davis of the Ross County Sherriff’s Office testified that in

June 2015 he used another confidential informant, M.O., to conduct three more controlled buys
Ross App. Nos. 17CA3586 and 17CA3587                                                                3


with Powell. M.O. was equipped with a recording device, which captured audio and video of

each buy. However, the recordings were not admitted into evidence at the suppression hearing.

       {¶ 7} Finally, Officer Jeffrey Demint of the Chillicothe Police Department testified that

in September 2015 he used the first confidential informant, T.P., to conduct four more controlled

buys with Powell. T.P. was equipped with a recording device, which captured audio and video of

each buy. However, the recordings were not admitted into evidence at the suppression hearing.

       {¶ 8} The confidential informants did not testify at the suppression hearing. However, the

law enforcement officers testified that for each controlled buy, the confidential informants were

paid money for their participation. M.O. also received a deal from the Ross County Prosecuting

Attorney in an unrelated matter for his involvement. The defense did not present any witnesses at

the suppression hearing.

       {¶ 9} On June 17, 2016, Powell filed a brief in support of his multi-branch motions. With

respect to Branch B, he argued that he demonstrated that there was an unlawful search and

seizure which then shifted the burden to the State to establish that the search and seizure fell

within an exception to the warrant requirement. Specifically, Powell argued that the State failed

to (1) have the confidential informants testify they were allowed in the home or that the narcotics

were in plain view (2) have the law enforcement officers authenticate any of the recordings in its

possession that may have shown him granting the confidential informants consent to enter the

residence or (3) have the law enforcement officers testify that they personally witnessed Powell

let the confidential informants into his home.

       {¶ 10} On June 27, 2016, the trial court denied Powell’s motions. In doing so, it stated:
Ross App. Nos. 17CA3586 and 17CA3587                                                             4


       One paid CI entered defendant’s home 9 times. The other paid CI entered

       defendant’s home 3 times. The state alleges that defendant sold controlled

       substances a total of 12 times.

       ***

       Defendant submits that the state should have had the CIs testify; the officers

       testify as to defendant’s consent for the CIs to enter his home; or the audio and

       video tapes played. However, based on the evidence presented, the Court finds

       that the State has met its burden of proof.



       The Court finds by probable cause that the state did not violate defendant’s Fourth

       Amendment protections. Defendant did not have an expectation of privacy in any

       conversation or transaction he had with CIs whom he had invited into his home on

       multiple occasions.

       {¶ 11} On November 10, 2016, Powell pleaded no contest to the charges in case number

15 CR 416; and the trial court issued a finding of guilt. The charges in case number 15 CR 375

proceeded to trial where he was found guilty of 7 of the 8 counts. He was sentenced to a total

aggregate of 96 months in prison in case numbers 15 CR 375, 15 CR 416, and 16 CR 349.

                                     II. Assignments of Error

       {¶ 12} On appeal, Powell assigns the following errors for our review:

       Assignment of Error No. I:

       THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT
       NICHOLAS POWELL’S MOTION TO SUPPRESS IN CASE NOS. 15-CR-375
       AND 15-CR-416.

       Assignment of Error No. II:
Ross App. Nos. 17CA3586 and 17CA3587                                                                   5


       THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES
       AGAINST DEFENDANT-APPELLANT NICHOLAS POWELL IN CASE NO.
       15-CR-416 ON THE GROUNDS THAT HIS STATUTORY RIGHTS TO A
       SPEEDY TRIAL WERE VIOLATED, WHERE THE STATE FAILED TO
       BRING HIM TO TRIAL WITHIN THE MANDATORY TIME PERIOD SET
       FORTH IN R.C. 2945.71 AND R.C. 2945.72.

                                       II. Law and Analysis

  A. The Trial Court Did Not Err in Denying Powell’s Motion to Suppress Where Powell
      Failed to Establish That He Was Subjected to a Warrantless Search or Seizure


       {¶ 13} In his first assignment of error, Powell claims that the trial court erred in denying

his motions to suppress. Specifically, he contends that the evidence obtained from the controlled

buys should have been suppressed because the State failed to satisfy its burden of establishing

that an exception to the warrant requirement applied to the controlled buys that allegedly

occurred inside his home.

       {¶ 14} Appellate review of a trial court’s ruling on a motion to suppress presents “a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797

N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial court assumes the role of the

trier of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of the witnesses.” State v. Roberts, 110 Ohio St.3d 71, 2006–Ohio–3665, 850 N.E.2d

1168, ¶ 100, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently,

in its review, an appellate court must accept the trial court’s findings of fact if they are supported

by competent, credible evidence. State v. Belton, 149 Ohio St.3d 165, 2016–Ohio–1581, 74

N.E.3d 319, ¶ 100; State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th

Dist.2000). However, an appellate court determines as a matter of law, without deferring to the

trial court’s conclusions, whether the trial court reached the correct legal conclusion in analyzing

the facts of the case. Belton at ¶ 100; Roberts at ¶ 100; Burnside at ¶ 8. “ ‘[I]n reviewing a trial
Ross App. Nos. 17CA3586 and 17CA3587                                                               6


court’s ruling on a motion to suppress, an appellate court may consider only evidence that was

presented during the suppression hearing and may not consider evidence presented at trial.’ ”

State v. Tolbert, 4th Dist. Washington No. 15CA5, 2015-Ohio-4733, ¶ 39, quoting State v.

Gartrell, 2014-Ohio-5203, 24 N.E.3d 680, fn. 2 (3d Dist.).

       {¶ 15} “ ‘The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.’ ” State v.

Shrewsberry, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 14, quoting State v. Emerson, 134

Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. “The Fourth Amendment protects the

individual’s actual and justifiable expectation of privacy from the ear and eye of the

government.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13,

citing Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v.

United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, absent a

few well-delineated exceptions, the State is prohibited from making unreasonable intrusions into

areas where people have legitimate expectations of privacy without a search warrant. State v.

Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, ¶ 25, and cases cited therein.

Without question, a person has a reasonable expectation of privacy in their home. Lewis v. U.S.,

385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). Thus, “a warrantless entry into a home

is presumptively unlawful.” State v. Cooper, 2d Dist. Montgomery No. 20845, 2005-Ohio-5781,

¶ 16, citing State v. Hawkins, 2d Dist. Greene App. No. 2002–CA–85, 2003–Ohio–1851 and

State v. Pinson, 2d Montgomery App. No. 20927, 2005–Ohio–4532.

       {¶ 16} In City of Xenia v. Wallace, 37 Ohio St.3d 216, 219, 524 N.E.2d 889 (1988), the

Ohio Supreme Court held that “to suppress evidence obtained pursuant to a warrantless search or

seizure” the defendant must not only “raise the grounds upon which the validity of the search or
Ross App. Nos. 17CA3586 and 17CA3587                                                                7


seizure is challenged in such a manner as to give the prosecutor notice of the basis for the

challenge” but also “demonstrate the lack of a warrant.” In other words, the defendant must not

only raise the grounds upon which the validity of the search or seizure is challenged in such a

manner as to give the prosecutor notice of the basis for the challenge (i.e., filing a motion to

suppress) but he must “demonstrate[] that he was subjected to a warrantless search or seizure.”

State v. Davis, 2016-Ohio-3539, 67 N.E.3d 33, ¶ 25 (4th Dist.), citing State v. Eatmon, 4th Dist.

Scioto No. 12CA3498, 2013-Ohio-4812, 2013 WL 5914938, ¶ 11. “Once the defendant

demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the

state to establish that the warrantless search or seizure was constitutionally permissible.” State v.

Johnson, 4th Dist. Scioto No. 14CA3618, 2014–Ohio–5400, ¶ 13, citing State v. Roberts, 110

Ohio St.3d 71, 2006–Ohio–3665, 850 N.E.2d 1168, ¶ 98.

       {¶ 17} Here, there was no evidence presented at the suppression hearing that any of the

controlled buys occurred inside Powell’s home or any area in which he had a reasonable

expectation of privacy. For example, there was no testimony that the law enforcement officers

observed the confidential informants entering Powell’s home prior to the controlled buys or that

Powell exchanged texts messages with the confidential informants prior to the controlled buys

indicating that the buys were taking place inside Powell’s home. Furthermore, while the law

enforcement officers testified on cross-examination that they did not obtain warrants for any of

the controlled buys, that does not necessarily mean that the controlled buys occurred inside

Powell’s home or any area in which he had a reasonable expectation of privacy. Furthermore, the

recordings of the controlled buys were not admitted into evidence; therefore, no way exists to

independently determine the location of the buys.
Ross App. Nos. 17CA3586 and 17CA3587                                                                8


       {¶ 18} When a defendant seeks to suppress evidence on Fourth Amendment grounds, his

burden is two-fold. First, he must “raise the grounds upon which the validity of the search or

seizure is challenged in such a manner as to give the prosecutor notice of the basis for the

challenge.” Then, he must demonstrate—not merely allege—that he was subjected to a

warrantless search or seizure. See Wallace at 219. If he satisfies that burden, then the burden

shifts to the State to establish that the warrantless search or seizure was constitutionally

permissible. Johnson, 4th Dist. Scioto No. 14CA3618, 2014–Ohio–5400, ¶ 13, citing Roberts,

110 Ohio St.3d 71, 2006–Ohio–3665, 850 N.E.2d 1168, ¶ 98. Since Powell failed to demonstrate

at the suppression hearing that he was subjected to a warrantless search or seizure (i.e., that state

actors entered his home without a warrant), his motion to suppress was properly denied.

       {¶ 19} Furthermore, even if we were to assume that the controlled buys did occur in

Powell’s home, by the very nature of the transaction the trial court could reasonably conclude, as

it did, that any entry of the confidential informants into the home was with Powell’s consent. On

twelve occasions the confidential informants, under the direction of law enforcement, met with

Powell, and each time the confidential informants returned with illegal drugs. Needless to say,

competent and credible evidence presented at the suppression hearing supports the trial court’s

conclusion that Powell was a willing participant in the transaction, and that any presence of the

confidential informants in his home was with his knowledge and consent. Thus, an illegal search

did not occur and the State was not required to have a search warrant.

       {¶ 20} Accordingly, we overrule Powell’s first assignment of error.

  B. Powell Waived Any Speedy Trial Challenge by Not Filing a Motion to Dismiss in the
                                     Trial Court

       {¶ 21} In his second assignment of error, Powell claims that his statutory speedy-trial

rights were violated in case number 15 CR 416. Specifically, he claims that when he entered a
Ross App. Nos. 17CA3586 and 17CA3587                                                                  9


no-contest plea in November 2016 in case number 15 CR 416, more than 270 speedy trial days

had elapsed.

        {¶ 22} R.C. 2945.73(B) states, “[u]pon motion made at or prior to the commencement

of trial, a person charged with an offense shall be discharged if he is not brought to trial within

the time required by sections 2945.71 and 2945.72 of the Revised Code.” “Thus, the statute

requires the accused to file the motion before trial.” State v. Ross, 4th Dist. Ross No. 04CA2780,

2005-Ohio-1888, ¶ 20, citing State v. Thompson, 97 Ohio App.3d 183, 186-187, 646 N.E.2d 499

(6th Dist.1994).

        {¶ 23} Here, Powell did not file a motion to dismiss alleging a speedy trial violation

during the trial court proceedings; and his failure to do so results in a waiver of the issue on

appeal. E.g., Ross at ¶ 20 (appellant’s speedy trial challenge waived where he did not timely

move to dismiss the case on speedy trial grounds in the trial court).

        {¶ 24} Accordingly, we overrule Powell’s second assignment of error.

                                          IV. Conclusion

        {¶ 25} Having overruled Powell’s assignments of error, we affirm the judgment of the

trial court.

                                                                        JUDGMENT AFFIRMED.
Ross App. Nos. 17CA3586 and 17CA3587                                                               10


                                      JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

       The Court finds that reasonable grounds existed for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

    IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN
PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily
continued for a period not to exceed sixty days upon the bail previously posted. The purpose of
a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a
stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally,
if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will
terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

   Harsha, J. and Abele, J.: Concur in Judgment and Opinion.




                                                              For the Court

                                                              By:
                                                                    Marie Hoover, Presiding Judge




                                     NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
