[Cite as State v. Pierce, 2010-Ohio-478.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 11-09-05

        v.

ALLAN T. PIERCE,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Paulding County Common Pleas Court
                            Trial Court No. CR-08-594

                                       Judgment Affirmed

                           Date of Decision:   February 16, 2010




APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Joseph R. Burkard for Appellee
Case No. 11-09-05


SHAW, J.

       {¶1} The defendant-appellant, Allen Pierce, appeals the June 25, 2009

judgment of the Common Pleas Court of Paulding County, Ohio, finding him

guilty of possession of cocaine and sentencing him to eleven months in prison.

       {¶2} The facts relevant to this appeal are as follows. On the night of June

23, 2008, Trooper Joseph Sisco was dispatched to a wreck on County Road 177 in

Paulding County, Ohio, near the village of Melrose. When he arrived, he saw a

1997 Ford Taurus on the west side of the road in a ditch. Although the driver of

the Taurus was not present, an off-duty police officer for the Melrose Police

Department, Thomas Stahl, and a tow truck driver from R&O Towing were at the

scene. Stahl informed Trooper Sisco that a man was with the automobile when he

happened upon it but that the man left and went to a residence a short distance

away. Stahl accompanied Trooper Sisco to the residence, and Stahl identified

Pierce as the individual who was with the car but had left.

       {¶3} Trooper Sisco asked Pierce what had happened, and Pierce informed

him that he and his wife had ran out of gas. He further explained that he pushed

the vehicle off the right side of the road and that his wife had left to get “insurance

records[.]” (Trial Trans. p. 78.) Trooper Sisco asked Pierce to return to his

vehicle, but Pierce refused to do so. The trooper informed Pierce that a tow truck

driver, who was willing to tow the car, was with Pierce’s vehicle and asked him if



                                         -2-
Case No. 11-09-05


he had anyone else en route to tow the car. At that time, Pierce told the trooper,

“Have him tow it,” and then proceeded to say, “Please don’t tell my wife about

this.” (id. at 79.) Pierce never returned to the vehicle that night.

       {¶4} Trooper Sisco returned to the vehicle and informed the tow truck

driver that he could tow the car. The driver then left to get a wrecker to tow it.

While waiting for the wrecker, the trooper began a crash report investigation

because he noticed that there was damage to the right front quarter of the car and

the car did not appear to have been pushed off of the roadway because of its

position in the ditch.

       {¶5} After drawing a field sketch and documenting the position of the

vehicle, Trooper Sisco conducted an inventory of the vehicle to document its

contents for the towing company. Upon looking in the glove compartment, the

trooper located a silver pipe with what appeared to be burn marks at both ends and

a filter inside. Also located in the glove compartment were five compact discs,

some miscellaneous papers, and Pierce’s social security card. Suspecting that the

silver pipe was, in fact, a crack pipe, Trooper Sisco seized the pipe and later sent it

to the Ohio State Highway Patrol’s criminal laboratory for testing. The car, which

was registered to Pierce’s wife, was then towed.

       {¶6} The testing revealed that the pipe contained trace amounts of

cocaine. On October 10, 2008, Pierce was indicted for one count of possession of



                                          -3-
Case No. 11-09-05


cocaine in violation of R.C. 2925.11(A)(1), (C)(4), a felony of the fifth degree.

Thereafter, he entered a plea of not guilty, and the case proceeded to discovery.

       {¶7} On March 17, 2009, the parties entered into a stipulation regarding a

polygraph examination of Pierce. In this stipulation, Pierce agreed to submit to a

polygraph examination by an examiner chosen by the State of Ohio. The parties

also agreed that the results would be admissible at trial and that the examiner

would be subject to cross-examination.        This stipulation was signed by the

prosecutor, Pierce’s defense counsel, and by Pierce.

       {¶8} Prior to taking the polygraph, the examiner, Trooper Daniel Bionci,

reviewed the prosecutor’s report and spoke with Pierce about the incident, asking

him to tell him what occurred that night “from beginning to end.” (Trial Trans. p.

102.) At that time, Pierce told Trooper Bionci that he did not know anything

about the crack pipe until he was charged. During Pierce’s polygraph test, he was

asked approximately nine questions, with two of them being specific to the silver

pipe found in the vehicle. In particular, Trooper Bionci asked Pierce the following

questions:

       “Was that your crack pipe found in that glove box?”

       “Was that your crack pipe found in that glove box of that Ford
       Taurus?”

Pierce responded, “No,” to both questions. However, the results indicated that

Pierce was deceptive when he answered both of these questions.


                                        -4-
Case No. 11-09-05


       {¶9} The case proceeded to a jury trial on May 12, 2009. The State

presented the testimony of two witnesses, Trooper Sisco and Trooper Bionci, and

entered four exhibits, including the results of the polygraph, in its case-in-chief.

       {¶10} The defense also presented two witnesses, Stahl and Pierce, in its

case-in-chief. In his testimony, Pierce stated that he drove the vehicle to a party

earlier that day and that multiple individuals from the party had driven his car. As

to how the vehicle ended up in the ditch, Pierce stated that his friend Miguel

wanted to borrow the car, but he advised Miguel that the vehicle had little fuel.

Miguel ignored his warning and proceeded to drive away in the vehicle. However,

Miguel only managed to travel a short distance when the car ran out of gas.

Another person at the party noticed Pierce’s car stalled in the middle of the road

and told him about it. Pierce and two or three of his friends then pushed the

vehicle to the side of the road, where a female friend accidentally steered the car

into the ditch. Pierce then contacted another friend with a truck and a tow rope to

assist him. While Pierce and his friends were waiting with the car, Stahl arrived.

According to Pierce, he knew nothing about the crack pipe until after his vehicle

was towed. At that time, a woman named Shannon informed him that she had left

her pipe in his car.

       {¶11} The State recalled Stahl in its rebuttal. Stahl testified that the only

people who were on the scene when he arrived were Pierce and a volunteer



                                          -5-
Case No. 11-09-05


fireman named Barry Brown, who had stopped to help Pierce. Thereafter, the jury

returned a verdict of guilty, and a pre-sentence investigation was ordered.

       {¶12} On June 25, 2009, the trial court sentenced Pierce to eleven months

in prison. This appeal followed, and Pierce now asserts three assignments of error.

                          ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S
       CRIMINAL RULE 29 MOTION FOR ACQUITTAL WHEN
       THE STATE FAILED TO PRESENT SUFFICIENT
       EVIDENCE TO SUSTAIN A CONVICTION.

                          ASSIGNMENT OF ERROR II

       THE CONVICTION IS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

                         ASSIGNMENT OF ERROR III

       APPELLANT WAS DENIED HIS CONSTITUTIONAL
       RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

                             First Assignment of Error

       {¶13} In his first assignment of error, Pierce asserts that the evidence was

insufficient to sustain his conviction for possession of cocaine. Reviewing a

challenge to the sufficiency of the evidence requires this Court to examine the

evidence in the light most favorable to the prosecution. The Ohio Supreme Court

has set forth the sufficiency of the evidence test as follows:

       [A]n appellate court’s function when reviewing the sufficiency of
       the evidence to support a criminal conviction is to examine the
       evidence admitted at trial and determine whether such evidence,


                                          -6-
Case No. 11-09-05


       if believed, would convince the average mind of the defendant's
       guilt beyond a reasonable doubt. The 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 (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

       {¶14} To prove the charge of possession of cocaine, the State had to show

that Pierce knowingly obtained, possessed, or used a controlled substance, namely

cocaine. See R.C. 2925.11(A)(1), (C)(4). Pierce maintains that the State did not

prove that he “possessed” a controlled substance. Specifically, he contends that

the State failed to prove possession because it did not show that he owned the

vehicle, occupied the vehicle, or had the keys to the vehicle in his possession.

       {¶15} The Revised Code defines “possession” as “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

or substance is found.” R.C. 2925.01(K). The issue of whether a person charged

with drug possession knowingly possessed a controlled substance “is to be

determined from all the attendant facts and circumstances available.” State v.

Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049, 1998-Ohio-193.

       {¶16} Possession may be actual or constructive. State v. Haynes (1971),

25 Ohio St.2d 264, 267 N.E.2d 787. For constructive possession, the State must

demonstrate that the defendant was able to exercise dominion or control over the


                                         -7-
Case No. 11-09-05


item, even though the item may not be within his immediate physical possession.

State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351; see, also, State v.

Alexander, 8th Dist. No. 90509, 2009-Ohio-597, at ¶ 23, citing State v. Hankerson

(1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus; State v. Messer (1995), 107

Ohio App.3d 51, 56, 667 N.E.2d 1022. Furthermore, “[r]eadily usable drugs in

close proximity to an accused may constitute sufficient circumstantial evidence to

support a finding of constructive possession.” State v. Ruby, 149 Ohio App.3d

541, 778 N.E. 2d 101, 2002-Ohio-5381, at ¶ 36; see also, State v. Spurlock, 3rd

Dist. No. 5-03-11, 2003-Ohio-6006, at ¶ 18.

       {¶17} In this case, the crack pipe containing the cocaine, along with

Pierce’s social security card, was found in the glove box of the vehicle. Trooper

Sisco testified that Officer Stahl identified Pierce as being with the vehicle when

Officer Stahl arrived. When the trooper questioned Pierce as to what happened,

Pierce stated that he and his wife were going home when their vehicle ran out of

gas.   Although he later requested that Trooper Sisco not tell his wife, this

statement did not negate his presence in the vehicle. To the contrary, it implied

that Pierce’s wife was not in the vehicle and that he was concerned that his wife

would discover something negative about him and the car that was in his care.

Thus, in addition to Officer Stahl’s identification of Pierce as the person he saw

with the car, Pierce’s own statements placed him in and around the vehicle with



                                        -8-
Case No. 11-09-05


cocaine that was readily accessible and in close proximity to him shortly before

Trooper Sisco found the crack pipe.

       {¶18} Moreover, Pierce authorized Trooper Sisco to have the tow truck

driver that was with the vehicle tow it. Thus, he actually exercised dominion and

control over the vehicle and its contents. Further, Pierce’s unwillingness to return

to the car, his conflicting statements to Trooper Sisco about who was with him

when the car became disabled, and his evident misrepresentations to polygraph

examiner Bionci about the crack pipe that was located in the car and his

knowledge of it, indicate a consciousness of guilt on Pierce’s part.        Thus, a

rational trier of fact could have inferred from Pierce’s actions that he was

knowingly in possession of the crack pipe that had cocaine inside of it.

       {¶19} Given this evidence and construing it in a light most favorable to the

State, we find sufficient evidence in the record for a rational trier of fact to

conclude that Pierce had knowledge of the cocaine, and although he did not have

actual possession of the cocaine at the time the trooper arrived, he was able to

exercise dominion or control over it, thus placing the cocaine within his

constructive possession. Accordingly, the first assignment of error is overruled.

                           Second Assignment of Error

       {¶20} Pierce also asserts that the verdict of guilty was against the manifest

weight of the evidence. Unlike our review of the sufficiency of the evidence, an



                                        -9-
Case No. 11-09-05


appellate court’s function when reviewing the weight of the evidence is to

determine whether the greater amount of credible evidence supports the verdict.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 1997-Ohio-52. In

reviewing whether the trial court’s judgment was against the weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the

conflicting testimony. Id. In doing so, this Court must review the entire record,

weigh the evidence and all of the reasonable inferences, consider the credibility of

witnesses, and determine whether in resolving conflicts in the evidence, the

factfinder “clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” State v. Andrews,

3rd Dist. No. 1-05-70, 2006-Ohio-3764, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541. Further, we must be mindful that the credibility to be afforded the testimony

of the witnesses is to be determined by the trier of fact. State v. Dye, 82 Ohio St.3d

323, 329, 695 N.E.2d 763, 1998-Ohio-234; State v. Frazier, 73 Ohio St.3d 323,

652 N.E.2d 1000, 1995-Ohio-235.

       {¶21} Once again, to prove the charge of possession of cocaine, the State

had to show that Pierce knowingly obtained, possessed, or used a controlled

substance, namely cocaine. See R.C. 2925.11(A)(1), (C)(4). Pierce maintains that

the State did not prove that he “possessed” a controlled substance. Specifically, he



                                        -10-
Case No. 11-09-05


contends that the State failed to prove possession because it did not show that he

owned the vehicle, occupied the vehicle, or had the keys to the vehicle in his

possession. He further asserts that the only evidence presented demonstrated that

Pierce had not driven the vehicle since earlier in the day, and several other people

drove the car after him. We do not agree.

       {¶22} In addition to the testimony previously discussed, Pierce bolstered

the State’s case through one of his own witnesses, Officer Stahl, who testified as a

witness for Pierce. Officer Stahl testified that he was heading towards his home

on County Road 177 when he noticed a red rotating light in the roadway.

Although he was not working at the time, he had his portable radio with him but

did not hear any type of emergency call. Believing someone may have needed

help, he went to the scene. At the scene, he saw Pierce’s vehicle in the ditch and

Pierce standing beside it. He also discovered that the red rotating light was

coming from the personal vehicle of a volunteer firefighter, Barry Brown, who had

stopped to assist Pierce.

       {¶23} When Stahl arrived, he asked if he could be of help. Brown told him

that he was on his way to work when he came upon Pierce’s vehicle in the ditch.

Brown was afraid that Pierce’s vehicle might be struck by another vehicle so he

pulled over and activated his red rotating light. Stahl was also concerned that the

vehicle might be struck because it was dark, the vehicle was not illuminated in any



                                       -11-
Case No. 11-09-05


way, and the left rear corner of the vehicle was on the roadway. Brown then

notified the sheriff’s office to send someone out to the scene and informed them

that a tow was needed. At that time, the sheriff’s office told him that a highway

patrol officer was en route.

       {¶24} Shortly after Stahl arrived, Brown informed him that he had to be at

work and asked if Stahl would wait until someone came to assist Pierce in

removing his vehicle from the ditch. Brown then left the scene, and Stahl began

speaking with Pierce. Believing that Pierce had driven off the roadway, Stahl

asked him if he needed any medical attention. Pierce told him that he did not and

then proceeded to tell him that he was coming from a party down the road, ran out

of gas, and was pushing his vehicle off the roadway when it dropped into the

ditch. Specifically, Pierce told Stahl that he was driving the vehicle. He also

never mentioned that his wife was with him.

       {¶25} When Stahl informed Pierce that he was the village police officer for

Melrose, Pierce’s attitude changed. He became irritated and evasive, began using

expletives, did not want to speak to Stahl any longer, wanted to leave the scene,

and tried to walk away twice. Stahl advised him not to leave because a trooper

was en route. However, shortly thereafter, another vehicle occupied by two or

three other individuals arrived at the scene and the driver asked Pierce, “What’s

going on?” Pierce stated, “Come on, let’s get the ‘F’ out of here,” entered the



                                       -12-
Case No. 11-09-05


vehicle, and left. (Trial Trans. p. 138.) The tow truck driver and Trooper Sisco

arrived a few minutes later.

        {¶26} Stahl also testified that no one else, other than Brown, who was

seated in his truck, was with Pierce when he arrived. He further stated that he

walked around the vehicle to see if there was any damage to the vehicle. When he

did, he noticed that there was nothing about the crops in the field next to the ditch

or the high grass in the ditch that would indicate that anyone exited the passenger

door.

        {¶27} As previously noted, Pierce’s trial testimony was significantly

different from the testimony of Trooper Sisco and Officer Stahl. However, his

testimony further placed him in control of the vehicle and its contents.          For

instance, he testified that he had clothes and tools of his in the vehicle and that he

knew that there were compact discs in the glove box because that was where he

kept them. He also knew the glove box contained the registration and insurance

documents for the vehicle and that he put his social security card in the glove box

for some unknown reason. Also, despite the fact that the vehicle was registered in

his wife’s name, he testified that he did not want it any more and that he took it to

Miguel’s home because he was going to sell it to Miguel’s aunt. Thus, Pierce’s

testimony demonstrated how expansive Pierce’s dominion and control over the

vehicle and its contents was.



                                        -13-
Case No. 11-09-05


       {¶28} Furthermore, not only did Pierce’s trial testimony differ from the

prior statements he made, his trial testimony also contained various

inconsistencies. For instance, Pierce testified that he called a friend to pull the

vehicle out of the ditch and that his friend had just arrived when Stahl appeared at

the scene. Nevertheless, he later testified that his friend told him that he would

pull Pierce’s vehicle out of the ditch when he was done at work and for Pierce to

go ahead and go home. In addition, Pierce testified in his direct examination that

he had one prior felony conviction for operating a motor vehicle while intoxicated.

However, during cross-examination, the prosecutor questioned Pierce about two

judgment entries of conviction, both for operating a motor vehicle while

intoxicated. Pierce maintained that they were from one incident, but the entries

demonstrated that they were two separate offenses that occurred two years apart

from one another. (See State’s Exhibits 5 & 6.)

       {¶29} Pierce also admitted that he was employed as a certified nurse’s

assistant, was in college studying to be a licensed practical nurse, hoped to one day

be a registered nurse, and that he would lose “all certification for everything” if he

was convicted of a drug offense. (Trial Trans. p. 161.) Thus, he had a motive to

fabricate his testimony in order to avoid a drug conviction.

       {¶30} Apparently, the jury did not find the bulk of Pierce’s testimony

credible. We cannot find that the jury clearly lost its way in this regard. Not only



                                        -14-
Case No. 11-09-05


did the majority of his testimony directly conflict with the testimony of Trooper

Sisco and Officer Stahl, the polygraph examination showed that he was deceptive

in his responses to Trooper Bionci’s questions. He also had a motive to fabricate

his testimony as he stood to lose his professional certification, possibly his

employment, and his hopes of one day becoming a licensed practical nurse and

later a registered nurse.

       {¶31} In short, the more credible testimony placed Pierce as the driver and

sole occupant of that vehicle when it became disabled, which would have placed

him in close proximity to readily available cocaine. Further, his own testimony

illustrated his dominion and control over the vehicle and his knowledge of the

contents of that vehicle, particularly the glove box. Thus, a reasonable inference

could be made that he knew the crack pipe and cocaine inside it were also in the

glove box of that vehicle. Given all of the testimony, we cannot find that the jury

clearly lost its way and created a manifest miscarriage of justice by rendering a

verdict that was against the manifest weight of the evidence. Accordingly, the

second assignment of error is overruled.

                            Third Assignment of Error

       {¶32} Pierce’s final assignment of error concerns the performance of his

trial counsel. Specifically, Pierce asserts that his trial counsel was ineffective by

failing to file a motion to suppress the search of his vehicle. In support, he



                                        -15-
Case No. 11-09-05


contends that the search was non-consensual, no evidence was provided that it was

conducted pursuant to any policy of the highway patrol, and that any policy

authorizing an inventory search for any disabled vehicle is unreasonable in

violation of the Fourth Amendment.

       {¶33} Our review of these issues begins by noting that attorneys licensed

by the State of Ohio are presumed to provide competent representation. State v.

Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective

assistance of counsel claim requires proof that trial counsel’s performance fell

below objective standards of reasonable representation and that the defendant was

prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373, paragraph two of the syllabus. As to the first prong of the test, courts are to

afford a high level of deference to the performance of trial counsel. Bradley, 42

Ohio St.3d at 142, 538 N.E.2d 373. To show that a defendant has been prejudiced

by counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, but for counsel’s errors, the outcome at trial would

have been different.     Id. at paragraph three of the syllabus.       “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. Id. at 142.

       {¶34} The United States Supreme Court has held that the “failure to file a

suppression motion does not constitute per se ineffective assistance of counsel.”



                                       -16-
Case No. 11-09-05


Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, cited in State

v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448. There must

also be a reasonable probability that the motion will be successful. See State v.

Robinson (1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077; State v. Ligon , 3rd

Dist. No. 4-2000-25, 2001-Ohio-2231.          Thus, this Court’s determination of

whether counsel for Pierce was ineffective relies upon whether there was a

reasonable probability that a motion to suppress in this case would have been

successful.

       {¶35} The Fourth Amendment provides: “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.”        The crux of the Fourth

Amendment is the reasonableness of a search. See Cady v. Dombrowski (1973),

413 U.S. 433, 439, 93 S.Ct. 2523.

       {¶36} The United States Supreme Court has noted that “[i]nventory

searches are now a well-defined exception to the warrant requirement of the

Fourth Amendment.” Colorado v. Bertine (1987), 479 U.S. 367, 371, 107 S.Ct.

738, citing Illinois v. Lafayette (1983), 462 U.S. 640, 643, 103 S.Ct. 2605; South

Dakota v. Opperman (1976), 428 U.S. 364, 367-376, 96 S.Ct. 3092.                 In



                                       -17-
Case No. 11-09-05


Opperman, the Court, in discussing the administrative inventory of a vehicle,

stated:

          In the interests of public safety and as part of what the Court
          has called ‘community caretaking functions,’ automobiles are
          frequently taken into police custody. Vehicle accidents present
          one such occasion. To permit the uninterrupted flow of traffic
          and in some circumstances to preserve evidence, disabled or
          damaged vehicles will often be removed from the highways or
          streets at the behest of police engaged solely in caretaking and
          traffic-control activities. Police will also frequently remove and
          impound automobiles which violate parking ordinances and
          which thereby jeopardize both the public safety and the efficient
          movement of vehicular traffic. The authority of police to seize
          and remove from the streets vehicles impeding traffic or
          threatening public safety and convenience is beyond challenge.”
          (Citations and footnote omitted.)

Opperman, 428 U.S. at 368-369, 96 S.Ct. at 3097. The Court noted that the

purpose of the inventory also protects an owner’s property, insures against claims

of lost, stolen, or vandalized property, and guards the police from danger. Id.

However, in making a determination whether an administrative inventory was

reasonable, the Court has repeatedly relied upon whether the law enforcement

official was acting in accordance with established policy and procedure. See

Bertine, supra; Lafayette, supra; Opperman, supra.

          {¶37} At trial, Officer Stahl testified that the location of Pierce’s vehicle

was a hazard because it was dark outside, the vehicle was not illuminated in any

way, and the left rear corner of the vehicle was on the roadway. In addition,

Pierce testified that he called a friend to assist him in towing the vehicle because


                                          -18-
Case No. 11-09-05


he “didn’t want nobody to hit it.” (Trial Trans. p. 142.) He further stated that “I

didn’t want another car to come by, because they drive by there kind of fast.

Somebody might not have saw it. They could have hit that car[.]” (id. at 143.)

Trooper Sisco testified that he performed an administrative inventory search on

Pierce’s vehicle after Pierce stated that the driver from R&O Towing, who was at

the scene, could tow it and after Pierce refused to return to the scene.

       {¶38} Given these circumstances, the vehicle’s location created a threat to

public safety. Thus, the trooper, in exercising his community care-taking function,

made a reasonable decision that the vehicle needed to be towed to a safe location.

Further, when Pierce refused to return to the vehicle to handle this matter and told

the trooper to have the tow truck driver tow it, he placed the responsibility of the

vehicle with the trooper. Thus, the issues attendant to an inventory search, i.e. to

protect an owner’s property, to insure against claims of lost, stolen, or vandalized

property, and to guard the police from danger, were implicated.

       {¶39} Nevertheless, Pierce maintains that there was no evidence of the

Ohio State Highway Patrol’s policy on administrative inventories in order to

determine whether Officer Sisco adhered to any such policy or if the inventory

was merely a pre-text to search the vehicle for contraband. The only evidence in

the record explaining the inventory came from Trooper Sisco, who stated:

       The administrative inventory is an itemized document showing
       the vehicle, who was driving, the vehicle owner’s information


                                         -19-
Case No. 11-09-05


       and all the items that are located in the vehicle where they’re
       located at. We do that for two reasons. One, it documents all
       the stuff that’s in there. It protects the person whose vehicle it
       is, it also protects the towing service in case something would
       come up missing.

(Trial Trans. p. 81.)

       {¶40} Clearly, at trial, the State was not focused on the policy and

protocols for administrative inventories as this was not a suppression hearing.

Thus, we are limited to this evidence.         However, he used the term “we” in

explaining why administrative inventories are performed.          He also was very

specific in what had to be contained within the inventory document, and he

detailed for the jury how he conducted the inventory search. This testimony

implies that Trooper Sisco was acting in accordance with departmental

requirements, which could have been further delineated if an issue had been

raised. Further, the Ohio State Highway Patrol, a state-run agency, handles a

significant amount of cases involving vehicles whether the vehicles are involved

in an accident, disabled, or part of a traffic offense. Thus, it seems implausible

that OSHP would not have a standardized policy for inventory searches in effect.

       {¶41} For these reasons, we cannot find that there was a reasonable

probability of success on a motion to suppress if trial counsel had filed one.

Therefore, we do not find that trial counsel was ineffective for failing to do so, and

the third assignment of error is overruled.



                                        -20-
Case No. 11-09-05


      {¶42} Based on the foregoing, we affirm the judgment of the Common

Pleas Court of Paulding County, Ohio.

                                                      Judgment Affirmed

WILLAMOWSKI, P.J., concurs in Judgment Only.
ROGERS, J., concurs.
/jlr




.




                                        -21-
