[Cite as State v. Curbow, 2013-Ohio-3378.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :      Appellate Case No. 25516
          Plaintiff-Appellee                        :
                                                    :      Trial Court Case No. 12-CR-444/1
 v.                                                 :
                                                    :
 JERRY W. CURBOW, II                                :
                                                    :      (Criminal Appeal from
          Defendant-Appellant                :      (Common Pleas Court)
                                                    :
                                               ...........

                                             OPINION

                            Rendered on the 2nd day of August, 2013.

                                             ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

WILLIAM T. DALY, Atty. Reg. #0069300, 70 Birch Alley, Suite 240, Dayton, Ohio 45440
     Attorney for Defendant-Appellant
                                           .............

HALL, J.,

        {¶ 1}    Jerry Curbow appeals from his conviction and sentence following a no-contest

plea to one count of aggravated drug possession (methamphetamine) in violation of R.C.

2925.11(A), a second-degree felony.

        {¶ 2}    Curbow’s appointed appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any
                                                                                                 2


non-frivolous issues for our review. Counsel did identify one potential assignment of error

concerning the trial court’s denial of a suppression motion. Counsel determined, however, that

a challenge to the ruling would be frivolous. Counsel also found no non-frivolous appellate

arguments with regard to Curbow’s plea or the sentence he received. By entry, we informed

Curbow of the Anders brief and gave him sixty days to file a pro se brief. He failed to do so.

       {¶ 3}    The record reflects that Curbow entered his plea as part of a negotiated

agreement. Curbow and the State reached the agreement after the trial court overruled a

motion to suppress drug evidence, which was found during a search of his girlfriend’s

residence. In exchange for the plea, the State agreed to dismiss two other charges, illegal

manufacture of methamphetamine and possession of chemicals for the manufacture of

methamphetamine. Curbow and the State also agreed to a three-year prison sentence. The trial

court accepted the plea and made a finding of guilt. The matter proceeded to sentencing, where

the trial court imposed the agreed sentence. This appeal followed.

                                             FACTS

       {¶ 4}    Evidence presented during a September 6, 2012 suppression hearing established

that Michael Walker was a detective with the Kettering police department on November 25,

2011. He was assigned to an alleged sexual assault involving victim Molly Hammonds, who was

Curbow’s co-defendant in the proceedings below. She was being transported to Kettering

Medical Center (“KMC”). Walker was familiar with Hammonds from a burglary complaint at her

home earlier in the summer. He did not believe she was exhibiting overt signs of being under the

influence of drugs or alcohol. Hammonds told Walker she believed she had been drugged and

sexually assaulted by Curbow, her boyfriend, who was an overnight guest at her house. Walker
                                                                                                 3


told Hammonds he wanted to collect items from her home, including bedding and a Circle-K cup

that she thought might contain a drugged beverage. Hammonds gave oral consent to search her

home and signed a consent-to-search form. She was cooperative, and Walker made no threats or

promises.

       {¶ 5}    Walker proceeded to Hammonds’ house with other officers. Curbow was still

there. Walker informed him they were there with Hammonds’ consent to search the home.

Walker asked Curbow if he would go to the police station to talk about Hammonds’ allegations.

He agreed. Walker then was informed that other officers had discovered chemicals and possible

methamphetamine in a “little attic crawl space” in the master attic/bedroom. Walker returned to

the home to meet with an agent from the Ohio Bureau of Criminal Investigation (“BCI”) who had

been called to the scene. When Walker returned to the hospital to follow up with Hammonds, she

asked if they had found the meth lab.

       {¶ 6}    For her part, Hammonds testified that she called 911 after sitting on her couch

and thinking that she had been drugged and that she was dying. She was taken to KMC, where

she was put in a locked psychiatric unit. She denied knowing what the detective told her at the

hospital. She agreed, however, that she did report a sexual assault. She denied that the detective

asked her about any prescription medications she was taking. She testified that she was taking

medication for anxiety, major depression, and weight loss.

       {¶ 7}    Although Hammonds was uncertain when she left KMC, she recalled walking a

few miles home and going to sleep. The next day, she went to Miami Valley Hospital and stayed

for three days for major-depression disorder. She testified that she did not remember detective

Walker showing her the consent-to-search form. She acknowledged her signature on the form but
                                                                                                                                             4


did not remember signing it. She denied detectives telling her they wanted to search her home. At

some points in her testimony, she said she did not recall. Other times, she denied parts of

Walker’s testimony. At one point, Hammonds was asked, “Did you not want them to go search

your home?” She responded, “I didn’t have a -- I didn’t know – I don’t know.” After Walker

returned to the hospital, she denied asking him whether they had found the meth lab.

         {¶ 8}       In its ruling, the trial court found Walker’s testimony more credible than

Hammonds’ testimony. It reasoned:

                    * * * Walker credibly testified that Hammonds was upset but coherent and

         cooperative when she verbally consented to the search of her residence. He further

         testified that he thoroughly explained the consent to search form that she signed.

         Walker stated that she understood the form and was not coerced into signing it.

         Upon reviewing the testimony presented, the Court finds Walker’s testimony to be

         more credible than Hammonds[‘].

(Doc. #40 at 3).1

                                                            ANALYSIS

         {¶ 9}       We agree with appointed appellate counsel’s assessment that a challenge to the

trial court’s suppression ruling would be frivolous. One established exception to the

search-warrant requirement is a search conducted with consent. Schneckloth v. Bustamonte, 412

U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Dennis, 182 Ohio App.3d 674,

2009-Ohio-2173, 914 N.E.2d 1071, ¶ 50 (2d Dist.). The State must establish, by clear and

           1
             The trial court also determined that Curbow was not a resident of Hammonds’ home and lacked standing to challenge the
 search. We cannot locate where that issue was raised, either before or during the suppression hearing. For purposes of our analysis under
 Anders, we will assume Curbow can challenge the search.
                                                                                                       5


convincing evidence, that consent to a search was given freely and voluntarily. State v. Posey, 40

Ohio St.3d 420, 427, 534 N.E.2d 61 (1988); State v. Connors-Camp, 2d Dist. Montgomery No.

20850, 2006-Ohio-409, ¶ 29. Permission to search need not come from a defendant. It may be

obtained from a third party with common authority over the premises to be inspected. U.S. v.

Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1973).

       {¶ 10} When resolving a suppression motion, a trial court “assumes the role of the trier

of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility

of the witnesses.” (Citation omitted.) State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d

498 (2d Dist.1994). “Accordingly, in our review, we are bound to accept the trial court’s findings

of fact if they are supported by competent, credible evidence. Accepting those facts as true, we

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

conclusion, whether they meet the applicable legal standard.” Id.

       {¶ 11} In the present case, we carefully have reviewed the suppression-hearing transcript

and the trial court’s decision. The only reasonable conclusion is that the trial court’s decision is

factually and legally correct. Hammonds voluntarily consented to a search of her home. Any

argument to the contrary lacks arguable merit and would be frivolous.               Finally, we have

performed our duty under Anders to conduct an independent review of the record and have found

no potential assignments of error with arguable merit. Accordingly, the trial court’s judgment is

affirmed.

                                                      .............



DONOVAN and FROELICH, JJ., concur.
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Copies mailed to:

Mathias H. Heck
Carley J. Ingram
William T. Daly
Hon. Barbara P. Gorman
