[Cite as State v. Smith, 2011-Ohio-6872.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO,                                  Case No. 2011CA00140

        Appellee,                              JUDGES:
                                               Hon. William B. Hoffman, P.J.
v.                                             Hon. John W. Wise, J.
                                               Hon. Julie A. Edwards, J.

SMITH,

        Appellant.                             OPINION


CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2011CR0489

JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 30, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               MATTHEW PETIT
PROSECUTING ATTORNEY,                          116 Cleveland Ave. North, Suite 808
STARK COUNTY, OHIO                             Canton, Ohio 44702

By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413


Hoffman, P.J.
        (¶1)   Defendant-appellant Daymion Smith appeals his June 1, 2011 conviction

entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                          STATEMENT OF THE FACTS AND CASE

        (¶2)   On March 29, 2011, Parole Officer Rick Polinori received an anonymous

phone tip regarding a parolee absconder, Toriano Howard. The tip stated Howard was

living at an apartment complex where he was engaged in selling drugs. The caller

further alleged Howard was in possession of a firearm.

        (¶3)   Polinori testified he then personally verified Howard was leasing the

apartment at #11, 139 17th Street N.W., Canton, Ohio. The terms of Howard’s post-

release control provided his person, car and home were subject to a warrantless search

at any time. Polinori then contacted the Canton Police Department for assistance in

apprehending Howard on the parole violation at the apartment.

        (¶4)   Polinori and members of the Canton Police Department proceeded to the

apartment, where they surrounded the building and announced their presence.

Appellant answered the door to the apartment, and told the officers he lived in the

apartment but was unsure whether anyone else was inside. As a result, the officers

performed a protective sweep of the premises, searching a bedroom and finding a

substance suspected to be cocaine in plain view, along with cash and a scale. The

bedroom was later determined to be Appellant’s. The officers proceeded to secure the

property and to obtain a search warrant.

        (¶5)   Subsequent to the search, Appellant was charged with one count of

trafficking in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(f), a first degree felony;
trafficking in cocaine, in violation of R.C. 2925.03(A)(2)(C)(4)(d), a third degree felony;

possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(e), a first degree felony;

possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(b), a fourth degree felony.

       (¶6)   On May 25, 2011, Appellant filed a motion to suppress the evidence

seized incident to the search of the premises. The trial court overruled the motion to

suppress. Appellant then entered a plea of no contest to the charges. The trial court

accepted the plea, convicted and sentenced Appellant to three years incarceration on

the first degree trafficking and possession charges, three years on the third degree

trafficking offense, and six months on the fourth degree possession charge.

       (¶7)   Appellant now appeals, assigning as error:

       (¶8)   “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION TO SUPPRESS EVIDENCE THE STATE OBTAINED IN VIOLATION OF THE

APPELLANT’S FOURTH AMENDMENT RIGHTS.”

       (¶9)   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, 75 Ohio St.3d 148, 1996–Ohio–134, 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 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.

       (¶10) There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio

App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See State v. Williams

(1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue the trial

court has incorrectly decided the ultimate or final issues raised in a motion to suppress.

When reviewing this type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in any given case. State v. Claytor, (1993) 85 Ohio App.3d 623, 620

N.E.2d 906 and State v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172.

       (¶11) “[A] probation officer may search a probationer's home without a warrant

and upon less than probable cause.” State v. Cowans, 87 Ohio St.3d 68, 76, 1999–

Ohio–250, 717 N.E.2d 298, citing Griffin v. Wisconsin (1987), 483 U.S. 868, 877–878,

107 S .Ct. 3164, 97 L.Ed.2d 709. Ohio law permits a probation officer to conduct a

warrantless search of a probationer's person or home if an officer has “reasonable

grounds” to believe the probationer failed to abide by the law or by the terms of

probation. See State v. Hendricks, Cuyahoga App. No. 92213, 2009–Ohio–5556. To
establish “reasonable grounds,” an officer need not possess the same level of certainty

that is necessary to establish “probable cause.” Instead, the officer's information need

only establish the “likelihood” that contraband will be found in a probationer's home.

State v. Howell (Nov. 17, 1998), Jackson App. No. 97CA824, 1998 WL 807800; Helton

v. Ohio Adult Parole Auth. (June 26, 2001), Franklin App. No. 00AP–1108, 2001 WL

709946.

      (¶12) Here, the officers acted on a tip to Parole Officer Polinori relative to a

parolee engaging in the sale of illegal drugs. Appellant was a parolee absconder and

had consented to a search of his residence. Polinori confirmed the parolee’s name was

on the lease, and the parolee was living at the apartment. Accordingly, we find the

officers legally entered the apartment without a warrant. When Appellant opened the

door and informed the officers he was uncertain as to whether anyone else was in the

apartment, the officers properly performed a protective sweep of the premises to

ascertain if Appellant was present, and the officers observed cocaine in plain view

during the lawful search. Maryland v. Buie (1990), 494 U.S. 325, 110 S.Ct. 1093.

      (¶13) Accordingly, we find the trial court did not error in denying Appellant’s

motion to suppress the evidence herein.

      (¶14) Appellant’s conviction in the Stark County Court of Common Pleas is

affirmed.

                                                                    Judgment affirmed.

Wise, J. and Edwards, J. concur.
                         HON. JULIE A. EDWARDS
            IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                       FIFTH APPELLATE DISTRICT


STATE OF OHIO,                            Case No. 2011CA00140

      Appellee,                           JUDGES:
                                          Hon. William B. Hoffman, P.J.
v.                                        Hon. John W. Wise, J.
                                          Hon. Julie A. Edwards, J.
SMITH,

      Appellant.                          JUDGMENT ENTRY


      For the reasons stated in our accompanying Opinion, Appellant’s conviction in

the Stark County Court of Common Pleas is affirmed. Costs to Appellant.


                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
