[Cite as State v. Eli, 2017-Ohio-7667.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. John W. Wise, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
MARTEZ ELI                                    :       Case No. 17-CA-1
                                              :
        Defendant-Appellant                   :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 15 CR 828




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     September 15, 2017




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

PAULA SAWYERS                                         STEPHEN T. WOLFE
20 South Second Street,                               1350 West 5th Avenue
Newark, OH 43055                                      Suite 124
                                                      Columbus, OH 43212
Licking County, Case No. 17-CA-1                                                          2

Wise, Earle, J.

       {¶1}   Defendant-Appellant, Martez Eli appeals the October 25, 2016 judgment

entry denying his motion to suppress and the December 13, 2016 judgment of conviction

and sentence of the Court of Common Pleas of Licking County, Ohio. Plaintiff-Appellee

is the state of Ohio.

                             FACTS AND PROCEDURAL HISTORY

       {¶2}   On October 15, 2015, Officer Lisa Walls of the Adult Parole Authority, went

to 75 Allen Street in Newark to attempt a field contact with Eric Osler, a parolee under her

supervision. She was accompanied by Parole Officers Greer and Wells. Walls had

information indicating Osler was in possession of a firearm and was dealing drugs. As a

person under the supervision of the Adult Parole Authority, Osler is subject to warrantless

searches of his person, home, and vehicle pursuant to R.C. 2951.02 and/or R.C.

2967.131. He further was to have no contact with his son, defendant-appellant Martez Eli.

Osler signed conditions of supervision outlining his understanding of these conditions.

       {¶3}    On arrival at Osler’s residence, the officers were admitted by the

homeowner, Tisha Aldridge. They found Osler in his bedroom, lying in bed. The officers

placed Osler in custody, cleared the living room and had Osler sit on the sofa. Asked

where the firearm was, Osler initially denied he had one. He further denied there was

anyone in the house besides himself, Aldridge and her 17-year-old son. He later admitted

two of his sons, including Eli, were upstairs with one of their girlfriends.

       {¶4}   Officers had the three come downstairs and sit in the living room. They were

not handcuffed, nor were they under arrest. The officers were familiar with Eli and his
Licking County, Case No. 17-CA-1                                                             3


brother and aware that they are known to possess firearms. Officers therefore wanted to

keep the men visible during the search for officer safety.

       {¶5}       Osler finally admitted he possessed a firearm and that it was in the bed

where officers had found him. Officers seized the fully loaded weapon. Additional

searching of Osler’s room yielded methamphetamine, ammunition of different calibers,

burner phones and drug paraphernalia. The officers requested assistance from the

Central Ohio Drug Enforcement Task Force (CODE), as is their procedure when they find

drugs or firearms.

       {¶6}       Detective Kyle Boerstler of the Licking County Sherriff’s Office and assigned

to CODE, arrived at the scene. He was assisted by Officer Fumi and Detective Kimble of

the Newark Police Department who were also called to the scene. Aldridge gave Boerstler

consent to search her home. Before searching Boerstler asked those seated in the living

room who lived in the home. Eli stated he lived there “from time to time.” Boerstler thus

asked is Eli had any belongings in the home, and Eli denied having any possessions in

the home. Boerstler asked those in the living room to remain there during the search for

officer safety.

       {¶7}       Officer Fumi began the search in an upstairs bedroom where he found a

black backpack. Inside the backpack was a baggy containing 254 oxycodone pills, a

second baggy containing heroin, and some marijuana. He alerted Boerstler, who took the

backpack and its contents downstairs.

       {¶8}       Boerstler asked those gathered in the living room who owned the backpack.

Eli stated it belonged to him.
Licking County, Case No. 17-CA-1                                                         4


       {¶9}   A more through search of the backpack produced a Greyhound Bus ticket

with Eli listed as the passenger, and dated September 21, 2015, $94.00 in cash, a piece

of mail addressed to Eli, a photo of Eli and his girlfriend, small jeweler bags commonly

used to package drugs for sale, and a wallet containing Eli’s expired driver’s license. Eli

was not arrested following the search and discovery of the drugs in his backpack.

       {¶10} On July 21, 2016, the Licking County Grand Jury returned an indictment

charging Eli with one count of aggravated possession of oxycodone in an amount equal

to or exceeding five times the bulk amount, but less than fifty times the bulk amount in

violation of R.C. 2925.11(A)(C)(1)(c), a felony of the second degree, and possession of

heroin in violation of R.C. 2925.11(A)(C)(6)(a), a felony of the fifth degree.

       {¶11} On August 26, 2016, Eli filed two motions to suppress. One to suppress his

statements for lack of Miranda warnings, and a second to suppress the drugs discovered

in the backpack. On October 11, 2016, a hearing was held on the matter. The trial court

denied Eli’s motions by judgment entry on October 25, 2016. The court found that Eli

lacked standing to challenge the search of the backpack because he abandoned the

backpack by denying ownership of anything in the home. The court found Eli could not

therefore retain a reasonable expectation of privacy in the same.

       {¶12} The trial court further found that Eli was not in custody and thus Miranda

warnings were not required. The court explained that while Eli was asked to remain in the

living room during the search, he was not handcuffed and there was no evidence

presented at the hearing to indicate Eli believed he was under arrest or detained in any

manner. Finally, the trial court noted that after the search was concluded, Eli was free to

leave and did so.
Licking County, Case No. 17-CA-1                                                    5


      {¶13} The matter proceeded to a jury trial on December 12, 2016. The jury

convicted Eli as charged. He was subsequently sentenced to a mandatory four years

incarceration for aggravated possession of oxycodone and nine months incarceration for

possession of heroin. Eli was ordered to serve the sentences concurrently.

      {¶14} Eli filed an appeal and the matter is now before this court for review.

Assignments of error are as follows:

                                               I

      {¶15} "THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS

SEARCH OF THE BACKPACK BY LAW ENFORCEMENT OFFICERS WAS JUSTIFIED

BECAUSE APPELLANT HAD VOLUNTARILY ABANDONED IT."

                                                    II

      {¶16} "THE TRIAL COURT ERRED IN FINDING THAT THE UNCOUNSELED

STATEMENTS OF APPELLANT WERE ADMISSIBLE BECAUSE HE WAS NOT

DETAINED."

                                              III

      {¶17} "THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE."

                                              IV

      {¶18} "THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUPPORT THE CONVICTIONS."

                                              V

      {¶19} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

FOR ACQUITTAL PURSUANT TO CRIM. R. 29."
Licking County, Case No. 17-CA-1                                                             6


                                                 I, II

       {¶20} We will address appellant's first and second assignments of error

simultaneously as both concern his detention and the search of property belonging to

him. In his first assignment of error, Eli contends the trial court incorrectly interpreted the

facts when it found he had abandoned the backpack and thus forfeited any reasonable

expectation of privacy. In his second assignment of error, Eli argues the trial court erred

when it determined he was not in custody for purposes of Miranda.

                                     STANDARD OF REVIEW

       {¶21} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



              "Appellate review of 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. In ruling on a motion to suppress, "the trial court

       assumes the role of trier of fact and is therefore in the best position to

       resolve factual questions and evaluate the credibility of witnesses." Id.,

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

       appeal, we "must accept the trial court's findings of fact if they are supported

       by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

       19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

       "independently determine as a matter of law, without deference to the

       conclusion of the trial court, whether the facts satisfy the applicable legal

       standard." Id.
Licking County, Case No. 17-CA-1                                                            7

       {¶22} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

                CUSTODY PURSUANT TO A VALID SEARCH AND MIRANDA

       {¶23} Eli argues that because he was not permitted to leave the house during

the search, he was detained and therefore entitled to Miranda warnings. We disagree.

       {¶24} First, Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966) provided:



               The prosecution may not use statements, whether exculpatory or

       inculpatory, stemming from custodial interrogation of the defendant unless

       it demonstrates the use of procedural safeguards effective to secure the

       privilege against self-incrimination. By custodial interrogation, we mean

       questioning initiated by law enforcement officers after a person has been

       taken into custody or otherwise deprived of his freedom of action in any

       significant way.



       {¶25} But “police are not required to administer Miranda warnings to everyone

whom they question.” State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997),

citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714, 719 (1977).

This is true when an individual is not in police custody, or is merely temporarily restrained.

       {¶26} The temporary restraint of a person, such as that required of those present

in a home during the execution of a search warrant, does not invoke the “full panoply of
Licking County, Case No. 17-CA-1                                                           8

Fourth Amendment protections * * * for no actual arrest has occurred.” State v. Schultz,

23 Ohio App.3d 130, 135, 491 N.E.2d 735 (1985), citing Florida v. Royer, 460 U.S. 491,

103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Temporary restraint of occupants during the

search of a home is justified by “substantial law enforcement interests” such as officer

safety, occupant safety and the orderly execution of the search, so as long as police have

an articulable basis for suspecting criminal activity. State v. Jester, 12th Dist. Butler No.

CA2010-10-264, 2012-Ohio-544 ¶ 18 citing Michigan v. Summers, 452, U.S. 692, 101

S.Ct. 2587, 69 L.Ed.2d 340 (1981).

        {¶27} The instant matter is factually similar to State v. Schultz 23 Ohio App.3d

130, 491 N.E.2d 735 (1985). In Schultz, defendant Schultz was an overnight guest in a

home that was searched for drugs pursuant to a warrant. Schultz was detained in the

home during the search. At some point, officers asked Schultz whether a coat belonged

to him, and Schultz replied that it did. Schultz was arrested after cocaine was found in the

coat.

        {¶28} On appeal, the Tenth District Court of Appeals held that police were not

required to administer Miranda warnings before they asked Schultz about the coat,

because he was only in an intermediate level of detention similar to an on-the-scene

investigation in a Terry stop. Schultz at 135, 491 N.E.2d 735, citing Terry v. Ohio, 391

U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). The court held Schultz’s detention

amounted to general on-scene questioning, like that described in Miranda as “a legitimate

and necessary part of the fact-finding process undertaken by the police at the scene of

the criminal activity.” Schultz at 135-136. The detention incident to the search was thus

not so custodial in nature as to require Miranda warnings. Id.
Licking County, Case No. 17-CA-1                                                         9


       {¶29} Likewise here, we find Eli’s detention while the officers executed the search

was reasonable. Officer Walls was familiar with Eli, his brother, and Osler, and was aware

that all three are known to possess firearms and thus presented officer safety concerns.

Supp. Hrg. at 14-15. Further, Eli was not in custody and therefore Miranda warnings were

not required. He was not handcuffed, nor told was he under arrest. Eli was in fact released

after officers completed the search of the home. Supp. Hrg. at 38.

                                 BACKPACK SEARCH

      {¶30} As for the search of the backpack, the Fourth Amendment to the United

States Constitution prohibits warrantless searches and seizures, rendering them per se

unreasonable unless an exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967). Here, the initial search of Osler, his bedroom, and common

areas was pursuant to Osler’s status as a parolee, and the Adult Parole Authority’s

statutory power to search the home of a parolee without a warrant. Responding assisting

law enforcement officers received the consent of the homeowner to search the entire

residence. Eli does not dispute the validity of the consent to search. When an individual

voluntarily consents to a search, no Fourth Amendment violation occurs. State v.

Carothers, 5th Dist. Tuscarawas No. 2015 AP 04 0017, 2015-Ohio-4569 ¶ 25, citing

United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).

      {¶31} Additionally, abandoned property is an exception to the warrant

requirement. Before the search began, Eli stated he had no belongings in the home. Eli

thereby abandoned the backpack. “A person who abandons property has no objectively

reasonable expectation of privacy in it. A warrantless search of abandoned property does

not violate the Fourth Amendment because any expectation of privacy is forfeited upon
Licking County, Case No. 17-CA-1                                                          10

abandonment.” State v. Gould, 131 Ohio St. 3d, 179, 2012-Ohio-71, 963 N.E.2d 136 ¶

37.

       {¶32} Accordingly, we overrule the first and second assignments of error

                                             III, IV, V

       {¶33} Eli’s final three assignments of error will be addressed together as all can

be resolved by examining the evidence presented at trial.

       {¶34} In his third and fourth assignments of error, Eli argues the evidence

presented by the state was insufficient to support his convictions and his convictions are

against the manifest weight of the evidence. In his fifth assignment of error, Eli argues the

trial court erred when it denied his Crim.R. 29 motion for acquittal. We disagree.

       {¶35} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine "whether in resolving conflicts in the

evidence, the jury 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. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
Licking County, Case No. 17-CA-1                                                        11


in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

       {¶36} Crim.R. 29 governs a motion for acquittal. Subsection (A) states the

following:

             The court on motion of a defendant or on its own motion, after the

       evidence on either side is closed, shall order the entry of a judgment of

       acquittal of one or more offenses charged in the indictment, information, or

       complaint, if the evidence is insufficient to sustain a conviction of such

       offense or offenses. The court may not reserve ruling on a motion for

       judgment of acquittal made at the close of the state's case.



       {¶37} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus: “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a reasonable

doubt.”

                                        THE CHARGES

       {¶38} Eli was charged with aggravated possession of oxycodone in an amount

equal to or exceeding five times the bulk amount, but less than fifty times the bulk amount

in violation of R.C. 2925.11(A)(C)(1)(c). To prove the charge the state was required to

produce evidence to show that Eli knowingly obtained, possessed, or used oxycodone in
Licking County, Case No. 17-CA-1                                                       12


an amount equal to or exceeding five times the bulk amount, but less than fifty times the

bulk amount.

       {¶39} Eli was further charged with possession of heroin in violation of

2925.11(A)(C)(6)(a). To prove this charge, the state was required to produce evidence to

show Eli knowingly obtained, possessed, or used heroin.

       {¶40} We note that Ohio law recognizes the concept of “constructive possession”

of illegal drugs. State v. Brunner, 5th Dist. Stark No. 2016CA00134, 2017-Ohio-2618 ¶

18 citing In re D.P., 9th Dist. Summit No. 24591, 2009-Ohio-4335, ¶ 7, and State v. Wolery

(1976), 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). The jury in this matter was

provided with a constructive possession instruction. T. at 140.

                                       THE EVIDENCE

       {¶41} At trial, the state presented evidence from Officer Fumi and Detective

Boerstler outlining the search of the residence, and the discovery of the backpack. After

first denying he had any possessions in the home, Eli claimed ownership of the backpack

after it was discovered by officers. The backpack contained the drugs as well as items

personal to Eli – his expired Ohio driver’s license, a bus ticket showing Eli as the

passenger and dated one month earlier, a piece of mail addressed to Eli, and a photo of

Eli and his girlfriend. T. at 92-94.

       {¶42} Before resting its case, the state read the jury stipulations agreed upon by

Eli and the state. Eli stipulated that the 254 pills found in the backpack were properly

tested and found to be oxycodone, and that the bulk amount of oxycodone is 15 pills. Eli

further stipulated that the white powder found in the backpack was properly tested and

found to be heroin. Eli rested without presenting any evidence.
Licking County, Case No. 17-CA-1                                                       13


       {¶43} Eli claimed ownership of the backpack. However, even if he had denied

ownership, the state could still rely on circumstantial evidence and constructive

possession to prove its case. Circumstantial evidence is sufficient to prove the essential

elements in a criminal case. State v. Willey, 5th Dist. Guernsey No. 98 CA 6, 1999 WL

3962 (Nov. 24, 1998) citing State v. Hopfer, 112 Ohio App.3d 521, 558, 679 N.E.2d 321

(1996). “Constructive possession exists when an individual knowingly exercises dominion

and control over an object, even though that object may not be within his immediate

physical possession. (State v. Wolery, 46 Ohio St.2d 316, 348 N.E.2d 351, explained and

followed.) ” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. The

backpack was found in a room Eli had occupied moments before, and contained items

indicating it belonged to Eli.
Licking County, Case No. 17-CA-1                                                          14


       {¶44} Accordingly, we find the state presented ample evidence to survive a

Crim.R. 29 motion, and to support Eli’s convictions. We further find the evidence does not

weigh heavily against Eli's conviction. The third, fourth, and fifth assignments of error are

therefore overruled.


By Wise, Earle, J.

Gwin, P.J. and

Wise, John, J. concur.




EEW/sg 807
