[Cite as State v. Hughes, 2013-Ohio-459.]


                                       COURT OF APPEALS
                                    MORROW COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                  :       Hon. William B. Hoffman, J.
                                            :       Hon. Sheila G. Farmer, J.
-vs-                                        :
                                            :
JOSEPH Q. HUGHES                            :       Case No. 12CA0005
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2008CR208



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   February 8, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

TOM C. ELKIN                                        SAMUEL H. SHAMANSKY
60 East High Street                                 DONALD L. REGENSBURGER
Mount Gilead, OH 43338                              523 South Third Street
                                                    Columbus, OH 43215
Morrow County, Case No. 12CA0005                                                          2

Farmer, J.

       {¶1}    On December 5, 2008, the Morrow County Grand Jury indicted appellant,

Joseph Hughes, on three counts of theft in violation of R.C. 2913.02, one count of theft

in office in violation of R.C. 2921.41, three counts of tampering with evidence in violation

of R.C. 2911.12, and four counts of receiving stolen property in violation of R.C.

2913.51.      Said charges arose from the theft of numerous items including air

conditioners belonging to Morrow County. Appellant was a patrolman with the Mount

Gilead Police Department.

       {¶2}    On October 15, 2009, appellant filed a motion to suppress, claiming an

unlawful search of his residence. By journal entry filed April 7, 2011, the trial court

denied in part and granted in part the motion, finding any seized evidence pertaining to

LED lights was improper.

       {¶3}    A jury trial commenced on November 21, 2011. The jury found appellant

guilty of the theft counts, the theft in office count, two of the tampering with evidence

counts, and three of the receiving stolen property counts. By journal entry filed January

25, 2012, the trial court sentenced appellant to an aggregate term of two years in

prison.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶5}    "THE TRIAL COURT'S ADMISSION OF EVIDENCE PROCURED AS A

DIRECT RESULT OF THE UNLAWFUL SEARCH OF APPELLANT'S HOME

VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND
Morrow County, Case No. 12CA0005                                                              3


SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO

CONSTITUTION."

                                               II

       {¶6}   "TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ADMISSIBILITY OF

STATE'S EVIDENCE AND PRESERVE THE ISSUE FOR APPEAL CONSTITUTES

INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS IN VIOLATION OF

APPELLANT'S RIGHTS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO

CONSTITUTION."

                                               I

       {¶7}   Appellant claims the trial court erred denying his motion to suppress in

part. We disagree.

       {¶8}   There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist. 1993). 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. State

v. Williams, 86 Ohio App.3d 37 (4th Dist. 1993). Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly
Morrow County, Case No. 12CA0005                                                        4


identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the 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. Curry, 95 Ohio App.3d 93 (8th Dist. 1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

      {¶9}   Appellant rented a farmhouse owned by Walter Berg. T. at 34. Mr. Berg

had appellant's permission to enter the basement and purge the well to flush the water

lines as needed. T. at 42-43. On July 5, 2008, Mr. Berg entered the basement and

observed several air conditioners. T. at 45-46. Shortly thereafter, Mr. Berg read a

newspaper article about stolen air conditioners. T. at 48. Mr. Berg returned to the

basement, repurged the well, photographed the air conditioners, and contacted the

police. T. at 49, 51. After the air conditioners were identified in the photographs as the

stolen air conditioners, the police obtained and executed a search warrant and

discovered the stolen property. T. at 15, 98. Additional search warrants followed which

turned up more stolen property. T. at 118, 138-139, 167. The police did not become

involved with the case until after Mr. Berg had taken the photographs. T. at 31-32, 58-

59.

      {¶10} Appellant argues the issuance of the first search warrant was based on an

illegal and warrantless search of his residence by Mr. Berg. Appellant argues the trial
Morrow County, Case No. 12CA0005                                                     5


court erred in finding Mr. Berg "was a private citizen operating under no color of

authority of governmental action." See, Judgment Entry filed April 7, 2011. As stated

by the Supreme Court of Ohio in State v. Morris, 42 Ohio St.2d 307, 316 (1975), "Fourth

Amendment protection against unlawful searches and seizures applies only to action by

government authorities or their agents." The Morris court then explained:



              The unlawful acts of private individuals in conducting illegal

      searches and seizures are not subject to constitutional proscription.

      Where, however, a warrantless search is not an exclusively private

      undertaking but involves some degree of police participation, then courts

      must look to the facts surrounding the search in order to determine

      whether it is an unreasonable police search or an excepted private search.



      {¶11} We find Mr. Berg's testimony, substantiated by Lieutenant Chad McGinty,

established there was no police involvement or action until after the photographs had

been taken.    Mr. Berg, as a private individual on his own accord, re-entered the

basement and took photographs of what he believed to be stolen air conditioners. He

then went to the police. Armed with the photographs, Lieutenant McGinty was able to

have the stolen air conditioners identified which led to the procurement of a search

warrant.

      {¶12} Upon review, we find the trial court did not err in denying appellant's

motion to suppress.

      {¶13} Assignment of Error I is denied.
Morrow County, Case No. 12CA0005                                                           6


                                             II

      {¶14} Appellant claims his trial counsel was ineffective. We disagree.

      {¶15} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different.



      {¶16} Appellant argues his trial counsel was deficient in failing to object at trial to

the admission of the "tainted" evidence obtained via Mr. Berg's unconstitutional search.

Although defense counsel did not object, the matter was preserved for appeal because

of the filing of the motion to suppress. The motion challenged the issuance of the

search warrant pursuant to Mr. Berg's actions which is the same argument advanced in

this assignment of error. We do not find any deficiency by trial counsel.
Morrow County, Case No. 12CA0005                                                  7


      {¶17} Assignment of Error II is denied.

      {¶18} The judgment of the Court of Common Pleas of Morrow County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.




                                           s/ Sheila G. Farmer________________



                                           s/ Patricia A. Delaney______________



                                           _s/ William B. Hoffman_____________

                                                       JUDGES

SGF/sg 108
[Cite as State v. Hughes, 2013-Ohio-459.]


                  IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :
                                              :
        Plaintiff-Appellant                   :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
JOSEPH Q. HUGHES                              :
                                              :
        Defendant-Appellee                    :        CASE NO. 12CA0005




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Morrow County, Ohio is affirmed. Costs to

appellant.




                                              s/ Sheila G. Farmer________________



                                              s/ Patricia A. Delaney______________



                                              _s/ William B. Hoffman_____________

                                                          JUDGES
