[Cite as State v. LaPrairie, 2011-Ohio-2184.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 2010CA-0009

vs.                                             :    T.C. CASE NO. 2009-CR-211

BRIAN LAPRAIRIE                                  :   (Criminal Appeal from
                                                      Common Pleas Court)
        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                       Rendered on the 6th day of May, 2011.

                                       . . . . . . . . .

Stephen K. Haller, Pros. Attorney; Elizabeth A. Ellis, Asst. Pros.
Attorney, Atty. Reg. No.0074332, 61 Greene Street, Suite 200,
Xenia, OH 45385
     Attorneys for Plaintiff-Appellee

Thomas M. Kollin, Atty. Reg. No.0066964, 2661 Commons Blvd., Suite
214, Beavercreek, OH 45431
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Brian LaPrairie, appeals from his convictions

and sentences for involuntary manslaughter, child endangering,

having weapons under disability, and trafficking in marijuana.

        {¶ 2} On December 27, 2008, at approximately 10:00 a.m.,
                                                                     2

Fairborn police officers Hiles and Knapp were dispatched to

Defendant’s residence at 233 Pat Lane in Fairborn on a report that

a two year old child was not breathing.         Upon arriving, both

officers entered the residence and found the child, Juliana Berry,

unconscious and lying on a couch in the living room.    Both officers

immediately began emergency medical procedures on the child in

an attempt to revive her.    Defendant was present and in a frantic

state.   After paramedics arrived, both officers carried the child

outside to the waiting ambulance.    The child was then transported

to a hospital.

     {¶ 3} After the ambulance left for the hospital, Officers

Hiles, Knapp, and another officer who had arrived, Holcomb,

reentered Defendant’s residence to talk to Defendant.        Officers

Knapp and Holcomb spoke with Defendant, who said he and the child

had got up at 9:00 a.m., ate a bowl of cereal, and then told Defendant

that she vomited.   While Defendant was cleaning that up, he noticed

the child was on the floor, shaking.      After Defendant attempted

unsuccessfully to get the child to respond, he called 911.

Defendant reported that the child had a seizure two days earlier,

on Christmas, was fine after about one minute, but that she had

hit her head on the toilet when she vomited, and that he caused

bruises to the child’s chest and stomach while Defendant was trying

to wake her up.
                                                                   3

     {¶ 4} The officers became suspicious about the circumstances

surrounding the child’s injuries and called a supervisor who

advised them to seek a consent to search from Defendant.      While

Officers Hiles and Holcomb continued talking with Defendant,

Officer Knapp obtained a consent to search form from his cruiser

and then reentered the residence.    After reviewing the form and

being told by police that he did not have to consent to a search

of his home, Defendant signed the written consent to search form.

 Police searched Defendant’s home and discovered a loaded handgun,

marijuana, digital scales, and drug paraphernalia.

     {¶ 5} The medical staff at the hospital determined that Juliana

Berry suffered numerous inflicted injuries, including a skull

fracture with swelling of the brain, retinal hemorrhages, a

lacerated liver, contusions of the chest and extremities, broken

ribs, and injuries to her abdomen, which were the result of severe

trauma similar to a car accident and not the result of falls or

playground accidents.   Juliana Berry died on December 29, 2008

from injuries resulting from blunt force trauma to the head.

     {¶ 6} Defendant was indicted on two counts of felonious

assault, R.C. 2903.11(A)(1), one count of felony murder, R.C.

2903.02(B), one count of endangering children, R.C. 2919.22(B)(1),

one count of involuntary manslaughter, R.C. 2903.04(A), one count

of having weapons under a disability, R.C. 2923.13(A)(3), and one
                                                                         4

count of trafficking in marijuana, R.C. 2925.03(A)(1).          Defendant

filed a motion to suppress evidence, which the trial court denied.

 Pursuant to a negotiated plea agreement, Defendant entered pleas

of guilty to the involuntary manslaughter and endangering children

charges, and pleas of no contest to the weapons under disability

and trafficking in marijuana charges.           In exchange, the State

dismissed the felonious assault and felony murder charges.             The

trial court sentenced Defendant according to law to prison terms

totaling twenty-two years, of which ten years is mandatory time.

     {¶ 7} Defendant   timely   appealed   to    this   court   from   his

conviction and sentence.

     FIRST ASSIGNMENT OF ERROR

     {¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

IN FAILING TO FIND INVOLUNTARY MANSLAUGHTER, WITH PROXIMATE CAUSE

OF CHILD ENDANGERING AND THE SAME CHILD ENDANGERING ARE ALLIED

OFFENSES OF SIMILAR IMPORT AND THUS THE CONVICTIONS BE MERGED AT

SENTENCING.”

     {¶ 9} Counts Four and Five of the indictment, to which

Defendant pled guilty, state:

     {¶ 10} “COUNT IV: BRIAN H. LaPRAIRIE, from February 2008 through

December 27, 2008, in Greene County, Ohio, did recklessly abuse

Juliana Ameena Berry, a child under 18 years of age, contrary to

and in violation of Section 2919.22(B)(1) of the Ohio Revised Code,
                                                                    5

and the violation of this section resulted in serious physical

harm to Juliana Ameena Berry.     (Endangering Children, a felony

of the second degree.)

     {¶ 11} “COUNT V: BRIAN H. LaPRAIRIE, on or about December 29,

2008, in Greene County, Ohio, did recklessly cause the death of

Juliana Ameena Berry as a proximate result of BRIAN H. LaPRAIRIE’S

committing or attempting to commit a felony, to wit: Endangering

Children, the elements of which are that the Defendant did

recklessly abuse Juliana Ameena Berry, a child under 18 years of

age, and said violation resulted in serious physical harm to Juliana

Ameena Berry, all of which is contrary to and in violation of Section

2903.04(A) of the Ohio Revised Code, and against the peace and

dignity of the State of Ohio.   (Involuntary Manslaughter, a felony

of the first degree.)”

     {¶ 12} Prior to Defendant’s guilty pleas, and as part of its

plea bargain agreement with Defendant, the State amended its bill

of particulars to specify that the conduct forming the Endangering

Children offense alleged in Count Four occurred on December 27,

2008, the date on which Julianna Berry was removed from Defendant’s

home and taken to the hospital, where she subsequently died on

December 29, 2008.     Count Five alleged that the Involuntary

Manslaughter occurred on December 29, 2008.       Nevertheless, the

predicate Endangering Children felony that resulted in Juliana
                                                                    6

Berry’s death necessarily involved conduct on Defendant’s part

that occurred on or before December 27, 2008.

     {¶ 13} At his sentencing, Defendant moved that his convictions

be merged pursuant to R.C. 2941.25, which provides:

     {¶ 14} “(A) Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

     {¶ 15} “(B) Where the defendant’s conduct constitutes two or

more offenses of dissimilar import, or where his conduct results

in two or more offenses of the same or similar kind committed

separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.”

     {¶ 16} Confronted with the prospect that the criminal conduct

in both Count Four and Count Five occurred on December 27, 2008,

and that both involved the felony offense of Endangering Children,

which was the offense alleged in Count Four and the predicate

offense alleged in Count Five, the State argued:

     {¶ 17} “We intend to present evidence in that regard to show

that, in fact, there are two separate offenses here.       There is,

if you will, a separate animus.    The first being the injuries to

the head that actually caused her death and that was the predicate
                                                                  7

for the manslaughter, but there’s also Child Endangering for other

injuries that she suffered primarily to her abdomen and her chest

that were serious physical injuries that occurred about the same

time that will substantiate the Endangering Children.

     {¶ 18} “So, in effect, what we’re saying is that they’re [sic]

separate animus, which is one of the tests that the Supreme Court

and the Courts of Appeal always look at when they determine whether

or not these offenses are similar.”    (Tr. at 6-7.)

     {¶ 19} The State offered the testimony of Dr. Lee Lehman, a

forensic pathologist and the Chief Deputy Coroner of Montgomery

County, who testified concerning an autopsy he performed on the

body of Julianna Berry on December 29, 2008. Dr.            Lehman

testified that he signed Julianna Berry’s death certificate, in

which he opined that the cause of her death was “[b]lunt force

trauma to the head due to Battered Baby Syndrome.”     (Id. at 6.)

 Dr. Lehman testified that the trauma involved “severe blows to

the back of her head resulting in skull fracture, brain injury,

brain swelling, cardiopulmonary arrest, a lack of oxygen, and

death.”   (Id. at 7-8.)    He further testified that the trauma

involved more than three severe blows which were recent in time.

 (Id. at 8.)

     {¶ 20} Dr. Lehman testified that Julianna Berry also suffered

multiple injuries to her chest and abdomen, that the right side
                                                                   8

of her chest bore seventeen bruise marks, and that “[u]nder the

bruises are deep muscle injuries, contusions, and adjacent to that,

fresh rib fractures and rib fractures that had already been broken.”

 (Id.)    Dr. Lehman further testified that “the liver is bruised

and torn” and that there “are bruises to the back of her abdomen

and injury to her mesentery which is – – the mesentery is in the

part of the abdomen that supplies blood to the intestines.”    (Id.

at 9.)    Dr. Lehman testified that those injuries were “recent

injuries,” and that he based that opinion on “the lack of a healing

response.” (Id.)

     {¶ 21} Dr. Lehman further opined that the multiple blows that

caused the injuries to the child’s chest and abdomen were separate

and apart from the fatal blows to her head he described.       (Id.

at 10.)   However, he could not determine when any of those injuries

occurred.    (Id. at 11.)   Dr. Lehman stated that “[s]ome of her

injuries were fresh, as I said before, that it [sic] had no healing

visible, and there are injuries obviously older.”      (Id. at 12.)

 Dr. Lehman’s testimony concluded with the following colloquy:

     {¶ 22} “BY MR. HALLER: (Prosecuting Attorney)

     {¶ 23} “Q   The injuries to the abdomen and the chest, the

mesentery, the liver, is it more probable than not that those

occurred about the same time as the head injuries, or was it before

that?
                                                                   9

     {¶ 24} “A   They appear about the same age.        I have the

disadvantage of examining her after two days in the hospital, but

they appeared the same age.”     (Id. at 12-13.)

     {¶ 25} The trial court addressed Defendant’s motion for merger

and the State’s arguments contra, applying the tests in State v.

Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, and State v. Rance

(1999), 85 Ohio St.3d 632.       The court held that Endangering

Children, R.C. 2919.22(B)(1), and Involuntary Manslaughter, R.C.

2903.04(A), are not allied offenses pursuant to R.C. 2941.25(A).

 The court further found that the preemptive exception to the merger

of allied offenses announced in State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, applies, because in enacting the sections

defining Endangering Children and Involuntary Manslaughter the

General Assembly intended to protect separate societal interests.

     {¶ 26} Having   found   that   Endangering    Children,   R.C.

2919.22(B)(1), and Involuntary Manslaughter, R.C. 2903.04(A), are

not allied offenses per R.C. 2941.25(A), the court declined to

address the State’s R.C. 2941.25(B) contention that the two

offenses in Counts Four and Five were committed with a separate

animus.   (Tr. at 20.)   The court imposed prison terms of ten years

for the Involuntary Manslaughter offense and eight years for the

Endangering Children offense, to be served consecutive to each

other and to a sentence of four years for the weapons under
                                                                 10

disability offense charged in Count Six.    All three terms are to

be served concurrent to the term of eighteen months imposed for

the trafficking in marijuana offense in Count Seven.

     {¶ 27} The judgment of conviction from which Defendant appeals

was journalized on January 7, 2010.     On December 29, 2010, the

Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153,

 2010-Ohio-6314.    Johnson overruled Rance and held:        “When

determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.”   Id. at syllabus.   The Supreme Court

explained its holding at ¶47-51, stating:

     {¶ 28} “Under R.C. 2941.25, the court must determine prior to

sentencing whether the offenses were committed by the same conduct.

 Thus, the court need not perform any hypothetical or abstract

comparison of the offenses at issue in order to conclude that the

offenses are subject to merger.

     {¶ 29} “In determining whether offenses are allied offenses

of similar import under R.C. 2941.25(A), the question is whether

it is possible to commit one offense and commit the other with

the same conduct, not whether it is possible to commit one without

committing the other.    Blankenship, 38 Ohio St.3d at 119, 526

N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary that

both crimes are always committed by the same conduct but, rather,
                                                                     11

it is sufficient if both offenses can be committed by the same

conduct.     It is a matter of possibility, rather than certainty,

that the same conduct will constitute commission of both offenses.’

[Emphasis sic]).      If the offenses correspond to such a degree that

the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of

similar import.

     {¶ 30} “If the multiple offenses can be committed by the same

conduct, then the court must determine whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with

a   single    state   of   mind.’    Brown,   119   Ohio   St.3d   447,

2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).

     {¶ 31} “If the answer to both questions is yes, then the offenses

are allied offenses of similar import and will be merged.

     {¶ 32} “Conversely, if the court determines that the commission

of one offense will never result in the commission of the other,

or if the offenses are committed separately, or if the defendant

has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.”

     {¶ 33} The defendant in Johnson was convicted of both felony

murder, R.C. 2903.02(B), based upon the predicate offense of child

endangering, and child endangering, R.C. 2919.22(B)(1).             The

Supreme Court wrote that the defendant “beat seven-year-old Milton
                                                                   12

Baker to death”, at ¶3, explaining:

     {¶ 34} “Johnson was convicted of felony murder under R.C.

2903.02(B) (based upon the predicate offense of child endangering)

and child endangering under R.C. 2919.22(B)(1), among other crimes.

 In this case, the crimes of felony murder and child endangering

are allied offenses.

     {¶ 35} “The offenses were based upon the following conduct.

In the incident at issue, Johnson was in a room alone with Milton

while the boy’s mother was in a different room watching television.

 The mother heard Johnson yelling, heard a ‘thump’ or ‘stomping,’

and went to investigate.    She found Johnson yelling at Milton for

mispronouncing a word while reading, and she observed Johnson push

Milton to the floor.        The mother left the room.        Shortly

thereafter, she heard another loud ‘thump’ or ‘stomp.’      When she

went to the room, she saw Milton shaking on the floor.     Neighbors

testified that they had heard the boy crying and heard Johnson

‘whooping’ the boy and yelling, ‘Do you want pain? You want pain?

I’ll give you pain!’

     {¶ 36} “Milton’s death was a result of injuries sustained from

blunt impact to the head.    Medical experts testified as to older

injuries indicative of multiple incidents of child abuse.

     {¶ 37} “We agree with the court of appeals that the state relied

upon the same conduct to prove child endangering under R.C.
                                                                  13

2919.22(B)(1) and felony murder.     Although there were arguably

two separate incidents of abuse, separated by time and brief

intervention by Milton’s mother, the state obtained a conviction

for the first sequence of abuse under R.C. 2919.22(B)(3) for

administering excessive physical discipline.     It was the second

sequence of abuse for which the state obtained a conviction under

R.C. 2919.22(B)(1) for abuse that caused serious physical harm.

 And the conviction for the second sequence of events under R.C.

2919.22(B)(1) is the basis for the predicate offense of felony

murder under R.C. 2903.02(B).    Thus, the two offenses were based

upon the same conduct for purposes of R.C. 2941.25.      We decline

the invitation of the state to parse Johnson’s conduct into a

blow-by-blow in order to sustain multiple convictions for the

second beating.   This beating was a discrete act that resulted

in the simultaneous commission of allied offenses, child abuse

and felony murder.

     {¶ 38} “Johnson’s beating of Milton constituted child abuse

under R.C. 2919.22(B)(1).[] That child abuse formed the predicate

offense for the felony murder under R.C. 2903.02(B).[]   The conduct

that qualified as the commission of child abuse resulted in Milton’s

death, thereby qualifying as the commission of felony murder.”

Johnson, at ¶53-57.

     {¶ 39} Defendant LaPrairie likewise beat Julianna Berry to
                                                                                 14

death.      He was charged with the offense of Child Endangering, R.C.

2919.22(B), and the offense of Involuntary Manslaughter, R.C.

2903.04(A), arising from committing the felony offense of Child

Endangering.        Under the rule of Johnson, it is possible to commit

both offenses of which Defendant was convicted through the conduct

in which Defendant engaged.         Therefore, the two offenses are allied

offenses of similar import for purposes of R.C. 2941.25(A).

Johnson, at ¶48.        The further issue is whether the exception to

the merger requirement in R.C. 2941.25(B) applies.

      {¶ 40} R.C.    2941.25(B)     relieves     the   court    of    the   merger

requirement for allied offenses when the offenses were “committed

separately or with a separate animus as to each.”               In the present

case, the State argued that the offenses of Child Endangering

charged in Count Four and the offense of Child Endangering that

was   the     predicate    felony    for   the    offense      of    Involuntary

Manslaughter charged in Count Five of the indictment were committed

by Defendant with a separate animus as to each.

      {¶ 41} The Supreme Court has held that, as it is used in R.C.

2941.25(B),      “the   term   ‘animus’    requires     us     to    examine   the

defendant’s mental state in determining whether two or more

offenses may be chiseled from the same criminal conduct.                    In this

sense, we believe that the General Assembly intended the term

‘animus’ to mean purpose or, more properly, immediate motive.”
                                                                            15

State v. Logan (1979), 60 Ohio St.2d 126, 131.

     {¶ 42} The State argued that the Child Endangering offense that

forms the predicate to the Involuntary Manslaughter offense in

Count Five, which involved blunt force trauma to the child’s head,

was committed with an animus separate from the animus with which

the Child Endangering offense in Count Four, which involved

different, non-lethal injuries, was committed.                However, the

record fails to demonstrate that Defendant’s purpose or immediate

motive differed with respect to any of the injuries he inflicted.

 All were the result of multiple severe blows delivered separately

to different parts of the child’s body.          One was fatal while the

others were not.    While the child’s ordeal is heart-rending, no

separate   animus   is    demonstrated      to   distinguish       one   Child

Endangering offense Defendant committed from the other.

     {¶ 43} The State’s contention more logically pertains to the

alternative    grounds    in    R.C.   2941.25(B):    that   the    incidents

constituting the two Child Endangering felonies in Counts Four

and Five were “committed separately.”                Allied offenses are

committed separately when the criminal behavior the offenses

respectively    involve    is    differentiated      by   time,    place,   or

circumstance.    When the behavior that allied offenses involve is

instead part of a continuing sequence of interconnected acts or

omissions, as in Johnson, the allied offenses are not committed
                                                                    16

separately, even though each may involve discrete acts or omissions

that produce different results.

      {¶ 44} Having found that the two offenses to which Defendant

pled guilty are not allied offenses per R.C. 2941.25(A), the trial

court declined to consider the applicability of the exceptions

to the merger requirement in R.C. 2941.25(B) on which the State

had offered evidence.     In accordance with the disposition ordered

in State v. Craycraft, __ Ohio St.3d __, 2010-Ohio-6332, the case

will be remanded to the trial court to determine the applicability

of the exceptions to merger in R.C. 2941.25(B) to the facts before

it.

      {¶ 45} As a final matter, we note that Johnson declined to apply

the preemptive exception to the merger rule of State v. Brown

regarding offenses for which the General Assembly intended to

protect different societal interests, which the trial court applied

in the present case.     Johnson involved the offenses of Endangering

Children and Felony Murder, with Endangering Children as the

predicate felony offense.          The present case involves Child

Endangering and Involuntary Manslaughter, with Child Endangering

as the predicate offense to Involuntary Manslaughter.        The only

distinction    between    Felony    Murder,   R.C.   2903.02(B),   and

Involuntary Manslaughter, R.C. 2903.04(A), is in their predicate

offenses.     Involuntary Manslaughter requires commission of a
                                                                     17

felony that proximately results in a death.   Felony Murder requires

commission of an offense of violence which is a first or second

degree felony that proximately results in a death.          We see no

distinction between the offenses and holding in Johnson and the

offenses present case involves, at least with respect to the

societal interests distinction in State v. Brown.

     {¶ 46} Johnson was, as we have said, decided almost a year after

the trial court’s decision on the allied offenses question in the

present   case.   The   court   acted   correctly   in   applying   the

Rance/Cabrales test.    Nevertheless, because Johnson was decided

prior to our review of the error assigned in the present appeal,

we are bound to follow and apply Johnson, which overruled Rance.

 In so doing, we necessarily find that the trial court erred when

it found that the Child Endangering and Involuntary Manslaughter

offenses of which Defendant was convicted are not allied offenses

per R.C. 2945.21(A), and declined to consider the applicability

of R.C. 2941.25(B), which establishes exceptions to the merger

requirement.

     {¶ 47} The first assignment of error is sustained.



     SECOND ASSIGNMENT OF ERROR

     {¶ 48} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION

TO SUPPRESS.”
                                                                  18

     {¶ 49} Defendant was convicted on his pleas of no contest of

Having   Weapons   Under   Disability,   R.C.   2923.13(A)(3),   and

Trafficking In Marijuana, R.C. 2925.03(A)(1).     Defendant entered

his no contest pleas following the trial court’s denial of

Defendant’s Crim.R. 12(C)(3) motion to suppress evidence of the

handgun and drugs police seized in their warrantless search of

his home, to which Defendant had consented.

     {¶ 50} Consent is not an exception to the Fourth Amendment

warrant requirement fashioned out of exigent circumstances.

Rather, consent to perform a search waives the warrant requirement

of the Fourth Amendment, but only when the consent is freely and

voluntarily given.   Whether a consent to search is voluntary or

a product of duress or coercion is a question of fact to be

determined from the totality of the circumstances.      Schneckloth

v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854.

 When the state relies on a consent to justify a warrantless search,

the state must show by clear and convincing evidence that the

consent was freely and voluntarily given.   Bumper v. North Carolina

(1968), 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; State v. Comen

(1990), 50 Ohio St.3d 206.

     {¶ 51} When a consent is given following some form of illegal

police action, the illegal action may be considered along with

other circumstances in determining whether they combined to result
                                                                   19

in coercion of the person who consented.   E.g., Burrows v. Superior

Court (1974), 13 Cal.3d. 238, P.2d 590.     The question is said to

be whether the consent was fatally tainted by the prior illegality

under the “fruit of the poisonous tree” doctrine.       Wong Sun v.

United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

 Then, it must be determined “whether, granting establishment of

the primary illegality, the evidence to which the instant objection

is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the

primary taint.”   Id., 371 U.S. at 488.    LaFave writes:

     {¶ 52} “While there is a sufficient overlap of the voluntariness

and fruits tests that often a proper result may be reached by using

either one independently, it is extremely important to understand

that (i) the two tests are not identical, and (ii) consequently

the evidence obtained by the purported consent should be held

admissible only if it is determined that the consent was both

voluntary and not an exploitation of the prior illegality.”

LaFave, Search and Seizure (Fourth Ed.), §8.2(d), p. 76.

     {¶ 53} In State v. Cheadle (July 14, 2000), Miami App. No.

00CA03, we stated:

     {¶ 54} “A warrantless entry and search of a private residence

is presumptively unreasonable under the Fourth Amendment.     Payton

v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;
                                                                    20

Welch v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d

732.    Invasion of the sanctity of the home is the chief evil against

which the Fourth Amendment's warrant requirement is directed.

United States v. United States District Court (1972), 407 U.S.

297, 92 S.Ct. 2125, 32 L.Ed.2d 752.         The burden is upon the

government to overcome the presumption that warrantless searches

of homes are per se unreasonable by demonstrating that the search

falls within one of the few, well recognized exceptions to the

warrant requirement.     Welsh v. Wisconsin, supra; State v. Kessler

(1978), 53 Ohio St.2d 204, 373 N.E.2d 1252.

       {¶ 55} “One such exception to the warrant requirement is an

entry or search based upon exigent circumstances. This exception

is founded on the premise that the existence of an emergency

situation, demanding urgent police action, may excuse the failure

to procure a search warrant.     Welch v. Wisconsin, supra. In such

emergency situations, police may have an urgent need to enter a

home in order to protect persons or property, render emergency

aid to injured persons, or prevent the imminent destruction of

evidence.    Katz, Ohio Arrest, Search and Seizure (1999), Chapter

10, pp. 177-187.”

       {¶ 56} Addressing the exigency involving the need to render

emergency aid to injured persons, the United States Supreme Court

has held:
                                                                  21

     {¶ 57} “‘[T]he ultimate touchstone of the Fourth Amendment,’

we have often said, ‘is reasonableness.’” Id., at 403, 126 S.Ct.

1943. Therefore, although ‘searches and seizures inside a home

without a warrant are presumptively unreasonable,’ Groh v. Ramirez,

540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (internal

quotation marks omitted), that presumption can be overcome. For

example, ‘the exigencies of the situation [may] make the needs

of law enforcement so compelling that the warrantless search is

objectively reasonable.’ Mincey v. Arizona, 437 U.S. 385, 393-394,

98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

     {¶ 58} “Brigham City1 identified one such exigency: ‘the need

to assist persons who are seriously injured or threatened with

such injury.’ 547 U.S., at 403, 126 S.Ct. 1943. Thus, law

enforcement officers ‘may enter a home without a warrant to render

emergency assistance to an injured occupant or to protect an

occupant from imminent injury.’ Ibid.         This ‘emergency aid

exception’ does not depend on the officers' subjective intent or

the seriousness of any crime they are investigating when the

emergency arises. Id., at 404-405, 126 S.Ct. 1943.      It requires

only ‘an objectively reasonable basis for believing,’ id., at 406,

126 S.Ct. 1943, that ‘a person within [the house] is in need of


        1
         Brigham City, Utah v. Stuart (2006), 547 U.S. 398, 126
   S.Ct. 1943, 164 L.Ed.2d 650.
                                                                  22

immediate aid,’ Mincey, supra, at 392, 98 S.Ct. 2408.

     {¶ 59} “Brigham City illustrates the application of this

standard. There, police officers responded to a noise complaint

in the early hours of the morning. ‘As they approached the house,

they could hear from within an altercation occurring, some kind

of fight.’ 547 U.S., at 406, 126 S.Ct. 1943 (internal quotation

marks omitted). Following the tumult to the back of the house whence

it came, the officers saw juveniles drinking beer in the backyard

and a fight unfolding in the kitchen. They watched through the

window as a juvenile broke free from the adults restraining him

and punched another adult in the face, who recoiled to the sink,

spitting blood. Ibid. Under these circumstances, we found it

‘plainly reasonable’ for the officers to enter the house and quell

the violence, for they had ‘an objectively reasonable basis for

believing both that the injured adult might need help and that

the violence in the kitchen was just beginning.’ Ibid.”    Michigan

v. Fisher (2009), ___ U.S. ___, 130 S.Ct. 546, 175 L.Ed.2d 410,

Slip. Op. No. 09-91, p.3.

     {¶ 60} We glean from Fisher and the authorities it cites that,

when relying on the emergency aid exception to the warrant

requirement, the state assumes the burden to prove by clear and

convincing evidence that officers were presented with a compelling

need to enter a home or other private premises in order to provide
                                                                  23

immediate aid to persons inside who were either   seriously injured

or threatened with such injury.    Furthermore, the officers must

have had an objectively reasonable basis for believing that such

a need to enter presently exists.     A mere nexus to a need that

formerly did exist is insufficient.

     {¶ 61} In a motion to suppress, the trial court assumes the

role of the trier of facts, and, as such, is in the best position

to resolve questions of fact and evaluate the credibility of the

witnesses.   State v. Clay (1972), 34 Ohio St.2d 250.   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.

State v. Satterwhite (1997), 123 Ohio App.3d 322.

     {¶ 62} The trial court’s findings of fact, in pertinent part,

include the following:

     {¶ 63} “The Court finds the testimony of the witnesses to be

credible and finds the facts to be as follows.     On December 27,

2008 at approximately 10:00 a.m. a dispatch was made from the

Fairborn Police Department to officers to proceed to 233 Pat Lane

in the City of Fairborn, Greene County, Ohio, the nature of which

was an injury to a child.   Officer Hiles and Officer Knapp of the
                                                                     24

Fairborn Police Department arrived at 233 Pat Lane and based upon

the dispatch entered the home without invitation or warrant.       They

observed a child in distress as well as an adult later identified

as Brian LaPrairie.        The officers immediately attempted rescue

methods upon the child who appeared to be in serious condition.

 In less than five minutes the officers heard the ambulance arrive

and scooped up the child and carried the child outside for the

purpose of transferring the child to medics who then removed the

child from the scene by ambulance.        At this point the officers

who had little or no information regarding the name of the child,

or the nature of the injury, re-entered the residence of 233 Pat

Lane in order to engage Brian LaPrairie in a question and answer

process to get information regarding the child and the nature of

the child’s distress which they were unable to do initially due

to the condition of the child.        The officers observed both the

first time there in the house and the second time in the house

that   Brian   LaPrairie    was   emotionally   upset.   During   their

conversations with him after entering the house the second time

the Defendant was calming down and was able to provide information

to the officers regarding the incident.          Approximately fifteen

minutes after the medics took the child, Officer Holcomb of the

Fairborn Police Department arrived on scene to assist the other

officers.      It was during this time that the Defendant, Brian
                                                                   25

LaPrairie, was asked questions by the officers and he volunteered

information regarding the child.    The Defendant while in his home

was not under arrest and was not in custody.            During this

questioning the Defendant did not ask for an attorney nor did he

ask the officers to stop asking him questions.      While gathering

this information about the child, the officers became concerned

about the circumstances surrounding the injury to the child.   After

placing a call to their supervisor, the officers were instructed

to inquire if the Defendant would consent to a search of the

residence.   The Court specifically finds that when the officers

entered the home the second time to speak with the Defendant they

were not pursuing a criminal investigation but concluding the

ongoing emergency.

     {¶ 64} “Officer Knapp went to his vehicle and obtained a consent

to search form and re-entered the house where Officer Hiles and

Officer Holcomb were still continuing to discuss the emergency

circumstances with the Defendant after having entered the home

the second time.

     {¶ 65} “At approximately 10:52 a.m. Brian LaPrairie consented

to a search of the residence.   The consent form was signed by the

Defendant and identified as State’s Exhibit 1.      The Court notes

that no promises or threats were made before, during, or after

the execution of the consent to search form.       At this time the
                                                                 26

Defendant still was not in custody or detention.    The Court does

find that the Defendant remained emotionally upset and distraught

during this time period.       Pursuant to the consent granted by

LaPrairie, the residence at 233 Pat Lane was searched until

approximately 12:10 p.m. when the search ended.”

     {¶ 66} Defendant concedes that Fairborn police officers had

a legal justification to initially enter his home, as they were

the first to respond to his 911 call for emergency medical

assistance for two year old Juliana Berry.      We agree that the

exigent circumstances/emergency aid exception to the warrant

requirement clearly justified the officers’ initial entry into

Defendant’s home.   Mincey.    Defendant argues, however, that the

officers’ conduct in reentering his home and/or remaining inside

his home   after the child had been removed violated his Fourth

Amendment rights.   Because the officers’ reentry was likewise

performed without a warrant, or Defendant’s express consent, it

was the State’s burden to prove by clear and convincing evidence

that the officers were presented with a compelling need to act

as they did.

     {¶ 67} After the child had been removed from the home and

transported to the hospital,    Officers Hiles and Knapp re-entered

Defendant’s home to talk to Defendant and investigate what had

happened to the child.   While Officers Hiles and Knapp were inside
                                                                  27

Defendant’s home and talking to him about that, Officer Holcomb

arrived and entered Defendant’s home, approximately fifteen

minutes after the child was taken to the hospital.      When, after

that, Officer Knapp called his supervisor for direction,     he was

advised to seek Defendant’s consent to search his home.     Officer

Knapp then exited Defendant’s residence and went to his cruiser

and obtained a consent to search form, while Officers Hiles and

Holcomb remained inside Defendant’s residence, talking to him.

Officer Knapp then re-entered Defendant’s residence and presented

the consent to search form to Defendant, which he signed while

the three officers were inside his home.

     {¶ 68} The trial court found that when the officers reentered

Defendant’s home “they were not pursuing a criminal investigation

but concluding the ongoing emergency.”    However, the right of the

officers to act for an emergency purpose must be strictly

circumscribed by the exigency that existed.     Mincey v. Arizona.

 To act as they did, officers must have had an urgent need to render

aid to an injured person inside because of an “emergency threatening

life or limb.”   Id., 437 U.S. at 393.   Furthermore, the need must

be one based on objectively verifiable facts, and not a mere

reasonable and articulable suspicion.    Otherwise, the presumption

that their warrantless entry was illegal is not overcome.

     {¶ 69} The urgency that permitted officers to first enter
                                                                            28

Defendant’s home without a warrant because of the emergency need

to aid the child dissipated after the injured child was removed

from the home and transported by ambulance to a hospital.                 The

child was then no longer an occupant of the home who was in need

of immediate aid.       Mincey; Fisher.       The trial court found that

the emergency nevertheless continued because of the officers’ need

to gather medical information concerning the child and to learn

what had happened to her so they could pass that information along

to the medics.

     {¶ 70} Officer     Hiles     testified    that     officers    reentered

Defendant’s    home    to   question   him    because      emergency   medical

personnel would have done that had they been able to remain on

the scene.    (T. at 26.)       However, the record fails to demonstrate

that the officers either determined what information paramedics

wished to know or that the officers asked Defendant any questions

concerning    the     child’s    pertinent    past    or    present    medical

information.     Neither did the officers make any effort to pass

such information along to the paramedics or others who were

responsible for treating and transporting the child to the

hospital.

     {¶ 71} Officer Knapp conceded that when officers reentered the

home after the child had been removed, there was then no medical

emergency for officers to act upon by going inside.                (T. at 46.)
                                                                  29

 His supervisor, Captain Plemmons, testified that the officer who

called him “was unsure of the situation and the nature of the call,”

and “I told them to go ahead and get a statement and a consent

to search while I responded to the scene with the other Detective.”

 (T. 60).       Those matters undermine the attenuation of the

emergency which the trial court found justified the officer’s

reentry into and continued presence inside Defendant’s home after

the child was removed.

     {¶ 72} Upon reentering Defendant’s home, Officer Hiles told

Defendant that incidents such as this they treat as a crime scene.

 (Tr. at 18.)    Officer Hiles testified “well, there’s a death of

a child, we have to investigate what happened.”      (Id. at 18-19.)

 When asked if the second time police went into Defendant’s home

they were there to get criminal information, Officer Knapp

responded:    “possibly.     I don’t know.   We didn’t know what was

going on.”    (Id. at 58.)

     {¶ 73} When considering the emergency aid exception to the

warrant requirement, “[a]ny conduct within by the officer which

is in any way inconsistent with the purported reason for the entry

is a just cause for healthy skepticism by the court.”        LaFave,

§6.6(a).     At least by the time Defendant was presented with a

consent form, the officer’s continued and uninvited presence in

Defendant’s home had no tangible connection with an alleviation
                                                                       30

of   the   emergency   that   had   justified    their   initial   entry.

Therefore, on this record, the trial court’s finding that when

officers obtained Defendant’s consent “they were not pursuing a

criminal investigation but concluding an ongoing emergency” is

against the manifest weight of the evidence.              The officers’

presence at that time, as well as the consent they obtained, was

instead for purposes of a criminal investigation.        Their continued

presence in Defendant’s home for that purpose, absent a warrant,

was therefore in violation of the Fourth Amendment.

      {¶ 74} The ultimate question is whether the illegality that

the officers’ presence involved rendered Defendant’s consent to

search less than knowing, intelligent, and voluntary.        Concerning

that issue, the trial court found:

      {¶ 75} “The   Defendant       knowingly,    intelligently,     and

voluntarily understood and signed the form and gave his consent

to search.    While the Court notes that the Defendant was upset

emotionally during this time period, there is no evidence that

this condition created any disability to the proper execution of

the consent to search.”

      {¶ 76} We have held that even when a consent is not the product

of some more specific coercion or duress, and therefore was

voluntary in the usual sense, evidence seized in a search performed

after the consent was given remains subject to suppression when
                                                                   31

it was tainted by the fact of a prior illegal entry upon the premises

that were searched.    Dayton v. Lowe (Dec. 31, 1997), Montgomery

App. No. 16458.       “The question is whether the consent was

‘sufficiently an act of free will to purge the primary taint of

the unlawful invasion.’” State v. McGuire, Montgomery App. No.

24106, 2010-Ohio-6105, ¶22, quoting State v. Cooper, Montgomery

App. No. 20845, 2005-Ohio-5781, ¶28.    “‘[S]uppression is required

of any items seized during the search of the house, unless the

taint of the initial entry has been dissipated before the consents

to search were given’; dissipation of the taint resulting from

the illegal entry ‘ordinarily involves some showing that there

was some significant intervening time, space, or event.’” United

States v. Buchanan (C.A. 6, 1990), 904 F.2d 349, 356, quoting United

States v. Vasquez (C.A. 2, 1980), 638 F.2d 507-527-529, cert denied,

450 U.S. 970, 101 S.Ct. 1490, 67 L.Ed.2d 620 (1981).

     {¶ 77} In the present case, the officers’ initial entry into

Defendant’s home was, as we have held, justified by the emergency

aid exception to the warrant requirement and therefore was not

illegal.   However, after that emergency had clearly dissipated

and the officers then reentered Defendant’s home, and then remained

there, uninvited, in order to perform a criminal investigation,

their continued presence was illegal.      Absent some significant

time, space, or event that intervened between that primary
                                                                  32

illegality and the consent to search the officers obtained, the

consent was tainted by the prior, primary illegality, and the search

that was performed was likewise illegal.

     {¶ 78} The consent form Defendant signed contains two notices

that he may refuse to give his consent.     Such notices may render

a consent voluntary, in the usual sense.       However, in order to

be sufficiently significant to avoid the primary constitutional

taint arising from the officers’ illegal entry or presence on the

premises as a matter of law, an intervening event should not itself

be an element of the consent to which the taint attaches.       The

consent therefore remained tainted by the primary illegality when

the consent was obtained by officers.       Neither was the primary

illegality itself avoided by the consent that was obtained, which

appears to have been the purpose of obtaining it.       Because the

consent was tainted, the warrantless search and seizures performed

on the authority of the consent were illegal.       The trial court

therefore erred when it denied Defendant’s motion to suppress

evidence.

     {¶ 79} The second assignment of error is sustained.

                               Conclusion

     {¶ 80} Having sustained the first assignment of error, in part,

we will remand the case to the trial court to determine the

applicability of the R.C. 2941.25(B) exceptions to Defendant’s’
                                                                          33

convictions for Endangering Children and Involuntary Manslaughter,

consistent with our Opinion.

     {¶ 81} Having sustained the second assignment of error, we will

reverse    Defendant’s    convictions     for   Having    Weapons      Under

Disability and Trafficking in Marijuana and will remand the case

for further proceeding on those charges, consistent with our

Opinion.

     {¶ 82} The judgment of conviction from which the appeal was

taken will otherwise be Affirmed.

     FAIN, J., concurs.



     FROELICH, J., concurring in part and dissenting in part:

     {¶ 83} I agree with the majority that suppression is required

“unless    the   taint   of   the   unconstitutional     entry   has    been

dissipated” before the consent to search was given.

     {¶ 84} I also agree that such dissipation “ordinarily involves

some showing that there was some significant intervening time,

space, or event.”    I disagree that on the record before us we can

determine, as a matter of law, whether the taint had dissipated.

 The trial court did not make factual findings on this question

since it found, incorrectly (we now hold), that the reentry and

remaining in the house was constitutional as an exception to the

warrant requirement.
                                                              34

    {¶ 85} I concur on the remand for the court to determine the

applicability of R.C. 2941.25(B), but also would remand for the

court to decide, in light of our holding, whether the State has

met its burden of demonstrating that the consent was voluntary.



Copies mailed to:

Elizabeth A. Ellis, Esq.
Thomas M. Kollin, Esq.
Hon. Stephen A. Wolaver
