[Cite as State v. Stephens, 2013-Ohio-5008.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                   :     Hon. John W. Wise, J.
                                               :     Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :
FRANCO STEPHENS                                :     Case No. 12CA120
                                               :
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2012-CR-485



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 7, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN C. NIEFT                                        JEFFREY P. UHRICH
Assistant Prosecuting Attorney                       P.O. Box 1977
38 South Park Street                                 Westerville, OH 43086
Mansfield, OH 44902
Richland County, Case No. 12CA120                                                       2



Baldwin, J.

      {¶1}    Appellant Franco Stephens appeals a judgment of the Richland County

Common Pleas Court convicting him of receiving stolen property (R.C. 2913.51(A)),

possession of heroin (R.C. 2925.11(A), (C)(6)(b)), possession of drugs (R.C.

2925.11(A), (C)(1)(b)), two counts of having a weapon under disability (R.C.

2923.13(A)(2), (3)), trafficking in heroin (R.C. 2925.03(A)(2), (C)(6)(c)) and aggravated

trafficking in drugs (R.C. 2925.03(A)(2), (C)(1)(c)) with a forfeiture specification and a

firearm specification. Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

      {¶2}    During the summer of 2012, Mansfield Police received complaints of

possible drug activity out of a residence at 384 Greenlee Road in Mansfield. Metrich, a

multi-county drug enforcement task unit, was called in to investigate.

      {¶3}    Ebony Fields was the leaseholder for the residence. She was known to

Detective Perry Wheeler, a Metrich officer, from previous drug cases. Officers visited

Ebony at the home to gather information. Ebony told officers that appellant, who was

her live-in boyfriend, sold heroin from her house and from a club in downtown

Mansfield.

      {¶4}    On July 19, 2012, Metrich officers Wheeler, Trooper Jacob Tidaback, and

Detective Steve Blust went to 384 Greenlee Road to perform a “knock and talk.”

Although dressed in civilian clothes, the officers had their badges and guns visible.

      {¶5}    Ebony met the officers at the door. She and Dennis Walker, a friend who

had been released from jail and was looking for a ride to Cleveland, went outside to
Richland County, Case No. 12CA120                                                       3


speak to the officers.    After the officers discussed the ongoing complaints of drug

activity at the residence with Ebony, she invited the officers inside.

      {¶6}    Upon entering the house, officers saw appellant kneeling on the floor by

the television. He was told to stand up. Trooper Tidaback asked appellant if he could

pat him down for safety, and appellant agreed. Tpr. Tidaback felt something like a

plastic bag in appellant’s pocket.    He asked appellant what was in the packet and

appellant responded that it was money. Tpr. Tidaback asked if he could remove the

packet and appellant consented. The packet contained $135.00 and eight bindles of

heroin. Appellant was arrested and read his Miranda rights. He was then placed in the

back of the police cruiser.

      {¶7}    After arresting appellant, Det. Blust reviewed a consent to search form

with Ebony. She signed the form, witnessed by the other two officers.

      {¶8}    Ebony led Tpr. Tidaback and Det. Blust to the bedroom and told them

appellant had a handgun hidden in a hole in the box spring of the bed. Officers found

the gun. Det. Blust found eight more bindles of heroin, thirty pills of ecstasy packaged

in ten-pill bags, and drug paraphernalia in the house.

      {¶9}    Appellant was indicted with receiving stolen property (R.C. 2913.51(A)),

possession of heroin (R.C. 2925.11(A), (C)(6)(b)), possession of drugs (R.C.

2925.11(A), (C)(1)(b)), two counts of having a weapon under disability (R.C.

2923.13(A)(2), (3)), trafficking in heroin (R.C. 2925.03(A)(2), (C)(6)(c)) and aggravated

trafficking in drugs (R.C. 2925.03(A)(2), (C)(1)(c)) with a forfeiture specification and a

firearm specification.
Richland County, Case No. 12CA120                                                      4


      {¶10}   Appellant moved to suppress the evidence found on his person and in the

home and any statements he made concerning the gun.            Following a suppression

hearing, the court found that Ebony gave both oral and written consent to search the

residence, and appellant consented to Tpr. Tidaback removing the packet of drugs from

his pocket. The court further found that appellant was given Miranda warnings before

he made any statements to police.

      {¶11}   After the trial court announced his findings on the suppression motion from

the bench, appellant complained that everything was going against him. He expressed

displeasure with the fact that he could not lower his bond and that the judge ruled

against him on the suppression motion when the police did not have a warrant. He

asked what happened to the attorney who represented him in municipal court. Counsel

then moved to withdraw, arguing that appellant did not understand the charges. The

court overruled the motion, stating that appellant understood the charges, but was not

willing to believe the charges.   Appellant continued to state that everything was going

downhill and everyone was against him, including his girlfriend.

      {¶12}   On the morning of jury trial, appellant represented that he wanted to

change his plea to guilty.    After engaging in a colloquy with appellant, it became

apparent that appellant wanted to enter a plea to a deal that was no longer on the table.

When he became aware that he could be sentenced to up to ten years incarceration, he

changed his mind and proceeded to trial.

      {¶13}   Appellant was convicted on all seven counts, the forfeiture specification,

and the firearm specification. Several of the offenses were merged as allied offenses,
Richland County, Case No. 12CA120                                                         5


and he was sentenced to a term of incarceration of eight years and three months. He

assigns two errors on appeal:

      {¶14}   “I.    THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS BASED UPON THE ILLEGAL SEARCH OF

DEFENDANT-APPELLANT’S PERSON AND PROPERTY BY LAW ENFORCEMENT

AS WELL AS THE ILLEGAL SEIZURE OF EVIDENCE FROM DEFFENDANT-

APPELLANT BY LAW ENFORCEMENT.

      {¶15}   “II.    THE TRIAL COURT ABUSED ITS DISCRETION BY NOT

PERMITTING DEFENDANT/APPELLANT TO OBTAIN NEW COUNSEL.”

                                                I.

      {¶16}   Appellant argues that the court erred in overruling his motion to suppress

because the search of his person and the residence was unconstitutional in the

absence of a warrant. He argues that Ebony’s consent to search the residence was

involuntary. He argues that the police intimidated her to gain entrance to the house by

telling her they suspected drug activity, and they advised her there may be ramifications

as to her ability to keep the house and her children if she didn’t cooperate and sign the

consent form.

      {¶17}   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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second,
Richland County, Case No. 12CA120                                                        6


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, 619 N.E.2d 1141

(1993). Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly 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, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d

906 (1993); Guysinger, supra. 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 911 (1996), “... as a general

matter determinations of reasonable suspicion and probable cause should be reviewed

de novo on appeal.”

      {¶18}   When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243,

652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

      {¶19}   The question of whether consent to search was voluntary or the product of

duress or coercion, express or implied, is a question of fact to be determined from the

totality of the circumstances. Schneckcloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct.

2041, 36 L.Ed.2d 854 (1973). The standard for measuring the scope of consent is

objective reasonableness, i.e., what a reasonable person would have understood by the
Richland County, Case No. 12CA120                                                      7

exchange between the officer and the suspect. Florida v. Jimeno, 500 U.S.248, 251,

111 S.Ct. 1801, 114 L.E.2d 297 (1991).

      {¶20}   The officers testified that Ebony gave them permission to enter the house.

She admitted in her testimony at the suppression hearing that she allowed them to enter

the house. Supp. Tr. 85-86. Although they were discussing drug activity with her at the

time, the evidence does not support appellant’s assertion that police used this

information to pressure Ebony to allow them to enter the house. In fact, officers had

discussed these allegations with Ebony at an earlier date and she had provided them

with information concerning appellant’s drug activity at the house and a club in

Mansfield.

      {¶21}   Once inside the house, Tpr. Tidaback testified that appellant consented to

a pat down. He testified that he felt a plastic bag in appellant’s front pocket. When he

asked appellant if he could remove the baggie, appellant consented.          The baggie

contained eight bindles of heroin.

      {¶22}   Ebony signed a consent form to allow police to search the residence after

appellant was arrested based on the heroin found in his pocket. She testified that she

felt threatened because she could lose custody of her child based on drug activity in the

home. However, the officers each testified that she was not threatened or promised

anything to induce her to sign the form. Supp. Tr. 14, 39, 60.

      {¶23}   The trial court did not err in overruling appellant’s motion to suppress

based on the testimony of the officers that consent was provided for both the search of

appellant’s person and the residence. The first assignment of error is overruled.
Richland County, Case No. 12CA120                                                       8


                                               II.

        {¶24}   Appellant argues that the court erred in overruling his motion for a new

attorney.

        {¶25}   In the context of reviewing a claim by a defendant that the trial court

abused its discretion by overruling the defendant's request to discharge court-appointed

counsel and to substitute new counsel, courts have taken the approach that the

defendant must show a complete breakdown in communication in order to warrant a

reversal of the trial court's decision. Swogger, supra, 2011–Ohio–5607 at ¶ 13. Hostility,

tension, or personal conflicts between an attorney and a client that do not interfere with

the preparation or presentation of a competent defense are insufficient to justify a

change in appointed counsel. See State v. Henness, 79 Ohio St.3d 53, 65–66, 679

N.E.2d 686 (1997). Furthermore, “[m]erely because appointed counsel's trial tactics or

approach may vary from that which appellant views as prudent is not sufficient to

warrant the substitution of counsel.” State v. Glasure, 132 Ohio App.3d 227, 239, 724

N.E.2d 1165 (1999); State v. Evans, 153 Ohio App.3d 226, 2003–Ohio–3475, 792

N.E.2d 757, ¶ 31; State v. Newland, 4th Dist. Ross No. 02CA2666, 2003–Ohio–3230 at

¶ 11.

        {¶26}   After the court issued a ruling from the bench overruling his motion to

suppress, appellant expressed his displeasure with the ruling, with the charges against

him, with the amount of time he had spent in prison awaiting trial. He expressed his

feeling that everything was going against him. He then expressed displeasure with his

attorney:
Richland County, Case No. 12CA120                                                     9


         {¶27}   “THE DEFENDANT: Your Honor, what happened to the attorney I had

that was originally on my paperwork, Rolf Whitney? Why he get thrown off my case?

         {¶28}   “THE COURT: He wasn’t on your case in this case. He was on your case

in municipal court.

         {¶29}   “THE DEFENDANT: I signed a paper, that was at the preliminary hearing

with him.

         {¶30}   “THE COURT: That was in municipal court. When you come over here

you have an arraignment on the felony charges and you have an attorney appointed at

that time.

         {¶31}   “THE DEFENDANT: I had an attorney.

         {¶32}   “THE COURT: No, you didn’t.

         {¶33}   “THE DEFENDANT: It was Rolf Whitney on my paperwork. I got it right

here.”

         {¶34}   Supp. Tr. 112.

         {¶35}   “THE DEFENDANT:      Your Honor, I’m saying I’m not getting the right

representation from my counsel.

         {¶36}   “THE COURT: What is wrong with your representation?

         {¶37}   “THE DEFENDANT:       Everything is like going bad for me.     I don’t

understand this. I don’t understand this at all.

         {¶38}   “THE COURT: What is going bad for you?

         {¶39}   “THE DEFENDANT: It seem like everything against me, everything - -

         {¶40}   “THE COURT: You didn’t get your bond lowered, you lost on suppression

hearing, right?
Richland County, Case No. 12CA120                                                      10


        {¶41}   “THE DEFENDANT: Everything. I guess, if you count me out, it’s over

with.

        {¶42}   “THE COURT: No.

        {¶43}   “THE DEFENDANT: I lost it, you saying I, I lost it. I don’t know how –

what’s going on.

        {¶44}   “THE COURT: You lost what?

        {¶45}   “THE DEFENDANT: You say on my suppression hearing I lost it. I don’t

know why I am losing.”

        {¶46}   Supp. Tr. 113.

        {¶47}   The record does not demonstrate a breakdown in the attorney-client

relationship such that appointment of new counsel was necessary. Appellant pointed to

no specific problems with his attorney other than the fact that he lost his suppression

motion and failed to get his bond lowered. Appellant’s dissatisfaction was not with

counsel or anything specific that counsel did or did not do, but rather with the fact that

he lost several motions on the merits.

        {¶48}   The second assignment of error is overruled.
Richland County, Case No. 12CA120                                                   11


      {¶49}   The judgment of the Richland County Common Pleas Court is affirmed.

Costs are assessed to appellant.



By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. W. SCOTT GWIN



                                      HON. JOHN W. WISE




CRB/rad
[Cite as State v. Stephens, 2013-Ohio-5008.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
        Plaintiff - Appellee                      :
                                                  :
-vs-                                              :      JUDGMENT ENTRY
                                                  :
FRANCO STEPHENS                                   :
                                                  :
        Defendant - Appellant                     :      CASE NO. 12CA120


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

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

assessed to appellant.




                                               HON. CRAIG R. BALDWIN



                                               HON. W. SCOTT GWIN



                                               HON. JOHN W. WISE
