[Cite as State v. Williams, 2014-Ohio-4425.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-13-31

        v.

LOUIS WILLIAMS, III,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                            Trial Court No. 2012-CR-50

                                      Judgment Affirmed

                            Date of Decision: October 6, 2014




APPEARANCES:

        Katherine R. Ross-Kinzie for Appellant

        Benjamin R. Elder for Appellee
Case No. 2-13-31



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Louis Williams III (“Williams”) brings this

appeal from the judgment of the Court of Common Pleas of Auglaize County

denying his motion to suppress, denying his motion for acquittal, finding him

guilty of multiple offenses, and sentencing him to prison. For the reasons set forth

below, the judgment is affirmed.

       {¶2} On February 23, 2013, Williams was stopped by Trooper Sanchez

(“Sanchez”) of the Ohio State Highway Patrol for speeding shortly after 7:00 a.m.

June 3, 2013 Suppression Tr. 12, 21. Sanchez testified that his radar indicated that

Williams was traveling 81 miles per hour in a 65 miles per hour zone. Id. at 22-

23. When Sanchez began the traffic stop, the vehicle came to an abrupt stop, and

the driver of the vehicle extended his arm out the driver’s window. Id. at 26. This

made Sanchez uneasy, so he chose to approach the passenger side of the vehicle.

Id. Sanchez asked Williams, as the driver, for his license and registration. Id. at

27. In response, Williams provided a letter size piece of paper from the Social

Security Administration with the name “Michael Weeks” and a social security

number. Id. Williams identified himself as Michael Weeks. Id. The paper did

not have a photo on it. Id. at 28. Additionally, Sanchez testified that he detected a

moderate odor of marijuana coming from inside the vehicle. Id.



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       {¶3} Sanchez then asked Williams to step out of the vehicle due to the odd

form of identification and the smell of marijuana. Id. When asked if he had any

weapons, Williams responded that he had a pocket knife on his person. Id. at 32.

Sanchez testified that while he was speaking with Williams, Williams kept putting

his hands in his pocket even after being asked not to do so. July 29, 2013,

Suppression Tr. 14. Sanchez then performed a pat down search due to officer

safety. June 3, 2013, Suppression Tr. 32. The search produced a loaded .22

caliber hand gun which had been in Williams’ pocket. Id. at 32-33. Sanchez then

secured Williams in his cruiser pending the arrival of backup units and

investigation into whether Williams had a concealed carry permit and his correct

identity. Id. at 34.

       {¶4} Upon the arrival of backup units, the passengers were removed from

the vehicle and a roadside search based upon the odor of marijuana was

conducted. The search turned up a baggie of marijuana, and 98 methamphetamine

pills. The search also revealed a wallet between the driver’s seat and the center

counsel, which contained an Alabama driver’s license, a Visa card, a MasterCard,

and a social security card all in the name of “Chase Ezell”. The wallet also

contained an Arizona Department of Public Safety fingerprint clearance card, a

social security card, a Sams Club card; a MasterCard, and a swim club card all in

the name of “Richard Smith”. There was also a pawn receipt, AAA card, an

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Alabama driver’s license and a temporary Alabama driver’s license all in the name

of “Michael Weeks.” The photo on “Michael Weeks” driver’s license did not

match the appearance of Williams. The search also produced a binder containing

personal identifying information for “Tommy Smith”, “Francis Martin”, “Emily

Burton”, “Calvin Madison”, “Demetrius James”, Williams, “Maria Montano”,

“Chase Ezell”, “Kenneth Lanier”, “Terry Stewart”, “Cordale Davis”, and a

marriage certificate for “Willie Spruill” and “Betty Jean Weatherspoon”. After

Williams was arrested, he was given his Miranda warnings and he signed a waiver

of those rights. Williams agreed to speak and admitted to possessing the drugs,

the gun, and the binder.

       {¶5} On March 13, 2013, the Auglaize County Grand Jury indicted

Williams on six counts: 1) Identity Fraud in violation of R.C. 2913.49, a felony of

the fifth degree; 2) Carrying a Concealed Weapon in violation of R.C.

2923.12(A)(2)(F)(1), a felony of the fourth degree; 3) Possessing a Weapon While

Under a Disability in violation of R.C. 2923.13(A)(3), a felony of the third degree;

4) Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(c), a felony of the

second degree; 5) Receiving Stolen Property in violation of R.C. 2913.51(A), a

felony of the fifth degree; and 6) Tampering with Evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree.      Doc. 5.    On March 21, 2012,

Williams filed a motion for a bill of particulars and a written demand for

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discovery. Doc. 14, 15. Williams also entered a written plea of not guilty and

waived arraignment in open court. Doc. 17. The State filed the bill of particulars

on March 26, 2013. Doc. 20.

      {¶6} On April 19, 2013, Williams filed a motion to suppress all the

evidence alleging that the initial search of the vehicle was improper. Doc. 37. A

hearing was held on June 3 and July 29, 2013. Doc. 90. On September 10, 2013,

the trial court entered its judgment denying the motion to suppress. Id. On

September 16, 2013, the State moved in open court to dismiss Count Three of the

indictment, which was granted by the trial court. Doc. 107.

      {¶7} A jury trial was held from October 2 to October 3, 2013, on the

remaining counts of the indictment. Doc. 144. The jury returned verdicts of

guilty on Counts One, Two, and Four. Id. The jury returned a verdict of not

guilty as to Count Five. Id. The jury found Williams not guilty of Count Six, but

guilty of the lesser included offense of Attempted Tampering with Evidence in

violation of R.C. 2921.12(A)(1)/2923.02(A), a felony of the fourth degree. Id. A

sentencing hearing was held on November 19, 2013. Doc. 157. The trial court

ordered that Williams serve eleven months in prison for Count One, seventeen

months in prison for Count Two, seven years in prison for Count Four, and

seventeen months in prison for Count Six. Id. The trial court ordered that the

sentences for Counts One, Two and Six were to be served consecutive to each

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other, and Count Four was to be served consecutive to Count Two, but

concurrently with Counts One and Six. Id. Williams filed his notice of appeal on

December 18, 2013.        Doc. 171.     On appeal Williams raises the following

assignments of error.

                             First Assignment of Error

       [Williams’] conviction for possession of drugs must be reversed
       because the key evidence supporting the conviction was gathered
       by state troopers without a search warrant in violation of
       [Williams’] rights under the United States and Ohio
       Constitutions.

                           Second Assignment of Error

       [Williams] was deprived of his right to the effective assistance of
       trial counsel when trial counsel failed to raise the
       unreasonableness of the search in his motion to suppress.

                            Third Assignment of Error

       The trial court erred when it denied [Williams’] Crim.R. 29(A)
       motion for acquittal on Count I, identity fraud, because the
       conviction is not supported by sufficient evidence. The State
       presented insufficient evidence to support all of the essential
       elements of the charge of identity fraud beyond a reasonable
       doubt, and [Williams’] conviction for identity fraud therefore
       violates his rights to due process.

                           Fourth Assignment of Error

       [Williams] was deprived of his right to the effective assistance of
       trial counsel when trial counsel failed to request a waiver of
       court costs at sentencing.

In the interests of clarity, we will address the assignments of error out of order.

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        {¶8} Williams alleges in the first assignment of error that the trial court

erred in denying his motion to suppress because the car was searched incident to

arrest.1 A search is reasonable pursuant to the Fourth Amendment if it is based

upon probable cause and executed pursuant to a warrant. Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This requires first that there

be probable cause, which is a reasonable grounds for the belief of guilt. State v.

Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804. “Probable cause must

be based upon objective facts that would justify the issuance of a warrant by a

magistrate.” Id. at 49. Once probable cause is found, an officer must obtain a

search warrant unless an exception to the warrant requirement applies. Id. “If the

state fails to satisfy either step, the evidence seized in the unreasonable search

must be suppressed.” Id. (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (1961)). In Moore, supra, the Ohio Supreme Court held that the

odor of marijuana provides probable cause for a search. Id. “The well-established

automobile exception allows police to conduct a warrantless search of a vehicle if

there is probable cause to believe that the vehicle contains contraband or other

evidence that is subject to seizure, and exigent circumstances necessitate a search

or seizure.” State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992).


1
  Although this was not the grounds upon which the motion to suppress was requested below, the trial court
did address the legitimacy of the search of the vehicle in its judgment. Additionally, the question is also
raised in the second assignment of error. Thus, we will address the issue here as well.

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       {¶9} The U.S. Supreme Court has set forth the rule for searches of

automobiles incident to arrest in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710,

173 L.Ed.2d 485 (2009). In Gant, the defendant was arrested for driving on a

suspended license, handcuffed, and locked in a patrol car. The officers then

proceeded to perform a warrantless search of his vehicle incident to his arrest.

During the search, the officers found cocaine in a jacket pocket. In determining

whether the warrantless search was permissible, the U.S. Supreme Court held as

follows.

       Police may search a vehicle incident to a recent occupant’s
       arrest only if the arrestee is within reaching distance of the
       passenger compartment at the time of the search or it is
       reasonable to believe the vehicle contains evidence of the offense
       of arrest. When these justifications are absent, a search of an
       arrestee’s vehicle will be unreasonable unless police obtain a
       warrant or show that another exception to the warrant
       requirement applies.

Id. at 1723-24.

       {¶10} This court has previously addressed the holding in Gant. In State v.

Sheridan, 3d Dist. Allen No. 1-10-50, 2011-Ohio-6011, the defendant was

observed driving a vehicle which made a wide turn. The vehicle then parked and

the driver, along with a passenger, got out and began walking away. The officer

approached the men and asked the driver for identification. The driver admitted

he did not have a driver’s license and he was then arrested and placed in the back


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of the officer’s cruiser. Backup units had arrived and were speaking with the

passenger. The officer then went over to the vehicle and searched it, finding a

loaded handgun wedged between the driver’s seat and the center console. The

defendant was eventually charged with carrying a concealed weapon.               The

defendant challenged the search before the trial court because the officer stated

that he searched the vehicle incident to the defendant’s arrest for driving without a

license. The trial court denied the motion to suppress the results of the search. On

appeal, this court reversed holding that since the defendant was unable to reach the

vehicle and since there was not likely to be any evidence related to the offense for

which the defendant was arrested, driving without a license, the search incident to

arrest was improper. This court then reversed the trial court’s denial of the motion

to suppress because the State had failed to present any other justification for the

warrantless search.

       {¶11} We addressed the same issue in State v. Morelock, 3d Dist. Allen No.

1-12-21, 2013-Ohio-641, but reached a different result.          In Morelock, the

defendant was observed parking his vehicle in front of a known drug house in a

high crime area. An officer ran the plates and was informed that they were

invalid. When Morelock left the house a few minutes later, the officer initiated a

traffic stop, but Morelock did not stop immediately, but took his time. As the

officer was approaching, Morelock made furtive movements, which concerned the

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officer that Morelock was either trying to hide contraband or a weapon. Morelock

was instructed to exit the vehicle where he was moved to the side of the road with

another officer. The stopping officer then looked into the vehicle where he had

seen the movement and observed a wadded up tissue. The tissue was retrieved

and crack cocaine was found inside it. Morelock was then arrested. Morelock’s

subsequent motion to suppress the search as incident to arrest was overruled. On

appeal, this court affirmed the holding of the trial court because the search was not

incident to arrest because Morelock had not been arrested and was not likely to

have been arrested for invalid plates. The search of the vehicle was done for the

purpose of officer safety and was limited to the area in which the officer was

concerned that Morelock might have hidden a weapon based upon what the officer

observed. In addition, Morelock, unlike Sheridan, arrived in a high crime area at

1:15 a.m., parked in front of a known drug house, entered the house and left a

couple minutes later, drove off, hesitated before stopping when the officer

activated his lights, and made furtive movements in the vehicle. All of these

factors, when taken together, gave the officer probable cause to search the vehicle

under the automobile exception to the warrant requirement. Thus, this court held

that the Gant holding did not apply because there was another exception to the

warrant requirement.



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       {¶12} In this case, the facts are more like those in Morelock than those in

Gant or Sheridan. The defendant was pulled over for driving at an excessive rate

of speed on the interstate. When the officer approached the car, he noted a strong

smell of marijuana coming from the car. The identification presented to him was

unusual. When being questioned, Williams kept trying to put his hands in his

pocket even after being asked not to do so. When Williams was searched, the

officer found a loaded handgun in Williams’ pocket, though the defendant had not

informed the officer about the weapon when asked. Given all of these factors, the

officer had probable cause to believe that a crime involving contraband had

occurred and to search the vehicle for that contraband. Although Williams was

under arrest, the passengers were not at that time, and could have driven the

vehicle away. There were exigent circumstances and the automobile exception

applied in this case. Since another exception to the warrant requirement, besides a

search incident to arrest applied in this case, Gant does not. The trial court did not

err in denying the motion to suppress and the first assignment of error is overruled.

       {¶13} In the third assignment of error, Williams argues that his conviction

for identity theft was not supported by sufficient evidence and the trial court

should have granted his motion for acquittal.

       Crim.R. 29(A) provides that a court must order the entry of a
       judgment of acquittal of a charged offense “if the evidence is
       insufficient to sustain a conviction of such offense[.]” However,

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       “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.” State v. Bridgeman, 55
       Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. Thus, a motion
       for acquittal tests the sufficiency of the evidence. State v. Tatum,
       3d Dist. Seneca No. 13–10–18, 2011-Ohio-3005, ¶ 43.

State v. Kaczmarek, 3d Dist. Hancock No. 5-12-32, 2013-Ohio-5658, ¶ 20. When

determining whether the evidence is sufficient to support a criminal conviction,

the appellate court must inquire as to whether, after viewing the evidence in a light

most favorable to the State, a rational trier of fact could have found the material

elements of the crime proven beyond a reasonable doubt. State v. Tibbetts, 92

Ohio St.3d 146, 161-62, 2001-Ohio-132, 749 N.E.2d 226. “We will not overturn a

conviction for insufficiency of the evidence unless we find that reasonable minds

could not reach the conclusion reached by the trier of fact.” Id.

       {¶14} Here, the State charged Williams with Identity Fraud.

       (B) No person, without the express or implied consent of the
       other person, shall use, obtain, or possess any personal
       identifying information of another person with the intent to * * *

       (2) Represent the other person’s               personal      identifying
       information as the person’s own                personal      identifying
       information.

R.C. 2913.49(B)(2). Williams claims that the State did not prove that he lacked

consent of Michael Weeks to use his identifying information. A review of the



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record indicates that the issue of consent was not addressed at the trial. However,

the same statutes provides as follows.

      (2) It is an affirmative defense to a charge under division (B) * *
      * of this section that either of the following applies:

      ***

      (b)    The personal identifying information was obtained,
      possessed, used, created, or permitted to be used for a lawful
      purpose * * *.

R.C. 2913.49(F)(2)(b). “The burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance of the evidence,

for an affirmative defense, is upon the accused.” R.C. 2901.05(A). In addition, it

would not be “for a lawful purpose” to present another’s identification to an

officer and claim to be that person when stopped for a traffic violation. Given the

failure of the defense to present evidence regarding the affirmative defense of

consent, the trial court did not err in denying the Crim.R. 29 motion for acquittal

as to Count One. The third assignment of error is overruled.

      {¶15} The second and fourth assignments of error both allege that Williams

was denied effective assistance of counsel.

      In evaluating whether a petitioner has been denied effective
      assistance of counsel, this court has held that the test is “whether
      the accused, under all the circumstances, * * * had a fair trial
      and substantial justice was done.” State v. Hester (1976), 45
      Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of
      the syllabus. When making that determination, a two-step

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       process is usually employed. “First, there must be a
       determination as to whether there has been a substantial
       violation of any of defense counsel’s essential duties to his client.
       Next, and analytically separate from the question of whether the
       defendant’s Sixth Amendment rights were violated, there must
       be a determination as to whether the defense was prejudiced by
       counsel's ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d
       391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on
       other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
       1154.

       On the issue of counsel’s ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; * *915 State v.
       Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d
       at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905.

       {¶16} Williams alleges in the second assignment of error that counsel was

ineffective for failing to raise the unreasonableness of the search in his motion to

suppress. This court notes that although trial counsel did not raise the issue of the

search of the car in the motion to suppress, the trial court did consider the search

and found it to be constitutional. This court has reviewed the issue above and

found the search to be based upon probable cause and an exception to the warrant

requirement pursuant to the automobile exception.           Since the search was

permissible, trial counsel did not err by failing to challenge the search in the

motion to suppress. The second assignment of error is overruled.



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       {¶17} In the fourth assignment of error, Williams claims his counsel was

ineffective for failing to request a waiver of court costs at sentencing.

       (A)(1) In all criminal cases, including violation of ordinances, the
       judge or magistrate shall include in the sentence the costs of
       prosecution, including any costs under [R.C. 2947.231], and
       render a judgment against the defendant for such costs. * * *

       ***

       (C) The Court retains jurisdiction to waive, suspend, or modify
       the payment of costs of prosecution, including any costs under
       [R.C. 2947.231] at the time of sentencing or at any time
       thereafter.

R.C. 2947.23.     This very issue has been addressed by this court in State v.

Weimert, 3d Dist. Auglaize No. 2-10-35, 2011-Ohio-2846.              In Weimert, the

defendant claimed trial counsel was ineffective for failing to object to the

imposition of court costs even though the defendant was indigent. This court held

that since the Ohio Supreme Court, in State v. White, 103 Ohio St.3d 580, 2004-

Ohio-5989, 817 N.E.2d 393, requires all courts to assess court costs against all

convicted defendants, counsel cannot be ineffective for failing to object to the trial

court doing so. Weimert, supra at ¶ 9. Additionally, since the release of Weimert,

the statute has been amended. The new version of the statute went into effect on

March 22, 2013, and is cited above. This version, unlike the one in Weimert,

provides the trial court with ongoing jurisdiction to waive, suspend or modify

costs at sentencing or at any time after sentencing. Thus, even if counsel should

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have objected to the imposition of costs, the error is not prejudicial. The fourth

assignment of error is thus overruled.

       {¶18} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Auglaize County is affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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