[Cite as State v. Goldsmith, 2015-Ohio-261.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 13CA116
DARNELL L. GOLDSMITH

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2013 CR0451D


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         January 15, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            RANDALL E. FRY
Prosecuting Attorney                           10 West Newlon Place
Richland County, Ohio                          Mansfield, Ohio 44902

By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA116                                                       2

Hoffman, P.J.


       {¶1}   Defendant-appellant Darnell L. Goldsmith appeals his conviction entered

by the Richland County Court of Common Pleas on two counts of burglary and one

count of possession of criminal tools. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   About 1:00 a.m., on the morning of July 8, 2013, the victim herein, K.S.,

was sleeping on a couch in her living room at 76 Penn Avenue where she lives with her

husband. K.S. was startled awake by a man standing across the room from her. He took

a couple steps toward her stating, "Don't say anything and I won't hurt you." When he

saw bottles of medications near the love seat across from her, he told K.S. he was

taking her medications. K.S. screamed for her husband and ran upstairs. The burglar

then ran out the back door. K.S. called 911 to report the home invasion, and police

responded in minutes. K.S. described the burglar as wearing a black sweat jacket,

pants and a black stocking cap.

       {¶3}   Shortly thereafter, Officer Rietschlin of the Mansfield Police Department

observed Appellant walking across Park Avenue West, 4 or 5 blocks from K.S.’s house

on Penn Avenue. Appellant was wearing dark long sleeved clothing generally matching

the description of the burglar. The clothing was noted as being out of season for the

weather. Officer Rietschlin exited his vehicle, and Appellant then proceeded in

approaching Officer Rietschlin. The officer asked Appellant if he would consent to a pat

down search, and Appellant agreed to the search. Officer Rietschlin found a black

stocking cap, a pair of gloves, a small flashlight and a screwdriver in Appellant’s jacket

pockets. Appellant told the officer he had just found these four items. Another officer
Richland County, Case No. 13CA116                                                       3


brought K.S. to the scene, a spotlight was turned on Appellant’s face and K.S. identified

Appellant as the person who was in her house during the home invasion.

       {¶4}   Appellant later filed a notice of alibi stating he was walking home from his

mother's house to his baby's mother’s house on King Street when Officer Rietschlin

stopped him. Subsequently, while being held in the jail pending trial, he engaged in a

recorded phone call with Pastor Mackey, in which he admitted to being at K.S.’s house

on the evening in question.

       {¶5}   On August 12, 2013, Appellant was indicted by the Richland County

Grand Jury on two counts of burglary, both felonies of the second degree, in violation of

R.C. 2911.12(A)(1) and (A)(2); and one count of possession of criminal tools in violation

of R.C. 2923.24(A), a felony of the fifth degree.

       {¶6}   On October 8, 2013, Appellant filed a motion to suppress evidence. A

hearing on the motion was held on October 22, 2013. Appellant argued the items

discovered on his person in the initial pat down should be suppressed because the pat

down was improper. The trial court denied the motion to suppress.

       {¶7}   Appellant waived his right to a jury trial, and the matter proceeded to a

bench trial on December 5, 2013. The trial court found Appellant guilty on all counts.

The trial court imposed a total prison term of seven years incarceration after the two

burglary counts were merged as allied offenses.

       {¶8}   Appellant appeals, assigning as error:

       {¶9}   "THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL

ASKED QUESTIONS CONCERNING TESTIMONY GIVEN BY WITNESSES AT A
Richland County, Case No. 13CA116                                                    4


PRELIMINARY        HEARING     WITHOUT       HAVING      A   TRANSCRIPT     OF     THE

PRELIMINARY HEARING

       {¶10} "THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL DID

NOT FILE A MOTION TO SUPPRESS THE OUT OF COURT IDENTIFICATION OF

THE APPELLANT

       {¶11} "THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S

MOTION TO SUPPRESS BASED THAT [SIC] ON THE INITIAL POLICE STOP OF

THE APPELLANT VIOLATED THE APPELLANT'S FOURTH AMENDMENT RIGHTS

OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION

ARTICLES I AND XIV."

                                             I.& II.

       {¶12} Appellant’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶13} Appellant asserts he was denied the effective assistance of trial counsel.

The standard this issue must be measured against is set out in State v. Bradley, 42

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

establish the following:

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

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

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. ( State v. Lytle [1976], 48 Ohio St.2d 391, 2
Richland County, Case No. 13CA116                                                       5

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

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

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

       deficient performance, the defendant must prove that there exists a

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

       the trial would have been different.

       {¶14} Initially, Appellant alleges his trial counsel was ineffective in failing to

cross- examine K. S., the victim herein, regarding her alleged prior inconsistent

statements. Counsel did not attempt to impeach K.S. using the preliminary hearing

transcript or the police report. Appellant specifically focuses on statements regarding

the number and names of medications taken from the home during the night of the

incident.

       {¶15} Upon review, we find this issue ancillary to the issue before the trial court

as to whether Appellant committed the offense of burglary. The specific names and

indications of the medications, as well as the victim’s recollections thereof, are not at

issue herein. Further, her exact recollection of the same does not adversely reflect on

K.S.'s credibility. The record before this Court does not affirmatively demonstrate any

inconsistencies existed.

       {¶16} Accordingly, we find Appellant has not established the outcome of the trial

would have been otherwise had trial counsel cross-examined K.S. as to her alleged

prior inconsistent statements on the issue. Further, we note, a transcript of the

preliminary hearing was not made a part of the record on appeal. Therefore, Appellant

cannot establish prejudice as a result thereof.
Richland County, Case No. 13CA116                                                          6


       {¶17} Appellant further maintains his trial counsel was ineffective in failing to

move the trial court to suppress the out-of-court identification of Appellant by K.S., the

victim herein.   Specifically, Appellant asserts the motion would have allowed trial

counsel to present evidence as to whether there was a basis to suppress the in-court

identification. Appellant maintains at the hearing on the motion to suppress, trial counsel

would have had the opportunity to present evidence to show the circumstances

surrounding the out-of-court identification were not proper and violated the due process

afforded to Appellant.

       {¶18} Appellant does not articulate a basis for suppressing the out-of-court

identification, nor does Appellant establish the outcome of the trial would have been

otherwise but for the alleged error of counsel. Based upon the victim's testimony, we

find it unlikely the in-court identification was so impermissibly unreliable so as to warrant

exclusion. Accordingly, we find Appellant has not established prejudice as a result of

counsel’s performance.

       {¶19} The first and second assignments of error are overruled.

                                                III.

       {¶20} In the third assignment of error, Appellant maintains the trial court erred in

denying Appellant’s October 8, 2013 motion to suppress the arrest herein on the

grounds the officer who approached Appellant did not have probable cause to do so.

       {¶21} 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
Richland County, Case No. 13CA116                                                          7

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

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.

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

of fact are not against the manifest weight of the evidence and it has properly identified

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

ultimate or final issue raised in the motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court's conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger.

       {¶22} The Fourth Amendment to the United States Constitution protects

individuals against unreasonable searches and seizures. Without a search warrant, a

search is per se unreasonable unless it falls under a few established exceptions. Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Once the

defendant shows the search was warrantless, the burden shifts to the state to show it

was permissible under one of the exceptions. Id. Consent is one exception to the

warrant requirement. If an individual voluntarily consents to a search, then no Fourth

Amendment violation occurs. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct.

2041, 36 L.Ed.2d 854 (1973).

       {¶23} The law within the State of Ohio recognizes three types of police-citizen

encounters. The three types of encounters are consensual encounters, Terry stops, and
Richland County, Case No. 13CA116                                                        8

arrests. State v. Stonier, 5th Dist. Stark No. 2012 CA 00179, 2013-0hio-2188, 41; citing

State v. Taylor, 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2nd Dist.1995). A

consensual encounter occurs when a police officer approaches a citizen in public,

engages that person in conversation, requests information, and that person is free to

refuse to answer and walk away. Id. A consensual encounter does not implicate the

Fourth Amendment’s protection unless the police officer has in some way restrained the

person's liberty by a show of authority or force such that a reasonable person would not

feel free to decline the officer's request or otherwise terminate the encounter. Taylor, at

747. An officer's request to examine a person's identification or search a person's

belongings does not make an encounter nonconsensual. Florida v. Rodriguez, 469 U.S.

1, 4-6, 105 S.Ct. 308 (1984); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382 (1991).

Additionally, the request to conduct a pat-down does not render an encounter non-

consensual. State v. Hardin, 2nd Dist. Montgomery No. 20305, 2005-0hio-130, 19- 20.

      {¶24} A Terry stop is an investigatory detention. Such a stop is valid if the officer

has reasonable and articulable suspicion of criminal activity. Taylor at 749. For such a

stop to be valid, the officer must be able to point to specific facts when coupled with

reasonable inferences from those facts to reasonably warrant the intrusion. The stop

"must be viewed within the totality of the circumstances" presented to the officer at the

time. State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044, (1980), paragraph one of

syllabus. "An officer need not shrug his shoulders at suspected criminal activity because

he lacks probable cause to arrest; rather a brief stop of a suspicious individual, in order

to determine his identity or to maintain the status quo while obtaining more information

may be reasonable in light of the facts known to the officer at the time." Freeman, at
Richland County, Case No. 13CA116                                                        9

295-296; citing Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921 (1972)

(internal citations removed).

       {¶25} An officer can conduct a limited protective search for concealed weapons

when the officer has reasonably concluded the individual whose suspicious behavior he

is investigating at close range is armed and presently dangerous to the officer or others.

State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993). The officer does not

need to be certain the person has a weapon on them to initiate a pat down. State v.

Smith, 56 Ohio St.2d 405, 384 N.E.2d 280 (1978). Rather, the standard by which the

officer is judged is that of a reasonably prudent man under the circumstances, who

would be warranted in the belief his safety was in danger. Id. at 407.

       {¶26} The only evidence presented at the suppression hearing was the

testimony of Mansfield Police Officer Jacob Rietschlin. Officer Rietschlin testified he

received a call regarding a burglary at 76 Penn. Ave. in progress around 1:00 a.m.

[Suppression Transcript 6.] He stopped in a high crime area of Park Avenue and

Sherman, where there were not many people about. [Transcript 7-8]. The officer heard

over the radio the suspect was a black male, around 6 feet tall, wearing a dark jacket

and dark pants. [Transcript at 7.] Officer Rietschlin saw Appellant crossing Park Avenue

and observed he resembled the description of the individual involved in the burglary. He

was heading away from the scene of the crime, and was four to five blocks away. He

was spotted walking rapidly away from the incident location about five minutes after the

incident first came out on the radio. [Transcript at 7-10, 15, 19.] The officer pulled over

and exited his vehicle. Appellant approached the officer. Officer Rietschlin informed

Appellant he matched the description of a suspect in a burglary, and then asked
Richland County, Case No. 13CA116                                                         10


Appellant to consent to a pat down. Appellant complied without objection. [Transcript at

10-12]. During the pat down, Officer Rietschlin found a stocking hat, gloves, a small

flashlight, and a screwdriver in Appellant’s jacket pockets. [Transcript at 13.] Appellant

was dressed oddly for the warm night and gave no reason for wearing weather-

inappropriate clothes. Appellant claimed to have found the items.

       {¶27} The trial court overruled the motion to suppress, finding Appellant was

patted down as part of a consensual encounter. We agree. Appellant initiated the

encounter with Officer Rietschlin as he approached the officer, he consented to the pat

down search. The evidence does not demonstrate Appellant was not free to leave or the

officer in anyway detained Appellant.

       {¶28} Assuming arguendo the stop at issue should be classified as a Terry stop,

we find the officer had enough evidence to demonstrate reasonable, articulable

suspicion to stop Appellant. Appellant was observed four to five blocks from the scene

of the burglary, moving away from the residence only five minutes after the burglary

occurred. Appellant matched the description provided by the victim of the crime, and

was wearing weather inappropriate attire at the time. Appellant was a black male,

around six feet tall, and dressed in a dark jacket zipped up and dark jeans - matching

the description of the perpetrator. The evidence introduced at the suppression hearing

would constitute reasonable and articulable facts justifying a Terry stop to initiate further

investigation.

       {¶29} The third assignment of error is overruled.
Richland County, Case No. 13CA116                                         11


      {¶30} The judgment entered by the Richland County Court of Common Pleas

overruling the motion to suppress is affirmed.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur
