[Cite as State v. Robinson, 2014-Ohio-4709.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :        C.A. CASE NO.       25977

v.                                                       :        T.C. NO.      12CR1683

EDWARD ROBINSON                                          :            (Criminal appeal from
                                                                       Common Pleas Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          24th       day of         October        , 2014.

                                               ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                               ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Edward Robinson appeals from his conviction and

sentence for one count of kidnapping (sexual activity), in violation of R.C. 2905.01(A)(4), a
                                                                                            2

felony of the first degree. In his sole assignment of error, Robinson argues that the trial

court erred when it overruled his motion to suppress, finding that he did not have standing to

challenge the search of the residence which yielded the evidence supporting his conviction

for kidnapping. Robinson filed a timely notice of appeal with this Court on October 28,

2013.

        {¶ 2}   The incident which forms the basis for the instant appeal occurred on March

2, 2011, when a package was intercepted by Montgomery County Sheriff’s Deputy Gerald

Bemis at a UPS store in West Carrolton, Ohio. Dep. Bemis found the package after

conducting a K-9 “free air sniff” of several suspect packages at the UPS store. Once Dep.

Bemis’ K-9 unit alerted to the suspect package, he obtained a warrant to open and inspect it.

The package was found to contain over ten pounds of marijuana. A GPS locator was placed

inside the package in order to monitor its location. The package was being shipped to a

single family residence located at 2645 Orchard Run Road, Miami Township, Montgomery

County, Ohio. The package had been sent from California and was addressed to “Peggy

Richards,” but no one by that name was found to be residing at the address in question.

        {¶ 3}   Montgomery County Sheriff’s Office Deputy Douglas Reed obtained an

anticipatory search warrant to track the package to its ultimate destination. At the time of

the incident, Dep. Reed was a detective assigned to the Montgomery County R.A.N.G.E.

Task Force, a regional organization with state, federal, and local agency involvement

focusing on narcotics and drug trafficking. Another member of the Task Force, Detective

Diane Taylor posed as a UPS manager who was delivering the package past normal delivery

hours. Det. Taylor delivered the package to 2645 Orchard Run Road, and it was accepted
                                                                                            3

and taken inside the residence by a female, later identified as Stacey Harden.

       {¶ 4}    Approximately ten minutes after the package was delivered and taken into

the house by Harden, Dep. Reed executed the anticipatory search warrant. Dep. Reed

removed Harden from the house and placed her in the back of an unmarked police cruiser.

Dep. Reed and other members of the Task Force searched the house. The house was

found to be sparsely furnished, with furniture and household items only observed in the

bedroom and kitchen.      Male and female clothing were found in the bedroom.           Four

handguns were discovered during the search of the house, as well as additional marijuana in

a suitcase located inside the house. Officers also recovered approximately $7,708.00 from

inside the residence. Det. Taylor also noted that two laptop computers, a video camera, a

television, and GPS were seized from the residence. The video camera was later found to

contain video footage of Robinson engaging in a forced sexual encounter with an impaired

victim. The footage formed the basis for his conviction for kidnapping (sexual activity).

       {¶ 5}    After the house had been searched, Dep. Reed read Harden her Miranda

rights and interviewed her in the back of the police cruiser. Harden indicated to Dep. Reed

that the lease to the residence was in her name. However, after executing the lease, Harden

claimed that she moved to California, and Robinson began living in the residence. Harden

told Dep. Reed that she had been living in California for approximately a year and that she

was pregnant with Robinson’s child. Harden also informed Dep. Reed that the male clothes

found in the house belonged to Robinson. None of the clothes, however, were marked or

labeled in a manner which suggested who owned them.              Police contacted Robinson

regarding the search of the residence, but he was uncooperative and denied any involvement.
                                                                                            4



       {¶ 6}    A copy of the lease agreement for the 2645 Orchard Run residence was later

obtained by the police. The lease was executed by the owner/landlord Thomas Eagle, a

licensed attorney, and Harden. The lease contained a clause that the residence was to be

used as living quarters for one adult and no children. Harden was the only individual who

signed the lease as a lessee. Robinson’s name appears no where on the lease. Two

envelopes used to send rent payments to Eagle were admitted into evidence at the motion to

suppress hearing. The envelopes bore the return name and address of Harden.

       {¶ 7}    The Forfeiture Petition

       {¶ 8} On March 22, 2011, the State filed a petition for forfeiture in which both

Harden and Robinson were named as respondents in Case No. 2011 CV 2167. In the

petition, the State sought forfeiture of all of the items seized by police from the 2645

Orchard Run residence, including the $7,708.00 in U.S. currency, the laptop computers, and

the video camera. The State alleged in the petition that the items and currency sought to be

forfeited were “possessed, concealed or transported by its owner(s), Stacy Harden and/or

Edward Robinson.” On June 30, 2011, counsel for Robinson filed a brief answer to the

petition in which he simply denied “the allegations in paragraphs 1-7 of the Petition for

Forfeiture.” Neither Harden nor Robinson appeared at the forfeiture hearing. Harden

failed to file an answer to the petition, and the magistrate issued a default judgment against

her.

       {¶ 9}    Ultimately, the magistrate ruled that the $7,708.00 should be forfeited

because the State established by a preponderance of the evidence that the currency was
                                                                                          5

derived from trafficking in marijuana. However, the magistrate found that the State failed

to establish a nexus between marijuana trafficking and the remaining items, including the

video camera. Because he found that Harden had forfeited any interest in the items seized

from the house by failing to file an answer or otherwise appear, the magistrate ordered that

the remaining property be returned to Robinson. The trial court subsequently adopted the

magistrate’s decision.

       {¶ 10} Robinson’s Interview

       {¶ 11} On January 12, 2012, Agent David McMullen from the Bureau of Alcohol,

Tobacco, Firearms and Explosives interviewed Robinson at the Montgomery County Jail.

The subject of the interview concerned where Robinson was residing at the time that the

anticipatory search warrant was executed at the 2645 Orchard Run Road address. Agent

McMullen recorded the entire interview which was admitted into evidence at the

suppression hearing held on April 12, 2013. Regarding the interview with Robinson, Agent

McMullen provided the following testimony at the suppression hearing:

               The State: Did Mr. Robinson express or indicate to you any reluctance

       or hesitancy in speaking with you that day?

               Agent McMullen: No. He was willing to speak right away.

               Q: Was this interview in relation to the property located at 2645

       Orchard Run Road?

               A: Yes.

               Q: At any point during your interview, did you ask or inquire of Mr.

       Robinson of his relationship to that address at 2645 Orchard Run?
[Cite as State v. Robinson, 2014-Ohio-4709.]
                 A: Yes, I did, several times.

                 Q: What answers, if any, did the Defendant give you?

                 A: He stated that he did not live there; further stated that he lived in

        Tennessee during the time of the search warrant. He stated that Stacey

        Harden lived there. At some point, she had moved out and that the place

        was kept for his uncle who was deceased at the time of the interview.

                 Q: Did you ask Mr. Robinson about any of the belongings or personal

        items that were found inside the home?

                 A: Yes, I did.

                 Q: What, if anything, did Mr. Robinson tell you?

                 A: He stated that nothing belonged to him.

                 Q: At any point, did Mr. Robinson tell you that’s not my stuff?

                 A: Yes.

                 Q: For how long did your interview with Mr. Robinson last?

                 A: I believe it was approximately one hour and twenty-seven minutes

        to an hour-and-a-half.

                 Q: At any point during the interview, did Mr. Robinson affirmatively

        assert to you that he resided at 2645 Orchard Run Road?

                 A: No, he did not. In fact, it was the opposite.

                 Q: At any time during your interview with Mr. Robinson, did the

        Defendant indicate to you, affirmatively, that any of the property contained in

        the home belonged to him?

                 A: No, he said it did not belong to him.
                                                                                          7

               Q: At any point during your interview with Mr. Robinson, did he

       make any statements that led you to believe he had any connection to that

       address?

               A: No.

       {¶ 12} Indictment and Conviction

       {¶ 13} Robinson was subsequently indicted in the instant case on August 7, 2012,

for two counts of rape (substantially impaired victim), in violation of R.C.

2907.02(A)(1)(C), both felonies of the first degree; two counts of sexual battery (victim

unaware), in violation of R.C. 2907.03(A)(3), both felonies of the third degree; and one

count of gross sexual imposition (drugs with consent), in violation of R.C. 2907.05(A)(3), a

felony of the fourth degree. All of the charges in the indictment were based on the recorded

footage of Robinson engaging in a forced sexual encounter with an impaired victim retrieved

from the video camera seized during the search of the residence located at 2645 Orchard Run

Road. At his arraignment on August 21, 2012, Robinson stood mute, and the trial court

entered a plea of not guilty on his behalf.1

       {¶ 14} On October 18, 2012, Robinson filed a motion to suppress with respect to

the contents of the video camera, arguing that the item was unlawfully seized because it was

not specifically enumerated in the anticipatory search warrant executed by the Task Force at

the Orchard Run Road residence. Robinson also argued that the State unlawfully possessed

the video camera since the magistrate had ordered that the item be returned to him after the



           1
          At the time of his indictment, Robinson was incarcerated on unrelated
   charges in Shelby County, Ohio.
                                                                                              8

forfeiture hearing in Case No. 2011 CV 2167.

       {¶ 15} At the first suppression hearing on February 8, 2013, the State raised the

issue of Robinson’s standing to challenge the search of the residence located at 2645

Orchard Run Road. Thus, the trial court rescheduled the hearing for April 12, 2013, in

order to address the issue of whether Robinson had standing to challenge the search. Dep.

Reed and Agent McMullen testified at the hearing. After the hearing, the trial court ordered

the parties to submit post-hearing memoranda. On June 19, 2013, the trial court issued a

decision overruling Robinson’s motion to suppress. The trial court found that Robinson

failed to establish by a preponderance of the evidence that he had standing to challenge the

search of the residence and the Handy Cam. In reaching its conclusion, the trial court relied

on the following evidence, to wit: 1) Robinson’s repeated and emphatic statements during

the interview with Agent McMullen that he never resided at the 2645 Orchard Run Road

address and none of the items seized from the house were his; 2) the lease to the residence

was in Harden’s name alone and Robinson’s name appeared no where in the lease; 3) the

lease specifically stated that the residence was to be used as living quarters for one adult and

no children; 4) envelopes that were used to send rent payments bore Harden’s name; and 5)

Robinson filed an answer in Case No. 2011 CV 2167 in response to the Petition for

Forfeiture wherein he expressly denied the State’s assertion that the camera and other listed

items were “possessed, concealed or transported by its owner(s) Stacy Harden and /or

Edward Robinson.” The trial court also noted that no evidence was adduced at the hearing

which indicated that Robinson was the owner of the video camera.

       {¶ 16} After negotiations between the parties, on October 17, 2013, Robinson
                                                                                               9

entered a no contest plea to a bill of information charging him with kidnapping (sexual

activity), and the trial court dismissed all of the charges in the original indictment. The trial

court sentenced Robinson to a prison term of three years, to be served consecutively to his

sentence in a separate federal case.2 The trial court also designated Robinson a Tier II sex

offender/child victim offender.

       {¶ 17} Robinson appeals the trial court’s decision overruling his motion to suppress

finding that he did not have standing to challenge the search of the residence located at 2645

Orchard Run Road and the Handy Cam.

       {¶ 18} Robinson’s sole assignment of error is as follows:

       {¶ 19} “APPELLANT’S CONVICTIONS SHOULD BE REVERSED BECAUSE

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S MOTION TO

SUPPRESS, FINDING HE LACKED A REASONABLE EXPECTATION OF PRIVACY,

IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE FOURTH AMENDMENT

TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION FOURTEEN

OF THE CONSTITUTION OF OHIO.”

       {¶ 20} In his sole assignment, Robinson contends that the trial court erred when it

overruled his motion to suppress. Specifically, Robinson argues that the evidence adduced

at the suppression hearing established that he had standing to challenge the search of 2645

Orchard Run Road, as well as the Sony Handy Cam recovered from inside the residence.

       {¶ 21} As this Court has previously noted:

          2
           We note that the trial court cited Robinson’s federal court proceedings as
   Case No. 2012-CR-0032. However, the correct citation format is as follows:
   U.S. v. Robinson, S.D.Ohio No. 3:12-CR-32, 2012 WL 6738679 (Dec. 31, 2012).
                                                                                            10

              “Appellate courts give great deference to the factual findings of the

       trier of facts. (Internal citations omitted) . At a suppression hearing, the trial

       court serves as the trier of fact, and must judge the credibility of witnesses

       and the weight of the evidence. (Internal citations omitted). The trial court is

       in the best position to resolve questions of fact and evaluate witness

       credibility. (Internal citations omitted). In reviewing a trial court’s decision

       on a motion to suppress, an appellate court accepts the trial court’s factual

       findings, relies on the trial court’s ability to assess the credibility of

       witnesses, and independently determines whether the trial court applied the

       proper legal standard to the facts as found. (Internal citations omitted). An

       appellate court is bound to accept the trial court’s factual findings as long as

       they are supported by competent, credible evidence.”             State v. Hurt,

       Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

       {¶ 22} Standing to invoke the protection of the Fourth Amendment depends on

whether the person who claims it has a legitimate expectation of privacy in the place

invaded by a police search and seizure. State v. Petersen, 166 Ohio App.3d 112,

2006-Ohio-1857, 849 N.E.2d 104, ¶ 9 (2d Dist.); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct.

421, 58 L.Ed.2d 387 (1978). A subjective expectation of privacy is legitimate if it is an

expectation that society is prepared to recognize as reasonable. Id.            A person who

challenges a search bears the burden of proving the expectation in order to show that he has

standing to challenge the legality of that search. State v. Williams, 73 Ohio St.3d 153, 652
                                                                                          11

N.E.2d 721 (1995); State v. Pinson, 2d Dist. Montgomery No. 20927, 2005-Ohio-4532.

Ultimately, a defendant must prove his expectation of privacy by a preponderance of the

evidence. U.S. v. Cardoza-Hinojosa, 140 F.3d 610, 613 (5th Cir.1998).

       {¶ 23} A premises need not be one’s home in order for one to have a legitimate

expectation of privacy in that place. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109

L.Ed.2d 85 (1990). In Olson, the Supreme Court held that an overnight guest may have a

legitimate expectation of privacy in another’s home even when his occupation of the

premises is not exclusive. Id. While the expectation generally attaches to one’s home or

residence, the fact that it does is not a bar to a reasonable expectation of privacy in other

places that a person utilizes for residential purposes. State v. Dooley, 2d Dist. Montgomery

No. 22100, 2008-Ohio-1748, ¶ 15.

       {¶ 24} Upon review, we conclude that the evidence adduced at the suppression

hearing supports the trial court’s finding that Robinson did not possess a legitimate

expectation of privacy in the residence located at 2645 Orchard Run Road nor in the Handy

Cam. Robinson, therefore, lacked standing to challenge the constitutionality of the search.

Initially, we note that we have reviewed the recording of Agent McMullen’s January 12,

2012, interview of Robinson. Robinson’s own recorded statements during the interview

with Agent McMullen are as follows:

              A) After being advised of his Miranda rights, at the 3 minute, 55

       second mark of the interview, Robinson states, “I don’t even live in Ohio.”

              B) At the 4:50 mark, Robinson states that on March 2, 2011, when the

       search warrant was served on the 2645 Orchard Run Road address, “I lived at
                                                                                          12

       4301 Daleview.”

              C) At the 13:00 minute mark, Agent McMullen directly asks

       Robinson, “In March [2011], did you reside at 2645 Orchard Run Road with

       Stacey Harden?” Robinson immediately replies, “No.”

              D) At the 16:36 mark, Agent McMullen informs Robinson that Harden

       said that all of the items in the residence in question belonged to her and him.

       Robinson responds, “I don’t believe that because I was living in Tennessee at

       the time.”

              E) At the 20:12 mark, Robinson states that he was living in Cleveland,

       Tennessee, on the date that the search warrant was executed at the residence

       in question.

              F) At the 21:24 mark, Robinson states that none of the items in the

       Orchard Run residence belong to him.

              G) At the 32:28 mark, Robinson states that the “stuff” in the house

       belonged to his uncle.

              H) At the 41:23 mark, Robinson states that the house was “for his

       uncle” and adds, “but it wasn’t my house.”

       {¶ 25} Furthermore, the lease to the residence located at 2645 Orchard Run Road

was in Harden’s name. Robinson did not sign the lease. The lease specifically states that

the residence was to be used as living quarters for one adult and no children. With the

exception of Harden’s statement to Dep. Reed that she and Robinson rented the house

together, there is no evidence to support this assertion. Robinson claimed that the men’s
                                                                                           13

clothes found in the house belonged to his uncle. Furthermore, Robinson was not present at

the residence when the search warrant was executed. Finally, the envelopes that were used

to send the rent payments bore a return address identifying Harden as the payor.

       {¶ 26} Also significant is the fact that Robinson filed an answer in Case No. 2011

CV 2167 in response to the Petition for Forfeiture wherein he expressly denied the State’s

assertion that the camera and other listed items were “possessed, concealed or transported by

its owner(s) Stacy Harden and /or Edward Robinson.”          The trial court noted that no

evidence was adduced at the hearing which indicated that Robinson was the owner of the

video camera such that he had a reasonable expectation of privacy in the contents therein.3



       {¶ 27} In light of these facts, the trial court correctly found that Robinson failed to

meet his evidentiary burden and establish that he possessed a legitimate expectation of

privacy in the residence located at 2645 Orchard Run Road and the video camera. Thus, we

conclude, as did the trial court, that Robinson was without standing to challenge the search

of the residence in question. The trial court did not err when it overruled Robinson’s

motion to suppress.

       {¶ 28} Robinson’s sole assignment of error is overruled.

       {¶ 29} Robinson’s sole assignment of error having been overruled, the judgment of



          3
           The video camera was ordered returned to Robinson because the State
   had not established a nexus between it and the drug activity. The trial court’s
   order did not include a finding regarding Robinson’s relationship to 2645 Orchard
   Run Road. Also, the second respondent to the forfeiture petition, Harden, had
   not answered the petition nor appeared at the hearing. Further, the trial court
   was not bound by any determination made in the forfeiture proceeding.
                                                                                             14

the trial court is affirmed.

                                          ..........

WELBAUM, J., concurs.

FROELICH, P.J., concurring:

        {¶ 30}    I concur simply to note that the appellant “never testified at the suppression

hearing although he could have done so without fear his testimony could be used by the

State at trial on the issue of guilt.” State v. Henderson, 2d Dist. Montgomery No. 22062,

2008-Ohio-1160, ¶ 21, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19

L.Ed.2d 1247 (1968).

                                          ..........

Copies mailed to:

Kirsten A. Brandt
Anthony R. Cicero
Hon. Dennis J. Langer
