State v. Hicks

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[Cite as State v. Hicks, 2002-Ohio-2926.] IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 01CA125 T.C. CASE NO. 01-CR-97 DONALD WILLIAM HICKS: (Criminal Appeal Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 14th day of June, 2002. . . . . . . . . . William F. Schenck, Pros. Attorney; Robert K. Hendrix, Asst. Pros. Attorney, 61 Greene Street, Second Floor, Xenia, Ohio 45385, Atty. Reg. No. 0037351 Attorney for Plaintiff-Appellee Robert A. Bostick, Talbott Tower, Suite 233, 131 N. Ludlow Street, Dayton, Ohio 45402, Atty. Reg. No. 0023870 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Donald Hicks, appeals from his conviction and sentence for receiving stolen property, R.C. 2913.51, which were entered on his plea of no contest after the trial court had denied Hicks motion to suppress evidence. {¶2} blank The evidence that Hicks sought to suppress was a check on the previously been stolen. account of LeRoy Kelley that had The check was seized by police in a search of Hicks person incident to his 2 for arrest unauthorized use of a license plate, R.C. 4949.08, a fourth degree misdemeanor. That offense was discovered after police stopped Hicks vehicle for a taillight violation, R.C. 4513.05. Hicks was charged with that offense. also with charged 4503.21. a display of plates He was violation, R.C. Both are minor misdemeanors, for which a citation must be issued in lieu of arrest R.C. 2935.26. {¶3} Seizing on the fact that he was not charged with the unauthorized use of a license plate offense for which he was arrested, Hicks argued that the search which yielded the stolen check requiring was prohibited suppression of that by the Fourth evidence as Amendment, proof of the receiving stolen property offense. {¶4} The trial court overruled Hicks motion. It rejected his argument that he d been arrested improperly instead of cited on two minor misdemeanors. The court found that Hicks was arrested for unauthorized use of license plate, a fourth degree misdemeanor authorizing his arrest. Hicks was not charged with that offense, however, because the search incident to his arrest yielded proof of receiving stolen property, which is a first degree misdemeanor, the offense with which Hicks was charged. {¶5} his Defendant has timely appealed to this court from conviction and sentence. We stayed Defendant s sentence pending this appeal. FIRST ASSIGNMENT OF ERROR execution of {¶6} MOTION TO "THE TRIAL SUPPRESS COURT ERRED EVIDENCE IN 3 APPELLANT S DENYING OBTAINED AS A RESULT OF A TRAFFIC STOP, AS SUCH JUDGMENT IS NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE AND IS AGAINST THE WEIGHT OF THE EVIDENCE." {¶7} In ruling on a motion to suppress evidence, the trial court assumes the role of the trier of facts. In reviewing the trial court s decision, the court of appeals must accept the trial court s findings of fact if they are supported by competent, credible evidence in the record. Accepting those facts as true, the court of appeals must independently determine, as a matter of law and without deference to the trial court s conclusion, whether those facts satisfy the applicable legal standard. State v. Satterwhite (1997), 123 Ohio App. 3d 322. {¶8} A full search of an arrestee s person incident to his lawful custodial arrest for a traffic offense does not violate the Fourth Amendment. Ohio St.2d 216. State v. Ferman (1979), 58 However, R.C. 2935.26 which governs when a police officer may arrest for a minor misdemeanor, provides: {¶9} "(A) Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, unless one of the following applies: {¶10} "(1) The offender requires medical care or is 4 unable to provide for his own safety. {¶11} "(2) The offender cannot or will not offer satisfactory evidence of his identity. {¶12} "(3) The offender refuses to sign the citation. {¶13} "(4) The offender has previously been issued a citation for the commission of that misdemeanor and has failed to do one of the following: {¶14} "(a) Appear at the time and place stated in the citation; {¶15} "(b) Comply with division (C) of this section." {¶16} Absent 2935.26(A), violates a the one or more custodial Fourth of arrest Amendment the exceptions for a to Constitution and Section 14, Constitution, and evidence obtained minor the Article in misdemeanor United I of incident R.C. States the to Ohio such an arrest is subject to suppression in accordance with the exclusionary rule. State v. Jones (2000), 88 Ohio St.3d 430. {¶17} Defendant argues that the evidence presented at the suppression hearing does not support the trial court s finding that Defendant was arrested for a fourth degree misdemeanor, and not for two minor misdemeanors. We disagree. {¶18} The clearly testimony demonstrates Defendant s vehicle of that Officers they because made they Stayer a and traffic observed Gudgell stop two of minor misdemeanor traffic offenses: 5 taillights/brakelights, no R.C. 4513.05, and a display of license plates violation, R.C. 4503.21. This warrantless stop of Defendant s vehicle was reasonable for Fourth Amendment purposes. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 1996-Ohio-431. {¶19} Defendant was issued traffic citations for those minor misdemeanor offenses. Officers Stayer testified that and He was not arrested on them. Gudgell, Defendant and was Det. Chalecki, all instead arrested for unauthorized use of a license plate in violation of R.C. 4549.08, after police discovered that the validation sticker on Defendant s plate belonged to another vehicle. {¶20} A violation of R.C. 4549.08 is a misdemeanor of the fourth degree, not a minor misdemeanor. Therefore, the citation in lieu of arrest requirements of R.C. 2935.26 do not apply. Defendant was not subsequently charged with that offense because, after the stolen check was found on his person in a search incident to his arrest on the license plate violation, officers decided to charge Defendant with the more serious offense of receiving stolen property in violation of R.C. 2913.51, a first degree misdemeanor. Defendant was convicted of that charge upon his plea. {¶21} There record that is competent, supports the credible trial evidence court s in this finding that Defendant was arrested for a fourth degree misdemeanor, not for two minor misdemeanors. Accordingly, Defendant s arrest was lawful, and the subsequent search of his person incident to that lawful contraband that custodial is the reasonable and proper. properly overruled arrest, subject which of these Ferman, supra. Defendant s motion produced 6 the charges, was The trial court to suppress that evidence. {¶22} The assignment of error is overruled. judgment of the trial court will be affirmed. BROGAN, J. and YOUNG, J., concur. Copies provided by the court to: Robert K. Hendrix, Esq. Robert A. Bostick, Esq. Hon. Thomas M. Rose The

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