[Cite as State v. Howell,
2021-Ohio-1417.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2020 CA 0062
LAMAR HOWELL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2019-
CR-0801
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP GLORIA L. SMITH
Prosecuting Attorney 670 Meridian Way, #188
BY: JOSEPH SNYDER Westerville, OH 43082
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Howell, 2021-Ohio-1417.]
Gwin, J.,
{¶1} Defendant-appellant Lamar BN Howell [“Howell”] appeals from the April 13,
2020 Judgment Entry of the Richland County Court of Common Pleas that denied his
motion to suppress.
Facts and Procedural History
{¶2} On November 25, 2019 Howell was indicted for Count One: Aggravated
Possession of Drugs, in violation of R.C. 2925.11(A)&(C)(1)(c), a felony of the second
degree, with a Forfeiture Specification, in violation of R.C. 2941.1417; Count Two:
Having Weapons While Under Disability, in violation of R.C. 2923.13(A)(3)&(B), a felony
of the third degree, with a Forfeiture Specification, in violation of R.C. 2941.1417, and
Count Three: Possession of a Fentanyl-Related Compound, a violation of R.C.
2925.11(A)&(C)(11)(a), a felony of the fifth degree.
{¶3} On February 11, 2020, Howell filed a motion to suppress all evidence seized
from Howell’s person incident to his arrest, arguing that there was a lack of probable
cause for the arrest. The following evidence was presented during the evidentiary hearing
on Howell’s motion to suppress held in the trial court on April 1, 2020.
{¶4} Howell’s 13 year-old son came to Mansfield from his mother’s home in
Columbus sometime in October 2019. Supp. T. at 28-29.1 He brought a handgun with him
in his backpack that had been given to him by a friend. Supp. T. 30. Howell picked up his
son in Columbus and drove him to his home in Mansfield. Id. Howell’s son did not tell
Howell about the gun. Id. at 32.
1For clarity the transcript of the April 1, 2020 hearing on Howell’s motion to suppress will be referred
to a “Supp.T.”
Richland County, Case No. 2020 CA 0062 3
{¶5} Howell’s son made a video at Howell’s residence that showed the boy with
the handgun. Supp. T. at 32. This video was posted on the internet where some of the
boy’s classmates watched it. Id. Sometime on September 26, 2019, Howell was called to
his son’s school concerning the video. Supp. T. at 7. The school resource officer, Officer
Brewster, contacted Detective Dave Scheurer to meet Howell at Howell’s residence.
Supp. T. at 7.
{¶6} At the residence Howell executed a written consent to search form provided
to him by the officers. Supp. T. at 8; State’s Exhibit 1. Howell then told Detective Scheurer
that he could show him where the gun was hidden. Id. at 9. Howell then led the officers
around the house purporting to look for the handgun. Id. at 10. After approximately thirty
minutes, Detective Scheurer believed that Howell was being evasive. Id. Detective
Scheurer contacted Howell’s parole officer for assistance. Id. at 10-11. Eventually,
Detective Scheurer found a box for the handgun in a dresser in the living room area. Id.
at 12. Howell told Detective Scheurer that Howell’s ex-girlfriend owned the handgun and
had left the box at his residence. Id.
{¶7} Detective Scheurer called the school resource officer to see if Howell’s son
knew the whereabouts of the handgun. Detective Scheurer was informed that the boy
had stated the gun was in the attic in a pink milk crate. Supp. T. at 11. Finding no pink
milk crate in the attic, Detective Scheurer eventually located the handgun in a laundry
basket underneath some clothing. Id. He then arrested Howell for having a weapon while
under disability. During the search incident to arrest the drugs in question were found in
Howell’s pocket. Supp. T. at 13.
Richland County, Case No. 2020 CA 0062 4
{¶8} The trial court overruled Howell’s motion to suppress by Judgment Entry
filed April 13, 2020.
{¶9} On August 28, 2020, Howell entered a plea of No Contest plea to Count
One: Aggravated Possession of Drugs, a felony of the second degree, with forfeiture
specification, and to Count Three: Possession of a Fentanyl-Related Compound, a felony
of the fifth degree. The state dismissed Count Two: Having Weapons under Disability.
{¶10} On Count One, Howell was sentenced to 4 to 6 years mandatory time in
prison, and on Count Three Howell was sentenced to 12 months in prison, sentences to
be served concurrent to each other, with 3 years mandatory post-release control.
Assignments of Error
{¶11} Howell raises two Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THERE
WAS PROBABLE CAUSE TO ARREST APPELLANT FOR HAVING A WEAPON
UNDER DISABILITY.
{¶13} “II. THE TRIAL COURT'S FINDINGS OF FACT WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I & II.
{¶14} In his First Assignment of Error, Howell maintains his awareness of the
handgun arose because he saw his son's video at the school with the resource officer,
and therefore, the officers did not have sufficient probable cause to arrest him for having
unlawful possession of the gun. In his Second Assignment of Error, Howell contends the
state failed to present the testimony of the school resource officer, and without this
Richland County, Case No. 2020 CA 0062 5
testimony, the state did not meets its burden that there was probable cause to arrest
Howell for possessing an unlawful weapon.
Standard of Appellate Review – Motion to Suppress
{¶15} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155,
2003-Ohio-5372,
797 N.E.2d
71, ¶ 8. 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 witness
credibility. See, State v. Dunlap,
73 Ohio St.3d 308, 314,
652 N.E.2d 988 (1995); State v.
Fanning,
1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982). Accordingly, a reviewing court must
defer to the trial court’s factual findings if competent, credible evidence exists to support
those findings. See
Burnside, supra;Dunlap, supra; State v. Long,
127 Ohio App.3d 328,
332,
713 N.E.2d 1 (4th Dist. 1998); State v. Medcalf,
111 Ohio App.3d 142,
675 N.E.2d
1268 (4th Dist. 1996). However, once this Court has accepted those facts as true, it must
independently determine as a matter of law whether the trial court met the applicable legal
standard. See
Burnside, supra, citing State v. McNamara,
124 Ohio App.3d 706,
707
N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu,
534 U.S. 266,
122
S.Ct. 744,
151 L.Ed.2d 740 (2002); Ornelas v. United States,
517 U.S. 690,
116 S.Ct.
1657,
134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court’s findings
of fact is subject to a de novo standard of review
Ornelas, supra. Moreover, due weight
should be given “to inferences drawn from those facts by resident judges and local law
enforcement officers.”
Ornelas, supra at 698,
116 S.Ct. at 1663.
Richland County, Case No. 2020 CA 0062 6
Issue for Appellate Review: Whether there was sufficient evidence to
establish that the officers had probable cause to arrest Howell for Having
Weapons While under Disability.
{¶16} R.C. 2923.13 Having Weapons While under Disability provides in relevant
part,
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm
or dangerous ordinance, if any of the following apply:
…
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been
a felony offense of violence.
{¶17} In the case at bar, the defense stipulated that Howell was under disability
at the time the officers searched his home. Supp. T. at 13. Therefore the only issue is
whether the officers had probable cause to believe that Howell had knowledge that the
handgun was in his home. “Whether a person acts knowingly can only be determined,
absent a defendant's admission, from all the surrounding facts and circumstances,
including the doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563,
763 N.E.2d
695 (1st Dist. 2001) (Footnote omitted.) Thus, “[t]he test for whether a defendant acted
knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,
2nd Dist. Montgomery No. 16221,
1998 WL 214606 (May 1, 1998), citing State v. Elliott,
104 Ohio App.3d 812,
663 N.E.2d 412 (10th Dist. 1995).
Richland County, Case No. 2020 CA 0062 7
{¶18} The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Because arrests are “seizures” of “persons,” they must be reasonable under the
circumstances. See, Payton v. New York, 445 U.S. 573, 585,
100 S.Ct. 1371,
63 L.Ed.2d
639 (1980). A warrantless arrest is reasonable if the officer has probable cause to believe
that the suspect committed a crime in the officer’s presence. Atwater v. Lago Vista,
532
U.S. 318, 354,
121 S.Ct. 1536,
149 L.Ed.2d 549 (2001). In District of Columbia v. Wesby,
the United States Supreme Court defined the standard as follows,
To determine whether an officer had probable cause for an arrest,
“we examine the events leading up to the arrest, and then decide ‘whether
these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to probable cause.’” Maryland v. Pringle,
540 U.S. 366, 371,
124 S.Ct. 795,
157 L.Ed.2d 769 (2003) (quoting Ornelas
v. United States, 517 U.S. 690, 696,
116 S.Ct. 1657,
134 L.Ed.2d 911
(1996)). Because probable cause “deals with probabilities and depends on
the totality of the circumstances,” 540 U.S., at 371,
124 S.Ct. 795, it is “a
fluid concept” that is “not readily, or even usefully, reduced to a neat set of
legal rules,” Illinois v. Gates, 462 U.S. 213, 232,
103 S.Ct. 2317,
76 L.Ed.2d
527 (1983). It “requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Id., at 243–244, n. 13,
103
S.Ct. 2317 (1983). Probable cause “is not a high bar.” Kaley v. United
States, 571 U.S. ––––, ––––, 134 S.Ct. 1090, 1103,
188 L.Ed.2d 46 (2014).
___U.S.___,
138 S.Ct. 577, 586,
199 L.Ed.2d 453(2018).
Richland County, Case No. 2020 CA 0062 8
{¶19} “When the constitutional validity of an arrest is challenged, it is the function
of a court to determine whether the facts available to the officers at the moment of the
arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been
committed”. Beck v. Ohio, 379 U.S. 89, 96,
85 S.Ct. 223,
13 L.Ed.2d 142(1964), citing
Carroll v. United States,
267 U.S. 132, 162,
45 S.Ct. 280, 288,
69 L.Ed. 543. Accord,
State v. Elmore,
111 Ohio St.3d 515,
2006-Ohio-6207,
857 N.E.2d 547, ¶ 39. In State v.
Perez, the Ohio Supreme Court added,
“Probable cause does not require the same type of specific evidence
of each element of the offense as would be needed to support a conviction.”
Adams v. Williams (1972), 407 U.S. 143, 149,
92 S.Ct. 1921,
32 L.Ed.2d
612. Rather, probable cause is a “practical, nontechnical conception,”
Brinegar v. United States (1949), 338 U.S. 160, 176,
69 S.Ct. 1302,
93 L.Ed.
1879, that “turn[s] on the assessment of probabilities in particular factual
contexts.” Illinois v. Gates (1983), 462 U.S. 213, 232,
103 S.Ct. 2317,
76
L.Ed.2d 527.
124 Ohio St.3d 122,
2009-Ohio-6169,
920 N.E.2d 104, ¶73 (emphasis in original).
{¶20} R.C. 2925.01(K) defines possession as follows: “‘Possess’ or ‘possession’
means having control over a thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found.” R.C. 2901.21 provides the requirements for
criminal liability and provides that possession is a “voluntary act if the possessor
knowingly procured or received the thing possessed, or was aware of the possessor’s
Richland County, Case No. 2020 CA 0062 9
control of the thing possessed for sufficient time to have ended possession.” R.C.
2901.21(D)(1).
{¶21} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d
174, 176,
538 N.E.2d 98(1989); State v. Haynes,
25 Ohio St.2d 264,
267 N.E.2d
787(1971); State v. Hankerson,
70 Ohio St.2d 87,
434 N.E.2d 1362(1982), syllabus. To
establish constructive possession, the evidence must prove that the defendant was able
to exercise dominion and control over the contraband. State v. Wolery,
46 Ohio St.2d
316, 332,
348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial
evidence alone. State v. Trembly,
137 Ohio App.3d 134,
738 N.E.2d 93(8th Dist. 2000).
Circumstantial evidence that the defendant was located in very close proximity to the
contraband may show constructive possession. State v.
Butler, supra; State v. Barr,
86
Ohio App.3d 227, 235,
620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th
Dist. Licking No. 2004 CA 68,
2005-Ohio-4714,¶ 50; State v. Moses, 5th Dist. Stark No.
2003CA00384,
2004-Ohio-4943,¶ 9. Ownership of the contraband need not be
established in order to find constructive possession. State v. Smith, 9th Dist. Summit No.
20885,
2002-Ohio-3034, ¶ 13, citing State v. Mann,
93 Ohio App.3d 301, 308,
638 N.E.2d
585(8th Dist. 1993). Furthermore, possession may be individual or joint. Wolery,
46 Ohio
St.2d at 332,
348 N.E.2d 351. Multiple individuals may constructively possess a particular
weapon simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA 2675,
2000-Ohio-1986.
The Supreme Court has held that knowledge of illegal goods on one’s property is
sufficient to show constructive possession. State v. Hankerson,
70 Ohio St.2d 87, 91,
434
N.E.2d 1362, 1365(1982), certiorari denied,
459 U.S. 870,
103 S.Ct. 155,
74 L.Ed.2d
130(1982).
Richland County, Case No. 2020 CA 0062 10
{¶22} In the case at bar, Howell’s son posted a video from Howell’s home in which
the son displayed a handgun. Howell told Detective Scheurer that he could show him
where the gun was hidden. Supp. T. at 9. Howell claimed he forgot where he put the gun
as he led the officers around the home purporting to retrieve the weapon. Howell claimed
he did not know about the handgun until he viewed the online video made by his son;
however upon, finding a box belonging to the handgun in the living room Howell claimed
the handgun belonged to his girlfriend, suggesting that Howell was aware of the
handgun’s presence. Howell’s misleading and evasive behavior gave the officers reason
to discredit everything he had told them. For example, the officers could infer from
Howell’s leading them around the home indicating his inability to remember where he had
put the handgun that Howell was lying and that his lies suggested a guilty mind. Upon
finding the box belonging to the handgun in the living room and Howell’s contention that
the handgun was his ex-girlfriends the officers could infer that Howell was aware a
handgun was in the home.
{¶23} “Probable cause” is a lesser standard of proof than a “beyond reasonable
doubt” standard. “An officer is not required to determine whether someone who has been
observed committing a crime might have a legal defense to the charge.” State v. Mays,
119 Ohio St.3d 406,
2008-Ohio-4538,
894 N.E.2d 1204, ¶ 17. The question of whether a
defendant might have a possible defense to a charge is irrelevant in our analysis of
whether an officer has probable cause to initiate an arrest.
Id.
{¶24} During a suppression hearing, the trial court assumes the role of trier of fact
and, as such, is in the best position to resolve questions of fact and to evaluate witness
credibility." State v. Downs, 5th Dist. Licking Nos. 13-CA-77, 13-CA-76, 2014-Ohio-589,
Richland County, Case No. 2020 CA 0062 11
1117, citing State v. Brooks,
75 Ohio St.3d 148, 154,
661 N.E.2d 1030 (1996). The Ohio
Rules of Evidence give a trial judge broad discretion concerning the admissibility of
evidence presented at a suppression hearing. State v. Edwards, 5th Dist. Tuscarawas
No. 2003 AP 09 0077,
2004-Ohio-870,
2004 WL 362209, ¶ 18. However, at a suppression
hearing, a trial court may rely on hearsay and other evidence, even though that evidence
would not be admissible at trial. See Maumee v. Weisner,
87 Ohio St.3d 295, 298,
720
N.E.2d 507(1999), quoting United States v. Raddatz,
447 U.S. 667, 679,
100 S.Ct. 2406,
65 L.Ed.2d 424. (1980).
{¶25} Viewing the circumstances as a whole, a reasonable officer would conclude
that there was probable cause to believe Howell knew that there was a gun in his house.
The trial judge neither lost his way nor created a miscarriage of justice in finding that the
officers had probable cause to arrest Howell. Based upon the totality of the
circumstances, the arrest of Howell for Having Weapons While Under Disability was
supported by probable cause.
Richland County, Case No. 2020 CA 0062 12
{¶26} Howell’s First and Second Assignments of Error are overruled.
{¶27} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, J.,
Baldwin, P.J., and
Hoffman, J., concur
