[Cite as State v. Pate,
2024-Ohio-5769.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2024-L-019
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
DEMARKES T. PATE,
Trial Court No. 2023 CR 001201
Defendant-Appellant.
OPINION
Decided: December 9, 2024
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Demarkes Pate (“appellant”), appeals his conviction
of possession of cocaine, a second-degree felony, in the Lake County Court of Common
Pleas.
{¶2} On appeal, appellant argues that the trial court erred when it denied his
motion to suppress and declined to remove trial counsel and appoint new counsel. He
also argues that his conviction is against the manifest weight of the evidence.
{¶3} Upon review of the record, we conclude that the trial court properly denied
appellant’s motion to suppress as law enforcement officers had probable cause to arrest
appellant. The drugs were found on appellant during a search incident to arrest.
{¶4} We further hold that the trial court did not abuse its discretion when it denied
appellant’s request to remove and replace his court appointed trial counsel when he failed
to establish a conflict of interest, a complete breakdown of communication, or an
irreconcilable conflict between appellant and his counsel.
{¶5} Finally, appellant’s conviction of possession of cocaine is consistent with
the manifest weight of the evidence. After arrest, appellant was found to be in possession
of a plastic bag containing a white powder. The white powder tested positive for cocaine
and the mixture weighed in excess of twenty grams, but less than twenty-seven grams.
Appellant, who testified at trial, admitted that the powder in his pocket included cocaine.
As such, the jury did not lose its way when it convicted appellant of possession of cocaine.
{¶6} The judgment of the Lake County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶7} On December 8, 2023, the Lake County Grand Jury returned a two-count
indictment charging appellant with possession of cocaine, a second-degree felony, in
violation of R.C. 2925.11(A)(C)(4)(d) (“Count 1”) and aggravated menacing, a
misdemeanor of the first-degree, in violation of R.C. 2903.21(A) (“Count 2”).1
{¶8} Arraignment was held on December 13, 2023. Appellant, through trial
counsel, filed his motion to suppress the same day seeking suppression of all evidence
obtained upon his arrest and subsequent search incident to his arrest. The State filed its
1. This case was bound over from the Willoughby Municipal Court on November 15, 2023.
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response on January 3, 2024. Within the memorandum, the State also sought permission
to supplement their memorandum based on the Ohio Supreme Court’s decision State v.
Randolph, 2023-Ohio-4753. The trial court granted the extension. The State filed their
supplemental memorandum in opposition to appellant’s motion to suppress on January
8, 2024.
{¶9} A suppression hearing was held on January 10, 2024. The State presented
two witnesses, Officer Jeremy Blackstone of the City of Willoughby Police Department
(“Officer Blackstone”) and Detective Gabriel Sleigh (“Detective Sleigh”), and two exhibits,
the lease agreement and the dash cam video at the hearing. However, the lease
agreement was not admitted for purposes of the suppression hearing.
{¶10} The trial court subsequently denied the motion to suppress in its entirety.
The matter proceeded to a jury trial on February 5, 2024.
{¶11} The following facts were presented at the jury trial:
{¶12} Kevin Corkan (“Corkan”) lives in an apartment in Building 1343 of the Fox
Run Apartments located in Lake County, Ohio. According to Corkan, appellant lived in
the apartment building across from Corkan’s and that the pair would occasionally smoke
outside. A few days before September 28, 2023, Corkan had suspected that appellant
had stolen some money from him and reported the theft.
{¶13} Corkan testified that at around 9:30 in the morning on September 28, 2024,
appellant pounded on Corkan’s door. Corkan testified that he came out into the hallway
to talk to appellant who was demanding Corkan retract his statement about his suspicions
regarding appellant’s involvement in a theft. Corkan declined to do that. At some point, a
neighbor named Valencia also came into the hallway. According to Corkan, appellant
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clenched his fist and looked like he was going to punch Corkan but stopped. When
appellant was leaving, Corkan testified that appellant claimed he used to be in a gang
that would kill people for involving the police. Corkan asked if appellant was saying he
was going to kill him, and Corkan testified that appellant shrugged and nodded his head
affirmatively.
{¶14} Corkan testified he placed a 911 call after appellant threatened him on
September 28, 2023. He testified that the police arrived quickly and subsequently
detained appellant.
{¶15} Kimbery Kaste, a police and ambulance dispatcher for the City of
Willoughby, took the 911 call from Kevin Corkan. The 911 recording was admitted as
State’s Exhibit 1 and played for the jury. The 911 recording establishes that Corkan called
911 after an individual named “D” threatened his life twice. He indicated that “D” was at
the apartment building across from his building.
{¶16} Detective Sleigh testified that he, along with Detective David Burrington
(“Detective Burrington”), were at the Fox Run Apartments Leasing Office inquiring about
the theft report when they heard dispatch over the radio requesting officers to respond to
a Fox Run Apartments. Detectives responded to Corkan’s apartment and Officer
Blackstone arrived shortly thereafter. Officers, including the detectives, were not
equipped with body-worn cameras. However, Officer Blackstone activated his dash cam
which has a body-worn audio recorder, which captured audio of encounters at the Fox
Run Apartments. The dash cam recording was admitted as State’s Exhibit 2.
{¶17} Detective Sleigh testified that he and Detective Burrington took statements
from Corkan about the threats and identified appellant as the individual who made the
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threatening comments. After taking Corkan’s statement, officers went to the apartment
that Corkan identified as appellant’s apartment. Appellant was inside and was arrested
for aggravated menacing. Detective Sleigh testified that after appellant was handcuffed,
Officer Blackstone conducted a pat down search of appellant’s person and located a
plastic bag containing white powder. Detective Sleigh testified that appellant told officers
the bag contained powdered sugar. The plastic bag contained cocaine that was admitted
as State’s Exhibit 3.
{¶18} Officer Kevin Rastall of the Willoughby Police Department (“Officer Rastall”)
retrieved the plastic bag of white powder from Detective Sleigh, and took it to the police
department to be processed as evidence. Officer Rastall placed the bag and its contents
into an evidence bag, sealed the bag, and labeled it. The labeled evidence was then
stored in an evidence locker for transportation to the laboratory.
{¶19} William Koubek (“Koubek”), a supervisor of chemistry and toxicology at the
Lake County Crime Laboratory, received the evidence package including the plastic bag
of white powder from the Willoughby Police Department. Koubek determined that the
white powder contained in the plastic bag was 26.51 grams of cocaine.
{¶20} Appellant also testified on his own behalf. Appellant testified that officers
repeatedly told him he was being charged with trespass and that the officers violated his
constitutional rights. He further admitted that the white powder was cocaine.
{¶21} At the conclusion of trial, the jury convicted appellant of possession of
cocaine, as charged in Count 1 of the indictment. The jury also found that the weight of
the cocaine was greater than 20 grams but less than 27 grams. Further, appellant was
found “not guilty” of aggravated menacing as charged in Count 2. A presentence
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investigation (“PSI”) and a drug and alcohol evaluation were ordered to be completed
prior to sentencing.
{¶22} On February 28, 2024, the trial court sentenced appellant to an indefinite
prison term of four years to a maximum term of six years, a mandatory fine of $5,000 and
costs. After the trial court announced its sentence, defense counsel moved for a bond
pending an appeal which was denied by the trial court.
{¶23} Appellant appeals and raises the following assignments of error for review:
[1.] “The trial court erred in denying appellant’s motion to
suppress of all evidence against him, in violation of this rights
pursuant to the Fourth Amendment to the United States
Constitution.”
[2.] ”The trial court erred and abused its discretion by denying
appellant’s various requests to remove his appointed counsel
and appoint replacement counsel.”
[3.] “Appellant’s conviction is against the manifest weight of
the evidence.”
Motion to Suppress
{¶24} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 2003-Ohio-5372, ¶ 8. “[T]he trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses.”
Id. citing State v. Mills,
62 Ohio St. 3d 357. We must accept
the trial court’s findings of fact if they are supported by competent, credible evidence, and
then independently decide whether those facts satisfy the applicable legal standards
without deference to the trial court’s decision.
Id. “Once an appellate court determines
whether the trial court's factual findings are supported by the record, the court must then
engage in a de novo review of the trial court's application of the law to those facts.” State
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v. Eggleston, 2015-Ohio-958, ¶ 18 (11th Dist.), citing State v. Lett,
2009-Ohio-2796, ¶ 13
(11th Dist.).
{¶25} The following testimony was presented at the suppression hearing:
{¶26} Officer Blackstone testified that at approximately 2:00 p.m. on September
28, 2023, he was dispatched to the Fox Run Apartments to investigate a possible theft
offense and disturbance. The property manager was requesting that appellant be
removed from the premises. The Fox Run complex consists of multiple buildings. Officer
Blackstone activated his dash cam video recorder which also captures audio from a body-
worn microphone.
{¶27} Upon arrival at the apartment complex, Officer Blackstone went to the
management office. The property manager, an employee, and appellant were inside the
office. Officer Blackstone testified he recognized appellant, having personally
encountered appellant earlier on September 28, 2023, in downtown Willoughby. Appellant
had previously been arrested and cited for disorderly conduct as a result of a domestic
argument between appellant and his mother.
{¶28} Officer Blackstone testified that appellant became upset when appellant
saw the officer and started swearing. The property manager wanted appellant banned
from the building and advised that appellant was not a tenant. The property manager told
appellant to retrieve any personal belongings and to leave the apartment complex. Officer
Blackstone then left the apartment complex.
{¶29} Approximately an hour later, Officer Blackstone testified that he was called
back to the complex due to a complaint from a male stating someone had threatened to
kill him. While enroute to the complex, Officer Blackstone received a call from detectives,
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who were presently at the complex investigating the theft of a large sum of cash. Detective
Sleigh testified that he and Detective Burrington were at the leasing office following up on
a burglary report filed by the caller, Kevin Corkan, two days prior. The detectives indicated
they would meet Officer Blackstone at Building 1343.
{¶30} Officer Blackstone testified that he responded to Building 1343 to speak
with Corkan. Upon arrival at Corkan’s second floor apartment, Officer Blackston and
Detective Sleigh indicated that Corkan appeared upset and shaken. Corkan reported that
appellant, the individual who allegedly stole his cash, verbally threatened him and told
him that “people get killed for this kind of stuff.” Corkan reported that appellant was
clenching his fist like he was going to hit him. When Corkan asked if appellant was
threatening to kill him, Corkan reported to police that appellant nodded his head,
shrugged his shoulders, and said he was in a gang in Cleveland. Corkan provided officers
and detectives with information regarding appellant’s whereabouts in the complex and
that appellant was with appellant’s sister in Building 1345.
{¶31} According to Officer Blackstone, when he arrived at the apartment identified
by Corkan, the detectives were standing outside of the apartment door talking with
appellant who was standing in the doorway. Officer Blackstone, recognizing the appellant
from his earlier encounters with him, asked appellant to step into the hallway. According
to Officer Blackstone and Detective Sleigh, appellant gave a concerned look like he might
not comply with the officer’s request. Officer Blackstone then grabbed appellant’s arm
and brought him into the hallway. Officer Blackstone and Detective Sleigh testified that
they did not enter the apartment.
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{¶32} Appellant was arrested and was searched incident to his arrest. During the
search officers discovered a bag of white powder in appellant’s front pocket consistent
with a controlled substance.
{¶33} After appellant’s arrest, Detective Sleigh went back to the Fox Run
Apartments and obtained a copy of the lease for the apartment appellant was inside of
with his sister. The lease was not admitted as an exhibit for the purposes of the
suppression hearing.
{¶34} On January 29, 2024, the trial court denied the motion to suppress and
concluded that officers had probable cause to arrest appellant for trespass and for
aggravated menacing.
{¶35} Appellant takes issue with the trial court’s conclusion that the officers had
probable cause to arrest appellant on the trespassing charge. He argues that the trial
court ignored the Ohio Supreme Court’s decision in State v. Randolph, 2023-Ohio-4753
wherein the Court held that “a landlord or landlord’s agent, without first reserving the
authority to do so in the lease agreement for the property, may not prohibit a person from
entering onto the property such that a tenant is prohibited from inviting that person onto
the property.” Id. at ¶ 22.
{¶36} The trial court determined Randolph to be inapplicable because the decision
“came out three months after appellant’s arrest and law enforcement had no reason to
anticipate the decision.” In other words, officers, one of which was present earlier in the
day when appellant was told to gather his personal belongings and leave, had a good
faith belief that appellant’s refusal to do so amounted to a criminal trespass.
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{¶37} This Court finds Randolph distinguishable from the case sub judice for
several reasons. First, the Randolph Court analyzed the sufficiency of evidence to support
a conviction of trespass. It does not discuss probable cause or an alleged Fourth
Amendment violation. Moreover, it is factually distinct as this case is not premised solely
on an alleged trespass. Instead, this case involves both trespass and aggravated
menacing. Therefore, even if the officer lacked probable cause to arrest appellant for
trespassing pursuant to Randolph, officers had probable cause to arrest appellant on the
aggravated menacing charge. “Probable cause to arrest depends ‘upon whether, at the
moment the arrest was made ... the facts and circumstances within [the arresting officers']
knowledge and of which they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the [suspect] had committed or was committing
an offense.’” State v. Norris, 1999 WL 1000034, *2 (2d Dist. Nov. 5, 1999), quoting Beck
v. Ohio,
379 U.S. 89, 91 (1964).
{¶38} In this case, officers had Corkan’s report and statement that appellant
threatened to kill him after Corkan accused appellant of theft. This constitutes reasonable,
trustworthy information for officers to believe that appellant committed the offense of
aggravated menacing.
{¶39} Further, R.C. 2935.03(B)(1) provides in relevant part: “[w]hen there is
reasonable ground to believe that an offense of violence … has been committed within
the limits of the political subdivision … in which the peace officer is appointed,
employed, or elected or within the limits of the territorial jurisdiction of the peace officer,
a peace officer described in division (A) of this section may arrest and detain until a
warrant can be obtained any person who the peace officer has reasonable cause to
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believe is guilty of the violation.” Pursuant to R.C. 2901.01(A)(9)(a), Aggravated Menacing
is an offense of violence.
{¶40} As such, officers could arrest and detain appellant without a warrant on the
aggravated menacing in accordance with R.C. 2935.03(B)(1).
{¶41} “An officer who makes a lawful arrest may conduct a warrantless search of
the arrestee's person and of the area ‘within his immediate control.’” State v. Adams,
2015-Ohio-3954, ¶ 182, quoting Chimel v. California,
395 U.S. 752, 763, (1969). “The
search-incident-to-arrest exception has two rationales: protecting arresting officers and
safeguarding evidence that the arrestee might conceal or destroy.”
Id., citing Arizona v.
Gant,
556 U.S. 332, 339 (2009). State v. Washington,
2023-Ohio-4484, ¶ 60 (11th Dist.).
{¶42} As determined above, officers lawfully arrested appellant. In conducting a
proper warrantless search of his person, officers discovered the cocaine. Therefore, upon
review, we conclude that the trial court’s denial of appellant’s motion to suppress was
proper.
{¶43} Appellant’s first assignment of error is without merit.
Request to Remove and Replace Appointed Trial Counsel
{¶44} In his second assignment of error, appellant asserts that the trial court
abused its discretion when it denied appellant’s request to remove and replace his
appointed trial counsel. We disagree.
{¶45} Appellant made several pro se requests to remove and replace his
appointed counsel through the public defender’s office. Appellant cites two of those
requests in this appeal.
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{¶46} First, on December 7, 2023, prior to the indictment being filed, appellant
filed a motion to remove the Lake County Public Defender’s Office from his case. He
alleged that his mother and the director had a personal relationship. Specifically, his
mother had taken a course as a student where the director was the instructor. He did not
allege how such a relationship with the director of the office, who did not serve as
appellant’s counsel, was problematic. The motion was denied on December 11, 2023.
{¶47} Second, on the day of trial, the trial court acknowledged appellant made a
second pro se request to remove counsel. The trial court indicated at the hearing that
appellant’s request was a handwritten letter-like pleading that was believed to have been
filed with the clerk of courts. However, upon review of the docket, it does not appear to
have been filed. Appellant explained that he was dissatisfied with his appointed counsel
and felt that she did not address important details and facts at the suppression hearing
or throughout the case and failed to subpoena body worn camera recordings. However,
it is worth noting that no such recording existed as the Willoughby Police Department did
not have body camera devices. Appellant alleged that he included other grounds in
support of his request to remove his counsel in his written “motion.” However, the hand-
written pleading is not part of the record before us.
{¶48} On appeal, appellant argues, without specificity, that the trial court abused
its discretion when it denied appellant’s request to remove and replace appointed
counsel.
{¶49} It is well established that “an indigent defendant has a right to competent
counsel, not a right to counsel of his own choosing.” State v. Blankenship, 102 Ohio
App.3d 534, 558, (12th Dist.1995).The right to competent counsel does not require that
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a criminal defendant develop and share a “meaningful relationship” with his attorney.
Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
{¶50} Therefore, to be entitled to the appointment of substitute counsel, an
indigent defendant must establish good cause, such as an actual conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict which leads to an
apparently unjust result. State v. Benson, 2021-Ohio-1013, ¶ 9 (11th Dist.), citing
Blankenship at 558. Indeed, the Ohio Supreme Court has held that an indigent defendant
must show “a breakdown in the attorney-client relationship of such magnitude as to
jeopardize the defendant's right to effective assistance of counsel” to discharge a court-
appointed attorney. State v. Coleman,
37 Ohio St.3d 286 (1988), paragraph four of the
syllabus.
{¶51} As this Court recognized in Benson, “the conflict must be so severe that a
denial of substitution of counsel would implicate a violation of the Sixth Amendment right
to counsel. Benson at ¶ 10 quoting Blankenship at 558.” Therefore, where there is no
Sixth Amendment concern present, “the decision of a trial court to refuse substitution of
counsel will be reversed only if the court has abused its discretion.” Benson, citing State
v. Pruitt,
18 Ohio App.3d 50, 57 (8th Dist.1984).
{¶52} While appellant may be dissatisfied with the outcome of the suppression
hearing, appellant presented nothing to the trial court that suggested a conflict of interest,
a complete breakdown in communication, or an irreconcilable conflict between appellant
and his counsel. As such, he was not entitled to replacement counsel and the trial court
did not abuse its discretion when it denied appellant’s request.
{¶53} His second assignment of error is without merit.
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Manifest Weight
{¶54} In his third and final assignment of error, appellant argues that his conviction
for possession of cocaine is against the manifest weight of the evidence. We disagree.
{¶55} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25. “In other words, a reviewing court asks
whose evidence is more persuasive—the state’s or the defendant’s?”
Id. “‘The court,
reviewing the entire record, weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” State v. Thompkins,
78 Ohio
St.3d 380, 387 (1997), quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983).
“‘When a court of appeals reverses a judgment of a trial court on the basis that the verdict
is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.’”
Id., quoting Tibbs
v. Florida,
457 U.S. 31, 42 (1982). “‘The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.’”
Id., quoting
Martin at 175.
{¶56} Appellant was convicted of possession of cocaine, a second degree felony,
in violation of R.C. 2925.11 (A)(C)(4)(d). R.C. 2925.11(A) provides: “that [n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” Subsection (C)(4) which is specific to cocaine, details the degree of the offense
based upon the weight of cocaine involved. In this case, appellant was convicted of
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possessing cocaine which equaled or exceeded twenty grams but was less than twenty-
seven grams of cocaine. R.C. 2925.11(C)(4)(d).
{¶57} Appellant argues that “it was uncontroverted that police authorities were
unable to determine whether a legally significant amount of cocaine existed in the powder
recovered, versus the plethora of legal substances.” However, the State is not required
to prove the purity of the substance or otherwise weigh individual components in the
mixture.
{¶58} The Supreme Court of Ohio held in State v. Gonzales, 2017-Ohio-777, ¶ 3
“that the entire ‘compound, mixture, preparation, or substance,’ including any fillers that
are part of the usable drug, must be considered for the purpose of determining the
appropriate penalty for cocaine possession under R.C. 2925.11(C)(4).” Therefore, the
entire mixture’s weight, including any legal substances used as fillers, must be
considered.
{¶59} In the instant case, officers, upon appellant’s arrest, searched his person
and discovered a bag of suspected drugs. That bag of white powder was tested and
confirmed to contain cocaine. Koubek determined that the weight of that cocaine,
including all fillers, was 26.41 grams. At trial, appellant admitted that the plastic bag found
in his pocket contained cocaine.
{¶60} Upon review of the entire record, we conclude that the jury did not lose its
way in convicting appellant of possession of cocaine. The record supports the jury's
conclusion, and their decision does not create a miscarriage of justice. As such,
appellant's conviction is not against the manifest weight of the evidence.
{¶61} Appellant’s third assignment of error is without merit.
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{¶62} For reasons set forth above, the judgment of the Lake County Court of
Common Pleas is hereby affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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