[Cite as State v. Richardson,
2025-Ohio-3128.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL RICHARDSON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 25 BE 0006
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 23 CR 186
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, for Plaintiff-Appellee
Atty. Martin E. Yavorcik, for Defendant-Appellant.
Dated: September 3, 2025
–2–
DICKEY, J.
{¶1} Appellant, Michael Richardson, appeals his conviction for one count of
aggravated possession of drugs (methamphetamine in an amount equal to or exceeding
five times but less than fifty times the bulk amount) in violation of R.C. 2925.11(A)(C)(1),
a felony of the second degree, following a jury trial in the Belmont County Court of
Common Pleas. Appellant was acquitted of one count of aggravated trafficking in drugs
in violation of R.C. 2925.03(A)(2)(C)(1), a felony of the second degree. The trial court
imposed an indefinite sentence of six to nine years.
{¶2} Appellant advances six assignments of error. First, he contends there is
insufficient evidence in the record to sustain his conviction and his conviction is against
the manifest weight of the evidence. Second, he argues his appearance in jail attire and
restraints on the first day of his two-day trial violated his right to the presumption of
innocence. Third, Appellant asserts the trial court abused its discretion in overruling
Appellant’s motion for the appointment of new trial counsel on the first day of trial. Fourth,
Appellant contends the state improperly shifted its burden of proof by asserting during
closing argument that Appellant had offered no evidence in support of his theory of the
case. Fifth, Appellant argues the trial court’s decision overruling the motion to suppress
cannot be reconciled with his conviction for aggravated possession of drugs. Finally,
Appellant asserts cumulative error deprived him of his right to a fair trial. For the following
reasons, Appellant’s conviction is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶3} Two witnesses testified at trial: Terry Fitch, the general manager of the Red
Roof Inn (“hotel”) in St. Clairsville, Belmont County, Ohio; and Jason Schwarck, a
detective with the criminal investigation unit of the Belmont County Sheriff’s Department.
Detective Schwarck was dispatched to the hotel on December 23, 2022 in response to
Fitch’s request for assistance with suspected drugs found in a vacated hotel room.
{¶4} Fitch testified Appellant and his wife were lodged in room 216 of the hotel
from November 29, 2022 to December 22, 2022. Fitch authenticated a registration slip
that established Appellant rented room 216 from November 29, 2022 through December
2, 2022. Additional registration slips indicated Appellant made another reservation
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through December 6, 2022 then another through December 9, 2002. Appellant’s
occupancy was ultimately ended on December 22, 2022, when no new reservation was
made.
{¶5} Fitch testified that departure time at the hotel is 11:00 a.m. Around that time
each day, Fitch acquires a list of rooms with expected departures. As guests often depart
without checking out at the front desk, Fitch performs a cursory check of each room to
ascertain whether the guest has vacated the premises. It is common for Fitch to find
personal property in rooms that are supposed to be vacant, leaving Fitch to wonder
whether the guest intends to extend his stay.
{¶6} Fitch explained he employs a “lock-out” key after check-out time, which
prevents the guest from accessing the room until he or she pays to rent the room at the
front desk or through a third-party booking site. Reservations cannot be extended, that
is, a new reservation must be made regardless of whether the previous reservation has
expired.
{¶7} Fitch further explained he does not empty a locked-out room of its contents
immediately, particularly if the room is rented by a long-term guest. Instead, he allows a
twenty-four-hour grace period should the guest merely be tardy in acquiring a new
reservation or the reservation has been processed through a third-party booking site,
which is sometimes delayed. Nonetheless, the room is released to the hotel at 11:00 a.m.
when the lock-out key is employed. (Trial Tr., Vol. I, at p. 199.)
{¶8} Such was the case on December 22, 2022, when Fitch accessed room 216.
Fitch noted the presence of a considerable amount of personal property, but left the room
undisturbed based on his practice of allowing a tardy guest to continue his occupancy by
renting the room the same day that his previous reservation expires.
{¶9} The state offered into evidence a registration slip for room 216 with an end
date of December 14, 2022, with a handwritten notation — “December 16, 2022,” and a
second handwritten notation in red — “December 23, 2022.” Fitch explained the
handwritten notation did not show the reservation had been extended, as reservations
may not be extended. Instead, the handwritten notation was the method by which
management notified front desk clerks that they should not rent the room to a new guest.
In other words, the handwritten notation was the manner in which the hotel staff was given
Case No. 25 BE 0006
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notice that a room contained the personal property of the previous guest with no current
reservation and should not be rented.
{¶10} Appellant was arrested on the evening of December 22, 2022 following a
verbal altercation with Opal Coe, the night desk manager at the hotel. Appellant’s wife
was arrested that same evening on an outstanding warrant. Appellant was released that
evening, but his wife was detained. Fitch explained any guest who is arrested on the
premises is prohibited from continuing his or her occupancy at the hotel.
{¶11} Neither the December 22, 2022 police report nor the details of the arrest
were offered into evidence at trial. However, at the conclusion of the state’s case-in-chief,
second appointed counsel explained he did not intend to call any witnesses to testify on
Appellant’s behalf. Second appointed counsel proffered Appellant’s desire to call two
witnesses, including Coe. Appellant accused Coe of stealing his cat on Fitch’s orders.
Appellant interjected the cat was returned six months later by “the person [Coe] gave it
to.” (Id. at p. 243.) The trial court asked second appointed counsel if Appellant was aware
that calling Coe as a witness would subject her to cross-examination by the state, at which
time she could be questioned about Appellant’s “threat to kill and that sort of thing.” (Id.
at p. 245.)
{¶12} According to the body camera footage of “Officer Kulpa” from the morning
of December 23, 2022, the morning after Appellant’s arrest, Appellant returned to the
hotel parking lot where he called the front desk. The desk clerk in turn called the police.
On the body camera footage, the desk clerk informs Officer Kulpa that she refused to talk
with Appellant when he called that morning due to his verbal altercation with Coe the
previous evening. The desk clerk further states the arresting officer from the previous
evening, who drove Appellant back to the hotel after his release from jail, entered room
216 with Appellant’s consent to retrieve a few items of personal property.
{¶13} On the body camera footage, Appellant states the arresting officer from the
previous evening drove Appellant back to the hotel but told him not to return to the hotel
until the following morning at 8:00 a.m. Appellant explains he returned to retrieve his pets
and expresses particular concern for his wife’s bird. Appellant was arrested for
trespassing. On the body camera footage, law enforcement instructs Appellant that if he
is released on bond he may not return to the hotel.
Case No. 25 BE 0006
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{¶14} Because Appellant’s occupancy ended on December 22, 2022 and no new
reservation was booked that day, Fitch and the hotel maintenance man entered room 216
on December 23, 2022 at noon to collect Appellant’s personal property and store it in his
truck. They found a disordered room with tote bags and food strewn on the floor. There
was a projector positioned to display a pornographic movie on the ceiling. Fitch also
discovered a goldfish and two birds, one in a birdcage, the other in a cat carrier. Fitch
and the maintenance man spent several hours packing Appellant’s personal property in
the tote bags found on the floor of the room. Fitch called Animal Control to collect the
pets.
{¶15} Fitch testified he discarded a pizza box on a table and found beneath it a
plate with a shortened red straw and white powder, which appeared to be drugs. (Id. at
p. 202.) Fitch further testified he finds suspected drugs in locked-out rooms a few times
a year. As a matter of course, Fitch calls law enforcement to collect the drugs. Fitch
testified only Appellant and his wife had access to room 216. (Trial Tr., Vol. II, at p. 36-
37). On cross-examination, Fitch conceded room 216 did not have daily or nightly visitors
consistent with the sale of drugs from the room.
{¶16} When Detective Schwarck arrived at 2:30 p.m. on December 23, 2022, Fitch
gave Detective Schwarck permission to conduct a warrantless search of the room.
Detective Schwarck suspected the white powder on the plate was either cocaine or
methamphetamine. His search of room 216 yielded drug paraphernalia including a bong
and a jar containing suspected methamphetamine near the other drugs on a table. (Id. at
p. 67-69). Detective Schwarck also found vials containing additional drugs alongside the
bed, some of which were in a wallet-style pouch that contained an airline ticket bearing
the name of Appellant’s wife. (Id. at p. 92-93).
{¶17} There are no photographs of the drugs and drug paraphernalia in the
location where they were initially discovered. Detective Schwarck testified he relies on
his body camera footage to capture the contraband where it is found. Detective
Schwarck’s body camera footage was excluded due to the state’s failure to timely provide
a copy to the defense. However, there is a photograph of all of the contraband, which was
collected and placed on a desk in the hotel room by Detective Schwarck.
Case No. 25 BE 0006
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{¶18} Fitch testified a $200 smoking fee was charged to Appellant’s credit card on
December 23, 2022, after Fitch discovered ashes in room 216. The detailed bill from the
hotel clearly identifies room 216 as “non-smoking.” The $200 charge posted on
Appellant’s credit card on December 24, 2022. (Trial Tr., Vol. I, at p. 197-198.)
{¶19} On cross-examination, second appointed counsel asked Fitch to
acknowledge the catch-22 Appellant faced as a result of his multiple arrests. Second
appointed counsel posited Appellant was prohibited by hotel rule from continuing his
occupancy, thereby stripping him of his reasonable expectation of privacy, and unable to
retrieve his personal property from room 216 due to his second arrest. Fitch responded
he was not present when Appellant returned to the hotel on the morning of December 23,
2022. As a consequence, Fitch testified he played no role in Appellant’s second arrest
and did not provide any information regarding Appellant’s access to his personal property.
{¶20} Later analysis showed all of the substances found in room 216 were
methamphetamine. (Trial Tr., Vol. II, at p. 79-81). Appellant and his wife were arrested
and charged based on the quantity of methamphetamine found during the search of the
hotel room.
{¶21} On July 7, 2023, Appellant was charged in a two-count indictment, in which
he was charged with aggravated possession and trafficking methamphetamine. Appellant
was arrested and appeared for an arraignment on October 30, 2023, at which time he
pled not guilty and bond was set. Bond was later reduced and Appellant was released on
bond.
{¶22} Appellant filed three motions to continue, after which a plea agreement
deadline hearing was set for July 8, 2024. When Appellant failed to appear at the hearing,
his bond was revoked and a warrant was issued for his arrest.
{¶23} Following his arrest, Appellant was held in custody without bond. On
September 5, 2024, Appellant’s first appointed counsel moved to withdraw based on a
breakdown in communication between himself and Appellant. The trial court denied the
motion, finding in part that Appellant filed the motion to delay the trial.
{¶24} On September 9, 2024, through his first appointed counsel, Appellant filed
a motion to suppress the evidence collected during the search of room 216. The trial court
held a hearing on the motion to suppress on September 19, 2024. Fitch testified at the
Case No. 25 BE 0006
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hearing and Appellant offered limited testimony. Detective Schwarck did not testify but
offered several facts, via proffer. The parties stipulated to the facts offered by Detective
Schwarck, which includes his statement that the contraband was discovered in plain sight.
On September 23, 2024, the state filed a response to the motion to suppress and
Appellant supplemented the motion on October 3, 2024.
{¶25} In his motion to suppress and his reply brief, which was filed by his first
appointed counsel after the hearing on the motion to suppress, Appellant argued a $230
POS pre-authorization dated December 23, 2022, which appears on his credit card
statement under the caption “holds and releases,” establishes that a new reservation for
room 216 was made through a third-party booking site, thereby extending his legitimate
expectation of privacy. However, the preauthorization reads in relevant part, “(Req=-
200.00 Adj=-230.00).” Pre-authorized amounts on Appellant’s credit card are consistently
greater than the actual amount requested, which ultimately posts to the credit card.
Consequently, it appears the pre-authorization represents the smoking charge, which
posted on December 24, 2022, with an adjustment of $30, which was removed when the
requested amount of $200 posted to the credit card on December 24, 2022. Further, the
pre-authorization is dated 4:47 p.m., roughly two hours after Fitch consented to the search
of room 216.
{¶26} Appellant did not advance a specific challenge to the drugs found in the
pouch in his motion to suppress or in his reply brief. Further, Appellant stipulated to the
fact that the contraband was found in plain sight. The only basis for suppression that
Appellant asserted before the trial court was his alleged overall, general expectation of
privacy in the hotel room due to his alleged rental payment of $230, which never posted
to his account.
{¶27} On October 16, 2024, the trial court overruled the motion to suppress finding
Appellant had no expectation of privacy in room 216 due to the expiration of his rental
period on December 22, 2022. The trial court opined:
[Fitch’s] testimony and the stipulated Exhibits establish that at the
time of the search, [Appellant’s] rental period had expired by more than
twenty-seven (27) hours. Any rental payment made or received after the
Case No. 25 BE 0006
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search cannot change that fact. Thus, at the time of the search, neither
[Appellant] nor his wife retained any expectation of privacy in Room 216.
(10/16/24 J.E., p. 2.)
{¶28} On October 21, 2024, Appellant’s first appointed counsel again moved to
withdraw as counsel and to continue the trial. The trial court sustained the motion and
Appellant’s second appointed counsel entered his appearance on October 30, 2024.
Second appointed counsel was the subject of the oral motion at issue in the third
assignment of error. It is important to note, second appointed counsel did not file or argue
the motion to suppress.
{¶29} Appellant’s second appointed counsel filed a suggestion of incompetence
on October 31, 2024. After the suggestion of incompetence was filed, but prior to a
hearing on December 23, 2024 to consider the results of the evaluation, Appellant filed a
number of pro se handwritten motions and pleadings. On November 19, 2024, the trial
court declined to consider the pro se pleadings as Appellant was represented by second
appointed counsel. A number of additional pro se filings were submitted following the
November 19, 2024 entry.
{¶30} On December 23, 2024, the trial court considered the results of the
evaluation and found Appellant was competent to stand trial. The evaluation is not in the
record.
{¶31} The jury trial commenced on January 7, 2025. Appellant stipulated to the
weight of the charged substance, 17.6 grams, but did not stipulate that the substance was
methamphetamine.
{¶32} Prior to voir dire, the trial court acknowledged Appellant “is dressed in his
orange-colored jail outfit.” The trial court represented, “[w]e did provide him with the
opportunity to appear in clothing that he provided; also, to appear without restraints.” (Trial
Tr., Vol. I, at p. 3.) The trial court’s representation is supported by two pre-trial judgment
entries, in which the trial court memorialized Appellant’s opportunity to wear civilian
clothes and appear without restraints at the trial, “but only in accordance with the Sheriff’s
normal policies and procedures.” (9/6/24 J.E. and 12/30/24 J.E.)
Case No. 25 BE 0006
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{¶33} During a colloquy with Appellant, the trial court acknowledged Appellant had
expressed on the previous Friday that he would not attend the trial scheduled for the
following Tuesday. The trial court attempted to conduct a video conference with Appellant
to address the matter before the trial date, but Appellant refused to participate in the video
conference as well. When the trial court asked Appellant if he wanted to waive his right
to attend the trial, Appellant responded, “I’m not waiving any rights and I’m not prepared
for trial because I do not have counsel provided.” (Id. at p. 7.)
{¶34} Next, Appellant sought the removal of second appointed counsel. Appellant
filed numerous pro se pleadings prior to the trial, which were not considered by the trial
court because Appellant was represented by second appointed counsel. Appellant
alleged second appointed counsel did not discuss the case with him or file any motions.
Second appointed counsel responded, “I am not having this discussion in open court.”
(Id. at p. 8.)
{¶35} Appellant represented that second appointed counsel had not hired an
expert witness or investigator, and no subpoenas had been served on Appellant’s behalf.
Second appointed counsel responded that four or five subpoenas had been served.
{¶36} The trial court asked Appellant if there were any other reasons that second
appointed counsel should be removed. Appellant responded:
Other than the fact he’s unaware of any of the elements of the case;
he has not subpoenaed anybody; he has not put forth any pretrial motion
hearings. I have not – he’s looking at video that I have not see any [sic]. I
put in a subpoena for request of umpteen videos in regards to this. I mean,
just -- why don’t you pull out the list. There’s about 18 of them -- 18 . . .
[T]hey were rubberstamped because you were said to be counsel. Is that
correct, Your Honor? You rubber stamped my subpoenas because they
were supposed to be submitted by provided counsel, correct?
(Id. at p. 11-12.)
{¶37} The trial court responded, “[y]ou have counsel, right.” The trial court added,
“everything is in the record now for later review by the Court of Appeals if that’s the way
Case No. 25 BE 0006
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this goes.” (Id. at p. 12.) The trial court overruled Appellant’s oral motion to appoint new
counsel.
{¶38} Appellant responded that he was “refusing to stand trial.” (Id. at p. 13.) The
trial court informed Appellant the trial was going to proceed. The trial court asked
Appellant if he wanted to waive his right to counsel and represent himself, but Appellant
again refused to waive any rights. (Id. at p. 13-14.)
{¶39} At that point, second appointed counsel made an oral motion to withdraw.
Second appointed counsel stated:
I find it hard for me to proceed with this. I don’t know how to – I mean,
I have reviewed the discovery in this case. I’m prepared to proceed to trial
today, but I do have genuine concerns about the fact that the state of our
relationship as attorney and client.
(Id. at p. 14-15.) The trial court overruled second appointed counsel’s oral motion to
withdraw.
{¶40} The trial court informed Appellant that he could remain in the courtroom, but
would be removed if he became disruptive. The trial court added, “[t]hat will have to have
occurred in the presence of the jury. You really don’t want them to see that kind of
conduct. All right?” (Id. at p. 16.) Appellant asked to view the witness list and the trial
court provided a copy to Appellant.
{¶41} Before commencing voir dire, the trial court cautioned the prospective
jurors:
[Appellant] is appearing today. Obviously, you’ve now seen him. You will
see that he’s being restrained and that he’s wearing a jail uniform. He was
given the opportunity to appear without restraints and in civilian clothing and
he declined those opportunities. You are not to consider those factors for
any reason whatsoever. When you decide a case like this, you decide the
case on the evidence that you will see and hear during the trial, not on any
of these extraneous matters. All right. So keep that in mind.
(Id. at p. 26.)
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{¶42} At the conclusion of the first day of trial, the trial court asked Appellant if he
intended to wear prison attire or civilian clothes the following day. He did not respond.
The trial court instructed the deputies to permit Appellant to wear civilian clothes, but to
“use [their] own judgment based on [their] policies and procedures as far as [Appellant’s]
restraints.” (Trial Tr., Vol. II, at p. 121.)
{¶43} Appellant appeared unrestrained and in civilian clothing on the second day
of trial. Appellant filed a pro se pleading that morning, which he characterized at trial as
“the only new submission with regards to me being physically forced to trial yesterday by
a number of officers. Dragged in, in orange clothing and shackles for trial.” (Trial Tr. Vol.
I, at p. 234.)
{¶44} On January 8, 2025, the jury returned a verdict finding Appellant not guilty
of aggravated trafficking, but guilty of aggravated possession of drugs. A pre-sentence
investigation report was prepared. On January 13, 2025, the trial court imposed an
indefinite prison sentence of six to nine years. Appellant was given pre-trial credit for 223
days.
{¶45} This timely appeal followed.
ANALYSIS
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN ALLOWING A CONVICTION FOR
AGGRAVATED POSSESSION OF DRUGS ORC §2925.11(A)(C)(1)
WHERE IT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶46} Whether the evidence is legally sufficient to sustain a conviction is a
question of law evaluating the adequacy of the evidence. State v. Thompkins, 78 Ohio
St.3d 380, 386, (1997). An evaluation of witness credibility is not involved in a sufficiency
review, as the question is whether the evidence, if believed, is sufficient to support the
contested elements. State v. Yarbrough,
2002-Ohio-2126, ¶ 79, 82. See also State v.
Murphy,
91 Ohio St.3d 516, 543 (2001). In other words, sufficiency involves the state’s
Case No. 25 BE 0006
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burden of production rather than its burden of persuasion. See Thompkins at 390 (Cook,
J., concurring).
{¶47} In viewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. See State
v. Filiaggi, 86 Ohio St.3d 230, 247 (1999); State v. Goff,
82 Ohio St.3d 123, 138 (1998).
A conviction cannot be reversed on grounds of sufficiency unless the reviewing court
determines that no rational juror could have found the elements of the offense proven
beyond a reasonable doubt.
Id. The question is merely whether any rational mind could
find the elements were established by the direct and circumstantial evidence. See State
v. Getsy,
84 Ohio St.3d 180, 193 (1998).
{¶48} If a conviction is not supported by sufficient evidence, the defendant cannot
be retried due to the attachment of jeopardy. Thompkins at 387 (unlike a case reversed
on weight of the evidence, which can be retried), citing Tibbs v. Florida,
457 U.S. 31, 41,
47 (1982). All evidence, including evidence the reviewing court finds was admitted in
error, can be considered in determining whether the evidence was sufficient to sustain a
guilty verdict. State v. Brewer,
2009-Ohio-593, ¶ 16-20, citing Lockhart v. Nelson,
488
U.S. 33, 35, 38, 40-42 (1988).
{¶49} The jury convicted Appellant of aggravated possession of drugs in violation
of R.C. 2925.11(A), which provides: “[n]o person shall knowingly obtain, possess, or use
a controlled substance or a controlled substance analog.” Pursuant to R.C. 2925.01(K),
to “possess” 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.”
{¶50} R.C. 2901.22, captioned “Culpable mental states,” defines “knowingly” as
follows: “A person acts knowingly, regardless of purpose, when the person is aware that
the person’s conduct will probably cause a certain result or will probably be of a certain
nature.”
{¶51} Possession can be individual or joint. State v. Wolery, 46 Ohio St.2d 316,
332 (1976). In the context of drug offenses, “possession” may be either actual possession
or constructive possession. State v. Smith,
2023-Ohio-4504, ¶ 55 (7th Dist.).
“Constructive possession exists when an individual exercises dominion and control over
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an object, even though that object may not be within his immediate physical possession.”
Wolery at 329. “It must also be shown that the person was conscious of the presence of
the object.” State v. Hankerson,
70 Ohio St.2d 87, 91 (1982).
{¶52} A conviction for drug possession can be based on circumstantial evidence
of possession. State v. DeSarro, 2015-Ohio-5470, ¶ 41 (7th Dist.). “Circumstantial
evidence and direct evidence inherently possess the same probative value.” State v.
Prieto,
2016-Ohio-8480, ¶ 34 (7th Dist.), citing In re Washington,
81 Ohio St.3d 337, 340
(1998); State v. Jenks,
61 Ohio St.3d 259, 272-273 (1991), paragraph one of the syllabus.
In fact, “[e]vidence supporting the verdict may be found solely through circumstantial
evidence.” State v. Smith,
2008-Ohio-1670, ¶ 49 (7th Dist.).
{¶53} Appellant argues he shared room 216 with his wife and some of the drugs
were found in a pouch with her personal property, so there is insufficient evidence that he
possessed the drugs. To the contrary, viewing the evidence in a light most favorable to
the state, a reasonable fact finder could conclude Appellant and his wife jointly possessed
the drugs. The couple both resided in room 216 for roughly one month. The
methamphetamine on the plate was prepared for use. Appellant’s argument that some
of the drugs were found in the pouch with an airline ticket in his wife’s name may well
have resulted in his acquittal on the trafficking charge, however, it does not apply with
equal force to the possession charge. The evidence establishes all of the drugs were
within Appellant’s dominion and control, as they were in a hotel room in which he resided
for roughly one month. Further, the drugs on the plate demonstrate Appellant’s
consciousness of their presence. Accordingly, we find there is sufficient evidence in the
record to sustain Appellant’s conviction for drug possession.
{¶54} Weight of the evidence concerns the effect of the evidence in inducing
belief, and our corresponding review evaluates “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. In analyzing a manifest weight challenge, we consider
whether the state met its burden of persuasion.
Id. at 390 (Cook, J., concurring) (as
opposed to the state’s burden of production involved in a sufficiency review). We review
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
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trier of fact 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. Lang, 2011-Ohio-4215,
¶ 220, citing Thompkins at 387.
{¶55} However, “ ‘the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.’ ” State v. Hunter, 2011-Ohio-6524, ¶ 118,
quoting State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph one of the syllabus. It is
the trier of fact who occupies the best position from which to weigh the evidence and
judge the witnesses’ credibility by observing their gestures, voice inflections, and
demeanor. Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77, 80 (1984). We therefore
generally proceed under the premise that “when there are two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, we do
not choose which one we believe is more credible.” State v. Carter,
2017-Ohio-7501,
¶ 105 (7th Dist.), citing State v. Gore,
131 Ohio App.3d 197, 201 (7th Dist. 1999).
{¶56} Furthermore, where a case was tried by a jury, only a unanimous appellate
court can reverse on manifest weight of the evidence grounds. Ohio Const., art. IV, §
3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order
to preserve the jury’s primary function of weighing the evidence. Thompkins at 389.
{¶57} Appellant argues the jury verdict is the product of “stacking inference upon
inference, and [the jury] failed to exclude reasonable hypotheses of innocence.”
(Appellant’s Brief., p. 15.) Appellant offers two hypotheses of innocence: (1) his wife was
the exclusive owner of the drugs; and (2) Fitch planted the drugs on December 23, 2022,
based on the evidence that the arresting officer entered Appellant’s room with his consent
on December 22, 2022 and did not see the bong or the drugs.
{¶58} With regard to Appellant’s argument predicated upon his wife’s sole
ownership of the drugs, the jury could have relied on the presence of drugs and drug
paraphernalia in room 216, regardless of the fact that some of the drugs were found in
the pouch. With regard to Appellant’s argument that the drugs were planted by Fitch, the
jury was in the best position to weigh Fitch’s credibility. Considering the facts in the
record, that is, Appellant and his wife resided in room 216 for roughly a month, the drugs
on the plate were on the table ready for use, and the remaining drugs were either in plain
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view or within a container to which Appellant had access, we find Appellant’s conviction
is supported by the manifest weight of the evidence.
{¶59} In summary, we find there is sufficient evidence in the record supporting
Appellant’s conviction and the jury did not lose its way when it convicted Appellant on the
aggravated possession of drugs charge. Accordingly, we find Appellant’s first assignment
of error has no merit.
ASSIGNMENT OF ERROR NO. 2
THE PRESUMPTION OF INNOCENCE WAS VIOLATED BY
APPELLANT'S APPEARANCE IN JAIL ATTIRE AND SHACKLES
DURING JURY SELECTION.
{¶60} “A defendant may be prejudiced by appearing at trial in jail clothes.” State
v. Duncan, 2017-Ohio-9378, ¶ 9 (7th Dist.), citing State v. Collins,
2007-Ohio-3578, ¶ 27
(6th Dist.); Estelle v. Williams,
425 U.S. 501, 507 (1976). “The United States Supreme
Court held that a defendant’s right to due process is violated when he is compelled to
stand trial before a jury while wearing identifiable prison clothing.” (Emphasis added)
Duncan at ¶ 9, citing
Estelle at 512. In other words, the defendant’s choice of clothing
may be strategic, and as a result, while some defendants may want to appear in civilian
clothing, some may not.
Estelle at 504-05. “Taking into consideration these apparently
opposing principles, the relevant inquiry becomes not merely whether the defendant
appeared before the jury in prison attire, but whether he was compelled to appear in
prison garb.”
Duncan at ¶ 9, citing
Estelle at 507.
{¶61} Further, “ ‘the failure to make an objection to the court as to being tried in
such clothes, for whatever reason, is sufficient to negate the presence of compulsion
necessary to establish a constitutional violation.’ ” Duncan at ¶ 10, quoting Estelle at 512-
513. Neither second appointed counsel nor Appellant contemporaneously objected to
Appellant’s appearance on the first day of trial, although Appellant filed a pro se motion
on the second day of trial alleging he was “forced by 10 or more officers with eletric [sic]
gloves into shackles into an SUV and brought to court.” (1/8/25 pro se pleading, p. 1.)
Case No. 25 BE 0006
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{¶62} Finally, we have recognized that a curative instruction negates any potential
prejudice. State v. Rivers, 2024-Ohio-4868, ¶ 43 (7th Dist.); see also State v. R.W., 2022-
Ohio-2771, ¶ 31 (8th Dist.), citing State v. Dalmida,
2015-Ohio-4995, ¶ 21 (1st Dist.),
citing State v. Fears,
86 Ohio St.3d 329, 334 (1999) (jury is presumed to follow court's
instruction to disregard defendant’s appearance in jail clothing).
{¶63} Here, deputies were required to compel Appellant’s attendance at the first
day of trial due to his initial refusal to participate in the proceedings. The trial court
attempted to address the issue at a video conference on the Friday before the trial, which
Appellant also refused to attend. When Appellant appeared in court in jail attire and
restraints, the trial court provided to Appellant the opportunity to waive his attendance at
the trial, consistent with the intention he expressed in the days preceding the trial.
Appellant chose instead to attend the trial. Having decided to attend the trial, Appellant
made no contemporaneous objection to the jail attire and restraints, therefore the trial
court was denied the opportunity to address the issue prior to voir dire. Finally, the trial
court provided a curative instruction to the jury pool prohibiting them from considering
Appellant’s clothing as evidence of his guilt.
{¶64} Based on the foregoing facts, we find Appellant was not compelled to attend
the trial in jail attire and restraints. The record reflects Appellant was provided the
opportunity to appear in civilian clothing and without restraints, based on two pre-trial
judgment entries memorializing Appellant’s options. His jail attire and restraints were
solely the consequence of his initial refusal to attend the trial. Appellant conceded
multiple officers were required to transport him to the courthouse. Although he was
transported to the courthouse for the expressed purpose of waiving his attendance, he
decided instead to attend the trial, but raised no contemporaneous objection to his attire
and restraints. To find Appellant was compelled by the trial court to attend the trial in jail
attire and restrains would permit Appellant to create reversible error exclusively through
his own conduct. Accordingly, we find Appellant’s second assignment of error has no
merit.
Case No. 25 BE 0006
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN DENYING APPELLANT'S TIMELY
REQUEST TO DISCHARGE [SECOND] APPOINTED COUNSEL, IN
VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶65} The Sixth Amendment provides that a defendant must have the assistance
of counsel for his defense. In determining whether to grant a request for substitute
counsel, the trial court must balance the defendant’s right to counsel of his choice against
the public’s interest in the prompt administration of justice. State v. Davis, 2007-Ohio-
7216, ¶ 37 (7th Dist.), citing United States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996).
The trial court should deny the motion for new counsel if it finds the defendant made the
motion simply to delay the trial or did not make it in good faith.
Id.
{¶66} The decision to remove court-appointed counsel and allow substitution of
new counsel is within to the sound discretion of the trial court, which will not be reversed
on appeal absent an abuse of discretion. State v. Murphy, 91 Ohio St.3d 516, 523 (2001);
State v. Brown,
2014-Ohio-4420, ¶ 7 (7th Dist.). An “abuse of discretion” implies an
arbitrary, unreasonable, or unconscionable attitude on the part of the court. State v.
Adams,
62 Ohio St.2d 151 (1980).
{¶67} We previously discussed the right to counsel of one’s choice in situations
where the defendant has appointed counsel versus when the defendant has retained
counsel:
An indigent defendant has a limited right to counsel of his choice, because
the indigent defendant’s options are limited by the fact that the court, not
the indigent, ultimately controls the appointment of counsel. Due to the
limitations on an indigent’s autonomy in the selection of counsel, and the
role the court plays in selecting counsel, when an indigent defendant makes
a “timely and good faith motion requesting that appointed counsel be
discharged and new counsel appointed, the trial court clearly has a
Case No. 25 BE 0006
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responsibility to determine the reasons for the defendant’s dissatisfaction
with his current counsel.” [U.S. v.] Iles [, 906 F.2d 1122], 1130 (1990),
quoting LaFave and Isreal, Criminal Procedure, 11.4 at 36 (1984). The
reasons for this enhanced responsibility for inquiry, however, do not extend
to a defendant . . . who has retained counsel: “it is clear that when an
accused is financially able to retain an attorney, the choice of counsel to
assist him rests ultimately in his hands and not in the hands of the State.”
Wilson v. Mintzes, 761 F.2d 275, 280 (1985). Moreover, . . . any request to
change representation must be both timely and made in good faith, and is
subject to the discretion of the trial court. There is simply no legal
requirement that the trial court engage in any specific inquiry as to the
reason a defendant wishes to seek other retained counsel.
State v. Scott, 2014-Ohio-2993, ¶ 22 (7th Dist.).
{¶68} We find the trial court did not abuse its discretion in this case. Appellant’s
oral motion on the first day of trial was untimely. A jury pool had been summoned and
was present at the courthouse. Appellant had an opportunity to make his oral motion at
the proposed video conference, which he refused to attend. Had the trial court granted
Appellant’s motion, the trial court would have had to appoint a third attorney, as the first
appointed counsel was permitted to withdraw as counsel due to difficulties with Appellant
after two requests. Second appointed counsel demonstrated an understanding of the
case and had subpoenaed witnesses, despite Appellant’s assertion that second
appointed counsel was unfamiliar with the case and had issued no subpoenas. Finally,
Appellant was acquitted of the aggravated trafficking charge due to second appointed
counsel’s representation.
{¶69} In summary, Appellant’s request for new counsel was untimely and his
stated reasons were contrary to the representations of counsel. Accordingly, we find
Appellant’s third assignment of error has no merit.
{¶70} We note that the attorney who filed and argued the motion to suppress was
Appellant’s first appointed counsel. The trial court permitted Appellant’s first appointed
counsel to withdraw after his second request, which occurred almost immediately
Case No. 25 BE 0006
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following the judgment entry overruling the motion to suppress. The only claim on appeal
regarding legal representation relates to second appointed counsel. Thus, the
suppression hearing transcript is irrelevant as the third assignment of error challenges
the trial court’s failure to dismiss Appellant’s second appointed counsel.
ASSIGNMENT OF ERROR NO. 4
THE PROSECUTOR’S CLOSING ARGUMENT IMPROPERLY
COMMENTED ON THE DEFENDANT'S FAILURE TO PRESENT
EVIDENCE, THEREBY SHIFTING THE BURDEN OF PROOF IN
VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16
OF THE OHIO CONSTITUTION.
{¶71} Appellant did not object to the state’s closing argument at trial. As a
consequence, he has waived all but plain error review. Crim.R. 52(B) provides plain
errors affecting substantial rights may be noticed although they were not brought to the
attention of the court. To establish plain error, the defendant must demonstrate an
obvious error that affected the outcome of trial. State v. Barnes, 94 Ohio St.3d 21, 27
(2002). “The accused is therefore required to demonstrate a reasonable probability that
the error resulted in prejudice – the same deferential standard for reviewing ineffective
assistance of counsel claims.” State v. Rogers,
2015-Ohio-2459, ¶ 22. Plain error is a
discretionary doctrine the appellate court may choose to use only with the utmost care in
exceptional circumstances when required to avoid a manifest miscarriage of justice. State
v. Noling,
2002-Ohio-7044, ¶ 62.
{¶72} “The prosecution is not prevented from commenting upon the failure of the
defense to offer evidence in support of its case.” State v. Williams, 23 Ohio St.3d 16, 20
(1986). “Such comments do not imply that the burden of proof has shifted to the defense,
nor do they necessarily constitute a penalty on the defendant’s exercise of his Fifth
Amendment right to remain silent.” State v. Collins,
89 Ohio St.3d 524, 527-28 (2000).
“Hence, a prosecutor is not precluded ‘from challenging the weight of the evidence offered
in support of an exculpatory theory presented by the defense [or] arguing the defendant’s
Case No. 25 BE 0006
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failure to provide evidence to support proffered theories of excuse or innocence.’ ” State
v. Encarnacion, 2017-Ohio-5530, ¶ 16 (10th Dist.), quoting Collins at 528. “[T]he fact that
one of the parties fails to call a witness who has some knowledge of the matter under
investigation may be commented on.” State v. Petro,
148 Ohio St. 473, 498 (1947).
{¶73} Here, Appellant identifies two sets of statements that allegedly shifted the
burden of proof. First, Appellant claims the following passage from the state’s closing
argument constituted prosecutorial misconduct:
Now, there’s been no defense presented that the drugs did not
belong to [Appellant] and his wife. [Appellant] rented the room. [His wife]
signed certain extension slips, as you heard, the “reg slips,” as they were
called. But I ask you: What defense is there that they’re not my drugs found
in my room? There is none. Nothing.
(Trial Tr., Vol. I, at p. 259).
{¶74} Next, Appellant challenges the state’s comments during rebuttal of closing
argument on the dearth of evidence offered to support Appellant’s theory of the case:
In this room, what they are really trying to get you to believe is all of
that, it was staged. Do you have any evidence that [Fitch] staged? No. You
have counsel’s arguments. You have no evidence from the stand.
(Id. at p. 274.)
{¶75} Appellant mischaracterizes the quoted portions of the state’s closing
argument in order to create a constitutional violation. In the first set of comments, the
state was not referring to Appellant’s right to remain silent. The state was merely
emphasizing the fact that there was no evidence presented to establish ownership of the
drugs found in the room, other than Appellant and his wife. Further, in second appointed
counsel’s closing argument, he asserted Fitch had staged the hotel room, including the
drugs, before Detective Schwarck arrived. The prosecutor’s comments during rebuttal
were a response to second appointed counsel’s argument and underscored the absence
of evidence in the record to support the argument. As neither set of statements by the
Case No. 25 BE 0006
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prosecutor shifted the burden of proof, we find Appellant’s fourth assignment of error has
no merit.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRORED IN OVERRULING APPELLANT'S
MOTION TO SUPPRESS.
{¶76} The joint exhibits offered at the hearing on the motion to suppress were
included with the trial exhibits in the record. However, there is no hearing transcript from
the motion to suppress in the record, which could have been due to the confusion created
by the praecipe.
{¶77} The praecipe was filed on Appellant’s behalf on February 6, 2025. The
certification is incomplete, so the attorney who filed it cannot be ascertained from the face
of the document. Option one is demarcated with an “x” and reads, “[i]nclude a complete
transcript pursuant to App. R. 9(B).” However, hand written beneath option two, which is
not demarcated and reads, “[i]nclude a partial transcript pursuant to App. R. 9(B),” is “1-
7-25 trial (Kristi); 1-13-25 sentencing (Vickie).” The praecipe, with hand written portions
represented in italics, reads in relevant part:
TO THE CLERK OF THE TRIAL COURT:
The Clerk shall immediately prepare and assemble the original papers and
exhibits filed in the trial court in this case and a certified copy of the docket
and journal entities, pursuant to App.R. 9(A):
In addition, the record in this appeal will (check only one)
X 1. Include a complete transcript pursuant to App. R. 9(B).
_ 2. Include a partial transcript pursuant to App. R. 9(B).
(a.) list the assignments of error you intend to present on appeal
(App.R. 9(B)(5)(a)).
Case No. 25 BE 0006
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1-7-25 Trial (Kristi)
1/13/25 Sentencing (Vickie)
(b.) Enumerate here the segments of the trial and/ or hearings to be
transcribed. State specifically the trial and/or hearings dates, the
type of hearing, and the segments you want transcribed.
(2/6/25 Praecipe, p. 1.) Subsection (b.) is blank.
{¶78} Both parties cite to the hearing on the motion to suppress in their statement
of facts. However, Appellant never disputes the factual underpinnings or the law applied
by the trial court with respect to the motion to suppress in the fifth assignment of error.
The state recognizes as much in its brief, writing, “Appellant does not actually give any
reason why the motion to suppress was wrongly decided.” (Appellee’s Brf., p. 20.)
Instead, Appellant advances a purely legal argument, that is, one cannot constructively
possess something found in a space in which he or she has no reasonable expectation
of privacy.
{¶79} In the fifth assignment of error in his appellate brief, Appellant
acknowledges our standard of review and Ohio law as it relates to a former lodger’s
expectation of privacy in a vacated hotel room. He then provides a summary of the trial
court’s decision on the motion to suppress, and the jury’s verdict on the drug possession
charge.
{¶80} The sum total of Appellant’s argument in his fifth assignment of error is as
follows:
Here, the state cannot have it both ways. The state argued, and the
court agreed, that Appellant was evicted from the hotel room prior to the
search by law enforcement when the drugs were discovered and, therefore,
no search warrant was needed. Furthermore, the room had been accessed
and searched by hotel staff prior to law enforcement entry (Volume II Tr. 57-
17-58:25). Simply put, if Appellant still had legal possession of the hotel
room then the search was invalid. Alternatively, if Appellant no longer had
Case No. 25 BE 0006
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legal possession of the hotel room then the theory of constructive
possession fails.
Reversal on this issue is appropriate.
(Appellant’s Brf., p. 25.)
{¶81} Appellant cites no case law in support this contention. Appellate Rule 16(A),
captioned “Brief of the appellant,” reads in relevant part:
The appellant shall include in its brief, under headings and in the
order indicated, all of the following:
...
(7) An argument containing contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support
of the contentions, with citations to authorities, statutes, and parts of the
record on which appellant relies.
{¶82} Appellant’s fifth assignment of error is essentially a conclusion, devoid of
any analysis or case citation. Insofar as Appellant has offered no analysis whatsoever,
we are unable to discern the legal basis for his argument.
{¶83} Appellant appears to unwittingly advance an “automatic standing”
argument. In Jones v. United States, 362 U.S. 257 (1960), the United States Supreme
Court held that automatic standing applied to any person charged with an offense in which
possession is an essential element, and further, that any person legitimately on the
premises where a search takes place could challenge the lawfulness of the search.
{¶84} However, these bases for automatic standing were subsequently rejected
by the United States Supreme Court. Relevant to this assignment of error, the first theory
was rejected in United States v. Salvucci, 448 U.S. 8 (1980). In reaching its decision in
Salvucci, the Court noted the reasons which gave rise to the automatic standing rule were
no longer present. The majority observed that its decision in Simmons v. U.S.,
390 U.S.
377 (1968), had resolved the major concern expressed by the Court in Jones, namely the
Case No. 25 BE 0006
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government ought not to be allowed to assert the defendant possessed goods for
purposes of criminal liability while simultaneously asserting that he did not possess them
for purposes of claiming the protections of the Fourth Amendment.
{¶85} The Simmons Court removed this impediment to the assertion of Fourth
Amendment rights by holding, in part, “when a defendant testifies in support of a motion
to suppress evidence on Fourth Amendment grounds his testimony may not thereafter be
admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons
at 394. The Simmons Court found no problem with the concern in Jones that the
government was being permitted to take advantage of contradictory positions since its
decision in Rakas v. Illinois,
439 U.S. 128 (1978) made clear that a prosecutor may
simultaneously maintain, without legal contradiction, that a defendant criminally
possessed the seized goods but was not subject to a Fourth Amendment deprivation.
{¶86} In summary, Appellant appears to concede the trial court correctly
concluded he had no reasonable expectation of privacy in room 216 because he does not
challenge that finding on appeal, other than to argue it is inconsistent with his possession
conviction. However, the United State Supreme Court has recognized that a prosecutor
may simultaneously maintain, without legal contradiction, that a defendant criminally
possessed seized goods but was not subject to a Fourth Amendment deprivation.
Accordingly, we find Appellant’s fifth assignment of error has no merit.
{¶87} Had Appellant challenged the trial court’s rationale underlying the decision
on the motion to suppress, we would have had to resolve the confusion created by the
contents of the praecipe. However, we reviewed the fifth assignment of error and
concluded Appellant suffered no prejudice as a consequence of the failure to include a
copy of the transcript of the hearing on the motion to suppress because Appellant’s
challenge is a legal argument not a factual argument.
{¶88} Appellant did not specifically challenge the search of the pouch in his motion
to suppress, or in his reply brief to the motion, which was filed after the hearing. Likewise,
Appellant did not specifically challenge the search of the pouch on appeal. Rather, he
stipulated to the fact that the contraband was found in plain sight. Sua sponte review of
the constitutionality of the search of the pouch would materially prejudice the state, which
had no opportunity to develop the record as it relates to the pouch, or to advance any
Case No. 25 BE 0006
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legal argument with respect to the search. The Ohio Supreme Court has observed that “
‘appellate courts do not sit as self-directed boards of legal inquiry and research, but
[preside] essentially as arbiters of legal questions presented and argued by the parties
before them.’ ” State v. Quarterman, 2014-Ohio-4034, ¶ 19, quoting State v. Bodyke,
2010-Ohio-2424, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part).
ASSIGNMENT OF ERROR NO. 6
THE CUMULATIVE ERRORS COMMITTED IN THIS CASE DEPRIVED
APPELLANT A FAIR TRIAL.
{¶89} Under the doctrine of cumulative error, “a conviction will be reversed where
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to
a fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995). In other
words, where a reviewing court finds multiple instances of harmless error, a conviction
may be reversed based on their cumulative effect. State v. Knight,
2024-Ohio-2176, ¶
108 (7th Dist.). As we find the trial court committed no harmless error in this case, we
further find Appellant’s sixth assignment of error is meritless.
CONCLUSION
{¶90} For the foregoing reasons, Appellant’s conviction is affirmed.
Robb, P.J., concurs.
Hanni, J., dissents with dissenting opinion.
Case No. 25 BE 0006
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Hanni, J., dissenting.
{¶91} With regard and respect to my colleagues, I must dissent from the majority
opinion. Without a transcript of the suppression hearing, I would decline to rule on
Appellant’s assignments of error challenging the trial court’s denial of his motion to
suppress. Relatedly, without this transcript, I question the warrantless search and seizure
of contents found in the pouch in the hotel room. The pouch was not in plain view and an
airline ticket found inside the pouch bore the name of Appellant’s wife. Yet, the vials of
drugs found in that pouch were attributed to Appellant.
{¶92} While I agree with most of the majority’s opinion, I disagree that Appellant
failed to fulfill his duty to provide the suppression hearing transcript and that the transcript
was not necessary. Appellant’s counsel ordered a complete transcript of the record. On
the praecipe form, Appellant’s counsel placed an “X” next to number one on the praecipe
form requesting a “complete transcript.”
{¶93} Number two on the praecipe stated a request for a partial transcript, with
subsection (a) asking for a listing of the assignments of error that were going to be
presented on appeal. Subsection (b) of this section requested enumeration of the
segments of the trial and/or hearing to be transcribed. Appellant’s counsel did not place
an “X” next to number two requesting a partial transcript. Still, he handwrote “1-7-25 trial
and 1-13-25 sentencing” in subsection (a) and left subsection (b) blank.
{¶94} However, Appellant’s counsel filed a motion for preparation of proceedings
at the state’s expense and specifically requested that the transcript include: “all plea and
proceedings, trial proceedings and all post-trial and sentencing proceedings.” The court
granted Appellant’s motion and directed the court reporter “to prepare a complete
transcript of the entire record for submission to the Court of Appeals.” There is no
indication that the hearing was ever transcribed.
{¶95} App.R. 10(A) provides in relevant part that:
[i]f the appellant has complied with the duty to make reasonable
arrangements for transcription of the recorded proceedings under App.R.
9(B) and the duty to make reasonable arrangements to enable the clerk to
Case No. 25 BE 0006
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assemble and transmit the record under this division, then the appellant is
not responsible for any delay or failure to transmit the record.
Local R. 3.2(C) provides that “[a] praecipe ordering all or part of the trial transcripts will
not be deemed to be complete unless signed and dated by the court reporter.”
{¶96} The praecipe in this case is signed and dated by a court reporter. I would
therefore find that Appellant fulfilled his duty of requesting the transcript and he is not
responsible for the failure to transcribe the transcript.
{¶97} I would further find that the transcript of the suppression hearing was
necessary for review of Appellant’s assignment of error concerning the denial of his
motion to suppress. The majority concludes that, “Appellant never disputes the factual
underpinnings or the law applied by the trial court.” (Opinion at ¶ 78). The majority
continues, “[i]nstead, Appellant advances a purely legal argument, that is, one cannot
constructively possess something found in a space in which he or she has no reasonable
expectation of privacy.” (Opinion at ¶ 78).
{¶98} However, Appellant’s fifth assignment of error presents more than a legal
argument. In fact, Appellee responds with citations to the facts presented by the manager
at the suppression hearing. (Appellee’s Br., 20-21). Appellant asserts the legal argument
that he lacked constructive possession if he lacked legal possession of the hotel room.
But he also directs us to the factual portion of his brief which he asserts was developed
at the motion to suppress hearing. (Appellant Br., 25). He explains that the trial court
overruled his motion to suppress because it found, based on the exhibits and the
manager’s testimony at that hearing, that Appellant’s rental of the hotel room had expired
more than 27 hours at the time of the police search. (Appellant Br., 25).
{¶99} For these reasons, I would reserve ruling on Appellant’s fifth assignment of
error and order a transcript of the suppression hearing.
{¶100} Relatedly, I question the police’s warrantless search and seizure of
contents found in the pouch in the hotel room. Detective Schwarck testified he found
vials of methamphetamine in the purse-like pouch that was not out in the open but located
alongside the bed. (Trial Tr., 92). He stated that the pouch also contained an airline
ticket inside bearing the name of Appellant’s wife. (Trial Tr., 92-93). However, it appears
Case No. 25 BE 0006
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that the pouch was not in plain view and belonged to Appellant’s wife. Yet the vials found
in that pouch were attributed to Appellant.
{¶101} I acknowledge that Mr. Fitch could give consent to law enforcement to
search the hotel room once he either evicted Appellant or Appellant was arrested on the
premises. However, testimony at trial indicated that after Appellant was arrested on
December 22, 2022, he was released on bond. Testimony also revealed that a police
officer drove Appellant back to the hotel and entered Appellant’s hotel room “with his
consent to retrieve a few items of personal property.”
{¶102} Yet, Mr. Fitch testified that he employed the lock-out key on December 22,
2022. (Trial Tr., 199). He testified he commonly encountered long-term guests who were
tardy in acquiring new reservations to extend their stays, so after he employed the lock-out key, he allowed a 24-hour grace period for guests who may have left personal property
in their rooms to retrieve their property. (Trial Tr., 199). Mr. Fitch explained that he
accessed the room of Appellant and his wife on December 22, 2022, noted the
considerable amount of personal property therein, and left the room undisturbed for the
24-hour grace period. But Appellant returned to the hotel on the night of December 22,
2022 after he bonded out of jail, and he consented to a police officer accessing his room
to retrieve some items that he requested. If Mr. Fitch had control and possession of the
room, Appellant would not have been able to consent to the police officer entering the
room and retrieving items that Appellant requested. If Appellant still had control over the
room, then officers should have obtained a warrant for items in the room that were not in
plain view and unopened. Without more information or testimony from the suppression
hearing, this issue is unclear.
{¶103} Based upon the lack of a suppression hearing transcript, and related
concerns over the warrantless search by police of the unopened pouch in the hotel room,
I would order a transcript of the suppression hearing before ruling on Appellant’s
assignments of error numbers 3 and 5.
Case No. 25 BE 0006
[Cite as State v. Richardson, 2025-Ohio-3128.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
