[Cite as State v. Parker,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24406

v. : T.C. NO. 09CR4154/01

TAYLOR L. PARKER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 2nd day of March , 2012.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOHN C. MEEHLING, Atty. Reg. No. 0077630, 1105 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Taylor Parker was found guilty by a jury of assembly or possession of

chemicals used to manufacture a controlled substance (methamphetamine). She was

sentenced to two years of imprisonment and a term of post-release control of up to three 2

years. Parker appeals from her conviction.

{¶ 2} Parker and her boyfriend, Eric Rike, were stopped in a vehicle by

Englewood police officers in December 2009, because Rike was suspected of theft. When

police officers decided to arrest Rike, they impounded the car and searched it, discovering

various substances that they associated with the production of methamphetamine. Based

upon this discovery, the officers decided to arrest Parker as well.

{¶ 3} Parker was charged with one count of assembly or possession of

chemicals used to manufacture a controlled substance. She pled not guilty. Parker filed a

motion to suppress the evidence found in the search of the car and her subsequent statement

to the police. After a hearing, the motion to suppress was overruled.

{¶ 4} The case was tried to a jury in November 2010. The two arresting

officers, a detective, and a forensic chemist testified for the State. Rike testified for the

defense, claiming that the drug-making materials found in the car were his and that Parker

had not been involved. The jury found Parker guilty, and she was sentenced as described

above.

{¶ 5} Parker raises three assignments of error on appeal.

{¶ 6} We will begin our discussion with Parker’s second assignment of

error, which states:

THE TRIAL COURT ERRED WHEN IT FOUND AT THE SUPPRESSION

HEARING THAT THE POLICE OFFICER’S DECISION TO TOW THE

VEHICLE, WHICH SUBSEQUENTLY GAVE POLICE THE AUTHORITY

TO PERFORM A “STANDARD” INVENTORY SEARCH OF THE 3

VEHICLE BEFORE IT WAS TOWED, WAS A VALID SEARCH

ALTHOUGH IT AMOUNTED TO AN UNCONSTITUTIONAL SEARCH;

AS SUCH, ALL EVIDENCE FOUND DURING THE SEARCH, AND

STATEMENTS MADE AFTER THE SEARCH, SHOULD BE

SUPPRESSED AS “FRUIT OF THE POISONOUS TREE.”

{¶ 7} Parker claims that the trial court erred in concluding that the search of the vehicle was a lawful search

and in failing to suppress the evidence found in the vehicle and her statement to the arresting officer.

{¶ 8} In reviewing the trial court’s ruling on a motion to suppress

evidence, this court must accept the findings of fact made by the trial court if they

are supported by competent, credible evidence. State v. Curry,

,

(8th Dist. 1994); State v. Broaddus, 2d Dist. Montgomery

No. 23525,

, ¶ 17. However, the reviewing court must

independently determine, as a matter of law, whether the facts meet the

appropriate legal standard; i.e. whether the warrantless serach was permissible

under the Fourth Amendment.

.

{¶ 9} The State’s evidence at the suppression hearing established the following

facts:

{¶ 10} On the evening of December 7, 2009, Englewood Police Officer Emily

Crist responded to “a report of a shoplifter fleeing from loss prevention” at the Walmart

store at 7725 Hoke Road. The dispatch described the perpetrator as a white man in a red

sweatshirt who was driving a white car. As Officer Crist pulled into the Walmart parking

lot, she observed a white vehicle, driven by a man who matched the suspect’s description, 4

pulling out of the parking lot.

{¶ 11} Crist stopped the vehicle nearby. As her spotlight shown on the vehicle, she

could “see the subjects inside, that they were making furtive movements. The passenger

was shoving items in between the driver/passenger seat, underneath a blanket in the

floorboard.” Crist testified that she suspected there might be “some sort of a weapon or

some sort of incriminating evidence” in the car. The occupants of the car stopped moving

about as Crist approached the vehicle, but when she talked with them, they appeared to Crist

to be nervous.

{¶ 12} Crist took identification from Eric Rike, the driver, and Parker, the

passenger. When she ran the information through the LEADS system in her cruiser, she

discovered that neither Rike nor Parker was the registered owner of the car and neither had

outstanding arrest warrants.

{¶ 13} When Officer Richard Ridgway arrived to assist Crist, Rike and

Parker were removed from the vehicle, frisked for weapons, handcuffed, and moved into

Crist’s cruiser; they were informed that they were not under arrest. Ridgway went back to

Walmart to investigate the alleged theft while Crist stayed with Rike and Parker. When

Ridgway returned, the officers decided to arrest Rike for theft.

{¶ 14} Officer Crist testified that, when a driver of a car is arrested, a passenger in

the car is not permitted to leave with the car if it is owned by a third party; in such a

situation, the officer exercises his or her discretion in deciding whether to have the car towed

or to contact the owner to inquire about leaving the car or allowing a passenger to drive it.

Crist decided to have the car towed. 5

{¶ 15} Pursuant to a “standardized procedure,” Crist conducted an inventory

of the car before having it towed. In the course of this inventory search, Crist found items

that she “recognized * * * to be used to make methamphetamines.” These items were

located under a blanket on the passenger side of the car, in the door on the driver’s side, and

in the back seat.

{¶ 16} After the inventory was completed, Crist and Ridgway decided to

arrest Parker as well as Rike. Crist searched Parker and Parker’s purse, which had been

placed on top of the cruiser while Parker was seated inside the cruiser. Additional items

that the officers associated with making methamphetamine were found in Parker’s purse and

on her person.

{¶ 17} When the searches of the vehicle, Rike, and Parker were completed,

Rike and Parker were both returned to Crist’s cruiser. Parker had not been advised of her

rights. While Crist was completing paperwork in the front seat, Parker stated that “he

[Rike] had nothing to do with it. * * * [E]verything in the car was hers.” Crist did not

initially hear Parker’s statement due to passing traffic, and asked her to repeat it, which Crist

did. Crist did not ask Parker any other questions before or after Parker made this statement.

{¶ 18} The trial court concluded that the furtive movements observed by

Officer Crist justified “a belief that there is something in that car that is fruit of the crime for

which that person is being stopped.” The court further concluded that, even if the search

were not constitutional on the basis that the officers believed there was contraband in the car,

the inventory of the car was reasonable in light of the decision to arrest Rike, the driver, for

theft. Finally, the court determined that Parker’s statement in the back of the police cruiser 6

was “a volunteered statement” that did “not require Miranda rights,” because it was not in

response to questioning by the police.

{¶ 19} With respect to warrantless search of the car, the trial court identified two

justifications for the search: the officer had a reasonable basis to believe that “fruit of the

crime” would be found in the car, and the decision to tow – and therefore to inventory – the

car was reasonable under the circumstances.

{¶ 20} Under the well-established automobile exception to the Fourth

Amendment’s warrant requirement, police may conduct a warrantless search of a vehicle if

there is probable cause to believe that the vehicle contains contraband, and exigent

circumstances necessitate a search or seizure. State v. Mills,

,

(1992); Chambers v. Maroney,

,

,

(1970). A vehicle’s mobility is the traditional exigency for this exception to the warrant

requirement.

; California v. Carney,

,

,

(1985). The United States Supreme Court has also found that, during an

investigative stop, a police officer who possesses a reasonable belief that the suspect is

dangerous and may gain access to weapons may conduct a protective search of the interior of

the vehicle for weapons. Michigan v. Long,

,

, 77

L.Ed .2d 1201 (1983). “This search is consistent with and is an extension of the principles

set forth in Terry [v. Ohio,

,

,

(1968)] regarding a

frisk of a person.” State v. Wilcox,

,

,

(2d Dist.), citing Long.

{¶ 21} Officer Crist testified that, when she saw furtive movements by the 7

occupants of the car, she suspected that there might be a weapon or incriminating evidence

in the car. However, the testimony at the suppression hearing, taken as a whole, did not

provide a reasonable basis to conclude that the officers searched the car for contraband or

weapons. Although Rike was suspected of shoplifting, Crist did not testify that she

believed there could be stolen items in the car. Moreover, Ridgway’s conversation with

loss prevention officers at Walmart resulted in the officers’ decision to arrest Rike for theft,

before any search of the vehicle was conducted. The officers’ actions suggested that store

employees had accounted for the stolen merchandise or, at the very least, that they had

probable cause to arrest Rike for theft before they searched the car. And Arizona v. Gant,

,

,

(2009) would not apply, since it requires that

“circumstances unique to the vehicle context justify a search incident to a lawful arrest

where it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in

the vehicle.’”

, citing Thornton v. United States,

,

,

(2004) (Scalia, J., concurring in judgment). Based on the evidence

presented, the search was not justified due to exigent circumstances or a reasonable belief

that contraband would be found in the car.

{¶ 22} Although Crist also seems to have contemplated the presence of

weapons based on the furtive movements of the car’s occupants, her behavior after stopping

the car did not suggest that she was concerned about the presence of weapons. A

substantial amount of time elapsed before the car was searched, i.e., Officer Ridgway

responded as backup, left the traffic stop to gather information at Walmart, and returned to

the traffic stop. During this time, Rike and Parker waited in the cruiser in handcuffs, and 8

the vehicle was not searched for weapons. After Ridgway returned, the occupants remained

in the cruiser.

{¶ 23} “In order to perform a protective search, the officer must have ‘a

reasonable belief based on “specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warrant” the officers in believing that the

suspect is dangerous and the suspect may gain immediate control of weapons.’” Wilcox,

,

,

(2d Dist.), at ¶ 17, quoting Long

and Terry. Under the circumstances presented in this case, where the car was searched only

after significant investigation and passage of time, after the occupants were secured in a

cruiser, and after the officers had decided to arrest them, there was no reasonable basis to

conclude that the search was a sweep for weapons motivated by concern for the officers’

safety. The search was not justified as a protective search for weapons.

{¶ 24} Crist’s testimony at the suppression hearing made clear that her primary

justification for the search was conducting an inventory prior to towing the vehicle. The

trial court found that this was an additional justification for the warrantless search.

{¶ 25} In the case of vehicle inventories, the United States Supreme Court has

recognized that such searches are a “well-defined exception to the warrant requirement of

the Fourth Amendment.” Colorado v. Bertine,

,

,

(1987); see also South Dakota v. Opperman,

,

,

(1976); State v. Mesa,

,

(1999),

citing Bertine and Opperman. Such searches are administrative in nature and “intended to

(1) protect an individual’s property while it is in police custody, (2) protect police against 9

claims of lost, stolen or vandalized property, and (3) protect police from dangerous

instrumentalities.”

, citing

. However, the Court has

emphasized that warrantless inventory searches of automobiles are permissible only where

the automobile has been legally impounded. State v. Collura,

,

(8th Dist. 1991), citing Opperman.

Interpreting Opperman , the Ohio Supreme Court has held that, to be

reasonable, a valid warrantless inventory search must be performed “pursuant to a

standard practice and not merely as a pretext for an evidentiary search.” State v.

Cole,

,

(9th Dist. 1994), citing State v.

Robinson,

,

(1979). Such a standard

practice or policy need not be in writing so long as it is regulated by “standardized

criteria or an established routine.” State v. McCulloch, 3d Dist. Logan No. 8-91-25,

, *3 (Aug. 31, 1992), citing Illinois v. Lafayette,

,

,

(1983).

{¶ 26} Parker argues that the inventory search was a “guise” so that the officers

could follow their “hunch” that they would find contraband in the vehicle. She claims that

the officers “knew exactly what they were doing when they used their ‘discretion’ to not

make a few calls and locate, or even attempt to contact, the owner of the vehicle.”

{¶ 27} As a preliminary matter, we question whether Parker had standing to

challenge the inventory of the vehicle. Parker was a passenger in the vehicle, and the

evidence does not suggest that she had permission from the owner to use it. Where a

passenger “had no proprietary or possessory interest in the vehicle and has failed to establish

a legitimate expectation of privacy in the vehicle or its trunk * * * , we must conclude that 10

[she] lacks standing to raise the constitutionality of the search.” (Citations omitted.) State v.

Weis, 3d Dist. Mercer No. 10-06-22,

, citing Rakas v. Illinois,

,

,

(1978); see also State v. Burton, 5th Dist. Licking

No. 00CA13,

, *2 (July 14, 2000); State v. Jackson, 2d Dist. Clark No.

CA3058,

, *4 (Mar. 9, 1994).

{¶ 28} Moreover, Parker’s argument challenging the officers’ decision to

impound the vehicle is not supported by the record. In this case, the driver of the vehicle

was under arrest, neither of the occupants of the vehicle was the owner, and there was no

other evidence to suggest that Parker, the passenger, was authorized by the owner to use the

vehicle. (The record of the suppression hearing contains no evidence about the identity of

the owner or the owner’s relationship to Rike or Parker.) Officer Crist testified that officers

do not “let the passenger then take the vehicle away or drive away from the scene” if the

driver is under arrest and the vehicle belongs to a third party. According to Crist’s

testimony, an officer has discretion in such a situation to contact the owner to make

arrangements for the vehicle or to tow the vehicle. Crist decided to tow the vehicle. Even

if Crist’s decision were motivated, to some degree, by a suspicion that contraband would be

found in the vehicle, we cannot conclude that Crist acted improperly in making the choice

that she did.1

1 In its brief, the State references in a footnote the Englewood, Ohio Code of Ordinances, Section 404.05, related to impoundment of vehicles. The State suggests that Officer Crist may have been mistaken in her belief that she was authorized to tow the vehicle under these circumstances. Neither party presented this evidence in the trial court, and the trial court’s determination was reasonable based on the evidence presented. (But it was commendable for the State to bring this concern to our attention.) Moreover, Section 404.05 provides for impoundment when a vehicle is “unattended” due to the arrest of the driver or when it is “unattended upon any street, bridge or causeway and is so illegally parked as to constitute a hazard or obstruction.” 11

{¶ 29} The second assignment of error is overruled.

{¶ 30} Parker’s first assignment of error states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT OVERRULED DEFENDANT-APPELLANT’S RULE 29 MOTION FOR

ACQUITTAL.

{¶ 31} Parker claims that her Crim.R. 29 motion for acquittal at the close of the

State’s case should have been granted, because the State failed to prove that she had

assembled or possessed the chemicals and other materials found in the car.

{¶ 32} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court applies the same standard

as is used to review a sufficiency of the evidence claim. (Citation omitted.) State v. Thaler, 2d Dist. Montgomery No. 22578,

. “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each

element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist.

Montgomery No. 22581,

, citing State v. Thompkins,

,

,

(1997). When reviewing whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is whether

any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Dennis,

,

(1997). A guilty verdict will

not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

{¶ 33} Parker was charged with assembly or possession of chemicals used to

Crist testified that the car was stopped on a bridge in the roadway. The term “unattended” is not defined, but the ordinance does not suggest that there are circumstances under which an officer would be required to permit a third party to leave with a car. 12

manufacture a controlled substance, in violation of R.C. 2925.041, a felony of the third

degree. R.C. 2925.041(A) provides: “No person shall knowingly assemble or possess one

or more chemicals that may be used to manufacture a controlled substance in schedule I or II

with the intent to manufacture a controlled substance in schedule I or II in violation of

section 2925.04 of the Revised Code.” “[I]t is not necessary to allege or prove that the

offender assembled or possessed all chemicals necessary to manufacture a controlled

substance * * *. The assembly or possession of a single chemical that may be used in the

manufacture of a controlled substance * * *, with the intent to manufacture a controlled

substance * * *, is sufficient to violate this section.” R.C. 2925.041(B).

{¶ 34} At trial, Officers Crist and Ridgway testified about the traffic stop that

resulted from a theft at Walmart and about the officers’ decision to arrest Rike. Officer

Crist observed both occupants of the car making “furtive movements” as the car was coming

to a stop. Both officers testified that, once they decided to arrest Rike, they did an inventory

of the car because neither Rike nor Parker was the owner, and the officers decided to have

the car towed. Officer Ridgway testified that they “were [not] anticipating finding anything

in particular” when they conducted the search. However, the officers found plastic baggies,

red and white tablets, syringes, windshield washer fluid, antifreeze, coffee filters wrapped in

electrical tape, funnels, a grinder, razors, and an unopened box of pseudoephedrine. The

officers testified that some items were found on the driver’s side and some on the

passenger’s side of the vehicle. The officers recognized the items found in the car as

products used in the manufacture of methamphetamine. The officers decided to charge both

Rike and Parker with assembly or possession of chemicals used to manufacture 13

methamphetamine.

{¶ 35} When Rike and Parker had been arrested and were seated in the

cruiser, Parker told Officer Crist, “Everything that you pulled out of the car was mine.”

Later, when Parker was interviewed by a detective and had been fully informed of her rights,

she reaffirmed her admission that she owned the pills and other paraphernalia found in the

car.

{¶ 36} At trial, Rike claimed that he had asked Parker to take responsibility

for the suspicious materials, although they did not, in fact, belong to her, because he had a

lengthy criminal record and she did not. He stated that, at the time, he “figured that she’d

* * * only get probation or something like that.” Rike asserted that all of the supplies had,

in fact, belonged to him. Indeed, he had already pled guilty to illegal possession or

assembly of chemicals for the manufacture of drugs related to this incident.

{¶ 37} The State presented evidence from which the jury could have reasonably concluded that

Parker knowingly possessed some or all of the materials found in the car and that those materials were possessed for the purpose of

manufacturing a controlled substance. Although Rike and Parker attempted, at various times, to take sole responsibility for the

substances and their use, the jurors could have reasonably concluded that Rike and Parker were involved in the enterprise together.

Because the State presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as

a matter of law, the trial court did not err in overruling Parker’s Crim.R. 29 motion.

{¶ 38} The first assignment of error is overruled.

{¶ 39} Parker’s third assignment of error states:

THE TRIAL COURT’S DECISION IS: 1.) AGAINST THE MANIFEST 14

WEIGHT OF THE EVIDENCE, AND 2.) THERE IS INSUFFICIENT

EVIDENCE TO SUPPORT THE CONVICTION.

{¶ 40} Parker argues that her conviction was supported by insufficient evidence

and was against the manifest weight of the evidence.

{¶ 41} As we discussed above, the standard for reviewing the sufficiency of

the evidence is the same as the standard for reviewing the denial of a Crim.R. 29 motion.

Under the first assignment of error, we reviewed the State’s evidence and concluded that

there was sufficient evidence to support Parker’s conviction. Thus, we will confine our

discussion under this assignment of error to Parker’s argument that her conviction was

against the weight of the evidence.

{¶ 42} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” Wilson, 2d Dist. Montgomery No. 22581,

.

When evaluating whether a conviction is contrary to the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the 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.” Thompkins,

,

, quoting State v. Martin,

,

(1st Dist. 1983); State v. Elmore,

,

,

.

{¶ 43} Because the trier of fact sees and hears the witnesses at trial, we must 15

defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

,

*4 (Aug. 22, 1997). However, we may determine which of several competing inferences

suggested by the evidence should be preferred.

{¶ 44} The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances.

.

{¶ 45} Parker does not dispute that the substances found in the car were

well-suited to the production of methamphetamine. She simply contends that they did not

belong to her, i.e., that the weight of the evidence supported the conclusion that she had lied

about possessing the substances to protect her boyfriend, who faced more serious prison time

because of his more extensive criminal record. Although this was one possible

interpretation of the evidence (and the one argued very forcefully by defense counsel), it was

not the only interpretation. The jury could have reasonably concluded that Parker possessed

the materials or that Parker and Rike had engaged in this criminal enterprise together. In

either case, the jury could have reasonably concluded that Parker was guilty. It did not

clearly lose its way or create a manifest miscarriage of justice in reaching the conclusion that

it did.

{¶ 46} The third assignment of error is overruled.

{¶ 47} The judgment of the trial court will be affirmed.

.......... 16

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Michele D. Phipps John C. Meehling Hon. Dennis Adkins