[Cite as State v. Cook,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130242 TRIAL NO. B-1206956 Plaintiff-Appellant, :

vs. : O P I N I O N.

CHRISTIAN COOK, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: December 13, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Brian Goldberg, for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D INKELACKER , Judge.

{¶1} Defendant-appellant Christian Cook was indicted for three counts

of burglary and two counts of receiving stolen property. He entered not guilty pleas

to all the charges and filed two separate motions to suppress the eyewitness

identification of John Aschraft, Cook’s statements to police, and the evidence that

stemmed from the police’s warrantless search of an apartment Cook shared with his

girlfriend. Following the denial of his motions to suppress, Cook pleaded no contest

to three counts of burglary. In exchange, the state dismissed the two receiving-

stolen-property charges. The trial court sentenced Cook to a four-year prison term

for each burglary charge and ordered that the terms be served consecutively, for a

total of 12 years in prison.

{¶2} Cook raises five assignments of error in support of his appeal. He

claims that the trial court erred in failing to suppress the evidence police obtained

during a warrantless search of his apartment, the eyewitness identification of a

victim of the third burglary, and his statements to police; that the trial court failed to

properly notify him of his postrelease-control obligations at sentencing; and that the

trial court failed to substantially comply with Crim.R. 11 by failing to properly advise

him of his postrelease-control obligations and that he could serve consecutive prison

terms. Finding merit only in his fourth assignment of error, we remand this case to

the trial court for the sole purpose of informing Cook of his postrelease-control

obligations in accordance with R.C. 2929.191. We affirm the trial court’s judgment in

all other respects.

Testimony at the Hearing on the Motions to Suppress

{¶3} At the hearing on Cook’s motions to suppress, Jill Schramm, a

Cincinnati police detective assigned to the District 2 Investigative Unit, testified that

2 OHIO FIRST DISTRICT COURT OF APPEALS

she had investigated three burglaries on Shaw Avenue that had occurred on October

8, October 11, and October 12, 2012. When she arrived at the scene of the October 12

burglary, she learned that the homeowner, John Ashcraft, had surprised the burglar,

who was trying to leave through a door to a deck. In his haste to leave, the burglar

had dropped a number of items, including a receipt for Spree candy that had been

purchased at a nearby Shell gas station, a lanyard with a set of keys, and a packet of

suboxone, a prescription medication, which had a food stamp card for Lindsay

Bellville inside it. The police determined that the keys matched an apartment

complex a few doors down from the residence that had been burglarized. They then

knocked on the door to the apartment, but no one answered.

{¶4} When Schramm returned to District 2, she was advised that

officers had developed Cook as a suspect for the burglary, and that they were putting

together a photographic array to show Ashcraft. Detective Schramm testified that

she was only given Cook’s name, and did not know what he looked like. When the

array was complete, she called Ashcraft and asked him to come to the police station.

{¶5} Three hours after the burglary, Schramm showed Ashcraft the

photographic array, which included six photographs of men that shared similar facial

features and characteristics. Prior to showing him the array, she read Ashcraft

instructions and asked him to sign a form, indicating his understanding of those

instructions. She then laid the six photographs on the table in two separate rows.

She did not emphasize any one of the photographs because she did not know what

the suspect looked like. Ashcraft pulled two of the photographs out of the group.

After 30 seconds, he chose the fifth photograph from the array, and said, “This looks

like him.” Detective Schramm then had Ashcraft initial a form acknowledging that

he had chosen the fifth photograph. When she gave the photograph Ashcraft had

3 OHIO FIRST DISTRICT COURT OF APPEALS

selected to two other police officers associated with the investigation, she was

informed that Ashcraft had selected Cook’s photograph from the array.

{¶6} At that point, officers knew Cook was living with his girlfriend,

Lindsay Belville. They went to the apartment the two shared, and knocked on the

front door, but no one answered. The p0lice then returned to District 2 and called

Belville’s relatives. Belville’s grandparents brought her to the police station for

questioning.

{¶7} Although Belville was not arrested, Detective Schramm informed

her of her Miranda rights and explained that police believed Cook had perpetrated

burglaries in the area and had stolen property from the burglaries inside their

apartment. Belville told Schramm that Cook had left the apartment and she did not

know where he had gone. She identified a cell phone that had been left at the first

burglary as belonging to Cook. She also told Schramm that some of the property that

had been taken in the burglaries was in the apartment. Schramm asked Belville if the

police could enter the apartment to search for the stolen property.

{¶8} At that point, Belville agreed to accompany police to the

apartment. Once there, Detective Schramm read a written consent to search form to

Belville and asked her for consent to allow the investigators to enter the residence

and search for stolen property. Belville signed the form. Schramm denied

threatening or coercing Belville to obtain her consent to search the apartment.

{¶9} Belville then stood in the parking lot with her grandparents while

police entered the apartment. Upon entering the residence, the police found Cook

and arrested him based on Ashcraft’s eyewitness identification as the perpetrator of

the burglary earlier that morning. Schramm testified that Cook “did not want to

comply. He almost got tased. He didn’t want to put his hands behind his back.”

4 OHIO FIRST DISTRICT COURT OF APPEALS

Police removed Cook from the apartment and took him to District 2 for questioning.

The police then asked Belville to enter the apartment. Once inside, Belville helped

police identify property that had been taken in the October 8 and October 11

burglaries.

{¶10} When Schramm returned to District 2, she met with Cook. She

notified him of his Miranda rights, and asked him if he would be willing to talk about

the incidents that had occurred that day and the previous day. Cook indicated that

he was willing to talk. He did not ask for an attorney or invoke his right to remain

silent. According to Schramm, Cook understood the questions she asked him and

gave appropriate responses.

{¶11} Schramm recorded the interview, which was played during the

suppression hearing. At the beginning of the interview, Detective Schramm asked

Cook if he was feeling “ok.” She told Cook that he was “slurring” his words. Later,

Schramm commented that Cook sounded better, but that he still looked “dope sick.”

Cook told Schramm that he had taken two Klonopin pills when he heard police

knocking on the apartment door. When she asked him what effect this medicine had

upon him, he said they were “nerve pills and don’t give you any buzz. They will slow

you down.”

{¶12} Cook then argued with Schramm over whether he had a drug

problem. He eventually admitted that he was addicted to drugs, including suboxone.

Schramm told Cook that police had recovered a packet of suboxone at the scene of

the third burglary.

{¶13} During the course of the interview, Cook admitted he had previous

experience with law enforcement. He admitted to being at the Shell gas station the

morning of the third burglary, but stated that he went straight home and went to

5 OHIO FIRST DISTRICT COURT OF APPEALS

bed. He disclaimed any responsibility for that burglary or the other two burglaries.

He claimed he had only been purchasing stolen property, and that the police had

arrested the wrong man. He told Schramm the perpetrator of the burglaries was

actually a man named Tyler Goodman. When Schramm informed Cook that she did

not believe him, he became very argumentative. Schramm then terminated the

interview.

{¶14} John Ashcraft testified that around 6:50 a.m. on October 12, 2012, he

was upstairs sleeping in the home he shared with his pregnant wife and one-year-old

daughter, when he heard noises downstairs. When his dog started barking, he

realized someone was in his home. As he got to the bottom of the stairs, he saw a

man trying to leave through the back door of his home. He yelled for the man to

leave and kept moving towards the kitchen.

{¶15} When he got to the edge of the kitchen, the man, who had now

opened the door, turned to look at him and said, “Sorry, wrong house.” The man

then ran out of the door. Ashcraft said he was ten to 12 feet away when the intruder

turned around and spoke to him. Ashcraft saw his face for a couple of seconds. He

was very focused on making sure the person was leaving his home.

{¶16} After the intruder left, Ashcraft ran and shut the door. His wife called

the police. He couldn’t recall if he had given police a description of the intruder.

Around 9:30 a.m. that same morning, he met with Schramm to look at some

photographs.

{¶17} Prior to showing Ashcraft the photographs, Schramm read him some

instructions from a sheet of paper, which included the following:

In a moment, I will show you a group of photographs. This group of

photographs may or may not contain the photograph of the alleged

6 OHIO FIRST DISTRICT COURT OF APPEALS

perpetrator of the offense now being investigated. I do not know who

the alleged perpetrator of the offense now being investigated is. I do

not know which, if any, of the photographs is of the alleged

perpetrator.

{¶18} She then showed him six different photographs, which he

immediately narrowed down to two. He looked at those two photographs for 30

seconds and then said, “I think this is the one.” He handed Schramm the photo. He

testified that he was pretty confident that he had identified the person he had seen in

his home earlier that morning. He further stated that at no time did Schramm point

to any specific photograph in the array and ask him if it was the person he had seen.

{¶19} Lindsay Belville testified that she met with police on October 12, 2012.

She said Schramm had called her grandparents’ home and asked to speak with her.

Her grandparents had then taken her to District 2. According to Belville, Detective

Schramm took her to an interrogation room and asked her to sign a paper, which

stated that she could have an attorney present if she needed one. Schramm then

started asking her questions about Cook. She became very anxious. She asked

Schramm for an attorney, but Schramm ignored her request and kept asking her

questions.

{¶20} According to Belville, Schramm told her that she had the choice to

sign a search warrant or that she would have “the cops kick in her door.” She also

testified that Schramm had told her that if she did not cooperate, she could be

charged with “everything” and then her two-week-old daughter would be removed

from her custody. As a result, she didn’t feel like she had a choice, she had to give

police consent to search the apartment.

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} Belville then returned with the police to her apartment on Shaw

Avenue. She signed a consent form for the police to search her apartment. At that

point, she did not know if Cook was still in the apartment. She only knew he had

been there previously. She denied telling Schramm that Cook had left the apartment.

{¶22} During cross-examination, Belville admitted that she had lived at the

apartment with Cook and her daughter, and that both her name and Cook’s name

were on the lease. She also admitted that her signature was on the consent-to-search

form.

Search of Cook’s Apartment

{¶23} In his first assignment of error, Cook argues the trial court erred in

failing to suppress the evidence recovered during the warrantless search of his

apartment.

{¶24} When reviewing a trial court’s ruling on a motion to suppress we employ

a two-part analysis. First, we review the historical facts found by the trial court for clear

error and give due weight to the inferences drawn from those facts by the trial court.

Ornelas v. United States,

,

,

(1996).

Second, we must independently decide whether the facts meet the applicable legal

standard. See State v. Burnside,

,

,

.

{¶25} Cook first argues that Belville’s consent to search the home was not

voluntarily given. He relies on Belville’s testimony at the suppression hearing that

the police had threatened to arrest her and take her child if she did not consent to a

search of the apartment. Detective Schramm, however, denied threatening or

coercing Belville to obtain her consent to search the apartment. She testified instead

that Belville had voluntarily consented to the search.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶26} In its written decision overruling Cook’s motions to suppress, the trial

court stated that in weighing Belville’s testimony at the suppression hearing with the

testimony presented by Schramm, it found Schramm’s testimony to be more

credible. Under these circumstances, we cannot conclude that the trial court erred in

finding Belville’s consent to be voluntary. See State v. Hunter, 1st Dist. Hamilton No.

C-960431,

, *3-4 (Feb. 26, 1997); see also State v. Ayoub,

, 542, (6th Cir. 2007). We, thus, find Cook’s first argument meritless.

{¶27} Cook next argues that the police, upon entering the apartment and

finding him there, should have asked for his consent to search the apartment. He

further argues that under the circumstances it was impossible for him to expressly refuse

to consent to the search because it was a hostile situation where he was almost tased

upon the officers’ entry into the apartment. Thus, he contends that his actions in

refusing arrest amounted to a refusal to allow police to enter the residence.

{¶28} The difficulty with Cook’s argument, however, is that the case he relies

upon, Georgia v. Randolph,

,

,

(2006), is factually distinguishable. Georgia involved a defendant who had expressly

refused to consent to a police search of his residence, followed by a third-party who

later gave police consent to search. The United States Supreme Court held that

under those narrow circumstances, when “a potential defendant with self-interest in

objecting is in fact at the door and objects, the co-tenant’s permission does not

suffice for a reasonable search.”

As a result, the Supreme Court upheld the

suppression of evidence resulting from the warrantless search.

Federal courts

however, have refused to extend Georgia’s holding to a potential objector who stands

by mute. See United States v. Stanley,

, (6th Cir. 2009).

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} Thus, absent a contemporaneous objection from Cook, Belville’s

consent to search the apartment was sufficient to permit the police to enter their

apartment. See State v. Pugh, 2d Dist. Montgomery No. 25223,

. Cook admits he made no express objection to the search of the apartment. He

merely resisted arrest. Cook cites no authority, and we are not aware of any, that

would support his assertion that resisting arrest is tantamount to an express refusal

of consent to search. Compare United States v. Tatman,

(6th

Cir. 2010) (holding that a defendant’s statements to police at the top of the stairs that

a cotenant had no right to let them in and that they had no right to be there were

sufficient to revoke the cotenant’s earlier consent, and distinguishing the case from

cases where the defendant had made no such statement). And contrary to Cook’s

assertions, the police were not required to obtain his express consent before

searching the apartment. See Pugh at ¶ 10; Stanley,

. As a

result, we cannot say the trial court erred in concluding that Belville’s consent to

search gave the officers the legal authority to search the apartment. We, therefore,

overrule his first assignment of error.

Eyewitness Identification

{¶30} In his second assignment of error, Cook argues the trial court erred

in failing to suppress the eyewitness identification of John Ashcraft, the victim of the

third burglary.

{¶31} A court should suppress a pretrial identification only if the

circumstances surrounding the identification were unnecessarily suggestive and the

identification was unreliable under the totality of the circumstances. State v.

Waddy,

,

(1992).

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶32} Cook argues that the lineup was unnecessarily suggestive because

Schramm, who had administered the photographic lineup was not a “blind

administrator” as required under R.C. 2933.83. He also claims that Ashcraft’s

identification was unreliable because Ashcraft did not have enough time to view

Cook during the burglary.

{¶33} R.C. 2933.83(B) provides that “any law enforcement agency or

criminal justice entity that conducts * * * photo lineups shall adopt specific

procedures for conducting the lineup.” One of those procedures involves using a

“blind” or “blinded administrator” to conduct the lineup. R.C. 2933.83(B)(1). A

“ ‘blinded administrator’ means the administrator may know who the suspect is, but

does not know which lineup member is being viewed by the eyewitness.” R.C.

2933.83(A)(3). When the state fails to comply with 2933.83, a defendant’s remedy is

not suppression, but the opportunity for cross-examination at trial. See State v.

Ruff, 1st Dist. Hamilton No. C-110250,

; R.C. 2933.83(C)(1).

{¶34} Here, Schramm testified that she had been given Cook’s name as a

suspect in the burglaries, but that she did not know what he looked like. She testified

that she did not prepare the photo array and did not know which photograph in the

array depicted Cook. She further testified that she had read an advisement to

Ashcraft, which stated as much prior to showing him the array. Thus, there is no

evidence to demonstrate that Schramm was not a “blind administrator” as

contemplated by the statute. Therefore, the trial court properly denied Cook’s

motion to suppress on this basis. Cook, moreover, points to no other defect in the

lineup that would support his argument that the photo array was unduly suggestive.

{¶35} Cook also argues that Ashcraft’s identification was unreliable because

Ashcraft had testified that it was dark inside his home and that he had seen the

11 OHIO FIRST DISTRICT COURT OF APPEALS

intruder only a second or two from ten-12 feet away, and Ashcraft had said, “I think

this is the one” when selecting Cook’s photograph from the array. But because Cook

has not demonstrated that the array was impermissibly suggestive, we need not

reach the reliability of Ashcraft’s identification. Waddy,

,

. As a result, we overrule his second assignment of error.

Voluntariness of Cook’s Statements

{¶36} In his third assignment of error, Cook argues that the trial court erred

in failing to suppress his statements to Schramm. He argues that because he was

under the influence of drugs at the time of the interview, he could not have

knowingly and voluntarily waived his right to remain silent. He points to Detective

Schramm’s testimony at the suppression hearing that he had admitted during the

police interview that he had taken two Klonopin pills before he had been arrested,

and that he had looked “dope sick” during the interview.

{¶37} In determining whether a defendant’s statement is made voluntarily,

courts employ a “totality of the circumstances” test. State v. Wiles,

,

(1991). They “consider a variety of factors including the age,

mentality and prior criminal experience of the accused; the length, intensity, and

frequency of the interrogation; the existence of physical deprivation or mistreatment;

and the existence of threat or inducement” to determine whether the statement was

the product of a free and deliberate choice, or the result of police coercion and

overreaching. State v. Leonard,

,

,

at ¶ 32; see also State v. Edwards,

,

(1976); Colorado v. Connelly,

,

,

,

(1986). “The suppression of a statement is properly denied on the basis of its

voluntariness where the record discloses substantial evidence upon which the trial

12 OHIO FIRST DISTRICT COURT OF APPEALS

court, applying the above criteria, might have concluded, by a preponderance of the

evidence that the statement was made voluntarily.” State v. Rogers, 1st Dist.

Hamilton No. C-000299,

, *8 (Dec. 29, 2000).

{¶38} Prior to interviewing Cook, Detective Schramm advised him of his

constitutional rights, and Cook admitted that he understood them. Detective

Schramm’s interview with Cook was recorded, and a copy of the interview was played

at the hearing on the motion to suppress. While Schramm described Cook as

appearing to be ill, a condition she described as “dope sick” and attributed to drug

addiction, she testified that he understood her questions and gave appropriate

answers. Moreover, at no time during the interview did Cook assert his right to

counsel or to remain silent. Instead, he chose to verbally spar with Schramm and to

try to persuade her of his innocence. Schramm concluded the interview when Cook

became irate that she did not believe him.

{¶39} Cook’s statements during the interview are inconsistent with his

argument that his will was so overborne by drugs that he did not knowingly and

voluntarily choose not to remain silent. See State v. Israel, 1st Dist. Hamilton No. C-

961006,

, *22 (Sept. 26, 1997); State v. Stewart,

,

(11th Dist. 1991). Nor does the record reflect

that Cook’s statements were the product of police coercion. As a result, we cannot

say the trial court erred in concluding that under the totality of the circumstances,

Cook’s statements were voluntary and should not be suppressed. We, therefore,

overrule his third assignment of error.

13 OHIO FIRST DISTRICT COURT OF APPEALS

Notification of Postrelease Control at Sentencing Hearing

{¶40} In his fourth assignment of error, Cook argues that his sentence is

contrary to law based upon the trial court’s failure to orally notify him of his

postrelease-control obligations at the sentencing hearing.

{¶41} R.C. 2967.28(B) provides as follows:

Each sentence to a prison term for * * * a felony of the second

degree * * * that is not a felony sex offense shall include a

requirement that the offender be subject to a period of post-

release control imposed by the parole board after the offender's

release from imprisonment. * * * Unless reduced by the parole

board pursuant to division (D) of this section when authorized

under that division, a period of post-release control required by

this division for an offender shall be of one of the following

periods:

***

(2) For a felony of the second degree that is not a felony sex

offense, three years[.]

{¶42} R.C. 2929.19(B)(3)(c) requires the sentencing court to “notify the

offender at the sentencing hearing that he will be supervised pursuant to R.C.

2967.28 and that the parole board may impose a prison term of up to one-half of the

prison term originally imposed on the offender if he violates supervision or a

condition of his postrelease control.” See State v. Williams, 1st Dist. Hamilton No.

C-081148,

, ¶ 20.

{¶43} When a sentencing court fails to advise an offender about postrelease

control at the sentencing hearing, and the offender is sentenced after July 11, 2006,

14 OHIO FIRST DISTRICT COURT OF APPEALS

the effective date of R.C. 2929.191, the trial court violates its statutory duty, and that

part of an offender’s sentence that is related to postrelease control is void. See State

v. Brown, 1st Dist. Hamilton Nos. C-100390 and C-100310,

, ¶8-9,

quoting State v. Fischer,

,

,

, ¶ 26.

To remedy the postrelease-control defect, the trial court must employ the sentencing

procedures set forth in R.C. 2929.191. See Brown at ¶ 8.

{¶44} Here, the trial court failed to orally advise Cook that he would be

subject to a mandatory period of three years of postrelease supervision following his

release from prison, and that the parole board could impose a prison term of up to

one-half of the stated prison term originally imposed, if he violated supervision or a

condition of his postrelease control. See R.C. 2929.19(B)(3)(c) and 2967.28(B). As a

result, we sustain Cook’s fourth assignment of error.

Plea Hearing

{¶45} In his fifth assignment of error, Cook argues that his no-contest pleas

were involuntary because the trial court failed to advise him of the maximum

possible aggregate sentence in that the trial court failed to address consecutive

sentences and it misstated that he “could be” subject to three years of postrelease

control where postrelease control was mandatory.

{¶46} Cook first argues the trial court failed to comply with Crim.R. 11(C)(2)(a)

as it only informed him of the maximum prison term available for each offense, but did

not inform him that it could impose consecutive sentences under R.C. 2929.14(E)(4). In

State v. Johnson,

,

(1988), syllabus, however, the

Ohio Supreme Court held that when a trial court has the option to impose consecutive

sentences pursuant to R.C. 2929.14(E)(4), its failure to inform a defendant who pleads

guilty that his sentences may run consecutively rather than concurrently is not a

15 OHIO FIRST DISTRICT COURT OF APPEALS

violation of Crim.R. 11(C) and does not render the plea involuntary. See also State v.

Clark, 1st Dist. Hamilton No. C-010532,

, ¶ 5-8. We, therefore, find

Cook’s first argument meritless.

{¶47} Cook also argues that the trial court failed to substantially comply with

Crim.R. 11(C)(2)(a) when it failed to adequately inform him of his postrelease-control

obligation. The Ohio Supreme Court has held that if a trial judge imperfectly explains

nonconstitutional rights, such as the right to be informed of the maximum possible

penalty and the effect of the plea, a substantial compliance rule applies. Under this

standard a slight deviation from the text of the rule is permissible so long as the totality

of the circumstances indicates that the “the defendant subjectively understands the

implications of his plea and the rights he is waiving.” State v. Clark,

,

,

.

{¶48} While the trial court initially misinformed Cook that he would be subject

to a discretionary three-year term of postrelease control, the assistant prosecuting

attorney clarified that the term was actually mandatory. The trial court agreed with the

prosecuting attorney’s statement. Cook’s plea form correctly stated that he would be

subject to a mandatory three-year term of postrelease control. Cook, moreover, has

failed to demonstrate any prejudice from the trial court’s initial misstatement. See id. at

¶ 32. As a result, we overrule his fifth assignment of error.

{¶49} Having sustained Cook’s fourth assignment of error, we reverse the

trial court’s judgment, and remand this cause for the trial court to notify Cook of his

postrelease-control obligations in accordance with R.C. 2929.191. We affirm the trial

court’s judgment in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

16 OHIO FIRST DISTRICT COURT OF APPEALS

HENDON, P.J, and CUNNINGHAM, J., concur.

Please note: The court has recorded its own entry this date.

17