[Cite as State v. Knox,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 98713 and 98805

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JERRY KNOX DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557698

BEFORE: E.T. Gallagher, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: April 25, 2013 ATTORNEY FOR APPELLANT

Gregory Scott Robey Robey & Robey 14402 Granger Road Maple Heights, Ohio 44137

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Louis J. Brodnik Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} In this consolidated appeal, defendant-appellant Jerry Knox (“Knox”)

appeals the trial court’s judgment finding him guilty of drug trafficking, drug possession,

and possession of criminal tools. He also challenges the trial court’s denial of his motion

to suppress evidence. We find no merit to the appeal and affirm.

{¶2} Knox was charged with one count of drug trafficking, one count of drug

possession, and one count of possession of criminal tools. At a hearing on Knox’s

motion to suppress, Officer Donald Kopchak (“Officer Kopchak”) testified that he and

his partner, Officer Jeffrey Yasenchak (“Officer Yasenchak”), were patrolling East 105th

Street in Cleveland when they observed a black SUV with dark tinted windows. They

stopped the vehicle for a window tint violation and because they observed it weaving

between lanes.

{¶3} On approaching Knox’s vehicle, the officers smelled a strong odor of

marijuana emanating from the driver’s side window. They asked Knox to step out of the

vehicle, and Officer Kopchak patted him down for weapons while Officer Yasenchak

looked inside the vehicle for the source of the marijuana odor. Officer Yasenchak found a

large cigar-sized marijuana cigarette in the console next to the driver’s seat, and Officer

Kopchak arrested Knox for possession of marijuana while operating a motor vehicle.

{¶4} Officer Kopchak explained that he patted Knox down a second time on arrest

because the initial pat-down was merely a search for weapons and did not include a

search for smaller items, which could be contraband. On Knox’s upper right thigh, Officer Kopchak felt two large, hard objects, which turned out to be bags of cocaine. He

also found over $5,000 in Knox’s left pants pocket, one cell phone on his person, and five

cell phones in the vehicle.

{¶5} Dow Edward Hendricks (“Hendricks”), a private investigator hired by Knox,

presented photographs of Knox’s vehicle to show the tint in the windows. Knox argued

that the degree of tint was not excessive or illegal. Knox testified that he did not commit

any traffic violations that warranted a stop on East 105th Street the day he was arrested.

He denied smoking marijuana and stated that he had just had the vehicle completely

detailed within an hour of his arrest.

{¶6} The court overruled Knox’s motion to suppress evidence. Knox pleaded no

contest to the indictment and was found guilty of all three offenses. The court sentenced

him to six years, to be served concurrently with a nine-month sentence in another case.

The court also imposed an $11,000 fine. Knox now appeals and raises seven

assignments of error.

Standard of Review

{¶7} Five of Knox’s assigned errors relate to the court’s ruling on his motion to

suppress. Appellate review of a trial court’s ruling on a motion to suppress presents a

mixed question of law and fact. State v. Burnside,

,

,

. When considering a motion to suppress, the trial court assumes the

role of trier of fact and is therefore in the best position to resolve factual questions and

evaluate the credibility of witnesses.

Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.

We apply this standard of review to Knox’s first, second,

fourth, fifth, and sixth assignments of error.

Traffic Stop

{¶8} In the first assignment of error, Knox argues the trial court erred in finding

that the stop of his vehicle on East 105th Street was proper. He contends the police

testimony that he was weaving was not credible.

{¶9} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable, unless an

exception applies. Katz v. United States,

,

,

(1967). In Terry v. Ohio, the United States Supreme Court explained that the Fourth

Amendment allows a police officer to stop and detain an individual if the officer

possesses a reasonable suspicion, based on specific and articulable facts, that the person

stopped has committed or is committing a crime. Terry v. Ohio,

,

,

(1968).

{¶10} Officers Kopchak and Yasenchak testified that they pursued Knox’s vehicle

because they observed an excessive window tint violation. As they followed and

attempted to stop the vehicle for that reason, they saw the vehicle weaving. Knox argues

their testimony regarding weaving was not credible because: (1) they could not recount their exact location when they first observed Knox’s SUV, (2) they did not specify exactly

how many times the weaving occurred or how far over the dividing line Knox’s vehicle

traveled, and (3) they did not specify whether there was any traffic between Knox’s

vehicle and their police car. Knox contends that their exact location was important

because there are parked cars in certain areas along East 105th Street, which would make

weaving impossible. He also asserts that the inability to recall how many times the

weaving occurred, the extent of the weaving, and whether there was any traffic between

their vehicles suggests the officers may not have had a good view of the alleged weaving.

{¶11} Although Officer Kopchak could not provide a precise location, he stated

that they first observed Knox’s vehicle when they were stopped in a parking lot off East

105th Street, south of St. Clair Avenue. He conceded that there are, at times, cars parked

along East 105th, but stated that Knox was not changing lanes to maneuver around parked

vehicles; he was weaving. Both Officers Kopchak and Yasenchak testified that they saw

Knox’s car weaving. Furthermore, even if there had been some cars parked along East

105th Street, a few parked cars would not necessarily have prevented Knox from

weaving.

{¶12} As previously stated, “‘when considering a motion to suppress, the trial

court assumes the role of trier of fact and is, therefore, in the best position to resolve

factual questions and evaluate the credibility of witnesses.’” State v. Roberts,

,

,

, quoting State v. Burnside,

,

,

. As a reviewing court, we are bound to accept the trial court’s findings of fact if supported by competent, credible evidence.

State v. Curry,

,

(8th Dist. 1994), citing State v.

Schiebel,

,

(1990). We find no reason to conclude that

the testimony of Officers Kopchak and Yasenchak was not competent or credible.

{¶13} Therefore, the first assignment of error is overruled.

Search of Knox’s Vehicle

{¶14} In the second assignment of error, Knox argues the trial court erred in ruling

that the search of his vehicle was proper. He contends the police lacked probable cause

to conduct the search because there was no evidence that they were qualified to recognize

the odor of marijuana.

{¶15} A law enforcement officer, qualified to recognize the odor of marijuana,

may rely on his or her sense of smell to justify probable cause to conduct a search for

marijuana. State v. Farris,

,

,

,

citing State v. Moore,

,

,

. There is

no requirement that police officers have specific training to identify the smell of

marijuana. The ordinary training and experience of a police officer may qualify an

officer to identify marijuana and establish probable cause to conduct a search if the

officer establishes that he or she has had some experience identifying marijuana in the

past. State v. Fryer, 8th Dist. No. 91497,

; State v. Thompson, 8th

Dist. No. 88858,

; State v. Ivery, 11th Dist. No. 2011-L-081,

, ¶ 28. {¶16} Officer Kopchak testified that he was trained to recognize the smell of

marijuana during his training at the police academy. He also stated that he has arrested

and cited numerous people for marijuana violations. Officer Yasenchak testified that he

has been a police officer for 14 years and has made “thousands” of arrests for marijuana.

Therefore, both officers established they were qualified to recognize the smell of

marijuana.

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

Ineffective Assistance of Counsel

{¶18} In the third assignment of error, Knox argues he was denied his

constitutional right to the effective assistance of counsel.

{¶19} To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989), paragraph two of the syllabus. A defendant must show that

counsel acted unreasonably and that, but for counsel’s errors, there exists a reasonable

probability that the result of the proceeding would have been different. Strickland,

; Bradley,

at paragraph three of the syllabus. In making

this determination, the reviewing court must presume that counsel’s conduct was

competent.

{¶20} Knox contends that his trial counsel was ineffective because he failed to

challenge the officers’ qualifications to detect the smell of marijuana. However, as

previously explained, both Officers Kopchak and Yasenchak provided testimony

establishing that they were qualified to identify the odor of marijuana. Therefore, even if

Knox’s trial counsel had challenged the officers’ qualifications, it would not have

changed the outcome of the trial. The failure to do a futile act cannot be the basis for a

claim of ineffective assistance of counsel, nor could such a failure be prejudicial. State

v. Ford, 8th Dist. Nos. 88946 and 88947,

.

{¶21} Therefore, the third assignment of error is overruled.

Search Incident to Arrest

{¶22} In the fourth assignment of error, Knox argues the arresting officers

improperly “maneuvered” evidence when they searched him incident to arrest. He

contends the police were not permitted to manipulate the two objects in his pants to

determine whether they were contraband.

{¶23} However, this was not merely a pat-down during a Terry stop, which is

limited to a cursory search for weapons. Terry,

. Officer Kopchak did

not feel the evidence until Knox was placed under arrest. When a police officer makes a

lawful arrest, a warrantless search of the arrested person is justified to discover any

weapons that the arrestee might seek to use and to prevent the concealment or destruction

of evidence. State v. Murrell,

,

,

;

Chimel v. California,

,

,

(1969). Therefore, the arresting officers were permitted to investigate suspected contraband on

Knox’s person on his arrest.

{¶24} The fourth assignment of error is overruled.

Lawful Arrest

{¶25} In the fifth assignment of error, Knox argues the police lacked authority to

arrest him. He contends that because he possessed less than 100 grams of marijuana,

which is a minor misdemeanor, the police had no basis on which to arrest him.

{¶26} However, R.C. 2935.03(A)(1) provides that “[a] * * * police officer * * *

shall arrest and detain, until a warrant can be obtained, a person found violating, within

the limits of the political subdivision, * * * an ordinance of a municipal corporation.”

(Emphasis added). Cleveland Codified Ordinances (“CCO”) 619.23(c) provides that “no

person, while operating a vehicle * * * shall knowingly * * * possess, or use a controlled

substance contrary to Section 607.03.” Under CCO 619.23(c), possession of any amount

of marijuana, however small, constitutes a violation. Under Section 619.23(f), a

violation of Section 619.23(c) is a first-degree misdemeanor and is an arrestable offense.

State v. Jackson, 8th Dist. No. 90471,

.

{¶27} Therefore, once the police confirmed that Knox possessed marijuana while

he was operating a motor vehicle, they were authorized to arrest him.

{¶28} Accordingly, we overrule the fifth assignment of error.

Due Process and Equal Protection {¶29} In the sixth assignment of error, Knox argues the trial court erred in denying

his motion to suppress evidence when the evidence showed that CCO 619.23 was

unconstitutional. Knox argues that CCO 619.23 is unconstitutional because it arbitrarily

enhances the penalty for those people in possession of marijuana while operating a motor

vehicle.

{¶30} The standard for determining violations of equal protection is the same

under state and federal law. “Where neither a fundamental right nor a suspect class is

involved, a legislative classification passes muster if the state can show a rational basis

for the unequal treatment of different groups.” (Citations omitted.) Fabrey v.

McDonald Police Dept.,

,

,

. A

statute must be upheld if it bears a rational relationship to a legitimate governmental

interest. Adamsky v. Buckeye Local School Dist.,

, 362,

,

. The statute is presumed constitutional and will be

declared invalid only if the challenging party demonstrates beyond a reasonable doubt

that the statute violates a constitutional provision. Desenco, Inc. v. Akron,

,

(1999).

{¶31} As previously stated, CCO 619.23 allows the police to arrest a suspect for

possession of any amount of marijuana while operating a motor vehicle because the

offense is a first-degree misdemeanor. CCO 607.03(c)(2) provides that possession of

less than 100 grams of marijuana is a minor misdemeanor and a non-arrestable offense.

Knox suggests that the difference between these statutes is arbitrary and unconstitutional. {¶32} However, possession of marijuana while operating a motor vehicle is not the

same as simple possession. The risks inherent in operating a vehicle while possessing

marijuana are substantially greater than possession of marijuana outside of a moving

vehicle. The dissemination of controlled substances is also facilitated by transportation of

contraband in a vehicle. Therefore, the authority to arrest someone for possession of

marijuana while operating a motor vehicle, as provided in CCO 619.23(c), is rationally

related to a legitimate governmental interest.

{¶33} Knox also argues that the police arrested him pursuant to CCO 619.23(c) as

a pretext to search his vehicle for larger quantities of drugs. However, where a police

officer has probable cause to arrest a suspect, the arrest is not unreasonable under the

Fourth Amendment even if the officer had some ulterior motive for making the arrest,

such as a suspicion that the violator was engaging in more nefarious criminal activity.

State v. Williams,

,

,

, citing Dayton v.

Erickson,

,

,

. Officers Kopchak and

Yasenchak had probable cause to arrest Knox when they observed him violating CCO

619.23. Therefore, Knox’s arrest was not unconstitutional.

{¶34} The sixth assignment of error is overruled.

Imposition of a Fine

{¶35} In the seventh assignment of error, Knox argues the trial court abused its

discretion when it imposed a fine as part of his sentence, despite evidence of indigence. {¶36} Ohio law does not prohibit a court from imposing a fine on an indigent

defendant. State v. Ramos, 8th Dist. No. 92357,

. Nor does the filing of

an affidavit of indigency by a defendant automatically entitle a defendant to a waiver of a

mandatory fine. State v. Gipson,

,

,

.

R.C. 2925.03(D) mandates that a defendant who is convicted of a first-degree felony

trafficking offense shall be ordered to pay a fine of no more than $ 20,000 and no less

than $ 10,000, unless, as specified in R.C. 2929.18, the court determines that the

defendant is indigent.

{¶37} The burden is on the offender to affirmatively demonstrate that he is

indigent and unable to pay the mandatory fine. Gipson, 80 Ohio St.3d at 635. “There are

no express factors that must be taken into consideration or findings regarding the

offender’s ability to pay that must be made on the record.” State v. Williams, 8th Dist.

No. 92419,

, ¶ 8, quoting State v. Martin,

,

,

(4th Dist.).

{¶38} The record indicates that Knox retained counsel to represent him in the trial.

He also hired a private investigator to assist in his defense. The investigator testified at

the suppression hearing. At the time of his arrest, Knox owned a 2003 Land Rover and

had over $5,000 cash in his pocket. These factors indicate that Knox has the ability to

pay for professional services and can, therefore, pay his fine.

{¶39} Although he testified that he did not earn any legitimate income in the

previous year, he stated that he performs carpentry on homes that are rehabilitated for resale. Therefore, by his own admission, he is a skilled carpenter and has the ability to

earn honest income to pay his fine. Under these circumstances, we find no abuse of

discretion.

{¶40} The seventh assignment of error is overruled.

{¶41} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR