[Cite as State v. Riffle,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107352 v. :

JOSEPH RIFFLE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 15, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618102-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Callista A. Plemel and Eben McNair, Assistant Prosecuting Attorneys, for appellee.

Jay F. Crook, Attorney at Law, L.L.C., and Jay F. Crook, for appellant.

RAYMOND C. HEADEN, J.:

Defendant-appellant Joseph Riffle (“Riffle”) appeals from a jury trial

where Riffle was found guilty of one count of cultivation of marijuana with a firearm

specification, one count of drug possession with a firearm specification, and forfeiture specifications requiring the forfeiture of five firearms. For the reasons

that follow, we affirm.

I. Statement of the Facts

On June 6, 2017, the Cleveland Police received an anonymous

Cuyahoga County Crime Stoppers email identifying Riffle’s home address, 12901

Erwin Avenue, Cleveland, Ohio, and stating marijuana plants were growing in the

backyard. Detective Pitts, Sergeant Dunst, and Detective Follmer went to McGowan

Avenue, one street south of Erwin Avenue, to establish surveillance. Detective Pitts

and Sergeant Dunst walked up the driveway of the house behind Riffle’s and from

the neighbor’s backyard looked over a wooden fence. Detective Pitts described the

fence as four to six feet tall. The evidence shows the officers did not use a ladder but

looked over the fence and observed marijuana plants. Detective Pitts also smelled

the distinct odor of growing marijuana plants. The officers informed Detective

Follmer of their observations.

The officers continued surveillance efforts while Detective Follmer

returned to the First District to draft a search warrant and supporting affidavit and

obtain the necessary signature. Upon executing the search warrant that same day,

the officers first encountered Riffle exiting his home from the back doorway. Riffle

was instructed that the officers had a search warrant for the house. Riffle denied

having anything on his body, including drugs. Riffle was handcuffed and told he was

under arrest for violating state law by cultivating marijuana in his backyard.

Bodycam footage from the arrest shows an officer asked, “What’s in the house” and Riffle responded “marijuana.” The footage shows Riffle was under arrest, but his

wife had not provided entry through the front door or put the dogs in a secure area

away from the police. Riffle and an officer discussed Mrs. Riffle’s confusion and fear

of the officer’s presence and Riffle then stated, “There’s weed downstairs.” This

comment was not in response to a question from an officer. An officer escorted

Riffle into the living room and asked for his identification. Riffle’s identification was

in the garage. Since the garage was being inspected, Riffle was told to “wait a

second” before he obtained his identification. No questions were posed to Riffle.

Riffle then commented, “Yeah, go right ahead. There’s nothing bad. There’s nothing

whatever. I got; I got my two guns are here. One downstairs in my band room. One

is in my bedroom and there’s nothing. I got no weapons on me.” The bodycam

footage shows Riffle was subsequently asked whether there was any money in the

house. Riffle responded “no” and provided an itemization of the guns in the home.

It is not clear whether Riffle was asked to identify all the guns. Riffle also stated the

marijuana “is mine.” The officers ultimately found four plants growing in the

backyard as well as lighting, grow pots, marijuana, and numerous firearms inside

the house.

Riffle was arrested and charged with three counts: cultivation of

marijuana with a one-year firearm specification; drug trafficking with a one-year

firearm specification and forfeiture specifications related to multiple weapons; and

drug possession with a one-year firearm specification and forfeiture specifications

related to multiple weapons. Riffle pled not guilty on July 14, 2017. A suppression hearing was held on January 2, 2018. Riffle attempted to exclude the introduction

of any evidence obtained through the search warrant. The motion to suppress was

denied on January 10, 2018. The case proceeded to a jury trial on April 30, 2018.

The jury found Riffle guilty on all counts except drug trafficking, and Riffle was

sentenced to a total prison term of one year, nine months. Riffle filed this timely

appeal on June 21, 2018, and presents the following assignments of error:

First Assignment of Error: Appellant was prejudiced by ineffective counsel in that trial counsel failed to fail [sic] a motion to suppress regarding evidence obtained from the custodial interrogation of Mr. Riffle.

Second Assignment of Error: The trial court committed reversible error in failing to find that the statements by the officers contained in the Affidavit offered to procure the warrant, when the statements containing material omissions of fact and material statements of factual impossibility, were sufficient to create probable cause to allow for the issuance of a warrant to search Mr. Riffle’s premises.

Third Assignment of Error: Mr. Riffle was prejudiced by the ineffective assistance of trial counsel in that Trial Counsel failed to raise the issue of a Brady violation for a failure of the State of Ohio to ever provide a copy of the email containing the “tip” from the confidential informant accusing Mr. Riffle of criminal activity.

Fourth Assignment of Error: Appellant’s trial counsel was ineffective in failing to file a motion in limine with regards to the introduction of seven (7) firearms into evidence and the trial court committed clear error in allowing the presentation and introduction of the seven (7) rifles as evidence into trial when it is established before the hearing that operability has not been established.

Fifth Assignment of Error: The numerous errors and ineffective acts throughout the trial process, while providing grounds for reversal of Mr. Riffle’s conviction by themselves, also provide grounds for reversal as their cumulative nature resulted in a deprivation of Mr. Riffle’s due process right to a fair trial. II. Law and Analysis

A. Ineffective Assistance of Counsel

Since Riffle argues ineffective assistance of counsel in his first and

third assignments of error, these arguments will be addressed collectively. Riffle’s

ineffective assistance of counsel argument regarding a motion in limine is discussed

below under Section B, Firearms Evidence Admissibility.

The Ohio Supreme Court has repeated the well-established standard

for reviewing claims of ineffective assistance of counsel: “[r]eversal of convictions

for ineffective assistance of counsel requires that the defendant show, first, that

counsel’s performance was deficient and, second, that the deficient

performance prejudiced the defense so as to deprive the defendant of a fair trial.”

State v. Linder, 8th Dist. Cuyahoga No. 106600,

, citing

Strickland v. Washington

,

,

(1984).

Moreover, when a reviewing court considers an ineffective assistance

of counsel claim, the reviewing court should not consider what, in hindsight, may

have been a more appropriate course of action. See State v. Phillips,

,

(1995). Rather, the reviewing court “must be highly

deferential.”

. As the Strickland court stated, a reviewing court

“must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’”

quoting Michel v. Louisiana,

,

,

(1955). This standard of review is applied below when

assessing Riffle’s claims of ineffective counsel.

Motion to Suppress

Riffle first alleges ineffective counsel because his trial counsel failed

to file a motion to suppress Riffle’s statements made during the execution of the

search warrant. Specifically, Riffle claims that the officers did not inform him of his

Miranda rights prior to him admitting marijuana and firearms were located in his

home, and these statements would have been excluded from evidence had a motion

to suppress been filed.

“[S]ince the decision falls within matters of trial strategy, counsel is

not required to file a motion to suppress evidence in every case.” State v. Price, 8th

Dist. Cuyahoga No. 90308,

, citing State v. Flors,

,

(8th Dist. 1987), paragraph two of the syllabus. Trial

counsel is not per se ineffective when it fails to file a motion to suppress. State v.

Madrigal,

,

(2000). Counsel’s failure to file a

motion to suppress constitutes ineffective assistance only when the defendant can

show that the motion “would have ‘had a reasonable probability of success’ and

affected the outcome of the case.” State v. Patterson,

,

(8th Dist.), quoting State v. Sanchez, 8th Dist. Cuyahoga No. 103078,

.

Officers utilized a bodycam during the execution of Riffle’s search

warrant. The bodycam does not represent every moment the arresting officers were present with Riffle the night the search warrant was executed. However, the video

and audio tape indicate Miranda rights were not read to Riffle prior to his

commenting that “there is weed downstairs” and two guns were present in the home.

“The duty to advise a suspect of Miranda rights does not attach until

questioning rises to the level of a ‘custodial interrogation.’” State v. Gumm,

,

(1995), citing State v. Roe,

,

(1989). In judging whether an individual has been placed into custody

the test is whether, under the totality of the circumstances, a “reasonable person

would have believed that he was not free to leave.” Gumm, quoting United States v.

Mendenhall,

,

,

(1980). Accord

Florida v. Bostick,

,

,

(1991).

Additionally, “the special procedural safeguards outlined in Miranda, are required

not where a suspect is simply taken into custody, but rather where a suspect in

custody is subjected to interrogation.” Rhode Island v. Innis,

,

,

(1980). “Interrogation is a measure of compulsion over

and beyond that which is inherent in custody itself.” State v. Clark, 7th Dist.

Mahoning No. 08 MA 15,

, ¶ 27, citing

. The Innis court

clarifies interrogation as follows:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.

.

Upon executing the search warrant, Riffle was immediately placed in

hand restraints and was told he was under arrest. The actions and questioning of

the police gave rise to a custodial interrogation that typically requires a reading of

one’s Miranda rights. The police failed to read Riffle his Miranda rights.

However, even if Riffle’s statements were inadmissible due to the

absence of the Miranda rights, the marijuana and firearms would have been found

admissible under the inevitable discovery doctrine. “[I]llegally obtained evidence is

properly admitted in a trial court proceeding once it is established that the evidence

would have been ultimately or inevitably discovered during the course of a lawful

investigation.” State v. Blevins,

,

, ¶ 39 (8th Dist.),

citing State v. Perkins,

,

(1985), syllabus. See

also State v. Jackson,

,

(1991). “The inevitable

discovery doctrine is appropriately triggered only in those instances where there has

been an implementation of police investigative procedures that ultimately would

have led to the certain discovery of the same evidence.” Blevins at ¶ 40.

However, for the inevitable discovery doctrine to apply, we must first

determine whether the search of Mr. Riffle’s home was conducted under a valid

warrant. If the officers had a valid search warrant, they would have lawfully found the marijuana and firearms despite the officers’ failure to read Riffle his Miranda

rights.

To issue the search warrant, the magistrate needed a substantial

basis to conclude there was a fair probability that contraband or evidence of the

crime would be found at Riffle’s home. State v. Williams, 8th Dist. Cuyahoga

No. 88137,

. “A magistrate’s determination of probable cause

should be paid great deference by reviewing courts.” State v. Coleman, 8th Dist.

Cuyahoga No. 91058,

, citing State v. Banna, 8th Dist.

Cuyahoga Nos. 84901 and 89402,

. The magistrate was

provided a search warrant affidavit drafted by a 24-year veteran with the Cleveland

Police Department, with the last ten years in the vice unit. The officer had training

and experience in the detection, recognition, packaging, and selling of controlled

substances and dangerous drugs and was involved in at least one thousand arrests

of persons for violating state drug laws. The affidavit further stated the vice unit

received a complaint about a white male growing marijuana at 12901 Erwin.

The fact that the initial complaint was received by an anonymous tip

is irrelevant because following the anonymous tip, the officers initiated an

investigation and observed marijuana plants growing on Riffle’s property. The

probable cause supporting the search warrant came from both the anonymous tip

and the preliminary investigation. The affidavit stated two officers from the vice

unit had a clear view of approximately four marijuana plants growing in the

backyard of 12901 Erwin and the officers smelled the marijuana plants. The language within the affidavit reading “a clear view of the marijuana plants in Riffle’s

back yard [sic]” is not rendered a falsehood because the officers made their

observations either over or through a fence. The officers stated they observed the

marijuana plants and their view was not adversely affected by the fence. The

affidavit also stated persons who traffic illegal drugs frequently keep weapons on or

about their person or within their possession. The affidavit sufficiently set forth

factors to establish the requisite probable cause needed to obtain the search warrant.

The arresting officers were at Riffle’s home with a valid search

warrant that authorized police to look for marijuana plants and firearms. There is

no question the marijuana located inside and outside the home would have been

located and seized pursuant to the search warrant, regardless of Riffle’s comments

including “there is weed downstairs.” The firearms would have also inevitably been

located and seized. The police officers testified that when executing a search warrant

for drugs, a primary concern is safety, and drugs and guns are often found together.

In conducting the lawful search, officers would have sought and discovered Riffle’s

multiple weapons.

Because the officers would have inevitably discovered the marijuana

and firearms pursuant to the valid search warrant, Riffle was not prejudiced by trial

counsel’s failure to file a motion to suppress. Thus, Riffle’s first assignment of error

is overruled. Brady Violation

Riffle next argues that his trial counsel was ineffective for failing to

procure a copy of the anonymous email sent to the police that initiated the

investigation against Riffle. Specifically, he claims counsel should have argued that

a Brady violation occurred because the identity and content of the tip could have

bolstered Riffle’s argument that the state lacked probable cause to obtain the search

warrant.

“[T]he suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland,

,

,

(1963).

In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. * * *

Jackson,

,

, citing State v. Johnston,

,

(1988), paragraph five of the syllabus. “‘The mere possibility

that an item of undisclosed information might have helped the defense, or might

have affected the outcome of the trial, does not establish ‘materiality’ in the

constitutional sense.’” Id. at 33, quoting United States v. Agurs,

, 109-

110,

,

(1976); see United States v. Bagley,

,

,

(1985). There is no reasonable probability of a different outcome if Riffle had

been privy to the content of the anonymous email. The police became suspicious of

Riffle’s behavior upon the receipt of an anonymous Crime Stoppers email received

by Sergeant Durst. Sergeant Durst did not have a copy of the email at trial and never

knew the identity of the reporting individual since the tip was anonymous. Sergeant

Durst could not speak to the informant’s reliability, but recalls the email indicated a

white male was growing marijuana in his backyard located at 12901 Erwin Avenue

in Cleveland, Ohio. The police completed an investigation whereby they observed

marijuana plants growing in Riffle’s backyard. Questioning the identity of and

information provided by the anonymous tipster would have no foreseeable impact

on Riffle’s defense or the outcome of the trial.

Failure to raise a Brady violation where the state did not provide

information pertaining to an anonymous tip did not constitute ineffective counsel.

Therefore, Riffle’s third assignment of error is overruled.

B. Firearms Evidence Admissibility

In his fourth assignment of error, Riffle argues the trial court erred in

allowing the introduction and presentation of firearms where operability was

established prior to trial. This assignment of error is reviewed for abuse of

discretion. State v. Fortson, 8th Dist. Cuyahoga No. 92337,

, ¶ 23.

Generally, relevant evidence is admissible. Evid.R. 402; State v. Salti, 8th Dist.

Cuyahoga No. 106834,

. “Nevertheless, a trial court must

exclude relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’”

quoting Evid.R. 403. “The term ‘unfair prejudice’ in relation to a criminal defendant

refers to the ability of some relevant evidence to sway the factfinder into rendering

a guilty verdict on a ground different from the state’s proof of the alleged offense.”

State v. Bell, 1st Dist. Hamilton Nos. C-050537 and C-050539,

.

Riffle’s trial counsel did not stipulate to the operability report of the 9

mm handgun, so we cannot say the probative value of introducing that single gun,

which was the basis of the state’s gun specification charge, was unduly prejudicial.

However, the introduction of the remaining six firearms, several of which were high-

caliber rifles that looked like assault weapons, had a great potential to instill unfair

prejudice into the jurors’ deliberations. The probative value of the six firearms as

physical exhibits was minimal at best. The trial court abused its discretion in

admitting the six guns into evidence where their probative value was substantially

outweighed by the danger of unfair prejudice.

Yet, any error “which does not affect the substantial rights of the

defendant shall be disregarded.” State v. Batie, 8th Dist. Cuyahoga No. 101234,

, ¶ 11; see also Crim.R. 52. “The term ‘substantial rights’ has been

interpreted to require that the error be prejudicial — that is that it must have affected

the outcome of the trial court proceedings.” Batie at ¶ 11, citing State v. Fisher,

,

,

. We are confident that the

jury would have reached the same conclusions even if the six guns had not been

admitted into evidence. The lighting, grow pots, marijuana, and 9 mm handgun found when executing the search warrant as well as the officers’ trial testimony

supported the charges of cultivation of marijuana with a firearm specification, drug

possession with a firearm specification, and forfeiture specifications. The

introduction of the six guns did not alter the outcome of the case and was harmless

error.

Riffle also avers trial counsel was ineffective when he did not file a

motion in limine preventing the introduction and presentation to the jury of seven

confiscated weapons. Defense counsel did not file a motion in limine, but engaged

in a discussion with the prosecutor and the judge, prior to trial, and objected to the

introduction of firearms on the grounds that they were prejudicial. We find the

introduction and presentation of the guns did not prejudice the defense so as to

deprive Riffle of a fair trial. The fact that Riffle was found not guilty of drug

trafficking indicates the jury was not prejudiced by the introduction of the firearms

and decided the case on its merits. Because Riffle cannot satisfy the second prong

of the Strickland test, we need not address the first prong.

The fourth assignment of error is overruled.

C. Validity of the Search Warrant

“Appellate review of a ruling on a motion to suppress presents a

mixed question of law and fact.” State v. Banks-Harvey,

, 2018-

Ohio-201,

, citing State v. Burnside,

, 2003-

Ohio-5372,

. “An appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Banks- Harvey at ¶ 14. See State v. Fanning,

,

(1982). “But

the appellate court must decide the legal questions independently, without

deference to the trial court’s decision.”

, citing

.

In his second assignment of error, Riffle challenges the veracity of the

warrant affidavit presented to the judge to obtain the search warrant. Specifically,

Riffle claims the affidavit did not support granting a search warrant because (1) the

affidavit was based on hearsay of an anonymous tip and the judge was not informed

an anonymous tip was provided in this case, and (2) the affidavit contained false

statements that the officers had a clear view into the backyard of 12901 Erwin

Avenue when they actually looked over a fence to observe the marijuana plants.

To suppress evidence obtained with a search warrant, it is necessary

to review the affidavit supporting the warrant. Search warrant affidavits enjoy a

presumption of validity. State v. Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-

1989, ¶ 29. Where a warrant is based on false material in the affidavit that is

necessary to establish probable cause, the fruits of the search warrant should be

suppressed. Franks v. Delaware,

,

,

(1978). A challenge to the factual veracity of a warrant affidavit requires

allegations of deliberate falsehood or reckless disregard for the truth. State v.

Roberts,

,

(1980). Even if a defendant makes

a preliminary showing of such a false statement, a hearing is not required unless,

without the allegedly false statements, the affidavit is unable to support a finding of

probable cause.

. Riffle argues the affidavit is based on hearsay because the information

is based on an anonymous tip and there is no basis for the reliability of the individual

tipster. Paragraphs 2 and 3 of the search warrant affidavit specifically reference the

Riffle house:

Paragraph 2: The first District Vice Unit received a complaint of a white male growing marijuana in the back yard [sic] of 12901 Erwin Avenue.

Paragraph 3: On 6-6-17, Detective Pitts and Sgt. Mike Dunst went to McGowan Avenue where they could have a clear view into the back yard [sic] of 12901 Erwin Avenue. Sgt. Mike Dunst and Detective John Pitts could observe approximately four plants of marijuana approximately 4 feet tall. Affiants further aver they could smell the order [sic] marijuana.

As we stated previously, under Ineffective Assistance of Counsel —

Motion to Suppress, probable cause for the search warrant was based on both the

anonymous tip and the officers’ subsequent investigation. The initial reliance on an

anonymous tip did not adversely affect the reliability of the information.

Additionally, the statement in paragraph 3 that the officers had a clear

view into the backyard of Riffle’s property is not a false statement made either

intentionally or with a reckless disregard for the truth. The officers testified their

view of the plants growing in the backyard of 12901 Erwin was not obscured by the

fence. The magistrate had probable cause to issue the search warrant. The affidavit

did not contain a false statement made either intentionally or with a reckless

disregard for the truth. Furthermore, no reasonable expectation of privacy existed

when police officers stood on Riffle’s neighbor’s property and saw marijuana

growing in Riffle’s yard. State v. Ritchie, 2d Dist. Miami No. 2000-CA-20,

, 8 (Aug. 25, 2000); State v. Staton, 2d Dist. Greene No. 90-

CA-62,

(Mar. 15, 1991).

The search warrant affidavit presented probable cause to support the

issuance of a search warrant. The trial court did not err in overruling Riffle’s motion

to suppress and, as a result, appellant’s second assignment of error is overruled.

D. Cumulative Error

In his final assignment of error, Riffle argues the cumulative effect of

all the errors in his trial deprived him of his constitutional right to a fair trial.

Because we found no merit to his first four assignments of error, Riffle’s fifth

assignment of error is overruled.

For the foregoing reasons, the trial court’s judgment is 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

conviction having been affirmed, any bail pending 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.

RAYMOND C. HEADEN, JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR