State v. Bursey

2021-Ohio-2857

STATE OF OHIO Plaintiff-Appellee v. CHARLES E. BURSEY, III Defendant-Appellant

No. 28976

Court of Appeals of Ohio, Second District, Montgomery

August 20, 2021

Criminal Appeal from Common Pleas Court Trial Court Case No 2019-CR-3539

MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Attorney for Plaintiff-Appellee

JOHNNA M. SHIA, Atty. Reg. No. 0067685, Attorney for Defendant-Appellant

OPINION

TUCKER, P.J.

{¶ 1} Defendant-appellant Charles E. Bursey, III appeals from his convictions for having weapons under disability and possession of drugs. Bursey claims the convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He further claims that the trial court erred by overruling his motion to suppress and abused its discretion regarding the admission of evidence. Finally, Bursey contends his trial counsel was ineffective.

{¶ 2} Because we find no merit to Bursey's arguments, the judgment of the trial court is affirmed.

I. Facts and Procedural History

{¶ 3} On September 6, 2019, Trotwood Police Officer Roger Hoff travelled to Sheikhs Bar and Grill to perform a permit check, which he described as a routine check frequently done by the police department to ensure that local bars are in compliance with their permits and to deter illegal activity. Hoff parked his cruiser in the tavern's parking lot and walked toward the entrance to the bar. At that time, he noticed a Jeep that was backed into a parking spot but still running. As he passed the front of the Jeep, Hoff observed a man lying back with his head slumped forward and his eyes closed. The man, later identified as Bursey, appeared to be asleep or possibly unconscious. Hoff shined his flashlight through the windshield, but Bursey did not react.

{¶ 4} Hoff then went to the back of the car and called in the license plate number for a vehicle check. He also called for backup. Hoff then went to the passenger window to determine whether the car was in park and whether Bursey's foot was on the brake. As Hoff shined his flashlight through the passenger window, he noted Bursey still failed to react. Hoff also observed a Glock handgun with an extended magazine in Bursey's lap.

{¶ 5} Hoff moved toward another vehicle and positioned himself so that he would not be harmed if the Jeep moved or the gun discharged. As backup arrived, Hoff noted Bursey began to move. Hoff observed Bursey leaning forward and down as if attempting to conceal something. Bursey was exiting the car when he noticed Hoff and the other officers, all of whom had their service weapons drawn. Bursey complied with instructions to keep his hands visible. One of the assisting officers placed handcuffs on Bursey. When Hoff approached the vehicle, he smelled the odor of marijuana emanating from within. No other occupants were in the car.

{¶ 6} A search of the Jeep was conducted. The gun, with an inserted magazine, was located under the front driver's seat. The gun had a bullet loaded in the chamber, and the magazine contained 31 rounds of ammunition. The gun was later determined to be fully operable. Clear gel caps, which Hoff suspected contained heroin, were located in the driver's side door compartment and the glove box. The substance in the capsules was tested by a forensic scientist employed by the Ohio Bureau of Criminal Investigation (BCI). All of the capsules contained heroin and fentanyl. One of the capsules also contained cocaine. Sixteen of the capsules also contained acetyl fentanyl.

{¶ 7} On December 3, 2019, Bursey was indicted on one count of having weapons under disability in violation of R.C. 2923.13(A)(3), one count of improper handling of a firearm in a motor vehicle in violation of R.C. 2923.16(B), one count of possession of a fentanyl-related compound in violation of R.C. 2925.11(A), one count of possession of heroin (10-50 unit dose) in violation of R.C. 2925.11(A), and one count of possession of cocaine (less than 5 grams) in violation of R.C. 2925.11(A). Bursey filed a motion to suppress evidence in January 2020. Following a hearing, the trial court denied the motion.

{¶ 8} The matter proceeded to trial in October 2020. Hoff testified to the above-cited facts, while the forensic scientist who tested the capsules provided testimony regarding her testing and the results thereof. Further, the State presented the testimony of a criminal investigator who testified regarding recorded telephone calls made by Bursey while he was in jail awaiting trial.

{¶ 9} Bursey also testified at trial. According to Bursey, he had been in the Jeep with friends during the course of the day prior to going to Sheikhs. Bursey testified that his girlfriend had been driving. He testified that they parked at the bar and the others went inside. However, Bursey testified that he was feeling drowsy and decided to remain in the vehicle; he began to get hot so he crawled into the driver's seat and turned the Jeep on so that the vehicle's air conditioner could be activated. Bursey testified that he fell asleep but had awakened and was exiting the Jeep to go into the bar when the police officers confronted him.

{¶ 10} Bursey further testified that the Jeep did not belong to him and he did not have a gun in his lap when he fell asleep in the vehicle. Bursey testified that he normally keeps his two cellphones in his lap whenever he is sitting in a car, and that Hoff may have seen the phones and thought they were a gun. However, Bursey admitted that he did not remember whether the phones were actually in his lap at that time.

{¶ 11} Following the trial, the jury convicted Bursey on all the charges except for the charge of improper handling of a firearm in a motor vehicle. The trial court sentenced him to an aggregate prison term of 12 months. {¶ 12} Bursey appeals.

II. Motion to Suppress

{¶ 13} In his first assignment of error, Bursey asserts:

THE TRIAL COURT ERRED WHEN IT OVERRULED BURSEY'S MOTION TO SUPPRESS THE EVIDENCE.

{¶ 14} "Appellate review of a motion to suppress presents a mixed question of law and fact. 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." (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "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." (Citations omitted.) Id.

{¶ 15} The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Warrantless searches and seizures violate this prohibition unless conducted pursuant to one of the "few specifically established and well-delineated exceptions." (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 16} One of those exceptions is the plain view doctrine, which permits a warrantless seizure of incriminating evidence when "(1) the officers are lawfully positioned in a place from which the object can be plainly viewed, (2) the incriminating character of the object is immediately apparent, and (3) the officer has a lawful right of access to the object itself." State v. Garrett, 2d Dist. No. 27630, 2018-Ohio-4530, 123 N.E.3d 327, ¶ 22, quoting State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 26, citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) and Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

{¶ 17} In this case, there is no doubt that Hoff was lawfully permitted to view the interior of the Jeep. As Hoff was walking through the parking lot toward the entrance of the bar, he glanced into the front of the Jeep and noted that the lone, male occupant appeared to be either asleep or unconscious while the vehicle was running. Hoff then shined his flashlight, which he described as being more powerful than average, through the windshield and noted that Bursey did not react. Hoff decided to conduct a check on Bursey to make sure he was not unconscious due to a medical problem or intoxication. Hoff also testified that he had a concern for the general safety of the public because Bursey appeared to be asleep or unconscious in a running car in a parking lot; Hoff wanted to look in the passenger window to ensure the vehicle was in park. When Hoff again shined his flashlight and looked in the passenger window, he again noted that Bursey did not react.^[1] He further observed what he recognized as a Glock firearm with an extended magazine in Bursey's lap.^[2] At this point, Hoff was outside of Bursey's vehicle in a place he was permitted to be, conducting a brief check on Bursey's well-being and ensuring the safety of the general public. This minimal intrusion, if any, was legitimate, and it created a sufficient basis to permit Hoff to investigate further.

{¶ 18} Hoff testified that, after he observed Bursey's failure to react to the flashlight and the handgun in Bursey's lap, he wanted to investigate whether Bursey was violating R.C. 4511.194(B)(2), which provides that "[n]o person shall be in physical control of a vehicle * * * if, at the time of the physical control, * * * [t]he person's whole blood, blood serum or plasma, breath, or urine contains at least the concentration of...