COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59984 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSEPH AGEE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-245566 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID J. JANCO, ESQ. Cuyahoga County Prosecutor 14701 Detroit Avenue, #555 ROBERT J. CHRISTYSON, ESQ. Lakewood, Ohio 44107 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Joseph Agee, was indicted by the Cuyahoga County Grand Jury on January 29, 1990 for receiving stolen property, a motor vehicle, in violation of R.C. 2913.52. Appellant pled not guilty at his arraignment on February 14, 1990. On March 16, 1990, appellant filed a Motion to Suppress, seeking suppression of evidence obtained in a warrantless search of his apartment, including identification evidence. The trial court conducted a hearing and subsequently overruled the motion. Trial by jury commenced on May 23, 1990. The jury found appellant guilty as charged in the indictment. The trial court thereafter sentenced appellant to a term of two (2) years at the Lorain Correctional Institution. This appeal followed and a careful review of the record compels affirmance. I. Patrolman Anthony Small, a Cleveland police officer assigned to the third district, was on basic patrol the evening of October 18, 1989. At approximately 6:00 p.m., he and his partner, Marcia Willis, received a broadcast about a robbery at the location of "East 30th and Project". The officers responded to the call, found the victim of the robbery, Tracy S. Turner, and recovered information about Turner's assailants. The officers learned that the assailants drove a dark blue Jeep. One of the assailants was a black heavyset juvenile male, and stood approximately 5'5". The other assailant was a thin - 3 - black male, weighing approximately 150-160 lbs. and standing 5'6". Both males had short hair. One of them wore a black jean jacket and the other wore a brown jacket. The officers then activated the overhead lights and siren and conducted a search of the area for the suspects and the Jeep with Turner riding in the back seat of the patrol car. Approximately 100 feet from the robbery site, as the officers drove westbound on Central Avenue, a Jeep matching Turner's description was spotted as it travelled eastbound. Turner identified the Jeep as it passed by the patrol car. Officer Small made a U-turn and pursued the Jeep. He also recognized the occupants of the Jeep as fitting Turner's descriptions when the two vehicles passed within one foot of one another. The pursuit brought the Jeep and the patrol car to the same parking lot where the robbery occurred earlier. The Jeep's two occupants bailed out of the vehicle and ran from the area. Officer Willis quickly exited the patrol car and chased the passenger. Officer Small pursued the driver who was wearing a stone-washed black jean jacket, matching pants and tennis shoes. The officer observed the driver's "unusual" haircut, describing it as "fade" where the hair is flat on top with a "V" coming down in the back. The driver also looked back a couple of times at the officer while running away. The officer and the driver subsequently slipped and fell into some mud. The driver's clothing and shoes were muddied in the fall. The driver then ran around the corner of a building. - 4 - Officer Small acted as Officer Willis' Field Training Officer on October 18, 1989. He, therefore, ceased the pursuit of the driver at this time to aid Willis in the apprehension of the Jeep's passenger. The passenger was brought back to the patrol car. The officers thereafter received information from the district that the district received several calls from individuals who knew the suspect driver. The driver's alleged name, Joseph Agee, appellant herein, and his current location were also given to the officers. Approximately five (5) minutes after the passenger was brought to the patrol car, Officer Small was joined by a sergeant and another patrolman as he proceeded to appellant's alleged location at an apartment at 2824 Central Avenue. The apartment was approximately 100 feet from the parking lot. Officer Small knocked on the door. A female opened the door and responded "yes" when asked if appellant was home by Officer Small. She then called appellant to come downstairs and also allowed Officer Small, the sergeant and the patrolman to enter the apartment. The appellant, without shoes or a shirt, descended the stairs. Officer Small requested the appellant to turn around. The officer recognized the haircut as the one worn by the driver of the Jeep and told his sergeant, "[t]hat's the male I was chasing right there." The appellant denied that he was ever chased by the officer. Officer Small then looked to his left, saw a closet - 5 - and found the stone-washed black jean jacket with wet mud on it. The appellant was handcuffed and read his rights. The passenger of the Jeep testified about the events of October 18, 1989 on behalf of the defense. He was among a group of males in a parking lot on Central Avenue when a man drove up 1/ in a Jeep and said, "do you want to buy a Jeep?" The men in the parking lot jumped the driver, beat him and then took the Jeep. The juvenile became a passenger in the Jeep which was driven by an individual named Antoine Gurly. Approximately 10 to 20 minutes later, the Jeep was driven back to the parking lot. The police arrived, causing the driver and passenger to flee the area. The passenger was apprehended and offered that the driver's name was Joseph Agee, the appellant, when struck by the officer. He claimed that he accused the appellant because he "had a grudge against Joseph ever since [he] was younger." He also denied that appellant was ever in the parking lot or in the Jeep. The juvenile was later convicted for possession of drugs and for receiving stolen property, the Jeep. The victim, Tracy Turner, also testified on behalf of the defense. On October 18, 1989, "some guys jumped out of a truck and took bags" from him as he walked down East 30th and Central Avenue. Turner then called the police. He was returned to the robbery site and identified the Jeep. The officers followed the 1/ The parties entered a stipulation that the owner of the Cherokee Jeep was Andres Bhatia and not the appellant; appellant did not receive Bhatia's permission to use the jeep. - 6 - Jeep but at no time did the patrol car and Jeep pass one another in opposite directions. The Jeep stopped and two men jumped out. The officers stopped, exited the patrol car, and each officer chased one of the males. The female officer apprehended the passenger and brought him back to Turner for identification. The passenger ultimately informed the officers of the driver's address. The officers thereafter picked up the alleged driver and returned him to Turner for identification. Turner was unable to identify the appellant as either a participant in the assault upon him earlier or as the driver of the Jeep. Turner testified during cross-examination that between five (5) and ten (10) males assaulted him in the parking lot. He could not identify any one of those men; all he could remember is that one wore a fur hat. Two people were in the Jeep but Turner never saw the driver because the driver was already seated in the vehicle when Turner looked at it. Turner was also unable to describe the clothing worn by the vehicle's occupants beyond the fur hat worn by the passenger. He, therefore, recognized the Jeep only by the fur hat worn by the passenger. II. Appellant, in his first assignment of error, asserts that: "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE." At the suppression hearing, the state presented one witness, Officer Small. The defense presented two witnesses, the appellant and Loleta Russell. - 7 - In addition to the facts presented, infra, as to the chase of the Jeep and appellant, Officer Small explained how he came upon the stone-washed black jean jacket in appellant's apartment. Small first testified that after patting down the appellant, "*** immediately to [his] left, [he] opened the closet, there was the stone-wash blue jean jacket with the mud stains on them [sic]." (Emphasis added.) He recognized the jacket as the one worn by the driver of the Jeep. However, when asked by the prosecutor, "[a]nd in the process of arresting the suspect you noticed in plain view in an open closet the blue jacket that you had seen him wearing; is that correct," Officer Small responded, "[t]hat's correct." (Emphasis added.) Finally, Officer Small testified that there was no doubt that the male he chased on October 18, 1989 was the appellant. Loleta Russell resided at 2824 Central Avenue with her children and the appellant. She testified that ten (10) minutes after she finished making love with appellant on October 18, 1989, there was a knock on their door. The appellant answered the door and was told to step outside by police officers. He wore neither shoes nor shirt at the time. Appellant was instructed to put some shoes on. After he came back inside, four 2/ officers "busted" down the door. They read appellant his rights and took him outside. Russell described the closet by the kitchen which had a wooden curtain for a door. She acknowledged 2/ During cross-examination, Russell admitted that the officers merely opened the door. - 8 - that appellant owned a stone-washed jean jacket but she never saw anyone retrieve a jacket from the closet that day. The appellant testified that he was home all day on October 18, 1989. He heard a knock on the door when he came downstairs to get something to drink after making love with Russell. He answered the door and stepped outside at the officers' request. He then went back inside and closed the door to get shoes. The officers remained outside. Russell came downstairs and appellant explained about the officers. The next thing he knew, an officer was inside the apartment. The officer then went to the closet, opened it, and found appellant's jacket. Appellant denied that there was any mud on the jacket. The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. It is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable" absent probable cause and exigent circumstances. Paten v. New York (1980), 445 U.S. 573, 586, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 474- 475. See, also, Middleburg Hts. v. Theiss (1985), 28 Ohio App. 3d 1, 3-4; State v. King (Nov. 21, 1991), Cuyahoga App. No. 59536, unreported. One exception to this general rule is the consent search. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219. The state must show that the consent was freely and voluntarily given by clear and positive evidence in order to validate the search. Bumper v. North Carolina (1968), 391 U.S. 543, 548. The - 9 - voluntary nature of the consent is an issue of fact to be determined from the totality of the circumstances. Schneckloth, supra, 227. In the case sub judice, police officers received a radio broadcast at approximately 6:00 p.m. about a robbery at "East 30th and Project". The police responded to the call and were given a description of the vehicle and the assailants from the victim. The victim identified the vehicle, and the officers recognized the vehicle's occupants as fitting the description of the assailants. The vehicle was pursued, it stopped and the occupants bailed out of it. The officers chased after them, and Officer Small observed the driver, getting a good look at him. Small was unable to apprehend the driver but subsequently learned his identity and his address. Small proceeded to the location, knocked on the door and asked for appellant when Russell answered the door. She called for appellant to come downstairs and she allowed Small and two other officers to enter the apartment. This court acknowledges appellant's challenge that the officers were not given permission to either enter the apartment or search the premises. The apartment located at 2824 Central Avenue was Russell's apartment. The appellant lived with her. Officer Small testified that Russell allowed him and the other officers to freely enter her apartment. Once inside, Officer Small recognized appellant as the driver of the Jeep. The trial court, as the trier of fact during the suppression hearing, had - 10 - the discretion to believe the police officer's version of the events. State v. DeHass (1957), 10 Ohio St. 2d 230. Appellant also challenges the legality of Officer Small's discovery of his stone-washed black jean jacket. Appellant argues that Small opened the closet and found the jacket prior to his arrest; the jacket was not in plain view according to appellant. There is a discrepancy in Officer Small's testimony in relation to how he actually found the jacket. At one point, he testified that he "opened the closet". Later, however, he testified, in essence, that the closet was open and the jacket was in plain view. Appellant thus argues that Officer Small was only able to identify him as the driver of the Jeep after discovering the jacket and that this identification is based upon impermissible evidence. The record, however, betrays this argument. Officer Small's testimony established that he recognized the appellant as the driver of the Jeep as soon as the appellant descended the stairs in his apartment. The recognition was 3/ further strengthened by the distinctive haircut worn by appellant. Small's discovery of the jacket was not the spark behind his identification of the appellant and does not warrant the suppression of the identification. 3/ Appellant's claim that Officer Small conceded that the appellant's haircut was different than the suspect's is not persuasive here since Small testified only that the appellant's haircut at the time of trial was different than on October 18, 1989. - 11 - Therefore, the trial court committed no error in denying appellant's motion to suppress. Appellant's first assignment of error is overruled. III. Appellant's second assignment of error states: "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A MISTRIAL." Officer Small, during cross-examination, responded to defense counsel's lengthy questioning as to the reliability of the officer's identification of appellant as follows: "A. This is the first time that I have seen Mr. Agee at all, and I just found out he had just got out of jail, so it was impossible for me to see him earlier." Appellant requested a mistrial after the response but the trial court denied the request and gave the following curative instruction to the jury: "THE COURT: Ladies and gentlemen of the jury, Officer Small suggested that Mr. Agree just got out of jail. I am sure you heard that. If you didn't, you sure heard it just now from this Judge. "That observation was not in response to a question asked by defense counsel. "The words should never have been used. I am instructing the jury to disregard the words that Mr. Agee just got out of jail. "Let me explain a little bit further. I don't know whether he just got out of jail or not, but assuming that fact, if it is a fact, it has nothing to do with this case. This case still involves receiving stolen property, a motor vehicle. "A person could be innocent or guilty of that crime, whether or not they just got out of jail, or if they have never been in jail before. - 12 - "So I am instructing you to disregard the statement 'The man just got out of jail,' and I have attempted to explain to you the best I can. It has nothing to do with this case." Appellant argues that "the trial court's attempt to purge the taint from such evidence with a brief instruction to the jury was insufficient to maintain" his fundamental rights and requires a new trial. The decision to grant or deny a mistrial under Crim. R. 33 rests within the sound discretion of the trial court. The decision will not be disturbed by a reviewing court absent a showing that the accused has suffered material prejudice. State v. Sage (1987), 31 Ohio St. 3d 173, 182. The question, therefore, must be considered in light of the entire record to determine whether appellant was denied a fair trial. Id. In the present case, considering the evidence and testimony before the court and the court's curative instruction, we cannot say that the appellant was materially prejudiced by Officer Small's comment. Therefore, the trial court did not err in not ordering a mistrial. Appellant's second assignment of error is overruled. IV. Appellant contends in his third assignment of error that: "THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Appellant asserts in his third assignment of error that the jury's verdict was against the manifest weight of the evidence. He argues not that the state failed to prove the essential - 13 - elements of the offense of receiving stolen property but that the state failed to prove he was the driver of the stolen Jeep. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Davis (1988), 49 Ohio App. 3d 109, 113. In the case sub judice, the issue for the jury was whether appellant did unlawfully receive, retain, or dispose of another person's 1987 Jeep, knowing or having reasonable cause to believe that this motor vehicle had been obtained through the commission of a theft offense. First, a stipulation was entered into that the appellant did not own the vehicle in question nor did he have the permission of the owner to use it. Second, the state presented competent, credible evidence that appellant was the driver of the Jeep. The triers of fact could reasonably conclude that he received stolen property. Hence, the jury's verdict was not against the manifest weight of the evidence. Appellant's third assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its 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 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. LEO SPELLACY, P.J., CONCURS; KRUPANSKY, J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .