COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61079 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRANK KOVACS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-253290 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. STEPHEN WALKER, ESQ. CUYAHOGA COUNTY PROSECUTOR The Brownell Building BY: LAURENCE R. SNYDER, ESQ. 1340 Sumner Court ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44115 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant, Frank Kovacs, was convicted of violations of R.C. 2925.03 (sale or offer to sell cocaine in an amount equal to or exceeding three times the bulk amount but less than three times the bulk amount); R.C. 2925.13 (permitting a motor vehicle to be used for commission of a felony drug abuse offense); R.C. 2925.03 (possession of cocaine in an amount equal to or exceeding three times the bulk amount); R.C. 2923.24 (possession of criminal tools, i.e., a motor vehicle, money and a pager); and R.C. 2923.13 (having a weapon while under a disability). Each count contained a violence specification and the last count included a firearm specification. Appellant was sentenced to three to ten years (including a three-year term of actual incarceration), three to ten years (also including a three-year term of actual incarceration), six months, one and a half to five years and one and a half to five years (with an initial three-year term of actual incarceration for the firearm), respectively. The terms for the sale and having a weapon without a disability were ordered to be served consecu-tively. On appeal appellant assigns five errors for review. I THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS. Appellant contends that his consent to search his home after he was in custody was invalid because it was the result of coercion and an improper inducement. Specifically, appellant alleges that before he consented he was handcuffed, denied counsel, food, water and medication (for his diabetes) and signed the consent form only after the officers had entered his home - 3 - without permission and told him that the officers could get a search warrant anyway (and if they did they would rip the place apart but if he would consent he would get a lesser sentence). Appellant insists that he was not given his Miranda rights before the consent form was signed. Officer Richard Petrencsik testified as follows: he arrested appellant and Mirandized him before the consent. (Tr. 18.) Appellant verbally consented after he told appellant that he didn't have to consent and the officers would get a warrant otherwise but if he would consent they would consider straight release and would talk to the prosecutors. (Tr. 18-19 and 35.) Appellant was briefly detained in a vehicle where he was given food upon request. (Tr. 20 and 34.) After they were in the house appellant was removed from the handcuffs while he signed a consent form. (Tr. 70 and 74.) Although he admitted that he did tell appellant that he would do what he could to see if he could get eighteen months or less instead of three years (Tr. 65) he later insisted that he made no specific promises and did talk to the prosecutor (Tr. 94). When asked if he had said that if appellant did not consent they would get a warrant and make a big mess going through everything, (Tr. 60) he replied that he did not remember but may have said it. Officer Lynn Podolak testified as follows: appellant was Mirandized before the consent (Tr. 108), was given food a few minutes after his request (Tr. 114), and was not held in the car - 4 - for an hour although it may have been close to an hour (Tr. 133). He told appellant that if appellant would cooperate he would speak to the prosecutor and judge. (Tr. 134.) He also told appellant that his house would probably get messed up if they searched it with a warrant. (Tr. 131.) Appellant testified as follows: he was Mirandized before he gave consent (Tr. 154 and 163), was told he would have to wait before he could have water (Tr. 154-55), and that if they had to get a warrant they would make a mess, leave hardly a thing untouched and would tear the place apart (Tr. 158 and 165). He first testified that when he asked if he could get an attorney the officers said that there would be time for that later. (Tr. 159.) Later, he admitted that he never specifically asked for an attorney and did get a phone call. (Tr. 208.) The officers told him that he would get less time if he cooperated (Tr. 170), they would put in a good word and he would get eighteen months or less instead of three years (Tr. 159). Appellant's own testimony established that he was Mirandized before the consent. There was no evidence that appellant was denied food or medication. There was only a short delay before water and a phone call were provided. He admitted that he did not ask for an attorney and assumed that they would realize obtaining counsel was the purpose of the request for a phone call. The mere fact that he was under arrest and handcuffed does not make a consent invalid. Nor does the fact that the officers - 5 - said that they could get a warrant anyway. Probable cause existed based on the co-defendant's statement to the undercover officer that appellant had gone home to get the drugs. The entry into appellant's home was with appellant's verbal permission, according to the officers, and the trier of fact could reasonably believe their testimony. However, appellant's testimony that if they had to get a warrant they would make a mess and tear the place apart is corroborated by Officer Podolak. He admitted that he told appellant that his house "would probably get messed up" if they searched it with a warrant. Since the search is the same with consent or a warrant this was a threat intended to coerce consent. In addition, appellant's claim that the officers promised him a lesser sentence if he would consent is verified by the officers. It was inappropriate to make an unauthorized promise of leniency in an effort to induce consent. It is well settled that consent to a warrantless search will not be held invalid nor the resulting search unreasonable when one with authority over the premises voluntarily permits the search. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed 2d 854. State v. Sneed (1992), 63 Ohio St.3d 3 (concerning consent given while in custody.) Schneckloth v. Bustamonte (1973), 412 U.S. 246, held as follows: - 6 - We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances .... Schneckloth concerned consent while not in custody but its holding was extended to in-custody cases as well. United States v. Watson (1976), 423 U.S. 411, 425. A consent that was given because of a threat and/or an unauthorized promise of leniency was not voluntary. When the evidence, including the testimony of the officers, supported the claim of invalid consent the motion to suppress should have been granted. Assignment of error No. I is sustained. II THE TRIAL COURT ERRED IN IMPOSING TWO THREE- YEAR TERMS OF ACTUAL INCARCERATION AS THE TWO FIREARM SPECIFICATIONS ARISE FROM THE SAME TRANSACTION. A review of the journal entry reveals that appellant was sentenced to two three-year terms of actual incarceration for drug offenses and one three-year terms of actual incarceration for the firearm. R.C. 2929.71(B) is inapplicable. Assignment of error No. II is overruled. III - 7 - WHERE THE SAME CONDUCT BY AN ACCUSED CAN BE CONSTRUED TO CONSTITUTE TWO OR MORE ALLIED OFFENSES OF SIMILAR IMPORT HE MAY ONLY BE CONVICTED AND SENTENCED FOR ONE. Appellant argues that he was improperly convicted of possession and sale or offer to sell of an amount of cocaine equal to three times the bulk amount. However, appellant was convicted of possession of an amount of cocaine equal to or greater than three times the bulk amount but convicted of an offer to sell an amount of cocaine equal to or greater than the bulk amount but less than three times the bulk amount. Possession of the smaller amount and an offer to sell that amount would be allied offenses since possession is an element of an offer to sell. But appellant offered to sell the smaller amount and possessed the remainder as well. Possession of an amount of drugs and offer to sell of less than the whole amount are not allied offenses of similar import under R.C. 2941.25. Assignment of error No. III is overruled. IV DUE PROCESS IS DENIED AN ACCUSED WHERE THE CONVICTION RESTS UPON EVIDENCE INSUFFICIENT AS A MATTER OF LAW AND/OR IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. Appellant addresses only the conviction for sale or offer to sell and our review will be limited to the evidence for that conviction. Theresa Johnson testified as follows: on February 27, 1990 she asked appellant if he could "get" an ounce and appellant said - 8 - he'd have to see. (Tr. 311.) The next day she contacted appellant and told him the amount needed by punching on his pager system an "o" for ounce. (Tr. 315.) Appellant "said he would be there" (Tr. 315) and came to her house but said he didn't bring it and then tried to up the price he was charging her from $1250 to $1300. (Tr. 315, 316 and 320.) He told her he was going home to get it but she thought he might not return because he said he thought it might be a set-up. (Tr. 321 and 339.) Later, appellant told her he wanted her to bring her buyer to his house and get the cocaine. (Tr. 316.) Appellant testified that he did not want to sell drugs anymore but because of fear of his supplier, George, he wanted Johnson to think he was still selling. (Tr. 624.) An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Johnson testified that in response to her inquiry as to whether appellant could get her an ounce he told her he would be - 9 - at her house and, when he came, negotiated a price and was going home to get it. Viewing the evidence of an offer to sell in the light most favorable to the prosecution the motion was properly denied. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all of the elements of an offense have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169 (at syllabus). In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he court, reviewing 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172 (at paragraph three of the syllabus.) In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines that may be taken into account by a reviewing court: - 10 - 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; 3. Whether a witness was impeached; 4. What was not proved; 5. The certainty of the evidence; 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving; 8. Whether the evidence is vague, ... conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10 (at syllabus). Appellant testified at length that he did not want to sell and attempted to convince Johnson that he did but was unable to because he smelled a set-up. He convinced Johnson that he suspected a set-up but Johnson testified that later appellant told them to come to his house for the cocaine. The verdict was not against the manifest weight of the evidence. Assignment of error No. IV is overruled. V WHEN THE ACCUSED IS INDUCED TO COOPERATE WITH PROMISES OF LENIENCY BY LAW ENFORCEMENT AUTHORITIES AND THE STATE THEREAFTER IGNORES ITS OBLIGATIONS AND OTHERWISE ACTS CONTRARY TO THOSE REPRESENTATIONS, THE ACCUSED HAS BEEN DENIED DUE PROCESS OF LAW. - 11 - Officer Petrancsik did testify that before appellant consented Petrancsik told him that he would do what he could to see that appellant would get eighteen months or less instead of three years. Appellant's co-defendant was allowed to plead to one count of trafficking. Appellant argues that he was not offered a plea that would have allowed him to be sentenced to as little as eighteen months (as in the case of Johnson). However, there is no evidence of what offers of pleas were or were not made to appellant. As this court is limited to the record below, assignment of error No. V is overruled. The judgment is affirmed in part and reversed in part. The denial of the motion to suppress is reversed and the convictions for possession of cocaine in an amount equal to or greater than three times the bulk amount and for having a weapon while under a disability are vacated. - 12 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., CONCURS KRUPANSKY, J., CONCURRING IN PART AND DISSENTING IN PART (SEE ATTACHED CONCURRING AND DISSENTING OPINION) PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61079 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : AND : DISSENTING vs. : OPINION : : FRANK KOVACS : : : Defendant-Appellant : : DATE: OCTOBER 15, 1992 KRUPANSKY, J., CONCURRING AND DISSENTING: I respectfully dissent from the majority opinion with respect to its disposition of appellant's first assignment of error. The majority thoroughly describes the testimony given at the hearing on appellant's motion to suppress evidence. However, it then ignores the testimony and the deference given to the trial court in matters of credibility and determines the consent appellant gave to the police officers to search his home was invalid. I cannot agree. The majority correctly states the rules of law which apply to the facts of the case sub judice, viz., the following: - 14 - Warrantless searches based upon consent are valid if, in view of the totality of the circumstances, consent to the search is voluntarily given. State v. Danby (1983), 11 Ohio App.3d 38; voluntariness is a question of fact to be determined from all the circumstances. Id., citing Schneckloth v. Bustamonte (1973), 412 U.S. 218. In the case sub judice the totality of the circumstances indicates appellant's consent to the search was voluntarily given. The following relevant facts were established at the hearing on appellant's motion to suppress evidence: (1) after the "controlled buy" appellant was arrested and informed of his constitutional rights; (2) appellant was courteously treated while in the custody of the officers; (3) the officers requested appellant's cooperation, stating they would talk to the prosecutor on his behalf; (4) appellant indicated he would cooperate with the officers' investigation; (5) appellant produced a key to his residence and permitted the officers to enter his residence to make a "protective sweep"; (6) appellant was presented with the consent form; (7) appellant was told that if he did not sign, a search warrant would be obtained; (8) appellant was told his house might get "torn up" if the officers had to obtain a search warrant; and (9) appellant thereafter signed the consent form. - 15 - In support of its determination that upon these facts appellant's consent was invalid, the majority makes the following statements: He [Officer Podolak] admitted that he told appellant that his house "would probably get messed up" if they searched it with a warrant. Since the search is the same with consent or a warrant this was a threat intended to coerce consent. (Emphasis added.) This analysis, however, is flawed; a search with consent is not the same as a search with a warrant. Officer Podolak was merely being honest, not conveying a "threat," since police officers with a search warrant must search, which always involves some disruption of the premises. Officers who have consent to search, on the other hand, often have the cooperation of the person with authority over the premises and are not obliged therefore to "tear the place apart." Indeed, appellant's testimony illustrates this point; appellant stated he told the officers where to look in their search of his home. The majority opinion also states that the appellant's consent was not valid since the officers "made an unauthorized promise of leniency in an effort to induce consent." The testimony clearly shows, however, that the promise was not of "leniency." The promise the officers made was that they would inform the prosecutor and the judge of appellant's cooperation, which might be considered when appellant was sentenced. Since R.C. 2929.12 expressly gives the trial court discretion to - 16 - consider such a factor when imposing sentence, it is difficult to understand why the majority considers the officers' actions "inappropriate." Clearly, the officers' actions in the case sub judice do not qualify as "coercion" sufficient to vitiate appellant's signature on the consent form, especially in view of appellant's age, education and experience, and those portions of his testimony which corroborate that of the officers. Therefore, appellant's consent to search his home was not invalid and, thus, the trial court did not err in overruling appellant's motion to suppress evidence. State v. Chandler (Mar. 5, 1992), Cuyahoga App. No. 59764, unreported; State v. Davis (May 7, 1992), Cuyahoga App. No. 60039, unreported. Since "voluntariness is a question of fact to be determined from all the circumstances" and the trial court was in the best position to evaluate the credibility of the witnesses' testimony given at the hearing, its judgment should not be disturbed. I would therefore overrule not only appellant's other four assignments of error, but his first assignment of error as well, thus affirming his conviction. .