COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68570 STATE OF OHIO : ACCELERATED CASE : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMAL ALLEN : : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-314919 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DAVID L. ZIMMERMAN (#0037852) Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: STEVEN L. BRADLEY (#0046622) 222 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 - 2 - 2 PER CURIAM: Defendant-Appellant Jamal Allen appeals from his conviction for two counts of drug trafficking, in violation of R.C. 2925.03, and one count of possession of criminal tools, in violation of R.C. 2923.24, and raises two assignments of error: I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE ON THE GROUND THAT DEFENDANT-APPELLANT WAS DETAINED WITHOUT CONSTITUTIONALLY ADEQUATE JUSTIFICA- TION. II. THE TRIAL COURT ERRED IN ENTERING FINDINGS OF GUILT FOLLOWING PLEAS OF NO CONTEST TO EACH OF THREE CRIMES CHARGED INSOFAR AS THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO ESTAB- LISH ESSENTIAL ELEMENTS OF EACH CRIME CHARGED. I. The following evidence was adduced at Allen's suppression hearing: Patrons entering the Odeon Dance Club in Cleveland, Ohio, pay a cover charge, have their identification checked, and submit to a pat-down search. Patrons who object to the pat-down search are taken aside while a refund is obtained and then allowed to exit a side door. Allen had progressed to the pat-down search when he told the bouncer performing the search to stop. The bouncer then indicated to Kevin Carter, a uniformed, off-duty police officer working as a security guard, that Allen had objected to the pat- down search. Carter took Allen by the arm and escorted him to a security office a few feet away. While Carter was trying to get the cashier's attention so that he could get a refund for Allen, - 3 - 3 Deon McCaulley, another uniformed, off-duty police officer working as a security guard, saw Allen drop to the ground a clear plastic bag that appeared to contain crack cocaine. McCaulley and Carter then arrested Allen. After the trial court denied Allen's motion to suppress, Allen entered a plea of no contest. At the plea hearing the state and Allen stipulated to the facts adduced at the suppression hearing and the state offered, as additional facts, that a pager and two hundred eighty dollars had been found on Allen. The trial court then accepted the no contest plea. II. In his first assignment of error, Allen contends the trial court erred when it denied his motion to suppress. Allen argues that he was unlawfully seized when Carter escorted him to the security office. The Fourth Amendment only prohibits searches and seizures involving state action. Burdeau v. McDowell (1921), 256 U.S. 465; State v. Grant (1993), 67 Ohio St.3d 465, 471. State action exists where, under all the circumstances, the private individual must be regarded as an agent or instrument of the state. Coolidge v. New Hampshire (1971), 403 U.S. 443, 487. A security guard performing duties solely for a private employer is not a state actor. State v. McDaniel (1975), 44 Ohio App.3d 163, 174. This is true even when the security guard is a commissioned special deputy sheriff. Id. - 4 - 4 We conclude that the trial court could properly find that Carter was performing duties solely for the Odeon when he escorted Allen to the security office. Accordingly, Allen's first assignment of error is not well taken. III. In his second assignment of error, Allen contends the explanation of circumstances was insufficient to support his conviction. A plea of no contest to a felony offense is "an admission of the truth of the facts alleged in the indictment ***." Crim.R. 11(B)(2). Consequently, no requirement for an explanation of circumstances exists. State v. Post (1987), 32 Ohio St.3d 380, 386-387; State v. Kutz (1993), 87 Ohio App.3d 329, 337; State v. Taylor (1988), 51 Ohio App.3d 173, 178; State v. Thorpe (1983), 9 Ohio App.3d 1, 2. Allen, relying on State v. Rader (1988), 55 Ohio App.3d 102, 104, argues that an explanation of circumstances demonstrating each essential element of the charged offense is necessary because Crim.R. 11(B)(2) is no longer operable. Rader found that a trial court's ability to make a finding of guilt on a lesser included offense when a no contest plea is made renders the language in Crim.R. 11(B)(2) meaningless. Id. We decline to follow Rader. The requirement that a trial court make a finding of guilt on a lesser included offense when an explanation of circumstances - 5 - 5 negating the existence of an essential element of the offense charged is made does not necessitate the making of an explanation of circumstances. Accordingly, Allen's second assignment of error is not well taken. Judgment affirmed. - 6 - 6 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. JOHN T. PATTON, CHIEF JUSTICE LEO M. SPELLACY, JUDGE TERRENCE O'DONNELL, 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 .