[Cite as State v. Hughes, 2013-Ohio-458.]

hCOURT OF APPEALS 

MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Sheila G. Farmer, J. 

-vs- : 

 : 

JOSEPH Q. HUGHES : Case No. 12CA0004 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2008CR128 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT: February 8, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

 

TOM C. ELKIN SAMUEL H. SHAMANSKY 

60 East High Street DONALD L. REGENSBURGER 

Mount Gilead, OH 43338 523 South Third Street 

 Columbus, OH 43215 

 
Morrow County, Case No. 12CA0004 2 

Farmer, J. 

{¶1} On August 13, 2008, the Morrow County Grand Jury indicted appellant, 

Joseph Hughes, on three counts of theft in violation of R.C. 2913.02, five counts of theft 

in office in violation of R.C. 2921.41, three counts of tampering with evidence in violation 

of R.C. 2911.12, three counts of receiving stolen property in violation of R.C. 2913.51, 

one count of falsification in violation of R.C. 2913.51, and one count of engaging in a 

pattern of corrupt activity in violation of R.C. 2923.32. Said charges arose from the theft 

of numerous items including air conditioners belonging to Morrow County. Appellant 

was a patrolman with the Mount Gilead Police Department. 

{¶2} On October 15, 2009, appellant filed a motion to suppress, claiming an 

unlawful search of his residence wherein the air conditioners were found. By journal 

entry filed April 7, 2011, the trial court denied in part and granted in part the motion, 

finding any seized evidence pertaining to LED lights was improper. 

{¶3} A jury trial commenced on November 21, 2011. The jury found appellant 

guilty of one of the theft counts, two of the theft in office counts, two of the tampering 

with evidence counts, two of the receiving stolen property counts, and the falsification 

count. By journal entry filed January 25, 2012, the trial court sentenced appellant to an 

aggregate term of two years in prison. 

{¶4} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶5} "THE TRIAL COURT'S ADMISSION OF EVIDENCE PROCURED AS A 

DIRECT RESULT OF THE UNLAWFUL SEARCH OF APPELLANT'S HOME 
Morrow County, Case No. 12CA0004 3 

VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND 

SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO 

CONSTITUTION." 

II 

{¶6} "TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ADMISSIBILITY OF 

STATE'S EVIDENCE AND PRESERVE THE ISSUE FOR APPEAL CONSTITUTES 

INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS IN VIOLATION OF 

APPELLANT'S RIGHTS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO 

CONSTITUTION." 

I 

{¶7} Appellant claims the trial court erred denying his motion to suppress in 

part. We disagree. 

{¶8} There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's findings of fact. 

In reviewing a challenge of this nature, an appellate court must determine whether said 

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v. 

Guysinger, 86 Ohio App.3d 592 (4th Dist. 1993). Second, an appellant may argue the 

trial court failed to apply the appropriate test or correct law to the findings of fact. In that 

case, an appellate court can reverse the trial court for committing an error of law. State 

v. Williams, 86 Ohio App.3d 37 (4th Dist. 1993). Finally, assuming the trial court's 
Morrow County, Case No. 12CA0004 4 

findings of fact are not against the manifest weight of the evidence and it has properly 

identified the law to be applied, an appellant may argue the trial court has incorrectly 

decided the ultimate or final issue raised in the motion to suppress. When reviewing 

this type of claim, an appellate court must independently determine, without deference 

to the trial court's conclusion, whether the facts meet the appropriate legal standard in 

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist. 1994); State v. Claytor, 85 

Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held 

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "...as a general matter 

determinations of reasonable suspicion and probable cause should be reviewed de 

novo on appeal." 

{¶9} Appellant rented a farmhouse owned by Walter Berg. T. at 34. Mr. Berg 

had appellant's permission to enter the basement and purge the well to flush the water 

lines as needed. T. at 42-43. On July 5, 2008, Mr. Berg entered the basement and 

observed several air conditioners. T. at 45-46. Shortly thereafter, Mr. Berg read a 

newspaper article about stolen air conditioners. T. at 48. Mr. Berg returned to the 

basement, repurged the well, photographed the air conditioners, and contacted the 

police. T. at 49, 51. After the air conditioners were identified in the photographs as the 

stolen air conditioners, the police obtained and executed a search warrant and 

discovered the stolen property. T. at 15, 98. Additional search warrants followed which 

turned up more stolen property. T. at 118, 138-139, 167. The police did not become 

involved with the case until after Mr. Berg had taken the photographs. T. at 31-32, 58-

59. 
Morrow County, Case No. 12CA0004 5 

{¶10} Appellant argues the issuance of the first search warrant was based on an 

illegal and warrantless search of his residence by Mr. Berg. Appellant argues the trial 

court erred in finding Mr. Berg "was a private citizen operating under no color of 

authority of governmental action." See, Judgment Entry filed April 7, 2011. As stated 

by the Supreme Court of Ohio in State v. Morris, 42 Ohio St.2d 307, 316 (1975), "Fourth 

Amendment protection against unlawful searches and seizures applies only to action by 

government authorities or their agents." The Morris court then explained: 

The unlawful acts of private individuals in conducting illegal 

searches and seizures are not subject to constitutional proscription. 

Where, however, a warrantless search is not an exclusively private 

undertaking but involves some degree of police participation, then courts 

must look to the facts surrounding the search in order to determine 

whether it is an unreasonable police search or an excepted private search. 

{¶11} We find Mr. Berg's testimony, substantiated by Lieutenant Chad McGinty, 

established there was no police involvement or action until after the photographs had 

been taken. Mr. Berg, as a private individual on his own accord, re-entered the 

basement and took photographs of what he believed to be stolen air conditioners. He 

then went to the police. Armed with the photographs, Lieutenant McGinty was able to 

have the stolen air conditioners identified which led to the procurement of a search 

warrant. 
Morrow County, Case No. 12CA0004 6 

{¶12} Upon review, we find the trial court did not err in denying appellant's 

motion to suppress. 

{¶13} Assignment of Error I is denied. 

II 

{¶14} Appellant claims his trial counsel was ineffective. We disagree. 

{¶15} The standard this issue must be measured against is set out in State v. 

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant 

must establish the following: 

2. Counsel's performance will not be deemed ineffective unless and 

until counsel's performance is proved to have fallen below an objective 

standard of reasonable representation and, in addition, prejudice arises 

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) 

3. To show that a defendant has been prejudiced by counsel's 

deficient performance, the defendant must prove that there exists a 

reasonable probability that, were it not for counsel's errors, the result of 

the trial would have been different. 

{¶16} Appellant argues his trial counsel was deficient in failing to object at trial to 

the admission of the "tainted" evidence obtained via Mr. Berg's unconstitutional search. 

Although defense counsel did not object, the matter was preserved for appeal because 
Morrow County, Case No. 12CA0004 7 

of the filing of the motion to suppress. The motion challenged the issuance of the 

search warrant pursuant to Mr. Berg's actions which is the same argument advanced in 

this assignment of error. We do not find any deficiency by trial counsel. 

{¶17} Assignment of Error II is denied. 

{¶18} The judgment of the Court of Common Pleas of Morrow County, Ohio is 

hereby affirmed. 

By Farmer, J. 

Delaney, P.J. and 

Hoffman, J. concur. 

 

 

 

 s/ Sheila G. Farmer________________ 

 

 s/ Patricia A. Delaney______________ 

 _s/ William B. Hoffman_____________ 

 JUDGES 

SGF/sg 108
[Cite as State v. Hughes, 2013-Ohio-458.]

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JOSEPH Q. HUGHES : 

 : 

 Defendant-Appellant : CASE NO. 12CA0004 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Morrow County, Ohio is affirmed. Costs to 

appellant. 

 s/ Sheila G. Farmer________________ 

 

 s/ Patricia A. Delaney______________ 

 _s/ William B. Hoffman_____________ 

 JUDGES