[Cite as State v. Hart, 2017-Ohio-4079.]

haCOURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJAMES A. HART 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case No. 2016AP100052 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas 

County Court of Common Pleas, Case No. 

2015CR120304 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 31, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MICHAEL J. ERNEST MARK A. PERLAKY 

Assistant Prosecuting Attorney Public Defender’s Office 

125 E. High Avenue 153 N. Broadway 

New Philadelphia, OH 44663 New Philadelphia, OH 44663 
Tuscarawas County, Case No. 2016AP100052 2 

Gwin, P.J. 

{¶1} Defendant-appellant James A. Hart [“Hart”] appeals the August 15, 2016 

and September 20, 2016 Judgment Entries of the Tuscarawas County Court of Common 

Pleas overruling his motion to suppress. 

Facts and Procedural History

{¶2} On December 7, 2015, Hart was indicted on one count of Possession of 

Marijuana, a felony of the third degree. On May 31, 2016, Hart filed a Motion to 

Suppress Evidence. The following evidence was adduced during the hearing on Hart’s 

motion to suppress. 

{¶3} On August 6, 2015, Agent Kim Nusser from the Ohio Bureau of Criminal 

Investigation along with Tuscarawas County Sheriff's deputies engaged in a marijuana 

eradication program in Tuscarawas County Ohio. Agent Nusser testified that he was 

a passenger in a helicopter that flew over Hart’s home, and in doing so, he spotted 

what looked like marijuana growing near the back of his home. 

{¶4} Agent Nusser testified that he is trained in spotting marijuana from a 

helicopter. Agent Nusser described seeing marijuana plans sitting in close proximity to 

Hart’s home. Although he could not recall the exact altitude on the day in question, Agent 

Nusser testified that the helicopter generally flies at an altitude between 700 and 1,000 

feet. (T. at 16). Agent Nusser informed deputies on the ground that he had observed the 

suspected marijuana. Agent Nusser was aided by a GPS-like device, which gave him the 

coordinates of the location. The device did not provide a view of the property or identify 

the owner of the property in question. Agent Nusser used these coordinates to direct 

agents on the ground to the nearest cross street. From these observations and the 
Tuscarawas County, Case No. 2016AP100052 3 

direction of Agent Nusser, Detective Jeff Moore and Lieutenant Brian Alford of the 

Tuscarawas County Sheriff's Office went to Hart’s home. 

{¶5} Deputy Moore stated that he met with Hart upon his arrival and found him 

to be very forthcoming (T. at 51). Detective Moore testified that Hart asked why the 

helicopter was present at his property, and Moore indicated that it was because marijuana 

had been spotted at the location. According to Deputy Moore, Hart stated, "I have 

marijuana growing at the back of the property. Come on back. I'll show you.” (T. at 51). 

Deputy Moore stated that he and Hart then walked to the back of the property where they 

observed various marijuana plants growing (T. at 51- 52). Deputy Moore testified that 

Hart voluntarily took him to the back of the property (T.at 52). Deputy Moore stated that 

neither he nor Deputy Alford or any other officer had a weapon drawn or out at this time. 

(T. at 92). As a result of Hart taking the deputies to the back of the property, the deputies 

then sought and obtained a search warrant for the inside of the Hart’s home. Upon crossexamination, Detective Moore noted that approximately 30 agents were present at Hart’s 

home on the date in question. (T. at 57). Detective Moore also testified that even though 

Hart was very forthcoming in showing officers what was growing outside his home, Hart 

denied entrance into the inside of his home. Detective Moore was positive that Hart 

gave his consent and voluntarily showed him and Deputy Alford where the plants were 

located. (T. at 58). 

{¶6} Lieutenant Brian Alford testified that he was in uniform and arrived in a 

marked sheriff’s cruiser. Lieutenant Alford explained to Hart why he was there, along 

with Detective Sergeant Jeff Moore, conversing with him while the helicopter circled 

above. Alford testified that he was following Hart around the property, and although 
Tuscarawas County, Case No. 2016AP100052 4 

Alford could not recall what Hart said as he was walking around, he testified Hart was 

very accommodating and friendly. Lieutenant Alford did recall Hart stating that he was 

growing marijuana for his own personal use. (T. at 38). 

{¶7} Hart testified that he was out running errands and was returning home when 

he saw a helicopter circling around his property above the trees surrounding his home. 

He further testified that Detective Moore and Lieutenant Alford pulled into his driveway 

and came up to the bushes near his home. Several unmarked police cars, along with 

uniformed officers carrying firearms were spread around his property at the time. Hart 

testified that no permission was given to search the property, nor was permission asked. 

{¶8} Hart further testified that he was not rude with officers, but that he absolutely 

did not feel that he could refuse permission to the officers to be on his property. Upon 

cross-examination, Hart indicated that he was not talking with the officers, but was on the 

phone to “NORMAL1” regarding his legal rights in the situation. Hart testified that he did 

not say anything when asked by officers if he knew why they were there, as he chose to 

walk away instead. Hart testified that he was followed by officers onto the property as he 

did so. Hart testified regarding his anxiety and helplessness about being surrounding by 

officers carrying firearms that day. 

{¶9} In a Judgment Entry dated August 15, 2016, the trial court overruled Hart’s 

Motion to Suppress Evidence. Hart filed a motion for more specific findings of fact, 

specifically requesting whether the initial helicopter flyover of Hart’s property was lawful, 

whether technology used by law enforcement to locate the property was generally 

available for public use, and what specific facts the Court used in finding that Hart 

 1 National Organization for the Reform of Marijuana Laws. (T. at 71). 
Tuscarawas County, Case No. 2016AP100052 5 

consented to the search of his property. The trial court granted the motion. On 

September 20, 2016, the trial court issued a Judgment Entry finding that Detective Jeff 

Moore and Sergeant Brian Alford were credible, and that the court believed that Hart 

consented to a search of his property on the date in question. 

{¶10} On the same date, Hart asked the court to reconsider its denial of his 

motion to suppress evidence and to submit additional evidence, namely, video submitted 

by a neighbor. The Court did allow Hart to submit additional evidence, but denied 

reconsideration of its decision. 

{¶11} Hart entered a plea of No Contest to the indictment and was sentenced to 

one year of non-reporting Community Control Sanctions, and a $500 fine. 

Assignment of error 

{¶12} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION 

TO SUPPRESS EVIDENCE, AS LAW ENFORCEMENT: 1) VIOLATED KYLLO V. 

UNITED STATES TO LOCATE AND ENTER ON TO APPELLANT'S PROPERTY, AND 

2) ILLEGALLY ENTERED ON TO THE CURTILAGE OF APPELLANT'S PROPERTY.” 

Law and Analysis 

Standard of review. 

{¶13} Appellate review of a motion to suppress presents a mixed question of law 

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030-

Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role 

of trier of fact and is in the best position to resolve questions of fact and to evaluate 

witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; 

State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing 
Tuscarawas County, Case No. 2016AP100052 6 

court must defer to the trial court's factual findings if competent, credible evidence exists 

to support those findings. See Burnside, supra; Dunlap, supra. However, once an 

appellate court has accepted those facts as true, it must independently determine as a 

matter of law whether the trial court met the applicable legal standard. See Burnside,

supra, citing State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539; See, 

also, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744; Ornelas v. United 

States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the application of the law to the 

trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. 

Moreover, due weight should be given “to inferences drawn from those facts by resident 

judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663. 

Helicopter observation of Hart’s property. 

{¶14} Hart argues that the state utilized sense-enhancing technology to intrude 

on a constitutionally protected place in violation of Hart's Fourth Amendment rights as set 

out in Kyllo v. United States, 533 US 27 2001, 121 S.Ct. 2038, 150 L.Ed.2d 94, (2001). 

{¶15} Kyllo involved the use of a mechanical device that detected heat radiating 

from the walls of a home. There, the Court was concerned with the use of constantly 

improving technological devices that, from outside a home, could intrude into the home 

and detect legitimate as well as illegal activity going on inside. Kyllo, 533 US at 40, 121 

S.Ct. 2038, 150 L.Ed.2d 94. 

{¶16} In California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 

(1986), the U.S. Supreme Court analyzed “whether naked-eye observation of the 

[defendant’s] curtilage by police from an aircraft lawfully operating at an altitude of 1,000 

feet violates an expectation of privacy that is reasonable.” The court found that the 
Tuscarawas County, Case No. 2016AP100052 7 

defendant’s construction of tall fences around his yard “met the test of manifesting his 

own subjective intent and desire to maintain privacy.” Id. at 211–214, 106 S.Ct. 1809, 90 

L.Ed.2d 210. The court further found, however, that the defendant could not reasonably 

have expected that his garden was protected from public or official inspection from the 

air. Id. According to the Ciraolo court, public airways were similar to public highways and 

“the mere fact that an individual has taken measures to restrict some views of his 

activities” does not “preclude an officer’s observations from a public vantage point where 

he has a right to be and which renders the activities clearly visible.” Id. 

{¶17} In Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835(1989) 

(plurality opinion), the court examined whether helicopter surveillance from an altitude of 

400 feet, which revealed marijuana growing in the defendant’s partially covered 

greenhouse, constituted a search requiring a warrant. In a sharply divided split decision, 

the plurality concluded that the surveillance was not a “search” for Fourth Amendment 

purposes, noting specifically that there is no lower limit of the navigable airspace allowed 

to helicopters and that flight by helicopters in public airways is routine. Id. “Any member 

of the public could legally have been flying over Riley’s property in a helicopter at the 

altitude of 400 feet and could have observed Riley’s greenhouse.” Id. at 451, 109 S.Ct. 

693, 102 L.Ed.2d 835; Accord, State v. Wooley, 5th Dist. Ashland No. 16-COA-003, 2017-

Ohio-576, ¶ 25, citing State v. Little, 183 Ohio App.3d 680, 2009–Ohio–4403, 918 N.E.2d 

230, ¶ 22 (2nd Dist.), appeal dismissed, 125 Ohio St.3d 1458, 2010–Ohio–2753, 928 

N.E.2d 735 and United States v. Perry, 95 Fed.Appx. 598, 602 (5th Cir. 2004). 

{¶18} The plurality also noted that although the defendant had shielded his 

marijuana from view at ground level, because the roof was left partially open, the 
Tuscarawas County, Case No. 2016AP100052 8 

marijuana growing inside was subject to viewing from an aerial vantage point. Riley, 488 

U.S. at 451, 109 S.Ct. 693, 102 L.Ed.2d 835. Thus, the defendant could not reasonably 

have expected the partially hidden contraband to be immune from being viewed from the 

air. Riley, 488 U.S. at 451, 109 S.Ct. 693, 102 L.Ed.2d 835, The Riley plurality also stated, 

however, that “it [was] of obvious importance that the helicopter in this case was not 

violating the law.” Id. 

{¶19} Accordingly, the utilization of a GPS-like device in the case at bar is 

irrelevant. The officers were in a place they could legally observe the marijuana plants on 

Hart’s property. 

Entry upon Hart’s property. 

{¶20} While warrantless aerial observations may be permissible, warrantless 

seizures without exigent circumstances are not permissible. State v. Vondenhuevel, 3rd 

Dist. Logan No. 8–04–15, 2004–Ohio–5348, ¶ 16, citing State v. Wangul, 8th Dist. No. 

79393, unreported (Feb. 14, 2002) and State v. Staton, 2d. Dist. No. 90–CA–62, 

unreported (Mar. 15, 1991). 

{¶21} The Fourth Amendment’s protection against warrantless home entries 

extends to the “curtilage” of an individual’s home. United States v. Dunn, 480 U.S. 294, 

300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326(1987). “Curtilage” has been defined as an 

area “‘so intimately tied to the home itself that it should be placed under the home’s 

“umbrella” of Fourth Amendment protection.’” State v. Payne, 104 Ohio App.3d 364, 368, 

662 N.E.2d 60 (12th Dist. 1995), quoting Dunn, 480 U.S. at 301, 107 S.Ct. at 1140. The 

central inquiry is “whether the area harbors the intimate activity associated with the 

sanctity of a man’s home and the privacies of life.” Dunn, 480 U.S. at 300, 107 S.Ct. at 
Tuscarawas County, Case No. 2016AP100052 9 

1139, quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 

L.Ed.2d 214 (1984).(Internal quotation marks omitted). 

{¶22} Dunn set forth four factors for consideration in determining whether a certain 

area outside the home itself should be treated as curtilage: (1) the proximity of the area 

claimed to be curtilage to the home; (2) whether the area is included within an enclosure 

surrounding the home; (3) the nature of the uses to which the area is put; and (4) the 

steps taken by the resident to protect the area from observation by people passing by. 

480 U.S. at 301, 107 S.Ct. at 1139. 

{¶23} Thus, it has been held that the only areas of the curtilage where officers 

may go are those impliedly open to the public. This area includes walkways, driveways, 

or access routes leading to the residence. State v. Birdsall, 6th Dist. Williams No. WM–

09–016, 2010–Ohio–2382, ¶ 13. (Citing State v. Dyreson, 104 Wash.App. 703, 17 P.3d 

668 (Wash. App. 2001); State v. Pacheco, 101 S.W.3d 913, 918 Mo. App. 2003); State 

v. Johnson, 171 N.J. 192, 793 A.2d 619 (N.J. 2002)). The guiding principal is that a police 

officer on legitimate business may go where any “reasonably respectful citizen” may go. 

Birdsall, supra; Dyreson, supra; see, also, State v. Tanner, 4th Dist. Ross No. 94CA2006, 

1995 WL 116682(Mar. 10, 1995). Police are privileged to go upon private property when 

in the proper exercise of their duties. See State v. Chapman, 97 Ohio App.3d 687, 647 

N.E.2d 504 (1st Dist. 1994). 

{¶24} “[M]erely approaching an individual on the street or in another public place 

[,]” seeking to ask questions for voluntary, uncoerced responses, does not violate the 

Fourth Amendment. United States v. Flowers, 909 F.2d 145, 147(6th Cir. 1990). The 

United State Supreme Court “[has] held repeatedly that mere police questioning does not 
Tuscarawas County, Case No. 2016AP100052 10 

constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 

389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 

(1984). “[E]ven when officers have no basis for suspecting a particular individual, they 

may generally ask questions of that individual; ask to examine the individual's 

identification; and request consent to search his or her luggage.” Bostick, 501 U.S. at 

434–435, 111 S.Ct. 2382 (citations omitted). The person approached, however, need not 

answer any question put to him, and may continue on his way. Florida v. Royer, 460 U.S. 

491, 497–98, 103 S.Ct. 131975 L.Ed.2d 229 (1983). Moreover, he may not be detained 

even momentarily for his refusal to listen or answer. Id. “So long as a reasonable person 

would feel free “to disregard the police and go about his business,” California v. Hodari 

D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is 

consensual and no reasonable suspicion is required.” Bostick, 501 U.S. at 434, 111 S.Ct. 

2382, 115 L.Ed.2d 389. 

{¶25} In the case at bar, the officers observed Hart outside his residence. The 

officers parked in the driveway, just as any other member of the public would or could do. 

The officers could lawfully walk upon walkways, driveways, or access routes leading to 

the residence and attempt to speak with Hart, just as any other member of the public 

would or could do. No Fourth Amendment violation occurred in this case when the officers 

approached Hart in or near his driveway in an attempt to speak with him. 

Consent to search. 

{¶26} The trial court found that Hart consented to the officers accompanying him 

to where the marijuana plants were growing. 
Tuscarawas County, Case No. 2016AP100052 11 

{¶27} A warrantless search based upon a suspect's consent is valid if his consent 

is voluntarily given, and not the result of duress or coercion, either express or implied. 

Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 

862 (1973); and State v. Danby, 11 Ohio App.3d 38, 463 N.E.2d 47 (6th Dist. 1983). The 

voluntariness of consent is a question of fact to be determined from the totality of the 

circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854. The 

burden of proving that the suspect voluntarily consented to the search rests upon the 

prosecution. Danby, 11 Ohio App.3d at 50, 463 N.E.2d 47; Bumper v. North Carolina, 

391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968); State v. Hassey, 9 Ohio App.3d 

231, 236 459 N.E.2d 573 (10th Dist. 1983); and State v. Pi Kappa Alpha Fraternity, 23 

Ohio St.3d 141, 491 N.E.2d 1129 (1986). 

{¶28} No Fourth Amendment violation occurs when an individual voluntarily 

consents to a search. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 

153 L.Ed.2d 242(2002) (stating that "[p]olice officers act in full accord with the law when 

they ask citizens for consent"); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 

2041, 36 L.Ed.2d 854(1973) ("[A] search conducted pursuant to a valid consent is 

constitutionally permissible"); State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 

(1990). In Schneckloth, the United States Supreme Court acknowledged the importance 

of consent searches in police investigations, noting that "a valid consent may be the only 

means of obtaining important and reliable evidence" to apprehend a criminal. 412 U.S. 

at 227-228, 93 S.Ct. 2041, 36 L.Ed.2d 854. See, State v. Fry, 4th Dist. No. 03CA26, 2004-

Ohio-5747 at ¶18. The United States Supreme Court further noted: “[w]hile most citizens 

will respond to a police request, the fact that people do so, and do so without being told 
Tuscarawas County, Case No. 2016AP100052 12 

they are free not to respond, hardly eliminates the consensual nature of the response.” 

INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758(1984); Drayton, supra, 536 U.S. at 

205, 122 S.Ct. at 2113. Moreover, a voluntary consent need not amount to a waiver; 

consent can be voluntary without being an "intentional relinquishment or abandonment of 

a known right or privilege.” Schneckloth v. Bustamonte, 412 U.S. at 235, 93 S.Ct. 2041, 

2052 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938)); State 

v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922(1986); State v. McConnell, 5th Dist. Stark 

No. 2002CA00048, 2002-Ohio-5300, ¶8. Rather, the proper test is whether the totality of 

the circumstances demonstrates that the consent was voluntary. Id. Further, “[v]oluntary 

consent, determined under the totality of the circumstances, may validate an otherwise 

illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762 

(1997). The voluntariness of a consent to a search is a question of fact and will not be 

reversed on appeal unless clearly erroneous. 

{¶29} As an appellate court, we are not fact finders; we neither weigh the evidence 

nor judge the credibility of witnesses. Our role is to determine whether there is relevant, 

competent and credible evidence, upon which the fact finder could base his or her 

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10, 

1982). Accordingly, judgments supported by some competent, credible evidence going 

to all the essential elements of the case will not be reversed as being against the manifest 

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether 

the judgment below is manifestly against the weight of the evidence, every reasonable 

intendment and every reasonable presumption must be made in favor of the judgment 
Tuscarawas County, Case No. 2016AP100052 13 

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d 

517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 

461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, 

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is 

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th 

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227 

N.E.2d 212(1967). 

{¶30} Ultimately, “the reviewing court must determine whether the appellant or the 

appellee provided the more believable evidence, but must not completely substitute its 

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact 

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, 

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of 

the evidence or two conflicting versions of events, neither of which is unbelievable, it is 

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 

N.E.2d 125(7th Dist. 1999). 

{¶31} In State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972(1992), the Ohio 

Supreme Court noted that the evaluation of evidence and the credibility of the witnesses 

are issues for the trier of fact in the hearing on the motion to suppress. Id. at 366, 582 

N.E.2d at 981-982. The fundamental rule that weight of evidence and credibility of 

witnesses are primarily for the trier of fact applies to suppression hearings as well as 

trials. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584(1982). The court of 
Tuscarawas County, Case No. 2016AP100052 14 

appeals is bound to accept factual determinations of the trial court made during the 

suppression hearing so long as they are supported by competent and credible evidence. 

If the trial court's findings are supported by competent and credible evidence, then the 

appellate court must accept them. See State v. Williams, 86 Ohio App.3d 37, 41, 619 

N.E.2d 1141 (1993), overruled on other grounds by Whren v. United States, 517 U.S. 

806, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996), and Dayton v. Erickson, 76 Ohio St.3d 3, 

665 N.E.2d 1091(1996), as stated in Village of McComb v. Andrews, 3rd Dist. Hancock 

No. 5-99-41, 2000-Ohio-1663. A reviewing court can evaluate evidence in terms of 

sufficiency, but it cannot second-guess the trial court's determination of credibility. 

{¶32} The judge as the trier of fact was free to accept or reject any and all of the 

evidence offered by the parties and assess the witness’s credibility. "While the [trier of 

fact] may take note of the inconsistencies and resolve or discount them accordingly * * * 

such inconsistencies do not render defendant's conviction against the manifest weight or 

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness' 

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin 

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 

548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing 

State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the 

evidence may have been circumstantial, we note that circumstantial evidence has the 

same probative value as direct evidence. State v. Jenks, supra. 
Tuscarawas County, Case No. 2016AP100052 15 

{¶33} Based upon the foregoing and the entire record in this matter, we find the 

judge’s decision that Hart voluntarily consented to the search to be based upon 

competent, credible evidence. The judge appears to have fairly and impartially decided 

the matters before him. The judge as a trier of fact can reach different conclusions 

concerning the credibility of the testimony of the state’s witnesses and Hart. This court 

will not disturb the judge’s finding so long as competent evidence was present to support 

it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the 

witnesses, evaluated the evidence, and was convinced of Deputy Alford and Lieutenant 

Moore’s credibility. 

{¶34} We thus arrive at the same conclusion reached by the trial court. Hart 

voluntarily consent to Deputy Alford and Lieutenant Moore’s entry upon and search of the 

curtilage area where the marijuana plants were located. 

{¶35} Hart’s sole assignment of error is overruled. 
Tuscarawas County, Case No. 2016AP100052 16 

{¶36} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed. 

By Gwin, P.J., 

Wise, John, J., and 

Wise, Earle, J., concur