[Cite as State v. Smith, 2014-Ohio-4984.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

 ASHTABULA COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2013-A-0066

 - vs - :

ARNOLD J. SMITH, :

 Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 

CR 503. 

Judgment: Affirmed. 

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant 

Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 

44047-1092 (For Plaintiff-Appellee). 

Christopher J. Boeman, 3537 North Ridge Road, Perry, OH 44081 (For DefendantAppellant). 

THOMAS R. WRIGHT, J. 

{¶1} This appeal is from the sentencing judgment in a criminal action before the 

Ashtabula County Court of Common Pleas. Appellant, Arnold J. Smith, seeks reversal 

of his conviction for illegal assembly or possession of chemicals for the manufacture of 

drugs and possession of criminal tools. As the primary basis for appeal, he contends 

that the trial court erred in denying his motion to suppress and his separate motion for 

mistrial on the grounds of prosecutorial misconduct. For the following reasons, we 
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affirm. 

{¶2} During the early morning hours of December 2, 2011, Deputy Sherri Allen 

and Sergeant James Truckey of the Ashtabula County Sheriff’s Office were on routine 

patrol in separate cruisers on Mechanicsville Road in Rome Township, Ashtabula 

County, Ohio. While their two cruisers were stopped near the intersection of Callender 

Road and Mechanicsville Road, Sergeant Truckey saw a blue Ford Ranger truck drive 

into the intersection without stopping at a stop sign. This intersection is about one mile 

from appellant’s residence on Boymar Road. 

{¶3} Sergeant Truckey decided to follow the truck and conduct a traffic stop. 

Deputy Allen drove behind Sergeant Truckey as back-up. When the sergeant activated 

his overhead lights, the Ford Ranger accelerated leading the two officers on a chase for 

approximately seven miles. Ultimately, the Ford Ranger veered onto private property 

and ran into a pile of dirt located near an oil and gas well. Unhurt in the crash, the 

driver exited the vehicle and ran into the woods. Although the two officers tried to follow 

him on foot, the driver escaped apprehension. 

{¶4} Upon returning to the truck, the officers searched the interior. In addition 

to two firearms, the officers found a small tin vial that appeared to contain illegal 

substance residue. The officers also found a number of power tools bearing the name 

“Light.” From prior experience, Sergeant Truckey knew two brothers named “Light” who 

were known to travel through the general vicinity. Moreover, one of the brothers was 

thought to be engaged in drug activity. 

{¶5} Based upon information previously seen in an inter-office memo, Sergeant 

Truckey had a general suspicion of drug activity at appellant’s residence on Boymar 
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Road. At some point prior to December 2011, appellant left his Boymar Road home 

due to a foreclosure action. However, because he owned a separate parcel across the 

street from his home, appellant simply moved the majority of his belongings to that 

parcel and resided there in two small tents standing a short distance from the end of a 

dirt driveway. The two tents and the area between them were covered by a number of 

tarps to protect from the weather. According to appellant, he also draped tarps over a 

climbing rope stretched between two trees in front of the tents so that the enclosed area 

could not be seen from the road. 

{¶6} Given the information in the inter-office memo, the fact that the Ford truck 

was only a mile from Boymar Road when it was first spotted, and the nature of the items 

found in the truck, Sergeant Truckey and Deputy Allen decided to drive back to Boymar 

Road and go to appellant’s place once the “truck” search was finished. When the 

officers initially drove by, they saw a truck sitting in the dirt driveway that, according to 

the license plate, was not registered to appellant. Furthermore, after exiting their 

cruisers, and standing in the road, the officers could see the two tents and the tarps 

hanging overhead as well as lights glowing in both tents. 

{¶7} Wooden planks marked a path from the dirt driveway to the door of one of 

the tents. As the officers were walking on the planks toward the tents, Sergeant 

Truckey called out that they were from the sheriff’s department, and that they were 

there to see appellant. Once the officers arrived at the tents, appellant responded that 

he was there, and then unzipped the door to the tent on the right. Both officers were 

standing right next to the door and could see into appellant’s tent. 

{¶8} According to Deputy Allen, when she was within five feet of appellant’s 
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tent, she began to smell the chemical odor often surrounding the manufacture of 

methamphetamine. This smell became more pronounced after appellant unzipped the 

tent door. Moreover, as the officers peered into tent, they saw a number of items on the 

floor associated with that type of activity, including coffee filters, Coleman fuel, lithium 

batteries, funnels, and aluminum foil. 

{¶9} Since the “methamphetamine production” materials found in the tent are 

considered dangerous in nature, a third member of the county sheriff’s department, 

Detective Brian Rose, was called to the scene. After the evidence was safely taken into 

custody, appellant and three others were placed under arrest. Approximately one 

month later, appellant was indicted on three charges: (1) illegal assembly or possession 

of chemicals for the manufacture of drugs, a third-degree felony under R.C. 2925.04; (2) 

possessing criminal tools, a fifth-degree felony under R.C. 2923.24; and (3) illegal 

manufacture of drugs, a second-degree felony under R.C. 2925.04. 

{¶10} After pleading not guilty to all counts, appellant moved to suppress all 

evidence seized by the officers from his tent. As the sole basis for the motion, he 

asserted that Sergeant Truckey and Deputy Allen violated his Fourth Amendment right 

by entering his residence without a warrant. In support, he claimed that his “residence” 

did not merely consist of the tent he was in when the two officers came on his property, 

but also included the area covered by the tarps. He emphasized that, by hanging the 

tarps over the rope so that they were draped in front of the tents, he created an 

enclosure that was intended to protect his privacy. 

{¶11} An evidentiary hearing was held on the motion to suppress, during which 

all three officers who were involved in the seizure of evidence testified for the state. In 
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response, appellant testified on his own behalf. In its judgment entry overruling the 

motion, the trial court found that there was a sufficient gap in the tarps hung over the 

climbing rope to allow Sergeant Truckey and Deputy Allen to see the tents directly from 

the road. The court also found that it was not necessary for those officers to move any 

tarps or other items before arriving at the door to appellant’s tent. In addition, the court 

held that, once Sergeant Truckey and Deputy Allen began to smelled the chemical odor 

coming from appellant’s tent the officers had probable cause to search as well as 

exigent circumstances in light of the potential dangers associated with 

methamphetamine manufacturing. 

{¶12} The underlying action remained pending for over eighteen months. On at 

least three occasions, appellant’s trial counsel moved the trial court to compel the state 

to give him access to the Ford Ranger truck involved in the chase. The trial court 

issued an order requiring the state to comply with the discovery request. However, 

appellant’s counsel was not afforded access to the truck. Then, in early February 2013, 

the prosecutor informed appellant’s counsel that the truck had been inadvertently 

destroyed by the towing company. In light of this, appellant moved the trial court to 

dismiss all pending charges. An evidentiary hearing on this motion was conducted by a 

court magistrate who issued a decision denying appellant’s request to dismiss. 

Although the trial court subsequently vacated the magistrate’s decision, it also issued a 

judgment denying the motion to dismiss. 

{¶13} A two-day jury trial was held in August 2014. The four individuals who 

previously testified at the suppression hearing were the only trial witnesses. As part of 

his trial testimony, appellant stated that the incriminating objects found in his tent did not 
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belong to him, and that he found the objects in a backpack beside the road. Throughout 

the trial, the prosecutor tried to reference the inter-office memo in the sheriff’s 

department raising a suspicion of drug activity at appellant’s property. Although the trial 

court generally permitted the prosecutor and the witnesses to note the existence of the 

memo, they were not allowed to fully discuss its substance. At the conclusion of trial, 

appellant moved for a mistrial based upon the state’s multiple references to the memo. 

Consistent with its prior rulings on appellant’s objections, the trial court overruled the 

motion. 

{¶14} The jury found appellant not guilty of the illegal manufacture of drugs, but 

guilty of illegal assembly or possession of chemicals for the manufacture of drugs and 

possessing criminal tools. Ultimately, the trial court ordered appellant to serve two 

concurrent two year terms of community control. 

{¶15} In appealing his conviction, appellant raises three assignments of error for 

review: 

{¶16} “[1.] The trial court abused its discretion and erred, to the prejudice of 

appellant-defendant, by denying his motion to suppress evidence obtained by the 

Ashtabula County Sheriff’s Department in violation of the Fourth and Fourteenth 

Amendments to the United States Constitution. 

{¶17} “[2.] The trial court abused its discretion and erred, to the prejudice of 

defendant-appellant, by overruling defendant’s motion to dismiss premised upon the 

state’s failure to preserve evidence without either a hearing or explanation. 

{¶18} “[3.] The prosecutor committed prosecutorial misconduct during his 

opening statement, during the course of the jury trial, and in his closing arguments 
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warranting reversal of the defendant’s conviction.” 

{¶19} Under his first assignment, appellant challenges the denial of his motion to 

suppress the evidence found in his tent. In doing so, appellant does not contest that the 

drug paraphernalia was in plain view when he opened the tent’s door. Similarly, he 

does not contest that once Sergeant Truckey and Deputy Allen were near the tent, the 

chemical odor emanating from inside was sufficient to give the two officers probable 

cause to search the area. Instead, appellant maintains that standing beside the tent 

without a warrant constituted a violation of his Fourth Amendment right. Specifically, he 

asserts that the tent was his residence and the hanging tarps constitute curtilage. 

{¶20} Citing United States v. Duncan, 480 U.S. 294 (1987), appellant posits that 

the tarp-covered area must be considered “curtilage” because the area was completely 

surrounded by the tarps. Referencing his own testimony at the suppression, he states 

that he not only hung the tarps over the roofs of the two tents, but he also draped the 

tarps over a climbing rope that hung in front of the tents. According to him, the draped 

tarps went from eight feet in the air to the ground, thereby giving him complete privacy 

from anyone who would be on the road. 

{¶21} The state’s suppression evidence tended to show that, if there were any 

tarps draped over a rope across the “tent” area, they were not pulled together when the 

officers walked on the property. First, Sergeant Truckey testified that there was 

“nothing” blocking his view of both tents from the road. He further stated that, in 

approaching the tent area from the driveway, he did not have to maneuver around any 

obstacles. Second, Deputy Allen testified that it was not necessary to move any 

“coverings” in order to gain access to the tent area, and that wooden planks led directly 
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to the door of appellant’s tent. Third, Detective Rose stated that, although there was a 

blue tarp over both tents, no objects had to be moved before walking into that general 

area. 

{¶22} As part of its analysis in its suppression judgment, the trial court found that 

there was a gap between the tarps enabling the officers to view appellant’s tent from the 

road. Although appellant testified that the draped tarps across the front were pulled 

together that night, the testimony of the three officers constituted some competent, 

credible evidence supporting the trial court’s finding to the contrary. In fact, the officers’ 

testimony supported the finding that the gap between the tarps was quite substantial. 

Taken as a whole, their testimony establishes that the officers could see the entire tent 

area, including both tents, from the road. 

{¶23} “Appellate courts, including this one, have held that homeowners, or other 

legal occupiers of a residence, do not have a reasonable expectation of privacy as to 

what can be routinely viewed from their driveway, sidewalk, doorstep, or other normal 

routes of ingress to or egress from the home. See State v. Durch (1984), 17 Ohio 

App.3d 262, 263, * * *; see, also, State v. Golubov, 9th Dist. No. 05CA0019, 2005-Ohio4938, at ¶11; State v. Alexander (Oct. 6, 2000), 2d Dist. No. 2000-CA-6, 2000 Ohio 

App. LEXIS 4646, *6. In support of this view, the Second Appellate District has opined: 

{¶24} “‘“In the course of urban life, we have come to expect various member of 

the public to enter upon such a driveway, e.g., brush salesman, newspaper boys, 

postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends. Any one of 

them may be reasonably expected to report observations of criminal activity to the 

police(.) If one has a reasonable expectation that various members of society may 
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enter the property in their personal or business pursuits, he should find it equally likely 

that the police will do so.”’ 

{¶25} “‘“There would be no colorable Fourth Amendment question had the police 

walked up the driveway in order to knock on (the defendant’s) door to ask him some 

questions. Criminal investigation is a legitimate societal purpose as is census taking or 

mail delivery. The ‘plain view’ doctrine would clearly have applied to any observation 

made on the way to the door.”’ (Citations omitted). Alexander, supra.” Willoughby v. 

Dunham, 11th Dist. Lake No. 2010-L-068, 2011-Ohio-2586, ¶19-21. 

{¶26} In this case, Sergeant Truckey and Deputy Allen had an unobstructed 

view of appellant’s tent from the road to the tent’s door. Moreover, there were wooden 

planks which marked a path from the driveway to the tent’s door. Given these facts, the 

planks served as a sidewalk providing ingress and egress from appellant’s tent. Thus, 

pursuant to Dunham, the tarp-covered area around appellant’s tent constituted an area 

in which appellant did not have a reasonable expectation of privacy. As a result, the 

officers did not need a warrant in order to access that part of appellant’s property 

regardless of the curtilage issue. 

{¶27} Even before appellant opened the tent’s door, at least one deputy smelled 

the chemical odor associated with the production of methamphetamine. Moreover, 

upon opening the tent, the manufacturing products were seen. Thus, the deputies had 

probable cause. Moreover, exigent circumstances existed allowing the officers to enter 

the tent and take all necessary steps to protect the public from a possible dangerous 

situation due to the volatile explosive nature of the chemicals. See State v. Campbell, 

11th Dist. Ashtabula No. 2013-A-0035, 2013-Ohio-5823, ¶36. Accordingly, no Fourth 
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Amendment violation occurred in the seizure of the drug paraphernalia found in the tent. 

Appellant’s first assignment lacks merit. 

{¶28} Under his second assignment, appellant contends that he was denied due 

process of law when the Ford Ranger truck was destroyed before his trial counsel had 

an opportunity to look at it. While acknowledging that the truck would not have had any 

exculpatory evidence, he asserts that his counsel may have discovered evidence which 

could have been useful at trial. Specifically, appellant submits that his counsel could 

have found flaws in the officers’ statements of the events which could have been used 

to challenge the officers’ credibility at trial. 

{¶29} During the suppression hearing, a considerable amount of testimony was 

given in order to establish a logical connection between the Ford Ranger chase and the 

officers’ ensuing decision to drive by appellant’s residence. However, given our legal 

analysis under the first assignment, the reason for going to appellant’s tent is of no legal 

significance. Regardless of why, the deputies were allowed to enter appellant’s land. 

{¶30} Moreover destruction of the truck did not result in a due process violation 

as the methamphetamine materials supporting conviction were all seized from the tent. 

For this reason, his second assignment of error is not well-taken. 

{¶31} Under his final assignment, appellant asserts that he was denied his right 

to a fair trial because the assistant prosecutor engaged in multiple forms of misconduct 

throughout the proceeding. In support, he first claims that the prosecutor made multiple 

improper references to the inter-office memo circulated in the sheriff’s office concerning 

possible drug activity on Boymar Road. Second, appellant contends that the prosecutor 

improperly tried to connect him to the subsequent arrest of one of the three individuals 
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who were also present in the tents when the drug paraphernalia was seized. Third, he 

maintains that the prosecutor improperly commented upon his post-arrest silence as to 

whether the paraphernalia found in his tent actually belonged to him. 

{¶32} As a general proposition, a two-prong test is employed to decide whether 

a criminal defendant must be granted a new trial based upon prosecutorial misconduct: 

(1) were the prosecutor’s remarks improper; and (2) was the defendant prejudiced by 

the remarks? State v. Beckwith, 11th Dist. Ashtabula No. 2013-A-0050, 2014-Ohio2877, ¶36; State v. Coleman, 11th Dist. Portage No. 2013-P-0072, 2014-Ohio-2708, 

¶21. 

{¶33} “‘Generally, prosecutorial misconduct is not a basis for overturning a 

criminal conviction, unless, on the record as a whole, the misconduct can be said to 

have deprived the defendant of a fair trial.’ State v. Hillman, 10th Dist. Nos. 06AP-1230 

and 07AP-728, 2008-Ohio-2341, at ¶26. The focus of that inquiry is on the fairness of 

the trial, not the culpability of the prosecutor. State v. Bey (1999), 85 Ohio St.3d 487, 

495, * * *.” State v. Dudas, 11th Dist. Lake Nos. 2008-L-109 and 2008-L-110, 2009-

Ohio-1001, ¶26. 

{¶34} Regarding appellant’s first allegation of prosecutorial misconduct, during 

his opening statement and in his questioning of the state’s three witnesses, the 

prosecution made multiple references to the inter-office memo originally mentioned 

during the suppression hearing. As noted above, the substance of the memo was that 

Detective Rose received a tip that drug activity was taking place at appellant’s 

residence. At trial, the primary reason for the references to the memo was to establish 

why Sergeant Truckey and Deputy Allen chose to drive by appellant’s place after the 
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driver of the truck escaped apprehension. As part of his questioning as to the memo, 

the prosecutor attempted to elicit information regarding the substance of the memo. 

However, the trial court did not allow the prosecutor to make the connection between 

the alleged drug activity and appellant’s residence. Rather, it would only allow the 

officers to say that the memo referred to drug activity on Boymar Road. 

{¶35} Given the facts of this case, there are at least two reasons for the 

prosecutor to ask questions regarding the inter-office memo: (1) to explain why 

Sergeant Truckey and Deputy Allen went to Boymar Road after they did not apprehend 

the truck driver; and (2) to establish the truth of the matter asserted that there is drug 

activity on Boymar Road. As a general proposition, testimony concerning an 

extrajudicial statement is not considered hearsay when it is introduced to explain the 

subsequent actions of a person to whom the statement was directed, i.e., effect on the 

listener. See State v. Osie, __ Ohio St.3d __, 2014-Ohio-2966, ¶122. Thus, the first 

reason for referencing the memo was permissible. However, permitting this testimony 

to establish drug activity as an affirmative fact constitutes inadmissible hearsay. See 

Evid.R. 801(C); Evid.R. 802. 

{¶36} The trial court allowed the prosecutor to refer to the memo for the purpose 

of explaining the subsequent actions of Sergeant Truckey and Deputy Allen, which is 

permissible. Appellant did not request a limiting instruction. Thus, there was no error. 

Moreover, even if the jury impermissibly heard the testimony for the truth of the matter 

asserted, it was not prejudicial. The critical evidence was the incriminating nature of the 

items found in appellant’s tent. 

{¶37} Appellant’s second allegation of prosecutorial misconduct surrounds 
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questioning regarding Rolf Linder who was in the tent with appellant when the evidence 

was seized. At trial, appellant testified that he had no contact with Linder following their 

arrest. In cross-examining appellant as to the accuracy of that testimony, the 

prosecutor inferred that Linder was later arrested in Lake County on a separate offense 

and attempted to get appellant to admit that he was with Linder in Lake County. 

Appellant denied that he was arrested with Linder. 

{¶38} After appellant’s testimony ended, the prosecutor informed the trial court 

that he was told by the Lake County Prosecutor’s Office that appellant was arrested with 

Linder in the separate Lake County incident and that this formed the basis of his inquiry. 

The prosecutor also told the court that he was prepared to call an officer to testify about 

the Lake County incident in rebuttal, but that, in speaking to the officer moments before 

putting him on the stand, the officer informed that appellant was not arrested with Linder 

in Lake County. After learning of this issue, the prosecutor asked the trial court to give 

the jury a curative instruction on the point. The court granted the motion, specifically 

telling the jury to disregard all questions and answers as to whether appellant was 

arrested with Linder a second time expressly informing the jury that appellant was not 

arrested with Linder: “Court: And before we hear the closing statement of counsel, there 

is a matter concerning the cross-examination of the Defendant when he was asked by 

Mr. Barrett if he was arrested in Painesville with Rolf Linder. You are instructed to 

disregard that question and any answer. There was no arrest of Mr. Smith with Rolf 

Linder in Painesville. It did not occur. So don’t discuss it. It did not happen. Don’t talk 

about it; okay?” 

{¶39} Appellant argues that the entire problem could have been avoided if the 
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prosecutor had adequately investigated Linder’s second arrest prior to trial. However, in 

light of the fact that the prosecutor was relying upon information from another county 

prosecutor’s office, the record demonstrates that an honest mistake was made. More 

importantly, the jury was expressly instructed to not consider the point as part of its final 

deliberations. Therefore, again, no prejudice obtained. 

{¶40} Appellant’s last allegation of prosecutorial misconduct is predicated upon 

the fact that, after appellant testified that he was innocent because he found the drug 

paraphernalia in a backpack that someone else threw into a ditch, the prosecutor tried 

to ask him why he did not mention this fact to the officer at the time of his arrest. In 

addition, during his closing argument, the prosecutor argued to the jury that appellant 

was essentially telling a “story” that he had never mentioned during the eighteen months 

the case was pending. Appellant now states that the prosecutor’s argument constituted 

an improper comment upon his decision to invoke to his right to remain silent following 

his arrest. 

{¶41} In answering the prosecutor’s question on the “backpack” issue, appellant 

testified that, while he was being transported to the sheriff’s office, he specifically tried 

to explain to an officer how he found the backpack in a nearby ditch. Hence, pursuant 

to appellant’s own testimony, he did not seek to invoke his right to remain silent during 

the post-arrest period. To this extent, the prosecutor’s actions did not prejudice 

appellant. 

{¶42} Taken as a whole, the transcript does not show that appellant was denied 

a fair trial as a result of any inappropriate actions taken by the prosecutor. Thus, as the 

trial court did not err in overruling appellant’s motion for a mistrial, his third assignment 
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of error is not well taken. 

{¶43} As each of appellant’s three assignments do not have merit, the judgment 

of the Ashtabula County Court of Common Pleas is affirmed. 

TIMOTHY P. CANNON, P.J., 

CYNTHIA WESTCOTT RICE, J., 

concur.