STATE OF OHIO v. JERMAEL BURTON

Jermael Burton was indicted for attempted murder and multiple

counts of drug trafficking and drug possession. The police had been led to a house

owned by Burton’s girlfriend after a gunshot victim reported to the police that he

was shot in the house. In the attic of the house, the police found a large quantity of





methamphetamine, as well as crack cocaine and marijuana, tools for drug

trafficking, and firearms and magazines. At the jury trial, Burton claimed he was

framed by the East Cleveland police officers, who he claimed fabricated the shooting

incident and conducted an illegal search of the house’s attic. The jury acquitted

Burton of attempted murder and felonious assault but found him guilty of the drug

and firearm charges.

On appeal, Burton claims his convictions are not supported by

sufficient evidence and are against the manifest weight of the evidence. He also

claims his trial counsel provided ineffective assistance of counsel in failing to file a

motion to suppress. After a careful review of the record and applicable law, we

affirm Burton’s convictions.

The subject house is a three-story residential home located on Noble

Road in East Cleveland. The house was owned by Deanna Thomas, Burton’s

girlfriend, with whom he had a child. There was an apartment on the first floor and

one on the second floor. On the second floor, there was also a door that led to a

staircase going up to an attic area, where the police found the drugs and firearms.

The state alleged Burton lived or stayed in the attic, while Burton denied he lived or

stayed there.

The state had the gunshot victim and four East Cleveland police

officers testify; the defense provided testimony of two tenants from the house and

Burton himself. These witnesses gave varying accounts of the events surrounding

the alleged shooting and the police investigation of the shooting. The witnesses’





testimony is often confusing and sometimes incoherent. We summarize the

testimony as follows to the best of our ability.

Testimony Presented by the State

According to the state’s witnesses, the gunshot victim, Dontaurus

Kemp, went to the house on Noble Road owned by Burton’s girlfriend. While

knocking at a door on the second floor of the house, a man, whom Kemp later

identified as Burton, “kicked the door open” and fired multiple shots at him. He ran

to the street and, with a stranger’s help, flagged down Officer Wilbert Nevels for

assistance. While Kemp was being treated at the hospital, Officer Steven Kaleal

received a dispatch call regarding the shooting. Based on the description of the

house given by Kemp, Officer Kaleal went there to investigate. Burton came out of

the house, and together they went to the second floor of the house, which consisted

of an apartment on one side and a door leading to an attic apartment on the other

side. Burton refused to allow the officer to go to the attic apartment, claiming he

lived there and, with the keys from his pocket, locked the door. In the meantime,

Officer Kaleal took pictures of several individuals present in the house and sent them

over his phone to Officer Nevels at the hospital. Kemp identified Burton as the

shooter.

Detective Keven Harvey then prepared a warrant for the search of the

house although, as discussed below, he included incorrect facts in the request for the

warrant regarding Kemp’s purpose to visit the house. In the attic, the police found

firearms and ammunitions, as well as drugs and tools for drug sales.





1. Testimony of the Gunshot Victim

The gunshot victim, Dontaurus Kemp, testified that on August 12,

2017, his friend “Unc” took him to a house next to a barbecue place on Noble Road.

His friend had told him they were meeting “some girls that [they] were going to chill

with.” After they parked their vehicle, a light-skinned woman came to the front door

and took Kemp and his friend to the second floor. Kemp’s testimony was confusing

as to what transpired when they were on the second floor. He testified as follows:

So we went upstairs. We knocking on the [females’] door. So this light-skinned girl knocking on the dude’s door or whatever. So she banging hard. I know you in there. I know you in there. So the two girls had music up so she tried to — like then he say, who the fuck is it, and that’s when my friend said, yeah, it’s us, and he kicked down the door and just shot me.



It was unclear which door Burton came out of. The prosecutor attempted to clarify

Kemp’s testimony, but without success.

Kemp testified that, after being shot, he ran downstairs to the street.

A good Samaritan put him in his vehicle’s back seat and flagged down a police

officer, later identified as Officer Wilbert Nevels, for assistance. The officer led them

to a hospital nearby to treat Kemp’s gunshot wounds.

While at the hospital, Officer Nevels showed Kemp some photos on

the officer’s cell phone and Kemp identified Burton as the shooter. He later

identified Burton again from a photo lineup at the police station. Kemp also

identified Burton as the shooter in the courtroom.





To show that the house the police investigated for the shooting was

indeed the house he visited, Kemp testified that when he arrived at the house, there

was a silver Grand Prix in the driveway, a detail that was later confirmed by the first

floor resident of the house, Darius Scott, who testified the Grand Prix was one of the

two vehicles he owned.

2. Testimony of Officer Kaleal

Officer Steven Kaleal testified that, in the evening of August 12, 2017,

he responded to a call regarding a man being treated at a hospital for gunshot

wounds. The man reported he went to a house next to a barbeque place on Noble

Road “to visit two females” but was shot at. Upon arrival at the house, Officer Kaleal

saw a resident — later identified as Darius Scott — just arriving home. The officer

asked him if he had heard any gunshots, and he answered no. A woman then came

out of the house, identifying herself as the resident on the second floor. Officer

Kaleal determined she was not involved in the incident. Burton then emerged from

the house as well. He told the officer he “lived on the third floor.”

Officer Kaleal then went inside the house with Burton, and they went

up to the second floor. Regarding the second floor, Kaleal testified as follows:

Then I walked another flight of stairs to the second floor. And there’s an apartment to the right and then there’s another apartment to the left that has stairways that go up into the upstairs bedroom. * * * [A]s I walked into the hallway, I could see a bullet hole on the right side that led into the apartment adjacent to Mr. Burton’s apartment. So I knocked on the door several times to make sure nobody was in there. Finally, the residents in there came to the door. * * * It was two females and a juvenile. * * *







* * *



[T]hen I went to go upstairs to Mr. Burton’s residence, and he told me point blank, you are not going up there. I said, is there anybody else up there, and he stated no. That’s when he secured his door and I wasn’t able to get in his apartment. And that’s when we went back outside.



In conjunction with Officer Kaleal’s testimony, the state played

several snippets from a tape recorded on the officer’s body camera. The tape showed

a background of what appeared to be a dark staircase and hallway. In the tape,

Officer Kaleal repeatedly asked Burton who lived “upstairs.” Burton can be heard

saying “I stay upstairs,” “nobody is up there except for me,” “there is nothing

upstairs,” “I have keys to upstairs,” and “I live upstairs.” Burton appeared to be

making these statements in reference to Officer Kaleal’s question as to which of the

two doors on the second floor was Burton’s. As Kaleal testified:

His was the one on the left. I opened the door. I was able to open up there to yell to see if anybody was hurt. That’s when he told me I can’t go up there and he refused to cooperate. That’s when I made contact with the one next door where the bullet hole was. After I was going to check that, I was going to go upstairs, but I wasn’t able to after he locked the door.



Officer Kaleal testified that he took photographs of the individuals in

the house and sent them over his phone to Officer Nevels, who was with Kemp at

the hospital. When Kemp identified Burton as the shooter, Officer Kaleal arrested

Burton.

Officer Kaleal testified that, because of the report of a shooting, it was

necessary for the police to search the entire house for weapons and possibly





additional victims. After Burton locked the door to the attic, Officer Kaleal contacted

Detective Harvey for him to obtain a search warrant. The officers searched the attic

after Detective Harvey obtained a search warrant.

On cross-examination, Officer Kaleal testified that he investigated the

particular house based on the report that the shooting occurred in a house next to

the barbecue place on Noble Road, and he was able to confirm he was in the right

house because a vehicle parked in the house’s driveway matched the victim’s

description of the vehicle that took him to the house.

3. Testimony of Detective Harvey

Detective Harvey testified that some time past midnight on the night

of the incident, he received a call regarding a gunshot victim, who was being treated

at the hospital and reported he had been shot at a house on Noble Road. Burton was

already in custody when Detective Harvey arrived at the house. Detective Harvey

described that on the second floor of the house, there was an apartment and a door

leading to a third-floor attic apartment. Detective Harvey also saw a bullet hole in

the wall. After visiting the house, he prepared a search warrant and a judge signed

the warrant. With the search warrant, the officers tried to gain access to the attic

through the locked door but had no success. One of the officers then crawled out to

a balcony and then crawled into the attic through a window.

The officers did not find any additional victims, but found an assault

rifle and several magazines on the floor behind a TV. Inside a wall, which appeared

to be under repair, there were additional magazines and a handgun. The officers





also found methamphetamine (totaling 295 grams) and marijuana (totaling 483

grams) inside an open book bag, as well as crack cocaine (totaling 24 grams). “Cut

mix,” which Detective Harvey testified was commonly used by drug traffickers in

preparing drugs for sale, plastic bags, and two digital scales were also found.

Detective Harvey also looked for documents and items identifying the

occupant of the attic area. He found a debit card, a prescription bottle, and mail

bearing Burton’s name. Harvey acknowledged upon cross-examination that

Burton’s address as listed on these items was not the Noble Road address.



Detective Harvey’s affidavit, which was attached to the search

warrant, described the purpose of Kemp’s visit to the house differently. While Kemp

testified he was there to visit some women, Harvey stated the gunshot victim was at

the house “attempting to purchase drugs” and that the victim stated “he was in the

upstairs hallway knocking on his dealer’s door when he opened the door and shot

him.” Upon cross-examination, when Harvey was questioned on the discrepancy,

he stated that he believed at the time the victim was at the house to buy drugs.

4. Testimony of Officer Demarkco Johnson

Officer Johnson, who arrived at the scene to assist Officer Kaleal,

testified that he searched the third floor attic. He described the layout of the second

floor as having “a door on the left and another door on the right, and it takes you to

another flight of stairs to go up to the third floor of the home.” In the attic the officers

found marijuana inside a book bag, cocaine wrapped up in a curtain, and a firearm

behind a TV.





5. Testimony of Officer Nevels



Officer Wilbert Nevels came upon Kemp and a man helping him at the

intersection of Euclid Avenue and Beersford Street. Officer Nevels directed them to

a hospital nearby. While at the hospital, Kemp gave a description of the shooter and

later identified Burton from the photos sent to Officer Nevels by Officer Kaleal.



Officer Nevels prepared a report regarding the incident, which he read

as part of his testimony. The report stated, in part,

Kemp stated he and his friend [were] going upstairs to the second floor when a female by the name of Rachel began banging on the third floor demanding that that male needs to bring his ass outside. Kemp stated that male came downstairs with a firearm in his hand and began shouting some profanities and then shooting blindly.





The report also stated that Burton told the police that he resided on

the third floor of the house. On cross-examination, Officer Nevels affirmed that

Kemp told him that “the shooter came from the third floor.”

The Defense



Burton claimed to have been framed by the East Cleveland police, who

fabricated the shooting incident. He claimed the police officers and Kemp all lied

on the witness stand. Burton testified in his own defense and also presented

testimony from two residents of the house. These residents testified Burton did not

live in the house. Rather, he did maintenance work for the house and there were

people they did not know “in and out of” the attic apartment.





1. Testimony of the Second-Floor Resident



Tansunia Hougabook, referred to at trial as “TT,” testified she lived in

the second-floor apartment with her 5-year-old daughter. She knew Burton as the

maintenance man for the house. She got off work that evening around 10:55 p.m.

and arrived home shortly after 11:00 p.m. She was taking a shower when the police

came. She told the police she had not heard any gunshots that night. She also

testified the “bullet hole” the police saw was actually a nail hole.

When asked who lived in the attic, she stated “[p]eople that I don’t

know. I never knew.” She also stated that Burton was not one of them. Earlier that

evening, she called her landlord Deanne (Burton’s girlfriend) to have her toilet fixed.

She testified on that night, she was supposed to pay the rent, but she did not give

Burton the rent because she “was supposed to give it to her [Burton’s girlfriend].”

Hougabook’s testimony was unclear as to whether she actually saw or talked to

Burton that night. On cross-examination, Hougabook revealed that her friend

“Leona” and a young male friend were in the apartment before she arrived home.

She was taking a shower when the police knocked on the door, and her friends did

not answer the door for three minutes.

2. Testimony of the First-Floor Resident



Darius Scott, his girlfriend, and their young daughter lived in the first

floor apartment of the house. He knew Burton as someone who worked at the house

and, to his knowledge, he did not live there. He testified there was a third-floor

apartment in the house and there were usually a lot of people going in and out. He





did not know what was going on up there except that they usually had a lot of music

playing. On the night of the incident, Scott arrived home around midnight to see

the police at the front of the house. Earlier that night, he had called Burton to come

over to get the rent money. He was surprised when the police informed him that

someone had been shot in the apartment because his girlfriend would have called

him to tell him about it. Regarding the silver Grand Prix parked in the driveway that

Kemp saw when he arrived at the house, Scott testified that it was his vehicle. Scott

also testified that after he got home, he handed Burton $600 rent money in front of

the police officers.

3. Defendant’s Testimony



Burton denied living or staying in the third-floor attic apartment. He

testified that in 2017, he lived in his house on Kildare Road and his girlfriend’s

house, going back and forth between the two. He would go the house on Noble to

do some maintenance work for his girlfriend, who owned the house, or to collect

rent for her. He testified he was only in the Noble house on two occasions in

August 2017, one of them being on the night of the incident.



Burton testified that evening, he received a call from TT around

10:30 p.m. regarding a toilet leaking. TT also indicated she had the rent money

ready. Burton was also supposed to pick up the rent money from Scott after Scott

got off work that night.

Burton testified he arrived at the house shortly after 11 p.m. He tried

to work on TT’s leaking toilet. TT gave him the rent money first but then took it back





because he did not have a receipt for her. As a result, he left the house to obtain a

rent receipt from his girlfriend’s house. He returned to the Noble house shortly

afterward to get the rent money from both TT and the other resident Scott.



Notably, Burton’s testimony about his two visits to the house that

night was not fully corroborated by his own witnesses. Although Burton testified he

first went to the house after 11 p.m. to fix the toilet and interacted with TT regarding

the rent money, TT never clearly testified that she had seen or talked to Burton that

evening — she testified that she came home from work and was taking a shower

when the police knocked on the door.



Burton testified that, when he returned to the house on the second

occasion, he found three cars in the driveway. He parked his car at the parking lot

adjacent to the barbeque place and then went inside the house to knock on Scott’s

door. No one answered the door, and he went outside the house. He saw Scott

pulling into the driveway and being questioned by the police officers.



The police officers then approached Burton, requested his ID, and

told him someone had been shot in the house. He told the police no one had been

shot in the house.



Although Officer Kaleal testified the door leading to the attic was on

the left, Burton testified TT’s apartment was on the left instead. Officer Kaleal

knocked on TT’s door, while asking Burton who lived in the other apartment. When

confronted with his own words heard on the tape from Officer Kaleal’s body camera,

Burton admitted he told Officer Kaleal that he lived “upstairs,” but did so to keep the





police from searching the place without a search warrant. He also claimed that at

the time he asserted he lived “upstairs,” he was standing between the first floor

landing and the second floor landing and, therefore, “upstairs” referred to “TT’s”

residence, not the attic.



Burton claimed Officer Kaleal lied when he testified Burton told him

he stayed “in the other door” (across from TT’s apartment) and that Burton took out

the keys and locked the door to the attic. He testified he never locked the door —

even though Detective Harvey testified that one of the officers had to crawl into the

attic through a window from the balcony in order to access to the attic.

Burton also claimed all the items bearing his name — a debit card, a

pill bottle, and mail — the police claimed they found in the attic area came from his

Chevy Cruze. He testified that “I know for a fact that the debit card wasn’t upstairs.”

He claimed Officers Kaleal and Nevels searched his vehicle that night, even though

Officer Nevels testified that after completing the police report, he had no further

involvement in this case.



Burton asserted that he had never seen Kemp and did not shoot him.

He claimed that the East Cleveland police fabricated the shooting incident. Burton

acknowledged he had been convicted 16 years ago of some felony offenses for which

he served a 5-year prison term.



While Burton was charged with attempted murder, felonious assault,

drug trafficking, drug possession, possessing criminal tools, and having a weapon

while under disability, the jury found Burton not guilty of attempted murder and





felonious assault. Burton received an 11-year prison term for his convictions of the

drug offenses with the accompanying one-year firearm specifications, possessing

criminal tools, and having a weapon while under disability.



On appeal, Burton raises two assignments of error. They state:

I. Trial counsel rendered ineffective assistance of counsel for failing to move to suppress the fruits of the search warrant.



II. The verdicts were not supported by sufficient evidence and fell against the manifest weight of the evidence.



For ease of discussion, we address the second assignment first.



Sufficiency of Evidence and Manifest Weight

Under the second assignment of error, Burton argues his convictions

of drug trafficking, drug possession, possession of criminal tools, having a weapon

while under disability, and the firearm specifications are not supported by sufficient

evidence and are also against the manifest weight of the evidence. His argument is

premised on his claim that he did not possess the drugs and weapons found in the

attic because he did not live or stay there.



When reviewing a challenge to the sufficiency of the evidence, we

review the evidence admitted at trial and determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.



“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.” Id. A reviewing

court is not to assess “whether the state’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.” State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).



While the test for sufficiency requires a determination of whether the

state has met its burden of production at trial, a manifest weight challenge questions

whether the state has met its burden of persuasion. Id. Unlike a claim that the

evidence is insufficient to support a conviction, which raises a question of law,

manifest-weight challenges raise factual issues. When a defendant argues his or her

conviction is against the manifest weight of the evidence, the 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 weighs heavily against the conviction.”



Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

1. Sufficiency of Evidence



Possession is defined in R.C. 2925.01(K) as “having control over a

thing or substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing

or substance is found.” Possession of a controlled substance may be actual or





constructive. State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th

Dist.1993). “Actual possession requires ownership and, or, physical control.” State

v. Messer, 107 Ohio App.3d 51, 56, 667 N.E.2d 1022 (9th Dist.1995). Constructive

possession, on the other hand, exists when a person “knowingly exercises dominion

and control over an object, even though that object may not be within his immediate

physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982),

syllabus. “[T]he mere fact that property is located within premises under one’s

control does not, of itself, constitute constructive possession. It must also be shown

that the person was conscious of the presence of the object.” Hankerson at 91.



Here, the state did not present evidence of actual possession. To prove

the drug and weapon charges against Burton, the state relied on evidence showing

Burton constructively possessed the drugs and weapons. Therefore, the state must

present sufficient evidence to show Burton was aware of their existence and able to

exercise dominion and control over them. There is no doubt the state’s evidence

showing Burton’s constructive possession of the illicit items are circumstantial only.

However, constructive possession may be proved by circumstantial evidence alone.

State v. Trembly, 137 Ohio App.3d 134, 141, 738 N.E.2d 93 (8th Dist.2000).

The state presented Officer Kaleal’s testimony that shows that, as he

attempted to enter the attic through the second-floor door, Burton closed the door

and locked the door with his keys, preventing the officer from going to the attic area.

Burton can also be heard in the officer’s body camera tape that “I live upstairs.”







Regarding drug trafficking, plastic bags and scales, as they are often

used in drug trafficking, constitute circumstantial evidence for drug trafficking if

found with a large quantity of drugs. State v. Kutsar, 8th Dist. Cuyahoga No. 89310,

2007-Ohio-6990, ¶ 19-20, citing State v. Fain, 5th Dist. Delaware

No. 06CAAl20094, 2007-Ohio-4854 (plastic sandwich bags and digital scales are

circumstantial evidence for drug trafficking), State v. Smith, 3d Dist. Union

No. 14-01-28, 2002-Ohio-5051 (jury could consider possession of drugs, scale,

baggies, and gun in conviction of trafficking), and State v. Fry, 9th Dist. Summit

No. 23211, 2007-Ohio-3240 (presence of drugs and drug paraphernalia permit a

reasonable inference that a person was preparing drugs for shipment). In this case,

in addition to a large quantity of drugs, plastic bags, and digital scales, the police

also found the presence of “cut mixes,” which are often used to prepare drugs for

sales, as Detective Harvey testified.



Regarding the one-year firearm specification accompanying the drug

counts, R.C. 2941.141(A) provides that a one-year mandatory prison term is imposed

if the offender “had a firearm on or about his person or under his control while

committing the [underlying] offense.” For purposes of R.C. 2941.141(A), a weapon

need not be found on the defendant’s person; the weapon can be found in another

room, and all that is necessary is that the defendant had the firearm on or about his

person or under his control at some point during the commission of the underlying

crimes. State v. Walker, 10th Dist. Franklin No. 14AP-905, 2016-Ohio-3185, ¶ 64;

State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 53. The





evidence presented by the state showing Burton stayed in the premises where

firearms and magazines were found together with a large quantity of drugs and drug

trafficking tools was sufficient to establish that Burton had the firearms under his

control during the commission of drug trafficking and drug possession offenses.1



The state’s evidence in this case, albeit circumstantial, constituted

sufficient evidence of the drug and weapon offenses Burton was convicted of. The

evidence, when viewed in a light most favorable to the prosecution, would convince

the average mind of Burton’s guilt beyond a reasonable doubt. The evidence

presented by the state was legally sufficient to sustain Burton’s convictions.

2. Manifest Weight of the Evidence

Burton also claims his convictions are against the manifest weight of

the evidence. He argues the evidence presented at trial weighs against finding him

guilty of the drug and weapon charges because he produced persuasive evidence to

show that the items linking him to the premises where the drugs and weapons were

found were planted by the police.

1 Burton cites State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, for his claim that a firearm must be “conveniently accessible” or “within reach” for a conviction of a firearm specification under R.C. 2941.141(A). In Smith, the defendant was selling drugs in the street. He tripped and fell to the ground when chased by a police officer. While the officer stood over the defendant, he reached up and grabbed the officer’s gun. The two tussled over the gun, but the defendant never gained control of the gun. This court found that the state presented insufficient evidence for the gun specification charge because the gun was never under the defendant’s control such that it was “conveniently accessible” to him. Id. at ¶ 11, citing 2 Ohio Jury Instructions (2008). Smith is distinguishable. Here, the state’s evidence showing the presence of the weapons and drug-related items in the same room constituted sufficient circumstantial evidence that the weapons were “conveniently accessible.”







Burton alleged that his vehicle, a Chevy Cruze, was towed and

inventoried on the night of the incident and the items bearing his name the police

claimed to have been found in the attic came from his vehicle.



The state maintained that Burton’s vehicle was neither towed nor

inventoried by the police on the night of the incident. Burton, however, alleged the

state’s exhibit No. 87 showed his vehicle had been inventoried by the police on the

night of the incident. Exhibit No. 87 was a tow slip from St. Clair Auto Body. The

slip showed a tow date of August 25, 2017. It also showed the vehicle was released

to the “owner” and there was a storage charge of $17 for eight days. A box for

“ECPD” — presumably East Cleveland Police Department — was checked off. In

addition, Burton pointed to the state’s exhibit No. 88, which appeared to be an

officer’s log showing certain police activities on August 12, 2017. The log contained

a short-hand statement “St. Clair Auto is on scene.” The state maintained that the

only vehicle towed that night was the Honda Accord driven by Kemp’s friend.



Even assuming that exhibits Nos. 87 and 88 did show that Burton’s

vehicle was inventoried by the police that night, as Burton alleged, it is not

conclusive evidence that the police officers planted the identifying items on the

premises where the drugs and weapons were found. While Burton presented

evidence showing he was framed by the police, it was squarely within the jury’s

purview to determine whether to believe Burton or the police officers. In addition

to the items linking Burton the attic apartment, the state also produced Officer





Kaleal’s testimony and snippets from his body camera where Burton can be heard

saying “I live upstairs.”

Regarding witness credibility, we are mindful that “[t]he choice

between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of

the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

This is because the trier of fact “is in the best position to observe the witnesses’

demeanor, voice inflection, and mannerisms in determining each witness’s

credibility.” State v. Hughes, 8th Dist. Cuyahoga No. 81768, 2003-Ohio-2307, ¶ 26.

Furthermore, “the jurors are free to believe some, all, or none of each witness’

testimony and they may separate the credible parts of the testimony from the

incredible parts.” State v. Malyshev, 7th Dist. Jefferson No. 17 JE 0029,

2019-Ohio-1087, ¶ 83. “When there are two fairly reasonable views of the evidence

or two conflicting versions of events, neither of which is unbelievable, [the reviewing

court] will not choose which one is more credible.” Id.



Having reviewed the entire record, we are not convinced that the jury

in this case clearly lost its way and created such a manifest miscarriage of justice in

resolving the conflict in the evidence in the state’s favor that Burton’s conviction of

drug and weapons charges must be reversed. We do not find this to be an exceptional

case where the evidence weighed heavily against the convictions and therefore we

decline to exercise our discretionary power to grant a new trial. The second

assignment of error is overruled.





Ineffective Assistance of Counsel

Under the first assignment of error, Burton claims his trial counsel

provided ineffective assistance in failing to file a motion to suppress the evidence on

the ground that the search warrant was based on an affidavit that contained false

statements. Under the Fourth Amendment to the United States Constitution, a

warrant must be based on probable cause and supported by an “oath or affirmation.”

In Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),

the United States Supreme Court held that if a defendant makes a “substantial

preliminary showing” that an affidavit supporting a search warrant contains a false

statement made knowingly or with reckless disregard for the truth, the defendant is

entitled to a hearing if the allegedly false statement is necessary to establish probable

cause.



Burton argues if his trial counsel had filed a motion to suppress and

requested a hearing pursuant to Franks, he would have been able to demonstrate

that a Franks hearing would be warranted in this case. He claims the hearing would

have shown that the search warrant affidavit was based on false information and the

trial court would have granted his motion to suppress the evidence relating to the

drug and gun charges against him.



The issue on appeal, however, is not whether a Franks hearing was

warranted in this case or whether the search warrant affidavit contained knowing or

reckless falsehood. Rather, because Burton’s trial counsel did not file a motion to





suppress, Burton’s claim regarding the validity of the search warrant is couched in

terms of ineffective assistance of counsel.



In order to establish a claim of ineffective assistance of counsel,

Burton must prove (1) his counsel was deficient in some aspect of his representation,

and (2) there is a reasonable probability that, were it not for counsel’s errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Ohio, every properly licensed attorney is presumed to be

competent and, therefore, a defendant claiming ineffective assistance of counsel

bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128

(1985). Counsel’s performance will not be deemed ineffective unless and until the

performance is proven to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance. State

v. Iacona, 93 Ohio St.3d 83, 105, 2001-Ohio-1292, 752 N.E.2d 937.



Burton argues his counsel provided ineffective assistance by failing to

file a motion to suppress and to request a hearing pursuant to Franks, 438 U.S. 154,

171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667. As part of his assignment of error regarding

the Franks hearing, he also argues his counsel provided ineffective assistance in

failing to fully investigate his claim that the search warrant was manufactured by

the police by scrutinizing (1) the discrepancy between what Detective Harvey stated

in the affidavit and what the other officers knew regarding the purpose of Kemp’s

visit to the house, and (2) the entire contents of the tape from Officer Kaleal’s body





camera, which he alleged contained statements alluding to the shooting as having

occurred outside the house.



We note, however, in order for Burton to claim that the police

conducted an illegal search of the attic in violation of his Fourth Amendment rights,

he must first establish that he has a legitimate expectation of privacy with regard to

the attic. See, e.g., State v. Wilson, 2018-Ohio-396, 106 N.E.3d 806, ¶ 18 (5th Dist.)

(a defendant’s Fourth Amendment rights are violated only when the police officer’s

conduct invades his legitimate expectation of privacy rather than a third party); and

State v. Hill, 127 Ohio App.3d 441, 446-447, 713 N.E.2d 73 (2d Dist.1998) (Fourth

Amendment rights are personal and may not be vicariously asserted), citing Rakas

v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to

demonstrate an infringement of his own legitimate expectation of privacy, Burton

needs to show that “‘he owned the premises or that he occupied them and had

dominion and control over them by leave of the owner.’” State v. Walker, 8th Dist.

Cuyahoga No. 64048, 1993 Ohio App. LEXIS 1147, 16 (Feb. 25, 1993), quoting

United States v. Villegas, 899 F.2d 1324 (2d Cir.1990).



Yet, Burton’s defense at trial is that he did not live or stay in the attic

or utilize it for any residential purposes. Indeed, while he could be heard on Officer

Kaleal’s body camera tape stating that he lived “upstairs” and no one else lived there,

he took great pains on the witness stand explaining that he lied to the police about

living “upstairs” in order to prevent the East Cleveland police from their known

practice of illegal search and seizures.







A claim of a violation of Fourth Amendment rights underlying a

motion to suppress evidence would be incompatible with Burton’s defense at trial,

which understandably created a “Catch-22” situation for Burton’s trial counsel.



If counsel had filed a motion to suppress, Burton would necessarily be

claiming that he had a legitimate expectation of privacy in the attic. This posture

would affect his ability to assert his defense against the drugs and firearms charges

— that he did not live or stay or in the attic — should the trial court deny the motion

and the case went to trial. In addition, being able to testify at trial that he only visited

the house occasionally to perform maintenance work also boosted his defense

against the state’s claim that he came from the attic, kicked a door open, and shot

Kemp. Because counsel did not file a motion to suppress, which would necessarily

be predicated on an expectation of privacy in the premises, Burton retained the

ability to deny on the witness stand that he did not stay or live in the attic, refuting

the state’s claim he came from the attic apartment and shot Kemp. This trial tactic

was apparently successful, because the jury acquitted Burton of attempted murder

and other charges relating to the shooting.

Although we are somewhat troubled by the search warrant affidavit in

this case, in evaluating Burton’s claim of ineffective assistance of counsel, we are

mindful that great deference should be afforded to counsel’s performance and that

trial tactics and strategies do not constitute a denial of effective assistance of counsel.

State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, ¶ 38, citing State

v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). Decisions on strategy and





trial tactics are matters of professional judgment and are granted wide latitude and

we will not second-guess counsel’s legal tactics and maneuvers. State v. Quinones,

8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 19. Accordingly, we decline to

question in hindsight the strategic decision made by Burton’s trial counsel regarding

the motion to suppress.



Furthermore, even if we were to conclude Burton’s trial counsel

should have filed a motion to suppress, we note that a trial counsel’s failure to file a

suppression motion does not automatically constitute ineffective assistance of

counsel. Wilson, 2018-Ohio-396, 106 N.E.3d 806, at ¶ 13, citing State v. Madrigal,

87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. Counsel can only be found

ineffective for failing to file the motion if the record shows the motion would have

been granted and that there is a reasonable probability that the outcome of the trial

would have been different if the motion had been granted. Id.



Here, given the presumption of validity accorded to warrant affidavits

which Franks itself recognized, it remains speculative whether Burton could

successfully make a “substantial” preliminary showing that a false statement, made

knowingly or with reckless disregard for truth, was included in the affidavit, and that

the allegedly false statement was necessary to a finding of probable cause in this

case. Franks, 438 U.S. at 155, 98 S.Ct. 2674, 57 L.Ed.2d 667. It is also somewhat

speculative that if such a hearing were held, the trial court would find the affiant

Detective Harvey acted knowingly or with a reckless disregard for the truth — rather





than negligently — and grant Burton’s motion to suppress. For all these reasons,

the first assignment of error is overruled.

Judgment affirmed.