State v. Penn , 2011 Ohio 2918 ( 2011 )


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  • [Cite as State v. Penn, 
    2011-Ohio-2918
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 95563
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    LUCAS O. PENN
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-519314
    BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED:                      June 16, 2011
    ATTORNEY FOR APPELLANT
    Kelly A. Gallagher
    P.O. Box 306
    Avon Lake, Ohio 44012
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Maxwell M. Martin
    Assistant Prosecuting Attorney
    The Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    FRANK D. CELEBREZZE, JR., J.:
    {¶ 1} Appellant, Lucas Penn, was arrested following a foot chase where
    he was seen by a Cleveland police officer discarding a firearm as he ran.
    Appellant was convicted of carrying a concealed weapon. He now appeals
    claiming the “trial court erred in denying [his] motion to suppress.” After a
    thorough review of the facts and law, we affirm.
    {¶ 2} Vice detectives of the Cleveland Police Department were
    conducting controlled drug buys in the area of Gooding Avenue in Cleveland.
    Detective Rodney McClendon testified at appellant’s suppression hearing that
    the vice unit was being assisted by patrol officer James Dunn. While the
    officers were there, they received a few broadcasts that several robberies had
    occurred in the area.    The report contained the descriptions of a vehicle
    involved and two male individuals responsible.
    {¶ 3} Sometime after receiving the report, the officers observed a
    vehicle matching the description, a white Ford Escort with a dent in its right
    front side.   The officers gave chase, but they eventually lost sight of the
    vehicle. After a brief search, the vehicle was discovered behind a home or
    apartment building by Officer Dunn.        Det. McClendon testified that, by
    looking through the window, he observed bullets for a gun sitting on the seat
    of the vehicle.
    {¶ 4} Eventually, the owner of the vehicle was located, and she told the
    officers that her boyfriend had been driving it. She provided them with an
    address where the boyfriend could be located. The officers headed to this
    location, some seven blocks away. Once there, Det. McClendon was let into
    the home and talked to the residents, but did not find the two individuals.
    Det. McClendon testified that once he was outside and driving away, he
    observed a male, later identified as appellant, walking down the street who fit
    the description of one of the occupants of the car. He ordered the individual
    to stop, the individual ran, and the officers gave chase.
    {¶ 5} Officer Dunn had been waiting on the street some distance from
    the house while the detectives were inside and after they left. He observed
    appellant running    and being chased by police officers.    He then pursued
    appellant on foot. After Officer Dunn closed the gap to approximately ten
    feet, he observed appellant lift his shirt, retrieve a gun from his pocket or
    waistband with his left hand, and toss the gun into some bushes. A short
    time later, appellant was apprehended after Officer Dunn deployed his taser.
    {¶ 6} At trial, appellant was convicted of carrying a concealed weapon
    in violation of R.C. 2923.12(A)(2) and sentenced to a one-year term of
    incarceration.
    Law and Analysis
    {¶ 7} “In 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 evaluate
    witness credibility. A reviewing court is bound to accept those findings of
    fact if supported by competent, credible evidence.         However, without
    deference to the trial court’s conclusion, it must be determined independently
    whether, as a matter of law, the facts meet the appropriate legal standard.”
    (Internal citations omitted.) State v. Curry (1994), 
    95 Ohio App.3d 93
    , 96,
    
    641 N.E.2d 1172
    .
    {¶ 8} The Fourth Amendment to the United States Constitution
    prohibits warrantless searches and seizures, rendering them per se
    unreasonable unless an exception applies. Katz v. United States (1967), 
    389 U.S. 347
    , 
    88 S.Ct. 507
    , 
    19 L.Ed.2d 576
    .         Common exceptions include
    consensual encounters with police officers and investigative or Terry stops.
    Terry v. Ohio (1968), 
    392 U.S. 1
    , 
    88 S.Ct. 1868
    , 
    20 L.Ed.2d 889
    .
    {¶ 9} Under Terry, a police officer may stop a person and investigate,
    even without probable cause to arrest, if he has sufficient evidence to
    reasonably conclude that criminal activity is afoot. The officer “must be able
    to point to specific and articulable facts which, taken together with rational
    inferences from those facts, reasonably warrant the intrusion.” Terry at 21.
    An investigatory stop “must be justified by some objective manifestation that
    the person stopped is, or is about to be, engaged in criminal activity.” United
    States v. Cortez (1981), 
    449 U.S. 411
    , 417, 
    101 S.Ct. 690
    , 
    66 L.Ed.2d 621
    .
    {¶ 10} “In determining the reasonableness of the officer’s belief, courts
    examine the totality of the circumstances, including the following factors: (1)
    whether the location of the contact is an area of high crime or high drug
    activity, (2) the suspect’s non-compliance with the officer’s orders, (3) the time
    of the occurrence, (4) the officer’s experience, (5) the lack of backup for the
    officer, (6) the contact’s location away from the police cruiser, (7) whether the
    suspect is fleeing the officer or the scene, (8) any furtive movements by the
    suspect, (9) the precautionary measures taken by the officer, and (10) the
    suspected offense.” (Internal citations omitted.) State v. Stiles, Ashtabula
    App. No. 2002-A-0078, 
    2003-Ohio-5535
    , ¶17.
    {¶ 11} The state argues that a stop did not take place until appellant
    submitted to the show of authority, and therefore appellant was not in
    custody when he discarded the weapon. See California v. Hodari D. (1991),
    
    499 U.S. 621
    , 
    111 S.Ct. 1547
    , 
    113 L.Ed.2d 690
    . However, the state did not
    make this argument before the trial court, and at least a few appellate courts
    in Ohio, including this one, have been reticent to address arguments by the
    state that were not raised before the trial court at the suppression hearing.
    See State v. Jobes, Montgomery App. No. 20210, 
    2004-Ohio-1167
    ; State v.
    Massingill, Cuyahoga App. No. 92813, 
    2009-Ohio-6221
    .
    {¶ 12} Even though this court is charged with determining if the trial
    court applied the facts of the case to the appropriate legal standard, if the
    state does not argue an applicable legal standard below, we are not required
    to address it for the first time on appeal. Jobes at ¶24. In this case, we
    need not wade into an analysis of prejudice and plain error necessary to
    address the state’s new contention because it presented sufficient evidence to
    demonstrate that officers possessed a reasonable suspicion of criminal
    activity when Det. McClendon shouted at appellant to stop.
    {¶ 13} Appellant argues that Det. McClendon lacked probable cause to
    stop him at the time the detective instructed him to stop and he fled. Det.
    McClendon observed a vehicle drive by that matched the description of one
    used in a series of recent armed robberies. After pursuit of the vehicle, the
    officers were directed to a house where one of the suspects resided.
    Appellant matched the description the officers had heard over the radio in
    connection with the robberies. More importantly, Det. McClendon testified
    that appellant fit the description of one of the individuals he had seen in the
    vehicle as it drove by. Appellant was encountered a few houses down from
    where the officers had been directed by the owner of the vehicle. Based on
    all of these circumstances, Det. McClendon’s attempt to inquire of appellant
    his name and his business in the area to determine if he was one of the
    robbery suspects was supported by a reasonable suspicion of criminal activity.
    {¶ 14} Because the attempt to investigate appellant was lawful, the trial
    court properly overruled appellant’s motion to suppress. Appellant’s single
    assignment of error is overruled.
    Judgment affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the
    common pleas court to carry this judgment into execution. The defendant’s
    conviction having been affirmed, any bail pending appeal is terminated.
    Case remanded to the trial court for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    FRANK D. CELEBREZZE, JR., JUDGE
    MARY EILEEN KILBANE, A.J., and
    SEAN C. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 95563

Citation Numbers: 2011 Ohio 2918

Judges: Celebrezze

Filed Date: 6/16/2011

Precedential Status: Precedential

Modified Date: 3/3/2016