In re M.M. , 2015 Ohio 3485 ( 2015 )

[Cite as In re M.M., 2015-Ohio-3485.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.M. : APPEAL NOS. C-140628
C-140629
: C-140630
C-140631
: TRIAL NOS. 12-11769X
14-5993X
: 14-5994X
14-6564X
:
O P I N I O N.
:
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: August 28, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Gordon C. Magella,
Assistant Public Defender, for Appellant M.M.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} M.M. was adjudicated delinquent for carrying a concealed weapon
(“CCW”), resisting arrest and obstructing official business. He advances the following
arguments on appeal: (1) the juvenile court erred when it denied his motion to suppress
evidence stemming from the unlawful stop of the car in which he was a passenger; (2)
the adjudications were not based on sufficient evidence; and (3) the adjudication for
carrying a concealed weapon was barred by the Double Jeopardy Clauses of the United
States and Ohio Constitutions. We affirm the judgments of the court.
I. Background
{¶2} Police officers Evelyn Colonel and Joseph Horner initiated a stop of a car
with a cracked windshield. When the car stopped, the backseat passenger, later
identified as M.M., exited the car. Officer Colonel ordered him to return to the car, and
he complied. Officer Horner asked the driver to roll down the car’s windows. When he
did so, M.M. shifted in the back, and Officer Colonel saw the handle of a gun tucked into
M.M.’s pants. She shouted, “Gun!” and drew her weapon. M.M. then jumped out of the
car and ran away. Officer Horner gave chase. As he ran after M.M., Officer Horner saw
something drop from M.M.’s waistband and heard it hit the pavement.
{¶3} Police officer Chris Bihl joined the pursuit in response to a radio report.
He saw a person matching the description enter an apartment building. He followed
him into the apartment and ordered him to put his hands behind his back. But as
Officer Bihl put his hands on the youth to handcuff him, M.M. broke away and ran
again. Another police officer was able to stop and cuff him.
{¶4} Police officer Ronald Kullgren also responded to the radio call. At the
location of the stop, he found a gun about three feet from the passenger-side door of the
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OHIO FIRST DISTRICT COURT OF APPEALS
car. He secured the gun. Officer Horner later attempted to test fire the gun and found it
to be inoperable.
{¶5} M.M. was charged with CCW, resisting arrest and obstructing official
business. He filed a motion to suppress the evidence stemming from the stop of the car.
Following a hearing, the magistrate denied the motion. A trial was held. At the
conclusion of the trial, the magistrate adjudicated M.M. delinquent for resisting arrest
and obstructing official business, but held his decision on the CCW charge in abeyance
so that he could research whether an inoperable firearm satisfied the elements of the
charge. He later issued a decision dismissing the CCW charge, concluding that because
the gun was inoperable, it could not be a deadly weapon under R.C. 2923.12.
{¶6} M.M. filed objections to the magistrate’s decisions adjudicating him
delinquent for resisting arrest and obstructing official business. The state objected to
the magistrate’s decision dismissing the CCW complaint. The trial court reviewed the
record, adopted the magistrate’s decisions with respect to resisting arrest and
obstructing official business, and reversed the magistrate’s decision that dismissed the
CCW complaint. M.M. was adjudicated delinquent for all three charges.
II. Reasonable Suspicion to Stop for a Cracked Windshield
{¶7} In his first assignment of error, M.M. asserts that the court erred when it
denied his motion to suppress. He contends that the police officers did not have
reasonable suspicion to stop the car based solely on the car’s cracked windshield.
{¶8} To perform a lawful stop, a police officer must have reasonable suspicion
that criminal behavior has occurred or is imminent. Terry v. Ohio, 392 U.S. 1, 21-22, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Whether reasonable suspicion exists is based on the
totality of circumstances “viewed through the eyes of the reasonable and prudent police
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OHIO FIRST DISTRICT COURT OF APPEALS
officer on the scene who must react to events as they unfold.” State v. Andrews, 57 Ohio
St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶9} During the suppression hearing, both Officer Colonel and Officer Horner
testified that the only reason they stopped the car was because it had a cracked
windshield in violation of R.C. 4513.02(A). That provision makes it a crime “to drive or
move, or cause or knowingly permit to be driven or moved, on any highway any
vehicle or combination of vehicles which is in such unsafe condition as to endanger
any person.” A cracked windshield can result in a violation of R.C. 4513.02(A)—and
thus serve as justification for stopping a car—only if it renders the car “in such an
unsafe condition as to endanger any person.” See State v. Latham, 2d Dist.
Montgomery No. 20302, 2004-Ohio-2314, ¶ 19. M.M. argues that was not the case
here.
{¶10} M.M. maintains that the stop in this case is similar to that in State v.
McWhorter, 11th Dist. Cuyahoga No. 95108, 2011-Ohio-1074, a case in which the
appellate court affirmed the trial court’s grant of a motion to suppress following a
stop for a cracked windshield. In that case, the trial court concluded that the stop of
a car for a cracked windshield was not reasonable because “the cracked windshield
‘as described by the police officer’ did not constitute ‘an unsafe vehicle that would be
such an unsafe condition to endanger any person or property.’ ” Id. at ¶ 6. The
Eleventh District affirmed, concluding that the trial court was in the better position to
determine whether the officer’s description of the unsafe condition was credible,
especially in light of the lack of other evidence. Id. at ¶ 17.
{¶11} But in this case, the trial court found the officers’ testimony to be
credible. Both Officer Colonel and Officer Horner testified that the crack made the car
unsafe. Officer Colonel articulated her suspicion as follows:
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OHIO FIRST DISTRICT COURT OF APPEALS
It’s against the law in the state of Ohio to have a cracked or blurred
windshield. * * * To obscure the driver’s vision. * * * It was close to
where the driver’s eyesight would have been, and you could get a glare
or something. If he was in an accident, I don’t know you know, if he
was on a head-on accident, I don’t know how that glass would shatter
on the passengers in the vehicle.
And Officer Horner echoed her concerns:
Well, it was a pretty good crack. And the only way I would pull it over
if it was in the driver view. So it was also in the driver view. I believe it
went from the driver all the way across.
Officer Horner also testified that the crack was big enough for him to see through the
rear window of the car and that “[i]t was more than just a simple crack.”
{¶12} Here, unlike the case cited by M.M., the magistrate found credible the
officers’ testimony that the crack made the car unsafe. Furthermore, the officers set
forth an objectively reasonable basis for their belief that the windshield presented a
safety concern. We conclude that the court’s findings were supported by competent
credible evidence. See State v. Burnside, 100 Ohio St. 3d 152, 155, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. The first assignment of error is overruled.
III. Carrying a Concealed Weapon
{¶13} M.M.’s second assignment of error asserts that his adjudication for CCW
was based on insufficient evidence. He argues that he could not be found guilty of
carrying a concealed weapon because the gun was determined to be inoperable, and that
the state did not present sufficient evidence that the gun was concealed.
{¶14} M.M. was charged with “knowingly carry[ing] or hav[ing], concealed on
[his person] * * * [a] deadly weapon other than a handgun.” R.C. 2923.12(A). To be a
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OHIO FIRST DISTRICT COURT OF APPEALS
deadly weapon, the gun must be (1) “capable of inflicting death” and (2) either “designed
or specially adapted for use as a weapon” or “possessed, carried, or used as a weapon.”
R.C. 2923.11(A). As to the first element, Officer Colonel testified that the weight of
the gun was such that it could be used as a bludgeon to inflict death. There was no
question that the second element was met: the gun was designed as a weapon.
{¶15} Despite the evidence presented at trial, M.M. urges us to follow the
lead of the Second Appellate District, which requires that an inoperable gun be in
fact used as a bludgeon in order for it to be considered a “deadly weapon.” See State
v. Macias, 2d Dist. Drake No. 1562, 2003-Ohio-1565, ¶ 37. But we decline to read an
additional requirement into the plain language of the statute. See In re J.T., 1st Dist.
Hamilton No. C-130434 (Feb. 7, 2014), appeal accepted, 139 Ohio St. 3d 1416, 2014-
Ohio-2487, 10 N.E.3d 737. Here, the state presented sufficient evidence that the gun
was a deadly weapon as defined in R.C. 2923.11(A).
{¶16} M.M. also argues that the state did not put forth sufficient evidence
that the gun was concealed because Officer Colonel testified that when the windows
of the car were rolled down, she could easily see the handle of the gun in M.M.’s
waistband. A gun is concealed if it is “so situated not to be discernible by ordinary
observation by those near enough to see it if it were not concealed[.]” State v. Davis,
15 Ohio App. 3d 64, 64-65, 472 N.E.2d 751 (1st Dist.1984), quoting State v. Pettit, 20
Ohio App. 2d 170, 173-174, 252 N.E.2d 325 (4th Dist.1969). Even a partially
concealed gun can be found to be “concealed” under R.C. 2923.12. State v. Almalik,
41 Ohio App. 3d 101, 534 N.E.2d 898 (8th Dist.1987) (butt of gun visible from under
seat after defendant exited car). Here, the testimony was that Officer Colonel did not
see the gun when M.M. exited the car the first time. Rather, only after the windows
in the car were unrolled, as M.M. “was still readjusting himself,” did Officer Colonel
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OHIO FIRST DISTRICT COURT OF APPEALS
see the handle. The state adduced substantial, credible evidence from which the trier
of fact could have reasonably concluded that the state had proved beyond a
reasonable doubt the elements of CCW. See State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. The second assignment of error is
overruled.
IV. The CCW Adjudication was Not Barred by Double Jeopardy
{¶17} In his third assignment of error, M.M. asserts that his delinquency
adjudication for CCW was barred by the Double Jeopardy Clauses of the Ohio and
United States Constitutions. “[T]he protection of the Double Jeopardy Clause by its
terms applies only if there has been some event, such as an acquittal, which
terminates the original jeopardy.” Richardson v. U.S., 468 U.S. 317, 325, 104 S. Ct.
3081, 82 L. Ed. 2d 242 (1984). M.M. contends that this event happened when the
trial court signed off on the magistrate’s decision. We are not persuaded.
{¶18} A review of the rule governing proceedings before magistrates is
instructive. Under Juv.R. 40(D)(3)(b)(i), a party can file an objection to a
magistrate’s decision within 14 days of the filing of the decision. The trial court may
enter judgment on a magistrate’s decision within that 14-day period or after its
expiration. Juv.R. 40(D)(4)(e)(i). But if the court enters a judgment and a party
later files objections, “the timely filing of objections to the magistrate’s decision shall
operate as an automatic stay of execution of the judgment until the court disposes of
those objections and vacates, modifies, or adheres to the judgment previously
entered.” Id. When objections are filed, the court “shall undertake an independent
review as to the objected matters[.]” Juv.R. 40(D)(4)(d). That is what happened
here. The magistrate’s decision was entered on September 10, 2014, and signed by
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OHIO FIRST DISTRICT COURT OF APPEALS
the trial court. The state filed its objections the next day, staying the judgment of the
court.
{¶19} The Second Appellate District considered the effect of a trial court’s
adoption of a magistrate’s delinquency adjudication prior to objections being filed
and concluded that jeopardy did not attach. In re C.B., 2d Dist. Montgomery No.
23615, 2010-Ohio-2129, ¶ 41. The court explained that a trial court’s adoption of a
magistrate’s decision within the 14-day period for objections
is preliminary or tentative in nature, and it cannot be allowed to
replace or negate the trial court judge’s de novo review mandated by
Juv.R. 40(D)(4). In fact, by acknowledging the right of either party to
object, the court puts the parties on notice that the finality of the order
is dependent upon the trial court’s de novo review of any timely
objections, as required by the Juvenile Rules.
Id. at ¶ 38.
{¶20} M.M. points to two cases decided years earlier that had reached the
opposite conclusion. See In re Phommarath, 10th Dist. Franklin No. 95APF05-539,
1995 Ohio App. LEXIS 5089 (Nov. 14, 1995); In re Donald Joseph M., 6th Dist.
Sandusky No. S-98-058, 1999 Ohio App. LEXIS 4316 (Sept. 17, 1999). These cases
are at least arguably distinguishable because they were decided under prior versions
of Juv.R. 40. Regardless, we find the Second Appellate District’s logic in C.B. to be
persuasive and consistent with the current version of the rule.
{¶21} Here, as in C.B., the court’s initial adoption of the magistrate’s
decision was tentative. The state’s timely objection stayed the judgment dismissing
the CCW charge for the court’s independent review. Jeopardy did not attach until
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OHIO FIRST DISTRICT COURT OF APPEALS
after the court issued its decision following the requisite independent review. The
third assignment of error is overruled
V. There was Sufficient Evidence of Obstructing and Resisting Arrest
{¶22} We consider the final assignments of error together. In the fourth,
M.M. asserts that the state did not present sufficient evidence of obstruction of
official business, and in the fifth, he asserts that the state did not present sufficient
evidence of resisting arrest. The gist of both assignments is that M.M. could not be
delinquent for obstructing or resisting if the initial stop of the car was unlawful. But
we have concluded that the stop was lawful. Our review of the record reveals that the
state adduced substantial, credible evidence from which the court could have
reasonably concluded that the state had proved beyond a reasonable doubt the
elements of obstructing official business and resisting arrest. See Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The fourth and fifth
assignments of error are overruled.
{¶23} We therefore affirm the judgments of the juvenile court.
Judgments affirmed.
CUNNINGHAM, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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