State v. Almalik , 41 Ohio App. 3d 101 ( 1987 )

The defendant appeals from his jury trial conviction for carrying a concealed weapon. He complains that the court erroneously denied his motion to suppress evidence about the weapon, and that the evidence did not support his conviction. This court previously remanded the case for compliance with the defendant's request for findings and conclusions to support the denial of his motion to suppress. State v. Almalik (1986), 31 Ohio App. 3d 33, 31 OBR 48, 507 N.E.2d 1168. While the court purported to comply, its findings and conclusions address the merits of the jury's conviction, rather than the court's denial of the suppression motion. Hence, we should reverse and remand again for the entry of findings and conclusions to support the suppression ruling.

In our previous review of this case, the panel's opinion stated at 34, 31 OBR at 49-50, 507 N.E.2d at 1169-1170:

"Appellant [defendant] alleges that the state offered more than one theory to justify the search of the automobile, each of which has certain factual prerequisites. Appellant claims as error the court's failure to state its factual findings and, further, its failure to identify the theory upon which it relied.

"* * *

"A recent decision of the Supreme Court has made it clear that when requested to do so, a trial court must state its essential findings of fact on the record. Bryan v. Knapp (1986), 21 Ohio St. 3d 64 * * *.

"* * *

"* * * As in Bryan, without the trial court's factual findings this court cannot `properly review the propriety of the trial court's ruling.' * * * Accordingly, we are unable to reach the merits of appellant's second and third assignments of error [which are his remaining assignments on this second appeal]."

On remand, the trial court executed the following "Findings of Fact and Conclusions of Law":

"The Court based upon the testimony of the witnesses presented here and for purposes of the record makes the following findings of fact:

"1). That the .38 caliber S W Model 105 firearm found in the interior of the automobile driven by the defendant on 11/8/84 was partially hidden from the view of officer Timothy Richissin of the Cleveland Police Department, badge #1772.

"2). That only the butt of the weapon was within the ordinary vision of the officer.

"3). That the weapon was within the `lunge area' of the defendant while in the driver's seat of the automobile.

"4). That the weapon was completely hidden from the view of Officer Timothy Barrett of the Cleveland Police Department, badge #2565, who found same only after being told by his partner of the weapon's location.

"5). That the weapon contained six (6) live rounds of ammunition.

"CONCLUSIONS OF LAW "1). That the weapon involved in the instant cause was `concealed' within the meaning of O.R.C. 2923.12 and;

"2). That the weapon involved in the instant cause was a `deadly weapon' as defined in O.R.C. 2923.11."

These findings and conclusions address the merits of the charge that defendant was "carrying a concealed weapon" in violation of R.C. 2923.12. Since a jury determined the merits of the charge, the court had no occasion to render findings or conclusions about the charge itself. In fact, the jury had sufficient evidence to convict the defendant, if the exclusionary rule did not preclude any evidence about the weapon.

A weapon is concealed if ordinary observation would not reveal its presence, even if it is not completely invisible. State v.Coker (1984), 15 Ohio App. 3d 97, 98, 15 OBR 127, 128,472 N.E.2d 747, 748-749; State v. Pettit (1969), 20 Ohio App. 2d 170,173-174, 49 Ohio Op. 2d 200, 202, 252 N.E.2d 325, 328; State v.Lane (Dec. 3, 1981), Cuyahoga App. Nos. 43523 and 43505, unreported.

However, we are still unable to determine whether the trial court properly denied the defendant's motion to suppress the state's evidence about that weapon. The court has not explained why it found that the stop and the search were justified. The required findings must state (a) the legal reason(s) why the court decided the stop was proper, (b) the legal reason(s) why the court decided the subsequent search was proper, and (c) the factual circumstances which showed that each of those legal reasons was appropriate. See, e.g., United States v. Ross (1982),456 U.S. 798 (automobile exception); Michigan v. Long (1983),463 U.S. 1032 (stop and frisk); Texas v. Brown (1983), 460 U.S. 730 (plain view); New York v. Belton (1981), 453 U.S. 454 (search incident to arrest).

Consequently, we cannot properly resolve the defendant's two assignments of error. If there were no request for findings and conclusions about the suppression ruling, we could determine whether any version of the hearing evidence supports that ruling. Cf. Johnson v. Minardo (Oct. 15, 1981), Cuyahoga App. No. 43610, unreported. When a party properly requests such findings and conclusions, we must limit our review to the actual reasons which the court used to reach its ruling. Cf. In re Adoption of Gibson (1986), 23 Ohio St. 3d 170, 172-173, 23 OBR 336, 337-338, 492 N.E.2d 146, 147-148; Geraci v. Maddalena (Oct. 25, 1984), Cuyahoga App. No. 47964, unreported.

When the court provides required findings, we must determine whether the evidence supported the court's factual findings and whether those findings supported its legal conclusions. The state argues that the search was justified (a) because the weapon was in plain view of the searching officer, or (b) because the officer searched for his own protection. The record does not support a plain view search and seizure. The officer who found the gun had not seen it before he found it under the seat. The defense denied that the officers perceived any danger. Without the requested findings, we cannot determine whether the trial judge believed the officers' testimony.

From this record, we do not know the court's basis for its ruling on the suppression motion. Hence, we should reverse the defendant's conviction and remand the case for the court to enter findings and conclusions on the defendant's motion to suppress.