MATIA, J.
Defendant-appellant, Mildon Ball, appeals from his conviction for the offense of possessing criminal tools. In addition, the appellant appeals from the judgment of the trial court which denied the appellant's motion to suppress. The appellant's appeal is well taken.
I. THE FACTS
A. THE INVESTIGATORY STOP AND WARRANTLESS SEARCH
On October 31, 1988, two members of the Cleveland Police Department were on patrol in the Outhwaite projects located at East 55 and Woodland Avenue. At 10:45 p.m., the police officers observed a van, which con
tained two individuals (the appellant and George Chandler), parked in a vacant lot. Upon observing some movement in the van, the police officers ordered the appellant and George Chandler to exit the van and further conducted a search of the interior of the van. As a result of the search, a brown bag containing cocaine, talwin, needles, syringes and money was discovered between the front seats of the van.
B. THE INDICTMENT
On December 14, 1988, the appellant was indicted by the grand jury of Cuyahoga County for one count of drug abuse (possession of cocaine) in violation of R.C. 2925.11, one count of drug abuse (possession of talwin) in violation of R.C. 2925.11, one count of drug law violation (persons who may sell, deliver, distribute and possess dangerous drugs) in violation of R.C. 4729.51, and one count of possessing criminal tools (syringes) in violation of R.C. 2923.24.
C. THE ARRAIGNMENT
On December 22, 1988, the appellant was arraigned wherein a plea of not guilty was entered to all four counts of the indictment.
D. THE HEARING ON THE MOTION TO SUPPRESS
On March 10, 1989, the trial court conducted a hearing with regard to the appellant's motion to suppress all evidence as seized by the Cleveland Police in conjunction with the charged offenses of drug law violations and possessing criminal tools. At the conclusion of the motion hearing, the trial court denied the appellant's motion to suppress.
E. THE JURY TRIAL
On March 14, 1989, a jury trial was commenced with regard to the four counts of the indictment. At the conclusion of the trial, the jury found the appellant not guilty of drug abuse (possession of cocaine), not guilty of drug abuse (possession of talwin) and not guilty of drug law violation (persons who may sell, deliver, distribute and possess dangerous drugs). The jury did find the appellant guilty of the offense of possessing criminal tools (syringes).
F. THE SENTENCE OF THE TRIAL COURT
On April 6, 1989, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of three years to five years.
G. THE APPELLANT'S TIMELY APPEAL
Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of possessing criminal tools and the denial of the motion to suppress.
II. THE FIRST ASSIGNMENT OF ERROR
The appellant's first assignment of error is that:
"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE HAD BEEN OBTAINED AS THE RESULT OF AN UNREASONABLE INVESTIGATORY SEARCH AND SEIZURE IN VIOLATION OF APPELLANT'S RIGHTS UNDER ARTICLE I SECTION FOURTEEN OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE • UNITED STATES CONSTITUTION."
A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED THE MOTION TO SUPPRESS
The appellant, in his initial assignment of error, argues that the trial court erred in denying the motion to suppress. Specifically, the appellant argues that the investigatory stop conducted by the police was improper since there existed no specific and articulable facts to warrant a lawful investigatory stop. This assignment of error is well taken.
B. EVIDENCE ADDUCED AT THE MOTION TO SUPPRESS HEARING
As stated previously, the trial court conducted a hearing with regard to the appellant's motion to suppress. During the course of the hearing, testimony was adduced from one of the original police officers that conducted the warrantless search of the van in which the illegal drugs and contraband were discovered. Officer Gneu testified that:
1) Officer Gneu had been a police officer for twenty years and a member of the SWAT team for ten years (Tr. 18);
• 2) on October 31, 1988, Officer Gneu and his partner were assigned to patrol the Outhwaite Projects located at East 55 and Woodland (Tr. 19);
3) the purpose of the patrol was to conduct sweeps of the area in order to try and collect drug dealers (Tr. 19);
4) at approximately 10:45 p.m., a van was observed, parked in a vacant field (Tr. 19, 20);
5) two individuals were observed moving around in the van (Tr. 20);
6) the two occupants of the van were ordered out, hand-cuffed and searched (Tr. 20, 21);
7) suspicious activity formed the basis for the investigatory stop and the warrantless search; and
8) a search of the interior of the van resulted in the discovery of a small brown bag which contained syringes, needles, pills and money (Tr. 24).
C. TRIAL COURT'S DENIAL OF THE MOTION TO SUPPRESS
At the close of the hearing, the trial court denied the appellant's motion to suppress. The trial court based its denial of the motion to suppress upon the application of
State v. Bobo
(1988), 37 Ohio St. 3d 171.
D. STANDARD FOR CONDUCTING A LAWFUL INVESTIGATORY STOP
In order to conduct a lawful investigatory stop, the investigating police officer must be able to point to specific and articulable facts which when taken together with rational inferences from those facts reasonably warrants the investigatory stop.
Adams v. Williams
(1972), 407 U.S. 143;
Terry v. Ohio
(1968), 392 U.S. 1. In addition, the Supreme Court of the United States, in
United States v. Cortez
(1981), 449 U.S. 411, examined the issue of a permissible investigatory stop arid held that:
"The idea that an assessment of the whole picture must yield particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.
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MATIA, J.
Defendant-appellant, Mildon Ball, appeals from his conviction for the offense of possessing criminal tools. In addition, the appellant appeals from the judgment of the trial court which denied the appellant's motion to suppress. The appellant's appeal is well taken.
I. THE FACTS
A. THE INVESTIGATORY STOP AND WARRANTLESS SEARCH
On October 31, 1988, two members of the Cleveland Police Department were on patrol in the Outhwaite projects located at East 55 and Woodland Avenue. At 10:45 p.m., the police officers observed a van, which con
tained two individuals (the appellant and George Chandler), parked in a vacant lot. Upon observing some movement in the van, the police officers ordered the appellant and George Chandler to exit the van and further conducted a search of the interior of the van. As a result of the search, a brown bag containing cocaine, talwin, needles, syringes and money was discovered between the front seats of the van.
B. THE INDICTMENT
On December 14, 1988, the appellant was indicted by the grand jury of Cuyahoga County for one count of drug abuse (possession of cocaine) in violation of R.C. 2925.11, one count of drug abuse (possession of talwin) in violation of R.C. 2925.11, one count of drug law violation (persons who may sell, deliver, distribute and possess dangerous drugs) in violation of R.C. 4729.51, and one count of possessing criminal tools (syringes) in violation of R.C. 2923.24.
C. THE ARRAIGNMENT
On December 22, 1988, the appellant was arraigned wherein a plea of not guilty was entered to all four counts of the indictment.
D. THE HEARING ON THE MOTION TO SUPPRESS
On March 10, 1989, the trial court conducted a hearing with regard to the appellant's motion to suppress all evidence as seized by the Cleveland Police in conjunction with the charged offenses of drug law violations and possessing criminal tools. At the conclusion of the motion hearing, the trial court denied the appellant's motion to suppress.
E. THE JURY TRIAL
On March 14, 1989, a jury trial was commenced with regard to the four counts of the indictment. At the conclusion of the trial, the jury found the appellant not guilty of drug abuse (possession of cocaine), not guilty of drug abuse (possession of talwin) and not guilty of drug law violation (persons who may sell, deliver, distribute and possess dangerous drugs). The jury did find the appellant guilty of the offense of possessing criminal tools (syringes).
F. THE SENTENCE OF THE TRIAL COURT
On April 6, 1989, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of three years to five years.
G. THE APPELLANT'S TIMELY APPEAL
Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of possessing criminal tools and the denial of the motion to suppress.
II. THE FIRST ASSIGNMENT OF ERROR
The appellant's first assignment of error is that:
"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE HAD BEEN OBTAINED AS THE RESULT OF AN UNREASONABLE INVESTIGATORY SEARCH AND SEIZURE IN VIOLATION OF APPELLANT'S RIGHTS UNDER ARTICLE I SECTION FOURTEEN OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE • UNITED STATES CONSTITUTION."
A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED THE MOTION TO SUPPRESS
The appellant, in his initial assignment of error, argues that the trial court erred in denying the motion to suppress. Specifically, the appellant argues that the investigatory stop conducted by the police was improper since there existed no specific and articulable facts to warrant a lawful investigatory stop. This assignment of error is well taken.
B. EVIDENCE ADDUCED AT THE MOTION TO SUPPRESS HEARING
As stated previously, the trial court conducted a hearing with regard to the appellant's motion to suppress. During the course of the hearing, testimony was adduced from one of the original police officers that conducted the warrantless search of the van in which the illegal drugs and contraband were discovered. Officer Gneu testified that:
1) Officer Gneu had been a police officer for twenty years and a member of the SWAT team for ten years (Tr. 18);
• 2) on October 31, 1988, Officer Gneu and his partner were assigned to patrol the Outhwaite Projects located at East 55 and Woodland (Tr. 19);
3) the purpose of the patrol was to conduct sweeps of the area in order to try and collect drug dealers (Tr. 19);
4) at approximately 10:45 p.m., a van was observed, parked in a vacant field (Tr. 19, 20);
5) two individuals were observed moving around in the van (Tr. 20);
6) the two occupants of the van were ordered out, hand-cuffed and searched (Tr. 20, 21);
7) suspicious activity formed the basis for the investigatory stop and the warrantless search; and
8) a search of the interior of the van resulted in the discovery of a small brown bag which contained syringes, needles, pills and money (Tr. 24).
C. TRIAL COURT'S DENIAL OF THE MOTION TO SUPPRESS
At the close of the hearing, the trial court denied the appellant's motion to suppress. The trial court based its denial of the motion to suppress upon the application of
State v. Bobo
(1988), 37 Ohio St. 3d 171.
D. STANDARD FOR CONDUCTING A LAWFUL INVESTIGATORY STOP
In order to conduct a lawful investigatory stop, the investigating police officer must be able to point to specific and articulable facts which when taken together with rational inferences from those facts reasonably warrants the investigatory stop.
Adams v. Williams
(1972), 407 U.S. 143;
Terry v. Ohio
(1968), 392 U.S. 1. In addition, the Supreme Court of the United States, in
United States v. Cortez
(1981), 449 U.S. 411, examined the issue of a permissible investigatory stop arid held that:
"The idea that an assessment of the whole picture must yield particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions-inferences and deductions that might well elude an untrained person.
"The second element contained in the idea that
an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing."
(Emphasis added.) United
States v. Cortez, supra,
at 419.
E. NO BASIS FOR POLICE TO CONDUCT A LAWFUL INVESTIGATORY STOP
In the case
sub judice,
the trial court erred by denying the appellant's motion to suppress. The testimony of the police officer clearly failed to establish the existence of any specific and articulable facts which when taken together would have resulted in the inference that the appellant had been involved in any type of recognizable criminal activity. The fact that the appellant was observed sitting in a van, absent other specific facts or circumstances that inferred criminal activity, was not sufficient to warrant the initial investigatory stop.
F.
STATE v. BOBO
NOT APPLICABLE
It must also be noted that the trial court's application of
State v. Bobo, supra,
to the case herein was in error. The Supreme Court of Ohio, in
State v. Bobo, supra,
established that an investigatory stop must be viewed in light of the totality of the surrounding circumstances. The circumstances cited in
Bobo
involved the following:
1) the area in which the investigatory stop occurred was an area of very heavy drug activity in which weapons were prevalent;
2) it was night time, when weapons could be easily hidden;
3) the investigatory officers had numerous years of experience in the surveillance of drug and weapons activity;
4) the investigating officers had knowledge of how drug transactions occurred in the area;
5) the investigating officers observed the defendant disappear and reappear from view;
6) the investigating officers were experienced in recovering weapons or drugs suggested that the defendant was attempting to conceal drugs or weapons; and
7) the investigating officers were away from the protection of their vehicle.
A review of the testimony adduced at the suppression hearing clearly reveals that there existed very few if any similarities with
Bobo.
In fact, the evidence and testimony adduced at the suppression hearing failed to establish that:
1) the area was heavily infested with drug and weapons activity;
2) the investigating officers were thoroughly experienced in the area of drugs and weapons arrests;
3) the investigating officers knew how drugs were sold in the area;
4) the investigating officers observed the appellant attempt to hide something in the van; and
5) the investigating officers were experienced in the recovery of weapons and drugs and that the movements of the appellant indicated an attempt to conceal drugs or weapons. Clearly,
State v. Bobo, supra,
as based upon the testimony adduced at the suppression hearing, was not applicable.
G. CONCLUSION
Therefore, the trial court's denial of the appellant's motion to suppress was error and the appellant's first assignment of error is well taken. It should also be noted that the appellant's conviction for the offense of possessing criminal tools, as based upon the unlawfully seized syringes, needles, cocaine, talwin, and money must be vacated. Cf.
State v. Chandler
(November 22, 1989), Cuyahoga App. No. 57731, unreported.
III. THE SECOND AND THIRD ASSIGNMENTS OF ERROR
Having a common basis in law and fact, the appellant's second and third assignments of error shall be considered simultaneously.
The appellant's second assignment of error is that:
"THE APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHERE THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A) WHERE THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE THAT APPELLANT, A PASSENGER IN THE CO-DEFENDANT'S VEHICLE, AIDED AND ABBETTED (SIC) THE CODEFENDANT IN POSSESSION OF CRIMINAL TOOLS.”
The appellant's third assignment of error is that:
"THE APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHERE THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A), WHERE APPELLANT'S CONVICTION FOR POSSESSION OF CRIMINAL TOOLS WAS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO PROVE EVERY ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT."
A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED MOTIONS FOR ACQUITTAL
The appellant, through his second and third assignments of error, argues that the trial court erred in denying the two Crim. R. 29(A) motions for acquittal. Specifically, the appellant argues that the trial court erred in denying the motions for acquittal as to the charged offense of possessing criminal tools. The appellant's second and third assignments of error are not well taken.
B. SECOND AND THIRD ASSIGNMENTS OF ERROR ÁRE MOOT
As dealt with in the appellant's first assignment of error, the failure of the trial court to grant the appellant's motion to suppress resulted in an improper conviction and mandates a reversal of the appellant's conviction for the offense of possessing criminal tools. Thus, in effect, the appellant's second and third assignments of error are moot.
C. THIS COURT IS REQUIRED TO REVIEW MOOT ASSIGNMENTS OF ERROR
This court, however, may not treat an assignment of error as being "moot" or "irrelevant" after deciding the appeal on another issue.
Criss v. Springfield Twp.
(1989), 43 Ohio St. 3d 83. A review of the appellant's second and third assignments of error shall be made assuming that the appellant's motion to suppress was properly denied by the trial court.
D. CRIM. R. 29(A) MOTION FOR ACQUITTAL
Crim. R. 29(A), which deals with a motion for acquittal, provides that:
"*** The court on motiop of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case."
In addition, the Supreme Court of Ohio, in
State v. Bridgeman
(1978), 55 Ohio St. 2d 261, established that a trial court shall not grant a Crim. R. 29(A) motion for acquittal where the evidence demonstrates that reasonable minds can reach different conclusions with regard to whether the elements of an offense have been proved beyond a reasonable doubt.
"Pursuant to Crim. R. 29(A), the court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State
v. Bridgeman, supra,
syllabus.
E. TRIAL COURT PROPERLY DENIED MOTIONS FOR ACQUITTAL
Herein, the record clearly reveals that the state of Ohio presented sufficient evidence at trial so that reasonable minds could reach different conclusions as to whether each and every elerhent of the offense of possessing criminal tools had been proved beyond a reasonable doubt.
Thus, assuming that the appellant's motion to suppress was properly denied by the trial court, the appellant's second and third assignments of error are not well taken.
IV. THE FOURTH ASSIGNMENT OF ERROR
The appellant's fourth assignment of error is that:
"THE APPELLANT WAS ERRONEOUSLY CONVICTED AND SENTENCED FOR THE CRIME OF POSSESSION OF CRIMINAL TOOLS WHERE THE CONDUCT ALLEGED ALSO FALLS UNDER A SPECIFIC STATUTORY PROVISION FOR POSSESSING DRUG ABUSE INSTRUMENTS THE APPELLANT IS ENTITLED TO BE SENTENCED FOR THE LESSER OFFENSE."
A. ISSUE RAISED: APPELLANT IMPROPERLY CONVICTED OF POSSESSING CRIMINAL TOOLS
The appellant, in his fourth assignment of error, argues that he was improperly convicted and sentenced for the offense of possessing criminal tools vis-a-vis syringes as found in a brown paper bag. Specifically, the appellant argues that he could only be convicted and sentenced for the offense of possessing drug abuse instruments pursuant to R.C. 2925.12 as a result of possession of the syringes.
This assignment of error is well taken.
B. ASSIGNMENT OF ERROR IS MOOT BUT REVIEW IS MANDATED
As dealt with in the appellant's second and third assignments of error, the finding that the trial court erred in denying the appellant's motion to suppress has rendered the fourth assignment of error moot. However, pursuant to the application of
Criss v. Springfield Twp., supra,
this court must review the appellant's fourth assignment of error.
C. POSSESSION OF SYRINGES IS A MISDEMEANOR AND NOT A FELONY
The issue raised by the appellant, whether possession of syringes could only be brought as a misdemeanor violation of R.C. 2925.12, was addressed by this court in
State v. Chandler, supra.
This court held that possession of syringes could only result in a misdemeanor conviction pursuant to R.C. 2925.12 (possessing drug abuse instruments).
"Appellant is absolutely correct in his position that his alleged possession of syringes could not be punished as anything other than a misdemeanor under R.C. 2925.12 and could not constitute possession of criminal tools under R.C. 2923.24. Appellant rightly concludes that his conviction under R.C. 2923.24 must herefore be vacated.
"The statutes read in pertinent part as follows: ***
"In
State v. Volpe
(1988), 38 Ohio St. 3d 191, the Supreme Court discussed the two statutes and the narrower scope of R.C. 2915.01(A), which criminalized as a misdemeanor the possession of any gambling device with intent to engage in gambling activities. The defendants in
Volpe
had been convicted under R.C. 2923.24 (Possessing Criminal Tools). The Supreme Court ruled that such felony convictions under R.C, 2923.24 could not stand in light of the specific misdemeanor offense defined in R.C. 2915.02(A) (5). In reversing the convictions, the court stated:
"In
Volpe
the Supreme Court, in dicta, specifically referred to R.C. 2925.12 (Possessing Drug Abuse Instrument) as taking precedence over R.C. 2923.24. Further, and more importantly, the rationale of
Volpe
applies
completely to appellant's conviction. As in
Volpe,
we are dealing in the present case with a conflict between a general statute, R.C. 2923.24, and a special statute, R.C. 2925.12. In
Volpe,
as in the present case, the statutes are irreconcilable and provide 'different penalties for the same conduct.'
Volpe
at 193. Therefore, R.C. 2923.24 cannot take precedence over R.C. 2925.12, the later enacted more narrow statute. We agree in toto with the U.S. Magistrates following statement and adopt it as our holding. 'The ultimate holding of the Ohio Supreme Court must apply to this case, by simply substituting reference in the
Volpe
decision to R.C. 2915.02(A) (5) with reference to R.C. 2925.12 and reference to 'a gambling device' with reference to 'a syringe', so that the following rule would evolve: Given that the General Assembly clearly enacted [R.C. 2925.12(A)] to reach criminal possession and control of [a syringe] and classified such conduct as a misdemeanor of the [second] degree under [R.C. 2925.12(c)], we hold that R.C. 2923.24, a general statute prohibiting possession and control of criminal tools and classifying such conduct as a fourth degree felony, cannot be used to charge and convict a person of possessing and controlling [a syringe]."' (Footnote omitted.)
State v. Chandler, supra,
at 4.
As in
Chandler,
the appellant herein was improperly convicted of the offense of possessing criminal tools (syringes) and was also improperly sentenced. The appellant's possession of syringes could have only resulted in a conviction for the offense of possessing drug abuse instruments in violation of R.C. oqof; 1 1
D. CONCLUSION
Thus, the appellant was improperly convicted of the offense of possessing criminal tools in violation of R.C. 2923.24 and the appellant's fourth assignment of error is well taken. The judgment of the trial court, which denied the appellant's motion to suppress is reversed, the appellant's conviction for the offense of possessing criminal tools is vacated, and the matter is remanded to the trial court for further proceedings. Reversed and vacated.
NAHRA, J., concurs with concurring opinion.
KRUPANSKY, P.J., dissents with dissenting opinion.