Nahra, Judge.
Lascelle Hart, defendant-appellant, appeals his convictions for carrying a concealed weapon with a violence specification and having a weapon while under disability with a violence specification.
Prior to trial, defendant filed a motion to suppress evidence found in a search of the automobile in which he was a passenger. Because the case was being tried to the court, the trial judge decided to rule on the motion after hearing the trial testimony.
At trial, Officer Ollie Rogers testified that on December 9, 1986 in the early morning, he and his partner Carl Walker were on routine patrol in the area of East 131st and Gay Avenue when he observed a vehicle in which he saw a lot of hands moving, with one passenger very close to the other one. The officers began to follow the car. When the vehicle came to a stoplight, they observed the individuals switch seats. Officer Rogers further testified that when the light changed, the officers decided to make a routine traffic stop. They approached the car and a female, Sarienya Thomas, in the driver’s seat, rolled down the window and, upon questioning, stated that nothing was wrong. Officer Rogers then shined his flashlight first in the back and then in the front of the car and observed a gun underneath the female’s foot. The gun was seized and is the basis of defendant’s charges. Officer Rogers identified the defendant as being an occupant in the automobile. Officer Rogers stated that no traffic offenses were committed prior to stopping the automobile. He testified that the vehicle was stopped because of suspicions raised by observing the occupants switching seats. Officer Rogers stated that he felt that maybe the occupants were doing something criminal or a party was holding someone hostage or somebody could be in trouble.
Officer Samuel Joel Walker essentially corroborated the testimony of Officer Rogers, though he testified that he observed the occupants switching places when the police car first passed the suspect’s vehicle.
The court denied defendant’s motion to suppress, ruling that the officers had probable cause to stop the automobile and that once the automobile was stopped, the weapon was in a position to be seen.
Sarienya Thomas then testified for the defense. She stated that the automobile belonged to her sister. She testified that she and the defendant had been sitting in the car in her driveway from about 10:30 p.m. to about 3:00 a.m. or 3:45 a.m. when she decided to go for a ride. Thomas was driving the car. She stated that she and the defendant were “fooling around” in the car. She testified that they were sitting close together, but denied that they switched seats. Thomas further testified that she did not see a gun in the car and she did not know where the gun came from.
The defendant was found guilty of carrying a concealed weapon and having a weapon while under disability, both with specifications.
The defendant timely appeals, raising three assignments of error.
I
Appellant’s first assignment of error is:
“There is constitutionally insufficient evidence to sustain appellant’s convictions for carrying a concealed weapon and having weapons while under disability.”
Appellant challenges the court’s verdict in regard to his convictions for carrying a concealed weapon and having a weapon while under disability as being based upon insufficient evidence.
Where the record shows that a conviction was based upon sufficient evidence, an appellate court may not reverse the verdict of the trier of fact.
State v. DeHass
(1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. A reviewing court must be satisfied that there is sufficient evidence on all elements of the offense charged to satisfy reasonable minds of the guilt of the defendant.
Sandoffsky v. State
(1928), 29 Ohio App. 419, 163 N.E. 634.
Evidence may be direct or circumstantial. “Circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused’s innocence in order to support a finding of guilt.”
State v. Kulig
(1974), 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, syllabus.
To sustain a conviction for carrying a concealed weapon, the state had to prove beyond a reasonable doubt that the defendant knowingly carried or had
a weapon concealed on his person or concealed ready at hand. R.C. 2923.12. To sustain a conviction for having a weapon while under disability, the state had to prove beyond a reasonable doubt that the defendant knowingly had or carried a firearm. R.C. 2923.13.
Appellant argues that the circumstantial evidence produced at trial was not irreconcilable with the reasonable theory that the gun belonged to Thomas’s sister or someone else who had been in the car.
Based upon our review of the record, we agree that the circumstantial evidence presented by the state was not enough to infer, beyond a reasonable doubt, that the gun belonged to appellant. The gun was found in a car that belonged to the sister of the driver, on the driver’s side, in which appellant was a passenger. No other evidence connected appellant with the gun. This circumstantial evidence is not irreconcilable with a reasonable theory of the appellant’s innocence.
Accordingly, appellant’s first assignment of error has merit.
II
Appellant’s second assignment of error is:
“The trial court erred by overruling appellant’s motion to suppress evidence when police seized the evidence as the result of an illegal investigative detention and thereby deprived appellant of his constitutional rights as guaranteed by the Fourth and Fourteenth Amendments.”
Appellant argues that his initial detention and the subsequent search of the car and seizure of the gun were constitutionally invalid.
The United States Supreme Court has consistently held that an investigative stop can be made on less than probable cause to arrest, but there must be reasonable suspicion that someone may be involved in criminal activity. In justifying the investigative stop, the “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Terry v. Ohio
(1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. As the court stated in
Adams v. Williams
(1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612:
“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response * * *.
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Nahra, Judge.
Lascelle Hart, defendant-appellant, appeals his convictions for carrying a concealed weapon with a violence specification and having a weapon while under disability with a violence specification.
Prior to trial, defendant filed a motion to suppress evidence found in a search of the automobile in which he was a passenger. Because the case was being tried to the court, the trial judge decided to rule on the motion after hearing the trial testimony.
At trial, Officer Ollie Rogers testified that on December 9, 1986 in the early morning, he and his partner Carl Walker were on routine patrol in the area of East 131st and Gay Avenue when he observed a vehicle in which he saw a lot of hands moving, with one passenger very close to the other one. The officers began to follow the car. When the vehicle came to a stoplight, they observed the individuals switch seats. Officer Rogers further testified that when the light changed, the officers decided to make a routine traffic stop. They approached the car and a female, Sarienya Thomas, in the driver’s seat, rolled down the window and, upon questioning, stated that nothing was wrong. Officer Rogers then shined his flashlight first in the back and then in the front of the car and observed a gun underneath the female’s foot. The gun was seized and is the basis of defendant’s charges. Officer Rogers identified the defendant as being an occupant in the automobile. Officer Rogers stated that no traffic offenses were committed prior to stopping the automobile. He testified that the vehicle was stopped because of suspicions raised by observing the occupants switching seats. Officer Rogers stated that he felt that maybe the occupants were doing something criminal or a party was holding someone hostage or somebody could be in trouble.
Officer Samuel Joel Walker essentially corroborated the testimony of Officer Rogers, though he testified that he observed the occupants switching places when the police car first passed the suspect’s vehicle.
The court denied defendant’s motion to suppress, ruling that the officers had probable cause to stop the automobile and that once the automobile was stopped, the weapon was in a position to be seen.
Sarienya Thomas then testified for the defense. She stated that the automobile belonged to her sister. She testified that she and the defendant had been sitting in the car in her driveway from about 10:30 p.m. to about 3:00 a.m. or 3:45 a.m. when she decided to go for a ride. Thomas was driving the car. She stated that she and the defendant were “fooling around” in the car. She testified that they were sitting close together, but denied that they switched seats. Thomas further testified that she did not see a gun in the car and she did not know where the gun came from.
The defendant was found guilty of carrying a concealed weapon and having a weapon while under disability, both with specifications.
The defendant timely appeals, raising three assignments of error.
I
Appellant’s first assignment of error is:
“There is constitutionally insufficient evidence to sustain appellant’s convictions for carrying a concealed weapon and having weapons while under disability.”
Appellant challenges the court’s verdict in regard to his convictions for carrying a concealed weapon and having a weapon while under disability as being based upon insufficient evidence.
Where the record shows that a conviction was based upon sufficient evidence, an appellate court may not reverse the verdict of the trier of fact.
State v. DeHass
(1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. A reviewing court must be satisfied that there is sufficient evidence on all elements of the offense charged to satisfy reasonable minds of the guilt of the defendant.
Sandoffsky v. State
(1928), 29 Ohio App. 419, 163 N.E. 634.
Evidence may be direct or circumstantial. “Circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused’s innocence in order to support a finding of guilt.”
State v. Kulig
(1974), 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, syllabus.
To sustain a conviction for carrying a concealed weapon, the state had to prove beyond a reasonable doubt that the defendant knowingly carried or had
a weapon concealed on his person or concealed ready at hand. R.C. 2923.12. To sustain a conviction for having a weapon while under disability, the state had to prove beyond a reasonable doubt that the defendant knowingly had or carried a firearm. R.C. 2923.13.
Appellant argues that the circumstantial evidence produced at trial was not irreconcilable with the reasonable theory that the gun belonged to Thomas’s sister or someone else who had been in the car.
Based upon our review of the record, we agree that the circumstantial evidence presented by the state was not enough to infer, beyond a reasonable doubt, that the gun belonged to appellant. The gun was found in a car that belonged to the sister of the driver, on the driver’s side, in which appellant was a passenger. No other evidence connected appellant with the gun. This circumstantial evidence is not irreconcilable with a reasonable theory of the appellant’s innocence.
Accordingly, appellant’s first assignment of error has merit.
II
Appellant’s second assignment of error is:
“The trial court erred by overruling appellant’s motion to suppress evidence when police seized the evidence as the result of an illegal investigative detention and thereby deprived appellant of his constitutional rights as guaranteed by the Fourth and Fourteenth Amendments.”
Appellant argues that his initial detention and the subsequent search of the car and seizure of the gun were constitutionally invalid.
The United States Supreme Court has consistently held that an investigative stop can be made on less than probable cause to arrest, but there must be reasonable suspicion that someone may be involved in criminal activity. In justifying the investigative stop, the “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Terry v. Ohio
(1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906. As the court stated in
Adams v. Williams
(1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612:
“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response * * *. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts
known to the officer at the time.”
Id.
at 145-146, 92 S.Ct. at 1923, 32 L.Ed.2d at 616-617.
These cases establish that there must be at least a reasonable and articulable suspicion that a vehicle and/or its driver is in violation of the law to justify an intrusion upon an individual.
Our review of the record demonstrates that the police were justified in initially detaining appellant as, according to their testimony, they suspected, by the actions of the occupants of the vehicle, that the occupants were engaged in criminal activity or an occupant was in distress. This was a reasonable suspicion based upon the facts known to the officers.
However, once the police ascertained that there was nothing wrong with the occupants, their inquiry should have ended there. Absent specific and articulable facts that further detention was reasonable, the police were not justified in continuing the detention and searching the vehicle. See
State v. Chatton
(1984), 11 Ohio St.3d 59, 11 OBR 250, 463 N.E.2d 1237. This case is analogous to
State v. Chatton, supra,
in which the Ohio Supreme Court held that a police officer, who detained an individual for a suspected traffic violation, does not have authority to further detain that individual to determine the validity of his driver’s license once the officer no longer has reason to suspect that individual is committing a traffic violation, absent some specific and articulable facts that the detention was reasonable.
Based upon the foregoing, the evidence seized in the search of the vehicle is constitutionally inadmissible. Therefore, the trial court erred in denying appellant’s motion to suppress.
Appellant’s second assignment of error is well-taken.
HI
Appellant’s third assignment of error is:
“The trial court erred by overruling appellant’s motion for new trial or in the alternative by not holding a hearing on the motion for new trial.”
Appellant argues that the trial court erred in overruling appellant’s motion for a new trial.
The record in the instant case fails to reveal appellant filed a motion for a new trial. The record contains neither the motion nor any entry by the court concerning the motion. In its review, this court is confined solely to the record on appeal. App.R. 12. Accordingly, appellant’s third assignment of error must fail.
The judgment of the court of common pleas is reversed and the cause is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Markus, J., concurs.
Krupansky, P.J., concurs in part and dissents in part.