[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
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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