[Cite as State v. Suttle, 2026-Ohio-2478.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250434 TRIAL NO. B-2302893 Plaintiff-Appellee, :
vs. :
MICAH SUTTLE, : JUDGMENT ENTRY Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 6/30/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as State v. Suttle, 2026-Ohio-2478.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250434 TRIAL NO. B-2302893 Plaintiff-Appellee, :
vs. : OPINION
MICAH SUTTLE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 30, 2026
Connie Pillich, Hamilton County Prosecuting Attorney, and Norbert Wessels, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger Kirk, for Defendant-Appellant. [Cite as State v. Suttle, 2026-Ohio-2478.]
ZAYAS, Judge.
{¶1} After a jury trial, Micah Suttle was convicted of having weapons while
under a disability (“WUD”) and carrying concealed weapons (“CCW”). In four
assignments of error, Suttle contends the trial court erred by overruling his motions
to suppress, his convictions were not supported by sufficient evidence and contrary to
the manifest weight of the evidence, and the prosecutor committed misconduct by
shifting the burden of proof in closing arguments. For the following reasons, we affirm
the judgment of the trial court.
Factual Background
{¶2} Suttle was indicted for WUD and CCW. He filed a motion to suppress
challenging the search of his vehicle. After the trial court overruled the motion to
suppress, Suttle filed a second motion to suppress, arguing that his Miranda rights
were violated when the police asked him about guns. The court overruled the motion,
and Suttle proceeded to a jury trial. The jury convicted Suttle of both counts.
{¶3} Suttle filed a motion to suppress alleging that the search of his vehicle
violated the Fourth Amendment because the police did not have probable cause to
search his vehicle. In the motion, Suttle also argued that any statements given to
officers should be suppressed because he was unlawfully arrested and the statements
were not voluntarily made, made without the benefit of counsel, and made without
Miranda warnings. At the hearing, the parties agreed it was a warrantless search, and
the hearing was limited to whether the search was legal.
{¶4} A Cincinnati Police Department (“CPD”) sergeant testified that he
received a radio broadcast, while in Bond Hill, that someone in a silver vehicle with an
Ohio temporary tag had brandished a firearm while driving. The sergeant observed a
silver sedan with an Ohio temporary tag in the parking lot at a corner store on Paddock OHIO FIRST DISTRICT COURT OF APPEALS
Road. The sergeant pulled into the parking lot to observe the vehicle. At the time, the
sergeant was in plainclothes and driving an unmarked vehicle.
{¶5} The sergeant observed Suttle in the driver’s seat and a person exit from
the store and enter the vehicle. As the car drove off, Suttle and his two passengers gave
him the finger. The sergeant explained that many people in the neighborhood know
which cars the undercover officers drive and acknowledged that their conduct was not
illegal. When people give him the finger, it makes him pay more attention to them. In
this instance, the sergeant was observing Suttle because the car matched the
description of the suspect’s vehicle from the broadcast.
{¶6} After the vehicle left the store, the sergeant followed it and had another
officer query the license plate to determine if it was the suspect vehicle. Undercover
vehicles do not have computers, so he was unable to run the license plate number. The
vehicle pulled into a driveway not far from the store, and all three occupants exited
from the vehicle and walked down the street on the sidewalk. The sergeant’s body-
worn-camera (“BWC”) video was admitted into evidence.
{¶7} Suttle jaywalked across the street, and the sergeant gave him a verbal
warning without a citation. Then Suttle jaywalked again, and the sergeant decided to
issue a citation. A second plainclothes officer, who was now present on the scene,
placed Suttle under arrest because Suttle had open warrants. Suttle also had a pending
indictment for aggravated robbery.
{¶8} Suttle’s car was parked at the end of a driveway, blocking the sidewalk,
in violation of a city ordinance. The sergeant did not know whose house it was and
testified that Suttle did not pull into the back of the driveway. Suttle had claimed the
house was his residence, but the sergeant had no way to confirm that information. At
some point, the sergeant learned that Suttle’s vehicle was not the suspect car in the
4 OHIO FIRST DISTRICT COURT OF APPEALS
broadcast.
{¶9} The sergeant testified that after Suttle initially parked the vehicle, he
exited from the driver’s seat. Suttle walked away from the vehicle, then returned and
accessed the driver’s compartment. The police obtained Suttle’s car keys from him.
{¶10} The second officer authenticated his BWC video, and the State played
the video. The second officer had also observed Suttle exiting from the vehicle and
saw Suttle moving around in the vehicle. Then, he observed Suttle go back to the
vehicle, roll up the windows, and lock the car doors before again walking away from
the car.
{¶11} The second officer testified that he observed, and the video depicted,
marijuana shake all over the middle console and floorboard of the vehicle and a
designer marijuana bag between the passenger seat and the middle console. He
testified that designer marijuana bags are typical for marijuana traffickers to carry
their marijuana. At this time, marijuana was still illegal in Ohio. The officer believed
that Suttle was attempting to distance himself from the car.
{¶12} A recording of the search captured a third officer saying “gun” and
“here’s the box for it.” The third officer found the gun in the pocket of the driver’s
door.
{¶13} On cross-examination, the second officer testified that the protocol
since July 2019 was to confiscate small quantities of marijuana but not to charge folks
for amounts under 100 grams. He explained that “designer bags that we know that
they are used to sell marijuana in, that’s still illegal.” The officer decided to search the
vehicle to prevent the destruction of evidence. Although Suttle had been arrested,
anyone could access the vehicle by breaking into it and destroying the evidence.
{¶14} Suttle had misdemeanor warrants for traffic capiases. When he learned
5 OHIO FIRST DISTRICT COURT OF APPEALS
about the warrants, the second officer decided to arrest Suttle. When he saw the
marijuana and marijuana bag, he suspected trafficking. In his experience, drugs and
guns “go together.” Traffickers typically possess firearms to protect their drugs and
currency. The officer further testified that it adds to reasonable suspicion when a
person rolls up the windows and locks the car door. Suttle locked the vehicle and
walked away after the police were present, suggesting that Suttle attempted to distance
himself from the vehicle.
{¶15} The parties proceeded to closing arguments. The State argued that
exigent circumstances supported the search because it was a car, and the officers had
probable cause after observing marijuana and the trafficking indicator. Suttle argued
that there were no exigent circumstances because the car was parked and Suttle had
been arrested and no evidence could be destroyed. He further argued that the plain-
view exception did not apply based on the video, and that Cincinnati police were not
prosecuting marijuana crimes, so the officer did not have probable cause.
{¶16} The court overruled the motion finding that the officer observed
marijuana in plain view, giving him probable cause to search the vehicle.
{¶17} The night before trial, Suttle sought leave to file and filed a second
motion to suppress seeking to suppress an incriminating statement that he had made
after his arrest and prior to the administration of his Miranda warnings. The trial
court allowed the motion to proceed because it just concerned one statement, and “we
don’t need to bring the officers up.”
{¶18} At the hearing, Suttle explained that he sought to exclude his statement
admitting that his wife’s gun was probably in the car, prompted by the second officer’s
questioning whether any guns were in the vehicle. Suttle confirmed to the court that
the motion was limited to excluding that one statement.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The parties agreed to stipulate to the evidence after listening to a five-
minute clip of the second officer’s BWC video. After Suttle was placed under arrest,
the second officer approached him and informed him that he had seen marijuana in
the vehicle and was going to search the vehicle. The second officer asked, “Is there any
guns in the car, other than weed?” Suttle responded, “There wasn’t no weed in there.”
The officer told him about the marijuana shake and the baggie in the car and said, “The
car is going to be searched, is there any firearms?” Suttle responded, “It’s probably
my wife’s gun, but it’s registered to her.”
{¶20} Suttle argued that the statement should be suppressed because the
second officer had arrested Suttle, the second officer failed to inform him of his
Miranda rights, and the second officer’s question was designed to elicit an
incriminating statement.
{¶21} The State argued that the officers responded to a “gun run,” observed
marijuana in the car and were about to execute a search on the vehicle. The officers
were looking for a gun, and guns can be dangerous. The State further argued that the
question was asked for officer safety.
{¶22} The court overruled the motion after determining the question was
asked for officer safety. The court further explained that Glock’s have no safety, just a
switch, and said the gun in this case was an SCCY, fully automatic, and if touched the
wrong way, it could go off. Depending on the weapon, it “can go off.”
{¶23} The matter proceeded to trial. The CPD sergeant, who testified at the
hearing on the motion to suppress, testified about the dispatch for a subject armed
with a gun in a silver sedan in Bond Hill in the area of Paddock and Laidlaw and his
encounter with Suttle at the corner store. After leaving the store, Suttle’s vehicle
traveled a short distance, only a few driveways, and pulled into a driveway. Only 30
7 OHIO FIRST DISTRICT COURT OF APPEALS
seconds elapsed from the time the sergeant first saw the vehicle in the parking lot and
when it parked in the driveway.
{¶24} The sergeant pulled behind the vehicle to ascertain the license plate to
determine if there were any issues. At that time, he was still investigating the initial
gun report. The three occupants exited from the vehicle and began to walk eastbound
on the sidewalk, adjacent to the vehicle, and jaywalked across the street. The other
two passengers continued walking east after jaywalking once and did not return. A
portion of the sergeants BWC video was played, showing Suttle jaywalking.
{¶25} A third officer in uniform determined that the car was registered to
Suttle as a co-owner, and that he had outstanding warrants for his arrest. That officer
relayed the information to the second officer who arrested Suttle due to the
outstanding warrants. The sergeant’s BWC video was admitted into evidence.
{¶26} The sergeant testified that a gun was found in the driver’s door of the
car. The sergeant explained that the gun was not submitted for a fingerprint or DNA
analysis because Suttle co-owns the vehicle so his DNA was probably on every item in
the vehicle, and fingerprints are rarely found on firearms. Additionally, he did not
submit the gun for testing because Suttle owned the vehicle, drove the vehicle, and the
gun was found in the driver’s door, two inches from the driver’s seat. The sergeant did
not observe Suttle reach for or touch the gun.
{¶27} The second officer testified that he responded to the scene to assist the
sergeant. The officers were investigating a “gun run,” and Suttle’s vehicle matched the
description. He observed Suttle jaywalking and the sergeant speaking with him. A
uniformed officer informed him that Suttle was attached to the vehicle and had
misdemeanor warrants for his arrest. The second officer observed Suttle’s
photograph, confirmed his identity, and took him into custody.
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} After arresting Suttle, the second officer searched him and placed him
into a vehicle to determine whether he would have to be transported to the jail for his
warrants. He looked inside Suttle’s vehicle and saw marijuana residue and assorted
baggies. The officer testified that before he searches any vehicle, he asks if there are
any firearms in the car for officer safety. When he asked Suttle, Suttle hesitated then
said, “Probably, but it’s my wife’s, sir.” The officer further explained that he asks about
his guns due to his experience and the fact that there are very “unreliable guns” and
when searching a vehicle, officers manipulate things with their hands, squeezing and
moving things. The second officer searched the vehicle with a third officer, who
observed the gun within seconds of opening the driver’s door.
{¶29} Suttle admitted to the officer that he could not legally possess a firearm.
He further informed the officer that he was not initially driving the vehicle when they
first pulled up to the store, and the person who was driving left the gun in the car.
Suttle further explained that he locked the doors and rolled up the windows when he
learned about the gun. When confronted with his statement that it was his wife’s gun,
he explained that it was his girlfriend, and the other guy was a friend of hers.
{¶30} The second officer asked Suttle about the gun before reading him his
Miranda warnings because officer safety was paramount. He was going to search the
vehicle regardless of Suttle’s response. The officer believed that Suttle knew the gun
was in the car because Suttle knew his wife had a concealed-carry license and carried
a firearm and knew he was not allowed to be near firearms. Then Suttle changed his
story and said the gun belonged to “some girl he messed with, who was not his wife,
and then it belonged to a friend.” Based on the location of the gun, the second officer
believed Suttle had control over the gun.
{¶31} The State’s last witness was the officer who found the gun in the car.
9 OHIO FIRST DISTRICT COURT OF APPEALS
When he opened the driver-side door, he immediately saw the grip and magazine of a
red or maroon pistol sticking out of the door pocket. The officer removed the gun from
the door, removed the magazine, and ejected one round to render it safe. A live round
was in the chamber.
{¶32} The State played the officer’s BWC video, showing how the car was
parked and the officer discovering the gun. The gun was a SCCY, which is a semi-
automatic pistol. The gun was accessible to the driver and was inches from the driver’s
seat. The third officer test-fired the gun and found it operable. The firearm report was
admitted into evidence.
{¶33} Suttle’s fiancée testified that the day before Suttle’s arrest, she arrived
home very late with her two children. She was very tired, and before she exited from
the car, she put her gun inside the car door and went into the house. The fiancée
identified the gun as hers. She had purchased the gun at a gun show for her protection.
{¶34} That day, she asked Suttle to buy snacks, and when Suttle returned to
her home, he gave her the snacks and went outside to play basketball with her cousins.
The fiancée did not tell him that her gun was in the car. She knew he could not be
around guns and felt terrible that she forgot that the gun was in the car. Usually, she
kept the gun in a safe in her closet on the top shelf. When Suttle would come to her
house, she put it in her car so he was not around it.
{¶35} Suttle testified that he was dropped off at his fiancée’s home in the
morning because his car was not working. When she asked him to purchase snacks,
he went to the store with her cousin and her cousin’s friend Bubby. They encountered
the sergeant at the store, and Bubby flipped him off. The sergeant followed his car
when he left the store to his fiancée’s house, two streets away. Suttle parked and
entered the home with the snacks. When he went back outside, the three started
10 OHIO FIRST DISTRICT COURT OF APPEALS
walking down the street when Suttle realized that he had forgotten to roll up the
windows and lock the car doors. When he crossed the street, the sergeant stopped him
for jaywalking. Another officer placed him under arrest.
{¶36} When the officer asked if there was a gun in the car, Suttle remembered
that his fiancée had just purchased a gun, so he said, “Probably. It’s probably my
wife’s.” His fiancée did not inform him the gun was in the car, and he did not see the
gun in the car. Suttle testified that he was trying to be cooperative. After the second
officer found the gun, Suttle was scared and nervous and told the officer things that
were not true because he was afraid the officer would “mess with his wife.” Suttle
testified that he was telling the truth now because he was not scared. If he had known
the gun was in the car, he would have told his fiancée to remove it.
{¶37} On cross-examination, Suttle was shown the video depicting the gun in
the vehicle. Suttle agreed that nothing was covering or concealing the gun, the gun
color was different from the door except for the magazine, and that the gun was loaded.
He also agreed that the purpose of the pocket of the driver’s side door is for the driver
to easily access an item. Suttle did not hear the gun rattling as he was driving, and he
did not know the gun was in the car. Suttle admitted that he told three different stories
identifying the owner of the gun.
{¶38} The jury found him guilty of both charges. The trial court sentenced
him to serve 30 months on each conviction, to be served concurrently. He now
appeals, raising four assignments of error.
Motions to Suppress
{¶39} In his first assignment of error, Suttle argues that the trial court erred
in overruling his motions to suppress. He contends that the officer lacked reasonable
11 OHIO FIRST DISTRICT COURT OF APPEALS
suspicion or probable cause to search his vehicle and the officer failed to provide
Miranda warnings before questioning him about a gun, and his admission should have
been excluded.
{¶40} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 2003-Ohio-5372, ¶ 8. An appellate court must accept
the trial court’s findings of fact if they are supported by competent, credible evidence,
then independently determine whether the facts satisfy the applicable legal standard.
See State v. Childers, 2023-Ohio-948, ¶ 7 (1st Dist.), citing Burnside at ¶ 8.
{¶41} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8 (1968). “A search is
unreasonable when police lack a valid warrant and no exception to the warrant
requirement applies.” State v. Jackson, 2022-Ohio-4365, ¶ 10. Under the plain-view
doctrine, “an officer may seize an object in plain view without a warrant if (1) the
officer did not violate the Fourth Amendment in arriving at the place from which the
evidence could be viewed, (2) the object’s incriminating nature is immediately
apparent, and (3) the officer has a right to access the object where it is located.” State
v. Vargas, 2025-Ohio-4482, ¶ 22 (2d Dist.), quoting State v. Burroughs, 2022-Ohio-
2146, ¶ 15, citing Horton v. California, 496 U.S. 128 (1990).
{¶42} The Ohio Supreme Court has held that an officer who observed
marijuana in a vehicle had probable cause to search the vehicle. See Jackson at ¶ 28.
In Jackson, when the first officer opened the car door to secure an uncooperative
driver, the second officer looked into the vehicle and observed marijuana. Id. at ¶ 16,
23. Jackson argued that the second officer conducted a search by looking through the
door. Id. at ¶ 23. The Court acknowledged that the second officer intended to obtain
information by looking into the car and his body-camera revealed that he took a “long
12 OHIO FIRST DISTRICT COURT OF APPEALS
investigative look.” Id. at ¶ 24. The Court held the second officer did not conduct a
search, under the trespass theory, because “he did not physically enter the car until
after he spotted the marijuana cigarette.” Id. at ¶ 25. Under the Katz privacy doctrine,
the second officer did not conduct a search because “[a] person does not have a
legitimate expectation of privacy in an object that is in plain view.” Id. at ¶ 26.
{¶43} The Court ultimately held,
Once the second officer observed the marijuana cigarette, he had
probable cause to believe that Jackson’s car contained contraband.
Under the automobile exception to the warrant requirement, officers
may search a vehicle without obtaining a warrant when they have
probable cause to believe the vehicle contains evidence of illegal activity.
Thus, the officers did not transgress the Fourth Amendment when they
searched the vehicle and found the pistol.
Id. at ¶ 28, citing Chambers v. Maroney, 399 U.S. 42, 51 (1970).
{¶44} Similarly, here, the second officer observed marijuana in Suttle’s vehicle
by looking through the window. Once the officer viewed the contraband, he had
probable cause to search the vehicle.1 See id.
{¶45} Suttle argues that a search based on plain view or exigent circumstances
is inapplicable once the car and suspect were secured. As this court recently explained,
the mobility of a vehicle is no longer a factor when determining whether a search
conducted under the automobile exception is valid. See State v. Smothers, 2025-Ohio-
5250, ¶ 67 (1st Dist.). Officers may search a vehicle when they have probable cause to
believe that the vehicle contains contraband, regardless of whether the car could be
1 At the time of the events in this case, marijuana was still illegal in Ohio. Thus, this case is being decided under the law applicable to those circumstances.
13 OHIO FIRST DISTRICT COURT OF APPEALS
moved or evidence within it destroyed. Id. at ¶ 66-67. “The immobilization of the
vehicle or low probability of its being moved or evidence being destroyed does not
remove the officers’ justification to conduct a search pursuant to the automobile
exception.” State v. Warnick, 2020-Ohio-4240, ¶ 30 (2d Dist.), quoting State v.
Russell, 2004-Ohio-1700, ¶ 34 (2d Dist.).
{¶46} Moreover, “[t]he absence of a traffic stop does not prevent application
of the automobile exception, as it does not detract from the automobile’s inherent
mobility or affect the officer’s belief that the vehicle contains contraband.” State v.
Acoff, 2017-Ohio-8182, ¶ 24 (1st Dist.), citing State v. Bazrawi, 2013-Ohio-3015, ¶ 27
(10th Dist.) (“the fact that the subject search did not occur as the result of a traffic stop
and the vehicle was parked and locked when Officer George first observed the
marijuana does not preclude application of the automobile exception”); State v.
Friedman, 2011-Ohio-2989, ¶ 11 (9th Dist.) (finding “no meaningful distinction”
between a search of defendant’s vehicle, which was locked and parked on a residential
street, and “a vehicle search conducted in the course of a valid traffic stop” when a
canine alerted on the vehicle which was parked on a residential street).
{¶47} Next Suttle argues that “the key issue in this case is whether [Suttle] was
subject to custodial interrogation such that the protections of Miranda were
triggered.” Suttle challenges the admission of his pre- and post-Miranda-warnings
statements and the firearm. However, at the motion-to-suppress hearing, Suttle
limited his challenge to the search of the vehicle. To the extent that Suttle is now
arguing that all of his statements and the gun should be suppressed due to the pre-
Miranda question regarding a gun in the car, those issues were waived. See State v.
Bishop, 2025-Ohio-4743, ¶ 19 (1st Dist.).
{¶48} Moreover, as previously discussed, the officers had probable cause to
14 OHIO FIRST DISTRICT COURT OF APPEALS
search the vehicle, rendering the gun admissible. See Bazrawi at ¶ 27, 33 (holding
that the officer, who had probable cause to search the vehicle based on his observation
of marijuana, lawfully seized a gun when it was discovered in plain view during the
search).
{¶49} At the second motion to suppress, Suttle sought to exclude his
admission that a gun was in the vehicle because the officer failed to provide Miranda
warnings before questioning him. The issue was whether the public-safety exception
to the Miranda warnings applied in this case, eliminating the need for Miranda
warnings.
{¶50} In general, when “police take a suspect into custody and then ask him
questions without informing him of [his Miranda rights], his responses cannot be
introduced into evidence to establish his guilt.” State v. Bailey, 2022-Ohio-4028, ¶ 11
(1st Dist.), quoting Berkemer v. McCarty, 468 U.S. 420, 429 (1984). Under the public-
safety exception, when officers ask “questions necessary to secure their own safety or
the safety of the public” as opposed to “questions designed solely to elicit testimonial
evidence from a suspect,” they do not need to provide the warnings required by
Miranda. State v. Maxwell, 2014-Ohio-1019, ¶ 113, quoting New York v. Quarles, 467
U.S. 649, 659 (1984). For the exception to apply, the State must establish that the
officer reasonably believed “(1) that the defendant might have (or recently have had) a
weapon, and (2) that someone other than police might gain access to that weapon and
inflict harm with it.” Id. at ¶ 117, quoting Quarles at 428.
{¶51} It was undisputed that the officer had arrested Suttle prior to asking him
about a gun in the vehicle, and that the officer had not provided Miranda warnings to
Suttle. The parties presented no testimony at the second hearing, and the court relied
on a short video clip and the testimony elicited at the first suppression hearing in
15 OHIO FIRST DISTRICT COURT OF APPEALS
reaching its decision.
{¶52} At the first motion-to-suppress hearing, the sergeant testified that he
reasonably believed that Suttle might possess a weapon because he was responding to
a broadcast that someone in a silver vehicle with an Ohio temporary tag had
brandished a firearm while driving. Suttle was driving a silver vehicle with an Ohio
temporary tag in the area where someone had brandished a gun. The sergeant also
testified that after Suttle initially parked the vehicle, he exited from the driver’s seat.
Suttle walked away from the vehicle, then returned and accessed the driver’s
compartment.
{¶53} The second officer had also observed Suttle exiting from the vehicle and
saw Suttle moving around in the vehicle. Then, he observed Suttle go back to the
vehicle, roll up the windows, and lock the car doors before again walking away from
the car. Therefore, the first condition, that the officers reasonably believed that Suttle
might have a weapon, was satisfied.
{¶54} Based on the record, the second condition has not been met. The trial
court found that the second officer asked the question for officer safety. However, at
the first motion to suppress, the second officer testified that he decided to search the
vehicle to prevent the destruction of evidence. He did not mention public safety or
testify that he had a reasonable need to protect himself or the public from an
immediate danger from a firearm. Consequently, the trial court’s factual finding was
not supported by competent, credible evidence, and Suttle’s admission should have
been suppressed.
{¶55} Because Suttle’s statement was improperly admitted into evidence, this
court must determine whether the error was harmless. See Maxwell, 2014-Ohio-1019,
at ¶ 123, quoting State v. Conway, 2006-Ohio-791, ¶ 78, citing Chapman v. California,
16 OHIO FIRST DISTRICT COURT OF APPEALS
386 U.S. 18, 24 (1967) (“A constitutional error can be held harmless if we determine
that it was harmless beyond a reasonable doubt.”). Whether the error was harmless
beyond a reasonable doubt is not simply an inquiry into the sufficiency of the
remaining evidence. Id. “Instead, the question is whether there is a reasonable
possibility that the evidence complained of might have contributed to the conviction.”
Id., citing Chapman at 23.
{¶56} Here, the statement did not contribute to the convictions. The
testimony established that Suttle was driving the vehicle when the sergeant first
observed him. The sergeant testified that he saw Suttle exit from the vehicle, after he
initially parked the vehicle, and then return to the vehicle. Suttle, who had the car key,
accessed the driver’s compartment and locked the doors and rolled up the windows.
Both officers testified that Suttle’s locking of his car doors and rolling up the windows
after observing a police officer, suggested he was attempting to conceal something
from the police.
{¶57} A third officer found the gun in the pocket of the driver’s-side door,
inches from the driver. The grip of the red or maroon gun and the magazine were
sticking out of the door pocket. The door pocket was a different color, enhancing the
visibility of the gun. This officer testified that the gun was immediately visible when
he opened the driver’s door.
{¶58} Suttle agreed that nothing was covering or concealing the gun and that
the gun color was different from the door. He also agreed that the purpose of the
pocket of the driver’s side door is to easily access an item while a person is driving.
Additionally, as previously noted, Suttle did not challenge his post-Miranda
statements, and his post-Miranda statements included multiple statements regarding
the gun and its ownership. Accordingly, the erroneous admission of Suttle’s statement
17 OHIO FIRST DISTRICT COURT OF APPEALS
was harmless beyond a reasonable doubt in view of the remaining evidence
establishing his guilt.
{¶59} We overrule the first assignment of error.
Sufficiency
{¶60} Next, Suttle contends that the convictions were not supported by
sufficient evidence because the State failed to prove he constructively possessed the
firearm or that he carried a concealed weapon. Both convictions require proof of
possessing a firearm. See R.C. 2923.13(A)(2) (“no person shall knowingly acquire,
have, carry, or use any firearm or dangerous ordnance . . ..”); R.C. 2923.12 (“No person
shall knowingly carry or have . . ..”).
{¶61} When a defendant challenges the sufficiency of the evidence, “the
question is whether, after viewing the evidence in the light most favorable to the state,
any rational trier of fact could have found all the essential elements of the crime proved
beyond a reasonable doubt.” State v. Ham, 2017-Ohio-9189, ¶ 19 (1st Dist.), citing
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶62} Suttle contends that the State failed to prove that he constructively
possessed the gun because the sergeant never testified that he saw him holding or
carrying the gun.
{¶63} “To have a firearm means that the offender has actual or constructive
possession of the gun.” (Cleaned up.) State v. Geralds, 2025-Ohio-2209, ¶ 37 (1st
Dist.). When a person can exercise dominion and control over a firearm, he is in
constructive possession of the gun, even if he is not physically possessing the gun. Id.;
State v. DeVaughn, 2020-Ohio-651, ¶ 32 (1st Dist.); State v. Hankerson, 70 Ohio St.2d
87 (1982), syllabus; Jenks at the syllabus.
{¶64} The State can establish constructive possession with circumstantial
18 OHIO FIRST DISTRICT COURT OF APPEALS
evidence. See Geralds at ¶ 38; State v. English, 2010-Ohio-1759, ¶ 32 (1st Dist.).
“Possession of a firearm may be inferred when a defendant has exercised dominion
and control over the area where the firearm was found.” Id., citing State v. Gardner,
2017-Ohio-7241, ¶ 35 (8th Dist.). Constructive possession may be inferred by an
awareness of a firearm that is within easy reach. Id., citing State v. Hicks, 2023-Ohio-
2209, ¶ 10 (1st Dist.). “But a person’s mere presence in the vicinity of a firearm, alone,
does not create an inference of constructive possession.” Hicks at ¶ 10.
{¶65} The evidence established that Suttle was driving the vehicle with a gun
in the compartment located on the driver’s-side door. The grip of the gun and the
magazine were sticking out of the door pocket, and the gun was accessible to the driver,
within inches of the driver’s seat. The officer immediately observed the gun when he
opened the driver’s-side door. Suttle used the driver’s door to enter and exit from the
vehicle and reenter the vehicle to lock the doors and roll up the windows.
{¶66} Viewing the evidence in the light most favorable to the State, we cannot
say that the State failed to meet its burden of proving, beyond a reasonable doubt, that
Suttles had dominion and control over the gun and was aware of its presence.
Therefore, any rational trier of fact could have found the State proved this element of
the crime.
{¶67} Suttle further argues that the State failed to prove he was carrying a
concealed weapon because the weapon protruded from the door pocket, and therefore,
was not concealed.
{¶68} Suttle was charged with knowingly having a handgun, concealed ready
at hand. See R.C. 2923.12(A)(2). A partially concealed gun satisfies the definition of
concealed. See In re M.M., 2015-Ohio-3485, ¶ 16 (1st Dist.), citing State v. Almalik,
41 Ohio App.3d 101 (8th Dist.) (“Even a partially concealed gun can be found to be
19 OHIO FIRST DISTRICT COURT OF APPEALS
‘concealed’ under R.C. 2923.12.”); State v. Dixon, 1987 Ohio App. LEXIS 10212 (8th
Dist. Dec. 24, 1987) (a gun was concealed when “only a part of the gun butt was visible
when the car door was open and the driver was outside of the car”); State v. Bozeman,
1990 Ohio App. LEXIS 5372 (8th Dist. Dec. 6, 1990) (the defendant’s firearm was
concealed when “only the butt of the firearm was discernable”); State v. Pryor, 2012-
Ohio-1033, ¶ 14 (1st Dist.) (“a defendant can be convicted under R.C. 2923.12 even if
the gun is partially visible”).
{¶69} In this case, the gun was partially concealed in the pocket of the driver’s-
side door. When the driver’s door was opened, the gun was immediately visible.
Therefore, the conviction was supported by sufficient evidence.
{¶70} We overrule the second assignment of error.
Manifest Weight
{¶71} In his third assignment of error, Suttle contends that the guilty verdicts
were contrary to the weight of the evidence because Suttle and his fiancée testified that
Suttle did not know the gun was in the vehicle.
{¶72} In reviewing a challenge to the weight of the evidence, we must review
the entire record, weigh the evidence, consider the credibility of the witnesses, and
determine whether the trier of fact clearly lost its way and created a manifest
miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). “Although
an appellate court may review credibility when considering the manifest weight of the
evidence, the credibility of witnesses is primarily an initial determination for the trier
of fact.” State v. Brown, 2024-Ohio-2148, ¶ 17 (1st Dist.), citing State v. DeHass, 10
Ohio St.2d 230 (1967), paragraph one of the syllabus. “The trier of fact is best able ‘to
view the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.’” Id., quoting
20 OHIO FIRST DISTRICT COURT OF APPEALS
State v. Wilson, 2007-Ohio-2202, ¶ 24.
{¶73} The jury observed the testimony of both witnesses, “and we are mindful
of the jury’s ‘superior first-hand perspective in judging the demeanor and credibility
of witnesses.’” State v. Suffel, 2015-Ohio-222, ¶ 33 (3d Dist.), quoting State v. Phillips,
2014-Ohio-5162, ¶ 125 (10th Dist.). The jury was in the best position to weigh the
evidence and evaluate the credibility of the witnesses’ testimony. Therefore, we
conclude that the jury did not clearly lose its way and create a manifest miscarriage of
justice.
{¶74} Accordingly, we overrule the third assignment of error.
Prosecutorial Misconduct
{¶75} Next, Suttle argues that the trial court erred in allowing the prosecutor
to engage in prosecutorial misconduct by making improper closing argument
comments, which shifted the burden of proof, violating his right to a fair trial.
{¶76} Suttle did not object to these comments, and has therefore, waived all
but plain error. See State v. Hayes, 2020-Ohio-5322, ¶ 41 (1st Dist.). Under the plain-
error doctrine, the appellant must show an “error,” a deviation from a legal rule, and
the error must constitute an obvious defect in the trial court’s proceedings. State v.
Rogers, 2015-Ohio-2459, ¶ 22. The appellant must demonstrate “a reasonable
probability that the error resulted in prejudice.” Id. An appellate court will correct a
plain error under exceptional circumstances and only to prevent a manifest
miscarriage of justice. Id. at ¶ 23.
{¶77} “The test for prosecutorial misconduct is whether the remarks were
improper, and if so, whether they prejudicially affected the accused’s substantial
rights.” State v. Lang, 2011-Ohio-4215, ¶ 155. “[A] prosecutor has wide latitude in
summation to describe what the evidence shows and the reasonable inferences that
21 OHIO FIRST DISTRICT COURT OF APPEALS
may be drawn from such evidence.” State v. Lee, 2017-Ohio-7377, ¶ 17 (1st Dist). A
prosecutor is permitted to draw reasonable inferences from the evidence presented at
trial and comment on those inferences during the closing argument. State v. Treesh,
90 Ohio St.3d 460, 466 (2001).
{¶78} During closing argument, defense counsel explained to the jury that
Suttle’s conversation with the second officer about the gun was Suttle’s attempt to
protect his fiancée and resulted from his fear and anxiety. Defense counsel further
argued that Suttle did not know the gun was in the vehicle.
{¶79} In his rebuttal argument, the prosecutor addressed the defense’s
argument by pointing out that Suttle claimed that the gun belonged to his fiancée, then
changed his story, and said it belonged to another person in the car. The prosecutor
stated,
[Defense counsel] got up here and said, of course he is going to
distance himself because he is trying to protect his girlfriend. But at that
point, he was scared. He was scared for himself. He was distancing
himself from that gun because he knew it was there.
So this shifting story, he sure knows a lot about who this gun
belongs to without knowing the gun was there, wouldn’t you say?
The gun right there for the driver to see. And it’s not like he was
surprised when they [the police] came back and said we found the gun.
He didn’t go, Oh what? Where was it . . . ? There is no denial. He is
just shifting that it wasn’t his gun.
Again, he didn’t deny being the driver today.
{¶80} Viewing the statements in the context of the entire trial, the prosecutor’s
remarks were proper comments on the evidence. The comments expressed reasonable
22 OHIO FIRST DISTRICT COURT OF APPEALS
inferences to be drawn from Suttle’s testimony and from the conflicting statements
Suttle made to the officer. It is not misconduct for a prosecutor to comment on the
credibility of witnesses based on their testimony or suggest that a witness was lying.
See State v. Jones, 2002 Ohio App. LEXIS 1665, *11-12 (2d Dist. April 12, 2002).
{¶81} We overrule the fourth assignment of error.
Conclusion
{¶82} Having overruled Suttle’s four assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
KINSLEY, P.J., and MOORE, J., concur.