In re K.M. , 2015 Ohio 4241 ( 2015 )

[Cite as In re K.M., 2015-Ohio-4241.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: K.M. : APPEAL NOS. C-140764
C-140765
: C-140766
TRIAL NOS. 14-3876
: 14-3877
14-3878
:
O P I N I O N.
:
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: October 14, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Gordon Magella,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} In this appeal, defendant-appellant K.M. challenges the trial court’s
denial of his motion to suppress and the sufficiency and the weight of the evidence
supporting his adjudications for two counts of aggravated robbery with
accompanying firearm specifications and carrying a concealed weapon.
{¶2} Finding no merit to K.M.’s arguments, we affirm the judgments of the
trial court.
Facts and Procedure
{¶3} On April 30, 2014, Michael Frank and Holly Gruber were robbed as
they walked along Joselin Avenue in Clifton at approximately 1:00 a.m. A group of
four African-American males wearing dark clothing jumped out and put guns to their
heads while demanding their belongings. Frank was struck in the face and kicked.
He viewed the suspects fleeing in a vehicle that had been parked less than 100 yards
away with a driver waiting inside, and he described the vehicle as an older “boat-
looking like” sedan that was gold in color. The suspects absconded with Gruber’s
purse and both Gruber’s and Frank’s cellular telephones. Within minutes, Gruber
and Frank flagged down Cincinnati Police Lieutenant Daniel Ogilvie, who was
patrolling the area. Lieutenant Ogilvie sent out a radio broadcast regarding the
robbery. In the broadcast, he described the suspects as three male blacks possibly in
a gold sedan.
{¶4} Cincinnati Police Specialist James Pike heard the broadcast while on
patrol. Shortly thereafter, he drove past a vehicle about a mile away from the scene
of the robbery that caught his attention because of the number of occupants inside.
2
OHIO FIRST DISTRICT COURT OF APPEALS
Specialist Pike initially described this vehicle as “whitish,” although it was in fact
blue. He attempted to catch up to the vehicle, but felt that it was eluding him. After
requesting additional information, he received an update informing him that the
suspects were wearing black hoodies, were approximately 19-24 years old, and had
taken a black purse and two iphones. After obtaining this additional description,
Specialist Pike “spotlighted” the vehicle to better see the occupants. The spotlighting
revealed five male African-Americans in the vehicle, all wearing either dark or black
clothing. Specialist Pike received no reaction to the spotlighting from any of the
occupants. After requesting back up, he initiated a stop of the vehicle. K.M. was
seated in the right rear passenger seat wearing a black sweatshirt.
{¶5} Cincinnati police officers Antonio Etter and Anthony Murphy
recovered four firearms from the vehicle. Two weapons, including a loaded .40-
caliber handgun, were found lying on the floorboard in front of the rear passenger
seat. Two other weapons were found underneath the driver’s seat. The purse and
cellular telephones taken from Frank and Gruber were also found in the vehicle.
{¶6} Complaints were filed against K.M. in Hamilton County Juvenile Court
charging him with carrying a concealed weapon and two counts of aggravated
robbery with accompanying firearm specifications. K.M. filed a motion to suppress
the traffic stop and all resulting evidence on the ground that the police did not have
reasonable suspicion to stop the vehicle. A juvenile court magistrate denied K.M.’s
motion to suppress. K.M. filed a motion to set aside that decision, which the trial
court denied. Following a trial, K.M. was adjudicated delinquent by a magistrate on
all charges. The trial court again overruled K.M.’s objections to the magistrate’s
decision and committed K.M. to the Ohio Department of Youth Services.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} K.M. now appeals, raising three assignments of error for our review.
Motion to Suppress
{¶8} In his first assignment of error, K.M. argues that the trial court erred
in denying his motion to suppress.
{¶9} Our review of the trial court’s ruling on a motion to suppress presents
a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s factual findings if they are
supported by competent and credible evidence. But we review de novo the
application of the relevant law to those facts. Id.
{¶10} To perform a lawful, warrantless stop of a vehicle, an officer must have
a reasonable suspicion that a crime has occurred or will be imminently occurring.
See In re M.M., 1st Dist. Hamilton Nos. C-140628, C-140629, C-140630 and C-
140631, 2015-Ohio-3485, ¶ 8. Reasonable suspicion is less than probable cause, but
requires more than an “inchoate and unparticularized suspicion.” See Terry v. Ohio,
392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see also State v. Bacher, 170
Ohio App. 3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 9 (1st Dist.). To determine
whether an officer had reasonable suspicion to stop a vehicle, we must look at the
totality of the circumstances “viewed through the eyes of the reasonable and prudent
police officer on the scene who must react to events as they unfold.” In re M.M. at ¶
8, quoting State v. Andrews, 57 Ohio St. 3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶11} At the motion-to-suppress hearing, Specialist Pike was asked to
enumerate what factors led him to stop the vehicle in which K.M. had been a
passenger. He explained that his suspicions were raised by the vehicle’s proximity to
the scene of the robbery, by the number of occupants in the vehicle, by the vehicle’s
4
OHIO FIRST DISTRICT COURT OF APPEALS
attempt to elude him, and by the occupants’ complete lack of reaction upon being
spotlighted inside the vehicle, which was not typical. He further explained that,
although the radio broadcast had described a possibly gold-colored vehicle, he had
stopped the suspect’s blue vehicle because different lighting conditions can affect the
perceived color of a car.
{¶12} Following our review of the record, we find that Specialist Pike had
reasonable suspicion to stop the vehicle in which K.M. had been a passenger. We are
not troubled by the officer’s stoppage of a blue vehicle when the victims had
described the car as gold. Specialist Pike correctly explained that lighting conditions
can affect the perceived color of a vehicle. Specialist Pike himself described the
vehicle as “whitish” in his initial broadcast, although it was in fact blue.
{¶13} Because Specialist Pike had reasonable suspicion to stop the vehicle,
the trial court did not err in denying K.M.’s motion to suppress. The first assignment
of error is overruled.
Sufficiency and Weight
{¶14} In his second assignment of error, K.M. argues that his adjudications
for aggravated robbery were not supported by sufficient evidence and were against
the manifest weight of the evidence.
{¶15} K.M. was adjudicated delinquent for committing aggravated robbery
under R.C. 2911.01(A)(1). This statute provides in relevant part that “[n]o person, in
attempting or committing a theft offense * * * shall * * * [h]ave a deadly weapon on
or about the offender’s person or under the offender’s control and either display the
weapon, brandish it, indicate that the offender possesses it, or use it.”
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The evidence presented at trial established that Michael Gruber and
Holly Frank were attacked by four African-American males in dark clothing. The
attackers held guns to their heads, demanded their belongings, and fled with those
belongings into a car that was parked nearby with a driver inside. Minutes later,
K.M. was stopped in a vehicle that had five occupants and that contained Gruber’s
and Frank’s belongings, and he was wearing dark clothing. Viewed in the light most
favorable to the prosecution, this was sufficient to establish the elements of
aggravated robbery beyond a reasonable doubt. See State v. Martin, 20 Ohio App. 3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶17} K.M.’s adjudications for aggravated robbery were likewise supported
by the manifest weight of the evidence. Although K.M. did not testify, the evidence
introduced at trial revealed that K.M. had stated in an interview following his arrest
that he had been picked up by the other four robbery suspects right before they were
stopped by the police. The trial court did not err in rejecting this statement and in
determining that K.M. had participated in the robbery of Frank and Gruber. This
was not the rare case in which the trier of fact lost its way and created such a
manifest miscarriage of justice that K.M.’s adjudications must be reversed. See State
v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). We hold that K.M.’s
adjudications for aggravated robbery were supported by both the sufficiency and the
weight of the evidence. The second assignment of error is overruled.
{¶18} In his third assignment of error, K.M. challenges the sufficiency of the
evidence supporting his adjudication for carrying a concealed weapon. Carrying a
concealed weapon is proscribed by R.C. 2923.12(A), which provides in relevant part
that “[n]o person shall knowingly carry or have, concealed on the person’s person or
6
OHIO FIRST DISTRICT COURT OF APPEALS
concealed ready at hand * * * a handgun.” K.M. was specifically charged with
possession of a .40-caliber Bersa. This weapon was found lying on the floorboard in
front of the rear passenger seat where K.M. had been seated.
{¶19} K.M. first argues that because the weapon was found in plain view on
the floorboard, it had not been concealed on his person or concealed ready at hand.
A weapon is concealed “if it is so situated as not to be discernible by ordinary
observation by those near enough to see it if it were not concealed.” State v. Davis,
15 Ohio App. 3d 64, 472 N.E.2d 751 (1st Dist.1984), paragraph one of the syllabus.
And a weapon is “ready at hand” when it is “so near as to be conveniently accessible
and within immediate physical reach.” State v. Davis, 115 Ohio St. 3d 360, 2007-
Ohio-5025, 875 N.E.2d 80, ¶ 29, quoting State v. Miller, 2d Dist. Montgomery No.
19589, 2003-Ohio-6239, ¶ 14. The .40-caliber Bersa was found on the floorboard
directly in front of the seat that K.M. had occupied. There is no question that the
weapon was ready at hand. But we must determine whether the weapon was in fact
concealed. All five occupants were removed from the vehicle before it was searched.
Officer Murphy testified that he had searched the vehicle and had found the weapon
in plain view on the rear passenger side floorboard. But the weapon’s visibility after
all suspects had been removed from the vehicle does not necessarily indicate that the
weapon had not been concealed when the suspects were present in the car. “A
concealed weapon may emerge into plain view for seizure purposes by the movement
of a person or an object.” In re Robert B., 186 Ohio App. 3d 389, 2009-Ohio-3644,
928 N.E.2d 746, ¶ 24 (2d Dist.), quoting State v. Thornton, 2d Dist. Montgomery No.
18545, 2001 Ohio App. LEXIS 1993, *9 (May 4, 2001). Viewing the evidence in the
light most favorable to the prosecution, as we are required to do, we find that the
7
OHIO FIRST DISTRICT COURT OF APPEALS
weapon would not have been discernable when K.M., along with two others, had
been seated in the backseat of the two-door vehicle.
{¶20} K.M. next argues that the evidence failed to establish that he had
constructively possessed the weapon. A weapon is constructively possessed “when
an individual exercises dominion and control over an object, even though that object
may not be within his immediate physical possession.” State v. Thomas, 1st Dist.
Hamilton No. C-020282, 2003-Ohio-1185, ¶ 9. K.M. contends that, other than his
presence in the vehicle, there was no evidence linking him to the weapon. We are not
persuaded. The evidence established that K.M. was one of four assailants that
attacked and robbed Michael Gruber and Holly Frank at gunpoint. And the weapon
was found directly in front of the seat that K.M. had occupied. The state relied on
more than mere presence to link K.M. to the weapon, and we hold that his
adjudication for carrying a concealed weapon was supported by sufficient evidence.
See Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717.
{¶21} K.M.’s third assignment of error is overruled. The judgments of the
trial court are, accordingly, affirmed.
Judgments affirmed.
FISCHER and MOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
8