State v. Pryor ( 2012 )

[Cite as State v. Pryor, 2012-Ohio-1033.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110205
TRIAL NO. B-1004140
Plaintiff-Appellee, :
vs. :
OPINION
CHESTER PRYOR III, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 16, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William D. Bell, Sr., for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant Chester Pryor III appeals the judgment of the
Hamilton County Court of Common Pleas convicting him of carrying a concealed
weapon, a felony of the fourth degree as charged.
{¶2} This case stems from the discovery of a firearm in the saddlebag of
Pryor’s motorcycle. The gun was recovered after Pryor had been stopped for traffic
violations. Pryor filed a motion to suppress the firearm, and after the trial court had
overruled the motion, Pryor entered a no-contest plea. The court found him guilty
and sentenced him to five days in jail and a period of community control.
The Hearing on the Motion to Suppress
{¶3} Early one morning, at around 12:50 a.m., plain-clothes officer
Chris Campo saw Pryor recklessly operating his motorcycle in downtown Cincinnati.
Campo radioed for assistance from a uniformed patrol.
{¶4} Pryor stopped his motorcycle before the uniformed patrol had
caught up with him. Campo and the uniformed officers arrived as Pryor was getting
off of his motorcycle. Campo testified that he had seen Pryor retrieve something
from the waistband of his pants and place it in a saddlebag attached to the
motorcycle.
{¶5} A uniformed officer escorted Pryor approximately ten feet away
from the motorcycle and informed Campo that Pryor was wearing an empty gun
holster on his belt. Campo approached the motorcycle and shined his flashlight on
the saddlebag. In a small gap between the cover of the saddlebag and the
compartment itself, Campo could see the butt of a handgun. Campo confiscated the
weapon, and Pryor was ultimately indicted for carrying a concealed firearm.
2
OHIO FIRST DISTRICT COURT OF APPEALS
The Trial Court’s Jurisdiction
{¶6} In his first assignment of error, Pryor argues that defects in the
complaint deprived the trial court of jurisdiction. He argues that Campo had filed a
complaint purporting to charge Pryor with a felony of the third degree but that
Campo had failed to include all of the elements of the stated offense. Pryor
maintains that the allegedly defective complaint rendered the prosecution against
him void ab initio.
{¶7} We find no merit in this argument, because the issuance of the
indictment rendered any defects in the complaint irrelevant. As courts have held,
“once an indictment has been approved the preliminary proceedings are not subject
to either direct or collateral attack because the defendant has been afforded an
independent determination that a prima facie case exists.” State v. Washington, 30
Ohio App.3d 98, 99, 506 N.E.2d 1203 (8th Dist.1986), quoting Commonwealth v.
Gordon, 254 Pa.Super. 267, 272, 385 A.2d 1013 (1978). Here, because there was no
allegation of a defect in the issuance of the indictment, the prosecution was properly
instituted. We overrule the first assignment of error.
Probable Cause to Search
{¶8} In his second assignment of error, Pryor contends that the trial
court erred in overruling his motion to suppress. He argues that the firearm was not
within his reach at the time it was discovered and that, therefore, the officer did not
have cause to execute a protective search.
{¶9} When considering a motion to suppress, the trial court acts as the
trier of fact and is in the best position to evaluate the credibility of witnesses and to
weigh the evidence. State v. Sanders, 1st Dist. No. C-030846, 2004-Ohio-6842, ¶ 6,
citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Although we must accept the trial court’s findings of fact if they are supported by some
3
OHIO FIRST DISTRICT COURT OF APPEALS
competent, credible evidence, we conduct a de novo review of whether the facts meet
the applicable legal standard. Id.{¶10} In this case, the primary basis of the trial court’s ruling was that
Campo had possessed probable cause to search the saddlebag for a concealed weapon.
We find no error in that conclusion.
{¶11} Under the “automobile exception” to the warrant requirement, police
may search an automobile or other vehicle if there is probable cause to believe it
contains contraband and there are exigent circumstances justifying a warrantless
search. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992). Because of the
inherent mobility of automobiles and other motor vehicles, exigent circumstances
typically exist where the vehicle was readily mobile at the time of the stop. Id.;
California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).
Probable cause is a belief, reasonably based on the circumstances known to the officer,
that a vehicle contains contraband. State v. Kessler, 53 Ohio St.2d 204, 208, 373
N.E.2d 1252 (1978).
{¶12} Here, the officer saw Pryor remove something from near his
waistband and place it in the saddlebag. Campo was soon informed that Pryor was
wearing an empty holster. Then, when Campo shined his flashlight at the saddlebag,
he could see the butt of the gun showing where the saddlebag’s covering was slightly
open. Under these circumstances, the officer had probable cause to believe that Pryor
had concealed a gun in the saddlebag. Accordingly, we overrule the second assignment
of error.
Evidence of Concealment
{¶13} In his third and final assignment of error, Pryor argues that the
evidence of concealment was insufficient to support a conviction under R.C.
2923.12(A)(2), which provides that “[n]o person shall knowingly carry or have,
concealed on the person’s person or concealed ready at hand * * * a handgun other
4
OHIO FIRST DISTRICT COURT OF APPEALS
than a dangerous ordnance * * * .” Pryor contends that, because the butt of the gun
in the case at bar was visible from the top of the saddlebag, the element of
concealment was not established.
{¶14} This argument is without merit. First, as this court has previously
held, proof of concealment does not require the state to establish complete
invisibility, but proof only that the weapon had been “so situated as not to be
discernable 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),
quoting State v. Petit, 20 Ohio App.2d 170, 173-174, 252 N.E.2d 325 (4th Dist.1969).
Thus, a defendant can be convicted under R.C. 2923.12 even if the gun is partially
visible. See State v. Dixon, 8th Dist. No. 53197, 1987 Ohio App. LEXIS 10212 (Dec.
24, 1987).
{¶15} But more importantly, Pryor entered a no-contest plea in this case.
When a defendant enters a no-contest plea, he admits the facts alleged in the
indictment. Crim.R. 11(B)(2). And where the indictment contains sufficient
allegations to state a felony offense and the defendant enters a plea of no contest, the
trial court must find him guilty. State v. Bird, 81 Ohio St.3d 582, 584, 692 N.E.2d
1013 (1998), citing State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 425, 662 N.E.2d
370 (1996). Because the indictment in the case at bar was sufficient to state a
violation of R.C. 2923.12(A)(2), we overrule the third assignment of error.
Conclusion
{¶16} The judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN and HENDON, JJ., concur.
Please note:
The court has recorded its own entry this date.
5