State v. Carter , 2023 Ohio 3452 ( 2023 )

[Cite as State v. Carter, 2023-Ohio-3452.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30332
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JONAH LAMAR CARTER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 21 09 390
DECISION AND JOURNAL ENTRY
Dated: September 27, 2023
SUTTON, Presiding Judge.
{¶1} Defendant-Appellant Jonah Lamar Carter appeals his judgment of conviction from
the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Following a traffic stop on September 8, 2021, Mr. Carter was arrested and charged
with one count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B)
and R.C. 2923.16(I), a felony of the fourth degree; one count of trafficking in marijuana in
violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(3), a felony of the fourth degree; and one
count of possession of marijuana, in violation of R.C. 2925.11(A), R.C. 2925.11(C)(3)(C), a felony
of the fifth degree. The indictment also included a specification for forfeiture of a weapon,
pursuant to R.C. 2941.1417(A).
{¶3} Mr. Carter informed the trial court that he wished to represent himself and the trial
court permitted his counsel to withdraw. The trial court appointed different counsel as stand-by
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counsel for Mr. Carter and ordered a competency evaluation of Mr. Carter. Mr. Carter was found
competent to stand trial.
{¶4} On March 30, 2022, Mr. Carter filed a motion to suppress the evidence the State
obtained during the traffic stop. The trial court held a hearing on the motion on April 13, 2022.
The State presented the testimony of the two officers involved in the traffic stop, Officer Donald
Morgan and Officer Brett Warrick of the Akron Police Department. Mr. Carter also testified. At
the conclusion of the hearing, the trial court denied Mr. Carter’s motion.
{¶5} The case was then set for a jury trial. The State presented the testimony of the same
police officers that testified at the suppression hearing. The State also presented the testimony of
Melissa Gemmer, the State’s expert witness, Akron Police Lieutenant David Garro, and Akron
Police Detective James Soroky. Mr. Carter did not present any witnesses or evidence to the jury.
{¶6} The jury returned a verdict of guilty on the count of improperly handling firearms
in a motor vehicle, guilty of the specification concerning forfeiture of a weapon, and guilty of
possession of marijuana. The jury found Mr. Carter not guilty of the count pertaining to trafficking
in marijuana. Mr. Carter was sentenced to two years of community control.
{¶7} Mr. Carter timely appealed, assigning three errors for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF
[MR. CARTER], BY OVERRULING [MR. CARTER’S] MOTION TO
SUPPRESS.
{¶8} In his first assignment of error, Mr. Carter argues the trial court’s findings of fact
are not supported by competent, credible evidence in the record and as a result, the trial court erred
when it denied his motion to suppress. For the reasons that follow, we disagree.
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Standard of Review – Motion to Suppress
{¶9} The Supreme Court of Ohio has stated:
Appellate review of a motion to suppress presents a mixed question of law and fact.
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence.
Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard. (Citations omitted.)
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
Factual Findings
{¶10} Mr. Carter argues the trial court’s findings of fact were not supported by competent,
credible evidence in the record. A review of the record shows the trial court found the officers
both testified that: (1) they saw the person driving the silver Honda, (2) they have a computer in
their cruiser, and (3) when they ran the license plate of the silver Honda, the license plate came
back to an owner having a suspended driver’s license. The trial court found the officers believed
that the picture of the owner of the silver Honda appeared to look like the driver the officers
observed. Because driving a vehicle with a suspended license is a traffic violation, the officers
stopped the vehicle.
{¶11} At the suppression hearing, Officer Warrick gave the following testimony
regarding the stop:
We were traveling eastbound on Goodyear Boulevard. We observed a silver Honda
Accord. We ran the license plate. The license plate came back to the owner being
a suspended driver. We can see in the vehicle that the driver of that vehicle matched
the description of the owner. * * *
We could see in the vehicle. Like I said, when we run the vehicle through our
mobile [computer system], we have the [driver’s license] picture that pops up. That
[] picture matched the description of the driver that we could see through the
vehicle.
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Additionally, Officer Morgan testified:
We were out doing patrol. Officer Warrick noticed a vehicle with tint on the
window. Told me to run the vehicle’s license plate. It came back to a silver Honda.
The * * * registered owner of the vehicle came back suspended. The driver matched
the description of the [driver’s license] photo and description that was in the
[computer system] terminal.
Therefore, we find that the trial court’s factual findings are supported by competent, credible
evidence in the record.
Legal Conclusion
{¶12} Additionally, Mr. Carter challenges the trial court’s legal conclusion that the
officers made a lawful stop. We conduct a de novo review of whether the trial court applied the
appropriate legal standard to those facts. See State v. Howard, 9th Dist. Wayne No. 21AP0034,
2022-Ohio-3958, ¶ 5, citing State v. Booth, 9th Dist. Medina No. 02CA0061-M, 2003-Ohio-829,
¶ 12 .
{¶13} This Court has found that “[t]he United States Supreme Court established the basic
standard for reviewing the propriety of a traffic stop through its holdings in Terry v. Ohio, 392
U.S. 1 (1968) and Delaware v. Prouse, 440 U.S. 648 (1979)[,]” and that under the standard
established, “a law enforcement officer may stop a vehicle when the officer has a reasonable
suspicion, based on specific and articulable facts, that an occupant is or has been engaged in
criminal activity.” State v. Epling, 105 Ohio App.3d 663, 664 (9th Dist.1995). Furthermore,
“[r]easonable suspicion is something less than probable cause.” Id., citing State v. VanScoder, 92
Ohio App.3d 853, 855 (9th Dist.1994). “In addition, when ‘analyzing whether reasonable
suspicion existed, this Court looks to the facts available to the officer at the moment of the seizure
or the search and considers whether those facts would warrant a man of reasonable caution in the
belief that the action taken was appropriate.’” State v. Mack, 9th Dist. Summit No. 24328, 2009-
5
Ohio-1056, ¶ 7, quoting State v. Blair, 9th Dist. Summit No. 24208, 2008-Ohio-6257, ¶ 5. Finally,
any violation of traffic law provides the reasonable suspicion required to make an investigatory
stop. State v. Johnson, 9th Dist. Medina No. 03CA127-M, 2004-Ohio-3409, ¶ 11, citing Whren v.
United States, 517 U.S. 806 (1996), State v. Wilhelm, 81 Ohio St.3d 444 (1998), and Dayton v.
Erickson, 76 Ohio St.3d 3 (1996); See also State v. Barbee, 9th Dist. Lorain No. 07CA009183,
2008-Ohio-3587, ¶ 9.
{¶14} Here, the officers determined the registered owner of the vehicle had a suspended
driver’s license. Under R.C. 4510.11, it is a first degree misdemeanor to operate a motor vehicle
with a license that is under suspension. See R.C. 4510.11; Mack at ¶ 9. The officers testified they
observed the driver of the silver Honda, and the driver they observed matched the picture and
description generated by the computer system in their police cruiser. Further, “this Court has
found that it is reasonable for police officers to infer that an automobile is being driven by its
registered owner.” Mack at ¶ 9, citing State v. Graves, 9th Dist. Medina No. 2202, 1993 WL
261562 (July 14, 1993).
{¶15} Mr. Carter argues on appeal the “computer check regarding a license plate, without
any reasonable suspicion that the driver is, in fact, under suspension is a ‘random license check’”
and not supported by Fourth Amendment case law. The United States Supreme Court has found
that such stops do not violate the Fourth Amendment. See Kansas v. Glover, --- U.S. ---, 140 S.Ct.
1183 (2020). In Glover, the United States Supreme Court held:
This case presents the question whether a police officer violates the Fourth
Amendment by initiating an investigative traffic stop after running a vehicle’s
license plate and learning that the registered owner has a revoked driver’s license.
We hold that when the officer lacks information negating an inference that the
owner is the driver of the vehicle, the stop is reasonable.
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The Court went on to say that: “if an officer knows that the registered owner of the vehicle is in
his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the
circumstances would not ‘raise a suspicion that the particular individual being stopped is engaged
in wrongdoing.’” (Citation omitted.) Glover at 1191. Here, both officers testified that the driver
they observed matched the picture of the registered owner that came up in the police cruiser
computer system. The officers offered no testimony, and Mr. Carter did not produce, any evidence
that the officers had information to negate the inference that the owner was the driver of the car.
Therefore, the officers did not violate the Fourth Amendment by initiating a traffic stop after
running the silver Honda’s license plate.
{¶16} Upon review of the record, we conclude that the trial court did not err when it
determined the officer had reasonable articulable suspicion to initiate a traffic stop. Accordingly,
Mr. Carter has not established that the trial court incorrectly denied his motion to suppress.
{¶17} Mr. Carter’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE STATUTORY PROVISION, [R.C.] 2923.16, IS AN
UNCONSTITUTIONAL INFRINGEMENT UPON THE RIGHT TO BEAR
ARMS.
{¶18} In his second assignment of error, Mr. Carter argues R.C. 2923.16 is an
unconstitutional infringement upon his Second Amendment right to bear arms. However, Mr.
Carter forfeited this alleged error by failing to properly raise it before the trial court. Accordingly,
this Court declines to address it.
{¶19} The failure to raise a constitutional issue at the trial level forfeits the right to make
a constitutional argument on appeal. See State v. Krowiak, 9th Dist. Medina No. 21CA0003-M,
2022-Ohio-413, ¶ 37, citing State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. While a defendant
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who forfeits such an argument still may argue plain error on appeal, this Court will not sua sponte
undertake a plain-error analysis if the defendant fails to do so. See Krowiak at ¶37; State v.
McCraw, 9th Dist. Summit No. 14CA0009-M, 2015-Ohio-3809, ¶ 5; State v. Hairston 9th Dist.
Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 9. Mr. Carter has not made a plain error argument
on appeal. Accordingly, this Court will not make one on his behalf.
{¶20} Mr. Carter’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
[MR.] CARTER’S CONVICTION FOR POSSESSION OF MARIJUANA
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I,
SECTIONS I, 10 AND 6 OF THE OHIO CONSTITUTION.
{¶21} In his third assignment of error, Mr. Carter argues that his conviction for marijuana
possession was not supported by sufficient evidence. For the reasons that follow, we disagree.
Sufficiency of the Evidence
{¶22} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id.8
{¶23} Mr. Carter attacks the sufficiency of the State’s evidence on appeal by challenging
the State’s expert witness’ credentials and arguing no witness testified that the substance was
marijuana.
{¶24} With regard to the qualifications of the State’s expert witness, Mr. Carter has not
separately assigned this as error. Rather, he improperly raises this argument in a sufficiency
challenge. This Court is not able to consider a challenge to the expert’s qualification in a
sufficiency analysis, because “the reviewing court considers all the evidence admitted against the
appellant at trial.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 80, citing Lockhart
v. Nelson, 488 U.S. 33, 40-42 (1988). In reviewing the sufficiency of the evidence, “we must
consider whether the evidence that the state offered and the trial court admitted, whether the trial
court admitted the evidence erroneously or not, would have been sufficient to sustain a guilty
verdict.” State v. Dotson, 7th Dist. Mahoning No. 16 MA 0105, 2018-Ohio-2481, ¶ 64.
Accordingly, this Court will not address Mr. Carter’s argument to the extent he challenges the
sufficiency of the expert’s qualifications, because we consider all evidence admitted at trial against
Mr. Carter in a sufficiency challenge.
{¶25} Mr. Carter argues that “no State’s witness provided sufficient evidence that the
substance was marijuana.” A review of the record shows the State’s expert witness testified that
any substance that contains delta-9 tetrahydrocannabinol (“delta-9 THC”) at a concentration of
over .3 percent is considered hemp, and anything over that concentration is considered marijuana.
See also R.C. 928.01(C) (“Hemp” means the plant Cannabis sativa L. and any part of that plant *
* * with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a
dry weight basis.); R.C. 3719.01 (““Marihuana” means all parts of a plant of the genus cannabis,
whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant
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of that type; and every compound, manufacture, salt, derivative, mixture, or preparation of a plant
of that type or of its seeds or resin. * * * ”). Ms. Gemmer testified that the substance she tested
contained delta-9 THC in a concentration of 14.5 percent, with a margin of error of two percent.
Therefore, it would qualify as marijuana under the Ohio Revised Code.
{¶26} Additionally, Mr. Carter’s argument ignores that the State presented evidence in
the form of testimony from Officer Warrick and Officer Morgan that Mr. Carter admitted to the
officers he had marijuana in his car. Officer Warrick offered the following testimony:
As I approached the vehicle, the owner was indeed the driver that was suspended.
I could immediately smell an odor of marijuana coming from the vehicle. I could
also see that the driver was extremely nervous. He was shaking uncontrollably. In
my body camera you’ll see when he grabs his wallet to give me his ID, his hands
are shaking uncontrollably. He was * * * a little bit more nervous than just a driver
under suspension. I could see his chest rising and falling rapidly as if he just ran
maybe a sprint or something, but he’s sitting in his car driving. So I ask him if there
is any marijuana in the vehicle due to me smelling it, and he admitted that there
was marijuana in the vehicle.
{¶27} Viewing this evidence in a light most favorable to the prosecution, we conclude
that sufficient evidence was presented that, if believed, showed that Mr. Carter knowingly
possessed marijuana. The State presented evidence that the officer noticed an odor of marijuana
in the car, that the officer inquired of Mr. Carter whether he had marijuana in the car and Mr.
Carter answered that question in the affirmative. The officers testified they located a black
backpack in the car that contained a substance the officers believed to be marijuana. And the
State’s expert witness testified that the substance found in Mr. Carter’s car contained a
concentration of delta-9 THC sufficient to be considered marijuana. Mr. Carter has not
demonstrated his conviction is based upon insufficient evidence.
{¶28} Mr. Carter’s third assignment of error is overruled.
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III.
{¶29} Mr. Carter’s assignments of error are overruled, and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
STEVENSON, J.
FLAGG LANZINGER, J.
CONCUR.
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APPEARANCES:
OLIVIA A. MYERS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.