State v. Moore , 2014 Ohio 2979 ( 2014 )

[Cite as State v. Moore, 2014-Ohio-2979.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100401
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHANTEZ MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568180-A
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEYS FOR APPELLANT
Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098
Myron P. Watson
323 W. Lakeside Avenue
Suite 420
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nicole Ellis
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Chantez Moore appeals his convictions from the
Cuyahoga County Court of Common Pleas. On appeal, Moore challenges the trial
court’s denial of his motion to suppress, the trial court’s imposition of a mandatory fine
and court costs and the court’s failure to consider the required statutory criteria for felony
sentencing. For the following reasons, we affirm in part, reverse in part, and remand.
{¶2} Moore was indicted in a three-count indictment and charged with drug
trafficking, drug possession, and possession of criminal tools. Moore filed a motion to
suppress evidence obtained by police during a traffic stop of his vehicle. A hearing was
held and the court overruled the motion to suppress.
{¶3} The following facts were adduced at the suppression hearing: While on
patrol with his partner, Cleveland police officer Donald Kopchek spotted a black Dodge
Avenger turn onto Martin Luther King Drive without using a turn signal. (Moore would
later testify that he did use a turn signal to make this turn.) The officers attempted to
pull the car over immediately but, due to traffic, they were unable to do so. The car
proceeded down Martin Luther King Drive and merged onto I-90, again without a turn
signal. The officers caught up to the vehicle on the highway and initiated a traffic stop.
{¶4} Once the vehicle was stopped in the right lane Kopchek approached the
vehicle on the passenger side. As he approached the car he observed the driver, whom
he identified as Moore, shoving something into the waistband of his pants. Moore
provided Kopchek with his license, and during this exchange Kopchek observed a clear
plastic bag sticking out of Moore’s waistband. Kopchek believed that the plastic bag he
had observed contained narcotics based on his experience with drug trafficking. For
safety purposes, the officers removed Moore from his car and immediately placed him in
handcuffs. Once Moore was removed from the vehicle they moved him to the rear of
the car and performed a pat-down.
{¶5} As Kopchek patted Moore down he felt a hard cylindrical object falling
through Moore’s right pant leg. When asked what the object was Moore did not
respond. Instead, he attempted to turn around toward the officers. Kopchek’s partner
repeatedly ordered him to stop. The officers then asked Moore if the object in his pants
was a gun and, again, he did not respond but attempted to turn toward the officers. The
officers again told him to stop. As Moore turned, a single plastic bag containing
suspected narcotics fell from Moore’s pant leg. As Moore leaned up against the car,
more bags of narcotics began to fall from his pants. Most notable to the officers was
what they believed to be a large bag of heroin. This testimony was contradicted by
Moore’s testimony wherein he alleged that Officer Kopchek recovered the drugs from his
anal cavity; not through the pat-down to which Kopchek testified. The contents of the
recovered plastic bag subsequently tested positive for heroin. Once the bag was
discovered, Moore was placed under arrest. Kopchek proceeded to search Moore’s car
where he found six cellular telephones and a large sum of money. The trial court denied
Moore’s motion to suppress the evidence obtained during the traffic stop.
{¶6} Moore subsequently pled no contest to the indictment. For sentencing
purposes the trial court merged the trafficking and possession charges as allied offenses.
The state elected to go forward under the trafficking charge and the trial court imposed a
prison term of six years. The court also imposed a one-year prison term for possessing
criminal tools. The trial court ordered the terms to run concurrently. Moore was
ordered to pay a mandatory fine and forfeited $4,859 in U.S. currency and six cellular
telephones. Moore appeals, asserting five assignments of error.
{¶7} Moore’s first assignment of error states:
Defendant was denied due process of law when the court denied his motion
to suppress evidence, and ruled that the search of defendant after he had
been seized by the police was constitutional.
{¶8} In State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254(8th Dist.), this court outlined the standard of review on a motion to suppress:
Our standard of review with respect to motions to suppress is whether the
trial court’s findings are supported by competent, credible evidence. See
State v. Winand, 116 Ohio App.3d 286, 688 N.E.2d 9 (7th Dist.1996), citing
City of Tallmadge v. McCoy, 96 Ohio App.3d 604, 645 N.E.2d 802 (9th
Dist.1994). This is the appropriate standard because “in a hearing on a
motion to suppress evidence, the trial court assumes the role of trier of facts
and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 679
N.E.2d 321 (2nd Dist.1996).
{¶9} After accepting such factual findings, the reviewing court must
independently determine, as a matter of law, whether the applicable legal standard has
been satisfied. State v. Jones, 8th Dist. Cuyahoga No. 99837, 2014-Ohio-496.
{¶10} Moore presents four separate arguments as to this assignment of error.
First, Moore argues that the traffic stop of his vehicle was unlawful. Officer Kopchek
testified to observing a traffic violation in the form of an unsignaled turn by Moore onto
Martin Luther King Drive. A law enforcement official may conduct a traffic stop when
there is a reasonable suspicion of criminal activity, such as a traffic violation. State v.
Robinson, 8th Dist. Cuyahoga No. 95160, 2011-Ohio-842, ¶ 27. Officer Kopchek
testified to a second observed traffic violation by Moore that arguably did not constitute a
traffic violation. The trial court found the officer’s testimony regarding the initially
observed traffic violation to be credible. We find the trial court’s factual finding to be
supported by competent, credible evidence and will not disturb it.
{¶11} Next, Moore argues that Officer Kopchek had no justification for removing
him from his vehicle and engaging in a pat-down of his clothing. 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,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or
“Terry-stop,” is a common exception to the Fourth Amendment warrant requirement.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889 (1968). As stated by this
court in State v. Paschal, 169 Ohio App.3d 200, 2006-Ohio-5331, 862 N.E.2d 196 (8th
Dist.):
In the seminal case of Terry v. Ohio, the United States Supreme Court
explained that the Fourth Amendment allows a police officer to stop and
detain an individual if the officer possesses a reasonable suspicion, based
upon specific and articulable facts, that criminal activity “may be afoot.”
Terry v. Ohio, 392 U.S. 1, 9, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); see also
State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). A valid
investigative stop must be based upon more than an inchoate and
unparticularized suspicion or hunch that criminal activity is afoot. United
States v. Arvizu, 534 U.S. 266, 151 L.Ed.2d 740, 122 S.Ct. 744 (2002);
Terry at 27.
In deciding whether reasonable suspicion exists, courts must examine the
“‘totality of the circumstances’ of each case to determine whether the
detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing.” Arvizu, quoting, United States v. Cortez, 449 U.S. 411,
417-418, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981); State v. Bobo, 37 Ohio
St.3d 177, 524 N.E.2d 489 (1981), citing State v. Freeman, 64 Ohio St.2d
291, 414 N.E.2d 1044 (1980).
Under this totality of the circumstances approach, police officers are
permitted to “draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information
available to them that ‘might well elude an untrained person.’” Arvizu,
quoting, Cortez at 418. Thus, a court reviewing the officer’s reasonable
suspicion determination must give due weight to the officer’s trained eye
and experience and view the evidence through the eyes of those in law
enforcement. Id. See also Andrews at 87-88.
{¶12} In this instance Officer Kopchek testified to observing Moore secreting a
plastic bag into the waistband of his trousers. Officer Kopchek believed the plastic bag
to be contraband based on Moore’s efforts to conceal the bag prior to interacting with the
officers. He further testified that, based on his experience, drugs are typically
transported in motor vehicles and packaged in plastic bags.
{¶13} “Once a lawful stop has been made, the police may conduct a limited
protective search for concealed weapons if the officers reasonably believe that the suspect
may be armed or a danger to the officers or to others.” State v. Lawson, 180 Ohio App.3d
516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 21 (2d Dist.). “The purpose of this limited
search is not to discover evidence of crime, but to allow the officer to pursue his
investigation without fear of violence.” State v. Evans, 67 Ohio St.3d 405, 422,
1993-Ohio-186, 618 N.E.2d 162, citing Terry, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d
889. To justify a pat-down, “the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry at 27. In addition, as stated in State v. Bales,
2d Dist. Montgomery No. 24897, 2012-Ohio-4968, ¶ 23:
It is well recognized that the need for a protective pat-down becomes more
urgent where drugs are involved. “The very nexus between drugs and guns
can create a reasonable suspicion of danger to the officer.” State v.
Thompson, 1st Dist. Hamilton No. C-050400, 2006-Ohio-4285, ¶ 11.
Further, “[r]ecognizing the prevalence of weapons in places where illegal
drugs are sold and used * * * an officer’s fear of violence when
investigating drug activity is a legitimate concern that will justify a
pat-down search for weapons.” State v. Oatis, 12th Dist. Butler No.
CA2005-03-074, 2005-Ohio-6038, ¶ 23, citing State v. Taylor, 82 Ohio
App.3d 434, 612 N.E.2d 728 (2d Dist.1992).
{¶14} Moore further argues that the protective pat-down was unnecessary because
the officers handcuffed him upon removing him from his vehicle. This court addressed
this issue in State v. Hubbard, 8th Dist. Cuyahoga No. 83385, 2004-Ohio-4498, wherein
we noted that Terry does recognize that the police are entitled to take reasonable
measures to ensure their own safety, including handcuffing should the situation warrant it.
Id. at ¶ 16, citing Evans at 408. The facts and circumstances must warrant the use of
handcuffs; without an element of risk, the “officer safety” rationale will not apply. Id.
{¶15} We find no violation of Terry in this instance. The officers possessed an
articulable suspicion, based on their observations, that Moore possessed and was
attempting to conceal narcotics under his clothing as well as a reasonable fear that Moore
might be armed. The safety concerns for officers searching such a suspect on the side of
a highway are self-evident. Furthermore, consistent with the officer’s safety concerns,
Moore was uncooperative during the pat-down.
{¶16} Moore next argues that Officer Kopchek could not have mistook the hard
cylindrical object he felt in Moore’s pants for a weapon and, therefore, the plain feel
exception should not apply to the officer’s discovery of the drugs. Police may seize
nonthreatening contraband detected through the sense of touch during a protective
pat-down search of the sort permitted in Terry, so long as the search stays within the
bounds marked by Terry. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124
L.Ed.2d 334 (1993). The identity of the contraband, however, must be immediately
apparent to the searching officer. Id.{¶17} In this instance, Kopchek testified that, upon feeling the object at issue, he
asked Moore if it was a gun. However, we need not apply the plain feel doctrine in this
instance because Kopchek testified that the narcotics fell down and out of Moore’s pants
and were observed by him on the ground. Therefore, we need not address whether the
officer could have determined the nature of the contraband through feel alone. State v.
Clayton, 8th Dist. Cuyahoga No. 100081, 2014-Ohio-1427, ¶ 5.
{¶18} An exception to the warrant requirement includes evidence found in plain
view.
[T]o justify the warrantless seizure of an item under the plain view doctrine:
(1) the seizing officer must be lawfully present at the place from which he
can plainly view the evidence; (2) the officer has a lawful right of access to
the object itself; and (3) it is immediately apparent that the item seized is
incriminating on its face.
State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406, ¶ 33, quoting Horton v.
California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The
testimony of Officer Kopchek established that the drugs were discovered in plain view
when they fell from Moore’s pants.
{¶19} Finally, Moore argues that Kopchek exceeded the scope of a Terry pat-down
by removing money from his pockets. The trial court noted the difference in testimony
between Kopchek and Moore regarding where the money was found and noted that
Kopchek could not recall precisely from where the money was recovered. In fact,
Kopchek’s testimony was that the money was recovered from Moore’s vehicle although
he could not recall precisely where, within the vehicle, the money was found.
{¶20} Police may search a vehicle incident to a recent occupant’s arrest where it is
reasonable to believe the vehicle contains evidence of the offense of arrest. Arizona v.
Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Accord State v. Grubb, 186
Ohio App.3d 744, 2010-Ohio-1265, 930 N.E.2d 380 (3d Dist.).
{¶21} The trial court previously noted that it found the officer’s testimony to be
more credible than Moore’s. Moore does not argue that a violation of Gant occurred in
this instance nor would we find such an argument persuasive considering Moore was
viewed by Officer Kopchek within his vehicle attempting to conceal what proved to be
narcotics.1 In any event, Moore appears to challenge the trial court’s decision to believe
the testimony of Kopchek over his own. As a reviewing court, we defer to the trial
court’s credibility determinations. The credibility of witnesses and the weight
attributable to their testimony are primarily matters for the trier of fact, who observed the
witness in person. State v. Dunbar, 8th Dist. Cuyahoga No. 99740, 2014-Ohio-383, ¶
18, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶22} Moore’s first assignment of error is overruled.
{¶23} Moore’s second assignment of error states:
Defendant was denied due process of law when the court imposed a
monetary fine without any consideration or determination of indigency.
{¶24} R.C. 2929.18(B)(1) provides in pertinent that:
If an offender alleges in an affidavit filed with the court prior to sentencing
that the offender is indigent and unable to pay the mandatory fine and if the
court determines the offender is an indigent person and is unable to pay the
mandatory fine described in this division, the court shall not impose the
mandatory fine upon the offender.
1
It is unclear from the record if Moore’s vehicle was subject to police impoundment in this
instance, and therefore inventoried pursuant to being towed as opposed to searched pursuant to Gant.
We do note that the traffic stop and arrest occurred on the side of a highway indicating that a tow
likely occurred but the state failed to explore this issue at the suppression hearing.
{¶25} If an affidavit of indigency is filed before sentencing, the trial court must
determine if the defendant is indigent. State v. Shepard, 8th Dist. Cuyahoga No. 95433,
2011-Ohio-2525, ¶ 8. If an affidavit of indigency is not filed pursuant to R.C.
2929.18(B)(1), the trial court is required to impose the mandatory fine. State v.
Foreman, 3d Dist. Hancock No. 5-07-17, 2008-Ohio-4408. The Supreme Court of Ohio
has interpreted R.C. 2929.18(B)(1) to mean that “the affidavit must be delivered to the
clerk of court for purposes of filing and must be indorsed by the clerk of court, i.e.,
time-stamped, prior to the filing of the journal entry reflecting the trial court’s sentencing
decision.” State v. Gipson, 80 Ohio St.3d 626, 632, 1998-Ohio-659, 687 N.E.2d 750;
State v. Mackey, 8th Dist. Cuyahoga No. 99390, 2013-Ohio-4698, ¶ 12.
{¶26} The record reflects that Moore’s affidavit of indigency was not properly
submitted pursuant to Gipson. A trial court is only required to consider indigency status
when an indigency affidavit is submitted. The record indicates that the affidavit was
handed to the judge immediately following sentencing but was never delivered to the
clerk of courts in the manner prescribed by Gipson. As Moore failed to comply with the
conditions set forth in Gipson, the trial court was under no obligation to consider his
indigency status and did not err when it imposed the mandatory fine. Regardless, this
error is rendered moot by virtue of our remand on Moore’s third and fourth assignments
of error.
{¶27} Moore’s third assignment of error states:
Defendant was denied due process of law when the court imposed a
monetary fine without identifying that fine in the pronouncement of
sentence.
{¶28} Crim.R. 43(A) provides in pertinent part:
The defendant must be physically present at every stage of the criminal
proceeding and trial, including * * * the imposition of sentence.
{¶29} A criminal defendant needs to be present when sentence is imposed. State
v. Kimmie, 8th Dist. Cuyahoga No. 98979, 2013-Ohio-2906, ¶ 23. Thus, when a
discrepancy between the sentencing hearing and the journal entry exists, there should be a
remand for the limited purpose of a new sentencing hearing. State v. Jones, 8th Dist.
Cuyahoga No. 94408, 2011-Ohio-453, ¶ 15-16. At sentencing, the trial court indicated
that a mandatory fine would be imposed as part of Moore’s sentence but failed to specify
the amount of the fine. The court’s sentencing entry subsequently imposed a $15,000
fine. We find that the trial court committed reversible error when it imposed the fine
through the journal entry and not at the sentencing hearing. Moore’s third assignment of
error is sustained.
{¶30} Moore’s fourth assignment of error states:
Defendant was denied due process of law when the court in its judgment
entry imposed court costs without mentioning court costs at the
pronouncement of sentence.
{¶31} Similar to the preceding assignment of error, a trial court cannot impose
court costs on a defendant solely through a journal entry. State v. Grice, 8th Dist.
Cuyahoga No. 97046, 2012-Ohio-1938, ¶ 57-59. Court costs must also be imposed
during the sentencing hearing. Id. The Ohio Supreme Court has held that a failure to
impose costs at sentencing constitutes error because the defendant has no opportunity to
have those costs waived. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926
N.E.2d 278, ¶ 22. In this case, the trial court made no mention of court costs at the
sentencing hearing but imposed them in Moore’s sentencing entry. In light of this error,
Moore’s fourth assignment of error is sustained.
{¶32} Moore’s fifth assignment of error states:
Defendant was denied due process of law when the court, at sentencing,
failed to consider the statutory criteria for felony sentencing.
{¶33} Moore argues that the trial court failed to consider the required statutory
criteria for felony sentencing or the overriding purposes of felony sentencing. The
journal entry reflects that the trial court considered all of the required sentencing criteria
for this felony conviction and the transcript from Moore’s sentencing hearing reflects
such consideration. A statement by a trial court that all required sentencing criteria has
been considered is enough to satisfy the requirements of R.C. 2929.11 and 2929.12.
State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9, citing State v.
Kamleh, 8th Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61.
{¶34} Thus, Moore’s fifth assignment of error is overruled.
{¶35} The judgment of the trial court is affirmed in part and reversed in part.
{¶36} We remand for the limited purpose of resentencing on the matter of the
mandatory fine and to allow for Moore to move the court for a waiver of the payment of
court costs. Should Moore file such a motion, the court should rule upon it within a
reasonable time.
It is ordered that appellee and appellant share the 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.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR