State v. Almalik , 41 Ohio App. 3d 101 ( 1987 )

Al-Sharif Almalik appeals his conviction for carrying a concealed weapon by the Cuyahoga County Court of Common Pleas and the court's denial of his motion to suppress evidence. The facts giving rise to this appeal are as follows:

On December 20, 1984, appellant, Al-Sharif Almalik, was indicted by the Cuyahoga County Grand Jury for one count of carrying a concealed weapon in violation of R.C. 2923.12. At his arraignment on February 11, 1985, the appellant pled not guilty. A motion to suppress statements was filed on March 1, 1985, and a motion to suppress evidence was filed on March 11, 1985.

A hearing was held on appellant's motions to suppress on March 18, 1985. After the court overruled his motions, the appellant requested that the court state for the record what the court's findings were. The court did not state the findings as requested, and the case proceeded to trial. On March 19, 1985, the jury returned a verdict of guilty. Appellant timely appealed from this judgment and raised three assignments of error. On April 21, 1986, this court found appellant's first assignment of error¹ well-taken² and remanded appellant's case to the trial court for essential findings of fact in the record as required by Crim. R. 12(E). Therefore, this court did not address appellant's second and third assignments of error because, without the trial court's findings, this court could not properly review the trial court's ruling.

The trial court filed findings of fact and conclusions of law on May 13, 1986. Appellant filed a timely notice of appeal on June 12, 1986. The following evidence was adduced at the motion to suppress hearing:

On November 8, 1984, two Cleveland police officers observed a white 1983 Buick driving east on Euclid Avenue past the intersection of East 77th Street. The vehicle stopped, then backed up through the intersection at a high rate of speed, coming to a stop in front of a bar on Euclid Avenue between East 76th and East 77th Streets. A passenger exited the car, and the driver, later identified as the appellant, proceeded east on Euclid. As the appellant was observed violating a traffic ordinance, the officers stopped the vehicle by activating their overhead lights and the siren. As they pulled up from behind, they observed the driver move around in the vehicle and bend over. At that time, because of the driver's furtive gestures, the officers became concerned for their safety.

Officer Michael Barrett testified that the area was a high crime area known for prostitution and drug activity. He stated that, for their safety and protection, his partner, Officer Timothy Richissin, had the appellant exit the car while he remained at the rear of appellant's vehicle. Once the appellant exited the vehicle and placed his hands on the rear quarter panel of the vehicle, Officer Barrett entered the vehicle through the passenger door and located a loaded Smith Wesson .38 gun underneath the driver's seat. Six bullets were chambered in the gun.

On direct examination, Officer Barrett stated that the weapon was immediately accessible to the driver. "The butt of the pistol was sticking out, so it could have been viewed from the exterior windows." In reply to a question propounded to him, Officer Barrett answered that the gun was in plain view to anyone looking in the car window.

Officer Richissin testified that after appellant's vehicle had been stopped, he approached the vehicle from behind. Officer Richissin had the appellant place his hands on the steering wheel. He opened the driver's side door and asked the appellant to exit the vehicle. Officer Richissin then had the appellant place his hands on the rear quarter panel of the car. He testified that he was concerned for his personal safety because of the appellant's gestures and the officers' presence in a high crime area.

While standing in the open driver's side door, Officer Richissin looked down and observed the butt of a handgun in plain view sticking out from underneath the driver's seat. Officer Barrett was at that time approaching the passenger side of the vehicle and picking up the weapon.

After hearing the officers' testimony, the court overruled appellant's motion to suppress evidence.

At trial, Officers Barrett's and Richissin's testimony was similar to the earlier testimony at the motion to suppress hearing. Officer Barrett testified that he could not see the weapon. He sat on the edge of the passenger seat, felt under both seats, and discovered the gun under the driver's seat. On cross-examination, defense counsel challenged Officer Barrett's testimony at the suppression hearing. At the hearing, Officer Barrett had stated that the gun was in plain view and could be seen from the exterior window of the car. On redirect examination, Officer Barrett testified that the gun may not have been in his plain view, but could be in the plain view of another officer.

Officer Richissin testified at trial that only the butt of the gun was plainly visible. He reported that the remainder of the gun was concealed by the seat.

At trial, Carolyn Stowers Tyson testified on behalf of the appellant. She stated that the appellant is her boyfriend and that he was driving her car at the time in question. Ms. Tyson claimed ownership of the gun and reported that she had placed the gun under the seat. She asserted that the appellant was not knowledgeable about the gun's existence.

From this evidence, the jury returned a verdict of guilty of carrying a concealed weapon. On this appeal, appellant does not challenge the court's findings of fact and conclusions of law, but rather raises the following two assignments of error:

"I. The trial court erred by overruling appellant's motion to suppress evidence and thereby deprived appellant of his constitutional rights as guaranteed by the Fourth andFourteenth Amendments to the United States Constitution and Article I Sec.14 of the Ohio Constitution.

"II. Appellant was convicted of carrying a concealed weapon in violation of Ohio Revised Code Sec. 2923.12 with evidence insufficient as a matter of law in violation of his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I Sec. 10 of the Ohio Constitution."

I In his first assignment of error, appellant contends that the state failed to meet its burden of demonstrating that the circumstances in the instant case justified a warrantless search. Appellant claims in his second assignment of error that there was insufficient evidence to uphold his conviction for carrying a concealed weapon. These contentions lack merit.

In the instant case, the warrantless search and seizure at issue were constitutionally permissible within the ambit of the Fourth Amendment prohibition against unreasonable searches and seizures. The police had authority to stop the appellant's car in order to issue a traffic citation after they observed him illegally backing through an intersection. The appellant, in his brief, even admits that he committed a minor traffic violation. Both officers testified that when they observed this violation, they were on patrol in a high crime area.

After observing appellant violating a local traffic ordinance, the officers followed the appellant's car and stopped it after activating their siren and overhead lights. While the appellant's vehicle was stopping, the officers noticed the appellant bending down and moving around. Officer Barrett testified that these movements were suspicious and, for the officers' protection, Officer Richissin had the appellant exit the vehicle. In addition, Officer Barrett covered the rear of the automobile while Officer Richissin had the appellant exit the car.

Officer Richissin's instructions to the appellant when he approached the car further indicate his caution. He had the appellant place his hands on the driver's wheel while he, Richissin, opened the car door. Once the appellant exited the car, Officer Richissin had the appellant place his hands on the rear quarter panel of the car. Officer Richissin backed away from the appellant to a point parallel to the open car door. Meanwhile, Officer Barrett entered the car and reached beneath the front seat and felt the gun. Richissin looked into the vehicle and observed the butt of a gun protruding from under the front seat on the driver's side of the vehicle. From this testimony, the state met its burden of demonstrating that the gun was confiscated pursuant to a valid warrantless search. Cf.Michigan v. Long (1983), 463 U.S. 1032; Texas v. Brown (1983),460 U.S. 730; State v. Smith (1978), 56 Ohio St. 2d 405, 10 Ohio Op. 3d 515, 384 N.E.2d 280; State v. Romano (Nov. 18, 1982), Cuyahoga App. No. 44820, unreported.

The minority would remand this case for further findings and conclusions to support the court's suppression of the gun. The minority takes the position that the trial court did not comply with this court's earlier remand for findings and conclusions because the court's entry of findings and conclusions addresses the merits of the jury's conviction rather than the court's denial of the motion.

The appellant has not contended that the court failed to comply with this court's earlier instructions and remand. Appellant has neither assigned as error nor argued that the court's findings and conclusions do not pertain to its suppression ruling. Pursuant to App. R. 12(A), an "appeal shall be determined on its merits on the assignments of error set forth in the briefs required by Rule 16, on the record on appeal as provided by Rule 9 and, unless waived, in the oral argument of the parties, or their counsel, as provided by Rule 21. Errors not specifically pointed out in the record and separately argued by brief may be disregarded." Appellant's failure to assign and to argue this error is tantamount to a waiver. Cf. State v. Holden (1985),23 Ohio App. 3d 5, 23 OBR 43, 490 N.E.2d 629 (failure to object to the court's perfunctory overruling of a motion to suppress evidence and failure to request specific findings pursuant to Crim. R. 12[E] waived any such error).

Although it was error for the court not to specifically comply with the appellant's request for findings of fact on the court's suppression rulings, this error was not prejudicial. In Geraci v. Maddalena (Oct. 25, 1984), Cuyahoga App. No. 47964, unreported, which is relied upon by the minority, this court addressed the issue of inadequate findings of fact and conclusions of law. This court stated at 5:

"The findings of fact and conclusions of law issued by the trial court are deficient in isolation, yet taken together with the record they provide us with a sufficient basis for determining on review the validity of the assignments of error. * * * Absent the record to support the deficient finding and conclusion, this Court would have ruled otherwise."

Similarly, although the findings and conclusions in the instant case may be deemed insufficient, when taken together with the record, they provide us with a sufficient basis to review appellant's assignments of error and, in particular, the correctness of the court's suppression ruling. The record indicates that the officers observed the appellant violate a local traffic ordinance. They noticed the appellant making furtive gestures as he stopped his vehicle. As the officers were in a high crime area when they observed appellant's suspicious movements, they were concerned for their safety. The weapon in question was found in the lunge area of the appellant while he was in the driver's seat of the automobile. Officer Richissin observed the butt of the gun in plain view underneath the driver's seat after the appellant exited the vehicle. Officer Barrett felt the gun while he was reaching in that area and retrieved the gun. Thus, a thorough review of the record supports the reasonableness of the warrantless search and, also, appellant's conviction for carrying a concealed weapon.

Appellant argues that because there was testimony that the gun was clearly visible and in plain view, the gun was not concealed for purposes of R.C. 2923.12. Although there was testimony that the gun was in view, Officer Richissin testified that only part of the butt of the gun was in plain view. This court has held that a partially concealed weapon is "concealed" within the meaning of R.C. 2923.12. State v. Smith (Nov. 21, 1984), Cuyahoga App. No. 48136, unreported; State v. Lane (Dec. 3, 1981), Cuyahoga App. Nos. 43523 and 43505, unreported. See, also, State v. Coker (1984), 15 Ohio App. 3d 97, 15 OBR 127, 472 N.E.2d 747.

Appellant further challenges the sufficiency of the evidence regarding the element of knowledge. The record indicates that the appellant was moving and bending over in the vehicle. From this evidence, a rational jury could infer that the appellant was hiding a gun which he knew was present in the car.

Thus, based upon the testimony in the record, the state presented sufficient evidence to establish the elements of a conviction of carrying a concealed weapon.

Accordingly, appellant's two assignments of error are not well-taken. The judgment of the trial court is affirmed.

Judgment affirmed.

ANN MCMANAMON, J., concurs.

MARKUS, C.J., dissents.

¹ Appellant's first assignment of error on his previous appeal states as follows: "The Trial Court Erred by Failing to State Its Essential Factual Findings on the Record When it Overruled Appellant's Motion to Suppress Evidence."

² See State v. Almalik (1986), 31 Ohio App. 3d 33, 31 OBR 48,507 N.E.2d 1168.