State v. Loyd

[Cite as State v. Loyd, 2018-Ohio-4320.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18-CA-22
DEMETRIUS D. LOYD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municpal
Court Case No. 17-CRB-02266
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 23, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. MICHAEL KING MICHAEL R. DALSANTO
Assistant Law Director 33 West Maint Street, Suite 106
City of Newark Newark, OH 43055
40 West Main Street
Fourth Floor
Newark, OH 43055
Licking County, Case No. 18-CA-22 2
Hoffman, J.
{¶1} Appellant Demetrius D. Loyd appeals the judgment entered by the
Licking County Municipal Court convicting him of improper handling of a firearm in
a motor vehicle (R.C. 2923.16(E)(1)) and sentencing him to 90 days incarceration
with all days suspended, and one year of community control. Appellee is the state
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 20, 2017, at 11:33 p.m., Trooper Andrew Garwood of the
Ohio State Highway Patrol was stopped at a red light at the intersection of Broad
Street and Taylor Road in Reynoldsburg, Ohio. When his light turned green, he
saw Appellant enter the intersection and make a left turn, disregarding the red light
governing traffic in his lane of travel. Trooper Garwood made a traffic stop for the
traffic violation.
{¶3} Appellant pulled over to the right side of Broad Street, and Tpr.
Garwood approached Appellant’s vehicle on the driver’s side. Appellant produced
his license, registration, and proof of insurance upon request. Appellant was then
asked to exit the vehicle and go to the front of the cruiser.
{¶4} Tpr. Garwood asked Appellant if he had a weapon, and asked for
permission to conduct a patdown. Appellant responded he had a gun on his
person. Appellant told the trooper he had a permit. The trooper handcuffed
Appellant, conducted a patdown search, and retrieved the gun. Approximately two
minutes transpired from the time Appellant made contact with the trooper to the
point in time at which Appellant first revealed he had a gun on his person.
Licking County, Case No. 18-CA-22 3
{¶5} Appellant was charged with improper handling of a firearm in a motor
vehicle in violation of R.C. 2923.16(E)(1). He was also charged with a red light
violation and possession of marijuana, to which he entered a plea of guilty outside
the presence of the jury. The improper handling charge proceeded to jury trial in
the Licking County Municipal Court. The first trial result in a mistrial due to a hung
jury. The second jury trial resulted in a finding of guilty. Appellant was convicted
as charged and sentenced to 90 days incarceration with all 90 days suspended
and placed on community control for one year.
{¶6} It is from the February 8, 2018 judgment of conviction and sentence
{¶7} Appellant prosecutes this appeal, assigning as error:
“I. THE APPELLANT’S CONVICTION FOR IMPROPER
HANDLING OF A FIREARM IN A MOTOR VEHICLE IN VIOLATION
OF R.C. 2923.16(E)(1) WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE BECAUSE THE STATE FAILED TO PRODUCE
ANY EVIDENCE AS TO THE APPELLANT’S CONCEALED
HANDGUN LICENSE OR HIS STATUS AS ACTIVE DUTY
MILITARY WITH FIREARMS TRAINING. THE APPELLANT ALSO
PROMPTLY INFORMED TPR. GARWOOD THAT HE HAD BEEN
ISSUED A LICENSE TO CARRY A CONCEALED HANDGUN AND
THAT HE HAD A LOADED HANDGUN IN THE MOTOR VEHICLE.
Licking County, Case No. 18-CA-22 4
“II. R.C. 2913.16(E)(1) IS VOID FOR VAGUENESS
BECAUSE THE PENAL STATUTE DOES NOT DEFINE THE
CRIMINAL OFFENSE WITH SUFFICIENT DEFINITENESS SUCH
THAT ORDINARY PEOPLE CAN UNDERSTAND WHAT
CONDUCT IS PROHIBITED.
“III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
FILE A MOTION TO SUPPRESS EVIDENCE ON THE GROUNDS
THAT THE FIREARM WAS FOUND EITHER AS A RESULT OF AN
UNCONSTITUTIONAL PATDOWN SEARCH OR BECAUSE THE
CONSENT TO SEARCH WAS GIVEN INVOLUNTARILY.”
I.
{¶8} Appellant argues the judgment of conviction is against the manifest
weight and sufficiency of the evidence.
{¶9} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in evidence
the jury ‘clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78
Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Licking County, Case No. 18-CA-22 5
{¶10} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio
St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶11} Appellant was found guilty of a violation of R.C. 2923.16(E)(1):
(E) No person who has been issued a concealed handgun
license or who is an active duty member of the armed forces of the
United States and is carrying a valid military identification card and
documentation of successful completion of firearms training that
meets or exceeds the training requirements described in division
(G)(1) of section 2923.125 of the Revised Code, who is the driver or
an occupant of a motor vehicle that is stopped as a result of a traffic
stop or a stop for another law enforcement purpose or is the driver
or an occupant of a commercial motor vehicle that is stopped by an
employee of the motor carrier enforcement unit for the purposes
defined in section 5503.34 of the Revised Code, and who is
transporting or has a loaded handgun in the motor vehicle or
commercial motor vehicle in any manner, shall do any of the
following:
(I) Fail to promptly inform any law enforcement officer who
approaches the vehicle while stopped that the person has been
Licking County, Case No. 18-CA-22 6
issued a concealed handgun license or is authorized to carry a
concealed handgun as an active duty member of the armed forces
of the United States and that the person then possesses or has a
loaded handgun in the motor vehicle[.]
{¶12} Appellant first argues the State failed to prove he “has been issued
a concealed handgun license or who is an active duty member of the armed forces
of the United States and is carrying a valid military identification card and
documentation of successful completion of firearms training that meets or exceeds
the training requirements described in division (G)(1) of section 2923.125 of the
Revised Code.”
{¶13} The State argues such proof is not required because it is not an
element of the offense, but rather is an affirmative defense to the charge of
improper handling of a firearm, citing State v. Meyers, 11th Dist. Lake No. 2013-L-
042, 2014-Ohio-1357. However, in Meyers, the appellant had been charged not
with a violation of R.C. 2923.16(E), but rather with a violation of R.C. 2923.16(C),
and he was seeking an exemption from the application of subsection (C) pursuant
to R.C. 2923.16(F)(5)(a). Id. at ¶38.
{¶14} The Meyers case is inapposite to the case at bar, where Appellant
was charged with violation of R.C. 2923.16(E), which applies only to persons who
have “been issued a concealed handgun license or who is an active duty member
of the armed forces of the United States and is carrying a valid military identification
card and documentation of successful completion of firearms training that meets
Licking County, Case No. 18-CA-22 7
or exceeds the training requirements described in division (G)(1) of section
2923.125 of the Revised Code.” We therefore conclude possession of a concealed
handgun license in the instant case was an element of the charged offense, which
the State was required to prove.
{¶15} However, while the State did not directly present Appellant’s actual
concealed handgun license as evidence, there was evidence presented from
which the jury could conclude Appellant possessed such a license. Tpr. Garwood
testified within the first few minutes of their encounter, Appellant said he had a
weapon, and a license. Tr. 74. Further, the video of the traffic stop was played for
the jury and admitted into evidence. In the video, Appellant states he has a
weapon but he has a permit.
{¶16} Further, while Appellant did not formally stipulate to the fact he had
a concealed handgun license, and the court instructed the jury the evidence does
not include argument or statements of counsel, counsel for Appellant stated in
opening statement:
This is going to go quick because there’s really nothing in
dispute, factually. As the Judge told you, you are the sole decider of
the facts. We’re going to stipulate to a lot of them to keep this moving
along. Yes, he was driving. Yes, it was in Reynoldsburg. Yes, he
did have a firearm. Yes, it was a handgun. The only real question
is going to be, did he inform the Trooper promptly?
{¶17} Tr. 52.
Licking County, Case No. 18-CA-22 8
{¶18} In closing argument, counsel for Appellant stated:
Ladies and gentlemen, promptly. As I said at the beginning,
that’s all this case really comes down to. Was he legally stopped?
Yes. Did he have a concealed carry license? Yes. Did he have a
firearm? Yes. Did he promptly inform the law officer, law
enforcement officer, that he had those things? I don’t know. That’s
up to you.
{¶19} Tr. 83.
{¶20} The argument of counsel in the instant case was functionally
equivalent to or tantamount to a stipulation Appellant had a valid concealed
handgun license, and the only issue for the jury to decide was whether he notified
the officer promptly of the existence of the handgun.
{¶21} Appellant next argues the finding he did not “promptly” notify the
officer he had a gun is against the manifest weight and sufficiency of the evidence.
He argues viewing the video of the stop, only about two minutes passed before he
notified the officer of the existence of the gun.
{¶22} Without objection, the trial court instructed the jury, “Promptly means
without delay and with reasonable speed.” Tr. 89. The undisputed evidence
reveals Appellant produced his license, registration, and proof of insurance without
notifying the officer of the existence of the handgun. He stepped out of the vehicle
at the officer’s request, but did not notify the officer he had a gun on his person
Licking County, Case No. 18-CA-22 9
until he was in front of the cruiser and the officer specifically asked if he had a
weapon. From this evidence, the jury could conclude Appellant did not notify
Trooper Garwood without delay and with reasonable speed he had a handgun on
his person. We further find the jury did not lose its way in finding Appellant failed
to notify the officer promptly of the existence of the handgun.
{¶23} The judgment is not against the manifest weight of the evidence, and
the State presented sufficient evidence to support the conviction.
{¶24} The first assignment of error is overruled.
II.
{¶25} In his second assignment of error, Appellant argues R.C.
2923.16(E)(1), as quoted above, is void for vagueness because the term
“promptly” is not defined with sufficient definiteness such that an ordinary person
can understand what conduct is prohibited.
{¶26} The critical question in all cases as to void for vagueness is whether
the law affords a reasonable individual of ordinary intelligence fair notice and
sufficient definition and guidance to enable him to conform his conduct to the law.
City of Norwood v. Horney, 110 Ohio St.3d 353, 380, 853 N.E.2d 1115 (2006).
The void for vagueness doctrine does not require statutes to be drafted with
scientific precision. State v. Anderson, 57 Ohio St.3d 168, 174, 566 N.E.2d 1224(1991). When examining a statute for vagueness, it should be measured against
three values: 1.) to provide fair warning to the ordinary citizen so their behavior
may comport with the statute, 2.) to preclude arbitrary, capricious, and generally
discriminatory enforcement by officials, and 3.) to ensure fundamental
Licking County, Case No. 18-CA-22 10
constitutionally protected freedoms are not unreasonably impinged or inhibited.
State v. Tanner, 15 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984).
{¶27} In State v. Brown, 168 Ohio App.3d 314, 2006-Ohio-4174, 859
N.E.2d 1017 (11th Dist. Trumbull), the appellant argued the language, at the time
set forth in R.C. 2923.16(E)(3), which required him to “promptly” notify the officer
a firearm was in the vehicle was void for vagueness. In rejecting the appellant’s
argument, our brethren in the Eleventh District held:
Likewise, R.C. 2923.16(E)(3) passes a void-for-vagueness
test. This section requires an individual with a concealed-carry
license to “promptly” notify the officer, upon being stopped in a traffic
stop, that a firearm is in the vehicle. The only provision of this statute
that is arguably ambiguous is the term “promptly.” “To do something
‘promptly’ is to do it without delay and with reasonable speed.” Thus,
a person of common intelligence would readily understand this term,
as it is used in this situation, to require the license holder to inform
the officer about the weapon as soon as possible. Certainly, the
notification should occur during the initial encounter with the officer.
We do not find this term, or the remaining terms in this section, to be
ambiguous.
{¶28} Id. at ¶23.
Licking County, Case No. 18-CA-22 11
{¶29} We agree with the reasoning set forth by the Eleventh District, and
for the reasons set forth in State v. Brown, supra, we find the R.C. 2923.16(E)(1)
is not void for vagueness.
{¶30} The second assignment of error is overruled.
III.
{¶31} In his third assignment of error, Appellant argues counsel was
ineffective for failing to move to suppress the handgun. He argues there was no
reason to ask Appellant to exit his vehicle in order to continue questioning inside
the police cruiser, and therefore no reason for the patdown. He further argues
any consent given to the search was not voluntary.
{¶32} A properly licensed attorney is presumed competent. State v.
Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail
on a claim of ineffective assistance of counsel, appellant must show counsel's
performance fell below an objective standard of reasonable representation and but
for counsel’s error, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words,
appellant must show counsel’s conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied upon as having produced a
just result. Id.{¶33} In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d
331 (1977), the United States Supreme Court held a police officer may order a
motorist to get out of a car which has been properly stopped for a traffic violation
Licking County, Case No. 18-CA-22 12
without suspicion of criminal activity. Therefore, Tpr. Garwood could ask
Appellant to step from the vehicle even without further suspicion of criminal activity.
Further, in the context of a routine traffic stop, a police officer may ask a detained
motorist to sit in the front seat of the patrol car without violating the Fourth
Amendment if the motorist's detention in the front seat is employed merely as a
brief procedure to facilitate the traffic stop. State v. Carlson, 102 Ohio App.3d 585,
596, 657 N.E.2d 591, 598 (9th Dist. Medina 1995).
{¶34} However, an officer may not automatically conduct a patdown for
weapons before placing a driver of a vehicle in a traffic stop in the patrol car.
During a routine traffic stop, it is unreasonable for an officer to search the driver
for weapons before placing him or her in a patrol car, if the sole reason for placing
the driver in a patrol car during the investigation is for the convenience of the
officer. However, the officer may search the driver for weapons if placing the driver
in the patrol car during the investigation prevents officers or the driver from being
subjected to a dangerous condition and placing the driver in the patrol car is the
least intrusive means to avoid the dangerous condition. State v. Lozada, 92 Ohio
St.3d 74, 2001-Ohio-149, 748 N.E.2d 520 (2001). However, under Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889, a limited protective search of a
detainee's person for concealed weapons is justified when the officer has
reasonably concluded “the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others * * *.” Id. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908.
Licking County, Case No. 18-CA-22 13
{¶35} When asked if he had a weapon, Appellant told Tpr. Garwood he had
a gun on his person. At this point, the Tpr. and Appellant were outside their
vehicles, in close proximity to each other, by the side of the road. The officer could
reasonably conclude Appellant, who he was investigating at close range, was
armed and potentially dangerous to the officer, and the patdown was therefore
justified under Terry, irregardless of his reason(s) for putting Appellant in the patrol
car, which reason(s) are not apparent from the transcript.
{¶36} We find Appellant has not demonstrated a reasonable probability
had a motion to suppress been filed by trial counsel, the motion would have been
granted.
{¶37} The third assignment of error is overruled.
{¶38} The judgment of the Licking County Municipal Court is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J.