State of Ohio, Plaintiff-Appellee, v. Melvin B. Clark, Jr., Defendant-Appellant.
No. 22AP-774
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 14, 2024
[Cite as State v. Clark, 2024-Ohio-1869.]
DORRIAN, J.
(C.P.C. No. 20CR-4649) (REGULAR CALENDAR)
Rendered on May 14, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and Michael A. Walsh, for appellee. Argued: Michael A. Walsh.
On brief: Colin Peters Law, LLC, and Colin E. Peters, for appellant. Argued: Colin E. Peters.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Melvin B. Clark, Jr., appeals from a judgment of the Franklin County Court of Common Pleas sentencing him to a four-year period of community control supervision pursuant to a jury verdict finding him guilty of one count of improperly handling a firearm in a motor vehicle. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On July 20, 2020, two officers from the Columbus Police Department were dispatched to investigate a report of a disturbance on Squam Road in Franklin County, Ohio. The officers spoke with the woman who had called in the report; she stated that a man who was her daughter‘s boyfriend, or the father of her daughter‘s child, had been pounding on her door. She saw the man holding his hand under his shirt and feared he
{¶ 3} While walking back to their cruiser after speaking with the woman, the officers noticed a vehicle matching the description they had been given. Clark was in the vehicle and appeared to be asleep. The officers approached the vehicle and one of them knocked on the window. Both officers testified they smelled burnt marijuana when Clark rolled the window down to speak with them. One of the officers asked Clark to exit the vehicle. Clark instead reached for his cell phone. The officer then used his hands to guide Clark out of the vehicle and conducted a pat-down search. The officer moved Clark to the area behind the vehicle and asked why Clark was there. After Clark explained that he was trying to visit his son, the officer asked if there was anything illegal in the vehicle. Clark responded there was nothing illegal in the vehicle and told the officers they could search it.
{¶ 4} One of the officers searched Clark‘s vehicle and found an open zippered bag under the driver‘s seat. The bag contained a loaded firearm. The officer secured the firearm and placed Clark under arrest.
{¶ 5} Clark was indicted on one count of improperly handling a firearm in a motor vehicle, a fourth-degree felony in violation of
{¶ 6} Immediately before trial, the state dismissed the charge of carrying a concealed weapon. Plaintiff-appellee, State of Ohio, presented testimony at trial from the two officers who arrested Clark and from a forensic scientist who testified to the operability of the firearm. At the close of trial, the jury found Clark guilty of improperly handling a firearm. The trial court conducted a sentencing hearing and sentenced Clark to a four-year term of community control supervision, with certain conditions.
{¶ 7} Clark appeals and assigns the following two assignments of error for our review:
[I.] The trial court erred by denying Appellant‘s Motion to Suppress without an evidentiary hearing, in violation of the Ohio Rules of Criminal Procedure and his rights to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
[II.] Appellant‘s conviction is in violation of his rights to keep and bear arms under the Second and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Ohio Constitution.
III. Analysis
A. Denial of motion to suppress without an evidentiary hearing
{¶ 8} In his first assignment of error, Clark asserts the trial court erred by denying his motion to suppress without conducting an evidentiary hearing. Clark argues his motion to suppress set forth a sufficient factual and legal basis for suppression to warrant a hearing. The state argues Clark‘s motion to suppress did not state a sufficient legal or factual basis to require an evidentiary hearing and, in the alternative, there were no grounds for suppressing the firearm found during the search of Clark‘s vehicle.1
{¶ 9}
{¶ 10} The Supreme Court of Ohio held that a motion to suppress satisfied the standards of
{¶ 11} Clark‘s pretrial motion to suppress, filed January 22, 2021, sought suppression of the firearm found in his vehicle. The motion asserted there was no warrant to search his vehicle and denied that he gave consent for the search. The motion further claimed the officers arrested and searched Clark and his vehicle immediately upon arriving on scene. The motion cited Mapp v. Ohio, 367 U.S. 643 (1961), as a basis for exclusion of evidence obtained from an unconstitutional search. In addition to his motion to suppress, several of Clark‘s pretrial filings that were submitted before the motion to suppress was denied touched on suppression issues. Clark submitted a “memorandum in support of motions” in which he asserted that evidence was seized as a result of a constitutional violation. Clark also cited State v. Moore, 90 Ohio St.3d 47 (2000), related to the odor of marijuana as a basis for a search and argued that no marijuana was found during the search of his vehicle. Other filings asserted Clark was asleep in his vehicle when police arrived and that he was restrained and searched without a warrant and asserted that the exclusionary rule applied to evidence seized through a search that violated the constitution. In its order denying Clark‘s motion to suppress, the trial court concluded Clark had not established any Fourth Amendment violation justifying the suppression of evidence. This demonstrates
{¶ 12} As noted above, to satisfy
{¶ 13} Notwithstanding our conclusion that Clark satisfied the minimum threshold to warrant a hearing on his motion to suppress, we further conclude that, under the circumstances of this case, Clark has failed to demonstrate prejudice resulting from the trial court‘s error. Both arresting officers testified at trial they could immediately smell the odor of burnt marijuana emanating from Clark‘s vehicle after he rolled down the window to speak to them. One of the officers also testified that Clark consented to a search of his vehicle after he had been removed from the vehicle. Video recordings from both officers’ body cameras were introduced as evidence at trial. In the videos, one of the officers can be heard asking Clark if there was marijuana in the vehicle; Clark responded there was not. The officers guided Clark out of the vehicle after he was slow to comply with their commands to step out. The officers asked if there was anything illegal in the vehicle; Clark replied there was not. Clark then told the officers they could look in the vehicle.
{¶ 14} Consent signifying a waiver of constitutional rights is an exception to the search warrant requirement. State v. Scarberry, 10th Dist. No. 15AP-775, 2016-Ohio-7065, ¶ 18. When an individual is lawfully detained by police and consents to a search, the state must demonstrate by clear and convincing evidence that consent was freely and voluntarily given. Id. at ¶ 19. Important factors in the analysis of voluntariness of consent include the voluntariness of the defendant‘s custodial status, the presence of coercive police procedures, the extent and level of the defendant‘s cooperation with police, and the defendant‘s awareness of his right to refuse consent. Id. In this case, the officers’ testimony
{¶ 15} Under the circumstances in this case, where Clark affirmatively consented to a search of his vehicle and the officers testified to perceiving the smell of burnt marijuana coming from the vehicle prior to the search, we conclude Clark has failed to establish that he was prejudiced by the trial court‘s denial of his motion to suppress the firearm found during the search of his vehicle without conducting an evidentiary hearing, despite the fact that Clark‘s motion to suppress satisfied the minimum requirements of
{¶ 16} Accordingly, we overrule Clark‘s first assignment of error.
B. Claim that conviction violates Clark‘s constitutional rights
{¶ 17} Clark was convicted of violating
{¶ 18} Statutes are presumed to be constitutional. State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 10, quoting
{¶ 19} Several of Clark‘s pretrial filings referred to the constitutional right to bear arms and relevant case law, including motions to dismiss in which Clark asserted he had an immunity or privilege to bear arms. The trial court dismissed Clark‘s pretrial motions to dismiss, generally concluding Clark failed to present a legal basis for the relief sought in those motions.
{¶ 20} Prior to jury selection, the trial court addressed another written motion Clark filed after the denial of his earlier motions in which Clark demanded the case go to trial or be dismissed. Arguing in support of dismissal, Clark referred to a June 23, 2022 decision from the United States Supreme Court (apparently a reference to N.Y. State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022)), which Clark asserted “decided * * * there can‘t be restrictions on firearms.” (Tr. Vol. I at 22.) The state argued Bruen held that reasonable restrictions on firearm possession were permitted and asserted
{¶ 21} When the trial court asked Clark if he intended to introduce any affirmative defenses, Clark responded “[b]esides the Constitution, no.” (Tr. Vol. I at 37.) After conferring with his standby counsel, Clark clarified he would assert necessity as an affirmative defense, based in a constitutional right under the state and federal constitutions to bear arms for safety and protection. The state then moved for a motion in limine prohibiting Clark from arguing to the jury that
In no way am I suggesting that the Ohio law is unconstitutional.
What I‘m suggesting is that the way the prosecution is using to apply the law to me is unconstitutional.
* * *
So I‘m expressing that it is expressed in law that I have a right to possess a gun. They‘re expressing that because of transporting it in a specific type of, way or whatever the case may be, that I am breaking the law. I‘m suggesting to you where am I transporting - I mean, there‘s no transporting transportation. I was asleep in a car. There never was in motion, in transit, or anything for them to say that the - the gun was being transported.
Yes, I was in a car, but no, it wasn‘t a traffic stop. It wasn‘t a - they‘re not applying the law in the correct way, and I had a conversation about this as far as mens rea, that they have to prove - they have the - the - they have the things to say that I have - I have the elements of the crime. Like I have a gun, correct? But I wasn‘t using or that gun isn‘t - it isn‘t being used in the application that the state is trying to specify, which they‘re trying to say is I‘m specifically transporting it from point A to point B. They can‘t prove that because in no way was I in transit or any way. No way was I in motion. No way was I moving. They didn‘t stop me in any type of way, and so that‘s what I‘m specifying is that I‘m not saying that the law is wrong and that they can‘t use it against me. I‘m saying that the way that they‘re trying to use the law against me isn‘t - isn‘t correct.
(Emphasis added.) (Tr. Vol. I at 42-43.)
{¶ 22} The trial court then asked Clark if he was arguing that
{¶ 23} Clark then appeared to suggest that the exception contained in
{¶ 24} Taking Clark‘s pretrial statements as a whole, we conclude he affirmatively disclaimed any facial or as-applied constitutional challenge to
{¶ 25} Although we are mindful of Clark‘s status as a pro se defendant, we also take him at his word in selecting the arguments he sought to pursue before the trial court. In this case, Clark expressly disclaimed a constitutional challenge to the statute in the trial court, and his subsequent arguments were consistent with that disclaimer. Under these circumstances, because Clark waived any constitutional argument in the trial court, he may not raise it now on appeal. See State v. Callahan, 10th Dist. No. 22AP-221, 2022-Ohio-4103, ¶ 14, quoting State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, ¶ 10 (” ‘A first principle of appellate jurisdiction is that a party ordinarily may not present an argument on appeal that it failed to raise below.’ “). Therefore, we need not address Clark‘s arguments on appeal regarding the constitutionality of
{¶ 26} Accordingly, we overrule Clark‘s second assignment of error.
{¶ 27} For the foregoing reasons, we overrule Clark‘s two assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
BOGGS and EDELSTEIN, JJ., concur.
Judgment affirmed.