STATE OF OHIO v. CHANTEZ MOORE
No. 100401
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2014
2014-Ohio-2979
E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-12-568180-A
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
{¶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
{¶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.
{¶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
{¶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
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.”
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
{¶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
{¶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
{¶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}
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.
{¶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
{¶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
{¶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
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