STATE OF OHIO, Plaintiff-Appellee vs. COZTED PHILLIPS, Defendant-Appellant
No. 103895
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2016
2016-Ohio-7049
BEFORE: Kilbane, P.J., Blackmon, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597714-A; RELEASED AND JOURNALIZED: September 29, 2016
Robert L. Tobik
Cuyahoga County Public Defender
Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Nathalie E. Naso
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Cozted Phillips (“Phillips“), appeals from his convictions for having a weapon while under disability, drug possession with a one-year firearm specification, and obstructing official business. For the reasons set forth below, we affirm.
{¶2} On August 28, 2015, Phillips was indicted in a six-count indictment. In Counts 1 and 2, he was charged with having a weaрon while under disability and carrying a concealed weapon, both with a forfeiture specification. In Counts 3 and 6, he was charged with drug possession and trafficking in less than 5 grams of cocaine, both with a one-year firearm specification and forfeiture specifications. In Count 4, he was charged with possession of criminal tools, with a furthermore clause identifying the tool as a 9mm semiautomatic weapon, and forfeiture specifications. In Count 5, he was charged with obstructing оfficial business.
{¶3} The state‘s evidence demonstrated that on July 20, 2015, Cleveland Police Detective Thomas Barry (“Detective Barry“) and Sergeant Baeppler, together with other officers from the Cleveland Police Gang Impact Unit (“CPGIU“), were оn patrol in two separate vehicles in the Buckeye neighborhood in response to complaints of “gang, gun, and drug activity.” Detective Barry, who has 17 years of experience as a police officer, and Sergeant Baeрpler, who has 20 years of experience, both testified that they have extensive training in dealing with gangs and identifying individuals who may be in possession of illegal weapons.
{¶5} According to Detective Barry, Phillips fled southbound on East 117th Street, but Detective Barry apprehended him in a backyard. While holding Phillips on the ground, and as he was being handcuffed, Detective Barry found several rocks of suspected crack cocaine directly under Phillips.
{¶6} After test firing the weapon, it was determined to be operational. The officers admitted that no DNA analysis was performed on the gun. In an interview with Phillips at the Justice Center after his arrest, Phillips told the officers thаt the weapon belonged to a juvenile who was at the scene. Phillips admitted to possessing crack cocaine.
{¶8} At the close of the state‘s case, the trial court acquitted Phillips of Count 6, the trafficking charge. Phillips did not present evidence, and the matter was presented to the jury. The jury subsequently convicted Phillips of Counts 1, 3, and 5, having a weapon while under disability, drug possession with a one-year firearm specification, and obstructing official business. The jury acquittеd him of Counts 2 and 4, carrying a concealed weapon and possession of criminal tools. Phillips was sentenced to a total of two years of imprisonment. He now appeals, assigning the following sole assignment of error for our review:
Assignment of Error
Trial counsel was ineffective when he failed to pursue a meritorious motion to suppress based upon the unlawful seizure of [Phillips].
{¶9} Within this assignment of error, Phillips argues that the arresting officers lacked reasonable, articulable suspicion to justify an investigatory stop because he and his friends were simply hanging out, and some of the individuals who had been in the street had already begun to walk back to the sidewalk by the time the officers returned to the area. Therefore, he argues thаt at a minimum, the drugs recovered from him would have been suppressed if he had effective trial counsel.
{¶11} In order to establish dеficient performance, it must be shown that, under the totality of the circumstances, counsel‘s representation fell below an objective standard of reasonableness. Id. at 688. A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). A court “must indulge a strong presumption that counsel‘s conduct falls within a wide range of reasonable professional assistance.” Id. at 689. Debatable trial tactics and strategies generally do not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, 656 N.E.2d 643. In order to establish prejudice, it must be shown that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. Strickland at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome” of the proceeding. Id.
{¶12} The failure to file a motion to suppress is not per se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. As explained in State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550,
the failure to file a motion to suppress constitutes ineffective assistance of counsel only when the record demonstrates that the motion would have been successful if made. Even if some evidence in the record supports a motion to suppress, counsel is still considered effective if counsel could reasonably have decided that filing a motion to suppress would have been a futile act.
Id. at ¶ 28.
{¶13} The
{¶14} In State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), the Ohio Supreme Court analyzed “what degree of conduct must a police officer observe to givе rise to a ‘reasonable suspicion.‘” Id. at 178. The Bobo court held that the “propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances.” Id. at paragraph one of the syllabus. The court further held that
where a police officer, during an investigative stoр, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others.
Id. at paragraph two of the syllabus.
{¶15} In making this determination, the Bobo court found the following facts to be significant:
(1) [T]he area in which the actions occurred was an area of very heavy drug activity in which weapons were prevalent; (2) it was nighttime, when weapons could easily be hidden; (3) * * * one of the officers who approached the vehicle in which Bobo was sitting, had about twenty years of еxperience as a police officer and numerous years in the surveillance of drug and weapon activity — included in this experience were about five hundred arrests each for guns or drugs city-wide and over one hundred arrests in the arеa in which Bobo was parked; (4) [the officer‘s] knowledge of how drug transactions occurred in that area; (5) [the officer‘s] observations of Bobo disappearing from view then reappearing when the police car was closе, looking directly at the officers and then bending down as if to hide something under the front seat; (6) [the officer‘s] experience of recovering weapons or drugs when an individual would make the type of gesture made by Bobo in ducking under his seat; and (7) the рolice officers’ being out of their vehicle and away from any protection if defendant had been armed.
Id. at 180. Accord State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 16 (12th Dist.).
{¶16} However, as this court explained in State v. Fincher, 76 Ohio App.3d 721, 603 N.E.2d 329 (8th Dist.1991),where a defendant approaches an occupied car on foot and then, upon seeing the police, retreats from the scene, this is not sufficient activity to justify an investigative stop, even in an area of drug activity. Similarly, in State v. Walker, 90 Ohio App.3d 132, 628 N.E.2d 91 (8th Dist.1993), this court held that the mere
{¶17} In this matter, the record demonstrated that the CPGIU was patrolling the area because of complaints of “gang, gun, and drug activity” in response to recent crimes involving firearms and acts of violence. The stop occurrеd at approximately 10:00 p.m., when weapons could easily be hidden. The officers of the CPGIU had extensive training on dealing with gangs and identifying individuals who may be in possession of weapons. The record also established that the officers have extensive knowledge of how drug transactions occur in that area. While on patrol, the officers observed a group of people loitering in the street. The officers left the area and circled around the block. When they returned, some of the individuals who had been in the street were on the sidewalk, but two males remained in the street near a parked car. The officers noted that while Phillips was watching them, he made a motion against his body and then placed an objеct under the vehicle. The officers testified that with their knowledge and experience and having made hundreds of arrests, this motion was consistent with a suspect removing a weapon from the waistband, an area where a gun is typically held. It is a furtivе gesture. Moreover, after Phillips placed the object under the vehicle, he immediately began to flee.
{¶18} In light of all of the foregoing, we conclude that the officers had reasonable suspicion based upon specific аrticulable facts that Phillips was engaged in criminal activity. Supported by the totality of the surrounding circumstances, and by
{¶19} Appellant‘s sole assignment of error is overruled.
{¶20} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR