State v. Faggs, 2009 Ohio 1758 (Ohio App. 4/8/2009)
| Decision Date | 08 April 2009 |
| Docket Number | No. 08-CA-35.,08-CA-35. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Clinton Dontez Faggs, III, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Appeal from the Richland County Court of Common Pleas Court, Case No. 2007-CR-390D.
Affirmed.
James J. Mayer, Jr., Richland County Prosecuting Attorney, 38 South Park Street, Mansfield, Ohio 44902, Kirsten L. Pscholka-Gartner, 0077792, (Counsel of Record), Assistant Prosecuting Attorney, for Plaintiff-Appellee.
Sheryl M. Groff 0062793, 415 Park Avenue West, Mansfield, Ohio 44906, for Defendant-Appellant.
Before: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. Patricia A. Delaney, J.
{¶1} Defendant-Appellant Clinton Dontez Faggs, III, appeals from his conviction of one count of carrying a concealed weapon, a felony of the fourth degree. The State of Ohio is Plaintiff-Appellee.
{¶2} On April 15, 2007, at approximately 5:30 p.m., the Mansfield Police Department received a 911 call from a person who stated they were at 542 Woodland Avenue and that they had observed two men, one white and one black, in a black pickup truck, waving a gun around inside the truck.
{¶3} Officer Ronald Barnes, of the Mansfield Park Police, was two blocks away from Woodland Avenue when he heard the dispatch. He responded to the area and pulled up in an alley that intersected with Woodland Avenue. He observed a truck matching the description given by the caller. The truck had two occupants in it, but Officer Barnes could not discern their race at the time he pulled up. He did not immediately approach the truck, as he was waiting for backup to arrive.
{¶4} Officer Phil Messer, Jr., of the Mansfield Police Department, was responding to the call when Officer Barnes radioed that the vehicle was pulling away from the curb. Officer Barnes pulled out behind the truck and followed it. Officer Messer pulled in behind Officer Barnes and both cruisers activated their lights and sirens at the same time. They initiated a felony traffic stop, where they immediately drew their guns and ordered the occupants out of the vehicle. Officer Messer instructed both occupants to put their hands out the windows, which they did, and ordered the driver, who was a Caucasian man named Richard Rowe, out of the vehicle.
{¶5} As Rowe was exiting the truck, Officer Terry Rogers arrived on the scene to provide additional backup assistance. Rowe was compliant as he exited the vehicle. Appellant, the African American passenger, however, began making furtive gestures and disobeyed officers' orders. While the officers were removing Rowe from the truck, Appellant pulled his left hand back inside the vehicle and began making furtive movements as if he was stuffing something in the area of the center console. Officer Rogers repeatedly ordered him to place both hands back outside the window before he complied.
{¶6} After both occupants had been removed from the truck and secured in separate cruisers, officers went back to look inside the vehicle. In plain view, sticking out from underneath the center console, with the handle pointed towards the passenger's seat, was a Glock 17 nine millimeter handgun. On the driver's side floorboard, the officers also observed a small rock of what was later determined to be crack cocaine.
{¶7} Richard Rowe agreed to speak with officers and admitted that he had been addicted to crack cocaine and that he had traveled from Marion, Ohio, to Mansfield with Appellant to obtain drugs. Rowe stated that he had bought drugs from Appellant in the past, but that when he approached Appellant on April 15, 2007, for drugs, Appellant advised him that he did not have any to sell. Appellant agreed to travel to Mansfield with Rowe to purchase some crack and they drove there in Rowe's black Ford F-150 truck, with Appellant traveling in the passenger seat and Rowe driving.
{¶8} The two men arrived at 542 Woodland Avenue in Mansfield, where Rowe parked his truck on the street. They were sitting in the truck for approximately ten minutes when Appellant pulled out a handgun and showed it to Rowe. Rowe testified that he did not like guns because he had seen the damage that they could do when he was in Vietnam and he told Appellant to put it away.
{¶9} Rowe observed a police cruiser pull up to a stop sign on the street where they were parked. He became nervous, so he pulled away from the curb and decided to go somewhere else and call the dealer that he was meeting. The cruiser pulled out behind him and followed him. Rowe testified that as he turned the corner, several other police cruisers pulled up with their lights flashing and ordered him and Appellant out of the truck.
{¶10} Rowe admitted that the crack cocaine found on the floor of the truck had to be his, but that he did not know it was there or he would have smoked it instead of driving to Mansfield to purchase more. He also stated that the weapon did not belong to him and that he does not own any weapons.
{¶11} As a result of this stop, Appellant was indicted by the Richland County Grand Jury on one count of carrying a concealed weapon, in violation of R.C. 2923.12(A)(2). Rowe was indicted on one count of possession of crack cocaine in violation of R.C. 2925.11 and one count of improper handling of a firearm in a motor vehicle, in violation of R.C. 2923.16. Rowe pled guilty to the charge of possession of crack cocaine and the improper handling charge was dismissed. He was sentenced to community control with a possible prison term of nine months suspended barring any violations while he was on community control.
{¶12} Appellant pled not guilty to the charge against him and his case was set for trial. Prior to trial, he filed a motion to suppress the gun which was discovered during the stop, arguing that the anonymous tip did not provide reasonable suspicion for the stop. A hearing was held, where the state presented testimony from police dispatcher Amanda Smith, Officer Barnes, and Officer Rogers. The trial court overruled the motion to suppress, finding that the officers had reasonable suspicion to stop the vehicle after the details provided by the 911 caller were corroborated and that they were authorized to conduct a protective search of the vehicle after they observed Appellant make furtive movements during the stop.
{¶13} Appellant proceeded to jury trial where he was found guilty as charged.
{¶14} Appellant now raises three Assignments of Error:
{¶15} "I. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF APPELLANT.
{¶16} "II. THE CONVICTION OF APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17}
{¶18} In his first and second assignments of error, Appellant argues that there was insufficient evidence to support his conviction and that his conviction was against the manifest weight of the evidence.
{¶19} When reviewing a claim of sufficiency of the evidence, an appellate court's role is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Contrary to a manifest weight argument, a sufficiency analysis raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, 175. The relevant inquiry is 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶20} Conversely, when analyzing a manifest weight claim, this court sits 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 the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed." State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 548, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶21} Pursuant to Crim. R. 29(A), a defendant may make a motion for acquittal "after the evidence on either side is closed." When a defendant moves for acquittal at the close of the state's evidence and that motion is denied, the defendant "waives any error which might have occurred in overruling the motion by proceeding to introduce evidence in his or her defense." State v. Brown (1993), 90 Ohio App.3d 674, 685, 630 N.E.2d 397. In order to preserve a sufficiency of the evidence challenge on appeal once a defendant elects to present evidence on his behalf, he must renew his Rule 29 motion at the close of all the evidence. Id., citing Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464, paragraph one of the syllabus; see, also, Dayton v Rogers (1979), 60 Ohio St.2d 162, 163, 14 O.O.3d 403, 398 N.E.2d 781, overruled on other grounds, State v. Lazzaro (1996), 76 Ohio St.3d 261, 667 N.E.2d 384, syllabus.
{¶22} Upon reviewing the record, we find that Appellant did make a Crim. R. 29 motion at the close of the State's case. However, Appellant then presented evidence on his own behalf, and failed to renew his motion for acquittal at the close of his case. Therefore, Appellant has waived all but plain error regarding a sufficiency argument. In order to find plain error, Crim. R. 52(B) requires that there be a divergence from a legal rule, that the error be an "obvious" defect in the trial proceedings, and that the error affect a defendant's "substantial rights." State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. Reversal on grounds of...
To continue reading
Request your trial