State v. Ishmael F. Howard

• Decision Date: 25 September 2001
• Docket Number: CT2001-0015,01-LW-3682
• Citation: 2001 Ohio 1379
• Parties: STATE OF OHIO, Plaintiff-Appellee v. ISHMAEL F. HOWARD, Defendant-Appellant Case
• Court: Ohio Court of Appeals

2001-Ohio-1379

STATE OF OHIO, Plaintiff-Appellee v. ISHMAEL F. HOWARD, Defendant-Appellant

No. CT2001-0015

01-LW-3682 (5th)

Court of Appeals of Ohio, Fifth District Muskingum

September 25, 2001

Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2000-0099

Hon. W Scott Gwin, P.J. Hon. John W. Wise, J. Hon. John F. Boggins J.

For Plaintiff-Appellee ROBERT SMITH Assistant Prosecuting Attorney 27 North Fifth Street Zanesville, OH 43701

For Defendant-Appellant COLE J. GERSTNER 320 Main Street, P.O. Box 190 Zanesville, OH 43702-0190

OPINION

Gwin P. J.,

Appellant Ishmael F. Howard appeals a judgment of the Muskingum County Common Pleas Court convicting him of possession of marijuana and no operator's license:

ASSIGNMENTS OF ERROR

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING THE MULTI BRANCH MOTION TO SUPPRESS ALL EVIDENCE SEIZED, INCLUDING, BUT NOT LIMITED TO THE CONTRABAND AND CASH.

SECOND ASSIGNMENT OF ERROR

THE CONVICTION FOR POSSESSION OF MARIJUANA IS LEGALLY INSUFFICIENT AS A MATTER OF LAW AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ALLOWING EVIDENCE REGARDING THE CASH IN THE POCKET OF THE APPELLANT IN THAT SAID EVIDENCE WAS INADMISSIBLE PURSUANT TO EVIDENCE RULE 404 AND 403.

At approximately 11:30 p.m. on May 20, 2000, appellant was traveling westbound on Interstate 70, in route to Columbus. Appellant stopped at a Shell station to get some gasoline. Beside the Shell station was a parking lot, which separates the station from a McDonald's restaurant. Appellant bought $5.00 worth of gasoline, and went inside the station to pay for the gasoline. He left his vehicle unattended in front of the gas pumps, and went next door to McDonald's. He walked through the drive-thru window and ordered food. During appellant's absence, Trooper Bruce MacLaine, of the Ohio State Highway Patrol, came to the station to get coffee. The attendant indicated that appellant had left his vehicle unattended in front of the gas pump and the attendant was not sure where appellant went. The car was running. Trooper Bruce MacLaine took the license plate number, called his dispatcher, and asked for a check of the plate. He was informed by the dispatcher that the owner of the vehicle was Malachi Anthony, and there was felony warrant out for his arrest. At this point in time, the trooper observed an individual running towards the car, carrying a McDonald's bag. The individual, who the trooper later determined to be appellant, jumped into his car, and left the gas station after seeing the trooper. The trooper got into his patrol car, and followed appellant east on U.S. 40. He activated his lights, and stopped appellant's vehicle at an Elby's Restaurant. Before the trooper could exit his car, appellant jumped out of his car, and came back to the rear bumper on the driver's side of the vehicle, preventing the trooper from approaching the car. The trooper asked appellant if he was Malachi Anthony. Appellant responded that he was not, but Malachi Anthony owned the car. The trooper asked if appellant had any identification or a driver's license, and appellant responded that he had left his license in his wallet at home, in Wheeling, West Virginia. Appellant could not produce any identification to demonstrate that he was not Malachi Anthony. Trooper MacLaine came back to his patrol car, intending to ascertain his identity. He noted that appellant's pants were bulging around the pockets and waist. Before placing him in the car, he patted him down. While patting appellant down, he noted large bulges in his pants pockets. Appellant said the bulges were money, approximately $8,000 in cash. Appellant removed the money, and Trooper MacLaine finished patting him down. Appellant was then told to put the money back in his pockets. The trooper then had appellant take a seat in his patrol car. Trooper MacLaine ascertained that appellant had an Ohio identification card, and no driving privileges in the State of Ohio. He further ascertained that appellant's driving privileges were suspended through the State of West Virginia. As the trooper was writing a citation, appellant put his arm around the back of the car seat behind the trooper. The vehicle had bucket seats, and appellant positioned his body as though he was squaring off with the trooper. Several times, the trooper directed appellant to put his arm down. Hearing on his radio that there was a felony warrant for the owner of the car, Trooper Leroy Bethel arrived on the scene as backup. He approached appellant's car and looked in it. He then returned to the cruiser, and alerted MacLaine that he observed drugs in the vehicle. Shining a flashlight into the car, the troopers noted a "bud" of marijuana sticking out of a paper bag, which was under a sweatshirt in the backseat. Appellant was then placed under arrest. The officers opened a suitcase in the trunk of the vehicle, which contained cocaine and drug paraphernalia. Appellant was charged with possession of cocaine, possession of drug paraphernalia, possession of marijuana, no operator's license, and permitting drug abuse. The possession of cocaine and drug paraphernalia charges included a specification requesting forfeiture of the cash in appellant's possession. The case proceeded to jury trial in the Muskingum County Common Pleas. The State entered a nolle prosequi on the forfeiture specifications, as forfeiture proceedings were being handled by the Federal Drug Enforcement Agency. Following jury trial, appellant was acquitted of possession of cocaine and drug paraphernalia. Appellant was found guilty by the jury on the three remaining charges. The court then entered a judgment of acquittal on the charge of permitting drug abuse. As to the conviction of possession of marijuana, appellant was placed on community control for a period of three years. On the conviction for no operator's license, appellant was sentenced to 30 days incarceration, to run consecutively with the sentence of community control.

I

Appellant argues that the court erred in denying his multi-branch motion to suppress all evidence seized including the contraband and cash. Appellant specifically challenges the stop of the vehicle, the Terry pat-down, the plain-view seizure of the marijuana, and the search of the luggage in the trunk of the car. Appellant first argues that the officers' stop of the vehicle was not justified by a reasonable suspicion of criminal activity. Appellant argues that the officer witnessed no criminal behavior, and that the physical description of Malachi Anthony given to the officer was that he was Caucasian, while appellant was African-American. When an officer runs a check of a vehicle's license plate, and learns that the owner's license is suspended, the officer may rationally infer that the owner of the vehicle is likely to be driving the vehicle, giving rise to a reasonable, articulable suspicion to justify the stop. State v. McClain (December 8, 1997), Stark Appellate No. 1997CA00125, unreported. However, if the officer sees the driver and can tell that his or her physical description does not match the description given of the owner of the vehicle, the inference that the driver of the vehicle is its owner is no longer rational, and the officer may lack reasonable suspicion to stop the vehicle. State v. Cricks (October 2, 2000), Stark Appellate No. 2000CA00121, unreported. In the instant case, the dispatcher relayed only to the officer that the owner of the vehicle was Malachi Anthony, and there was a felony warrant out for his arrest. Before the trooper could obtain a physical description of Malachi Anthony, appellant jumped in his car and drove away, causing the officer to give chase. The officer did not learn that Malachi Anthony was Caucasian until after he had stopped the vehicle, and appellant had failed to produce identification. Based on the information possessed by the officer, he had a reasonable suspicion of criminal activity to justify stopping the vehicle. Further, appellant had left the vehicle running and unattended at the gas pump at the Shell station. R.C. 4511.661 provides that person driving a motor vehicle shall not permit it to stand unattended without first stopping the engine. Therefore, the officer witnessed appellant commit a traffic offense, providing further suspicion for the stop. Appellant next argues that the pat-down of appellant was not justified. Where an officer observes unusual conduct which leads him reasonably to conclude, in light of his experience, that criminal activity may be afoot, and the person with whom he is dealing may be armed and dangerous, and...