State v. Woods

• Citation: 8 Ohio App.3d 56,455 N.E.2d 1289,8 OBR 87
• Parties: , 8 O.B.R. 87 The STATE of Ohio, Appellee, v. WOODS et al., Appellants. *
• Decision Date: 05 March 1982
• Court: United States Court of Appeals (Ohio)

Page 56

8 Ohio App.3d 56

455 N.E.2d 1289, 8 O.B.R. 87

The STATE of Ohio, Appellee, v. WOODS et al., Appellants. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 5, 1982.

Syllabus by the Court

1. A police officer's personal observations and independent police investigation which confirm an anonymous informant's tip that an individual is armed demonstrate its reliability so as to justify a stop and limited search.

2. Simultaneous, undifferentiated possession of multiple firearms in violation of R.C. 2923.12(A) constitutes a single offense. Division of one continuous, indivisible act into

multiple offenses is prohibited by R.C. 2941.25(A).

3. The defendant's right to be present at every stage of the trial does not include a right to participate personally during an in camera inspection of statements made by the prosecutor's witnesses, when the defendant is represented by counsel in that procedure.

4. A defendant can be convicted of a greater offense involving an additional element rather than a lesser offense which does not include that element, even though the verdict forms do not expressly state the degree of the offense or that the additional element is present if (a) the verdict forms refer to the offense "as charged in the indictment," (b) the indictment expressly states the elements for the greater offense, and (c) the court has read the indictment to the jury as part of its instructions.

John T. Corrigan, Pros. Atty., for appellee.

Marillyn Fagan Damelio, Avon Lake, and Paul Mancino, Jr., Cleveland, for appellants.

MARKUS, Judge.

Defendants seek reversal of their respective convictions in a joint jury trial of three counts of carrying concealed weapons and one count of receiving stolen property. We find that the three counts of carrying concealed weapons constitute a single offense for each defendant. Otherwise, we find no error. Defendants each assign the same ten claimed errors.

"I. The defendant was denied his constitutional rights when the court refused to suppress evidence obtained as a result of an illegal search and seizure."

Defendants contend police officers illegally seized the evidence used against them. Testimony presented at the suppression hearing shows the police department received a telephone call from a man who refused to identify himself, but who reported that two men responsible for multiple robberies in the area of the Belmont and Midtown Hotels could be found near those hotels. ¹ The informant said the men were operating a car owned by Curtis Melton, also known as Curtis Blassingame. The caller described the car, the men, and their clothing; he said one man's first name was Dennis and the other man's name was Crim. He added that he knew another man named Joe King would soon receive a drug shipment.

The information received from the anonymous caller was given to Detective Bakker, who knew Blassingame and recognized the accuracy of the caller's description of Blassingame's Cadillac. Bakker also knew there had been several recent robberies at or near the named hotel, and had independent information that the informant's information about the drug shipment to Joe King was correct. Bakker testified that Joe King was a known associate of Blassingame, and that King was known to be a part owner and manager of the Midtown Hotel.

Bakker and his partner, Detective Meyke, drove to the Belmont Hotel where they saw Blassingame's Cadillac parked on the street. The officers watched the Cadillac from their unmarked car in a nearby parking lot. Within fifteen minutes two males and two females entered Blassingame's Cadillac and drove away. The driver was later identified as Dennis Woods, and the front seat passenger was later identified as Royce Crim.

Because the men fit the informant's descriptions, the officers radioed for assistance and followed the Cadillac. They turned on their police siren and bright lights, and shined a red spotlight into the Cadillac's rear window. The Cadillac did not stop. As it proceeded at approximately twenty m.p.h., the officers saw Woods and Crim moving in the front seat "as if somebody was handing something to somebody." They saw Crim reach back and hand shiny objects to the two women in the back seat, who in turn bent down "as if to secrete something underneath the seats of the vehicle." The officers testified they believed the suspects were hiding guns under the car seats.

Defendant Woods then stopped the Cadillac and got out. While Bakker began to search him for weapons, Meyke saw one of the women in the back seat duck towards the back of the driver's seat with something shiny in her hand. Meyke told Bakker he thought one of the suspects had a gun and ordered the woman not to move. A back-up police unit arrived, and all four suspects were searched for weapons. The officers then searched the Cadillac and found three loaded revolvers under the driver's seat.

To satisfy Fourth Amendment requirements the state must demonstrate that the officers stopped defendants without violating their reasonable expectations of privacy. Detentions which are less intrusive than a traditional arrest are justifiable when the public interest outweighs "the individual's right to personal security free from arbitrary interference by law officers." See Pennsylvania v. Mimms (1977), 434 U.S. 106, at 109, 98 S.Ct. 330, at 332, 54 L.Ed.2d 331; United States v. Brignoni-Ponce (1975), 422 U.S. 873, at 878, 95 S.Ct. 2574, at 2578, 45 L.Ed.2d 607; Brown v. Texas (1979), 443 U.S. 47, at 50, 99 S.Ct. 2637, at 2640, 61 L.Ed.2d 357. In that situation, the state must show that the officers were aware of specific, articulable facts from which they had a reasonable basis to suspect that defendants were involved in criminal activity or that they were armed and dangerous. Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 ; Brown v. Texas, supra.

When the police stopped the Cadillac, their suspicion that defendants were armed and involved in criminal activity was based on the informant's information, and their own observations that the car did not stop when the siren sounded until shiny objects were being passed to the rear seat and apparently hidden there. Information from a reliable informant that an individual is armed may be sufficient to justify a stop and limited search, without further grounds to suspect danger. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. Defendants argue there was no reason to consider the anonymous caller reliable, contending that an informant's information will not suffice to authorize a search warrant unless he is shown to have some basis for his reported knowledge and the officer has good reason to believe the informant is credible. Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

However, in this case, the officers had substantial independent information to corroborate the informant's report and demonstrate its reliability. Although they did not need probable cause for an arrest when they conducted this stop and limited search, the information received may well have provided probable cause. Thus, in State v. Heston (1972), 29 Ohio St.2d 152, 280 N.E.2d 376 , paragraph one of the syllabus, the court stated:

"An unidentified informer's tip that a defendant has committed a felony, which is corroborated by evidence uncovered by independent police work verifying in detail the information supplied by the informer and makes apparent its trustworthiness, is sufficient to establish probable cause for an arrest."

See, also, State v. Wayne (May 31, 1979), Cuyahoga App. No. 38912, unreported; State v. Stevens (June 16, 1977), Cuyahoga App. No. 35720, unreported. Cf. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (informant was previously reliable); State v. Lockett (July 31, 1980), Cuyahoga App. No. 40284, unreported (informant was previously reliable).

In State v. Stevens, supra, the police received an anonymous tip describing a man and woman who would arrive on a Greyhound bus from Youngstown with two and one-half ounces of heroin and a gun. This court held the police had justifiable cause to search the suspects when they met the Youngstown bus and observed a man and woman fitting the description given by the informant. The tip coupled with the corroborating evidence was sufficient.

In the present case the police officers' personal observations corroborated the anonymous caller's description of the suspects, their location, and the car in which they were riding. Independent police investigation also confirmed the informant's report of an illicit drug delivery. In all these circumstances, the officers had reasonable grounds to believe the remaining unverified information that defendants were armed and had committed several robberies. See State v. Wayne, supra. Therefore, the officers were legally justified in stopping the Cadillac for further investigation.

Once they had stopped the car, they were authorized to direct that the passengers exit. Pennsylvania v. Mimms, supra; State v. Darrington (1978), 54 Ohio St.2d 321, 376 N.E.2d 954 . For their own protection, they were justified in making a limited search for weapons. They had information from the anonymous tip that defendants were armed, and they saw defendants making gestures which led them to believe defendants were hiding their weapons under the seats of the car. State v. Smith (1978), 56 Ohio St.2d 405, 384 N.E.2d 280 ; State v. Kessler (1978), 53 Ohio St.2d 204, 373 N.E.2d 1252 ; State v. Attaway (July 7, 1977), Cuyahoga App. No. 37202, unreported; State v. Hudson (May 8, 1980), Cuyahoga App. No. 41339, unreported.

Defendants' first assignment of error is overruled.

"II. The defendant was denied due process of law and subjected to multiple punishments when he was sentenced to consecutive terms of imprisonment for each of...