[Cite as State v. Penn, 2011-Ohio-2918.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95563




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     LUCAS O. PENN
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-519314

        BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      June 16, 2011
ATTORNEY FOR APPELLANT

Kelly A. Gallagher
P.O. Box 306
Avon Lake, Ohio 44012


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Lucas Penn, was arrested following a foot chase where

he was seen by a Cleveland police officer discarding a firearm as he ran.

Appellant was convicted of carrying a concealed weapon. He now appeals

claiming the “trial court erred in denying [his] motion to suppress.” After a

thorough review of the facts and law, we affirm.

      {¶ 2} Vice detectives of the Cleveland Police Department were

conducting controlled drug buys in the area of Gooding Avenue in Cleveland.

Detective Rodney McClendon testified at appellant’s suppression hearing that

the vice unit was being assisted by patrol officer James Dunn. While the

officers were there, they received a few broadcasts that several robberies had
occurred in the area.    The report contained the descriptions of a vehicle

involved and two male individuals responsible.

      {¶ 3} Sometime after receiving the report, the officers observed a

vehicle matching the description, a white Ford Escort with a dent in its right

front side.   The officers gave chase, but they eventually lost sight of the

vehicle. After a brief search, the vehicle was discovered behind a home or

apartment building by Officer Dunn.        Det. McClendon testified that, by

looking through the window, he observed bullets for a gun sitting on the seat

of the vehicle.

      {¶ 4} Eventually, the owner of the vehicle was located, and she told the

officers that her boyfriend had been driving it. She provided them with an

address where the boyfriend could be located. The officers headed to this

location, some seven blocks away. Once there, Det. McClendon was let into

the home and talked to the residents, but did not find the two individuals.

Det. McClendon testified that once he was outside and driving away, he

observed a male, later identified as appellant, walking down the street who fit

the description of one of the occupants of the car. He ordered the individual

to stop, the individual ran, and the officers gave chase.

      {¶ 5} Officer Dunn had been waiting on the street some distance from

the house while the detectives were inside and after they left. He observed

appellant running    and being chased by police officers.    He then pursued
appellant on foot. After Officer Dunn closed the gap to approximately ten

feet, he observed appellant lift his shirt, retrieve a gun from his pocket or

waistband with his left hand, and toss the gun into some bushes. A short

time later, appellant was apprehended after Officer Dunn deployed his taser.

      {¶ 6} At trial, appellant was convicted of carrying a concealed weapon

in violation of R.C. 2923.12(A)(2) and sentenced to a one-year term of

incarceration.

                                Law and Analysis

      {¶ 7} “In a motion to suppress, the trial court assumes the role of trier

of fact and is in the best position to resolve questions of fact and evaluate

witness credibility. A reviewing court is bound to accept those findings of

fact if supported by competent, credible evidence.         However, without

deference to the trial court’s conclusion, it must be determined independently

whether, as a matter of law, the facts meet the appropriate legal standard.”

(Internal citations omitted.) State v. Curry (1994), 95 Ohio App.3d 93, 96,

641 N.E.2d 1172.

      {¶ 8} The Fourth Amendment to the United States Constitution

prohibits warrantless searches and seizures, rendering them per se

unreasonable unless an exception applies. Katz v. United States (1967), 389

U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.         Common exceptions include
consensual encounters with police officers and investigative or Terry stops.

Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

      {¶ 9} Under Terry, a police officer may stop a person and investigate,

even without probable cause to arrest, if he has sufficient evidence to

reasonably conclude that criminal activity is afoot. The officer “must be able

to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion.” Terry at 21.

An investigatory stop “must be justified by some objective manifestation that

the person stopped is, or is about to be, engaged in criminal activity.” United

States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621.

      {¶ 10} “In determining the reasonableness of the officer’s belief, courts

examine the totality of the circumstances, including the following factors: (1)

whether the location of the contact is an area of high crime or high drug

activity, (2) the suspect’s non-compliance with the officer’s orders, (3) the time

of the occurrence, (4) the officer’s experience, (5) the lack of backup for the

officer, (6) the contact’s location away from the police cruiser, (7) whether the

suspect is fleeing the officer or the scene, (8) any furtive movements by the

suspect, (9) the precautionary measures taken by the officer, and (10) the

suspected offense.” (Internal citations omitted.) State v. Stiles, Ashtabula

App. No. 2002-A-0078, 2003-Ohio-5535, ¶17.
     {¶ 11} The state argues that a stop did not take place until appellant

submitted to the show of authority, and therefore appellant was not in

custody when he discarded the weapon. See California v. Hodari D. (1991),

499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690. However, the state did not

make this argument before the trial court, and at least a few appellate courts

in Ohio, including this one, have been reticent to address arguments by the

state that were not raised before the trial court at the suppression hearing.

See State v. Jobes, Montgomery App. No. 20210, 2004-Ohio-1167; State v.

Massingill, Cuyahoga App. No. 92813, 2009-Ohio-6221.

     {¶ 12} Even though this court is charged with determining if the trial

court applied the facts of the case to the appropriate legal standard, if the

state does not argue an applicable legal standard below, we are not required

to address it for the first time on appeal. Jobes at ¶24. In this case, we

need not wade into an analysis of prejudice and plain error necessary to

address the state’s new contention because it presented sufficient evidence to

demonstrate that officers possessed a reasonable suspicion of criminal

activity when Det. McClendon shouted at appellant to stop.

     {¶ 13} Appellant argues that Det. McClendon lacked probable cause to

stop him at the time the detective instructed him to stop and he fled. Det.

McClendon observed a vehicle drive by that matched the description of one

used in a series of recent armed robberies. After pursuit of the vehicle, the
officers were directed to a house where one of the suspects resided.

Appellant matched the description the officers had heard over the radio in

connection with the robberies. More importantly, Det. McClendon testified

that appellant fit the description of one of the individuals he had seen in the

vehicle as it drove by. Appellant was encountered a few houses down from

where the officers had been directed by the owner of the vehicle. Based on

all of these circumstances, Det. McClendon’s attempt to inquire of appellant

his name and his business in the area to determine if he was one of the

robbery suspects was supported by a reasonable suspicion of criminal activity.

      {¶ 14} Because the attempt to investigate appellant was lawful, the trial

court properly overruled appellant’s motion to suppress. Appellant’s single

assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant 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.
FRANK D. CELEBREZZE, JR., JUDGE

MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
