[Cite as State v. Clark, 2016-Ohio-333.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals Nos. L-14-1240
                                                                       L-14-1241
        Appellee
                                                 Trial Court Nos. CR0201303221
v.                                                                CR0201402125

Antoine Clark                                    DECISION AND JUDGMENT

        Appellant                                Decided: January 29, 2016


                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Jennifer L. Donovan, Assistant Prosecuting Attorney, for appellee.

        Diana L. Bittner, for appellant.

                                           *****

        OSOWIK, J.

        {¶ 1} This is a delayed, consolidated appeal from a July 29, 2014 judgment of the

Lucas County Court of Common Pleas, denying, in part, and granting, in part, appellant’s

motion to suppress evidence, and a September 30, 2014 judgment of the Lucas County
Court of Common Pleas, sentencing appellant to a 12-month term of incarceration for his

first amended conviction of possession of cocaine, in violation of R.C. 2925.11(A), a

felony of the fourth degree, and a six-month term of incarceration for his second

amended conviction of possession of cocaine, in violation of R.C. 2925.11(A), a felony

of the fourth degree, with the sentences ordered to be served consecutively. For the

reasons set forth below, this court affirms the judgment of the trial court.

       {¶ 2} Appellant, Antoine Clark, sets forth the following two assignments of error:

              1. The trial court erred in denying defendant appellant’s motion to

       suppress evidence seized pursuant to the traffic stop.

              2. The trial court erred in not complying with the purposes and

       principles of sentencing under ORC §2929.11 and §2929.12 at the

       sentencing hearing.

       {¶ 3} The following undisputed facts are relevant to this appeal. On September 11,

2013, appellant’s vehicle was stopped in North Toledo on suspicion of the vehicle

possessing unlawfully tinted windows in violation of a local traffic ordinance.

       {¶ 4} As the police officer approached appellant’s vehicle, he immediately

detected a powerful odor of marijuana emanating from the vehicle. In conjunction with

this tangible observation, the police officer also observed appellant to be behaving in a

suspicious manner. Appellant was both looking straight ahead and not making eye

contact with the officer and also was not replying to questions being asked by the officer.




2.
       {¶ 5} Based upon this combination of suspicious factors, in conjunction with the

issue of tinted windows preventing the officer from seeing inside the vehicle, the officer

instructed appellant to step outside of the vehicle. After appellant did so, the officer

immediately observed a substantial bulge protruding from appellant’s left pant pocket.

Upon inquiry, appellant disclosed having something unlawful on his person. The officer

then recovered 36 grams of cocaine, some marijuana, a digital scale, and a quantity of

cash from appellant’s person.

       {¶ 6} On December 27, 2013, appellant was indicted on one count of possession

of cocaine, in violation of R.C. 2925.11(A), a felony of the first degree, one count of

trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a felony of the first degree, and

one count of possessing weapons while under disability, in violation of R.C.

2923.13(A)(3), a felony of the third degree.

       {¶ 7} On June 10, 2014, while out on bond on the above-described felony

offenses, the Toledo police department responded to an emergency domestic violence call

involving appellant. While searching appellant in the course of arresting him in

connection to the domestic violence incident, the police recovered 19 grams of cocaine

from appellant’s person.

       {¶ 8} On July 17, 2014, appellant was indicted on one count of possession of

cocaine, in violation of R.C. 2925.11(A), a felony of the third degree, and one count of

trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a felony of the third degree.




3.
       {¶ 9} Subsequent to the second set of felony offenses being filed against appellant,

counsel for appellant filed both a motion to suppress evidence of a gun recovered from

appellant’s vehicle in the initial incident and also moved to suppress the additional items

recovered from appellant’s person.

       {¶ 10} On July 19, 2014, following a suppression hearing on the pending motions,

the motion was granted with respect to the gun, and denied with respect to the items

recovered from appellant’s person. Following the suppression ruling, a plea agreement

covering all pending charges against appellant was reached.

       {¶ 11} On August 19, 2014, appellant pled no contest to one amended count of

possession of cocaine, in violation of R.C. 2925.11(A), a felony of the fourth degree, in

connection to the initial incident, and also pled no contest to one amended count of

possession of cocaine, in violation of R.C. 2925.11(A), a felony of the fourth degree, in

connection to the second incident which had occurred while appellant was out on bond

following the initial incident. A presentence investigation report was ordered.

       {¶ 12} On September 30, 2014, appellant was sentenced to a 12-month term of

incarceration for the initial incident and a 6-month term of incarceration for the

subsequent incident, ordered to be served consecutively. All remaining felony counts

pending against appellant were dismissed pursuant to the plea agreement. This appeal

ensued.




4.
       {¶ 13} In appellant’s first assignment of error, appellant maintains that the trial

court erred in not granting appellant’s motions to dismiss in their entirety. We do not

concur.

       {¶ 14} The Supreme Court of Ohio has consistently upheld the constitutional

validity of traffic stops triggered by a reasonable and articulable suspicion of a criminal

violation in light of the totality of the circumstances. State v. Mays, 119 Ohio St.3d 406,

2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8.

       {¶ 15} In conjunction with the above guiding legal parameters, it must be

considered whether in light of all facts available at the time, along with reasonable

inferences from those facts, a reasonable, articulable suspicion of criminal conduct

existed so as to warrant the traffic stop, accompanying search, and the seizure of any

unlawful items discovered during the search. State v. Bobo, 37 Ohio St.3d 177, 178-179,

524 N.E.2d 489 (1988).

       {¶ 16} In applying the above governing legal principles to the instant case, the

record reflects that upon making a traffic stop of a motor vehicle possessing tinted

windows, potentially in violation of a local ordinance, the officer detected a powerful

odor of marijuana emanating from appellant’s vehicle, the officer was unable to see

inside the vehicle, and the officer observed appellant behaving in a suspicious manner.

       {¶ 17} Accordingly, faced with these facts and circumstances, the officer properly

directed appellant to exit the vehicle. Upon exiting the vehicle, the officer immediately

observed a sizable, suspicious protrusion from appellant’s left pant pocket. It was




5.
subsequently determined that appellant possessed a sizable quantity of cocaine, a scale,

cash, and marijuana upon his person.

       {¶ 18} We have carefully reviewed and considered the record of evidence in this

matter. The record reflects ample evidence constituting a reasonable articulable suspicion

in support of the disputed search of appellant’s person. Wherefore, we find appellant’s

first assignment of error not well-taken.

       {¶ 19} In appellant’s second assignment of error, appellant asserts that he was

unlawfully sentenced. In support, appellant contends that the trial court failed to engage

in the requisite consideration of the purposes and principles of sentencing and the

seriousness and recidivism factors in the course of sentencing appellant. The record of

evidence does not bear out this assertion.

       {¶ 20} The transcript of appellant’s sentencing hearing reflects in pertinent part,

              In 1999 [appellant] was convicted in Kentucky of trafficking in

       marijuana, a misdemeanor. [In] 2000, in Kentucky, a federal charge,

       possession with intent to distribute. He was sentenced to eight months in

       custody. He violated probation. He served another four months. [In]

       2003, there was another Kentucky possession of controlled substance,

       second offender. Also, a marijuana possession charge. Domestic violence

       charge in 2011 and in March 2014, disorderly conduct. This defendant

       does have two prior drug offenses. He rates high on the ORAS score, the

       Ohio Risk Assessment Score. Based upon his prior record and that testing,




6.
       I’ll make a finding that this defendant is not amenable to community

       control. * * * And for someone who has two prior felony convictions and

       who committed a new felony when he was on bond, I think that

       incarceration under those circumstances is necessary.

       {¶ 21} The record clearly reflects that the trial court fully and properly engaged in

the requisite analysis prior to the imposition of the disputed sentence. Wherefore, we

find appellant’s second assignment of error not well-taken.

       {¶ 22} Accordingly, we find that substantial justice has been done in this matter.

The judgment of the Lucas County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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