[Cite as State v. Hughley, 2010-Ohio-6010.]




                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )      CASE NO.     09 MA 200
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )      OPINION
                                              )
MATRICE HUGHLEY,                              )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 09CR682.


JUDGMENT:                                         Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                           Attorney Paul Gains
                                                  Prosecuting Attorney
                                                  Attorney Ralph Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503


For Defendant-Appellant:                          Attorney James Gentile
                                                  42 North Phelps Street
                                                  Youngstown, Ohio 44503-1130


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
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                                             Dated: November 24, 2010

VUKOVICH, P.J.


       ¶{1}   Defendant-appellant Matrice Hughley appeals the decision of the
Mahoning County Common Pleas Court, which denied his motion to suppress a
handgun found on his person during a pat-down. Appellant contends that the officer
did not possess reasonable suspicion to believe that he was armed and dangerous
and thus the frisk was unwarranted. Under the totality of the circumstances, however,
reasonable suspicion existed to validate the frisk.     For the following reasons, the
judgment of the trial court is affirmed.
                              STATEMENT OF THE CASE
       ¶{2}   On June 1, 2009 at 5:15 a.m., ambulance personnel noticed a vehicle
sitting on Himrod Avenue on Youngstown’s east side.            They called the police
department reporting that the driver appeared to be passed out behind the wheel and
that they could not awaken him after several attempts. (Tr. 7-8). When an officer
arrived, appellant was awake and arguing with a medic.         The officer noticed that
appellant’s speech was slurred and that he appeared to be under the influence of
drugs or alcohol. (Tr. 8). As the car was in drive, the officer asked appellant to put it
in park.   Appellant was not compliant until the officer made several requests and
appellant kept moving his hands about within the car. (Tr. 8-9).
       ¶{3}   The officer then asked appellant to step out of the vehicle.        It took
several requests before appellant complied. (Tr. 9, 16). When he finally alighted from
the vehicle, the officer conducted a brief pat-down for officer safety. (Tr. 9, 11, 17).
The officer discovered a .38 caliber handgun on appellant’s person. (Tr. 15). Appellant
was arrested for carrying a concealed weapon, a fourth degree felony in violation of
R.C. 2923.12(A)(2).
       ¶{4}   Appellant filed a motion to suppress the handgun, alleging in pertinent
part that the officer lacked reasonable suspicion to frisk him. After the officer related
the above facts, appellant testified that he had been working as a cook in a pub in
Warren and that he had been on his way to his girlfriend’s house. (Tr. 21, 34). He
                                                                                     -3-


stated that she lived in a dangerous area just down the road from where he stopped
his vehicle. (Tr. 21). He explained that he stopped in order to text her so that she
would be ready to let him into the building. (Tr. 20). He denied that he had been
drinking or that he had been passed out. (Tr. 23). He also believed that it was
approximately 2:30 a.m. when he stopped his vehicle. (Tr. 21, 28).
       ¶{5}   The trial court denied the motion in an August 25, 2009 judgment entry,
finding that there was reasonable suspicion to conduct the frisk. Thereafter, appellant
pled no contest to carrying a concealed weapon. On October 28, 2009, the trial court
found appellant guilty and sentenced him to two years of community control and
required the completion of an outpatient program. Appellant filed a timely appeal.
                              ASSIGNMENT OF ERROR
       ¶{6}   Appellant’s sole assignment of error provides:
       ¶{7}   “THE COURT ERRED IN FAILING TO GRANT THE MOTION TO
SUPPRESS THE EVIDENCE SINCE THE SEARCH OF THE APPELLANT WAS
AGAINST APPELLANT’S CONSTITUTIONAL RIGHTS.”
       ¶{8}   Suppression decisions present mixed questions of law and fact. State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100. Any legal issues are decided de
novo. Id. Any factual findings are upheld as long as they are supported by competent,
credible evidence. Id. The weight of the evidence and the credibility of witnesses at
the suppression hearing are issues primarily for the province of the trial court. State v.
Mills (1992), 62 Ohio St.3d 357, 366; State v. DePew (1988), 38 Ohio St.3d 275, 277;
State v. Fanning (1982), 1 Ohio St.3d 19, 20.
       ¶{9}   Appellant does not take issue with the fact that he was ordered to exit
the vehicle. Rather, he contests only whether the frisk was warranted.
       ¶{10} A police officer may make a brief, warrantless, investigatory stop without
probable cause when the officer has a reasonable suspicion that the individual is or
has been involved in criminal activity. Terry v. Ohio (1968), 392 U.S. 1. During such
an encounter, an officer is authorized to perform a limited pat-down search for
weapons as a safety precaution if there is a reasonable suspicion that the person
stopped may be armed and dangerous. Id. at 24.
                                                                                      -4-


       ¶{11} Reasonable suspicion means that the investigating officer must be able
to point to specific, articulable facts that, when coupled with any rational inferences
that may be drawn from those facts, warrant the investigation.                  Id.   The
reasonableness of a stop and frisk is based upon the totality of the circumstances.
State v. Andrews (1991), 57 Ohio St.3d 86, 87. These circumstances are to be viewed
through the eyes of the reasonable and prudent police officer on the scene who must
react to events as they unfold. Id. at 87-88. An officer need not artfully articulate his
justification for the frisk as long as there is evidence in the record that the officer had
specific facts before him suggesting the subject may be armed or dangerous. State v.
Whitfield (Nov. 1, 2000), 7th Dist. No. 99CA111, ¶30.
       ¶{12} Here, the officer had information from dispatch that medics from Rural
Metro Ambulance were reporting that appellant was passed out behind the wheel of
his vehicle.   The officer then confirmed this with the medic and was specifically
advised that appellant was not easily awakened. Notably, the informants here were
expressly identified. See State v. Otte (1996), 74 Ohio St.3d 555, 559. They were not
anonymous tipsters or criminal informants. See Maumee v. Weisner (1999), 87 Ohio
St.3d 295, 300 (noting the three main types of informants and explaining their varying
levels of trustworthiness). There was no reason for the officers to disbelieve these
witnesses. See, e.g., State v. Neeley, 2d Dist. No. 20842, 2006-Ohio-418, ¶22 (an
eyewitness identification will constitute probable cause unless at the time of the arrest
there is some apparent reason for the officer to disbelieve the eyewitness). As such,
the officer could properly act under the belief that appellant was passed out behind the
wheel of a vehicle.
       ¶{13} Moreover, it was 5:15 a.m. on Youngstown’s east side approaching an
area that appellant suggested was dangerous. From appellant’s testimony, it appears
that he was stopped in the roadway. (Tr. 22). When the officer arrived, he noticed
that the vehicle was in drive. The officer heard appellant arguing with the medic. He
noticed that appellant’s speech was slurred and that he generally appeared to be
under the influence of drugs or alcohol. Appellant was hesitant and moved his hands
oddly. He was noncompliant with requests to put the car in park and to step out of the
                                                                                    -5-


vehicle, which appellant admits were proper requests. The officer expressed that he
conducted a brief frisk out of concern for his safety. (Tr. 9, 11, 17).




       ¶{14} In conclusion, the officer sufficiently articulated particular facts showing
his justification for the frisk. There were various reasons to believe that appellant had
been operating a motor vehicle while under the influence of alcohol or drugs. Besides
being passed out behind the wheel of the vehicle which was sitting in the roadway, it
appears he was passed out with the vehicle in drive. As he had just been passed out,
his condition could be considered unstable, especially since he appeared to be
intoxicated and since he was not compliant with important safety requests. Under the
totality of the circumstances, the officer possessed reasonable suspicion that appellant
may have posed a danger to his safety. As such, the brief pat-down on appellant’s
outer clothing was warranted before the officer permitted appellant to enter his pocket
for identification.
       ¶{15} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
