         [Cite as State v. Pryor, 2012-Ohio-1033.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-110205
                                                         TRIAL NO. B-1004140
        Plaintiff-Appellee,                          :

  vs.                                                :
                                                           OPINION
CHESTER PRYOR III,                                   :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 16, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William D. Bell, Sr., for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.

       {¶1}       Defendant-appellant Chester Pryor III appeals the judgment of the

Hamilton County Court of Common Pleas convicting him of carrying a concealed

weapon, a felony of the fourth degree as charged.

       {¶2}       This case stems from the discovery of a firearm in the saddlebag of

Pryor’s motorcycle. The gun was recovered after Pryor had been stopped for traffic

violations. Pryor filed a motion to suppress the firearm, and after the trial court had

overruled the motion, Pryor entered a no-contest plea. The court found him guilty

and sentenced him to five days in jail and a period of community control.

                     The Hearing on the Motion to Suppress

       {¶3}       Early one morning, at around 12:50 a.m., plain-clothes officer

Chris Campo saw Pryor recklessly operating his motorcycle in downtown Cincinnati.

Campo radioed for assistance from a uniformed patrol.

       {¶4}       Pryor stopped his motorcycle before the uniformed patrol had

caught up with him. Campo and the uniformed officers arrived as Pryor was getting

off of his motorcycle. Campo testified that he had seen Pryor retrieve something

from the waistband of his pants and place it in a saddlebag attached to the

motorcycle.

       {¶5}       A uniformed officer escorted Pryor approximately ten feet away

from the motorcycle and informed Campo that Pryor was wearing an empty gun

holster on his belt. Campo approached the motorcycle and shined his flashlight on

the saddlebag.    In a small gap between the cover of the saddlebag and the

compartment itself, Campo could see the butt of a handgun. Campo confiscated the

weapon, and Pryor was ultimately indicted for carrying a concealed firearm.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                            The Trial Court’s Jurisdiction

       {¶6}       In his first assignment of error, Pryor argues that defects in the

complaint deprived the trial court of jurisdiction. He argues that Campo had filed a

complaint purporting to charge Pryor with a felony of the third degree but that

Campo had failed to include all of the elements of the stated offense.             Pryor

maintains that the allegedly defective complaint rendered the prosecution against

him void ab initio.

       {¶7}       We find no merit in this argument, because the issuance of the

indictment rendered any defects in the complaint irrelevant. As courts have held,

“once an indictment has been approved the preliminary proceedings are not subject

to either direct or collateral attack because the defendant has been afforded an

independent determination that a prima facie case exists.” State v. Washington, 30

Ohio App.3d 98, 99, 506 N.E.2d 1203 (8th Dist.1986), quoting Commonwealth v.

Gordon, 254 Pa.Super. 267, 272, 385 A.2d 1013 (1978). Here, because there was no

allegation of a defect in the issuance of the indictment, the prosecution was properly

instituted. We overrule the first assignment of error.

                             Probable Cause to Search

       {¶8}       In his second assignment of error, Pryor contends that the trial

court erred in overruling his motion to suppress. He argues that the firearm was not

within his reach at the time it was discovered and that, therefore, the officer did not

have cause to execute a protective search.

       {¶9}       When considering a motion to suppress, the trial court acts as the

trier of fact and is in the best position to evaluate the credibility of witnesses and to

weigh the evidence. State v. Sanders, 1st Dist. No. C-030846, 2004-Ohio-6842, ¶ 6,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Although we must accept the trial court’s findings of fact if they are supported by some




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                      OHIO FIRST DISTRICT COURT OF APPEALS



competent, credible evidence, we conduct a de novo review of whether the facts meet

the applicable legal standard. Id.

       {¶10}      In this case, the primary basis of the trial court’s ruling was that

Campo had possessed probable cause to search the saddlebag for a concealed weapon.

We find no error in that conclusion.

       {¶11}      Under the “automobile exception” to the warrant requirement, police

may search an automobile or other vehicle if there is probable cause to believe it

contains contraband and there are exigent circumstances justifying a warrantless

search. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992). Because of the

inherent mobility of automobiles and other motor vehicles, exigent circumstances

typically exist where the vehicle was readily mobile at the time of the stop. Id.;

California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

Probable cause is a belief, reasonably based on the circumstances known to the officer,

that a vehicle contains contraband. State v. Kessler, 53 Ohio St.2d 204, 208, 373

N.E.2d 1252 (1978).

       {¶12}      Here, the officer saw Pryor remove something from near his

waistband and place it in the saddlebag. Campo was soon informed that Pryor was

wearing an empty holster. Then, when Campo shined his flashlight at the saddlebag,

he could see the butt of the gun showing where the saddlebag’s covering was slightly

open. Under these circumstances, the officer had probable cause to believe that Pryor

had concealed a gun in the saddlebag. Accordingly, we overrule the second assignment

of error.

                              Evidence of Concealment

       {¶13}      In his third and final assignment of error, Pryor argues that the

evidence of concealment was insufficient to support a conviction under R.C.

2923.12(A)(2), which provides that “[n]o person shall knowingly carry or have,

concealed on the person’s person or concealed ready at hand * * * a handgun other



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                     OHIO FIRST DISTRICT COURT OF APPEALS



than a dangerous ordnance * * * .” Pryor contends that, because the butt of the gun

in the case at bar was visible from the top of the saddlebag, the element of

concealment was not established.

       {¶14}      This argument is without merit. First, as this court has previously

held, proof of concealment does not require the state to establish complete

invisibility, but proof only that the weapon had been “so situated as not to be

discernable by ordinary observation by those near enough to see it if it were not

concealed * * *.” State v. Davis, 15 Ohio App.3d 64, 472 N.E.2d 751 (1st Dist.1984),

quoting State v. Petit, 20 Ohio App.2d 170, 173-174, 252 N.E.2d 325 (4th Dist.1969).

Thus, a defendant can be convicted under R.C. 2923.12 even if the gun is partially

visible. See State v. Dixon, 8th Dist. No. 53197, 1987 Ohio App. LEXIS 10212 (Dec.

24, 1987).

       {¶15}      But more importantly, Pryor entered a no-contest plea in this case.

When a defendant enters a no-contest plea, he admits the facts alleged in the

indictment.    Crim.R. 11(B)(2).    And where the indictment contains sufficient

allegations to state a felony offense and the defendant enters a plea of no contest, the

trial court must find him guilty. State v. Bird, 81 Ohio St.3d 582, 584, 692 N.E.2d

1013 (1998), citing State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 425, 662 N.E.2d

370 (1996). Because the indictment in the case at bar was sufficient to state a

violation of R.C. 2923.12(A)(2), we overrule the third assignment of error.

                                     Conclusion

       {¶16}      The judgment of the trial court is affirmed.

                                                                   Judgment affirmed.



SUNDERMANN and HENDON, JJ., concur.


Please note:
       The court has recorded its own entry this date.


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