[Cite as State v. Johnson, 2020-Ohio-1072.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Craig R. Baldwin, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 2019 CA 00054
MARKEITH JOHNSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2018 CR 0767


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       March 19, 2020



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

GARY BISHOP                                    DALE M. MUSILLI
PROSECUTING ATTORNEY                           105 Sturges Avenue
JOSEPH C. SNYDER                               Mansfield, Ohio 44903
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 00054                                                    2


Wise, John, P. J.

       {¶1} Defendant-Appellant Markeith Johnson appeals his conviction entered in the

Richland County Court of Common Pleas following a no contest plea to one count of

carrying a concealed weapon and one count of possession of marijuana.

       {¶2} Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3} For purposes of this appeal, the facts and procedural history are as follows:

       {¶4} On August 10, 2018, Officer Matthew Davis with Mansfield Police

Department was on patrol when he received a call from dispatch regarding a man with a

gun at a Quickmart. (T. at 6-7). Upon approaching the store, Officer Davis could see two

people at the front counter of the store and one of them had a gun in his waistband. (T.

at 6, 9). Officer Davis detained the man with the firearm who was identified as Chris Cross.

(T. at 6-7). As soon as Officer Davis approached Mr. Cross and addressed his possession

of a concealed firearm, the man began declaring that the gun belonged to Appellant

Markeith Johnson. (T. at 9). Officer Davis then inquired of Appellant as to the truth of that

claim. (T. at 9). Appellant admitted that the gun was his. Id.

       {¶5} Officer Kiner arrived on scene as backup and patted down Appellant at

Officer Davis' request. (T. at 7). As Officer Kiner started to pat down Appellant, he asked

him if he had a weapon on him. (T. at 17). Appellant then admitted to having a firearm on

his person, concealed by his shirt and waistband of his pants. (T. at 17, 19). A firearm

was then located on Appellant. (T. at 10). Officer Davis determined Appellant to not have

a valid carrying concealed weapon license. Id. While Officer Kiner was patting down

Appellant, he detected an odor of marijuana and made Appellant aware of this. (T. at 19).
Richland County, Case No. 2019 CA 0054                                                    3


Appellant admitted that he had marijuana in his pants pocket. (T. at 19). He also admitted

to not having a valid carrying concealed weapon license. (T. at 19- 20).

       {¶6} On September 7, 2018, Appellant was indicted in a two-count indictment.

Count One charged Appellant with Carrying a Concealed Weapon in violation of R.C.

§2923.12(A)(2), a felony of the fourth-degree. Count Two charged Appellant with

Possession of Marijuana in violation of R.C. §2925.11(A), a minor misdemeanor. Count

One also included a forfeiture specification under R.C. §2941.1417.

       {¶7} On January 9, 2019, Appellant filed a Motion to Suppress.

       {¶8} On February 19, 2019 a hearing was held on Appellant's motion.

       {¶9} By Judgment Entry filed March 8, 2019, the trial court overruled Appellant's

motion to suppress.

       {¶10} On March 27, 2019, Appellant entered a plea of no contest.

       {¶11} On May 15, 2019, the trial court sentenced Appellant to thirty (30) months of

community control with an eighteen (18) month suspended sentence. The firearm was

ordered forfeited.

       {¶12} Appellant now appeals, assigning the following error for review:

                                   ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED FINDING THAT THE SEARCH DID NOT

VIOLATE APPELLANT’S FOURTH AMENDMENT RIGHTS.”

                                                I.

       {¶14} In his sole assignment of error, Appellant argues that the trial court erred in

denying his motion to suppress evidence. We disagree.
Richland County, Case No. 2019 CA 0054                                                      4


       {¶15} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th Dist.1993).

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. In that case, an appellate court can reverse the trial

court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not against the

manifest weight of the evidence and it has properly identified the law to be applied, an

appellant may argue the trial court has incorrectly decided the ultimate or final issue raised

in the motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

       {¶16} Here, Appellant argues the trial court erred in finding that the officers had

reasonable suspicion to conduct a pat-down search of his person. The State argues that

the pat-down search was permissible to ensure the safety of the officers.
Richland County, Case No. 2019 CA 0054                                                        5


       {¶17} A pat-down search is permissible under Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889, to ensure officer safety. Officers must hold a reasonable

belief that a detainee poses a threat to the officer's safety or the safety of others to justify

a “pat-down” search. Id. at 28, 88 S.Ct. 1868, 20 L.Ed.2d 889. To justify a pat-down

search, an officer must point to specific, articulable facts that create a “reasonable

individualized suspicion that the suspect is armed and dangerous [.]” (Emphasis omitted.)

State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, 2010 WL 334913, ¶

18, citing Terry at 27, 88 S.Ct. 1868. (Other citations omitted.) “The officer need not be

absolutely certain that the individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that his safety or that of others

was in danger.” (Citations and footnote omitted.) Terry at 27, 88 S.Ct. 1868.

       {¶18} The existence of reasonable suspicion is determined by evaluating the

totality of the circumstances. (Citations omitted.) State v. Heard, 2d Dist. Montgomery No.

19323, 2003-Ohio-1047, 2003 WL 860692, ¶14. “These circumstances must be

considered ‘through the eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold.’ ” State v. White, 2d Dist. Montgomery No.

18731, 2002 WL 63294, (Jan. 18, 2002), quoting State v. Andrews, 57 Ohio St.3d 86, 87-

88, 565 N.E.2d 1271 (1991).

       {¶19} In the instant case, one man armed with a firearm was readily visible when

the officers arrived. It was also immediately made known to the officers that Appellant

was with the man with the firearm and that he had given him the weapon. Based on those

facts, we find that the officers’ suspicion that Appellant might also have another weapon
Richland County, Case No. 2019 CA 0054                                                    6


on his person to be reasonable. When asked, prior to the commencement of the pat-down

search, Appellant admitted to the officers that he did in fact have a forearm on his person.

       {¶20} We therefore find the totality of these facts and circumstances, viewed

objectively through the eyes of the officers on the scene, warranted a reasonable belief

that Appellant could have been armed and thus justified a pat-down search for weapons.

       {¶21} For the reasons set forth above, we find Appellant’s sole assignment of error

is without merit and hereby overrule same.

       {¶22} The judgment of the Court of Common Pleas, Richland County, Ohio, is

affirmed.


By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.




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