[Cite as State v. Thornton, 2014-Ohio-4011.]

                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )   CASE NO.     14 CO 19
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )   OPINION
                                               )
GRAYLEN THORNTON,                              )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from East Liverpool
                                                   Municipal Court, Case No. 13CRB1863.


JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Robert Herron
                                                   Prosecuting Attorney
                                                   Attorney Timothy McNicol
                                                   Assistant Prosecuting Attorney
                                                   105 South Market Street
                                                   Lisbon, Ohio 44432

For Defendant-Appellant:                           Attorney Charles Amato
                                                   Attorney Lynsey Lyle-Opalenik
                                                   991 Main Street
                                                   Wellsville, Ohio 43968


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                   Dated: September 9, 2014
[Cite as State v. Thornton, 2014-Ohio-4011.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Graylen Thornton appeals the decision of the East
Liverpool Municipal Court denying his suppression motion. Appellant contends that
the officer needed reasonable suspicion in order to ask for his name. He also states
that the officer’s mistaken belief as to the name he provided was not reasonable.
Appellant lastly contends that there was no probable cause to arrest him for improper
handling of a firearm in a motor vehicle because he complied with his duty to promptly
inform the officer that he had a concealed carry permit. For the following reasons, the
judgment of the trial court is affirmed.
                                    STATEMENT OF THE CASE
        {¶2}     On August 24, 2013, appellant was arrested for improper handling of a
firearm in a motor vehicle, a first degree misdemeanor in violation of R.C.
2923.16(E)(1).       This subdivision states that no person who has been issued a
concealed handgun license, who is the driver or an occupant of a motor vehicle that is
stopped as a result of a traffic stop or a stop for another law enforcement purpose and
who is transporting or has a loaded handgun in the motor vehicle in any manner, shall
fail to promptly inform any law enforcement officer who approaches the vehicle while
stopped that the person has been issued a concealed handgun license and that the
person then possesses or has a loaded handgun in the motor vehicle.
        {¶3}     Appellant filed a motion to suppress arguing that the stop of the vehicle
was not valid. Regardless, he stated that he should not have been arrested as he had
a concealed carry permit and he notified the officer of such.         At the suppression
hearing, Officer 1 testified that he was responding to a call in a “high drug” area
around 2:00 a.m. when he saw appellant and another person walking on the sidewalk.
(Tr. 8). They were right in front of a known drug house on McKinnon Avenue, and it
appeared to the officer that they were heading toward it.         (Tr. 9-10).   The officer
stopped his vehicle and asked out of his passenger window for their names. (Tr. 11).
        {¶4}     Appellant’s companion provided his name, and the officer recognized
him. (Tr. 28). The officer, whose K-9 dog was barking in the back seat, believed
appellant Graylen Thornton introduced himself as “Tyson Gordon.” (Tr. 10). Appellant
                                                                                        -2-

is said to have offered his identification, but the officer was in a hurry and continued on
to his call. (Tr. 32). The officer recognized the name Tyson Gordon from the police
station as someone involved in drugs. (Tr. 12, 25).
       {¶5}   An hour later, the officer drove past the known drug house with Officer 2
in his vehicle. They saw appellant come out of the house. (Tr. 13, 50). Officer 1
inquired with dispatch whether Tyson Gordon had any warrants, and dispatch
responded that there was a warrant for him out of the municipal court. (Tr. 13). By
that time, appellant had entered the back seat of a vehicle; the companion from earlier
was driving, and another passenger was in the front. As the vehicle pulled away, the
K-9 unit initiated a traffic stop. Two other police vehicles stopped as well.
       {¶6}   Officer 1 approached the driver’s side and began speaking to the driver.
Officer 2 approached from the back passenger side with his flashlight and noticed
appellant in an arched position in the back seat trying to “shove” a gun down his pants.
(Tr. 45, 58). Officer 2 yelled that there was a gun and drew his weapon. Appellant
looked at him and pulled his shirt over the gun. Officer 2 stated that appellant was not
saying anything while in the car. (Tr. 45)
       {¶7}   The occupants were ordered out with their hands up and told to get on
the ground. Officer 1 testified that appellant did not immediately comply and seemed
to be “messing” with the gun in his waistband even though they were ordering him to
keep his hands off the gun. (Tr. 16). He stated that appellant did not voice that he
had a weapon or a permit. (Tr. 38, 40).
       {¶8}   Officer 2 confirmed that it took several orders before appellant complied
with his instructions. Appellant did not promptly alight from the vehicle, he alighted
with both hands still in his waistband instead of up in the air, and it then took several
commands before appellant got to the ground. (Tr. 46, 59-60). Officer 2 stated that
appellant may have been “uttering something” at some point after he exited the car.
(Tr. 60).
       {¶9}   A captain covering the front of the stopped vehicle also testified that
appellant did not immediately put his hands up and instead had his hands around the
front of his waist area, confirming that it took several commands before he put his
                                                                                          -3-

hands up and got on the ground. (Tr. 71-72). The captain did not hear appellant
saying anything. (Tr. 72). As appellant was lying down, a loaded Glock fell from his
waistband. He was then cuffed, and his concealed carry permit was found in his wallet
as they were ascertaining identities. (Tr. 38, 46, 61).
       {¶10} After the suppression hearing, the court asked for post-hearing briefs.
The state’s opposition to suppression urged that the officer’s mistaken belief that
appellant was the person with the warrant was objectively reasonable, noting the
similar sounding names. The state also urged that the later stop to investigate the
matter was done in good faith.
       {¶11} The defendant’s post-hearing brief stated that the initial stop to ask his
name lacked reasonable suspicion and thus the second stop was invalid. As to the
reasonableness of the officer’s mistake, the defense suggested that the officer should
have used the cruiser’s computer to view a photograph of Tyson Gordon to ensure
appellant was the person with the warrant. It was also said that appellant tried to give
the officer his identification at the initial encounter, but the officer did not view it even
though his barking dog made it hard to hear. Lastly, the defense mentioned that once
the officers discovered his name and his permit, he should have been released.
       {¶12} On February 13, 2014, the trial court overruled the suppression motion.
The court explained that the initial encounter did not rise to the level of a Terry stop but
was a mere consensual police-citizen exchange. The court noted that the officer did
not exit the car or show force, merely asked names, and then drove away, concluding
that there was no show of authority that could be seen as a command to stop. The
trial court also ruled that the second encounter was not an illegal stop, adopting the
state’s rationale that the officer’s mistake was reasonable and citing the Kinzy and
Fain cases reviewed below.
       {¶13} On March 11, 2014, appellant pled no contest to the offense. He was
given a suspended sentence of ninety days with two years of non-reporting probation
and fined $200. He was ordered to surrender his concealed carry permit, and the
firearm was forfeited by stipulation. Appellant filed a timely notice of appeal.
                       ASSIGNMENT OF ERROR NUMBER ONE
                                                                                       -4-

       {¶14} Appellant sets forth two assignments of error, the first of which alleges:
       {¶15} “The trial court erred in denying Defendant’s Motion to Suppress as the
Officer had no reasonable, articulable suspicion to stop Defendant and such stop
violated Defendant’s Fourth and Fourteenth Amendment rights subsequently leading
to Defendant being found guilty of Improperly Handling a Firearm in a Motor Vehicle, a
violation of O.R.C. 2923.16(E)(1).”
       {¶16} First, appellant contends that it was improper for the officer to ask his
name merely because he was walking down the sidewalk in a high drug area in front
of a known drug house at 2:00 a.m. He asserts that an objective manifestation that he
was or was about to be engaged in criminal activity was required to stop him, i.e. he
alleges that reasonable suspicion was required to ask for a name. Appellant then
notes that the officer must not have reasonably believed he was about to engage in
criminal activity or he would have alighted from his cruiser, asked for formal
identification, and run the warrant check at that time. The state responds that the
initial momentary question posed to appellant was a mere consensual encounter and
did not rise to the level of an investigatory stop.
       {¶17} Appellate review of a suppression decision presents a mixed question of
law and fact. State v. Roberts, 110 Ohio St .3d 71, 2006-Ohio-3665, 850 N.E.2d 1168,
¶ 100. Legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio St.3d
152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, factual decisions are afforded
great deference. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). This is
because the trial court is the fact-finder who occupies the best position from which to
resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62
Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
       {¶18} An investigatory stop is not an arrest and does not require probable
cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Rather, it
must be supported by reasonable suspicion that criminal activity is imminent. Id. In
making an investigatory stop, the officer must point to specific and articulable objective
facts that, along with any reasonable inferences that can be drawn therefrom,
reasonably warrant the intrusion of a Terry stop. Id. The propriety of an investigative
                                                                                      -5-

stop must be viewed in light of the totality of the circumstances. State v. Bobo, 37
Ohio St.3d 177, 179, 524 N.E.2d 489 (1988) (presence in a high crime area, time of
night, furtive movements are circumstances); State v. Carter, 69 Ohio St.3d 57, 65,
630 N.E.2d 355 (1994) (high crime area not enough).
      {¶19} However, a consensual police-citizen encounter does not rise to the level
of an investigatory stop and does not require reasonable suspicion of imminent
criminal activity. State v. Starcher, 7th Dist. No. 13JE1, 2013-Ohio-5533, ¶ 22-23 (and
when an officer is engaging in a community caretaking function, he does not need a
reasonable suspicion of criminal activity prior to approaching a person or a vehicle as
the encounter is considered consensual rather than investigatory). Encounters are
consensual where the police merely approach a person in a public place, engage the
person in conversation, request information, and the person is free to decline to
answer and walk away. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct.
1870, 64 L.Ed.2d 497 (1980).
      {¶20} The request to see someone’s identification does not make an encounter
non-consensual. Id. at 555-556; Florida v. Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308,
83 L.Ed.2d 165 (1984). See also Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct.
2382, 115 L.Ed.2d 389 (1991) (request to search belongings does not make encounter
non-consensual if message of required compliance is not conveyed). This is true
unless the police officer has by physical force or show of authority restrained the
person's liberty so that a reasonable person would not feel free to decline the officer's
requests or otherwise disengage from the encounter. Mendenhall, 446 U.S. at 554.
      {¶21} The slide from a consensual encounter into an investigatory stop is
evaluated under the totality of the circumstances, and the factors that could indicate a
seizure include a threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person, the use of language or tone of voice
indicating that compliance with the officer's request might be compelled, approaching
the citizen in a nonpublic place, and blocking the citizen's path.       Id.   Finally, if
reasonable suspicion arises during or after the consensual encounter, a proper
                                                                                     -6-

investigatory stop can proceed. See Starcher, 7th Dist. No. 13JE1 at ¶ 24, citing State
v. Rappley, 2d Dist. No. 11-CR-2693, 2013-Ohio-964, ¶ 20-31.
       {¶22} Here, the officer was driving down the street in a high drug area at 2:00
a.m. and saw two people walking down the sidewalk in front of a known drug house as
if they were approaching that house. The state does not contest the proposition that at
this initial encounter there was no reasonable suspicion to stop the two people to
investigate criminal activity.
       {¶23} The officer stopped his vehicle in his own lane of travel and asked the
two people their names. He did not use his siren or activate his lights.      He did not
even exit his vehicle. Rather, he spoke to them by remaining in the driver’s seat and
speaking through the open passenger window of his cruiser. The officer asked their
names, and they provided their names.         Appellant even notes that he offered his
identification. The officer then drove away without checking identifications. .
       {¶24} None of the Mendenhall factors are present here. This was a public
street. There was only one officer. The officer did not display a weapon. There was
no physical force or physical touching of the person. There is no indication that any
language or tone of voice indicated compliance was compelled. The officer did not
block the citizen's path. There was no show of authority over the preexisting fact that
the person asking was a police officer. Moreover, the encounter was extremely brief
and resulted in nothing but the provision of names.
       {¶25} Under the totality of the circumstances, we conclude that the initial
encounter did not rise to the level of a Terry stop. The trial court properly ruled that
the initial momentary encounter was a consensual exchange which did not require
reasonable suspicion.
       {¶26} The next issue raised under this assignment of error is whether the
officer’s mistake of fact regarding appellant’s name was reasonable. Appellant urges
that the officer should have accepted the offer to show identification or the officer
should have looked up the name he thought he heard on his computer to view a
photograph. The state responds that the mistake was objectively reasonable and that
any lack of good faith was a question for the trial court.
                                                                                       -7-

       {¶27} When police have probable cause to arrest X and the officer reasonably
mistakes the person they are arresting for X, the arrest is valid. Hill v. California, 401
U.S. 797, 802-803, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The same premise applies
in conducting an investigatory stop based upon a factual mistake. State v. Kinzy, 7th
Dist. No. 09MO7, 2010-Ohio-6499 at ¶ 23-25 (officer believed defendant pulled into a
business lot when he pulled behind him to check on business, but defendant had
actually pulled into his own driveway right next to business); State v. Pickens, 5th Dist.
No. 11CAA090085, 2012-Ohio-2901, ¶ 44-48 (officer misidentified person he saw
enter a car); State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, ¶ 17 (officer
mistakenly believed stop sign was on public street); State v. Keilback, 12th Dist. No.
CA2001-01-002 (Oct. 22, 2001) (a stop of a vehicle that was the result of a mistake in
reporting the vehicle's license number was a justified stop, reversing trial court’s
decision to suppress).
       {¶28} Thus, a police officer's mistake of fact will not lead to the suppression of
evidence where the mistake was “understandable” and a “reasonable response to the
situation facing the police officer.” Kinzy, 7th Dist. No. 09MO7 at ¶ 23, citing Hill, 401
U.S. at 804 and State v. Fain, 9th Dist. No. 18306 (Jan. 21, 1998) (officer mistakenly
believed driver was Dwayne Fain, whose license was suspended, rather than the true
driver whose last name was also Fain).
       {¶29} Here, the officer believed appellant Graylen Thornton provided him with
the name “Tyson Gordon” during a momentary consensual encounter on the sidewalk
in front of a known drug house. His dog was barking, which made it difficult to hear.
But, he correctly heard the other person’s name (and he also recognized him), and he
thought he heard appellant give a name that he recognized from the police station (as
a person involved with drugs). The officer proceeded to respond to an emergency call.
       {¶30} An hour later, at 3:00 a.m., the officer again saw appellant, this time
exiting the known drug house. He asked dispatch to run a check on Tyson Gordon,
and he was advised that there was an outstanding warrant for him out of the municipal
court. By this point, appellant was in the back seat of a vehicle that was driving away.
The officer thus initiated a stop of the vehicle.
                                                                                     -8-

       {¶31} The failure to obtain and view appellant’s license an hour before or run a
warrant check earlier did not make the mistake in hearing appellant’s name
unreasonable. The officer was not proceeding with any investigation at that point. It
was not until an hour later, when he saw appellant again (this time coming out of the
known drug house), that he decided to check for a warrant.
       {¶32} Nor did the mistake in hearing appellant’s response (and proceeding
under that mistake) become unreasonable because the officer did not later personally
run his own check to find a photograph before stopping the vehicle. And, whether the
viewing of a booking photograph of Tyson Gordon would have allowed the officer to
realize that the person he saw on a sidewalk at 2:00 a.m. was not Tyson Gordon is
questionable.
       {¶33} The officer thought appellant identified himself by a certain name, the
officer recognized the name, and dispatch advised there was a warrant. There was no
absolute requirement that the officer ascertain what Tyson Gordon looked like before
conducting an investigatory stop of a vehicle that was driving away when he believed it
contained a person wanted on a warrant. Stopping to investigate was one “reasonable
response to the situation facing the police officer” and was understandable. Kinzy, 7th
Dist. No. 09MO7 at ¶ 23
       {¶34} In conclusion, the credibility of the officer’s testimony on his good faith
mistake is a matter best left to the trial court.           See Pickens, 5th Dist. No.
11CAA090085 at ¶ 51.        The trial court could rationally conclude that the officer’s
mistake was understandable or objectively reasonable under all of the facts of the
case. See Hill v., 401 U.S. at 802-803 (if probable cause to arrest one person and
officer reasonably mistakes the person they are arresting for one they intended to
arrest, the arrest is valid). This assignment of error is overruled.
                      ASSIGNMENT OF ERROR NUMBER TWO
       {¶35} Appellant’s second assignment of error alleges:
       {¶36} “The trial court erred in denying Defendant’s Motion to Suppress as the
Officer had no probable cause to arrest the Defendant and subsequently charge him
                                                                                                   -9-

under O.R.C. 2923.16(E)(1) as Defendant had fully complied with his duties in carrying
a concealed weapon.”
        {¶37} Although no testimony was provided that he complied with his permit
holder duties, appellant argues here that he stated multiple times that he had a
concealed handgun license. He points out that when Officer 2 approached the vehicle
from the back and saw the gun, that officer yelled that there was a gun, which caused
a commotion. Appellant suggests that they could thus not hear him informing them
that he had a gun and a license as he was required to do by law. He notes that Officer
2 testified that appellant was “uttering something” but the officer could not hear what
he was uttering. (Tr. 60-61). However, the defense did not elicit whether the utterings
occurred while appellant was standing and refusing to comply with orders or while he
was on the ground. In any event, there was no evidence of utterances while he was in
the vehicle trying to shove a gun down his pants.
        {¶38} As the state responds, appellant’s compliance with his duties was not
established at the suppression hearing. Appellant was charged with failing to promptly
inform officers who approached the stopped vehicle that he has a concealed handgun
license and he has a loaded handgun in the vehicle.               R.C. 2923.16(E)(1). Officer 1
testified that he was speaking with the driver when the other officer yelled about a gun
and that appellant kept “messing with” the gun in his waistband while the other officer
ordered his hands off the weapon during which time appellant did not inform them that
he had a weapon or a permit. (Tr. 16, 38). Officer 2 testified that he approached to
see appellant trying to hide his gun down the front of his pants. When appellant
noticed Officer 2, he did not say anything but pulled his shirt down and failed to
immediately comply with orders to exit with his hands up and then lay down. In fact,
according to Officer 2 and the captain, he exited with his hands on his waist. (Tr. 59-
60, 72). No officer heard him announcing that he was carrying a loaded gun and that
he had a concealed handgun license.1

        1
          We note that other divisions of (E) provide that the person with the permit and loaded gun in
the vehicle: must keep his hands in plain sight any time after the officer begins approaching the
stopped vehicle; cannot have contact with the loaded gun by touching it with hands or fingers any time
after the officer begins approaching the car; and cannot knowingly disregard or fail to comply with any
                                                                                                  -10-

        {¶39} Regardless, as the state points out, the parties stipulated that the only
issue before the court was reasonable, articulable suspicion to stop. Dec. 10, 2013
J.E. The defense specifically agreed to this stipulation. (Tr. 6-7). The state also
urges that this issue was not raised below. Appellant’s suppression motion mentioned
that he had a permit so he was permitted to carry the gun and claimed that appellant
notified the officer as required. Yet, this did not present a suppression issue as no
evidence was discovered after the arrest that resulted in any offense.
        {¶40} That is, the gun was viewed as the officer approached the vehicle.
Whether appellant complied with his duties as a concealed carry permit holder would
not affect suppression here (as opposed to a case where, for instance, drugs are
discovered on a person after they are arrested for carrying a concealed weapon).
Rather, appellant’s compliance would have been an issue for trial on the offense
charged. Therefore, this assignment of error is overruled.
        {¶41} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.



Donofrio, J., concurs.
DeGenaro, P.J., concurs.




lawful order given while the vehicle is stopped, including, but not limited to, a specific order to the
person to keep his hands in plain sight. See R.C. 2923.16(E)(3)-(5). Although charged only with (E)(1)
for failing to advise about the existence of a loaded gun and a permit, there was probable cause to
arrest him violating one or more of these sections as well.
