COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59049 STATE OF OHIO, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION MICHAEL COLE, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-240,791 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: John R. Kosko Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellee: Richard Hubbard Assistant Public Defender 1200 Ontario Street 1st Floor Cleveland, Ohio 44113 -2- NAHRA, P.J.: Michael Cole, defendant-appellee, was indicted for two counts of rape under R.C. 2907.02, one count of kidnapping under R.C. 2905.01, and one count of felonious assault under R.C. 2903.11. All four counts carried a firearm specification. Cole plead not guilty to the charges on September 27, 1989. Cole filed a motion to suppress physical evidence and statements on November 2, 1989. On December 19, 1989, the trial court held a hearing on Cole's motion to suppress and granted the motion with respect to the firearm, but denied the motion with respect to drug paraphernalia, pills, and statements made by Cole. The trial court's judgment was journalized on December 28, 1989. The State of Ohio filed a timely appeal on January 2, 1990. The trial court's grant of Cole's motion to suppress with respect to the firearm is the subject of this appeal. At the suppression hearing, three police officers testified on behalf of the State of Ohio. Officer Rubin Fuentes of the Cleveland Police, testified that he and his partner, officer Martin Zubal, received a radio assignment at approximately 3:30 a.m. on the morning of June 16, 1989 to meet a male at East 103rd Street and St. Clair in connection with such male having been assaulted and raped. Officers Fuentes and Zubal drove there and met the alleged victim, Stoney Phillips, who was bleeding from his forehead and chin. Phillips told the two officers that he had been at a house with a friend he knew when -3- this person assaulted and raped him. Officers Fuentes and Zubal placed Phillips in the zone car and asked him to show them where the house in question was located. Phillips directed them to 686 East 102nd Street. Officers Fuentes and Zubal waited for police officers Hardwick and Douglas to arrive. Shortly after their arrival, Lt. O'Donnell, a supervisor, also arrived at the scene. The house at 686 East 102nd Street was a three unit house. All five officers went to the downstairs back door and knocked. Fuentes testified that whoever opened the door downstairs stated that Cole lived upstairs. They were let in and proceeded to the third floor. Officer Fuentes further testified that Cole let all five of the police officers into his apartment which constituted a two room attic; the front room was long and narrow and was used as a living room while the back room was a bedroom. Officer Fuentes testified that while in the front room he found a .32 caliber Smith and Wesson gun on the ironing board covered with a rag. At such time, Cole was in the bedroom talking with officer Zubal. Officer Zubal testified that he arrested Cole upon arriving at Cole's apartment. He also stated that he saw a gun, some pills, and some marijuana on a table within Cole's apartment. Officer Zubal testified that there was a piece of clothing covering the gun but that it was not covered completely and that the gun was silver-plated. Detective Jonathan McTier also testified that he spoke with Cole in the jail unit on June 16, 1989. Detective McTier -4- testified that at such time Cole was advised of his constitutional rights and indicated that he understood his rights. Detective McTier testified that Cole told him that a fellow named Stoney was at his house when Stoney went berserk and that Cole hit Stoney with a gun to calm him down. Upon hearing the evidence presented at the suppression hearing, the trial court ruled that the gun be suppressed because the statements by the police officers lacked credibility. This appeal follows. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED AT THE CRIME SCENE, I.E., THE GUN. The State argues that the gun found in Cole's apartment should not have been suppressed because the search fell within the plain view exception of the warrant requirement. We agree that the gun was properly seized under the plain view doctrine and that the trial court erred by suppressing the gun. In order to qualify under the plain view exception, it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. State v. Williams (1978), 55 Ohio St. 2d 82, 377 N.E.2d 1013, syllabus. Our review of the record indicates that the State satisfied all three prongs and that the gun was properly seized. -5- Officers Zubal and Fuentes were lawfully on the premises at Cole's apartment when they discovered the gun on top of the ironing board. The officers had probable cause to arrest Cole after Stoney Phillips, the alleged victim, gave them Cole's name and drove with them to the scene of the alleged crime. Henry v. United States (1959), 361 U.S. 98; State v. Hill (1977), 52 Ohio App. 2d 393, 370 N.E.2d 775. Cole let them into his apartment after which each officer observed the gun on top of the ironing board. Officer Zubal testified that he saw a silver-plated barrel sticking out from a rag and that he knew immediately that it was a gun. Officer Fuentes observed from his vantage point an object covered with a rag that he knew was a gun. Under the circumstances, we believe that the gun was immediately apparent to and in the plain view of each of the officers. As a result of the foregoing, we find that the trial court erred by granting appellee's motion to suppress. Accordingly, the judgment of the trial court is reversed and remanded for proceedings consistent with this opinion. -6- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .