COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61091 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : NORMAN D. SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 17, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-257917. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward J. Galaska, Esq. 922 Leader Building Cleveland, OH 44114 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Norman D. Smith, appeals from his conviction for the offenses of carrying concealed weapons with two violence specifications and having weapons while under disability with a firearm specification and two violence specifications. The appellant appeals from the trial court's denial of his motion to suppress. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT IS ARRESTED On September 19, 1990, two members of the Cleveland Police Department were assigned patrol duty in the Third District. At approximately 9:56 p.m., the two police officers were parked on East 55th between Quincy and Outhwaite. While sitting in the parked police car, the two police officers observed the appellant stagger across East 55th Street at an angle. Further observation seemed to indicate that the appellant was intoxicated. In addition, the appellant was observed carrying a small pouch from which protruded the butt of a handgun. A stop and search of the appellant revealed that the appellant was indeed carrying a .32 caliber automatic handgun in the small pouch. The appellant was subsequently arrested. B. THE APPELLANT IS INDICTED On October 25, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of carrying concealed weapons in violation of R.C. 2923.12 with two prior violence specifications and one count of having weapons while under -3- disability in violation of R.C. 2923.13 with a firearm specification and two prior violence specifications. C. THE APPELLANT IS ARRAIGNED On November 2, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to both counts of the indictment. D. THE APPELLANT'S NON-JURY TRIAL On December 11, 1990, the appellant waived his right to a jury trial and the two counts of the indictment were tried before the bench. Following the bench trial, the trial court found the appellant guilty of the offense of carrying concealed weapons with two prior violence specifications and also guilty of the offense of having weapons while under disability with a firearm specification and two prior violence specifications. It should also be noted that the trial court denied the appellant's motion to suppress. E. THE SENTENCE OF THE TRIAL COURT Immediately following the trial, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio, for a term of two years to ten years with regard to the offense of carrying concealed weapons and one and one-half years to five years with regard to the offense of having weapons while under disability. In addition, the trial court imposed a mandatory three years of incarceration upon the appellant as a result of the firearm specification. F. THE APPELLANT'S TIMELY APPEAL -4- Thereafter, the appellant timely brought the instant appeal from his conviction for the offenses of carrying concealed weapons and having weapons while under disability. II. THE SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS ON THE BASIS THAT SUSPICION OF PUBLIC INTOXICATION CONSTITUTES REASONABLE CAUSE FOR A STOP AND SUBSEQUENT SEARCH AND SEIZURE. A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS The appellant, through his sole assignment of error, argues that the trial court erred by failing to grant his motion to suppress. Specifically, the appellant argues that the police did not possess specific and articulable facts to warrant an investigatory stop of the appellant. The appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR AN INVESTIGATORY STOP In order to conduct a lawful investigatory stop, the investigating police officer must possess specific and articulable facts which raises a suspicion of wrongdoing. Terry v. Ohio (1981), 392 U.S. 1; Adams v. Williams (1972), 407 U.S. 143. In addition, the United States Supreme Court, in United States v. Cortez (1981), 449 U.S. 411, held that: "The idea that an assessment of the whole picture must yield particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the -5- circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions--inferences and deductions that might well elude an untrained person. "*** The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." (Emphasis added.) United States v. Cortez, supra, at 419. C. THE ARTICULABLE FACTS WHICH SUPPORTED AN INVESTIGATORY STOP In the case sub judice, the trial court did not err by failing to grant the appellant's motion to suppress. The testimony of the Cleveland police officer clearly demonstrated specific and articulable facts which when taken together resulted in a particularized suspicion that the appellant was engaged in criminal activity. These facts involved the following: 1) the area, in which the police officers were patrolling, possessed a high incidence of crime (Tr. 35); 2) the patrolled area was well lit (Tr. 35); 3) the appellant was initially observed at approximately 10:00 p.m. (Tr. 11); 4) the appellant seemed to be intoxicated (Tr. 11); 5) the appellant was carrying a small pouch out of which protruded the butt of a firearm (Tr. 34, 35); and 6) the appellant, upon the police officers exiting their automobile, turned his back to the police and began to "manipulate" the -6- contents of the pouch (Tr. 35, 36, 37). The Cleveland police officers did indeed possess specific and articulable facts which resulted in a suspicion that the appellant was engaged in criminal activity which consisted of carrying a concealed weapon in a small pouch. Thus, the trial court did not err by failing to grant the appellant's motion to suppress. The appellant's sole assignment of error is not well taken. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. and SPELLACY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .