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State v. Busse

Court of Appeals of Ohio, Fifth District

December 27, 2006

STATE OF OHIO Plaintiff-Appellee
v.
RANDY L. BUSSE Defendant-Appellant

Criminal Appeal from the Court of Common Pleas, Case No. 05 CR 521

For Plaintiff-Appellee EARL L. FROST ASSISTANT PROSECUTOR

For Defendant-Appellant DAVID B. STOKES

Hon. John W. Wise, P. J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.

OPINION

Wise, P. J.

{¶1} Appellant Randy Busse ("appellant") appeals his conviction, in the Licking County Court of Common Pleas, for one count carrying a concealed weapon. The following facts give rise to this appeal.

{¶2} On September 5, 2005, Ohio State Trooper Kevin Milligan received a dispatch call concerning reports of a vehicle, with Oklahoma license plates, failing to maintain proper lanes of travel and failing to use a proper signal when changing lanes. Subsequently, Trooper Milligan observed appellant commit marked lanes violations. A camera, in Trooper Milligan's cruiser, captured some of the traffic violations. After stopping appellant's vehicle and making contact with him, Trooper Milligan learned from the dispatcher that appellant's driver's license had been suspended by the State of Oklahoma.

{¶3} Trooper Milligan placed appellant under arrest, advised him of his rights and inquired about any contraband in the vehicle. Appellant informed Trooper Milligan there was a loaded firearm in the vehicle. Trooper Milligan did not see the firearm upon his initial approach to the vehicle. However, a subsequent inventory search of appellant's vehicle revealed the presence of a loaded firearm in the backseat. The firearm was located in an open briefcase, inside a camouflage holster, partially obstructed by a jacket.

{¶4} The Licking County Grand Jury indicted appellant, on September 30, 2005, for one count of carrying a concealed weapon, one count of driving under suspension and one count of marked lanes violation. Appellant pled not guilty to the charges contained in the indictment. Thereafter, on December 21, 2005, appellant filed a motion to suppress. The trial court denied appellant's motion on January 12, 2006. This matter proceeded to a jury trial on April 12, 2006. Following deliberations, the jury found appellant guilty of the charge of carrying a concealed weapon. On April 17, 2006, appellant filed a motion for acquittal, which the trial court denied on May 1, 2006. On April 20, 2006, the trial court granted appellee's motion to dismiss the remaining counts of the indictment.

{¶5} Following a pre-sentence investigation, on May 10, 2006, the trial court sentenced appellant to three years of nonresidential community control, a $500 fine and court costs. Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration:

{¶6} "I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION TO SUPPRESS.

{¶7} "II. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND/OR COMMITTED PLAIN ERROR, BY DENYING BRANCH II OF APPELLANT'S MOTION TO SUPPRESS EVIDENCE OF THE GUN, FILED DECEMBER 21, 2005.

{¶8} "III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR ACQUITTAL, PER O CRIM R 29(C).

{¶9} "IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR ACQUITTAL, PER O CRIM R 29(A).

{¶10} "V. THE JURY VERDICT IS NOT ADEQUATELY SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE."

I, II

{¶11} We will address appellant's First and Second Assignments of Error simultaneously as both concern the denial of ...


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