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State v. Dontarious Sylvester

Court of Appeals of Ohio, Fifth District, Richland

May 15, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DONTARIOUS SYLVESTER Defendant-Appellant

         Appeal from the Richland County Court of Common Pleas, Case No. 15-CR-942

         Affirmed.

          For Plaintiff-Appellee GARY D. BISHOP Prosecuting Attorney By: BRANDON PIGG Assistant Prosecuting Attorney.

          For Defendant-Appellant ROBERT GOLDBERGER.

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         {¶1} Appellant Dontarious Sylvester appeals a judgment of the Mansfield County Common Pleas Court convicting him of possession of heroin (R.C. 2925.11(A), (C)(6)), possession of cocaine (R.C. 2925.11(A), (C)(4), and possession of marijuana (R.C. 2925.11(A)) upon a plea of no contest. Appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On May 2, 2015, Officer Paul Webb of the Mansfield Police Department responded to a call concerning a fight in Johns Park in Mansfield. The report stated that about 20 people were involved in the fight, and a man had a gun. The man with the gun was described as a black man with dreads, wearing red shorts. The call further stated that the man with the gun was near a black Monte Carlo. Officer Webb knew Johns Park to be an area associated with shootings and drug crime.

         {¶3} When Webb arrived on the scene, Officer Grimshaw was talking to a man at the black Monte Carlo. Webb saw four to five males walking away from the car, including appellant. Appellant was with a Mr. Hammett, who had dreadlocks and also had a warrant.

         {¶4} Webb asked the men to stop, and they complied. Appellant was the closest person to Webb, so he advised appellant that he was going to pat him down for weapons. Based on Webb's experience, it was not uncommon for more than one gun to be involved in a fight of this nature. He asked appellant to place his hands against a nearby fence, and began an open palm pat-down for weapons. He felt a large object in appellant's right pocket. Because it was "pretty large, " Webb squeezed the item to make sure it was not a weapon. Upon squeezing it, he recognized the object as a baggie of marijuana. He stopped immediately and asked appellant what the object was. Appellant responded that it was marijuana. Appellant was placed under arrest. At the Richland County Jail, officers discovered cocaine and heroin in appellant's left sock.

         {¶5} Appellant was indicted by the Richland County Grand Jury with possession of heroin, possession of cocaine, and possession of marijuana. Appellant filed a motion to suppress, arguing that the officer did not have a reasonable suspicion of criminal activity to justify the stop and pat-down, and that the officer could not seize the baggie of marijuana based on the plain feel doctrine. After a hearing, the trial court overruled the motion to suppress. Appellant pled no contest to all charges and was sentenced to thirty months of community control.

         {¶6} Appellant assigns a single error:

         {¶7} "THE TRIAL COURT ERRED IN DENYING THE MOTION TO ...


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