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State v. Richmond

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 18, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANTHONY J. RICHMOND DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606862-A

          ATTORNEY FOR APPELLANT Mary Catherine O'Neill Corrigan Jordan & Sidoti L.L.P.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Brandon A. Piteo Assistant County Prosecutor

          BEFORE: Blackmon, J., McCormack, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶1} Appellant Anthony Richmond ("Richmond") appeals from the denial of his motion to suppress evidence obtained during a search of his vehicle. He assigns the following error for our review:

         The trial court erred by failing to grant [Richmond's] motion to suppress.

         {¶2} Having reviewed the record and pertinent law, we affirm the trial court's decision.

         {¶3} On June 16, 2016, Richmond was indicted for one count of having a weapon while under disability, and one count of carrying a concealed weapon with a furthermore clause alleging that the weapon was loaded. Both charges also contained forfeiture specifications. Richmond moved to suppress the evidence against him, arguing that it was obtained as the result of a pretextual and unlawful stop. In opposition, the state argues that the officers' initial approach was a consensual encounter and that after this encounter, the officers had reasonable suspicion and probable cause to justify the subsequent search of the car.

         {¶4} On August 22, 2016, the trial court held a hearing on the motion to suppress. The state's evidence demonstrated that around midnight on June 1, 2016, Cleveland police officers Stephen McGrath and James McClellan assisted another unit with the investigation of a domestic violence complaint at East 79th Street near Cedar Avenue. They began patrolling for the suspect, who reportedly fled on foot. The officers drove slowly from the location of the domestic violence incident, looking for the perpetrator. The windows of their cruiser were down. The officers smelled marijuana and observed two individuals sitting in a parked vehicle on East 78th Street near Cedar Avenue. No one else was in the area, and the officers determined that the smell of marijuana was coming from the parked car. The officers parked the zone car and approached the occupants of the parked car.

         {¶5} Officer McGrath asked the occupants if they had marijuana in the car, and Richmond replied that they had already smoked all of it. The officers observed an open container of Hennessy liquor on the passenger seat of the car so they had both occupants exit the car and detained them inside the zone car in order to do an investigatory search of Richmond's vehicle. During the investigatory search, the officers found a loaded .38 Ruger handgun under the driver's seat. The officers additionally discovered a small bag of marijuana during a pat down of Richmond.

         {¶6} The trial court denied the motion to suppress and Richmond pled no contest to the charges. The trial court subsequently found him guilty of both charges and sentenced him to a total of 30 months of imprisonment. Richmond now appeals.

         {¶7} In his sole assigned error, Richmond argues that the trial court erred in denying his motion to suppress because the initial stop was unlawful.

         {¶8} In State v. Burnside,100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, the Ohio Supreme Court set forth the standard of review of a ...


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