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State v. Thomas

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEONTAY THOMAS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601209-A

          ATTORNEY FOR APPELLANT Michael P. Maloney

          ATTORNEYS FOR APPELLEE

          BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J., Michael C. O'Malley Cuyahoga County Prosecutor

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, P.J.

         {¶1} Defendant-appellant, Deontay Thomas ("Thomas"), appeals his convictions for having a weapon while under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree, and carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. His sole assignment of error is whether the trial court erred in denying his motion to suppress.

         {¶2} Finding no merit to the appeal, we affirm.

          I. The Suppression Hearing

         {¶3} In December 2015, Thomas was indicted for having a weapon while under disability and carrying a concealed weapon. He pleaded not guilty to the charges. Thomas then moved to suppress the gun found on his person.

         {¶4} On March 30, 2016, the trial court held a hearing on Thomas's motion to suppress. The following evidence was presented at the suppression hearing.

         {¶5} Officer Aaron Luther ("Officer Luther") of the Cuyahoga Metropolitan Housing Authority ("CMHA") was the state's sole witness. Officer Luther testified that he had been employed with CMHA for three years and that his rank was patrolman. His daily duties were to patrol the public housing areas throughout Cuyahoga County, Ohio and to respond to calls for services in those areas.

         {¶6} On November 14, 2015, at 6:57 p.m., an anonymous female called 911 and reported that three juvenile males, approximate ages of 13 or 14 years old, were in a parking lot with bricks in their hands "looking to do mischief." The reported location was in the back parking lot of East 71st Street and Wade Park, Cleveland, Ohio, where the Addison high rises and family estates are located. Officer Luther testified that the area of East 71st Street and Wade Park was known to be a "rough area" that was the subject of many service calls.

         {¶7} Officer Luther responded to the call and received the following dispatch narrative, "female advised the [sic] 3 juv males are in the back parking lot with bricks. 1 male blk jacket." Due to other calls, however, Officer Luther did not respond to this particular call until 7:36 p.m - approximately 40 minutes after the dispatcher received the 911 call. Officer Luther was alone in responding to the call, with the exception of two female ride-alongs.

         {¶8} When Officer Luther approached the area of East 71st Street and Wade Park, he noticed an African American male who had a "hat on or something covering his head." The person he saw was Thomas. Officer Luther observed the following:

I approached from 71st northbound to the intersection of 71st and Wade Park, which is directly parallel to our property located there, and at that time I observed a male matching the given description with either a black or -black jacket or hoodie. The male noticed my presence, began to pick up his pace.

Officer Luther testified that the significance of Thomas picking up his pace was that "more times than not it means that they are trying to avoid any contact with us."

         {¶9} Officer Luther testified that Thomas "proceeded across Wade Park towards the convenience store at the intersection." Upon this observation, Officer Luther turned his vehicle around and entered the convenience store parking lot. Officer Luther said that it was dark outside, and the parking lot had poor lighting conditions. Officer Luther testified that after he pulled into the parking lot, "[I] exited my vehicle, and asked [Thomas] if I could speak to him for a moment. He turned around and began to walk towards me and had both of his hands in his jacket. I asked him at that time for officer safety if he'd remove his hands for me, and he very easily complied." Officer Luther testified that Thomas's hands in his jacket raised a concern because "given the nature, it could be indicative of trying to conceal something."

         {¶10} Officer Luther also said that Thomas "readily approached" him by walking eight to ten feet towards Officer Luther. Officer Luther asked Thomas where he was coming from and where he was going. Thomas answered that he "was coming from visiting a friend or a family member that lived in the - in the estate that he was walking out of and that he was walking to the convenience store. Officer Luther testified that Thomas "was seemingly okay with talking to" him.

         {¶11} Then, "[Officer Luther] asked if [he] could pat [Thomas] down and if he had any weapons on him, and [Thomas] quickly told [Officer Luther] that he - he did have a small caliber pistol on him." Officer Luther testified that he asked Thomas for a pat-down because of "officer safety." In response, Thomas admitted that he had a gun.

         {¶12} After Thomas disclosed he had a gun, Officer Luther immediately secured him and "conducted the patdown." Officer Luther recovered a fully loaded .22 caliber revolver and a small amount of marijuana.

          {¶13} From the dispatch log, the entire encounter between Officer Luther and Thomas took approximately 25 seconds. Officer Luther never activated his overhead lights and he never pulled out his gun.

         {¶14} Officer Luther admitted that the only description that matched the dispatch log was that Thomas was a male wearing a black jacket. Thomas was not a juvenile -he was 33 years old with a mustache and beard. Likewise, Thomas was not with any other individuals, he had no brick in his hand, and he was not in the parking lot identified by the 911 caller.

         {¶15} After reviewing the evidence, exhibits, and case law, the trial court denied Thomas's motion to suppress. The trial court found that Officer Luther "observed the defendant at that location in close proximity to where the caller ...


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