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State v. Lewis

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANDRE D. LEWIS, JR. DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605539-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Anna Woods Assistant County Prosecutor.

          BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} Defendant-appellant, Andre Lewis, appeals the trial court's denial of his motion to suppress and his conviction and sentence for trafficking of drugs with a one-year firearm specification, possession of drugs with a one-year firearm specification, carrying concealed weapons, improperly handling firearms in a motor vehicle, having weapons while under disability, and possession of criminal tools. For the reasons that follow, we affirm Lewis's convictions but vacate his sentence and remand for resentencing.

         {¶2} In 2016, Lewis was charged with the crimes as stated above. He filed a motion to suppress, which the trial court denied after a full hearing. The matter proceeded to a bench trial. The following pertinent evidence was presented at the suppression hearing and bench trial.

         {¶3} Cleveland police officers Patty Katynski and Joshua McCoy were on patrol when they conducted a random registration check on a Chevrolet Equinox. The check revealed that the owner of the car had a suspended license. In comparing the registration picture to the driver of the vehicle, they determined that Lewis was both the driver and owner of the car.

         {¶4} The officers conducted a traffic stop and told Lewis he was under arrest for driving with a suspended license. The officers asked Lewis's passenger for identification and found out that his passenger also did not have a valid driver's license; therefore, the car would have to be towed because no one was present who could legally drive it.

         {¶5} Officer McCoy searched Lewis pursuant to arrest and found a small folded piece of paper in Lewis's front pants pocket; Lewis told Officer McCoy that it was "Molly, " a street name for the drug MDMA.

         {¶6} Officer McCoy testified that departmental policy requires him to search a vehicle prior to towing it. Pursuant to the policy he must determine if a car contains a battery, radiator, engine, air conditioning, radio, tape player, CD player, keys, and transmission, and he cannot have the car towed until he has completed the Vehicle/Tow Supplement Form.

         {¶7} Officer McCoy searched the car and testified that he "popped" the hood as part of his search for the battery, radiator, and engine. He saw, in plain view, the handle of a handgun sticking up from the hood next to a damaged air filter. Officer Katynski also observed the gun next to the air filter. The officers radioed for a supervisor to take photos of the gun, and the gun was removed from the car. The gun was loaded and operable. The officers also located a jar of suspected marijuana and plastic baggies.

         {¶8} Lewis admitted to the police that the contraband and gun were his.

         {¶9} The trial court found Lewis guilty of all charges and specifications. During the sentencing hearing, the court told Lewis that it was sentencing him to a total of three years in prison. The sentencing journal entry also stated that Lewis was being sentenced to a total of three years in prison by running the three-year firearm specification concurrent to the crime of having weapons while under disability.

         {¶10} Lewis now appeals, raising the following assignments of error for our review:

I. The trial court erred by denying Appellant's motion to suppress where the search of his vehicle exceeded the scope of a permissible warrantless search in violation of his constitutional rights.
II. The trial court erred by denying Appellant's Crim.R. 29 motions because Appellant's convictions were based on insufficient evidence.
III. Appellant's convictions were against the manifest weight of the evidence.
IV. Appellant's sentence is contrary to law and was imposed in violation of his Sixth Amendment rights.

         {¶11} In the first assignment of error, Lewis argues that the trial court erred ...


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