State v. Twinam

[Cite as State v. Twinam, 2013-Ohio-720.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25153

v. : T.C. NO. 11CRB7223

COLBY TWINAM : (Criminal appeal from
Municipal Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 1st day of March , 2013.

..........

TROY B. DANIELS, Atty. Reg. No. 0084957 and AMY B. MUSTO, Atty. Reg. No.
0071514, Assistant City Prosecutors, 335 W. Third Street, Room 372, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 131 N. Ludlow Street, Suite 630,
Dayton, Ohio 45402
Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Colby Twinam,

filed April 4, 2012. On December 30, 2011, Twinam was found guilty, following a
 2

bench trial in Dayton Municipal Court, of carrying a concealed weapon, namely brass

knuckles, in violation of R.C. 2923.12(A)(1), a misdemeanor of the first degree. He was

sentenced on March 19, 2012, to 180 days in the Montgomery County Jail, with credit for

two days served, and the court suspended 178 days of his sentence. The court ordered that

the brass knuckles be destroyed and fined Twinam $150.00. We hereby affirm the

judgment of the trial court.

{¶ 2} Twinam was charged with the instant offense by way of complaint on July

12, 2011, and on July 25, 2011, he filed a motion to suppress. Following a hearing, the trial

court overruled the motion to suppress on October 21, 2011.

{¶ 3} At the suppression hearing, Officer Mark Orick, of the Dayton Police

Department, testified that on July 11, 2011, while on routine patrol with his partner, Officer

Robert Clingner, he observed Twinam’s vehicle parked in the driveway of a vacant house on

Nicholas Road. Orick also observed Askayi Robinson, whom Orick had twice previously

arrested for felony drug possession and also pursued twice on foot, standing at the window

of Twinam’s car, with his hand inside the window. Orick testified that his observations

were “indicative of being a hand-to-hand drug transaction. I have had numerous arrests in

that area and I’ve also had one additional arrest of another person who was pulled into that

exact same vacant house, driveway where they were arrested for a hand-to-hand drug

transaction.” The other arrest in the same driveway occurred three weeks prior to July 11,

2011, according to Orick. Orick stated in total that he has “had over five hundred to

probably seven hundred arrests or drug related arrests in my short three years with the City

of Dayton.”
[Cite as State v. Twinam, 2013-Ohio-720.]
{¶ 4} Orick stated that Twinam’s vehicle had “very dark tinted windows.” He

testified that upon observing Robinson, he began to turn his cruiser around, at which time

Robinson, having observed Orick, “immediately” removed his hand from the vehicle and

fled “through vacant yards” in a “dead sprint.” Orick stated that Twinam put his car in

reverse as Orick pulled into the driveway and parked his cruiser directly behind Twinam,

“half in the driveway and partially in the street.” Orick testified that he and Clingner exited

their cruiser, with their weapons “at a low ready,” and began to approach Twinam’s car

while Orick repeatedly ordered Twinam to place the vehicle in park. When the rear

backing lights remained illuminated, Orick testified that he was concerned that Twinam

intended to either back the vehicle into the officers or their cruiser. Orick stated that he

again “commanded the driver with a very loud voice to place the vehicle in park, which he

still refused to do at that point.”

{¶ 5} Orick stated that he observed that Twinam’s window was open “maybe six

to eight inches,” and he ordered him numerous times to roll the window all the way down

and show his hands. When Twinam refused, Orick stated that he was concerned that

Twinam had a weapon. Orick stated that he observed that Twinam was alone in the vehicle.

Orick testified that after Twinam refused to comply with his orders, he raised his weapon

and pointed it at the window and “again with a very loud commanding voice” ordered

Twinam to place the vehicle in park. After Twinam did so, Orick stated that he holstered his

weapon, as Clingner provided cover. Orick stated that in the course of placing his weapon

in the holster, he observed Twinam lean down to his right and then lean completely forward,

and Orick stated that he feared he “may be reaching for some type of weapon.” Orick stated

that he opened the door of the vehicle and removed Twinam, placing him on the ground.
[Cite as State v. Twinam, 2013-Ohio-720.]
{¶ 6} After Twinam was removed from the car, while Clingner conducted a pat down

search of him, Orick stated that he observed “in plain sight on the front driver’s side floor board *

* * two empty gel caps, which are commonly sold at any drug store, which are normally used to

transport narcotics.” Orick also observed “directly on his front seat * * * a cloth pouch, * * *

and then right there in plain view was a pair of brass knuckles.” After Twinam was placed in the

cruiser, Orick testified that he advised him that he was under arrest for carrying a concealed

weapon, and he read Twinam his Miranda rights from a card. Orick stated that Twinam

indicated his understanding of his rights, and he agreed to speak with Orick. According to

Orick, Twinam “was somewhat stunned that he was being arrested for carrying a concealed

weapon. He stated that he was not aware that * * * brass knuckles were considered a weapon

and he admitted that he had purchased them * * * at a flea market.”

{¶ 7} On cross-examination, Orick stated that he observed Robinson, as he turned to

run, place what Orick believed to be U.S. currency in his pants pocket. Orick stated that it was

daylight at the time. According to Orick, his “run-ins with Askayi Robinson have all been

purely drug related or fleeing from the police.” Orick testified that there is no video of the

instant encounter. The following exchange occurred:

Q. Okay, but when you were coming down the street you did not seeing

(sic) anything exchange hands?

A. All I saw was his hands inside the Defendant’s vehicle.

Q. So you were not able to observe Mr. Twinam

grabbing anything from Askayi?

A. No, not while I was making my turn, no, to make contact.

Q. You did not see Askayi pass anything off in the vehicle?
 5

A. No, I did not.

{¶ 8} Orick stated that Twinam was placed in handcuffs upon his removal from the

vehicle. Orick stated that Clingner performed the pat down and then escorted Twinam to the

cruiser. Orick stated that the pouch containing the brass knuckles was “affixed” to the front of

the driver’s seat, and that there was no “flap or anything covering the pouch.” Orick stated that

there was not enough residue in the gel caps to test them, and he stated that they were “squished.”

Orick stated that as he initially approached the vehicle, he was unable to discern “features” but

only Twinam’s silhouette due to the heavy tint on the windows. Orick stated, in response to

questions from the court, that the “mesh type of pouch” was “affixed to the very front of the

seat,” and that he observed it while Clingner patted Twinam down. Orick stated that he could

“see the brass knuckles through the pouch because * * * it was mesh, it wasn’t like a piece of

cloth with a flap over it, it was like a piece of mesh.” When asked by the court if it was

immediately clear to him that the pouch contained brass knuckles, Orick responded, “[a]bsolutely

yes, I’ve seen numerous pairs of brass knuckles.”

{¶ 9} In overruling Twinam’s motion to suppress, the court determined in part as

follows:

* * * Officer Orick did not observe any movements that would appear to

be part of a hand-to-hand drug transaction. The known drug dealer’s hands were

in the car window and the Officer could not see what was going on inside the car.

In this Court’s opinion, hands being inside a car window, with nothing more, is

not the type of activity the Second District Appellate Court relied on in [State v.
 6

Johnson, 2d Dist. Montgomery No. 19203, 2002-Ohio-46841 and State v. Abrams

AKA Stone, 2d Dist. Montgomery No. 14050, 1994 WL 1713302 ]. However,

Officer Orick’s observations couple[d] with his experience with drug arrests at

this same location three weeks earlier; his prior arrests and chases with the known

drug dealer; the area’s reputation for drug activity; being parked in the driveway of

a vacant house; and the Defendant’s attempt to leave are all factors that establish

reasonable articulable suspicion. An area’s reputation for criminal activity is an

articulable fact which is part of the totality of circumstances surrounding a stop to

investigate suspicious behavior. * * * Unprovoked flight upon seeing a police

officer is a relevant consideration in determining reasonable articulable suspicion.

***

Based on the totality of the circumstances, Officer Orick had the

reasonable and articulable suspicion to effectuate a Terry stop of the Defendant to

investigate the possibility of criminal activity. * * *

{¶ 10} At trial, Orick provided testimony that was consistent with his testimony at the

suppression hearing regarding the sequence of events that resulted in Twinam’s arrest. Orick

1
(holding that totality of the circumstances gave experienced police officer
reasonable, articulable suspicion for investigative stop, including officer’s
observation of defendant in company of known drug trafficker in area known for
drug transactions, engaged in activity believed to be drug transaction in
progress, namely drug trafficker leaning into defendant’s car window, with both
arms in the car, and dispersal of individuals upon arrival of marked cruiser).
2
(holding that experienced police officer had a reasonable, articulable
suspicion that occupants of vehicle driven by defendant were purchasing drugs
where “‘several hand ins and hand outs’” were observed in an area known for
drug transactions).
 7

stated that it is “common place” to find weapons in the course of investigating drug activity.

Orick described Robinson as a “known drug dealer that I’ve arrested on two other occasions,

have chased on foot numerous times and also recently recovered a hand gun off this individual.”

{¶ 11} Orick described the pouch at trial as a “spider web type mesh,” with “an

octagonal pattern of the holes.” Orick stated that he did not see the pouch when he initially

opened the door because when Twinam “was sitting in the seat his legs were blocking any view

of that area so I was unable to even know” that the pouch was there. Orick identified the brass

knuckles retrieved from Twinam’s vehicle, and he stated that they are used “to protect the

knuckles and add more force to a punch.” Orick stated that he has never known brass knuckles

to be used as anything other than a weapon. Orick stated that Twinam told him, after being

advised of his rights, that he “uses them for protection especially when he comes to Dayton to

purchase heroin.”

{¶ 12} On cross-examination, Orick stated that “anything in [the pouch] would be

partially obscured by the pouch, but the pouch itself was not concealed.” According to Orick, “it

wasn’t a clear pouch. I could ascertain what was inside the pouch, however, if any item inside

that pouch would have been black then no you wouldn’t have been able to see it due to the fact

this was a shiny gold, I was able to see them through the pouch.”

{¶ 13} Following trial, at the court’s request, both parties submitted post-trial

memoranda addressed to the issue of whether or not the brass knuckles were concealed. In its

December 30, 2011 “Final Decision and Entry” the trial court concluded as follows:

***

Based on the testimony it is undisputed that on July 11, 2011, Colby
 8

Twinam was arrested for CCW, after he was removed from his vehicle and

detained on the ground by Officer Mark Orrick. While outside of the vehicle

Officer Orick saw attached to the lower portion of the front driver’s seat a mesh

pouch. Officer Orick testified that he first recognized the object as brass

knuckles while he was holding the Defendant on the ground outside of the vehicle.

When questioned, Colby Twinam stated that he obtained the brass knuckles for

protection.

The Committee Comments to R.C. 2923.11 provide that a deadly weapon

is defined as “any device capable of causing death, and which is either designed or

specially adapted for use as a weapon such as a gun, knife, billy or brass

knuckles), or is carried, possessed, or used as a weapon (such as a rock or cane

when used for offensive purposes).” Brass knuckles are considered a deadly

weapon. Twinam admitted knowledge of the weapon in the vehicle. The only

issue is whether or not the brass knuckles were concealed. The [“]weapon is

concealed if it is so situated as not to be discernible by ordinary observation by

those near enough to see it if it were not concealed, who would come into contact

with the possessor in the usual associations of life; but that absolute invisibility is

not required.” State v. Pettit (1969), 20 Ohio App.2d 1170, 173-174, 252 N.E.2d

325. Applying this test for concealment to the testimony in this case, one can

only conclude that the brass knuckles were concealed. The State has proved

beyond a reasonable doubt, the essential elements of the offense of Carrying a

Concealed Weapon.
[Cite as State v. Twinam, 2013-Ohio-720.]
{¶ 14} Twinam asserts two assignments of error herein. His first assigned error, with

subparts, is as follows:

“THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT’S MOTION TO

SUPPRESS.”

“A. THE OFFICER DID NOT HAVE PROBABLE CAUSE OR REASONABLE

SUSPICION TO ENTER THE APPELLANT’S VEHICLE.”

“B. THE OFFICER’S OBSERVATIONS DID NOT AMOUNT TO REASONABLE

SUSPICION THAT APPELLANT HAD ENGAGED IN CRIMINAL ACTIVITY, THUS,

STOP, SEIZURE AND ARREST OF APPELLANT WAS UNLAWFUL.”

“C. NO PROBABLE CAUSE EXISTED TO ARREST APPELLANT BEFORE HE

OR THE VEHICLE WERE SEARCHED.”

{¶ 15} As this Court has previously noted:

“Appellate courts give great deference to the factual findings of the trier of

facts. (Internal citations omitted) . At a suppression hearing, the trial court serves

as the trier of fact, and must judge the credibility of witnesses and the weight of

the evidence. (Internal citations omitted). The trial court is in the best position to

resolve questions of fact and evaluate witness credibility. (Internal citations

omitted). In reviewing a trial court’s decision on a motion to suppress, an

appellate court accepts the trial court’s factual findings, relies on the trial court’s

ability to assess the credibility of witnesses, and independently determines

whether the trial court applied the proper legal standard to the facts as found.

(Internal citations omitted). An appellate court is bound to accept the trial court’s

factual findings as long as they are supported by competent, credible evidence.”
 10

State v. Hurt, Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

{¶ 16} As this Court has previously noted:

The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio (1968), 392

U.S. 1, 88S.Ct. 1868, 20 L.Ed.2d 889. Under Terry, police officers may briefly

stop and/or temporarily detain individuals in order to investigate possible criminal

activity if the officers have a reasonable and articulable suspicion that the person

is engaged in criminal activity. * * * . This is so even if the officers lack

probable cause to make an arrest. * * * “Reasonable suspicion entails some

minimal level of objective justification for making a stop - that is, something more

than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level

of suspicion required for probable cause.” * * *

We determine the existence of “reasonable and articulable suspicion” by

evaluating the totality of the circumstances, considering those circumstances “

‘through the eyes of the reasonable and prudent police officer on the scene who

must react to events as they unfold.’ ” * * * An investigatory detention occurs

when, by means of physical force or show of authority, a reasonable person would

have believed that he was not free to leave or was compelled to respond to

questions. * * * . State v. Chadwell,182 Ohio App.3d 256, 2009-Ohio-1630, 912

N.E.2d 618, ¶ 21-22 (2d Dist.)

{¶ 17} In State v. Maldonado, 2d Dist. Montgomery No. 13530, 1993 WL 402772 (Sept.
 11

24, 1993), this Court noted as follows:

Since the decision of the Supreme Court in State v. Bobo (1988), [37] Ohio

St. 3d [1]77, police officers have more frequently cited the reputation of a vicinity

as a “high crime area” when articulating their reasons for a Terry stop performed

there. This may reflect the greater law enforcement focus on the street-level drug

crime, which is usually subtle in its methods and often violent in its consequences.

However, those idiosyncracies do not diminish the requirements of the Fourth

Amendment or its interpretation in Terry. The facts and circumstances before the

officer must yet reasonably suggest that some specific criminal misconduct is

afoot. That specificity requirement focuses on the criminal character of the act,

not on its setting. Acts that are essentially neutral or ambiguous do not become

specifically criminal in character because they occur in a high crime area. Acts

that are not specifically criminal in character do not become criminal because they

are inapposite to their setting and, therefore, “suspicious.” The setting can inform

the officer’s judgment, but it does not make the act criminal. In order to detain an

individual to investigate for crime, some nexus between the individual and

specific criminal conduct must reasonably exist and must be articulated by the

officer.

{¶ 18} We note that “‘[u]nprovoked flight upon seeing police officers is a relevant

consideration in determining whether the totality of the facts and circumstances are sufficiently

suspicious to justify a Terry stop.’” Chadwell, ¶ 26. “While such [behavior] is not necessarily

indicative of criminal behavior, and can be consistent with innocent conduct, Terry recognized
 12

that officers may briefly detain individuals to resolve ambiguity in their conduct.” Id.

{¶ 19} “‘Probable cause to arrest depends ‘upon whether, at the moment the arrest was

made * * * the facts and circumstances within [the arresting officers’] knowledge and of which

they had reasonably trustworthy information were sufficient to warrant a prudent man in

believing that the [suspect] had committed or was committing an offense.’” State v. Jones, 183

Ohio App.3d 839, 2009-Ohio-4606, 919 N.E.2d 252, ¶ 15 (2d Dist.).

{¶ 20} As did the trial court, we conclude that Orick, pursuant to Terry, possessed a

reasonable, articulable suspicion that Twinam was engaged in criminal activity, as well as

probable cause for his arrest upon investigation. Orick observed Twinam’s heavily tinted

vehicle in the driveway of a vacant home in an area where Orick has made numerous arrests,

including an arrest for a hand-to-hand drug transaction in the same driveway three weeks prior to

the instant offense. Orick’s experience includes 500 - 700 drug-related arrests. Orick observed

Robinson, whom he has previously both pursued and arrested for drug-related activity, reaching

into Twinam’s vehicle in a manner consistent with a hand-to-hand drug transaction. Upon

observing Orick, Robinson immediately fled, and Orick observed U.S. currency in his hand.

See Johnson, fn. 1, and Abrams, fn. 2, herein.

{¶ 21} As the officers approached Twinam’s vehicle, Twinam refused to comply with

Orick’s commands to place the vehicle in park and lower the window, and Orick observed him

leaning to the right and forward in a manner that suggested the possible presence of weapon, a

common feature of street-level drug activity. See, Maldonado. After Twinam was removed

from the vehicle for officer safety, Orick observed gel caps that he knew from experience are

often used to transport drugs, and he observed brass knuckles in a mesh pouch “affixed” to the
 13

front of the seat. At that point, the facts and circumstances within Orick’s knowledge were

sufficient to warrant Orick’s conclusion that Twinam was carrying a concealed weapon. After

Orick read Twinam his rights, Twinam admitted that he purchased the brass knuckles at a flea

market.

{¶ 22} Since the officers had a reasonable, articulable suspicion, pursuant to Terry, that

Twinam was engaged in drug-related criminal activity, the stop of his vehicle and Twinam’s

detention were proper. Since, in the course of his investigation, Orick observed the brass

knuckles in the mesh pouch “affixed” to the front of the driver’s seat, there was probable cause

for arrest for carrying a concealed weapon. Accordingly, Twinam’s first assigned error is

overruled.

{¶ 23} Twinam’s second assigned error is as follows:

“THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY OF

CARRYING A CONCEALED WEAPON, WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

{¶ 24} Twinam asserts that the brass knuckles were not concealed within the meaning of

R.C. 2923.12.

{¶ 25} As this Court has previously noted:

When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether,

in resolving conflicts in the evidence, the trier of fact “clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed
 14

and a new trial ordered.” * * * A judgment should be reversed as being against the

manifest weight of the evidence “only in the exceptional case in which the

evidence weighs heavily against the conviction.” * * * State v. Hammock, 2d Dist.

Montgomery No. 24664, 2012-Ohio-419, ¶ 12.

{¶ 26} We note that in the body of this assigned error, Twinam also asserts that his

conviction is not supported by sufficient evidence. Our analysis is different when reviewing a

challenge to the sufficiency of the evidence. As this Court noted in Hammock, ¶ 11:

When a defendant challenges the sufficiency of the evidence, the

defendant is arguing that the State presented inadequate evidence on an element of

the offense to sustain the verdict as a matter of law. * * * “An appellate court’s

function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable

doubt.” * * *.

{¶ 27} R.C. 2923.12 provides: “(A) No person shall knowingly carry or have, concealed

on the person’s person or concealed ready at hand, any of the following: (1) A deadly weapon

other than a handgun.” R.C. 2923.11 defines “deadly weapon” as “any instrument, device, or

thing capable of inflicting death, and designed or specially adapted for use as a weapon, or

possessed, carried, or used as a weapon.”
[Cite as State v. Twinam, 2013-Ohio-720.]
{¶ 28} As this Court has previously noted, the “test for concealment, as it pertains to

R.C. 2923.12(A), was set forth in State v. Petit (1969), 20 Ohio App.2d 170, 173-174, 252

N.E.2d 325.” State v. Bailey, 2d Dist. Greene No. 97CA128, 1998 WL 892276 (Aug. 21, 1998).

The test is as follows: “A weapon is concealed if it is so situated as not to be discernible by

ordinary observation by those near enough to see it were it not concealed, who would come into

contact with the possessor in the usual associations of life; but that absolute invisibility is not

required.” Bailey, id. “[T]he evident purpose of R.C. 2923.12(A) is to ensure that anyone who

comes into contact with a person who is armed with a deadly weapon will be aware of the fact

that they are so armed. Thus aware, the individual can act with a heightened degree of

prudence.” State v. Curry, 2d Dist. Montgomery No. 15705, 1996 WL 665009, * 2 (Nov. 15,

1996). In other words, if “the weapon is so situated as not to be discernible by ordinary

observation by a person coming into close enough proximity to the bearer of the weapon to

interact with the bearer in any meaningful way, then the weapon is concealed for purposes of the

statute.” Id.

{¶ 29} In Bailey, this court affirmed the defendant’s conviction for carrying a concealed

weapon where the police officer, upon opening a vehicle in the course of a traffic stop, “saw part

of a gun on the floor near Bailey’s feet.” This court concluded, “the weapon had not been

visible by ordinary observation and had become discernible only after [the officer] had opened

the door and looked around the front area of the vehicle.” Id., * 3.

{¶ 30} Herein, while Orick’s testimony at trial was clear that the brass knuckles were

clearly visible within the pouch, Orick did not observe the pouch or the brass knuckles, and he

was unaware of their existence, until he opened the door and removed Twinam from the vehicle,

since the pouch and the brass knuckles within it were obscured by Twinam’s legs. In other
 16

words, while the brass knuckles were ready at hand, they were not discernible by ordinary

observation by anyone coming into close proximity of Twinam in the usual associations of life; it

was Twinam’s forced removal from the vehicle that revealed the brass knuckles.

{¶ 31} Since Twinam’s conviction is not against the manifest weight of the evidence and

is supported by sufficient evidence, his second assigned error is overruled, and the judgment of

the trial court is affirmed.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Troy B. Daniels
Amy B. Musto
Christopher A. Deal
Hon. Deirdre E. Logan