[Cite as State v. Gaines,
2016-Ohio-5884.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0138
- vs - :
KEVIN ANTHONY GAINES, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00727.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH
44481 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Kevin A. Gaines, appeals his conviction for
Improperly Handling Firearms in a Motor Vehicle following a jury trial in Trumbull
County. The issues before this court are whether a defendant is deprived of
constitutionally effective assistance of counsel where counsel fails to file a motion to
suppress an inventory search of a motor vehicle and whether evidence of a partially
concealed firearm under the passenger seat is sufficient evidence of possession to
sustain a conviction for Improperly Handling Firearms in a Motor Vehicle. For the
following reasons, we affirm the decision of the court below.
{¶2} On October 28, 2014, the Trumbull County Grand Jury returned an
Indictment charging Gaines with Improperly Handling Firearms in a Motor Vehicle, a
felony of the fourth degree in violation of R.C. 2923.16(B) and (I).
{¶3} On December 22, 2014, Gaines entered a plea of not guilty.
{¶4} On November 9 and 10, 2015, a jury trial was held.
{¶5} The following testimony was presented on behalf of the State:
{¶6} Officer Zack Jones of the Warren City Police Department testified that on
September 2, 2014, at approximately 10:00 p.m., he was on uniform patrol in a marked
cruiser. Travelling eastbound on Oak Street, Southwest, Officer Jones heard loud
music coming from a red Dodge Stratus in front of him. Near the intersection of Oak
Street and Todd Avenue, he initiated a traffic stop. He identified Gaines as the driver
and sole occupant of the vehicle which, by tracing the license plate number, was
determined to belong to a Starlet Payne.
{¶7} Officer Jones described Gaines as “nervous”; “his eyes were glassy”; “his
speech was slightly slurred”; “the vehicle did smell strongly of marijuana and alcohol”;
and there was “an open container of beer … spilling on the passenger floor.” Gaines
admitted to recently smoking marijuana. Gaines did not have a valid driver’s license.
{¶8} Officer Jones removed Gaines from the vehicle and detained him in
handcuffs in the back of the cruiser. Two additional officers arrived on the scene “to
begin the inventory of the vehicle,” specifically “a tow inventory incident to arrest.”
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While Officer Jones was questioning Gaines, one of the officers (Peter Goranitis) found
a Springfield Armory .45 ACP semiautomatic handgun lying on the passenger side floor
of the vehicle. Officer Jones later fired the handgun to confirm its operability.
Additionally, prescription Albuterol was found on the rear seat of the vehicle.
{¶9} Officer Jones testified that, at this point,
Mr. Gaines was transported to the Trumbull County Jail, and I
[Officer Jones] returned to the station with the officers after they
completed the tow inventory of the vehicle and the towing company
retrieved the vehicle and we completed the report and logged it in.
{¶10} Patrolman Peter Goranitis of the Warren Police Department testified that
on September 2, 2014, he and an Officer Chinchick assisted Officer Jones in
conducting a traffic stop. Officer Jones advised him that the male subject had a
suspended license and the smell of marijuana was coming from the vehicle. Patrolmen
Goranitis “went to the car to conduct the inventory search” and “to search inside of the
vehicle as it smelled of marijuana,” and found “a silver handgun protruding from the
passenger seat.” There was a bullet in the chamber.
{¶11} At this point, Patrolman Goranitis “placed [Gaines] in handcuffs”; “did a
better inventory search of the vehicle”; and “had the suspect get out of the car just so
we could search his person a little better before taking him to the County Jail.”
{¶12} The jury found Gaines guilty of Improperly Handling Firearms in a Motor
Vehicle.
{¶13} On November 30, 2015, a sentencing hearing was held. At the conclusion
of the hearing, the trial court sentenced Gaines to eighteen months in prison, to be
served consecutively with the prison sentence imposed in Trumbull County Court of
Common Pleas Case No. 2014-CR-999.
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{¶14} On December 9, 2015, the trial court journalized the Entry on Sentence.
{¶15} On December 30, 2015, Gaines filed a Notice of Appeal. On appeal,
Gaines raises the following assignments of error:
{¶16} “[1.] The appellant received ineffective assistance of counsel in violation of
his rights pursuant to the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution.”
{¶17} “[2.] The State failed to produce evidence that was legally sufficient to
sustain the jury’s verdict that appellant knowingly transported a firearm in the motor
vehicle.”
{¶18} In the first assignment of error, Gaines maintains “that the inventory
search [of] the motor vehicle was improper and that … trial counsel should have filed a
motion to suppress the evidence obtained as a result of that improper search.”
Appellant’s brief at 6.
{¶19} To reverse a conviction for ineffective assistance of counsel, the
defendant must prove “(1) that counsel’s performance fell below an objective standard
of reasonableness, and (2) that counsel’s deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”
State v. Madrigal, 87 Ohio St.3d 378, 388-389,
721 N.E.2d 52 (2000), citing Strickland
v. Washington,
466 U.S. 668, 687-688,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶20} “When claiming ineffective assistance due to failure to file or pursue a
motion to suppress, an appellant must point to evidence in the record showing there
was a reasonable probability the result of trial would have differed if the motion had
been filed or pursued.” (Citation omitted.) State v. Weimer, 11th Dist. Lake No. 2013-L-
4
088, 2013-Ohio-5651, ¶ 38; State v. Adams,
103 Ohio St.3d 508,
2004-Ohio-5845,
817
N.E.2d 29, ¶ 35 (“where the record contains no evidence justifying a motion to
suppress, defendant has not met his burden of proving that his attorney violated an
essential duty by failing to file the motion”) (citation omitted).
{¶21} “[I]nventory searches of lawfully impounded vehicles are reasonable under
the Fourth Amendment when performed in accordance with standard police procedure
and when the evidence does not demonstrate that the procedure involved is merely a
pretext for an evidentiary search of the impounded vehicle.” State v. Leak, 145 Ohio
St.3d 165,
2016-Ohio-154,
47 N.E.3d 821, ¶ 22 (cases cited); State v. Robinette,
80
Ohio St.3d 234, 238,
685 N.E.2d 762 (1997) (Section 14, Article I of the Ohio
Constitution affords the same protection as the Fourth Amendment).
{¶22} City of Warren “[p]olice officers are authorized to provide for the removal
of a vehicle … [w]hen any vehicle has been operated by any person who is driving
without a lawful license or while his license has been suspended or revoked.” Warren
Codified Ordinances 303.08(a)(9).
{¶23} Gaines contends that the inventory search of the vehicle should have
been challenged on the grounds that Patrolman Goranitis “had no basis to judge
whether or not the vehicle was ‘properly impounded’”: “[t]here was no testimony that the
officers discussed whether [Gaines] was then under arrest or whether the motor vehicle
he was driving would indeed need [to be] towed.” Appellant’s brief at 8.
{¶24} Contrary to Gaines’ position, there is no basis for challenging the search
on the grounds that the vehicle was not lawfully impounded. That Gaines did not have
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a valid driver’s license is not disputed. That the police officers were authorized by
Warren Codified Ordinances 303.08(a)(9) to impound the vehicle cannot be disputed.
{¶25} Whether Gaines was under arrest when Patrolman Goranitis began his
inventory of the vehicle is immaterial.
{¶26} “Inventory searches have been upheld not because of their relationship to
an arrest, but because of their relationship to legitimate custodial purposes.” State v.
Raines, 4th Dist. Ross No. 1426, 1988 Ohio App. LEXIS 4642, 11 (Nov. 16, 1988). As
stated by the United States Supreme Court, it “has consistently sustained police
intrusions into automobiles impounded or otherwise in lawful police custody where the
process is aimed at securing or protecting the car and its contents.” South Dakota v.
Opperman,
428 U.S. 364, 373,
96 S.Ct. 3092,
49 L.Ed.2d 1000 (1976); Blue Ash v.
Kavanagh,
113 Ohio St.3d 67,
2007-Ohio-1103,
862 N.E.2d 810, ¶ 11. Such intrusions
are justified for a myriad of reasons apart from the custodial arrest of the driver of the
vehicle, such as when a damaged or disabled vehicle impedes the flow of traffic or
when a vehicle is parked illegally.
Opperman at 368-369.
{¶27} The facts of the present case parallel those in State v. Wotring, 11th Dist.
Lake No. 2010-L-009, 2010-Ohio-5797. In Wotring, the police stopped the defendant
for speeding and discovered that her license was suspended. Although the officers did
not anticipate a “physical arrest to take place,” the vehicle was impounded and
inventoried: “Detective Radigan testified that ‘[a]nytime the vehicle owner is the driver
and has a suspended license, [it is Mentor’s policy] to tow the vehicle.’” Illegal drugs
were found during the search. Id. at ¶ 3-4. This court upheld the search, “[f]inding the
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impoundment of appellant’s vehicle lawful” and that “[t]he inventory search was properly
conducted.” Id. at ¶ 36 and 52.
{¶28} Gaines suggests that there were indications that the search in the present
case was not properly conducted. He claims that Patrolman Goranitis’ testimony that
he returned to conduct a “better inventory search” of the vehicle “gives rise to the
conclusion that there was some defect or issue with the initial search in which he found
the firearm, and that the first search was not done in accordance with standard or
established procedures.” Appellant’s brief at 8. We disagree.
{¶29} Patrolman Goranitis’ testimony only suggests that the initial search was
interrupted by the discovery of the firearm immediately upon opening the passenger
door and that it was necessary to return to the vehicle to complete the inventory. The
testimony of both officers suggests that impoundment was standard procedure given
the circumstances.
{¶30} Gaines further asserts that the search was a pretext for finding
incriminating evidence inasmuch as “the officer said as much during his testimony.”
Appellant’s brief at 9. Again, we disagree.
{¶31} The Ohio Supreme Court has held that “the smell of marijuana, alone, by
a person qualified to recognize the odor, is sufficient to establish probable cause to
search a motor vehicle, pursuant to the automobile exception to the warrant
requirement.” State v. Moore, 90 Ohio St.3d 48, 49,
734 N.E.2d 804 (2000). In the
present case, Officer Jones smelled marijuana and Gaines admitted smoking
marijuana. A search for marijuana is not pretextual where there is probable cause to
believe that the vehicle contains evidence of a crime involving marijuana.
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{¶32} Gaines has failed to demonstrate a reasonable probability that the result
of the trial would have been different had trial counsel filed a motion to suppress.
{¶33} The first assignment of error is without merit.
{¶34} In the second assignment of error, Gaines argues there was insufficient
evidence to convict him of Improperly Handling Firearms in a Motor Vehicle.
{¶35} “A claim of insufficient evidence invokes a due process concern and raises
the question whether the evidence is legally sufficient to support the verdict as a matter
of law.” State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524,
960 N.E.2d 955, ¶ 118;
State v. Thompkins,
78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). In reviewing the
sufficiency of the evidence, “[t]he 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.” State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, following
Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979).
{¶36} The Improperly Handling Firearms in a Motor Vehicle statute provides: “No
person shall knowingly transport or have a loaded firearm in a motor vehicle in such a
manner that the firearm is accessible to the operator or any passenger without leaving
the vehicle.” R.C. 2923.16(B). “A person has knowledge of circumstances when the
person is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶37} Gaines contends there was insufficient evidence that he “intended to exert
dominion or control over th[e] firearm”: “the only thing linking [Gaines] with the gun …
[was] their mutual presence in a motor vehicle that did not belong to [Gaines]”; “[t]here
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was no testimony presented as to the ownership of the firearm or that it actually
belonged to [Gaines]; only that it had not been reported stolen.” Appellant’s brief at 13.
{¶38} Contrary to Gaines’ position, it was not necessary to prove that he owned
or exerted dominion/control over the firearm, but, rather, that he knowingly transported
the firearm and that it was accessible to him. Both officers in this case testified that the
firearm was visible from inside the vehicle and accessible to Gaines as the driver and
sole occupant of the vehicle. Thus, there was sufficient evidence to support the
conviction. State v. Williams, 11th Dist. Trumbull No. 2005-T-0123, 2006-Ohio-6689, ¶
5, 37 (evidence of a partially visible firearm beneath the front passenger’s seat was
sufficient to convict the driver of Improperly Handling Firearms); State v. Bartee, 9th
Dist. Summit No. 25266,
2010-Ohio-5982, ¶ 12 (evidence that “[t]he gun was located in
the car, on the floorboard on the passenger’s side; a position that would make the
weapon easily accessible to Mr. Bartee [the driver] without him even exiting the vehicle”
was sufficient to support a conviction of Improperly Handling Firearms).
{¶39} Gaines’ reliance on State v. Hart, 61 Ohio App.3d 37,
572 N.E.2d 141 (8th
Dist. 1988), is misplaced. The defendant in Hart was convicted of “carrying a concealed
weapon and having a weapon while under disability,” both of which required the State to
prove that he knowingly “had” or “carried” a firearm.
Id. at 39-40. In Hart, “[t]he gun
was found in a car that belonged to the sister of the driver, on the driver’s side, in which
appellant was a passenger.”
Id. at 40. Thus, it was necessary to prove the defendant’s
constructive possession of the firearm. Here, the essential elements were that Gaines
transported the firearm (undisputed), that he knew of its presence (inferable from its
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visibility), and that it was accessible to him (inferable from its proximity). Accordingly,
Hart is distinguishable from the present case.
{¶40} The second assignment of error is without merit.
{¶41} For the foregoing reasons, Gaines’ conviction of Improperly Handling
Firearms in a Motor Vehicle is affirmed. Costs to be taxed against the appellant.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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