[Cite as State v. Thornton, 2014-Ohio-4011.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

) CASE NO. 14 CO 19 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) O P I N I O N 

) 

GRAYLEN THORNTON, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from East Liverpool 

Municipal Court, Case No. 13CRB1863. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Robert Herron 

Prosecuting Attorney 

Attorney Timothy McNicol 

Assistant Prosecuting Attorney 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant: Attorney Charles Amato 

Attorney Lynsey Lyle-Opalenik 

991 Main Street 

Wellsville, Ohio 43968 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: September 9, 2014
[Cite as State v. Thornton, 2014-Ohio-4011.]

VUKOVICH, J. 

{¶1} Defendant-appellant Graylen Thornton appeals the decision of the East 

Liverpool Municipal Court denying his suppression motion. Appellant contends that 

the officer needed reasonable suspicion in order to ask for his name. He also states 

that the officer’s mistaken belief as to the name he provided was not reasonable. 

Appellant lastly contends that there was no probable cause to arrest him for improper 

handling of a firearm in a motor vehicle because he complied with his duty to promptly 

inform the officer that he had a concealed carry permit. For the following reasons, the 

judgment of the trial court is affirmed. 

STATEMENT OF THE CASE

{¶2} On August 24, 2013, appellant was arrested for improper handling of a 

firearm in a motor vehicle, a first degree misdemeanor in violation of R.C. 

2923.16(E)(1). This subdivision states that no person who has been issued a 

concealed handgun license, who is the driver or an occupant of a motor vehicle that is 

stopped as a result of a traffic stop or a stop for another law enforcement purpose and 

who is transporting or has a loaded handgun in the motor vehicle in any manner, shall 

fail to promptly inform any law enforcement officer who approaches the vehicle while 

stopped that the person has been issued a concealed handgun license and that the 

person then possesses or has a loaded handgun in the motor vehicle. 

{¶3} Appellant filed a motion to suppress arguing that the stop of the vehicle 

was not valid. Regardless, he stated that he should not have been arrested as he had 

a concealed carry permit and he notified the officer of such. At the suppression 

hearing, Officer 1 testified that he was responding to a call in a “high drug” area 

around 2:00 a.m. when he saw appellant and another person walking on the sidewalk. 

(Tr. 8). They were right in front of a known drug house on McKinnon Avenue, and it 

appeared to the officer that they were heading toward it. (Tr. 9-10). The officer 

stopped his vehicle and asked out of his passenger window for their names. (Tr. 11). 

{¶4} Appellant’s companion provided his name, and the officer recognized 

him. (Tr. 28). The officer, whose K-9 dog was barking in the back seat, believed 

appellant Graylen Thornton introduced himself as “Tyson Gordon.” (Tr. 10). Appellant 
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is said to have offered his identification, but the officer was in a hurry and continued on 

to his call. (Tr. 32). The officer recognized the name Tyson Gordon from the police 

station as someone involved in drugs. (Tr. 12, 25). 

{¶5} An hour later, the officer drove past the known drug house with Officer 2 

in his vehicle. They saw appellant come out of the house. (Tr. 13, 50). Officer 1 

inquired with dispatch whether Tyson Gordon had any warrants, and dispatch 

responded that there was a warrant for him out of the municipal court. (Tr. 13). By 

that time, appellant had entered the back seat of a vehicle; the companion from earlier 

was driving, and another passenger was in the front. As the vehicle pulled away, the 

K-9 unit initiated a traffic stop. Two other police vehicles stopped as well. 

{¶6} Officer 1 approached the driver’s side and began speaking to the driver. 

Officer 2 approached from the back passenger side with his flashlight and noticed 

appellant in an arched position in the back seat trying to “shove” a gun down his pants. 

(Tr. 45, 58). Officer 2 yelled that there was a gun and drew his weapon. Appellant 

looked at him and pulled his shirt over the gun. Officer 2 stated that appellant was not 

saying anything while in the car. (Tr. 45) 

{¶7} The occupants were ordered out with their hands up and told to get on 

the ground. Officer 1 testified that appellant did not immediately comply and seemed 

to be “messing” with the gun in his waistband even though they were ordering him to 

keep his hands off the gun. (Tr. 16). He stated that appellant did not voice that he 

had a weapon or a permit. (Tr. 38, 40). 

{¶8} Officer 2 confirmed that it took several orders before appellant complied 

with his instructions. Appellant did not promptly alight from the vehicle, he alighted 

with both hands still in his waistband instead of up in the air, and it then took several 

commands before appellant got to the ground. (Tr. 46, 59-60). Officer 2 stated that 

appellant may have been “uttering something” at some point after he exited the car. 

(Tr. 60). 

{¶9} A captain covering the front of the stopped vehicle also testified that 

appellant did not immediately put his hands up and instead had his hands around the 

front of his waist area, confirming that it took several commands before he put his 
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hands up and got on the ground. (Tr. 71-72). The captain did not hear appellant 

saying anything. (Tr. 72). As appellant was lying down, a loaded Glock fell from his 

waistband. He was then cuffed, and his concealed carry permit was found in his wallet 

as they were ascertaining identities. (Tr. 38, 46, 61). 

{¶10} After the suppression hearing, the court asked for post-hearing briefs. 

The state’s opposition to suppression urged that the officer’s mistaken belief that 

appellant was the person with the warrant was objectively reasonable, noting the 

similar sounding names. The state also urged that the later stop to investigate the 

matter was done in good faith. 

{¶11} The defendant’s post-hearing brief stated that the initial stop to ask his 

name lacked reasonable suspicion and thus the second stop was invalid. As to the 

reasonableness of the officer’s mistake, the defense suggested that the officer should 

have used the cruiser’s computer to view a photograph of Tyson Gordon to ensure 

appellant was the person with the warrant. It was also said that appellant tried to give 

the officer his identification at the initial encounter, but the officer did not view it even 

though his barking dog made it hard to hear. Lastly, the defense mentioned that once 

the officers discovered his name and his permit, he should have been released. 

{¶12} On February 13, 2014, the trial court overruled the suppression motion. 

The court explained that the initial encounter did not rise to the level of a Terry stop but 

was a mere consensual police-citizen exchange. The court noted that the officer did 

not exit the car or show force, merely asked names, and then drove away, concluding 

that there was no show of authority that could be seen as a command to stop. The 

trial court also ruled that the second encounter was not an illegal stop, adopting the 

state’s rationale that the officer’s mistake was reasonable and citing the Kinzy and 

Fain cases reviewed below. 

{¶13} On March 11, 2014, appellant pled no contest to the offense. He was 

given a suspended sentence of ninety days with two years of non-reporting probation 

and fined $200. He was ordered to surrender his concealed carry permit, and the 

firearm was forfeited by stipulation. Appellant filed a timely notice of appeal. 

ASSIGNMENT OF ERROR NUMBER ONE
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{¶14} Appellant sets forth two assignments of error, the first of which alleges: 

{¶15} “The trial court erred in denying Defendant’s Motion to Suppress as the 

Officer had no reasonable, articulable suspicion to stop Defendant and such stop 

violated Defendant’s Fourth and Fourteenth Amendment rights subsequently leading 

to Defendant being found guilty of Improperly Handling a Firearm in a Motor Vehicle, a 

violation of O.R.C. 2923.16(E)(1).” 

{¶16} First, appellant contends that it was improper for the officer to ask his 

name merely because he was walking down the sidewalk in a high drug area in front 

of a known drug house at 2:00 a.m. He asserts that an objective manifestation that he 

was or was about to be engaged in criminal activity was required to stop him, i.e. he 

alleges that reasonable suspicion was required to ask for a name. Appellant then 

notes that the officer must not have reasonably believed he was about to engage in 

criminal activity or he would have alighted from his cruiser, asked for formal 

identification, and run the warrant check at that time. The state responds that the 

initial momentary question posed to appellant was a mere consensual encounter and 

did not rise to the level of an investigatory stop. 

{¶17} Appellate review of a suppression decision presents a mixed question of 

law and fact. State v. Roberts, 110 Ohio St .3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, 

¶ 100. Legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio St.3d 

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. However, factual decisions are afforded 

great deference. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). This is 

because the trial court is the fact-finder who occupies the best position from which to 

resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 

Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). 

{¶18} An investigatory stop is not an arrest and does not require probable 

cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Rather, it 

must be supported by reasonable suspicion that criminal activity is imminent. Id. In 

making an investigatory stop, the officer must point to specific and articulable objective 

facts that, along with any reasonable inferences that can be drawn therefrom, 

reasonably warrant the intrusion of a Terry stop. Id. The propriety of an investigative 
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stop must be viewed in light of the totality of the circumstances. State v. Bobo, 37 

Ohio St.3d 177, 179, 524 N.E.2d 489 (1988) (presence in a high crime area, time of 

night, furtive movements are circumstances); State v. Carter, 69 Ohio St.3d 57, 65, 

630 N.E.2d 355 (1994) (high crime area not enough). 

{¶19} However, a consensual police-citizen encounter does not rise to the level 

of an investigatory stop and does not require reasonable suspicion of imminent 

criminal activity. State v. Starcher, 7th Dist. No. 13JE1, 2013-Ohio-5533, ¶ 22-23 (and 

when an officer is engaging in a community caretaking function, he does not need a 

reasonable suspicion of criminal activity prior to approaching a person or a vehicle as 

the encounter is considered consensual rather than investigatory). Encounters are 

consensual where the police merely approach a person in a public place, engage the 

person in conversation, request information, and the person is free to decline to 

answer and walk away. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 

1870, 64 L.Ed.2d 497 (1980). 

{¶20} The request to see someone’s identification does not make an encounter 

non-consensual. Id. at 555-556; Florida v. Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308, 

83 L.Ed.2d 165 (1984). See also Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 

2382, 115 L.Ed.2d 389 (1991) (request to search belongings does not make encounter 

non-consensual if message of required compliance is not conveyed). This is true 

unless the police officer has by physical force or show of authority restrained the 

person's liberty so that a reasonable person would not feel free to decline the officer's 

requests or otherwise disengage from the encounter. Mendenhall, 446 U.S. at 554. 

{¶21} The slide from a consensual encounter into an investigatory stop is 

evaluated under the totality of the circumstances, and the factors that could indicate a 

seizure include a threatening presence of several officers, the display of a weapon by 

an officer, some physical touching of the person, the use of language or tone of voice 

indicating that compliance with the officer's request might be compelled, approaching 

the citizen in a nonpublic place, and blocking the citizen's path. Id. Finally, if 

reasonable suspicion arises during or after the consensual encounter, a proper 
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investigatory stop can proceed. See Starcher, 7th Dist. No. 13JE1 at ¶ 24, citing State 

v. Rappley, 2d Dist. No. 11-CR-2693, 2013-Ohio-964, ¶ 20-31. 

{¶22} Here, the officer was driving down the street in a high drug area at 2:00 

a.m. and saw two people walking down the sidewalk in front of a known drug house as 

if they were approaching that house. The state does not contest the proposition that at 

this initial encounter there was no reasonable suspicion to stop the two people to 

investigate criminal activity. 

{¶23} The officer stopped his vehicle in his own lane of travel and asked the 

two people their names. He did not use his siren or activate his lights. He did not 

even exit his vehicle. Rather, he spoke to them by remaining in the driver’s seat and 

speaking through the open passenger window of his cruiser. The officer asked their 

names, and they provided their names. Appellant even notes that he offered his 

identification. The officer then drove away without checking identifications. . 

{¶24} None of the Mendenhall factors are present here. This was a public 

street. There was only one officer. The officer did not display a weapon. There was 

no physical force or physical touching of the person. There is no indication that any 

language or tone of voice indicated compliance was compelled. The officer did not 

block the citizen's path. There was no show of authority over the preexisting fact that 

the person asking was a police officer. Moreover, the encounter was extremely brief 

and resulted in nothing but the provision of names. 

{¶25} Under the totality of the circumstances, we conclude that the initial 

encounter did not rise to the level of a Terry stop. The trial court properly ruled that 

the initial momentary encounter was a consensual exchange which did not require 

reasonable suspicion. 

{¶26} The next issue raised under this assignment of error is whether the 

officer’s mistake of fact regarding appellant’s name was reasonable. Appellant urges 

that the officer should have accepted the offer to show identification or the officer 

should have looked up the name he thought he heard on his computer to view a 

photograph. The state responds that the mistake was objectively reasonable and that 

any lack of good faith was a question for the trial court. 
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{¶27} When police have probable cause to arrest X and the officer reasonably 

mistakes the person they are arresting for X, the arrest is valid. Hill v. California, 401 

U.S. 797, 802-803, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The same premise applies 

in conducting an investigatory stop based upon a factual mistake. State v. Kinzy, 7th 

Dist. No. 09MO7, 2010-Ohio-6499 at ¶ 23-25 (officer believed defendant pulled into a 

business lot when he pulled behind him to check on business, but defendant had 

actually pulled into his own driveway right next to business); State v. Pickens, 5th Dist. 

No. 11CAA090085, 2012-Ohio-2901, ¶ 44-48 (officer misidentified person he saw 

enter a car); State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, ¶ 17 (officer 

mistakenly believed stop sign was on public street); State v. Keilback, 12th Dist. No. 

CA2001-01-002 (Oct. 22, 2001) (a stop of a vehicle that was the result of a mistake in 

reporting the vehicle's license number was a justified stop, reversing trial court’s 

decision to suppress). 

{¶28} Thus, a police officer's mistake of fact will not lead to the suppression of 

evidence where the mistake was “understandable” and a “reasonable response to the 

situation facing the police officer.” Kinzy, 7th Dist. No. 09MO7 at ¶ 23, citing Hill, 401 

U.S. at 804 and State v. Fain, 9th Dist. No. 18306 (Jan. 21, 1998) (officer mistakenly 

believed driver was Dwayne Fain, whose license was suspended, rather than the true 

driver whose last name was also Fain). 

{¶29} Here, the officer believed appellant Graylen Thornton provided him with 

the name “Tyson Gordon” during a momentary consensual encounter on the sidewalk 

in front of a known drug house. His dog was barking, which made it difficult to hear. 

But, he correctly heard the other person’s name (and he also recognized him), and he 

thought he heard appellant give a name that he recognized from the police station (as 

a person involved with drugs). The officer proceeded to respond to an emergency call. 

{¶30} An hour later, at 3:00 a.m., the officer again saw appellant, this time 

exiting the known drug house. He asked dispatch to run a check on Tyson Gordon, 

and he was advised that there was an outstanding warrant for him out of the municipal 

court. By this point, appellant was in the back seat of a vehicle that was driving away. 

The officer thus initiated a stop of the vehicle. 
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{¶31} The failure to obtain and view appellant’s license an hour before or run a 

warrant check earlier did not make the mistake in hearing appellant’s name 

unreasonable. The officer was not proceeding with any investigation at that point. It 

was not until an hour later, when he saw appellant again (this time coming out of the 

known drug house), that he decided to check for a warrant. 

{¶32} Nor did the mistake in hearing appellant’s response (and proceeding 

under that mistake) become unreasonable because the officer did not later personally 

run his own check to find a photograph before stopping the vehicle. And, whether the 

viewing of a booking photograph of Tyson Gordon would have allowed the officer to 

realize that the person he saw on a sidewalk at 2:00 a.m. was not Tyson Gordon is 

questionable. 

{¶33} The officer thought appellant identified himself by a certain name, the 

officer recognized the name, and dispatch advised there was a warrant. There was no 

absolute requirement that the officer ascertain what Tyson Gordon looked like before 

conducting an investigatory stop of a vehicle that was driving away when he believed it 

contained a person wanted on a warrant. Stopping to investigate was one “reasonable 

response to the situation facing the police officer” and was understandable. Kinzy, 7th 

Dist. No. 09MO7 at ¶ 23 

{¶34} In conclusion, the credibility of the officer’s testimony on his good faith 

mistake is a matter best left to the trial court. See Pickens, 5th Dist. No. 

11CAA090085 at ¶ 51. The trial court could rationally conclude that the officer’s 

mistake was understandable or objectively reasonable under all of the facts of the 

case. See Hill v., 401 U.S. at 802-803 (if probable cause to arrest one person and 

officer reasonably mistakes the person they are arresting for one they intended to 

arrest, the arrest is valid). This assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER TWO

{¶35} Appellant’s second assignment of error alleges: 

{¶36} “The trial court erred in denying Defendant’s Motion to Suppress as the 

Officer had no probable cause to arrest the Defendant and subsequently charge him 
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under O.R.C. 2923.16(E)(1) as Defendant had fully complied with his duties in carrying 

a concealed weapon.” 

{¶37} Although no testimony was provided that he complied with his permit 

holder duties, appellant argues here that he stated multiple times that he had a 

concealed handgun license. He points out that when Officer 2 approached the vehicle 

from the back and saw the gun, that officer yelled that there was a gun, which caused 

a commotion. Appellant suggests that they could thus not hear him informing them 

that he had a gun and a license as he was required to do by law. He notes that Officer 

2 testified that appellant was “uttering something” but the officer could not hear what 

he was uttering. (Tr. 60-61). However, the defense did not elicit whether the utterings 

occurred while appellant was standing and refusing to comply with orders or while he 

was on the ground. In any event, there was no evidence of utterances while he was in 

the vehicle trying to shove a gun down his pants. 

{¶38} As the state responds, appellant’s compliance with his duties was not 

established at the suppression hearing. Appellant was charged with failing to promptly

inform officers who approached the stopped vehicle that he has a concealed handgun 

license and he has a loaded handgun in the vehicle. R.C. 2923.16(E)(1). Officer 1 

testified that he was speaking with the driver when the other officer yelled about a gun 

and that appellant kept “messing with” the gun in his waistband while the other officer 

ordered his hands off the weapon during which time appellant did not inform them that 

he had a weapon or a permit. (Tr. 16, 38). Officer 2 testified that he approached to 

see appellant trying to hide his gun down the front of his pants. When appellant 

noticed Officer 2, he did not say anything but pulled his shirt down and failed to 

immediately comply with orders to exit with his hands up and then lay down. In fact, 

according to Officer 2 and the captain, he exited with his hands on his waist. (Tr. 59-

60, 72). No officer heard him announcing that he was carrying a loaded gun and that 

he had a concealed handgun license.1

 

 1

We note that other divisions of (E) provide that the person with the permit and loaded gun in 

the vehicle: must keep his hands in plain sight any time after the officer begins approaching the 

stopped vehicle; cannot have contact with the loaded gun by touching it with hands or fingers any time 

after the officer begins approaching the car; and cannot knowingly disregard or fail to comply with any 
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{¶39} Regardless, as the state points out, the parties stipulated that the only 

issue before the court was reasonable, articulable suspicion to stop. Dec. 10, 2013 

J.E. The defense specifically agreed to this stipulation. (Tr. 6-7). The state also 

urges that this issue was not raised below. Appellant’s suppression motion mentioned 

that he had a permit so he was permitted to carry the gun and claimed that appellant 

notified the officer as required. Yet, this did not present a suppression issue as no 

evidence was discovered after the arrest that resulted in any offense. 

{¶40} That is, the gun was viewed as the officer approached the vehicle. 

Whether appellant complied with his duties as a concealed carry permit holder would 

not affect suppression here (as opposed to a case where, for instance, drugs are 

discovered on a person after they are arrested for carrying a concealed weapon). 

Rather, appellant’s compliance would have been an issue for trial on the offense 

charged. Therefore, this assignment of error is overruled. 

{¶41} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Donofrio, J., concurs. 

DeGenaro, P.J., concurs. 

 lawful order given while the vehicle is stopped, including, but not limited to, a specific order to the 

person to keep his hands in plain sight. See R.C. 2923.16(E)(3)-(5). Although charged only with (E)(1) 

for failing to advise about the existence of a loaded gun and a permit, there was probable cause to 

arrest him violating one or more of these sections as well.