[Cite as State v. Penn, 2011-Ohio-2918.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95563

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

LUCAS O. PENN

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-519314 

BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: June 16, 2011 
ATTORNEY FOR APPELLANT

Kelly A. Gallagher 

P.O. Box 306 

Avon Lake, Ohio 44012 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Maxwell M. Martin 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

FRANK D. CELEBREZZE, JR., J.: 

{¶ 1} Appellant, Lucas Penn, was arrested following a foot chase where 

he was seen by a Cleveland police officer discarding a firearm as he ran. 

Appellant was convicted of carrying a concealed weapon. He now appeals 

claiming the “trial court erred in denying [his] motion to suppress.” After a 

thorough review of the facts and law, we affirm. 

{¶ 2} Vice detectives of the Cleveland Police Department were 

conducting controlled drug buys in the area of Gooding Avenue in Cleveland. 

Detective Rodney McClendon testified at appellant’s suppression hearing that 

the vice unit was being assisted by patrol officer James Dunn. While the 

officers were there, they received a few broadcasts that several robberies had 
occurred in the area. The report contained the descriptions of a vehicle 

involved and two male individuals responsible. 

{¶ 3} Sometime after receiving the report, the officers observed a 

vehicle matching the description, a white Ford Escort with a dent in its right 

front side. The officers gave chase, but they eventually lost sight of the 

vehicle. After a brief search, the vehicle was discovered behind a home or 

apartment building by Officer Dunn. Det. McClendon testified that, by 

looking through the window, he observed bullets for a gun sitting on the seat 

of the vehicle. 

{¶ 4} Eventually, the owner of the vehicle was located, and she told the 

officers that her boyfriend had been driving it. She provided them with an 

address where the boyfriend could be located. The officers headed to this 

location, some seven blocks away. Once there, Det. McClendon was let into 

the home and talked to the residents, but did not find the two individuals. 

Det. McClendon testified that once he was outside and driving away, he 

observed a male, later identified as appellant, walking down the street who fit 

the description of one of the occupants of the car. He ordered the individual 

to stop, the individual ran, and the officers gave chase. 

{¶ 5} Officer Dunn had been waiting on the street some distance from 

the house while the detectives were inside and after they left. He observed 

appellant running and being chased by police officers. He then pursued 
appellant on foot. After Officer Dunn closed the gap to approximately ten 

feet, he observed appellant lift his shirt, retrieve a gun from his pocket or 

waistband with his left hand, and toss the gun into some bushes. A short 

time later, appellant was apprehended after Officer Dunn deployed his taser. 

{¶ 6} At trial, appellant was convicted of carrying a concealed weapon 

in violation of R.C. 2923.12(A)(2) and sentenced to a one-year term of 

incarceration. 

Law and Analysis

{¶ 7} “In a motion to suppress, the trial court assumes the role of trier 

of fact and is in the best position to resolve questions of fact and evaluate 

witness credibility. A reviewing court is bound to accept those findings of 

fact if supported by competent, credible evidence. However, without 

deference to the trial court’s conclusion, it must be determined independently 

whether, as a matter of law, the facts meet the appropriate legal standard.” 

(Internal citations omitted.) State v. Curry (1994), 95 Ohio App.3d 93, 96, 

641 N.E.2d 1172. 

{¶ 8} The Fourth Amendment to the United States Constitution 

prohibits warrantless searches and seizures, rendering them per se 

unreasonable unless an exception applies. Katz v. United States (1967), 389 

U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Common exceptions include 
consensual encounters with police officers and investigative or Terry stops. 

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

{¶ 9} Under Terry, a police officer may stop a person and investigate, 

even without probable cause to arrest, if he has sufficient evidence to 

reasonably conclude that criminal activity is afoot. The officer “must be able 

to point to specific and articulable facts which, taken together with rational 

inferences from those facts, reasonably warrant the intrusion.” Terry at 21. 

An investigatory stop “must be justified by some objective manifestation that 

the person stopped is, or is about to be, engaged in criminal activity.” United 

States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621. 

{¶ 10} “In determining the reasonableness of the officer’s belief, courts 

examine the totality of the circumstances, including the following factors: (1) 

whether the location of the contact is an area of high crime or high drug 

activity, (2) the suspect’s non-compliance with the officer’s orders, (3) the time 

of the occurrence, (4) the officer’s experience, (5) the lack of backup for the 

officer, (6) the contact’s location away from the police cruiser, (7) whether the 

suspect is fleeing the officer or the scene, (8) any furtive movements by the 

suspect, (9) the precautionary measures taken by the officer, and (10) the 

suspected offense.” (Internal citations omitted.) State v. Stiles, Ashtabula 

App. No. 2002-A-0078, 2003-Ohio-5535, ¶17. 
{¶ 11} The state argues that a stop did not take place until appellant 

submitted to the show of authority, and therefore appellant was not in 

custody when he discarded the weapon. See California v. Hodari D. (1991), 

499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690. However, the state did not 

make this argument before the trial court, and at least a few appellate courts 

in Ohio, including this one, have been reticent to address arguments by the 

state that were not raised before the trial court at the suppression hearing. 

See State v. Jobes, Montgomery App. No. 20210, 2004-Ohio-1167; State v. 

Massingill, Cuyahoga App. No. 92813, 2009-Ohio-6221. 

{¶ 12} Even though this court is charged with determining if the trial 

court applied the facts of the case to the appropriate legal standard, if the 

state does not argue an applicable legal standard below, we are not required 

to address it for the first time on appeal. Jobes at ¶24. In this case, we 

need not wade into an analysis of prejudice and plain error necessary to 

address the state’s new contention because it presented sufficient evidence to 

demonstrate that officers possessed a reasonable suspicion of criminal 

activity when Det. McClendon shouted at appellant to stop. 

{¶ 13} Appellant argues that Det. McClendon lacked probable cause to 

stop him at the time the detective instructed him to stop and he fled. Det. 

McClendon observed a vehicle drive by that matched the description of one 

used in a series of recent armed robberies. After pursuit of the vehicle, the 
officers were directed to a house where one of the suspects resided. 

Appellant matched the description the officers had heard over the radio in 

connection with the robberies. More importantly, Det. McClendon testified 

that appellant fit the description of one of the individuals he had seen in the 

vehicle as it drove by. Appellant was encountered a few houses down from 

where the officers had been directed by the owner of the vehicle. Based on 

all of these circumstances, Det. McClendon’s attempt to inquire of appellant 

his name and his business in the area to determine if he was one of the 

robbery suspects was supported by a reasonable suspicion of criminal activity. 

{¶ 14} Because the attempt to investigate appellant was lawful, the trial 

court properly overruled appellant’s motion to suppress. Appellant’s single 

assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 
FRANK D. CELEBREZZE, JR., JUDGE 

MARY EILEEN KILBANE, A.J., and 

SEAN C. GALLAGHER, J., CONCUR