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State v. Lewis9/5/1990
LYNCH, Judge.
Appellant, James C. Lewis, appealed his conviction by a jury for carrying a concealed weapon, in violation of R.C. 2923.12.
On April 23, 1988, appellant was driving from Rome, Ohio, where he had been plowing his godfather's fields all day, to the Mentor Mall to pick up his two daughters. En route, he stopped at Chardon Beverage and purchased a bottle of Harvey's Bristol Cream. Appellant proceeded from Chardon Beverage and turned left onto Center Street. Chardon policeman, Scott A. Hildenbrand, and dispatcher, Rebecca Warner, were on patrol in the area when they saw appellant's vehicle in front of them. Officer Hildenbrand called in a license check on appellant's vehicle at some point prior to stopping him. The license check revealed that the appellant owned the vehicle, appellant's address, the make and year of the vehicle, and that the vehicle was not stolen.
While closely following the appellant who was travelling westbound on Center Street, Officer Hildenbrand observed the appellant go off the road near Chardon Welding Parking lot and weave within his own lane. Officer Hildenbrand defined "off the road" as "the right two wheels travel to the right of the center line ." Officer Hildenbrand followed the appellant for nearly a mile before turning on his lights to stop appellant near the State Highway Patrol post.
Appellant had his license ready when the officer approached the vehicle. Detecting an aroma of an alcoholic beverage and noticing that appellant's eyes were bloodshot, the officer asked the appellant if he had been drinking. The appellant admitted to drinking two beers.
Contemporaneous to the stop, while appellant was still sitting in his vehicle, two state trooper vehicles pulled up; a few minutes later, another Chardon police car and a tow truck arrived.
Officer Hildenbrand asked the appellant to exit the vehicle for some field sobriety tests. Appellant exited and went behind his vehicle and stood in front of the officer's patrol car where he did the balance tests, the thirty second one-legged stand and the heel-to-toe. These tests were inconclusive; thus, officer Hildenbrand asked Trooper Rance to give the appellant the gaze nystagmus test. This test was also inconclusive because the appellant did not follow the instructions. Nevertheless, the officer decided to arrest appellant for DUI.
Trooper Lloyd and Chardon Patrolman Paranish searched appellant's vehicle. Trooper Lloyd searched the inner compartment and found a firearm in the glove compartment. Although Officer Hildenbrand was having trouble remembering at the suppression hearing whether the search was conducted before or after the arrest, he did indicate on cross-examination at the trial of this case that Trooper Lloyd conducted a "weapons search" while he was administering the balancing tests to the appellant.
Dispatcher Warner testified at the suppression hearing that Trooper Lloyd and Patrolman Paranish checked out the vehicle while Officer Hildenbrand was giving appellant the tests. At the time that Warner saw Trooper Lloyd hold up the gun, she believed the appellant had not yet been put in the patrol car but might have already been handcuffed.
The appellant testified that, while Trooper Rance was administering the sobriety tests to him prior to arrest, the other troopers were going through the car searching the door, under the seats, the glove compartment, and the trunk.
At the trial of this case, Dispatcher Warner testified that she observed appellant's vehicle being searched when Trooper Rance was performing the gaze nystagmus test. Trooper Lloyd testified that he
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