State v. Massingill
2021 – Ohio – 2674
Eighth District Appellate Court
Cuyahoga County, Ohio
August 5, 2021
On Friday September 20, 2019, Cleveland Police Officers Allen Gera and Nicole Corea were driving in the vicinity of East 79th Street and Lockyear Avenue when they heard multiple gunshots. The officers observed a man on the sidewalk walking westbound down Lockyear Avenue.
Cleveland Police Officers Allen Gera and Nicole Corea first observed Mr. Massingill in the area of East 79th Street and Lockyear Avenue. What would transpire in the next few moments would motivate the Eighth District Appellate Court to add an element to the Ohio CCW law.
He would later be identified as Mr. Jamille Massingill, had “what appeared to be a firearm in his right hand.” The officers saw Mr. Massingill tuck the weapon into the lower back portion of his pants and walk behind a house. Officer Gera testified that when they first observed Mr. Massingill they were at a distance from him spanning from the witness stand to the wall across the hall outside the courtroom.
Mr. Massingill walked westbound or in the direction of this photo when Officers Allen Gera and Nicole Corea observed him carrying a handgun, conceal it in his waistband and then ditch it behind a house.
The officers exited their cruiser and Mr. Massingill quickly reappeared from the back of the house. The officers drew their weapons and patted down Mr. Massingill. He immediately took the officers to the backyard where the officers found a Glock 9 mm handgun on the ground. The magazine had been removed from the weapon and a single bullet was next to the handgun. According to Officer Gera, the handgun was “clear,” which meant the magazine had been released from the firearm and the slide had been racked to remove the round; there were no bullets in the firearm when the officers found it.
Mr. Russell Sacket, a forensic scientist for the Cuyahoga County Regional Forensic Science Laboratory, confirmed that the firearm was operable. Mr. Massingill testified that he went to a friend’s house after work on the day in question. He consumed eight beers over the course of the evening and admitted he was “drunk” when he began to walk home. On his walk home, a man he knew as “Dan” approached him and told him to “lay it all down,” that Mr. Massingill testified, meant Dan was attempting to rob him. According to Mr. Massingill, Dan raised a handgun to Mr. Massingill’s head and Mr. Massingill wrestled the handgun away from Dan. While disarming Dan, the firearm discharged. Mr. Massingill was able to wrestle the weapon away from Dan, who then ran away. According to Mr. Massingill, he went behind a house, took the magazine out of the handgun, removed the bullet from the magazine, placed the firearm on the ground, and walked back to the front of the house, where he encountered police.
After he was patted down, Mr. Massingill immediately led the officers to where he had placed the weapon. Mr. Massingill testified that he went to the back of the house and unloaded the firearm so “if someone found it, a kid or child or someone found it, that they would not be able to use it to harm theirself. [sic]” He further testified that he did not want to approach police with the weapon in his hand: “I’m a Black male. Neighborhood I live in is dangerous. Officer of law see someone with a weapon, first thing they might do is shoot. And it’s a lot of innocent people that’s have been shot by officers and killed for no reason, and I did not want to be one of those persons.” Mr. Massingill admitted he had a prior criminal record. The jury convicted Mr. Massingill of Carrying a Concealed Weapon and Tampering with Evidence and he was sentenced him to two years in prison.
Ohio is an open carry state. Thus, in basic terms, in Ohio, it is generally legal to walk down the street and openly carry a handgun, but it is not legal for a person to walk down the street with a concealed handgun, unless one has a permit to do so. At issue in this case was whether Mr. Massingill was carrying a concealed weapon. The state posits that the handgun was concealed because Mr. Massingill put the handgun in his waistband and only the butt of the handgun was visible. Mr. Massingill argues that the handgun, or part of handgun, was visible to the police before and after he put it in his waistband.
This court has previously held that “[a] 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 ─ absolute invisibility is not required.” State v. Carroll, 8th Dist. Cuyahoga N0. 62747, 1993 Ohio App. LEXIS 2934, 6 (June 10, 1993), citing State v. Pettit, 20 Ohio App.2d 170, 174, 252 N.E.2d 325 (4th Dist.1969).
The state cited numerous cases to support its theory that Mr. Massingill was carrying a concealed weapon; each case the states cites is distinguishable from this case. In Carroll, the police drove up to the appellant and surrounded him. As one officer approached the appellant, the officer observed the back of a gun in the appellant’s coat pocket, specifically testifying that he saw “the back strap or the back part of the handle” of the gun. Id. This court upheld the appellant’s conviction for carrying a concealed weapon finding that “[w]hen ‘only part of the butt of the gun [is] in plain view’ a jury may reasonably conclude it is concealed.” Id., citing State v. Almalik, 41 Ohio App.3d 101, 105, 534 N.E.2d 898 (8th Dist.1987).
In State v. Gilmore, 8th Dist. Cuyahoga No. 59299, 1991 Ohio App. LEXIS 5372, 7 (Nov. 7, 1991), the police found a handgun in appellant’s waistband after patting him down. This court held that the evidence in the case indicated that the weapon could be considered “partially concealed” because it was “shoved into” defendant’s waistband and whether it was carried so that ordinary observation would give notice of its presence was a question of fact to be resolved by the trier of fact; therefore, the appellant’s conviction was not against the manifest weight of the evidence. Id.
We note that the parties’ main focus is on the period of time after Mr. Massingill placed the handgun in the rear of his pants with part of the butt of the gun visible. If the police had approached Mr. Massingill and solely observed him placing the handgun in the rear of his pants, perhaps our analysis would be different. But here, the police approached Mr. Massingill and observed him from their cruiser, at night and from a great distance, walking and openly carrying a handgun in his right hand. What he did with the handgun after the officers observed him openly carrying it in his hand is ancillary to our analysis of this assignment of error.
Even though Mr. Massingill had a prior criminal record, which he admitted to during trial, the state did not charge Mr. Massingill with having weapons while under disability, nor did the state present any evidence demonstrating that Mr. Massingill was under any type of disability or incapacitation that would prevent him from legally possessing a firearm or incapacitation that would prevent him from legally possessing a firearm in accordance with Ohio’s status as an open carry state.
The court concluded “In light of the above, there was insufficient evidence supporting the essential element of concealment pursuant to R.C. 2923.12. Mr. Massingill’s conviction for carrying a concealed weapon is hereby vacated.”.
Information for this article was obtained from State v. Massingill, 2021 – Ohio – 2674. This case was decided by the Eighth District Appellate Court and is only binding in Cuyahoga County, Ohio.
- In Ohio, Carrying a Concealed Weapon charge has many nuances that the officers had to distinguish in the moment while on a dark street in a high crime area on Locklear Avenue in Cleveland, Ohio. In this case the Eighth District Appellate Court determined that because Mr. Massingill was first observed carrying the handgun it could not be subsequently concealed. The court specifically held “But here, the police approached Mr. Massingill and observed him from their cruiser, at night and from a great distance, walking and openly carrying a handgun in his right hand. What he did with the handgun after the officers observed him openly carrying it in his hand is ancillary to our analysis of this assignment of error.”.
- The Eighth District cites State v. Carroll, 8th Dist. Cuyahoga N0. 62747, 1993 Ohio App. LEXIS 2934, 6 (June 10, 1993), and others in the analysis of this case that establishes a partially concealed handgun can be violative of O.R.C. §2923.12 (A)(2) “[N]o person shall knowingly carry or have, concealed on the person’s person or concealed ready at hand, any of the following: (2) A handgun other than a dangerous ordnance.”. The Eighth District has now added the additional factor of sequencing. If the suspect is first observed holding the firearm and THEN concealing it, then he is not guilty of CCW. The court does leave open the opposite sequence of removing the concealed firearm and then holding it.
- The court also overturned Mr. Massingill’s conviction for Tampering with Evidence. The court evaluated his conviction of Tampering with Evidence “Massingill testified that he went to the back of the house and unloaded the weapon so “if someone found it, a kid or child or someone found it, that they would not be able to use it to harm theirself [sic].” Consequently, the court held “Based on the unique facts and circumstances of this case, Massingill’s actions, coupled with insufficient evidence that he was carrying a concealed weapon, lead us to conclude that there is likewise insufficient evidence that he was attempting to tamper with evidence.”.
- The officers in this case could have charged Mr. Massingill with O.R.C. §2923.15 (A) Using Weapons While Intoxicated and that may have led to his conviction. However, the officers only heard a gunshot and perhaps Mr. Massingill would have opined that Dan the Robber pulled the trigger.
- Mr. Massingill should be commended for having the physical skills to disarm Dan the Robber of a 9mm handgun after admitting he consumed eight beers and was drunk. Unfortunately, Dan the Robber still has not been located.
Does your agency train on Carrying a Concealed Weapon?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!