State v. Calloway

[Cite as State v. Calloway, 2026-Ohio-4375.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, : Plaintiff-Appellee, : No. 116196 v. : DEMETRIUS CALLOWAY, : Defendant-Appellant. : JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 5, 2026 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-25-702380-A Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Renee Boyle, and Matthew W. Moretto, Assistant Prosecuting Attorneys, for appellee. Scott J. Friedman, for appellant. SEAN C. GALLAGHER, J.: Demetrius Calloway appeals the trial court’s decision denying his motion to suppress the discovery of a firearm, leading to his convictions for having weapons while under disability, carrying a concealed weapon, and resisting arrest, all of which stem from his no-contest plea. The first two offenses include the forfeiture of the weapon. Calloway was sentenced to 18 months of community control and in this appeal challenges the suppression decision and the inclusion of drug testing as a condition of his community control. For the following reasons, we affirm. Agents of the Ohio Investigative Unit conducted a “violent crime detail” at a gas station located in Cleveland, Ohio, on the day of Calloway’s arrest. One of the law enforcement officers spotted Calloway entering the gas station with a black rubber “handle” hanging from his pocket. The store prominently displayed a sign prohibiting the carrying of firearms into the building. In the officer’s experience, being trained for firearm detection and having been involved in more than 100 arrests for weapons violations, the handle was consistent with the handgrip of a handgun. The officers did not immediately conduct an investigative stop or detention while Calloway approached his car because of the potential danger to the public. Instead, based on the criminal nature of the trespass witnessed by the officers, Calloway was allowed to enter his vehicle and officers then initiated a “stop.” As officers approached, someone shouted that Calloway was reaching under his seat. Calloway voluntarily confessed to the officers that he had a weapon on him. The only weapon discovered was a revolver, with a black rubber handgrip consistent with the officer’s initial observation, which was located under Calloway’s seat. Calloway filed a motion to suppress the discovery of the firearm, claiming that “the traffic stop and subsequent search of the vehicle violated his Fourth Amendment rights.” According to Calloway, distance from where the officers observed the offense precluded them from accurately identifying the firearm in his pocket, and as a result, there was no probable cause to detain him and search the vehicle. The trial court rejected that argument, leading Calloway to plead no contest to the indictment. He was found guilty, and an 18-month term of community control was imposed, which also included a requirement for drug testing. In this appeal, Calloway advances two assignments of error, each to be addressed in turn. In the first assignment of error, Calloway claims the trial court erred in finding the officers credible in their observation of the firearm because of the distance between the officers and Calloway, and in addition, the observation of a nondescript “bulge” alone is insufficient to establish probable cause. It must be acknowledged, however, that Calloway does not discuss his voluntary confession to the approaching officers that he possessed a firearm. No search was necessary to discover the firearm, initially observed in open view. State v. Harris, 98 Ohio App.3d 543, 547 (8th Dist. 1994) (“As a general rule, one does not have a reasonable expectation of privacy in common or public areas . . . .”). The discovery of the firearm occurred before the investigatory stop and was secured through Calloway’s admission to the officers. That alone could end this inquiry, if the issue were raised for our review.  Notwithstanding, as the parties have presented the argument, “[t]he burden of initially establishing whether a search or seizure was authorized by a warrant is on the party challenging the legality of the search or seizure.” Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988). As the Ohio Supreme Court held, in order “to suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.” Id. at 219. “By requiring the defendant to state with particularity the legal and factual issues to be resolved, the prosecutor and court are placed on notice of those issues to be heard and decided by the court and, by omission, those issues which are otherwise being waived.” State v. Shindler, 70 Ohio St.3d 54, 58 (1994). It is only “[o]nce a defendant has demonstrated a warrantless search or seizure and adequately clarified . . . the ground upon which he challenges its legality,” does the burden shift to the State. Wallace at paragraph two of the syllabus. “Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.” Id. at 219, citing State v. Carter, 707 P.2d 656 (Utah 1985). Moreover, “the evaluation of the evidence and the credibility of witnesses at a suppression hearing are issues for the trial court as factfinder.” State v. Harris, 98 Ohio App.3d 543, 546 (8th Dist. 1994), citing State v. Mills, 62 Ohio St.3d 357, 366 (1992); State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “An appellate court reviewing a motion to suppress accepts the trial court’s findings of fact if they are supported by competent, credible evidence and reviews its legal conclusions de novo.” State v. Diaw, 2025-Ohio-2323, ¶ 8, citing State v. Burnside, 2003-Ohio-5372, ¶ 8. In this case, the undisputed evidence presented at the suppression hearing demonstrated that Calloway entered a store with what officers accurately identified as a handgun, which was visible despite the distance. The officers’ ability to perceive the handgun and the accuracy with which it was identified is solely a credibility determination left to the sound discretion of the finder of fact. See Harris at 546. Importantly, Calloway does not challenge the officers’ conclusion that he committed the criminal trespass, only their ability to accurately perceive the exposed firearm from the observation distance. Tellingly, instead of acknowledging the constraints on appellate review of credibility determinations, Calloway relies on State v. Phillips, 2003-Ohio- 5742, ¶ 32 (2d Dist.), for the proposition that “[b]ulging pockets don’t connote crime or weapons when they have no specific nexus to criminal activity.” We do not necessarily disagree with that proposition in general terms. However, it was not simply the observation of a nondescript item bulging from a pocket that officers acted on in this case. The undisputed testimony established that a visible portion of the firearm, consistent with the only firearm recovered after Calloway’s detention, was the entire basis of the encounter. As Calloway concedes, officers generally have a “reasonable and articulable suspicion” to stop a defendant after “observing the handle of a gun protruding” from a pocket or waistband. State v. Taylor, 2009- Ohio-5822, ¶ 7 (8th Dist.). This case is no different. The sole question raised by Calloway was the officers’ ability to accurately perceive the firearm from a distance to justify the initial stop and detention. In light of the officer’s testimony, tacitly deemed credible by the trial court based on the trial court’s decision denying the motion to suppress, no constitutional violation occurred. The officers’ observation of the criminal trespass provided probable cause for the initial detention, after which Calloway confessed to carrying the concealed weapon, giving the officers probable cause to search under the seat for the weapon. The first assignment of error is overruled. In the second assignment of error, Calloway claims the “trial court erred when it required [him] to submit to random drug tests as a condition of community control, because [his] conviction had nothing to do with drugs, and there was no evidence of any substance use issues.” The imposition of community-control sanctions is reviewed under an abuse-of-discretion standard, whether that sentence is imposed for a felony or misdemeanor offense. State v. Ballish, 2026-Ohio-503, ¶ 10 (applying Talty to misdemeanor sentencing cases), citing State v. Talty, 2004-Ohio-4888, ¶ 10 (concluding that the abuse-of-discretion standard applies to sentences imposed through R.C. 2929.15); but see R.C. 2953.08(G) (establishing that appellate review of felony sentences is not for an abuse of discretion). An abuse of discretion occurs when a court exercises “its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35; see also State v. King, 2026-Ohio-3225, ¶ 78 (8th Dist.) (providing a historical review of community-control-sanction review). Calloway’s argument relies on cases stating that “[t]his court has routinely reversed the imposition of alcohol-related community-control sanctions where there is no “‘nexus between an offender's crime and drug or alcohol abuse[.]’” Rocky River v. Alaref, 2023-Ohio-924, ¶ 17 (8th Dist.), citing State v. Brown, 2022- Ohio-3233, ¶ 12 (8th Dist.), and State v. Mahon, 2018-Ohio-295, ¶ 9 (8th Dist.); see also Strongsville v. Feliciano, 2011-Ohio-5394 (8th Dist.); State v. Moore, 2023- Ohio-1819, ¶ 4 (8th Dist.). According to Calloway, because his crime did not involve drugs or alcohol, no monitoring could be imposed as a condition of the community- control sanction. Although those cases support Calloway’s argument, the law cited is dated. Those cases generally relied on State v. Jones, 49 Ohio St.3d 51 (1990), which established a three-part test to determine whether the condition of probation “(1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.” Id. at 53. In Ballish, however, the Ohio Supreme Court limited the Jones test in certain cases, concluding that because “sentencing is a function of statute and the General Assembly has enumerated conditions that a sentencing court may impose, [the court] decline[d] to apply the Jones test to conditions that the legislature has expressly authorized.” As a result, “when a condition of probation has been expressly authorized by statute, [appellate courts] review a sentencing court’s imposition of such conditions only under an abuse-of- discretion standard” and not under the Jones test. Ballish at ¶ 24. Our inquiry, in this case, is limited to determining whether the drug-testing condition is authorized by statute, and if so, the Jones test relied on by Calloway is inapplicable. Under R.C. 2929.17, “the court imposing a sentence for a felony upon an offender who is not required to serve a mandatory prison term may impose any nonresidential sanction or combination of nonresidential sanctions authorized under this section.” A nonresidential sanction expressly includes “[a] term of drug and alcohol use monitoring, including random drug testing.” Thus, a trial court is statutorily authorized to impose drug and alcohol restrictions as nonresidential sanctions for felony offenses. Accordingly, “‘a court will not be found to have abused its discretion in fashioning a community-control sanction as long as the condition is reasonably related to’ the goals of probation.” Ballish, 2026-Ohio-503, at ¶ 10, quoting State v. Chapman, 2020-Ohio-6730, ¶ 8. Calloway has not presented any arguments for review related to that standard, nor has he discussed the limitations to the Jones test established in Ballish. In light of the authority and argument presented by Calloway, the second assignment of error is overruled. The convictions are 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. ______________________ SEAN C. GALLAGHER, JUDGE EMANUELLA D. GROVES, P.J., and DEENA R. CALABRESE, J., CONCUR