State v. Starcher , 2014 Ohio 5223 ( 2014 )

[Cite as State v. Starcher, 2014-Ohio-5223.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 14 JE 17
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
BARRY STARCHER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from County Court
District III, Case No. 11CRB347.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Prosecuting Attorney
Attorney Jeffrey Bruzzese
Assistant Prosecuting Attorney
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Attorney Thomas Watkins
3393 Churchill Downs
Stow, Ohio 44224
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: November 10, 2014
[Cite as State v. Starcher, 2014-Ohio-5223.]
VUKOVICH, J.
{¶1} Defendant-appellant Barry Starcher appeals the decision of the Jefferson
County Court District III denying his motion to suppress. The issue in this case is
whether there was a reasonable articulable suspicion to stop Starcher and ask for
identification. For the reasons expressed below, given our deferential review of the
trial court's resolution of factual questions, the judgment of the trial court is hereby
affirmed.
Statement of the Case
{¶2} This is the second time this issue has been before this court. State v.
Starcher, 7th Dist. No. 13JE1, 2013-Ohio-5533 (Starcher I). In Starcher I, we did not
decide the issue because we found that the trial court applied the incorrect test. Id.
{¶3} In ruling on the suppression motion in the first instance, the trial court
found that the officer “relied upon sufficient facts, which gave rise to a reasonable
suspicion for him to make the initial investigative stop.” Id. at ¶ 14; 06/11/12 J.E. The
conclusion that the initial stop was an investigative stop, i.e. a Terry stop, was not
supported by the record. Starcher I at ¶ 18-20. Officer Kamerer’s stated reason for
stopping Starcher and his boyfriend James Coil was to see if they were okay. Id.
Officer Kamerer’s testimony did not suggest that he had a reasonable suspicion that
criminal activity was afoot. Id. Rather, his testimony clearly indicated that he was
engaged in the community caretaking function when he stopped Starcher and Coil. Id.
{¶4} That said, we explained that during this consensual encounter Officer
Kamerer was permitted to request identifying information. Id. We also acknowledged
that consensual encounters can legitimately turn into investigatory stops once a
reasonable articulable suspicion of criminal activity presents itself. Id. However, in
Starcher I we could not determine if the consensual encounter evolved into an
investigatory stop because to do so required this court to resolve factual questions and
evaluate the credibility of the witness’s testimony. Id. at ¶ 25. “[I]n deciding the case
in the manner that it did, the trial court did not consider the witnesses’ credibility in
determining if the officer overstepped his authority during the consensual encounter
and an illegal seizure occurred, or if the officer acted within his authority and the
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actions of Starcher and Coil changed the encounter from consensual to investigatory.”
Id. at ¶ 26. In rendering this holding, we acknowledged that the testimony at the
suppression hearing showed two different versions of what transpired. Id. at ¶ 3, 26.
Therefore, we remanded the matter to the trial court to determine credibility and to
apply the facts to the law to determine whether during the consensual encounter the
officer showed an exertion of authority that resulted in an illegal seizure, or if the
actions of Starcher and Coil changed the encounter from consensual to investigatory.
Id. at ¶ 27.
{¶5} Upon remand, the trial court ordered the parties to brief the matter. After
considering the briefs, the trial court once again denied the motion to suppress. It
reasoned:
The Court also holds that when applying the credible facts to the
law as stated above, Officer Kamerer’s initial interaction with defendants,
Barry Starcher, and James Coil began as a community caretaking
function and very quickly thereafter, based on the totality of
circumstances created a reasonable articulable suspicion which turned
the encounter from consensual to investigatory.
The Court further holds that the action of the defendant, Barry
Starcher during the encounter in question created a reasonable
articulable suspicion on the part of Officer Kamerer, which changed the
encounter from consensual to an investigatory stop and shortly
thereafter, gave rise to probable cause, which ultimately lead to the
detention and arrest of defendant, Barry Starcher on a charges [sic] of
obstructing official business, in violation of O.R.C. §2921.31, a
misdemeanor of the second (2nd) degree, and failure to disclose
personal information, in violation of O.R.C. §2921.29(A), a misdemeanor
of the fourth (4th) degree.
04/18/14 J.E.
{¶6} Starcher filed a timely appeal from that decision.
Statement of the Facts
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{¶7} As stated above, upon remand the trial court did not hold a second
suppression hearing. Instead, the trial court reviewed the parties’ arguments and the
transcript from the original suppression hearing. Therefore, the facts as set forth in
Starcher I, which were derived from the suppression transcript, are the same facts that
are applicable to this appeal. We set forth the facts in Starcher I as follows. Starcher I
at ¶ 2-10.
{¶8} On December 25, 2011 at approximately 10 p.m. Starcher and his
boyfriend, James Coil, were sitting on a guardrail located on County Road 7E,
underneath the overpass of State Route 7, in Brilliant, Jefferson County, Ohio. Wells
Township Police Department Officer Jeffrey Kamerer was called out for a downed tree.
While en route to that destination he saw appellant and Coil. He stopped and asked
them if everything was okay. The lights and siren on the cruiser were not activated. It
was dark outside and cold and this was not a usual location where he saw people
loitering.
{¶9} At this point, Officer Kamerer and Starcher's version of what transpired
diverges. Officer Kamerer claims that after he rolled down the window and asked
Starcher and Coil if they were alright, they responded in an aggressive manner and
started cursing at him. Tr. 76. He then put his car in park, radioed the dispatch center
for the sole purpose of letting them know that he “was out with two males”. Tr. 78;
Exhibit C (Investigator Notes). He then exited the cruiser and asked them what they
were doing. Tr. 78; Exhibit C. Coil then began walking away. The officer called for
Coil to come back, which he did. Tr. 78. The officer then asked them “What's going
on?” Tr. 78. According to the officer, at that point, Coil shoved him. Tr. 78. The
officer then advised dispatch that he needed back up. Exhibit C. He testified that he
called for back-up because of the way they were acting towards him. Tr. 80.
{¶10} His testimony indicates that he asked the two men for their identification
after they were yelling at him, but it does not specifically indicate whether he asked for
their identification before or after he was shoved. In the Investigator Notes, the officer
stated:
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One male who was later identified as, Jimmy Coil pushed me and
replied “get the fuck away from us”. I advised dispatch that I needed
another unit for assistance. I was trying to ask both males for
identification and they still refused and became very combative towards
me.
Exhibit C.
{¶11} The officer also testified:
Q. And—and at what—at some point do you ask the men to
identify themselves?
A. Yes.
Q. Where on the timeline did—did that request for identification
come?
A. When—when did I ask?
Q. Yeah. Is that after they started yelling?
A. Yes.
Tr. 81.
{¶12} In response to being asked for their identification, Coil threw a
prescription pill bottle at the officer. Tr. 81. Officer Kamerer claimed that both men
were screaming at him that they were not going to give their information and he was
being shoved and pushed. Tr. 81. It was at that point that he advised them they were
under arrest. Tr. 81.
{¶13} It is noted that Officer Kamerer did not testify that Starcher pushed him,
rather, he claimed that Starcher was screaming and cursing. When asked how
Starcher reacted to being advised he was under arrest the officer stated, “Screaming
at me, cussing at me. He was trying to calm Mr. Coil down and he would interfere with
me and Mr. Coil, scream at me.” Tr. 82.
{¶14} According to the officer, Coil's reaction to being advised that he was
under arrest was to partially walk and partially run away from the officer. Tr. 82. The
officer, however, eventually caught him. Tr. 82. Coil was then maced, taken to the
ground and handcuffed. During this time, Starcher was screaming, slapping and
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tugging on Officer Kamerer's shirt and interfering with the arrest of Coil. Tr. 83–84. At
some point, Officer Kamerer maced Starcher, took him to the ground, and put a knee
in his back. He was not handcuffed because Officer Kamerer did not have a second
set of handcuffs.
{¶15} Starcher gave a video statement to the police the day after this event
occurred. The video statement was played during the suppression hearing. In that
statement, Starcher explained that he and Coil had walked to a friend's house and
were on their way back home when they stopped to rest on the guardrail. Tr. 19–21.
Officer Kamerer then pulled up and asked if anything was wrong. Tr. 21. They
responded by indicating that they were just sitting there and were on their way home.
Tr. 22. Starcher stated that Officer Kamerer then asked for their names. Instead of
giving it to the officer, Starcher told the officer, “I'm not sure I should give you that.
Why do you need that?” Tr. 22. According to Starcher, Coil gave the officer his name,
social security number and handed him a pill bottle as proof of the information
because he did not have any other ID on him. Tr. 20. Coil then started walking away.
Tr. 22. Starcher further explained:
That's how that conversation started. Jimmy [Coil]—I guess
Jimmy was real irritated with Officer Kamerer. So—with his questioning
because just as soon as—as soon as I asked him why he needed to
know Jimmy got up and started to walk away and then Officer Kamerer
flew the door—the door flew open, he flew up out of the car and said
“You better do what the fuck I tell you when I tell you” and that is what
started it.
Tr. 27.
{¶16} Starcher stated that Officer Kamerer had his flashlight in his hand and
was rearing it back like he was going to hit one of them with it. Tr. 29. Starcher
indicated that he was pleading with Officer Kamerer to not hurt Coil and to just let him
go since he already had given the officer his name. Tr. 30. Starcher stated that during
this encounter Coil was screaming about police brutality even though the officer had
not put his hands on either of them. Tr. 34. Starcher claimed that he was trying to
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defuse the situation by telling Coil not to go and that they should “figure this out” and
even put his hand over Coil's mouth. Tr. 29–30, 35. However, Coil continued to walk
away and Officer Kamerer started to pursue Coil. Tr. 35. This resulted in an
altercation between the officer and Coil. According to Starcher, Coil was then taken to
the ground, handcuffed and mace is sprayed into his eyes. Tr. 40. Starcher watched
this occur while standing at the side of the road. Officer Kamerer then approached
him, sprayed mace in his eyes and took him to the ground. Tr. 42. He claimed he did
not reach for or touch Officer Kamerer, but rather was yelling at him to not hurt Coil.
Tr. 42–44. Starcher indicated that Officer Kamerer never told either of them that they
were under arrest or that he needed to ask them questions. Tr. 38.
Standard of Review
{¶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. When considering a motion to suppress, the trial court assumes the role
of trier of fact and is therefore in the best position 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). Thus, a trial court's factual findings are afforded great deference
and an appellate court will accept them if they are supported by competent, credible
evidence. State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982). The trial court's
legal conclusions, however, are reviewed de novo. State v. Burnside, 100 Ohio St. 3d
152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8.
Assignment of Error
{¶18} “Whether if the Appellant-Plaintiff’s constitutional rights were violated
because he was stopped without probable cause or a reasonable suspicion that he
had committed a crime to a level allowing for further interrogation of defendants
name.? [sic]”
{¶19} Starcher was charged with R.C. 2921.29(A)(1). That section provides
that “no person who is in a public place shall refuse to disclose the person's name,
address, or date of birth, when requested by a law enforcement officer who reasonably
suspects * * * the person is committing, has committed, or is about to commit a
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criminal offense.” This statute appears to be a codification of Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868 (1968). In Terry, it was explained that an investigatory stop (also
known as a Terry stop) is proper when the facts demonstrate that the officer
possessed a reasonable articulable suspicion which, in conjunction with rational
inferences, warranted a belief that criminal behavior is occurring or is imminent. Terry
v. Ohio, 392 U.S. 1.
{¶20} Therefore, if the stop was a Terry stop, then Starcher was required to
comply with Officer Kamerer’s order to provide identification. Failure to do so would
be a violation of R.C. 2921.29(A)(1).
{¶21} As aforementioned, in Starcher I we found that the initial encounter
between Officer Kamerer, Starcher and Coil was not a Terry stop, but rather was a
consensual encounter. Starcher I, 2013-Ohio-5533 at ¶ 18-20. It was a consensual
encounter because Officer Kamerer was engaged in a community caretaking function
when he stopped and asked the men if everything was okay. Id. at ¶ 18-20. Nothing
in the record suggested that at that point in time Officer Kamerer had a reasonable
articulable suspicion that criminal activity was afoot. Id.
{¶22} In finding as such, we acknowledged that during a consensual encounter
an officer does not violate a person’s Fourth Amendment rights by merely stopping the
person and asking if they are alright. Id. at ¶ 22. Furthermore, the person’s Fourth
Amendment rights are not violated when during a consensual encounter the officer
asks the person for identifying information. Id., citing United States v. Mendenhall, 446
U.S. 544, 555-556, 100 S. Ct. 1870 (1980). However, the individual does remain free
to disregard the question and walk away. Starcher I at ¶ 23, citing Mendenhall and
Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382 (1991) (police encounter
remains consensual even if police officer asks questions, asks to see the person
identification or asks to search the person’s belongings, provided “the police do not
convey a message that compliance with their requests is required.”).
{¶23} That said, we acknowledged that consensual encounters can legitimately
turn into investigatory stops once a reasonable articulable suspicion of criminal activity
presents itself. Starcher I at ¶ 24.
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{¶24} In the instant matter, the trial court found that the consensual encounter
turned into an investigatory stop based on Starcher and Coil’s actions toward Officer
Kamerer. Thus, the trial court found that there was a reasonable articulable suspicion
of criminal activity, that there was no Fourth Amendment violation, that Starcher was
required to comply with the order to provide identification and that there was no basis
for granting Starcher’s motion to suppress.
{¶25} In finding as such, the trial court found Officer Kamerer’s testimony as to
what transpired on the evening of December 25, 2011, to be credible. 04/18/14 J.E.
The trial court found that upon being asked if everything was okay, Starcher and Coil
immediately responded in an aggressive manner; they yelled and cussed at the officer.
04/18/14 J.E. The trial court found Officer Kamerer’s testimony that he asked for
identification after he had been yelled at, pushed and after the two men refused to
calm down to be believable. The court stated that while the initial interaction with
Starcher and Coil began as a community caretaking function it quickly escalated into
an investigatory stop based on the action of Starcher and Coil.
{¶26} A review of Officer Kamerer’s testimony does support the conclusion that
Starcher and Coil immediately responded to Officer Kamerer’s question as to whether
there was anything wrong in an aggressive manner; they were screaming and cursing
at him. Tr. 78-81. Although Officer Kamerer’s testimony does not clearly indicate
whether he was pushed before or after he asked the men for their identification, Officer
Kamerer’s testimony clearly indicates that he was pushed. Tr. 81; Exhibit C. His
testimony does show that things escalated very quickly. Thus, the trial court’s findings
of fact are supported by the record.
{¶27} Furthermore, these findings of fact would most likely support the
conclusion that the consensual encounter turned into an investigatory stop, i.e. there
was a reasonable articulable suspicion of criminal activity. It has been explained that
a reasonable articulable suspicion entails some minimal level of objective justification,
“that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’
but less than the level of suspicion required for probable cause.” State v. Jones, 70
Ohio App. 3d 554, 556–57, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27; State v.
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Carter, 69 Ohio St. 3d 57, 66, 630 N.E.2d 355 (1994) (concluding a police “officer's
inarticulate hunch will not provide a sufficient basis for an investigative stop”). See
also State v. Carlson, 102 Ohio App. 3d 585, 590, 657 N.E.2d 591 (9th Dist.1995).
Furthermore, the propriety of an investigative stop must be viewed in light of the
totality of the circumstances. State v. Bobo, 37 Ohio St. 3d 177, 524 N.E.2d 489
(1988), ¶ 2 of the syllabus. Courts generally consider factors such as the high-crime
nature of the area, the time of day, the experience of the officers involved, whether the
officer was away from his cruiser, and suspicious activities by the defendant, such as
furtive gestures. Id. at 179-180.
{¶28} In Starcher I we explained that encounters that involve “the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled” are all examples of
circumstance where consensual encounters may become seizures. Starcher I, 2013-
Ohio-5533 at ¶ 23, citing Mendenhall, 446 U.S. at 554-555. Portions of that reasoning
are applicable in determining whether a citizen’s action changed the consensual
encounter into an investigatory stop. Or in other words, those factors are applicable in
viewing the totality of the circumstances and determining whether the consensual
encounter changed to an investigatory stop because a reasonable articulable
suspicion of criminal activity became apparent during the consensual interaction.
{¶29} Here, Officer Kamerer was out numbered two to one and the encounter
occurred at 10 p.m. on December 25. Officer Kamerer indicated that Starcher and
Coil responded to his initial contact of asking if they were okay by cursing and yelling
at the officer in an aggressive manner. Furthermore, at some point Officer Kamerer
was pushed; there was physical interaction that, according to Officer Kamerer, was
initiated by Coil, Starcher’s companion. It does not matter if this physical contact
occurred before or after the request for identification because as explained above a
request for identification during a consensual encounter does not violate a citizen’s
Fourth Amendment rights since the citizen is free to disregard the question and walk
away. However, if the citizen responds to the request by pushing the officer and/or
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acting in an aggressive manner, that action raises a reasonable articulable suspicion
of criminal activity and changes the stop from a consensual one to an investigatory
stop. Therefore, the acts as described by Officer Kamerer, considered in their totality,
clearly changed the encounter from consensual to investigatory. Starcher and Coil’s
acts, at the very least, raised a reasonable articulable suspicion of criminal activity.
Consequently, Starcher was required to comply with the request for identification.
{¶30} That said, it is acknowledged that Officer Kamerer’s version of what
transpired is vastly different from Starcher’s version. From a cold record, neither
version is incredible. However, the resolution of factual question and witness
credibility are best left to the trier of fact. Mills, 62 Ohio St. 3d at 366. Where there is
evidence to support suppression and evidence to deny suppression, an appellate court
will overwhelmingly affirm a trial court's decision due to the great deference that it must
be given in matters of credibility and resolution of factual questions. State v. Lynn, 7th
Dist. No. 11 BE 18, 2011-Ohio-6404, ¶ 44.
{¶31} Therefore, given our standard of review and the fact that the issue before
us involves a factual determination, the judgment of the trial court to deny the motion
to suppress is hereby affirmed. The sole assignment of error is deemed meritless.
Waite, J., concurs.
DeGenaro, P.J., concurs.