State v. Ware , 2011 Ohio 5665 ( 2011 )

[Cite as State v. Ware, 2011-Ohio-5665.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96327
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERMAINE WARE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543201
BEFORE: Celebrezze, P.J., Sweeney, J., and Keough, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT
Marcus S. Sidoti
Lindner, Sidoti, Jordan, L.L.P.
2077 East 4th Street
2nd Floor
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mollie Ann Murphy
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, Germaine Ware, appeals the judgment of the trial court denying
his motion to suppress and his conviction for failure to comply, in violation of R.C.
2921.331(B). After careful review of the record and relevant case law, we affirm.
{¶ 2} Appellant was indicted by the Cuyahoga Grand Jury in Case No.
CR-538697 on one count of felonious assault, in violation of R.C. 2903.11(A)(2).
Subsequently, appellant was reindicted in Case No. CR-543201 on one count of felonious
assault, in violation of R.C. 2903.11(A)(2), and one count of failure to comply, in
violation of R.C. 2921.331(B).
{¶ 3} On December 10, 2010, appellant filed a motion to suppress evidence and a
motion to dismiss the failure to comply charge. On December 14, 2010, the trial court
held a pretrial hearing to review appellant’s motions. At the conclusion of the hearing,
the trial court denied appellant’s motion to suppress and motion to dismiss.
{¶ 4} Appellant waived his right to a jury trial on the failure to comply violation,
and on December 15, 2010, appellant’s charge for felonious assault proceeded to a jury
trial while his failure to comply count was argued to the bench. At the conclusion of trial
on December 20, 2010, appellant was found not guilty by the jury on the felonious assault
charge. However, appellant was convicted by the trial court for failure to comply, a first
degree misdemeanor. On December 28, 2010, appellant was sentenced to four months of
community control sanctions.
{¶ 5} Appellant’s timely appeal raises three assignments of error:
{¶ 6} I. “The trial court erred by denying appellant’s motion to suppress where
reasonable and articulable suspicion was not present to support a Terry stop.”
{¶ 7} II. “The trial court erred by denying appellant’s motion to dismiss where
the statutory provision is invalid as applied to the present facts and circumstances.”
{¶ 8} III. “Appellant’s conviction for failure to comply with an order or signal
of a police officer was against the manifest weight of the evidence.”
Law and Analysis
I
{¶ 9} In his first assignment of error, appellant argues that the trial court erred by
denying his motion to suppress where reasonable and articuable suspicion was not present
to support a Terry1 stop.
{¶ 10} During the pretrial suppression hearing, Cleveland Police Officer Jon
Sanderson testified that he and his partner received a radio dispatch around 2:00 a.m. for
a domestic violence call involving a male, Jarrell Starks, who was reportedly outside his
ex-girlfriend’s residence making threatening statements and breaking windows. The
radio dispatcher advised the officers that a white vehicle parked in front of the residence
was related to the incident. As the officers passed the residence, they saw a white
vehicle parked directly in front of the house and saw a male, later identified as Starks,
pacing back and forth on the sidewalk in front of the house and next to the parked
vehicle. According to Officer Sanderson, the street was well lit, no other vehicles were
on the street, and no other houses were on the block.
{¶ 11} The officers stopped their patrol car behind the white vehicle and observed
two individuals sitting in the vehicle as passengers. Appellant was later identified as the
individual sitting in the front passenger’s seat of the vehicle. Once the officers exited
their patrol car, Officer Sanderson asked Starks to slowly walk toward them, remove his
hands from his pockets, and place them on the hood of the patrol car. The officers
proceeded to pat down Starks against their patrol car. As soon as the pat down began,
1 Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
Starks tried to run away, but the officers grabbed him, handcuffed him, and finished the
pat down.
{¶ 12} Officer Sanderson testified that upon restraining Starks, he turned toward
the white vehicle and saw appellant in the passenger seat lean over towards the driver’s
seat as if he was trying to reach for something. Officer Sanderson then walked toward
the vehicle and, after taking two steps, heard the vehicle’s engine start. Officer
Sanderson testified that, at that time, he became concerned for his safety and the safety of
his partner. When he approached the driver’s side window, he found appellant with one
of his hands turning the steering wheel. Officer Sanderson testified that he drew his
weapon and ordered appellant to “Stop. Turn the car off.” After Officer Sanderson
gave this order, appellant turned the steering wheel with his left hand and revved the
engine. Officer Sanderson then felt the car push against him, and he jumped back and
fired a round at appellant because he thought appellant was “trying to run him over and
kill him.” Appellant proceeded to flee the scene, and the officers were unable to catch
up to the speeding vehicle.
{¶ 13} Officer Alford testified that he also saw appellant make suspicious, furtive
movements in the vehicle. According to Officer Alford, “I saw a shadow form begin to
reach over from the passenger front side toward the driver’s side and duck down
underneath the driver’s seat as if he was trying to get something.” Officer Alford
testified that, in his experience, appellant’s movements were consistent with an individual
who “was potentially dangerous and possibly going for a weapon.”
{¶ 14} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶8, the Ohio Supreme Court explained the standard of review for a motion to suppress as
follows:
{¶ 15} “Appellate review of a motion to suppress presents a mixed question of law
and fact. 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 (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
Consequently, an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19,
437 N.E.2d 583. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio
App.3d 706, 707 N.E.2d 539.”
{¶ 16} Appellant argues that Officer Sanderson’s investigatory stop was not
supported by a reasonable and articulable suspicion that criminal behavior had occurred
or was imminent. For the reasons that follow, we disagree.
{¶ 17} A police officer may stop or detain an individual without probable cause
when the officer has reasonable suspicion based on specific, articulable facts that criminal
activity is afoot. Terry at 16. Accordingly, an “investigatory stop does not violate the
Fourth Amendment * * * if the police have reasonable suspicion that ‘the person stopped
is, or is about to be, engaged in criminal activity.’” State v. Jordan, 104 Ohio St.3d 21,
35, 2004-Ohio-6085, 817 N.E.2d 864, quoting United States v. Cortez (1981), 449 U.S.
411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621.
{¶ 18} Reasonable 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 (1990), 70
Ohio App.3d 554, 556-557, 591 N.E.2d 810, citing Terry at 27. Accordingly, “‘a police
officer may not rely on good faith and inarticulate hunches to meet the Terry standard of
reasonable suspicion.” Jones at 557. Reasonable suspicion requires that the officer
“point to specific, articulable facts which, together with rational inferences from those
facts, reasonably warrant the intrusion.” Id., citing Terry at 21.
{¶ 19} “In making a determination of reasonable suspicion, the relevant inquiry is
not whether particular conduct is innocent or guilty, but the degree of suspicion that
attaches to particular types of noncriminal acts.” State v. Taylor (1995), 106 Ohio
App.3d 741, 747-749, 667 N.E.2d 60. An appellate court views the propriety of a police
officer’s investigative stop in light of the totality of the surrounding circumstances. State
v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus,
approving and following State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044,
paragraph one of the syllabus. “Assessing the need for a brief stop, ‘the circumstances *
* * before [the officer] are not to be dissected and viewed singly; rather they must be
considered as a whole.’” Freeman at 295, quoting United States v. Hall (C.A.D.C.1976),
525 F.2d 857, 859. Officers may “draw on their own experience and specialized training
to make inferences from and deductions about the cumulative information available to
them that ‘might well elude an untrained person.’” United States v. Arvizu (2002), 534
U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting Cortez at 418.
{¶ 20} Based on the examination of the “totality of the surrounding
circumstances,” the officers in this case were justified to engage in a brief investigatory
stop of appellant. The record reflects that the officers reasonably believed that the white
vehicle parked outside the victim’s home was connected to the reported domestic
violence altercation. However, upon arriving at the scene of the altercation, the officers
were unable to determine the extent of the white vehicle’s involvement in the purported
crime and were justified to monitor the vehicle with caution once they observed two
unidentified individuals inside the vehicle. During the suppression hearing, Officers
Sanderson and Alford testified that, in their experience, domestic violence situations
frequently involve violent and chaotic situations. Therefore, in light of the facts known
to the officers at the time they arrived at the scene, it was reasonable for them to fear the
presence of a weapon on the reported suspect and/or the individuals located within the
vehicle.
{¶ 21} Faced with a potentially violent and unpredictable situation late at night,
coupled with Starks’s physical resistance to a pat down and appellant’s simultaneous
furtive movements in the vehicle believed to be connected to the crime, we find that the
officers had articulable grounds to suspect criminal activity. The officers testified that
appellant’s furtive movements were consistent with an individual reaching for a weapon.
In these situations, a brief investigatory stop of a suspicious individual, in order to
maintain the status quo momentarily while obtaining more information, is reasonable and
is in the best interests of the officers’ safety. Adams v. Williams (1972), 407 U.S. 143,
145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612. Accordingly, we conclude that the officers did
not abridge the protections guaranteed by the Fourth Amendment. Hence, the trial court
did not err in denying the motion to suppress.
{¶ 22} Appellant’s first assignment of error is overruled.
II
{¶ 23} In his second assignment of error, appellant argues that the trial court erred
by denying his motion to dismiss where R.C. 2921.331(B) is unconstitutional as applied
to the present facts and circumstances.
{¶ 24} Any constitutional analysis must begin with the presumption of
constitutionality enjoyed by all legislation. Groch v. Gen. Motors Corp., 117 Ohio St.3d
192, 2008-Ohio-546, 883 N.E.2d 377, ¶25. Before a court may declare an enactment of
the legislative branch unconstitutional, “it must appear beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible.” Id., quoting State ex
rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59, paragraph one of
the syllabus. An appellate court gives no deference to a trial court’s decision regarding
the constitutionality of a statute and reviews the issue de novo. Medina v. Szwec, 157
Ohio App.3d 101, 2004-Ohio-2245, 809 N.E.2d 78, ¶4.
{¶ 25} “A statute may be challenged as unconstitutional on the basis that it is
invalid on its face or as applied to a particular set of facts. See, e.g., United States v.
Eichman (1990), 496 U.S. 310, 312, 110 S.Ct. 2404, 110 L.Ed.2d 287. In an as-applied
challenge, the challenger ‘contends that application of the statute in the particular context
in which he has acted, or in which he proposes to act, [is] unconstitutional.’ Ada v.
Guam Soc. of Obstetricians & Gynecologists (1992), 506 U.S. 1011, 113 S.Ct. 633, 121
L.Ed.2d 564 (Scalia, J., dissenting).” State v. Lowe, 112 Ohio St.3d 507,
2007-Ohio-606, 861 N.E.2d 512, ¶17. Thus, we focus on the statute and its particular
application in an as-applied challenge.
{¶ 26} The challenged statute, R.C. 2921.331(B), provides that “[n]o person shall
operate a motor vehicle so as willfully to elude or flee a police officer after receiving a
visible or audible signal from a police officer to bring the person’s motor vehicle to a
stop.”
{¶ 27} Appellant contends that, under the plain language of the statute, the trial
court unconstitutionally applied the statute to him where the state failed to establish that
he “operated” the vehicle, as defined by the Ohio Revised Code, at the time Officer
Sanderson ordered him to stop. In doing so, appellant relies on State v. Ozinga,
Ashtabula App. No. 2008-A-0038, 2009-Ohio-181, and State v. Schultz, Cuyahoga App.
No. 90412, 2008-Ohio-4448. In Ozinga and Schultz, both the Eleventh District and this
court stated that, effective January 1, 2004, the term “operate,” as used in Ohio’s OVI
laws under Chapter 4511 of the Ohio Revised Code, was amended by the General
Assembly to mean: “to cause or have caused movement of a vehicle, streetcar, or trackless
trolley.” (Emphasis added.) Ozinga at ¶20; Schultz at ¶30. In amending the definition
of “operate” in R.C. 4511.01, a defendant can no longer be convicted of an OVI violation
if only the engine of the vehicle is on; rather, movement of the defendant’s vehicle must
be found by the finder of fact. Id.{¶ 28} Essentially, appellant contends that the definition of “operate” found in
R.C. 4511.01 is equally applicable to R.C. 2921.331 and, therefore, a conviction for
eluding or fleeing cannot be constitutionally applied to a situation where an officer orders
a defendant to stop a parked vehicle. However, appellant’s argument focuses solely on
Officer Sanderson’s initial order to turn off the engine of the parked vehicle and fails to
consider Officer Sanderson’s subsequent conduct once appellant attempted to flee the
scene.
{¶ 29} In our view, Officer Sanderson’s discharge of his weapon constituted a
secondary visual signal for appellant to stop the operation of the vehicle at the time
appellant was in fact moving the vehicle. Therefore, appellant’s contention that the order
to stop the operation of the vehicle was given at a time when the vehicle was not moving
is without merit. Accordingly, a constitutional interpretation of whether R.C.
2921.331(B) can be constitutionally applied to a factual scenario where there is no
“movement” of a vehicle, as required by the definition of “operate” in R.C.
4511.01(HHH), is unnecessary in this matter. In light of the facts and circumstances
presented at trial, we find that R.C. 2921.331(B) was constitutionally applied to appellant.
{¶ 30} Appellant’s second assignment of error is overruled.
III
{¶ 31} In his third assignment of error, appellant argues that his conviction was
against the manifest weight of the evidence. In determining whether a conviction is
against the manifest weight of the evidence, an appellate court “must review the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339,
340, 515 N.E.2d 1009.
{¶ 32} A weight-of-the-evidence challenge indicates that a greater amount of
credible evidence supports one side of the issue than the other. State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Further, when reversing a
conviction on the basis that the conviction was against the manifest weight of the
evidence, the appellate court sits as the “thirteenth juror” and disagrees with the
factfinder’s resolution of the conflicting testimony. Id. Therefore, this court’s
“discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20
Ohio App.3d 172, 175, 485 N.E.2d 717; see, also, Otten, at id.{¶ 33} In challenging his conviction on manifest weight grounds, appellant relies
on the arguments raised in his constitutional challenge, claiming that he was not
“operating” the vehicle under the current state of the law. However, as discussed, we are
unpersuaded by appellant’s interpretation of the facts in this matter.
{¶ 34} After examining the entire record, weighing the evidence and all reasonable
inferences, we are unable to conclude that the court clearly lost its way and created a
manifest miscarriage of justice in convicting appellant pursuant to R.C. 2921.331(B).
The record reflects that upon seeing appellant make a furtive movement towards the
driver’s seat of the vehicle, Officer Sanderson began to walk toward the vehicle in order
to assess the situation. At that moment, appellant started the vehicle’s engine, and
Officer Sanderson positioned himself in front of the driver’s side window and drew his
weapon. Officer Sanderson testified at trial that he then ordered appellant to “Stop.
Turn off the car.” Seconds later, appellant disobeyed Officer Sanderson’s initial order
and accelerated the car away from the officers. Concerned for his safety, Officer
Sanderson fired a shot into the driver’s side windshield while the vehicle was moving.
The testimony of Officer Sanderson was further corroborated by Officer Alford.
{¶ 35} In light of the testimony presented at trial, we find that, in addition to
Officer Sanderson’s initial audio signal to turn the vehicle’s engine off, Officer
Sanderson’s position at the front of the vehicle and the firing of his weapon at the moving
vehicle constituted visual signals to appellant to stop the operation of the vehicle. Rather
than comply with the officer’s order, appellant made the conscious and willful decision to
elude the officers and flee the scene of the domestic violence altercation. Accordingly,
we are not persuaded by appellant’s argument that his conduct did not violate R.C.
2921.331(B) under the plain language of the statute.
{¶ 36} Appellant’s third 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., PRESIDING JUDGE
JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR