State v. Harbin , 2020 Ohio 4187 ( 2020 )

[Cite as State v. Harbin, 2020-Ohio-4187.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JUSTIN HARBIN : Case No. 2020 AP 02 0003
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2019 CR 05 0215
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 21, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST MARK A. PERLAKY
Assistant Prosecuting Attorney Assistant Public Defender
Tuscarawas County Tuscarawas County Public Defender
125 East High Avenue 153 N. Broadway St.
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2020 AP 02 0003 2
Baldwin, J.
{¶1} Justin T. Harbin appeals the decision of the Tuscarawas Court of Common
Pleas denying his motion to suppress the evidence of items removed from a vehicle.
Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant, Justin T. Harbin, was indicted for Aggravated Possession of
Drugs in violation of R.C. 2925.11(A) and Illegal Use or Possession of Paraphernalia in
violation of R.C. 2925.14(C). Harbin filed a Motion to Suppress arguing that law
enforcement officers did not have reasonable, articulable suspicion to stop or detain him
without a warrant, and that an inventory search of his vehicle was improper. The trial
court conducted a hearing on the motion and the testimony of Deputy Cole Morris and
Sergeant Travis Stocker was offered by the appellee.
{¶3} On January 7, 2019 at approximately 5:00 AM, Deputy Cole Morris and
Sergeant Travis Stocker of the Tuscarawas County Sheriff's Office responded to a report
of an alleged home invasion and assault. The dispatcher provided a description of the
alleged assailant as a male in a dark sweatshirt and beanie/ski cap. When the deputies
arrived at the home, they were met by the purported victim and witnesses. The victim
was bleeding from a head wound and was difficult to comprehend. Sgt. Stocker described
the victim as "talking out of his mind" and not "making a whole lot of sense." The witnesses
provided a description of the assailant as a male in dark clothing wearing a dark ski cap,
but their statements regarding the incident were inconsistent. After being questioned the
victim became frustrated, stated he would not pursue the matter any further and asked
the deputies to leave.
Tuscarawas County, Case No. 2020 AP 02 0003 3
{¶4} As the deputies left the home, they observed a vehicle in a storage unit
parking lot within fifty yards of the home, stationary but with the engine running. The
deputies saw that the occupant of the vehicle was wearing clothing that matched the
description of the assailant given to the officers by the witnesses, so they decided to
approach the driver. Deputy Morris drove into the parking lot and the vehicle began to
move, so he activated his overhead lights to stop the vehicle. After identifying the driver
as Justin Harbin, Deputy Morris discovered he was subject to an arrest warrant. The
deputy removed him from his vehicle, placed him under arrest and in the back of the
cruiser.
{¶5} During an inventory search of Harbin’s vehicle, Sergeant Stocker
discovered a pipe and a substance later identified as methamphetamine.
{¶6} Harbin was indicted for Aggravated Possession of Drugs in violation of R.C.
2925.11(A) and Illegal Use or Possession of Paraphernalia in violation of R.C.
2925.14(C). Harbin pleaded not guilty and filed a motion to suppress the evidence
recovered from the vehicle, contending that the stop was made without reasonable and
articulable suspicion that Harbin had committed a crime.
{¶7} The trial court conducted an oral hearing, considered post-hearing briefs
and denied the motion to suppress finding that:
the encounter with Defendant by the Law Enforcement Agents of the
Tuscarawas County, Ohio Sheriff’s Office on1/7/2019 which underpins the
Indictment in this case was consensual and predicated upon reasonable,
articulable suspicion of the Defendant having engaged in criminal
conduct***.
Tuscarawas County, Case No. 2020 AP 02 0003 4
{¶8} Harbin changed his plea to no contest, the plea was accepted and the trial
court found him guilty. He was sentenced to one year of unsupervised community control
and seventy five hours of community service. The sentence was suspended pending the
resolution of this appeal.
{¶9} Harbin filed a timely appeal and submitted one assignment of error:
{¶10} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING
APPELLANT'S MOTION TO SUPPRESS EVIDENCE IN THE CASE BECAUSE THE
CITING OFFICER DID NOT HAVE REASONABLE SUSPICION OR PROBABLE CAUSE
TO STOP APPELLANT AND/OR HIS VEHICLE.”
STANDARD OF REVIEW
{¶11} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
When ruling on a motion to suppress, the trial court assumes the role of trier of fact and
is in the best position to resolve questions of fact and to evaluate witness credibility. See
State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v. Fanning, 1 Ohio
St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial
court's factual findings if competent, credible evidence exists to support those findings.
See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th
Dist. 1996). However, once this Court has accepted those facts as true, it must
independently determine as a matter of law whether the trial court met the applicable legal
standard. See Burnside, supra, quoting State v. McNamara, 124 Ohio App.3d 706, 707
N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122
Tuscarawas County, Case No. 2020 AP 02 0003 5
S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct.
1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings
of fact is subject to a de novo standard of review Ornelas, supra. State v. Johns, 5th Dist.
No. 19-CA-5, 2019-Ohio-4269, 146 N.E.3d 1286, ¶ 11.
{¶12} Harbin contends that the trial court erred by finding that Harbin’s encounter
with the deputies was consensual and the facts available to the deputies when the stop
was made did not support a conclusion that the deputies had reasonable, articulable
suspicion that a crime had occurred. We review the trial court’s fact finding for abuse of
discretion and the application of the law to those facts de novo.
ANALYSIS
{¶13} Harbin focuses his argument on the trial court’s comment that the encounter
between he and the deputies was consensual and ignores the trial court’s additional
conclusion that it was “predicated upon reasonable, articulable suspicion of the Defendant
having engaged in criminal conduct ***.” While the facts support a conclusion that the
deputies approach and conversation with Harbin was not consensual, even if we were to
conclude that the trial court erred in that respect, we must accord weight to the trial court
finding that the deputy had a reasonable articulable suspicion that Harbin had engaged
in criminal activity.
{¶14} Interactions between citizens and law enforcement officers can fall within
three distinct categories: a consensual encounter, an investigative detention, and an
arrest. State v. Taylor, 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60(1995).
{¶15} “Encounters are consensual where the police merely approach a person in
a public place, engage the person in conversation, request information, and the person
Tuscarawas County, Case No. 2020 AP 02 0003 6
is free not to answer and walk away.” Taylor at 747 quoting United States v. Mendenhall,
446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The Fourth Amendment
guarantees are not implicated in such an encounter unless the police officer has by either
physical force or show of authority restrained the person's liberty so that a reasonable
person would not feel free to decline the officer's requests or otherwise terminate the
encounter.” Taylor, supra at 747-748.
{¶16} The trial court found that the encounter was consensual, but after reviewing
the transcript of the hearing, we find the record reflects more than a consensual
encounter. Deputy Cole and Morris stopped Harbin because they believed he matched
the description of the assailant provided by the victim and witnesses. When Deputy
Morris pulled into the parking lot where they saw Harbin in a vehicle, Harbin began to
move and Deputy Morris “activated [his] overhead lights to stop the vehicle to check on
the driver.” (Emphasis added.) During cross examination Deputy Morris was asked about
activating the lights on his cruiser and he conceded that “I believe I did activate them to
stop the vehicle” and that Harbin was not free to leave. (Emphasis added.) Deputy
Morris told Harbin that he was stopped because the deputy was investigating the home
invasion nearby.
{¶17} The deputy’s show of authority, illuminating his overhead lights, with the
goal of bringing Harbin to a halt so that he could question Harbin regarding the home
invasion is not a consensual encounter. While the record does not reveal Harbin’s
subjective response, both deputies clearly intended to stop Harbin to question him in
relation to the home invasion that had been reported. We find the trial court’s conclusion
that this encounter was consensual unsupported by the record, but that does not end our
Tuscarawas County, Case No. 2020 AP 02 0003 7
analysis. The trial court also held that the encounter was “predicated upon reasonable,
articulable suspicion of the Defendant having engaged in criminal conduct” more
commonly described as an investigatory or “Terry” stop.
{¶18} In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the
United States Supreme Court determined that “a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is not probable cause to make
an arrest.” However, for the propriety of a brief investigatory stop pursuant to Terry, the
police officer involved “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.” Id.
at 21. This “reasonable suspicion” constitutes something less than probable cause. State
v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15.
{¶19} An investigatory stop “must be viewed in the light of the totality of the
surrounding circumstances” presented to the police officer, “who must react to events as
they unfold.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph
one of the syllabus; State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
The officer “must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion” Terry, supra
at 21, but the officer need not provide proof beyond a reasonable doubt that the
defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.
Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25.
{¶20} We find the specific and articulable facts in this case and the rational
inferences to be drawn from them warrant the intrusion. The deputies responded to
Tuscarawas County, Case No. 2020 AP 02 0003 8
allegations of a home invasion and an assault at approximately 5:00 AM. The victim had
a laceration near his left eye, a gash in the back of his head and the left side of his face
was covered in blood. The deputies received a description of the assailant when they
were dispatched to the scene and the victim and witnesses provided a similar description.
The witnesses’ versions of facts suffered from inconsistencies, but the description of the
alleged perpetrator was not clearly described as a fact that was affected by the conflicting
statements. The officer’s left the victim at approximately 5:30 A.M. and noticed Harbin in
a vehicle haphazardly parked in a storage unit parking lot near the location of the offense
wearing a beanie and a sweatshirt that matched the description of the assailant’s clothing.
Standing alone, none of the facts would have been sufficient to warrant a Terry stop, but
when viewed collectively, we hold that the totality of the circumstances comprised of these
facts and the inferences that can be drawn from the facts provides a reasonable,
articulable, suspicion to support the deputies’ investigatory stop of Harbin.
Tuscarawas County, Case No. 2020 AP 02 0003 9
{¶21} We find that the deputies’ stop of Harbin was supported by a reasonable,
articulable suspicion that he had been involved in a criminal act and that, therefor, the
trial court did not err in denying appellant’s motion to suppress the evidence. The first
assignment of error is overruled and the decision of the Tuscarawas County Court of
Common Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.