State v. Roberts

[Cite as State v. Roberts, 2020-Ohio-78.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JOSHUA W. ROBERTS : Case No. 2019-CA-00019
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018-CR-00053
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 13, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DARCY T. COOK BRADLEY S. NICODEMUS
239 West Main Street 1409 West Market Street
Suite 101 Baltimore, OH 43105
Lancaster, OH 43130
Fairfield County, Case No. 2019-CA-00019 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Joshua W. Roberts, appeals the September 6, 2018
statement of facts and conclusions of law of the Court of Common Pleas of Fairfield
County, Ohio, denying his motion to suppress. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 1, 2018, the Fairfield County Grand Jury indicted appellant on
two counts of aggravated possession of drugs in violation of R.C. 2925.11, one count of
possessing dangerous drugs in violation of R.C. 4729.51, one count of possessing drug
paraphernalia in violation of R.C. 2925.14, and one count of driving under suspension in
violation of R.C. 4510.16. Said charges arose from an investigatory stop.
{¶ 3} On April 16, 2018, appellant filed a motion to suppress, challenging the stop.
A hearing was held on July 26, 2018. At the conclusion of the hearing, the trial court
denied the motion. The trial court journalized its decision via statement of facts and
conclusions of law filed September 6, 2018.
{¶ 4} On April 8, 2019, appellant pled no contest to the charges. By judgment
entry of sentence filed April 9, 2019 and two nunc pro tunc judgment entries of sentence
filed May 6 and 14, 2019, respectively, the trial court found appellant guilty and sentenced
him to an aggregate term of twenty-four months in prison, only eight months imposed.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
Fairfield County, Case No. 2019-CA-00019 3
{¶ 6} "THE TRIAL COURT ERRED IN DETERMINING THE OFFICER HAD
SUFFICIENT REASONABLE ARTICULABLE SUSPICION TO EFFECTUATE AN
INVESTIGATORY TRAFFIC STOP."
I
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
denying his motion to suppress. We disagree.
{¶ 8} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St. 3d
165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:
"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. In ruling on 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." Id.,
citing State v. Mills, 62 Ohio St. 3d 357, 366, 582 N.E.2d 972 (1992). On
appeal, we "must accept the trial court's findings of fact if they are supported
by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St. 3d
19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard." Id.
Fairfield County, Case No. 2019-CA-00019 4
{¶ 9} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
116 S. Ct. 1657, 1663, 134 L. Ed. 2d 94 (1996), "…as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶ 10} In his motion to suppress and in his appellate brief, appellant argues the
officers did not have probable cause to conduct an investigatory stop.
{¶ 11} 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 no 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. The propriety of an investigative stop must be viewed in light of the totality of the
circumstances surrounding the stop "as viewed through the eyes of the reasonable and
prudent police officer on the scene who must react to events as they unfold." State v.
Andrews, 57 Ohio St. 3d 86, 87-88, 565 N.E.2d 1271 (1991); State v. Freeman, 64 Ohio
St.2d 291, 414 N.E.2d 1044 (1980).
{¶ 12} Reynoldsburg Police Officer Daniel Downing testified at the suppression
hearing. He and his partner were working the overnight shift on January 24, 2018,
patrolling the Taylor Square shopping area in the city of Reynoldsburg in Fairfield County.
T. at 14-17, 46. The officers were patrolling the area for "preventative patrol" "due to the
high incidence of thefts and narcotic use in the area." T. at 19. Officer Downing
personally has dealt with "thefts of push-outs coming out the emergency exits from
Fairfield County, Case No. 2019-CA-00019 5
Walmart." Id. He explained "a person will load up their cart in Walmart and they'll kind of
stage over here inside. A car will run back here and wait for them. As soon as they pop
out the side door, the car will pull up. They'll load as much stuff as they can and they'll
just take off." T. at 19-20. Officer Downing continued (T. at 20):
We had quite a few of those going on. Actually intercepted a few.
Also intercepted two gentlemen that had backed in right here to the Walmart
tire and battery cages. And we actually jumped them a little early and they
didn't even get a chance to cut the locks off with their big bolt cutters.
Pallet thefts recently as well in the last probably six to eight months
or even sooner prior to January. People are stealing pallets at the back of
Walmart here.
So it's just kind of a - - I don't know what you call it, not an epidemic,
but there's a lot of thefts going on at night from the buildings on the sides
and the back.
{¶ 13} Officer Downing explained in the city of Reynoldsburg, "the highest number
of felony drug cases that are being produced are from the Taylor Square area." T. at 21.
The Walmart and Sam's Club are specific areas. Id. The two stores are connected by a
"little drive" with a "big wooded area" in between. T. at 16-17, 18. Many times the
individuals are backed in by the tree line and/or by the tire cages. T. at 21-22.
{¶ 14} At about 2:57 a.m. on the morning of January 25, 2018, the officers
observed a white SUV "backed into the woodline right here at the side of Sam's Club
Fairfield County, Case No. 2019-CA-00019 6
where their tire center is, the tire cage." T. at 18; State's Exhibit 1. Sam's Club was not
open. Id. Officer Downing admitted it was perfectly legal for the vehicle to be parked
there at that time. T. at 71. The plan was to "cut off the headlights and wait" for the
vehicle's occupants to "get out and probably break into the tire cage." T. at 23. Instead,
Officer Downing assumed they were spotted and the SUV started to move down an
access road perpendicular to the officers. Id; State's Exhibit 2. The driver moved from
the Sam's Club parking lot to the Walmart parking lot and at that time, Officer Downing
initiated a traffic stop with his lights. T. at 24, 75. Officer Downing stated he did not
observe any traffic violations as the stop was an investigatory stop. T. at 25, 91. He
explained "I had reasonable suspicion that criminal activity was afoot due to the high
activity of thefts in the area. I suspected that a theft had occurred or was about to occur
from the tire cage at Sam's Club, being a closed business at 3:00 o'clock in the morning."
T. at 25-26. On cross-examination, Officer Downing stated the investigatory stop was
based on more than a "hunch" as it was based on "the amount of thefts that have been
going around there with cars backed in by the battery cages, behind the buildings and the
sides." T. at 76, 91. He found the white SUV to be suspicious because "[i]t's very unusual
to see an occupied vehicle at 3:00 o'clock in the morning over by the cages over there."
T. at 82.
{¶ 15} Officer Downing's partner approached the vehicle and started interviewing
the occupants. T. at 35-36. The driver of the vehicle was appellant. T. at 59-60. Officer
Downing approached the vehicle and observed a "large torch lighter" on the center
console and "a small piece of cellophane or baggie that looked like the driver was trying
to kick over and conceal with his foot." T. at 36, 38. A check of appellant's driver's license
Fairfield County, Case No. 2019-CA-00019 7
established his license was under suspension. T. at 34, 49, 51. The stop continued and
appellant was subsequently charged as stated above. Because appellant on appeal is
only challenging the officers' sufficient reasonable articulable suspicion for the stop, the
remaining facts are superfluous.
{¶ 16} At the conclusion of the suppression hearing, the court denied the motion,
finding "the stop was sufficient because the vehicle was parked in a high crime area, it
was late at night, 3:00 a.m. The vehicle was more specifically parked near Sam's Club,
its fenced-in tire area." T. at 98. The trial court further stated (T. at 99):
Also, it's noteworthy to add to the suspicion, as Officer Downing's
police cruiser approached, started getting closer to where this vehicle was
parked, the vehicle suddenly left the parking spot and proceeded to drive
off. Granted, it could have driven in a different direction away from the
officer, but the fact that it moved at the same time that Officer Downing
approached seemed suspicious to Officer Downing.
And so when you add all of those things together, the Court is finding
that the stop was justifiable.
{¶ 17} In its statement of facts and conclusions of law filed September 6, 2018,
the trial court journalized its decision, finding the officers had reasonable suspicion to
initiate the investigatory stop. The trial court noted the evidence established:
Fairfield County, Case No. 2019-CA-00019 8
(1) the Taylor Square shopping center, specifically the Walmart and
Sam's Club stores, had fallen victim to multiple theft offenses during the
time preceding the Defendant's arrest; (2) the Defendant was parked in a
similar way to other vehicles which had been involved in theft offenses
involving Walmart and Sam's Club; (3) the Defendant was parked in the
Sam's Club lot at a time that the store had been long closed; and (4) when
the Officers began approaching the Defendant's vehicle the Defendant
pulled away from the spot in which he was parked. The Court finds that
Officers Downing and Scalmato had established a set of reasonable,
articulable facts which would lead to a reasonable, articulable suspicion that
the Defendant had been, was, or was about to engage in criminal activity
such that their investigative stop of the Defendant was warranted in this
situation.
{¶ 18} As noted by the Supreme Court of Ohio in State v. Hairston, 156 Ohio St. 3d
363, 2019-Ohio-1622, ¶12: "An officer's experience with criminal activity in an area and
an area's reputation for criminal activity are factors we have found relevant to the
reasonable-suspicion analysis. * * * Further, the stop occurred after dark—another
circumstance we have found to be of some significance in the reasonable-suspicion
analysis." (Citations omitted.) The facts must be "taken together and viewed in relation
to each other." Id. at ¶13. As noted by this court in State v. Edwards, 5th Dist. Stark No.
2006-CA-00107, 2007-Ohio-705, ¶30, citing State v. Bobo, 37 Ohio St. 3d 177, 524
N.E.2d 489:
Fairfield County, Case No. 2019-CA-00019 9
The Ohio Supreme Court has identified certain specific and
articulable facts that would justify an investigatory stop by way of
reasonable suspicion, factors which fall into four general categories: (1)
location; (2) the officer's experience, training or knowledge; (3) the
suspect's conduct or appearance; and (4) the surrounding circumstances.
{¶ 19} In considering the totality of the circumstances through the eyes of a
reasonable police officer, we cannot say the trial court erred in finding the stop to be
warranted. Officer Downing had sixteen years of law enforcement experience and clearly
testified to the trouble he personally knew was occurring in the parking lots at Taylor
Square, specifically around the tree line by the Walmart and Sam's Club. This particular
area was a targeted patrol area for thefts and drugs and was his assigned area for at
least a year. The subject vehicle was observed parked, backed-in, by the tree line at
approximately 3:00 a.m. when Sam's Club was closed. This parking position is a common
"quick get-away type deal" so the occupants can keep an eye out for the police. T. at 26.
After the police observed the vehicle, the vehicle pulled away. Based upon his training
and experience, Officer Downing testified appellant's behavior was suspicious; either a
theft had occurred or was about to occur. Based upon all of the circumstances taken as
a whole and viewed in relation to each other, Officer Downing articulated a reasonable
suspicion that appellant had engaged or was about to engage in criminal activity
warranting the stop.
Fairfield County, Case No. 2019-CA-00019 10
{¶ 20} Upon review, we find the trial court did not err in denying appellant's motion
to suppress.
{¶ 21} The sole assignment of error is denied.
{¶ 22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
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