[Cite as State v. Darr, 2018-Ohio-2136.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.       17CA011107

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TIMOTHY J. DARR                                     COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   16CR094085

                                 DECISION AND JOURNAL ENTRY

Dated: June 4, 2018



        HENSAL, Judge.

        {¶1}     Timothy Darr appeals his convictions and sentences in the Lorain County Court

of Common Pleas. For the following reasons, this Court affirms.

                                               I.

        {¶2}     According to Trooper Corey Resendez, he was following behind a motorcycle

driven by Mr. Darr when he observed Mr. Darr speeding. He attempted to initiate a traffic stop,

but Mr. Darr drove away at a speed exceeding 100 miles per hour. When he finally caught up to

the motorcycle, he found Mr. Darr attempting to climb over a fence into a self-storage facility.

Unable to get over the fence, Mr. Darr started to run from Trooper Resendez, but tripped.

        {¶3}     As Trooper Resendez approached Mr. Darr, he ordered Mr. Darr to show his

hands. Mr. Darr refused to produce his right hand, so Trooper Resendez again ordered him to

show it. Instead, Mr. Darr reached into his waistband toward a silver object that the trooper

recognized as a handgun. Trooper Resendez jumped on Mr. Darr to neutralize his use of the gun.
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Mr. Darr responded by striking Trooper Resendez multiple times, attempting to free himself.

Following a struggle, during which Mr. Darr never released his grip on the gun, Mr. Darr finally

submitted to Trooper Resendez and was taken into custody.

       {¶4}    The Grand Jury indicted Mr. Darr for felonious assault, failure to comply, having

weapons while under disability, illegal conveyance of weapons, assault, resisting arrest, carrying

concealed weapons, improper handling of a firearm in a motor vehicle, obstructing official

business, possession of drugs, and drug paraphernalia offenses. Several of the offenses included

firearm specifications. Mr. Darr moved to suppress the evidence against him, arguing that

Trooper Resendez did not have reasonable suspicion to initiate a traffic stop of his motorcycle.

Following a hearing, the trial court denied his motion. A jury found him guilty of all but one of

the offenses, and the trial court sentenced him to a total of 14 years imprisonment. Mr. Darr has

appealed, assigning three errors.

                                               II.

                                    ASSIGNMENT OF ERROR I

       TO THE DETRIMENT OF DARR, THE TRIAL COURT ADMITTED
       EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED PURSUANT TO
       THE ATTENUATION DOCTRINE.

       {¶5}    Mr. Darr argues that the trial court should have granted his motion to suppress

because Trooper Resendez did not have reasonable suspicion to initiate a traffic stop. 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. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       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.
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(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       “[N]ot all seizures of [a] person must be justified by probable cause to arrest for a crime.”

Florida v. Royer, 460 U.S. 491, 498 (1983). For example, the Ohio Supreme Court has held that

an officer may stop a vehicle if he has reasonable and articulable suspicion that the driver has

committed a traffic violation. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 8.

       {¶6}    The trial court found that Trooper Resendez initially did not have reasonable

suspicion to stop Mr. Darr for speeding. It denied his motion to suppress, however, because it

found that the trooper’s attempt to conduct a traffic stop did not result in a seizure of Mr. Darr.

In California v. Hodari D, 499 U.S. 621 (1991), the United States Supreme Court explained that

an arrest requires either the application of force or submission to the assertion of authority. Id. at

626. A show of authority does not constitute a “seizure” under the Fourth Amendment until it

actually produces a stop. Id. at 628; State v. Sellers, 11th Dist. Trumbull No. 2011-T-0118,

2012-Ohio-5440, ¶ 14.

       {¶7}    Mr. Darr argues that Trooper Resendez testified that his motorcycle did stop

momentarily after the trooper activated his takedown lights. The video of the incident, however,

shows the motorcycle slowing down at a red light as it pulls up behind another vehicle in the

right turn lane. Instead of stopping behind the other vehicle, the motorcycle coasts into the right

berm, going around the vehicle in the turn lane. Without coming to a full stop, the motorcycle

proceeds to turn right at the intersection. Upon review of the record, we conclude that the trial

court’s finding that the motorcycle did not stop in response to Trooper Resendez’s attempt to

initiate a traffic stop is supported by competent, credible evidence.

       {¶8}    Mr. Darr has not challenged the trial court’s finding that his high rate of speed

after turning at the intersection gave Trooper Resendez reasonable suspicion to stop him. We,
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therefore, conclude that the trial court correctly denied Mr. Darr’s motion to suppress. Mr.

Darr’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE JURY LOST ITS WAY WHEN FINDING DARR GUILTY OF THREE
       YEAR GUN SPECIFICATIONS AS THERE WAS NOT CREDIBLE
       EVIDENCE THAT DARR COMMITTED A VOLUNTARY ACT WHEN
       ALLEGEDLY DISPLAYING THE WEAPON AND THEREFORE NO
       EVIDENCE THAT DARR EVER BRANDISHED THE WEAPON OR
       CAUSED THE WEAPON TO BE BRANDISHED.

                                  ASSIGNMENT OF ERROR III

       THE JURY LOST ITS WAY TO THE DETRIMENT OF DARR WHEN
       FINDING HIM GUILTY OF FELONIOUS ASSAULT AS THERE WAS NO
       EVIDENCE OF A VOLUNTARY ACT AND THEREFORE NO EVIDENCE
       THAT DARR ATTEMPTED TO CAUSE HARM TO TROOPER RESENDEZ
       WITH A DEADLY WEAPON.

       {¶9}    Mr. Darr also argues that the jury lost its way when it found him guilty of

felonious assault and some of the firearms specifications. When a defendant asserts that 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, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its

power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.

State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶10} Regarding the firearm specifications, Mr. Darr argues that he did not voluntarily

display his weapon and that the only reason Trooper Resendez saw it is because he tripped,
                                                   5


causing it to become visible as he rolled over on the ground. Under Revised Code Sections

2929.14(B)(1)(a)(ii) and 2941.145, an offender can be sentenced to an additional three-years

imprisonment if he possessed a firearm during an offense and displayed the firearm, brandished

the firearm, indicated that he possessed the firearm, or used it to facilitate the offense. The jury

found Mr. Darr guilty of a specification under Section 2941.145 as to his felonious assault,

assault, obstructing official business, and resisting arrest offenses.

       {¶11} Trooper Resendez testified that, as he approached Mr. Darr while Mr. Darr was

on the ground, he ordered Mr. Darr to show his hands. When Mr. Darr showed only his left

hand, he ordered him to produce his right hand. At that point, Mr. Darr reached into his

waistband and “produced” a handgun. Trooper Resendez testified that, after he secured Mr.

Darr, Mr. Darr told him that the reason that he reached for the gun was because it was sliding

down his pants and he was just attempting to retrieve it. Trooper Resendez testified, however,

that, during his fight with Mr. Darr, Mr. Darr never let go of the gun.

       {¶12} Trooper Resendez testified that, although Mr. Darr was unable to pull the

handgun out of his pants completely, it was only because he never gave him the chance. We

note that, because Trooper Resendez had to use his hands to try to wrest control of the gun from

Mr. Darr, it left him more vulnerable to Mr. Darr’s punches to his head. Upon review of the

record, we conclude that the jury did not lose its way when it found that Mr. Darr displayed,

brandished, or indicated that he possessed the gun, or that Mr. Darr used the gun to facilitate his

felonious assault, assault, resisting arrest, and obstructing official business offenses. Mr. Darr’s

second assignment of error is overruled.

       {¶13} Regarding his conviction for felonious assault, Mr. Darr argues that there was no

evidence that he attempted to use the handgun to cause harm to Trooper Resendez. Section
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2903.11(A)(2) provides that no person shall knowingly “[c]ause or attempt to cause physical

harm to another * * * by means of a deadly weapon[.]”

       {¶14}    According to Trooper Resendez, when he ordered Mr. Darr to produce his

hands, Mr. Darr did not comply and instead reached for the firearm in his pants with his right

hand. Mr. Darr began pulling the gun from the waistband of his pants, but Trooper Resendez

saw its silver slide, recognized it as a gun, and jumped on top of Mr. Darr in an attempt to

neutralize the threat. Instead of releasing his grip on the gun, Mr. Darr struggled with Trooper

Resendez for control of it, striking the trooper in the head and pushing his face. The trooper

testified that, at the time Mr. Darr began producing the gun, Mr. Darr was in a low ready

position. Trooper Resendez explained that someone in a low ready position does not have

anyone targeted yet, but is able to get their sights on a target “in the least amount of time

possible.” He, therefore, interpreted Mr. Darr actions to mean that Mr. Darr was “about to aim

and fire[.]” Under these circumstances, we cannot say that the jury lost its way when it found

that Mr. Darr knowingly attempted to cause physical harm to Trooper Resendez by means of a

deadly weapon. Mr. Darr’s third assignment of error is overruled.

                                              III.

       {¶15} Mr. Darr’s assignments of error are overruled.         The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, P. J.
CONCURS.

CALLAHAN, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
