[Cite as State v. Caplinger, 2013-Ohio-5675.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. CT2013-0018
                                                :
KYLE H. CAPLINGER                               :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, case no.
                                                    CR2012-0259



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             December 10, 2013




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

D. MICHAEL HADDOX                                   JAMIE WILLIAMS
MUSKINGUM CO. PROSECUTOR                            WILLIAMS LAW, LLC
ROBERT L. SMITH                                     323 Main St.
27 N. Fifth St.                                     P.O. Box 53
Zanesville, OH 43701                                Duncan Falls, OH 43734
Muskingum County, Case No. CT2013-0018                                                            2

Delaney, J.

       {¶1} Appellant Kyle H. Caplinger appeals from the decision of the Muskingum

County Court of Common Pleas overruling his motion to suppress and from his

subsequent conviction and sentencing upon one count of carrying a concealed weapon.

Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on November 29, 2012 as Ptl. Travis Groves was on

routine patrol in the city of Zanesville. Around 2:17 a.m. Groves was dispatched to a

Starfire Gas Station at 727 Pershing Road for a shoplifting complaint. The clerk said a

black male wearing a gray “hoodie” (hooded sweatshirt) had entered the store and

shoplifted two cans of pop and a cigar.          The suspect left the store and headed

eastbound toward the Coopermill Manor area. Groves stated police receive many calls

to the Coopermill Manor neighborhood for crimes such as domestic violence, drug

activity, and firearms violations, and an officer was once shot there.

       {¶3} Groves drove westbound on Pershing Road and turned onto Cliffwood

Avenue, hoping to intercept the suspect. As he approached the intersection of Shinnick

Circle and Cliffwood Avenue, he observed a car stopped in the intersection. Groves

saw a person get out wearing a black hoodie. Groves apparently connected this

individual with the shoplifting report: he testified it is his experience that shoplifters will

leave a store and run to cars left parked a short distance away.

       {¶4} The car stopped in front of 758 Cliffwood Avenue and then pulled away.

Groves watched the individual, later identified as appellant, exit the car and walk to the

front door of an apartment as Groves pulled up. Appellant stood on the front porch and
Muskingum County, Case No. CT2013-0018                                                       3


opened the screen door as Groves exited his cruiser. Groves noted appellant was

wearing a purple and yellow hoodie. Groves testified, “So at that point I knew I didn’t

have a theft suspect.” (T. 7). He also stated appellant did not appear to be engaged in

any criminal activity such as breaking into the apartment. (T. 15).

       {¶5} Groves continued, however, to watch appellant because appellant

“flinched” when he noticed Groves watching him and looked “nervous, shocked, [and]

surprised.” Groves also observed a bulge in the front pocket of appellant’s hoodie. He

believed appellant positioned his body on the front porch as though he was attempting

to conceal the front of his body. Groves found it noteworthy that appellant “bladed” his

body away from him two or three times.

       {¶6} Groves asked appellant if he would step off the porch to speak to him;

appellant asked why but walked toward the officer, who could now clearly see a bulge in

the front pocket of appellant’s hoodie. Once appellant stepped off the porch, Groves

touched the bulge, reportedly for officer safety purposes, and recognized the outline of a

firearm. Groves placed appellant in handcuffs and retrieved a firearm from the front

pocket of appellant’s hoodie, later identified as a .22 caliber semi-automatic pistol.

       {¶7} Appellant was charged by indictment with one count of carrying a

concealed weapon pursuant to R.C. 2923.12(A)(2), a felony of the fourth degree.

Appellant entered a plea of not guilty and filed a motion to suppress on the basis

Groves had no reasonable suspicion to stop him and pat him down. A hearing was held

on February 8, 2013, and the trial court overruled the motion to suppress from the

bench at the conclusion of the hearing.
Muskingum County, Case No. CT2013-0018                                                            4


       {¶8} Appellant subsequently changed his plea to one of no contest and was

found guilty as charged.      The trial court sentenced him to a term of two years of

community control. Appellant now appeals from the judgment entries of his conviction

and sentence.

       {¶9} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶10} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

OVERRULED         DEFENDANT’S         MOTION       TO     SUPPRESS        IN    THAT     LAW

ENFORCEMENT          DID NOT       HAVE     REASONABLE         SUSPICISION (sic) THAT

DEFENDANT-APPELLANT WAS INVOLVED IN CRIMINAL ACTIVITY TO WARRANT

CONDUCTING A TERRY STOP AND TERRY FRISK AND THAT DEFENDANT WAS

ILLEGALLY       SEARCHED       AND     SEIZED     IN    VIOLATION      OF      THE   FOURTH

AMENDMENT.”

                                         ANALYSIS

       {¶11} In his sole assignment of error, appellant argues the trial court erred in

overruling his motion to suppress. For the following reasons, we agree, and therefore

we reverse the judgment of the trial court.

       {¶12} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
Muskingum County, Case No. CT2013-0018                                                        5

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

         {¶13} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See, Williams,

supra.

         {¶14} Finally, as here, an appellant may argue the trial court has incorrectly

decided the ultimate or final issues raised in a motion to suppress. When reviewing this

type of claim, an appellate court must independently determine, without deference to

the trial court’s conclusion, whether the facts meet the appropriate legal standard in any

given case. State v. Curry, 95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).

         {¶15} In his sole assignment of error, appellant asserts Groves’ stop and

subsequent pat-down violated the principles set forth in Terry. The Fourth Amendment

to the United States Constitution prohibits warrantless searches and seizures, rendering
Muskingum County, Case No. CT2013-0018                                                        6

them per se unreasonable unless an exception applies. Katz v. United States, 389 U.S.

347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or Terry stop, is a

common exception to the Fourth Amendment warrant requirement. Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 889 (1968). Because the “balance between the public

interest and the individual's right to personal security” tilts in favor of a standard less

than probable cause in such cases, the Fourth Amendment is satisfied if the officer's

action is supported by reasonable suspicion to believe that criminal activity “may be

afoot.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d

607 (1975); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1

(1989). In Terry, the Supreme Court held that a police officer may stop an individual if

the officer has a reasonable suspicion based upon specific and articulable facts that

criminal behavior has occurred or is imminent. See, State v. Chatton, 11 Ohio St.3d 59,

61, 463 N.E.2d 1237 (1984).

       {¶16} 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.

Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the

United States has re-emphasized the importance of reviewing the totality of the

circumstances in making a reasonable-suspicion determination:

             When discussing how reviewing courts should make reasonable-

             suspicion determinations, we have said repeatedly that they must

             look at the “totality of the circumstances” of each case to see
Muskingum County, Case No. CT2013-0018                                                        7


             whether the detaining officer has a “particularized and objective

             basis” for suspecting legal wrongdoing. This process allows officers

             to 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.”

             Although an officer's reliance on a mere “hunch” is insufficient to

             justify a stop, the likelihood of criminal activity need not rise to the

             level required for probable cause, and it falls considerably short of

             satisfying a preponderance of the evidence standard.

             United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.744, 151

             L.Ed.2d 740 (2002), citing United States v. Cortez, 449 U.S. 411,

             417–418 (1981).

       {¶17} The Ohio Supreme Court in Bobo, supra, noted several factors in

determining whether a totality of the circumstances support a finding of reasonable

suspicion: the reputation of the area for criminal activity, the officer's experience with

drug transactions, the officer's familiarity with the area and how drug transactions

occurred there, the officer's perception of the scene, the officer's observation of furtive

movements, and the fact that it was night. 37 Ohio St.3d at 179–180. See, also, State v.

Ward, 80 Ohio App.3d 701, 703, 610 N.E.2d 579 (8th Dist.1992); State v. Victor, 76

Ohio App.3d 372, 374–375, 601 N.E.2d 648 (8th Dist.1991). There is some testimony

in the record that the Coopermill Manor area is known as a high-crime area, but we note

“* * * the fact that the area may be characterized as a ‘high crime’ area cannot furnish a

reasonable suspicion when the activities of the individuals as observed by the police are
Muskingum County, Case No. CT2013-0018                                                      8

themselves unexceptional.” State v. Caldwell, 5th Dist. Richland No. 2011-CA-0024,

2011-Ohio-5429, ¶ 33, appeal not allowed, 131 Ohio St.3d 1459, 2012-Ohio-648, 961

N.E.2d 1137, certiorari denied, 133 S.Ct. 123, 184 L.Ed.2d 27 (2012), citing Brown v.

Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); State v. Carter, 69 Ohio

St.3d 57, 65, 1994–Ohio–343, 630 N.E.2d 355.

      {¶18} Groves’ investigation of appellant began with his hunch that something

was “not normal” about appellant’s behavior due to appellant “blading” his body away

from the officer. (T. 15). Generally, a hunch is not an acceptable basis for an intrusion

into protected rights. State v. Rucker, 63 Ohio App.3d 762, 764, 580 N.E.2d 59 (8th

Dist.1990), per curiam. If the officer can articulate more factors that weighed in his

decision to stop the suspect, however, those factors go to the nebulous “totality of the

circumstances” we are charged with weighing. Furtive movement alone, however, is

not enough. As we have previously noted, “[t]he courts in this State have held such

general claims of furtive movement, standing alone, insufficient to render an officer's

suspicions about criminal activity or the possession of weapons reasonable.” State v.

Taylor, 5th Dist. Stark No. 1997CA00321, 1998 WL 429917, (July 13, 1998), *3, appeal

not allowed, 84 Ohio St.3d 1432, 702 N.E.2d 1212 (1998), citing State v. Chandler, 54

Ohio App.3d 92, 97, 560 N.E.2d 832 (8th Dist.1989); State v. Bird, 49 Ohio App.3d 156,

551 N.E.2d 622 (11th Dist.1988); State v. Jackson, 52 Ohio App.3d 39, 556 N.E.2d 223

(8th Dist.1989); State v. Harris, 36 Ohio App.3d 106, 521 N.E.2d 835 (8th Dist.1987);

State v. Armstrong, 103 Ohio App.3d 416, 659 N.E.2d 844 (9th Dist.1995).

      {¶19} Groves’ testimony that appellant was “acting suspicious around a

residence that he may or may not live there” and “his behavior was just not normal” (T.
Muskingum County, Case No. CT2013-0018                                                       9


15) points to a generalized hunch, rather than a specific, articulable suspicion of

criminal activity. State v. Lynch, 2nd Dist. Montgomery No. 17028, 1998 WL 288936,

(Jun. 6, 1998), * 4. As determined by the Bobo court, a mere furtive movement,

standing alone, does not establish reasonable suspicion to stop a person; however,

furtive movements may be considered along with the totality of other circumstances to

conclude that an investigative stop was proper. State v. Armstrong, supra, 103 Ohio

App.3d at 422, citing Bobo, supra, 37 Ohio St.3d at 179–180.

       {¶20} In this case, therefore, we have reviewed the record to determine whether

the totality of the circumstances supports Groves’ investigative stop of appellant, and

we determine it does not. Groves acknowledged he realized appellant was not the

shoplifting suspect, appellant did not appear to be engaged in any criminal activity, and

virtually the only suspicious activity the officer articulated was “blading” his body away

from the officer’s view.   We find this testimony insufficient to conclude the stop of

appellant was proper.

       {¶21} Appellant’s sole assignment of error is therefore sustained, and the trial

court’s order overruling his motion to suppress is reversed.
Muskingum County, Case No. CT2013-0018                                                    10


                                    CONCLUSION

      {¶22} For the foregoing reasons, appellant’s sole assignment of error is

sustained and the judgment of the Muskingum County Court of Common Pleas is

reversed. This matter is remanded for further proceedings consistent with this opinion.

By: Delaney, J. and

Farmer, P.J.

Wise, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. SHEILA G. FARMER



                                        HON. JOHN W. WISE
