[Cite as State v. Starcher, 2013-Ohio-5533.]

                           STATE OF OHIO, JEFFERSON COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )   CASE NO.     13 JE 1
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )   OPINION
                                               )
BARRY STARCHER,                                )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 11CRB347.


JUDGMENT:                                          Reversed; Vacated; Remanded.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Jane Hanlin
                                                   Prosecuting Attorney
                                                   Attorney Jeffrey Bruzzese
                                                   Assistant Prosecuting Attorney
                                                   16001 State Route 7
                                                   Steubenville, Ohio 43952

For Defendant-Appellant:                           Attorney Thomas Watkins
                                                   3393 Churchill Downs
                                                   Stow, Ohio 44224


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                   Dated: December 9, 2013
[Cite as State v. Starcher, 2013-Ohio-5533.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Barry Starcher appeals the decision of Jefferson
County Court District III denying his motion to suppress. In denying the suppression
motion, the trial court determined that the officer “relied upon sufficient facts, which
gave rise to a reasonable suspicion for him to make the initial investigative stop.” For
the reasons expressed below, we disagree with the trial court’s conclusion that the
initial stop was an investigatory stop. As discussed below, the officer’s testimony
leads to only one conclusion, that he was engaged in a community care taking
function when the initial stop was made. Thus, the trial court’s conclusion that the
initial stop was an investigatory stop is erroneous as a matter of law. The judgment
of the trial court is reversed and the matter is remanded for further proceedings.
                                 Statement of the Case and Facts
        {¶2}     On December 25, 2011 at approximately 10 p.m. Starcher and his
boyfriend, James Coil, were sitting on a guardrail located on County Road 7E,
underneath the overpass of State Route 7, in Brilliant, Jefferson County, Ohio. Wells
Township Police Department Officer Jeffrey Kamerer was called out for a downed
tree. While en route to that destination he saw appellant and Coil. He stopped and
asked them if everything was okay. The lights and siren on the cruiser were not
activated. It was dark outside and cold and this was not a usual location where he
saw people loitering.
        {¶3}     At this point Officer Kamerer and Starcher’s version of what transpired
diverges. Officer Kamerer claims that after he rolled the down the window and asked
Starcher and Coil if they were alright, they responded in an aggressive manner and
started cursing at him. Tr. 76. He then put his car in park, radioed the dispatch
center for the sole purpose of letting them know that he “was out with two males”. Tr.
78; Exhibit C (Investigator Notes). He then exited the cruiser and asked them what
they were doing. Tr. 78; Exhibit C. Coil then began walking away. The officer called
for Coil to come back, which he did. Tr. 78. The officer then asked them “What’s
going on?” Tr. 78. According to the officer, at that point, Coil shoved him. Tr. 78.
                                                                                        -2-

The officer then advised dispatch that he needed back up. Exhibit C. He testified
that he called for back-up because of the way they were acting towards him. Tr. 80.
          {¶4}   His testimony indicates that he asked the two men for their identification
after they were yelling at him, but it does not specifically indicate whether he asked
for their identification before or after he was shoved. In the Investigator Notes, the
officer stated:
                 One male who was later identified as, Jimmy Coil pushed me
          and replied “get the fuck away from us”.       I advised dispatch that I
          needed another unit for assistance. I was trying to ask both males for
          identification and they still refused and became very combative towards
          me.
Exhibit C. The officer also testified:
                 Q. And – and at what – at some point do you ask the men to
          identify themselves?
                 A. Yes.
                 Q. Where on the timeline did – did that request for identification
          come?
                 A. When – when did I ask?
                 Q. Yeah. Is that after they started yelling?
                 A. Yes.
Tr. 81.
          {¶5}   In response to being asked for their identification, Coil threw a
prescription pill bottle at the officer. Tr. 81. Officer Kamerer claimed that both men
were screaming at him that they were not going to give their information and he was
being shoved and pushed. Tr. 81. It was at that point that he advised them they
were under arrest. Tr. 81.
          {¶6}   It is noted Officer Kamerer did not testify that Starcher pushed him,
rather, he claimed that Starcher was screaming and cursing.             When asked how
Starcher reacted to being advised he was under arrest the officer stated, “Screaming
                                                                                       -3-

at me, cussing at me. He was trying to calm Mr. Coil down and he would interfere
with me and Mr. Coil, scream at me.” Tr. 82.
          {¶7}    According to the officer, Coil’s reaction to being advised that he was
under arrest was to partially walk and partially run away from the officer. Tr. 82. The
officer, however, eventually caught him. Tr. 82. Coil was then maced, taken to the
ground and handcuffed. During this time, Starcher was screaming, slapping and
tugging on Officer Kamerer’s shirt and interfering with the arrest of Coil. Tr. 83-84.
At some point, Officer Kamerer maced Starcher, took him to the ground and put a
knee in his back. He was not handcuffed because Officer Kamerer did not have a
second set of handcuffs.
          {¶8}    Starcher gave a video statement to the police the day after this event
occurred. The video statement was played during the suppression hearing. In that
statement, Starcher explained that he and Coil had walked to a friend’s house and
were on their way back home when they stopped to rest on the guardrail. Tr. 19-21.
Officer Kamerer then pulled up and asked if anything was wrong. Tr. 21. They
responded by indicating that they were just sitting there and were on their way home.
Tr. 22. Starcher stated that Officer Kamerer then asked for their names. Instead of
giving it to the officer, Starcher told the officer, “I’m not sure I should give you that.
Why do you need that?” Tr. 22. According to Starcher, Coil gave the officer his
name, social security number and handed him a pill bottle as proof of the information
because he did not have any other ID on him. Tr. 20. Coil then started walking
away. Tr. 22. Starcher further explained:
                  That’s how that conversation started. Jimmy [Coil] – I guess
          Jimmy was real irritated with Officer Kamerer. So – with his questioning
          because just as soon as – as soon as I asked him why he needed to
          know Jimmy got up and started to walk away and then Officer Kamerer
          flew the door – the door flew open, he flew up out of the car and said
          “You better do what the fuck I tell you when I tell you” and that is what
          started it.
Tr. 27.
                                                                                       -4-

          {¶9}   Starcher stated that Officer Kamerer had his flashlight in his hand and
was rearing it back like he was going to hit one of them with it. Tr. 29. Starcher
indicated that he was pleading with Officer Kamerer to not hurt Coil and to just let him
go since he already had given the officer his name. Tr. 30. Starcher stated that
during this encounter Coil was screaming about police brutality even though the
officer had not put his hands on either of them. Tr. 34. Starcher claimed that he was
trying to defuse the situation by telling Coil not to go and that they should “figure this
out” and even put his hand over Coil’s mouth.           Tr. 29-30, 35.    However, Coil
continued to walk away and Officer Kamerer started to pursue Coil. Tr. 35. This
resulted in an altercation between the officer and Coil. According to Starcher, Coil
was then taken to ground, handcuffed and mace is sprayed into his eyes. Tr. 40.
Starcher watched this occur while standing at the side of the road. Officer Kamerer
then approached him, sprayed mace in his eyes and took him to the ground. Tr. 42.
He claimed he did not reach for or touch Officer Kamerer, but rather was yelling at
him to not hurt Coil. Tr. 42-44. Starcher indicated that Officer Kamerer never told
either of them that they were under arrest or that he needed to ask them questions.
Tr. 38.
          {¶10} As a result of these actions, Starcher was charged with obstructing
official business in violation of R.C. 2921.31, a second-degree misdemeanor, and
failure to disclose personal information in violation of R.C. 2921.29(A), a fourth-
degree misdemeanor. 12/28/11 Complaint. Originally Starcher pled no contest to
the charges. 12/28/11 J.E. However, that plea was later vacated and a motion to
dismiss, which more appropriately should have been titled as a motion to suppress,
was filed. 01/10/12 Vacation Motion; 02/08/12 J.E.; 02/28/12 Motion To Dismiss.
Following a hearing, the trial court denied the motion to dismiss. 06/11/12 J.E.
          {¶11} Thereafter the state and Starcher reached a plea agreement. Starcher
pled no contest to the failure to disclose personal information charge and the state
dismissed the obstruction of official business charge. Starcher was sentenced to pay
all court costs and was given credit for time served; however, no fine or probation
                                                                                     -5-

were ordered. 12/13/12 J.E. Starcher then filed a timely notice of appeal from the
suppression ruling.
                                 Assignment of Error
       {¶12} “Whether if the Appellant-Plaintiff’s constitutional rights were violated
because he was stopped without probable cause or a reasonable suspicion that he
had committed a crime?”
       {¶13} Appellate review of a suppression decision presents a mixed question
of law and fact. State v. Roberts, 110 Ohio St .3d 71, 2006–Ohio–3665, 850 N.E.2d
1168, ¶ 100. 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, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992). Thus, a trial court's factual findings are afforded great deference
and an appellate court will accept them if they are supported by competent, credible
evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). That said, the
trial court's legal conclusions are reviewed de novo. State v. Burnside, 100 Ohio
St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8.
       {¶14} In denying the suppression motion, the trial court made the following
findings:
                After hearing the testimony and evidence as well as the oral
       arguments of counsel, the Court finds that Wells Township Police
       Officer James Kamerer relied upon sufficient facts, which gave rise to a
       reasonable suspicion for him to make the initial investigative stop.
                The Court further finds that immediately thereafter, Officer
       James Kamerer had sufficient probable cause to arrest the defendant,
       Barry Starcher, based on the evidence and testimony presented at the
       hearing.
06/11/12 J.E.
       {¶15} Ohio law recognizes three types of police-citizen encounters:
consensual encounters, Terry stops (investigatory detention), and arrests. State v.
Taylor, 106 Ohio App.3d 741, 747–749, 667 N.E.2d 60 (2d Dist.1995).
                                                                                    -6-

      {¶16} By stating that Officer Kamerer had a reasonable suspicion to make the
initial investigative stop, the trial court found that Officer Kamerer’s encounter with
Starcher, from the beginning, was a Terry stop.
      {¶17} It is well-established that an investigatory stop is proper when the facts
demonstrate that the officer possessed a reasonable articulable suspicion which, in
conjunction with rational inferences, warranted a belief that criminal behavior is
occurring or is imminent.     Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
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, 70 Ohio
App.3d 554, 556–57, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27; State v.
Carter, 69 Ohio St.3d 57, 66, 630 N.E.2d 355 (1994) (concluding a police “officer's
inarticulate hunch will not provide a sufficient basis for an investigative stop”). See
also State v. Carlson, 102 Ohio App.3d 585, 590, 657 N.E.2d 591 (9th Dist.1995).
The propriety of an investigative stop must be viewed in light of the totality of the
circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), ¶ 2 of the
syllabus. Courts generally consider factors such as the high-crime nature of the
area, the time of day, the experience of the officers involved, whether the officer was
away from his cruiser, and suspicious activities by the defendant, such as furtive
gestures. Id. at 179-180. For instance, a suspect's unprovoked flight upon seeing the
police can justify a seizure when it occurs in a high-crime neighborhood because it is
a furtive gesture. Illinois v. Wardlow, 528 U .S. 119, 123, 120 S.Ct. 673 (2000); State
v. Jordan, 104 Ohio St.3d 21, 2004–Ohio–6085, 817 N.E.2d 864.
      {¶18} At    the   suppression hearing,      Officer Kamerer testified to the
circumstances that brought him to Starcher. He explained that it was cold and dark
on Christmas night and Starcher and Coil were sitting on the guardrail under the
overpass. Tr. 75-76. He stated that this area is a high crime area; a gas station and
storage facility had been broken into and recently a car had been stolen. Tr. 84-85.
Officer Kamerer explained upon approaching the individuals he rolled down his
window and asked them if everything was okay.          Tr. 76.   He claims that they
                                                                                      -7-

responded by cursing at him and that Coil then started walking away. Tr. 76-78. The
prosecutor then asked if there was anything that was suspicious that caused him to
stop his cruiser and question the individuals. He responded with the following:
                A. It was where they was sitting. It was on the guardrail under –
          under a State route. It was close to the roadway, the time of the night,
          where they was, the traffic that runs through there, somebody could
          have got hurt from where they was.
Tr. 79.
          {¶19} Considering this information we cannot conclude that when Officer
Kamerer initiated the encounter with Starcher he had a reasonable articulable
suspicion that criminal activity was afoot. It is acknowledged that there is evidence
that the area in which Starcher was sitting is high crime area.         However, mere
presence in a high crime area is not a sufficient basis to justify an investigative stop.
Brown v. Texas, 443 U.S. 47, 51–52, 99 S.Ct. 2637 (1979); Carter, 69 Ohio St.3d at
65. “The setting can inform the officer's judgment, but it does not make the act
criminal.     In order to detain an individual to investigate for crime, some nexus
between the individual and specific criminal conduct must reasonably exist and must
be articulated by the officer.” State v. Ferrante, 196 Ohio App.3d 113, 2011-Ohio-
4870, 962 N.E.2d 383, ¶ 26 (2d Dist.). Officer Kamerer merely described their
behavior that caused him to stop as sitting on a guardrail. Admittedly, Coil walked
away after Officer Kamerer asked if everything was okay. However, that action is not
a furtive gesture or suspicious.      In Wardlow, the act of fleeing was considered
suspicious because it occurred prior to the police contacting the individual; the
individual saw the police and then ran. Wardlow, 528 U .S. at 122. Here, the contact
was made and then Coil walked away. It is also acknowledged that Officer Kamerer
claimed that upon asking Coil and Starcher if everything was okay, they cursed at
him. However, this act also occurred after the initial contact was made.
          {¶20} Moreover, the most telling aspects of the encounter that lead to the
conclusion that it was not initially an investigatory stop is the first question Officer
Kamerer asked Starcher and Coil upon speaking to them and his admitted reason for
                                                                                     -8-

stopping. He indicated he stopped because of where they were sitting and the fact
that somebody could have gotten hurt. The question he asked them after he rolled
his window down was, “Is everything okay?” Tr. 76. The question he asked and the
stated reason for stopping indicates he did not stop because he had a reasonable
articulable suspicion of criminal activity.    Rather, both show that the officer was
engaging in a community caretaking function. He was attempting to ensure that no
one got hurt and/or that everything was alright with these two individuals.
           {¶21} Therefore, based on the above, we find that the trial court incorrectly
determined that the encounter between Starcher and Officer Kamerer began as an
investigatory stop.      As a matter of law, the initial encounter was a consensual
encounter; there is no evidence in the record of a reasonable articulable suspicion of
criminal activity to initiate the stop.
           {¶22} However, this does not mean the officer violated Starcher’s Fourth
Amendment rights when he stopped to ask if Starcher and Coil were alright. When
an officer is engaging in a community caretaking function, such as the one here, the
officer does not need a reasonable suspicion of criminal activity prior to approaching
the vehicle. State v. Shelley, 7th Dist. No. 12CO25, 2013-Ohio-1116, ¶ 23-25; State
v. Hlinovsky, 7th Dist. No. 09BE19, 2011-Ohio-6421, ¶ 26; State v. Perryman, 8th
Dist. No. 82965, 2004-Ohio-1120, ¶ 15.          The encounter is consensual; it is not
investigatory. Shelley; Hlinovsky; Perryman. Therefore, although Officer Kamerer
did not have a reasonable suspicion of criminal activity, based on the community
caretaking function he was authorized to stop and see if Starcher and Coil were
alright.
           {¶23} During consensual encounters, an officer is permitted to request
information, such as identifying information, from the person the officer is talking to.
United States v. Mendenhall, 446 U.S. 544, 555–556, 100 S.Ct. 1870 (1980).
However, because it is a consensual encounter, the individual remains free to
disregard the questions and walk away.          Id.   A consensual encounter remains
consensual even if police officers ask questions, ask to see the person's identification
or ask to search the person's belongings, provided “the police do not convey a
                                                                                       -9-

message that compliance with their requests is required.” Bostick at 435; Florida v.
Rodriguez, 469 U.S. 1, 4–6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247
(1984). Encounters that involve “the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance with the officer's
request might be compelled” are all examples of circumstances where consensual
encounters may become seizures. Mendenhall at 554–555.
       {¶24} That    said,   consensual     encounters    can   legitimately   turn   into
investigatory stops once a reasonable articulable suspicion of criminal activity
presents itself. State v. Rappley, 2d Dist. No. 11-CR-2693, 2013-Ohio-964, ¶ 20-31.
       {¶25} The problem we have with determining in this case if an illegal seizure
occurred or if the consensual encounter evolved into an investigatory stop is that to
do so we would have to resolve factual questions and evaluate the credibility of the
witnesses. The witnesses’ testimony in this case is in conflict and depending on what
portion or portions of each witness’ testimony is believed the result may be different.
       {¶26} Witness credibility and resolution of factual determination are best left
to the trial court and are afforded great deference. Mills, 62 Ohio St.3d at 366. The
trial court did not decide this case from the perspective that the encounter was a
consensual encounter. Rather, it decided it from the perspective that the initial stop
was an investigatory stop. Therefore, once the trial court determined that the stop
was an investigatory stop, Starcher was required to comply with Officer Kamerer’s
order to provide his identification. Failure to do so would be a violation of R.C.
2921.29(A)(1). That section provides that “no person who is in a public place shall
refuse to disclose the person's name, address, or date of birth, when requested by a
law enforcement officer who reasonably suspects * * * the person is committing, has
committed, or is about to commit a criminal offense.”           This is somewhat of a
codification of Terry because it makes it illegal to fail to give indentifying information
when the officer has a reasonable suspicion of criminal activity. Refusing to comply
with that request provided probable cause to arrest. Thus, in deciding the case in the
                                                                                    -10-

manner that it did, the trial court did not consider the witnesses’ credibility in
determining if the officer overstepped his authority during the consensual encounter
and an illegal seizure occurred, or if the officer acted within his authority and the
actions of Starcher and Coil changed the encounter from consensual to investigatory.
       {¶27} For the foregoing reasons, the judgment of the trial court regarding the
suppression ruling is reversed and vacated and the matter is remanded for further
proceedings. Upon remand, in considering the suppression motion, the trial court
must first determine which facts it finds credible. Then in applying those facts to the
law, the court should determine whether during the consensual encounter the officer
showed an exertion of authority that resulted in an illegal seizure, or if the actions of
Starcher and Coil changed the encounter from consensual to investigatory.



Waite, J., concurs.
DeGenaro, P.J., concurs.
