[Cite as State v. Goines, 2015-Ohio-3505.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

STATE OF OHIO                                      :
                                                   :
        Plaintiff-Appellee                         :   C.A. CASE NO. 26532
                                                   :
v.                                                 :   T.C. NO. 14CR1996
                                                   :
DELONTAE GOINES                                    :   (Criminal appeal from
                                                   :    Common Pleas Court)
        Defendant-Appellant                        :
                                                   :

                                              ...........

                                             OPINION

                 Rendered on the ___28th_ _ day of ____August____, 2015.

                                              ...........

MICHELE D. PHIPPS, Atty, Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 N. Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                             .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Delontae Goines appeals his conviction and sentence

for one count of improper handling of a firearm, in violation of R.C. 2923.16(B), a felony of

the fourth degree. Goines filed a timely notice of appeal with this Court on December 22,

2014.
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         {¶ 2} The incident which forms the basis for the instant appeal occurred on June

14, 2014, when Dayton Police Officers James Mollohan and William Gross were working

an overtime shift from 4:00 p.m. to 8:00 p.m. at the Summit Square Apartments in Dayton,

Ohio. The reason for the officers’ presence at the apartment complex was to provide

surveillance and security and to identify individuals who had been trespassed from the

property and remove them. Officers Mollohan and Gross were wearing the uniform of

the day and were in separate marked police cruisers. Both officers were posted at the

entrance to the apartment complex, which was the only source of ingress and egress from

the property.

         {¶ 3} At approximately 6:00 p.m., the officers observed an individual driving a

silver Buick enter the apartment complex and drive past them. The officers ran the

license plate number and determined that the owner of the vehicle was named Delontae

Reese. Reese was described as a black male, approximately six feet tall, and weighing

180 pounds. The officers also discovered that Reese had been trespassed off the

grounds of the apartment complex in May of 2014. Based on the information they

received, the officers began following the silver Buick. Once they got close enough, the

officers observed that the driver of the vehicle matched the physical description of Reese

that they had received from dispatch. Officer Mollohan testified that he was, however,

unable to discern the driver’s height because he was sitting in the driver’s seat of the

Buick.

         {¶ 4} Shortly thereafter, the Buick stopped, and the officers drove by the vehicle in

their cruisers. They turned around, drove back, and observed the driver of the Buick

talking to some people at the apartment complex. As the officers approached in their
                                                                                        -3-
cruisers, the driver reentered the Buick and began to drive back towards the exit to the

apartment complex. The officers stopped the Buick and made contact with the driver.

Officer Mollohan immediately asked the driver if he was Delontae Reese. The driver

responded no and stated that his name was Delontae Goines.                When asked for

identification, Goines stated that he did not have any. Although ultimately immaterial to

the instant appeal, the officers’ testimony diverges slightly at this point. Specifically,

Officer Mollohan testified that upon becoming aware that Goines did not have any

identification, he was removed from the Buick and placed in the back of a cruiser while his

identification was checked.     Conversely, Officer Gross testified that Goines was

permitted to remain in the Buick while they checked his identification.

       {¶ 5} Despite their differing recollections in this regard, the officers checked the

identifying information the driver provided and were informed that he, Goines, was driving

with a suspended license. Goines was placed under arrest for driving under suspension,

and the vehicle was towed because there was no licensed driver present to take the

vehicle. Prior to the Buick being towed, the officers inventoried the contents of the

vehicle pursuant to the tow policy of the Dayton Police Department. During the inventory

search of the vehicle, the officers found two handguns in the glove compartment. One of

the handguns was a black semi-automatic with a loaded magazine lying directly next to it.

       {¶ 6} On August 21, 2014, Goines was indicted for one count of improper handling

of a firearm in a motor vehicle. At his arraignment on September 30, 2014, Goines stood

mute, and the trial court entered a plea of not guilty on his behalf. Thereafter, Goines

filed a motion to suppress the semi-automatic handgun seized during the inventory

search of the vehicle, as well as any statements made by Goines to the police after being
                                                                                          -4-
stopped at the apartment complex. A hearing was held on Goines’ motion to suppress

on November 6, 2014. At the conclusion of the hearing, the trial court overruled Goines’

motion to suppress from the bench. The trial court issued an entry overruling Goines’

motion on November 14, 2014.

       {¶ 7} Goines subsequently pled no contest to improper handling of a firearm on

November 18, 2014. On December 16, 2014, the trial court sentenced him to community

control sanctions not to exceed five years.

       {¶ 8} It is from this judgment that Goines now appeals.

       {¶ 9} Goines’ sole assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS.”

       {¶ 11} In his sole assignment, Goines contends that the trial court erred when it

overruled his motion to suppress.        Specifically, Goines argues that the evidence

adduced at the suppression hearing established that Officers Mollohan and Gross did not

have a reasonable suspicion to stop the vehicle he was driving because he did not

commit a traffic violation. Goines further asserts that even if the stop was reasonable, it

should have ended once the officers removed him from the vehicle and observed that he

was three inches shorter than the physical description provided of Delontae Reese, the

registered owner of the vehicle.

       {¶ 12} Initially, we note that the only witnesses who testified at the hearing held on

Goines’ motion to suppress were Officers Mollohan and Gross. The trial court found

their testimony to be credible and adopted it as its factual findings.

       {¶ 13} As this Court has previously noted:
                                                                                         -5-
             In ruling on a motion to suppress, “the trial court assumes the role of

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

      fact and evaluate the credibility of the witnesses.” State v. Retherford, 93

      Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994), citing State v. Clay,

      34 Ohio St.2d 250, 298 N.E.2d 137 (1972). Accordingly, when we review

      suppression decisions, “we are bound to accept the trial court's findings of

      fact if they are supported by competent, credible evidence. Accepting those

      facts as true, we must independently determine as a matter of law, without

      deference to the trial court's conclusion, whether they meet the applicable

      legal standard.” Id.; State v. Shipp, 2d Dist. Montgomery No. 24933,

      2012–Ohio–6189, ¶ 11.

      State v. Mobley, 2d Dist. Montgomery No. 26044, 2014-Ohio-4410, ¶ 11.

      {¶ 14} “The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). Not all interactions between citizens and the police,

however, implicate the protections of the Fourth Amendment. State v. Garrison, 2d Dist.

Montgomery No. 24857, 2012-Ohio-3846, ¶ 15.

      {¶ 15} A police officer may stop and detain a suspect when the officer has a

reasonable and articulable suspicion that the suspect has committed a criminal offense.

State v. Regulus, 2013-Ohio-507, 986 N.E.2d 1105, ¶ 10 (2d Dist.), citing Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed 2d 889 (1968). A court determines the existence of

reasonable suspicion by evaluating the “totality of the circumstances.” State v. Love, 2d

Dist. Montgomery No. 23902, 2011-Ohio-1287, ¶ 18. To evaluate the totality of the
                                                                                            -6-
circumstances, the court must consider the individualized facts “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 21.

       {¶ 16} The law recognizes three types of police-citizen interactions: 1) a

consensual encounter, 2) a brief investigatory stop or detention, and 3) an arrest. State v.

Jones, 188 Ohio App. 3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 13 (10th Dist.).

       {¶ 17} Investigatory detention, often referred to as a Terry stop, allows an officer to

briefly stop and temporarily detain individuals in order to investigate possible criminal

activity. State v. Strozier, 172 Ohio App. 3d 780, 2007-Ohio-4575, 876 N.E.2d 1304 (2d

Dist.), citing Terry v. Ohio. An investigatory stop does not constitute an arrest or place

the suspect in custody. State v. Jones at ¶ 16. It is well established that “[a]n individual is

subject to an investigatory detention when, in view of all the circumstances surrounding

the incident, by means of physical force or show of authority, a reasonable person would

have believed that he was not free to leave or is compelled to respond to questions.” State

v. Love, 2d Dist. Montgomery No. 23902, 2011-Ohio-1287, ¶ 18, quoting In re D. W., 184

Ohio App.3d 627, 2009-Ohio-5406, 921 N.E.2d 1114, ¶ 13-15 (2d Dist.).

       {¶ 18} During a brief investigatory stop, without placing the suspect in custody or

under arrest, an officer is entitled to ask questions to confirm his suspicions that criminal

activity occurred. During a Terry stop, an officer can ask for identification or sufficient

information to write a citation or to run a background check for outstanding warrants, often

called a “field investigation”.   State v. Wortham, 145 Ohio App. 3d 126, 761 N.E. 2d

1151 (2d Dist. 2001). See also State v. Harrison, 2d Dist. Montgomery No. 25128,

2013-Ohio-1235.
                                                                                             -7-
       {¶ 19} In the instant case, Officers Mollohan and Gross had a reasonable

suspicion that the individual they observed driving the Buick had previously been

criminally trespassed from the apartment complex. Upon checking the license plate

number of the Buick, Officer Mollohan learned that the vehicle was registered to Delontae

Reese, a thin black male, approximately six feet tall, and weighing approximately 180

pounds. Officer Mollohan testified that he was also aware that Delontae Reese had

been trespassed from the apartment complex in May of 2014. Officer Mollohan testified

that he was not provided a photograph of Reese when he checked the license plate

number.

       {¶ 20} When the Buick registered to Reese passed his cruiser, Officer Mollohan

testified that he observed that the driver was a young black male with a thin build. Officer

Mollohan testified that he could not tell exactly how tall the driver was, but he testified that

the driver looked to be of average height. Based on his observations, Officer Mollohan

clearly had a reasonable suspicion to stop the vehicle and make contact with the driver in

order to determine whether he was Delontae Reese. Officer Mollohan testified that after

being stopped, the driver was unable to provide identification but identified himself

Delontae Goines. Thereafter, Officer Mollohan removed Goines from the vehicle and

placed him in the back of a police cruiser while awaiting information regarding his identity.

       {¶ 21} Goines argues that the investigative stop should have been concluded

when he exited the Buick because he is three inches shorter than Reese, who was

described as six feet tall. Goines asserts that upon observing the height discrepancy

between himself and Reese, Officer Mollohan’s “reasonable suspicion dissipated,” and

the stop should have been immediately concluded. In support of his argument, Goines
                                                                                             -8-
relies on State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984), wherein the police

stopped the defendant for suspected failure to display license plates. Upon approaching

the vehicle, the officer observed that a license plate was properly displayed.             The

Chatton court subsequently held that the police officer's legitimate need to stop the

defendant ended when a valid license plate was observed, so that any further intrusion

upon his protected liberty interests was unwarranted and unwanted. Chatton, however,

is distinguishable from the instant case.

       {¶ 22} We acknowledge that Officer Mollohan’s testimony was different than that

of Officer Gross regarding when Goines was ordered to exit the Buick. However, the

police stopped Goines because he was driving a vehicle that was registered to an

individual who had been previously trespassed off the property. The police observed

that Goines also met the general description of Reese. Upon being stopped, the driver

told the police that he was not Reese, but that his name was Delontae Goines.

Curiously, Reese and Goines even have the same first name. When Goines indicated

that he did not possess identification, the police were clearly authorized to make further

inquiry in order to determine his identity and to make sure that he was not Reese. A

height differential of just three or four inches is inconclusive where otherwise the driver fits

the general description of Reese. We also note that the discrepancy in the officers’

testimony regarding when Goines was removed from the motor vehicle is inconsequential

to our analysis. The officers were permitted to remove Goines from his vehicle in order

to determine his identity. Upon discovering that Goines’ license was under suspension,

the police were authorized to arrest him and perform an inventory search prior to the

vehicle being towed. Thus, the trial court did not err when it overruled Goines’ motion to
                                                                                   -9-
suppress.

       {¶ 23} Goines’ sole assignment of error is overruled.

       {¶ 24} Goines’ sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                      ..........

FROELICH, P.J. and FAIN, J., concur.

Copies mailed to:

Michele D. Phipps
Jay A. Adams
Hon. Mary Katherine Huffman
