[Cite as State v. Johnson, 2013-Ohio-4729.]



               IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                             :

        Plaintiff-Appellee                                :            C.A. CASE NO.        2012 CA
                                                                       22

v.                                                        :            T.C. NO.   12CR200

ISHMAIL A. JOHNSON                                        :            (Criminal appeal from
                                                                       Common Pleas Court)
        Defendant-Appellant                    :

                                                          :

                                              ..........

                                              OPINION

                         Rendered on the           25th       day of       October     , 2013.

                                              ..........

ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 West
Main Street, Safety Bldg., Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

                 {¶ 1} After the trial court overruled his motion to suppress evidence,

Ishmail A. Johnson pled no contest to carrying a concealed weapon, receiving stolen

property, and having weapons while under disability. He was found guilty on each count

and was sentenced to an aggregate term of 18 months in prison. Johnson appeals from his

convictions.
                                                                                                                                  2

         {¶ 2}         For the following reasons, the judgment of the trial court will be affirmed.

         {¶ 3}         The State’s evidence at the suppression hearing established the following

facts, as testified to by Sergeant Jeff Kunkleman of the Troy Police Department.

         {¶ 4}         In the early morning hours of May 6, 2012, the Troy police received a

report of a hit-skip accident involving a pedestrian near the Dollar General store. The

accident had been followed by an assault on the pedestrian, Mary Hartwick, by a female

occupant of the vehicle. During their investigation of the accident, the police found a large

earring with the word “Sexy” written into the design. They suspected that the earring might

have belonged to Hartwick’s assailant.

         {¶ 5}         As part of his investigation of the accident and assault, Officers Long and

Kunkleman went to the Upper Valley Medical Center (UVMC), where they encountered

Cortezissa Johnson and the defendant, Ishmail Johnson.                                       Cortezissa 1 matched the

description of the woman who had assaulted Hartwick, and she was wearing a single earring

that matched the one found at the scene. Cortezissa also had a large “knot” on her head.

When she was questioned by Officer Long, Cortezissa denied any involvement in the

accident or assault and said that the knot on her head had been caused by an altercation with

Johnson the previous day. The officers believed that the injury looked like it had been

sustained more recently. However, Cortezissa suggested that she had lost her earring near

the Dollar General store when Johnson had forced her into a vehicle at that location.

Cortezissa was arrested for assaulting Hartwick.


             1
               In the interest of clarity, we will refer to the defendant as “Johnson” and to his girlfriend, Cortezissa Johnson, as
   “Cortezissa.”
                                                                                           3

       {¶ 6}     During questioning at the police station, Cortezissa admitted that the

domestic violence and injury to her head had occurred that night, rather than the previous

night. She stated that Johnson had dragged her into a friend’s vehicle more than once

during the course of the evening.

       {¶ 7}      After talking with Cortezissa at the police station, Sgt. Kunkleman went to

“try to talk” to Johnson. While driving to Johnson’s home around 6:30 a.m., Kunkleman

saw Johnson walking along West Main Street near a Family Video store. It was daylight by

this time. Kunkleman pulled his cruiser to the curb and asked Johnson (through an open

window) to come over to the car to talk about the hit-skip accident and about the alleged

domestic violence. At this point, Kunkleman viewed the contact with Johnson, with whom

he had “a pretty good rapport,” as consensual.

       {¶ 8}     Although Johnson initially said “Okay” to Kunkleman’s request that they

talk, he almost immediately began to back away from the cruiser, then claimed he had to go

to his apartment before speaking with Kunkleman. Johnson turned away from the cruiser

and Kunkleman.       According to Kunkleman, Johnson was “more hesitant than [in

Kunkleman’s] past dealings with him,” and Kunkleman “knew things were going bad at that

point.” Kunkleman observed Johnson “doing something in his waistband area” or in his

sweatshirt pocket, but because Johnson was facing away from Kunkleman by this time,

Kunkleman could not see what Johnson was doing. Kunkleman’s “training told [him] that

* * * there was something bad happening.”

       {¶ 9}     Kunkleman called for backup.         Kunkleman exited his cruiser and

repeatedly instructed Johnson to stop and to “get his hands out.” Kunkleman cut Johnson
                                                                                               4

off, got Johnson’s attention by showing his taser, and ordered Johnson to the ground.

Johnson bent over but did not get on the ground; Kunkleman said it was “like [Johnson] was

trying to decide what he was going to do.” When Kunkleman did get Johnson to the

ground, Johnson initially resisted being handcuffed. Kunkleman asked Johnson “what he

had,” and Johnson responded that there was a gun in his pants. Johnson asked Kunkleman

to get the gun out, but Kunkleman held Johnson’s hands away from Johnson’s waistband

until additional officers arrived.    Another officer subsequently removed a loaded .380

semi-automatic from Johnson’s underwear.

       {¶ 10}    The officers discovered that the gun had been stolen. When Johnson was

informed of this fact, he initially refused to talk with the officers at all. Later, he agreed to

talk about the hit-skip accident and the domestic violence, but not about the gun.

       {¶ 11}    On June 7, 2012, Johnson was indicted on one count each of carrying

concealed weapons, receiving stolen property, and having weapons while under disability.

He pled not guilty and filed a motion to suppress evidence, in which he argued that Sergeant

Kunkleman did not have legal authority to detain him or to threaten to use force against him

“in order to obtain a witness statement.” Johnson argued that the evidence obtained as a

result of his detention and “subsequent pat down” should be suppressed. The trial court

overruled his motion.

       {¶ 12}    Johnson changed his plea to no contest and was found guilty on each count.

 He was sentenced to 12 months of imprisonment for carrying a concealed weapon, to 12

months for receiving stolen property, and to 18 months for having weapons while under

disability. The trial court ordered that his sentences run concurrently to each other, but
                                                                                               5

consecutively to a sentence in another case.

       {¶ 13}    Johnson raises one assignment of error on appeal.

                THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

       REFUSING TO SUPPRESS ITEMS SEIZED PER AN ILLEGAL AND

       UNCONSTITUTIONAL SEARCH.

       {¶ 14}    Johnson claims that he terminated the consensual encounter with the officer

by walking away and indicating that he did not want to talk. He asserts that the officer had

no reasonable basis to detain him beyond that point.

       {¶ 15}     “[The] [a]ppellate standard of review for 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 legal

standard.” State v. Brock, 2d Dist. Montgomery No. 23665, 2010-Ohio-5885, ¶ 12, quoting

State v. Burnside, 100 Ohio St.3d 152, 154-55, 2003-Ohio-5372, 797 N.E.2d 71.

       {¶ 16}    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).         Under Terry, police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin,
                                                                                            6

2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry. We determine the

existence of reasonable suspicion by evaluating the totality of the circumstances, considering

those circumstances “through the eyes of the reasonable and prudent police officer on the

scene who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No.

19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565

N.E.2d 1271 (1991).

       {¶ 17}     The trial court relied on Terry’s holding in denying Johnson’s motion to

suppress. The court concluded that the officer had clearly acted within his authority to stop

and question Johnson, who “was potentially a witness to the assault/hit skip, but he was also

the named assailant in domestic violence allegations” made by Cortezissa. The court found

that Johnson’s “unusual behavior” and “furtive movements,” viewed in the context of the

events throughout the evening and in the eyes of a seasoned police officer, justified the

officer’s response, and that the stop was reasonable under Terry.

{¶ 18} The parties agree that the officer was authorized to approach Johnson and inquire

whether he would answer any questions about the events of the evening that were under

investigation. The central question before the trial court was whether Johnson’s “unusual”

behavior in response to this request justified the officer’s concern that Johnson posed a

danger to him or was then engaged in illegal activity.

       {¶ 19}    Although the officer did not expressly testify that he had been in fear of

Johnson, his concern could reasonably be inferred from the fact that he knew Johnson, called

for backup, believed “things were going bad,” repeatedly ordered Johnson to show his

hands, and held Johnson’s hands away from his waistband while waiting for backup to
                                                                                           7

arrive. The trial court reasonably concluded that Johnson’s manner of backing away from

the officer, which included trying to remove something from his waistband, and his failure to

comply with the officer’s requests that he stop and/or show his hands justified the officer’s

concern that Johnson may pose a danger to the officer.

       {¶ 20}      We agree that merely changing one’s mind about talking to an officer,

walking away, or acting in an “unusual” fashion would not justify a Terry stop or patdown.

However, under the circumstances presented, we agree with the trial court’s conclusion that

the officer was justified in detaining Johnson for further investigation, that Johnson’s

detention did not violate his Fourth Amendment rights, and that the evidence need not have

been suppressed.

       {¶ 21}      The assignment of error is overruled.

       {¶ 22}      The judgment of the trial court will be affirmed.

                                           ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Robert E. Long III
J. Allen Wilmes
Hon. Christopher Gee
