[Cite as State v. Roberts, 2020-Ohio-78.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
JOSHUA W. ROBERTS                             :       Case No. 2019-CA-00019
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2018-CR-00053




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     January 13, 2020




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

DARCY T. COOK                                         BRADLEY S. NICODEMUS
239 West Main Street                                  1409 West Market Street
Suite 101                                             Baltimore, OH 43105
Lancaster, OH 43130
Fairfield County, Case No. 2019-CA-00019                                                  2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Joshua W. Roberts, appeals the September 6, 2018

statement of facts and conclusions of law of the Court of Common Pleas of Fairfield

County, Ohio, denying his motion to suppress. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On February 1, 2018, the Fairfield County Grand Jury indicted appellant on

two counts of aggravated possession of drugs in violation of R.C. 2925.11, one count of

possessing dangerous drugs in violation of R.C. 4729.51, one count of possessing drug

paraphernalia in violation of R.C. 2925.14, and one count of driving under suspension in

violation of R.C. 4510.16. Said charges arose from an investigatory stop.

       {¶ 3} On April 16, 2018, appellant filed a motion to suppress, challenging the stop.

A hearing was held on July 26, 2018. At the conclusion of the hearing, the trial court

denied the motion. The trial court journalized its decision via statement of facts and

conclusions of law filed September 6, 2018.

       {¶ 4} On April 8, 2019, appellant pled no contest to the charges. By judgment

entry of sentence filed April 9, 2019 and two nunc pro tunc judgment entries of sentence

filed May 6 and 14, 2019, respectively, the trial court found appellant guilty and sentenced

him to an aggregate term of twenty-four months in prison, only eight months imposed.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I
Fairfield County, Case No. 2019-CA-00019                                                 3


      {¶ 6} "THE TRIAL COURT ERRED IN DETERMINING THE OFFICER HAD

SUFFICIENT REASONABLE ARTICULABLE SUSPICION TO EFFECTUATE AN

INVESTIGATORY TRAFFIC STOP."

                                             I

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

denying his motion to suppress. We disagree.

      {¶ 8} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed question

      of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

      797 N.E.2d 71, ¶ 8. In ruling on 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." Id.,

      citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

      appeal, we "must accept the trial court's findings of fact if they are supported

      by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

      19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

      "independently determine as a matter of law, without deference to the

      conclusion of the trial court, whether the facts satisfy the applicable legal

      standard." Id.
Fairfield County, Case No. 2019-CA-00019                                                   4


       {¶ 9} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

       {¶ 10} In his motion to suppress and in his appellate brief, appellant argues the

officers did not have probable cause to conduct an investigatory stop.

       {¶ 11} In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the

United States Supreme Court determined that "a police officer may in appropriate

circumstances and in an appropriate manner approach a person for purposes of

investigating possible criminal behavior even though there is no probable cause to make

an arrest." However, for the propriety of a brief investigatory stop pursuant to Terry, the

police officer involved "must be able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion." Id.

at 21. 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. Freeman, 64 Ohio

St.2d 291, 414 N.E.2d 1044 (1980).

       {¶ 12} Reynoldsburg Police Officer Daniel Downing testified at the suppression

hearing. He and his partner were working the overnight shift on January 24, 2018,

patrolling the Taylor Square shopping area in the city of Reynoldsburg in Fairfield County.

T. at 14-17, 46. The officers were patrolling the area for "preventative patrol" "due to the

high incidence of thefts and narcotic use in the area."        T. at 19.   Officer Downing

personally has dealt with "thefts of push-outs coming out the emergency exits from
Fairfield County, Case No. 2019-CA-00019                                                   5


Walmart." Id. He explained "a person will load up their cart in Walmart and they'll kind of

stage over here inside. A car will run back here and wait for them. As soon as they pop

out the side door, the car will pull up. They'll load as much stuff as they can and they'll

just take off." T. at 19-20. Officer Downing continued (T. at 20):



              We had quite a few of those going on. Actually intercepted a few.

       Also intercepted two gentlemen that had backed in right here to the Walmart

       tire and battery cages. And we actually jumped them a little early and they

       didn't even get a chance to cut the locks off with their big bolt cutters.

              Pallet thefts recently as well in the last probably six to eight months

       or even sooner prior to January. People are stealing pallets at the back of

       Walmart here.

              So it's just kind of a - - I don't know what you call it, not an epidemic,

       but there's a lot of thefts going on at night from the buildings on the sides

       and the back.



       {¶ 13} Officer Downing explained in the city of Reynoldsburg, "the highest number

of felony drug cases that are being produced are from the Taylor Square area." T. at 21.

The Walmart and Sam's Club are specific areas. Id. The two stores are connected by a

"little drive" with a "big wooded area" in between. T. at 16-17, 18. Many times the

individuals are backed in by the tree line and/or by the tire cages. T. at 21-22.

       {¶ 14} At about 2:57 a.m. on the morning of January 25, 2018, the officers

observed a white SUV "backed into the woodline right here at the side of Sam's Club
Fairfield County, Case No. 2019-CA-00019                                                    6


where their tire center is, the tire cage." T. at 18; State's Exhibit 1. Sam's Club was not

open. Id. Officer Downing admitted it was perfectly legal for the vehicle to be parked

there at that time. T. at 71. The plan was to "cut off the headlights and wait" for the

vehicle's occupants to "get out and probably break into the tire cage." T. at 23. Instead,

Officer Downing assumed they were spotted and the SUV started to move down an

access road perpendicular to the officers. Id; State's Exhibit 2. The driver moved from

the Sam's Club parking lot to the Walmart parking lot and at that time, Officer Downing

initiated a traffic stop with his lights. T. at 24, 75. Officer Downing stated he did not

observe any traffic violations as the stop was an investigatory stop. T. at 25, 91. He

explained "I had reasonable suspicion that criminal activity was afoot due to the high

activity of thefts in the area. I suspected that a theft had occurred or was about to occur

from the tire cage at Sam's Club, being a closed business at 3:00 o'clock in the morning."

T. at 25-26. On cross-examination, Officer Downing stated the investigatory stop was

based on more than a "hunch" as it was based on "the amount of thefts that have been

going around there with cars backed in by the battery cages, behind the buildings and the

sides." T. at 76, 91. He found the white SUV to be suspicious because "[i]t's very unusual

to see an occupied vehicle at 3:00 o'clock in the morning over by the cages over there."

T. at 82.

       {¶ 15} Officer Downing's partner approached the vehicle and started interviewing

the occupants. T. at 35-36. The driver of the vehicle was appellant. T. at 59-60. Officer

Downing approached the vehicle and observed a "large torch lighter" on the center

console and "a small piece of cellophane or baggie that looked like the driver was trying

to kick over and conceal with his foot." T. at 36, 38. A check of appellant's driver's license
Fairfield County, Case No. 2019-CA-00019                                                  7


established his license was under suspension. T. at 34, 49, 51. The stop continued and

appellant was subsequently charged as stated above. Because appellant on appeal is

only challenging the officers' sufficient reasonable articulable suspicion for the stop, the

remaining facts are superfluous.

       {¶ 16} At the conclusion of the suppression hearing, the court denied the motion,

finding "the stop was sufficient because the vehicle was parked in a high crime area, it

was late at night, 3:00 a.m. The vehicle was more specifically parked near Sam's Club,

its fenced-in tire area." T. at 98. The trial court further stated (T. at 99):



              Also, it's noteworthy to add to the suspicion, as Officer Downing's

       police cruiser approached, started getting closer to where this vehicle was

       parked, the vehicle suddenly left the parking spot and proceeded to drive

       off. Granted, it could have driven in a different direction away from the

       officer, but the fact that it moved at the same time that Officer Downing

       approached seemed suspicious to Officer Downing.

              And so when you add all of those things together, the Court is finding

       that the stop was justifiable.



       {¶ 17} In its statement of facts and conclusions of law filed September 6, 2018,

the trial court journalized its decision, finding the officers had reasonable suspicion to

initiate the investigatory stop. The trial court noted the evidence established:
Fairfield County, Case No. 2019-CA-00019                                                 8


              (1) the Taylor Square shopping center, specifically the Walmart and

      Sam's Club stores, had fallen victim to multiple theft offenses during the

      time preceding the Defendant's arrest; (2) the Defendant was parked in a

      similar way to other vehicles which had been involved in theft offenses

      involving Walmart and Sam's Club; (3) the Defendant was parked in the

      Sam's Club lot at a time that the store had been long closed; and (4) when

      the Officers began approaching the Defendant's vehicle the Defendant

      pulled away from the spot in which he was parked. The Court finds that

      Officers Downing and Scalmato had established a set of reasonable,

      articulable facts which would lead to a reasonable, articulable suspicion that

      the Defendant had been, was, or was about to engage in criminal activity

      such that their investigative stop of the Defendant was warranted in this

      situation.



      {¶ 18} As noted by the Supreme Court of Ohio in State v. Hairston, 156 Ohio St.3d

363, 2019-Ohio-1622, ¶12: "An officer's experience with criminal activity in an area and

an area's reputation for criminal activity are factors we have found relevant to the

reasonable-suspicion analysis. * * * Further, the stop occurred after dark—another

circumstance we have found to be of some significance in the reasonable-suspicion

analysis." (Citations omitted.) The facts must be "taken together and viewed in relation

to each other." Id. at ¶13. As noted by this court in State v. Edwards, 5th Dist. Stark No.

2006-CA-00107, 2007-Ohio-705, ¶30, citing State v. Bobo, 37 Ohio St.3d 177, 524

N.E.2d 489:
Fairfield County, Case No. 2019-CA-00019                                               9




              The Ohio Supreme Court has identified certain specific and

       articulable facts that would justify an investigatory stop by way of

       reasonable suspicion, factors which fall into four general categories: (1)

       location; (2) the officer's experience, training or knowledge; (3) the

       suspect's conduct or appearance; and (4) the surrounding circumstances.



      {¶ 19} In considering the totality of the circumstances through the eyes of a

reasonable police officer, we cannot say the trial court erred in finding the stop to be

warranted. Officer Downing had sixteen years of law enforcement experience and clearly

testified to the trouble he personally knew was occurring in the parking lots at Taylor

Square, specifically around the tree line by the Walmart and Sam's Club. This particular

area was a targeted patrol area for thefts and drugs and was his assigned area for at

least a year. The subject vehicle was observed parked, backed-in, by the tree line at

approximately 3:00 a.m. when Sam's Club was closed. This parking position is a common

"quick get-away type deal" so the occupants can keep an eye out for the police. T. at 26.

After the police observed the vehicle, the vehicle pulled away. Based upon his training

and experience, Officer Downing testified appellant's behavior was suspicious; either a

theft had occurred or was about to occur. Based upon all of the circumstances taken as

a whole and viewed in relation to each other, Officer Downing articulated a reasonable

suspicion that appellant had engaged or was about to engage in criminal activity

warranting the stop.
Fairfield County, Case No. 2019-CA-00019                                                10


      {¶ 20} Upon review, we find the trial court did not err in denying appellant's motion

to suppress.

      {¶ 21} The sole assignment of error is denied.

      {¶ 22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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