[Cite as State v. Harbin, 2020-Ohio-4187.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :     JUDGES:
                                             :     Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :     Hon. John W. Wise, J.
                                             :     Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JUSTIN HARBIN                                :     Case No. 2020 AP 02 0003
                                             :
        Defendant - Appellant                :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Tuscarawas County
                                                   Court of Common Pleas, Case No.
                                                   2019 CR 05 0215



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT:                                  August 21, 2020




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MICHAEL J. ERNEST                                  MARK A. PERLAKY
Assistant Prosecuting Attorney                     Assistant Public Defender
Tuscarawas County                                  Tuscarawas County Public Defender
125 East High Avenue                               153 N. Broadway St.
New Philadelphia, Ohio 44663                       New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2020 AP 02 0003                                         2


Baldwin, J.

       {¶1}   Justin T. Harbin appeals the decision of the Tuscarawas Court of Common

Pleas denying his motion to suppress the evidence of items removed from a vehicle.

Appellee is the State of Ohio.

                         STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant, Justin T. Harbin, was indicted for Aggravated Possession of

Drugs in violation of R.C. 2925.11(A) and Illegal Use or Possession of Paraphernalia in

violation of R.C. 2925.14(C). Harbin filed a Motion to Suppress arguing that law

enforcement officers did not have reasonable, articulable suspicion to stop or detain him

without a warrant, and that an inventory search of his vehicle was improper. The trial

court conducted a hearing on the motion and the testimony of Deputy Cole Morris and

Sergeant Travis Stocker was offered by the appellee.

       {¶3}   On January 7, 2019 at approximately 5:00 AM, Deputy Cole Morris and

Sergeant Travis Stocker of the Tuscarawas County Sheriff's Office responded to a report

of an alleged home invasion and assault. The dispatcher provided a description of the

alleged assailant as a male in a dark sweatshirt and beanie/ski cap. When the deputies

arrived at the home, they were met by the purported victim and witnesses. The victim

was bleeding from a head wound and was difficult to comprehend. Sgt. Stocker described

the victim as "talking out of his mind" and not "making a whole lot of sense." The witnesses

provided a description of the assailant as a male in dark clothing wearing a dark ski cap,

but their statements regarding the incident were inconsistent. After being questioned the

victim became frustrated, stated he would not pursue the matter any further and asked

the deputies to leave.
Tuscarawas County, Case No. 2020 AP 02 0003                                        3


       {¶4}   As the deputies left the home, they observed a vehicle in a storage unit

parking lot within fifty yards of the home, stationary but with the engine running. The

deputies saw that the occupant of the vehicle was wearing clothing that matched the

description of the assailant given to the officers by the witnesses, so they decided to

approach the driver. Deputy Morris drove into the parking lot and the vehicle began to

move, so he activated his overhead lights to stop the vehicle. After identifying the driver

as Justin Harbin, Deputy Morris discovered he was subject to an arrest warrant. The

deputy removed him from his vehicle, placed him under arrest and in the back of the

cruiser.

       {¶5}   During an inventory search of Harbin’s vehicle, Sergeant Stocker

discovered a pipe and a substance later identified as methamphetamine.

       {¶6}   Harbin was indicted for Aggravated Possession of Drugs in violation of R.C.

2925.11(A) and Illegal Use or Possession of Paraphernalia in violation of R.C.

2925.14(C). Harbin pleaded not guilty and filed a motion to suppress the evidence

recovered from the vehicle, contending that the stop was made without reasonable and

articulable suspicion that Harbin had committed a crime.

       {¶7}   The trial court conducted an oral hearing, considered post-hearing briefs

and denied the motion to suppress finding that:

       the encounter with Defendant by the Law Enforcement Agents of the

       Tuscarawas County, Ohio Sheriff’s Office on1/7/2019 which underpins the

       Indictment in this case was consensual and predicated upon reasonable,

       articulable suspicion of the Defendant having engaged in criminal

       conduct***.
Tuscarawas County, Case No. 2020 AP 02 0003                                          4


       {¶8}   Harbin changed his plea to no contest, the plea was accepted and the trial

court found him guilty. He was sentenced to one year of unsupervised community control

and seventy five hours of community service. The sentence was suspended pending the

resolution of this appeal.

       {¶9}   Harbin filed a timely appeal and submitted one assignment of error:

       {¶10} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING

APPELLANT'S MOTION TO SUPPRESS EVIDENCE IN THE CASE BECAUSE THE

CITING OFFICER DID NOT HAVE REASONABLE SUSPICION OR PROBABLE CAUSE

TO STOP APPELLANT AND/OR HIS VEHICLE.”

                                STANDARD OF REVIEW

       {¶11} 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.

When ruling on a motion to suppress, the trial court assumes the role of trier of fact and

is in the best position to resolve questions of fact and to evaluate witness credibility. See

State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v. Fanning, 1 Ohio

St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial

court's factual findings if competent, credible evidence exists to support those findings.

See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th

Dist. 1996). However, once this Court has accepted those facts as true, it must

independently determine as a matter of law whether the trial court met the applicable legal

standard. See Burnside, supra, quoting State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122
Tuscarawas County, Case No. 2020 AP 02 0003                                            5


S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings

of fact is subject to a de novo standard of review Ornelas, supra. State v. Johns, 5th Dist.

No. 19-CA-5, 2019-Ohio-4269, 146 N.E.3d 1286, ¶ 11.

       {¶12} Harbin contends that the trial court erred by finding that Harbin’s encounter

with the deputies was consensual and the facts available to the deputies when the stop

was made did not support a conclusion that the deputies had reasonable, articulable

suspicion that a crime had occurred. We review the trial court’s fact finding for abuse of

discretion and the application of the law to those facts de novo.

                                         ANALYSIS

       {¶13} Harbin focuses his argument on the trial court’s comment that the encounter

between he and the deputies was consensual and ignores the trial court’s additional

conclusion that it was “predicated upon reasonable, articulable suspicion of the Defendant

having engaged in criminal conduct ***.” While the facts support a conclusion that the

deputies approach and conversation with Harbin was not consensual, even if we were to

conclude that the trial court erred in that respect, we must accord weight to the trial court

finding that the deputy had a reasonable articulable suspicion that Harbin had engaged

in criminal activity.

       {¶14} Interactions between citizens and law enforcement officers can fall within

three distinct categories: a consensual encounter, an investigative detention, and an

arrest. State v. Taylor, 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60(1995).

       {¶15} “Encounters are consensual where the police merely approach a person in

a public place, engage the person in conversation, request information, and the person
Tuscarawas County, Case No. 2020 AP 02 0003                                        6


is free not to answer and walk away.” Taylor at 747 quoting United States v. Mendenhall,

446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The Fourth Amendment

guarantees are not implicated in such an encounter unless the police officer has by either

physical force or show of authority restrained the person's liberty so that a reasonable

person would not feel free to decline the officer's requests or otherwise terminate the

encounter.” Taylor, supra at 747-748.

      {¶16} The trial court found that the encounter was consensual, but after reviewing

the transcript of the hearing, we find the record reflects more than a consensual

encounter. Deputy Cole and Morris stopped Harbin because they believed he matched

the description of the assailant provided by the victim and witnesses. When Deputy

Morris pulled into the parking lot where they saw Harbin in a vehicle, Harbin began to

move and Deputy Morris “activated [his] overhead lights to stop the vehicle to check on

the driver.” (Emphasis added.) During cross examination Deputy Morris was asked about

activating the lights on his cruiser and he conceded that “I believe I did activate them to

stop the vehicle” and that Harbin was not free to leave. (Emphasis added.)         Deputy

Morris told Harbin that he was stopped because the deputy was investigating the home

invasion nearby.

      {¶17} The deputy’s show of authority, illuminating his overhead lights, with the

goal of bringing Harbin to a halt so that he could question Harbin regarding the home

invasion is not a consensual encounter. While the record does not reveal Harbin’s

subjective response, both deputies clearly intended to stop Harbin to question him in

relation to the home invasion that had been reported. We find the trial court’s conclusion

that this encounter was consensual unsupported by the record, but that does not end our
Tuscarawas County, Case No. 2020 AP 02 0003                                          7


analysis. The trial court also held that the encounter was “predicated upon reasonable,

articulable suspicion of the Defendant having engaged in criminal conduct” more

commonly described as an investigatory or “Terry” stop.

       {¶18} 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 not 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. This “reasonable suspicion” constitutes something less than probable cause. State

v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15.

       {¶19} An investigatory stop “must be viewed in the light of the totality of the

surrounding circumstances” presented to the police officer, “who must react to events as

they unfold.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph

one of the syllabus; State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

The officer “must be able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion” Terry, supra

at 21, but the officer need not provide proof beyond a reasonable doubt that the

defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.

Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25.

       {¶20} We find the specific and articulable facts in this case and the rational

inferences to be drawn from them warrant the intrusion. The deputies responded to
Tuscarawas County, Case No. 2020 AP 02 0003                                         8


allegations of a home invasion and an assault at approximately 5:00 AM. The victim had

a laceration near his left eye, a gash in the back of his head and the left side of his face

was covered in blood. The deputies received a description of the assailant when they

were dispatched to the scene and the victim and witnesses provided a similar description.

The witnesses’ versions of facts suffered from inconsistencies, but the description of the

alleged perpetrator was not clearly described as a fact that was affected by the conflicting

statements. The officer’s left the victim at approximately 5:30 A.M. and noticed Harbin in

a vehicle haphazardly parked in a storage unit parking lot near the location of the offense

wearing a beanie and a sweatshirt that matched the description of the assailant’s clothing.

Standing alone, none of the facts would have been sufficient to warrant a Terry stop, but

when viewed collectively, we hold that the totality of the circumstances comprised of these

facts and the inferences that can be drawn from the facts provides a reasonable,

articulable, suspicion to support the deputies’ investigatory stop of Harbin.
Tuscarawas County, Case No. 2020 AP 02 0003                                       9


      {¶21} We find that the deputies’ stop of Harbin was supported by a reasonable,

articulable suspicion that he had been involved in a criminal act and that, therefor, the

trial court did not err in denying appellant’s motion to suppress the evidence. The first

assignment of error is overruled and the decision of the Tuscarawas County Court of

Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
