State v. WalkerState v. Walker
- Reporters:
- ,
- Before:
- Per Curiam (per curiam)
{¶1} Defendant-Appellant, Nathaniel Walker, appeals from his conviction in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} On July 27, 2010 at approximately 12:30 p.m., Akron Police Officer James Cunningham and retired Officer Richard Mullins were patrolling in the area of Pondview Avenue. The area had seen a rash of recent burglaries, during which various items, including firearms, were taken from homes while the occupants were away. The modus operandi of those burglaries was that the suspects would knock on the door, wait a few minutes, and kick in the door if no one answered. The suspects often chose to enter the rear of a home where they could not be seen.
{¶3} As the officers were patrolling, they observed Mr. Walker walking alone, wearing a black, nylon backpack. Officer Cunningham, who was driving the police cruiser, wanted to
{¶4} Officer Cunningham drove around the block where he observed the group emerge onto Pondview Avenue from a home directly adjacent to 1228 Pondview. Officer Cunningham exited the cruiser, stopped the group, and began to question them, asking what they were doing and where they were going. One of the group responded that they were utilizing a shortcut behind the buildings on Pondview. Officer Cunningham did not believe him because he had just observed the group standing at the back door of 1228 Pondview.
{¶5} After questioning the group, Officer Cunningham noticed that Mr. Walker was no longer wearing the black backpack. When asked about the location of the backpack, Mr. Walker responded that he had taken it home. Officer Cunningham concluded that Mr. Walker was being untruthful because he lived too far away to have made a trip there and back in the time that had transpired. Shortly thereafter, Mr. Walker told Officer Cunningham he would never find the backpack.
{¶7} After finding the backpack, its contents, and the set of keys, Officer Cunningham placed Mr. Walker under arrest. Shortly thereafter, Mr. Walker’s mother arrived on the scene and identified the backpack as belonging to Mr. Walker. The officers overheard Mr. Walker tell his mother that “[t]hey caught me with a gun, but don’t worry, it’s my first time.”
{¶8} Mr. Walker was indicted for tampering with evidence in violation of
{¶9} Mr. Walker now appeals from his conviction and raises three assignments of error for our review.
Assignment of Error Number One
“THE UNLAWFUL SEIZURE OF APPELLANT BY POLICE VIOLATED HIS 4TH AMENDMENT RIGHTS; THEREFORE, ALL EVIDENCE DISCOVERED AS A RESULT OF SAID SEIZURE SHOULD HAVE BEEN EXCLUDED FROM TRIAL AS FRUIT OF THE POISONOUS TREE.”
{¶10} In his first assignment of error, Mr. Walker argues that the trial court erred in denying his motion to suppress evidence because the police lacked reasonable suspicion to institute an investigatory stop. We disagree.
{¶11} The Ohio Supreme Court has held that:
“Appellate review of 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. State v. Mills (1992), 62 Ohio St.3d 357, 366. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19. 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 applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706.” State v. Johnson (Aug. 10, 2011), 9th Dist. No. 25525, 2011-Ohio-3941, at ¶5, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8.
Accordingly, this Court reviews the trial court’s factual findings for competent, credible evidence and considers the court’s legal conclusions de novo. State v. Conley, 9th Dist. No. 08CA0009454, 2009-Ohio-910, at ¶6, citing Burnside at ¶8.
{¶12} “A seizure occurs when an individual is detained under circumstances in which a reasonable person would not feel free to leave the scene[. Therefore,] both an investigatory stop and an arrest constitute ‘seizures’ within the meaning of the Fourth Amendment.” State v. Synder, 9th Dist. No. 06CA0018-M, 2006-Ohio-6911, at ¶13. Likewise, the Supreme Court has noted that “not all seizures of the person must be justified by probable cause to arrest for a
“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. No single factor is dispositive; the decision must be viewed based on the totality of the circumstances.” State v. White, 9th Dist. No. 05CA0060, 2006-Ohio-2966, at ¶16, citing State v. Bobo (1988), 37 Ohio St.3d 177, 178-80.
{¶13} Mr. Walker argues that at the time the police seized him and subsequently placed him in the cruiser, they did not have reasonable suspicion to believe that he was, or was about to be, engaged in criminal activity. We disagree.
{¶14} Detective Cunningham, who had sixteen years of experience as a police officer, was the only witness to testify at the suppression hearing. Detective Cunningham testified that there had been a recent string of burglaries in the area and that he knew Mr. Walker, as well as some members of the group he was with, had been previously arrested for burglaries. Despite this knowledge, Officer Cunningham acknowledged that he initially had no reason to stop Mr. Walker or the group. Nonetheless, he opted to continue to observe the group. When the officers reached the end of Sobul Avenue, they observed Mr. Walker’s group congregating at the back door of a home at 1228 Pondview. When the group saw the police car approach, they began to quickly walk away. Officer Cunningham immediately notified dispatch that he believed he had
{¶15} Given the totality of the circumstances presented, we conclude that the actions taken by the officers in initiating contact with Mr. Walker constituted an investigatory stop. The officers were admittedly following Mr. Walker looking to see if there was a reason to stop him. They did not merely approach the group to see if they were willing to answer questions. The officers pulled up to the group in a police car, got out and “had the males stop.” As noted above, “[a] seizure occurs when an individual is detained under circumstances in which a reasonable person would not feel free to leave the scene[.]” Synder at ¶13. We cannot say that a reasonable person in Mr. Walker’s circumstances would have felt free to leave. While this case presents a close call, we agree that the officers had reasonable suspicion to initiate the investigatory stop.
{¶16} In support of his argument to suppress evidence, Mr. Walker primarily relies upon Brown v. Texas (1979), 443 U.S. 47; however, Brown is distinguishable from the instant matter. In Brown, the appellant was observed walking in the opposite direction of another individual in a high crime, public area. Id. at 49. The appellant was stopped and refused to identify himself. Id. at 48-49. The appellant was then arrested for violating a Texas statute under which it is a criminal act for a person to refuse to give his name and address to a police officer who has lawfully stopped that person. Id. at 49. In concluding that the officer lacked reasonable suspicion to stop the appellant and hence that the stop was unlawful, the United States Supreme Court noted that there was no evidence that the appellant was involved in criminal conduct, nor
{¶17} Here, unlike Brown, the stop was lawful. The officer was patrolling in an area of homes that were recently the subject of burglaries. Mr. Walker was initially observed walking alone with a black backpack. Shortly thereafter, the officer noticed Mr. Walker and four other individuals congregated at the back door of a house in the area of the recent burglaries. The officer testified that when the individuals in the group saw him, they quickly walked away. However, they did not exit the property via the driveway; instead they proceeded behind other homes and toward the street, an act which would arouse some further suspicion. Unlike the officer in Brown, the officer in the instant matter was able to point to specific facts which taken together suggest that Mr. Walker was engaged in, or was about to be engaged in criminal activity. See Cortez, 449 U.S. at 417. Further, Mr. Walker, unlike the appellant in Brown, was seen in the back of a private residence as opposed to a public alley.
{¶18} Accordingly, we conclude that Brown is distinguishable and that the officer in the instant matter did possess the reasonable suspicion necessary to initiate a brief investigatory stop as contemplated by Terry. See Terry, 392 U.S. at 21. The trial court did not err in denying Mr. Walker’s motion to suppress, and his first assignment of error is overruled.
Assignment of Error Number Two
“THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR TAMPERING WITH EVIDENCE.”
{¶19} In his second assignment of error, Mr. Walker argues that his conviction is based on insufficient evidence. We disagree.
“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{¶21} Mr. Walker was convicted of tampering with evidence in violation of
“No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall *** [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]”
Pursuant to
{¶22} Thus, the question before this Court, based upon Mr. Walker’s argument, is whether Mr. Walker concealed the backpack “knowing that an official proceeding or investigation [wa]s in progress, or [wa]s about to be or likely to be instituted[.]”
{¶23} We conclude that sufficient evidence was presented to establish that Mr. Walker violated
Assignment of Error Number Three
“APPELLANT’S CONVICTION FOR TAMPERING WITH EVIDENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.”
{¶24} In his third assignment of error, Mr. Walker argues that his conviction is against the manifest weight of the evidence. Specifically, he argues that his version of the facts is substantially more plausible than the State’s account. We disagree.
“[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.
{¶26} A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175; see, also, Otten, 33 Ohio App.3d at 340.
{¶27} Mr. Walker admits that the State’s account was believable. Yet, he maintains that his presentation of the evidence was more believable because it accounts for possession of the backpack, and therefore, the pistol, at all times relevant to the charge, whereas the State’s version allegedly does not. Mr. Walker points to testimony by Officer Cunningham on cross-examination wherein he admitted it was possible that, during the five or six minutes he was patrolling Newton Street and Sobul Avenue, any one of the members of the group could have concealed the pistol on his person and placed it in the backpack behind 1228 Pondview. Additionally, Officer Cunningham stated that there was a window of at least thirty seconds between the time the group went behind the adjacent building at 1224 Pondview to the time they emerged onto the street. He testified that it would only take a “few seconds” to “take a gun out of your pants, throw it into a backpack, and then throw it into the weeds.” Based on that
{¶28} While Officer Cunningham admitted it was possible that somebody could have put a gun in the backpack and thrown it in the weeds between the time the group moved away from behind 1228 Pondview and into the street, he also said that scenario was unreasonable because of the short length of time involved. Further, the testimony revealed that due to the construction of the backpack, it was not possible to put anything inside of it when it was being worn; thus, in order to put something in the backpack, the person would have to first take it off, which makes Mr. Walker’s version of events even less likely given the time constraints involved. Moreover, both Mr. Walker and his mother identified the backpack as belonging to Mr. Walker, providing circumstantial evidence that anything inside of it would belong to Mr. Walker. Despite Mr. Walker’s alternative view of the events, the jury chose to believe the State’s version of the events. After reviewing the entire record, we cannot say the jury was unreasonable in the conclusions it reached.
{¶29} Based on the foregoing evidence, we conclude that the jury did not lose its way in convicting Mr. Walker of tampering with evidence. Mr. Walker’s argument that his conviction is against the manifest weight of the evidence is without merit, and his third assignment of error is overruled.
{¶30} Mr. Walker’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
CONCURS IN JUDGMENT ONLY, SAYING:
{¶31} I write separately with respect to the first assignment of error. In concluding that there was reasonable suspicion to justify the stop, the trial court considered Mr. Walker’s untruthful responses to the officer’s questions as supportive of that determination and denoted the stop as occurring subsequent to those responses when Mr. Walker was detained in the cruiser. I would agree with the trial court’s resolution.
{¶32} The majority concludes that the actions taken by the officers in initiating contact with Mr. Walker when they met the group in the street constituted a seizure for Fourth Amendment purposes. In support of that conclusion, the majority states that “[t]he officers were admittedly following Mr. Walker looking to see if there was a reason to stop him. They did not merely approach the group to see if they were willing to answer questions. The officers pulled up to the group in a police car, got out and ‘had the males stop.’”
{¶33} “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio (1968), 392 U.S. 1, 19, fn.16. “Indicia of a seizure, even where the person did not attempt to leave, include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” State v. Lawson, 9th Dist. No. 21227, 2003-Ohio-1299, at ¶13, quoting United States v. Mendenhall (1980), 446 U.S. 544, 554. “The encounter remains consensual even if the officer asks questions, requests to examine an individual’s identification, and asks to search the person’s belongings, provided that the officer does not convey that compliance is required.” State v. Curtis, 2d Dist. No. 23895, 2011-Ohio-1277, at ¶19, citing State v. Taylor (1995), 106 Ohio App. 3d 741, 748.
{¶36} Accordingly, in view of all the circumstances surrounding this particular incident, I would conclude that the encounter did not amount to an investigatory detention until after the questioning when Mr. Walker was placed in the cruiser. Having so concluded, I would hold that it was appropriate for the trial court to rely on Mr. Walker’s untruthful responses in assessing whether there was reasonable suspicion to justify the seizure. As such, I concur in judgment only as to the first assignment of error.