[Cite as State v. Walker,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25744

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NATHANIEL D. WALKER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 08 2142

DECISION AND JOURNAL ENTRY

Dated: November 9, 2011

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 2

keep an eye on Mr. Walker because he knew that Mr. Walker had been arrested for burglaries in

the past. After Mr. Walker crossed Newton Street, he joined a group of four other males at the

corner of Newton Street and Sobul Avenue. Officer Cunningham was familiar with two of the

other males and knew that they had been previously arrested for burglary. Although Officer

Cunningham was interested in Mr. Walker, he did not have a reason to stop him at that time, so

he left the area for several minutes and circled around the block to slowly begin patrolling Sobul

Avenue, looking up driveways and into backyards. 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 interrupted a burglary

in progress and requested backup because he and Officer Mullins were outnumbered.

{¶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. 3

{¶6} After backup arrived, Officer Cunningham placed Mr. Walker in the cruiser and

walked over to the rear of 1228 Pondview to further investigate. He noticed several footprints on

the back door, consistent with an attempted forced entry. He and several of the other officers

then began to search the weeded area behind the houses and discovered a set of keys from a

Buick automobile and the backpack. One of the items the backpack contained was an unloaded

.380 semi-automatic pistol. The serial number had been filed off the pistol. Officer Cunningham

was also aware that Buick keys were recently stolen.

{¶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 R.C.

2921.12(A)(1), carrying concealed weapons in violation of R.C. 2923.12(A)(2), possessing a

defaced firearm in violation of R.C. 2923.201(A)(2), and having weapons while under disability

in violation of R.C. 2923.13(A)(1). On September 15, 2010, Mr. Walker filed a motion to

suppress. The trial court held a hearing on Mr. Walker’s motion to suppress on October 7, 2010

and denied the motion on October 13, 2010. A jury trial took place on October 27, 2010. The

jury found Mr. Walker guilty of tampering with evidence, but not guilty of the remaining

charges. The trial court sentenced Mr. Walker to a term of two years in prison.

{¶9} Mr. Walker now appeals from his conviction and raises three assignments of error

for our review. 4

II

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),

. 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),

. 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),

.” State v. Johnson (Aug. 10, 2011), 9th Dist. No. 25525,

, quoting State v. Burnside,

, 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,

, citing

.

{¶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,

. Likewise, the Supreme Court has

noted that “not all seizures of the person must be justified by probable cause to arrest for a 5

crime.” Florida v. Royer (1983),

. “An investigatory stop must be justified by

some objective manifestation that the person stopped is, or is about to be, engaged in criminal

activity.” United States v. Cortez (1981),

. “[R]easonable suspicion can arise

from information that is less reliable than that required to show probable cause.” Alabama v.

White (1990),

. Reasonable suspicion requires only that the officer “point to

specific and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant the intrusion.” Terry v. Ohio (1968),

.

“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,

, citing State v. Bobo (1988),

.

{¶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 6

interrupted a burglary in progress and requested backup. At that point, Detective Cunningham,

“circled the block real quick just as all five were coming from behind the houses. We jumped

out, had the males stop, waiting for the other units to arrive.” It was at this point that Detective

Cunningham noticed that Mr. Walker no longer had the backpack he was previously carrying.

{¶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),

; 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.

. The appellant was stopped and refused to identify himself.

. 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.

. 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 7

could the officer point to any objective facts that would support the officer’s statement that the

appellant appeared suspicious.

.

{¶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,

. 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,

. 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. 8

{¶20} In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks (1991),

. Furthermore:

“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.”

at paragraph two of the syllabus; see, also, State v. Thompkins (1997),

.

“In essence, sufficiency is a test of adequacy.” Thompkins,

.

{¶21} Mr. Walker was convicted of tampering with evidence in violation of R.C.

2921.12 (A)(1), which provides in pertinent part that:

“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 R.C. 2901.22(B), “[a] person acts knowingly, regardless of his purpose, when he is

aware that his conduct will probably cause a certain result or will probably be of a certain

nature.”

{¶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[.]” R.C.

2921.12(A)(1). Officer Mullins testified at trial that Mr. Walker was wearing the backpack when

he was standing behind 1228 Pondview, that the group walked away immediately upon spotting

the cruiser, and that Mr. Walker was not wearing the backpack when he was stopped in the

street. In addition, the testimony of a juvenile parole officer revealed the following additional 9

facts: (1) Mr. Walker was on parole at the time of the incident; (2) Mr. Walker had been

informed of the rules he was required to follow while on parole; (3) Mr. Walker was in violation

of his parole at the time of the incident; (4) Mr. Walker was directly informed of his violations,

as well as the date of a hearing on the violations; (5) Mr. Walker failed to attend the hearing and

a bench warrant had been issued for his arrest; and (6) Mr. Walker failed to communicate with

his parole officer following the hearing and prior to his arrest in this matter.

{¶23} We conclude that sufficient evidence was presented to establish that Mr. Walker

violated R.C. 2921.12(A)(1). Based upon on the facts presented, and when viewed in a light

most favorable to the prosecution, a reasonable trier of fact could conclude that Mr. Walker

knew that an official investigation “[wa]s about to be or likely to be instituted” and concealed the

backpack containing the gun which could have been used in the investigation against him. R.C.

2921.12(A)(1). In light of the evidence that Mr. Walker knew he was in violation of his parole

and that he failed to appear at a court hearing on that violation, it is reasonable to infer that Mr.

Walker knew an official investigation “[wa]s about to be or likely to be instituted” when he was

spotted by the officers. R.C.2921.12(A)(1). Accordingly, Mr. Walker’s second assignment of

error does not have merit and is overruled.

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. 10

{¶25} When considering a manifest weight argument, this Court:

“[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),

.

{¶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,

. 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.

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),

; see, also, Otten,

.

{¶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 11

testimony, Mr. Walker argues that he presented a substantially more plausible version of the

facts which established that he tossed the backpack in the weeds prior to meeting the other

individuals behind 1228 Pondview, and that another member of the group, knowing the location

of the backpack, placed the pistol in the backpack without his knowledge. We find no merit to

Mr. Walker’s argument.

{¶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. 12

III

{¶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 App.R. 27.

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. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

BELFANCE, P. J. MOORE, J. CONCUR 13

WHITMORE, J. 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),

. “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,

, at ¶13, quoting United States v. Mendenhall (1980),

. “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,

, at ¶19, citing State v. Taylor (1995),

. 14

{¶34} In my view, the record from the suppression hearing is somewhat murky and

simply does not establish, under the totality of the circumstances, that Walker was seized for

Fourth Amendment purposes when the group was stopped in the street, prior to responding to the

officer’s questions. At the time, the officers were outnumbered five against two and were

waiting for backup to arrive for safety. Officer Cunningham testified that he did not activate the

cruiser’s lights or siren, and did not “yell or anything like that[.]” There is no evidence that the

officers removed their weapons from their holsters or otherwise displayed them in a threatening

manner. There is no evidence that the officers blocked the group from moving or told them they

could not leave unless they answered questions. There is no evidence of record that the officers

touched the group in any manner. Mr. Walker contends in his brief that Officer Cunningham

ordered the group to place their hands on the cruiser and that this conduct constituted a sufficient

show of authority intended to impede their movement. However, in support of his argument, Mr.

Walker cites to testimony presented at trial rather than testimony presented during the

suppression hearing. There was no testimony presented at the suppression hearing that Mr.

Walker was asked to place his hands on the cruiser. Thus, the testimony he cites had no bearing

on the trial court’s decision to deny the motion and cannot be taken into consideration on appeal.

Furthermore, Officer Cunningham testified that “basically this is a field interview situation” and

there was “nobody detained” until he had enough units on the scene. Officer Cunningham also

testified that upon hearing Mr. Walker’s untruthful responses regarding the location of the

backpack, he placed Mr. Walker in the back of the cruiser “because I did not want him to leave

the scene.” Thus, it is rational to infer that until Mr. Walker was placed in the cruiser, Officer

Cunningham had not tried to prevent Mr. Walker from leaving and understood that Mr. Walker

may have felt free to leave. 15

{¶35} In at least two previous cases with similar sets of facts, this Court concluded that

the stop at issue did not exceed the bounds of a consensual encounter, even though the officers

stopped the suspects with the intent to ask questions based, in part, on observation of suspicious

behavior. See State v. Foster, 9th Dist. No. 24349,

(officers observed

defendants do a “duck and turn,” i.e., subconscious checking of drugs or weapons; court

concluded defendants not seized when officers stepped out of the cruiser, stopped them on

sidewalk, stood in front of them only five or six feet away, shined flashlights in their faces, and

asked what they were doing and where they were about to go); Akron v. Harvey (Dec. 20, 2000),

9th Dist. No. 20016, at *2-3 (two uniformed, armed officers patrolling at night in area of high

drug activity and prostitution stopped defendant after she accelerated her pace; court concluded

defendant was not seized even though officers were standing in front of her on a sidewalk at

night with the intent to ask her some questions and complete a field interview).

{¶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.

APPEARANCES:

THOMAS M. DICAUDO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.