[Cite as State v. Harris,

.]

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

STATE OF OHIO C.A. No. 25443

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE HENRY R. HARRIS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 09 09 2691

DECISION AND JOURNAL ENTRY

Dated: June 29, 2011

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant Henry R. Harris appeals from the judgments of the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm in part, and reverse

in part.

I.

{¶2} Mr. Harris was a passenger in a van parked outside the XTC bar in Tallmadge on

the evening of August 15, 2009. At the time, Officer Bernard Cirullo was patrolling the parking

lot and noticed the van parked in a dark area of the parking lot. Officer Cirullo had made

numerous arrests in the area in the past. Officer Cirullo approached the van in his vehicle and

saw Mr. Harris look in Officer Cirullo’s direction. Mr. Harris got out and walked toward the bar.

The van immediately began to back up. Officer Cirullo turned on his overhead lights causing the

van to stop. He exited the cruiser and told Mr. Harris to have a seat in the van. Mr. Harris

complied. Officer Cirullo proceeded to ask the individuals why they were waiting in the van. 2

Mr. Harris said he was waiting for his “dude,” but did not provide the name of the “dude[.]”

Officer Cirullo then collected identification from those in the van. While Officer Cirullo was in

his cruiser, he noticed Mr. Harris leaning and reaching down toward his legs. Officer Cirullo

became concerned that Mr. Harris had a weapon. He waited for Officer Stephanie Jerin to arrive

and then conducted a pat down of Mr. Harris. The pat down did not reveal any weapons or other

contraband on Mr. Harris’ person. As Officer Cirullo was performing the pat down, Officer

Jerin noticed a clear baggy containing white rocks, later determined to be cocaine, on the ground

right near the passenger door. Thereafter, Mr. Harris was arrested. Mr. Harris was placed in the

passenger back seat of the police cruiser. Upon removing Mr. Harris form the police cruiser,

Officer Cirullo found a pipe containing Chore Boy in between the seat cushions in the area

where Mr. Harris was sitting. The pipe was tested and discovered to contain cocaine residue.

{¶3} Following the denial of Mr. Harris’ motion to suppress, Mr. Harris elected to have

his case tried to the court. The trial court found him guilty of one count of possession of

cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A)(C)(4) and one count of

possession of drug paraphernalia, a misdemeanor of the fourth degree. Mr. Harris received a

suspended sentence and was placed on community control. Mr. Harris has appealed, raising

three assignments of error for our review.

II.

“THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT’S MOTION TO SUPPRESS.”

{¶4} In Mr. Harris’ first assignment of error he contends that the trial court erred in

denying his motion to suppress as the police lacked a reasonable suspicion of criminal activity

justifying an investigatory stop. We agree. 3

{¶5} Ordinarily, review of a motion to suppress presents a mixed question of law and

fact. State v. Burnside,

,

, at ¶8. Thus, we defer to the trial

court’s findings of fact if they are supported by competent, credible evidence and review the trial

court’s application of the law to the facts de novo. State v. Metcalf, 9th Dist. No. 23600, 2007-

Ohio-4001, at ¶6. In the proceedings below, while the trial court did orally discuss the matter

and deny the motion following the testimony presented at the suppression hearing, the trial court

made no factual findings in its order denying Mr. Harris’ motion to suppress. “Accordingly, this

Court relies on the testimony transcribed from the hearing and the undisputed facts that are

supported by the record in determining whether the trial court reached the proper result.” State v.

Cherry, 9th Dist. No. 20771,

, at ¶54.

{¶6} “[A] police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possibly criminal behavior even though

there is no probable cause to make an arrest.” Terry v. Ohio (1968),

. “If the stop

is supported by an officer’s reasonable suspicion of criminal activity, it does not violate the

Fourth Amendment. Reasonable suspicion requires that the officer point to specific, articulable

facts which, together with rational inferences from those facts, reasonably warrant the intrusion.”

(Internal citations and quotations omitted.) State v. Morton, 9th Dist. No. 25117, 2010-Ohio-

3582, at ¶8. “The propriety of an investigative stop by a police officer must be viewed in light of

the totality of the surrounding circumstances.” State v. Bobo (1988),

,

paragraph one of the syllabus. “A court reviewing the officer’s actions must give due weight to

his experience and training and view the evidence as it would be understood by those in law

enforcement.” State v. Andrews (1991),

. 4

{¶7} The only testimony at the suppression hearing was that of Officer Cirullo. He

testified that the stop took place at approximately 8:30 p.m. on August 15, 2009. There was no

testimony concerning whether it was still daylight outside at the time. Officer Cirullo was

patrolling the parking lot of the bar when he noticed a van parked in a darker area of the parking

lot. Officer Cirullo testified that he had made two to three hundred arrests in that area in his

eight years as a police officer for the City of Tallmadge. Officer Cirullo testified that there was

initially nothing suspicious about the van. As he drove closer, he saw Mr. Harris “look over to

my direction[.]” He further testified that:

“almost immediately, the passenger door opens, [Mr. Harris] steps out and starts walking toward the bar. As quickly as the door opened I see the van’s reverse lights come on almost at the same time. A second – almost at the same time that door actually closed the van starts backing up; so, it all happened very quickly.”

At that point Officer Cirullo turned on his overhead lights, the van stopped, and Officer Cirullo

told Mr. Harris to “have a seat back in the van[.]” The State does not contest that an

investigatory stop was initiated at this point.

{¶8} Based on the facts before the trial court, we conclude that the police lacked the

reasonable suspicion of criminal activity necessary to conduct an investigatory stop, see Morton

at ¶8, and, thus, conclude that the stop was unlawful. While the stop took place in a dark portion

of a high-crime area, we fail to see how Mr. Harris’ conduct prior to the stop can be viewed as

indicative of criminal activity. There was no testimony elicited that prior to the investigatory

stop Mr. Harris was making any furtive gestures which would constitute a fact to be taken into

account in a totality of the circumstances analysis. See Bobo,

. The

testimony indicates that after looking in Officer Cirullo’s direction, Mr. Harris got out of the van

and walked toward the bar. Mr. Harris’ actions coupled with the fact that Mr. Harris was in a

high-crime area in which Officer Cirullo had made numerous arrests does not amount to 5

reasonable suspicion of criminal activity. See State v. Sumlin, 2nd Dist. No. 23144, 2009-Ohio-

2185, at ¶50 (concluding that “the action of simply backing away, slowly, over a short distance,

from two police officers exiting a police cruiser, in a high crime neighborhood, with ones hands

behind ones back, is not sufficient to give rise to a reasonable, articulable suspicion that criminal

activity is afoot, as required for a stop[.]”); State v. Fanning (1990),

(“At the moment that the police decided to approach and stop him, the defendant had exhibited

nothing but innocuous behavior. The mere fact that the defendant walked briskly away as the

police approached, absent the observation of any other suspicious behavior, would not justify an

investigative stop.”). There was no testimony that Officer Cirullo even believed that Mr. Harris’

behavior was suspicious, nor did Officer Cirullo testify that he suspected that Mr. Harris was

engaged in criminal activity. Mr. Harris was a passenger in a van parked in the parking lot of a

bar. He exited the van and walked toward the bar. His behavior is completely consistent with

what one would expect of any patron. In light of the foregoing, we conclude the trial court erred

in denying Mr. Harris’ motion to suppress. Mr. Harris’ first assignment of error is sustained.

ASSIGNMENT OF ERROR II

“APPELLANT’S CONVICTIONS WERE BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW.”

{¶9} Mr. Harris contends in his second assignment of error that that there was

insufficient evidence to establish that Mr. Harris possessed the cocaine and drug paraphernalia.

We disagree.

{¶10} We begin by noting that despite our resolution of Mr. Harris’ first assignment of

error this assignment of error is not moot in light of double jeopardy considerations. See State v.

Vanni,

,

, at ¶¶14-15. Accordingly, if we conclude that the

State failed to present sufficient evidence at trial, then the State will be precluded from any 6

attempt to retry Mr. Harris. Id. at ¶14. If, on the other hand, we conclude the State presented

sufficient evidence, the State has the option to retry Mr. Harris without the evidence that should

have been suppressed. See id.

{¶11} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731,

, at

¶18, citing State v. Thompkins (1997),

. The relevant inquiry is whether

the prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins,

(Cook, J., concurring). In reviewing the evidence,

we do not evaluate credibility and we make all reasonable inferences in favor of the State. State

v. Jenks (1991),

. The State’s evidence is sufficient if it allows the jury to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt.

{¶12} Mr. Harris was convicted of violating R.C. 2925.11(A)/(C)(4) and R.C.

2925.14(C)(1). R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or

use a controlled substance.” R.C. 2925.11(C)(4) provides that “[i]f the drug involved in the

violation is cocaine or a compound, mixture, preparation, or substance containing cocaine,

whoever violates division (A) of this section is guilty of possession of cocaine.” R.C.

2925.14(C)(1) provides that “[n]o person shall knowingly use, or possess with purpose to use,

drug paraphernalia.”

{¶13} There is no dispute that the pipe with cocaine residue constituted drug

paraphernalia. See R.C. 2925.14(A)(13). Nor is there a dispute that the white rocks found in the

clear baggy contained cocaine. Instead Mr. Harris asserts there was insufficient evidence to

establish that he possessed the cocaine or the drug paraphernalia. “‘Possess’ or ‘possession’ 7

means having control over a thing or substance, but may not be inferred solely from mere access

to the thing or substance through ownership or occupation of the premises upon which the thing

or substance is found.” R.C. 2925.01(K).

“Possession can be actual or constructive. Actual possession requires ownership or physical control. However, constructive possession exists when a person knowingly exercises dominion or control over an item, even without physically possessing it. While mere presence in the vicinity of the item is insufficient to justify possession, ready availability of the item and close proximity to it support a finding of constructive possession. Constructive possession may be inferred from the drugs’ presence in a usable form and in close proximity to the defendant.” (Internal citations and quotations omitted.) State v. Forney, 9th Dist. No. 24361,

, at ¶16.

{¶14} We conclude there was sufficient evidence that Mr. Harris possessed the cocaine

and the drug paraphernalia. Prior to discovering the baggy containing cocaine, Officer Cirullo

testified that he observed Mr. Harris, who was seated in the van, reaching towards his feet.

Officer Cirullo was concerned that Mr. Harris might have a weapon. During this time, Officer

Jerin arrived. Officer Cirullo then approached the van and had Mr. Harris step outside of it so

that Officer Cirullo could conduct a pat down. Officer Cirullo testified that he did not see

anything on the ground near the van prior to conducting the pat down. Officer Jerin likewise

testified that prior to the pat down she did not see anything on the ground near the passenger side

of the van. While Officer Cirullo was moving Mr. Harris to the rear of the vehicle to conduct the

pat down, Officer Jerin noticed a clear baggy containing what was determined to be cocaine on

the ground near where Mr. Harris was standing.

{¶15} Viewing these facts in a light most favorable to the State, one could reasonably

conclude that Mr. Harris possessed the cocaine. Given that there was testimony that there was

no cocaine on the ground prior to Mr. Harris exiting the van and that there was cocaine on the

ground after he exited the van, it would be reasonable to conclude that Mr. Harris did have 8

physical control over the cocaine and that he either dropped it on the ground or that it fell out of

his clothing upon exiting the van. See

Accordingly, considering the facts in a light most

favorable to the State, we conclude there was sufficient evidence to sustain Mr. Harris’

conviction for possession of cocaine.

{¶16} With respect to Mr. Harris’ conviction for drug paraphernalia, we likewise

conclude sufficient evidence was presented to sustain his conviction. Officer Cirullo testified

that prior to his shift he always checks the back seat of his cruiser for any items that might have

been left back there. Officer Cirullo testified that prior to placing Mr. Harris in the back

passenger seat of the police cruiser he checked the back seat of the cruiser and found no

contraband or other items there. Officer Cirullo testified that Mr. Harris was handcuffed and

placed on the passenger’s side and the driver was handcuffed and placed on the driver’s side of

the police cruiser. After the van was searched, Officer Cirullo had both men exit the police

cruiser and again searched the police cruiser. Officer Cirullo found a crack pipe containing

Chore Boy between the cushions in the area where Mr. Harris had been seated. The pipe was

tested and contained cocaine residue.

{¶17} Viewing these facts in a light most favorable to the State, one could reasonably

conclude that Mr. Harris possessed drug paraphernalia. Given that there was testimony that there

was no crack pipe in the police cruiser prior to Mr. Harris being placed in it and there was

testimony that a crack pipe was found between the seat cushions in the area where Mr. Harris

was seated after he was removed from the cruiser, it would be reasonable to conclude that Mr.

Harris did have physical control over the crack pipe. See

Accordingly, we conclude there

was sufficient evidence to sustain Mr. Harris’ conviction for possession of drug paraphernalia.

In light of the foregoing, we overrule Mr. Harris’ second assignment of error. 9

ASSIGNMENT OF ERROR III

“APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶18} Our resolution of Mr. Harris’ first assignment of error renders his third

assignment of error moot. Accordingly, we decline to address it. See App.R. 12(A)(1)(c).

III.

{¶19} In light of the foregoing, we sustain Mr. Harris’ first assignment of error, overrule

his second assignment of error, and decline to address his third assignment of error.

Judgment affirmed in part, reversed in part, and cause remanded,

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 both parties equally.

EVE V. BELFANCE FOR THE COURT 10

MOORE, J. DICKINSON, J. CONCUR

APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

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