source: Caselaw Access Project

author: MARY J. BOYLE, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant v. Abdul HAKIM, Defendant-Appellee
    No. 105679
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Eben McNair, Kristen L. Sobieski, Assistant County Prosecutors, Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Mark Stanton, Cuyahoga County Public Defender, BY: Christopher Maher, Cullen Sweeney, Assistant Public Defenders, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
    ON RECONSIDERATION

      The original announcement of decision, State v. Hakim , 2018-Ohio-492, --- N.E.3d ----, released February 8, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 22(C) ; see also S.Ct.Prac.R. 7.01.

   MARY J. BOYLE, J.:

{¶ 1} Plaintiff-appellant, state of Ohio, appeals from a judgment granting defendant-appellee, Abdul Hakim's (a.k.a. Abdul Asmar and Darryl Brown) ("Hakim") motion to suppress drugs and criminal tools found during the execution of a search warrant upon a residence. Specifically, the state argues that the trial court erred because the search and seizure of items beyond those articulated in the search warrant was justified under the plain view or plain smell doctrines outlined in Fourth Amendment jurisprudence. Upon review of the record and relevant law, we affirm the trial court's decision.

I. Procedural History and Facts

{¶ 2} In July 2016, police sought and obtained a search warrant to search a home located on Hastings Avenue in East Cleveland. According to the warrant, police were authorized to search the following items:

Firearms; ammunitions; casings; magazines; holsters; documentation (including ledgers) pertaining to firearms, ammunition, and/or their ownership purchase or sale; documentation and other items relating to the identification of Abdul Hakim ALI EL aka Darryl Brown aka Abdul Asmar and/or any ownership interest in the premises and any and all evidence pertaining to violations of the laws of the State of Ohio, to wit: R.C. 2923.12 and R.C. 2923.13.

{¶ 3} The next day, agents with the Bureau of Alcohol Tobacco Firearms and Explosives ("ATF"), along with East Cleveland police, executed a search upon the property. In doing so, the officers seized a shotgun shell, a Sig Sauer firearm, a magazine, ammunition, a prescription pill bottle with a white powder substance inside, suspected marijuana, two digital scales, sandwich bags, and $2,500 in cash.

{¶ 4} By indictment filed in September 2016, Hakim was charged with two counts of having weapons while under disability, one count of drug trafficking, one count of drug possession, and one count of possessing criminal tools. Hakim pleaded not guilty at his arraignment and subsequently filed a motion to suppress. He argued that the government failed to establish probable cause to support the issuance of a search warrant for the residence and that, even if the warrant was supported by probable cause, the government exceeded the permissible scope of the warrant when it searched for and seized items not related to the illegal handling of firearms. On March 29, 2017, the court commenced a hearing on the motion to suppress that lasted several days.

II. Suppression Hearing

{¶ 5} Arguments at the suppression hearing were bifurcated along with Hakim's two theories for suppression: (1) there was lack of probable cause to issue the warrant, and (2) the government impermissibly exceeded the scope of the warrant.

A. Probable Cause

{¶ 6} Defense counsel argued that all evidence found in the course of executing the search warrant should be suppressed because the affidavit in support of the warrant did not establish probable cause. Specifically, counsel claimed that the affidavit did not contain probable cause to believe that Hakim was a resident at the Hastings property or that firearms would be found there. Counsel also claimed that the search-warrant affidavit usurped the issuing judge's authority by making allegations that Hakim was a "sovereign citizen" and that sovereign citizens were particularly dangerous.

{¶ 7} In making these arguments, defense counsel focused on two paragraphs of the search-warrant affidavit. The first was paragraph 35, which outlined the apparent domicile relationship between Hakim and the owner of the Hastings property. It noted that Hakim and the owner of the property had a history of living together based on, among other things, a records check that showed that Hakim took out utilities in his name while living with the owner at a different address in 2012. Defense counsel argued that the 2012 utilities report was the only factual connection that showed a shared domicile and that its relevance was diminished due to the lapse in time and a change in address. Moreover, defense counsel argued that the affidavit implied that the 2012 record of utilities was not the only thing that connected Hakim to the individual living in the Hastings property, but offered no factual basis for the court to draw that conclusion.

{¶ 8} The second paragraph at issue, paragraph 36, was one that stated that Hakim was a sovereign citizen and that "sovereign citizens believe they are not subject to law or government rules and are known to acquire and maintain firearms and other weapons." Defense argued that this paragraph improperly "juiced-up" the search warrant by adding unverified allegations as to how sovereign citizens act.

B. Scope

{¶ 9} ATF agent, John Remick-Cook, provided the sole testimony regarding the execution of the search warrant. His testimony is summarized as follows.

{¶ 10} On June 14, 2016, Agent Remick-Cook, along with several other ATF agents and local law enforcement officers, executed a search warrant on the Hastings Avenue property. Hakim was home at the time of the search. The officers were looking for "firearms and ammunition and documents in support of firearms ownership."

{¶ 11} During the search, the officers came upon two locked safes in a bedroom closet: a smaller safe on top of a larger one. Hakim gave the officers the combinations to open the safes. They searched the small safe first. The officers immediately saw and removed a handgun from the smaller of the two safes and continued to remove other items. One of these items in the small safe was a common, translucent-orange prescription pill bottle with a label on it.

{¶ 12} Agent Remick-Cook testified that he could not immediately tell what was inside the bottle so he picked it up and began moving it around at "various angles." He admitted that with the label, the bottle only had "a limited portion in which you can look inside to try to inspect the contents." During the manipulation of the bottle he saw what appeared to be plastic bags inside. According to his testimony, this "indicate[d] either narcotics in the pill bottle, or it could have been ammunition wrapped up in a plastic bag so as to keep it from making noise, bouncing off the side of the pill bottle." The agent testified that he did not shake the bottle to see what might be inside, but instead opened it and took out its contents. He found a white powder substance inside several plastic bags.

{¶ 13} The agent further testified that he and the other officers found suspected marijuana inside a balled-up paper towel that was also in the small safe. Although the agent could not say whether it was him or one of his fellow officers who opened the paper towel to discover its contents, he testified that he could smell marijuana emanating from the safe after it was opened, and that it was clear the smell was coming from the paper towel. On cross-examination, Agent Remick-Cook admitted that he failed to mention the plain smell of marijuana in his written report of the executed search and that he was mentioning that fact for the first time on cross-examination at the suppression hearing.

{¶ 14} The officers further recovered two digital scales, plastic sandwich bags, and $2,500 in cash from the larger safe within the closet. The agent could not recall any details about the digital scales or the "baggies," and there were no photos of them. The agent testified, however, that these items were indicative of narcotics activity and were seized for that reason.

C. Ruling

{¶ 15} On April 12, 2017, the court reconvened to announce its ruling on the motion to suppress. The court found that the warrant affidavit contained sufficient probable cause based on objective facts for the issuing court to conclude that Hakim lived at the Hastings Avenue residence and that there was reason to believe that firearms were in the home. The court further concluded that the statement concerning the alleged dangerousness of sovereign citizens was unsupported by facts and was, therefore, improper. Nevertheless, the court found that the warrant was still valid and supported by probable cause even if that paragraph were excised from the affidavit. Therefore, the court declined to suppress the evidence on grounds that the search warrant lacked probable cause or was otherwise invalid.

{¶ 16} On the issue of scope, the court suppressed the pill bottle and its contents on the basis that any evidence of illegal activity was not immediately apparent and in plain view when the officer manipulated the bottle, opened it, and removed its contents. The court also suppressed the suspected marijuana found inside the paper towel, the two digital scales, the plastic bags, and cash, after finding that items were not immediately incriminating in appearance to warrant further investigation without a valid search warrant.

{¶ 17} The court did not suppress the firearm or other items related to the improper handling of firearms. Following the court's ruling, the prosecution asked to stay proceedings pending appeal. The court granted the motion to stay, and the present appealed followed.

III. Motion to Suppress

{¶ 18} On appeal, the state argues that the trial court erred in suppressing the pill bottle and its contents, digital scales, plastic bags, and cash because they were in plain view and their illegal nature was immediately apparent. The state also contends that the court improperly suppressed the evidence of suspected marijuana because the officers had probable cause to believe, based on the plain smell emanating from the safe, that marijuana was inside the paper towel prior to their opening it. We do not agree.

A. Standard of Review

{¶ 19} "Appellate review of a motion to suppress involves a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Appellate courts must defer to the trial court's findings of fact because it is in the best position to evaluate the credibility of witnesses and resolve factual discrepancies. Id. , citing State v. Mills , 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). An appellate court must accept a trial court's findings of fact if they are supported by competent, credible evidence. Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). Once the facts have been accepted, the court proceeds to a de novo review of whether the facts satisfy the applicable legal standard for the action taken. Id. at ¶ 9, citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

B. Fourth Amendment

{¶ 20} The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

{¶ 21} The Fourth Amendment commands in relevant part, that no warrants shall issue except those "particularly describing" the things to be seized. The permissible scope of a search is therefore governed by the terms set forth in the search warrant. See Walter v. United States , 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). "If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more." Horton v. California , 496 U.S. 128, 140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

{¶ 22} The Fourth Amendment's particularity requirement assures that the police cannot indiscriminately rummage through citizens' personal effects. See Coolidge v. New Hampshire , 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Thus, to prevent a "wide-ranging exploratory search," the warrant must enable the executing officers to ascertain and identify with reasonable certainty those items that the issuing judge has authorized them to seize. See Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) ; Steele v. United States , 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

{¶ 23} In this case, the search warrant permitted the officers to search and seize "[f]irearms; ammunitions; casings; magazines; holsters; documentation (including ledgers) pertaining to firearms, ammunition, and/or their ownership purchase or sale[.]" It did not give the officers the right to search for drugs. The state contends, however, that the plain view and plain smell doctrines permitted the officers to seize the drugs and drug-related items in this case. For the following reasons, we disagree.

1. Plain View

{¶ 24} The state argues that the trial court erred in suppressing the white powder that was in the pill bottle because it was in plain view. Under the plain view exception to the search warrant requirement, police may seize items in plain view without a warrant if the initial intrusion leading to the item's discovery was lawful and the criminal nature of the item was "immediately apparent" to the officer. State v. Waddy , 63 Ohio St.3d 424, 442, 588 N.E.2d 819 (1992). The "immediately apparent" requirement of the plain view doctrine is met when police have probable cause to associate an object with criminal activity. Id. , citing State v. Halczyszak , 25 Ohio St.3d 301, 496 N.E.2d 925 (1986). In ascertaining the required probable cause, police officers may rely on their specialized knowledge, training, and experience. Halczyszak at 303, 496 N.E.2d 925.

{¶ 25} Here, the officer's entry into Hakim's home was lawful. Thus, the crux of this issue is whether the criminality of the objects was immediately apparent. We agree with the trial court that it was not.

{¶ 26} With respect to the prescription pill bottle and the white powder found inside, Agent Remick-Cook testified that when he first saw the bottle he was not sure what was inside. The criminal nature of the item was not immediately apparent to him; he only suspected that the item contained contraband once he manipulated the bottle by picking it up, turning it, and trying to peer inside the opaque outer container. Even then, he had no confirmation of criminal activity or probable cause to believe that the bottle and its contents were criminal in nature. Nevertheless, the agent decided to open the bottle, pull out its contents, and look inside, at which point he saw a white powder inside plastic bags that he believed to be an illicit substance. While white powder in plain view may have been enough to amount to probable cause of criminal activity to seize the object, the white powder in this case was not immediately apparent and was only discovered through a warrantless search of the bottle that involved manipulation and opening. Accordingly, the plain view doctrine does not justify the agent's search of the pill bottle and its contents and, thus, the trial court did not err when it suppressed them.

{¶ 27} We further find little merit to the state's argument that the agent believed there might have been evidence of illegal gun ownership inside the bottle. Although the agent testified that he believed there could have been ammunition inside, other testimony discredited the statement. The agent was clear that he never shook the item to see if it rattled or otherwise made any noise that would indicate it contained a bullet, and the agent was evasive when questioned about the weight of the item. The circumstances by which the agent came to search the pill bottle and the observations that he made beforehand belie the agent's testimony that he believed there might be a bullet inside. Therefore, the court did not err in suppressing the evidence, despite the agent's testimony on this point.

{¶ 28} The state contends that State v. Johnson , 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575, 2013 WL 658159, supports its arguments in this case. But Johnson is distinguishable because when police opened the safe in that case, they immediately saw-in plain view-what appeared to be a white powder substance they believed to be cocaine. Once they saw the suspected cocaine in plain view, they were authorized to seize other items that might contain drug-related contraband or be used in connection with drugs or drug paraphernalia. Id. at ¶¶ 33-35. Here, however, the white powder was not in plain view. It was concealed within a pill bottle and, thus, the incriminating nature of its contents was not immediately apparent as it was in Johnson . Accordingly, we disagree with the state that Johnson supports its arguments in this case.

2. Plain Smell

{¶ 29} The state further argues that the trial court erred when it suppressed the marijuana that the agent found in the "balled up" paper towel. We disagree. Although the trial court did not make any findings of fact with respect to the agent's credibility, it implicitly found the agent's testimony on this issue to be lacking. Agent Remick-Cook never stated anything about smelling marijuana in his summary report of the executed search warrant. He also failed to mention it in his direct examination. It was only upon cross-examination-when defense counsel heavily questioned the agent about how he came to open the paper towel-that the agent mentioned smelling marijuana after the safe was opened. Accordingly, we find no error on the part of the trial court's suppression of the marijuana.

3. Other Items

{¶ 30} Lastly, we cannot say that the court erred in suppressing the digital scales, plastic bags, and $2,500 in cash. None of these is apparently incriminating alone, and there was no evidence that the digital scales or plastic bags contained any drug residue when seized. Furthermore, it is not unusual for a person to store money in a secure location such as a safe.

{¶ 31} Without the prior discovery of the suspected illicit substances found in the pill bottle and paper towel, the police lacked probable cause to seize these items as evidence of criminal activity. Because the pill bottle and paper towel were illegally searched in violation of the Fourth Amendment's warrant requirement, those items were properly suppressed and cannot be taken into consideration when determining whether the police had probable cause to believe that the scales, bags, and money were part of an illegal enterprise.

{¶ 32} Accordingly, we affirm the decision of the trial court granting Hakim's motion to suppress evidence of the drugs, digital scales, plastic bags, and money.

{¶ 33} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and EILEEN T. GALLAGHER, J., CONCUR

      The state's assignment of error is: "The trial court erre[d] in granting defendant's motion to suppress evidence."

      Both parties agreed below that police could search the safe pursuant to the warrant and, thus, there was no issue with respect to police searching the safe.

      He could not recall how many plastic bags, but agreed that there were at least two according to the photos.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Jason Myers THORN, Defendant-Appellant.
    NO. 16 BE 0054 17 BE 0013
    Court of Appeals of Ohio, Seventh District, Belmont County.
    Dated: March 15, 2018
    Attorney J. Flanagan, Courthouse Annex 1, 147-A West Main Street, St. Clairsville, Ohio 43950, No Brief Filed, for Plaintiff-Appellee
    Attorney Peter Galyardt, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for Defendant-Appellant
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Defendant-appellant, Jason Thorn, appeals his conviction in the Belmont County Court of Common pleas following a jury trial for one count of possession of drugs in violation of R.C. 2925.11(A)(C)(6)(a), a felony of the fifth degree, and one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree.

{¶ 2} Appellant entered a Walmart store and picked up three internet routers from the electronics section. Appellant then took the routers to the customer service desk where he attempted to return them for store credit. The store credit would have been placed on a gift card. After appellant handed the routers over to customer service representatives but before appellant received the gift card from Walmart employees, appellant was detained by Walmart security for the fraudulent return of the routers. Walmart security then called the Belmont County Sheriff's Department who arrested appellant for theft. Police then performed a search incident to an arrest which revealed that appellant was in possession of a small amount of a substance deputies believed to be heroin. The substance was later confirmed to be heroin.

{¶ 3} Appellant appeared in the Belmont County Court, Northern Division for an initial appearance where his Crim.R. 5 rights were read. The Belmont County Court, Northern Division then scheduled a preliminary hearing. The preliminary hearing was continued multiple times for various reasons but appellant never appeared for the hearing and a warrant was issued for his arrest. Appellant never appeared for the preliminary hearing because he was incarcerated in Pennsylvania on or about February 17, 2015 for a parole violation. On February 23, 2015, appellant submitted an inmate request to the Pennsylvania Department of Corrections apparently attempting to exercise his rights pursuant to the Interstate Agreement on Detainers (IAD) to resolve his outstanding charges in Belmont County, Ohio.

{¶ 4} On September 2, 2015, appellant filed a pro se motion in the Belmont County Court, Northern Division to dismiss this action pursuant to the IAD for violations of his right to a speedy trial. Appellant attached numerous exhibits to this motion, including his February 23, 2015 inmate request. On September 4, 2015, the Belmont County Court, Northern Division denied appellant's motion on the basis that he never filed a demand with the court.

{¶ 5} On December 28, 2015, the Belmont County Court, Northern Division received a handwritten letter from appellant seeking the disposition of the charges against him using other methods than him being present in court, such as video conference. In this letter, appellant specifically stated that he did not want to exercise his rights pursuant to the IAD on the basis that his transfer to Ohio would negatively impact his Pennsylvania rehabilitation programs.

{¶ 6} Appellant eventually appeared in the Belmont County Court, Northern Division on February 26, 2016. This was over one year after appellant was arrested for theft and possession of heroin. On March 7, 2016, appellant filed another motion to dismiss this action pursuant to the IAD for violations of his right to a speedy trial. On May 20, 2016, the Belmont County Court, Northern Division denied this motion again on the basis that appellant never filed a demand for a trial in Belmont County and that appellant's December 28, 2015 letter specifically waived any right appellant had under the IAD.

{¶ 7} Appellant was then indicted on both counts and the case was transferred to the Belmont County Court of Common Pleas. The trial court issued appellant a personal recognizance bond but appellant was still detained in Belmont County for purposes of continuing his Pennsylvania sentence.

{¶ 8} There were several pretrial hearings that concerned multiple pretrial issues. Relevant to this appeal, on July 25, 2016, a pretrial hearing was held in which the trial court informed appellant that if he were convicted and sentenced in this matter, he would receive jail credit for the time he served in an Ohio jail while awaiting trial.

{¶ 9} Also relevant to this appeal, the trial court held a hearing on August 29, 2016. The August 29, 2016 hearing concerned a pro se motion appellant filed seeking to dismiss this action again pursuant to the IAD for violations of appellant's right to a speedy trial. The trial court denied this motion to dismiss.

{¶ 10} A jury trial was eventually conducted in this action. At the conclusion of the State of Ohio's, case, appellant moved pursuant to Crim.R. 29 to dismiss the theft charge on the basis that the state failed to prove that appellant exerted control over any property of Walmart. The trial court denied appellant's motion. At the conclusion of the trial, the jury found appellant guilty of both counts.

{¶ 11} During the sentencing hearing, appellant requested that he be given jail credit for all time served while in jail in Belmont County, Ohio while he was awaiting trial. Appellant argued that this amounted to 215 days. This was also the amount of jail credit listed in appellant's presentence report. But the trial court noted that the 215 days of credit listed in the presentence report was a mistake as the trial court issued appellant a recognizance bond. The trial court noted that appellant had only seven days of jail credit. Ultimately, the trial court sentenced appellant to serve one year of incarceration on the drug possession conviction and six months of incarceration on the theft conviction. The trial court ordered that these sentences be served concurrently and gave appellant seven days of jail credit.

{¶ 12} The trial court's sentence was memorialized in a journal entry dated September 21, 2016. Appellant timely filed this appeal on October 11, 2016. Appellant now raises three assignments of error.

{¶ 13} Appellant's first assignment of error states:

THE COURTS BELOW COMMITTED REVERSIBLE ERROR WHEN THEY DENIED JASON THORN'S MOTIONS TO DISMISS ON SPEEDY-TRIAL GROUNDS. R.C. 2963.30 SEPT. 4, 2015 JOURNAL ENTRY (BELMONT COUNTY NORTHERN DIVISION COURT, CASE NO. 15-CRA-50); MAY 25, 2016 JOURNAL ENTRY (BELMONT COUNTY NORTHER DIVISION COURT, CASE NO. 15-CRA-50); AUG. 31, 2016 JOURNAL ENTRY.

{¶ 14} Appellant argues that he substantially complied with his requirements pursuant to Ohio's IAD codified at R.C. 2963.30. Appellant argues that because he substantially complied with the IAD, his trial should have occurred within 180 days of his substantial compliance. As that did not happen, appellant argues that his speedy trial right was violated and the trial court's denial of his motion to dismiss was error.

{¶ 15} The state did not file an answer brief in this matter. Pursuant to App.R. 18(C), this Court may accept the appellant's statement of the facts as true and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action.

{¶ 16} A trial court's decision on a motion to dismiss is reviewed under a de novo standard of review. Columbiana v. Frost , 7th Dist. No. 14-CO-38, 2016-Ohio-1057, 2016 WL 1123100 ¶ 19 citing State v. Rhode , 11th Dist. No. 2010-P-0015, 2011-Ohio-2455, 2011 WL 2083983. "A de novo standard of review affords no deference to the trial court's decision, and the appellate court independently reviews the record." Id. citing Gilchrist v. Gonsor , 8th Dist. No. 88609, 2007-Ohio-3903, 2007 WL 2206701. Trial court decisions concerning the interpretation of the IAD are also subject to a de novo review. State v. Braden , 197 Ohio App.3d 534, 2011-Ohio-6691, 968 N.E.2d 49 (11th Dist.).

{¶ 17} Ohio became a party state to the IAD in 1969. Pennsylvania is also a party state to the IAD. The IAD provides, in relevant part:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

R.C. 2963.30 Art. III(a)-(b).

{¶ 18} The 180 day speedy trial time period begins to run when a defendant substantially complies with the requirements set forth in Articles III(a) and III(b) of R.C. 2963.30. State v. Quinones , 168 Ohio App.3d 425, 428, 2006-Ohio-4096, 860 N.E.2d 793 quoting State v. Mourey , 64 Ohio St.3d 482, 485, 597 N.E.2d 101 (1992). Substantial compliance means the defendant did "everything that could be reasonably expected." Id. quoting State v. Ferguson , 41 Ohio App.3d 306, 535 N.E.2d 708 (10th Dist. 1987).

{¶ 19} The record shows that the first motion to dismiss appellant made concerning the IAD was his September 2, 2015 motion in the Belmont County Court, Northern Division. In this motion, appellant argued that his right to a speedy trial was violated and moved to dismiss the charges pursuant to the IAD. Appellant attached to this motion a copy of an inmate request he made dated February 23, 2015 to his Pennsylvania corrections superintendent, Mark Copozza. The request states:

I'm requesting in need to resolve current charges [i]n Belmont County, Ohio. I want to exercise my right to resolve charges using the In[t]erstate Agreement on Detainers, (IAD). Please [refer]
me to the proper people to accomplish these [proceedings].

September 2, 2015 motion to dismiss, ¶ 10 exhibit.

{¶ 20} Article III of the IAD requires the detainee to serve notice on both the prosecutor and the court, which must also contain a certification from the warden stating the terms of the detainee's incarceration. State v. Levy , 8th Dist. No. 83114, 2004-Ohio-4489, 2004 WL 1902534, ¶ 10. In this case, the record does not indicate that appellant filed such a demand with the court or the prosecutor. There is also no indication in the record of a certificate from any Pennsylvania correctional facility stating the terms of appellant's incarceration. Because appellant did not file a proper demand pursuant to the IAD, the trial court's decision to deny appellant's motion to dismiss was not error.

{¶ 21} Accordingly, appellant's first assignment of error lacks merit and is overruled.

{¶ 22} Appellant's second assignment of error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT GIVE JASON THORN JAIL-TIME CREDIT FOR ALL OF THE TIME THAT HE SPENT IN JAIL. R.C. 2967.191. JULY 25, 206 TR. 5. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY; FEB 9, 2017 JOURNAL ENTRY.

{¶ 23} Appellant argues that not only did he spend 215 days incarcerated in Belmont County awaiting trial on this action, he was promised by the trial court that he would receive jail credit for each day he spent incarcerated. At the sentencing hearing, appellant only received credit for seven days and now argues that he is entitled to the full 215 days of credit.

{¶ 24} An appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 1 citing R.C. 2953.08(G)(2).

{¶ 25} The Sixth District dealt with almost an identical issue in State v. Lawrence , 6th 111 Ohio App.3d 44, 675 N.E.2d 569 (6th Dist. 1996). In Lawrence , defendant-appellant Lawrence was serving a thirty-year sentence in Indiana when he was indicted in the Fulton County Court of Common Pleas in Ohio for one count of complicity to commit aggravated murder and one count of breaking and entering. Id. at 45, 675 N.E.2d 569. Lawrence was then transferred to Fulton County, Ohio under the IAD. Id. Lawrence pled guilty to the breaking and entering charge and not guilty to the complicity to commit aggravated murder charge. Id. The trial court did not set a bond in this matter. Id. After the jury trial, Lawrence was found not guilty on the complicity to commit aggravated murder charge. Id. After Lawrence was found guilty on the breaking and entering charge, he was sentenced to one and a half years of incarceration which was to be served consecutively with his Indiana prison sentence. Id. at 46, 675 N.E.2d 569. Lawrence was then transferred back to Indiana. Id. Lawrence then filed a motion for credit for time served with the trial court which was denied. Id.

{¶ 26} In affirming the trial court's decision, the Sixth District held that issuing Lawrence a bond would have been superfluous because he was "deemed to remain in the custody of and subject to the jurisdiction of the sending state" while he was being held and awaiting trial in Ohio. Id. at 46-47, 675 N.E.2d 569. In essence, while a bond was not issued but Lawrence was detained, he was deemed to be serving his Indiana sentence in Ohio while he was awaiting trial.

{¶ 27} In this case, appellant was issued a recognizance bond but was still detained in Ohio due to his parole violation in Pennsylvania. While awaiting trial in Ohio, appellant was still in the custody of and subject to the jurisdiction of the sending state, Pennsylvania, pursuant to R.C. 2963.30, Article V(g).

{¶ 28} Appellant also argues that, under the doctrine of promissory estoppel, he is entitled to the full 215 days of credit for time served. Appellant argues that the following passage made to him by the trial court constitutes a promise that appellant relied on and that the trial court should be estopped from revoking:

The Court: Is your question whether you will receive credit for the time served that you spend here in the county jail?
The Defendant: Well, yeah, that's a question.
* * *
The Court: You would receive credit for the time you serve in our jail. I don't know if Pennsylvania will do the same. That's up to them.

July 25, 2016 Tr. 5.

{¶ 29} Appellant's argument lacks merit for two reasons. First, as appellant points out, the principle of estoppel does not apply against a state or its agencies in the exercise of a governmental function. Ohio State Bd. of Pharmacy v. Frantz , 51 Ohio St.3d 143, 145-146, 555 N.E.2d 630 (1990). Second, as previously stated, the record indicates that appellant was not being detained in Ohio to guarantee his presence at trial, he was being detained in Ohio pursuant to the IAD for his parole violation in Pennsylvania.

{¶ 30} Moreover, the equity principles of estoppel that appellant relies on in his brief would not be served if he received 215 days of jail credit. If appellant were to receive 215 days of jail credit on his sentence in this case, then the time appellant spent incarcerated in Ohio pursuant to his Pennsylvania parole violation would also count towards any future sentence he would have received in this action. In essence, appellant would be receiving double jail credit. Ultimately, the trial court's judgment granting appellant only seven days of jail credit was proper.

{¶ 31} Accordingly, appellant's second assignment of error lacks merit and is overruled.

{¶ 32} Appellant's third assignment of error states:

THE TRIAL COURT ERRED IN DENYING JASON THORN'S CRIM. R. 29 MOTION FOR ACQUITTAL, AND VIOLATED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT CONVICTED HIM OF THEFT. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE 1, SECTIONS 10 AND 16, OHIO CONSTITUTION. R.C. 2913.02. TRIAL TR. 119-121, 125-126, 194-195, 207-208. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY.

{¶ 33} Appellant argues that the state failed to prove beyond a reasonable doubt that he obtained or exerted control over the gift card at issue. As this is an element of theft, appellant argues that there is insufficient evidence in the record to support his theft conviction.

{¶ 34} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Dickson , 7th Dist. No. 12 CO 50, 2013-Ohio-5293, 2013 WL 6254258, ¶ 10 citing State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt. Id. citing State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove the elements, it must be remembered that circumstantial evidence has the same probative value as direct evidence. Id. citing State v. Jenks , 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other grounds).

{¶ 35} Count 2 of appellant's indictment was for theft pursuant to R.C. 2913.02(A)(1). "No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property * * * without the consent of the owner or person authorized to give consent." R.C 2913.02(A)(1).

{¶ 36} Appellant contends that he did not commit theft because he never obtained nor exerted control over anything of monetary value when he attempted to fraudulently return the routers. Appellant argues Cedric Robinson, one of the Walmart loss prevention employees who observed appellant inside the store, testified at trial that appellant never had possession or exerted control over a gift card. (Trial Tr. 113-114, 121).

{¶ 37} The Fifth District's decision in State v. Spencer , 5th Dist. No. 2015CA00188, 2016-Ohio-5304, 2016 WL 4196562, provides some guidance on this issue. In Spencer , Spencer dropped off an accomplice in front of a Lowe's store. Id. at ¶ 2. The accomplice picked up a rug inside the store and placed it in a shopping cart. Id. Spencer then met his accomplice inside the store and the two proceeded to the returns aisle to return the rug without paying for it. Id. A Lowe's employee completed the return and gave a merchandise card to the accomplice. Id. at ¶ 3.

{¶ 38} Spencer was then charged and convicted of theft. Id. at ¶ 5. On appeal, Spencer argued that his theft conviction was insufficient because the element of obtaining or exerting control over the property was not met. Id. at ¶ 8. Spencer argued the element was not met because he never touched the rug nor touched the merchandise card. Id. at ¶ 13. The Eighth District held that because Spencer engaged in acts consistent with a fraudulent return, he did knowingly obtain or exert control over the merchandise card. Id.

{¶ 39} In this case, while appellant did not receive the gift card before being apprehended, he did initiate a fraudulent return for the purposes of obtaining the gift card. This is similar to the facts in Spencer where Spencer initiated the fraudulent return but did not physically possess the stolen merchandise.

{¶ 40} Moreover, even though appellant did not leave the store with the gift card in this case, the law does not require the store to wait until the defendant leaves a store with merchandise before apprehending said defendant for shoplifting. State v. Arthur, 4th Dist. No. 01CA2818, 2002-Ohio-3764, 2002 WL 1728150, ¶ 17 citing State v. Williams , 16 Ohio App.3d 232, 234, 475 N.E.2d 168 (2d Dist. 1984). Ultimately, appellant's theft conviction was sufficient as a matter of law.

{¶ 41} Accordingly, appellant's third assignment of error lacks merit and is overruled.

{¶ 42} For the reasons stated above, the trial court's judgment is hereby affirmed.

Waite, J., Concurs

Robb, P.J., Concurs


author: Baldwin, J.

text:
    Darlene K. WINDSOR, Plaintiff-Appellee v. Lonny BRISTOW, Defendant-Appellant
    No. 17CA86
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT: March 15, 2018
    DARLENE K. WINDSOR, pro se, 1478 State Route 545, Mansfield, Ohio 44905, For Plaintiff-Appellee.
    LONNY BRISTOW, pro se, P.O. Box 1316, Wooster, Ohio 44691, For Defendant-Appellant.
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellant, Lonny Bristow, appeals the Richland County Court of Common Pleas issuance of a consent order establishing a stalking civil protection order pursuant to R.C. 2903.214. Appellee is Darlene K. Windsor.

STATEMENT OF FACTS AND THE CASE

{¶ 2} On August 31, 2017 appellee filed a petition for civil stalking protection order pursuant to R. C. 2903.214 seeking protection for herself, her spouse, and her children. Within the petition she alleged that appellant was a "convicted vexatious litigant" who filed multiple lawsuits against her seeking damages from $25,000.00 to $100,000.00 and asking that her assets be frozen. She alleged appellant has filed in excess of 60 lawsuits causing her physical and mental distress and requiring treatment by her physician. She claimed that litigation lists her children and that she was concerned appellant would retaliate by pursuing litigation against her children if he was unable to pursue lawsuits against her.

{¶ 3} An ex parte order was issued granting a temporary civil protection order on August 31, 2017. On September 5, 2017 the trial court transferred the case to Judge James DeWeese because Judge Brent N. Robinson's impartiality had been questioned.

{¶ 4} Thereafter, appellant filed several motions. On September 7, 2017 he filed a motion captioned "Motion to Dismiss Pursuant to the Unclean Hands Doctrine and Abuse of Process." On that same date he filed motions captioned "Motion to Dismiss Due to Mootness," "Motion to Prevent Petitioner from Dismissing this Case," "Respondent's First and Last Motion for an Extension of Time for a Full Hearing," and " Motion To Set Dispositive Motions For An Evidentiary Hearing." Appellee filed several responses, all captioned "Motion to Dismiss" but a review of those responses reveals that they were in fact memoranda contra appellant's motions.

{¶ 5} On September 12, 2017 the trial court reviewed the respondent's motions and "found each one to lack demonstrated merit." A full hearing on the civil stalking protection order was scheduled for September 13, 2017 at 9:00 AM and the trial court ordered that it proceed as scheduled.

{¶ 6} On September 13, 2017 an order of protection was journalized on the standard form approved by the Supreme Court of Ohio. On the first page of that order the word "consent" is hand written and on the 2nd page the typewritten notation "consent agreement" appears. Paragraph 14 of the order states "all of the terms of this order shall remain in full force and effect for a period of 5 years from issuance or until 09/13/2023."

{¶ 7} The last page of the protection order contains the following waiver language:

I, Lonny Lee Bristow understand that I have the right to a full hearing on the petition for civil stalking protection order or civil sexually oriented offense protection order, and acknowledge each of the following:
1. I waive the right to have a full hearing on this protection order;
2. I waive the right to cross-examine witnesses and review evidence submitted in support of this protection order;
3. I waive the right to present witnesses and evidence on my own behalf;
4. I waive the right to request specific factual findings from the court concerning the issuance of this protection order.
I understand that based on the waivers listed above, a protection order will be entered against me.

{¶ 8} The signatures of the appellant and the appellee follow this waiver language, both dated September 13, 2017.

{¶ 9} On October 5, 2017 the trial court issued an "Amendment to Order of Protection to Reflect 5 Year Maximum Effective Date." The court corrected the order of protection to show that the order was "effective until 09/13/2022 instead of 09/13/2023" "to reflect the agreement of the parties that the order of protection would be for a five year period from September 13, 2017."

{¶ 10} On October 2, 2017 appellant filed a motion for leave to proceed with a notice of appeal in a protection order case pursuant to the requirements of R.C. 2323.52(F)(2). While not expressly admitted in this motion, it is implied and later conceded by appellant that he has been deemed a vexatious litigator whose filings are controlled by R.C. 2323.52. On October 27, 2017 this court ordered appellant to provide a copy of the order he sought to appeal before considering his motion. On November 8, 2017 appellant complied and, on November 17, 2017 appellant was granted leave to appeal the consent order. Appellant's notice of appeal was filed on November 22, 2017.

{¶ 11} Appellant submits three assignments of error:

{¶ 12} I. THE TRIAL COURT EXCEEDED ITS JURISDICTION IN MAKING THE TERMS OF THE CIVIL STALKING PROTECTION ORDER FOR SIX (6) YEARS WHERE TERMS OF SUCH AN ORDER ARE ONLY STATUTORILY VALID FOR FIVE (5) YEARS.

{¶ 13} II. THE TRIAL COURT LACKED JURISDICTION TO AMEND ITS JUDGMENT AFTER THE MOTION FOR LEAVE TO PROCEED WAS FILED.

{¶ 14} III. THE TRIAL COURT LACKED JURISDICTION AND AUTHORITY TO ORDER APPELLANT NOT COMMENCE LAWSUITS AGAINST APPELLEE IN ANY COURT.

STANDARD OF REVIEW

{¶ 15} Appellant challenges the jurisdiction of the trial court in his assignments of error and does not dispute any factual matters. We note that appellant does not argue that he did not agree to the terms of the consent order or that his consent was fraudulently or wrongly obtained. We will, therefore, review the trial court's actions de novo without any deference to its conclusions. Dazey v. Pollock , 5th Dist. Stark No. 2006 CA 00064, 2006-Ohio-4850, 2006 WL 2672381, ¶ 9, (citations omitted)

{¶ 16} We overrule appellant's first and second assignments of error because the trial court issued a correction on October 2, 2017 to reflect a termination date five years from its effective date as required by R.C.2903.214. The trial Court's order was issued well before the filing of the notice of appeal on November 22, 2017, so the trial court retained the authority to act and this court did not yet have jurisdiction over the matter. State ex rel. Sapp v. Franklin Cty. Court of Appeals , 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 32 (2008) ; State ex rel. DeWine v. Johnson , 4th Dist. Athens No. 17CA13, 2017-Ohio-5701, 2017 WL 2838639, ¶ 8

{¶ 17} We disagree with appellant's contention that the trial court's jurisdiction over the matter ended upon his filing for leave to initiate the appeal. Revised Code Section 2323.52 does toll the time within which a notice of appeal must be filed, but it has no impact on the trial court's authority. An appeal is initiated and the trial court divested of jurisdiction only by the filing of a notice of appeal. App. R. 3(A) ;

Arthur v. Trimmer , 5th Dist. Delaware No. 02CA06029, 2003-Ohio-2034, 2003 WL 1919047, ¶ 12. The filing of the motion for leave to initiate appeal did not affect the trial court's jurisdiction to correct the error in the protective order.

{¶ 18} Appellant's first and second assignments of error are overruled.

{¶ 19} In his third assignment of error, appellant asks this court to find that the consent order to which he agreed is unenforceable because the trial court lacks jurisdiction to issue an order prohibiting his filing any legal action against the appellee. Appellant discusses the case of Mayer v. Bristow , 91 Ohio St.3d 3, 740 N.E.2d 656 (2000) and the limitations on the trial court's authority to restrict his access to the courts. Appellant's reliance on Mayer is inapposite as the opinion in that case addressed an order issued by the trial court that stated "It is further ORDERED that any mail from Lonny Lee Bristow that is addressed to any court other than to Judge Nelfred G. Kimerline, as stated above, shall be forward[ed] to this Court for a determination as to its disposition." The trial court in Mayer was struggling to control appellant's penchant to file litigation "for the only purpose of satisfying his vindictiveness through the filing of frivolous lawsuits." Mayer, supra at p. 6, 740 N.E.2d 656 The opinion in Mayer does not address the issue of appellant entering into a consent order which includes within its terms a bar to his filing an action against appellee and her family in any court.

{¶ 20} Unlike the court in Mayer , the trial court in the case sub judice did not issue an order barring the appellant from addressing any court. Instead, appellant and appellee entered into an agreement and submitted the same to the trial court for incorporation into its order, after which all parties signed their agreement to the same. While Mayer holds that "A court of common pleas has no authority under R.C. 2323.52, or pursuant to its own inherent powers to prevent abuse of the judicial process, to restrict the activities of a vexatious litigator in courts other than these specifically enumerated Ohio trial courts." Mayer , supra, paragraph 2 of syllabus, that opinion does not prohibit appellant voluntarily and expressly waiving his right to file any lawsuit against the appellee or others listed in the order.

{¶ 21} While appellant was acting pro se in this matter, we conclude that he was well aware of his rights and the consequences of his actions before the trial court. Appellant's pro se participation in Mayer v. Bristow , this case and other matters he has pursued support the conclusion that he possesses adequate knowledge regarding his ability and right to access the courts. Appellant voluntarily waived that known right and expressly entered into a consent judgment waiving his right to pursue claims against appellee and her family. Sanit. Commercial Services, Inc. v. Shank , 57 Ohio St.3d 178, 181, 566 N.E.2d 1215, 1218 (1991) ; State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn. , 97 Ohio St.3d 269, 2002-Ohio-6322, 779 N.E.2d 216, ¶ 22 (2002) ;

{¶ 22} Consent orders such as the one in this case, are authorized in the context of civil protection orders issued pursuant to R.C. 2903.214. Harris v. Miami Cty. Sheriff's Dept., 160 Ohio App.3d 435, 2005-Ohio-1713, 827 N.E.2d 807, ¶ 17 ; State v. Myers , 10th Dist. Franklin No. 09AP-212, 2009-Ohio-4659, 2009 WL 2872977, ¶ 2 We will not interfere with the clear and unambiguous agreement of the parties based upon the appellant's change of heart regarding the terms of the consent order. The Supreme Court of Ohio has noted that "[f]rom early in this state's history, we have held that a party participating in a consent judgment will not be allowed to appeal errors from that judgment. Wells v. Warrick Martin & Co. (1853), 1 Ohio St. 386, paragraph one of the syllabus; Jackson v. Jackson (1865), 16 Ohio St. 163, paragraph one of the syllabus, citing Wells, supra. Sanit. Commercial Services, Inc. v. Shank , 57 Ohio St.3d 178, 181, 566 N.E.2d 1215, 1218 (1991). The record in this case provide no reason to deviate from this precedent.

{¶ 23} For those reasons, we find Mayer inapplicable and overrule appellant's third assignment of error.

{¶ 24} For the forgoing reasons, the decision of the Richland County Court of Common Pleas is affirmed. Costs assessed to appellant.

John Wise, P.J. and W. Scott Gwin, J. concur.


author: MELODY J. STEWART, J.:

text:
    BLAIN'S FOLDING SERVICE, INC., et al., Defendants-Appellants v. CINCINNATI INSURANCE COMPANY, et al., Plaintiffs-Appellees
    No. 105913
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Barry Murner, Spitz Law Firm, 25200 Chagrin Blvd., Suite 200, Beachwood, OH 44122, ATTORNEY FOR APPELLANTS.
    Matthew P. Baringer, Thomas W. Wright, Davis & Young, 29010 Chardon Road, Willoughby Hills, OH 44092, Patrick S. Corrigan, Patrick S. Corrigan, Esq., 55 Public Square, Suite 930, Cleveland, OH 44113, Victoria D. Barto, Law Offices of Stephen J. Proe, 6000 Lomardo Center, Suite 420, The Genesis Building, Seven Hills, OH 44131, ATTORNEYS FOR APPELLEES.
    BEFORE: Stewart, J., E.A. Gallagher, A.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} An automobile accident caused extensive damage to a building owned by plaintiff-appellant Blain's Folding Service, Inc. Blain's alleged that defendant-appellee DANE Contractors, Inc., who had been hired to perform repair and restoration, failed to install a separate, dedicated power source for a newly installed cutting machine, causing the machine to experience power surges. It brought this breach of contract and negligence action against DANE, alleging that delays in installing a separate power source caused it to lose a three-year job worth $350,000 per year. DANE filed a motion for summary judgment on the grounds that Blain's could not recover future lost profits on a contract that violated the statute of frauds and that the claimed lost profits were too remote or speculative. The court granted summary judgment without opinion.

I. Statute of Frauds

{¶ 2} Blain's first assignment of error is that the court erred by granting summary judgment under the statute of frauds because DANE did not raise the statute of frauds as an affirmative defense in its answer to the complaint.

{¶ 3} The statute of frauds states that no action can be brought upon an agreement that is not to be performed within one year unless the agreement is reduced to writing. See R.C. 1335.05. The statute of frauds is an affirmative defense, see Civ.R. 8(C), that is waived if not pleaded in an answer to a responsive pleading. See Houser v. Ohio Historical Soc. , 62 Ohio St.2d 77, 79, 403 N.E.2d 965 (1980) ; DG Indus., L.L.C. v. McClure , 7th Dist. Mahoning Nos. 11 MA 59 and 11 MA 69, 2012-Ohio-4035, 2012 WL 3834799, ¶ 18.

{¶ 4} There is no question that DANE did not list the statute of frauds as an affirmative defense in its answer to the complaint. But we agree with DANE that it had no obligation to raise the statute of frauds as an affirmative defense. "[T]he statute of frauds bars a party from enforcing an oral agreement falling within the statute." FirstMerit Bank, N.A. v. Inks , 138 Ohio St.3d 384, 2014-Ohio-789, 7 N.E.3d 1150, ¶ 22. In this context, "party" means a party to the contract. As a matter of common law contract, "a defense under the statute of frauds is personal to the parties to the transaction and cannot be availed of by third parties." Texeramics v. United States , 239 F.2d 762, 764 (5th Cir.1957).

{¶ 5} But these same principles mean that DANE had no standing to question the enforceability of any contract that Blain's made with a third party. The statute of frauds "is a mere defense. It is not a matter of substance." Leibovitz v. Cent. Natl. Bank , 75 Ohio App. 25, 29, 60 N.E.2d 727 (8th Dist.1944). And if the statute of frauds, as an affirmative defense, can be waived by the parties to a contract, a nonparty to a contract like DANE cannot avail itself of the affirmative defense to claim that a contract is unenforceable. Legros v. Tarr , 44 Ohio St.3d 1, 8, 540 N.E.2d 257 (1989), quoting Bradkin v. Leverton , 26 N.Y.2d 192, 199, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970) (" 'where a third party is concerned, the Statute of Frauds provides no defense to him.' "). See also Edwards Mfg. Co. v. Bradford Co. , 294 F. 176, 181 (2d Cir.1923) ("the defense of the statute of frauds is personal to the contracting parties.").

{¶ 6} DANE cites Bell v. Horton , 113 Ohio App.3d 363, 680 N.E.2d 1272 (4th Dist.1996), for the proposition that a nonparty to an oral contract may raise the statute of frauds as a defense. In that case, Bell reached an oral agreement to sell unimproved property to another, who would erect a house on the premises and sell it to a third party. Bell alleged that the defendant, Whitten, made certain statements to the buyer and third party, causing them to decide not to purchase the property. Bell filed an action alleging that Whitten toritously interfered with his contractual relationship. Reviewing the elements of a tortious interference with contract claim, the Fourth District Court of Appeals found that there was no valid and enforceable contract under the statute of frauds because the agreement to sell real property had not been reduced to writing. Id . at 366, 680 N.E.2d 1272.

{¶ 7} Bell did not address well-established law that " 'it usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, lack of consideration, lack of mutuality, or even uncertainty of terms, still afford a basis for a tort action when the defendant interferes with their performance.' " Harris v. Perl , 41 N.J. 455, 461, 197 A.2d 359 (1964), quoting Prosser, Handbook of the Law of Torts , Section 106 (2d Ed. 1955). This is based on the idea that "the statute of frauds was enacted for the benefit of a party to the transaction and is not available to strangers who tortiously interfere with contractual or advantageous relations created by the transaction." Geo.H. Beckmann, Inc. v. Charles H. Reid & Sons, Inc. , 44 N.J. Super. 159, 130 A.2d 48, 52 (App.Div. 1957) (collecting cases).

{¶ 8} Bell thus failed to appreciate the difference between a contract that is unenforceable and a contract that is void. A contract that is not within the statute of frauds is not a void or illegal contract, nor is there any public policy against its performance. See Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts , Section 129, 932 (5th Ed.1984) ("The law of course does not object to the voluntary performance of agreements merely because it will not enforce them, and it indulges in the assumption that even unenforceable promises will be carried out if no third person interferes."). That a contract is outside the statute of frauds does not mean that it does not exist, much less that it cannot be performed by the parties. See also 1 Restatement of the Law 2d, Torts, Section 766, Comment f (1965) (" It is not, however, necessary that the contract be legally enforceable against the third person. A promise may be a valid and subsisting contract even though it is voidable. * * * The third person may have a defense against action on the contract that would permit him to avoid it and escape liability on it if he sees fit to do so. Until he does, the contract is a valid and subsisting relation, with which the actor is not permitted to interfere improperly.").

{¶ 9} It follows that whether an alleged contract between Blain's and its customer, AGS Custom Graphics ("AGS"), had been reduced to writing was not a valid basis for granting summary judgment. Nevertheless, there was a different, viable basis for granting summary judgment.

II. Speculative Damages

{¶ 10} Among the damages sought by Blain's were "economic losses including but not limited to loss of profits, loss of the accounts, delays in production, increase in costs to complete jobs, loss of future accounts, and loss of future contracts." In its motion for summary judgment, DANE argued that Blain's demand for lost profits was remote and speculative because there was "real doubt" that a three-year oral contract existed between Blain's and AGS. Blain's maintained that a contract did exist and that lost profits were ascertainable to a reasonable degree of certainty as shown by its expert who calculated lost profits based on the anticipated revenue to be generated from AGS's and Blain's historical profit margin.

{¶ 11} In general, contract damages should place the nonbreaching party in the position it would have been in had the breaching party fully performed under the contract. State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn. , 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¶ 26. Lost profits are recoverable for a breach of contract, but only if (1) the profits were within the contemplation of the parties at the time the contract was made, (2) the loss of profits is the probable result of the breach of contract, and (3) the profits are not remote and speculative and may be shown with reasonable certainty. Charles R. Combs Trucking, Inc. v. Internatl. Harvester Co. , 12 Ohio St.3d 241, 243, 466 N.E.2d 883 (1984), paragraph two of the syllabus. Lost profits are remote or speculative if they cannot be demonstrated with reasonable certainty. Gahanna v. Eastgate Properties, Inc. , 36 Ohio St.3d 65, 521 N.E.2d 814 (1988), syllabus.

{¶ 12} Viewing the facts most favorable to Blain's, see Civ.R. 56(C), we find that the facts do not establish the existence of a contract with AGS. Blain's maintained that the project would last three years, with the specific work to be completed in several bindery jobs over the time period. But what Blain's described as "its" project was, in fact, a project that belonged to AGS, not to Blain's. AGS pieced out several jobs to Blain's, all of which Blain's concedes were separately quoted and billed. AGS made it clear that it "did not have a three-year contract or any type of contract" with Blain's on the project. This was because AGS had made the decision, even before the events giving rise to this case, to purchase equipment that would allow it to do in-house the jobs that Blain's was performing for it. It was for this reason that AGS denied that it had any contract with Blain's, much less one that ran for three years. Blain's evidence shows only that it had the hope of bidding on AGS's business for the next three years. That hope did not establish that any contract existed between it and AGS.

{¶ 13} The record also does not disclose any contract between Blain's and DANE.

Blain's did not attach a copy of its contract with AGS to its complaint. "When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading." Civ.R. 10(D). In fact, the complaint alleged that DANE had been hired by Cincinnati Insurance, Blain's insurer: "Defendant DANE was retained and/or recommended and/or approved by Defendant Cincinnati." Blain's manager of operations reaffirmed that Blain's did not hire DANE when he averred that "Cincinnati Insurance retained and recommended the services of Defendant DANE Contractors, Inc. ("Dane") to act as the general contractor." Affidavit of Edward Blain at ¶ 5.

{¶ 14} It may be that Blain's was a third-party beneficiary of DANE's contract with Cincinnati Insurance. However, it had to establish its status as a third-party beneficiary by providing evidence on that point. Campbell Oil Co. v. Shepperson , 7th Dist. Carroll No. 05 CA 817, 2006-Ohio-1763, 2006 WL 891002, ¶ 27, citing Hill v. Sonitrol of S.W. Ohio, Inc. , 36 Ohio St.3d 36, 40, 521 N.E.2d 780 (1988). Blain's has never alleged that it was a third-party beneficiary of any contract between Cincinnati and DANE, and equally important, it has not provided any contract between Cincinnati and DANE that would establish that fact. Id. In any event, this issue was not raised below, so we cannot review it. Fifth Third Bank v. Senvisky , 8th Dist. Cuyahoga Nos. 100030 and 100571, 2014-Ohio-1233, 2014 WL 1340410, ¶ 21, fn. 2 ("we cannot address defendants' third-party beneficiary claim or fraud allegations because they failed to raise these issues in front of the trial court.").

{¶ 15} Even had Blain's properly pleaded and supported its status as a party or beneficiary to a contract with DANE, we would find its claim for lost profits to be speculative.

{¶ 16} Blain's expert said that in the preceding 13 years, Blain's saw "approximately 31% of marginal revenues flow to profits after fixed expenses have been paid. In other words, 69% of marginal revenues, on average, are used to cover variable and mixed overhead." Assuming annual revenues of between $350,000 and $380,000, the expert concluded that Blain's would have realized profits of between $327,600 and $355,680 on business provided by AGS.

{¶ 17} The expert's calculations were based on Blain's general business revenues and were not specific to work done for AGS. The evidence showed that Blain's did work for other clients that differed from the specific tasks that it performed for AGS. And even if the tasks were the same, it is reasonable to think that Blain's would price jobs differently based on the individual customer. The expert's failure to render an opinion based solely on work performed for AGS meant that he rendered an opinion that was too general to meet the reasonable degree of certainty standard for proving contract damages.

{¶ 18} Finally, Blain's argues that regardless of whether it adequately proved lost profit with respect to AGS, it had claims for other lost business. We can summarily reject this argument because Blain's failed to offer any evidence of what those lost profits might be-its expert only gave an opinion with respect to lost profit from AGS. Since the claims based on a breach of contract only sought lost profits as damages, Blain's had to prove the loss. Endersby v. Schneppe , 73 Ohio App.3d 212, 216, 596 N.E.2d 1081 (3d Dist.1991).

{¶ 19} The same is true of Blain's negligence claim. A party opposing a motion for summary judgment may not rest on its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Civ.R. 56(E). As with its contract claims, Blain's offered no evidence to prove the existence of any damages resulting from DANE's alleged negligence. Pietz v. Toledo Trust Co. , 63 Ohio App.3d 17, 22, 577 N.E.2d 1118 (6th Dist.1989) ("Injury or damage is a necessary element of a cause of action for negligence, without which summary judgment can be granted."). We therefore conclude that the court did not err by granting summary judgment on all causes of action raised in the complaint.

{¶ 20} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR

      Blain's also named The Cincinnati Insurance Company, Haywood Electric, Inc., the driver of the automobile (who died in the accident), the owner of the automobile, and ten John Does. These defendants were all dismissed from the action, leaving DANE as the sole defendant.

      DANE also cites Hodges v. Ettinger , 127 Ohio St. 460, 467, 189 N.E. 113 (1934), for the proposition that "no distinctively legal action can be maintained upon an oral contract within the statute of frauds." That case is inapplicable because it involved a breach of contract action between parties to a contract and whether the contract was unenforceable as being outside the statute of frauds-no third person was attempting to avoid liability by using the statute of frauds to claim that the contract was unenforceable.


author: SEAN C. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellant v. Anthony CHRISTIAN, et al., Defendants-Appellees
    Nos. 105601 105602
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Sean Kilbane, Anthony Thomas Miranda, Assistant County Prosecutors, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Lawrence R. Floyd, P.O. Box 202271, 3713 Lee Road, Shaker Heights, Ohio 44120, For Anthony Christian
    Jerome M. Emoff, Dworken & Bernstein Co., L.P.A., 1468 West Ninth Street, Suite 135, Cleveland, Ohio 44113, For Marcus Cammon
    BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} The state of Ohio appeals the trial court's granting of Anthony Christian's and Marcus Cammon's motions to suppress. For the following reasons, we reverse.

{¶ 2} Christian was indicted on two weapons charges, and Cammon was indicted on several weapons, drug, and attendant charges. The indictments resulted from a search of the defendants and their parked vehicle. Both defendants filed motions to suppress, and the trial court held a joint hearing on the motions.

{¶ 3} The state's sole witness was a detective of the Cleveland police department's gang impact unit. He testified that, on the day in question, at approximately 2:00 p.m., he and two other detectives, also from the gang impact unit, were on routine patrol in the area of East 40th Street and Quincy Avenue in Cleveland, which he described as a "high-crime area." He and the other detectives were in an unmarked black Chevrolet Tahoe, with nontinted windows and anterior police lights. The detectives were dressed in plain clothes but were wearing tactical vests that had "POLICE" in white lettering on the front and back, and they were also wearing their police badges on their chests.

{¶ 4} While they were patrolling, the testifying detective, who was the back-seat passenger, saw Christian walk up to the front door of a home and meet with another male. None of the detectives knew Christian or the man with whom he met. Christian and the male made a "hand-to-hand transaction." He described such a transaction as "where two people * * * meet up with each other and something is handed from one person to the other." The detective testified that it did not appear that Christian and the male had merely exchanged a handshake or a greeting; rather, it appeared to him that some item was handed off between them, although he could not specifically see anything transferred. The detectives believed they witnessed a hand-to-hand narcotic transaction.

{¶ 5} Christian was at the door for only a "couple of seconds," before he ran back to a nearby, legally parked minivan. When Christian reached the minivan, he looked "directly into" the police vehicle. Christian then looked back over his shoulders toward the police vehicle five or six times. The detective opined, based on his police experience, that Christian was aware of the detectives' presence and status as law enforcement officers.

{¶ 6} The detectives drove around the block, and when they came back to where they had last seen Christian, the minivan was still parked in the same spot. Christian and Cammon remained inside it. The detectives, because of the suspect nature of the hand-to-hand transaction, the nervous, "out of the ordinary" behavior of Christian, and the high-crime nature of the area, decided to "stop" the van to investigate. They activated the Tahoe's lights and sirens and pulled up behind the van.

{¶ 7} As the detectives approached the minivan, Christian reached down toward the floor, toward the middle portion of the back of the vehicle. Cammon exited the minivan, "bladed his body away from" the detectives, and said "I didn't do anything wrong," as he reached down toward his waistband area. Cammon "tried to re-enter the vehicle, bending over the front passenger's seat out of [the detectives'] view, reaching down towards the floor." Cammon then ran, and two detectives gave chase on foot.

{¶ 8} Cammon was apprehended and searched. Cammon had a plastic baggie, with what appeared to be crack cocaine, in one of his pockets. Cammon was handcuffed and returned to the minivan. At that time, Christian had been removed from the vehicle and detained. Both defendants were handcuffed, and they were either standing behind the van or were in the police vehicle. The detectives then executed a search of the minivan. The detectives recovered a gun underneath the front passenger seat and another gun underneath a third-row seat.

{¶ 9} The trial court found that "there existed no reasonable suspicion of criminal activity. [The detective] may have had a suspicion or a hunch criminal activity was afoot, but he did not articulate a reasonable suspicion of criminal activity as required by Terry v. Ohio [, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]." (Emphasis sic.) The trial court further found that the evidence did not establish that Christian was aware that the police were in the Tahoe, or that his interaction with the unknown male was a "hand-to-hand transaction." Thus, at this stage our inquiry is limited to determining the validity of the initial encounter. The trial court did not render any decisions with respect to the defendants' remaining arguments.

{¶ 10} "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. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). However, after accepting the facts as true, we must independently determine, without deference to the trial court, whether the facts satisfy the applicable legal standard. Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). The trial court accepted the detective's testimony in this case-the court took issue with the legal conclusion that could be drawn therefrom. Thus, we must independently review the application of the facts to the relevant legal standard. Although the state quibbles with the trial court's factual conclusions about the lighting and the defendants' detection of the police detectives' presence before the investigatory stop, neither fact would alter the legal conclusion. Thus, we need not discuss or resolve any factual issues as the state requests.

{¶ 11} The trial court found that the detectives observed what they believed to be, because of their training and experience, a "hand-to-hand" transaction between Christian and an unknown male indicative of a drug purchase. The detectives observed Christian walk to the house, engage in the hand-to-hand transaction, and immediately return to the passenger side of a parked vehicle for which no driver was readily apparent. According to the testimony, Christian kept nervously glancing at the unmarked police vehicle as it drove past. The trial court found that it was unknown if anything was exchanged during the hand-to-hand transaction and whether Christian was aware that the unmarked vehicle held police detectives. When the detectives initiated the investigatory stop, Cammon "bladed his body" away from the detectives and reached for his waistband area. He then fled the scene after fumbling with something in the back of the van. The detectives chased and detained Cammon. Christian remained in the second-row area of the parked vehicle during the chase.

{¶ 12} In applying those facts to the applicable legal standard, the trial court acknowledged State v. Agee , 8th Dist. Cuyahoga No. 94035, 2010-Ohio-5074, 2010 WL 4069991, ¶ 5, in which police officers witnessed the defendant exit a lawfully parked vehicle and approach another person while both extended their hands. Before continuing, the defendant checked around, noticed the presence of the police officers, and "darted back" into his vehicle. Id. The police initiated a stop and observed the defendant making furtive movements as they approached. Id. at ¶ 23. Upon that evidence, it was concluded that the officers articulated a reasonable suspicion that the defendant was engaged in criminal activity, validating the initial stop.

{¶ 13} The trial court distinguished Agee , finding that Christian did not make any abrupt actions or stop the hand-to-hand transaction upon noticing the detectives. The court also concluded that the "nervous" glance at the unmarked vehicle was too speculative and highly subjective because furtive movements alone are not sufficient to support reasonable suspicion of criminal activity in high-crime areas. State v. Caldwell , 5th Dist. Richland No. 2011-CA-0024, 2011-Ohio-5429, 2011 WL 5022896, ¶ 47. Finally, the trial court placed elevated significance on the fact that the detectives could not see if anything was passed between the two suspects when the hand-to-hand transaction took place.

{¶ 14} The detective's testimony was not deemed incredible. Neither Christian nor Cammon testified. The trial court concluded that the testifying detective saw what he saw, but the detective's suspicion of criminal activity with respect to the perceived hand-to-hand drug transaction was not reasonable because there was a possibility that Christian was engaging in an innocent activity-merely shaking the occupant's hand. Thus, the trial court based its legal conclusion on undisputed evidence; the court simply inferred that because innocent explanations existed for the alleged illegal conduct, that legally speaking, the officers were unable to articulate a reasonable suspicion of having observed illicit behavior. This is an important distinction because we cannot defer to the trial court's conclusions under the belief that the trial court's conclusions resolved the credibility of the witnesses. The trial court found that innocent explanations for Christian's behavior existed for the purpose of distinguishing case law in reaching a legal conclusion. Thus, the only issue properly before this court is the application of the accepted facts to the applicable legal standard. The trial court merely considered the evidence to be insufficient to withstand legal scrutiny. With this in mind, we must independently review the application of the facts to the law, and we do not defer to the trial court.

{¶ 15} The trial court relied on cases stating that the existence of nervous glances is not sufficient to find a reasonable suspicion of criminal activity. Caldwell ; Brown v. Texas , 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). We do not disagree with that position as a matter of black letter law. The issue in this case, however, is determining whether the existence of multiple factors, not just Christian's nervous glances, in support of the detectives' reasonable suspicion justified the initial investigative stop. We cannot consider a single fact in isolation.

{¶ 16} Warrantless searches are presumptively unconstitutional, subject to a limited number of specific exceptions. One exception to the rule requiring warrants is found in Terry , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which stands for the proposition that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibl[e] criminal behavior * * *." Id. at 22, 88 S.Ct. 1868. To warrant a Terry investigatory stop, the police "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, 88 S.Ct. 1868. The Ohio Supreme Court additionally stated that an investigatory stop "must be viewed in light of the totality of the surrounding circumstances." State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.

{¶ 17} Terry also held that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous" the officer may conduct a protective search for weapons. Terry at 24, 88 S.Ct. 1868 ; see also State v. Williams , 51 Ohio St.3d 58, 554 N.E.2d 108 (1990).

{¶ 18} In Agee, for example, the court considered, (1) the fact that the officers witnessed the defendant approach another with hands outstretched, (2) the officers' experience and training, (3) the high-crime area in which the conduct occurred, (4) the defendant's evasive behavior after seeing police officers, and (5) the fact that the defendant made furtive movements after the stop was first initiated, in determining that the investigative stop was justified. Agee, 8th Dist. Cuyahoga No. 94035, 2010-Ohio-5074, 2010 WL 4069991, at ¶ 21-24. In this case, (1) the conduct occurred in a what the detective described as a high-crime area; (2) the detectives were experienced; (3) the detectives observed Christian walk up to a house, conduct some form of a hand-to-hand transaction with the occupant, indicative of the drug trade, and immediately walk back to the passenger side of the parked car; and (4) there were furtive movements by both defendants after the detectives initiated the investigative stop. Thus, at least four of the factual underpinnings of Agee are present. Importantly, Agee was not dependent on the detectives observing an object being exchanged, and therefore, the noted distinction is not dispositive.

{¶ 19} The only factual difference between Agee and the present case is the defendants' reactions to seeing detectives before the detectives initiated the investigative stop. The fact that Christian did not see the detectives before conducting the purported hand-to-hand drug transaction or did not flee before the detectives initiated the stop should not trouble the analysis. It is merely one factor for consideration, but its absence is not dispositive-not all offenders are as adept at spotting police officers as the defendant in Agee was. Agee is not otherwise distinguishable, and the outcome should therefore be the same.

{¶ 20} And finally, the fact that Christian walked up to the house and immediately returned to his car after shaking the occupant's hand (or conducting a hand-to-hand drug transaction, depending on the perspective) distinguishes these facts from cases such as State v. Carmichael , 8th Dist. Cuyahoga No. 95618, 2011-Ohio-2921, 2011 WL 2436533, and State v. Pettegrew , 8th Dist. Cuyahoga No. 91816, 2009-Ohio-4981, 2009 WL 3042040, in which it was concluded that the mere fact of seeing a hand-to-hand transaction in progress was insufficient to justify the investigative stop. State v. Clayton , 8th Dist. Cuyahoga No. 102277, 2015-Ohio-4370, 2015 WL 6392185, ¶ 22 (the only fact offered as a basis for reasonable suspicion was the observation of a hand-to-hand transaction). Further, immediately after the detectives initiated the investigative stop, Cammon exhibited conduct consistent with the intent to draw a weapon from his waistband before attempting to flee the scene. Christian immediately made furtive movements appearing to place or grab something from the interior of the van-conduct that can be considered under the totality of the circumstances. United States v. Hurd , 785 F.3d 311, 314 (8th Cir.2015) ; United States v. Paulette , 457 F.3d 601, 606 (6th Cir.2006).

{¶ 21} The detectives' experience and training, the fact that the defendants were in a high-crime area, and the fact that Christian walked up to the house and immediately returned to the parked vehicle where additional furtive movements by both defendants were observed once detectives approached the parked vehicle, satisfy the constitutional safeguards. Hurd ; Paulette . We are not faced with a situation in which the officers only observed two people shake hands and go their separate ways in a high-crime area. Christian, at the least, aroused reasonable suspicion by walking to the house and immediately returning to his vehicle after conducting what experienced and trained detectives observed to be hand movements consistent with drug-dealing activity. See, e.g. , State v. Benton , 8th Dist. Cuyahoga No. 88099, 2007-Ohio-1142, 2007 WL 764717, ¶ 17 (officers had probable cause to arrest based on observing a hand-to-hand transaction). Cammon fortified the suspicion by reacting to the detectives' presence in the manner he did. Importantly, we do not base this decision on the perceived nervous glances Christian gave the detectives-the trial court found those to be insufficient. In light of the totality of the circumstances, the detectives had a reasonable, articulable suspicion justifying the investigative stop.

{¶ 22} We reverse the decision to suppress the evidence based on the validity of the initial stop. The detectives articulated a reasonable suspicion that the defendants were engaged in criminal conduct justifying the initial encounter and detention. The matter is remanded for further proceedings, with the acknowledgment that there are outstanding suppression issues to be resolved-such as the search of the minivan following the defendants' detention and the defendants' standing to contest that search.

{¶ 23} Reversed and remanded.

MARY J. BOYLE, P.J., CONCURS;

LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION

{¶ 24} Respectfully, I dissent and would uphold the trial court's decision granting the defendants' motions to suppress.

{¶ 25} As the majority correctly notes, the trial court assumes the role of trier of fact in considering a suppression motion. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Thus, the trial court is in the best position to resolve factual questions and evaluate the credibility of witnesses. Id.

{¶ 26} The trial court here reached its conclusions after considering the direct and cross-examinations of the sole witness, the detective, who "laboriously explored" the events that gave rise to the stop of the defendants. The trial court found that the detective failed to establish that there was reasonable suspicion of criminal activity, and in doing so, distinguished this case from State v. Agee , 8th Dist. Cuyahoga No. 94035, 2010-Ohio-5074, 2010 WL 4069991, which the majority relies on.

{¶ 27} The majority finds, however, that this case is aligned with Agee , and that the detective "articulated a reasonable suspicion that the defendants were engaged in criminal conduct justifying the initial encounter and detention." Upon review, I believe the trial court's distinction of Agee from this case was proper.

{¶ 28} In Agee , the police observed the defendant get out of a vehicle and approach a female, who was a short distance away. Both the defendant and the female put their hands out, "as [if] to make a transaction." Id. at ¶ 5. The defendant then gave "one last look to see if anyone was around." Id. At that point, the defendant saw the police vehicle, and "abruptly pulled his hand away and darted back" to the vehicle. Id. at ¶ 6.

{¶ 29} The trial court here found that Agee was distinguishable from this case because (1) the facts in Agee "clearly" supported that the defendant and the pedestrian engaged in an exchange, whereas it was "unknown" here; and (2) the facts in Agee demonstrated that the defendant was aware of the arrival of the police on the scene and he abruptly ceased the transaction, whereas here the detective's testimony about Christian's awareness of the police's presence was "mere conjecture."

{¶ 30} The majority makes much of the trial court's failure to explicitly find the detective's testimony incredible. Thus, according to the majority, the trial court necessarily found the detective's testimony credible and, we, therefore have to accept that testimony as true, and independently determine, without deference to the court, whether the facts satisfy the relevant legal standard.

{¶ 31} Although it is true that the trial court never directly stated that the detective's testimony was incredible, I believe that the trial court indirectly found so. See State v. Smith , 2017-Ohio-5845, --- N.E.3d ----, ¶ 18, fn. 1 ("Although the trial court did not explicitly say it found [the sergeant] not to be credible, it is implicit in the factual findings.") The trial court's findings here imply that it did not find the detective's testimony completely credible. For example, the court noted that contrary to the detective's testimony that Christian looked back nervously at the police and, therefore, was aware of their presence, the court found that Christian's response could have equally been attributed to "merely * * * keep[ing] himself aware of his surroundings."

{¶ 32} On this record, I would defer, as required, to the trial court's findings of fact, and uphold its decision to grant the defendants' motions to suppress.

{¶ 33} In light of the above, I respectfully dissent.

      Presumably, the police in Agee, unlike here, were in a marked police vehicle. According to the testifying detective, he and his partner were "working some warrants" at the time they observed the activity of the defendant in the case.