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State v. Shine

Court of Appeals of Ohio, Eleventh District, Trumbull

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
EZARA SHINE, JR., Defendant-Appellant.

         Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2013 CR 00900.

          Dennis Watkins, Trumbull County Prosecutor; LuWayne Annos and Ashleigh Musick, Assistant Prosecutors, Administration Building, (For Plaintiff-Appellee).

          Michael A. Partlow, Suite C, Kent, (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Ezara Shine, Jr., appeals his conviction for possession of cocaine entered by the Trumbull County Court of Common Pleas following our remand order for findings of fact and conclusions of law on appellant's motion to suppress. For the following reasons, the judgment of the trial court is affirmed.

         {¶2} On January 24, 2014, Mr. Shine was indicted on one count of possession of cocaine, a felony of the fifth degree, with a forfeiture specification. On March 18, 2014, Mr. Shine filed a motion to suppress evidence obtained during the arrest. He argued the initial stop was unlawful and there was no probable cause for the arrest. A hearing was held, where the following testimony was given.

         {¶3} Warren City Police Sergeant Gary Riggins, of the street crime division, testified he was patrolling a high crime area in the city at about 12:00 noon in December 2013. His partner was driving an unmarked police car in which he was a passenger. Officer Riggins was in plain clothes but was wearing a vest clearly indicating "police" across the front and back. His badge was attached near his neck, and his handcuffs were visible.

         {¶4} Officer Riggins testified he observed Mr. Shine leave from what he suspected to be a vacant home. He testified that vacant homes are crime magnets. Mr. Shine was alone, walking along the sidewalk, carrying a plastic grocery-type bag. Officer Riggins testified he knew it was Mr. Shine. His partner pulled the unmarked car into a driveway into Mr. Shine's path on the sidewalk. Officer Riggins exited the car and said something to the effect of, "Mr. Shine, what's going on with you today?" According to Officer Riggins, Mr. Shine replied "nothing" and volunteered that he "didn't have anything." Mr. Shine then pulled a pair of pants from the bag he was carrying. Officer Riggins told him to put his pants back in the bag.

         {¶5} According to Officer Riggins' testimony, the following exchange occurred: "[Mr. Shine said, ] '[w]ell, I don't have anything. I don't have anything.' [Officer Riggins] said, Well, we want to talk to you about why you're leaving a vacant house over here.' Mr. Shine continued to utter, 'I don't have anything. I don't have anything.' [Officer Riggins said], Well, if you don't have anything you don't mind me checking.' Shine said, 'Go ahead.' [Mr. Shine then t]hrew his hands up." Officer Riggins further testified that Mr. Shine indicated there were other people at the house in response to the assertion that it was vacant.

         {¶6} Upon patting his clothes down, Mr. Shine turned his body away from Officer Riggins and took a defensive stance, which made Officer Riggins believe that Mr. Shine was hiding something. Officer Riggins patted down the side of his body positioned toward Officer Riggins without issue, but when Officer Riggins began patting down Mr. Shine's other side, Mr. Shine threw his hands down and knocked Officer Riggins' hands off of him. Officer Riggins tackled Mr. Shine to the ground before he could run away. Mr. Shine was kicking and swinging in an effort to get away until Officer Riggins threatened him with a taser. Officer Riggins placed him in handcuffs. Mr. Shine then stated, "What you're looking for is in my left pocket." Officer Riggins found crack cocaine in his left shirt pocket. On cross-examination, Officer Riggins said he believed Mr. Shine was free to leave when he first stopped him.

         {¶7} Mr. Shine testified that Officer Riggins and his partner aggressively pulled their car into his path while he was walking. He explained Officer Riggins' approach was aggressive based on his body language, and he did not feel free to leave at the time. Upon questioning from Officer Riggins, Mr. Shine told him the house he had just left was not abandoned, and he even offered to take the officers there. Mr. Shine said Officer Riggins asked if he had a gun on his person, and Mr. Shine replied "no." Officer Riggins then took the bag from him and pulled out the pair of jeans. Officer Riggins proceeded to pat him down without his consent. Mr. Shine described turning away from Officer Riggins in order to prevent discovery of the drugs in his shirt pocket. Officer Riggins then grabbed him, slammed him to the ground, and roughed him up. At that point, Mr. Shine told Officer Riggins about the drugs in his shirt pocket. Mr. Shine testified he knew Officer Riggins was a police officer because he had "dealt with him" approximately 12 years prior and had seen him at the grocery store and playing poker at church. Mr. Shine confirmed on recross-examination that he had two prior felony drug convictions.

         {¶8} The trial court orally denied Mr. Shine's motion to suppress but did not issue a written decision. Mr. Shine was subsequently found guilty of possession of cocaine following a jury trial.

         {¶9} Mr. Shine filed a timely appeal from the entry of conviction, solely challenging the denial of his motion to suppress. State v. Shine, 11th Dist. Trumbull No. 2015-T-0006, 2016-Ohio-3123. This court sustained in part Mr. Shine's assignment of error because the trial court failed to provide us with a sufficient basis upon which to determine whether its decision was supported by competent, credible evidence. Id. at ¶16. We remanded the matter for the trial court to make findings of fact and conclusions of law based on the evidence adduced at the suppression hearing and to journalize its clarified decision on the motion to suppress. Id. at ¶17.

         {¶10} On remand, the trial court issued findings of fact and conclusions of law in support of its decision to deny Mr. Shine's motion to suppress. The trial court engaged in a written review of the testimony offered at the hearing on the motion to suppress. ...

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