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In re E.H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 27, 2019

IN RE E.H. A Minor Child

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-17119186

          Mark A Stanton, Cuyahoga County Public Defender, and Britta M. Barthol, Assistant Public Defender, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael A. Short, Assistant Prosecuting Attorney, for appellee.


          MARY J. BOYLE, JUDGE

         {¶1} Defendant-appellant, E.H., appeals the trial court's judgment denying his motion to suppress and his delinquency adjudication for criminal trespassing. He raises two assignments of error for our review:

The trial court erred when it adopted the magistrate's order denying the appellant's motion to suppress evidence.
The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that appellant was guilty of criminal trespass.

         {¶ 2} Finding no merit to his arguments, we affirm.

         I. Procedural History and Factual Background

         {¶ 3} In December 2017, E.H. was charged with three counts, including one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony, having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony, and criminal trespass in violation of R.C. 2911.21(A)(1), a fourth-degree misdemeanor.

         {¶ 4} E.H. moved to suppress the evidence against him. At the evidentiary hearing on his motion, the following evidence was presented to a magistrate.

         {¶ 5} Tanya Williams testified that on December 21, 2017, she was at her boyfriend's house at 62 Avalon Drive, Bedford, Ohio. She saw two young men walking past her boyfriend's house and did not think anything of it until she saw the males cross the street and head to the neighbor's house directly across the street at 63 Avalon Drive, Bedford, Ohio. Williams said that one of the males crossed through the neighbor's yard and one of them walked up the neighbor's driveway. Williams further testified that one of the males "had his arms like in a crouching position as if they were sneaking up" on the neighbor. She then called 911. Williams said that one of the young males was wearing a gray "hoodie," and one was wearing a black or navy blue "hoodie."

         {¶ 6} When asked why she called 911, Williams explained:

Well, initially they walked past our house and it was probably maybe 15 seconds later our neighbor had already pulled in her yard and not 15 seconds after they passed our house, they crossed the street on her side of the street, walked past her house and turned around and that's when I saw one young man crossing across the line moving kind of quickly and the other was coming up the driveway.

         {¶ 7} Williams stated that her neighbor had just pulled in her driveway and was "unloading groceries or something out of her car and she had her back turned." Williams stated that the males got within approximately 12 feet of her neighbor.[1] Williams's boyfriend "was just standing on the front porch looking" at the two males.

         {¶ 8} Williams's 911 call was played in court. In the 911 call, Williams states at the beginning that "two black males just tried to carjack our neighbor." Williams further told the operator that the males were wearing a gray hoodie and a black hoodie. Williams stated on the call that she and her "husband" watched the two males cross the street and approach their neighbor, who had just pulled into her driveway. Williams told the 911 operator that the neighbor did not even know that the men were there. Williams said that her "husband" walked out on their front porch and told them to "keep walking." Williams said that the males were "on Avalon right now" walking toward Columbus Street.

         {¶ 9} On cross-examination, Williams admitted that she never told the 911 operator that one of the males was in a "crouching" position or "sneaking" up on her neighbor. Williams further agreed that she did not give any other descriptive information about the two men to police.

         {¶ 10} Detective Shawn Klubnick of the Bedford Police Department testified that around 4:00 p.m. on December 21, 2017, he was driving an unmarked car with Lieutenant Stask, supervisor of the detective bureau, when they received a dispatch of "a possible carjacking happening on Avalon." When they received the call, they were looking for a vehicle in the area of "Berwyn, Avalon, and Marion," which is near Bedford High School. He said that the dispatcher gave the description of the two men as "two young black males wearing a light gray sweatshirt and a dark sweatshirt."

         {¶ 11} Detective Klubnick stated that they learned from the dispatch that the males were "traveling towards Columbus" Road, which was the same direction that Detective Klubnick and Lieutenant Stask were "traveling on Berwyn." Detective Klubnick testified that "within a minute or two" of hearing the dispatch, Lieutenant Stask told Detective Klubnick that he saw "two males matching the description coming up towards [them] on Berwyn on the sidewalk walking together." Detective Klubnick stated that Berwyn Drive was "very close to Avalon." After they drove about "another ten feet," Detective Klubnick also saw two males wearing a "light gray sweatshirt and a dark colored sweatshirt" walking toward the officers' direction.

         {¶ 12} Detective Klubnick testified that he stopped the unmarked police vehicle "about 50 feet in front" of the males, and they waited for the males to "walk a little closer" toward them. When the two males "got closer," Detective Klubnick and Lieutenant Stask got out of their vehicle, identified themselves as police officers, ordered the males to take their hands out of their pockets, and to get on the ground. Detective Klubnick had his gun in his hand, but at his side. He referred to it as "low ready." Detective Klubnick could not recall where Lieutenant Stask's gun was when they ordered the two males to the ground. The males complied with the officers' orders.

         {¶ 13} When asked what they did next, Detective Klubnick stated that they handcuffed the males and searched them. While searching E.H., Detective Klubnick found what felt like a "weapon" in the "crotch" of E.H.'s pants. Detective Klubnick asked E.H. what it was and he responded, "a gun." Detective Klubnick and Lieutenant Stask then waited for patrol officers, who arrived in another couple of minutes. Patrol officers transported E.H. and the other male to the police station.

         {¶ 14} On direct examination, Detective Klubnick did not specify when he arrested E.H. On cross-examination, he agreed that "within a minute of hearing the call," he and Lieutenant Stask "hop[ped] out of [their] car and arrested them." On redirect examination, the state asked Detective Klubnick, "Regarding the procedure, you said you got out on cross-examination, you ordered them to the ground[, ] [a]t that point were they under arrest for any offense at that specific point?" Detective Klubnick responded, "Not at that specific point, no." The state went on to ask, "So at what ...

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