Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE E.H. A Minor Child
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case No. DL-17119186
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.
JOURNAL ENTRY AND OPINION
J. BOYLE, JUDGE
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
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.
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
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
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. 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
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
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 ...