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State v. Whitehead

Court of Appeals of Ohio, Second District, Montgomery

December 13, 2019

STATE OF OHIO Plaintiff-Appellee
SEAN WHITEHEAD Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2019-CRB-394

          HOPE SMALLS, Atty., Assistant City of Dayton Prosecuting Attorney, Attorney for Plaintiff-Appellee

          FRANK MATTHEW BATZ, Atty. Attorney for Defendant-Appellant


          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Sean Whitehead, appeals from his conviction in the Dayton Municipal Court after the trial court found him guilty of menacing, loitering, and two counts of child enticement. In support of his appeal, Whitehead contends that there was insufficient evidence presented at his bench trial to support his conviction. Whitehead also contends that his conviction was against the manifest weight of the evidence. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On January 25, 2019, Whitehead was charged by complaint with one count of aggravated menacing in violation of R.C. 2903.21(A), one count of menacing in violation of R.C. 2903.22(A), one count of loitering in violation of R.C. 2907.241(A)(4), and three counts of child enticement in violation of R.C. 2905.05(A), (B), and (C). The charges stemmed from Whitehead's interactions with 13-year-old K.M. on the afternoon of January 16, 2019.

         {¶ 3} After the complaint was filed, Whitehead pled not guilty to the charges and the matter was scheduled for a bench trial. On the day of trial, Whitehead's trial counsel filed a motion to dismiss the child enticement charge under R.C. 2905.05(A) on grounds that the Supreme Court of Ohio had declared that section of the statute unconstitutional in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156. In response to the motion, the State dismissed that particular charge, but proceeded on all the other charges in the complaint.

         {¶ 4} At trial, K.M. testified that on January 16, 2019, she was walking alone to pick up her brother from his elementary school in Dayton, Ohio, when she noticed a male, who she later identified as Whitehead, slowly drive by her in a small silver car. K.M. testified that Whitehead was looking at her as he drove past. K.M. testified that Whitehead then made a U-turn and drove up next to where she was walking on the sidewalk. K.M. testified that Whitehead had his front-passenger window rolled down and asked her if she would get inside his vehicle so that she could give him directions to Xenia Avenue.

         {¶ 5} K.M. testified that she declined to get into Whitehead's vehicle and walked away. However, K.M. testified that when she walked away, Whitehead continued to slowly drive behind her. K.M. testified that she then saw Whitehead pull his car over and make movements as though he was going to exit his car. In response to seeing those movements, K.M. testified that she became scared and started to run to her brother's school. K.M. testified that she began to run because she thought that Whitehead was going to "grab" her. Trial Tr. p. 9.

         {¶ 6} When she arrived at her brother's school, K.M. met her cousin at the front of the school building. K.M. testified that she told her cousin "a guy was trying to get [her]." Id. at 10. K.M. testified that while she was talking to her cousin, Whitehead drove by the school about 30 to 40 seconds after she had arrived. After seeing Whitehead again, K.M. testified that she went into the school and reported the incident to the school's principal. K.M. testified that she also reported the incident to Anjanette Tevis, a case manager at the school K.M. referred to as "Miss Angie." Id.

         {¶ 7} Tevis also testified at trial and confirmed that she had encountered K.M. on the afternoon in question. Tevis testified that when she first encountered K.M, K.M. appeared "agitated" and "scared." Id. at 21. Tevis also testified that "[i]t looked like something had happen[ed] to upset [K.M.]." Id.

         {¶ 8} Officer Joe Pence of the Dayton Police Department also testified at trial. Pence testified that he responded to the incident and met with K.M. on the afternoon in question. Pence testified that K.M.'s demeanor was "jacked up" and "excited." Trial Tr. p. 29. Officer Pence also testified that it looked "like [K.M.] had been scared." Id.

         {¶ 9} Officer Pence further testified that K.M. gave him a description of the car involved in the incident. Upon receiving K.M.'s description, Officer Pence informed other police crews about the car. In continuing his investigation, Pence testified that on the following day, he contacted East End Community Center ("East End"), which has multiple cameras set up in the area. Pence testified that East End provided him with video footage showing K.M. walking to the school and Whitehead's vehicle driving by shortly thereafter.

         {¶ 10} The State submitted the East End video footage as State's Exhibit 2. The video footage showed a girl walking briskly on the sidewalk toward the school building while looking over her shoulder. The video footage also showed a small silver car driving by the school approximately 30 seconds later. As it drove by, the car began to make a slight right turn in K.M.'s direction toward the entrance to the school's parking lot. However, instead of making the turn, the car changed course and continued to drive down the road it was traveling on and eventually drove out of the camera's view.

         {¶ 11} Officer John Beall of the Dayton Police Department also testified at trial. Officer Beall testified that on January 23, 2019, he encountered the silver car that was involved in the incident with K.M. Officer Beall testified that he pulled the car over based on it having no front license plate and based on the child enticement incident in question. Beall testified that he approached the car, made contact with the driver, and identified the driver as Whitehead. Beall also testified that he had Whitehead exit his car so that he could handcuff Whitehead and place him in the backseat of his cruisier. Beall thereafter conducted an inventory search of Whitehead's car, which yielded a large knife with a 7" blade under the front seat.

         {¶ 12} In addition, Officer Beall testified that 30 minutes to an hour after his first contact with Whitehead, Whitehead spontaneously said he was "not a child molester or rapist." Trial Tr. p. 43. Beall testified that Whitehead made this statement before Beall had the opportunity to inform Whitehead about the child enticement ...

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