[Cite as State v. Collins, 2013-Ohio-3757.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25500
v. : T.C. NO. 11CR3267/2
DION COLLINS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of August , 2013.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 W. Dorothy Lane, Suite 209,
Kettering, Ohio 45429
Attorney for Defendant-Appellant
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YARBROUGH, J. (by assignment)
I. Introduction
{¶ 1} This is an appeal from the judgment of the Montgomery County Court of
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Common Pleas. Appellant, Dion Collins, challenges his conviction for possession of heroin
as based on insufficient evidence and against the manifest weight of the evidence. For the
following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} Around 10:00 a.m. on the morning of the incident, Dayton Police Officer
Kim Pittl, received a dispatch reporting shots fired and three to four black males running
towards 3913 Alvin Avenue in Dayton. When Pittl responded to the scene, she noticed
three black males who she believed were loading something into the trunk of a parked car.
As she approached, two of the suspects fled in opposite directions. Pittl apprehended the
third suspect, Brandon Hasley, forced him to the ground, and handcuffed him. Pittl also
observed a fourth person, Collins, in the front passenger seat of the car. Pittl held Collins,
who is paralyzed from the waist down, at gunpoint until other officers could arrive to help
secure the scene.
{¶ 3} Hasley was placed into the back of Pittl’s cruiser on the driver’s side, and
was interviewed by another officer. Meanwhile, Pittl helped Collins into his wheelchair,
and moved him to the lawn, near the car. Collins was not handcuffed at the time. Around
the same time, one of the fleeing suspects had been apprehended, and was discovered to
have been in possession of eleven clear gel heroin capsules. Pittl took custody of the
capsules and placed them in her pocket.
{¶ 4} Once it was determined that Hasley did not have any outstanding warrants,
and did not have any weapons, he was released. Pittl testified that she then inspected the
back of her cruiser for approximately five to ten seconds on each side, and did not observe
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any contraband.
{¶ 5} Pittl subsequently arrested Collins for criminal trespassing, placed him in
the back of her cruiser on the passenger’s side, and handcuffed him with his hands in front of
his body. He remained there while Pittl executed a search of the residence. Pittl then
transported Collins to the safety building where she assisted him into his wheelchair, locked
the cruiser, and took him inside to be processed.
{¶ 6} Pittl testified that when she returned to her cruiser, she noticed a single
heroin capsule on the floorboard in the back on the passenger’s side, near where the seat
meets the floor. She testified that she had not noticed the capsule when she was assisting
Collins out of the cruiser. Upon this discovery, Collins was additionally charged with
possession of heroin.
{¶ 7} Thereafter, Collins moved to suppress the heroin capsule, arguing that the
initial stop constituted an unreasonable seizure. A hearing was held, after which the trial
court denied the motion. The matter then proceeded to a bench trial, at which both Pittl and
Collins testified. The trial court ultimately found Collins guilty of possession of heroin.
B. Assignments of Error
{¶ 8} Collins has timely appealed, asserting three assignments of error:
I. The appellant’s conviction was against the manifest weight of the
evidence.
II. The evidence was insufficient to support the appellant’s
convictions.
III. The trial court erred in overruling the appellant’s motion to
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suppress.
II. Analysis
{¶ 9} We will address Collins’ assignments of error in reverse order.
A. The Trial Court Did Not Err in Denying the Motion to Suppress
as the Initial Stop Did Not Constitute an Unreasonable Seizure.
{¶ 10} In his third assignment of error, Collins argues that his motion to suppress
should have been granted because Pittl lacked reasonable suspicion justifying the initial stop.
Specifically, he argues that Pittl did not observe any of the suspects carrying weapons or
otherwise committing criminal activity. In addition, he notes that he was seated inside the
car and there was no evidence he had any involvement with the gunshots. Thus, Collins
concludes that Pittl had no reason to stop him. We disagree.
{¶ 11} An appellate court’s review of a motion to suppress presents a mixed
question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. When reviewing the ruling, the appellate court “must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.” Id.; State v.
Morgan, 2d Dist. Montgomery No. 18985, 2002-Ohio-268, ¶ 2. The appellate court then
independently determines whether the facts satisfy the applicable legal standard. Id.
{¶ 12} Based on the undisputed facts in this case, we conclude that the initial stop
did not constitute an unreasonable seizure in violation of the Fourth Amendment. A police
officer may briefly detain an individual for investigative purposes without an arrest warrant
or probable cause if the officer has reasonable suspicion of criminal activity. State v.
Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991), citing Terry v. Ohio, 392 U.S. 1, 21,
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88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To do so, the officer “must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id.
{¶ 13} Here, Pittl testified that she responded to a call of shots fired, with three
black male suspects running to a location known for drug activity. See Andrews at 88 (“An
area’s reputation for criminal activity is an articulable fact which is part of the totality of
circumstances surrounding a stop to investigate suspicious behavior”). When she arrived at
the location, she observed three black males standing around the trunk of a car. As she
approached, the suspects fled, or attempted to flee. See Illinois v. Wardlow, 528 U.S. 119,
124-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“[N]ervous, evasive behavior is a pertinent
factor in determining reasonable suspicion. Headlong flight – wherever it occurs – is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such”). Moreover, at the suppression hearing, Pittl testified that she
recognized Collins upon seeing him, and knew from previous experience that he was
criminally trespassing on the property. Based on those circumstances, we hold that the trial
court did not err in concluding that reasonable suspicion existed to justify Collins’ detention.
{¶ 14} Accordingly, Collins’ third assignment of error is overruled.
B. The Evidence is Sufficient to Support Collins’ Conviction.
{¶ 15} In his second assignment of error, Collins argues that there was insufficient
evidence to prove that he ever possessed the heroin capsule. “A sufficiency-of-the-evidence
argument challenges whether the state has presented adequate evidence on each element of
the offense to allow the case to go to the jury or to sustain the verdict as a matter of law.”
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State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 18 (2d Dist.),
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “An appellate
court’s function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such evidence,
if believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id.
{¶ 16} Here, Pittl testified that after Hasley was removed from her cruiser she did a
visual inspection and did not find any contraband. Collins was subsequently placed in the
cruiser. After he was removed, Pittl found the heroin capsule near where he sat. Since
Pittl testified that no other person had access to the cruiser, a logical inference is that the
capsule must have come from Collins. Therefore, we hold that sufficient evidence existed
to prove that Collins possessed the heroin capsule.
{¶ 17} Accordingly, Collins’ second assignment of error is overruled.
C. Collins’ Conviction is not Against the Manifest Weight of the Evidence.
{¶ 18} As his first assignment of error, Collins argues that his conviction is against
the manifest weight of the evidence. Collins contends that Pittl’s examination of the back
seat was not sufficient to rule out Hasley as the person who placed the heroin capsule in the
cruiser. As support, Collins points out that the examination only took a few seconds, and
Pittl admitted that she could not entirely see underneath the front seat. In addition, Collins
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contends that had he possessed a heroin capsule, he could have disposed of it during the 20
minutes he was in his wheelchair on the lawn, not handcuffed. Finally, Collins notes that he
was searched twice before being placed in the cruiser, and contends that any heroin capsules
he possessed would have been found then. Thus, Collins concludes that a reasonable doubt
exists concerning his possession of the heroin capsule.
{¶ 19} When reviewing a manifest weight claim,
The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 20} Because the fact finder has the opportunity to see and hear the witnesses,
substantial deference must be extended to its determinations of credibility. State v. Lawson,
2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The trier of fact
may believe all, some, or none of what a witness says. State v. Antill, 176 Ohio St. 61, 67,
197 N.E.2d 548 (1964).
{¶ 21} Here, we cannot say that this is the exceptional case where the evidence
weighs heavily against the conviction. The matter turns on Pittl’s testimony that there was
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not a heroin capsule on the floor of the cruiser immediately after Hasley was removed, and
Collins’ testimony that he never possessed a heroin capsule. We have reviewed the record
as a whole, and understanding that the trial court was in the best position to examine the
credibility of the witnesses, we conclude that the court did not clearly lose its way and create
a manifest miscarriage of justice when it chose to believe Pittl’s testimony over that of
Collins.
{¶ 22} Accordingly, Collins’ first assignment of error is overruled.
{¶ 23} The judgment of the Montgomery County Court of Common Pleas is
affirmed.
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HALL, J. and WELBAUM, J., concur.
(Hon. Stephen A. Yarbrough, Sixth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Michele D. Phipps
William O. Cass, Jr.
Hon. Michael W. Krumholtz