[Cite as In re D.G., 2017-Ohio-4261.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.G. : APPEAL NOS. C-160515
C-160516
C-160517
: C-160518
TRIAL NOS. 14-9637X
14-9639X
: 14-9638X
15-1923X
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: June 14, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Caitlin J. Burgess and
Julie Kahrs Nessler, Assistant Public Defenders, for Appellant D.G.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Appellant D.G. has appealed from the trial court’s entries overruling
his objections to and adopting the magistrate’s decisions denying his motion to
suppress, and adjudicating him delinquent of violating a court order, menacing,
disorderly conduct, and harassment by an inmate. Finding no merit to his three
assignments of error, we affirm.
Factual and Procedural Background
{¶2} At approximately 9:15 a.m. on November 5, 2014, D.G. was stopped by
Norwood police officer Richard Krummen and placed under arrest for violating
Norwood’s daytime-curfew ordinance. While being transported in Officer
Krummen’s cruiser, D.G. spit on Officer Krummen’s face, threatened to kill him, and
continually kicked the windows of the cruiser.
{¶3} The state filed a complaint alleging that D.G. was a delinquent child
because, by violating Norwood’s daytime curfew, he had violated a previous court
order requiring him to “submit to [the] lawful care, custody, and control of parent,
guardian, custodian, and teachers [and to obey all laws].” Additional complaints
were filed alleging that D.G. was a delinquent child for committing acts that, if
committed by an adult, would have constituted the offenses of menacing, disorderly
conduct, and harassment by an inmate.
{¶4} D.G. filed a motion to suppress, arguing that his arrest for a violation
of Norwood’s daytime-curfew ordinance had not been supported by probable cause
because he had been on his way to school at the time that he was stopped by Officer
Krummen. D.G. contended that travel to and from school was an exception to the
2
OHIO FIRST DISTRICT COURT OF APPEALS
daytime curfew. Following a hearing, the magistrate denied D.G.’s motion to
suppress. The magistrate found that Officer Krummen had probable cause to arrest
D.G. for a daytime-curfew violation and determined that the issue of whether D.G.
had been on his way to school was a potential defense to the charge that was to be
resolved at trial.
{¶5} The case proceeded to trial immediately following the magistrate’s
denial of D.G.’s motion to suppress. The testimony given during the suppression
hearing was incorporated into the trial for the magistrate to consider. D.G. was
adjudicated delinquent of all charges. The trial court denied D.G.’s motion to set
aside the magistrate’s decisions, overruled his objections to the decisions, and
adopted the decisions.
Motion to Suppress
{¶6} In his first assignment of error, D.G. argues that the trial court erred in
denying his motion to suppress because his warrantless arrest for a violation of
Norwood’s daytime-curfew ordinance was not supported by probable cause.
{¶7} Our review of a trial court’s ruling on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s findings of fact if they are
supported by competent and credible evidence, but we review de novo the
application of the relevant law to those facts. Id.
{¶8} Probable cause exists to support a warrantless arrest when “the
arresting officer, at the time of the arrest, possess[es] sufficient information that
would cause a reasonable and prudent person to believe that a criminal offense has
been or is being committed.” State v. Kraus, 1st Dist. Hamilton Nos. C-070428 and
3
OHIO FIRST DISTRICT COURT OF APPEALS
C-070429, 2008-Ohio-3965, ¶ 16, quoting State v. Elmore, 111 Ohio St.3d 515, 2006-
Ohio-6207, 857 N.E.2d 547, ¶ 39. A probable-cause determination must be based on
the totality of the circumstances. Id.
{¶9} D.G. contends that there was no probable cause to support his arrest
for a daytime-curfew violation because he had been on his way to school at the time
that he was arrested. He argues that the trial court erred in concluding that traveling
to school was a defense to the daytime-curfew ordinance that should be resolved at
trial, rather than at the suppression hearing.
{¶10} The daytime curfew is codified in Norwood Ordinance 531.02. As
relevant to this appeal, the ordinance provides that:
(a) No minor shall loiter, idle, wander, stroll, play, walk or run in or
upon the public streets, parks, public buildings or vacant lots Monday
through Friday, between the hours of 8:00 a.m. and 3:00 p.m. of the
same day, except as follows:
(1) To go directly and promptly between the minor’s home and the
school in which the child is enrolled.
{¶11} Based on the plain language of the statute, we agree with D.G.’s
contentions that travel to and from school is an exception to a daytime-curfew
violation and that the issue is relevant at a suppression hearing. But while an officer
must consider a minor’s statement that she or he is on the way to school when
deciding whether a minor has violated the daytime-curfew ordinance, the minor’s
statement is not dispositive. An officer is not required to believe a minor’s
statement, and is not prohibited from determining that a minor is in violation of the
daytime curfew solely because the minor has stated that she or he is on the way to
4
OHIO FIRST DISTRICT COURT OF APPEALS
school. Rather, the officer must evaluate the minor’s statement along with all other
circumstances when determining whether to arrest a minor for a violation of the
daytime-curfew ordinance.
{¶12} Having determined that the issue of whether D.G. was on his way to
school was relevant at the suppression hearing, we now consider whether probable
cause existed to arrest D.G. for a violation of the daytime-curfew ordinance. The
following evidence was adduced at the suppression hearing and is relevant to a
probable-cause analysis. Officer Krummen testified that he had seen D.G. on
Rolston Avenue around 7:30 or 7:45 in the morning. Approximately 90 minutes
later, around 9:15, Officer Krummen saw D.G. walking northbound on Carthage
Avenue and stopped him for a violation of the daytime-curfew ordinance. In
response to a question from the officer, D.G. stated that he was 17 years old.
{¶13} This evidence would cause a reasonable and prudent officer to believe
that Norwood’s daytime-curfew ordinance had been violated. Kraus, 1st Dist.
Hamilton Nos. C-070428 and C-070429, 2008-Ohio-2965, at ¶ 16. Officer
Krummen saw D.G., a minor, on a Norwood street around 9:15, after the daytime
curfew had gone into effect for the day and after the school day had begun for many
schools. It was reasonable for the officer to believe that D.G. was not going “directly
and promptly” between his home and school, despite D.G.’s assertion that he was on
his way to Life Skills High School, where he was permitted to arrive any time before
11:00 a.m.
{¶14} The trial court did not err in determining that there was probable
cause to arrest D.G. for a violation of the daytime-curfew ordinance. D.G.’s first
assignment of error is overruled.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Daytime-Curfew Violation
{¶15} In his second assignment of error, D.G. argues that the trial court
erred in adjudicating him delinquent for violating a court order by violating a
daytime-curfew ordinance. He argues that the weight of the evidence established
that he was on his way to school and, consequently, was not in violation of the
daytime-curfew ordinance.
{¶16} When reviewing a challenge to the weight of the evidence, the relevant
inquiry is whether, after weighing all evidence and reasonable inferences and
considering the credibility of the witnesses, the trier of fact lost its way and
committed such a manifest miscarriage of justice that the adjudication must be
reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); In re
K.M., 1st Dist. Hamilton Nos. C-140764, C-140765 and C-140766, 2015-Ohio-4241, ¶
17.
{¶17} In addition to the testimony provided during the suppression hearing,
Officer Krummen testified at trial that he had searched D.G.’s backpack following his
arrest and had found that it did not contain any schoolbooks, but rather held car-
washing supplies. During a previous interaction with D.G., D.G. had told Officer
Krummen that he washes cars all day at a particular intersection in Norwood.
{¶18} D.G. presented testimony from Katherine Benken, a former
administrator at Life Skills Center of Hamilton County. Benken testified that D.G.
was enrolled as a student at Life Skills on the day of his arrest. Benken explained
that Life Skills is a job outlook recovery high school and that it had two daily
sessions: one beginning at 8:00 a.m. and one beginning at 11:00 a.m. She testified
that the 11:00 a.m. session ran from 11:00 a.m. until 4:00 p.m. Benken further
6
OHIO FIRST DISTRICT COURT OF APPEALS
explained that the school used a computer-based curriculum so that enrolled
students could engage in individual course study, and that it was not necessary for
students to bring books to school. Benken did not, however, testify as to D.G.’s
attendance in the days leading up to the day of his arrest.
{¶19} The presence of car-washing supplies in D.G.’s backpack, along with
Officer Krummen’s testimony that D.G. had previously stated that he washes cars all
day, supported a determination that D.G. was not on his way to school, but rather
planned to participate in car-washing activities. Further, based on the map entered
into evidence, D.G. was farther from school when stopped than he had been when
Officer Krummen had first seen him that morning. The trial court did not lose its
way and commit a manifest miscarriage of justice in finding that D.G. had been in
violation of Norwood’s daytime-curfew ordinance. See Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541.
{¶20} The second assignment of error is overruled.
Menacing
{¶21} In his third assignment of error, D.G. argues that the trial court erred
in adjudicating him delinquent of menacing because the adjudication was not
supported by sufficient evidence.
{¶22} In a challenge to the sufficiency of the evidence, this court must view
all evidence and reasonable inferences in the light most favorable to the prosecution
to determine whether a rational trier of fact could have found the elements of the
offense proven beyond a reasonable doubt. State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Menacing is proscribed by R.C. 2903.22(A), which provides that “[n]o
person shall knowingly cause another to believe that the offender will cause physical
harm to the person or property of the other person, the other person’s unborn, or a
member of the other person’s immediate family.”
{¶24} Officer Krummen testified that D.G. behaved turbulently after being
placed under arrest, spitting on him and stating to the officers, “[t]ake me to fucking
jail before I kill you all.” D.G. had also stated to the officers “don’t let me catch you
out of your police car.” Officer Krummen was alarmed by D.G.’s behavior and
believed that, once released, D.G. would try to cause him harm or kill him. Officer
Krummen further testified that at certain times during the arrest he felt that D.G. did
not know exactly what he was doing and was acting out of emotion. Officer
Krummen explained that he felt that D.G.’s profane tirades and uttering of “the N
word” and “the F word” were the product of raw emotion and D.G.’s need to vent.
But after hearing D.G. state “fuck yeah, I spit on you, I’ll do it again,” Officer
Krummen believed that D.G. had knowingly been in control of himself and his
actions.
{¶25} D.G. first contends that the evidence failed to establish that he had
acted knowingly. His contention is without merit. Pursuant to R.C. 2901.22(B), a
person acts knowingly “regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature.” Viewed in the light most favorable to the prosecution, the evidence
established that D.G. knowingly threatened Officer Krummen and spat on him.
{¶26} D.G. further contends that the evidence failed to establish that Officer
Krummen reasonably believed that D.G. would cause him harm. Again, his
8
OHIO FIRST DISTRICT COURT OF APPEALS
contention has no merit. Officer Krummen specifically testified that he believed D.G.
would cause him harm or kill him. The video recording of D.G.’s arrest and transport
to a juvenile detention center corroborates Officer Krummen’s description of D.G.’s
behavior. D.G. continually shouted profanities and threatened Officer Krummen. In
light of D.G.’s lengthy profanity-laced tirade, his spitting on Officer Krummen, and
his threat to kill the officers, we find that Officer Krummen’s belief that D.G. would
cause him harm was reasonable.
{¶27} D.G.’s adjudication for menacing was supported by sufficient evidence.
The third assignment of error is overruled, and the judgments of the trial court are
affirmed.
Judgments affirmed.
ZAYAS, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9