[Cite as State v. Ball, 2020-Ohio-3156.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29484
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WAYNE E. BALL COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 18 11 3925
DECISION AND JOURNAL ENTRY
Dated: June 3, 2020
TEODOSIO, Judge.
{¶1} Wayne Ball appeals the denial of his motion to suppress in the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} According to Akron Police Officer Cory Siegferth, he was on patrol one morning
around 1:00 a.m. when he heard three gunshots coming from a nearby area. He drove in the
direction of the shots and began to canvass the area in his cruiser. About a minute after hearing
the gunshots, Officer Siegferth noticed a man walking along the road toward him. While stopped
at an intersection, he saw the man cross from the north side of the road to the south side outside of
an approved crosswalk. The officer testified that he made eye contact with the man as they passed
each other, and he decided to turn his cruiser around to ask whether the man heard the gunshots
and because he had seen the man jaywalk. 2
{¶3} Officer Siegferth testified that he did a U-turn and pulled alongside the man, who
had gone onto the sidewalk next to the road. The man turned toward the cruiser, but kept his body
at an angle, obscuring one of his arms and making the officer think that he could be hiding
something or was preparing to run or fight. Officer Siegferth exited his vehicle and began talking
to the man, Mr. Ball, who he now recognized as someone he had met before during an
investigation. Mr. Ball denied hearing any gunshots. According to Officer Siegferth, from his
previous interaction with Mr. Ball, he knew that Mr. Ball was known to carry a firearm. He,
therefore, asked Mr. Ball to put his arms up so that he could pat him down for weapons before
letting him go on his way. As Mr. Ball raised his arms, he told Officer Siegferth that he did in fact
have a firearm in his possession.
{¶4} Following the stop, the Grand Jury indicted Mr. Ball for having weapons while
under disability, in violation of R.C. 29293.13, and carrying a concealed weapon, in violation of
R.C. 2923.12. Mr. Ball moved to suppress the evidence gathered against him during the stop,
arguing that Officer Siegferth did not have reasonable, articulable suspicion or probable cause to
stop and frisk him. Following a hearing, the trial court denied Mr. Ball’s motion. Mr. Ball
subsequently pleaded no contest to the offenses, the trial court found him guilty, and the court
sentenced him to two years imprisonment. Mr. Ball has appealed, assigning as error that the trial
court incorrectly denied his motion to suppress.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FINDING THE POLICE HAD PROBABLE CAUSE TO STOP APPELLANT FOR JAYWALKING AND DENYING APPELLANT’S SUPPRESSION MOTION. 3
{¶5} Mr. Ball argues that the trial court should have granted his motion to suppress
because Officer Siegferth did not have reasonable, articulable suspicion to stop him. A motion to
suppress presents a mixed question of law and fact:
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶6} “[A]lthough a police officer generally may not seize a person within the meaning
of the Fourth Amendment unless he has probable cause to arrest him for a crime, ‘not all seizures
of the person must be justified by probable cause * * *.’” State v. Dunlap, 9th Dist. Summit No.
28762, 2018-Ohio-3658, ¶ 7, quoting Florida v. Royer, 460 U.S. 491, 498 (1983). “[N]ecessarily
swift action predicated upon on-the-spot observations of the officer on the beat” “must be tested
by the Fourth Amendment’s general proscription against unreasonable searches and seizures.”
Terry v. Ohio, 392 U.S. 1, 20 (1968). “[T]here is ‘no ready test for determining reasonableness
other than by balancing the need to search (or seize) against the invasion which the search (or
seizure) entails.’” Id. at 21, quoting Camara v. Mun. Court, 387 U.S. 523, 534-535, 536-537
(1967).
{¶7} To justify an investigative stop, an officer must point to “specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Maumee v. Weisner, 87 Ohio St.3d 295, 299, (1999), quoting Terry at 21. “[I]t is
imperative that the facts be judged against an objective standard: would the facts available to the
officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the 4
belief’ that the action taken was appropriate?” Terry at 21-22, quoting Carroll v. United States,
267 U.S. 132, 162 (1925). “In forming reasonable articulable suspicion, law enforcement officers
may ‘draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that might well elude an untrained
person.’” State v. Taylor, 9th Dist. Summit No. 26693, 2013-Ohio-3906, ¶ 7, quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002).
{¶8} At the suppression hearing, Officer Siegferth initially gave two reasons for deciding
to approach Mr. Ball. One was that he wanted to ask Mr. Ball about the gunshots he had heard.
The other was that he had seen Mr. Ball jaywalk across the road. Mr. Ball argues that the officer
did not have reasonable articulable suspicion or probable cause to stop him because his crossing
of the road from one to the other outside of a crosswalk did not constitute jaywalking under the
City of Akron’s municipal code.
{¶9} Although the jaywalking ordinance was discussed during the suppression hearing,
Officer Siegferth also testified that he saw Mr. Ball walking in the roadway instead of on the
improved sidewalks on either side of the road, which was a violation of a different city ordinance.
In its decision overruling Mr. Ball’s motion to suppress, the trial court determined that Officer
Siegferth had probable cause to stop Mr. Ball because he had seen Mr. Ball violate the ordinance
concerning walking in the roadway when there is a sidewalk available.
{¶10} In his brief, Mr. Ball has not challenged the trial court’s determination that Officer
Siegferth had probable cause to stop him because he violated the city ordinance prohibiting
pedestrians from walking in the street if a sidewalk is available. We, therefore, conclude that Mr.
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[Cite as State v. Ball, 2020-Ohio-3156.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29484
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WAYNE E. BALL COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 18 11 3925
DECISION AND JOURNAL ENTRY
Dated: June 3, 2020
TEODOSIO, Judge.
{¶1} Wayne Ball appeals the denial of his motion to suppress in the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} According to Akron Police Officer Cory Siegferth, he was on patrol one morning
around 1:00 a.m. when he heard three gunshots coming from a nearby area. He drove in the
direction of the shots and began to canvass the area in his cruiser. About a minute after hearing
the gunshots, Officer Siegferth noticed a man walking along the road toward him. While stopped
at an intersection, he saw the man cross from the north side of the road to the south side outside of
an approved crosswalk. The officer testified that he made eye contact with the man as they passed
each other, and he decided to turn his cruiser around to ask whether the man heard the gunshots
and because he had seen the man jaywalk. 2
{¶3} Officer Siegferth testified that he did a U-turn and pulled alongside the man, who
had gone onto the sidewalk next to the road. The man turned toward the cruiser, but kept his body
at an angle, obscuring one of his arms and making the officer think that he could be hiding
something or was preparing to run or fight. Officer Siegferth exited his vehicle and began talking
to the man, Mr. Ball, who he now recognized as someone he had met before during an
investigation. Mr. Ball denied hearing any gunshots. According to Officer Siegferth, from his
previous interaction with Mr. Ball, he knew that Mr. Ball was known to carry a firearm. He,
therefore, asked Mr. Ball to put his arms up so that he could pat him down for weapons before
letting him go on his way. As Mr. Ball raised his arms, he told Officer Siegferth that he did in fact
have a firearm in his possession.
{¶4} Following the stop, the Grand Jury indicted Mr. Ball for having weapons while
under disability, in violation of R.C. 29293.13, and carrying a concealed weapon, in violation of
R.C. 2923.12. Mr. Ball moved to suppress the evidence gathered against him during the stop,
arguing that Officer Siegferth did not have reasonable, articulable suspicion or probable cause to
stop and frisk him. Following a hearing, the trial court denied Mr. Ball’s motion. Mr. Ball
subsequently pleaded no contest to the offenses, the trial court found him guilty, and the court
sentenced him to two years imprisonment. Mr. Ball has appealed, assigning as error that the trial
court incorrectly denied his motion to suppress.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN FINDING THE POLICE HAD PROBABLE CAUSE TO STOP APPELLANT FOR JAYWALKING AND DENYING APPELLANT’S SUPPRESSION MOTION. 3
{¶5} Mr. Ball argues that the trial court should have granted his motion to suppress
because Officer Siegferth did not have reasonable, articulable suspicion to stop him. A motion to
suppress presents a mixed question of law and fact:
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶6} “[A]lthough a police officer generally may not seize a person within the meaning
of the Fourth Amendment unless he has probable cause to arrest him for a crime, ‘not all seizures
of the person must be justified by probable cause * * *.’” State v. Dunlap, 9th Dist. Summit No.
28762, 2018-Ohio-3658, ¶ 7, quoting Florida v. Royer, 460 U.S. 491, 498 (1983). “[N]ecessarily
swift action predicated upon on-the-spot observations of the officer on the beat” “must be tested
by the Fourth Amendment’s general proscription against unreasonable searches and seizures.”
Terry v. Ohio, 392 U.S. 1, 20 (1968). “[T]here is ‘no ready test for determining reasonableness
other than by balancing the need to search (or seize) against the invasion which the search (or
seizure) entails.’” Id. at 21, quoting Camara v. Mun. Court, 387 U.S. 523, 534-535, 536-537
(1967).
{¶7} To justify an investigative stop, an officer must point to “specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Maumee v. Weisner, 87 Ohio St.3d 295, 299, (1999), quoting Terry at 21. “[I]t is
imperative that the facts be judged against an objective standard: would the facts available to the
officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the 4
belief’ that the action taken was appropriate?” Terry at 21-22, quoting Carroll v. United States,
267 U.S. 132, 162 (1925). “In forming reasonable articulable suspicion, law enforcement officers
may ‘draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that might well elude an untrained
person.’” State v. Taylor, 9th Dist. Summit No. 26693, 2013-Ohio-3906, ¶ 7, quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002).
{¶8} At the suppression hearing, Officer Siegferth initially gave two reasons for deciding
to approach Mr. Ball. One was that he wanted to ask Mr. Ball about the gunshots he had heard.
The other was that he had seen Mr. Ball jaywalk across the road. Mr. Ball argues that the officer
did not have reasonable articulable suspicion or probable cause to stop him because his crossing
of the road from one to the other outside of a crosswalk did not constitute jaywalking under the
City of Akron’s municipal code.
{¶9} Although the jaywalking ordinance was discussed during the suppression hearing,
Officer Siegferth also testified that he saw Mr. Ball walking in the roadway instead of on the
improved sidewalks on either side of the road, which was a violation of a different city ordinance.
In its decision overruling Mr. Ball’s motion to suppress, the trial court determined that Officer
Siegferth had probable cause to stop Mr. Ball because he had seen Mr. Ball violate the ordinance
concerning walking in the roadway when there is a sidewalk available.
{¶10} In his brief, Mr. Ball has not challenged the trial court’s determination that Officer
Siegferth had probable cause to stop him because he violated the city ordinance prohibiting
pedestrians from walking in the street if a sidewalk is available. We, therefore, conclude that Mr.
Ball has failed to establish that the trial court’s denial of his motion to suppress was incorrect. See
In re Estate of Hall, 67 Ohio App.3d 715, 720 (4th Dist.1990) (“It is appellant’s burden, as a basic 5
principle of appellate review, to affirmatively demonstrate in the record the error claimed.”); State
v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 55. Mr. Ball’s assignment of error is
overruled.
III.
{¶11} Mr. Ball’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO FOR THE COURT 6
CALLAHAN, P. J. HENSAL, J. CONCUR.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.