State v. Wertz

2017 Ohio 8766, 89 N.E.3d 667
CourtOhio Court of Appeals
DecidedDecember 1, 2017
DocketNO. 27376
StatusPublished
Cited by3 cases

This text of 2017 Ohio 8766 (State v. Wertz) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wertz, 2017 Ohio 8766, 89 N.E.3d 667 (Ohio Ct. App. 2017).

Opinions

DONOVAN, J.

{¶ 1} Defendant-appellant Joshua K. Wertz appeals his conviction and sentence for one count of receiving stolen property (MV), in violation of R.C. 2913.51(A), a felony of the fourth degree. Wertz filed a timely notice of appeal with this Court on December 12, 2016, arguing that the trial court erred in overruling his motion to suppress. We hereby reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

{¶ 2} The incident which forms the basis of the instant appeal occurred on April 4, 2015, when Trotwood Police Officer Robert Lingo was dispatched to 5225 Rucks Road on an anonymous report of a "suspicious circumstance." The caller described the suspect as a white male named "Josh" who was wearing glasses, a black jacket, and jean shorts. The caller also stated that the suspect, later identified as Wertz, was pushing a dirt bike down the street and behind the Rucks address.

{¶ 3} Upon arriving at the residence located at 5225 Rucks Road, Officer Lingo exited his cruiser and walked to the side of the house. From that vantage point, Officer Lingo observed Wertz, who matched the description provided in the dispatch, attempting to push a motorized dirt bike through a gap in the fence surrounding the *669backyard of the residence. The following exchange occurred at the July 1, 2016 hearing on Wertz's motion to suppress:

Q. * * *And what happens at that point?
A. I call for him to stop and had him come over to me.
Q. Does he?
A. Yes.
Q. * * * What happens next?
A. He comes over to me. I ID him. He provides a photo ID, and I copied down the identification number. And I also checked the vehicle identification number on the bike, and I called into LEADS-to dispatch to be checked on LEADS to see if it's stolen. It comes back as not stolen so I went ahead and logged the information about the bike and the subject in my dispatch log, and I also did a field interview card on it.
* * *
Q. And why did you conduct a field interview?
A. Well, because the nature of the call was suspicious circumstances, and leading up to it he matched the description of the call and, it being suspicious enough, I was concerned that the bike might be stolen. So I wanted to record the information in case it should turn up to be-that should turn up to be the case.
Q. So, sir, it's fair to say that you were investigating at that point?
A. Yes, sir.
* * *
Q. * * * So, sir, after you had the field interview with Mr. Wertz, what happened next?
A. Once it was done, I let him go because I had no further cause to keep him.
* * *
Q. And when you were speaking with Mr. Wertz, where was he located?
A. He came over to where I was to the side of the house in the yard with the bike.
* * *
A. I spoke with him there.

{¶ 4} On cross examination, the following exchange occurred:

Q. And you didn't immediately see any criminal activity when you arrived to the back yard, correct?
A. Correct.
* * *
Q. And you said you called out to Josh to come to you?
A. Yes.
* * *
Q. * * * And he-you said that he brought the dirt bike to you when he-you called out to him to come.
A. Yes.
Q. * * * And it was still actually in the back yard when you came and took the vin number off it, correct?
A. I was-we were more around the front of the house.
Q. You had him bring it all the way to the front of the house?
A. To the front or the side. More towards the front.
* * *
Q. Where did you find the VIN number on the bike?
A. I don't recall the exact location. I looked for it until I found it.
Q. And you had to flip the bike around and look all over the engine area? Is that accurate?
A. It wasn't hard to find it I remember.
Q. * * * Did you have to like flip the bike up and-*670A. I didn't have to like-you mean turn it upside down?
Q. No, just kind of stand it up and look at it all around?
A. Yes, with it standing I looked around until I found it.
* * *

Lingo stated that the residence at 5225 Rucks Road belonged to Wertz.

{¶ 5} The record reflects that approximately one year after his encounter with Wertz, Officer Lingo was promoted to detective. Detective Lingo was then assigned to investigate a breaking and entering at a garage located on Rucks Road. During his investigation, Lingo discovered that a dirt bike reported as stolen matched the VIN number that he recorded from the bike that Wertz was in possession of in April of 2015. Thereafter, Detective Lingo arrested Wertz for receiving stolen property.

{¶ 6} On May 23, 2016, Wertz was indicted for one count of receiving stolen property. At his arraignment on June 1, 2016, Wertz stood mute, and the trial court entered a plea of not guilty on his behalf. In his June 15, 2016 motion to suppress, Wertz argued that Detective Lingo trespassed onto his property and detained him unlawfully with no reasonable suspicion of criminal activity. Wertz also argued that the dirt bike was unlawfully seized and the VIN number obtained without a search warrant. Thus, Wertz concluded that any physical evidence and/or statements should be suppressed.

{¶ 7} On October 27, 2016, the trial court issued a decision overruling Wertz's motion to suppress. In its decision, the trial court found as follows:

* * *
There is absolutely no evidence even suggesting that Lingo's earlier encounter with Defendant was anything but consensual. While Lingo did not inform Defendant that he could leave at any time, Lingo neither displayed [n]or exerted any force or authority compelling Defendant to cooperate or otherwise engage with the officer. Lingo did not draw his weapon, place his hands on Defendant, or indicate in any fashion that Defendant was not free to leave. Lingo clearly revealed the purpose of his visit to Defendant's home and Defendant's interaction with Lingo was completely voluntary. At no time did Defendant attempt to terminate the exchange or to leave his property. And because the totality of these circumstances could never meet any reasonable definition of "seizure" as described in [ United States v. Mendenhall ,

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State v. Wertz
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Bluebook (online)
2017 Ohio 8766, 89 N.E.3d 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wertz-ohioctapp-2017.