[Cite as State v. Montgomery , 2020-Ohio-513.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. DARYL A. MONTGOMERY Defendant-Appellant : : : : : : : : : : Appellate Case No. 28404

Trial Court Case No. 2018-CRB-4179 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of February, 2020.

. . . . . . . . . . . STEPHANIE COOK, Atty. Reg. No. 0067101, Prosecuting Attorney, C ity of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, O hio 45402 Attorney for Plaintiff-Appellee MICHELLE M. MACIOROWSKI, 7333 Paragon Road, Suite 170, Dayton, Ohio 45459 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J.-2- {¶ 1} Daryl A. Montgomery appeals from his conviction following a no- contest plea to one count of criminal trespass, a fourth-degree misdemeanor. {¶ 2} Montgomery advances three assignments of error. First, he chall enges the trial court’s denial of a suppression motion prior to his plea. He argues that unlawful detention and questioning by a Dayton police officer led to the discovery that he had been “trespassed” from the apartment complex where he was found. Sec ond, he contends the trial court erred in precluding testimony about an alleged patt ern of police conduct involving stopping people at apartment complexes “which trains citizens to believe that their encounters with police * * * are not consensual.” Third, he claims the trial court erred in not considering the “current culture surrounding citizens’ i nteraction with police officers, not recognizing that the very presence of police may imply to c itizens that they have been detained[,] and by not acknowledging that a private citizen may put himself at risk of harm by attempting to walk away from a police officer.” {¶ 3} The record reflects that Dayton police officer Thadeu Holloway and his partner were patrolling the Limestone Court Apartments around 1 0:00 p.m. on July 11, 2018. While doing so, they heard loud music outside of an apart ment where seven or eight people were congregated in a common area. Holloway approa ched the group on

foot and advised one of the residents to turn the music down. T he resident said she understood and agreed to do so. At the suppression hearing, Hol loway described this brief exchange as “cordial.” {¶ 4} After addressing the music issue, Holloway separately asked eac h of the people outside the apartment if they would mind providing him w ith their name, birthday, and Social Security number. Once again, he described this reque st as a “cordial” one-3- made in a “conversational” tone. He testified that Montgomery w as cooperative and orally provided the information without objection. Holloway’s partner processed the information at the police cruiser and discovered that Montgomery had been “ trespassed” from the property. As a result, the officers arrested him for criminal t respass. On crossexamination, Holloway denied demanding information or identific ation from anyone at the scene. He also denied telling any of the people outside that th ey could not leave. When asked specifically what he said, Holloway responded: I believe I walked up and said, “Good evening. Can you guys pl ease turn down your music? It’s very loud.” The apartment owner said , “Of course.” I said, “What’s going on tonight?” She said, “We are j ust hanging out drinking and trying to listen to some music and trying to r elax.” I then asked, “Would you guys [mind] providing me your information?” (Suppression Tr. at 23.) {¶ 5} The only other witness at the suppression hearing was Montgomer y. He testified that the two officers approached on foot with their h ands on their holsters and told him to give them his identification. Montgomery then clari fied that the officers approached the group and said, “We need to see all your I.D.s, identification cards.” ( Id

. at 28.) According to Montgomery, he responded by attempting to leave the porch and go into the apartment, but Holloway touched a taser and stopped hi m, saying, “Don’t you go in that house.” ( Id . at 29.) Montgomery testified that he came back and sat down b ecause he did not want to get shot or tased. ( Id . at 29-30.) He stated that he was “scared” and did not feel free to leave. ( Id . at 30-31.) {¶ 6} Defense counsel then attempted to question Montgomery about whe ther-4- similar incidents had occurred in the past where police officer s had confronted a group of people outside an apartment. The prosecutor raised a relevance objection. Defense counsel then responded: It’s a pattern your h onor. When ther e’s a group of individuals at Dayton Premier Management or DMHA it is common for police to ba sically stop the group and I.D. everybody. This trains individuals who happen to have to live there because they have no place else that they ca n reasonably afford to comply. When we have an individual such as this then we try to just narrow the scope: Oh, it’s only this particular time here and the courts go right along with allowing yeah this time it was just consens ual when, in fact, there is a pattern of this occurring where people are sto pped routinely just to see if they are doing anything wrong and let’s I.D. the m and let’s run their names. Let’s see if they are on the trespass list when th ere is no objective reason to do so. Then it’s always characterized as we ll in this particular single instance it was all just consensual. ( Id . at 32-33.) {¶ 7} The trial court sustained the objection and refused to allow de fense counsel to question Montgomery about other similar incidents. {¶ 8} On cross-examination, the prosecutor then engaged in the follow ing exchange with Montgomery: Q. Mr. Montgomery, this officer never pulled his gun out on you , correct?

A. No ma’am. Q. He never pulled his taser out on you?-5- A. No ma’am. Q. Never pulled pepper spray out on you?

A. No ma’am. Q. Didn’t curse at you or yell at you that night? A. (Inaudible) Q. Asked for your identification and you provided it to him, co rrect?

A. Yes ma’am.

Q. You didn’t tell him no?

A. No—well I told him I d idn’t have my I.D. but— Q. But you didn’t say, “I’m not gonna tell you who I am”? A. (Inaudible) Everybody else was saying that but I— Q. You didn’t say that? A. Yeah I didn’t—I didn’t want to get shot. ( Id . at 36-37.) {¶ 9} Based on the evidence presented, the trial court overruled Mont gomery’s suppression motion. In a March 28, 2019 decision and entry, the trial court found that neither officer prevented anyone from leaving the scene. (Doc. #18.) The trial court held “that suppression of the statements of the Defendant is not jus tified based on the testimony presented[.] ( Id . at 2). Following the trial court’s ruling, Montgomery entered a no-contest plea. The trial court accepted the plea and found hi m guilty. It imposed a 30- day jail sentence with credit for two days served and the remai nder suspended. It also ordered him to pay a $50 fine and court costs. Finally, the tri al court ordered Montgomery not to return to any Greater Dayton Premiere Management propert ies while he is on the-6- trespass list. {¶ 10} In his first assignment of error, Montgomery contends he did no t voluntarily disclose his identifying information to police. In support, he cites his own testimony that Holloway instructed him not to leave the area as the officers r ested their hands on their tasers or gun belts. Montgomery also professes to have had a li mited understanding of his rights and his ability to refuse to cooperate. He notes the absence of evidence that either officer explained his rights or told him that his cooper ation was not mandatory. He asserts that the trial court erred in not properly considering his “particular education, intelligence and experience with police” when assessing whether the encounter was consensual. For these reasons, he argues that the trial court e rred in overruling his suppression motion. {¶ 11} When ruling on a motion to suppress, “ ‘the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.’ ” State v. Hopfer , 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham , 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). We must accept the trial court’s findings of fact i f they are supported by competent, credible evidence in the record. State v. Isaac , 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we th en must determine as a matter of law, without deference to the trial court’s legal con clusion, whether the applicable legal standard is satisfied. Id

. {¶ 12} With the foregoing standards in mind, we see no error in the tr ial court’s ruling. “Consensual encounters occur when the police merely app roach a person in a-7- public place and engage the person in conversation, and the per son remains free not to answer and to walk away.” State v. Lewis , 2d Dist. Montgomery No. 22726, 2009-Ohio158, ¶ 21, citing United States v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Consensual encounters are not seizures, and Fourth Amendment guarantees are not implicated. State v. Taylor , 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2d Dist.1995), citing Mendenhall at 554. “A request for identification, in and of itself, is not unconstitutional, and is ordinarily characterize d as a consensual encounter[.]” State v. Morgan , 2d Dist. Montgomery No. 18985, 2002 WL 63196, *2 (Jan. 18, 20 02). {¶ 13} We are unpersuaded by Montgomery’s argument that his encounter with Holloway was non-consensual. Although Montgomery claimed he did not feel free to leave or to refuse to cooperate when Holloway spoke to him, “th e test we apply is an objective one.” State v. Wehner , 2d Dist. Montgomery No. 27217, 2017-Ohio-2788, ¶ 10, citing State v. Jirac , 2d Dist. Montgomery No. 15-CR-756, 2016-Ohio-8187, ¶ 10. “The focus is on the officer’s conduct, not the defendant’s subjecti ve state of mind.” Id .; see also California v. Hodari D ., 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (“ Mendenhall establishes that the test for existence of a ‘show of authorit y’ is an objective one: not whether the citizen perceived that he was being ordere d to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.”). Factors that might indicate a non-consensual encount er “include the threatening presence of several police officers, the display of a weapon, some physical touching of the person, the use of language or tone of voice in dicating that compliance with the officer’s request might be required, approaching the p erson in a nonpublic place, and blocking the citizen’s path.” State v. Cosby , 177 Ohio App.3d 670, 2008-Ohio-3862,-8- 895 N.E.2d 868, ¶ 13 (2d Dist.). {¶ 14} Having reviewed the suppression-hearing transcript, we see noth ing either officer did that would support an objective belief that Montgom ery was not free to decline Holloway’s request for identifying information. The trial court assessed witness credibility and plainly credited Holloway’s version of events, including th e officer’s denial that he told any of the people present that they could not leave. As set for th above, the record reflects that Holloway approached the group of people gathered outside t he apartment and asked a resident to turn down the music. He then asked each of the pe ople present outside if they would mind providing him with their name, birthday, and So cial Security number. Holloway characterized his request as “cordial” and “conversati onal” in tone. He testified that Montgomery was cooperative and provided the information wi thout objection. The officer testified that he did not yell at or threaten Montgomer y and that he remained several feet away. In his own testimony, Montgomery acknowledge d that Holloway did not yell, curse, or pull a weapon. In light of the trial court’ s rejection of Montgomery’s claim that Holloway instructed him not to leave, we see nothing eithe r officer did that would cause a reasonable person to believe he was not free to refuse the request for information. Accordingly, the first assignment of error is over ruled. {¶ 15} In his second assignment of error, Montgomery challenges the tr ial court’s evidentiary ruling precluding his testimony about an alleged pa ttern of police conduct involving stopping people at apartment complexes “which trains citizens to believe that their encounters with police * * * are not consensual.” Montgom ery argues that he personally did not feel free to leave when he encountered Hollo way because of this pattern of prior police encounters. (Appellant’s brief at 9.)-9- {¶ 16} “The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice.” (Citation o mitted.) State v. Noling , 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. The issue i s “whether the trial court acted unreasonably, arbitrarily, or unconscionably” in sustaini ng the State’s objection to the proposed testimony. Id . We see no abuse of discretion here for at least two reasons. First, as set forth above, the focus is on the officer when det ermining whether policecitizen interaction is a consensual encounter. The question is whether the officer did anything that reasonably might be construed as a show of force requiring obedience. Whether police officers have a history of checking the identifi cation of apartment residents has no bearing on what Holloway did in this case. Second, if wh at police officers did in prior instances involved merely approaching residents and askin g to see the residents’ identification, then those instances, like the present one, inv olved consensual encounters no matter how many times they occurred. On the other hand, if t he prior instances involved a coercive show of force, then they are dissimilar to what occurred in Montgomery’s case. Either way, the trial court reasonably precl uded testimony about the prior incidents. The second assignment of error is overruled. {¶ 17} In his third assignment of error, Montgomery contends the trial court erred in not considering the “current culture surrounding citizens’ i nteraction with police officers, not recognizing that the very presence of police may imply to c itizens that they have been detained[,] and by not acknowledging that a private citizen may put himself at risk of harm by attempting to walk away from a police officer.” Montgomery a rgues that the existing consensual-encounter standard focusing on the officer’s actions is inadequate because-10- it does not sufficiently consider the fear that some citizens h ave of police or the possibility that citizens may put themselves in danger by attempting to wal k away. {¶ 18} We are unpersuaded by Montgomery’s argument. Again, case law in structs that “[t]he focus is on the officer’s conduct, not the defendan t’s subjective state of mind.” Wehner, 2d Dist. Montgomery No. 27217, 2017-Ohio-2788, at ¶ 10. The que stion is “not whether the citizen perceived that he was being ordered to rest rict his movement, but whether the officer’s words and actions would have conveyed tha t to a reasonable person.” Hodari D ., 499 U.S. at 628, 111 S.Ct. 1547, 113 L.Ed.2d 690. We decline to adopt a standard that “the very presence of police” is tantamou nt to detention whenever a citizen believes it to be so. Such a standard would extinguis h the consensual encounter, as all police-citizen interaction, by definition, requires the “very existence of police.” We also reject the notion that a consensual encounter does not exi st where a citizen subjectively fears being shot in the absence of objective evide nce to support such a fear. The third assignment of error is overruled. {¶ 19} Based on the foregoing reasoning, we affirm the judgment of the Dayton Municipal Court.

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TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to: Stephanie Cook Michelle M. Maciorowski Hon. Daniel G. Gehres