[Cite as State v. Cook, 2013-Ohio-2832.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NOS. 2012-P-0098

 - vs - : and 2012-P-0099

 

KELLY E. COOK, :

 Defendant-Appellant. :

Criminal Appeals from the Portage County Municipal Court, Kent Division, Case Nos. 

K11 TRC 3865 and 11 CRB 2716. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor and Pamela J. Holder, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

Jamison A. Offineer, Student Legal Services, Inc., Kent State University, 164 East 

Main Street, #203, Kent, OH 44240 (For Defendant-Appellant). 

COLLEEN MARY O’TOOLE, J. 

{¶1} Kelly E. Cook appeals from the judgment of the Portage County Municipal 

Court, Kent Division, denying her motion to suppress. Ms. Cook was stopped by Officer 

Jason M. Short of the City of Kent Police in the early hours of December 27, 2011, as 

he responded to a dispatch regarding a fight between two women at an apartment. 

Officer Short eventually arrested Ms. Cook for operating a vehicle under the influence of 
 2

alcohol. Fundamentally, Ms. Cook contends Officer Short had no reasonable suspicion 

to stop her vehicle. We respectfully disagree, and affirm the judgment of the trial court. 

{¶2} The facts are taken from the transcript of the suppression hearing, and the 

recording of 9-1-1 calls which were introduced at the hearing. 

{¶3} Just before 2:00 a.m., December 27, 2011, Dispatcher Lafferty of the Kent 

police received a 9-1-1 call from Patricia Kincade, a resident at an apartment complex 

located at 890 Simon Lane in Kent. The call proceeded as follows. 

{¶4} Dispatcher: “Kent Police Department, Lafferty. 

{¶5} Kincade: “Hi. Um, there is somebody in my apartment building pounding 

on somebody else’s door and they won’t stop. Like, they’ve been doing it for seriously 

like seven minutes. 

{¶6} Dispatcher: “Okay, do you know the address? 

{¶7} Kincade: “Um, no. I – I haven’t even looked. 

{¶8} Dispatcher: “What building are you in? 

{¶9} Kincade: “Um. 890 Simon Lane 

{¶10} Dispatcher: “Okay, is it on your floor? 

{¶11} Kincade: “Yes. Well it sounds like it because it’s so loud. And I’m uh, you 

know, kids are sleeping, other people are sleeping. 

{¶12} Dispatcher: “Okay. What is your name? 

{¶13} Kincade: “Patricia Kincade. 

{¶14} Dispatcher: “And what’s your phone number Patricia? 

{¶15} Kincade: “Um, 330-906-6721. 

{¶16} Dispatcher: “What apartment number are you in? 
 3

{¶17} Kincade: “101. 

{¶18} Dispatcher: “Okay, you didn’t see where they are – who it was? 

{¶19} Kincade: “I mean I- I know they’re on my floor. I hear it. They’re still, it’s 

still going on. I can even hear a female yelling. 

{¶20} Dispatcher: “Okay. If the per * * * the female that’s yelling, is she the one 

that outside of the door pounding or do you think * * *? 

{¶21} Kincade: “I believe she’s on the inside but I’m * * * I’m not sure. I don’t * * 

* I don’t even want to look. ‘Cuz * * * our * * * doors are so * * * you know? 

{¶22} Dispatcher: “That’s fine. I’ll go ahead and send somebody out. If anything 

changes before we get out there can you give us a call back? 

{¶23} Kincade: “Yes, I will. Thank you. 

{¶24} Dispatcher: “Thank you. 

{¶25} Kincade: “Bye. 

{¶26} Dispatcher: ‘Bye”. 

{¶27} Dispatcher Lafferty radioed that someone on the first floor at 890 Simon 

was pounding on the door of an apartment, and that a woman inside that apartment was 

yelling. 

{¶28} A moment later, Ms. Kincade placed another 9-1-1 call. 

{¶29} Dispatcher: “Kent Police Department, Lafferty. 

{¶30} Kincade: “Hello, I just called. Um, they really need to get here now. 

There’s two females that are like fighting. 

{¶31} Dispatcher: “Okay. Are they fighting each * * * or * * * are they on still on 

opposite sides of the door or are they * * * [inaudible]. 
 4

{¶32} Kincade: “Um well * * *. 

{¶33} Dispatcher: “* * * or are they physically fighting? 

{¶34} Kincade: “Hold on, hold on a second. Somebody is leaving. 

{¶35} Dispatcher: “[inaudible] 228. 

{¶36} Kincade: “All I heard was somebody was being thrown out of a * * * thrown 

out of car at twenty miles per hour and the door slamming. 

{¶37} Dispatcher: “[To someone else] [inaudible] to advise she believes that two 

females are fighting. 

{¶38} Kincade: “Hold on, I’m sorry. 

{¶39} Dispatcher: “[inaudible] thrown out of a vehicle. Still trying to get further. 

{¶40} Kincade: “Yes the * * * the female is leaving. 

{¶41} Dispatcher: “Okay. Can you des * * * can you see her? 

{¶42} Kincade: “Uh * * * I don’t have my glasses. 

{¶43} Dispatcher: “That’s okay. If you can tell me anything that she * * * what 

she looks like, that’ll help my officers out, but if not then * * *. 

{¶44} Kincade: “She [inaudible] * * * the car * * * [inaudible] * * * I can tell you 

what the car looks like in about two seconds if that’ll help? 

{¶45} Dispatcher: “Okay. 

{¶46} Kincade: “Okay. She * * * her license plate is * * * oh god she’s backing 

up. [Inaudible]. 

{¶47} Dispatcher: “[To someone else] One of the females involved is getting into

a vehicle. 
 5

{¶48} Kincade: “It’s 4 * * * 9 * * * 2 * * * something * * * [inaudible] * * * I believe 

it’s an ‘m.’ It’s a silver kind a car. But it’s like a Jeep but smaller. She just pulled out. 

{¶49} Dispatcher: “228. She just got into a silver vehicle, smaller than a Jeep. 

{¶50} Kincade: “But it’s got the hump on the top of the car. You know what I 

mean? 

{¶51} Dispatcher: “[Cross-talk] Okay my officer is [inaudible]. And the other 

female that was involved is still in the apartment? 

{¶52} Kincade: “Yes. Um, it sounded like it was upstairs. But, um, I can’t * * * I 

can’t even tell you ‘cuz I looked out my peephole and I couldn’t see. [Cross-talk] ‘Cuz 

she walked either up or down the stairs, but it was real [inaudible]. 

{¶53} Dispatcher: “Okay. Alright, um, my officer found the vehicle that you just 

described to me so I’ll go ahead and let you go, okay? 

{¶54} Kincade: Alright. 

{¶55} Dispatcher: “Alright, Thank you. 

{¶56} Kincade: “Thank you so much. 

{¶57} Dispatcher: “You’re welcome. 

{¶58} Kincade: “Bye. 

{¶59} Dispatcher: “Bye.” 

{¶60} Officer Short was just arriving at 890 Simon Lane. He spotted a tan or 

silver Subaru, driven by a woman, exiting the apartment complex parking lot. It had a 

license number of 492 XJT. Officer Short activated his overhead lights, and made an 

investigative stop of the Subaru. In the short distance that car had driven since leaving 

the apartment complex, Officer Short observed no traffic violations. 
 6

{¶61} The driver of the vehicle – Ms. Cook – opened her door when Officer 

Short approached. He asked her if she knew anything about a fight at the apartment 

complex. Officer Short testified that Ms. Cook did not really respond to this question. 

He further testified that Ms. Cook seemed very drunk, and admitted to drinking; that her 

car had been stolen in Stow, Ohio; and, that she yelled at him to get her out of the area. 

He had her perform field sobriety tests, which she failed. 

{¶62} Meanwhile, other responding officers entered the apartment complex, and 

spoke with Ms. Kincade. With her help, they identified the other woman involved in the 

recent fight, and ascertained that she was uninjured. 

{¶63} Ms. Cook was arrested, and taken to the police station, where she refused 

a breathalyzer test. She was charged with OVI, pursuant to R.C. 4511.19(A)(1)(a), 

refusing a chemical test, pursuant to R.C. 4511.19(A)(2), and an open container 

violation pursuant to R.C. 4301.62. Ms. Cook was released on bond; and, December 

30, 2011, entered a plea of not guilty to the charges. February 21, 2012, she filed her 

motion to suppress. Hearing on the motion went forward June 14, 2012. That same 

day, the trial court denied the motion.1

 June 30, 2012, Ms. Cook changed her plea to 

one of no contest, and the trial court stayed its judgment pending appeal. August 22, 

 

1. The judgment entry of the trial court denied the motion to suppress in a single sentence. It did have a 

lengthy exchange with defense counsel regarding the case at the end of hearing. In evaluating a 

suppression motion as the trier of fact, the trial court must follow Crim.R. 12(F), which states: “[w]here 

factual issues are involved in determining a motion, the court shall state its essential findings on the 

record.” “The underlying rationale of Crim.R. 12(F) is to allow for effective judicial review.” Kirtland Hills 

v. Medancic, 11th Dist. Nos. 2011-L-136 and 2011-L-137, 2012-Ohio-4333, ¶8, citing State v. Marinacci, 

5th Dist. No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3, 1999). “Indeed, only with a recitation of 

the trial court’s factual findings is a reviewing court able to properly determine whether the findings are 

supported by the record and whether the correct law was applied to those facts. Conversely, ‘(i)f the trial 

court does not make findings of fact, appellate review of the decision is hampered.’” Medancic at ¶8, 

quoting State v. Bailey, 5th Dist. No. CT2002-0041, 2003 Ohio App. LEXIS 5690, *6 (Nov. 21, 2003). 

While it is not reversible error for a trial court to fail to place these findings in writing, so long as they are 

apparent from the transcript of proceedings, written findings facilitate appellate review, since they inform 

the reviewing court of the exact basis of the trial court’s judgment. 
 7

2012, following a status conference, the trial court entered a nunc pro tunc judgment 

entry, noting that it had failed to rule on the open container violation; denying the motion 

to suppress regarding that charge, and setting the case for trial. 

{¶64} August 23, 2012, Ms. Cook noticed this appeal. 

{¶65} “‘Appellate review of a trial court’s ruling on a motion to suppress evidence 

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154, 

2003-Ohio-5372, * * *. During a hearing on a motion to suppress evidence, the trial 

judge acts as the trier of fact and, as such, is in the best position to resolve factual 

questions and assess the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 

357, 366, * * *. An appellate court reviewing a motion to suppress is bound to accept 

the trial court’s findings of fact where they are supported by competent, credible 

evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, * * *. Accepting these 

facts as true, the appellate court independently reviews the trial court’s legal 

determinations de novo. State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, 

at ¶19.’ Geneva v. Fende, 11th Dist. No. 2009-A-0023, 2009-Ohio-6380, at ¶11.” 

(Parallel citations omitted.) State v. Larrick, 11th Dist. No. 2009-P-0054, 2010-Ohio2288, ¶10. 

{¶66} Ms. Cook assigns two errors. The first reads: 

{¶67} “The trial court committed reversible error in overruling 

Appellant/Defendant Kelly E. Cook’s, Motion to Suppress since the dispatch relied upon 

by the officer to stop Ms. Cooks’ vehicle was not precipitated by facts amounting to 

reasonable suspicion of criminal activity, and since the description of the suspect and 
 8

the suspect’s vehicle was not sufficient to give the officer reasonable suspicion to stop 

Ms. Cook’s vehicle.” 

{¶68} Under this assignment of error, Ms. Cook presents two issues. We 

consolidate them for review. The first is: 

{¶69} “Was a citizen caller’s tip that someone was pounding on her neighbor’s 

door followed by a call that two unidentified females were ‘like fighting’ somewhere in 

her apartment sufficient to create a reasonable suspicion that Ms. Cook had been 

engaged in criminal activity even though caller had only heard a verbal fight between 

the two females and even though the caller did not provide dispatch with any details 

specific to Ms. Cook’s alleged involvement with the incident?” 

{¶70} The second issue presented is: 

{¶71} “Was the description of the suspect, a female, and the suspect’s vehicle, a 

silver, Jeep styled car with the license plate number 492-7-JTM, sufficient to give Officer 

Short reasonable suspicion to stop a (sic) Ms. Cook’s vehicle, which was described as a 

tan or silver Subaru, that did not resemble a Jeep, and had a license number of 492 

XJT?” 

{¶72} By her first assignment of error, therefore, Ms. Cook alleges that the 9-1-1 

calls by Ms. Kincade were insufficient (1) to establish that any crime had occurred; (2), 

to establish that Ms. Cook was one of the females involved in the altercation reported by 

Ms. Kincade; and (3) that the vehicle she reported did not sufficiently describe Ms. 

Cook’s vehicle. 

{¶73} We respectfully disagree on all points. 
 9

{¶74} “In Terry v. Ohio (1968), 392 U.S. 1, * * *, the United States Supreme 

Court held that a police officer may make a brief, warrantless, investigatory stop of an 

individual without probable cause to arrest where the officer reasonably suspects that 

the individual is or has been involved in criminal activity. In reaching that conclusion, 

the officer must be able to point to specific and articulable facts that, taken together with 

rational inferences from those facts, reasonably warrant the intrusion. State v. Andrews 

(1991), 57 Ohio St.3d 86, * * *, quoting Terry, 392 U.S. at 21.

{¶75} “Whether an investigatory stop is reasonable depends upon the totality of 

circumstances surrounding the incident. State v. Williams (1990), 51 Ohio St.3d 58, 60, 

* * *. The propriety of an investigatory stop must be assessed in light of the totality of 

the circumstances as viewed through the eyes of a reasonable police officer who must 

confront those circumstances on the scene. State v. Andrews, 57 Ohio St.3d at 87-88. 

{¶76} “Reasonable suspicion, however, need not be based only on an officer’s 

personal observations. Adams v. Williams (1972), 407 U.S. 143, 147, * * *. The officer 

may rely on information gleaned from other valid sources, such as other officers or a 

police radio dispatch. United States v. Hensley (1985), 469 U.S. 221, * * *. This 

principle is rooted in the notion that ‘effective law enforcement cannot be conducted 

unless police officers can act on directions and information transmitted by one officer to 

another and that officers, who must often act swiftly, cannot be expected to crossexamine their fellow officers about the foundation for the transmitted information.’ Id. at 

231, * * *, quoting United States v. Robinson (C.A.9, 1976), 536 F.2d 1298, 1299. 

When a dispatch is involved, therefore, the officer who conducts the initial stop will 
 10

typically have very little knowledge of the facts that prompted his or her fellow officer to 

issue the dispatch. 

{¶77} “The United States Supreme Court has reasoned, then, that the 

admissibility of the evidence uncovered during such a stop does not rest upon whether 

the officers relying upon a dispatch ‘were themselves aware of the specific facts which 

led their colleagues to seek their assistance.’ It turns instead upon whether the officer 

who issued the dispatch possessed reasonable suspicion to make the stop. Id. at 231. 

Thus, if a dispatch was issued in the absence of reasonable suspicion, then a stop in 

the objective reliance upon it violates the Fourth Amendment. Hensley, 469 U.S. at 

232. 

{¶78} “Relying on Hensley, the Ohio Supreme Court held that it is the state’s 

responsibility at a suppression hearing to demonstrate that the facts precipitating a 

dispatch indicated a reasonable suspicion of criminal activity. Maumee v. Weisner 

(1999), 87 Ohio St.3d 295, 298, * * *. Where law enforcement officers rely solely upon 

an informant’s tip before effectuating a stop, the determination of reasonable suspicion 

will be limited to an examination of the weight and reliability due that tip. Weisner, 87 

Ohio St.3d at 298-299. It must be determined whether the tip itself is sufficiently reliable 

in order to justify the investigative stop.” (Parallel citations omitted.) State v. Williams, 

8th Dist. No. 81364, 2003-Ohio-2647, ¶8-12. 

{¶79} Further, “a tip from an identified citizen informant who is the victim or 

witnesses a crime is presumably reliable, particularly if the citizen relates his or her 

basis of knowledge.” State v. Gress, 2d Dist. No. 16899, 1998 Ohio App. LEXIS 2694, 

*6 (June 19, 1998). 
 11

{¶80} Thus, the first question is whether Dispatcher Lafferty had sufficient 

specific, articulable facts to form a reasonable suspicion that a crime had occurred. She 

did. Ms. Kincade fully identified herself when she made her 9-1-1 calls. During the first, 

she reported a continuous pounding on a neighbor’s door, and a woman screaming, at 

nearly 2:00 a.m. During the second call, she informed the dispatcher that the situation 

had escalated into a fight between two women. She told the dispatcher that the 

commotion ended; she reported seeing a woman exit the apartment building to a silver 

car, and gave a partial license number for that car. The fact that Ms. Kincade did not go 

to confirm visually the nature of the fight she heard, seems inconsequential in 

determining whether Dispatcher Lafferty had reasonable suspicion to believe criminal 

activity was afoot. Ms. Kincade stated that she was afraid to leave her apartment, 

which was natural under the circumstances. The facts given to the dispatcher, and 

relayed by her to Officer Short, could at least describe disorderly conduct, in violation of 

R.C. 2917.11(A)(1) or (2). It might well describe a full-fledged assault. 

{¶81} Officer Short was arriving at the apartment complex when he received the 

report that a woman had left the building, and was driving a silver, jeep-like vehicle. He 

immediately spotted a silver or tan Subaru exiting the parking lot, driven by a woman. It 

was the only car exiting the parking lot. The car’s license plate number, 492 XJT, was 

fundamentally the same as that showing on his computer screen, 4927 JTM. He was 

entirely justified in making a brief investigatory stop of that car. 

{¶82} The first assignment of error lacks merit. 

{¶83} Ms. Cook’s second assignment of error is: 
 12

{¶84} “Assuming arguendo that State met its burden to demonstrate reasonable 

suspicion that Ms. Cook had been engaged in criminal activity, the trial court committed 

reversible error in overruling Ms. Cook’s Motion to Suppress since Ms. Cook’s right to 

[be] free from unreasonable seizures outweighed the government’s interest in 

investigating an alleged minor offense that occurred outside the officer’s presence and 

when there was no ongoing concern for public safety.” 

{¶85} Under this assignment of error, Ms. Cook presents a single issue for 

review: 

{¶86} “[D]id the State’s interest in investigating a minor and unspecified noise 

offense/verbal fight that had occurred outside of the officer’s presence and was no 

longer occurring, justify the seizure of Ms. Cook in her vehicle and subsequent 

investigatory detention?” 

{¶87} In support of this assignment of error, Ms. Cook relies on State v. Lewis, 

50 Ohio St. 179 (1893), and its progeny. In Lewis, the Supreme Court of Ohio held: 

{¶88} “Where a breach of the peace is committed in the presence of a marshal 

of an incorporated village or city, he may, without warrant, arrest the persons who 

participate therein. If, however, the officer was absent when such offense was 

committed, and did not appear there until after the affray had ended, public order 

restored, and the guilty parties had departed from the vicinity, and all the information the 

officer had of the affray and of the parties to it, was the statements of by-standers who 

witnessed it, he has no authority in law to pursue and arrest the persons charged with 

the offense without first obtaining a legal warrant therefor.” Lewis at the syllabus. 
 13

{¶89} Ms. Cook notes that the trial court did not specify what crime Officer Short 

was investigating when he stopped her. She implies that, at worst, the situation 

described by Ms. Kincade in her 9-1-1 calls could be characterized as disorderly 

conduct, in violation of R.C. 2917.11(A), a minor misdemeanor, and thus, subject to the 

strictures of Lewis. 

{¶90} We respectfully disagree. Ms. Kincade reported first someone banging on 

a neighbor’s door, and a woman screaming. She informed Dispatcher Lafferty that two 

women were fighting. She told the dispatcher she was scared. It was 2:00 a.m. The 

uncontradicted testimony of Officer Short was that he had worked in the area where the 

incident occurred for four to five years; that it is a high crime area, with frequent violent 

crimes; and, that the particular apartment complex involved is dilapidated, with poor 

security. 

{¶91} Perhaps Ms. Kincade was “merely” a victim of disorderly conduct. R.C. 

2917.11 states, in pertinent part: 

{¶92} “(A) No person shall recklessly cause inconvenience, annoyance, or alarm 

to another by doing any of the following: 

{¶93} “(1) Engaging in fighting, in threatening harm to persons or property, or in 

violent or turbulent behavior; 

{¶94} “(2) Making unreasonable noise or an offensively coarse utterance, 

gesture, or display or communicating unwarranted and grossly abusive language to any 

person * * *.” 

{¶95} As to her, the conduct occurring that morning was alarm caused by 

turbulent behavior, or unreasonable noise. But the conduct described by her – i.e., a 
 14

fight between two women, following an extended period of one pounding on a door, 

possibly to gain entrance, at 2:00 a.m. – could easily, for those involved, be something 

far more serious. In terms of whether Officer Short had reasonable suspicion to stop 

Ms. Cook, and briefly question her regarding the incident, Lewis simply does not apply. 

{¶96} The second assignment of error lacks merit. 

{¶97} The judgment of the Portage County Municipal Court, Kent Division, is 

affirmed. 

{¶98} It is the further order of this court that appellant is assessed costs herein 

taxed. 

{¶99} The Court finds there were reasonable grounds for this appeal. 

TIMOTHY P. CANNON, P.J., 

THOMAS R. WRIGHT, J., 

concur.