[Cite as State v. Hayes,
2024-Ohio-5545.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-03-040
: OPINION
- vs - 11/25/2024
:
KYLE G. HAYES, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2023-07-0967
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Law Office of John H. Forg, and John H. Forg, III, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Kyle G. Hayes, appeals his convictions in the Butler County Court
of Common Pleas for three counts of aggravated possession of drugs, assault, and failure
to comply with an order or signal from a police officer.
{¶ 2} On June 21, 2023, Middletown Police Officer Jacob Swanger was on duty
driving his cruiser around town when he observed two individuals riding their bikes on the
Butler CA2024-03-040
street. One of the bikers, later identified as Hayes, was riding his bike in the middle of
the street. Officer Swanger believed Hayes violated R.C. 4511.55(A) which requires a
bicyclist riding in the street to ride as near to the right side of the road as practicable.1
{¶ 3} Based upon these observations, Officer Swanger activated his overhead
lights and sounded his air horn to get the cyclists to stop. Instead of stopping, Hayes first
rode his bike away from Officer Swanger onto a sidewalk but then proceeded back onto
the street at which time Officer Swanger shouted at Hayes to stop. After Officer Swanger
sounded his cruiser's air horn a second time, Hayes got off his bicycle and proceeded
down the street away from Officer Swanger.
{¶ 4} Officer Swanger then got out of his cruiser and told Hayes to stop. Hayes
initially kept walking away but turned around and started walking back to Officer Swanger.
Officer Swanger noticed Hayes was wearing a large, sheathed knife on his right hip. Due
to this and the fact that Officer Swanger's "two subjects [were] separated[,]" Officer
Swanger ordered Hayes to get to the ground. Hayes refused to do so, at which point
Officer Swanger told Hayes he was under arrest. Fearing for his safety, Officer Swanger
also pulled out his taser and again ordered Hayes to get on the ground.
{¶ 5} At that point, Hayes positioned himself behind the other bicyclist, before
running down the street. Officer Swanger chased down Hayes, grabbed him, and took
him to the ground. Officer Swanger ordered Hayes to lay face down and present his
hands, but Hayes refused to do so. Hayes then reached down towards his own
waistband, where the sheathed knife was, prompting Officer Swanger to punch Hayes in
the face.
1. Officer Swanger also believed Hayes violated Middletown City Ordinance 474.06. However, for the
reasons discussed below, we need not apply that ordinance to the facts of this case to affirm Hayes'
convictions.
-2-
Butler CA2024-03-040
{¶ 6} The two continued to struggle on the ground before Hayes' kicked Officer
Swanger in the chest and left side of the face. Hayes eventually broke away from Officer
Swanger and ran back to his bike down the street. Officer Swanger ran after him and
took Hayes to the ground once again. Officer Swanger was unable to place Hayes in
handcuffs until other officers arrived at the scene.
{¶ 7} After arresting Hayes, another officer performed a search of Hayes' person
and found approximately 20 grams of a crystal-like substance on him. The substance
was later tested and identified as methamphetamine. In addition, Officer Swanger
learned that Hayes had a warrant for his arrest by the Ohio Parole Authority.
{¶ 8} Hayes was subsequently indicted on three counts of aggravated
possession of drugs, assault, and failure to comply with an order or signal from a police
officer. Hayes filed a motion to suppress, arguing there was no probable cause for his
arrest after riding as far as possible to the right side of the road. Thus, he asserted the
drugs found on his person and his entire interaction with law enforcement could not be
presented at trial.
{¶ 9} At the suppression hearing, Officer Swanger testified to the facts laid out
above. The State also introduced a cell phone video taken by a bystander which showed
part of the altercation between Hayes and Officer Swanger. The copy of the video
presented at the hearing appeared to have been taken from a social media website.
Officer Swanger testified he did not take the video but that he was depicted in it and that
it "fairly and accurately" portrayed the incident. Hayes did not object to this exhibit at the
hearing, and it was admitted into evidence.
{¶ 10} The trial court held that Officer Swanger had probable cause to stop Hayes
for cycling violations and that Hayes then committed further crimes and was arrested.
The trial court therefore concluded the subsequent search was a search incident to arrest,
-3-
Butler CA2024-03-040
and Hayes' motion to suppress was denied.
{¶ 11} Hayes later entered a no contest plea to the charges set forth in the
indictment, and the trial court sentenced Hayes to an indeterminate sentence of four to
six years on the drug charges, 12 months consecutive on the assault charge, and 180
days concurrent on the failure to comply charge. Thus, the total aggregate sentence was
five to seven years.
{¶ 12} On appeal, Hayes raises a single assignment of error.
{¶ 13} THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE
OBTAINED FROM THE UNCONSITUTIONAL ARREST OF HAYES.
{¶ 14} Within this assignment of error, Hayes raises two separate issues for our
review that encapsulates his argument on appeal. We will address each in turn.
{¶ 15} FIRST ISSUE PRESENTED FOR REVIEW: ONCE [OFFICER] SWANGER
ATTEMPTED TO STOP HAYES FOR A MINOR MISDEMEANOR TRAFFIC VIOLATION.
[Sic] RATHER THAN SIMPLY ISSUING A CITATION, AS REQUIRED, HE
IMPROPERLY ATTEMPTED TO TASE AND HANDCUFF HAYES.
{¶ 16} First, Hayes argues that Officer Swanger could not arrest Hayes for a minor
misdemeanor traffic violation and that he complied with Officer Swanger's orders because
he walked back to Officer Swanger after "realizing" he was being ordered to do so.
{¶ 17} Our review of the trial court's ruling on Hayes' motion to suppress presents
a mixed question of fact and law. State v. Hipsher, 2023-Ohio-3750, ¶ 8 (12th Dist.).
"[T]his court is bound to accept the trial court's findings of fact if they are supported by
competent, credible evidence . . . [but we] 'independently determine, without deference
to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.'"
Id. quoting State v. Runyon,
2011-Ohio-263, ¶ 12 (12th Dist.).
{¶ 18} The Fourth Amendment to the United States Constitution and Article I,
-4-
Butler CA2024-03-040
Section 14 of the Ohio Constitution prohibit unreasonable searches and seizures. State
v. Dunn, 2022-Ohio-4136, ¶ 16 (12th Dist.). Typically, any evidence obtained as a result
of an unreasonable search or seizure will be excluded from use against a defendant.
Hipsher at ¶ 10. Warrantless searches and seizures "are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.'"
Dunn at ¶16, quoting Katz v. United States,
389 U.S. 347, 357 (1967).
{¶ 19} One such exception is a search incident to a lawful arrest. Hipsher at ¶ 11.
Generally speaking, law enforcement may arrest an individual for a crime as long as law
enforcement has probable cause to believe a crime was committed. Atwater v. City of
Lago Vista,
532 U.S. 318, 354, (2001). "[P]robable cause is viewed under an objective
standard and is present where, under the facts and circumstances within an officer's
knowledge, a reasonably prudent person would believe that the arrestee has committed
a crime."
Hipsher at ¶ 20, citing State v. Willis,
2013-Ohio-2391, ¶ 25 (12th Dist.).
{¶ 20} While Swanger was not able to arrest Hayes under Ohio law for a violation
of R.C. 4511.55, Swanger had probable cause to arrest Hayes for failure to comply with
orders. R.C. 4511.55(A) states "[e]very person operating a bicycle . . . upon a roadway
shall ride as near to the right side of the roadway as practicable . . ." Violation of this
statute is a minor misdemeanor. Importantly, R.C. 2935.26(A) prohibits law enforcement
from arresting an individual for minor misdemeanors unless certain exceptions apply
(none of which are relevant to this case). However, R.C. 2921.331 makes it illegal to "fail
to comply with any lawful order or direction of any police officer invested with authority to
direct, control, or regulate traffic." Violation of that statute is a first-degree misdemeanor
for which a full custodial arrest is proper. See id., R.C. 2935.26(A).
{¶ 21} Here, Hayes does not challenge Swanger's testimony on appeal, including
that Hayes was riding his bicycle in the middle of the street as opposed to being as far
-5-
Butler CA2024-03-040
right on the roadway as possible. Thus, Swanger had probable cause to believe Hayes
violated R.C. 4511.55 after viewing him ride his bike down the middle of the street. Hayes
is correct that Swanger did not have authority to arrest Hayes at this point, but Swanger
subsequently gained probable cause to believe Hayes also failed to comply with the order
or signal of a police officer in violation of R.C. 2921.331(A) when Hayes (1) ignored Officer
Swanger's repeated verbal, visual, and audible orders to stop and (2) ignored Officer
Swanger's orders to get on the ground after Hayes approached Officer Swanger with a
sheathed knife strapped to his leg.
{¶ 22} Officer Swanger was the only person to testify at the hearing, and we see
nothing in the hearing transcript to support Hayes' assertion that his failures to comply
were the result of a simple misunderstanding. Regardless, we conclude that a reasonably
prudent person would believe under these circumstances that Hayes was failing to
comply with Officer Swanger's authority to regulate traffic. Thus, Hayes' subsequent
arrest did not stem from a minor misdemeanor, but from a first-degree misdemeanor (not
to mention everything else that followed) for which Officer Swanger did possess authority
to arrest Hayes and conduct a search incident to that arrest.
{¶ 23} For these reasons, we find Officer Swanger's arrest of Hayes was supported
by Ohio law.
{¶ 24} SECOND ISSUE PRESENTED FOR REVIEW: THE PROSECUTION
SUBMITTED A VIDEOTAPE OF THE INTERACTION BETWEEN [OFFICER]
SWANGER AND HAYES THAT WAS NOT PROPERLY AUTHENTICATED, BUT
WHICH THE TRIAL COURT DID PLAY AND ADMIT INTO EVIDENCE.
{¶ 25} Next, Hayes argues the video footage of the confrontation between
Swanger and Hayes that was not properly authenticated at the suppression hearing, citing
concerns that the video was a copy from social media.
-6-
Butler CA2024-03-040
{¶ 26} Hayes' arguments are unavailing for two reasons. First, Hayes failed to
raise any objections at the suppression hearing regarding presentation of the video and
has thus forfeited them on appeal. "This court has consistently applied [the] principle . .
. [that] 'a party cannot raise new issues or legal theories for the first time on appeal
because such issues or theories are deemed waived.'" State v. Salem, 2023-Ohio-2914,
¶ 19 (12th Dist.), quoting State v. Keating,
2020-Ohio-2770, ¶ 27 (12th Dist.).
{¶ 27} Second, while Hayes is correct that Evid.R. 901(A) requires evidence be
sufficiently authenticated "to support a finding that the matter in question is what its
proponent claims[,]" it is a "well established principle that the rules of evidence are not
applicable in a suppression hearing." State v. Cummins, 2019-Ohio-1496, ¶ 43 (12th
Dist.). See also State v. Boczar,
2007-Ohio-1251, ¶ 17. Therefore, the video did not
need to be authenticated at the suppression hearing.
{¶ 28} For the foregoing reasons, Hayes' assignment of error is overruled.
{¶ 29} Judgment affirmed.
BYRNE, P.J., and M. POWELL, J., concur.
-7-
