In re T.B.

[Cite as In re T.B., 2026-Ohio-1309.]



                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


IN RE: T.B.                                 :        APPEAL NOS.       C-250279
                                                                       C-250288
                                            :        TRIAL NOS.        24/2312-01 X
                                                                       T/24/1379-01 X
                                            :

                                            :
                                                          JUDGMENT ENTRY
                                            :



        This cause was heard upon the appeals, the records, the briefs, and arguments.
        For the reasons set forth in the Opinion filed this date, the judgment of the trial
court appealed in the case numbered C-250279 is affirmed, and the judgment of the
trial court appealed in the case numbered C-250288 is reversed and the cause is
remanded.
        Further, the court holds that there were reasonable grounds for these appeals,
allows no penalty, and orders that costs be taxed in both cases under App.R. 24.
        The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.



To the clerk:
Enter upon the journal of the court on 4/10/2026 per order of the court.


By:_______________________
      Administrative Judge
[Cite as In re T.B., 2026-Ohio-1309.]



                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


IN RE: T.B.                             :      APPEAL NOS.    C-250279
                                                              C-250288
                                        :      TRIAL NOS.     24/2312-01 X
                                                              T/24/1379-01 X
                                        :

                                        :
                                                      OPINION
                                        :



Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in C-250279;
                             Reversed and Cause Remanded in C-250288

Date of Judgment Entry on Appeal: April 10, 2026



Connie Pillich, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Margaret Kane, Assistant
Public Defender, for Appellant T.B.
[Cite as In re T.B., 2026-Ohio-1309.]


CROUSE, Presiding Judge.

        {¶1}     T.B., a juvenile, and three of his friends were stopped for jaywalking.

T.B. was frisked and a gun was found on his person. T.B. was adjudicated delinquent

for jaywalking and carrying a concealed weapon. He now appeals, arguing that the gun

should not have been admitted into evidence, that the State failed to show that the gun

was operable, and that the juvenile court should have permitted T.B. to withdraw his

plea of “admit” entered in the jaywalking case.

        {¶2}     After reviewing the record, we disagree with his arguments about the

concealed-carry adjudication: the gun in that case was not seized in violation of the

Fourth Amendment, was adequately authenticated, and was sufficiently shown to be

operable. We therefore affirm the dispositional order appealed in the case numbered

C-250279. However, we agree that the juvenile court abused its discretion by failing to

permit T.B. to withdraw his plea in the jaywalking case, so we reverse the dispositional

order appealed in the case numbered C-250288.

                                        I. BACKGROUND

                                  A. Stop, Search & Arrest

        {¶3}     On October 29, 2024, Officers Hoffbauer and Dezarn sat in an

unmarked vehicle wearing plain clothes. Officer Hoffbauer saw four young Black men

“loitering” outside of a Hook Fish and Chicken restaurant in Avondale. One of those

young men, T.B., was wearing a baggy, dark-brown sweatshirt. Another of the young

men wore a lighter, tan hoodie. The remaining two young men were dressed in black

hoodies.

        {¶4}     Officer Hoffbauer later testified that she observed conspicuous bulges

in the “waistband areas” of T.B. and the young man in the tan hoodie, which she

described as “very consistent with carrying a firearm.” She also testified that the two
                  OHIO FIRST DISTRICT COURT OF APPEALS


exhibited “furtive movements,” which she described as grabbing at their waistband

areas, as if to check that a firearm was still there.

         {¶5}   Officer Hoffbauer testified that she watched as these four young men

crossed the street unlawfully—either outside of the crosswalk or within the crosswalk

but without a walk light. She put a call out on her radio to nearby uniformed officers,

informing them of the jaywalking violation and the alleged bulges.

         {¶6}   Officer Chitwood responded to her call, and his body-worn camera

(“BWC”) recorded the subsequent encounter. He approached the four young men in

front of a building, which he later identified both as “a community center” and “a

church and daycare type facility.” Officer Chitwood informed the four young men that

he was stopping them because they had not used the crosswalk. When T.B. objected

that they had used the crosswalk, Officer Chitwood replied that they didn’t have the

light.

         {¶7}   Officer Chitwood testified that, at the time he initiated the interaction,

he observed a very large bulge on the young man in the tan hoodie. He asked if the

four young men were minors and learned they were.

         {¶8}   As Officer Chitwood waited for other officers to arrive, T.B. placed his

hand on the handle of the community center’s door, which was apparently locked. T.B.

saw someone through the glass and beckoned for them. When the person inside

opened the door, T.B. stepped in slightly. Officer Chitwood told T.B. to “hold on one

second,” at which point T.B. complied and planted himself firmly outside the

threshold. T.B. proceeded to tell the individual inside to “get Pastor Tate.” T.B. then

leaned calmly against the open door, his body toward Officer Chitwood.

         {¶9}   By this point, backup had arrived, so Officer Chitwood began patting

down the young man with the tan hoodie and conspicuous bulge. He felt something


                                             4
                  OHIO FIRST DISTRICT COURT OF APPEALS


that he believed to be a firearm, and a firearm would later be recovered from the young

man by another officer. Officer Chitwood then left the man in the tan hoodie with

another officer and turned his attention to T.B. He placed T.B. in handcuffs and frisked

him. As he felt along the front of T.B.’s left pants leg, Officer Chitwood stated, “He’s

got it right here.” According to trial testimony, the officers recovered a handgun from

deep within T.B.’s clothes—beneath T.B.’s jeans and basketball shorts, “tucked in[to]

his underwear kind of on his left inner thigh.”

                                    B. T.B.’s Pleas

         {¶10} Officer Chitwood then filed two complaints against T.B. in the juvenile

court.

         {¶11} The first, numbered 24/2312-01 X, charged that T.B. had carried a

concealed weapon in violation of R.C. 2923.12, a fourth-degree felony for an adult. For

simplicity, we shall refer to this as the “concealed-carry case.”

         {¶12} The second complaint, numbered T/24/1379-01 X, charged that T.B.

had violated Ohio’s pedestrian right-of-way law, R.C. 4511.48, which would be a minor

misdemeanor for an adult. We shall refer to this as the “jaywalking case.”

         {¶13} T.B. initially entered a plea of “admit” to both charges, and a magistrate

issued February 24, 2025 decisions accepting those pleas and adjudicating him

delinquent in both cases. The next day, however, T.B. filed motions to withdraw both

pleas. After a hearing, the juvenile court agreed to “grant [T.B.’s] motion to withdraw

the plea,” and set the matter “for a motion to suppress.” The juvenile court

memorialized this decision in a March 5, 2025 journal entry in T.B.’s concealed-carry

case, but made no such entry in his jaywalking case.

         {¶14} Six days later, the juvenile court issued entries in both cases purporting

to adopt the magistrate’s decisions accepting T.B.’s pleas and adjudicating him


                                            5
                OHIO FIRST DISTRICT COURT OF APPEALS


delinquent. A later entry clarified that the juvenile court’s “case management software

[had] produced and filed” this March 11 entry, and that the entry “was not intended to

alter the Court’s Order permitting T.B. to withdraw his plea of admit or to disrupt the

Dispositional Order dated March 5, 2025.”

                       C. Suppression & Merits Hearing

       {¶15} With his plea withdrawn, T.B. filed a motion to suppress evidence

derived from the seizure and search in his concealed-carry case. On April 10, 2025, the

juvenile court held a hearing on the motion and the merits of the State’s complaint,

but called only the concealed-carry case at the start of the hearing, announcing that it

had “24-2312, count one, CCW, set for motion and trial today.”

       {¶16} During the motion-to-suppress hearing, T.B. called Officers Hoffbauer

and Chitwood and introduced Officer Chitwood’s BWC footage. The juvenile court

denied T.B.’s motion, reasoning that the officers had adequate grounds to briefly

detain T.B. to cite him for jaywalking, and that they could reasonably have suspected

he was armed.

       {¶17} The juvenile court then took further evidence on the merits of the State’s

complaint. The State called only one additional witness, Officer Dezarn, who testified

that he arrived at the scene of the arrest with Officer Hoffbauer shortly after the

uniformed officers had taken T.B.’s weapon. The other officers then gave Officer

Dezarn the gun they said had come from T.B. Officer Dezarn then placed it in a bag,

brought it to the station downtown, test-fired it, and determined that it was operable.

       {¶18} The State moved to admit the gun and corresponding firearm report

into evidence. T.B. objected to the admission of the gun, arguing that, because Officer

Dezarn had arrived after the gun was already in police custody, his testimony was

insufficient to authenticate it as T.B.’s. T.B. also objected to the State’s attempt to


                                           6
                 OHIO FIRST DISTRICT COURT OF APPEALS


introduce the report through Officer Dezarn, as it listed Officer Hoffbauer as its

author. The juvenile court overruled the former and sustained the latter—admitting

the gun, but excluding the report.

       {¶19} After hearing the evidence, the juvenile court found that T.B. had

committed the concealed-carry violation. It found him delinquent and entered a

dispositional order in the concealed-carry case on April 10, 2025.

       {¶20} In its oral ruling following the hearing, the juvenile court also found that

T.B. had committed the jaywalking offense, but it entered no further dispositional

orders in the jaywalking case.

                            D. Proceedings on Appeal

       {¶21} T.B. then filed a timely notice of appeal from the April 10 dispositional

order on the concealed-carry charge in the appeal numbered C-250279. Ten days later,

T.B. sought leave to file a delayed appeal from the juvenile court’s March 11 order

approving the magistrate’s order accepting his plea and adjudicating him delinquent

in his jaywalking case, in the appeal numbered C-250288. We allowed this second

appeal and consolidated it with the first.

       {¶22} We also issued an order directing the juvenile court to rule on the

pending motions to clarify its record in both the concealed-carry and jaywalking cases.

It did so and certified the supplemented records to us.

                                     II. ANALYSIS

       {¶23} In these consolidated appeals, T.B. raises four assignments of error,

challenging (1) the juvenile court’s denial of his motion to suppress evidence obtained

from the search and seizure, (2) the juvenile court’s denial of his motion to exclude the

firearm for lack of authentication, (3) the sufficiency and weight of the evidence

supporting the juvenile court’s finding that the weapon was operable, and (4) the


                                             7
                OHIO FIRST DISTRICT COURT OF APPEALS


juvenile court’s failure to allow him to withdraw his plea in the jaywalking case.

                          A. First Assignment of Error:
                               Motion to Suppress

       {¶24} Both the Fourth Amendment to the United States Constitution and

Article I, Section 14 of the Ohio Constitution prohibit unreasonable searches and

seizures of the person, and evidence derived from such unconstitutional searches or

seizures may be suppressed at trial. See State v. Rogers, 2022-Ohio-4535, ¶ 25 (1st

Dist.); State v. Brown, 2003-Ohio-3931, ¶ 25.

       {¶25} In his first assignment of error, T.B. argues that the seizure and

subsequent search of his person were constitutionally unreasonable, and that the

juvenile court should therefore have suppressed the evidence they yielded—especially

the gun found on his person. In addressing such a mixed question of law and fact, we

apply a mixed standard of review. First, we review the lower court’s factual findings

merely to ensure they were supported by competent, credible evidence. Then, we

consider de novo any questions of law or the application of the law to the facts. In re

J.T., 2023-Ohio-2695, ¶ 15 (1st Dist.); State v. Burnside, 2003-Ohio-5372, ¶ 8.

                                      1. Seizure

       {¶26} Neither party disputes that T.B. was seized when Officer Chitwood

approached the four young men. While the parties discuss several justifications for

this seizure, one was sufficient to make it reasonable: Officer Chitwood was lawfully

permitted to perform a limited seizure of T.B.’s person to cite him for jaywalking.

       {¶27} Ohio law prohibits pedestrians from crossing a street “at any place

except in a marked crosswalk” if they are “[b]etween adjacent intersections at which




                                           8
                    OHIO FIRST DISTRICT COURT OF APPEALS


highway traffic signals are in operation.”1 R.C. 4511.48(C). A separate provision makes

it unlawful for a pedestrian to “disobey the instructions of any traffic control device,”

R.C. 4511.12(A)—for example, by using a crosswalk in spite of a “steady upraised hand

signal indication,” R.C. 4511.14(C).2

        {¶28} Violating either provision is a minor misdemeanor. But, under

R.C. 2935.26(A), an officer “shall not arrest” a minor misdemeanant unless they fall

within one of several listed exceptions. Arresting a minor misdemeanant absent

statutory authority is an unreasonable seizure within the meaning of Article I, Section

14 of the Ohio Constitution. Brown, 2003-Ohio-3931, at ¶ 21-22, 25.3 But an officer

may perform a brief detention of such an individual for the limited purpose of

“issu[ing] the citation contemplated by R.C. 2935.26.” State v. Bradford, 2014-Ohio-

5527, ¶ 22 (10th Dist.), citing State v. Riggins, 2004-Ohio-4247, ¶ 10 (1st Dist.).

        {¶29} Officer Chitwood never witnessed T.B.’s jaywalking violation; he relied

upon the information communicated to him by Officer Hoffbauer. This was

permissible under the “fellow-officers rule,” which permits an officer to “initiate a stop

based on the reasonable suspicion of criminal activity through sources other than his

own observations, including radio broadcasts.” (Cleaned up.) In re M.P., 2014-Ohio-

2846, ¶ 10 (1st Dist.); see also United States v. Hensley, 469 U.S. 221, 232-233 (1985).

        {¶30} But, under the fellow-officers rule, the requesting officer must have




1 “‘Highway traffic signal,’ means a power-operated traffic control device by which traffic is warned

or directed to take some specific action,” including a stoplight. R.C. 4511.01(MMM).
2 The “special pedestrian control signals” described in R.C. 4511.14 clearly qualify as “traffic control

devices,” which R.C. 4511.01(QQ) defines to include any “device that uses colors, shapes, [or]
symbols . . . for the primary purpose of communicating a regulatory, warning, or guidance message
to road users on a street.”
3 In this respect the Ohio Constitution is more protective than the federal. See Brown, 2003-Ohio-

3931, at ¶ 21-22 (reading Ohio Const., art. I, § 14, not to permit officers to arrest based on minor
misdemeanors, even though such arrests do not violate U.S. Const., amend. IV, as interpreted in
Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)).


                                                   9
                 OHIO FIRST DISTRICT COURT OF APPEALS


reasonable suspicion, if the responding officer’s stop is to be lawful. In re M.P. at ¶ 10,

citing Hensley at 232. Thus, because Officer Chitwood lacked personal knowledge that

would have allowed him to stop T.B., we must consider whether Officer Hoffbauer had

grounds to conclude that T.B. had committed a jaywalking offense.

       {¶31} Officer Hoffbauer testified that she had seen the four youths “commit[]

a jaywalking violation.” The juvenile court appeared to credit this testimony in its oral

ruling. T.B. argues that Officer Hoffbauer’s testimony was not competent and credible,

because her narrative of the jaywalking was self-contradictory. Admittedly, Officer

Hoffbauer was not clear as to what sort of crossing violation T.B. had committed. First,

she said “[t]hey walked south across Rockdale Avenue near Burnet when there was a

crosswalk within ten/twelve steps readily available,” suggesting a R.C. 4511.48(C)

violation. But then, without prompting, Officer Hoffbauer proffered an alternative

rationale suggesting a R.C. 4511.12(A) violation: “Even if they did get to the crosswalk,

when they did walk south, it was also a no-walk sign in the crosswalk, but they were

still outside of the marked crosswalk.”

       {¶32} Officer Hoffbauer’s presentation of alternative infractions did not

necessarily prohibit the juvenile court from crediting her testimony that she had seen

the young men commit a traffic infraction. In the BWC video, T.B. and his compatriots

protested Officer Chitwood’s claims that they had not used the crosswalk, but did not

dispute his contention that they did so without a walk light. Given Officer Hoffbauer’s

reported proximity to the alleged jaywalking, the juvenile court could easily credit her

testimony that T.B. and his friends had disobeyed the instructions of a traffic control

device in violation of R.C. 4511.12(A).

       {¶33} The juvenile court had competent, credible evidence that Officer

Hoffbauer had witnessed T.B. commit a minor crossing misdemeanor. Based on that


                                            10
                 OHIO FIRST DISTRICT COURT OF APPEALS


fact, Officer Hoffbauer could lawfully stop T.B. to cite him under R.C. 2935.26(A) or

instruct Officer Chitwood to do the same. The juvenile court therefore did not err in

holding that Officer Chitwood’s initial seizure of T.B. was “reasonable” under the

Fourth Amendment and Ohio Constitution.

                                       2. Search

       {¶34} But just because Officer Chitwood had the authority to seize T.B. does

not mean he had authority to search T.B. Under R.C. 2935.26(A), his seizure of T.B.

could not become an arrest, so a “search incident to arrest” was out of the question.

See Riggins, 2004-Ohio-4247, at ¶ 10 (1st Dist.); Brown, 2003-Ohio-3931, at ¶ 16.

       {¶35} Nevertheless, if an officer lawfully seizes an individual, and if the officer

has a reasonable, articulable suspicion that the individual “may be armed and

presently dangerous,” then the officer may perform a “limited protective search” for

weapons on the detainee’s person—often called a “Terry frisk.” State v. Henson,

2022-Ohio-1571, ¶ 15 (1st Dist.); see generally Terry v. Ohio, 392 U.S. 1 (1968). This

reasonable, articulable suspicion is something less than probable cause, but more than

an “inchoate and unparticularized suspicion or hunch.” (Cleaned up.) Henson at ¶ 17;

accord State v. Hawkins, 2019-Ohio-4210, ¶ 20. Sometimes the very suspicion that

justifies a stop will also furnish suspicion for a pat-down—as when an officer has

reasonable suspicion to believe the defendant just fired a gun. See, e.g., State v. Hall,

2025-Ohio-1644, ¶ 26 (1st Dist.); State v. Hairston, 2019-Ohio-1622, ¶ 9.

       {¶36} Reasonable suspicion (or even probable cause) to believe an individual

was jaywalking, however, is not a basis for a Terry frisk. The officers here had to show

additional, particularized facts “that would cause a reasonable officer to believe that

his or her safety was in danger” while performing the jaywalking stop. Henson at ¶ 15.

       {¶37} The State offers two theories as to why Officer Chitwood was permitted


                                           11
                   OHIO FIRST DISTRICT COURT OF APPEALS


to frisk T.B.

        {¶38} First, the State argues that the presence of a firearm on T.B.’s associate

justified the search under the “automatic-companion rule.” Under this proposed rule,

“[a]ll companions of [an] arrestee within the immediate vicinity, capable of

accomplishing a harmful assault on the officer, are constitutionally subjected to the

cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.”

United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971).

        {¶39} We have never adopted such a bright-line rule. Nevertheless, the State

invites us to do so here and hold that the gun on T.B.’s companion in the tan hoodie

automatically permitted the officers to frisk T.B. We decline that invitation.

        {¶40} Despite the confident assertions in the State’s brief, there is reason to

question the soundness of the automatic-companion rule. The State relies largely on

two published decisions from our sister districts that appear to adopt the automatic-

companion rule—one with respect to searches incident to arrest, State v. Leet,

2020-Ohio-1404, ¶ 19 (2d Dist.), and one with respect to Terry frisks, In re D.S.,

2013-Ohio-5740, ¶ 14-15 (8th Dist.).4 But the Second and Eighth District’s opinions

fail to mention the significant contrary authority from other jurisdictions. For

example, courts of last resort in many of our sister states have rejected or declined to

adopt the automatic-companion rule.5 Several federal appellate decisions have


4 The State also relies on two unpublished Ohio decisions. One of these, State v. Barlow, 1988 Ohio

App. LEXIS 124, *4 (8th Dist. Jan. 21, 1988), also comes out of the Eighth District, and its holding
would later become precedential in In re D.S., 2013-Ohio-5740 (8th Dist.). The other, State v. Kidd,
1989 Ohio App. LEXIS 3751, *5 (10th Dist. Sept. 28, 1989), comes from the Tenth District and, as
far as we can tell, has not been cited in any published opinion in the 36 years since its issuance.
5 The courts of last resort in Nevada, Washington, Minnesota, and Massachusetts have all rejected

the automatic-companion rule. State v. Dubuc, 581 P.3d 437, 441 (Nev. 2025) (taking the
“opportunity to affirmatively reject” the rule); State v. Flores, 186 Wash.2d 506, 522, fn. 5 (2016)
(“reject[ing] the automatic companion rule” because it was “inconsistent with [that court’s]
precedent”); In re Welfare of C.T.B., 24 N.W.3d 651, 656 (Minn. 2025) (“we have rejected the
automatic-companion rule, adopted by some jurisdictions”); Commonwealth v. Ng, 420 Mass. 236,



                                                12
                    OHIO FIRST DISTRICT COURT OF APPEALS


likewise rejected it—including four decades of Sixth Circuit precedent.6 And while

decisions from the Fourth, the Ninth, and (arguably) the Seventh Circuits appear to

adopt the rule,7 all three did so prior to Ybarra v. Illinois, 444 U.S. 85 (1979), which

held that a defendant’s “mere propinquity to others independently suspected of

criminal activity” was insufficient to support probable cause to search, id. at 91, or even

reasonable suspicion to frisk, id. at 94.

        {¶41} But we need not determine the viability of the automatic-companion

rule in this case, because we agree with the State’s second argument: under the totality



237-238 (1995) (“We agree with the Appeals Court’s conclusion, which is supported by opinions
that reject an automatic right to search a companion.”). The Alaska Court of Appeals has done
likewise. Eldridge v. State, 848 P.2d 834, 837-838 (Alaska App. 1993). And the high courts of
Connecticut and Pennsylvania have avoided resolving the issue, but expressed skepticism of the
automatic-companion rule. Commonwealth v. Shiflet, 543 Pa. 164, 172, fn. 4 (1995); State v. Kelly,
313 Conn. 1, 21, fn. 16 (2014). The Arizona Court of Appeals and the Wyoming Supreme Court, by
contrast, have adopted the Berryhill rule. State v. Clevidence, 153 Ariz. 295, 298 (Ariz.App. 1987)
(“The right to a limited search for weapons extends to a suspected criminal’s companions at the
time of arrest.”); Perry v. State, 927 P.2d 1158, 1166 (Wyo. 1996) (“We adopt the automatic
companion rule justifying pat-down searches of companions of arrested persons . . . .”). And finally,
we note that the Kentucky Supreme Court avoided adopting a broad automatic-companion rule
that would apply to cases like this one. Instead, it has adopted a version of the rule that applies only
when “the driver of a vehicle has been lawfully arrested and the passengers of the vehicle have been
lawfully expelled in preparation for a lawful search.” Owens v. Commonwealth, 291 S.W.3d 704,
712 (Ky. 2009). And the Kentucky Court of Appeals has dutifully declined to extend Owens beyond
this limited context. Reynolds v. Commonwealth, 393 S.W.3d 607, 612 (Ky.App. 2012) (holding
that, because the case did not involve a “factual scenario where the driver of the vehicle had been
arrested and the vehicle is being lawfully searched,” Owens did not apply).
6 See United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985) (“We do not believe that the Terry

requirement of reasonable suspicion under the circumstances has been eroded to the point that an
individual may be frisked based upon nothing more than an unfortunate choice of associates.”
(Cleaned up.)); United States v. Wilson, 506 F.3d 488, 494 (6th Cir. 2007); United States v.
Underwood, 129 F.4th 912, 932 (6th Cir. 2025) (“There is not, for instance, an automatic
companion rule allowing police to search the companions of any armed individual.”); United States
v. Tharpe, 536 F.2d 1098, 1101 (5th Cir. 1976), overruled on other grounds by United States v.
Causey, 834 F.2d 1179 (5th Cir. 1987) (declining to “go so far as the Ninth Circuit’s rule of general
justification conferring categorical reasonableness upon searches of all companions of the arrestee
as being incident to the arrest of the other”); United States v. Flett, 806 F.2d 823, 827 (8th Cir.
1986) (“We decline to adopt the ‘automatic companion’ rule.”). The First and Tenth Circuits have
never addressed the rule, but district courts in both jurisdictions have suggested that they do not
believe such a rule would be consistent with circuit and Supreme Court precedent. See United
States v. Matias-Maestres, 738 F.Supp.2d 281, 298 (D.P.R. 2010); United States v. Maddox,
D.N.M. No. 02-1592, 2003 U.S. Dist. LEXIS 30165, *8-9 (June 4, 2003).
7 Berryhill, 445 F.2d at 1193 (9th Cir.); United States v. Pom, 484 F.2d 919, 922 (4th Cir. 1973);

United States v. Simmons, 567 F.2d 314, 319 (7th Cir. 1977) (noting that the Berryhill “rationale
may be sufficient where a search is limited to a ‘pat down’”).


                                                  13
                  OHIO FIRST DISTRICT COURT OF APPEALS


of the circumstances found by the juvenile court, the officers had reasonable suspicion

that T.B. in particular was unlawfully carrying a dangerous weapon.

         {¶42} Specifically, Officer Hoffbauer testified that she had “observed [T.B.]

with his phone in another pocket,” separate from “a bulge in his waistband area, the

front waistband area, where it is common that individuals carry firearms.” She further

testified that the bulge in the “waistband areas” of both T.B. and his friend in the tan

hoodie were “very consistent with carrying a firearm,” and that the two young men

touched or grabbed that area of their pants, as if to “make sure [the gun was] there,

make sure it’s not falling.”

         {¶43} Officer Chitwood then testified that Officer Hoffbauer relayed this

information to him over the radio, specifically identifying the young man in the tan

hoodie and T.B., who was in a dark-brown hoodie, as “possibly having firearms on

them.” As Officer Chitwood approached T.B. and his companions, he saw a prominent

and unusual bulge near the waistband of the young man in the tan hoodie. Based on

this bulge and Officer Hoffbauer’s communication, he frisked this individual and felt

a gun.

         {¶44} But Officer Chitwood never testified that he personally witnessed a

bulge in T.B.’s pants, and none is apparent from his BWC footage.

         {¶45} The State contends, however, that T.B. exhibited “furtive movements”

on the BWC video. Specifically, it asserts that T.B.’s effort to open the door to the

community center and call for “Pastor Tate” were movements from which Officer

Chitwood might conclude that T.B. was armed and dangerous.

         {¶46} We reject the notion that such conduct could have aroused a reasonable

suspicion that T.B. was armed and presently dangerous. Officer Chitwood testified

that he knew the building at issue was a community center, church, daycare, or similar


                                          14
                  OHIO FIRST DISTRICT COURT OF APPEALS


facility. He witnessed T.B., a juvenile, open the door to that facility and ask, by name,

for a pastor to come and supervise his encounter with the police. As even the State

conceded at oral argument, the mere fact that a juvenile seeks the presence of a

responsible adult during a police encounter is not itself unreasonable or suspicious.

And nothing about the circumstances here made it particularly suspicious. Surely the

officers do not believe that asking for the church’s pastor suggests danger. And nothing

about T.B.’s surrounding efforts to open the door could reasonably be construed as

“furtive”—not his calm demeanor before or while opening the door, nor his prompt

compliance once Officer Chitwood asked for him to remain outside.

       {¶47} But even disregarding T.B.’s efforts to call an adult, we hold that the

bulge that Officer Hoffbauer observed on T.B.’s person, coupled with the unlawful gun

Officer Chitwood felt while frisking his companion in the tan hoodie, were sufficient

to justify the officer in frisking T.B.

       {¶48} T.B. argues, however, that we should not consider the officers’

observations about the bulge on his companion in the tan hoodie, because the bulge

they described was not where the companion’s gun was ultimately found. But even if

we assumed, as T.B. contends, that the video contradicted the officers’ testimony about

the companion’s bulge, it would make no difference here. By the time Officer Chitwood

reached T.B., he had frisked the companion and felt what he believed to be a gun. Thus,

Officer Chitwood clearly had reason to believe, prior to frisking T.B., that T.B.’s

companion was armed.

       {¶49} T.B. also argues that the juvenile court erred in crediting Officer

Hoffbauer’s testimony that she had observed a conspicuous bulge in T.B.’s waistband

area. Specifically, T.B. notes that no such bulge is visible in the BWC footage, and that

T.B.’s long, baggy sweatshirt makes it unlikely Officer Hoffbauer could have seen an


                                           15
                OHIO FIRST DISTRICT COURT OF APPEALS


outline of a handgun. And if we should discredit Officer Hoffbauer’s “bulge” testimony

and remove it from the totality of the circumstances, then Officer Chitwood would

have lacked an individualized basis for his reasonable suspicion that T.B. was armed.

       {¶50} We agree that the video does not explicitly support Officer Hoffbauer’s

bulge testimony, but we do not think it necessarily contradicts that testimony either.

The period of time when Officer Hoffbauer was observing the young men was not

captured on camera, and neither party asked Officer Hoffbauer to clarify how she saw

the gun through the baggy sweatshirt. Perhaps T.B. lifted his sweatshirt or stretched

his arms during that time. In the absence of testimony on this point, the question boils

down to a pure credibility determination: Was Officer Hoffbauer lying or mistaken

when she said she saw a bulge in T.B.’s waistband? The juvenile court was in the best

position to make that call, and it found her testimony credible. Circumstances may

have furnished reason for doubt, but none flatly disproved Officer Hoffbauer’s

description of what she saw.

       {¶51} Accordingly, we hold that the evidence in the record did not require the

juvenile court to disbelieve Officer Hoffbauer’s testimony that she saw a bulge

consistent with a gun near T.B.’s waistband. We further hold that Officer Hoffbauer’s

observation of the gun-like bulge in T.B.’s and his companion’s pants, coupled with

T.B.’s minority and the subsequent discovery of the gun on T.B.’s companion, allowed

Officer Chitwood to reasonably suspect that T.B. was armed with an unlawful,

concealed weapon. Officer Chitwood’s frisk of T.B. was therefore reasonable under the

Fourth Amendment and the Ohio Constitution, and the juvenile court was correct to

deny T.B.’s motion to suppress. T.B.’s first assignment of error is overruled.




                                          16
                 OHIO FIRST DISTRICT COURT OF APPEALS


                        B. Second Assignment of Error:
                           Authentication of the Gun

       {¶52} In his second assignment of error, T.B. argues that the State failed to

properly authenticate the firearm allegedly found on his person under Evid.R. 901. We

review the juvenile court’s decision to admit the gun for an abuse of discretion. See

State v. Searles, 2019-Ohio-3109, ¶ 7 (1st Dist.).

       {¶53} The proponent of evidence bears the burden of authenticating it by

producing “evidence sufficient to support a finding that the matter in question is what

its proponent claims.” Evid.R. 901(A). This may include, when relevant, proving up a

chain of custody. See State v. Richey, 1992-Ohio-44, ¶ 38. But the burden is light.

“Authentication is ‘a very low threshold, which is less demanding than the

preponderance of the evidence.’” State v. Patterson, 2018-Ohio-3348, ¶ 13 (1st Dist.),

quoting State v. White, 2004-Ohio-6005, ¶ 61 (4th Dist.). That threshold can be

surmounted by circumstantial evidence, id., and does not require the State “to prove

a perfect, unbroken chain of custody.” (Cleaned up.) State v. Gross, 2002-Ohio-5524,

¶ 57. If the proven links in the chain provide prima facie evidence that “the matter in

question is what its proponent claims,” Evid.R. 901(A), then any weaknesses or

“breaks in the chain of custody go to the weight, rather than the admissibility.” State

v. Crossty, 2017-Ohio-8382, ¶ 30 (1st Dist.).

       {¶54} The heart of T.B.’s authentication argument is that Officer Dezarn

offered the only testimony authenticating the gun introduced into evidence as the one

taken from T.B.’s person, even though he had no personal knowledge to that effect.

       {¶55} If we had only Officer Dezarn’s testimony to rely upon, we would be

compelled to agree with T.B. Officer Dezarn’s relevant testimony was as follows:

              PROSECUTOR: Officer Dezarn, for in-court identification



                                           17
                   OHIO FIRST DISTRICT COURT OF APPEALS


       purposes, you were on scene with this firearm; is that correct?

              OFFICER DEZARN: Yes.

              PROSECUTOR: And how did you become—how did you come

       into possession of this firearm?

              OFFICER DEZARN: I retrieved it from another officer who was

       on scene.

              PROSECUTOR: Okay. And was this the firearm that the officer

       had taken off of [T.B.]?

              OFFICER DEZARN: Yes.

              PROSECUTOR: And was that your understanding when you

       were receiving this firearm?

              OFFICER DEZARN: That’s correct.

The problem is that Officer Dezarn elsewhere said that he “showed up on scene after

[T.B.] was in handcuffs and the firearm was recovered.” We know from the video that

a first gun was recovered from the individual in the tan hoodie, before a second gun

was found on T.B. Thus, if Officer Dezarn showed up after T.B.’s gun was recovered,

then he could not have personal knowledge as to whether the gun he was given was

the one taken from T.B.—he could only have been told it was.

       {¶56} We have a word for out-of-court statements repeated or relied upon to

prove what they assert: hearsay. And we generally presume that a juvenile court,

sitting as factfinder, does not rely upon improper hearsay evidence in reaching its

factual conclusions. See State v. Rouzier, 2021-Ohio-1466, ¶ 19 (1st Dist.), citing State

v. White, 15 Ohio St.2d 146, 151 (1968). Thus, we presume that the juvenile court in

this case disregarded the embedded hearsay statement in Officer Dezarn’s testimony,

which linked the gun in evidence to the one taken out of T.B.’s pants. Without that


                                           18
                 OHIO FIRST DISTRICT COURT OF APPEALS


link, however, Officer Dezarn’s testimony proved only that he received and tagged one

of two guns recovered at the scene of T.B.’s arrest.

       {¶57}   Fortunately for the State, Officer Chitwood’s BWC footage, unlike

Officer Dezarn’s testimony, does establish a rough chain of custody. In it, we see an

officer in blue gloves remove a gun from T.B.’s companion’s pants. We then see

another officer with a black glove on his right hand leaning toward T.B. and lifting his

shirt. T.B.’s body blocks our view of what happens next, but when the camera shows

the black-gloved officer again, he is holding a handgun in his gloved hand. Next to him

another officer puts on green gloves. The black-, green-, and blue-gloved officers then

interact. Much of this interaction is obstructed by T.B.’s body, but we can see the blue-

gloved officer holding the same handgun (presumably the one taken from the young

man in the tan hoodie) for most of this interaction. A few seconds later, when T.B.

moves once more, the black-gloved officer’s hands are empty, and the green-gloved

officer has a gun in his hand.

       {¶58} About a minute later, the same, green-gloved officer can be seen in the

background passing a handgun to Officer Dezarn, who is wearing plain clothes and a

gun vest. Another minute later, the camera captures Officer Dezarn, holding a gun in

a plastic bag and an evidence envelope in his hand, as he enters the police vehicle

holding T.B.

       {¶59} We hold that this video provided sufficient circumstantial evidence that

the gun Officer Dezarn bagged and tagged was the gun taken from T.B.’s person. And

we hold that the remainder of Officer Dezarn’s testimony was sufficient to link the

weapon he bagged to the one he identified in court. T.B.’s second assignment of error

is thus overruled.




                                           19
                 OHIO FIRST DISTRICT COURT OF APPEALS


                          C. Third Assignment of Error:
                             Evidence of Operability

       {¶60} In his third assignment of error, T.B. challenges the weight and

sufficiency of the juvenile court’s finding that the gun taken from his person was

operable—a necessary element for his concealed-carry conviction. To determine

whether the State’s evidence was sufficient, we ask whether, if believed and viewed in

the light most favorable to the State, it could have satisfied the elements the State had

to prove at trial. State v. Jones, 2021-Ohio-3311, ¶ 16; State v. Chambers, 2025-Ohio-

4737, ¶ 18 (1st Dist.). And to assess whether the court’s findings were against the

manifest weight of the evidence, we review the entire record to determine whether the

court below lost its way in resolving conflicts in the evidence and created a manifest

miscarriage of justice. State v. Thompkins, 1997-Ohio-52, ¶ 25; State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist. 1983).

       {¶61} Officer Dezarn testified that he test-fired the gun recovered from T.B.

and found that it was operable. T.B. argues that this was not enough.

       {¶62} Part    of   T.B.’s   argument     simply   rehashes   his   argument     on

authentication—if we cannot know whether the gun officer Dezarn recovered and test-

fired was T.B.’s, then Officer Dezarn’s test-firing tells us very little. But we hold that

the evidence we described above as supporting authentication was also legally

sufficient to sustain a finding that the gun Officer Dezarn bagged and tagged came

from T.B. And since the record includes no affirmative evidence to the contrary, the

same finding was not against the manifest weight of the evidence.

       {¶63} T.B. also argues that the evidence cast doubt on Officer Dezarn’s

testimony that he test-fired the weapon identified in court. As support, T.B. points to

the firearm-testing report that documented the test-firing, which he claims listed



                                           20
                   OHIO FIRST DISTRICT COURT OF APPEALS


Officer Hoffbauer as its author, and not Officer Dezarn. But T.B. successfully objected

to the admission of the firearm-testing report at trial, so that report is not in evidence,

and there is no sworn testimony about its authorship. All we have is Officer Dezarn’s

testimony that he successfully fired the gun admitted as State’s Exhibit 1. That was

sufficient to support a finding that the weapon T.B. had possessed was operable, and

T.B. points to no significant record evidence that weighed against such a finding.

       {¶64} T.B.’s third assignment of error is therefore overruled.

                         D. Fourth Assignment of Error:
                    Motion to Withdraw Jaywalking-Case Plea

       {¶65}      In his fourth and final assignment of error, T.B. argues that the juvenile

court erred by failing to rule on his motion to withdraw his plea of “admit” in the

jaywalking case.

       {¶66} T.B. moved to withdraw his pleas to both charges on February 25. On

March 5, the juvenile court granted his motion in the concealed-carry case, but issued

no comparable entry in the jaywalking case. Then, on March 11, the juvenile court

issued orders in both cases adopting and approving the magistrate’s February 24

decisions, which had accepted T.B.’s pleas. The juvenile court later entered a

clarification entry explaining that its March 11 entry “was not intended to alter the

Court’s Order permitting T.B. to withdraw his plea.” The juvenile court heard the

concealed-carry case on its merits on April 10 and entered a final dispositional order

later that day.

       {¶67} Unlike the concealed-carry case, however, the jaywalking case was not

called for hearing on April 10, and the juvenile court issued no further dispositional

order in the jaywalking case on that date. The juvenile court’s March 11 order, which

adopted the magistrate’s decision to accept T.B.’s plea to the jaywalking charge, is thus



                                              21
                  OHIO FIRST DISTRICT COURT OF APPEALS


the only final order of disposition in the jaywalking-case record.

        {¶68} Prior to its March 11 dispositional order, the juvenile court had not

resolved T.B.’s motion to withdraw his plea of admit in the jaywalking case.

        {¶69} Generally, “when a trial court fails to rule upon a pretrial motion, it may

be presumed that the court overruled it.” State ex rel. Cassels v. Dayton City School

Dist. Bd. of Edn., 1994-Ohio-92, ¶ 23, citing Newman v. Al Castrucci Ford Sales, 54

Ohio App.3d 166, 169 (1st Dist. 1988). The State urges us to draw the opposite

inference here, however. It insists that, “because the trial court proceeded with the

motion to suppress and trial,” we must presume the court granted T.B.’s motion to

withdraw sub silentio. We might agree if the jaywalking case had proceeded to trial

and judgment, as the juvenile court could not have both accepted T.B.’s plea of admit

and tried the charge on its merits. But, as already explained, T.B.’s jaywalking case

was resolved in the March 11 dispositional order—a month before the April 10 trial

even began—based on the very plea that T.B. had asked to withdraw.

        {¶70} We therefore hold that, by entering the March 11 dispositional order in

T.B.’s jaywalking case, the juvenile court implicitly denied T.B.’s February 25 motion

to withdraw his jaywalking-case plea.

        {¶71} We next ask whether this implicit denial was error. We review such a

ruling, like similar rulings under Crim.R. 32.1, for an abuse of discretion. See, e.g., In

re D.R.H., 2023-Ohio-1694, ¶ 52 (7th Dist.), citing State v. Xie, 62 Ohio St.3d 521

(1992); In re T.W., 2006-Ohio-3897, ¶ 5 (12th Dist.). Thus, we may reverse the juvenile

court’s judgment only if its decision or reasoning process was unreasonable, arbitrary,

or unconscionable. In re J.S., 2024-Ohio-4887, ¶ 14 (1st Dist.). In this case, the

juvenile court’s denial fit that bill.

        {¶72} Juveniles are presumptively permitted to withdraw their pleas prior to


                                           22
                 OHIO FIRST DISTRICT COURT OF APPEALS


a final order of disposition. Because no juvenile rule governs how a juvenile may

withdraw their plea, courts look to the criminal rules for analogy and guidance. See In

re D.R.H. at ¶ 50. Under Crim.R. 32.1, courts have long held that “a defendant’s

presentence motion to withdraw his guilty plea should be freely and liberally

granted.” (Emphasis in original.) State v. Barnes, 2022-Ohio-4486, ¶ 21; accord Xie

at 527. So, “when a defendant pleads guilty to one or more crimes and later wants to

withdraw that plea before he has been sentenced, the trial court should permit him to

withdraw his plea.” Barnes at ¶ 21. The Ohio Supreme Court has described this as a

“presumption” in favor of granting a presentence motion to withdraw a plea, which

may be rebutted under certain circumstances. Id. at ¶ 21-22.

       {¶73} On February 25, when T.B. filed his motion, the juvenile court had not

yet entered an order of disposition for T.B. (the juvenile equivalent of imposing a

sentence). So T.B. retained his presumptive, though qualified, right to withdraw his

pleas. Although T.B. sought to withdraw both pleas, the juvenile court only granted his

motion in the concealed-carry case, and implicitly denied his motion in the jaywalking

case. The court offered no reason why T.B. should not be allowed to withdraw his plea

in the jaywalking case, let alone why that case should be treated any differently than

the concealed-carry case.

       {¶74} Given (1) T.B.’s presumptive right to withdraw his plea prior to

disposition, (2) the trial court’s lack of explanation for denying his motion to do so in

the jaywalking case, and (3) the juvenile court’s disparate treatment of the motions

filed in T.B.’s two cases, we hold that the juvenile court’s implicit denial of T.B.’s

motion to withdraw his jaywalking-case plea was unreasoned, arbitrary, and an abuse

of discretion. Compare State v. Wright, 2004-Ohio-7023, ¶ 11 and 14 (8th Dist.) (trial

court abused its discretion when it “did not explicitly rule upon,” hold a hearing on, or


                                           23
                OHIO FIRST DISTRICT COURT OF APPEALS


“determine whether there was a reasonable and legitimate basis for” defendant’s

motion to withdraw his plea).

       {¶75} T.B.’s fourth assignment of error is sustained.

                                  III. CONCLUSION

       {¶76} Having overruled T.B.’s first three assignments of error, we affirm the

juvenile court’s April 10, 2025 dispositional order in the concealed-carry case,

appealed in the case numbered C-250279.

       {¶77} However, because we sustain T.B.’s fourth assignment of error, we

reverse the juvenile court’s March 11, 2025 dispositional order in the jaywalking case,

appealed in the case numbered C-250288, and we remand the cause to the trial court

with instructions to grant T.B.’s February 25, 2025 motion to withdraw his plea.

                                                               Judgment accordingly.

NESTOR and MOORE, JJ., concur.




                                          24