State v. Waters ( 2022 )

[Cite as State v. Waters, 2022-Ohio-2667.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110821
v. :
JAMES WATERS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 4, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652560-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, James Waters, appeals the trial court’s decision
denying his motion to suppress and the court’s imposition of a sentence pursuant to
the Reagan Tokes Law. For the reasons that follow, we affirm.
I. Procedural History and Background
In August 2020, Waters was named in a four-count indictment
charging him with one count of aggravated vehicular homicide, a first-degree felony
violation of R.C. 2903.06(A)(1)(a) (Count 1); aggravated vehicular homicide, a
second-degree felony violation of R.C. 2903.06(A)(2)(a) (Count 2); driving while
under the influence of alcohol, a first-degree misdemeanor violation of R.C.
4511.19(A)(1)(a) (Count 3); and driving while under the influence of alcohol, a first-
degree misdemeanor violation of R.C. 4511.19(A)(1)(d) (Count 4). Counts 1 and 2
contained furthermore specifications that at the time of the offense, he did not have
a valid driver’s license.
The charges stemmed from a motor vehicle accident where Waters
was alleged to have sped through a red light at the intersection of West 130th Street
and Lorain Avenue. A truck turning left onto Lorain Avenue struck the backside of
Waters’s vehicle causing it to spin out of control and collide with a pole on the side
of the road. Waters’s aunt, Carmen Stewart, was seated in the backseat of his
vehicle, sustained life-threatening injuries, and died as a result of the accident.
Following field sobriety tests, Waters was arrested for driving under the influence of
alcohol. It was later discovered that Waters did not have a valid driver’s license, and
a subsequent breath test yielded a blood alcohol content (“BAC”) of .172.
Waters filed a motion to suppress, contending that (1) there was no
reasonable suspicion or probable cause to stop and detain him; (2) the officer
administered the field sobriety tests in an inappropriate manner and location; (3)
the police obtained statements from him in violation of Miranda; and (4) the
procedures used by police in collecting and testing his breath sample did not
conform to the Ohio Administrative Code.
II. Suppression Hearing
Cleveland Patrol Officer Arthur Fessler testified that he responded to
an accident at West 130th Street and Lorain Avenue. His interactions with Waters
and witnesses were captured on his body camera, and portions of those interactions
were played for the court.
Officer Fessler identified Waters in the video as the man who was on
the ground screaming. His body-cam video showed Waters then pounding on the
ambulance door and attempting to open it. Officer Fessler can be seen trying to calm
Waters down, but Waters cursed at him and pulled away. The body-cam video also
showed Waters getting into an altercation with one of the eyewitnesses, accusing the
witness of causing the accident. Waters can be heard stating that as he drove
through the yellow light, his vehicle was struck, causing it to spin and crash into a
pole.
Officer Fessler testified that he decided to place Waters into the back
seat of the police vehicle because of the altercation with the witness. He stated that
he also held Waters because after Waters admitted that he was the driver of the
vehicle, the strong odor of alcohol coming from him indicated that Waters may have
been driving while under the influence. Officer Fessler testified that he did not
Mirandize Waters, but did not ask him any additional questions. According to
Officer Fessler, Waters started yelling statements from the police vehicle.
As part of his on-site investigation, Officer Fessler obtained
statements from both independent eyewitnesses, who stated that their vehicle was
stopped behind the pickup truck at a red light on Lorain Avenue. They stated that
when the light turned green, the truck in front of them started turning left onto West
130th Street, and that a silver Toyota Camry “came out of nowhere” speeding
through the light. According to the witnesses, the driver of the truck applied the
brake, but struck the back end of the Toyota, causing it to spin out of control and
crash into a pole. The female witness testified that she performed CPR on a female
passenger of the Toyota. Video of the accident captured from a nearby surveillance
camera was played for the court corroborating the statements.
Detective Charles Moten of the Cleveland Police Department
Accident Investigation Unit (“AIU”) testified that AIU covers all major crashes and
occasionally conducts field sobriety tests. He stated that he is a 21-year veteran of
the police department, and worked in AIU for the past 12 years. He stated that he
holds two certifications to conduct field sobriety tests and is an instructor on
standardized field sobriety tests. According to Detective Moten, the National
Highway of Traffic Safety Administration (“NHTSA”) manual is 648 pages long and
only substantial compliance with those guidelines was necessary.
Detective Moten stated that he has conducted hundreds of field
sobriety tests and made arrests in investigations involving vehicular accidents. He
provided a thorough explanation regarding the tests he conducts, including
Horizontal Gaze Nystagmus (“HGN”), walk and turn, and single leg stand. Detective
Moten explained that if there are clues of impairment the person is arrested,
Mirandized, and then taken to the county jail where a breathalyzer test may be
conducted.
Detective Moten testified about his encounter with Waters, which was
captured and recorded by his body camera. He stated Waters was seated in the back
of the police cruiser, and as he was opening the cruiser door, he asked Waters about
the accident and whether he had been drinking. Waters responded that someone
hit him and that he had four beers about “two hours ago.” Detective Moten testified
that he could smell alcohol from Waters’s person. He stated that he asked Waters
to perform the HGN, walk and turn, and one leg stand tests.
Regarding the HGN test, Detective Moten explained that he observed
that Waters exhibited five out of the six indicators of impairment during the HGN
— a lack of smooth pursuit in the left and right eyes; distinct and sustained
nystagmus at maximum deviation in the left and right eyes; and the onset of
nystagmus prior to 45 degrees in the right eye. Regarding the walk and turn test,
Detective Moten testified that during the instruction phase of the test, Waters failed
to maintain his standing position and attempted to start the test before being
instructed to start. Additionally, Detective Moten stated that he observed Waters
failing to touch heel to toe, and making an improper turn for a total of four clues of
impairment during this test. Detective Moten testified that during the one-leg stand
test, he observed that Waters exhibited one clue of impairment by putting his foot
down before being instructed. Detective Moten testified that based on his training
and experience with alcohol-impaired drivers, he believed Waters operated his
vehicle while under the influence of an alcoholic beverage due to his observations
and Waters’s performance of the standardized field sobriety tests. Accordingly, he
placed Waters under arrest.
On cross-examination, defense counsel questioned Detective Moten
about how flashing or strobing lights may affect the eyes or results of the HGN test.
He testified that in order for flashing lights to affect the eyes for purposes of the test,
the lights have to be in close proximity and come straight into the eyes. Detective
Moten testified, and the video showed, that the flashing lights from the zone cars
were coming from behind Waters. Accordingly, he opined that the lights would not
have affected Waters’s test.
Defense counsel also questioned Detective Moten on the
comprehensive nature of his field report, specifically whether his report contained
any information about the pretests he conducted prior to administering the HGN
test. Detective Moten stated that he conducted pretests, including a medical
impairment examination and whether he checked for contact lenses, but did not
include this information in his report. He further admitted that he did not ask
Waters about his eye health or general health conditions prior to administering the
HGN, which is a requirement under the NHTSA guidelines.
Officer Thomas Smith testified that he administered Waters’s
breathalyzer test. His interactions with other officers and Waters were captured on
his body camera, and the video was played for the court.1 Officer Smith stated that
he is certified to use both the Data Master and Intoxilyzer 8000. He testified that
he noticed an odor of alcohol coming from Waters. Officer Smith stated that he and
his partner transported Waters to the county jail where the breath test was
performed using the Intoxilyzer 8000. The test yielded a BAC level of .172. Officer
Smith testified that during the testing process, Waters told him that he had two 24-
ounce cans of beer earlier that evening. The body-cam video corroborated this
testimony.
The trial court admitted the following exhibits into evidence: body-
cam video from Fessler, Moten, Smith, and Smith’s partner; surveillance video of
the accident; a copy of Officer Smith’s Intoxilyzer 8000 certification card; the
printed copy of Waters’s BAC results; Moten’s field report; and a copy of Session 8,
Concepts and Principles of the Standardized Field Sobriety Tests published by the
NHTSA, revised October 2015.
On May 10, 2021, the trial court announced its decision in open court,
denying the motion to suppress. The court focused its decision on Waters’s
argument that the HGN results were affected by the zone cars’ flashing and strobing
lights. The trial court explained:
1 Video from Officer Smith’s partner’s body camera was also played during Officer
Smith’s testimony.
[T]he Court did have the opportunity to review the evidence, and one
of the things in particular that it looked at was Defense Exhibit B, the
Section 8, [we are] talking about the optokinetic nystagmus issues.
The Court, having read this and looked at all the evidence, is going to
find as follows: That the defense suppression motion is not well-taken
and it will be denied. We will proceed to trial. The issue of the
optokinetics, if administered properly, which basically mandates the
driver to look at the object, basically to the exclusion of everything else,
will not be affected by, the way I read it, by flashing lights.
So it appears that nystagmus can be induced through strobe lights, but
only when [they are] being observed directly; not when the attention
and the focus is on the point of fixation that is being used in this case.
So with that having been said, the Court is going to deny the motion.
(Tr. 136-137.)
In July 2021, Waters pleaded no contest to the indictment. Following
a sentencing hearing, the trial court ordered Waters to serve an aggregate minimum
prison term of six years; but up to the maximum term under the Reagan Tokes Law
of nine years.
Waters now appeals, raising four assignments of error. The first two
assignments of error relate to the Reagan Tokes Law; and assignments of error three
and four pertain to Waters’s motion to suppress. This court will address these
assignments of error out of order and together where appropriate.
III. Motion to Suppress
In his third assignment of error, Waters contends that the trial court
erred in denying his motion to suppress. He contends in his fourth assignment of
error that his trial counsel rendered ineffective assistance of counsel by failing to
request the trial court to issue findings of fact and conclusions of law.
“Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. With regard to factual determinations, “[a]n appellate court must accept the
trial court’s findings of fact if they are supported by competent, credible evidence.”
State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 16, citing
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). “But the appellate
court must decide the legal questions independently, without deference to the trial
court’s decision.” Id., citing Burnside at id.Waters moved to suppress all evidence against him, contending that
(1) the arresting officer did not have reasonable suspicion to believe that he was
driving under the influence; (2) the field sobriety tests were not conducted in
substantial compliance with the NHTSA standards; (3) his Miranda rights were
violated; and (4) the test results from the Intoxlyzer 8000 were unreliable.2
A. Reasonable Suspicion
In his suppression motion, Waters generally asserted that officers
lacked reasonable articulable suspicion to believe that he was driving under the
influence. On appeal, he specifically contends that the mere odor of an alcoholic
beverage was an insufficient reason to detain him to perform field sobriety tests
because his “trauma-driven behaviors” should be taken out of consideration.
2 Although Waters raised four arguments in his motion to suppress, he has not
raised any argument on appeal regarding the procedures used by police in collecting and
testing his breath sample. Accordingly, we will not address that issue on appeal.
Reasonable suspicion requires that the officer “point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). An officer may not request a motorist to perform field sobriety
tests unless the request is separately justified by a reasonable suspicion based upon
articulable facts that the motorist is intoxicated. Cleveland v. Kalish, 8th Dist.
Cuyahoga No. 105557, 2018-Ohio-682, ¶ 19, citing Parma Hts. v. Dedejczyk, 8th
Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans, 127 Ohio
App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). “‘A court analyzes the
reasonableness of the request based on the totality of the circumstances, viewed
through the eyes of a reasonable and prudent police officer on the scene who must
react to events as they unfold.’” Id., quoting Dedejczyk at id., citing State v. Dye,
11th Dist. Geauga No. 2001-P-0140, 2002-Ohio-7158.
A court may consider various factors when determining whether an
officer had reasonable suspicion to administer field sobriety tests:
(1) the time of day of the stop (Friday or Saturday night as opposed to,
e.g., Tuesday morning); (2) the location of the stop (whether near
establishments selling alcohol); (3) any indicia of erratic driving before
the stop that may indicate a lack of coordination (speeding, weaving,
unusual braking, etc.); (4) whether there is a cognizable report that the
driver may be intoxicated; (5) the condition of the suspect’s eyes
(bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability
to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of
alcohol coming from the interior of the car, or, more significantly, on
the suspect’s person or breath; (8) the intensity of that odor, as
described by the officer (“very strong,[”] “strong,” “moderate,” “slight,”
etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10)
any actions by the suspect after the stop that might indicate a lack of
coordination (dropping keys, falling over, fumbling for a wallet, etc.);
and (11) the suspect’s admission of alcohol consumption, the number
of drinks had, and the amount of time in which they were consumed, if
given. All of these factors, together with the officer’s previous
experience in dealing with drunken drivers, may be taken into account
by a reviewing court in determining whether the officer acted
reasonably.
Dedejczyk at ¶ 30, quoting Evans at 63, fn. 2.
This court has explained that these factors are merely assistive guides
in the determination of reasonable suspicion because no one factor is dispositive
and the list does not represent an exhaustive account of factors that can or should
be considered. Dedejczyk at ¶ 31, citing State v. Boczar, 11th Dist. Ashtabula No.
2004-A-0063, 2005-Ohio-6910, ¶ 14. Generally, courts approve a request to submit
to field sobriety testing only where the officer based his or her decision on a number
of these factors. Evans at 63.
In this case, Officer Fessler testified that when he arrived on the scene
of a fatal accident that occurred during the early morning hours, he witnessed
Waters yelling and screaming, while trying to open the ambulance door where his
aunt was being treated. He stated that during this interaction, he observed that
Waters’s eyes were bloodshot, he could smell a strong odor of alcohol coming from
Waters, and when officers attempted to guide him away from the ambulance, Waters
cursed at them and shrugged them away. Officer Fessler stated that during his
investigation, he learned from the eyewitnesses, who assisted the occupants of
Waters’s vehicle, that Waters smelled of alcohol.
Additionally, Officer Fessler testified about Waters confronting and
threatening one of the eyewitnesses claiming that the witness caused the accident.
During this altercation, Waters admitted to operating the vehicle — a fact that was
unknown to Officer Fessler at the time — while speeding through a yellow light.
According to Officer Fessler, Waters was slurring his words, pacing, acting
belligerently, and threatening the eyewitness. Based on his observations and belief
that Waters could be intoxicated, and for the safety of all persons, Officer Fessler
decided to detain Waters in the back of his zone car for further investigation. He
then contacted Detective Moten to initiate field sobriety tests.
Detective Moten testified that when he arrived on scene, he conferred
with Officer Fessler about his investigation and impressions. He stated that he then
approached the zone car where Waters was seated and opened the door. According
to Detective Moten, he could smell an odor of alcohol coming from Waters. He
stated that Waters admitted to consuming four beers around midnight, and agreed
to perform the field sobriety tests.
Based on the foregoing, we conclude that Officer Fessler and
Detective Moten’s request to perform field sobriety tests was reasonable based on
the totality of the circumstances.
B. Field Sobriety Tests
Waters contends that the trial court should have suppressed the
results of the field sobriety tests because Detective Moten did not substantially
comply with NHTSA standards and guidelines. Although Waters generally raised in
the trial court that Detective Moten did not substantially comply with the guidelines
in his administration of all the field sobriety tests, he focuses his appeal on Detective
Moten’s testimony that he did not include in his report that he conducted any
medical impairment examination or pretests. Accordingly, Waters contends that
Detective Moten did not substantially comply with the NHTSA standards and
guidelines.
In order for the results of field sobriety tests to be admissible, the state
must demonstrate that the officer substantially complied with NHTSA standards.
R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039, 2010-Ohio-
4567, ¶ 11. “A determination of whether the facts satisfy the substantial compliance
standard is made on a case-by-case basis.” State v. Fink, 12th Dist. Warren Nos.
CA2008-10-118 and CA2008-10-119, 2009-Ohio-3538, ¶ 26. The state may
demonstrate what the NHTSA standards are through competent testimony and/or
by introducing the applicable portions of the NHTSA manual. Boczar, 113 Ohio
St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at ¶ 28. Even if a court finds that the
officer did not substantially comply with the NHTSA standards (which would
require the results of the tests to be excluded), the officer’s testimony regarding the
defendant’s performance on nonscientific field sobriety tests is admissible under
Evid.R. 701. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at 43,
citing State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 14-15.
In this case, Detective Moten testified as to his qualifications as a
police officer and to his training in conducting field sobriety testing. He further
testified about how he conducted each test and Water’s performance on each test.
Additionally, the state introduced the relevant portion of the NHTSA manual during
Detective Moten’s testimony.
Specific to the argument raised on appeal, Detective Moten testified
that he checked for medical impairments prior to administering the tests, but
admitted that he did not include this information in his field report. Additionally,
he admitted that he did not ask Waters about his eye health or general health
conditions, which he agreed is contrary to the NHTSA manual’s guidelines when
conducting the HGN test.
At the suppression hearing, the state played Detective Moten’s body-
cam video taken during the field sobriety tests. As the video played, he testified how
he conducted each test and how Water’s performed on each test. Additionally, the
evidence showed that Detective Moten conferred with other officers prior to
administering the tests, knew that Waters was involved in a traffic accident, and
observed Waters exiting the zone car and walking to the testing location. The minor
deviations or deficiencies of not asking Waters about his general health condition
and failing to include in the report his assessment and impressions from the
medical-impairment examination or pretests do not warrant suppression of the
evidence obtained from the field sobriety tests. Accordingly, after reviewing the
entirety of Detective Moten’s testimony, body-cam video, and field report, we find
that the state demonstrated that Detective Moten substantially complied with the
NHTSA standards when conducting the field sobriety tests.
Even if the court suppressed the results of the HGN test because
Detective Moten did not ask Waters about his eye health or general health, probable
cause remained to arrest Waters for OVI. According to Detective Moten’s report and
testimony, he observed four clues of impairment during the walk and turn test, and
one clue of impairment during the one-leg stand test. Waters has not challenged
these results on appeal. Accordingly, even excluding the HGN test results, sufficient
evidence existed to establish probable cause to arrest Waters for OVI.
C. Miranda Violation
Waters contends that he was subjected to a custodial interrogation
requiring Miranda warnings when he was seated in the police cruiser for 30-40
minutes and not free to leave. Accordingly, he maintains that the court should have
suppressed his responses to Detective Moten’s questions about the accident and
whether he had been drinking.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), the United States Supreme Court held that custodial interrogations have the
potential to undermine the Fifth Amendment privilege against self-incrimination by
possibly exposing a suspect to physical or psychological coercion. Id. at 436. To
guard against such coercion, the court established a prophylactic procedural
mechanism that requires that a suspect receive a warning before custodial
interrogation commences. Id. at 444. Individuals in custody must be warned,
among other things, that they have a right to remain silent and that their statements
may be used against them at trial.
The Supreme Court has defined the term “custody” as the deprivation
of “freedom of action in any significant way.” Id. A person is in custody if, under
the totality of the circumstances, a reasonable person would not feel free to end the
encounter and leave. Yarborough v. Alvarado, 541 U.S. 652, 663-665, 124 S.Ct.
2140, 158 L.Ed.2d 938 (2004); State v. Martinez, 8th Dist. Cuyahoga Nos. 103572
and 103575, 2016-Ohio-5515, ¶ 20. “The ‘ultimate inquiry when determining
whether an individual is in ‘custody’ for Miranda purposes is ‘whether there [was] a
formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.’” Id. at ¶ 24, citing State v. Duhamel, 8th Dist. Cuyahoga No. 102346,
2015-Ohio-3145, ¶ 22, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct.
3517, 77 L.Ed.2d 1275 (1983).
In this case, officers placed Waters into the back of the police cruiser
after he became combative with an eyewitness after accusing the witness of causing
accident and then threatening the witness. Additionally, officers detained him for
further investigation because they believed Waters was intoxicated due to the strong
odor of alcohol emanating from him. Officer Fessler testified, however, that Waters
was not free to leave once placed in the cruiser.
Even if the statements Waters made to Detective Moten should have
been suppressed, probable cause existed to justify arresting Waters. Based on
Officer Fessler’s and Detective Moten’s observations and detection of an odor of
alcohol emanating from Waters, they had reasonable suspicion to conduct field
sobriety tests, which yielded clues that Waters was impaired. Accordingly, even
without Waters’s statements that he drank four beers earlier that evening, there was
probable cause to arrest Waters for operating a vehicle while intoxicated.
D. Conclusion
Based on the foregoing, the trial court did not err in denying Waters’s
motion to suppress. Having found no error, Waters was therefore not deprived of
effective assistance of counsel when counsel did not request the trial court to issue
separate findings of fact and conclusions of law.
Waters’s third and fourth assignments of error are overruled.
IV. Reagan Tokes Law
In his first and second assignments of error, Waters contends that he
received ineffective assistance of counsel when counsel failed to object to the trial
court imposing a sentence under the Reagan Tokes Law because the law is
unconstitutional. He asserts the Reagan Tokes Law is unconstitutional because it
violates the separation-of-powers doctrine, and his rights to a trial by jury and due
process.
Based on the authority established by this district’s en banc holding
in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges
Waters advances against the constitutional validity of the Reagan Tokes Act have
been overruled. Id. at ¶ 17-54. Therefore, even if counsel objected or challenged the
constitutional validity of the Reagan Tokes Law, Waters’s sentence pursuant to the
Reagan Tokes Law is not a violation of his constitutional rights, and thus, Waters
has failed to demonstrate any prejudice to warrant a finding that his counsel was
ineffective. Accordingly, his first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc
decision. For a full explanation of her analysis, see State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.). (Laster Mays, J., concurring in part and
dissenting in part).