State v. Ciminello , 2018 Ohio 467 ( 2018 )

[Cite as State v. Ciminello, 2018-Ohio-467.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. John W. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 17-COA-030
PAIGE E. CIMINELLO :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal
Court, Case No. 17-TR-C-2394
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 5, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW BUSH MATTHEW MALONE
1213 East Main Street 10 East Main Street
Ashland, OH 44805 Ashland, OH 44805
[Cite as State v. Ciminello, 2018-Ohio-467.]
Gwin, J.
{¶1} Defendant-appellant Paige Ciminello appeals the July 5, 2017 judgment
entry of the Ashland Municipal Court denying her motion to suppress evidence.
Facts & Procedural History
{¶2} On April 2, 2017, Trooper Green of the Ohio State Highway Patrol stopped
appellant on Claremont Avenue in Ashland for a speeding violation. After Trooper
Green’s investigation, appellant was arrested for operating a motor vehicle while under
the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (A)(1)(d) and speeding
in violation of R.C. 4511.21(D)(4).
{¶3} Appellant filed a motion to suppress, arguing Trooper Green did not have
reasonable, articulable suspicion to conduct field sobriety tests. The trial court held a
hearing on the motion to suppress on June 9, 2017.
{¶4} Trooper Green testified that on April 2, 2017, a Sunday morning, at 2:09
a.m., he observed a vehicle traveling 35 miles per hour in a 25 miles per hour zone. He
checked the speed of the vehicle with radar and clocked it at 36 miles per hour, 35 miles
per hour, and 33 miles per hour. Trooper Green initiated his overhead lights as the vehicle
traveled into the Taco Bell parking lot.
{¶5} Trooper Green testified when he initially made contact with appellant, the
driver of the vehicle, he noticed a strong odor of alcohol from the vehicle, observed
appellant’s eyes were red, bloodshot, and glassy, and appellant told him the passenger
in the car requested she come get him from O’Bryan’s, a local pub. Appellant initially
denied consuming alcohol.
Ashland County, Case No. 17-COA-030 3
{¶6} Trooper Green stated he then asked appellant to exit the vehicle, as he
wanted to make sure the alcohol odors were coming from her. He testified there was a
moderate odor of alcohol about appellant’s breath when she was outside the vehicle.
Trooper Green then asked her where she was before, and appellant said she was at
home and then traveled to O’Bryan’s. Appellant stated she had one beer at O’Bryan’s.
Trooper Green testified he then administered field sobriety tests to appellant.
{¶7} On the horizontal gaze nystagmus (“HGN”) test, Trooper Green observed
six out of six clues. On the walk and turn test, Trooper Green observed three out of four
clues. Trooper Green then arrested appellant. Appellant submitted to a breath test and
registered a .124 BAC. Trooper Green also identified and testified to Exhibit A, the dash
cam video from the stop.
{¶8} The trial court issued a judgment entry on July 5, 2017. The trial court made
the following factual findings: it was 2:09 a.m. when Trooper Green stopped appellant;
appellant was going 36 miles per hour in a 25 miles per hour zone; appellant was coming
from the direction of local alcohol establishments; Trooper Green initiated a traffic stop as
the vehicle pulled into the Taco Bell parking lot; Trooper Green noted a strong odor of
alcohol coming from the vehicle; Trooper Green observed appellant’s eyes were red,
bloodshot and glassy; appellant acknowledged she was coming from O’Bryan’s, a local
alcohol establishment; the trooper noticed a moderate smell of alcohol coming from
appellant’s breath when she stepped out of the vehicle; and, while appellant initially
denied consuming alcohol, she then admitted she consumed “a beer” at O’Bryan’s prior
to the administration of the field sobriety tests.
Ashland County, Case No. 17-COA-030 4
{¶9} The trial court concluded Trooper Green was justified in continuing the
investigation beyond the stop for speed because there was sufficient indicia of alcohol
consumption or intoxication, including: the speed, the fact it was 2:09 a.m. on Sunday
morning, appellant’s bloodshot, red, and glassy eyes, the strong odor of alcohol from the
car, the moderate odor of alcohol from appellant when outside the car, appellant’s
admission she was coming from O’Bryan’s, and appellant’s admission to consuming one
beer. Accordingly, the trial court overruled appellant’s motion to suppress.
{¶10} Appellant appeals from the judgment entry of the Ashland Municipal Court
and assigns the following as error:
{¶11} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS.”
I.
{¶12} In her sole assignment of error, appellant maintains the trial court erred in
denying her motion to suppress when the arresting officer lacked reasonable, articulable
suspicion to continue and expand the detention of appellant to conduct field sobriety tests.
Appellant does not contest the traffic stop itself.
{¶13} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968); State v. Andrews, 57 Ohio St. 3d 86, 56 N.E.2d 1271 (1991).
{¶14} There are three methods of challenging on appeal a trial court’s ruling on a
motion to suppress. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
Ashland County, Case No. 17-COA-030 5
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio
App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993). Finally, assuming the trial court’s findings
of facts are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this third type of
claim, an appellate court must independently determine, without deference to the trial
court’s conclusion, whether the facts meet the appropriate legal standard in the given
case. State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982); State v. Williams, 86
Ohio App. 3d 37, 619 N.E.2d 1141 (4th Dist. 1993). The United States Supreme Court
has held that, “* * * as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.” Ornelas v. U.S., 517 U.S. 690,
116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).
{¶15} With respect to the detainment to administer field sobriety tests, a request
made of a validly detained motorist to perform field sobriety tests is generally outside the
scope of the original stop, and must be separately justified by other specific and
articulable facts showing a reasonable basis for the request. State v. Albaugh, 5th Dist.
Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536.
{¶16} Although requiring a driver to submit to a field sobriety test constitutes a
seizure within the meaning of the Fourth Amendment, courts have generally held that the
intrusion on the driver’s liberty resulting from a field sobriety test is minor, and the officer
Ashland County, Case No. 17-COA-030 6
therefore need only have reasonable suspicion that the driver is under the influence of
alcohol in order to conduct a field sobriety test. State v. Bright, 5th Dist. Guernsey No.
2009-CA-28, 2010-Ohio-1111. “Reasonable suspicion” is “* * * something more than an
inchoate or unparticularized suspicion or hunch, but less than the level of suspicion
required for probable cause.” State v. Shepherd, 122 Ohio App. 3d 358, 701 N.E.2d 778
(2nd Dist. 1997).
{¶17} A court should analyze the reasonableness of the request based on the
totality of the circumstances approach, viewed through the eyes of a reasonable and
prudent police officer on the scene who must react to events as they unfold. State v.
Freeman, 64 Ohio St. 2d 291, 414 N.E.2d 1044 (1980).
{¶18} Appellant contends she did not admit to consuming alcohol until after
Trooper Green began to administer the field sobriety tests. However, the trial court made
the finding of fact that appellant admitted to consuming one beer prior to Trooper Green
beginning to administer the field sobriety tests. When considering a motion to suppress,
a trial court serves as trier of fact and is in the best position to resolve questions of fact
and evaluate witness credibility. State v. Mills, 62 Ohio St. 3d 357, 582 N.E.2d 972 (1992).
Accordingly, we must defer to the trial court’s findings of fact if they are supported by
competent and credible evidence. State v. Bagnoli, 5th Dist. Stark No. 2014CA00215,
2015-Ohio-3314, citing State v. Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982). Upon
review, we find there is competent and credible evidence to support the trial court’s factual
finding, as Trooper Green testified he conducted the field sobriety tests after she admitted
to consuming one beer. Further, the video shows appellant stated she consumed alcohol
prior to Trooper Green’s administration of the field sobriety tests.
Ashland County, Case No. 17-COA-030 7
{¶19} Appellant first cites to this Court’s decisions in Hall and Keserch in support
of her argument. In Hall, we concluded red, watery, bloodshot eyes and an odor of
alcohol, without additional indicia of intoxication, did not give the officer reasonable
suspicion the driver was under the influence when the stop was for a single marked lanes
violation during a left turn, without speeding or additional swerving. 5th Dist. Stark No.
2015 CA 00213, 2016-Ohio-5787. In this case, while appellant did not fumble with any
identification and did not have difficulty exiting the vehicle or answering the trooper’s
questions, the testimony at the suppression hearing does demonstrate appellant had red,
glassy, bloodshot eyes; there was a moderate odor of alcohol from appellant when she
was outside the vehicle; appellant stated she was coming from O’Bryan’s pub; appellant
was speeding; and, after initially denying she consumed alcohol, admitted to having one
beer. We find the state of the evidence herein differs from that in Hall. See State v.
Martinez, 5th Dist. Licking No. 16-CA-107, 2017-Ohio-5727; State v. Bull, 5th Dist.
Ashland No. 14-COA-007, 2014-Ohio-4230.
{¶20} In Keserich, we found no reasonable, articulable suspicion when appellant
was pulled over for an equipment violation, the officer observed the appellant’s eyes were
glassy and bloodshot, and appellant admitted to drinking. 5th Dist. Ashland No. 14-COA-
011, 2014-Ohio-5120. However, the officer did not detect an odor of alcohol and we
stated it was “of utmost significance to our decision” the fact that “the arresting officer did
not observe any moving violation, let alone a de minimus one, regarding appellant’s
operation of his vehicle,” as “the stop was based solely upon an equipment violation.” Id.
This case is distinguishable from Keserich, as the initial stop was not just for an equipment
Ashland County, Case No. 17-COA-030 8
violation; rather, Trooper Green stopped appellant after he observed her vehicle going 36
miles per hour, 35 miles per hour, and 33 miles per hour in a 25 miles per hour zone.
{¶21} Further, the trooper noticed a strong odor of alcohol from the vehicle, a
moderate odor of alcohol from appellant when she was outside the vehicle, it was 2:09
a.m. on Sunday morning, appellant had bloodshot, glassy, and red eyes, appellant stated
she was coming from O’Bryan’s pub, and, despite initially denying she consumed alcohol,
admitted prior to the initiation of the field sobriety tests to consuming one beer. See State
v. Forquer, 5th Dist. Delaware No. 16 CAC 09 0038, 2017-Ohio-7237 (distinguishing
Keserich and finding sufficient indicia of intoxication where the officer noticed the odor of
alcohol, bloodshot eyes, and the appellant admitted to drinking); State v. Tharp, 5th Dist.
Stark No. 2015 CA 00018, 2015-Ohio-4267 (distinguishing Keserich and finding sufficient
indicia of intoxication even though the appellant denied consuming alcohol when it was
11:36 p.m. on Saturday night, appellant traveled to the left of center and made an
improper red light stop, had bloodshot and watery eyes, and there was an odor of alcohol);
State v. Locker, 5th Dist. Stark No. 2015 CA 00050, 2015-Ohio-4953 (distinguishing
Keserich and finding reasonable, articulable suspicion when it was 11:35 p.m. on Friday
evening, the appellant was stopped for a moving violation, had bloodshot and glassy
eyes, there was the odor of alcohol from the vehicle, and appellant admitted to having
just left a drinking establishment); State v. Locker, 5th Dist. Stark No. 2015 CA 0011,
2015-Ohio-3737 (distinguishing Keserich, finding reasonable, articulable suspicion when
the appellant was stopped when driving with his high-beams on, had bloodshot, glassy
eyes, had an odor of alcohol, and admitted to consuming alcohol).
Ashland County, Case No. 17-COA-030 9
{¶22} Appellant also cites to a line of cases from other districts holding a minor
traffic violation, bloodshot and glassy eyes, a slight odor of alcohol, and admission of
consuming alcohol is insufficient to warrant the administration of field sobriety tests. State
v. Dixon, 2nd Dist. Greene No. 2000-CA-30, 2000 WL 1760664; State v. Reed, 7th Dist.
Belmont No. 05 BE 31, 2006-Ohio-7075; State v. Spillers, 2nd Dist. Darke No. 1504, 2000
WL 299550.
{¶23} However, this Court has consistently held that, “where a non-investigatory
stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and
further indicia of intoxication, such as an admission of having consumed alcohol,
reasonable suspicion exists.” State v. Smith, 5th Dist. Licking No. 09-CA-42, 2010-Ohio-
1232; State v. Strope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 (distinguishing
Dixon and Spillers and finding reasonable, articulable suspicion when there was a
moderate odor of alcohol, bloodshot and glassy eyes, and when the appellant initially
denied having anything to drink, but admitted he had a few drinks before the trooper
administered the field sobriety test); State v. Forquer, 5th Dist. Delaware No. 16 CAC 09
0038, 2017-Ohio-7237; State v. Hamilton, 5th Dist. Holmes No. 17CA006, 2017-Ohio-
8826. That is exactly the situation in this case. Appellant was speeding, Trooper Green
testified appellant’s eyes were glassy and bloodshot, there was a moderate odor of
alcohol when she was outside the vehicle, and appellant admitted to having consumed
alcohol.
{¶24} Further, as we stated in State v. Evans, speeding is an indication of erratic
driving and the fact the appellant was speeding makes this case distinguishable from the
cases cited above which involved expired license plate tags, loud exhaust, and improperly
Ashland County, Case No. 17-COA-030 10
tinted windows. 5th Dist. Stark No. 2013CA00036, 2013-Ohio-5153 (finding reasonable,
articulable suspicion when it was 2:30 a.m. Saturday morning, appellant was speeding,
the trooper detected an odor of alcohol and viewed red and bloodshot eyes, and appellant
denied he had been drinking).
{¶25} Based upon the totality of the circumstances, we find the trooper herein
relied on specific, articulable facts giving rise to a reasonable suspicion appellant was
driving under the influence; justifying an extension of the initial detention for the
performance of field sobriety testing. We find the trial court did not err in denying the
motion to suppress. Appellant’s assignment of error is overruled.
{¶26} The July 5, 2017 judgment entry of the Ashland Municipal Court is affirmed.
By Gwin, J.,
Wise, John, J., and
Hoffman, J., concur