State v. Billiter , 2012 Ohio 4551 ( 2012 )

[Cite as State v. Billiter, 2012-Ohio-4551.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MO 5
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DANIEL BILLITER )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court
of Monroe County, Ohio
Case No. 09 TRC 55
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Thomas A. Hampton
Assistant Prosecuting Attorney
P.O. Box 480
101 Courthouse
Woodsfield, Ohio 43793
For Defendant-Appellant: Atty. Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 24, 2012
[Cite as State v. Billiter, 2012-Ohio-4551.]
WAITE, P.J.
{¶1} Appellant Daniel Billiter (“Appellant”) appeals the judgment of the
Monroe County Court convicting and sentencing him for operating a motor vehicle
while under the influence of alcohol (“OMVI”). Appellant assigns as error: (1) the trial
court’s finding that Deputy Chappell had probable cause to arrest him; and (2) the
trial court’s finding that there was no violation of Appellant’s Miranda rights. The
prosecutor has effectively argued that Deputy Chappell did have probable cause to
arrest Appellant. In addition to the observation of Appellant’s glassy eyes, slurred
speech, odor of alcohol, and failure to stop at a stop sign, Deputy Chappell noticed
Appellant earlier in the evening showing signs of intoxication and admitting that he
was intoxicated. Regarding the Miranda issue, the record indicates that Appellant
waived his Miranda rights. For these reasons, the judgment of the trial court is
affirmed.
Statement of Facts
{¶2} On the evening of October 5, 2009, Monroe County Sheriff Deputy
Robert Chappell was dispatched to investigate a disturbance at the Chevron Par-Mar
convenience store in Hannibal, Ohio. It was reported to Deputy Chappell that
Appellant was intoxicated and threatened to blow up a building across the Ohio River
in West Virginia. (Tr., pp. 6-7.)
{¶3} Deputy Chappell drove from the convenience store to Appellant’s home
in Sardis, Ohio. While he and the deputy discussed Appellant’s conduct at the
convenience store, he noticed signs that Appellant had been drinking, which included
slurred speech and a very strong odor of alcohol. (Tr., pp. 9-10.) Appellant told
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Deputy Chappell that the convenience store had refused to sell him alcohol because
he was too intoxicated, so he got angry and left to go purchase beer elsewhere.
Deputy Chappell advised Appellant to stay out of the convenience store while the
matter was under investigation. Appellant then told Deputy Chappell that he was not
going to leave his home because he had been drinking. (Tr., p. 9.)
{¶4} Approximately three hours later, at 11:43 p.m., Deputy Chappell was
sitting in his cruiser in Sardis two blocks from Appellant’s home when he observed a
pickup truck proceeding through an intersection without stopping at the stop sign.
(Tr., p. 12.) He recognized the driver as Appellant. Deputy Chappell activated his
lights and followed Appellant’s vehicle, but Appellant failed to stop. Deputy Chappell
then turned on his siren, and Appellant pulled over about two blocks from the
intersection where he had disregarded the stop sign. (Tr., p. 15.)
{¶5} When Deputy Chappell approached the truck, Appellant had his window
slightly rolled down. (Tr., p. 16.) The deputy told Appellant that he pulled him over
for running a stop sign. Appellant asked him to just give him his ticket so he could
leave. Deputy Chappell requested that he roll his window down further and hand
over his license, registration, and proof of insurance. After fumbling for the papers,
Appellant produced his license and registration. Even though Appellant had not
rolled the driver’s side window down any further, Deputy Chappell noticed Appellant
had a strong odor of alcohol, glassy eyes, and slurred speech. Deputy Chappell
again requested that Appellant roll his window down, turn off his motor, and step out
of the vehicle, but Appellant refused. (Tr., p. 17. )
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{¶6} Deputy Chappell called for backup from his own department and from
the state highway patrol. (Tr., pp. 17-18.) Approximately thirty minutes later, another
deputy arrived. Around that same time, a friend of Appellant’s walked by and tried to
persuade him to turn off his motor and get out of the truck. He refused to get out of
the vehicle, but eventually rolled his window down further. Deputy Chappell then
reached inside the truck to unlock the door, removed Appellant and arrested him for
resisting arrest and OMVI. (Tr., p. 19.) Deputy Chappell read Appellant the Miranda
rights warning and transported him to Woodsfield, Ohio, eighteen miles away. (Tr.,
pp. 19-26.) Appellant made no incriminating statements during the drive to the police
station. (Tr., p. 35.)
{¶7} At the Woodsfield Police Department, at 2:20 a.m., Deputy Chappell
again read Appellant his Miranda warnings. Appellant verbally waived his Miranda
rights but refused to sign the waiver form. Appellant was given a breath test using a
BAC Datamaster, with a result of .228. (Tr., p. 32.) Appellant did not ask for an
attorney and admitted to consuming alcohol. (Tr., pp. 34, 37.)
Procedural History
{¶8} On October 5, 2009, Appellant was charged with OMVI in Sardis, Ohio.
Appellant filed a variety of pretrial motions including a motion to dismiss, motions to
disqualify the judge and the prosecutor, and a motion to suppress evidence. All of
Appellant’s pretrial motions were denied. Appellant then entered a plea of no contest
on June 18, 2010, to one count of first offense OMVI. Appellant was sentenced to
twenty days in jail, with six days served and fourteen suspended; a fine of $675, with
$300 suspended; a one-year license suspension; and two years of supervised
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probation, with an express term forbidding Appellant to enter any bar or to consume
alcohol. Appellant filed a timely appeal. Appellant’s attorney has filed two
assignments of error challenging the trial court’s denial of the motion to suppress.
Appellant has also filed three additional pro se assignments of error.
Standard of Review
{¶9} The standard of review with respect to a motion to suppress is limited to
determining whether the trial court’s findings are supported by competent, credible
evidence. State v. Culberson, 142 Ohio App. 3d 656, 660, 756 N.E.2d 734 (7th
Dist.2001); State v. Lloyd, 126 Ohio App. 3d 95, 100, 709 N.E.2d 913 (7th Dist.1998).
Such a standard of review is appropriate because “ ‘[i]n a hearing on a motion to
suppress evidence, the trial court assumes the role of trier of facts and is in the best
position to resolve questions of fact and evaluate the credibility of witnesses.’ ” State
v. Hopfer, 112 Ohio App. 3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State
v. Venham, 96 Ohio App. 3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). If there is
competent and credible evidence supporting the trial court’s findings, the reviewing
court must independently determine, as a matter of law and without deference to the
trial court’s legal conclusions, whether the trial court met the applicable legal
standards. Culberson at 660; Lloyd at 100-101.
ASSIGNMENT OF ERROR NO.1
THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE FOR
THE ARREST OF DEFENDANT/APPELLANT FOR AN OVI OFFENSE.
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{¶10} Appellant argues that Deputy Chappell had no probable cause for
arrest. We disagree. Based on the facts surrounding the arrest, it can readily be
determined from this record that Deputy Chappell had probable cause to believe that
Appellant was engaged in criminal activity. An officer must have probable cause that
an individual has committed a crime in order to make an arrest. State v. Timson, 38
Ohio St. 2d 122, 311 N.E.2d 16 (1974). Probable cause exists when there is “[a]
reasonable ground of suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the belief that the person accused is guilty
of the offense with which he is charged.” Huber v. O’Neill, 66 Ohio St. 2d 28, 30, 419
N.E.2d 10 (1981). Moreover, in State v. Campbell, 115 Ohio App. 3d 319, 685 N.E.2d
308 (7th Dist.1996), we held that during a justified initial stop and detention, an officer
may place an individual under arrest if the officer develops probable cause to believe
a suspect is driving under the influence of alcohol in violation of R.C. 4511.19. Id. at
328. To determine whether an officer had probable cause to arrest an individual for
violating R.C. 4511.19(A), the court must review, “whether, at the moment of the
arrest, the officer had knowledge from a reasonable trustworthy source of facts and
circumstances sufficient to cause a prudent person to believe that the suspect was
driving under the influence of alcohol.” State v. Medcalf, 111 Ohio App. 3d 142, 147,
685 N.E.2d 308 (4th Dist.1996).
{¶11} We have agreed with other courts that there is no probable cause to
arrest for OMVI when “the only basis for arresting the defendant was the appearance
of being intoxicated,” such as an odor of alcohol or glassy eyes. (Emphasis sic.)
State v. Blake, 7th Dist. No. 01 CO 44, 2002-Ohio-5221, ¶38. Nevertheless, there
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are a variety of factors in addition to an odor of alcohol or glassy eyes that may be
used to support probable cause to arrest for OMVI, as noted in the following cases:
Cincinnati v. Bryant, 1st Dist. No. C-090546, 2010-Ohio-4474 (evidence of backing
out of one-way street, moderate odor of alcohol on person, slightly slurred speech,
watery and glazed eyes, apparent confusion and clumsiness, and admission of
alcohol consumption provided probable cause to attest); Cincinnati v. Sims, 1st Dist.
Nos. C-010178 and C-010179, 2001 WL 1295341 (Oct. 26, 1991) (evidence of failure
to stop at stop sign, strong odor of alcohol about person, admission of alcohol
consumption, and watery and bloodshot eyes provided probable cause to arrest);
State v. Molk, 11th Dist. No. 2001-L-146, 2002-Ohio-6926 (erratic driving, along with
abusive, belligerent and uncooperative behavior toward the arresting police officer,
are factors that support probable cause to arrest for OMVI).
{¶12} In State v. Homan, 89 Ohio St. 3d 421, 732 N.E.2d 952 (2000), the
Supreme Court of Ohio held that the totality of facts and circumstances surrounding
an arrest may be used to support probable cause to make an arrest for OMVI. In
Homan, the Supreme Court held that the arrest of the defendant was valid because
of the totality of following factors: erratic driving, the driver’s “red and glassy” eyes,
the smell of alcohol on the driver’s breath, and the driver’s admission that she had
been consuming alcoholic beverages. Id.
{¶13} Based on the ruling in Homan and the other aforementioned cases,
Deputy Chappell had probable cause to arrest Appellant for violating R.C. 4511.19(A)
as it pertains to this set of facts and circumstances. Just hours before the arrest took
place, Deputy Chappell was called to investigate a scene where Appellant was
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intoxicated and making threats to blow up a building. Deputy Chappell spoke with
convenience store clerks who would not sell Appellant beer because he had already
been drinking in excess. Deputy Chappell then traveled to Appellant’s home, where
Appellant admitted to drinking and appeared to be intoxicated.
{¶14} Following this encounter, just before midnight, Deputy Chappell
observed Appellant driving erratically by failing to stop at a stop sign. During the
traffic stop, Deputy Chappell noticed a strong smell of alcohol. Appellant had
difficulty producing his license and registration, and refused to comply with Deputy
Chappell’s simple orders to roll down his window and put his car in park. Appellant’s
continued refusal to cooperate was so pervasive that backup had to be called in.
{¶15} The facts and circumstances surrounding Deputy Chappell’s encounter
with Appellant on the night of his arrest amply support the conclusion that he had
probable cause to arrest Appellant for OMVI. Thus, the trial court’s ruling that there
was probable cause for arrest was correct and Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING DEFENDANT/APPELLANT’S MOTION TO SUPPRESS HIS
STATEMENTS.
{¶16} A defendant’s waiver of his Miranda rights must be given voluntarily,
knowingly, and intelligently. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515
(1986). An explicit waiver in writing is not required, if the defendant’s conduct
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indicates waiver. North Carolina v. Butler, 441 U.S. 369, 373, 375-376, 99 S. Ct.
1755, 60 L. Ed. 2d 286 (1979); State v. Black, 48 Ohio St. 2d 262, 269, 358 N.E.2d 551
(1976). A suspect’s waiver of Fifth Amendment privileges is deemed voluntary
absent evidence that his “ ‘will [was] overborne and his capacity for self-determination
was critically impaired’ because of coercive police conduct.” Colorado v. Spring, 479
U.S. 564, 574, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1986).
{¶17} The record reveals that Appellant received Miranda warnings twice.
Nothing in the record indicates coercive police conduct while Appellant was being
questioned. Appellant verbally waived his rights after the second reading of his
Miranda warnings, and thereafter admitted to drinking. (Tr., p. 32.) At the
suppression hearing, Appellant focused solely on his description of the intersection
where the stop sign violation occurred, and denied that he had failed to stop at the
stop sign. At no time did he dispute Deputy Chappell’s testimony that he had waived
his rights after receiving his second Miranda warning and subsequently made
admissions to the deputy. The record reflects that there is no reason why Appellant’s
statement that he had been drinking should be suppressed, and his second
assignment of error is overruled.
PRO SE ASSIGNMENTS OF ERROR
{¶18} The following pro se assignments of error are filed pursuant to the
authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
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ANDERS ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
OVERRULED DEFENDANT/APPELLANT’S MOTION TO DISMISS
BASED ON SELECTIVE PROSECUTION OR ALTERNATIVELY
MOTION TO DISQUALIFY PROSECUTORS AND WHEN THE TRIAL
COURT DENIED DEFENDANT/APPELLANT’S MOTION TO
DISQUALIFY JUDGE.
{¶19} No error occurred when the trial court refused to dismiss the citation on
the grounds of selective prosecution and refused to disqualify the judge and the
prosecutor. Appellant claims that the judge had “preconceived facts and opinions”
about him, but the court refused to excuse the judge and prosecutor from this case.
(Appellee’s Brf., p. 9.) An appellate court has no authority to disqualify a county court
judge on grounds of bias, as this issue lies solely in the hands of the court of
common pleas. State v. Hunter, 151 Ohio App. 3d 276, 2002-Ohio-7326, 783 N.E.2d
991, ¶18 (9th Dist.); R.C. 2701.031(C). If Appellant sought recusal, his proper means
of so doing was by filing with the court of common pleas.
ANDERS ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY NOT SUPPRESSING
DEFENDANT/APPELLANT’S BAC TEST RESULTS AS TIMING OF
ITS COLLECTION WAS IMPROPER.
{¶20} Pursuant to R.C. 4511.192(A), the arresting officer in an OMVI case
must read to the defendant the advice contained in R.C 4511.192(B) within two hours
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of the alleged violation. Also, a breath test must be performed within three hours of
the alleged violation. R.C. 4511.19(D)(1)(b).
{¶21} No error occurred when the trial court refused to suppress the result of
the breath test due to an asserted failure to administer the test in a timely manner.
The traffic stop occurred at 11:43 p.m. Less than two hours later, Deputy Chappell
read Appellant the required warnings set forth in BMV form 2255. (Tr., p. 29.) The
breath test was administered at 2:29 a.m., less than three hours after Deputy
Chappell observed Appellant running the stop sign at the intersection. (Tr., pp. 5,
29.) Therefore, Deputy Chappell complied with R.C. 4511.19(B)(1), and no error
occurred.
ANDERS ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY DENYING
DEFENDANT/APPELLANT’S REQUEST FOR A JURY VIEW.
{¶22} The standard of review of whether a jury view is appropriate is abuse of
discretion. R.C. 2945.16; State v. Zuern, 32 Ohio St. 3d 56, 58, 512 N.E.2d 585
(1987).
{¶23} Appellant was seeking an order to have the jury view the intersection
where the traffic violation occurred. The trial court did not err when it denied
Appellant’s request for a jury view. The view that Appellant sought would not assist
the jury on the issues of whether Appellant drove while under the influence of alcohol
or with a prohibited level of alcohol in his blood. The trial court concluded that
photographs and videos of the intersection would suffice, and declined to transport
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the jury thirty miles from the courthouse to view the stop sign and the surrounding
area. This decision was within the trial court’s discretion and did not constitute error.
CONCLUSION
{¶24} Appellant asserted that the trial court erred in finding that Deputy
Chappell had probable cause to arrest him and finding that there was no violation of
his rights under Miranda. These arguments are without merit. The traffic violation,
along with the officer’s observations of Appellant during the evening of October 5,
2009, constitute probable cause to arrest. The record also indicates that Appellant
effectively waived his rights under Miranda. Appellant’s Anders assignments of error
are also without merit. All of Appellant’s assignments of error are overruled, and his
conviction and sentence are affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.