State v. Spurlock ( 2013 )

[Cite as State v. Spurlock, 2013-Ohio-5369.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010354
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RUBIN E. SPURLOCK JR. ELYRIA MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 2012TRC05785
DECISION AND JOURNAL ENTRY
Dated: December 9, 2013
HENSAL, Judge.
{¶1} Rubin Spurlock appeals a judgment of the Elyria Municipal Court that convicted
him of driving under the influence. For the following reasons, this Court affirms in part and
reverses in part.
I.
{¶2} According to state highway trooper Bryan Holden, he was on patrol on July 13,
2012, around 1:45 a.m. when he saw a car following too closely behind a semi-truck. As he
followed behind the car, it moved from the right lane to the center lane without a turn signal and,
after passing the semi, moved back to the right lane without a turn signal. After Trooper Holden
saw the car also make a marked lanes violation, he initiated a traffic stop.
{¶3} Trooper Holden testified that he approached the car on the passenger side and
immediately noticed a strong odor of alcohol when the passenger opened the window. Because
he could not tell whether the odor was coming from the driver, Mr. Spurlock, or the passenger,
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he asked Mr. Spurlock to step out of the car. He isolated Mr. Spurlock on the side of the road
and still noticed a moderate odor of alcohol, so he began administering field sobriety tests. He
testified that he saw six clues during the horizontal-gaze nystagmus test, six clues during the
walk-and-turn test, and three clues during the one-leg-stand test. The results indicated to him
that Mr. Spurlock was inebriated. After finishing the tests, he asked Mr. Spurlock if he would
take a portable breath test, but Mr. Spurlock refused. Based on his observations during the stop,
Trooper Holden arrested Mr. Spurlock for operating under the influence and refusing to submit
to the portable breath test. He also cited him for failing to signal turns.
{¶4} Mr. Spurlock moved to suppress the results of the sobriety tests, any statements
that he made to law enforcement officers, and Trooper Holden’s observations about him during
the stop. He argued that the trooper did not have a legitimate reason to detain him, did not have
probable cause to arrest him, and that his statements were obtained in violation of his
constitutional rights. Following a hearing on his motion, the municipal court denied it. Mr.
Spurlock subsequently pleaded no contest to a charge of driving under the influence under the
Elyria municipal code. The court sentenced him to 37 days in jail, which it suspended, and
dismissed the other charges. Mr. Spurlock has appealed the denial of his motion to suppress,
assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE DENIAL OF DEFENDANT’S MOTION TO SUPPRESS WAS
IMPROPER AS THE DEFENDANT’S ARREST FOR OVI WAS NOT
SUPPORTED BY PROBABLE CAUSE AND IN VIOLATION OF THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE 1, SECTION 14 OF THE CONSTITUTION
OF THE STATE OF OHIO.
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{¶5} Mr. Spurlock argues that the municipal court incorrectly denied his motion to
suppress. A motion to suppress presents a mixed question of law and fact:
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶6} Mr. Spurlock argues that the trial court should have granted his motion to
suppress because Trooper Holden did not have probable cause to arrest him. To determine
whether a police officer had probable cause to arrest an individual for operating under the
influence, we consider whether, under the totality of the facts and circumstances surrounding the
arrest at the moment of arrest, the officer “had sufficient information, derived from a reasonably
trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that
the suspect was driving under the influence.” State v. Homan, 89 Ohio St.3d 421, 427 (2000),
superceded on other grounds by statute as recognized in State v., Schmitt, 101 Ohio St.3d 79,
2004-Ohio-37.
{¶7} Trooper Holden testified that he stopped Mr. Spurlock because he observed him
changing lanes without using a turn signal and committing a marked lanes violation. When he
approached the car, he immediately detected a strong odor of alcohol, so he separated the driver
and passenger to determine the source of the smell. He testified that Mr. Spurlock smelled
moderately of alcohol, so he conducted field sobriety tests. During the horizontal-gaze
nystagmus test, he observed that Mr. Spurlock’s eyes were bloodshot. During the walk-and-turn
test, Mr. Spurlock failed to follow his directions and “almost walked into traffic.” During the
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one-leg-stand test, Mr. Spurlock dropped his foot after only 20 seconds. He also swayed back
and forth and had to throw his arms up to catch himself.
{¶8} Mr. Spurlock argues that the field sobriety tests were not done in substantial
compliance with national standards so the fact that he “fail[ed]” the tests is of questionable value.
In Homan, however, the Ohio Supreme Court explained that “[t]he totality of the facts and
circumstances can support a finding of probable cause to arrest even where no field sobriety tests
were administered or where * * * the test results must be excluded for lack of * * * compliance.”
Homan, 89 Ohio St. 3d at 427. In this case, in addition to Trooper Holden’s testimony, the court
had the opportunity to view a video of the traffic stop. That video, however, has not been made
part of the appellate record. “[I]t is the duty of the appellant to ensure that the record on appeal
is complete.” State v. Unik, 9th Dist. Lorain No. 11CA009996, 2012-Ohio-307, ¶ 7, quoting
State v. Daniels, 9th Dist. Lorain No. 08CA009488, 2009-Ohio-1712, ¶ 22. Without a copy of
the video, we “must presume regularity of the proceedings and affirm the decision of the trial
court.” State v. Jones, 9th Dist. Summit. No. 22701, 2006-Ohio-2278, ¶ 39. Mr. Spurlock’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE DENIAL OF DEFENDANT’S MOTION TO SUPPRESS WAS
IMPROPER AS THE TRIAL COURT’S DETERMINATION THAT ALL
TESTS WERE DONE FOR THE DETECTION OF OVI WERE DONE IN
SUBSTANTIAL COMPLIANCE WITH RULES WAS NOT SUPPORTED BY
EVIDENCE OF ANY ACCEPTABLE STANDARDS OR RULES; THAT
BEING NEITHER PROFERRED BY THE STATE NOR TAKEN BY
JUDICIAL NOTICE.
{¶9} Mr. Spurlock argues that the trial court should have at least suppressed the results
of the field sobriety tests because there is no evidence that they were performed in compliance
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with national standards. Under Revised Code Section 4511.19(D)(4)(b), an officer may testify
concerning the results of a field sobriety test only if:
[I]t is shown by clear and convincing evidence that the officer administered the
test in substantial compliance with the testing standards for any reliable, credible,
and generally accepted field sobriety tests that were in effect at the time the tests
were administered, including, but not limited to, any testing standards then in
effect that were set by the national highway traffic safety administration[.]
{¶10} In State v. Sunday, 9th Dist. Summit No. 22917, 2006-Ohio-2984, this Court
determined that, under Section 4511.19(D)(4)(b), the State has the burden of establishing
substantial compliance. Id. at ¶ 21. In that case, the police officer who stopped Edmund Sunday
testified that he was certified to perform breathalyzer tests and to conduct field sobriety tests, but
he did not testify that he performed any of the tests he administered in substantial compliance
with standardized testing procedures. Id. at ¶ 22. Although he testified that he conducted the
tests in accordance with his training, he did not testify about what guidelines he used or whether
the tests conformed to any standardized testing procedure. Id. On cross-examination, he
admitted that he could not recall whether his training utilized National Highway Traffic Safety
Administration (NHTSA) standards. Id. at ¶ 23. At no point during his testimony, did he testify
that he had substantially complied with any specific guidelines. The State also failed to admit
the NHTSA manual. Id. at ¶ 24. This Court, therefore, concluded that the results of the tests
should be suppressed. Id. at ¶ 24-25.
{¶11} Trooper Holden testified that he was trained “according to the NHTSA manual.”
He also testified that he conducted the horizontal-gaze nystagmus test “the way I was instructed
to do it officer safety-wise * * *.” He did not otherwise testify that he performed any of the field
sobriety tests in accordance with the way he had been trained, in accordance with the NHTSA
manual, or in accordance with some other standardized testing procedure. The State also did not
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submit a NHTSA or other standardized testing procedure manual. Accordingly, upon review of
the record, we conclude that there was no competent, credible evidence to support the municipal
court’s finding that “[a]ll tests done for detection of OVI were done in substantial compliance
with rules.”
{¶12} The State argues that it did not have the burden of demonstrating substantial
compliance in this case because Mr. Spurlock did not set forth an adequate factual basis in his
motion to suppress identifying how he believed Trooper Holden failed to comply with
standardized testing procedures. It notes that Mr. Spurlock did not even mention the NHTSA
manual in his motion. See State v. Codeluppi, 9th Dist. Lorain No. 11CA010133, 2012-Ohio-
5812, ¶ 24-26.
{¶13} Mr. Spurlock argues, and we agree, that the State forfeited its opportunity to
challenge the adequacy of his motion to suppress by failing to object to it in the municipal court.
“While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress ‘with
particularity,’ the state waives this issue if it is not raised in opposition to a defendant’s motion to
suppress.” State v. O’Neill, 175 Ohio App.3d 402, 2008-Ohio-818, ¶ 33 (6th Dist.); State v.
Mayl, 154 Ohio App.3d 717, 2003-Ohio-5097, ¶ 22 (2d Dist.). In addition, this Court has
recognized that a trial court may allow a defendant to supplement his motion to suppress during
the suppression hearing. State v. Smith, 9th Dist. Summit No. 21069, 2003-Ohio-1306, ¶ 13.
Upon review of the record, we conclude that the State forfeited its right to challenge whether the
motion to suppress contained enough particularity by not raising that issue before the municipal
court.
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{¶14} There was no evidence in the record to support the trial court’s finding that the
field sobriety tests Trooper Holden administered were in compliance with appropriate standards
under Section 4511.19(D)(4)(b). Mr. Spurlock’s second assignment of error is sustained.
III.
{¶15} The municipal court correctly determined that Mr. Spurlock’s arrest was
supported by probable cause, but it incorrectly denied his motion to suppress the results of the
field sobriety tests. The judgment of the Elyria Municipal Court is affirmed in part and reversed
in part, and this matter is remanded for additional proceedings consistent with this decision.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JACK BRADLEY, MALLORY J. HOLMES, and MICHAEL E. STEPANIK, Attorneys at Law,
for Appellant.
SCOTT SERAZIN, MATTHEW A. MISHAK, and MICHELLE D. NEDWICK, Attorneys at
Law, for Appellee.