State v. Such , 2018 Ohio 1264 ( 2018 )

[Cite as State v. Such, 2018-Ohio-1264.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 17-CA-77
: 17-CA-78
ADAM SUCH :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No. 17-TRC-
02590
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 30, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
J. MICHAEL KING KEVIN J. GALL
Assistant Law Director Burkett & Sanderson, Inc.
City of Newark 73 North 6th St.
40 West Main St., 4th Floor Newark, OH 43055
Newark, OH 43055
Licking County, Cases 17-CA-77, 17-CA-78 2
Delaney, J.
{¶1} Appellant Adam Such appeals from the September 5, 2017 Judgment Entry
of Conviction of the Licking County Municipal Court, incorporating the June 27, 2017
Judgment Entry overruling his motion to suppress. Appellee is the state of Ohio.
{¶2} Two appeals, Licking County case numbers 17-CA-77 and 17-CA-78, are
hereby consolidated and resolved with the single opinion infra.
FACTS AND PROCEDURAL HISTORY
{¶3} This case arose on March 11, 2017, around 4:00 p.m., when Trooper
Vogelmeier of the Ohio State Highway Patrol was monitoring traffic from a stationary
location on Interstate 70 near mile post 132 in Licking County. Vogelmeier has been a
trooper for 5 years and is trained and certified in the investigation of impaired drivers using
standardized field sobriety tests pursuant to the National Highway Traffic Administration
(NHTSA) Standards and Advanced Roadside Impaired Driving Enforcement (ARIDE).
Vogelmeier is experienced in recognizing and apprehending drivers under the influence
of alcohol and other drugs.
{¶4} On this date, Vogelmeier watched traffic moving westbound and checked
speed with a laser device. He observed a vehicle operated by appellant in the right lane.
The trooper watched the vehicle leave its lane by a “substantial distance;” in addition, the
vehicle traveled 52 m.p.h. in a 70 m.p.h. zone and the passenger was not wearing a seat
belt.
{¶5} Vogelmeier initiated a traffic stop and noted appellant was slow to pull over.
The cruiser camera was activated along with the lights on the cruiser and the videotape
of the stop was admitted as appellee’s Exhibit 1 at the suppression hearing. The video
Licking County, Cases 17-CA-77, 17-CA-78 3
therefore does not capture the marked-lanes violation initially observed by Vogelmeier
but does show appellant slowly moving within his lane at a slow speed and, after a delay,
coming to a stop at a rest area.
{¶6} Vogelmeier approached the vehicle and asked appellant for his license and
insurance. He noted a “very slight odor” of raw marijuana emanating from inside the
vehicle. The eyes of both appellant and his passenger were very red and appellant’s
speech was slow and lethargic. Vogelmeier told appellant why he was stopped and
appellant said he swerved “to avoid an oversize load,” but Vogelmeier did not see an
oversize load traveling west.
{¶7} Vogelmeier asked appellant to exit the vehicle based upon the totality of the
circumstances: the marked-lanes violation, the slow speed, the fact that appellant was
slow to stop and weaved within his lane, the red eyes, and the odor of marijuana.
Vogelmeier placed appellant in the rear of the cruiser and he sat in the front, writing a
seat belt ticket for the passenger.
{¶8} Vogelmeier testified that as he sat in the cruiser with appellant, he weighed
whether he would ask appellant to submit to standardized field sobriety tests and/or
search the vehicle. The latter would require him to request another unit to the scene and
he considered doing so. He testified appellant was not behaving normally. As he spoke
to appellant, he noticed his eyes were extremely bloodshot. At first, appellant’s tone was
“excited” but as the conversation went on, appellant became unusually lethargic, to the
point that he seemed to be falling asleep in the back of the cruiser. The trooper asked
appellant whether he would find any illegal substances in the vehicle and appellant
replied, “Maybe a roach.”
Licking County, Cases 17-CA-77, 17-CA-78 4
{¶9} Vogelmeier was not comfortable with permitting appellant to drive away
because he doubted appellant’s ability to safely operate the vehicle. He decided to further
evaluate appellant by administering standardized and non-standardized field sobriety
tests.
{¶10} On the horizontal gaze nystagmus test (HGN), Vogelmeier did not observe
any clues indicating impairment, although he testified this result is not unusual for
someone under the influence of a substance other than alcohol. The trooper did note
that appellant’s eyes were “half closed” as he administered the test. He asked appellant
to recite the alphabet from the letter D to the letter N; appellant started with E and ended
with Z. Appellant was asked to count backward from 52 to 38 and he was able to do so.
On the walk-and-turn test, appellant exhibited seven out of eight possible clues, failing
the test: he moved his feet to keep balance, started before the instructions were complete,
stopped while walking to steady himself, did not touch heel to toe, raised his arms higher
than six inches for balance, stepped off the line while walking multiple times, and took an
incorrect number of steps. Appellant also failed the one-leg stand test by exhibiting two
clues: he raised his arms greater than six inches for balance and put his foot down.
Vogelmeier also administered a “modified Romberg (sic) test” in which appellant was
instructed to stand with his feet together, tilt his head back slightly, and estimate the
passing of thirty seconds. In Vogelmeier’s estimation, appellant counted too fast.
{¶11} Based upon the clues of impairment he observed, Vogelmeier placed
appellant under arrest. At the suppression hearing, he summarized that he believed
appellant was under the influence of alcohol, marijuana, or possibly a narcotic because
of the traffic violation, poor performance on the field sobriety tests, appellant’s unusual
Licking County, Cases 17-CA-77, 17-CA-78 5
behavior and delayed reaction time, his “stiff and rigid movements,” and swaying as
though his legs were heavy.
{¶12} The cruiser video, appellee’s Exhibit 1, captures the stop and audio of
appellant’s conversation with the trooper. The walk-and-turn test and one-leg stand test
are completed on the video, as is the “Romberg test” and the arrest.
{¶13} On March 11, 2017 appellant was charged by Uniform Traffic Ticket with
one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree,
and one count of driving in marked lanes pursuant to R.C. 4511.33, a minor misdemeanor.
Appellant entered pleas of not guilty and moved to suppress evidence related to his
warrantless arrest on the bases that the trooper lacked reasonable suspicion to detain
appellant and probable cause to arrest him. Appellee responded with a memorandum in
opposition and the matter proceeded to an evidentiary hearing. The trial court overruled
the motion to suppress with a Judgment Entry dated June 27, 2017.
{¶14} On September 5, 2017, appellant changed his pleas of not guilty to ones of
no contest, and the trial court found him guilty. Appellant was sentenced to, e.g., a jail
term of six days with three of those days to be served in a driver-intervention program.
{¶15} Appellant now appeals from the judgment entry of conviction and sentence,
and the trial court’s decision overruling his motion to suppress.
{¶16} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶17} “THE TRIAL COURT COMMITTED HARMFUL ERROR IN DETERMINING
THERE WAS REASONABLE SUSPICION TO REQUEST THE DEFENDANT-
APPELLANT TO PERFORM FIELD SOBRIETY TESTS.”
Licking County, Cases 17-CA-77, 17-CA-78 6
ANALYSIS
{¶18} In his sole assignment of error, appellant argues the trial court should have
granted appellant’s motion to suppress. We disagree.
{¶19} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App. 3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St. 3d 148, 154, 661 N.E.2d 1030
(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App. 3d 142, 145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App. 3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶20} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. 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 the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486,
597 N.E.2d 1141 (4th Dist.1991). 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. See, Williams, supra.
Licking County, Cases 17-CA-77, 17-CA-78 7
{¶21} Finally, an appellant may argue the trial court has incorrectly decided the
ultimate or final issues raised in a motion to suppress. When reviewing this 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 any given case.
State v. Curry, 95 Ohio App. 3d 93, 96, 620 N.E.2d 906 (8th Dist.1994). In the instant
case, appellant argues the trial court incorrectly decided the ultimate issue: whether
Vogelmeier had reasonable suspicion to ask appellant to perform the field sobriety tests.
The trial court found that Vogelmeier’s reasonable suspicion was supported by the totality
of the circumstances, and we agree. Our review of the record includes the transcript of
the suppression hearing, at which Vogelmeier was the only witness, and appellee’s
Exhibit 1, the cruiser video.
{¶22} The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.” State
v. Reece, 5th Dist. Delaware No. 17 CAC 03 0019, 2018-Ohio-150, --N.E.3d--, ¶ 9, citing
State v. Andrews, 57 Ohio St. 3d 86, 87–88, 565 N.E.2d 1271 (1991); State v. Bobo, 37
Ohio St. 3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States
has re-emphasized the importance of reviewing the totality of the circumstances in
making a reasonable-suspicion determination:
When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that
they must look at the “totality of the circumstances” of each case to
see whether the detaining officer has a “particularized and objective
Licking County, Cases 17-CA-77, 17-CA-78 8
basis” for suspecting legal wrongdoing. This process allows officers
to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them that “might well elude an untrained person.”
Although an officer's reliance on a mere “hunch” is insufficient to
justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard. United States
v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002),
citing United States v. Cortez, 449 U.S. 411, 417–418, 101 S. Ct. 690,
66 L. Ed. 2d 621 (1981).
State v. Reece, 5th Dist. Delaware No. 17 CAC 03 0019,
2018-Ohio-150, --N.E.3d--, ¶ 10, citing State v. Caplinger, 5th Dist.
Muskingum No. CT2013-0018, 2013-Ohio-5675, 2013 WL 6834807,
¶ 16.
{¶23} Appellant argues Vogelmeier did not have reasonable suspicion of further
criminal activity beyond the traffic violation that would justify prolonging the traffic stop for
the purpose of administering field sobriety tests. We have previously used the template
set forth by the Supreme Court of Ohio in State v. Batchili, 113 Ohio St. 3d 403, 2007-
Ohio-2204, 865 N.E.2d 1282, at paragraph two of the syllabus, to analyze the facts of a
traffic stop: “The ‘reasonable and articulable’ standard applied to a prolonged traffic stop
encompasses the totality of the circumstances, and a court may not evaluate in isolation
each articulated reason for the stop.” The intrusion on a driver’s liberty resulting from a
Licking County, Cases 17-CA-77, 17-CA-78 9
field-sobriety test is minimal, and the officer therefore need only have reasonable
suspicion the driver is under the influence of alcohol or other drug in order to conduct a
field-sobriety test. See, State v. Knox, 2nd Dist. Greene No. 2005-CA-74, 2006-Ohio-
3039; see also, State v. Bright, 5th Dist. Guernsey No. 2009-CA-28, 2010-Ohio-1111.
{¶24} Requesting a validly-detained motorist to perform field sobriety tests is
generally outside the scope of the original traffic 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, ¶ 18. In the
instant case, we find the totality of the circumstances provided Vogelmeier a
“particularized and objective basis” to suspect appellant was impaired, including the
marked-lanes violation, the slow speed, the delay in pulling over, appellant’s behavior,
speech, and red eyes, and the odor of marijuana.
{¶25} Appellant cites our decision in State v. Keserich, 5th Dist. Ashland No. 14-
COA-011, 2014-Ohio-5120, for the proposition that Vogelmeier did not observe enough
indicators of impairment to establish reasonable suspicion. In that case, we reversed the
decision of a trial court overruling a motion to suppress. Keserich was stopped for not
having a light illuminating his rear license plate. The officer observed bloodshot and
watery eyes, and the defendant admitted to having consumed two alcoholic beverages.
Based on those facts alone, the officer requested that Keserich perform field sobriety
tests. Explicitly limiting our holding to the facts of the case, we found the bloodshot eyes
could have been attributed to the fact that there were four or five other passengers in the
car who were smoking. Id., ¶ 9. We concluded that the possible explanation for the
bloodshot eyes, together with a stop based solely on an equipment violation with no
Licking County, Cases 17-CA-77, 17-CA-78 10
erratic driving, was not enough to form reasonable suspicion supporting a request to
perform field sobriety tests. Id. We noted our conclusion was largely premised upon the
equipment violation: “Of utmost significance to our decision is the fact the arresting officer
did not observe any moving violation, let alone a de minimis one, regarding Appellant's
operation of his vehicle.” Keserich, supra, 2014-Ohio-5120 at ¶ 15.
{¶26} The instant case is distinguishable from Keserich. First, appellant was
stopped for a traffic violation, not an equipment violation. Appellant acknowledged the
violation when he told the trooper he swerved to avoid an oversize load, an explanation
the trooper rejected. The totality of the circumstances beyond appellant's traffic violation,
however, gave the trooper sufficient indicia of impairment to establish a reasonable
suspicion to request appellant to submit to field sobriety testing. Although Vogelmeier
smelled only a slight odor of raw marijuana, appellant admitted “there might be a roach”
in the vehicle; his eyes were bloodshot and half-closed for most of the encounter; his
reactions were slow; and his speech and behavior were unusually lethargic. Based on the
totality of the circumstances, we find Vogelmeier had sufficient indicia of impairment to
establish a reasonable suspicion to request appellant to submit to field sobriety testing.
See, State v. Strope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 [“moderate” odor
of alcohol, red eyes, admission of consumption justified field sobriety tests]; State v. Cook,
5th Dist. Fairfield No. 06-CA-20, 2007-Ohio-707, ¶ 19 [odor of burnt marijuana alone with
no erratic driving, but driver “need not display every possible indication of being under the
influence in order for reasonable, articulable suspicion grounds to exist for the trooper to
proceed with field sobriety testing”].
Licking County, Cases 17-CA-77, 17-CA-78 11
{¶27} We note our review of the record and videotape supports the trooper’s
testimony. Appellant has obvious, visible difficulty completing the walk-and-turn and one-
leg stand tests.
{¶28} Based upon the totality of the circumstances, we find Vogelmeier “relied
upon specific, articulable facts giving rise to a reasonable suspicion appellant was driving
under the influence, that an extension of the initial detention for the performance of field
sobriety testing was justified, and the ruling of the trial court was correct.” Reece, supra,
2018-Ohio-150 at ¶ 17. Appellant’s sole assignment of error is therefore overruled.
CONCLUSION
{¶29} Appellant’s sole assignment of error is overruled and the judgment of the
Licking County Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.