State v. Roth , 2014 Ohio 984 ( 2014 )

[Cite as State v. Roth, 2014-Ohio-984.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-13-10
v.
WILLIAM L. ROTH, OPINION
DEFENDANT-APPELLANT.
Appeal from Napoleon Municipal Court
Trial Court No. 12 TRC 00686 A, B
Judgment Affirmed
Date of Decision: March 17, 2014
APPEARANCES:
William F. Hayes for Appellant
Paul A. Skaff for Appellee
Case No. 7-13-10
SHAW, J.
{¶1} Defendant-appellant, William L. Roth (“Roth”), appeals the August 6,
2013 judgment of the Napoleon Municipal Court journalizing his conviction by a
jury for operating a vehicle while under the influence of alcohol and operating a
vehicle while under the influence of alcohol with refusal, and finding him guilty of
driving left of center. Roth assigns as error the trial court overruling his motion to
suppress evidence based upon his interaction with a member of the Damascus
Township Fire and Rescue crew. As grounds for suppression, Roth claimed that
he was unlawfully “seized” in prohibition of the Fourth Amendment to the United
States Constitution.
{¶2} On March 23, 2012, at 5:06 p.m., the Damascus Township Fire and
Rescue responded to a call regarding a traffic accident at the intersection of U.S. 6
and S.R. 65 in the Village of McClure located in Henry County, Ohio. The traffic
accident occurred when Roth, who was operating a motorcycle without a helmet,
drove left of center and collided with another individual driving a pizza delivery
truck. Emergency medical personnel made contact with Roth, who had visible
cuts and abrasions on his face and arms. Roth’s glasses were also broken during
the accident and his nose was bleeding. Roth was examined by the fire and rescue
crew and treated at the scene. Roth refused to be transported to a hospital for
further medical evaluation.
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{¶3} While the fire and rescue crew was attending to Roth, a Henry County
Sheriff’s Deputy briefly stopped by the scene while en route to a “welfare check”
concerning a domestic violence call. Upon observing that Roth’s injuries were
minor and upon learning that the State Highway Patrol was on its way, the Deputy
left the scene and continued on to the domestic violence call.
{¶4} Several minutes later, at 5:29 p.m., Trooper Fitzgerald of the State
Highway Patrol arrived on the scene. Trooper Fitzgerald made contact with Roth.
During his interaction with Roth, Trooper Fitzgerald detected an odor of alcoholic
beverage. Trooper Fitzgerald asked Roth to sit in his cruiser so that he could get a
statement regarding the accident from Roth. While in the cruiser, Trooper
Fitzgerald again detected an odor of alcoholic beverage coming from Roth.
Trooper Fitzgerald asked Roth if he had recently consumed any alcoholic
beverages. Roth claimed that he had been drinking the previous evening and had
yet to take a shower or change his clothes.
{¶5} Roth agreed to submit to a series of standardized field sobriety tests
and a preliminary breath test on a portable device. Based on the odor of alcoholic
beverage, Roth’s performance on the standardized field sobriety tests, and the
results of the preliminary breath test, which indicated a BAC of .086, Trooper
Fitzgerald determined Roth to be impaired and placed him under arrest for
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operating a vehicle while under the influence of alcohol. Roth refused any further
impairment testing while in custody.
{¶6} On March 26, 2012, Roth was charged with operating a vehicle while
under the influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a);
refusing to submit to a chemical test of his blood, breath, or urine (“OVI with
refusal”), in violation of R.C. 4511.19(A)(2)(a); and driving left of center, in
violation of R.C. 4511.29. The complaint also noted that this offense was Roth’s
third OVI offense in six years. Roth pled not guilty to the charges.
{¶7} On June 20, 2012, Roth filed a motion requesting the trial court to
suppress any evidence obtained as a result of an unlawful seizure. Specifically,
Roth asserted in his motion that after he was treated and cleared by the fire and
rescue crew and had exchanged insurance information with the other driver, “a
member of the Damascus Township Fire and Rescue advised [him] that he was not
free to leave and [he] was forced to wait for the police to arrive.” (Doc. No. 14 at
3). Roth claimed that this constituted an unlawful “seizure” by the Damascus
Township Fire and Rescue because the crew member had no probable cause to
detain him.
{¶8} On June 28, 2012, the trial court held a hearing on Roth’s motion to
suppress where several witnesses testified. Notably, David Badenhop, the
member of the Damascus Township Fire and Rescue crew who allegedly made
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statements to Roth preventing him from leaving the accident scene until law
enforcement arrived was not called to testify as a witness at the suppression
hearing.
{¶9} The following testimony was adduced at the suppression hearing.
{¶10} Joel Ward, the volunteer fire chief with the Damascus Township Fire
and Rescue, testified that he arrived at the accident scene roughly a minute after
receiving the dispatch call. He testified that he made contact with Roth and
persuaded him to have his injuries assessed by the ambulance crew. Ward recalled
that even though Roth’s medical assessment demonstrated that he did not suffer
any significant injuries, standard emergency medical protocol required the
ambulance crew to contact a doctor and get confirmation of their assessment
before releasing Roth. Ward recalled that the ambulance crew was still on the
scene at the time Trooper Fitzgerald arrived.
{¶11} Ward also testified that he did not order Roth to remain at the scene
nor did he hear any member of his crew do so. Ward explained that he had no
authority to keep Roth at the scene and, if Roth had indicated to him that he was
leaving, his only course of action would have been to call dispatch and notify them
of Roth’s departure.1 Ward also testified that he was the only contact between the
dispatcher and the crew at the scene. He recalled contacting the dispatcher prior to
1
Ward testified that the dispatcher worked for the Henry County Sheriff’s Office.
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the arrival of law enforcement and inquiring about “an ETA” for the State
Highway Patrol because the accident participants were free to leave and in the
process of leaving. (Tr. at 17). Ward testified that he then heard sirens and
estimated that “thirty seconds or so” elapsed between the time he contacted
dispatch and Trooper Fitzgerald’s arrival. (Id. at 18).
{¶12} Deputy Vocke testified that he was at the accident scene for
approximately thirty seconds before continuing on to another call. He made
contact with Fire Chief Wade and informed him that the State Highway Patrol was
on their way to handle the accident investigation. Deputy Vocke testified that he
did not instruct anyone on the fire and rescue crew to keep Roth at the scene until
the arrival of the State Highway Patrol.
{¶13} Trooper Fitzgerald testified that he was travelling from Wood
County when he received the dispatch call and arrived at the accident scene at 5:29
p.m., approximately twenty three minutes later. He recalled that while he was en
route to the accident location the dispatcher informed him that the driver of the
motorcycle was leaving the scene and that the Damascus Fire and Rescue crew
was attempting to keep him there. He stated that he did not tell dispatcher or
anyone else to keep Roth at the scene until he arrived. Trooper Fitzgerald also
testified that he was never advised of a possible OVI before arriving at the scene
and had no reason to suspect an OVI until he made contact with Roth.
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{¶14} Roth testified that after he exchanged insurance and contact
information with the other driver, his friend, Ray Rutledge, arrived at the accident
scene to drive Roth’s motorcycle home for him. Roth recalled that Rutledge was
on the motorcycle and Roth was helping him get it started when Badenhop walked
to the front of the motorcycle, told Roth and Rutledge that they could not leave,
and asked them to turn off the motorcycle. Roth explained that he had intended to
leave in a car once he assisted Rutledge in getting the motorcycle started.
Notably, the trial court sustained an objection raised by the prosecution on the
grounds of hearsay that prevented Roth from testifying to the specific statements
Badenhop allegedly made to him and Rutledge regarding them leaving the
accident scene. Neither Badenhop nor Rutledge testified at the suppression
hearing.
{¶15} After hearing the evidence before it, the trial court overruled Roth’s
motion to suppress finding that the evidence failed to demonstrate that Roth was
prevented from leaving the scene of the accident or that he was subjected to a
custodial situation.
{¶16} The trial court conducted a jury trial and Roth was convicted on all
three counts. The trial court sentenced Roth to serve 180 days in jail with 120
days suspended and ordered him to pay a fine of $850.00, plus court costs.2
2
The trial court initially issued its judgment entry of conviction and sentence on December 6, 2012 and an
appeal of that judgment was filed by Roth. However, this Court dismissed the appeal because the judgment
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{¶17} Roth now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT/APPELLANT “MR. ROTH” BY EXCLUDING
EVIDENCE AS “HEARSAY,” WHEN IT CLEARLY WAS
NOT, AT THE SUPPRESSION HEARING DESPITE THE
WELL ESTABLISHED RULE THAT THE RULES OF
EVIDENCE DO NOT APPLY TO SUPPRESSION
HEARINGS.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT/APPELLANT IN FAILING TO SUPPRESS
THE OBSERVATIONS OF, AND EVIDENCE OBTAINED BY,
THE POLICE AS A RESULT OF THE
UNCONSTITUTIONAL SEIZURE OF THE
DEFENDANT/APPELLANT’S VEHICLE. THE SEIZURE
WAS UNCONSTITUTIONAL AS THE PARAMEDIC
ACTING AS AN AGENT OF THE GOVERNMENT DID NOT
HAVE A REASONABLE, ARTICULABLE BASIS TO STOP
DEFENDANT FROM LEAVING UNDER THE FOURTH
AMENDMENT OF [SIC] THE UNITED STATES
CONSTITUTION.
{¶18} For ease of discussion, we elect to address the assignments of error
together.
First and Second Assignments of Error
{¶19} On appeal, Roth argues that the trial court erred in excluding his
testimony regarding statements made to him by a member of the Damascus
was not a final order. The trial court subsequently issued its August 13, 2013 judgment entry of conviction
and sentence which is the subject of this appeal.
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Township Fire and Rescue crew on the grounds of inadmissible hearsay. Roth
also argues that the trial court erred in overruling his motion to suppress.
{¶20} We will first address Roth’s contention regarding the trial court’s
ruling on his motion to suppress. A review of the denial of a motion to suppress
involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003–Ohio–5372, ¶ 8. At a suppression hearing, the trial court assumes the role of
trier of fact and, as such, is in the best position to evaluate the evidence and the
credibility of witnesses. State v. Carter, 72 Ohio St.3d 545, 552 (1995). When
reviewing a ruling on a motion to suppress, deference is given to the trial court’s
findings of fact so long as they are supported by competent, credible evidence.
Burnside at ¶ 8. With respect to the trial court’s conclusions of law, however, our
standard of review is de novo and we must decide whether the facts satisfy the
applicable legal standard. State v. McNamara, 124 Ohio App.3d 706, 710 (4th
Dist. 1997).
{¶21} On appeal, Roth claims he was unlawfully “seized” by Dave
Badenhop, a member of the Damascus Township Fire and Rescue crew, when,
according to Roth, Badenhop stepped in front of his motorcycle and advised Roth
and his friend that they had to remain at the accident scene until law enforcement
arrived. Specifically, Roth argues that at the time of his encounter with Badenhop
he had already been cleared by the ambulance crew and had exchanged insurance
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information with the other driver and therefore was under no obligation to remain
at the scene of the accident. Roth further asserts that Badenhop did not have
probable cause to detain him and that any evidence obtained by Trooper Fitzgerald
subsequent to Roth’s “unlawful detention” by Badenhop should be suppressed.
{¶22} “ ‘The fourth amendment protects the privacy and personal security
of individuals from arbitrary and oppressive interference by limiting the search-
and-seizure authority of law enforcement officials.’ ” State v. Gardner, 135 Ohio
St.3d 99, 2012-Ohio-5683, ¶ 17, quoting Wanger v. Bonner, 621 F.2d 675, 681
(5th Cir.1980). “In a Fourth Amendment context, the judicially-created
exclusionary rule, created to deter illegal police conduct, provides that evidence
obtained through unconstitutional searches and seizures is subject to exclusion and
prospectively inadmissible.” State v. Starkey, 11th Dist. Portage No. 2012–P–
0038, 2012-Ohio-6219, ¶ 25, citing U.S. v. Leon, 468 U.S. 897, 916 (1984).
{¶23} In the case sub judice, Roth has failed to establish that he was in fact
“seized” by law enforcement officials. First, other than Roth’s own testimony,
there was no evidence presented at the suppression hearing to support Roth’s
contention that Badenhop prevented him from leaving the location of the accident.
Fire Chief Wade explicitly stated that he did not observe any member of his crew
advise Roth to remain at the scene. Wade also acknowledged that he had no
authority to keep Roth at the accident scene if Roth had attempted to leave.
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Wade’s testimony on this point is corroborated by the fact that he called dispatch
to inform them that the accident participants were free to leave the scene and
inquired about the estimated arrival time of law enforcement.
{¶24} Moreover, the timeline established by the testimony at the
suppression hearing demonstrated that a matter of minutes elapsed from the time
Roth was cleared by the ambulance crew and Trooper Fitzgerald’s arrival.
Additionally, Roth fully cooperated with Trooper Fitzgerald’s investigation by
sitting in his cruiser and voluntarily giving him a statement regarding the details of
the accident. In short, there was no evidence presented at the suppression hearing
to corroborate Roth’s version of the events that he felt that he was not free to leave
the scene of the accident prior to the arrival of law enforcement.
{¶25} Second, even if Badenhop had made statements to Roth indicating
that he was not free to leave, Roth has failed to demonstrate that Badenhop was a
law enforcement official. Testimony at the suppression hearing revealed that the
members of the Damascus Township Fire and Rescue crew are volunteers who are
compensated $10.00 per call by the Township. Roth argues that this minimal
compensation, combined with fact that the Township pays for the crew’s
equipment and machinery as well as the firehouse utilities, is sufficient to establish
a governmental/law enforcement nexus for purposes of a Fourth Amendment
analysis.
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{¶26} However, Roth cites no authority to support this contention. To the
contrary, the relevant case law on this issue dictates that in this case there must
have been some evidence that Badenhop acted at the direction or as an agent of
law enforcement. See e.g., State v. Archer, 197 Ohio App.3d 570, 2011-Ohio-
5471, ¶ 22 (7th Dist.); State v. Ellis, 2d Dist. Greene No. 05CA78, 2006-Ohio-
1588, ¶ 14. In other words, there must have been evidence of “a great deal of
entanglement” between Badenhop’s conduct and law enforcement for the alleged
seizure in this case to have implicated Fourth Amendment protection. State v.
Cook, 149 Ohio App.3d 422, 426, 2002-Ohio-4812 ¶ 11 (2d Dist.). Here, both
Deputy Vocke and Trooper Fitzgerald testified that they never instructed anyone
at the accident scene to keep Roth at the location until law enforcement arrived.
Moreover, Trooper Fitzgerald testified that it was not until he made contact with
Roth, and detected an odor of alcoholic beverage, that he first became suspicious
that Roth had possibly committed an OVI offense.
{¶27} Next, Roth argues that the trial court erred in excluding his testimony
regarding the specific statements Badenhop allegedly made to him. Roth argues
that his testimony on this matter was not hearsay but rather was offered to explain
his conduct under the circumstances. Roth further maintains that even if his
testimony was hearsay, the trial court erred in excluding it because hearsay is
permissible at suppression hearings.
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{¶28} We acknowledge that in some instances in a suppression hearing a
trial court “ ‘may rely on hearsay and other evidence, even though that evidence
would not be admissible at trial.’ ” Maumee v. Weisner, 87 Ohio St.3d 295, 298
(1999), quoting United States v. Raddatz, 447 U.S. 667, 679 (1980). However, a
trial court still retains discretion to determine the admissibility of evidence at a
suppression hearing—i.e., the inherent reliability and relevance of the evidence
being offered. See State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989).
{¶29} Here, Roth was attempting to testify to specific statements allegedly
made by Badenhop to corroborate his own testimony that Badenhop prevented
him from leaving the accident scene. For reasons not apparent in the record, Roth
chose not to call Badenhop as a witness at the suppression hearing and there is
nothing in the record to suggest that Badenhop was unavailable to testify at the
hearing. Even without the specific statements, Roth was still able to testify to his
interaction with Badenhop and the circumstances contributing to him feeling that
he was not free to leave the accident scene. However, as previously mentioned,
none of the other witnesses provided testimony to support Roth’s position.
{¶30} Even assuming arguendo that the trial court should have allowed
Roth’s testimony at the suppression hearing, Roth has failed to demonstrate that
the admission of this evidence would have changed the trial court’s ruling on his
motion to suppress and therefore he has failed to demonstrate that he suffered
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prejudice as a result of the trial court’s exclusion of the evidence as hearsay. See
Crim.R. 52(A); State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989).
{¶31} For all these reasons, we find no error in the trial court’s decision to
overrule Roth’s motion to suppress. Accordingly, the assignments of error are
overruled and the judgment of the Napoleon Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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