State v. High , 99 N.E.3d 895 ( 2017 )

[Cite as State v. High, 2017-Ohio-8264.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0019-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
IAN E. HIGH MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellee CASE No. 16 TRC 04875
DECISION AND JOURNAL ENTRY
Dated: October 23, 2017
CALLAHAN, Judge.
{¶1} Appellant, the State of Ohio, appeals from the judgment of the Medina Municipal
Court, granting Appellee, Ian High’s, motion to suppress. This Court affirms.
I.
{¶2} Close to midnight one evening, Sergeant Scott Schmoll was dispatched to a home
on Stone Road because the man who lived there had threatened suicide. He arrived along with
two other officers and found that the man’s daughter and her husband, Mr. High, also had
responded to the scene. Mr. High sat in the driver’s seat of his truck with the engine running
while his wife entered her father’s home. An officer then spoke with him and asked him to turn
off his engine. Mr. High complied, but remained in the truck. Meanwhile, his wife, who was
intoxicated, became disruptive and was asked to return to the truck and leave. Before she did so,
the officer who had spoken with Mr. High notified Sergeant Schmoll that Mr. High also
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appeared to have been drinking. The officer told Sergeant Schmoll to speak with Mr. High
before allowing him to drive.
{¶3} When Sergeant Schmoll spoke with Mr. High, he immediately detected the odor
of alcohol on his breath. Mr. High admitted that he had consumed alcohol earlier that evening,
so Sergeant Schmoll asked him to step out of the vehicle. The sergeant then performed field
sobriety tests and observed multiple clues on each of the three tests he performed. Subsequently,
Mr. High completed a breathalyzer test and was found to have a blood alcohol content in excess
of the legal limit.
{¶4} Mr. High was charged with having physical control of a vehicle while under the
influence of alcohol, in violation of R.C. 4511.194(B)(1) and (B)(2). He filed a motion to
suppress, and a hearing was held on his motion. Following the hearing, the trial court granted his
motion.
{¶5} The State now appeals from the trial court’s ruling on the motion to suppress and
raises one assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE MEDINA MUNICIPAL COURT ERRED IN GRANTING APPELLEE’S
MOTION TO SUPPRESS EVIDENCE.
{¶6} In its sole assignment of error, the State argues that the trial court erred when it
granted Mr. High’s motion to suppress. Specifically, it argues that the totality of the
circumstances supported the conclusion that Sergeant Schmoll had reasonable suspicion to
conduct field sobriety testing. This Court disagrees.
{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
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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.” Id., citing State v. Mills, 62 Ohio
St.3d 357, 366 (1992). Thus, a reviewing court gives deference to and “must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8,
citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “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.” Burnside at ¶ 8, citing State v.
McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).
{¶8} “[A] police officer does not need probable cause to conduct a field sobriety test;
rather, he must simply have a reasonable suspicion of criminal activity.” State v. Slates, 9th Dist.
Summit No. 25019, 2011-Ohio-295, ¶ 24. “‘Reasonable suspicion’ is more than an ill-defined
hunch * * *.” State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 31 (9th Dist.).
“‘[R]easonable suspicion exists if an officer can point to specific and articulable facts indicating
that [an individual] may be committing a criminal act.’” State v. Osburn, 9th Dist. Wayne No.
07CA0054, 2008-Ohio-3051, ¶ 9, quoting Wadsworth v. Engler, 9th Dist. Medina No. 2844-M,
1999 Ohio App. LEXIS 5993, *9 (Dec. 15, 1999). “Reasonable suspicion is based on the totality
of the circumstances.” State v. Hochstetler, 9th Dist. Wayne No. 16AP0013, 2016-Ohio-8389, ¶
10.
{¶9} In reaching its decision, the trial court made each of the following findings.
Sergeant Schmoll and Deputies Clinage and Telakto responded to a home shortly before 11:00
p.m. because the man who lived there had threatened self-harm. The man’s daughter was also
present, along with her husband, Mr. High. Mr. High remained seated in the driver’s seat of his
truck and left it running until Deputy Clinage spoke with him and told him to turn it off.
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Meanwhile, Sergeant Schmoll spoke with Mr. High’s wife, told her she was clearly intoxicated,
and asked her to return to her husband’s truck and leave. Deputy Clinage then told Sergeant
Schmoll that he “might want to check [Mr. High].”
{¶10} When Sergeant Schmoll spoke with Mr. High, he detected the odor of alcohol on
his breath. He then asked Mr. High about the odor, and Mr. High said he had “consumed ‘a few
beers with dinner,’ and moments later that he had consumed ‘a couple beers.’” Sergeant
Schmoll did not characterize the intensity of the odor or observe any other indicia of intoxication
such as red, glossy, or bloodshot eyes, slurred speech, overly deliberate speech, or lack of
coordination. Mr. High was cooperative during the encounter, and there was no evidence of any
erratic driving, as Mr. High’s truck was parked. In granting the motion to suppress, the court
concluded that “[t]he unspecified odor of an alcoholic beverage coming from an individual’s
breath, combined solely with the admission of consumption of a few beers * * * does not create a
reasonable and articulable suspicion that [he] has committed some criminal activity * * *.”
{¶11} The State does not challenge any particular factual finding that the trial court
made. Instead, it challenges the court’s ultimate legal conclusion. The State argues that, based
on the totality of the circumstances, Sergeant Schmoll had reasonable suspicion to believe Mr.
High was impaired and to subject him to field sobriety testing. Because the State limits its
argument to the court’s ultimate legal conclusion, this Court accepts the trial court’s factual
findings as true and considers the law as applied to those factual findings. See Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8.
{¶12} Importantly, Sergeant Schmoll was the only witness to testify at the suppression
hearing. The State did not call Deputy Clinage as a witness, so he was not there to explain what
particular observations he made when he spoke to Mr. High. Moreover, Sergeant Schmoll did
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not know what particular observations the deputy made. The trial court only found that Deputy
Clinage told Sergeant Schmoll he “might want to check [Mr. High].” There was no evidence,
therefore, that Deputy Clinage made any particular observations that would support a finding of
impairment.
{¶13} Though Sergeant Schmoll testified that he detected the odor of alcohol on Mr.
High’s breath, the State never asked him to characterize the odor. Thus, he did not specify
whether it was slight, moderate, or strong. Compare State v. Kodman, 9th Dist. Medina No.
06CA0100-M, 2007-Ohio-5605, ¶ 1, 4 (strong odor of alcohol and admission to having
consumed four beers provided reasonable suspicion); State v. Blackburn, 115 Ohio App.3d 678(7th Dist.1996) (strong odor of alcohol and admission to having consumed “a few beers”
provided reasonable suspicion). Though Mr. High admitted to having “a few” or “a couple”
beers, Sergeant Schmoll never asked him exactly how many beers it was or exactly when he had
consumed them. Compare State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-
2530, ¶ 25 (defendant’s claim that he had stopped drinking almost seven hours earlier was a
factor in support of reasonable suspicion where officer still detected a moderate odor of alcohol
on defendant’s breath). The sergeant never testified as to any red, glossy, or bloodshot eyes, any
slurred speech, any difficulties with coordination, or any belligerent behavior. Compare State v.
Thayer, 9th Dist. Medina No. 11CA0045-M, 2012-Ohio-3301, ¶ 4, 29 (red, glassy eyes, strong
odor of alcohol, and admission to having consumed four drinks provided reasonable suspicion).
Further, he never testified that his suspicions were aroused as a result of any other factors such as
the late hour, the fact that Mr. High’s passenger (i.e., his wife) was clearly intoxicated, or the fact
that Mr. High chose to remain seated in his truck rather than accompany his wife inside or
voluntarily interact with the officers. The only evidence the State presented was that Mr. High’s
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breath smelled of alcohol and he admitted to drinking “a few” or “a couple” of beers at some
earlier point.
{¶14} This Court has held that even a mild odor of alcohol can provide reasonable
suspicion for field sobriety testing when paired with other factors such as a traffic infraction,
bloodshot eyes, and an admission to having consumed two beers. See State v. Tomko, 9th Dist.
Summit No. 19253, 1999 Ohio App. LEXIS 5133, *8-9 (Nov. 3, 1999). Yet, this Court cannot
conclude that the result is the same when an unspecified odor of alcohol is paired strictly with an
admission to having had a few beers. “For better or worse, the law prohibits drunken driving,
not driving after a drink.” (Emphasis sic.) State v. Taylor, 3 Ohio App.3d 197, 198 (1st
Dist.1981). Accord State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075. Likewise,
it is only a crime to be in physical control of a vehicle while under the influence. R.C.
4511.194(B)(1). The fact that Mr. High had been drinking was not enough to subject him to
field sobriety testing. If Sergeant Schmoll suspected that Mr. High was impaired, it was his duty
to substantiate his hunch by asking additional questions. See Hunter, 2002-Ohio-7326, at ¶ 31.
Similarly, if the State had other evidence that Mr. High was impaired (e.g., any testimony
Deputy Clinage might have given), it was the State’s duty to present that evidence at the hearing.
Neither Sergeant Schmoll, nor the State acted to ensure proof of reasonable suspicion.
{¶15} This Court in no way condones the act of drinking and driving, but the law
criminalizes the act only if an individual indulges to the point of intoxication or impairment. See
Taylor at 198; Reed at ¶ 18, 27. Based on the record before this Court, the State simply did not
produce enough evidence to show that Sergeant Schmoll possessed “‘specific and articulable
facts indicating that [Mr. High] [was] committing a criminal act.’” Osburn, 2008-Ohio-3051, at
¶ 9, quoting Engler, 1999 Ohio App. LEXIS 5993, at *9. See also State v. Davis, 140 Ohio
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App.3d 659, 664-665 (9th Dist.2000). Without more, this Court has no choice but to conclude
that the trial court acted properly when it granted Mr. High’s motion to suppress. The State’s
sole assignment of error is overruled.
III.
{¶16} The State’s sole assignment of error is overruled. The judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, 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.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
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CARR, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
J. MATTHEW LANIER, Prosecuting Attorney, for Appellant.
DAVID C. SHELDON, Attorney at Law, for Appellee.