State v. Martorana , 2023 Ohio 662 ( 2023 )

[Cite as State v. Martorana, 2023-Ohio-662.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-22-011
Appellee Trial Court No. 21-TRC-3644
v.
Alisha Martorana DECISION AND JUDGMENT
Appellant Decided: March 3, 2023
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Nathan VanDenBerghe, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Alisha Martorana, appeals the May 13, 2022 judgment
of the Sandusky County Court #1, convicting her of operating a vehicle while under the
influence of drugs or alcohol and driving left of center, and denying her motion to
suppress evidence. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} Alisha Martorana was charged with operating a vehicle while under the
influence of drugs or alcohol, a violation of R.C. 4511.19(A)(1)(a), a first-degree
misdemeanor, and driving left of center, a violation of R.C. 4511.25, a minor
misdemeanor. She filed a motion to suppress evidence, which the trial court denied in a
judgment entered February 15, 2022. After her motion was denied, Martorana entered a
plea of no contest to both charges. The trial court found her guilty and sentenced her to
180 days in jail with 170 days suspended. Her conviction and sentence were
memorialized in a judgment entered on May 13, 2022.
{¶ 3} According to the evidence presented at the suppression hearing, on August
3, 2021, at approximately 10:00 p.m., Trooper Rebecca Tent, of the Ohio State Highway
Patrol, was dispatched to a reckless operation call on U.S. Route 6 near County Road
298. The caller—who provided his name and phone number—reported that he was
following behind a vehicle that was being operated recklessly, unable to maintain its lane,
driving westbound on U.S. Route 6. Tent was driving eastbound, and observed the
vehicle veer left of center into her lane—half a car length over the centerline—prompting
her to apply her brakes to avoid being hit. She pulled around into the westbound lane and
caught up to the vehicle. The vehicle was “bouncing between the lanes” and following
too closely behind the truck in front of it. Tent activated her lights to initiate a stop of the
2.
vehicle. When the vehicle did not immediately pull over, Tent activated her sirens, and
the vehicle pulled to the side of the road.
{¶ 4} Upon approaching the vehicle, the driver—Alicia Martorana—told Tent, “I
don’t blame you for stopping me.” She said she was tired. Tent asked for her driver’s
license and, at some point, requested her registration and proof of insurance. Martorana
began reaching around in the vehicle, looking for her driver’s license. Not able to see
exactly where Martorana was reaching, Tent told her to stop reaching around and just
give her her social security number; Martorana complied. Tent again asked for her
registration and Martorana produced an image of her insurance card from her cellphone.
Tent observed that Martorana’s eyes were red, bloodshot, and glassy.
{¶ 5} Based on the information known to Tent at that time—the reckless operation
call, Martorana driving left of center, driving too closely behind the truck, and
“bouncing” within her lane, her red eyes, her demeanor, her reaching around and inability
to focus on one task, and her presentation of her insurance card instead of her
registration—Tent suspected that Martorana was under the influence of drugs, and she
ordered Martorana out of the vehicle to determine whether she was impaired.
{¶ 6} Before performing any field-sobriety tests, Tent asked Martorana if she had
any recent head or neck injuries or was currently taking any prescription medications.
Martorana told Tent that she had a hip replacement and was currently taking
antidepressants, acid medication, and suboxone.
3.
{¶ 7} Tent administered the horizontal and vertical gaze nystagmus tests (“HGN”
and “VGN”) and observed four clues of impairment. She attempted to administer the
walk-and-turn and one-leg-stand tests, but Martorana was having problems following
instructions and was so unbalanced that Tent was concerned about her performing these
tests so close to the roadway. Martorana attributed her inability to perform the tests to
her hip surgery, but also told Tent, “I couldn’t even do this sober.” Tent determined that
she had probable cause and arrested Martorana for operating a vehicle while under the
influence of drugs or alcohol (“OVI”). The recording from Tent’s dashboard camera was
presented at the hearing.
{¶ 8} Following her conviction and sentencing, Martorana appealed. She assigns
a single error for our review:
The Trial Court erred when it denied Appellant’s Motion to
Suppress Evidence.
II. Law and Analysis
{¶ 9} Martorana’s sole assignment of error challenges the constitutionality of the
initial traffic stop and the trooper’s continued detention of her for the purpose of
conducting field sobriety tests. She argues that Tent lacked probable cause or reasonable
articulable suspicion for either. She maintains that the trial court erred when it denied her
motion to suppress evidence.
4.
{¶ 10} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
When the trial court considers a motion to suppress, it acts as the factfinder and is in the
best position to resolve factual questions and to evaluate the credibility of witnesses. Id.We, therefore, must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. Id. Our role then is to independently determine, without
deference to the trial court’s conclusion, whether the facts satisfy the applicable legal
standard. Id.{¶ 11} The trial court made findings of fact in its judgment denying Martorana’s
motion. It found that Tent was dispatched based on a call from a truck driver who
observed Martorana driving recklessly in the westbound lane of U.S. Route 6. While
driving eastbound, Tent observed the vehicle veer half a car width into her lane of travel,
prompting her to brake to avoid a collision. Tent turned around into the westbound lane
and once she was behind Martorana, she observed that she was following too closely
behind a semi-truck and “drift[ed] over the double yellow line.” The resolution of the
video was not of sufficient quality to portray the initial left of center, however, “the left
of center after she began the pursuit was observable.”
{¶ 12} The court found that Martorana stopped her vehicle within a reasonable
time after Tent activated her siren, but “did not seem to respond to the lights only.” Tent
observed that Martorana’s eyes were red and “she was unable to focus on the task of
5.
finding her registration.” Tent administered the HGN and observed four clues, but
Martorana was “unwilling” to complete the one-stand test, and stated, “I couldn’t even do
this sober.”
{¶ 13} Before addressing the specifics of Martorana’s arguments, we address three
of the trial court’s factual findings. First, we agree with the trial court that the initial left-
of-center is not visible in the recording taken from Tent’s dashboard camera; there is
significant glare from the headlights of the westbound traffic and the resolution is poor.
The finding that Martorana’s vehicle veered left of center is based on Tent’s hearing
testimony. As the trial judge was in the best position to determine the credibility of
Tent’s testimony, we will not disturb this finding, and we conclude that it is supported by
competent, credible evidence.
{¶ 14} Second, we disagree with the trial court’s finding that after Tent got behind
her, Martorana’s vehicle drifted “over the double yellow line.” (Emphasis added.) We
find—and the state concedes—that there was no double yellow line; dotted, broken lines
divided the eastbound and westbound lanes. Accordingly, the trial court’s finding that
the highway was divided by a double yellow line is not supported by competent, credible
evidence.
{¶ 15} Third, we disagree with the trial court’s finding that once Tent was behind
Martorana’s vehicle, Martorana “drift[ed] over” the line. (Emphasis added.) The video
shows that Martorana’s vehicle certainly drifted within her lane, but it is impossible to
6.
see whether her vehicle drifted over the line. Tent clarified at the hearing that
Martorana’s vehicle was “bouncing between the lanes,” but she testified that she had not
stated that Martorana’s vehicle had veered over the line at that time (“I did not state that
she went left of center here).” Because it is not clear from the video that Martorana’s
vehicle drifted over the line, and Tent clarified that she “did not state that she went left of
center” while Tent was following her, the trial court’s finding that Martorana’s vehicle
drifted “over” the line is not supported by competent, credible evidence.
{¶ 16} All of the trial court’s other factual findings are supported by competent,
credible evidence, except that it may have been more appropriate to say that Martorana
was “unable”—rather than “unwilling”—to perform the one-stand test.
{¶ 17} Having reviewed the trial court’s factual findings, we address Martorana’s
specific arguments.
A. The Initial Stop
{¶ 18} Martorana first challenges Tent’s initial stop of her vehicle. She argues
that Tent lacked “probable cause or reasonable suspicion” of a traffic violation to initiate
the stop. Martorana claims that (1) Tent’s contention that she crossed into the eastbound
lane of traffic is not supported by the dash cam video; (2) “bouncing between”—but not
over—the lanes, did not provide a basis for initiating a traffic stop; (3) although Tent
testified that a vehicle should maintain a distance of one car length for every ten miles per
hour, the statute does not say this, Tent did not testify how fast Martorana was driving,
7.
Tent was too far away to estimate the distance between Martorana’s vehicle and the
truck, and the video does not show that she was following too closely; and (4) the area in
question was a marked passing zone, so if she did, in fact, drive left of center, it could
have been a lawful attempt to pass the vehicle ahead of her.
{¶ 19} The state responds that (1) Tent was provided with presumptively reliable
information from a citizen eyewitness who said that the vehicle was unable to maintain
its lane; (2) Tent personally observed Martorana cross the center line into the eastbound
lane even though it was not visible on the recording; (3) the information provided by the
caller suggested that Martorana did not cross the center line in an attempt to pass a
vehicle; (4) Tent’s observation of Martorana’s vehicle crossing left of center provided
reasonable suspicion for the initial stop; and (5) Tent did not initiate the stop based on
Martorana’s vehicle bouncing between lanes or following too closely, but when
combined with the tip and the trooper’s observations, these factors added to the totality of
the circumstances supporting reasonable suspicion. As noted above, the state concedes
that the dividing line was a broken yellow line and not a double yellow line, but it
emphasizes that the recording also showed Martorana’s vehicle bouncing between lanes
and following the truck too closely.
{¶ 20} “The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution guarantee the right to be free from unreasonable
searches and seizures.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d
8.
1204, ¶ 7, citing State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). “A traffic
stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and
therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North
Carolina, 574 U.S. 54, 60, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). This type of seizure
is justified if an officer has a “reasonable suspicion”—i.e., “a particularized and objective
basis” to suspect—that the person stopped has broken the law. Id. at 60. In other words,
a traffic stop is constitutionally valid if an officer has a reasonable and articulable
suspicion that a motorist has committed a traffic violation. Mays at ¶ 7-8.
{¶ 21} Martorana repeatedly states that Tent lacked “probable cause or reasonable
suspicion” to initiate an investigatory stop. As the authority cited above demonstrates,
only reasonable suspicion was required. See Heien at 60, quoting Prado Navarette v.
California, 572 U.S. 393, 396 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (clarifying that
“only ‘reasonable suspicion’—that is, ‘a particularized and objective basis for suspecting
the particular person stopped’ of breaking the law”—is required to justify a traffic stop).
{¶ 22} Under R.C. 4511.25(A), “[u]pon all roadways of sufficient width, a vehicle
* * * shall be driven upon the right half of the roadway * * *.” This court has recognized
that “[w]hen an officer observes a vehicle travel left of the centerline, the officer has a
reasonable and articulable suspicion that the driver has violated R.C. 4511.25.” State v.
Pelham, 6th Dist. Wood No. WD-13-020, 2013-Ohio-4524, ¶ 9. Accordingly, Tent’s
observation of Martorana veering left of center provided her with reasonable suspicion
9.
that Martorana violated R.C. 4511.25(A) and provided a sufficient basis to initiate a
traffic stop.
{¶ 23} Martorana points out that under R.C. 4511.25(A)(1), “a driver may enter
the opposite lane of travel in order to overtake and pass another vehicle proceeding in the
same direction.” This is true, and it could provide a legal defense to a charged violation
of R.C. 4511.25(A). Pelham at ¶ 9. But the Ohio Supreme Court held in State v. Mays,
119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 17, that “[a]n officer is not
required to determine whether someone who has been observed committing a crime
might have a legal defense to the charge.” Applying this principle to the same statute at
issue here, this court has held that a driver’s possible defense to driving left of center
under R.C. 4511.25(A)(1)-(5) does not render a stop of the vehicle illegal. Pelham at ¶ 9,
citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 13. See
also State v. Rubsam, 9th Dist. Medina No. 18CA0089-M, 2019-Ohio-2153, ¶ 10.
{¶ 24} Accordingly, we conclude that Tent had reasonable suspicion of a violation
of R.C. 4511.25(A) when she saw Martorana’s vehicle veer left of center. The initial
stop of Martorana’s vehicle was legally justified.
B. The Field Sobriety Tests
{¶ 25} Martorana argues that Tent lacked reasonable suspicion of impairment to
justify further detaining her to administer field sobriety tests. She emphasizes that (1) she
did not admit to consuming drugs or alcohol and the trooper saw none; (2) red eyes are
10.
consistent with fatigue; (3) the video does not support Tent’s claim that Martorana was
driving erratically; (4) the tipster did not correctly describe Martorana’s vehicle and
stated only that Martorana was not maintaining her lane of travel, without providing any
more specific information; (5) she didn’t fumble or drop documents; (6) she wasn’t
uncooperative or belligerent; (7) while she provided a copy of her insurance instead of
her registration, Tent had asked her for proof of insurance at the beginning of the stop.
{¶ 26} The state responds that several factors weigh in favor of Tent’s reasonable
suspicion to conduct field sobriety tests, including (1) the time of night (10:00 p.m.); (2)
the call from a concerned motorist who reported that Martorana’s vehicle was unable to
maintain its lane; (3) Tent’s observation of Martorana’s vehicle veering into the
eastbound lane, bouncing between lanes, and following too closely; (4) the fact that
Martorana did not stop until both lights and sirens were activated; (5) Martorana reaching
around, having trouble focusing on one task at a time, and showing her insurance card
instead of her registration; (6) Martorana telling Tent that she “did not blame her” for
pulling her over; (7) Martorana’s red, bloodshot, glassy eyes; and (8) the fact that
Martorana “did not remember” almost hitting her and apologized for it.
{¶ 27} Ohio courts recognize that the administration of field sobriety tests invade
one’s liberty interests, therefore, “‘they must be separately justifiable by specific,
articulable facts which show a reasonable basis for the request.’” State v. Wright, 2015-
Ohio-2600, 38 N.E.3d 485, ¶ 52 (11th Dist.), quoting State v. Evans, 127 Ohio App.3d
11.
56, 62, 711 N.E.2d 761 (11th Dist.1998). Courts consider many factors—taken “together
with the officer’s previous experience in dealing with drunken drivers”—in determining
whether an officer had reasonable suspicion to justify the administration of roadside field
sobriety testing, including:
(1) the time and day of the stop (Friday or Saturday night as opposed to,
e.g., Tuesday morning); (2) the location of the stop (whether near
establishments selling alcohol); (3) any indicia of erratic driving before the
stop that may indicate a lack of coordination (speeding, weaving, unusual
braking, etc.); (4) whether there is a cognizable report that the driver may
be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy,
glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred
speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from
the interior of the car, or, more significantly, on the suspect’s person or
breath; (8) the intensity of that odor, as described by the officer (“very
strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor
(belligerent, uncooperative, etc.); (10) any actions by the suspect after the
stop that might indicate a lack of coordination (dropping keys, falling over,
fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol
consumption, the number of drinks had, and the amount of time in which
they were consumed, if given.
12.
Evans at f.n.2
{¶ 28} In State v. Colby, 2021-Ohio-4405, 181 N.E.3d 610, ¶ 19-20 (6th Dist.), the
trial court determined that the trooper had the reasonable suspicion necessary to conduct
field sobriety tests during a 2:54 a.m. traffic stop where he observed appellant drive over
the fog line three times, appellant had bloodshot and glassy eyes, and appellant fumbled
with personal items and dropped his wallet when he was requested to produce his license
and evidence of insurance. We reversed the trial court judgment. We noted that the
trooper smelled no odor of alcohol or marijuana, there was no admission of drinking, no
allegation of slurred or rambling speech, no observation of drugs or alcohol in the
vehicle, no allegation that appellant was uncooperative or belligerent, and no report from
911 dispatch or another driver alleging impaired driving. Under such facts, we concluded
that the trooper lacked articulable facts that would give rise to a reasonable suspicion
justifying the administration of field sobriety tests.
{¶ 29} In State v. Clinger, 6th Dist. Erie No. E-21-028, 2022-Ohio-723, ¶ 19, the
trial court granted the appellee’s motion to suppress and the state appealed. There,
appellee called the police after his vehicle was hit by a driver who fled. While
investigating the incident, the officer believed that appellee exhibited signs that he was
operating his vehicle under the influence of a narcotic. He testified that appellee
appeared drowsy and sluggish, his eyelids were droopy, his speech was slow and slurred,
and his eyes appeared glassy or bloodshot. The officer also smelled the odor of raw
13.
marijuana. The trial court, after listening to a recording of the encounter, found that
appellee’s speech was not slurred, leaving only the following factors to be considered:
appellee’s glassy eyes and tired appearance, and the odor of raw marijuana. We
concluded that the trial court did not err in finding that the officer lacked reasonable
suspicion to perform field sobriety tests based only on these factors.
{¶ 30} And in State v. Daniels, 5th Dist. Fairfield No. 17-CA-50, 2018-Ohio-
3113, ¶ 24, the Fifth District reversed a trial court decision denying a motion to suppress
evidence obtained during a 2:28 a.m. traffic stop. The appellate court concluded that the
officer lacked reasonable suspicion to administer field sobriety tests where the only
“erratic” driving he observed was an improper right-hand turn, appellant’s eyes appeared
red and bloodshot, and appellant was on the phone calling someone to pick up his
vehicle. The court noted that the officer did not detect an odor of alcohol, appellant did
not admit to consuming any alcohol that night, appellant did not slur his speech in any
way, and appellant offered an explanation for why he disagreed that he had made an
improper turn.
{¶ 31} But the Fifth District reached a contrary conclusion in State v. Marcum, 5th
Dist. Delaware No. 18-CAC- 11 0083, 2019-Ohio-2293. There, the trooper initiated a
stop at 9:03 p.m. after witnessing the appellant’s truck travel over the lane markings on
the highway several times. The truck took longer than usual to come to a complete stop,
and upon approaching appellant, the trooper noticed that his eyes were glassy and
14.
bloodshot, his speech was slow, he could not easily locate his vehicle information, he
fumbled with the paperwork on the passenger seat, and the trooper had to instruct him
several times to keep his hands on the steering wheel. The trooper did not observe any
odor of drugs or alcohol. The appellate court affirmed the trial court’s decision denying
appellant’s motion to suppress, and concluded that based on the totality of the
circumstances, the trooper had reasonable suspicion to detain him to perform field
sobriety tests.
{¶ 32} Here, Martorana was pulled over on a Tuesday night at 10:00 p.m. This
does not strike us as a day and time that should be afforded any special weight. Nor do
we believe that Martorana reaching for her driver’s license or showing her insurance card
instead of her registration weighs in favor of reasonable suspicion. Tent asked for
Martorana’s driver’s license, then as soon as she started reaching around in her car trying
to find it, she became apprehensive and told her to stop reaching. As far as the insurance
card, Tent testified that she asked for both registration and proof of insurance (Q: “You
asked also for her registration, insurance?” A: “Right.”), and that’s a piece of
information that any driver who has ever been stopped for a traffic violation knows will
be requested. Martorana quickly produced the image of her proof of insurance from her
cell phone. Instead of giving her the opportunity to also produce her registration, Tent
regarded this as a potential sign of impairment and commanded her out of the vehicle.
15.
{¶ 33} On the other hand, Tent saw Martorana cross the divider line into the
eastbound lane, weave back-and-forth within her lane, touching the lines but not crossing
them, and follow behind a truck too closely. This occurred right after another motorist—
who provided his name and phone number and remained behind Martorana’s vehicle
until Tent pulled behind her—called to report that the vehicle could not maintain its lane.
Tent observed that Martorana’s eyes were red, bloodshot, and glassy. And one of the
first things Martorana said to Tent upon being pulled over is “I don’t blame you”—not a
typical response from a motorist upon being subjected to a traffic stop. These are all
factors that weigh in favor of reasonable suspicion.
{¶ 34} It is often a close issue whether the specific facts of a case provide an
officer with reasonable suspicion for conducting field sobriety tests. State v. Beeley, 6th
Dist. Lucas No. L-05-1386, 2006-Ohio-4799, 2006 WL 2640228, ¶ 16. Such decisions
are “very fact-intensive.” State v. Burkhart, 2016-Ohio-7534, 64 N.E.3d 1004, ¶ 15 (4th
Dist.). Ohio courts often reach differing conclusions when faced with seemingly similar
circumstances. Numerous factors may be considered, and small differences between
officers’ descriptions of an encounter can form the basis for opposite outcomes. State v.
Watkins, 2021-Ohio-1443, 170 N.E.3d 549, ¶ 26 (6th Dist.).
{¶ 35} Here, having considered the totality of the circumstances, we conclude that
Tent had reasonable suspicion to justify detaining Martorana for the purpose of
administering field-sobriety tests.
16.
{¶ 36} We find Martorana’s assignment of error not well-taken.
III. Conclusion
{¶ 37} The trial court properly denied Martorana’s motion to suppress evidence.
Trooper Tent had reasonable suspicion to initiate a traffic stop when she saw Martorana
veer left of center while driving westbound on U.S. Route 6. She had reasonable
suspicion of impairment to justify further detaining Martorana to administer field sobriety
tests based on the information obtained from the motorist who observed that Martorana’s
vehicle was unable to maintain its lane, the left-of-center violation Tent witnessed,
Martorana bouncing within her lane and following too closely, Martorana’s red,
bloodshot, and glassy eyes, and Martorana’s comment that she did not blame Tent for
pulling her over.
{¶ 38} We find Martorana’s assignment of error not well-taken and affirm the
May 13, 2022 judgment of the Sandusky County Court, #1. Martorana is ordered to pay
the costs of this appeal under App.R. 24.
Judgment affirmed.
17.
State of Ohio
v. Alisha Martorana
S-22-011
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
18.