Cleveland v. Harding

[Cite as Cleveland v. Harding, 2013-Ohio-2691.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98916
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
LEON W. HARDING
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2011 TRC 070444
BEFORE: Stewart, A.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: June 27, 2013
ATTORNEY FOR APPELLANT
Christopher Lenahan
13001 Athens Avenue, No. 200
Lakewood, OH 44107
ATTORNEYS FOR APPELLEE
Barbara Langhenry
Director of Law
BY: Gina M. Villa
Assistant City Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Leon Harding appeals the decision of the Cleveland
Municipal Court finding him guilty of driving under the influence of alcohol in violation
of Cleveland Codified Ordinances (“C.C.O.”) 433.01(A), a misdemeanor of the first
degree. At his bench trial, the court ordered Harding to pay fines and court costs,
suspended his driver’s license, ordered him to attend alcohol abuse programs, and placed
him on probation for one year. Harding challenges the propriety of the investigation into
whether he was driving under the influence and also challenges the sufficiency of the
evidence used to convict him. We affirm the decision of the trial court.
{¶2} In the evening hours of December 17, 2011, Harding and a friend were
driving on West 117th Street in the city of Cleveland when they were involved in a minor
collision with another vehicle. Officer Carlos Robles arrived at the scene and was
immediately approached by the driver of the other vehicle who informed Robles that he
believed Harding to be driving while intoxicated. When Robles approached Harding’s
vehicle, Harding was in the driver’s seat and the vehicle was on. Robles noticed that
Harding’s breath smelled of alcohol, and his speech was slurred. Officer Robles asked
Harding to get out of his vehicle and into the police car. Inside the officer’s car, Robles
administered two sobriety tests including having Harding recite the alphabet and count up
to 50 in units of five. Given the icy, snowy conditions, the weather was too inclement to
perform any walking sobriety tests.
{¶3} After the tests were administered, Harding was arrested for driving under the
influence. His conviction was based solely on the testimony of Officer Robles. A blood
alcohol content test was conducted, but the results were deemed inconsistent by the
prosecution and not introduced into evidence at trial.
{¶4} On appeal, Harding raises two assignments of error. First, Harding argues
that the police officer wrongfully administered sobriety tests where there was no
reasonable suspicion of criminal activity. Secondly, Harding argues that his conviction
for driving under the influence of alcohol was based on insufficient evidence.
{¶5} The Fourth Amendment of the United States Constitution, as well as 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
1204,  7, citing State v. Orr, 91 Ohio St. 3d 389, 745 N.E.2d 1036 (2001). In general, a
traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion
that a motorist has committed, is in the process of committing, or is about to commit a
crime. Mays at  7. The legality of an investigative stop by a police officer must be
viewed in light of the totality of the surrounding circumstances. Id., citing State v.
Freeman, 64 Ohio St. 2d 291, 414 N.E.2d 1044 (1980), paragraph one of syllabus.
Additionally, a police officer who initially lacks probable cause, but whose observations
lead him to reasonably suspect that a particular person’s behavior is criminal, may detain
the person briefly to investigate the circumstances that provoked the suspicion. Mays at
 13.
{¶6} An officer may not request a motorist to perform field sobriety tests unless
the request is separately justified by a reasonable suspicion based upon articulable facts
that the motorist is intoxicated. Parma Hts. v. Dedejczyk, 8th Dist. No. 97664,
2012-Ohio-3458,  29, citing State v. Evans, 127 Ohio App. 3d 56, 711 N.E.2d 761 (11th
Dist.1998). However, the Supreme Court of Ohio has recognized that probable cause to
arrest for driving under the influence exists where a police officer arrives at the scene of
an accident and, although no driving is observed, a suspect is found in or near the
automobile with an odor of alcohol and slurring his speech. Oregon v. Szakovits, 32
Ohio St. 2d 271, 291 N.E.2d 742 (1972).
{¶7} In this case, while Officer Robles did not observe Harding driving, Harding
was behind the steering wheel of the vehicle with the engine running when Robles arrived
at the scene. These facts, coupled with the officer’s testimony that he smelled alcohol
and that Harding’s speech was slurred, were sufficient to suspect Harding was driving
under the influence, thus justifying conducting the sobriety tests. Only after Harding’s
performance on the sobriety tests did Robles have probable cause to arrest Harding for
driving under the influence. Harding’s first assigned error is overruled.
{¶8} Next, Harding argues that his conviction was based on insufficient evidence.
We disagree.
{¶9} An appellate court’s role when reviewing the sufficiency of the evidence is to
examine the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of a defendant’s guilt beyond a reasonable doubt.
State v. Grablovic, 8th Dist. No. 91514, 2009-Ohio-2716,  19. After reviewing the
evidence in a light most favorable to the prosecution, an appellate court must decide
whether any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Id.
{¶10} C.C.O. 433.01(A) states that “[n]o person shall operate any vehicle,
streetcar, or trackless trolley within this City, if * * * [t]he person is under the influence
of alcohol, a drug of abuse, or a combination of them.” There is no dispute that Harding
was the operator of the vehicle on the night in question. The remaining question is
whether the city met its burden by proving that Harding was under the influence of
alcohol when operating the vehicle.
{¶11} In support of his argument that the city’s evidence was insufficient to
convict him, Harding first challenges the sobriety tests performed by Robles. Harding
argues that the tests are not recognized by the National Highway Traffic Safety
Administration (“NHTSA”), and thus are inadmissible under C.C.O. 433.01(B) for
purposes of determining whether an individual is under the influence of alcohol. This
argument is without merit.
{¶12} Cleveland Codified Ordinances 433.01(B) states:
In any criminal prosecution or juvenile court proceeding for a violation * *
* relating to operating a vehicle while under the influence of alcohol, * * *
if a law enforcement officer has administered a field sobriety test to the
operator of the vehicle involved in the violation and if it 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,
all of the following apply:
1. The officer may testify concerning the results of the field sobriety test
so administered;
2. The prosecution may introduce the results of the field sobriety test so
administered as evidence in any proceedings in the criminal prosecution or
juvenile court proceeding;
3. If testimony is presented or evidence is introduced under division
(d)(4)B.1. or 2. of this section and if the testimony or evidence is admissible
under the Rules of Evidence, the court shall admit the testimony or evidence
and the trier of fact shall give it whatever weight the trier of fact considers
to be appropriate.
(Emphasis added.)
{¶13} Based on the testimony of Officer Robles regarding the administration of the
sobriety tests, the trial court properly found that the tests were administered in substantial
compliance with testing standards. Also, the ordinance makes clear that the testing
standards with which an officer must comply are not limited to those of the NHTSA.
{¶14} Additionally, a “police officer’s observations during [field] tests * * * are
admissible merely because they are relevant to whether the defendant is intoxicated.”
Cleveland v. Hunter, 8th Dist. No. 91110, 2009-Ohio-1239,  62. In Hunter, this court
held, “[i]t would be relevant if the defendant could not hold himself steady, stumbled
when he walked, or fell down when he tried to stand on one foot. These are the type of
facts an officer might observe during field sobriety tests.” Id.
{¶15} At trial, Robles testified to having observed intoxicated people thousands of
times over the 20-plus years that he has been a police officer. Robles stated that during
the sobriety tests, Harding had problems reciting the alphabet and difficulty following
instructions when asked to count to 50. The officer testified that Harding could not get
past the letter “D” in the alphabet and refused to stop counting when asked to do so. He
observed that Harding’s speech was “thick-tongued” and that he appeared sleepy and
swayed back and forth when talking — unable to stand in the manner consistent with a
sober person. With this testimony, the city provided sufficient evidence that Harding
was driving under the influence of alcohol.
{¶16} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR