State v. Mackim

[Cite as State v. Mackim, 2018-Ohio-3033.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28741
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KIMBERLY MACKIM BARBERTON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 16 TRC 4025
DECISION AND JOURNAL ENTRY
Dated: August 1, 2018
CALLAHAN, Judge.
{¶1} Appellant, Kimberly Mackim, appeals from her conviction for operating a vehicle
under the influence of alcohol (“OVI”) in the Barberton Municipal Court. For the reasons set
forth below, this Court reverses.
I.
{¶2} A New Franklin patrolman (“the Officer”) responded to a call from a gas station
owner regarding a woman, Ms. Mackim, who was asleep in the driver’s seat of a truck parked in
the gas station parking lot. After briefly questioning Ms. Mackim, the officer administered field
sobriety tests to her and subsequently arrested her for OVI pursuant to R.C. 4511.19(A)(1)(a).
{¶3} Ms. Mackim filed a motion to suppress and a hearing was held. Ms. Mackim
challenged the following: 1) the Officer’s initial contact with Ms. Mackim as being a community
caretaking function, 2) the Officer’s compliance with the NHTSA standards in administering the
field sobriety tests, 3) the Officer’s reasonable suspicion to detain her to administer the field
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sobriety tests, and 4) the Officer’s probable cause to arrest her. At the conclusion of the hearing,
the trial court took the matter under advisement and permitted the parties to file post-hearing
briefs.
{¶4} On the record at a pre-jury conference, the trial court orally granted Ms.
Mackim’s motion to suppress the field sobriety test results and the Officer’s expert opinions
regarding Ms. Mackim’s impairment based on the test results. The trial court denied the
remainder of Ms. Mackim’s motion to suppress. The trial court did not journalize the
suppression decision. Ms. Mackim proceeded to a jury trial and was found guilty of OVI.
{¶5} Ms. Mackim has timely appealed her conviction and raises three assignments of
error.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT DENIED, IN PART, [MS.
MACKIM’S] MOTION TO SUPPRESS.
{¶6} Ms. Mackim asserts that the trial court erred in denying her motion to suppress by
finding that the Officer engaged in a community caretaking encounter, by finding that the Officer
had reasonable suspicion to detain her and to administer field sobriety tests, and by finding that
the Officer had probable cause to arrest her. To the extent that Ms. Mackim argues that the
initial encounter exceeded the scope of any community caretaking function, this Court agrees.
This Court, however, is unable to reach the remaining arguments.
{¶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,
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
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St.3d 357, 366 (1992). Thus, a reviewing court “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). Therefore, this Court grants deference to the trial court’s
findings of fact, but conducts a de novo review of whether the trial court applied the appropriate
legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th
Dist.).
{¶8} The community caretaking function is an exception to the Fourth Amendment
warrant requirement that permits “‘police officers to stop a person to render aid if they
reasonably believe that there is an immediate need for their assistance to protect life or prevent
serious injury.’” State v. Clapper, 9th Dist. Medina No. 11CA00031-M, 2012-Ohio-1382, ¶ 12,
quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, ¶ 22. “Police officers without
reasonable suspicion of criminal activity are allowed to intrude on a person’s privacy to carry out
community caretaking functions to enhance public safety.” (Internal quotation marks omitted.)
State v. Thompson, 9th Dist. Lorain No. 04CA008603, 2005-Ohio-3802, ¶ 10, quoting State v.
Norman, 136 Ohio App.3d 46, 54 (3d Dist.1999). “When approaching a vehicle for safety
reasons, the police officer must be able to point to reasonable, articulable facts upon which to
base [the] safety concerns.” Norman at 54.
{¶9} On the other hand, in order to administer field sobriety tests, a police officer must
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.
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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.
{¶10} The Officer testified that dispatch received a call from the owner of the gas station
describing a truck that was parked in the gas station lot by the dumpster with “a female [] passed
out behind the wheel of her vehicle.” The gas station owner indicated that the truck had been in
the parking lot for 20 to 25 minutes and he wanted the driver to leave the premises. The Officer
testified that he arrived at the gas station at approximately 10:00 a.m. and found the truck parked
by the dumpster and a woman passed out in the driver’s seat. The Officer testified and his body
camera footage showed that the Officer approached the truck and knocked on the driver’s side
window to rouse the driver, Ms. Mackim, who was sitting sideways and leaning over towards the
middle console with her back to the driver’s door. The body camera footage shows Ms. Mackim
sit up and turn forward in the driver’s seat and then open the driver’s side door. The Officer
inquired about what Ms. Mackim was doing, to which she replied that she was “laying down”
“taking a break” “because [she] didn’t feel good.”
{¶11} When Ms. Mackim opened the door and spoke, the Officer detected an “odor of
alcohol coming from her, around her person.” The Officer testified that the odor of alcohol
“alerted [him] that there was some sort of [] drinking going on.” The Officer then asked Ms.
Mackim for her driver’s license, but she handed him her credit card instead. The Officer testified
that the production of something other than the driver’s license is another indicator of alcohol
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involvement. Based on these two indicators, the Officer asked Ms. Mackim to step out of the
truck so he could “run her through field sobriety tests.”
{¶12} The Officer’s body camera shows that once Ms. Mackim was outside the truck,
she admitted to drinking the night before. The Officer then began to administer the field sobriety
tests. The trial court, however, found that “[Ms. Mackim] did admit to drinking the night before,
and at that point, the [O]fficer asked Ms. Mackim to then step out of her [truck] to perform field
sobriety tests.” Based on the body camera footage, the trial court’s chronology of these events is
incorrect. Consequently, the trial court’s finding of fact on this point is not supported by
competent and credible evidence and is rejected by this Court. See State v. Bramley, 9th Dist.
Medina No. 17CA0033-M, 2017-Ohio-8512, ¶ 15.
{¶13} Nonetheless, the Officer’s testimony from the suppression hearing and his body
camera footage support the trial court’s findings of fact that the Officer “was called to the scene
with reference to a[n ] unwanted visitor that had pulled into a gas station parking lot [] and then
proceeded to fall asleep, pass out” and the gas station owner wanted the police “to look into why
that person was there and ostensibly to have them removed.” Accordingly, those findings of fact
regarding community caretaking are supported by competent, credible evidence and are accepted
as true.
{¶14} Taking these facts as true, this Court “independently determine[s], without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8, citing McNamara, 124
Ohio App.3d at 710. In this case, the Officer was called to the gas station to check on Ms.
Mackim who was asleep or passed out in her truck and, thus, was responding to a call about a
driver possibly being in distress. See Clapper, 2012-Ohio-1382, at ¶ 13 (recognizing that the
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community caretaking function applies to officers helping drivers who are in distress).
Accordingly, the Officer had “reasonable, articulable facts upon which to base [his] safety
concerns” for Ms. Mackim and to approach her vehicle and speak with her under the community
caretaking function. See Norman, 136 Ohio App.3d at 54.
{¶15} However, because according to the Officer’s own testimony that the nature of his
encounter with Ms. Mackim changed early on in his interaction with her, the trial court
erroneously extended its fact finding and analysis under the community caretaking function to the
finding of probable cause, foregoing any discussion of reasonable suspicion. While the Officer’s
initial contact and focus was based upon Ms. Mackim’s welfare under the community caretaking
function, he testified that he “smelled [alcohol] when [Ms. Mackim] was in the vehicle when [he]
first made contact with her” and this “alerted” him that there was “drinking going on” despite Ms.
Mackim’s initial statement that she was sick. The Officer testified that he did not believe Ms.
Mackim was ill. Moreover, the Officer stated that a claim of illness “doesn’t take away the fact
[that] the smell of the alcohol” was present. According to the Officer, upon smelling alcohol on
Ms. Mackim inside her truck, he believed she was under the influence and asked her if she had
been drinking, which she denied. Ms. Mackim then handed the Officer her credit card instead of
her driver’s license. In light of these two “indicator[s],” the Officer “made [up his] mind that [he]
was pulling [Ms. Mackim] out of the vehicle and rendering [sic.] her to do some tests.”
{¶16} Courts have repeatedly held that when the initial nature of the encounter is
expanded to an investigatory detention the officer must possess reasonable suspicion of criminal
activity for that detention. See State v. Martin, 9th Dist. Summit No. 28722, 2018-Ohio-1705, ¶
12 (“when a consensual encounter later results in an investigatory detention, that detention must
be supported by reasonable suspicion”). See also State v. Saunders, 5th Dist. Muskingum No.
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CT2017-0052, 2018-Ohio-2624, ¶ 28; State v. Windle, 4th Dist. Athens No. 16CA1, 2017-Ohio-
7813, ¶ 33, 35. “[B]ecause some contacts that start out as constitutional may at some point cross
a line and become an unconstitutional seizure,” it is necessary to examine the constitutionality of
the next stage of the stop. Saunders at ¶ 26. Based on the Officer’s testimony, it was necessary
for the trial court to make findings of fact and conclusions of law regarding whether the Officer
had a reasonable suspicion of criminal activity that would support his administering field sobriety
tests. The trial court, however, failed to do so. In light of the absence of findings of fact relative
to reasonable suspicion to administer field sobriety tests, this Court cannot conclude the trial
court’s findings of fact are supported by competent, credible evidence.
{¶17} Additionally, the trial court’s findings of fact as to probable cause to arrest Ms.
Mackim are incomplete. With regard to probable cause, the trial court relied on the odor of
alcohol and “some of the responses and some of the things” it viewed on the body camera
footage. The trial court’s reference to “some of the responses and some of the things” is vague
and provides this Court with no information as to which factors it found to support its finding that
there was probable cause to arrest Ms. Mackim. (Emphasis added.) See State v. Trivett, 9th Dist.
Medina No. 15CA0041-M, 2016-Ohio-8204, ¶ 7-8 (findings of fact are incomplete when they fail
to include pertinent facts that were presented during the hearing and which are necessary to
conduct the legal analysis). In the absence of necessary findings of fact, this Court cannot
conclude the trial court’s findings of fact as to probable cause to arrest are supported by
competent, credible evidence.
{¶18} Having concluded that the trial court erred by extending the community
caretaking function beyond what is allowable under the law and failing to make findings of fact as
to reasonable suspicion to administer field sobriety tests and probable cause to arrest, we conclude
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that the trial court erred in denying Ms. Mackim’s motion to suppress. Because the trial court has
failed to adequately set forth its findings of fact and failed to apply the correct law, this Court
cannot properly review the suppression decision. Accordingly, this Court must remand this case
to the trial court to set forth its findings of fact with regard to reasonable suspicion to administer
field sobriety tests and probable cause to arrest.
{¶19} Ms. Mackim’s first assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT RULED THAT [MS. MACKIM]
COULD NOT CROSS [EXAMINE] THE [] OFFICER ON ANY OF HIS
NHTSA TRAINING DURING THE JURY TRIAL.
ASSIGNMENT OF ERROR NO. 3
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED AT TRIAL.
{¶20} In the second assignment of error, Ms. Mackim contends that the trial court erred
in precluding her from cross examining the Officer regarding his NHTSA training. In the third
assignment of error, Ms. Mackim argues that her conviction is against the manifest weight of the
evidence because the State failed to present evidence that she was impaired. Due to this Court’s
resolution of Ms. Mackim’s first assignment of error, her second and third assignments of error
are premature and this Court declines to address them.
III.
{¶21} Ms. Mackim’s first assignment of error is sustained. This Court declines to
address the second and third assignments of error because they are premature. The judgment of
the Barberton Municipal Court is reversed and the cause is remanded for proceedings consistent
with this opinion.
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Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton
Municipal Court, County of Summit, 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 Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶22} I would reverse and remand on the basis of the rationale articulated in State v
Dennis, 9th Dist. Summit No. 27692, 2016-Ohio-8136.
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APPEARANCES:
JOHN T. FORRISTAL, Attorney at Law, for Appellant.
JENNIFER ROBERTS, Prosecuting Attorney, for Appellee.