State v. Bulin

[Cite as State v. Bulin, 2011-Ohio-3398.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 09 BE 27
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
RICHARD TATOY BULIN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 96 CR 36.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Chris Berhalter
Prosecuting Attorney
Attorney Helen Yonak
Asst. Prosecuting Attorney
147-A W. Main Street
St. Clairsville, OH 43950
For Defendant-Appellant: Attorney John A. Vavra
132 W. Main Street
P.O. Box 430
St. Clairsville, OH 43950
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Dated: June 24, 2011
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DeGenaro, J.
{¶1} Defendant-Appellant, Richard Bulin, appeals the decision of the Belmont
County Court of Common Pleas convicting him of operating a motor vehicle under the
influence of alcohol with a specification of two previous felony OVI convictions, and
sentencing him accordingly. Bulin first argues that the court erred in overruling his motion
to suppress the evidence of the stop and arrest because the Public Safety Agent should
have initiated the stop; the Highway Patrol officers had no authority to administer a field
sobriety test on private property; and that one test was conducted improperly. Second,
Bulin argues that the evidence was insufficient to prove that his ability to operate his
vehicle was noticeably impaired. And third, Bulin argues that because the State's
evidence of his prior convictions was inadmissible the trial court erred in sentencing him
on the specification.
{¶2} Bulin's arguments are meritless. First, the trial court did not err in overruling
the suppression motion. Agent Shannon did not have jurisdiction to perform a traffic stop
but Sergeant Tracy administered the field sobriety tests at the direction and in the
presence of an officer who did have jurisdiction. And because Bulin did not challenge the
administration of the field sobriety test in his suppression motion, he cannot raise the
issue for the first time on appeal. Second, the State presented sufficient evidence at trial
to support Bulin's conviction for OVI. Deputy Stewart could properly rely on the
observations of Agent Shannon and Sergeant Tracy to establish probable cause to arrest,
and the totality of the facts and circumstances support a finding of probable cause to
arrest. Finally, because the State properly proved that Bulin had one prior felony OVI
conviction, even if the State's evidence of the second prior conviction was inadmissible,
there was no material prejudice since one prior conviction can support the specification.
Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} The Belmont County Grand Jury issued a secret indictment charging Bulin
with operating a motor vehicle while under the influence of alcohol and/or drugs of abuse
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(R.C. 4511.19(A)(1)(a),(G)(1)(e)(i)). The indictment included a specification that Bulin
was previously convicted of two felony OVI offenses in the Stark County Court of
Common Pleas: one on April 23, 2003, Case No. 2003CR0105; and one on October 31,
2005, Case No. 2005CR0898. As charged with the specification, the offense is a third
degree felony.
{¶4} Bulin filed a motion arguing for dismissal of the charges because the arrest
was made on private property, or in the alternative, arguing for suppression of any
evidence obtained because there was no probable cause to stop and/or arrest him.
{¶5} At the suppression hearing, the State called Kellette Shannon, who testified
that she is an agent with the Ohio Department of Public Safety, the Ohio Investigative
Unit, which enforces Title 43 liquor laws. She testified to her extensive training at the
Columbus Police Department Academy regarding people under the influence of alcohol.
Her department does not allow her to perform traffic stops unless the local agency
requests her to do so, but she is able to enforce traffic laws as it pertains to Ohio liquor
laws.
{¶6} Agent Shannon testified that on the evening of January 18, 2009, she was
working but was not on patrol; she was traveling westbound on Interstate 70 on her way
to the Cambridge OSP post to secure evidence. While driving in the passing lane, she
observed Bulin's vehicle swerving into the right berm and then swerving into the fast lane.
Agent Shannon got behind Bulin's vehicle and followed him to confirm he was not a tired
driver. She saw him swerving into the berm several times. She stated that she contacted
the highway patrol dispatcher to inform them that she was following an apparently
impaired driver. She said that she followed Bulin for approximately two to three miles
before she saw him exit the highway and she followed him, observing that he drove into
the berm while exiting. Agent Shannon explained that she was in an unmarked vehicle
with lights, but she did not activate them.
{¶7} Agent Shannon testified that she followed Bulin's vehicle into a gas station,
and after he pulled up to a gas pump, she parked in a parking space at the station. She
saw Bulin exit his vehicle and fall onto his car as he cleaned the windows. Bulin got back
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into the driver's seat of the vehicle, put the car in reverse, and parked next to Agent
Shannon's vehicle. He then rolled down the window and asked her for directions to
Akron.
{¶8} Agent Shannon testified that when Bulin asked her for directions, "[h]e
appeared severely intoxicated. He had slurred speech." She asked him how much he
had drank that night and stated that he replied, "Oh, I'm really drunk." She testified that
Bulin said he had been up for two days gambling and drinking. At that point, the radio in
Agent Shannon's vehicle went off, and Bulin asked her if she was a police officer. She
said she was and showed him her badge, which was hidden on a chain underneath her
shirt because she is a plain clothes officer. She asked him to turn his vehicle off and take
his keys out, which he did. Bulin then exited via the driver's side and approached her
vehicle. Agent Shannon got out of her vehicle and asked Bulin for his driver's license,
which he gave her. At that point, the state highway patrol arrived. She said that the
sheriff's department arrived just minutes after the state patrol arrived. When the other
two officers arrived, Agent Shannon began writing her statement in her vehicle and was
not involved in administering any field sobriety tests. Agent Shannon testified that she
never initiated a stop, that Bulin stopped on his own, and that she did not arrest Bulin.
{¶9} In response to questioning about Bulin's person as she got closer to him,
Agent Shannon testified: "[H]e had glassy, blood-shot eyes. I smelled an odor of
alcoholic beverage from his mouth. He slurred his speech. He was swaying. He could
barely stand up straight."
{¶10} Deputy Randy Stewart of the Belmont County Sheriff's Road Division
testified that he was dispatched to the 208 BP Station. When he arrived at the station,
Bulin was in the back seat of Sergeant Tracy's patrol car, and Sergeant Tracy told Deputy
Stewart that Bulin was there because he had outstanding warrants. Deputy Stewart
explained that he then put Bulin in his patrol car and placed Bulin under arrest for the
three outstanding warrants from Stark County.
{¶11} Deputy Stewart testified that he asked Sergeant Tracy to administer the field
sobriety tests because Sergeant Tracy had video capability in his vehicle and Deputy
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Stewart did not. Sergeant Tracy performed the divided attention skills tests and Deputy
Stewart observed. During the tests, Deputy Stewart observed that Bulin appeared to be
impaired. When asked what he based that on, he replied: "Just his blood-shot eyes. I
mean, I smelled odor of alcohol; there was slurring of speech. He was falling asleep in
the back seat of my car at times." Deputy Stewart said that during the field sobriety tests
he observed that Bulin had some balance issues. He explained that during the test he
was standing off to the side because he did not want to be a hindrance. Deputy Stewart
also stated that Bulin said he had been drinking at the track.
{¶12} After Sergeant Tracy finished administering the field sobriety tests, Sergeant
Tracy told Deputy Stewart that Bulin was impaired. Deputy Stewart placed Bulin under
arrest for OVI, and transported Bulin to the highway patrol barracks in St. Clairsville to
perform the breath test. After they arrived, the test was set up, but Bulin refused to take
it. Deputy Stewart then took Bulin to the county jail on the warrants and the OVI.
{¶13} On cross, Deputy Stewart stated that he was called to the investigation due
to private property issues. He testified that there was no reason why he could not have
performed the field sobriety tests on Sergeant Tracy's video camera. He described the
weather conditions as cold and starting to snow, and he stated there were puddles of
water on the ground. He testified that during the walk-and-turn test, Bulin said that he
was stepping over a puddle to avoid getting his feet wet.
{¶14} On redirect, Deputy Stewart agreed that Sergeant Tracy had administered
more field sobriety tests than he had, and Sergeant Tracy was better trained to perform
the tests. Deputy Stewart also testified that Sergeant Tracy did not indicate that he would
hold the fact that Bulin stepped over the puddle against him in any way.
{¶15} Sergeant Tracy testified he had worked for the Ohio State Highway Patrol
for eight and a half years. While on patrol he received a call that there was a possible
impaired driver on Interstate 70. As he started towards the interstate dispatch advised
him that the vehicle had exited the highway and pulled into a gas station. As he pulled
into the gas station Sergeant Tracy saw Agent Shannon and Bulin standing in front of
their vehicles having a conversation. Sergeant Tracy walked over, and Agent Shannon
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handed him Bulin's Ohio Identification Card. After a short conversation with Agent
Shannon and then Bulin, he placed Bulin in the back of his patrol car. He contacted the
Belmont County Sheriff's Office and ran Bulin's record through LEADS, finding multiple
warrants for his arrest.
{¶16} Regarding Bulin's appearance, Sergeant Tracy testified: "Just pulling into
the gas station, I was under the impression that it was highly likely that he was impaired.
He was leaning on his vehicle. When he approached me, without even opening his
mouth, there was an extremely strong odor of an alcoholic beverage. Through my
contact with him, you know, glassy eyes, the blood-shot eyes; had extreme difficulty with
his balance." He also stated that Bulin was continually leaning on things, including his
own vehicle, Sergeant Tracy's patrol car, and Sergeant Tracy.
{¶17} After a few minutes, Deputy Stewart arrived. The deputy spoke with him
and Agent Shannon about their observations, and then asked him to perform and video
tape the field sobriety test. Sergeant Tracy testified that he explained and performed the
horizontal gaze nystagmus test on Bulin. He observed all six clues, which indicated a
high likelihood that Bulin would test over the legal limit. Sergeant Tracy administered the
other two field sobriety tests, and subsequently told Deputy Stewart that if this were his
arrest, he would place Bulin under arrest for OVI.
{¶18} When asked to characterize Bulin's impairment, Sergeant Tracy stated that
Bulin was moody, staggered, and slurred his speech. Bulin was smiling and cooperative
at one point and then mean and cursing almost a second later.
{¶19} Sergeant Tracy testified that he did not arrest Bulin because the Belmont
County Sheriff's Office was available and he was required to make a contact with the
agency of jurisdiction before he made an arrest. Bulin had been in the back of Sergeant
Tracy's vehicle for safety reasons; Bulin had been leaning on his vehicle for support, and
Sergeant Tracy wanted to get him away from all the onlookers.
{¶20} On cross, Sergeant Tracy explained that he administered the field tests
between two parking spaces in front of the building. He had not pulled all the way into a
parking space, so he performed the tests in the area in front of his vehicle on the side of
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the building with the gas pumps. He testified that the roads were wet that day and during
the field sobriety test, it began to precipitate. He stated that Bulin made several
comments during the test about the road being wet. Sergeant Tracy agreed that he could
have performed the test in the covered area by the gas pumps, but he said there was no
reason he did not give the test there, it was just where he had his vehicle.
{¶21} The court overruled Bulin's motion to dismiss. After several pre-trial
motions, including a sustained motion for new counsel, Bulin waived a jury trial. At the
start of the bench trial, Bulin made an oral motion to represent himself with his former
attorney remaining in the courtroom as stand-by counsel, which the court sustained. The
court then advised Bulin of the possible penalties of conviction. Bulin then stated that he
had broken the law to determine if the person following him was a law enforcement
official and that he had been afraid for his life. Bulin made an oral motion to continue to
have time to prepare for the trial, which was denied. The trial court allowed Bulin to
explain his side of the events and give him the opportunity to file a brief after the trial.
{¶22} Agent Shannon then testified, mainly restating her testimony from the
suppression hearing. She stated that she was going to drop off evidence on her way
home when she encountered Bulin, but she was still on duty. She said that she saw "the
defendant's vehicle weaving in and out of the lane. He was driving left of center; driving
off into the berm. Also, his speed was inconsistent." She stated that at the gas station,
she had observed Bulin stumbling around and falling into his vehicle. She said that when
she spoke with Bulin, his speech was very slurred and he said he had been drinking a lot.
{¶23} Agent Shannon then described her training as a Liquor Enforcement Agent.
She trained for six months in the police training academy and had fifteen weeks of field
training, specializing in underage drinking and intoxication violations. She agreed that
she is able to determine whether further investigation is warranted into the question of
whether an individual is driving under the influence. She then stated that her opinion was
that Bulin was impaired.
{¶24} Sergeant Tracy mainly restated his testimony from the suppression hearing.
He added that when he spoke with Bulin he noticed a strong odor of alcohol and
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observed that Bulin had glassy eyes, trouble with his balance, slurred his speech a little
bit, and was very talkative and cooperative. He also stated that Bulin made a comment
that he had been gambling and drinking for two days straight.
{¶25} Sergeant Tracy explained that he performed the three standard field
sobriety tests that he was trained to do. First, he performed the HGN test and observed
six out of six clues. Next, he performed the walk-and-turn test and observed multiple
clues. He said the only particular thing he remembered from that test was that Bulin
jumped over a small puddle of water at one point. Last, he performed the one-leg stand
and observed multiple clues, although Sergeant Tracy thought Bulin did not complete that
test. Subsequently, Deputy Stewart asked his opinion, and Sergeant Tracy said that
Bulin was an impaired driver and if it were his arrest, he would definitely place him under
arrest for OVI.
{¶26} Sergeant Tracy stated that he had performed close to six hundred DUI
arrests, and had been involved with close to one thousand five hundred DUI arrests.
When asked if he had an opinion whether Bulin's driving was "appreciably impaired,"
Sergeant Tracy replied, "Absolutely. That's—my opinion is just that, that he was, you
know, impaired by alcoholic substances?"
{¶27} On cross, Sergeant Tracy confirmed that upon his arrival on the scene when
he saw that Bulin was unsteady on his feet, he considered that Bulin was standing out in
the cold for a long period of time without proper clothing to keep him warm enough to
stand still during the weather conditions. He also acknowledged that he thought Bulin
had made a comment to that effect. Sergeant Tracy also confirmed that he was familiar
with the National Highway Traffic Safety Administration which set the testing standards for
field sobriety tests. Regarding the walk-and-turn test, Sergeant Tracy admitted that he
probably should have administered the test underneath the covered area, but he believed
the test complied with NHTSA standards.
{¶28} The State then stipulated that Sergeant Tracy was on private property when
he performed the field sobriety tests at the direction of the Sheriff's Department, which
had jurisdiction over all private property in Belmont County.
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{¶29} Deputy Randy Stewart likewise mainly restated his testimony from the
suppression hearing. Additionally, he stated that he had been with the Sheriff's
Department full time for about five years and part time for fourteen years. He stated that
he observed the field sobriety tests, but he stood off to the side and could not see Bulin's
eyes. He said that Bulin appeared to have difficulty completing the tests due to balance
issues. Prior to the test, he observed that Bulin's eyes were blood-shot and he slurred his
speech.
{¶30} Deputy Stewart confirmed that after he ran Bulin's record and discovered
the two prior felony convictions for OVI, he requested that certified copies of the
convictions be obtained. The State then handed Deputy Stewart the State's Exhibits 1
and 2, which the deputy identified as certified copies from the Stark County Court of
Common Pleas, Case No. 2003-CR-0105 and Case No. 205-CR-098 [sic], which were
both felony convictions for OVI. He also confirmed that those case numbers matched his
initial report that Bulin had two prior felony convictions. The State then moved to admit
State's Exhibits 1 and 2 as the certified copies of Bulin's prior convictions for OVI.
{¶31} Bulin's stand-by counsel then objected to the State's motion to admit Exhibit
1 on the grounds that it was a post-sentence entry about revoking his community control
sanctions, not the certified record of conviction, and therefore, inadmissible to prove a
prior conviction. The State responded that it was a certified copy and even if the court
decided it was not the proper certification, a second felony conviction in Ohio was still a
third degree felony. The court admitted State's Exhibit 2 and took State's Exhibit 1 under
consideration.
{¶32} Bulin's stand-by counsel then moved for a directed verdict of acquittal,
arguing that the legal standard under the Revised Code Section Bulin was charged under
was that his ability to drive was "appreciably impaired." Counsel contended that neither
of the officers stated that Bulin's ability was appreciably impaired, only impaired;
therefore, the State had failed to carry its burden. The State argued that it asked if Bulin's
driving was appreciably impaired, to which the officers responded affirmatively and said it
was impaired, and the fact that they left out "appreciably" was of no consequence. The
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court overruled the motion, stating it was not sufficient in and of itself to warrant a
judgment of acquittal. After conferring with his stand-by counsel, Bulin decided not to
testify.
{¶33} At the close of the trial, the court gave Bulin sixty days to submit a brief and
fourteen days for the State to respond. Bulin's pro-se brief alleged error in the
administration of the walk-and-turn test. Further, he argued that it was unlawful for
Deputy Stewart to transport him to the highway patrol post without arresting him and
reading him his rights. Bulin also contended that the State could not prove that he was
guilty beyond a reasonable doubt. Bulin then moved the court to dismiss the charges.
{¶34} The court found Bulin guilty of driving under the influence, pursuant to R.C.
4511.19(A)(1)(a)(G)(1)(e)(i), finding in pertinent part:
{¶35} "The Court finds that the evidence, in its totality, demonstrates that the
defendant's driving was appreciably impaired. Testing established fluctuations in speed
as well as weaving in and out of lanes. Defendant's breath, eyes, and speech, evidenced
the influence of alcohol according to three professional officers trained for the purpose of
detecting impaired drivers. Based upon the testimony of these State witnesses as well as
the defendant's own admissions concerning his having consumed alcohol, the Court
concludes that the nervous system, brain or muscles of the defendant were impaired, to a
noticeable degree, his ability to operate the vehicle, and that he was driving under the
influence of alcohol."
{¶36} The trial court also found that based upon the certified copies of judgment
entries admitted at trial, Bulin had been previously convicted of the two felony OVI
offenses averred in the indictment.
{¶37} Following a sentencing hearing the trial court sentenced Bulin to a three
year prison term with one hundred twenty days of the term mandatory pursuant to R.C.
2929.13(G)(2), a fine of $1,350, and a five-year driver's license suspension.
Motion to Suppress
{¶38} In his first of three assignments of error, Bulin asserts:
{¶39} "The court erred in overruling the suppression motion."
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{¶40} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. McNamara (1997), 124 Ohio App. 3d 706, 710, 707 N.E.2d 539. 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. State v. Mills (1992), 62 Ohio St. 3d 357, 366, 582 N.E.2d 972. Consequently,
an appellate court must accept the trial court's findings of fact if they are supported by
competent, credible evidence. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372,
797 N.E.2d 71, at ¶8. Accepting these facts as true, the appellate court conducts a de
novo review of whether the facts satisfy the applicable legal standards at issue in the
appeal. Id.
{¶41} Bulin argues that the three officers who performed the stop and arrest acted
improperly and, therefore, the trial court should have suppressed the evidence obtained
during the stop and arrest. He claims the officers acted improperly for four reasons.
{¶42} First, Bulin contends that since Agent Shannon believed Bulin was impaired
by alcohol, she should have initiated a traffic stop. Agent Shannon testified that as a
member of the Ohio Investigative Unit, she lacked authority to conduct a traffic stop. See
State v. Droste (1998), 83 Ohio St. 3d 36, 39, 697 N.E.2d 620 (holding that liquor agents
do not have authority to conduct a traffic stop if agent was not in the process of
investigating an R.C. Title 43 offense, no state or local law enforcement officers
requested assistance, and no emergency existed); R.C. 5502.14. Instead, Agent
Shannon contacted the highway patrol dispatcher and informed them that she was
following an apparently impaired driver. Deputy Stewart and Sergeant Tracy both
corroborated her testimony by testifying that they received a call to respond to the
situation.
{¶43} Second, Bulin argues that Sergeant Tracy lacked authority to perform field
sobriety tests and arrest Bulin because the encounter occurred on private property. Both
officers testified that because Deputy Stewart had jurisdiction over the private property
where Sergeant Tracy administered the field sobriety tests, he did so at Deputy Stewart's
direction. In an analogous situation, the Ninth District held that a search of a residence
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was valid even though the officers executing the warrant were outside of their territorial
jurisdiction because they were accompanied the entire time by officers with jurisdiction.
State v. Miller (Jan. 22, 1986), 9th Dist. No. 12198. Sergeant Tracy conducted the field
sobriety tests under the authority of Deputy Stewart who was present throughout the
administration of the tests, standing off to the side to observe. Consistent with Miller, the
field sobriety tests were valid. Furthermore, Deputy Stewart testified that he placed Bulin
under arrest, not Sergeant Tracy.
{¶44} Third, Bulin alleges that Sergeant Tracy improperly performed the walk-and-
turn test because he administered the test in front of a water puddle, contrary to NHTSA
standards. R.C. 4511.19(D)(4)(b) provides in pertinent part, that evidence and testimony
regarding the results of a field sobriety test may be presented "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."
{¶45} However, Bulin did not challenge the administration of the walk-and-turn test
in his suppression motion. Instead, he moved: "Fro [sic] an Order dismissing the charge
contained in the Indictment, as the arrest was made on private property, or, in the
alternative, suppressing any and all evidence obtained, as there was no probable cause
to stop and/or arrest defendant."
{¶46} The Ohio Supreme Court has held that in a motion to suppress "the
accused must state the motion's legal and factual bases with sufficient particularity to
place the prosecutor and the court on notice of the issues to be decided." State v.
Shindler (1994), 70 Ohio St. 3d 54, 636 N.E.2d 319, at syllabus (construing and following
Crim.R. 47 and Xenia v. Wallace (1988), 37 Ohio St. 3d 216, 524 N.E.2d 889). Once the
defendant presents a sufficient basis for the motion to suppress, the burden shifts to the
state to demonstrate substantial compliance with the applicable testing standards. State
v. Phillips, 7th Dist. No. 08-MO-6, 2010-Ohio-1547, at ¶16. "By requiring the defendant to
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state with particularity the legal and factual issues to be resolved, the prosecutor and
court are placed on notice of those issues to be heard and decided by the court and, by
omission, those issues which are otherwise being waived." Shindler at 58. Bulin's motion
to suppress did not state any factual basis or argument that the walk-and-turn test was
improperly administered, thus, the issue is waived.
{¶47} Even if this court would have determined that Sergeant Tracy improperly
administered the walk-and-turn test and the trial court should have suppressed the results
from this test, Bulin only alleges error in the single test. Thus, the one-leg stand test and
HGN test results would still be admissible to support a finding of probable cause.
Furthermore, the Ohio Supreme Court has held that probable cause to arrest does not
need to be based on the results of field sobriety tests, and probable cause can be found
even where the test results must be suppressed. State v. Homan (2000), 89 Ohio St. 3d
421, 427, 732 N.E.2d 952 (superseded by statute on other grounds).
{¶48} Fourth, Bulin contends that since Deputy Stewart did not observe the erratic
driving or perform the field sobriety tests, he lacked probable cause to arrest Bulin. In
general, an officer may not make a warrantless arrest for a misdemeanor offense if the
officer did not observe the offense occurring. State v. Henderson (1990), 51 Ohio St. 3d
54, 56, 554 N.E.2d 104. However, an exception exists where "the officer has probable
cause to believe that the suspect was operating a motor vehicle while under the influence
of alcohol or drugs." Id., citing Oregon v. Szakovits (1972), 32 Ohio St. 2d 271, 61 O.O.2d
496, 291 N.E.2d 742. The Ohio Supreme Court has held that the legal standard for
determining if an officer had probable cause to arrest for OVI is "whether, at the moment
of arrest, the police had sufficient information, derived from a reasonably trustworthy
source of facts and circumstances, sufficient to cause a prudent person to believe that
the suspect was driving under the influence." Homan at 427. In making this
determination, courts must examine the totality of facts and circumstances surrounding
the arrest. Id.
{¶49} For example, in Droste, supra, two on-duty liquor control agents observed a
vehicle driving erratically on the highway. Id. at 36. After the liquor agents radioed in
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their observations, the driver stopped at a traffic light and the agents received a
communication to stop the vehicle. Id. When the agents approached the vehicle, they
observed indicia of intoxication, and the driver admitted he had been drinking. Id. at 37.
The liquor agents then arrested the driver for underage drinking. Id. Meanwhile, an
officer with jurisdiction arrived; the liquor agents informed the officer of their observations
and one of the liquor agents performed a field sobriety test under the officer's
observations. Id. The officer then arrested the driver for OVI. Id. The court determined
there was no evidence to support that the request for assistance came from state or local
law enforcement and concluded that the liquor agents violated their statutory authority.
Id. at 39-40. However, the court held that the officer had probable cause to arrest the
driver based on the liquor agents' observations of the erratic driving as told to the
arresting officer and the arresting officer's own observations. Id. at 40.
{¶50} Similarly, Deputy Stewart arrived on the scene after the vehicle had come to
a stop and did not observe the erratic driving. Agent Shannon, an on-duty liquor agent
without jurisdiction to perform a traffic stop, saw Bulin driving erratically and followed him
when he pulled off the highway. Agent Shannon did not stop Bulin. When Deputy
Stewart arrived on the scene, Agent Shannon told him what she had observed prior to his
arrival. She observed Bulin's vehicle swerve into the berm several times. At the gas
station, she observed that Bulin had glassy, blood-shot eyes, slurred his speech, could
barely stand up straight, and that she smelled an odor of alcohol on his breath. She also
testified that Bulin told her that he was "really drunk." The information Deputy Stewart
received from Agent Shannon, a trained law enforcement officer, established that Bulin
was operating the vehicle and provided evidence of impaired driving. Therefore, the fact
that Deputy Stewart did not witness Bulin's erratic driving does not preclude a valid OVI
arrest.
{¶51} Next, Bulin contends that Deputy Stewart lacked probable cause because
he did not administer the field sobriety tests. "Information supplied by officers or agencies
engaged in a common investigation with an arresting officer may be used to establish
probable cause for a warrantless arrest." Henderson, supra, at syllabus. "So long as 'the
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law enforcement system as a whole has complied with the Fourth Amendment' and
possesses facts adding up to probable cause, the arrest will be valid even though the
arresting officer alone does not possess these facts." Id. at 57, quoting 1 LaFave &
Israel, Criminal Procedure (1984), 208, Section 3.3(e).
{¶52} When Deputy Stewart arrived at the gas station, Sergeant Tracy related that
he had been dispatched while Bulin was still driving on the highway, and that he observed
a strong odor of alcohol from Bulin, glassy and blood-shot eyes, and extreme difficulty
with balance. After Sergeant Tracy performed the field sobriety tests, he further informed
Deputy Stewart that Bulin was impaired. As officers dispatched to respond to the same
offense, Sergeant Tracy and Deputy Stewart were engaged in a common investigation;
therefore, Sergeant Tracy's observations may be considered in determining whether
Deputy Stewart had probable cause to arrest for OVI.
{¶53} Finally, beyond relying on the observations of Sergeant Tracy and Agent
Shannon, Deputy Stewart testified that he observed that Bulin appeared to be impaired
during the field sobriety tests, and that Bulin had blood-shot eyes, slurred speech, and the
smell of an odor of alcohol. Deputy Stewart also testified that Bulin was falling asleep in
the back of his vehicle and had told him that he had been drinking at the track.
{¶54} The totality of facts and circumstances surrounding the arrest gave Deputy
Stewart sufficient information from trustworthy sources to cause a prudent person to
believe Bulin was driving under the influence. Therefore, Deputy Stewart had probable
cause to arrest Bulin for OVI. See Homan, supra, at 427 (erratic driving, red and glassy
eyes, odor of alcohol on breath, and admission of consumption of alcoholic beverages
established probable cause to arrest). See also State v. Kirby (Sept. 28, 2001), 6th Dist.
No. OT-00-047 (observation of appellant's vehicle weaving in lane, strong odor of alcohol,
red and glassy eyes, slurred speech, and admission of consumption of alcoholic
beverages established probable cause to arrest). Accordingly, Bulin's first assignment of
error is meritless.
Sufficiency of the Evidence
{¶55} In his second assignment of error, Bulin asserts:
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{¶56} "The court erred in finding the appellant under the influence where the
evidence was insufficient to prove that his ability to operate his vehicle was noticeably
impaired."
{¶57} The test of sufficient evidence is "whether after viewing the probative
evidence and inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of the
offense beyond a reasonable doubt." State v. Martin (1983), 20 Ohio App. 3d 172, 175,
20 OBR 215, 485 N.E.2d 717. The court does not examine the credibility of the
witnesses, nor does it weigh the evidence in this process. Id.; State v. Goff (1998), 82
Ohio St. 3d 123, 139, 694 N.E.2d 916. The trial court's decision should only be reversed if
the "appellate court finds that reasonable minds could not reach the conclusion reached
by the trier of facts." State v. Jenks (1991), 61 Ohio St. 3d 259, 273, 574 N.E.2d 492
(superseded by state constitutional amendment on other grounds). Whether the
prosecution presented sufficient evidence is a question of law. State v. Thompkins
(1997), 78 Ohio St. 3d 380, 386, 678 N.E.2d 541. An appellate court's review of the
sufficiency of the evidence must "assess not whether the state's evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction." Thompkins at 390 (Cook, J., concurring).
{¶58} Bulin was convicted of violating 4511.19(A)(1)(a), which provides:
{¶59} "(A)(1) No person shall operate any vehicle, * * * within this state, if, at the
time of the operation, any of the following apply:
{¶60} "(a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them."
{¶61} Under this section, the state "need not establish a threshold level of alcohol
concentration in the defendant's body. It must, however, prove that the defendant
operated a vehicle when his faculties were appreciably impaired by the consumption of
alcohol." State v. Lowman (1992), 82 Ohio App. 3d 831, 836, 613 N.E.2d 692. This court
has stated that the defendant's behavior is a "primary consideration" in this determination.
State v. Smith, 7th Dist. No. 05 MA 219, 2007-Ohio-3182, at ¶76.
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{¶62} Agent Shannon testified that Bulin was weaving on the highway and driving
left of center, that his speech was very slurred, he was stumbling and falling into his
vehicle, and that Bulin admitted he had been drinking a lot. She opined that Bulin was
impaired. Deputy Stewart testified that Bulin slurred his speech, his eyes were bloodshot,
and that Bulin had balance issues while performing the field sobriety tests. Sergeant
Tracy testified that he smelled a "real strong odor" of alcohol and observed that Bulin had
glassy eyes, slurred his speech a little, and had balance problems. He said that Bulin
made a comment that he had been drinking and gambling for two days straight and was
trying to get home. When Sergeant Tracy administered the field sobriety tests, he
observed all six clues on the HGN test, "multiple clues" on the walk-and-turn test and
multiple clues on the one-leg stand test, although he stated that he thought Bulin did not
complete that test. When asked his opinion as to whether Bulin's driving was appreciably
impaired by the consumption of alcohol, Sergeant Tracy stated, "Absolutely. That's—my
opinion is just that, that he was, you know, impaired by alcoholic substances?"
{¶63} Sufficient evidence supports Bulin's conviction for OVI. At the trial, none of
the officers explicitly stated that Bulin was "noticeably" or "appreciably" impaired.
However, the officers' failure to use this exact phrase does not render the conviction
invalid when the trial court could have inferred that Bulin was appreciably impaired from
the officers' descriptions of Bulin's behavior and appearance. See Lowman, supra, at
836. Accordingly, Bulin's second assignment of error is meritless.
Prior Convictions
{¶64} In his third and final assignment of error, Bulin asserts:
{¶65} "The court erred in overruling the motion of the appellant to exclude the
evidence of prior convictions offered by the state where that evidence was improper and
insufficient."
{¶66} "The admission of evidence lies within the broad discretion of a trial court,
and a reviewing court should not disturb evidentiary decisions in the absence of an abuse
of discretion that has created material prejudice." State v. Noling, 98 Ohio St. 3d 44,
2002-Ohio-7044, 781 N.E.2d 88, at ¶43, citing State v. Issa (2001), 93 Ohio St. 3d 49, 64,
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752 N.E.2d 904. An abuse of discretion means more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Noling at
¶43, citing State v. Barnes (2002), 94 Ohio St. 3d 21, 23, 759 N.E.2d 1240.
{¶67} Pursuant to R.C. 4511.19(G)(1)(e), a previous felony OVI conviction
elevates an offender's charge to a third degree felony. When a prior conviction elevates
the degree of the crime charged, the prior conviction is an element of the crime, and the
state has the burden to prove the prior conviction beyond a reasonable doubt. See State
v. Allen (1987), 29 Ohio St. 3d 53, 54, 506 N.E.2d 199. The form that proof must take is
defined in R.C. 2945.75(B)(1) which provides:
{¶68} "Whenever in any case it is necessary to prove a prior conviction, a certified
copy of the entry of judgment in such prior conviction together with evidence sufficient to
identify the defendant named in the entry as the offender in the case at bar, is sufficient to
prove such prior conviction."
{¶69} Further, Crim.R. 32(C) provides:
{¶70} "A judgment of conviction shall set forth the plea, the verdict, or findings,
upon which each conviction is based, and the sentence. Multiple judgments of conviction
may be addressed in one judgment entry. If the defendant is found not guilty or for any
other reason is entitled to be discharged, the court shall render judgment accordingly.
The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment
is effective only when entered on the journal by the clerk."
{¶71} The State had the burden to prove that Bulin had one prior conviction
beyond a reasonable doubt. The State introduced two exhibits to prove Bulin's two prior
felony OVI convictions. State's Exhibit 2 is a certified copy of the judgment entry from
Bulin's 2003 felony OVI conviction. This judgment entry sets forth Bulin's plea, the court's
findings, and the sentence. This judgment entry was signed by the judge and was
journalized. Deputy Stewart identified State's Exhibit 1 and 2 as certified copies of felony
OVI convictions with case numbers that matched his initial report of Bulin's two prior
felony convictions. Therefore, State's Exhibit 2 comports with the requirements of R.C.
2945.75(B)(1) to prove Bulin's prior felony OVI conviction.
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{¶72} However, State's Exhibit 1 is a certified copy of a judgment entry revoking
Bulin's judicial release and modifying the sentence on his 2005 felony OVI conviction.
This judgment entry does not set forth the original sentence imposed on the conviction
and the findings upon which the court based Bulin's conviction. Even if the trial court
improperly admitted State's Exhibit 1, it is harmless error, because the State properly
proved that Bulin had a prior felony OVI conviction in 2003 via State's Exhibit 2.
Accordingly, Bulin's third assignment of error is meritless.
{¶73} In conclusion, Bulin's three assignments of error are meritless. First, the
trial court did not err in overruling the suppression motion. Agent Shannon did not have
jurisdiction to perform a traffic stop but Sergeant Tracy administered the field sobriety
tests at the direction and in the presence of an officer who did have jurisdiction. And
because Bulin did not challenge the administration of the field sobriety test in his
suppression motion, he cannot raise the issue for the first time on appeal. Second, the
State presented sufficient evidence at trial to support Bulin's conviction for OVI. Deputy
Stewart could properly rely on the observations of Agent Shannon and Sergeant Tracy to
establish probable cause to arrest, and the totality of the facts and circumstances support
a finding of probable cause to arrest. Finally, because the State properly proved that
Bulin had one prior felony OVI conviction, even if the State's evidence of the second prior
conviction was inadmissible, there was no material prejudice since one prior conviction
can support the specification. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.