State v. Fitzgerald

[Cite as State v. Fitzgerald, 2019-Ohio-1038.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0031-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RYAN FITZGERALD WADSWORTH MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 17TRC01808
DECISION AND JOURNAL ENTRY
Dated: March 25, 2019
CALLAHAN, Judge.
{¶1} Appellant, Ryan Fitzgerald, appeals an order that denied his motion to suppress.
This Court affirms.
I.
{¶2} A Wadsworth police officer initiated a traffic stop of Mr. Fitzgerald’s vehicle
after he observed Mr. Fitzgerald driving over the posted speed limit. After the officer noted the
scent of unburnt marijuana and spoke with the occupants of the vehicle, he detained Mr.
Fitzgerald for the purpose of performing several field sobriety tests. The officer arrested Mr.
Fitzgerald at the conclusion of the tests and obtained a urine sample for analysis.
{¶3} Mr. Fitzgerald moved to suppress the evidence gained as a result of the traffic
stop, arguing that the officer lacked reasonable suspicion to detain him to conduct field sobriety
tests, that the officer lacked probable cause to arrest him, and that neither the field sobriety tests
nor the urine sample collection substantially complied with applicable regulations. The trial
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court denied the motion to suppress. Mr. Fitzgerald pleaded no contest to the charge of operating
a vehicle with a prohibited level of marijuana in his urine, and the trial court dismissed the
remaining charges against him. Mr. Fitzgerald filed this appeal.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT’S
MOTION TO SUPPRESS.
{¶4} Mr. Fitzgerald’s assignment of error is twofold: first, he argues that the trial court
did not afford proper weight to evidence that indicated lack of impairment; second, he argues
that the trial court erred by concluding that the collection of his urine sample substantially
complied with applicable regulations.
{¶5} This Court’s review of the trial court’s ruling on the motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
The trial court acts as the trier of fact during a suppression hearing and is best equipped to
evaluate the credibility of witnesses and resolve questions of fact. Id.; State v. Hopfer, 112 Ohio
App.3d 521, 548 (2d Dist.1996), quoting State v. Venham, 96 Ohio App. 3d 649, 653 (4th
Dist.1994). Consequently, this Court accepts a trial court’s findings of fact if supported by
competent, credible evidence. Burnside at ¶ 8. Once this Court has determined that the trial
court’s factual findings are supported by the evidence, we consider the trial court’s legal
conclusions de novo. See id. In other words, this Court then accepts the trial court’s findings of
fact as true and “must then independently determine, without deference to the conclusion of the
trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v.
McNamara, 124 Ohio App. 3d 706, 710 (4th Dist.1997).
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{¶6} Although Mr. Fitzgerald has not explicitly argued that the trial court’s findings of
facts are not supported by competent, credible evidence, both aspects of his assignment of error
require this Court to determine whether the trial court properly considered the evidence from the
suppression hearing. This Court is unable to do so, however, because the transcript of the
suppression hearing cannot be considered as part of the record on appeal.
{¶7} App.R. 9(B)(2) describes the preparation of transcripts for the appellate record:
Any stenographic/shorthand reporter selected by the trial court to record the
proceedings may also serve as the official transcriber of those proceedings
without prior trial court approval. Otherwise, the transcriber of the proceedings
must be approved by the trial court. A party may move to appoint a particular
transcriber or the trial court may appoint a transcriber sua sponte; in either case,
the selection of the transcriber is within the sound discretion of the trial court, so
long as the trial court has a reasonable basis for determining that the transcriber
has the necessary qualifications and training to produce a reliable transcript that
conforms to the requirements of App.R. 9(B)(6).
Loc.R. 6(B) also explains that every transcript must contain a court reporter’s certification that
reflects the court reporter’s appointment by the trial court. In addition, Loc.R. 6(C) provides:
No transcript of proceedings shall be considered as a part of the record on appeal
unless one of the following applies:
(1) The court reporter has certified the transcript as provided in subsection (B) of
this rule;
(2) The record contains an entry of the trial court appointing the court reporter
who has certified the transcript;
(3) The transcript is a part of the original papers and exhibits filed in the trial
court;
(4) The transcript has been incorporated into an App.R. 9(C) statement that has
been approved by the trial court; or,
(5) The court of appeals has granted a motion to supplement the record with a
transcript that was filed in a prior appeal.
{¶8} Mr. Fitzgerald’s docketing statement indicated that the record on appeal would
consist solely of the original papers filed in the trial court. Nonetheless, a transcript of
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proceedings was filed with the clerk of the court of appeals by Mr. Fitzgerald. The court reporter
who prepared that transcript certified that she was employed by Mr. Fitzgerald’s attorney, but
she did not certify that she had been appointed by the trial court as the official transcriber of
proceedings. See App.R. 9(B)(2); Loc.R. 6(B) and (C). The record does not contain an entry
reflecting her appointment by the trial court, and the transcript was not part of the original papers
filed with the trial court. See Loc.R. 6(C)(2) and (3). The transcript was also not made part of
the record through operation of the remaining portions of Loc.R. 6(C). Consequently, the
transcript cannot be considered part of the record on appeal.
{¶9} The obligation to provide all portions of the record necessary for appellate review
falls to the appellant. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). “When
portions of the transcript necessary for resolution of assigned errors are omitted from the record,
the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has
no choice but to presume the validity of the lower court’s proceedings, and affirm.” Id.
Similarly, when a transcript cannot be considered part of the record because it does not comply
with the requirements of App.R. 9(B) and Loc.R. 6(C), this Court must presume regularity if the
transcript is necessary to determine the appeal. See Pietrangelo v. Avon Lake, 9th Dist. Lorain
Nos. 15CA010804, 15CA010873, 2016-Ohio-8201, ¶ 21-24.
{¶10} Mr. Fitzgerald’s arguments require this Court to consider not merely the trial
court’s findings, but the evidence presented at the suppression hearing. Because the transcript of
that hearing is not part of the appellate record pursuant to App.R. 9(B) and Loc.R. 6(C), this
Court must presume regularity and affirm the trial court’s judgment. Mr. Fitzgerald’s
assignment of error is, therefore, overruled.
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III.
{¶11} Mr. Fitzgerald’s assignment of error is overruled. The judgment of the
Wadsworth Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth
Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
BLAISE KATTER, Attorney at Law, for Appellant.
MARK GARDNER, Attorney at Law, for Appellant.
THOMAS J. MORRIS, Director of Law, for Appellee.