State v. Lauer

[Cite as State v. Lauer, 2014-Ohio-1165.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13CA0006
:
CHET LAUER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County
Municipal Court Case No. 2012 TRC
2885
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 28, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHARLES S. HOWLAND TODD A. BRININGER
MORROW CO. PROSECUTOR 1801 Watermark Dr., Ste. 350
THOMAS J. SMITH Columbus, OH 43215
60 East High St.
Mt. Gilead, OH 43308 RUSSELL S. BENSING
1370 Ontario St.
1350 Standard Bldg.
Cleveland, OH 44113
Morrow County, Case No. 13CA0006 2
Delaney, J.
{¶1} Appellant Chet Lauer appeals from the May 21, 2013 Journal Entry of the
Morrow County Municipal Court. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} At 3:44 a.m. on May 27, 2012, Trooper Ruhl of the Ohio State Highway
Patrol was stationary in his cruiser on a crossover on Interstate Route 71, north of Exit
140, in the Township of Bennington, Morrow County. He pulled onto the highway into a
group of vehicles traveling north and noticed the Chevy Malibu driven by appellant
commit a marked lanes violation. Ruhl caught up to appellant’s vehicle, activated his
overhead lights, and initiated a traffic stop.
{¶3} Appellant put on his left turn signal and pulled off the highway onto the
median, not completely out of the lane of travel. Ruhl left his cruiser partly in the lane of
travel with its overhead lights on to block the scene of the stop from oncoming traffic.
When Ruhl approached the vehicle and asked appellant why he pulled into the median,
appellant apologized.
{¶4} Appellant was the only occupant of the vehicle. Ruhl observed appellant’s
bloodshot, glassy eyes and noted the moderate odor of an alcoholic beverage
emanating from the vehicle. Ruhl asked appellant for his operator’s license and
registration; appellant produced his license without incident but was unable to locate the
vehicle registration. (Evidence was later adduced the car belonged to appellant’s
parents.) Ruhl asked appellant whether he’d had anything to drink and appellant initially
said “not much” and then quickly said “none” or “one,” a matter disputed at the
suppression hearing.
Morrow County, Case No. 13CA0006 3
{¶5} Ruhl asked appellant to exit the vehicle and brought him back near the
cruiser to perform standardized field sobriety tests (S.F.S.T.s). Outside the vehicle Ruhl
noted the odor of an alcoholic beverage upon appellant’s person. Ruhl testified he
observed six clues of impairment on the horizontal gaze nystagmus, two indications of
impairment on the walk-and-turn test, and three clues on the one-leg stand test.
{¶6} Appellant was charged by uniform traffic citation with one count of O.V.I.
pursuant to R.C. 4511.19(A)(1)(a) and (A)(1)(d) and one count of marked lanes
pursuant to R.C. 4511.33. Appellant entered pleas of not guilty and moved to suppress
evidence flowing from the traffic stop and arrest. Appellee opposed the motion and the
trial court held a suppression hearing on September 24, 2012. On November 14, 2012,
by written judgment entry, the trial court found the trooper failed to administer the
standardized field sobriety tests in substantial compliance with standardized procedures
and suppressed those results, but otherwise overruled the motion to suppress.
{¶7} On or about May 21, 2013, appellant entered pleas of no contest to the
charges and was found guilty by the trial court. His sentence included a three-day
driver intervention program, mandatory fine and license suspension, all suspended
pending the instant appeal.
{¶8} Appellant now appeals from the May 21, 2013 Journal Entry of the trial
court.
Morrow County, Case No. 13CA0006 4
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
OVERRULING DEFENDANT’S MOTION TO SUPPRESS, IN DEROGATION OF
DEFENDANT’S RIGHTS UNDER THE 4TH AND 14TH AMENDMENT[S] TO THE
UNITED STATES CONSTITUTION.”
ANALYSIS
{¶11} In his sole assignment of error, appellant argues the trial court erred in
overruling his motion to suppress because the trooper had no specific, articulable facts
justifying his administration of the standardized field sobriety tests and had no probable
cause to arrest appellant.
{¶12} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App. 3d 328, 332,
713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St. 3d 148, 154, 661 N.E.2d 1030
(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App. 3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate
court must independently determine as a matter of law, without deference to the trial
court’s conclusion, whether the trial court’s decision meets the applicable legal
standard. State v. Williams, 86 Ohio App. 3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),
overruled on other grounds.
Morrow County, Case No. 13CA0006 5
{¶13} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St. 3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. See, Williams,
supra. Finally, an appellant may argue the trial court has incorrectly decided the
ultimate or final issues raised in a motion to suppress. When reviewing this type of
claim, an appellate court must independently determine, without deference to the trial
court’s conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App. 3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶14} First, appellant contends the trial court reached the wrong conclusion in
finding specific, articulable reasons existed for the trooper to administer SFSTs,
essentially contesting the trial court’s findings of fact. It is well-established that an
officer may not request a motorist to perform field sobriety tests unless that request is
independently justified by reasonable suspicion based upon articulable facts that the
motorist is intoxicated. State v. Evans, 127 Ohio App. 3d 56, 62, 711 N.E.2d 761(11th
Dist.1998), citing State v. Yemma, 11th Dist. No. 95–P–0156, unreported, 1996 WL
495076 (Aug. 9, 1996). Reasonable suspicion is “ * * * something more than an
inchoate or unparticularized suspicion or hunch, but less than the level of suspicion
required for probable cause.” State v. Shepherd, 122 Ohio App. 3d 358, 364, 701 N.E.2d
Morrow County, Case No. 13CA0006 6
778 (2nd Dist.1997). “A court will analyze the reasonableness of the request based on
the totality of the circumstances, viewed through the eyes of a reasonable and prudent
police officer on the scene who must react to events as they unfold.” Village of Kirtland
Hills v. Strogin, 11th Dist. Lake No. 2005–L–073, 2006–Ohio–1450, at ¶ 13, citing
Village of Waite Hill v. Popovich, 11th Dist. Lake No. 2001–L–227, 2003–Ohio–1587, at
¶ 14.
{¶15} We find the totality of the circumstances gave the trooper sufficient indicia
of intoxication to establish a reasonable suspicion to request appellant to submit to field
sobriety testing. State v. Patel, 5th Dist. Stark No. 2012CA00190, 2013-Ohio-3300, ¶
25-26 ; State v. Strope, 5th Dist. Fairfield No. 08 CA 50, 2009–Ohio–3849, ¶ 20. In
addition to appellant’s admitted traffic violation, the trooper noticed a “moderate” odor of
alcohol emanating from the vehicle and then from appellant’s person; appellant's eyes
were bloodshot and glassy; and appellant first admitted to drinking then vacillated.
Based on the totality of the circumstances, we find the trooper had sufficient indicia of
intoxication to establish a reasonable suspicion to request appellant to submit to field
sobriety testing. Id.
{¶16} Appellant then concludes appellee failed to establish probable cause
existed to arrest him for O.V.I. Probable cause to arrest exists if the facts and
circumstances within the knowledge of the trooper are sufficient to cause a reasonably
prudent person to believe that the defendant has committed the offense. State v.
Cummings, 5th Dist. Stark No. 2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State v.
Heston, 29 Ohio St. 2d 152, 280 N.E.2d 376 (1972). “The arrest merely has to be
supported by the arresting officer's observations of indicia of alcohol consumption and
Morrow County, Case No. 13CA0006 7
operation of a motor vehicle while under the influence of alcohol.” State v. Eustis, 5th
Dist. Knox No. 08CA000006, 2008–Ohio–5955, ¶ 11 citing State v. Van Fossen, 19
Ohio App. 3d 281, 484 N.E.2d 191(10th Dist.1984). In making this determination, the
trial court must examine the totality of facts and circumstances surrounding the arrest.
See State v. Miller, 117 Ohio App. 3d 750, 761, 691 N.E.2d 703 (11th Dist.1997); State
v. Brandenburg, 41 Ohio App. 3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987). When
evaluating probable cause to arrest for OVI, the totality of the facts and circumstances
can support a finding of probable cause to arrest even where no field sobriety tests
were administered. See State v. Homan, 89 Ohio St. 3d 421, 427, 732 N.E.2d 952
(2000). Furthermore, a police officer does not have to observe poor driving performance
in order to effect an arrest for driving under the influence of alcohol if all the facts and
circumstances lead to the conclusion that the driver was impaired. See State v. Harrop,
5th Dist. Muskingum No. CT2000–0026 (July 2, 2001), citing Atwell v. State, 35 Ohio
App.2d 221, 301 N.E.2d 709 (8th Dist.1973).
{¶17} In examining the totality of facts and circumstances surrounding this
arrest, the trial court looked to a number of factors. As appellant points out, the trial
court relied upon the eleven-part test found in State v. Evans, supra, 127 Ohio App.3d
at 56, in determining whether the trooper had probable cause to arrest appellant.
Specifically, the Evans court stated:
Without citing the numerous cases which have been canvassed, it
may be said these factors include, but are not limited to (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
Morrow County, Case No. 13CA0006 8
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. All of
these factors, together with the officer's previous experience in
dealing with drunken drivers, may be taken into account by a
reviewing court in determining whether the officer acted reasonably.
{¶18} No single factor is determinative. Id. at fn. 2.
{¶19} We have previously noted the Evans factors are “more accurately cited in
the context of an officer's decision to conduct field sobriety tests, rather than for the
issue of probable cause to arrest.” State v. Shullo, 5th Dist. Stark No. 2010 CA 00261,
2011-Ohio-1619, ¶ 15, citing State v. Foster, 5th Dist. Tuscarawas No.2009AP020007,
Morrow County, Case No. 13CA0006 9
2009–Ohio–4764, ¶ 13–19. A trial court's reliance on Evans in the context of probable
cause does not constitute a reversible failure to apply the correct test or law to the
findings of fact. Id. In the instant case, the trial court used the Evans factors to
thoroughly evaluate the facts and circumstances surrounding the trooper’s decision to
make the arrest.
{¶20} We agree with the trial court’s decision finding probable cause existed for
this arrest. We note the trial judge is in the best position to determine the credibility of
witnesses and his conclusion in this case is supported by competent facts. State v.
Anderson, 5th Dist. Muskingum No. CT2013-0016, 2013-Ohio-4664, ¶ 21, citing State v.
Burnside, 100 Ohio St. 3d 152, 154–55, 797 N.E.2d 71 (2003). The fundamental rule
that weight of evidence and credibility of witnesses are primarily for the trier of fact
applies to suppression hearings as well as trials. State v. Fanning, 1 Ohio St. 3d 19, 20,
437 N.E.2d 583 (1982). Upon our review of the record, we disagree with appellant’s
minimization of his erratic driving. Appellant admits to the marked lanes violations; we
further note, however, upon being traffic stopped on an interstate, he put on his left turn
signal and pulled into the median, not fully clearing the lane of traffic, requiring the
trooper to block the scene of the stop with his cruiser. Additional factors supporting the
finding of probable cause include the time of the stop, appellant’s admission and
vacillation, and the moderate odor of an alcoholic beverage emanating not only from the
interior of the vehicle, but also upon appellant’s person.
{¶21} We find appellee’s evidence supports the conclusion the trooper had
specific, articulable reasons justifying the administration of the SFSTs and probable
Morrow County, Case No. 13CA0006 10
cause to arrest appellant for O.V.I. The trial court therefore did not err in overruling
those portions of appellant’s motion to suppress.
CONCLUSION
{¶22} Appellant’s sole assignment of error is overruled and the judgment of the
Morrow County Municipal Court is affirmed.
By: Delaney, J. and
Gwin, P.J.
Farmer, J., concur.