Toledo v. Cook

[Cite as Toledo v. Cook, 2019-Ohio-1484.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-18-1146
Appellee Trial Court No. TRC-17-28088
v.
Brian Cook DECISION AND JUDGMENT
Appellant Decided: April 19, 2019
*****
David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
Prosecutor, for appellee.
Alan J. Lehenbauer, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a June 19, 2018 judgment of the Toledo Municipal
Court, denying appellant’s motion to suppress in the underlying operating a motor
vehicle while under the influence case. For the reasons set forth below, this court affirms
the judgment of the trial court.
{¶ 2} Appellant, Brian Cook, sets forth the following two assignments of error:
I. THE TRIAL COURT ERRED IN FINDING THAT THE
ARRESTING OFFICER HAD PROBABLE CAUSE TO ARREST
APPELLANT ON DRIVING UNDER THE INFLUENCE.
II. THE TRIAL COURT ERRED IN DENYING THE MOTION
TO SUPPRESS BECAUSE THERE WAS NO IN-COURT
IDENTIFICATION OF APPELLANT AS THE PERSON WHO
COMMITTED THE OFFENSES.
{¶ 3} The following undisputed facts are relevant to this appeal. On the afternoon
of December 30, 2017, a Toledo Police Department crew on routine patrol received
several radio calls notifying them to be on the lookout for a vehicle driving recklessly.
The vehicle had just caused an accident at the intersection of Heatherdowns Blvd. and
Eastgate Rd. The officers were provided with a detailed description of the subject
vehicle, including the vehicle’s license plate number.
{¶ 4} Approximately ten minutes later, the officers observed the vehicle that they
had received the notifications about and began to follow it. Shortly thereafter, the
officers observed the vehicle weaving across marked lanes and run a red light.
{¶ 5} Following these observations, the officers initiated a traffic stop. Upon
approaching the vehicle, the officers observed that appellant, the vehicle driver, was not
responsive to their verbal commands. Due to safety concerns, appellant was removed
from the vehicle, handcuffed, and placed in the police vehicle.
2.
{¶ 6} During this process, the officers detected a strong odor of alcohol, observed
that appellant had difficulty standing and walking, and observed that appellant was slow
in responding to commands.
{¶ 7} Based upon these events and observations, appellant was arrested and
charged with one count of operating a motor vehicle while under the influence, in
violation of R.C. 4511.19(A)(1), one count of failure to stop after an accident, in
violation of R.C. 4549.02, and one count of failure to obey a traffic control device, in
violation of R.C. 4511.12.
{¶ 8} On January 5, 2018, appellant pled not guilty to these offenses. On May 18,
2018, appellant filed a motion to suppress. On June 19, 2018, the trial court conducted an
evidentiary hearing on appellant’s pending motion to suppress.
{¶ 9} During the motion to suppress hearing, the arresting officer testified that
while on duty on December 30, 2017, his patrol team received several radio calls
notifying all officers on duty to watch out for a particular vehicle. They were provided
with a vehicle description, including the vehicle license plate number. The subject
vehicle had just been observed and reported by multiple witnesses driving recklessly and
causing an accident.
{¶ 10} The officer further testified that shortly after receiving these calls he
observed the subject vehicle, verified that it matched the information provided, and began
following it. The officer next observed appellant weaving across marked lanes and
running a red light. Accordingly, a traffic stop was conducted.
3.
{¶ 11} Due to appellant’s inability to respond to the verbal commands of the
officers, appellant was removed from his vehicle, handcuffed, and placed in the police
cruiser. During this process, the officer testified detecting a strong odor of alcohol,
observed appellant to be unsteady on his feet, had difficulty standing and walking, and
was very slow in reacting and responding to verbal commands.
{¶ 12} The officer testified that given these circumstances, he requested a tow of
the vehicle. The officer was unable to perform standard field sobriety tests as appellant
was unable to stand.
{¶ 13} The officer testified on cross-examination that although they had not been
provided with a description of the driver of the vehicle, appellant’s vehicle description
and license plate number matched the subject vehicle. The officer’s testimony further
reflects that the subject vehicle was spotted by the officer minutes after being notified
about it. In addition, the officer was on patrol in the same general vicinity of Toledo
where the vehicle had been reported.
{¶ 14} The officer further testified that appellant was unable to sit, fell onto the
seat of the police cruiser, smelled strongly of intoxicating beverages, had glassy eyes,
slurring speech, and difficulty responding to questions.
{¶ 15} Notably, when questioned as to who specifically the officer had this
encounter with, the officer positively identified appellant. Counsel for appellee inquired
of the officer, “And when you refer to S1 [suspect], who is that referring to?” The officer
affirmatively replied, “Suspect one, the defendant.”
4.
{¶ 16} The trial court ultimately concluded, “So in the totality of the
circumstances, report of a hit skip accident matching the description of the vehicle * * *
running the red light and swerving across the lines was probable cause * * * the
testimony of the odor of alcohol, the non-responsiveness in the speech * * * there is
probable cause.” The motion to suppress was denied.
{¶ 17} Following the denial of the suppression motion, a plea agreement was
reached in which appellant pled guilty to the count of operating a motor vehicle while
under the influence and the traffic control device violation. In exchange, appellee
dismissed the offense of leaving the scene of an accident.
{¶ 18} The trial court noted that appellant’s record included prior reckless
operation and operation of a motor vehicle while under the influence convictions.
Appellant was sentenced to a 180-day term of incarceration, with 150 days suspended,
25 days to be served on electronic monitoring, and 5 days to be served at the Corrections
Center of Northwest Ohio (“CCNO”). This appeal ensued.
{¶ 19} In the first assignment of error, appellant asserts that the trial court erred in
finding probable cause for appellant’s arrest. We do not concur.
{¶ 20} It is well-established that the standard of appellate review for a disputed
motion to suppress requires this court to assume that the trier of fact is in the best position
to resolve questions of fact and to evaluate witness credibility. As such, the appellate
court is bound to accept the trial court findings, so long as they are supported by
5.
competent, credible evidence. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8.
{¶ 21} As applied to the instant case, we note that the record reflects that officers
on patrol on December 30, 2017, received two notifications of a vehicle driving
recklessly that had just caused an accident. The vehicle description and license plate
number were provided to the patrol officers.
{¶ 22} The record further reflects that shortly thereafter, while on patrol in the
same vicinity of Toledo, the officers observed the vehicle, verified the vehicle identifiers,
and began to follow it. The officers next observed the vehicle swerve and run a red light.
{¶ 23} Upon initiating a traffic stop, the officers observed appellant, the driver of
the vehicle, to be unresponsive, exhibiting a strong odor of alcohol, glassy-eyed, slurring
his speech, and so unable to stand as a result of impairment that they could not perform
standard field sobriety tests.
{¶ 24} We find that the record reflects ample, credible evidence in support of the
disputed probable cause determination. We find appellant’s first assignment of error not
well-taken.
{¶ 25} In appellant’s second assignment of error, appellant asserts that the trial
court denial of the motion to suppress was erroneous based upon appellant’s position that
the testifying officer did not identify appellant as the perpetrator during the motion to
suppress hearing. We do not concur.
6.
{¶ 26} In support of the second assignment of error, appellant argues, “At the
suppression hearing, counsel for the city of Toledo did not engage in any discussion with
[the officer] wherein the officer identified [appellant] to be the driver of the vehicle
stopped on December 30, 2018. The transcript of the proceedings does not comport with
appellant’s assertion.
{¶ 27} Our review of the suppression hearing transcript reveals several instances
during the hearing in which appellant was positively identified as the offender by the
officer. During the hearing, the dash cam video of the incident was shown. When asked
by counsel for appellee what the current portion of the video was showing, the officer
replied, “I’m giving commands, to the driver, to shut the vehicle off.” When next asked
what the immediately following video footage reflected, the officer responded, “We were
handcuffing the defendant [appellant].”
{¶ 28} In addition, counsel for appellee asked the officer about the audio heard in
the background of the dash cam video. Counsel inquires, “Officer * * * is that the
defendant that we hear in the video?” The officer affirmatively replies, “Yes.”
{¶ 29} During a later portion of the suppression hearing, the officer is questioned
about his written investigation report regarding the incident. Counsel for appellee had the
officer review the details of the report and then asked, “And that was your report?” The
officer replied, “Yes.” Counsel then inquired, “And when you refer to S1, who is that
referring to?” The officer affirmatively identified appellant replying, “Suspect one, the
defendant.”
7.
{¶ 30} We find that contrary to appellant’s position, the transcript of proceedings
of the suppression hearing reflects that the officer’s testimony positively identified
appellant as the offender, the driver of the vehicle.
{¶ 31} Appellant suggests, without evidentiary support, that because a description
of the person driving the vehicle was not provided to the officers in the initial radio calls,
that some unknown party could have been driving the subject vehicle at the time of the
accident, immediately prior to appellant’s arrest while driving that same vehicle several
minutes later. We are not persuaded.
{¶ 32} Wherefore, we find appellant’s second assignment of error not well-taken.
{¶ 33} On consideration whereof, the judgment of the Toledo Municipal Court is
hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.