State v. Vonalt

[Cite as State v. Vonalt, 2011-Ohio-3883.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0103-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GARY R. VONALT MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 09 TRC 08924
DECISION AND JOURNAL ENTRY
Dated: August 8, 2011
BELFANCE, Presiding Judge.
{¶1} Gary Vonalt appeals the judgment of the trial court. For the reasons set forth
below, we affirm.
I.
{¶2} Just after midnight on November 17, 2009, Officer Cliff Nicholson observed a
car, which he later learned was being driven by Mr. Vonalt. Officer Nicholson observed Mr.
Vonalt make a wide turn and cross left of center, “straddl[ing] the whole entire lane in the * * *
opposite lane of traffic.” Officer Nicholson followed Mr. Vonalt for a bit and then initiated a
traffic stop. As he approached the vehicle, Officer Nicholson smelled “a moderate odor of
alcohol” that he determined was coming from Mr. Vonalt. Officer Nicholson asked Mr. Vonalt
how many drinks he had had. According to Officer Nicholson, Mr. Vonalt replied that he had
drunk six beers.
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{¶3} Officer Nicholson asked Mr. Vonalt to step out of the car and proceeded to
perform field sobriety tests. Officer Nicholson determined that Mr. Vonalt demonstrated
multiple signs of intoxication during these tests. Based on the tests and his other observations,
Officer Nicholson placed Mr. Vonalt under arrest.
{¶4} Mr. Vonalt moved to suppress the arrest and the evidence obtained from the
traffic stop. He argued that Officer Nicholson lacked reasonable suspicion to perform the initial
stop of his vehicle and that Officer Nicholson lacked probable cause to arrest him because
Officer Nicholson failed to properly follow the guidelines for conducting the field sobriety tests.
The trial court suppressed the evidence obtained through the horizontal gaze nystagmus and one-
legged-stand tests, determining that Officer Nicholson had failed to substantially comply with
the National Highway Traffic Safety Administration (“NHTSA”) procedures for conducting
those tests. The trial court denied the rest of Mr. Vonalt’s motion, determining that Officer
Nicholson had reasonable suspicion to stop Mr. Vonalt, that he had substantially complied with
the NHTSA procedures for the walk-and-turn test, and that he had probable cause to arrest Mr.
Vonalt.
{¶5} Mr. Vonalt appeals, raising a single assignment of error.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS
WHERE THE VIDEOTAPE FAILS TO SHOW ANY TRAFFIC VIOLATIONS
AND THE OFFICER FAILED TO SUBSTANTIALLY COMPLY WITH
ADMINISTRATION OF THE WALK AND TURN (WAT) FIELD SOBRIETY
TEST IN ACCORDANCE WITH THE NHTSA MANUAL[.]”
{¶6} Mr. Vonalt argues that the trial court erred in determining that Officer Nicholson
had reasonable suspicion to initiate a traffic stop. He also argues that, even if the stop was legal,
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the trial court should have found that Officer Nicholson failed to substantially comply with the
procedures for conducting the walk-and-turn test. According to Mr. Vonalt, because all of the
field sobriety tests were improperly conducted, Officer Nicholson lacked probable cause to arrest
him.
{¶7} Generally, review of a motion to suppress presents a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, at ¶8. Thus, we defer to the trial
court’s findings of fact if they are supported by competent, credible evidence and review the trial
court’s application of the law to the facts de novo. State v. Metcalf, 9th Dist. No. 23600, 2007–
Ohio–4001, at ¶6.
{¶8} Regarding the traffic stop, contrary to Officer Nicholson’s testimony, Mr. Vonalt
testified that he did not cross left of center while making a turn. However, the trial court found
that Officer Nicholson had observed Mr. Vonalt cross left of center while making a turn, thus
rejecting Mr. Vonalt’s testimony. Mr. Vonalt does not dispute that such an observation would
provide Officer Nicholson with reasonable suspicion that would justify the traffic stop. Rather,
he argues that the trial court’s finding was not supported by competent and credible evidence
because the incident was not recorded by the dashcam in Officer Nicholson’s cruiser whereas the
remaining events ultimately leading to his arrest were captured by the dashcam. According to
Mr. Vonalt, “[t]he more credible explanation is that Officer Nicholson * * * created the excuse
of a ‘marked lanes’ violation to justify the traffic stop. He knows that[,] if the driver later
challenges the stop, his testimony will simply be more worthy of belief than the driver’s because
he is an officer.”
{¶9} Mr. Vonalt’s credibility argument is a reasonable one, and one with which the
trial court could have agreed. However, the trial court was able to observe Officer Nicholson
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and Mr. Vonalt testify and to weigh their credibility accordingly. Thus, we conclude that the
trial court’s finding that Mr. Vonalt committed a traffic violation is supported by competent and
credible evidence.
{¶10} With regard to probable cause, “this Court reviews a probable cause
determination de novo.” (Internal quotations and citations omitted.) State v. Hash, 9th Dist. No.
10CA0008-M, 2011-Ohio-859, at ¶7. “An officer possesses probable cause to arrest a person for
a violation of R.C. 4511.19[ ] when the totality of the circumstances at the time of arrest would
lead a reasonable person to believe that the person to be arrested is operating a vehicle while
impaired.” State v. Jalwan, 9th Dist. No. 09CA0065-M, 2010-Ohio-3001, at ¶10, citing State v.
Kurjian, 9th Dist. No. 06CA0010-M, 2006-Ohio-6669, at ¶17.
{¶11} Mr. Vonalt argues that Officer Nicholson lacked probable cause to arrest him
because his speech was fine, rather than slurred, and there was no evidence that he had glassy or
bloodshot eyes. In addition, although Officer Nicholson stated that he smelled alcohol, he never
testified that the smell of alcohol was actually coming from Mr. Vonalt’s mouth. He also argues
that, presuming the suppression of the walk-and-turn test, his admission to consuming alcohol,
the smell of alcohol, and the observed lane violation and other observations after the stop were
insufficient to give rise to probable cause.
{¶12} Even assuming, without deciding, that the results of the walk-and-turn test should
have been suppressed, “[t]he totality of the facts and circumstances can support a finding of
probable cause to arrest even where no field sobriety tests were administered or where * * * the
test results must be excluded[.]” State v. Homan (2000), 89 Ohio St.3d 421, 427, superseded by
statute on other grounds. See, also, State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, at
syllabus. (holding that “[a] law enforcement officer may testify at trial regarding observations
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made during a defendant’s performance of nonscientific standardized field sobriety tests”).
Thus, observations made during the stop may also contribute to the totality of the circumstances
analysis bearing upon probable cause.
{¶13} In this case, even without results from the walk-and-turn test, the totality of the
circumstances supports the trial court’s determination of probable cause. In addition to the
testimony, the trial court was able to review the dashcam recording taken during the stop. Mr.
Vonalt generally appeared disoriented, ignoring, or at least failing to follow, multiple directions
given to him by Officer Nicholson throughout the course of the stop.
{¶14} In addition to this disoriented behavior, Mr. Vonalt admitted to having consumed
alcohol. The trial court found that, based on Officer Nicholson’s testimony, Mr. Vonalt had
crossed left of center when making a turn and that Officer Nicholson detected the odor of alcohol
coming from him. Accordingly, the trial court did not err when it determined that, given the
totality of the circumstances, Officer Nicholson had probable cause to arrest Mr. Vonalt for
violating R.C. 4511.19. See, e.g., Homan, 89 Ohio St.3d at 427 (holding that an officer’s
observation of a defendant’s erratic driving, bloodshot and glassy eyes, that she smelled of
alcohol, and her admission that she had been drinking “amply supports * * * [a] decision to place
[her] under arrest[ ]”).
{¶15} Mr. Vonalt’s assignment of error is overruled.
III.
{¶16} Mr. Vonalt’s assignment of error is overruled and the judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina 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(E). 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.
EVE V. BELFANCE
FOR THE COURT
MOORE, J.
DICKINSON, J.
CONCUR
APPEARANCES:
DAVID C. SHELDON, Attorney at Law, for Appellant.
GREGORY A. HUBER, Prosecuting Attorney, and ARTHUR E. FOTH, Assistant Prosecuting
Attorney, for Appellee.