State v. Martin

[Cite as State v. Martin, 2019-Ohio-2517.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ANTONIO MARTIN : Case No. 18 CAC 07 0054
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the County Municipal
Court, Case No. 17TRC22038
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 21, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL APRIL F. CAMPBELL
70 North Union Street 545 Metro Place South
Delaware, OH 43015 Suite 100
Dublin, OH 43017
Delaware County, Case No. 18 CAC 07 0054 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Antonio Martin appeals the March 12, 2018 judgment
of the Delaware County, Ohio Municipal Court denying his motion to suppress, as well as
the court’s judgment of conviction and sentence issued June 21, 2018. Plaintiff-Appellee
is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶ 2} In the early morning hours of December 1, 2017, an identified caller
contacted Delaware County 911 to report he was stopped behind a Volkswagen
hatchback at a stop sign at the intersection of Big Walnut and Old 3C Highway. The caller
reported that the Volkswagen had been stationary for at least two minutes. The caller was
concerned that something was wrong with the driver, later identified as appellant, who
appeared to be the sole occupant of the vehicle. As the caller spoke with the dispatcher,
the driver slowly moved forward into the parking lot of a closed business and stopped.
The caller remained on the scene.
{¶ 3} At the same time appellant stopped his vehicle in the parking lot, Genoa
Township police officers Michael Sigman and Steve Kensinger arrived at the scene and
activated their overhead cruiser lights. As they did, appellant was in the process of getting
out of his car and became immediately confrontational with officers. Sigman ordered
appellant to get back in his car, but appellant refused. Asked for identification appellant
initially refused, then took his identification out of his wallet and put it on the roof of the
Volkswagen while making comments about police officers killing black people. Sigman
noted appellant’s speech was slurred. As he moved closer to appellant, he noted he
smelled strongly of alcohol.
Delaware County, Case No. 18 CAC 07 0054 3
{¶ 4} Appellant remained loud, combative, and rude. Officers attempted to
administer field sobriety tests, but appellant was unable to follow directions. He was
unsteady on his feet, and unable to recite the alphabet. Based on Sigman’s training and
experience, appellant appeared to be highly intoxicated. Appellant was taken into
custody. He later refused to take a breath test.
{¶ 5} Based on these events, appellant was charged with driving under the
influence, a third offense in 10 years, a misdemeanor of the first degree, and refusing a
chemical test, also a misdemeanor of the first degree.
{¶ 6} Appellant filed a motion to suppress, alleging in part that officers had no
lawful basis to detain him at the scene. On January 30, 2019, a hearing was held on the
motion. On March 12, 2018, the trial court issued its judgment entry denying appellant’s
motion to suppress.
{¶ 7} The matter proceeded to a jury trial on June 21, 2018, at the conclusion of
which appellant was found guilty as charged.
{¶ 8} Appellant filed an appeal and the matter is now before this court for
consideration. He raises two assignments of error:
I
{¶ 9} "MARTIN'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED:
WHILE THE ANONYMOUS TIP WAS RELIABLE IN ITS IDENTIFICATION OF MARTIN;
IT WAS NOT RELIABLE IN ITS ASSERTION OF ILLEGALITY TO JUSTIFY DETAINING
HIM."
II
Delaware County, Case No. 18 CAC 07 0054 4
{¶ 10} "MARTIN’S CONVICTIONS SHOULD BE REVERSED: THE TRIAL
COURT DENIED MARTIN'S FOR CAUSE CHALLENGE WHEN IT SHOULD HAVE
GRANTED, WHICH FORCED HIM TO USE A PEREMPTORY TO STRIKE THAT
JUROR, THEREBY GRANTING MARTIN ONE LESS PEREMPTORY THAT HE WAS
ENTITLED."
I
{¶ 11} In his first assignment of error, appellant argues he was illegally detained
by officers because the information provided to dispatch by the 911 caller provided no
proof that appellant was engaging in criminal activity. We disagree.
{¶ 12} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d
165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:
"Appellate 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, 797 N.E.2d 71, ¶ 8. In ruling on 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." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992). On appeal, we "must accept the trial court's
findings of fact if they are supported by competent, credible
evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437
N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to
Delaware County, Case No. 18 CAC 07 0054 5
the conclusion of the trial court, whether the facts satisfy the
applicable legal standard." Id.{¶ 13} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶ 14} No traffic stop occurred here as appellant was already parked in the lot of a
closed business and was exiting his vehicle as officers arrived.
{¶ 15} Interactions between citizens and law enforcement officers can fall within
three distinct categories: a consensual encounter, an investigative detention, and an
arrest. State v. Taylor, 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60(1995).
{¶ 16} “Encounters are consensual where the police merely approach a person in
a public place, engage the person in conversation, request information, and the person
is free not to answer and walk away.” Taylor at 747, 667 N.E.2d 60, citing United States
v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “The Fourth
Amendment guarantees are not implicated in such an encounter unless the police officer
has by either physical force or show of authority restrained the person's liberty so that a
reasonable person would not feel free to decline the officer's requests or otherwise
terminate the encounter.” Id. at 747-748, 667 N.E.2d 60.
{¶ 17} An investigatory stop is also known as a “Terry stop.” In Terry v. Ohio, 392
U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court
determined that “a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior even
Delaware County, Case No. 18 CAC 07 0054 6
though there is no probable cause to make an arrest.” However, for the propriety of a brief
investigatory stop pursuant to Terry, the police officer involved “must be able to point to
specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. Such an investigatory
stop “must be viewed in the light of the totality of the surrounding circumstances”
presented to the police officer. State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044(1980), paragraph one of the syllabus.
{¶ 18} In the case sub judice, the 911caller was not anonymous as alleged by
appellant, but rather identified. As noted by the Supreme Court of Ohio in Maumee v.
Weisner, 87 Ohio St.3d 295, 300, 720 N.E.2d 507 (1999):
[A]n identified citizen informant may be highly reliable and, therefore,
a strong showing as to the other indicia of reliability may be
unnecessary: “[I]f an unquestionably honest citizen comes forward
with a report of criminal activity—which if fabricated would subject
him to criminal liability—we have found rigorous scrutiny of the basis
of his knowledge unnecessary.” Illinois v. Gates, 462 U.S. [213] at
233-234, 103 S.Ct. [2317] at 2329-2330, 76 L.Ed.2d [527] at 545 [
(1983) ].
{¶ 19} However, as noted by the Maumee court at 302, “categorization of the
informant as an identified citizen informant does not itself determine the outcome of this
case. Instead it is one element of our totality of the circumstances review of this
Delaware County, Case No. 18 CAC 07 0054 7
informant's tip, weighing in favor of the informant's reliability and veracity.” The Maumee
court went on to find that the citizen informant had relayed an eyewitness account of a
crime and therefore the dispatch based on the call justified the officer's investigatory stop.
{¶ 20} In State v. Whitacker, 6th Dist. Wood No. WD-13-061, 2014-Ohio-2220,
2014 WL 2170434, ¶ 20, the Sixth District summarized a prior decision, State v. Sabo as
follows:
This court has examined when an informant's telephone call was
sufficient to establish a reasonable basis to believe that an individual
was driving under the influence of alcohol. State v. Sabo, 6th Dist.
Lucas No. L-08-1452, 2009-Ohio-6979. In Sabo, a citizen informant
contacted police with a description of the defendant from observing
him in a gas station convenience store. Id. at ¶ 2. The informant also
relayed the location, model, make, color and license plate number of
his vehicle. Id. Most importantly, the informant gave his name and
contact information and visually observed appellant going into a
nearby restaurant and kept him in sight until police arrived. Id.
Meanwhile, a second identified citizen informant telephoned after
observing appellant at the drive-thru window of the restaurant. Id. at
¶ 3. Affirming the court's denial of appellant's motion to suppress we
noted that, based upon the totality of the circumstances which
included “identified citizen informants” combined with their
observations of appellant staggering, slurring his speech with “weird
Delaware County, Case No. 18 CAC 07 0054 8
eyes” and the information regarding his vehicle and location, the
officer had reasonable suspicion to effectuate the warrantless stop.
Id. at ¶ 21.
{¶ 21} The Sabo court found the citizen informants relayed facts giving rise to a
reasonable suspicion of driving while impaired warranting an investigatory stop.
{¶ 22} Additionally, in Navarette v. California, 134 S.Ct. 1683, 1688-1690, 188
L.Ed.2d 680 (2014), the United States Supreme Court found that a caller's use of the 911
emergency system is another indicia of veracity. Id. The Court found in general, tips
received through 911 calls are more reliable because 911 callers can be identified through
tracing and recording, and false calls are subject to prosecution. Id. Therefore, “a
reasonable officer could conclude that a false tipster would think twice before using such
a system,” thus enhancing the reliability of 911 calls. Id. at 1690.
{¶ 23} The state argues the stop was consensual, but failing that, argues officers
still had adequate suspicion to justify detaining appellant. Appellant argues the
informant’s report of appellant sitting motionless at a stop sign provided no evidence that
he was engaged in any illegal activity.
{¶ 24} We find the initial encounter here was consensual. Although officers
activated their overhead lights before approaching appellant, there was no other show of
authority, and appellant was not restrained from leaving the area. See State v. Yacobucci,
5th Dist. Delaware No. 18 CAC07 0055, 2019-Ohio-36 ¶32 However, based on
appellant’s behavior, the stop quickly became an investigative detention.
{¶ 25} We nonetheless agree with the state that officers possessed sufficient
information to justify an investigative detention. Information from the identified 911 caller
Delaware County, Case No. 18 CAC 07 0054 9
indicated appellant had been stationary at a stop sign for a lengthy period of time, then
drove very slowly into the parking lot of a closed business. The caller remained on the
scene for the duration of the stop. When the officers arrived, they found appellant had
parked and exited his car. Appellant immediately engaged officers in a challenging and
belligerent fashion, while slurring his speech. T. 9-12. Appellant’s own actions further
solidified a suspicion of impaired driving. We find the totality of the circumstances here
warranted the investigatory detention.
{¶ 26} Appellant’s first assignment of error is overruled.
II
{¶ 27} In his second assignment of error, appellant argues the trial court erred
when it denied his challenge for cause to excuse Juror Lemaster, forcing appellant to use
a peremptory challenge. We disagree.
{¶ 28} Crim.R. 24(C)(9) and R.C. 2945.25(B) provide that a person called as a
juror may be challenged for cause when:
* * *the juror is possessed of a state of mind evincing enmity or bias
toward the defendant or the state; but no person summoned as a
juror shall be disqualified by reason of a previously formed or
expressed opinion with reference to the guilt or innocence of the
accused, if the court is satisfied, from the examination of the juror or
from other evidence, that the juror will render an impartial verdict
according to the law and the evidence submitted to the jury at the
trial.
Delaware County, Case No. 18 CAC 07 0054 10
{¶ 29} Trial courts have discretion in determining a juror's ability to be impartial.
State v. Williams, 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d 1323 (1983). “ * *
*However, a ‘ruling on a challenge for cause will not be disturbed on appeal unless it is
manifestly arbitrary* * *so as to constitute an abuse of discretion.’ State v. Tyler, 50 Ohio
St.3d 24, 31, 553 N.E.2d 576 (1990). Accord Williams, 79 Ohio St.3d at 8, 679 N.E.2d at
654.” State v. Nields, 93 Ohio St.3d 6, 20, 2001-Ohio-1291, 752 N.E.2d 859.
{¶ 30} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary, or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 31} During vior dire, under questioning by the state, juror LeMaster indicated
“[t]he fact that he didn’t take the test bothers me * * * I think he’s probably guilty.” T. 82.
Asked if he could evaluate the evidence presented and decide the matter based upon the
instructions provided by the court, LeMaster responded “I can try.” T. 83. Questioned by
counsel for appellant, LeMaster again stated that if appellant refused to submit to a breath
test, he was probably guilty. T. 87.
{¶ 32} Counsel for appellant challenged LeMaster for cause. T. 90. The trial court
then addressed LeMaster:
The Court: - - you indicated what everybody heard you indicate. At
the end of this case, the jury instructions are going to be that you
have to base your decision on all of the evidence and not just one
single piece of evidence. And you’ve exhibited - - you’ve indicated
Delaware County, Case No. 18 CAC 07 0054 11
that there is one piece of evidence that would probably sway you
heavily.
Do you think you can listen to the Court’s instructions on the
evaluation of evidence and how you are to treat the evidence and
consider all of the evidence in making your decision at the end of the
day without being prejudiced or biased by one piece of evidence,
which is the possibility that the Defendant didn’t take the test?
[LeMaster] - - I think I can.
{¶ 33} T. 92. While LeMaster’s response is ambigus on a cold transcript, the trial
court observed LeMaster’s response. Deference must be given to the trial judge who sees
and hears the juror. State v. Nields, 93 Ohio St.3d 6, 21, 2001-Ohio-1291, 752 N.E.2d
859.
{¶ 34} Even assuming arguendo the trial court should have granted appellant’s
challenge for cause, our evaluation centers on whether appellant was denied a fair and
impartial jury. We find he was not. As recently noted by the Eleventh District in State v.
Gipson, 11th Dist. Lake No. 2018-L-093, 2019-Ohio-1165 ¶ 14:
“[T]he relevant inquiry * * * is ‘ “whether the composition of the jury
panel as a whole could possibly have been affected by the trial
court's error.” ’ ” (citations omitted) State v. Broom, 40 Ohio St.3d
277, 287 (1988). Thus, in order for a constitutional violation to occur,
the defendant must have used all of his peremptory challenges and
Delaware County, Case No. 18 CAC 07 0054 12
be able to demonstrate that one of the jurors seated was not impartial
and that juror in question must have been challenged for cause. Id.Otherwise, “he is presumed to be impartial and the defendant was
not forced to use a peremptory challenge.” Id., quoting Broom, supra.
{¶ 35} Here, after his challenge for cause was denied, counsel for appellant
exercised a peremptory challenge to remove LeMasters, and still had one peremptory
challenge remaining. None of the ultimately empaneled jurors were challenged by
appellant, nor has appellant argued here that an empaneled juror would have been
removed had he not exhausted his peremptory challenges. Appellant was therefore not
denied his right to a fair and impartial jury by being forced to use a peremptory challenge.
{¶ 36} Finally, appellant mentions in a cursory fashion that the state was permitted
to exercise an extra peremptory challenge. Appellant does not expand on this notion, nor
does he point us toward the point in the transcript where this allegedly occurred. Our own
examination of the record indicates the state and appellant each received three
peremptory challenges and the state exercised only one.
{¶ 37} The final assignment of error is overruled.
Delaware County, Case No. 18 CAC 07 0054 13
{¶ 38} The judgment of the Delaware County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw