City of Fairview Park v. Bowman
| Docket Number | 112300 |
| Decision Date | 22 November 2023 |
| Citation | 2023 Ohio 4210 |
| Parties | CITY OF FAIRVIEW PARK, Plaintiff-Appellee, v. TED BOWMAN, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
John T. Castele, City of Fairview Park Assistant Director of Law and Prosecutor, for appellee.
Gary Cook; James Alexander, Jr., Esq., LLC, and James Alexander Jr., for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant Ted Bowman ("Bowman") appeals his convictions for operating a vehicle under the influence of alcohol ("OVI") under Fairview Park Codified Ordinances 333.01(A)(1)(a) and operating a vehicle with an open container of alcohol ("Open Container") under Fairview Park Codified Ordinances 529.07(B)(4). We affirm the trial court's judgment.
{¶ 2} On June 28, 2021, at approximately 10:00 p.m., Bowman was cited for OVI and Open Container and pleaded not guilty on June 30, 2021. On July 9, 2021,Bowman served discovery on the state. On August 10, 2021, Bowman filed a motion to suppress and a motion in limine. A hearing was conducted on April 25, 2022,after which the trial court denied the motions.
{¶ 3} On September 26, 2022, Bowman filed a second motion in limine to bar the admission of the state's video evidence that was provided by the city just six days before trial. On September 27, 2022, Bowman's trial brief was filed. A jury trial was held on September 27, and September 28, 2022. Bowman made a Crim.R. 29 motion for judgment of acquittal, which was denied. Bowman was convicted of both counts and fined $400 and $100, respectively, plus court costs. He also received an administrative license suspension for one year less credit of 365 days.
{¶ 4} Bowman filed a motion for a new trial on October 12, 2022, that was denied on November 30, 2022.
{¶ 5} Bowman appeals.
{¶ 6} On June 28, 2021, off-duty detective sergeant Matthew Beck ("Det. Beck") of the North Olmsted Police Department testified that he worked at the bureau from 6:00 a.m. to 4:00 p.m. and for traffic enforcement on I-480 until 10:00 p.m. At approximately 10:00 p.m., Det. Beck headed south on Dover Road from the police station located at Dover and Lorain Roads. He stopped at the red light at the intersection of Butternut and Dover Roads behind an older white Oldsmobile.
{¶ 7} The detective testified that the Oldsmobile turned east (left) onto Butternut Ridge and the "right front [passenger side] wheel struck the curb on Butternut Ridge, which sparked my attention." (Tr. 26.) Instead of turning right to go home, Det. Beck followed the vehicle, observed it weaving and crossing the double yellow line and the white fog line and informed dispatch that he was "probably behind a drunk." (Tr. 27.) License plate information provided the owner's name and address and determined they had driven past the driver's residence. (Tr. 28.) The Oldsmobile turned northbound (left) onto Columbia Road and continued to weave, crossing the yellow and white lines.
{¶ 8} The vehicles were approaching Fairview Park's jurisdiction at Mastick Road. The dispatcher reached out to the Fairview Park Police Department to intercept a "possible OVI," described the vehicle, and advised that the North Olmsted officer was following the Oldsmobile. Det. Beck stated he ultimately had to contact Fairview Park Officer Kelley ("Officer Kelley") directly until Officer Kelley stopped the Oldsmobile "northbound on West 220th between Mastick and Lorain Road." (Tr. 34.)[1] Det. Beck remained at the stop until a Fairview Park officer arrived and advised that officer what he had witnessed.
{¶ 9} Det. Beck testified he followed the Oldsmobile for approximately ten minutes. He did not pull the driver over because he was driving his personal vehicle, a Toyota pickup truck. Pulling over the Oldsmobile while driving his personal vehicle was "against the law and against our policy." (Tr. 41.) Det. Beck stated, "he could have" arrested the driver after the Oldsmobile entered Fairview Park but he did not, nor did Officer Kelley initially. Det. Beck was able to view the back of the driver's head because it was illuminated by his truck's headlights but never saw Bowman directly.
{¶ 10} The detective parked in front of the Oldsmobile during the stop but did not approach the vehicle. He and Officer Kelley discussed their observations with Officer Mike Thompson ("Officer Thompson") of Fairview Park who arrived at the scene shortly thereafter.
{¶ 11} Officer Kelley was working a 6:00 p.m. to 6:00 a.m. shift the night of the incident. Officer Kelley recounted his OVI training and experience and testified that he responded to a dispatch request. He finally located the Oldsmobile in the West 220th Street and Mastick Road area of Fairview Park. Mastick Road is a "contiguous roadway between North Olmsted and Fairview Park." (Tr. 46.)
{¶ 12} The officer observed:
The vehicle was weaving in its own lane as well as crossing over into the continuous left-turn lane, shared left-turn lane. And then at one point for - not sure approximately how long, but for a pretty good distance, was driving straight down the middle of the continuous left turn lane.
(Tr. 48.)
{¶ 13} Officer Kelley initiated the stop in Fairview Park because the dispatch call was received when the vehicle was in North Olmsted, though he admitted he never observed violations that occurred in North Olmsted. He determined that exigent emergency circumstances existed to initiate the stop in Fairview Park due to the danger posed to the public by Bowman's weaving and driving down the center left turn lane.
{¶ 14} Bowman reportedly fumbled with his driver's license as he handed it to the Officer Kelley.[2] In response to questions by Officer Kelley, Bowman stated he was going to his mother's house and that he had consumed three beers earlier in the evening, though he did not specify what time period.[3] (Tr. 68.)
{¶ 15} Bowman exhibited glassy eyes but no other physical signs of impairment and Officer Kelley did not smell alcohol during the encounter. About three to five minutes into the stop, Officer Thompson arrived and took over. Officer Kelley left the scene a few minutes later. He recalled preparing a short report that was later provided to Officer Thompson.
{¶ 16} Officer Thompson testified he spent ten years with the Fairview Park police department but joined the Westlake police department six months prior to trial. He was trained in alcohol detection, apprehension, and prosecution, and advanced roadside impaired driver enforcement.
{¶ 17} Officer Thompson monitored the shared channel with North Olmsted after being notified by dispatch of the situation where he heard Det. Beck's conversations with North Olmsted dispatch. Officer Thompson had no independent knowledge based on personal observation of Bowman's erratic driving.
{¶ 18} Officer Thompson arrived at the scene where Officer Kelley explained he suspected possible impairment. Officer Thompson testified:
I had a short conversation with Mr. Bowman, observed that he had slurred speech. He looked like he was going to fall asleep. So, typically, I ask if someone has a medical issue. It wasn't expressed to me that he did. So, while speaking to him, slurred speech and glassy eyes and drooping like he's about to fall asleep.
(Tr. 74.)
{¶ 19} After explaining the factors that he looked for to determine impairment, Officer Thompson added (Tr. 75.) Officer Thompson said that Bowman was also unable to perform pre-exit tests employed prior to a suspect exiting the vehicle. The first test required that Bowman recite the alphabet from C to S without singing it. Bowman mixed up the letters. Bowman was also unable to perform the Horizontal Gaze Nystagmus ("HGN") test that required that he follow the tip of the officer's finger with his eyes.
{¶ 20} Officer Thompson stated that the Fairview Park officers did not have body cameras that night and the only cruiser equipped with a dash cam belonged to Officer Barnie ("Officer Barnie") who also had the audio pack. This court's review of the video shows Officer Barnie arrived at the scene just as Bowman exited the car for field sobriety testing. Fairview Park Sergent Jeffrey Jurcak ("Sergent Jurcak") had already arrived.
{¶ 21} Officer Thompson narrated that he next searched Bowman and instructed him to step over to the sidewalk. Bowman appeared to slightly lose his balance at the beginning of the gaze test. Officer Thompson stated he told Bowman that he turned his head instead of holding it still and moving his eyes only. The officer also stated that when Bowman held his head still, he was not watching the finger move but was looking straight ahead though Bowman responded that he could see the finger.
{¶ 22} As Officer Thompson testified and the video supports Bowman appeared to have difficulty walking the imaginary line using heel to toe steps though he finished well until he stumbled turning around. He next attempted to stand on one foot and count but was unable to hold his foot off the ground. He was then arrested. Officer Thompson agreed that someone who stayed up for 24 hours and has a beer or two may appear to be under the influence and not test over the legal limit. Officer Thompson said to the other officers that he did not smell alcohol but Officer Barnie can be heard and seen at the end of the video saying that he "thought" he smelled alcohol coming...
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