State v. Jarosz
| Decision Date | 31 December 2013 |
| Docket Number | No. 2013–P–0050.,2013–P–0050. |
| Citation | 5 N.E.3d 1102 |
| Parties | STATE of Ohio, Plaintiff–Appellant, v. John F. JAROSZ, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, Ravenna, OH, for Plaintiff–Appellant.
A. Dale Naticchia, Seven Hills, OH, for Defendant–Appellee.
{¶ 1} Appellant, the state of Ohio, appeals the judgment of the Portage County Municipal Court, Ravenna Division, granting the motion to suppress of appellee, John F. Jarosz. At issue is whether the state trooper was authorized in stopping appellee for speeding and in ordering him to exit his vehicle for field sobriety tests. For the reasons that follow, we affirm.
{¶ 2} Appellee was charged by citation with speeding, a minor misdemeanor, in violation of R.C. 4511.21(A), and operating a motor vehicle under the influence of alcohol, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d). Appellee pled not guilty. He subsequently filed a motion to suppress in which he argued that the state trooper lacked reasonable suspicion to stop him and also that the trooper lacked probable cause to order him to exit his vehicle to perform field sobriety tests.
{¶ 3} The trial court held a suppression hearing. Trooper John Lamm of the Ohio State Highway Patrol testified that on November 3, 2012, at about 11:30 p.m., he was on routine patrol driving his cruiser northbound on State Route 44 in Rootstown Township. He said a car was in front of him driving in the same direction on Route 44. Based on a “visual estimation,” he said the car was travelling in excess of the 45 mph speed limit. He paced the car travelling at 52 mph, but said the speed was fluctuating and he never got a steady pace so he continued to follow the car.
{¶ 4} Trooper Lamm said that once he and the driver of the vehicle, later identified as appellee, crossed into the 40 mph zone near Hartsville Road, he again paced appellee. In doing so, he activated his rear radar, which determined the speed of his cruiser.
{¶ 5} Trooper Lamm then focused on keeping the same distance between his cruiser and appellee's vehicle. He testified he did so for 12 seconds until both vehicles reached Tallmadge Road, at which time he determined appellee's speed to be 48 mph. He said he was “a hundred percent positive that [he] had a good speed pace on him and [he] logged a speed pace of 48 miles an hour in a 40 zone.”
{¶ 6} Trooper Lamm said he then decided to stop appellee for speeding. He started to catch up with him and activated his overhead lights. Appellee pulled over and the trooper stopped directly behind him. The trooper exited his cruiser and approached the passenger side of appellee's car. He made contact with appellee and the passenger in the front passenger seat. The trooper detected a strong odor of alcoholic beverage coming from the interior of the car, but he could not determine which occupant was the source of the smell.
{¶ 7} The trooper asked the occupants where they were coming from and they both said the Dusty Armadillo, which is a nearby bar. The trooper asked appellee for his driver's license and appellee handed it to the trooper through the front passenger window. The trooper told appellee he stopped him because he was speeding.
{¶ 8} The trooper then walked over to the driver's side of appellee's car and saw that appellee's eyes were “glassed over.” The trooper continued to detect a strong odor of alcohol coming from the interior of the car, but still could not determine its source. As a result, the trooper had appellee exit his car and come with him to his cruiser. The state asserts in its brief that the trooper “asked Jarosz to get out of the vehicle to perform field sobriety tests.” The trooper had appellee sit in the front passenger seat and the trooper sat in the driver's seat. In the cruiser, the trooper confirmed that appellee's eyes were glassy. Further, as appellee was speaking, the trooper detected a strong odor of alcoholic beverage coming from his breath. The trooper then had appellee perform field sobriety tests and subsequently arrested him. The result of appellee's breath test at the station was .088.
{¶ 9} On cross-examination, Trooper Lamm said that in order to determine an offender's speed using the pace method, it is necessary to maintain the same distance between his cruiser and the offender's vehicle. Then, once the trooper determines his own speed, he can determine the offender's speed. The trooper said that if he was going faster than appellee while he was trying to pace him, he would not have been able to obtain a good pace because he would not be maintaining the same distance. However, Trooper Lamm said there is no specific minimum amount of time he is required to pace a vehicle in order to obtain an offender's speed.
{¶ 10} While observing a video recording of the stop during cross-examination, Trooper Lamm said it shows that as soon as he and appellee crossed into the 40 mph zone, he had a good pace on appellee and maintained the same distance. He said that after he obtained appellee's speed, the video shows he started to gain on appellee and then stopped him.
{¶ 11} Trooper Lamm said that appellee's speech was not slurred. He answeredall questions appropriately and he was cooperative.
{¶ 12} Following the hearing, the trial court entered judgment granting appellee's motion to suppress. The court found that,
{¶ 13} The state appeals the trial court's judgment, asserting two assignments of error. For its first assigned error, the state contends:
{¶ 14}
{¶ 15} Appellate review of a trial court's ruling on a motion to suppress evidence 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. During a hearing on a motion to suppress evidence, the trial judge acts as the trier of fact and is in the best position to resolve factual questions and assess the credibility of the witnesses. Id.;State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “[T]he trier of fact * * * is in the best position to observe and evaluate the demeanor, voice inflection, and gestures of the witnesses.” State v. Dach, 11th Dist. Trumbull Nos. 2005–T–0048 and 2005–T–0054, 2006-Ohio-3428, 2006 WL 1816251, ¶ 42. “[T]he factfinder is free to believe all, part, or none of the testimony of each witness appearing before it.” Warren v. Simpson, 11th Dist. Trumbull No. 98–T–0183, 2000 WL 286594, *3 (Mar. 17, 2000). An appellate court reviewing a motion to suppress is bound to accept the trial court's findings of fact where they are supported by some competent, credible evidence. State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). Moreover, if the evidence is susceptible to more than one interpretation, a reviewing court must interpret it in a manner consistent with the verdict. Warren, supra. Accepting these facts as true, the appellate court independently reviews the trial court's legal determinations de novo. State v. Djisheff, 11 th Dist. Trumbull No. 2005–T–0001, 2006-Ohio-6201, 2006 WL 3393344, ¶ 19.
{¶ 16} Further, a stop is constitutional if it is supported by probable cause. Ravenna v. Nethken, 11th Dist. Portage No. 2001–P–0040, 2002-Ohio-3129, 2002 WL 1357782, ¶ 30–31.
{¶ 17} Moreover, if a police officer observes any traffic law violation, sufficient grounds exist for the officer to stop the vehicle. State v. Wojtaszek, 11th Dist. Lake No. 2002–L–016, 2003-Ohio-2105, 2003 WL 1956268, ¶ 16, citing State v. Brownlie, 11th Dist. Portage Nos. 99–P–0005 and 99–P–0006, 2000 WL 522463, *2 (Mar. 31, 2000). Where a police officer witnesses a minor traffic violation, the officer is justified in making a limited stop for the purpose of issuing a citation. Brownlie, supra, citing State v. Jennings, 11th Dist. Trumbull No. 98–T–0196, 2000 WL 263741, *3 (Mar. 3, 2000).
{¶ 18} The state argues that the trial court erred in not considering the totality of the circumstances because the court only considered the video. The state's argument is based on the trial court's finding in its judgment that, “based on the video of the stop, * * * Trooper Lamm did not establish an equal distance from [appellee's] vehicle while pacing [appellee].”
{¶ 19} However, there is nothing in the court's judgment suggesting that the court did not consider all the circumstances surroundingthe stop and all evidence presented, including Trooper Lamm's testimony, in making its ruling. To the contrary, the trial court in its judgment entry recounted Trooper Lamm's testimony. The court found that the trooper testified he paced appellee traveling 48 mph in a 40 mph zone and, as a result, he stopped appellee for speeding. However, the court found that, based on its review of the video of the stop, the trooper did not maintain an equal distance from appellee's vehicle while pacing him. Thus, while the trial court considered the trooper's testimony, he obviously found that it was not supported by the video and that it was therefore not credible.
{¶ 20} As noted above, the trial court as the trier of fact is in the best position to evaluate the credibility of the witnesses because it observes the demeanor, voice inflection, and gestures of the witnesses. Dach, supra. The video of the stop was admitted in evidence. The court was thus entitled to consider the video to determine whether it supported or contradicted the...
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