State v. Marcus C. Lloyd
| Decision Date | 15 April 1998 |
| Docket Number | 98-LW-1471,96 BA 31 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. MARCUS C. LLOYD, DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Belmont County Common Pleas Court, Case No. 95 TRC 04942-01.
For Plaintiff-Appellee: Attorney Patricia Jones-Estadt, Belmont County Prosecutor, Belmont County Courthouse Annex, St Clairsville, Ohio 43950.
For Defendant-Appellant: Attorney Charles H. Bean, 113 West Main Street, P.O. Box 96, St. Clairsville, Ohio 43950.
Hon Joseph J. Vukovich, Hon. Edward A. Cox, Hon. Cheryl L. Waite.
Appellant, Marcus Lloyd, appeals his conviction of driving while under the influence of alcohol, in violation of R.C. 4511.19 (A)(1) and (3). For the following reasons, we affirm the judgment of the Belmont County Court If Common Pleas.
On December 24, 1995, appellant left the Beach-Hill Bar and was traveling on U.S. Route 40, when he was stopped by Trooper D.J. Herink of the Ohio State Highway Patrol. Trooper Herink observed appellant drive over the yellow center line three times and over the right white edge line twice, by a tire width. As Trooper Herink approached appellant, he detected a strong odor of alcohol. He also noticed that appellant had bloodshot eyes and his speech was slurred. Due to these observations, Trooper Herink administered field sobriety tests, of which appellant failed. Appellant was cited for violating R.C. 4511.25, driving left of center, and R.C. 4511.19(A)(1), driving while under the influence of alcohol. He was arrested and was taken to the police station in order for Trooper Herink to administer a Breath-Alcohol-Concentration ("BAC") Verifier test.
Once at the police station, appellant contacted his attorney, who arrived at the station some time later. Trooper Herink observed appellant for twenty minutes, as is required by R.C. 4511.19(D) and Ohio Adm. Code 3701-53-02(B), before he administered the BAC test. Appellant registered .209 on the BAC test, at which point Trooper Herink cited appellant for violating R.C. 4511.19(A)(3).
Appellant entered a plea of not guilty on all charges. Thereafter, on January 11, 1996, appellant filed a "Motion to Dismiss for Lack of Probable Cause to Stop." In that motion, appellant moved the court for a dismissal of the charges against him, alleging that Trooper Herink "lacked probable cause" to make the initial investigatory stop. Moreover, he claimed that since there was a "lack of probable cause" to make the stop in the first place, Trooper Herink was not entitled to administer field sobriety tests or the BAC Verifier test.
On February 20, 1996, a hearing on appellant's motion took place, during which Trooper Herink testified, as well as one of the passengers in appellant's vehicle. The hearing was recessed, to be reconvened at a later date.
On April 23, 1996, appellant filed a "Motion to Amend," in which he moved the court for an order allowing him to amend his "Motion to Dismiss" to read "Motion to Dismiss and/or Suppress Evidence of Field Sobriety and Blood (sic.) Alcohol Content Test." Once the hearing on appellant's motion was reconvened, the State made no objection to the amendment, and appellant and his father testified.
On May 7, 1996, appellant's motion was overruled.
On June 18, 1996, appellant withdrew his not guilty plea and entered a plea of no contest. Accordingly, the trial court found appellant guilty. It is from this conviction that this appeal emanates, in which appellant sets forth three assignments of error for this court's review.
All of appellant's assignments of error concern his "Motion to Dismiss and/or Suppress." We feel it important to first address an issue of semantics which often arises in motion practice in criminal cases. Appellant initially filed what he labeled a "Motion to Dismiss" and later filed a "Motion to Amend" the caption to read "Motion to Dismiss and/or Suppress." There is absolutely no provision in the Ohio Rules of Criminal Procedure with respect to a "Motion to Dismiss" a criminal case which is founded upon a lack of probable cause. City of Cleveland v. Shields (1995), 105 Ohio App.3d 115, 123 (Blackmon, J., concurring), citing State v. Hartley (1988), 51 Ohio App.3d 47, 48. Accordingly, "[t]he proper remedy for Fourth Amendment violations is suppression of the evidence, not dismissal of the charges." Id., citing Blanchester v. Hester (1992), 81 Ohio App.3d 815, 820. Moreover, the United States Supreme Court has held that "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews (1980), 445 U.S. 463, 474; see, also, State v. Reymann (1989), 55 Ohio App.3d 222, 225. Therefore, in the case sub judice, if anything, appellant would have been entitled to suppression of some or all of the evidence against him, but he was not entitled to an automatic dismissal of the charges. If the trial court had granted his motion to suppress, the trial court could have determined that without that evidence the State could not establish its case, and at that point, the trial court could have dismissed the matter.
Regardless, even though appellant incorrectly labeled his initial motion as a "Motion to Dismiss," the trial court properly treated the motion as a motion to suppress and held the appropriate hearing. Accordingly, we are governed by the standard of review that pertains to cases which involve motions to suppress.
This court has previously concluded that our standard of review with respect to motions to suppress is whether the trial court's findings are supported by competent, credible evidence. State v. Winand (1996), 116 Ohio App.3d 286, 288, citing Tallmadge v. McCoy (1994), 96 Ohio App 3d 604, 608. Naturally, this is the appropriate standard because "[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses." State v. Hopfer (1996), 112 Ohio App.3d 521, 548, quoting State v. Venham (1994), 96 Ohio App.3d 649, 653. However, once accepting those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether the trial court met the applicable legal standard. State v. Williams (1993), 86 Ohio App.3d 37, it, citing State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, at 5, and State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, unreported, at 3.
Appellant addressed assignments of error one and two together in his brief, and we will do likewise. Those assignments read as follows:
In support of his first and second assignments of error, appellant alleges that no probable cause existed for the initial stop of his vehicle, and, therefore, the trial court should have granted his "Motion to Suppress and/or Dismiss." Specifically, appellant claims that Trooper Herink only charged him with driving left of center as a pretext in order for Trooper Herink to meet the legal standard required for an investigatory stop. He contends that he never crossed either the yellow line or the white line as Trooper Herink had reported. Furthermore, appellant argues that Trooper Herink could not have seen him crossing the marked lines, because the lines were covered with snow, which was affirmed by the testimony of one of passengers riding in appellant's vehicle. Finally, appellant claims that U.S. Route 40 is a three lane road, and not a two lane road as reported by Trooper Herink, so appellant could not have traveled left of center.
Appellant's first assignment of error alleges that Trooper Herink did not have Improbable cause and/or reasonable suspicion" to stop his vehicle. His second assignment of error claims that Trooper Herink did not have probable cause to arrest appellant for driving under the influence. Accordingly, our analysis will first deal with the stop, and then with the arrest.
In support of his assignments of error, appellant argues that "no probable cause and/or reasonable suspicion" existed for the initial stop of his vehicle therefore, the trial court should have suppressed all of the evidence obtained following the stop. Appellant is obviously unclear as to the standard which governs a police officer who is making an initial investigatory stop. It is established law that:
"* * * [A]n officer does not need probable cause to make a traffic stop; reasonable suspicion based on specific and articulable facts that a traffic law is being violated or that criminal activity is occurring is sufficient to meet constitutional requirements." In re Eric W., Alleged Delinquent Child (1996), 113 Ohio App.3d 367, 369-370, citing State v. Wireman (1993), 86 Ohio App.3d 451, 453; see, also, Delaware v. Prouse (1979), 440 U.S. 648, 663.
The crux of appellant's argument is that the stop at issue was pretextual.[1] However, generally, an officer's observation of a traffic violation or...
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