State v. Richard Bostwick
| Decision Date | 24 February 2000 |
| Docket Number | 75124,00-LW-0853 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. RICHARD BOSTWICK, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Criminal appeal from Court of Common Pleas, Case No. CR-362,582.
For plaintiff-appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, RANDOLPH HOWARD, Assistant, Justice Center Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.
For defendant-appellant: THOMAS A. KELLY, Attorney at Law, Foth Kelly & Urban, 7123 Pearl Road, #303, Middleburg Heights Ohio 44130.
Appellant was found guilty of a violation of R.C. 4511.19 following a jury trial. Appellant appeals the trial court's denial of his motion to suppress and motion in limine and its admission of certain testimony that appellant alleges was hearsay. Appellant also contends the jury's decision was against the manifest weight of the evidence and that the trial court erred when it permitted evidence of his prior convictions. For the reasons that follow, we affirm.
Appellant Richard Bostwick was indicted in the Cuyahoga County Court of Common Pleas on May 11, 1998 on a charge of Driving Under the Influence, in violation of R.C. 4511.19. Prior to trial, appellant filed a motion to suppress the evidence on the grounds that his arrest was improper. He also filed a motion in limine seeking to prohibit the admission of evidence regarding prior convictions.
The trial court denied appellant's motion to suppress following a hearing. Appellant's motion in limine was also denied. A jury trial commenced on July 29, 1998.
Strongsville Police Officer John Thomas Janowski, at about 8:00 a.m. on January 17, 1998, was dispatched to the scene of an accident on Interstate 71, just south of State Route 82. Upon arriving, he observed a heavily damaged blue, two-door Chrysler Laser. Based on his observations of the scene, the officer believed that the accident had occurred recently. No individual was present at or near the damaged vehicle.
Another officer soon arrived, and the two officers determined that the vehicle struck a guardrail, head-first, without braking. There was no other damage to the vehicle that would have caused it to turn off of the road prior to the accident. The officers observed what appeared to be blood on the driver's seat and on the driver's side door and door frame as well as two unopened beer bottles in the back of the automobile and a "Backwood's cigar"[1] on the driver's seat.
Officer Larry Pitschmann, a Strongsville Police Officer, had also learned about the accident and had received a description of the driver as a white male wearing a leather jacket with a blue bandana on his head. officer Pitschmann had a radio scanner in his vehicle and was able to hear the Middleburg Heights dispatcher directing a police officer to the Sunoco gas station in question. The dispatcher stated that a highly intoxicated white male wearing a blue bandana and a leather jacket was at the station claiming he had just been robbed in Strongsville. Officer Pitschmann and a second officer proceeded to the gas station.
Officer Pitschmann observed that appellant matched the description he had heard. Appellant was also bleeding from the left side of his face, had red and glassy eyes, a strong odor of alcohol about him and was trembling, slurring his words and had difficulty standing. When the officer asked appellant whether he had been involved in the accident on I-71, appellant responded that he had been involved in a robbery in a motel on Pearl Road but was unable to provide any specifics regarding the alleged robbery.
Based on the information he had received and his own observations, Officer Pitschmann believed appellant had been the driver of the damaged vehicle. He performed a horizontal gaze nystagmus (HGN) test on appellant; appellant's score indicated a high probability of impairment. The officer declined to conduct any further tests because he was concerned about the gash on appellant's head.
Officer Pitschmann placed appellant under arrest and transported appellant to the police station. A search of appellant uncovered a set of keys that had blood on the tag and some "Backwood's cigars." Appellant refused a breath test, refused to sign a waiver of his Miranda rights, and requested an attorney.[2]
At the police station, appellant had difficulty communicating with the officers, often putting his head down on his arms and acknowledging he was not "positive" of either his address or his phone number. He was later taken to Southwest General Hospital for treatment.
Kathleen Diansika owned the blue Chrysler Laser in question, which she allowed appellant to borrow on January 16 or 17, 1998. Ms. Diansika identified her keys as those that appellant had been carrying. The keys fit the ignition of Ms. Diansika's automobile. When Ms. Diansika loaned the vehicle to appellant, it was not "smashed up" and there had been no beer bottles in the back seat.
Following the conclusion of the evidence, the jury returned a verdict of guilty of Driving Under the Influence. Since appellant had previously been convicted of same on three occasions in the six years preceding January 17, 1998, the level of the offense was raised to a felony of the fourth degree. R.C. 4511.19(A)(4)(a). Appellant was thereafter sentenced to three years of community control and ordered to serve thirty days in the Cuyahoga County Jail and thirty days in a halfway house or other alternative facility. Appellant's driver's license was also suspended for a
period of five years.
Appellant timely appealed his conviction.
Appellant's first assignment of error states:
IT WAS ERROR FOR THE TRIAL COURT TO HAVE DENIED DEFENDANT APPELLANT IS MOTION TO SUPPRESS EVIDENCE WHERE THE POLICE MADE AN ARREST WITHOUT OBTAINING A WARRANT TO DO SO.
Appellant first contends that his arrest, made without a warrant, was improper.
As a general rule, an officer may not make a warrantless arrest for a misdemeanor offense unless the offense occurs in the officer's presence. State v. Amburgy (1997), 122 Ohio App.3d 277, 281, citing Hamilton v. Jacobs (1995), 100 Ohio App.3d 724, 730; see, also, State v. Lewis (1893), 50 Ohio St. 179. However, an exception to this general rule has been established where the officer has probable cause to believe that the suspect was operating a motor vehicle while under the influence of alcohol or drugs. State v. Henderson (1990), 51 Ohio St.3d 54, 56 citing Oregon v. Szakovits (1972), 32 Ohio St.2d 271.
In deciding whether probable cause existed to support an officer's arrest of an individual for a violation of R.C. 4511.19, the court must determine "whether, at the moment of the arrest, the officer had knowledge from a reasonably trustworthy source of facts and circumstances sufficient to cause a prudent person to believe that the suspect was driving while under the influence of alcohol. State v. Medcalf (1996), 111 Ohio App.3d 142, 147 citing Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 146; State v. Timson (1974), 38 Ohio St.2d 122, at paragraph one of the syllabus.
Appellant maintains that there was no direct evidence linking him to the automobile that had been involved in the accident; at the time of his arrest, he was discovered neither near the automobile nor near the site of the accident. Furthermore, appellant contends that Officer Pitschmann arrested him outside of the officer's jurisdiction.
When reviewing the trial court's ruling on appellant's motion to suppress, this court must review the record, accepting the trial court's findings of fact as true so long as they are supported by competent, credible evidence, and determine independently whether, as a matter of law, the trial court erred in applying the substantive law to the facts of the case. State v. Gordon (1994), 95 Ohio App.3d 334, 336. The record reveals that at the time of appellant's arrest, Officer Pitschmann had been informed by the officers at the scene of the accident that the driver of the vehicle would likely have an injury to the left side of his head; he observed a gash on the left side of appellant's head. Appellant was at a gas station located just off the exit ramp from I-71 in
the vicinity of the accident. Appellant smelled strongly of
alcohol, his eyes were red and glassy, he was stumbling, and his
response to the HGN test indicated that he was highly impaired.
Although appellant claimed to have been the victim of a robbery, he was unable to furnish any details regarding the alleged incident to Officer Pitschmann. Moreover, officer Pitschmann had also been informed that witnesses had described the individual who had been involved in the accident as a male wearing jeans and a bandana around his head, matching appellant's appearance.[3] Although officer Pitschmann admitted that a head injury may cause similar results on the HGN test and appellant was not found at the scene of the accident, there is certainly sufficient competent, credible evidence to support the trial court's finding that appellant's impairment was due to alcohol and that he was operating the automobile while he was so impaired.
The specific facts and circumstances of this case demonstrate ample probable cause to support appellant's arrest. It is important to note that "[t]he exclusionary rule is ordinarily inapplicable to evidence which is the product of police conduct violative of state law, but not violative of constitutional law." Stow v. Riggenbach (1994), 97 Ohio App.3d 661, 663, citing Kettering v. Hollen (1980), 64 Ohio St.2d 235. See, also, State v. Filler (1995), 106 Ohio App.3d 731, 733; City of Cleveland v. Carrie (Sept. 19, 1996), Cuyahoga App. No. 69054, unreported.
Lastly, appellant claims...
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