State v. Smith, 2010 Ohio 1232 (Ohio App. 3/25/2010)
| Decision Date | 25 March 2010 |
| Docket Number | No. 09-CA-42.,09-CA-42. |
| Citation | 2010 Ohio 1232 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Robert Smith, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Jonathan C. Diernbach, Assistant Law Director, 40 W. Main Street, Newark, OH 43055, for Plaintiff-Appellee.
Richard F. Swope, 6504 East Main Street, Reynoldsburg, OH 43068, for Defendant-Appellant.
Before: W. Scott Gwin, P.J., William B. Hoffman, J., Patricia A. Delaney, J.
{¶1} Defendant-appellant Robert Smith appeals his convictions and sentences in the Licking County Municipal Court on one count of Driving under the Influence [Refusal] in violation of R.C. 4511.19 (A) (1) (a), one count of space between moving vehicles in violation of R.C. 4511.34, and one count of marked lanes in violation of R.C. 4511.33. Plaintiff-appellee is the State of Ohio.
{¶2} On March 6, 2007 at approximately 1:50 a.m., appellant was driving a 1998 Dodge 1500 Ram westbound on State Route 37, where it merges into State Route 16. Ohio State Highway Patrol Trooper Jermaine D. Thaxton had received a dispatch concerning a black truck driving erratically on the highway. While observing traffic in the eastbound lanes of State Route 16, Trooper Thaxton noticed a vehicle, a 1998 Dodge truck, travelling eastbound following a semi truck too closely, only about a vehicle length behind at approximately sixty (60) miles per hour.
{¶3} Trooper Thaxton, after observing the two vehicles, activated his in-cruiser video and followed the vehicles. Trooper Thaxton testified he observed appellant commit one or two lane violations, specifically crossing the dotted white lane divider separating the two eastbound lanes of travel, before he activated his video camera. Trooper Thaxton observed appellant commit a total of three lane violations prior to the traffic stop. Trooper Thaxton followed appellant approximately two miles, before activating his lights and eventually his siren. Appellant exited the highway and stopped in a closed Speedway gas station lot.
{¶4} Trooper Thaxton testified that when he approached the truck, appellant was fumbling for his papers, had a flushed face, slurred speech, glassy, bloodshot eyes and a strong odor of an alcoholic beverage. Upon questioning, appellant denied consuming any alcoholic beverages.
{¶5} Based on his observations, the trooper requested appellant exit the vehicle to perform the standardized NHTSA1 field sobriety tests, which appellant performed poorly. The tests were recorded on the cruiser's video camera. Trooper Thaxton acknowledged that his field microphone was not working and no audio was preserved of any conversations outside of the cruiser. However, the microphone located inside the cruiser was functioning and recorded what transpired inside the cruiser. The Trooper testified that appellant was not cooperative upon being told he was under arrest for OVI. The in-cruiser microphone recorded appellant's tirade upon being placed in the cruiser. Appellant was subsequently read the BMV 2255 form, which he refused to sign. Later, he refused to cooperate in the administration of a chemical test.
{¶6} At trial, appellant testified that he worked from 6:00 a.m. to 7:30 or 8:00 p.m., and then went to help his brother move furniture from Croton, Ohio. Appellant testified he did not during any time consume alcohol. Appellant testified he saw Trooper Thaxton pull in behind him, but he thought nothing about it. As the semi truck in front of him approached a traffic light, it moved into the left lane, at which time appellant testified he observed the lights from Trooper Thaxton's cruiser. Appellant believed the trooper was after the trucker. Appellant testified he thought the officer wanted to go around him so he pulled into the Speedway station. Appellant testified he had his cruise control set on 55 miles per hour during this entire period.
{¶7} Appellant explained he had physical problems with his ankle and knee. He also said it was cold, maybe 20 degrees and all he had on was a t-shirt and a light sweater. He testified he stood for 5 to 7 minutes before doing the field sobriety tests. Appellant testified the trooper made improper comments to him during the test about his employment and his wallet loss. Appellant further claimed that the trooper had him start and stop each test several times.
{¶8} Appellant testified that Trooper Thaxton, when putting him in the cruiser, caused him to hit his head and slammed the door on his knee. This upset appellant and he lost his composure. Appellant testified that this is why he became irate with Trooper Thaxton. Appellant also testified that he had a medical problem and needed to urinate, but Trooper Thaxton refused and he wet his pants. Appellant claims he was cold, wet and upset and tried his best to blow in the machine. Appellant attempted the test three (3) times.
{¶9} Appellant's wife arrived to pick him up at the police station at about 3:00 to 3:30 a.m. She denied she saw any signs of impairment from consumption of alcohol and said appellant did not smell of alcohol.
{¶10} Appellant was charged with space between moving vehicles in violation of R.C. 4511.34, marked lanes in violation of R.C. 4511.33 and driving while under the influence of alcohol or drugs ["OVI"][Refusal], in violation of R.C. 4511.19(A)(1)(a). Appellant filed a motion to suppress asserting Trooper Thaxton lacked probable cause for the stop and his arrest. The trial court, on October 25, 2007, held a hearing and overruled the motion to suppress.
{¶11} A jury trial commenced October 25, 2007 and concluded with the jury finding appellant guilty of each charge. Appellant filed a motion for acquittal, pursuant to Rule 29, Ohio Rules of Criminal Procedure, and motion for new trial. The Court overruled both motions and entered a judgment of conviction on all three charges. The trial court sentenced appellant on the space between moving vehicles charge to a fine of $75.00 and court costs and the marked lanes violation of a fine of $15.00 and costs. On the OVI charge, the court imposed a jail sentence of 180 days; however, the court suspended 170 jail days and placed appellant on probation for two years. The court further imposed a fine of $500.00 plus costs, and suspended appellant's driver license for a period of two years. The trial court stayed imposition of sentence during the pendency of appeal.
{¶12} Appellant timely appealed raising the following six assignments of error:
{¶13} "I. THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS ALL EVIDENCE SECURED AFTER STOPPING DEFENDANT APPELLANT WITHOUT PROBABLE CAUSE.
{¶14} "II. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE AUDIO PORTION OF A VIDEO BECAUSE THE TROOPER KNEW THE AUDIO WAS DEFECTIVE AND ONLY RECORDED DEFENDANT-APPELLANT'S STATEMENTS IN THE CRUISER.
{¶15} "III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT PERMITTED TROOPER THAXTON TO TESTIFY AS AN EXPERT AS TO TIME TO STOP WITHIN THE ASSURED CLEAR DISTANCE.
{¶16} "IV. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO HEAR, AND FAILING TO STRIKE, THE STATEMENT OF DEFENDANT APPELLANT IN THE BACK OF THE CRUISER WHEN THE AUDIO RECORDED ONLY DEFENDANT-APPELLANT'S STATEMENTS.
{¶17} "V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN OVERRULING DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL AND FOR JUDGMENT OF ACQUITTAL, BASED ON ERRORS OF LAW, SUFFICIENCY OF AND WEIGHT OF THE EVIDENCE.
{¶18}
{¶19} In his first assignment of error appellant maintains that Trooper Thaxton lacked reasonable suspicion to stop appellant's vehicle and to request that he perform the standardized field sobriety tests. We disagree.
{¶20} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 2003-Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate the credibility of witnesses. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra. However, once an appellate court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra. [Citing State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539]; See, also, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶21} If an officer's decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid. State v. Mays, 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 8.
{¶22} In the case at bar, Trooper Thaxton's observations gave him the requisite reasonable suspicion needed to stop appellant's vehicle. First, the Trooper discussed his training and experience regarding making...
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