State v. Thomas M. Beard

• Decision Date: 26 March 1996
• Docket Number: 95 CA 1685,96-LW-0525
• Parties: STATE OF OHIO, Plaintiff-Appellee v. THOMAS M. BEARD, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. THOMAS M. BEARD, Defendant-Appellant

No. 95 CA 1685.

96-LW-0525 (4th)

Court of Appeals of Ohio, Fourth District Athens

March 26, 1996

COUNSEL FOR APPELLANT: Thomas S. Hodson, Eslocker, Hodson & Oremus Co., L.P.A., 16 W. State Street, Athens, Ohio 45701.

COUNSEL FOR APPELLEE: George P. McCarthy, Athens City Prosecutor, Law Director's Office, 8 E. Washington Street, Athens, Ohio 45701.

DECISION

ABELE P.J.

This is an appeal from a judgment of conviction and sentence entered by the Athens County Municipal Court finding Thomas M. Beard, defendant below and appellant herein, guilty of driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1).

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE FOR THE LAW ENFORCEMENT OFFICER TO STOP THE DEFENDANTIS VEHICLE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT THE TESTING OFFICER OBSERVED THE DEFENDANT FOR TWENTY UNINTERRUPTED MINUTES BEFORE ADMINISTERING THE BREATH TEST."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO VOUCH FOR THE ACCURACY OF TIMES KEPT BY A THIRD PARTY WHO DID NOT TESTIFY."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING THE ARRESTING OFFICER TO RENDER AN OPINION ABOUT WHETHER THE DEFENDANT COULD HAVE TAKEN EVASIVE ACTION WITH HIS VEHICLE TO AVOID A COLLISION WITH THE PRECEDING VEHICLE."

On February 21, 1995, at approximately 11:45 p.m., Ohio State Highway Patrol Trooper James B. Mendenhall observed appellant driving northbound on State Route 13 near Athens. Appellant's vehicle was closely following another vehicle. Using radar, Trooper Mendenhall clocked the two vehicles. The radar registered a single speed (40 mph) for both vehicles. The posted speed limit on State Route 13 is 55 mph. As Trooper Mendenhall passed the two vehicles, he visually estimated the distance between appellant's vehicle and the vehicle in front of appellant at six feet. Based on these observations, Trooper Mendenhall decided to investigate and turned to follow appellant. While following appellant, Trooper Mendenhall observed appellant weave within his lane several times. Trooper Mendenhall stopped appellant's vehicle.

Upon approaching the vehicle, Trooper Mendenhall noticed appellant's glassy eyes and an odor of alcohol. After appellant performed some physical coordination tests, Trooper Mendenhall arrested appellant. Trooper Mendenhall placed appellant in the rear cage area of his cruiser and handcuffed appellant to the seat belt. At that time, Trooper Mendenhall left appellant alone in the backseat and attempted to turn off and lock appellant's vehicle, which had been left running. Due to some self-implemented modifications to appellant's vehicle, however, Trooper Mendenhall could not shut the car off himself and had to enlist appellant's help. After turning off appellant's car and locking it, Trooper Mendenhall handcuffed appellant behind his back and again placed appellant in the rear of the cruiser. Trooper Mendenhall then transported appellant to the Ohio State Highway Patrol Post for a breath test. According to the dispatcher's log, Trooper Mendenhall left the scene to return to the patrol post for the breath test at 12:01 a.m.

At the patrol post Trooper Mendenhall read various forms to appellant in preparation for the breath test. The reading began at approximately 12:13 a.m. and lasted until the time of the test, which was recorded by the BAC verifier as 12:31 a.m. Dispatcher Rick Wells witnessed the reading and the test. Appellant registered .124 on the BAC Datamaster.

Trooper Mendenhall issued citations to appellant for driving while under the influence of alcohol in violation of R.C 4511.19(A)(1) and driving with a concentration of alcohol in his breath above the specified statutory limit in violation of R.C. 4511.19(A)(3). Trooper Mendenhall also cited appellant for following another vehicle too closely in violation of R.C. 4511.34.

Appellant filed a motion to suppress evidence asserting that: (1) Trooper Mendenhall did not have the requisite reasonable, articulable suspicion of criminal activity justifying the stop of the vehicle; and (2) appellant's breath test was improperly conducted in that the testing officer failed to observe the test subject for twenty minutes prior to conducting the test. On May 30, 1995, the trial court held a hearing on the motion and, after considering the testimony and evidence presented by the parties, overruled appellant's motion. Subsequently, appellant entered a no contest plea to the R.C. 4511.19(A)(1) specified limit violation. The trial court accepted appellant's plea and found him guilty as charged. The prosecution dismissed the remaining charges. Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. Appellant contends that the arresting officer did not have a proper constitutional basis for the initial stop of appellant's vehicle. Appellant makes two arguments in support of his assignment of error. Appellant first asserts that Trooper Mendenhall did not have reasonable suspicion to stop appellant's vehicle. Appellant also asserts that even if Trooper Mendenhall did have reasonable suspicion to stop appellant, the stop was constitutionally invalid because it was pretextual. Appellant asserts that Trooper Mendenhall suspected that appellant was driving under the influence of alcohol, but did not have reasonable suspicion to stop appellant for that offense. Therefore, according to appellant, Trooper Mendenhall used the following too closely violation as a pretext to stop appellant's car and look for other evidence of DUI.

Initially, we note that in a hearing on a motion to suppress evidence,, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of the witnesses. State v. Venham (1994), 96 Ohio App.3d 649, 645 N.E.2d 831; State v. Lewis (1992), 78 Ohio App.3d 518, 605 N.E.2d 451; State v. Clay (1973), 34 Ohio St.2d 250, 298 N.E.2d 137; State v. Warren (Aug. 12, 1991), Hocking App. No. 90CA7, unreported. Thus, it is the trial court's function to determine the credibility of witnesses giving testimony at a suppression hearing. A reviewing court should not disturb the trial court's findings on the issue of credibility. State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Tutt (Apr. 14, 1986), Warren App. No. CA85-09-056, unreported. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusions, whether they satisfy the appropriate legal standards. see Venham, supra; State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported; State v. Simmons (Aug. 3, 1990), Washington App. No. 89CA18, unreported.

The Fourth and Fourteenth Amendments to the United States Constitution as well as Section 14, Article I of the Ohio Constitution, prohibit any governmental search or seizure, including a brief investigative stop, unless supported by an objective justification. Terry v. Ohio (1968), 392 U.S. 1; State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271; Venham, supra. The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop any individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent. Terry, supra; State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. To justify an investigative stop, a police officer must be able to articulate specific facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that the person stopped has committed or is committing a crime. Terry, supra at 19-21.

In State v. Simmons (Aug. 30, 1990), Washington App. No. 89 CA 18, unreported, we wrote:

"Law enforcement encounters with suspected drunk drivers involve two stages: (1) a stop and (2) a subsequent arrest. State v. Finch (1985), 24 Ohio App.3d 38, 492 N.E.2d 1254. Pursuant to Terry, supra, an officer may briefly detain an individual awhile he investigates the suspicious behavior which gave rise to the stop. A detention conducted pursuant to Terry must be based upon a reasonable and articulable suspicion of criminal activity. United States v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. The articulable and reasonable suspicion must exist in the officer's mind at the time of the stop and cannot be based on facts obtained after the initial stop. State v. Freeman (1980), 84 Ohio St.2d 291, 294, 414 N.E.2d 1044. See, also, Delaware v. Prouse (1979), 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391. State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906; State v. Heinrichs (1988), 46 Ohio App.3d 63, 545 N.E.2d 1304."

Thus, if specific and articulable facts exist that indicate that a criminal violation has occurred, or is occurring, a vehicle may be stopped and the driver detained for further investigation. The propriety of an investigative stop must be determined in light of the totality of the circumstances. State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044; State v. Chatton, supra; State v. Meadows (Dec. 31, 1991), Hocking App. No. 91 CA 6, unreported.

In appellant's first argument, he asserts that Trooper Mendenhall did not have reasonable suspicion to stop appellant. Appellant cites...