State v. Williams, 92-CA-08

Citation86 Ohio App.3d 37,619 N.E.2d 1141
Decision Date28 January 1993
Docket NumberNo. 92-CA-08,92-CA-08
PartiesThe STATE of Ohio, Appellee, v. WILLIAMS, Appellant.
CourtUnited States Court of Appeals (Ohio)

Gary Kenworthy, Circleville Law Director, Circleville, for appellee.

Kingsley Law Offices and James R. Kingsley, Circleville, for appellant.

HARSHA, Judge.

Defendant, Lowell Williams, appeals from a judgment of conviction and sentence entered by the Circleville Municipal Court finding him guilty of operating a motor vehicle with a breath-alcohol concentration above the specified limit, in violation of R.C. 4511.19(A)(3).

Appellant raises the following assignments of error:

"I. The trial court erred to the prejudice of the defendant when it did not suppress the evidence obtained from the arrest because the initial stop of the defendant lacked a reasonable and articulable suspicion that a crime had been committed.

"II. The arresting officer lacked probable cause to believe the defendant was guilty of the offense of OMVI (A)(1) or (A)(3) and therefore he was not entitled to request field sobriety tests and based upon those test results a BAC Verifier test."

Having fully considered these assignments of error, we reverse the judgment of the trial court for the reasons which follow.

On December 30, 1991, appellant, travelling east on State Route 665, turned right onto southbound U.S. Route 23 in Pickaway County. Trooper Carson, who was travelling north on Rt. 23, turned around to follow appellant southbound on Rt. 23. Trooper Carson testified that he "turned on" appellant's vehicle because "it was at a time [11:16 p.m.] that we see a lot of DUI drivers" and because "it looked like a brand new pickup truck and they are quite frequently stolen. * * * " Trooper Carson followed appellant for approximately two miles during which time he observed the appellant's vehicle move about one tire width into the left lane when going around a curve and then move back into the right lane. The appellant again moved into the left lane about one tire width, then moved completely into the left lane and made a proper left turn onto Pickaway Road where Trooper Carson pulled him over.

When Trooper Carson approached the appellant's vehicle he noticed a strong odor of alcohol but did not notice anything unusual about appellant's speech or eyes. Trooper Carson asked appellant to get out of the vehicle and then to perform field coordination tests and the horizontal gaze nystagmus test, all of which appellant failed. Trooper Carson placed appellant under arrest and administered the BAC Verifier test. Appellant tested .237.

Appellant was charged with first offense OMVI in violation of R.C. 4511.19(A)(1) and (A)(3) and with failure to drive within the marked lanes in violation of R.C. 4511.33. Appellant pleaded not guilty and filed a motion to suppress the evidence gained by Trooper Carson because of a lack of reasonable suspicion for the initial stop and lack of probable cause for the arrest. A hearing on the motion was held on February 7, 1992 and the trial court denied the motion from the bench. Appellant then pleaded no contest to R.C. 4511.19(A)(3). 1 He was sentenced to ninety days in jail, a $450 fine and a two-year license suspension. Judgment was entered on February 7, 1992 and appellant timely filed his notice of appeal.

Thereafter, appellant filed a motion for a new trial. The trial court has not ruled on this motion.

Before considering appellant's assignments of error, we must address a preliminary jurisdictional issue. We have a duty to sua sponte consider whether the entry from which this appeal is taken constitutes a final appealable order. Wilson v. Patton (1988), 49 Ohio App.3d 150, 152, 551 N.E.2d 625, 627. Because appellant filed a motion for a new trial after he filed this appeal, we must decide whether this appeal is premature. We hold that the judgment entry convicting and sentencing the appellant is a final appealable order and that the trial court has no jurisdiction to consider appellant's motion for a new trial.

The general rule is that when an appeal is taken, the trial court is divested of jurisdiction, except to take action in aid of the appeal. State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 89, 378 N.E.2d 162, 164. The trial court however does retain jurisdiction over issues not inconsistent with the power and jurisdiction of the appeal court to review, affirm, modify or reverse. Id.; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657; Whiteside, Ohio Appellate Practice (1991) 19, T 1.09. Although in Special Prosecutors the appellate court had already entered judgment, the Special Prosecutors holding is not limited to that situation and has been followed when the appellate court has not yet rendered a decision. State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984; State v. McGettrick (1988), 40 Ohio App.3d 25, 531 N.E.2d 755; Post v. Post (1990), 66 Ohio App.3d 765, 586 N.E.2d 185 ("The Supreme Court could have limited its holding [in Special Prosecutors] to apply only to actions by a trial court that are inconsistent with a judgment by an appellate court, but it did not do so.").

In the case at bar, appellant entered a no contest plea and subsequently filed a motion for a new trial. The trial court's consideration of the motion for a new trial, the functional equivalent of a motion to vacate the no contest plea, would clearly interfere with the appellate court's jurisdiction and power because granting a motion for a new trial would obviate the appeal. State v. McGettrick (1988), 40 Ohio App.3d 25, 531 N.E.2d 755 (trial court has no jurisdiction to consider motion to vacate no contest plea after notice of appeal has been filed; judgment entry of conviction is a final appealable order).

App.R. 4(B) provides a thirty-day period following the date of the entry from which the defendant is appealing for the defendant to file a notice of appeal. The rule further provides:

"If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within thirty days after the entry of an order denying the motion." (Emphasis added.)

The use of the term "may" gives the defendant the option of appealing the conviction immediately or filing a motion for a new trial, thereby extending the time for appeal to thirty days following the entry denying the motion for a new trial. State v. Schultz (Sept. 30, 1988), Lake App. No. 12-206, unreported, 1988 WL 102637.

Having concluded that this appeal is not premature, we may now address the merits. In a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584; see, also, State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, at 5, 1992 WL 188501. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, unreported, at 3, 1992 WL 91647. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. Dreher, supra; Fausnaugh, supra.

In his first assignment of error, appellant asserts that the trial court erred in refusing to suppress the evidence obtained by Trooper Carson because the trooper lacked reasonable articulable suspicion to stop the appellant's vehicle.

The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if the officer has a reasonable suspicion, based on specific and articulable facts, that...

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