[Cite as State v. Simmons, 2011-Ohio-5561.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                    :
                                                 :        Appellate Case No. 23991
        Plaintiff-Appellee                       :
                                                 :        Trial Court Case No. 09-TRC-2384
v.                                               :
                                                 :
JAMES L. SIMMONS                                 :        (Criminal Appeal from Montgomery
                                                 :          County Municipal Court - Western
        Defendant-Appellant              :           Division)
                                                 :
                                              ...........

                                              OPINION

                             Rendered on the 28th day of October, 2011.

                                              ...........

MATHIAS H. HECK, JR., by GREGORY P. SPEARS, Atty. Reg. #0009002, Assistant
Prosecuting Attorney, 30 Wyoming Street, Dayton, Ohio 45409
       Attorney for Plaintiff-Appellee

CARLO C. McGINNIS, 130 West Second Street, Suite 800, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                                        .............

FAIN, J.

        {¶ 1} Defendant-appellant James L. Simmons appeals from his conviction and

sentence for Operating a Motor Vehicle While Under the Influence of Alcohol, R.C.

4511.19(A)(1)(a).

        {¶ 2} Simmons contends that the trial court erred in overruling his motion to
                                                                                              2


suppress because the trial court incorrectly found that there was reasonable articulable

suspicion to justify the officer’s request that he perform field sobriety tests (FST). Next,

Simmons argues that certain statements made during the traffic stop should also be suppressed

because he was not given the warnings required by Miranda v. Arizona (1966), 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694. Finally, Simmons argues that the trial court failed to state on

the record its findings of fact material to its determination of his motion to suppress.

        {¶ 3} We conclude that there was reasonable and articulable suspicion justifying the

administration of field sobriety tests. We also conclude that Simmons was not in custody

when he made the statements he sought to suppress, so that they were not subject to the

requirements of Miranda v. Arizona. Finally, we conclude that Simmons did not request

findings of fact, so that the trial court did not err in failing to provide them. Accordingly, the

judgment of the trial court is Affirmed.

                                                     I

        {¶ 4} One early morning in June 2009, Deputy Walt Steele of the Montgomery

County Sheriff’s Department came upon Simmons, who was driving a 1975 Chevy truck.

Deputy Steele observed the truck weaving within its own lane and decided to run the license

plate number. Deputy Steele discovered that the license plates were registered to a 1991

Buick. Deputy Steele stopped the truck because of the fictitious plates. The stop occurred in

the parking lot of a bar.

        {¶ 5} Deputy Steele asked Simmons if he was aware that the plates on the 1975

Chevy were registered to another vehicle. Simmons explained that the truck belonged to his

niece, and he did not know about the fictitious plates. Deputy Steele testified that during this
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conversation, “I could smell a strong odor of alcohol coming from his breath. I noticed that

his eyes were red and watery and I noticed that he was real slow answering my questions and

kind of turning away from me, appearing confused.” When questioned, Simmons denied

having consumed alcohol. Deputy Steele then performed a Horizontal Gaze Nystagmus test,

with a simple instruction to “follow with his eyes.” Deputy Steele concluded that this test

provided further support for his suspicion that Simmons was impaired. Steele requested

Simmons to exit the vehicle and move to the back of the Steele’s cruiser. Deputy Steele

noted that Simmons was “slow and unsteady on his feet,” when getting out of the truck.

       {¶ 6} In Deputy Steel’s police report, which he prepared immediately following the

stop, Steele noted that Simmons was taking medication for diabetes, there was an odor of

alcoholic beverage, his clothing was orderly, his attitude was sleepy, cooperative, and polite,

his eyes were only bloodshot, and his speech was only fair. There were options on the police

report form concerning the suspect’s eyes and speech which were unchecked, such as “watery”

and “confused.” In the incident report Deputy Steele wrote later that morning, Steele noted

that he smelled an odor of alcohol coming from Simmons, that Simmons’s speech was slow,

and that Simmons appeared confused.

       {¶ 7} During the walk to Deputy Steele’s cruiser, Steele again asked Simmons how

many alcoholic drinks he had consumed. Again, Simmons denied having consumed any

alcoholic beverages. After Simmons entered the rear of the police cruiser, Deputy Steele ran

Simmons’s license on his computer, which showed that Simmons was driving with a

suspended license and had a previous Operating a Vehicle Under the Influence conviction.

While in the police cruiser, Deputy Steele could smell the alcohol “even stronger” and, once
                                                                                         4


again, asked Simmons how many alcoholic beverages he had consumed.              At this time,

Simmons admitted to consuming one beer. Deputy Steele then asked Simmons to perform

several FST’s and Simmons agreed to do so. Simmons was not handcuffed, but Deputy

Steele acknowledged that he would not have let Simmons leave.

       {¶ 8} Deputy Steele performed another HGN test, a walk-and-turn test, and a one-leg

stand test. Deputy Steele noted on his report that Simmons tallied six out of six indicators,

five out of eight indicators, and two out of four indicators, respectively, on the tests. In

Deputy Steele’s opinion, based on his training and experience, Simmons was under the

influence. Simmons was given Miranda warnings at 2:01 a.m., and was advised of the

offenses with which he was being charged. The total time of the stop was approximately half

an hour.

       {¶ 9} Simmons was cited for Unauthorized Use of Plates, driving under an ALS

suspension, and Operating a Motor Vehicle Under the Influence.          After his motion to

suppress was heard and denied, Simmons pled no contest to Operating a Motor Vehicle Under

the Influence and all other charges were dismissed.

       {¶ 10} From his conviction and sentence, Simmons appeals.

                                                  II

       {¶ 11} Simmons’s First and Second assignments of error are as follows:

       {¶ 12} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS.

       {¶ 13} “THE TRIAL COURT SHOULD HAVE RULED THAT THERE WAS

INSUFFICIENT REASONABLE ARTICULABLE SUSPICION TO JUSTIFY THE
                                                                                                                                      5


OFFICER’S REQUEST THAT DEFENDANT PERFORM FIELD SOBRIETY TESTS.”

         {¶ 14} There are three methods of challenging on appeal a trial court’s ruling on a

motion to suppress. State v. Strope, 2009-Ohio-3849 at ¶15. First, Simmons may challenge

the trial court’s findings of fact, in which event we must determine whether those findings are

against the manifest weight of the evidence. Next, Simmons may claim that the trial court

failed to apply the correct legal test to the facts, in which event we must determine whether the

trial court committed an error of law. “Finally, assuming the trial court's findings of fact are

not against the manifest weight of the evidence and it has properly identified the law to be

applied, an appellant may argue the trial court has incorrectly decided the ultimate or final

issue raised in the motion to suppress. When reviewing this type of claim, an appellate court

must independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case.” Id.

         {¶ 15} Simmons does not dispute that Deputy Steele had the right to stop him for

fictitious plates. The issue then becomes whether Deputy Steele had the right to administer

FST’s.

         {¶ 16} In State v. Dixon (December 1, 2000), Greene App. No. 2000-CA-30, and State

v. Spillers (March 24, 2000), Darke App. No. 1504, this Court held that a “slight” odor,

coupled with an admission of having consumed one or two alcoholic beverages and some

other indicators was not enough to allow the administering of FST’s. More specifically, we

found in Spillers that traffic violations found by the trial court in that case to have been “de

minimus,”1 combined with an admission to having consumed one or two beers and a “slight”


          1
           Although the police officer in that case testified that he observed the defendant cross a white line three times, and drive on a
                                                                                                                                          6


odor of an alcoholic beverage, was not enough to justify the administration of field sobriety

tests. In Dixon, the defendant was reported to have glassy, bloodshot eyes, admitted to

having one or two beers, and having an odor of an alcoholic beverage emanating from him.

There, we stated that: “The mere detection of an odor of alcohol, unaccompanied by any basis,

drawn from the officers experience or expertise, for correlating that odor with a level of

intoxication that would likely impair the subject’s driving ability, is not enough to establish

that the subject was driving under the influence nor is the subject’s admission that he had had

one or two beers.”

         {¶ 17} On the other hand, in State v. Brewer, Montgomery App. 23442,

2010-Ohio-3441, this Court found there was reasonable articulable suspicion when the

defendant appeared nervous, his clothes were in disarray, he was “thick-tongued,” and was

“slow-to-speech.” The defendant, moreover, couldn’t find his driver’s license and upon

returning to the defendant’s vehicle, the police officer smelled a strong odor of alcohol. The

defendant also admitted to drinking earlier in the day. Id., at ¶ 23.

         {¶ 18} In the case before us, Deputy Steele smelled “a strong odor of alcohol”

emanating from Simmons during initial questioning. Deputy Steele also observed Simmons’s

eyes as red and watery and his speech was slow. Simmons appeared confused, and was

looking away when answering questions. Simmons was slow and unsteady on his feet as he

walked with Deputy Steele over to the police cruiser. Simmons also consented to take the

FST’s. The sum of these facts, we find, are more factually analogous to our decision in



 yellow line, the defendant testified that he did not commit any irregularities while driving, and the trial court, in resolving this conflicting
 testimony, found “de minimus” violations, which it did not specify.
                                                                                             7


Brewer than Spillers and Dixon. We conclude, therefore, that Deputy Steele had reasonable

articulable suspicion to administer FST’s and the trial court did not err in denying the motion

to suppress.

       {¶ 19} Simmons’s First and Second assignments of error are overruled.

                                                   III

       {¶ 20} Simmons Third Assignment of Error is as follows:

       {¶ 21} “THE       TRIAL      COURT       SHOULD        HAVE      SUPPRESSED          THE

DEFENDANT’S STATEMENTS IN THAT HE WAS ‘SUBJECTED TO TREATMENT’

THAT RENDERED HIM IN CUSTODY AND ENTITLED TO MIRANDA WARNINGS.”

       {¶ 22} Simmons claims that the statements he made after he was taken out of his

vehicle should be suppressed, because Deputy Steele failed to administer Miranda warnings.

Miranda warnings are required “when an individual is taken into custody or otherwise

deprived of his freedom in any significant way and is subjected to questioning.” Miranda v.

Arizona (1966), supra, 384 U.S. 478. Questioning, by itself, does not trigger the requirement

of Miranda warnings – the subject of the investigation must also be in custody. State v.

Goodspeed, Montgomery App. No. 19979, 2004-Ohio-1819. Traffic stops, as noted by both

the United States Supreme Court and by the Supreme Court of Ohio, do not trigger the need

for Miranda. See Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d

317; State v. Farris (2006), 109 Ohio St.3d 519. However, if the person stopped is then

“subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled

to the full panoply of protections prescribed by Miranda.” Berkemer v. McCarty, 468 U.S.

440. “The only relevant inquiry in determining whether a person is in custody is how a
                                                                                               8


reasonable man in the suspect’s position would have understood his situation.” Id., at 442.

       {¶ 23} In State v. Farris, as Simmons notes in his amended brief, the Supreme Court

of Ohio found that a reasonable person in the defendant’s position would have understood

himself to be in the custody of a police officer when the officer had taken his car keys, patted

him down, told the defendant he was going to search the vehicle for drug paraphernalia, and

instructed the defendant to sit in the police cruiser. Farris was deemed to have been placed in

custody “for practical purposes” due to the officer’s treatment after the original traffic stop.

The defendant’s statements in response to questioning were held to be inadmissible.

       {¶ 24} On the other hand, we have held that an individual who was requested to exit a

vehicle and sit in the back of a police vehicle without the option of leaving was not in custody

and his statements were admissible.         State v. Wilkins, Montgomery App. No. 20152,

2004-Ohio-3917. We noted that the defendant had not been handcuffed, that the defendant

was merely invited by the police officer to sit in the police cruiser (it was raining heavily), and

the police took no actions that would lead a reasonable person in the defendant’s position to

believe that he was going to be detained indefinitely.

       {¶ 25} In the case before us, Deputy Steele repeatedly asked Simmons how many

alcoholic beverages he had consumed after noticing a “strong smell of alcohol.”

Furthermore, Deputy Steele requested Simmons to exit his vehicle and sit in the police cruiser,

took his driver’s license in order investigate his driving record, and requested Simmons to

perform FST’s. All of these actions Simmons consented to. Simmons was not handcuffed at

this time, but was not free to leave, according to Deputy Steele. Deputy Steele did not, at any

time, inform Simmons that he was under arrest or give Simmons any indication he would be
                                                                                             9


detained indefinitely. Simmons claims that Miranda warnings should have been given when

he was not free to leave, he had been placed in the back of the cruiser, and when he was

repeatedly questioned by Deputy Steele. We hold otherwise, based upon our holding in

Wilkins and the holding of the Supreme Court of Ohio in Farris. Simmons was not given a

reasonable basis to believe that he was under arrest; therefore, he was not in custody for

purposes of Miranda v. Arizona, supra.

       {¶ 26} Simmons’s Third Assignment of Error is overruled.

                                                   IV

       {¶ 27} Simmon’s Fourth Assignment of Error is as follows:

       {¶ 28} “THE TRIAL COURT FAILED TO STATE ON THE RECORD ITS

ESSENTIAL FINDINGS ON FACTUAL ISSUES INVOLVED IN DETERMINING

DEFENDANT’S MOTION TO SUPPRESS.”

       {¶ 29} Criminal Rule 12(F) requires that: “Where factual issues are involved in

determining a motion, the court shall state its essential findings on the record.” At the

conclusion of the suppression hearing, the trial court took the matter under advisement and

requested briefs.   In its entry, the trial court merely stated: “After reviewing the facts

presented in the case and after consideration of the Post Motion and Memorandums filed by

Defense and Prosecution, the Motion to Suppress is hereby DENIED.”

       {¶ 30} Because the cause remained pending before the trial court after the motion to

suppress was denied, Simmons could have moved for findings of fact, or otherwise objected to

the trial court’s failure to make findings of fact with respect to his motion to suppress. He did

not.
                                                                                          10


       {¶ 31} “This court has consistently held that an appellate court need not consider an

error which a party complaining of the trial court's judgment could have called, but did not

call, to the trial court's attention at a time when such error could have been avoided or

corrected by the trial court.” State v. Williams (1977), 51 Ohio St.2d 112, 117, vacated in

part on other grounds, 438 U.S. 911, 98 S. Ct. 3137, 57 L. Ed. 2d 1156 (1978).

       {¶ 32} Simmons could have, but did not, bring to the attention of the trial court its

error in having failed to make findings of fact in connection with his motion to suppress, at a

time when the trial court could have corrected its error by making findings of fact. Therefore,

we agree with the State that Simmons has forfeited all but plain error. See Crim.R. 52(B).

       {¶ 33} We further agree with the State that on this record the trial court’s error in

having failed to make findings of fact in connection with Simmons’s motion to suppress has

not been shown to have been plain error.

       {¶ 34} Simmons’s Fourth Assignment of Error is overruled.

                                                  V

       {¶ 35} All of Simmons’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                                         .............

GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck
Gregory P. Spears
Carlo C. McGinnis
Hon. Adele M. Riley
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