[Cite as State v. Todd, 2014-Ohio-4489.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B.Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 14 COA 005
JEFFREY TODD

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 13 TRC 4606


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 9, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

THOMAS R. GILMAN                               NICHOLAS J. TESTA
ASSISTANT PROSECUTOR                           DOUGLAS W. SHAW
133 South Market Street                        SHAW & MILLER
Loudonville, Ohio 44842                        555 City Park Avenue
                                               Columbus, Ohio 43215
Ashland County, Case No. 14 COA 005                                                    2

Wise, J.

      {¶1}. Appellant Jeffrey Todd appeals from the decision of the Ashland Municipal

Court, which denied his motion to suppress evidence in a prosecution for operating a

motor vehicle under the influence of alcohol ("OVI"). The relevant facts leading to this

appeal are as follows.

      {¶2}. At about 3:50 AM on June 12, 2013, Sergeant Michael Morrison and

Officer Kara Pearce of the Loudonville Police Department were on patrol in the vicinity

of Main Street when they observed a 1994 Oldsmobile with a missing front Ohio license

plate. They then observed the vehicle turn off the roadway into a long private driveway.

The two officers, knowing the driveway led to the personal residence of a trooper for the

Ohio State Highway Patrol, proceeded to follow the Oldsmobile.

      {¶3}. As Sergeant Morrison and Officer Pearce approached in their cruiser, the

driver, soon identified as Appellant Todd, halted his exit of the stationary Oldsmobile

and shut the car door.

      {¶4}. The officers went to appellant's Oldsmobile and asked him what was going

on. Appellant replied that he had been at the "Iron Pony Saloon" and was trying to find

Interstate 71, which the officers found odd based on the local road geography. While

speaking with appellant, the officers found him to have "very delayed" and "slowed"

speech. Suppression Hearing Tr. at 20, 33. They also observed him to have "watery"

and "red-rimmed" eyes. Id. at 20, 49, 55. Appellant was noted by Officer Pearce to be

"very confused" about where he was and he was described by Sergeant Morrison as

"very incoherent." Id. at 20, 50. Morrison also noted that appellant " *** had no idea of

his surroundings at that point" and that he appeared to have "severe tunnel vision," by
Ashland County, Case No. 14 COA 005                                                      3


which the officer meant that appellant had difficulty giving general answers to questions.

Tr. at 49. When asked for his driver's license, appellant displayed a temporary

motorcycle operator's permit, which he insisted was a valid Ohio license.

       {¶5}. Officer Pearce thereafter asked appellant to get out of his car. Appellant

then agreed to submit to a horizontal gaze nystagmus ("HGN") field sobriety test, which

was performed by Officer Pearce. The HGN test resulted in the officer observing six out

of a potential six clues. Appellant at that point refused to submit to any other field

sobriety tests.

       {¶6}. Appellant was placed under arrest at the scene for OVI in violation of R.C.

4511.19(A)(1)(a). On August 7, 2013, appellant filed a motion to suppress evidence. On

September 9, 2013, appellant filed an addendum to the motion to suppress.

       {¶7}. The trial court conducted a hearing on the motion on September 10, 2013.

       {¶8}. On September 30, 2013, appellant filed a post-hearing supplemental

memorandum.

       {¶9}. On October 8, 2013, the trial court issued a judgment entry denying the

motion to suppress.

       {¶10}. The case proceeded to trial, and on January 29, 2014, the jury found

appellant guilty of OVI. He was also found guilty of a front license plate violation by the

trial court. He was thereupon sentenced, inter alia, to one-hundred eighty days in jail,

with ninety days suspended.

       {¶11}. Appellant filed a notice of appeal on February 27, 2014. He herein raises

the following three Assignments of Error:
Ashland County, Case No. 14 COA 005                                                       4


       {¶12}. “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS BECAUSE THE OFFICERS LACKED REASONABLE SUSPICION TO

ASK THE APPELLANT TO PERFORM THE FIELD SOBRIETY TESTS.

       {¶13}. “II.   THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE

RESULTS OF THE HORIZONTAL GAZE NYSTAGMUS TEST BECAUSE IT WAS NOT

DONE IN SUBSTANTIAL COMPLIANCE WITH NATIONAL HIGHWAY TRAFFIC

SAFETY ADMINISTRATION (NHTSA) STANDARDS.

       {¶14}. “III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS BECAUSE THE ARRESTING OFFICER LACKED PROBABLE CAUSE

TO ARREST THE APPELLANT FOR OVI.”

                                                I.

       {¶15}. In his First Assignment of Error, appellant contends the trial court erred in

failing to suppress the field sobriety testing conducted by the officers at the scene of the

traffic stop. We disagree.

       {¶16}. There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State
Ashland County, Case No. 14 COA 005                                                            5

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. The United States Supreme

Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911, that “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”

       {¶17}. As an initial matter, we note appellant does not per se challenge the

officers' initial stop of appellant's vehicle based on the missing license plate and the turn

into the private driveway. Our initial task is thus to analyze the reasonableness of the

officers' utilization of field sobriety testing in the context of the traffic stop at issue.

       {¶18}. The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.

       {¶19}. “A request made of a validly detained motorist to perform field sobriety

tests is generally outside the scope of the original stop, and must be separately justified

by other specific and articulable facts showing a reasonable basis for the request.” State

v. Anez (2000),108 Ohio Misc.2d 18, 26, 738 N.E.2d 491. In reviewing this issue, we

apply a “totality of the circumstances” approach. See, e.g., City of Fairfield v. Lucking,

Butler App. No. CA2002–12–303, 2004–Ohio–90, at ¶ 8, citing State v. Freeman

(1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.

       {¶20}. As set forth in our recitation of facts, appellant had turned into a long

private driveway at a very late hour and gave a geographically questionable explanation

of his presence in the area. During the stop, he admitted to having been at an alcohol-
Ashland County, Case No. 14 COA 005                                                    6


serving establishment, although he did not specifically admit to consuming alcohol. His

eyes were watery and red around the eyelids, and his speech was slow and delayed,

according to the officers. He was acting confused, particularly about the nature of a

standard driver's license request, and his responses were described as incoherent.

Upon review, while appellant may not have displayed all possible indicia of intoxication,

we hold a reasonable basis existed for Officer Pearce to proceed with the HGN field

sobriety testing under the circumstances of this case. We find no reversible error by the

trial court in denying the motion to suppress in this regard.

       {¶21}. Appellant's First Assignment of Error is therefore overruled.

                                                II.

       {¶22}. In his Second Assignment of Error, appellant contends the HGN field

sobriety test was not conducted by Officer Pearce in substantial compliance with

NHTSA standards, and should have been suppressed by the trial court.

       {¶23}. Under the general rule of Crim.R. 47, a motion to suppress “shall state

with particularity the grounds upon which it is made.” The State's burden of proof in a

motion to suppress hearing is limited to those contentions that are asserted with

sufficient particularity to place the prosecutor and court on notice of the issues to be

decided. Johnstown v. Jugan (Apr. 24, 1996), Licking App. No. 95CA90, 1996 WL

243805. Failure of the defendant to adequately raise the basis of his or her challenge

constitutes a waiver of that issue on appeal. See City of Xenia v. Wallace (1988), 37

Ohio St.3d 216, 218-219, 524 N.E.2d 889.

       {¶24}. In the case sub judice, appellant specifically argues that Officer Pearce

gave no indication that verbal instructions for the HGN test were actually provided to
Ashland County, Case No. 14 COA 005                                                   7


appellant at the scene, other than the officer's inquiry as to whether appellant had

glasses or contacts and whether he had any head injuries. See Appellant's Brief at 7.

However, appellant's motion to suppress had presented a different challenge to the

HGN test: "In the present case the HGN was preformed (sic) with the Defendant seated

on the hood of his vehicle while the officer stood at least 3 feet away. Also a second

officer held a second flashlight in front of the defendant which was not kept steady and

was moving." Motion to Suppress at 6. Furthermore, neither appellant's addendum to

the motion to suppress (filed on the day before the suppression hearing) nor his

supplemental memorandum (filed nearly three weeks after said hearing) raise any

technical or NHTSA-based challenges to the adequacy of the testing procedures.

      {¶25}. While appellant correctly recites that the State maintains the burden in a

suppression hearing to show substantial compliance with field sobriety testing methods,

we hold the limited assertion in appellant's motion to suppress in this case was

insufficient to put the prosecutor and trial court on notice as to the present specific

concerns about Officer Pearce's roadside HGN testing procedures under the NHTSA.

Cf. State v. Grove, 5th Dist. Fairfield No. 01-CA-41, 2002-Ohio-3677, ¶ 36. As such, we

find the waiver doctrine applies against appellant's arguments under the circumstances

presented.

      {¶26}. Appellant's Second Assignment of Error is therefore overruled.
Ashland County, Case No. 14 COA 005                                                      8


                                               III.

      {¶27}. In his Third Assignment of Error, appellant contends his arrest by the

officers was effectuated without probable cause, and thus the results thereof should

have been suppressed by the trial court. We disagree.

      {¶28}. Under Ohio law, a police officer has probable cause for an arrest if the

facts and circumstances within his knowledge are sufficient to cause a reasonably

prudent person to believe that the defendant has committed the offense. State v.

Cummings, Stark App.No. 2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State v.

Heston (1972), 29 Ohio St.2d 152, 280 N.E.2d 376. “The arrest merely has to be

supported by the arresting officer's observations of indicia of alcohol consumption and

operation of a motor vehicle while under the influence of alcohol.” State v. Eustis, Knox

App.No. 08CA000006, 2008–Ohio–5955, citing State v. Van Fossen (1984), 19 Ohio

App.3d 281, 484 N.E.2d 191. In making this determination, the trial court must examine

the totality of facts and circumstances surrounding the arrest. See State v. Miller (1997),

117 Ohio App.3d 750, 761, 691 N.E.2d 703; State v. Brandenburg (1987), 41 Ohio

App.3d 109, 111, 534 N.E.2d 906. Furthermore, a police officer does not have to

observe poor driving performance in order to effect an arrest for driving under the

influence of alcohol if all the facts and circumstances lead to the conclusion that the

driver was impaired. See State v. Harrop (July 2, 2001), Muskingum App.No. CT2000–

0026, citing Atwell v. State (1973), 35 Ohio App.2d 221, 301 N.E.2d 709.

      {¶29}. In the case sub judice, the officers were presented with, inter alia, a driver

who had turned into a private driveway (known not to be his own) between 3:00 and

4:00 AM, and who admitted to having visited a saloon. The driver, appellant, displayed
Ashland County, Case No. 14 COA 005                                                     9


watery and red-rimmed eyes, and he was observed as confused and "very incoherent."

His verbal responses to the officers were slow and/or delayed, and his explanation of

trying to find the interstate highway was inconsistent with the layout of the roads in the

area. Appellant was adamant that his motorcycle permit was his standard driver's

license, despite the officers' attempt to convince him otherwise. In addition, the HGN

test resulted in the officer observing six out of a potential six clues.

       {¶30}. Appellant emphasizes that he was not observed driving erratically and that

there was no mention of the odor of alcoholic beverage or drugs at the traffic stop.

Appellant also notes the specific terminology of "slurred" speech and "bloodshot" eyes

was not alleged, and that he did not admit to actual consumption of alcohol on the night

in question. Appellant also directs us to several appellate decisions which, he argues,

demonstrate findings of insufficient probable cause "where officers had more evidence

of the defendant's intoxication than in the present case." See Appellant's Brief at 8,

citing Upper Arlington v. Wissinger, 10th Dist. Franklin No. 13AP–922, 2014-Ohio-1601;

State v. Kolesar, 10th Dist. Franklin No. 00AP-1435, 2001 WL 1098049; State v.

Beagle, 2nd Dist. Clark No. 2002-CA-59, 2003-Ohio-4331; State v. Brown (11th Dist.),

166 Ohio App.3d 638, 852 N.E.2d 1228, 2006-Ohio-1172; State v. Gray, 10th Dist.

Franklin No. 01AP-1251, 2002-Ohio-4328.

       {¶31}. While the cases cited by appellant help shed light on the issues before us,

"[i]t has been repeatedly emphasized that probable cause is a fluid concept that is

based upon a case-by-case evaluation of the totality of the circumstances." State v.

Reid, 9th Dist. Lorain No. 12CA010265, 2013-Ohio-4274, ¶ 26 (Belfance, P.J.,

dissenting), citing Florida v. Harris, –––U.S. ––––, 133 S.Ct. 1050, 1055 (2013). See,
Ashland County, Case No. 14 COA 005                                                10

also, State v. Bish, 191 Ohio App.3d 661, 947 N.E.2d 257, 2010–Ohio–6604, ¶ 48.

Upon review, we find the facts presented support the conclusion that the officers had

probable cause to arrest appellant for OVI under the facts and circumstances of the

case sub judice.

      {¶32}. Accordingly, we hold the trial court correctly decided the probable cause

issue raised in appellant's motion to suppress.

      {¶33}. Appellant's Third Assignment of Error is therefore overruled.

      {¶34}. For the foregoing reasons, the judgment of the Municipal Court, Ashland

County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.




JWW/d 0918
Ashland County, Case No. 14 COA 005   11
