[Cite as State v. Searls, 2011-Ohio-1622.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. John W. Wise, P.J.
        Appellee                                    Hon. Julie A. Edwards, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 10 CA 47
TIMOTHY SEARLS

        Appellant                                   OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Fairfield Municipal
                                                Court, Case No. 09 TRC 10165



JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          March 31, 2011



APPEARANCES:

For Appellee                                    For Appellant

NO APPEARANCE                                   SCOTT P. WOOD
                                                DAGGER, JOHNSTON, MILLER
                                                OGILVIE & HAMPSON
                                                144 East Main Street, P. O. Box 667
                                                Lancaster, Ohio 43014
Fairfield County, Case No. 10 CA 47                                                         2

Wise, J.

       {¶1 } Appellant, Timothy Searles, appeals the trial court’s denial of his motion to

suppress as well as his convictions for operating a vehicle under the influence of

alcohol, leaving the scene of an accident, failure to control, and no operator’s license.

       {¶2 }   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth three proposed

Assignments of Error.      Appellant was notified of his right to raise any additional

assignments of error but has not filed any. Appellee has not filed a responsive brief.

Counsel for Appellant raises the following potential assignments of error:

       {¶3 }   “I.    THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS.

       {¶4 }   “II.    THERE     WAS     INSUFFICIENT       EVIDENCE       TO    CONVICT

APPELLANT.

       {¶5 }   “III. THE JURY VERDICTS AND COURT FINDINGS OF GUILT WERE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶6 } Appellant was stopped while riding as a passenger in a vehicle which was

being driven by Amy Starowesky.        The reason Starowesky’s car was stopped was

because Office Matthew Ream of the Lancaster Police Department was informed by

another police officer that Appellant had just left the scene of an accident.

       {¶7 } Starowesky testified she was driving her car in the parking lot of a bar

when she saw Appellant’s truck with smoke coming from its tires. She was concerned

about Appellant who was an acquaintance, so she got out of her car to see what was
Fairfield County, Case No. 10 CA 47                                                      3


happening. Starowesky saw a man trying to get Appellant’s truck dislodged from a

sandstone block. She testified Appellant was behind the wheel rocking the truck back

and forth trying to extricate it from the sandstone block. After the two men failed to get

the truck free, Appellant got into Starowesky’s car and told her to drive. Appellant also

told Starowesky, “I wasn’t driving, so I can’t get into any trouble.”

       {¶8 } The man who was helping Appellant with the truck was Donald Tidball.

Tidball testified he was awakened by the sound of squealing tires. He lived very close

to the bar and accident scene, so he got dressed and tried to help. When he arrived, he

saw Appellant behind the wheel of the truck attempting to rock it back and forth to free it

from the sandstone block.         Around the time police arrived, Appellant left with

Starowesky.    Tidball advised police they should go after Starowesky and Appellant

because he believed they both had been drinking.

       {¶9 } Shortly after they left the scene, Starowesky and Appellant were pulled

over. Officer Ream testified Appellant admitted he had been driving the truck and got it

stuck on the sandstone block. Appellant also admitted to having consumed alcohol.

Officer Ream conducted the horizontal gaze nystagmus test. The results of the test

indicated possible impairment. When he began to administer the walk and turn field

sobriety test, Appellant tried to begin the test several times but ultimately indicated he

could not complete the test. Officer Ream asked Appellant for the keys to the truck.

Appellant stated he left the keys in the truck. At that point, Appellant was arrested for

Operating a Vehicle Under the Influence of Alcohol. Officer Ream also determined

Appellant did not have a valid operator’s license.
Fairfield County, Case No. 10 CA 47                                                        4


       {¶10 } Appellant was transported to the police station where he told Officer Ream

he was not driving the vehicle. A breath test was offered to Appellant, however, he

refused to take it.

       {¶11 } In his defense, Appellant called Brian Conrad who testified that he and

Appellant spent the evening with a woman named Becky Reed. According to Conrad,

Becky Reed drove both Brian and Appellant because Appellant had let a friend named

Jennie borrow his truck. Later that night Appellant told Conrad that Jennie had gotten

the truck stuck on the sandstone.

       {¶12 } Appellant testified he was impaired on the night of the accident.           To

explain the officer’s contention that Appellant admitted to driving, Appellant testified that

the officer asked if the truck was his and if he knew it was stuck, to which Appellant

replied, “yes.” He did not recall confirming to the officer that he was the one who got the

truck stuck. Appellant testified he left the bar because Amy Starowesky offered him a

ride home. With regard to the testimony offered by Tidball, Appellant stated he had no

recollection of ever seeing Tidball. He also testified he never saw the police arrive.

Additionally, he testified he never told police the name of the person who was driving his

truck when it crashed.


                                             I.

       {¶13 } In his first assignment of error, Appellant maintains the trial court erred in

overruling his motion to suppress. The hearing on the motion to suppress was limited to

whether the officer had probable cause to arrest Appellant and whether statements

taken from Appellant were taken in violation of Miranda.
Fairfield County, Case No. 10 CA 47                                                          5


       {¶14 } Appellate review of a trial court's decision to grant or deny a motion to

suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio

App.3d 328, 713 N.E.2d 1. During a suppression hearing, 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. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d

1030. A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d

142, 675 N.E.2d 1268. Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶15 } There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio

App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See State v.

Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue

the trial court has incorrectly decided the ultimate or final issues raised in a 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
Fairfield County, Case No. 10 CA 47                                                   6

appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d

623, 620 N.E.2d 906.

      {¶16 } Appellant’s first contention is that probable cause did not exist to arrest

Appellant. An officer has probable cause to arrest a suspect for OVI if, “at the moment

of arrest, the police had sufficient information, derived from a reasonably trustworthy

source of facts and circumstances, sufficient to cause a prudent person to believe that

the suspect was driving under the influence.” State v. Homan (2000), 89 Ohio St.3d

421, 427, 732 N.E.2d 952, citing Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223,

225, 13 L.Ed.2d 142, 145; State v. Timson (1974), 38 Ohio St.2d 122, 127, 67 O.O.2d

140, 143, 311 N.E.2d 16, 20. In making the determination as to whether probable cause

existed, a reviewing court will examine the “totality” of facts and circumstances

surrounding the arrest. Homan, supra, citing State v. Miller (1997), 117 Ohio App.3d

750, 761, 691 N.E.2d 703, 710; State v. Brandenburg (1987), 41 Ohio App.3d 109, 111,

534 N.E.2d 906, 908.

      {¶17 } Officer Ream testified at the suppression hearing that Appellant admitted

he was operating the vehicle. Upon having contact with Appellant, Officer Ream noticed

Appellant was swaying, had glassy, bloodshot eyes, slurred speech, and an odor of

alcohol coming from his breath. Officer Ream administered the horizontal gaze

nystagmus test which revealed six out of six possible clues of impairment. Appellant

was unable to perform any other field sobriety tests which contributed to Officer Ream’s

belief that Appellant was impaired. Further, Appellant admitted to Officer Ream that he

had consumed alcohol. Based upon the foregoing, we find sufficient evidence was

presented to demonstrate probable cause to arrest Appellant.
Fairfield County, Case No. 10 CA 47                                                    7


       {¶18 } Appellant next contends that his statements were taken in violation of

Miranda. In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694, the

United States Supreme Court held the Fifth Amendment to the United States

Constitution prevents the admission at trial of statements made by a defendant during

custodial interrogation when the defendant has not been advised of certain rights. A

“custodial interrogation” is defined as questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his or her freedom

of action in any significant way. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694.

       {¶19 } Appellant made two statements which were incriminating. First, he

admitted to driving the vehicle. Second, he admitted to consuming alcohol. At no time

did Officer Ream administer the Miranda warnings.

       {¶20 } Both statements were made around the beginning of Officer Ream’s initial

contact with Appellant. Based upon the testimony of Officer Ream, it is clear Appellant

was not under arrest nor in custody at the time the statements were made. Rather,

Officer Ream was conducting an investigation to determine whether Appellant had in

fact operated the vehicle involved in the accident.

       {¶21 } For these reasons, Appellant’s first assignment of error is overruled.

                                            II.

       {¶22 } In his second Assignment of Error, Appellant argues there was insufficient

evidence to convict Appellant. Specifically, Appellant suggests there was insufficient

evidence presented to establish Appellant operated the vehicle.
Fairfield County, Case No. 10 CA 47                                                      8


       {¶23 } On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. “The relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia

(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

       {¶24 } The State presented evidence that Appellant operated the truck on the

night in question while under the influence of alcohol. In its case, the State presented

two witnesses who testified they saw Appellant operate the truck causing movement of

the truck. Testimony from multiple witnesses was presented indicating Appellant left the

scene of the accident when police arrived. Further, one of the officer’s testified

Appellant had multiple indicators of being impaired coupled with Appellant’s admission

to consuming alcohol. The same officer testified Appellant admitted to getting the truck

stuck on the sandstone. Additionally, he testified Appellant did not have a valid license

at the time of the accident.

       {¶25 } All of this testimony, considered in a light most favorable to the

prosecution, would support a guilty finding of operating a vehicle under the influence of

alcohol, leaving the scene of an accident, no operator’s license, and failure to control.

For this reason, Appellant’s second assignment of error is overruled.

                                            III.

       {¶26 } In his third assignment of error, Appellant argues the jury verdict and court

verdict were against the manifest weight of the evidence.
Fairfield County, Case No. 10 CA 47                                                       9


       {¶27 } On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine “whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717. See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541,

1997-Ohio-52.

       {¶28 } In making this determination, the Supreme Court of Ohio has outlined

eight factors for consideration, which include “whether the evidence was uncontradicted,

whether a witness was impeached, what was not proved, that the reviewing court is not

required to accept the incredible as true, the certainty of the evidence, the reliability of

the evidence, whether a witness' testimony is self-serving, and whether the evidence is

vague, uncertain, conflicting, or fragmentary.” State v. Apanovitch (1987), 33 Ohio St.3d

19, 23-24, 514 N.E.2d 394, citing State v. Mattison (1985), 23 Ohio App.3d 10, 490

N.E.2d 926, syllabus.

       {¶29 } The granting of a new trial “should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.” Martin at 175, 485

N.E.2d 717.

       {¶30 } There were two witnesses who testified they witnessed Appellant

operating the truck shortly before Appellant was stopped by police. One of the

witnesses was completely independent having no connection to Appellant. The other

was an acquaintance of Appellant who testified Appellant was a very nice guy. Both of

these witnesses’ presented consistent testimony to one another. The only testimony in
Fairfield County, Case No. 10 CA 47                                                    10


opposition was Appellant’s self-serving testimony that he was not driving. Appellant

admitted to police that he was drinking and admitted during his testimony at trial that he

was impaired.

       {¶31 } We cannot say based upon the evidence presented that the jury clearly

lost its way in finding Appellant guilty. For this reason, Appellant’s third assignment of

error is overruled.

       {¶32 } For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base

an appeal.     Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Municipal Court of

Fairfield County, Ohio.


By: Wise, J.

Edwards, J., and

Delaney, J., concur.


                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0308
Fairfield County, Case No. 10 CA 47                                           11


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :
                                             :
       Appellee                              :
                                             :
-vs-                                         :            JUDGMENT ENTRY
                                             :
TIMOTHY SEARLS                               :
                                             :
       Appellant                             :            Case No. 10 CA 47



       For the reasons stated in our accompanying Memorandum-Opinion, Attorney

Scott Wood is permitted to withdraw as counsel for Appellant. The judgment of the

Municipal Court of Fairfield County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
