[Cite as State v. Rau, 2013-Ohio-5664.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 11-13-06

        v.

SCOTT M. RAU,                                             OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 11-13-07

        v.

SCOTT M. RAU,                                             OPINION

        DEFENDANT-APPELLANT.


                       Appeals from Paulding County Court
               Trial Court No. CRB1200438AB and TRC 1201817 AB

                                     Judgments Affirmed

                          Date of Decision: December 23, 2013



APPEARANCES:

        Steven J. Furnas for Appellant

        Matthew A. Miller for Appellee
Case Nos. 11-13-06, 11-13-07


SHAW, J.

      {¶1} Defendant-appellant Scott M. Rau (“Rau”) appeals the June 20, 2013,

judgment entries of the Paulding County Court sentencing Rau to 10 days in jail

after Rau was convicted of OVI in violation of R.C. 4511.19(A)(1)(a) and

Endangering Children in violation of R.C. 2919.22(C)(1), both first degree

misdemeanors.

      {¶2} The facts relevant to this appeal are as follows. On December 2,

2012, Rau was traveling with his daughter and his dog in his vehicle when he was

stopped by Trooper Shawn Cook for having a loud exhaust system. Due to the

dog’s presence in the vehicle at the time of the stop, Trooper Cook asked Rau to

exit the vehicle and Rau voluntarily complied.

      {¶3} When Rau exited the vehicle, Trooper Cook detected an odor of burnt

marijuana about Rau’s person. Trooper Cook then conducted a probable cause

search of Rau and recovered a “wooden dugout” in Rau’s front pocket.

Subsequently, Trooper Cook asked Rau to perform field sobriety tests. Trooper

Cook had Rau perform the HGN test, the walk and turn test, and the one leg stand

test. In addition, Trooper Cook had Rau perform the “Romberg balance test” and

Trooper Cook took Rau’s pulse. Based on the totality of the circumstances,

Trooper Cook arrested Rau.




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Case Nos. 11-13-06, 11-13-07


        {¶4} Rau was charged in Traffic Case number 12TRC1817 with OVI in

violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor, and Defective

Exhaust System (Loud Exhaust) in violation of R.C. 4513.22, a minor

misdemeanor. Rau was charged in criminal case number 12CRB438 with two

counts of Possession of Drug Paraphernalia, in violation of R.C. 2925.141(C),

both minor misdemeanors, and one count of Endangering Children in violation of

R.C. 2919.22(C)(1), a first degree misdemeanor.

        {¶5} On December 6, 2012, Rau was arraigned. At arraignment, the State

noted that the two counts of Possession of Drug Paraphernalia in criminal case

number 12CRB438 were duplicitous, so the State moved to dismiss one of the

counts.1 Rau pled not guilty to the remaining charges against him.

        {¶6} On February 20, 2013, Rau filed a motion to suppress evidence in

both his traffic and his criminal case. (Doc. 4); (Doc. 6). In the motions, Rau

argued that there was no lawful ground to initiate a traffic stop, and further, that

there was no probable cause to place Rau under arrest. (Id.); (Id.)

        {¶7} On April 28, 2013, a hearing was held on Rau’s Motion to Suppress.

Trooper Cook testified at the hearing that he stopped Rau for a loud exhaust

system. (Tr. at 7). Later, on cross-examination, Trooper Cook also testified that

he thought Rau had a light out near his license plate. (Id. at 40-41).

1
  Although the State mentioned at the hearing that “it looks like the officer meant to charge [one of the
counts] as a possession of marijuana not * * * a possession of drug paraphernalia” there is no indication
that the State refiled or amended the charge to possession of marijuana. (Arraignment Tr. at 12).

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Case Nos. 11-13-06, 11-13-07


       {¶8} Trooper Cook testified that when he approached Rau’s vehicle, he

noticed that Rau and one other person were in the car (the other person was Rau’s

daughter). (Id. at 8). Trooper Cook also noticed that there was a large dog in the

vehicle. (Id.) Trooper Cook testified that in his experience, dogs get anxious, so

he asked Rau to exit the vehicle. (Id. at 9). Rau did so voluntarily. (Id.)

       {¶9} Trooper Cook testified that he was trained in the identification of

drugs and was certified as a “drug recognition expert.” (Tr. at 18). Trooper Cook

testified that when he began speaking with Rau, he detected an odor of burnt

marijuana about Rau’s person. (Tr. at 9). Trooper Cook testified that he then

searched Rau and located a “wooden dugout” in Rau’s right front pocket.

According to Trooper Cook, a “wooden dugout” is “a container that has two

reservoirs in it[.] * * * [O]ne reservoir usually contains the loose marijuana * * *

and the other reservoir usually contains some sort of silver or metal smoking

device cylinder.” (Tr. at 11). Trooper Cook testified that “both of them were

inside this particular wooden dug out.” (Id.)

       {¶10} Trooper Cook then asked Rau to perform field sobriety tests, which

Rau agreed to do. Trooper Cook testified that he first administered the HGN test

on Rau, and observed no clues of impairment. (Tr. at 43).

       {¶11} Next, Trooper Cook testified that he had Rau perform the walk and

turn test.   Trooper Cook testified that as part of the test, he noticed two


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Case Nos. 11-13-06, 11-13-07


“standardized” clues. Those clues included Rau taking the incorrect number of

steps and Rau raising his arms above six inches for balance. (Tr. at 16). Trooper

Cook also testified that as he was evaluating Rau for being under the effects of a

drug of abuse rather than alcohol, he was also looking for other indications such as

“leg tremors,” which he noted were present during this test. (Tr. at 16-17).

       {¶12} Trooper Cook next had Rau perform the one-leg stand test. As part

of that test, Trooper Cook testified that he noticed “some leg tremors” and that

Rau had a “slow body clock.” (Tr. at 22).

       {¶13} Trooper Cook then had Rau perform the “Romberg balance test.”

(Tr. at 23). Trooper Cook described the “Romberg balance test” as follows.

       I would tell them to stand with their feet together, their arms
       down at their side, tilt their head back, close their eyes. Um, and
       as they have their head tilted back and their eyes are closed I
       instruct them to estimate the passage of thirty seconds. Um, and
       again, when they have reached the passage of thirty seconds to
       tilt their head forward ah, then I would know that they have
       reached the passage of thirty seconds.

(Tr. at 24). Trooper Cook testified that during this test, he was “looking for leg

tremors, body tremors, eyelid tremors, * * * swaying from side to side for [sic]

back to front, but specifically ah, directed towards the internal body clock again

we’re looking for someone’s count that would be sped up ah, verses slowed

down[.] (Id. at 25).




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Case Nos. 11-13-06, 11-13-07


       {¶14} Trooper Cook testified that he learned of the Romberg balance test

during NHTSA training at the academy, during the drugs and impaired section,

and that he was reintroduced to it during his training as a drug recognition expert.

(Tr. at 24).

       {¶15} Trooper Cook testified that when Rau performed the Romberg

balance test, Rau “tilted his head forward” rather than backward, and “he indicated

the passage of thirty in a timed count of * * * forty three seconds,” again

indicating a “slow body clock.” (Id. at 23)

       {¶16} Trooper Cook testified that he then checked Rau’s pulse, and found

that it was ninety beats per minute. (Tr. at 26).

       {¶17} After he finished with the field testing, Trooper Cook testified that

“[b]ased on the odor of burnt marijuana and also based on the totality of the

circumstances that included the ah, Field tests I concluded that the Defendant ah,

was ah, operating a vehicle under the influence of cannabis, ah in this case

specifically marijuana.” (Tr. at 27).

       {¶18} The video of the stop was played at the hearing. (State’s Ex. 2). On

cross-examination, Rau’s counsel inquired into whether Rau passed or failed the

individual tests that were conducted. In response, Trooper Cook testified that, “at

the time for a drug evaluation I’m not determining whether or not it’s a pass or fail




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Case Nos. 11-13-06, 11-13-07


at that moment it’s the totality of the circumstances, it’s everything that has been

observed and collected throughout the entire process.” (Tr. at 46).

           {¶19} After closing arguments, the court took the matter under advisement.

On May 22, 2012, the court issued entries overruling Rau’s suppression motions.

(Doc. 7); (Doc. 10).

           {¶20} On June 17, 2013, Rau agreed to plead “no contest” to Child

Endangerment in violation of R.C. 2919.22(C)(1), a first degree misdemeanor, and

OVI, as amended, in violation of R.C. 4511.19(A)(1)(a).2 (Doc. 12); (Doc. 8).

Rau was then sentenced to serve 10 days in jail, with 7 days work release granted.

(Id.); (Id.) Judgment entries reflecting this were filed on June 20, 2013. (Id.);

(Id.)

           {¶21} It is from these judgments that Rau appeals, asserting the following

assignments of error for our review.

                    FIRST ASSIGNMENT OF ERROR
           THE TRIAL COURT ERRED IN FINDING THAT OHIO
           STATE HIGHWAY TROOPER WAS JUSTIFIED IN
           CONDUCTING A TRAFFIC STOP OF APPELLATE’S [sic]
           VEHICLE.

                     SECOND ASSIGNMENT OF ERROR
           THE TRIAL COURT ERRED IN FAILING TO EXCLUDE
           OFFICER[’]S TESTIMONY CONCERNING THE RESULTS
           OF A FIELD SOBRIETY TESTS [sic] THAT WERE NOT
           ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH
           TESTING STANDARDS.

2
    By agreement, this OVI was treated as a first OVI in 6 years rather than a second.

                                                      -7-
Case Nos. 11-13-06, 11-13-07



                                Standard of Review

       {¶22} An appellate court's review of a decision on a motion to suppress

involves issues of both law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶ 8. During a suppression hearing, the trial court acts as the trier of

fact and sits in the best position to weigh the evidence and evaluate the credibility

of the witnesses.   Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992).

Accordingly, an appellate court is required to uphold the trial court's findings of

fact provided they are supported by competent, credible evidence. Id., citing State

v. Fanning, 1 Ohio St.3d 19 (1982). Once an appellate court determines the trial

court's factual findings are supported by the record of the hearing, the court must

then engage in a de novo review of the trial court's application of the law to those

facts. State v. Lett, 11th Dist. No. 2008–T–0116, 2009-Ohio-2796, ¶ 13, citing

State v. Djisheff, 11th Dist. No. 2005–T–0001, 2006-Ohio-6201, ¶ 19.

                             First Assignment of Error

       {¶23} In Rau’s first assignment of error, he argues that the trial court

improperly concluded that Trooper Cook initiated a valid traffic stop.

Specifically, he contends that Trooper Cook did not establish that Rau’s exhaust

was loud or defective and that there was no indication that Rau’s rear license plate

light was out.



                                        -8-
Case Nos. 11-13-06, 11-13-07


       {¶24} A law enforcement officer must have a “reasonable articulable

suspicion” that a person is or has been engaged in criminal activity before he is

justified in initiating a traffic stop. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct.

1868, (1968). “This standard requires something less than probable cause; an

officer's belief that a person is acting in violation of the law is sufficient to justify

an investigatory stop.”     State v. VanScoder, 92 Ohio App.3d 853, 855 (9th

Dist.1994).

       {¶25} Trooper Cook testified that he stopped Rau under suspicion of a

defective muffler in violation of R.C. 4513.22, which reads

       (A) Every motor vehicle * * * with an internal combustion
       engine shall at all times be equipped with a muffler which is in
       good working order and in constant operation to prevent
       excessive or unusual noise, and no person shall use a muffler
       cutout, by-pass, or similar device upon a motor vehicle on a
       highway. * * *

       No person shall own, operate, or have in the person's possession
       any motor vehicle * * * equipped with a device for producing
       excessive smoke or gas, or so equipped as to permit oil or any
       other chemical to flow into or upon the exhaust pipe or muffler
       of such vehicle, or equipped in any other way to produce or emit
       smoke or dangerous or annoying gases from any portion of such
       vehicle, other than the ordinary gases emitted by the exhaust of
       an internal combustion engine under normal operation.

       (B) Whoever violates this section is guilty of a minor
       misdemeanor.

       {¶26} Regarding initiating the traffic stop, Trooper Cook testified that

when Rau drove past Trooper Cook’s patrol car, Trooper Cook “heard the exhaust

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Case Nos. 11-13-06, 11-13-07


system to be defective” and “louder than normal.” (Tr. at 7). By louder than

normal, Trooper Cook clarified, testifying, “[b]asically, * * * when the vehicle

past [sic] me with my windows up I could hear noise, * * * which was being

emitted from the exhaust system.” (Id.) Trooper Cook testified that he believed

the vehicle was in violation of R.C. 4513.22, so he initiated a traffic stop. (Id. at

8)

       {¶27} On appeal, Rau contends that on the video of the traffic stop, his car

does not sound as though its exhaust system is defective or loud. Rau claims that

on the video, once the audio is available, other cars can be heard passing by and

Rau’s dog can be heard barking, but the exhaust/muffler from Rau’s vehicle

appears no louder than the passing cars.

       {¶28} Despite Rau’s arguments, Trooper Cook testified that he believed

Rau had a loud/defective exhaust. In State v. Williams, 2nd Dist. No. 21723,

2007-Ohio-4617, the Second District Court of Appeals found that “observation of

a loud muffler provides sufficient reasonable suspicion of a violation of R.C.

4513.22 to justify the stop of a motor vehicle[.]” Williams at ¶ 9. This is exactly

the testimony provided by Trooper Cook, and the trial court found Trooper Cook

to be a credible witness. The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to resolve. State v.

DeHass, 10 Ohio St.2d 230 (1967).


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Case Nos. 11-13-06, 11-13-07


        {¶29} Moreover, we would note that the audio on the videotape does not

begin until Rau’s vehicle is already stopped, so nothing at all can be heard on the

video to confirm or refute Trooper Cook’s testimony regarding the “louder than

normal” exhaust system operating when Rau was driving past Trooper Cook.

Once Rau’s vehicle is stopped, it is unclear whether it is running, making it

impossible to tell if the exhaust is loud, particularly since the vehicle was not

moving.

        {¶30} Accordingly, we cannot find that Trooper Cook lacked reasonable

articulable suspicion of criminal activity to initiate a traffic stop.3 Therefore,

Rau’s first assignment of error is overruled.

                                  Second Assignment of Error

        {¶31} In Rau’s second assignment of error, he argues that the trial court

incorrectly allowed testimony from Trooper Cook concerning the results of field

sobriety tests that were not “administered in substantial compliance with testing

standards.” Specifically, he contends that Trooper Cook administered tests that

“were not standardized” and that Rau would have passed “standardized testing.”




3
  Rau makes a second argument under this assignment of error, claiming that Trooper Cook lacked
“reasonable articulable suspicion” to stop him for a light that was out near Rau’s license plate. However,
Trooper Cook never testified that he stopped Rau for the light being out, and he did not cite Rau for a
violation regarding the light. Trooper Cook testified merely that he spoke with Rau about the light. Thus
we decline to further address this argument, particularly since we have already found that Trooper Cook
had reasonable articulable suspicion to stop Rau for the exhaust system.


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Case Nos. 11-13-06, 11-13-07


      {¶32} In order for the results of field sobriety tests to be admissible, the

State is not required to show strict compliance with testing standards, but must

instead demonstrate that the officer substantially complied with NHTSA

standards. R.C. 4511.19(D)(4)(b); State v. Blair, 3d Dist. No 9-12-14, 2013-Ohio-

646, ¶ 31.     “A determination of whether the facts satisfy the substantial

compliance standard is made on a case-by-case basis.” State v. Fink, 12th Dist.

Nos. CA2008–10–118, CA2008–10–119, 2009–Ohio–3538, ¶ 26. The State may

demonstrate what the NHTSA standards are through competent testimony and/or

by introducing the applicable portions of the NHTSA manual. State v. Boczar,

113 Ohio St.3d 148, 2007–Ohio–1251, ¶ 28.

      {¶33} In addition to standardized tests, nonstandardized tests “are useful

sources of information regarding the suspect's sobriety. If circumstances dictate

that methods other than strictly standardized tests must be used in determining

whether a driver is under the influence * * * then an officer should be able to use

nonstandardized tests that, based upon his experience, can indicate impairment * *

*.” State v. Menking, 4th Dist. No. 02CA66, 2003-Ohio-3515, ¶ 14, quoting State

v. Walker, 11th Dist. No. 2001-A-0086, 2002-Ohio-4362, at ¶ 14.

      {¶34} In this case, despite his phrasing of the assignment of error, Rau does

not argue that Trooper Cook failed to substantially comply with NHTSA standards

while conducting the “standardized” field sobriety tests (the HGN test, the walk


                                       -12-
Case Nos. 11-13-06, 11-13-07


and turn test, and the one-leg stand test). Rather, Rau contends that Trooper Cook

did not administer the Romberg balance test, or take Rau’s pulse, in substantial

compliance with recognized standards, and that those non-standardized tests

should have been suppressed.        In addition, Rau contends that he “passed”

standardized testing.

       {¶35} After Trooper Cook collected clues on the “standardized” NHTSA

tests he continued testing Rau by having Rau perform the “Romberg balance test”

Trooper Cook had learned as part of his NHTSA training and as part of his

training as a drug recognition expert. At the suppression hearing, Trooper Cook

identified how the Romberg balance test was performed and then testified to Rau’s

performance on that test. Trooper Cook subsequently took Rau’s pulse, describing

how and where he took Rau’s pulse.

       {¶36} Trooper Cook testified that there is a “12-step” process DRE

standards would have him go through to identify someone under the influence of

drugs. However, as Rau concedes in his brief, Ohio has not adopted “the DRE

[drug recognition] standards and is not a DRE State.” As Ohio is not a DRE state,

Trooper Cook testified that he performed an abbreviated version of drug

recognition, still relying on all of the clues of impairment he uncovered from all of

the tests he conducted and the surrounding circumstances to aid him in

determining whether Rau was intoxicated.


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Case Nos. 11-13-06, 11-13-07


         {¶37} There is no indication in the record that Trooper Cook failed to

substantially comply with NHTSA standards on the standardized tests and Rau is

unable to establish how Trooper Cook’s observations of Rau in the remaining two

tests were inadmissible, as an officer’s observations in non-standardized tests can

be used to determine a subject’s sobriety. See Menking, supra; Walker, supra.

Moreover Rau does not establish, and makes no claim, how Trooper Cook

improperly administered the Romberg balance test or improperly took Rau’s

pulse.

         {¶38} Finally, although Rau claims that he did not “fail” any of the

individual tests, it is unclear how this would warrant suppression of testimony

regarding Rau’s performance on the tests. It would simply go to the weight of the

evidence.    Furthermore, Trooper Cook testified that unlike evaluating alcohol

cases in field sobriety tests, that for drugs, when he was conducting the

standardized tests, he was “not determining whether or not it’s a pass or fail at that

moment it’s the totality of the circumstances, it’s everything that has been

observed and collected throughout the entire process.” (Tr. at 46). Trooper Cook

never testified that Rau specifically “failed” a test, he merely testified that the

clues he detected added to the totality of the circumstances that Rau was operating

a vehicle while intoxicated.     Those clues ultimately included the clues that

Trooper Cook received on the walk and turn test, the one leg stand test, the slow


                                        -14-
Case Nos. 11-13-06, 11-13-07


body clock on the Romberg balance and the one leg stand tests, the leg tremors

throughout the tests, the odor of burnt marijuana on Rau, Rau’s pulse, and the

wooden dugout found on Rau.

       {¶39} Under these circumstances, we cannot find that the trial court erred

in overruling Rau’s motion to suppress. Accordingly, Rau’s second assignment of

error is overruled.

       {¶40} For the foregoing reasons, Rau’s assignments of error are overruled

and the judgments of the Paulding County Court are affirmed.

                                                               Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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