[Cite as State v. Ebersole, 2012-Ohio-895.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00215
CHATHAM EBERSOLE                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2011TRC4698

JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            March 5, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

BRANDEN PAXOS                                      MICHAEL A. BOSKE
Assistant Canton City Prosecutor                   122 Central Plaza North
218 Cleveland Avenue S.W., Ste. 700                Canton, OH 44702
Canton, OH 44701-4218
[Cite as State v. Ebersole, 2012-Ohio-895.]


Gwin, P.J.

        {¶ 1} Appellant, Chatham Ebersole, appeals a judgment of the Canton

Municipal Court, Stark County, Ohio, overruling his motion to suppress.

        {¶ 2} On June 18, 2011, appellant was cited by Trooper Evans of the Ohio State

Highway Patrol following a traffic stop. Appellant was charged with one count of

Operating a Motor Vehicle While under the Influence of Alcohol, a first-degree

misdemeanor, and one count of Failure to Drive in a Marked Lane a minor

misdemeanor.1

        {¶ 3} On June 29, 2011, counsel for appellant filed a Demand for Discovery. On

July 8, 2011, appellee filed its response to appellant's discovery request. This response

was later supplemented by appellee on August 9, 2011.

        {¶ 4} On July 26, 2011, appellant filed a Motion in Limine/Motion to Suppress.

On July 27, 2011, the trial court issued a Judgment Entry overruling appellant's Motion

in Limine/Motion to Suppress for failing to give sufficient notice of the specific legal and

factual grounds for the motion. The trial court gave appellant fourteen days to

supplement his motion.

        {¶ 5} On August 4, 2011, appellant filed a Supplemental Motion to Suppress.

On August 17, 2011 without a hearing, the trial court overruled appellant’s supplemental

motion.




        1
          A Statement of the Facts underlying appellant’s original stop are unnecessary to our disposition
of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be
contained therein.
Stark County, Case No. 2011-CA-00215                                                      3


       {¶ 6} On September 14, 2011, the Appellant entered a plea of no contest and

was sentenced to six (6) days in jail, twenty-five (25) hours community service and a six

(6) month license suspension.

       {¶ 7} Appellant has timely appealed raising as his sole assignment of error,

       {¶ 8} “I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S

MOTION TO SUPPRESS WITHOUT A HEARING.”

                                                I.

       {¶ 9} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo
Stark County, Case No. 2011-CA-00215                                                      4

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶ 10} In his sole assignment of error, appellant argues the trial court erred by

overruling his Supplemental Motion to Suppress without a hearing on the basis that, on

its face, the motion was insufficiently specific. We agree.

       {¶ 11} “The defendant must first challenge the validity of the alcohol test by way

of a pretrial motion to suppress; failure to file such a motion ‘waives the requirement on

the state to lay a foundation for the admissibility of the test results.’” Burnside at ¶ 24,

quoting State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. The motion to

suppress must notify the state and the trial court of the issues to be determined by

setting forth with sufficient particularity both the legal and factual bases for

inadmissibility. State v. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319(1994); see, also,

State v. Price, 11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 22; State v. Nicholson,

12th Dist. No. CA2003-10-106, 2004-Ohio-6666, at ¶ 9.

                     While courts vary in their determinations as to what

              constitutes ‘sufficient particularity,’ at a minimum, an accused is

              required to identify some section of the Ohio Administrative Code

              that is implicated and/or make some sort of assertion that the State

              failed to follow the proper standards in administering the breath

              test. See [State v. Shindler] (holding that a virtual copy of the

              sample motion to suppress contained in Ohio Driving Under the

              Influence Law (1990) 136–137, Section 11. 16, a legal handbook,
Stark County, Case No. 2011-CA-00215                                                   5


              that listed numerous allegations of violations of the OAC by the

              State and provided the cite to the implicated OAC section was

              stated with sufficient particularity); State v. Yeaples, 180 Ohio

              App.3d 720, 907 N.E.2d 333, 2009–Ohio–184, at ¶ 14 (holding that

              a motion originally containing twenty alleged violations of the OAC,

              narrowed into ten allegations at the suppression hearing, that

              included the specific OAC section and sub-section at issue was

              stated with sufficient particularity); Norwood v. Kahn, 1st Dist. Nos.

              C–060497, C–060498, and C–060499, 2007–Ohio–2799 (finding

              that a motion containing a general allegation of non-compliance by

              the State and a listing of applicable OAC sections alleged to have

              been violated was stated with sufficient particularity).

State v. Minnick, 3rd Dist. No. 15-09-06, 2009-Ohio-5274, 2009 WL 3165581, ¶

12.

       {¶ 12} In the case sub judice, appellant’s supplemental motion specifically cites

to the statute and regulations he contends were not followed. The supplemental motion

further provided the following specific, factual allegations,

                     The Defendant alleges that the State's procedures in this

              case were not in substantial compliance with the requirements set

              forth in O.A.C. 3701.53. Specifically the Defendant alleges that the

              urine sample in this case was not refrigerated while not in transit

              and that no documentation of the sample's chain of custody has

              been provided. The lab test was not performed until two weeks
Stark County, Case No. 2011-CA-00215                                                       6


              after the sample was taken. Furthermore, the Defendant alleges

              that the positive result in this case was not confirmed by one or

              more dissimilar analytical techniques or methods.

       {¶ 13} State v. Neuhoff, 119 Ohio App.3d 501, 695 N.E.2d 825(5th Dist. 1997)

cited by the trial court is distinguishable. First, unlike the case at bar the trial court in

Neuhoff did hold an evidentiary hearing on the defendant’s motion to suppress. 119

Ohio App.3d at 509. Further, we have also noted,

              Once the state has produced enough evidence at the hearing on a

       motion to suppress to create a reasonable inference that the regulation at

       issue was properly followed, the accused must do more than merely

       assert that it is hypothetically possible some more specific aspect of the

       regulation was not followed. The accused must have a factual basis for

       the assertion. State v. Embry supra 2004-Ohio-2535 at ¶ 26. One way this

       factual basis can be obtained is during cross-examination at the hearing

       on the motion. [Id.]. A defendant who files a boilerplate motion with a bare

       minimum factual basis will need to engage in cross-examination if he

       wishes to require the state to respond more than generally to the issues

       raised in the motion. [Id. at ¶ 27]* * *

State v. Raleigh, 5th Dist. No. 2007-CA-31, 2007-Ohio-5515, 2007 WL 2994237,

¶74.

       {¶ 14} Accordingly, under the facts of this case we find appellant fully complied

and did set forth some underlying facts in the memorandum and the supplemental

memorandum in support of the motion to suppress. Appellant's motion and
Stark County, Case No. 2011-CA-00215                                                     7


supplemental memorandum stated with particularity the statues and regulations he

alleged were violated, set forth some underlying factual basis to warrant a hearing, and

gave the prosecutor and court sufficient notice of the basis of his challenge. Shindler, 70

Ohio St.3d at 70, 636 N.E.2d 319.

      {¶ 15} Appellant’s sole assignment of error is sustained.

      {¶ 16} The judgment of the Canton Municipal Court, Stark County, Ohio

overruling appellant's motion to suppress is vacated. This cause is remanded to that

court for further proceedings in accordance with our opinion and the law.



By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur

                                              _________________________________
                                              HON. W. SCOTT GWIN



                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN



                                              _________________________________
                                              HON. JULIE A. EDWARDS
[Cite as State v. Ebersole, 2012-Ohio-895.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
CHATHAM EBERSOLE                                  :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00215




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

judgment of the Canton Municipal Court, Stark County, Ohio overruling appellant's

motion to suppress is vacated. This cause is remanded to that court for further

proceedings in accordance with our opinion and the law. Costs to appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
