[Cite as State v. Hays, 2020-Ohio-2919.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      29506

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TERENCE HAYS                                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 14 12 3781(B)

                                 DECISION AND JOURNAL ENTRY

Dated: May 13, 2020



        CARR, Judge.

        {¶1}     Defendant-Appellant Terence Hays appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     On December 17, 2014, Troopers Rick Caraway and Eric Golias were training with

Sergeant Stacy Arnold in criminal interdiction. The three were in a marked cruiser stationed in

the median area of the Ohio turnpike facing eastbound traffic. Sergeant Arnold was in the driver’s

seat. There were three lanes of eastbound traffic in the area where they were stationed. They

observed a silver vehicle traveling in the center lane going 65 m.p.h. in a 70-m.p.h. zone. The

driver, who was subsequently identified as Hays, was looking straight ahead and the front seat

passenger appeared to be looking down at the floorboards. After the vehicle passed the cruiser,

the vehicle braked and slowed down more. The vehicle had Nebraska plates.
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       {¶3}    Sergeant Arnold, after talking to the two other troopers, left the median and began

following the silver vehicle. Trooper Caraway observed the silver vehicle drift over into the right

lane for approximately 30 to 40 yards and then drift back. After observing the traffic violation,

Sergeant Arnold activated the cruiser’s lights and sirens and initiated a traffic stop. The silver

vehicle pulled over.

       {¶4}    Trooper Caraway went up towards the silver vehicle and motioned Hays to come

to Trooper Caraway. Hays grabbed an envelope from the visor of the silver car and jogged to

Trooper Caraway. Hays produced his license, registration, and proof of insurance. While Hays

had Nebraska plates, his license was issued in Colorado. Hays explained that he had a house in

Colorado and that he and the passenger were driving to Boston to visit friends for the holidays.

Trooper Caraway then gave the information to Trooper Golias so that Trooper Golias and Sergeant

Arnold could run the information.

       {¶5}    Trooper Caraway then approached the passenger, who was looking down at a tablet

on her lap. When he tapped on the window, the passenger looked up and appeared very startled.

The passenger rolled down her window and provided Trooper Caraway with her New Jersey

license. She told Trooper Caraway that they were heading to Boston for a vacation and that they

were staying at a hotel, but she did not know which one.

       {¶6}    Trooper Caraway was concerned that, inter alia, Hays’ and the passenger’s stories

differed and that they were not on the most direct route to Boston. Trooper Caraway returned to

the cruiser and had Hays return to his vehicle. Trooper Caraway discussed what he had learned

with Trooper Golias and Sergeant Arnold. Trooper Caraway then requested that a K-9 be

dispatched to the scene.
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       {¶7}    When the K-9 arrived on the scene, the criminal history checks had not come back

yet. The K-9 was walked around the vehicle and the dog alerted on the trunk area. The vehicle

was then searched and over 200 pounds of marijuana was recovered from the vehicle. According

to Trooper Caraway, after the K-9 alerted, the criminal history check came back indicating that

both Hays and the passenger had histories of trafficking in narcotics.

       {¶8}    An indictment was filed February 2015, charging Hays with one count of

trafficking in marijuana and one count of possession of marijuana. Both counts included a

forfeiture specification. Hays filed a motion to suppress/motion in limine. Hays challenged the

basis of the stop and the length of the detention. A hearing was held on the motion. After the

hearing, Hays filed a supplemental brief. Thereafter, the trial court issued an entry denying the

motion to suppress.

       {¶9}    Ultimately, Hays entered a plea of no contest to the indictment. At the time of

sentencing, the trial court merged the possession count into the count for trafficking. Hays was

sentenced to five years in prison.

       {¶10} Hays has appealed, raising a single assignment of error for our review.

                                                II.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
       MOTION IN LIMINE, MOTION TO SUPPRESS AND FAILED TO SUPPRESS
       EVIDENCE SEIZED AS A RESULT OF APPELLANT’S ARREST ON
       DECEMBER 17, 2014, ALL IN VIOLATION OF APPELLANT’S RIGHTS AS
       SECURED BY AMEND. IV, U.S. CONST. AND APPELLANT’S RIGHTS TO
       DUE PROCESS IN AMEND. V, U.S. CONST. AND HIS RIGHTS AS SECURED
       UNDER ART. I, SEC. 10 OF THE OHIO CONSTITUTION.

       {¶11} Hays argues that the trial court erred in denying his motion to suppress.

Specifically, Hays maintains that the duration of the stop was violative of Rodriguez v. United
                                                    4


States, 575 U.S. 348 (2015). Hays essentially asserts that the request for Hays’ and the passenger’s

criminal histories was improperly delayed to allow time for the K-9 to arrive and conduct a sniff

of the vehicle. Hays also argues that the officers lacked reasonable suspicion to extend the duration

of the stop in order to conduct the K-9 sniff of the vehicle.

        {¶12} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual

questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Thus, a reviewing court “must accept the trial court's findings of fact if they are

supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124

Ohio App.3d 706, (4th Dist. 1997).

        {¶13} In Rodriguez, the Supreme Court addressed “whether the Fourth Amendment

tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez at 350. The Court

held “that a police stop exceeding the time needed to handle the matter for which the stop was

made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by

a police-observed traffic violation, therefore, become[s] unlawful if it is prolonged beyond the

time reasonably required to complete th[e] mission of issuing a ticket for the violation.” (Internal

quotations and citations omitted.) Id.

        {¶14} Here, not only did Trooper Caraway and Sergeant Arnold testify at the suppression

hearing, but the video of the traffic stop was also played and admitted into evidence. That video

is referenced in the trial court’s entry denying the motion to suppress and also in Hays’ brief on
                                                   5


appeal. Unfortunately, that video is not a part of this Court’s record on appeal. In fact, none of

the exhibits admitted at the suppression hearing are part of this Court’s record on appeal. Notably,

the notice from the clerk of courts, filed in this Court’s record, specifically notified the parties that

no exhibits were filed. This notice was also sent to the attorneys of record. It was Hays’ burden

on appeal to ensure that the record on appeal was complete. See State v. Filip, 9th Dist. Medina

No. 16CA0049-M, 2017-Ohio-5622, ¶ 16. Under these circumstances, we cannot properly

evaluate whether the trial court erred in concluding that Hays was not improperly detained as we

cannot review the video that documented the traffic stop. See id. “Thus, we are required to

presume regularity in the proceedings and affirm the trial court's judgment on that basis.” Id.

        {¶15} Hays’ assignment of error is overruled on that basis.

                                                  III.

        {¶16} Hays’ assignment of error is overruled. The judgment of the Summit County Court

of Common Pleas is affirmed.

                                                                                   Judgment affirmed.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
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mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT




SCHAFER, J.
CONCURS.

CALLAHAN, P. J.
DISSENTING.

       {¶17} When an appellant does not challenge the trial court’s findings of fact in a

suppression case, this Court may accept them as true and review the trial court’s legal conclusions

de novo. See State v. Hitsman, 9th Dist. Medina No. 18CA0015-M, 2018-Ohio-5315, ¶ 7-8. See

generally State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, citing State v. McNamara,

124 Ohio App.3d 706, 710 (4th Dist.1997). I agree that when an appellant fails to ensure that the

record on appeal contains everything necessary to review the assignments of error asserted, this

Court has no choice but to presume regularity and affirm. Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199 (1980). On the other hand, when this Court can review an assignment of error

without reference to the missing parts of the record, we should do so.

       {¶18} In this case, the trial court issued detailed findings of fact, which Mr. Hays did not

challenge. Those findings of fact are sufficient to permit this Court to review the legal issues

raised in his assignment of error. I would, therefore, address the merits of his argument.

       {¶19} I respectfully dissent.
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APPEARANCES:

LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
