[Cite as State v. Fisher, 2017-Ohio-5485.]




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




STATE OF OHIO,
                                                          CASE NO. 2-17-03
       PLAINTIFF-APPELLEE,

       v.

DAVID J. FISHER,                                          OPINION

       DEFENDANT-APPELLANT.



                    Appeal from Auglaize County Municipal Court
                           Trial Court No. 2016 TRC 4021

                                      Judgment Affirmed

                              Date of Decision: June 26, 2017



APPEARANCES:

        Craig A. Gottschalk for Appellant

        Benjamin R. Elder for Appellee
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WILLAMOWSKI, J.

       {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.

Defendant-appellant David J. Fisher (“Fisher”) brings this appeal from the judgment

of the Auglaize County Municipal Court denying his motion to suppress. Fisher

alleges that the trial court should have suppressed the results of his field sobriety

tests because the officer lacked reasonable, articulable suspicion of criminal activity

and thus the stop was improper. Fisher also alleges that the field sobriety tests were

not properly conducted. For the reasons set forth below, the judgment of the trial

court is affirmed.

       {¶2} On June 10, 2016, Fisher was volunteering in the K.C. Geiger Park

watering the grass in the baseball fields and preparing the fields for games. Tr. 66.

Patrolman Brian Parker (“Parker”) knew people were in the park after hours

working on the grounds and indicated that he would tell the next shift and leave the

gate open. Tr. 54-57. Parker left the gate open, but forgot to notify the next shift.

Id. At some point in time, the gate was closed by an unknown party. Tr. 57.

       {¶3} Around 1:30 am on June 11, 2016, Officer Melissa Osting (“Osting”)

drove by the park and saw two sets of headlights in the park. Tr. 3. The gates were

closed and she knew the park closed at 11:00 pm. Tr. 4. Osting was unaware that

anyone had permission to be in the park. Id. Osting decided to stop the vehicles to

determine if they were trespassing. Tr. 17. When Osting approached the driver of

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one of the vehicles, she detected a strong odor of an alcoholic beverage. Tr. 6. She

noted that the eyes of the driver of the vehicle were glassy and bloodshot. Id. The

driver was identified as Fisher. Id. When questioned, Fisher admitted that he had

indulged in a couple of drinks. Tr. 7. Fisher then agreed to take the field sobriety

tests. Id. Osting administered the Horizontal Gaze Nystagmus test (“HGN”), the

Walk and Turn test, and the One Leg Stand. Tr. 8. Fisher presented with six out of

six clues of impairment on the HGN. Tr. 10. During the Walk and Turn Test, Fisher

did not make the steps properly, only took six of the nine requested steps, did not

count out loud, stepped off of the imaginary line in front of him, and did not

complete the turn correctly. Tr. 12. Fisher took the One Leg Stand test for 30

seconds, but put his foot down four times, raised his arms for balance, and was

swaying during the test. Tr. 13. Based upon these indications, Osting arrested

Fisher for operating a motor vehicle while impaired. Doc. 1.

      {¶4} On July 15, 2016, Fisher filed a motion to suppress the evidence from

the stop. Doc. 31. In the motion Fisher alleged that Osting lacked probable cause

to arrest him and that the field sobriety tests were not conducted in substantial

compliance with the guidelines. Id. A hearing was held on the motion on November

3, 2016. Doc. 81. The trial court entered judgment denying the motion to suppress

on November 29, 2016. Doc. 58. On January 26, 2017, Fisher changed his plea to

one of no contest and was sentenced to community control. Doc. 68. Fisher filed



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his notice of appeal on February 24, 2017. Doc. 75. On appeal, Fisher raises one

assignment of error.1

         The trial court incorrectly determined that the stop of [Fisher’s]
         vehicle was legal, and therefore erred in overruling [Fisher’s]
         motion to suppress evidence.

         {¶5} In the assignment of error, Fisher claims that the trial court should have

granted the motion to suppress. This claim is based upon the fact that there was no

law prohibiting him from being in the park at that time of night, so there was no

indication of criminal activity upon which to base the initial traffic stop. “An

appellate review of the trial court's decision on a motion to suppress involves a

mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-14-19, 2015-

Ohio-1884, ¶ 11. The general rule in Ohio is that a motion to suppress must make

clear the grounds upon which the motion is based so that the State may prepare its

case and the trial court will know the grounds of the challenge to rule on the

evidentiary issues at the hearing and properly dispose of them. City of Xenia v.

Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988). “Failure on the part of the

defendant to adequately raise the basis of his challenge constitutes a waiver of that

issue on appeal.” Id. at 218.

         {¶6} The trial court found that the State failed to present any evidence that

Fisher was violating a law by being in the park after it closed. Doc. 58 at 2. A


1
 A second argument was raised in the brief, but it dealt with probable cause to arrest. The sole assignment
of error dealt with the stop of the vehicle. We need not address an argument to which no error was assigned,
but will do so briefly in the interest of justice.

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review of the record indicates that this finding is correct. However, the trial court

also determined that just because there was no actual crime, the officer still had a

good faith belief that a crime was possibly being committed which would provide a

reasonable suspicion for the stop. Id.

       {¶7} The U.S. Supreme Court recently addressed this issue in Heien v. North

Carolina, 574 U.S. ___, 135 S.Ct. 530, 190 L.E.d 475 (2014). In Heien, the vehicle

was stopped because one of its two brake lights was inoperable and the officer

believed that both were required to be working. Id. at 534. This belief turned out

to be a mistake of law by the officer. Id. The U.S. Supreme Court held that all that

is required to justify a stop of a vehicle is “a particularized and objective basis for

suspecting the particular person stopped of breaking the law.” Id. at 536 quoting

Navarette v. California, 572 U.S. ___, 134 S.Ct. 1683, 1687-88, 188 L.Ed.2d 680

(2014). The Court then determined that the question to be addressed is whether that

reasonable suspicion can rest on a mistaken understanding of what was legally

prohibited. Id. The Court held that a reasonable mistake of law can provide

reasonable suspicion to justify a stop of a vehicle. Id.

       {¶8} Here, as discussed above, there was no statute or ordinance prohibiting

Fisher from being in the park after hours. Thus, he could not be convicted of

criminal trespass for being there. However, Osting testified that the gates were shut

and that she saw headlights in the park more than two hours after the posted time

for the park to be closed. She had no knowledge of anyone having permission to be

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in the park at that time. She believed that whoever was in the park was trespassing

because the park was closed. All of the evidence presented at the hearing supports

the claim that Osting did not know that anyone was likely to have permissibly been

in the park at the time. The trial court concluded that her mistake was reasonable.

Based upon the record before it, there was ample evidence to support the finding

that the mistake of law was reasonable. Pursuant to the U.S. Supreme Court’s

holding in Heien, the reasonable mistake of law of Osting that anyone in the park

after hours was trespassing was sufficient to provide her with a reasonable

articulable suspicion to stop Fisher’s vehicle. The assignment of error is overruled.

       {¶9} While not assigning it as error, Fisher also argues that the police lacked

probable cause to arrest him because the officer did not comply with the guidelines

when conducting the field sobriety tests. “In determining whether the police had

probable cause to arrest an individual for [OVI], we must consider whether, at the

moment of arrest, the police had 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. Dillehay, 3d Dist. Shelby

No. 17–12–07, 2013–Ohio–327, ¶ 19, quoting State v. Thompson, 3d Dist. Union

No. 14–04–34, 2005–Ohio–2053, ¶ 18; State v. Homan, 89 Ohio St.3d 421, 427,

732 N.E.2d 952 (2000), superseded by statute on other grounds as stated in State v.

Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007–Ohio–1251, ¶ 10. We have

previously determined that field sobriety tests are not the only factor to be

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considered when evaluating whether an officer had probable cause to arrest a subject

for OVI.

       While field sobriety tests must be administered in [substantial]
       compliance with standardized procedures, probable cause to
       arrest does not necessarily have to be based, in whole or in part,
       upon a suspect's poor performance on one or more of these tests.
       The totality of the facts and circumstances can support a finding
       of probable cause to arrest even where no field sobriety tests were
       administered or where, as here, the test results must be excluded
       for lack of strict compliance.

State v. Aldridge, 3d Dist. Marion No. 9-13-54, 2014-Ohio-4537, ¶ 24 quoting State
v. Ferguson, 3d Dist. Defiance No. 4-01-34, 2002-Ohio-1763.

       {¶10} Even if the results of the field sobriety tests showing a likelihood of

impairment were not admissible in this case for being performed incorrectly, the

remaining evidence still would provide probable cause to arrest for OVI. Osting

testified that when she stopped Fisher, his eyes were glassy and bloodshot. When

questioned, Fisher admitted to having consumed alcohol. Osting also testified as to

Fisher’s conduct on the tests, including his lack of balance on both the Walk and

Turn Test and the One Leg Stand. Additionally, the trial court had the visual

evidence from the video from which the trial judge could independently evaluate

Fisher’s physical performance. A review of all of the totality of the facts and

circumstances in this case shows that there was probable cause for Osting to arrest

Fisher on suspicion of OVI. For this reason, this argument would fail.




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       {¶11} Having found no prejudice in the particulars assigned and argued, the

judgment of the Auglaize County Municipal Court is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/hls




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