[Cite as Parma v. Skonezny, 2013-Ohio-1558.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98804




                                    CITY OF PARMA

                                                      PLAINTIFF-APPELLEE

                                                vs.



                               DANIEL J. SKONEZNY
                                                            DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Criminal Appeal from the
                                      Parma Municipal Court
                                     Case No. 11 TRC 02683

        BEFORE:         Jones, P.J., S. Gallagher, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                     April 18, 2013
ATTORNEY FOR APPELLANT

Stephen McGowan
19211 West Brooke Lane
Strongsville, Ohio 44149


ATTORNEYS FOR APPELLEE

Tim Dobeck
City Prosecutor

BY: Richard A. Neff
Assistant Prosecutor

Kelly Nicole Mason
Staff Attorney
City of Parma
5555 Powers Boulevard
Parma, Ohio 44129
LARRY A. JONES, SR., P.J.:

          {¶1} Defendant-appellant, Daniel Skonezny, appeals from the trial court’s

judgment denying his motion to suppress. We affirm.

                                I. Procedural History and Facts

          {¶2} In March 2011, Skonezny was arrested by Parma police officer Thurston

Voisine, and charged with operating a vehicle while intoxicated and failure to yield the

right-of-way when making a left turn.

          {¶3} In January 2012, Skonezny filed a motion to suppress, which was denied after

a hearing.     Skonezny pleaded no contest to the charges, and the trial court found him

guilty.     The trial court sentenced him to a 120-day jail term, with 109 days suspended,

and credit for one day served.      The trial court also placed Skonezny on probation.

          {¶4} The following facts, as testified to at the suppression hearing, gave rise to the

arrest and conviction.       On the day in question, Officer Voisine responded to the

intersection of Snow Road and Edgehill Drive in Parma after receiving a dispatch that an

accident had occurred there and it possibly involved a “hit-skip.”

          {¶5} Snow Road is a four-lane roadway running east and west.          Edgehill Drive

runs north and south and intersects Snow Road. A stop sign controls vehicles traveling

on Edgehill Drive where it intersects Snow Road; traffic traveling on Snow Road at that

intersection has the right-of-way.

          {¶6} Upon arriving at the scene, Officer Voisine saw two vehicles on Edgehill
Drive: one vehicle was facing southbound and the other was at an angle crashed into the

first. The officer spoke to the two individuals who had been driving the vehicles, Joseph

Milauskas and Robert Goldner.

          {¶7} Goldner testified that he was the driver of the vehicle that had been crashed

into. He testified that he had been traveling southbound on Edgehill Drive and was

stopped at the stop sign where the road intersects Snow Road, waiting to cross Snow

Road and continue traveling on Edgehill Drive.       While waiting, Goldner saw a pick-up

truck, traveling eastbound on Snow Road, make a left-hand turn onto Edgehill Drive.

Goldner testified that he thought the truck did not have “enough clearance” to make such

a turn.

          {¶8} Milauskas testified that he was driving westbound on Snow Road,

approaching Edgehill Drive, when the pick-up truck turned in front of him. Milauskas

realized that if he did not take evasive action he was going to hit the truck, so he veered to

the right, hoping to just go up on the curb by Edgehill Drive. However, the road was

wet, Milauskas was unable to stop, and he hit Goldner’s vehicle. Milauskas testified

that the truck turned right “in front” of him, “without stopping.”             According to

Milauskas, he (Milauskas) was driving under the posted speed limit because the road was

wet and in poor condition.

          {¶9} The pick-up truck was not at the scene when Officer Voisine initially arrived.

 Goldner described the truck to the officer and told him that he had previously seen the

truck in the neighborhood, although he did not know to whom it belonged. As Goldner
was describing the truck to the officer, Goldner saw it and alerted Voisine.     The truck

was parked on Snow Road.        Officer Voisine looked at the truck, and the driver drove

away.    The officer then left the accident scene to follow the truck.

        {¶10} The driver drove the truck to a residence a short distance away, pulled in the

driveway, opened the garage door, exited the vehicle, went into the garage, and

“immediately” shut the garage door.

        {¶11} Officer Voisine went up to the house, and knocked on the door, with the

intent of asking the driver if he knew anything about the accident.           After several

minutes, the man Officer Voisine recognized as the driver of the truck opened the door.

The officer identified the driver at the suppression hearing as Skonezny. Voisine asked

Skonezny if he could come in, and Skonezny initially just stared at the officer, but then

said “yes” in a “slurred” manner.

        {¶12} The officer testified that he could smell alcohol “right away” when

Skonezny opened the door.           The officer also testified that Skonezny “stumbled

backwards” as he was opening the door and had to use the door to regain his balance.

Voisine asked Skonezny where he had been coming from and Skonezny said the Post and

Beam Bar.

        {¶13} Voisine asked Skonezny if he had been involved in an accident and

Skonezny said that he did not remember being in an accident and told the officer that he

had just been “driving around trying to come home.”         He told the officer that he had

driven on Edgehill Drive.
       {¶14} Officer Voisine asked Skonezny how much alcohol he had consumed and

Skonezny said approximately seven beers.       He declined field sobriety testing.   Officer

Voisine arrested him.

                                  II.   Law and Analysis

       {¶15} Skonezny’s sole assignment of error states that “[t]he trial court erred in

denying Defendant’s Motion to Suppress.”

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

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 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.

Consequently, an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence. 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.

A. The Trial Court’s Findings of Fact

       {¶17} According to Skonezny, the trial court took “contradictory” positions:

first, an “unwilling[ness] to make a finding that Defendant’s vehicle was involved in the

accident,” and second, the conclusion that his vehicle was involved in the accident.     We

disagree with Skonezny’s interpretation of the court’s judgment.

       {¶18} In the concluding paragraph of the trial court’s judgment entry, the court

stated that it was “satisfied that the officer had a reasonable suspicion to investigate and
locate the Defendant’s vehicle, which he did.”     In the next sentence the court stated that

       [w]hether the Defendant and his vehicle were involved in the crash or not is
       in one sense secondary, because it was a vehicle described by the other
       witnesses in the vicinity, although it appears that the Defendant’s vehicle
       may be the third vehicle involved.

       {¶19} When read in context, the trial court’s findings are not contradictory. The

trial court was explaining, correctly so, that Officer Voisine had reasonable suspicion,

based on what Goldner and Milauskas told him had occurred, to investigate, regardless of

whether Skonezny would ultimately be implicated. See State v. Dowers, 12th Dist. No.

CA98-03-065, 1998 Ohio App. LEXIS 5996 (Dec. 14, 1998), *3-4 (officer who arrived at

scene to investigate automobile accident was “lawfully investigating the accident and was

entitled to question appellant about his role in the accident.”).

       {¶20} Skonezny further contends that the witness testimony did not support the

trial court’s finding that Skonezny “failed to yield the right of way or in any way caused

the accident in this case.”       Skonezny contends that Milauskas’s testimony was not

reliable because he admitted he was “shaken up” after the accident and his action of

veering is what caused the accident.    We disagree.

       {¶21} Parma Codified Ordinances 331.17(a), governs “right-of-way when turning

left,” and provides as follows:

       The operator of a vehicle intending to turn to the left within an intersection
       or into an alley, private road, or driveway shall yield the right-of-way to any
       vehicle approaching from the opposite direction which is within the
       intersection or so close thereto as to constitute an immediate hazard.

       {¶22} As previously mentioned, at a suppression hearing the trial court serves as
the trier of fact, and must judge the credibility of witnesses and the weight of the

evidence. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. The

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

credibility. Id. We are bound to accept the trial court’s factual findings as long as they

are supported by competent, credible evidence. Id.

       {¶23} Milauskas’s version of what occurred was corroborated by Goldner.            They

both testified that Skonezny made a left hand turn in front of Milauskas’s vehicle without

enough clearance.

       {¶24} Skonezny next contends that a misstatement of the facts in the trial court’s

judgment calls its judgement into question.         Specifically, the trial court found that

Officer Voisine stopped the suspect vehicle on Snow Road and observed that Skonezny

was the driver. That was not the testimony of the officer, but as Skonezny himself

admits, “this inaccurate finding may not be critical to the determination of [the] Motion to

Suppress * * *.” It is not and, further, for the reasons already discussed, we do not find

that it “calls into question the trial court’s resolution of other, critical, factual issues” as

suggested by Skonezny.

       {¶25} In light of the above, we accept the trial court’s findings as being supported

by competent, credible evidence.

B. Review of Facts against Applicable Legal Standard

       {¶26} Skonezny contends that even if the trial court’s findings are accepted as true,

the trial court erred in applying them to find that Officer Voisine had “reasonable
suspicion to perform an investigatory stop.”       But the officer did not perform an

investigatory stop. Rather, he went to Skonezny’s home to ask him if he knew anything

about the accident.

       {¶27} Not every encounter between a citizen and a law enforcement official

implicates the state and federal prohibition on unreasonable searches and seizures.

California v. Hodari D., 499 U.S. 621, 626-628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991);

State v. Taylor, 106 Ohio App.3d 741, 747, 667 N.E.2d 60 (2d Dist.1995).

       {¶28} Police may lawfully initiate a consensual encounter without probable cause

or a reasonable, articulable suspicion of criminal activity. United States v. Mendenhall,

446 U.S. 544, 556, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Encounters between the

police and the public are consensual when the police approach an individual in a public

place, engage the person in conversation, and request information, as long as the person is

free to walk away. Id. at 554; State v. Jones, 112 Ohio App.3d 206, 211, 678 N.E.2d

285 (2d Dist.1996). A “seizure” giving rise to Fourth Amendment concerns occurs only

when, in view of all the circumstances surrounding the incident, the police officer, either

by physical force or by show of authority, restrains the person’s liberty so that a

reasonable person would not feel free to decline the officer’s request and walk away.

State v. Williams, 51 Ohio St.3d 58, 61, 554 N.E.2d 108 (1990); Jones at id.

       {¶29} Further, an encounter may be consensual even if it occurs on private

property.   Williams at id.; State v. Lenard, 8th Dist. Nos. 96975 and 97570,

2012-Ohio-1636 (no seizure when police encountered defendant’s wife at home and
spoke with her); State v. Haberman, 5th Dist. No. 99CA0068, 2000 Ohio App. LEXIS

2424 (June 2, 2000) (no seizure when officer asked person to step out of tent pitched in

private yard); State v. Szewczyk, 7th Dist. No. 98-CA-20, 1999 Ohio App. LEXIS 4414

(Sept. 14, 1999) (no seizure when police encountered driver making purchase at a

drive-thru shop); State v. Wolske, 6th Dist. No. WD-97-061, 1998 Ohio App. LEXIS

2329 (May 29, 1998) (no seizure when officer approached truck parked in parking lot

with private property signs posted).

       {¶30} Here, Officer Voisine went to Skonezny’s house with the intent to have a

consensual encounter with Skonezny. And indeed, that is how the encounter began;

when Officer Voisine asked Skonezny if he could come inside his home to talk to him,

Skonezny consented. Had Skonezny refused to talk to Officer Voisine, then Fourth

Amendment concerns would have been implicated.

       {¶31} But during the course of the encounter Skonezny consented to with Officer

Voisine, the officer smelled alcohol, Skonezny’s speech was slurred, he “stumbled

backwards” as he was opening the door, and had to use the door to regain his balance.

Skonezny told the officer that he had been at a bar, consumed alcohol, and had been

driving, including on Edgehill Drive.

       {¶32} Thus, what began as a consensual encounter led to Officer Voisine having

probable cause to arrest Skonezny.

       {¶33} In light of the above, the trial court did not err in denying Skonezny’s

motion to suppress and his sole assignment of error is therefore overruled.
      {¶34} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Parma

Municipal Court to carry this judgment into execution. Case remanded to the trial court

for execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION


EILEEN A. GALLAGHER, J., DISSENTING:

       {¶35} The findings of fact issued by the trial court are fraught with misstatements
of the evidence and I question whether the trial court would have reached the same
decision if it were not based on erroneous findings.
