[Cite as State v. Williams, 2019-Ohio-4414.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2018CA00151
DEANNA WILLIAMS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No. 2018TRC05678


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 24, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KRISTEN BATES-AYLWARD                          STACEY M. ZIPAY
CANTON LAW DIRECTOR                            ASSISTANT PUBLIC DEFENDER
JASON P. REESE                                 201 Cleveland Avenue, SW
CANTON CITY PROSECUTOR                         Suite 104
KRISTINA M. LOCKWOOD                           Canton, Ohio 44702
ASSISTANT CITY PROSECUTOR
218 Cleveland Avenue SW
Canton, Ohio 44702
Stark County, Case No. 2018CA00151                                                       2

Wise, J.

       {¶1}   Appellant Deanna Williams appeals from the denial of her motion to

suppress evidence in the Canton Municipal Court, Stark County. Appellee is the State of

Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}   Shortly after 2:00 AM on July 14, 2018, Appellant Williams received a

telephone call from a friend who had been a passenger in a vehicle stopped for OVI by

the Ohio State Highway Patrol on Mahoning Road in Canton. The friend, who was not

required by law enforcement to stay at the scene, asked appellant if she could drive over

and give her a ride home. Appellant agreed to do so.

       {¶3}   Upon her arrival, appellant, driving solo, pulled her vehicle in behind the

police cruiser utilized that night by OSHP Trooper Matthew Boyer, who had effectuated

the traffic stop. Following agency protocol, Trooper walked over to appellant’s vehicle to

make sure she was licensed and in a proper condition to drive.

       {¶4}   According to the trooper’s subsequent testimony, when he approached

appellant’s open car window, he immediately detected the odor of an alcoholic beverage.

He also observed that appellant’s eyes were bloodshot and glassy. The trooper noted

that appellant, when asked, “stated she had been drinking.” Supp. Tr. at 10. After Trooper

Boyer asked appellant to exit her vehicle, he continued to detect the smell of an alcoholic

beverage on her person. He placed appellant in the back seat of his police cruiser and

called for assistance.

       {¶5}   A few minutes later, OSHP Sergeant Johnnie Maier arrived. He later

testified that he immediately observed the odor of alcohol on her breath and bloodshot

glassy eyes. He also recalled that appellant “said she had been drinking and taking some
Stark County, Case No. 2018CA00151                                                         3


medication.” Supp. Tr. at 17. Appellant thus again admitted to drinking alcohol. Sergeant

Maier also observed that appellant was walking “a little bit slowly and a little bit oddly.”

Supp Tr. at 18. Sergeant Maier then had Williams perform field sobriety tests, and after

the conclusion of those tests, Williams was arrested and charged with OVI under R.C.

4511.19(A)(1)(d) and (D)(1)(d).

       {¶6}   On August 29, 2018, appellant filed a motion to suppress all evidence

obtained as a result of her encounter with law enforcement on July 14, 2018, asserting

she had been subjected to an unlawful seizure and a prolonged detention. The trial court

conducted a suppression hearing on August 31, 2018, at which time booth Trooper Boyer

and Sergeant Maier were called to testify.1 At the conclusion of the hearing, the trial court

denied appellant’s motion to suppress. Appellant thereupon pled no contest to, and was

found guilty of, OVI. Appellant was ordered, inter alia, to pay a fine of $375.00 and serve

180 days in jail, with all but three days suspended.

       {¶7}   A formal judgment entry denying the motion to suppress was issued on

September 5, 2018.

       {¶8}   On October 1, 2018, appellant filed a notice of appeal. She herein raises

the following sole Assignment of Error:

       {¶9}   “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS BY FINDING THAT THERE WAS REASONABLE, ARTICULABLE

SUSPICION TO SEIZE APPELLANT/PROLONG APPELLANT'S DETENTION FOR THE

PURPOSE OF ADMINISTERING FIELD SOBRIETY TESTS.”



1   We find no indication of any bodycam or dashcam video footage being presented
during the suppression hearing.
Stark County, Case No. 2018CA00151                                                     4


                                               I.

       {¶10} In her sole Assignment of Error, appellant argues the trial court erred in

denying her motion to suppress. We disagree.

                                      Standard of Review

       {¶11} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437

N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry

(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d

726. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911.

                       Appellant’s Initial Contact with Law Enforcement

       {¶12} Police officers are generally permitted to engage in “consensual

encounters” with citizens without running afoul of Fourth Amendment prohibitions on

searches and seizures. See State v. Crouse, 5th Dist. Licking No. 16 CA 37, 2017-Ohio-
Stark County, Case No. 2018CA00151                                                          5


1097, ¶ 19 (additional citations omitted). We review the issue of the existence of a

consensual encounter by examining the totality of the circumstances. See Florida v.

Royer (1983), 460 U.S. 491, 506–507, 103 S.Ct. 1319, 75 L.Ed.2d 229.

       {¶13} In the case sub judice, appellant does not dispute that her “initial interaction”

with Trooper Boyer was a consensual encounter, and that the trooper had the duty to

ensure she was validly licensed to drive and appeared sober. See Appellant’s Brief at 8.

We will therefore proceed to consider the next stage of the events ultimately leading to

appellant’s arrest.

                               Detainment for Field Sobriety Tests

       {¶14} A request made of a validly detained motorist to perform field sobriety tests

is generally outside the scope of the original stop, and must be separately justified by

other specific and articulable facts showing a reasonable basis for the request. State v.

Albaugh, 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, ¶ 18, quoting

State v. Anez (2000), 108 Ohio Misc.2d 18, 26–27, 738 N.E.2d 491. Although requiring a

driver to submit to a field sobriety test constitutes a seizure within the meaning of the

Fourth Amendment, courts have generally held that the intrusion on the driver's liberty

resulting from a field sobriety test is minor, and the officer therefore need only have

reasonable suspicion that the driver is under the influence of alcohol in order to conduct

a field sobriety test. See State v. Bright, 5th Dist. Guernsey No. 2009–CA–28, 2010-Ohio-

1111, 2010 WL 1035466, ¶ 17, citing State v. Knox, 2nd Dist. Greene No. 2005–CA–74,

2006-Ohio-3039, 2006 WL 1661628. In reviewing this issue, we apply a “totality of the

circumstances” approach. See, e.g., City of Fairfield v. Lucking, 12th Dist. Butler No.
Stark County, Case No. 2018CA00151                                                         6

CA2002–12–303, 2004-Ohio-90, 2004 WL 47400, ¶ 8, citing State v. Freeman (1980), 64

Ohio St.2d 291, 414 N.E.2d 1044.

       {¶15} Reasonable suspicion constitutes something less than probable cause.

State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v.

Carlson (1995), 102 Ohio App.3d 585, 590. Also, it is well-established that an officer's

reasonable articulable suspicion does not require proof beyond a reasonable doubt that

the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.

Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio

App.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997).

       {¶16} In State v. Smith, 5th Dist. Licking No. 09–CA–42, 2010-Ohio-1232, we

reiterated that under well-settled Ohio law, “where a non-investigatory stop is initiated and

the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of

intoxication, such as an admission of having consumed alcohol, reasonable suspicion

exists.” Id. at ¶ 34, citing State v. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-

5008 (additional citations omitted). See, also, State v. Beeley, 6th Dist. Lucas No. L–05–

1386, 2006-Ohio-4799, ¶ 16.

       {¶17} As we observed in our recitation of the facts, Trooper Boyer, the first officer

involved in the events of July 14, 2018, made the decision to have appellant sit in his

cruiser after the initial encounter along Mahoning Road. Sergeant Maier then arrived to

assist. After Sergeant Maier had detected an odor of alcohol on appellant’s breath,

noticed her bloodshot, glassy eyes, heard her admit to consuming alcohol, and observed

her walk as "slow” and “odd,” the decision was made to perform field sobriety tests.
Stark County, Case No. 2018CA00151                                                       7

       {¶18} Appellant relies in particular upon this Court’s 2014 decision in State v.

Keserich. In that case, the responding officer testified he had stopped Keserich’s vehicle

at approximately 2:00 a.m. on a weekend night for an unilluminated license plate. Upon

making contact, the officer noticed Keserich’s eyes were “bloodshot and watery.”

Keserich admitted he had consumed two drinks of alcohol. Based on those facts, the

officer decided to conduct field sobriety tests. Once Keserich stepped out of his vehicle

prior to performing the tests, the officer detected an odor of alcohol on his person. See

State v. Keserich, 5th Dist. Ashland No. 14-COA-011, 2014-Ohio-5120, ¶ 9. We ultimately

reversed the trial court's judgment denying Keserich’s motion to suppress, with one judge

dissenting. Id. at ¶ 20.

       {¶19} We first note Keserich involved a stop for equipment violation, although

comparison of that factor to the consensual encounter involved in the present case carries

minimal weight in our analysis. However, unlike Trooper Boyer in the case sub judice, the

officer in Keserich did not immediately detect an odor of alcohol upon making contact with

the driver, although the Keserich officer did smell alcohol after the driver got out of the

car. Also, while appellant in the present case drove alone, the vehicle in Keserich was

occupied by several passengers who had been smoking, creating the question that the

condition of the driver’s eyes could have been caused by something other than alcohol.

See id. at ¶ 18. More importantly, we specifically noted that Mr. Keserich had “exhibited

no clues of impairment in his normal walking ***.” Id. at ¶ 19.

       {¶20} We therefore find, upon a de novo review, that the troopers articulated

sufficient reasonable grounds to justify the request to have appellant engage in field

sobriety testing.
Stark County, Case No. 2018CA00151                                                        8

                                    Probable Cause to Arrest

       {¶21} At the suppression hearing, defense counsel made clear that she was

limiting her arguments to the question of reasonable suspicion to detain appellant in the

cruiser and to proceed to field sobriety testing. See Supp. Tr. at 4-5. Thus, the issue of

probable cause to arrest was not at issue, and the same holds true for the present

appellate briefs.

                                           Conclusion

       {¶22} Upon review of the totality of the facts and circumstances presented herein,

we find no error in the trial court's denial of appellant’s suppression motion, as there was

reasonable suspicion demonstrated to detain appellant at the scene for the purpose of

field sobriety testing.

       {¶23} Appellant's sole Assignment of Error is therefore overruled.

       {¶24} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.



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