[Cite as State v. Payne, 2012-Ohio-305.]


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

STATE OF OHIO                                       C.A. No.       11CA0029

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DEBORAH PAYNE                                       WAYNE COUNTY MUNICIPAL COURT
                                                    COUNTY OF WAYNE, OHIO
        Appellee                                    CASE No.   TRC-11-03-02174

                                 DECISION AND JOURNAL ENTRY

Dated: January 30, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Appellant, the State of Ohio, appeals from the judgment of the Wayne County

Municipal Court, granting Appellee, Deborah Payne’s, motion to suppress. This Court reverses.

                                                I

        {¶2}     The incident giving rise to this appeal occurred on March 24, 2011, at

approximately 2:00 a.m., but the details of the incident vary widely with regard to the witnesses

who testified. Officer Brandon Lash testified to the following series of events. While on duty on

the date in question, Officer Lash observed a black truck and recognized Payne as the driver of

the truck based on her prior dealings with law enforcement. Officer Lash also recognized

Payne’s passenger and decided to follow the truck, as he was aware that the two women had ties

to drug-related activity. In the course of following Payne’s truck, Officer Lash observed three

traffic violations. He opted not to stop the truck, however, as he believed it would be more

productive to continue his investigation.
                                                   2


       {¶3}    Officer Lash observed Payne pull into a driveway on Christmas Run Boulevard,

stop her truck “abruptly,” and quickly turn off her lights and engine. Believing that Payne had

engaged in evasive behavior, Officer Lash drove to a nearby street, parked his police cruiser, and

walked back to the house where Payne had stopped. He observed Payne and her companion at

the door to the house, but then saw them turn to leave and walk northbound on Christmas Run

Boulevard. Officer Lash decided to initiate contact with Payne, so he returned to his vehicle and

drove it to Christmas Run Boulevard. Officer Lash saw Payne and her companion walking down

the middle of Christmas Run Boulevard and stopped his cruiser behind them.               He then

approached them on foot. Officer Lash specified that he did not activate the lights on his cruiser

or order Payne to stop. He merely asked her “something to the effect [of] * * *, can I talk to you

for a second * * *.” While speaking with Payne, Officer Lash detected a moderate odor of

alcohol and asked her whether she had been drinking. Payne admitted that she had had a few

drinks as well as a Vicodin. She then consented to a horizontal gaze nystagmus test. Based on

his observations and Payne’s performance on the test, Officer Lash arrested Payne for operating

a vehicle while intoxicated. Payne submitted to a breathalyzer test and registered a blood alcohol

content level of .085%.

       {¶4}    According to Payne, she and her friend pulled into the driveway on Christmas

Run Boulevard because Payne’s boyfriend lived there. Payne denied having committed any

traffic violations on the drive to the house. Further, although she noticed a police cruiser

following her, Payne denied “abruptly” pulling into the driveway of the house. Payne testified

that she and her companion entered the house and “drank a couple of shots,” but decided to call a

cab and leave when it became clear that her boyfriend was upset. She and her companion then

left to walk down the road and wait for the cab.
                                                  3


       {¶5}    Payne testified that Officer Lash pulled his cruiser in front of her as she was

walking, got out of the cruiser, and began talking to her about her son. Payne answered Officer

Lash’s questions about where she was going and whether she had been drinking because she did

not feel that she could walk away. According to Payne, Officer Lash took her purse and

searched it as he questioned her. She also testified that he refused to allow her to call a lawyer

when she asked him if she could. Payne stated that the only drinks she consumed were the ones

she had at her boyfriend’s house after exiting her truck.

       {¶6}    Payne was charged with two counts of operating a vehicle while intoxicated, in

violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), respectively. Payne filed a motion to

suppress, and the trial court held a hearing on the motion on June 6, 2011. On June 10, 2011, the

trial court granted Payne’s motion to suppress.

       {¶7}    The State now appeals from the trial court’s judgment and raises one assignment

of error for our review.

                                                  II

                                       Assignment of Error

       “THE TRIAL COURT ERRED IN GRANTING DEBORAH PAYNE’S
       MOTION TO SUPPRESS.”

       {¶8}    In its sole assignment of error, the State argues that the court erred by granting

Payne’s motion to suppress. Specifically, the State argues that Officer Lash engaged Payne in a

consensual encounter or, alternatively, had probable cause to initiate a stop.        Because we

conclude that the trial court failed to make sufficient factual findings, we reverse and remand for

proceedings consistent with this opinion.

       {¶9}    The Ohio Supreme Court has held as follows:
                                                4


       Appellate review of a motion to suppress presents a mixed question of law and
       fact. 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. State v. Mills, 62 Ohio St.3d 357, 366
       (1992). Consequently, an appellate court must accept the trial court’s findings of
       fact if they are supported by competent, credible evidence. State v. Fanning, 1
       Ohio St.3d 19, (1982). 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. State v. McNamara, 124
       Ohio App.3d 706 (4th Dist.1997). State v. Burnside, 100 Ohio St.3d 152, 2003-
       Ohio-5372, ¶ 8.

Accordingly, this court reviews the trial court’s factual findings for competent, credible evidence

and considers the court’s legal conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454,

2009-Ohio-910, ¶ 6, citing Burnside at ¶ 8.

       {¶10} The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio

Constitution, Article I, Section 14. This Court has identified three types of police encounters in

the context of the Fourth Amendment: (1) consensual encounters; (2) investigatory stops; and (3)

seizures that equate to an arrest. State v. Patterson, 9th Dist. No. 23135, 2006-Ohio-5424, ¶ 11.

Consensual encounters do not trigger Fourth Amendment guarantees “unless the police officer

has by either physical force or show of authority restrained the person’s liberty so that a

reasonable person would not feel free to decline the officer’s requests or otherwise terminate the

encounter.” Id. at ¶ 12, quoting State v. Taylor, 106 Ohio App.3d 741, 747-748 (2d Dist.1995).

“In the absence of some such evidence, otherwise inoffensive contact between a member of the

public and the police cannot, as a matter of law, amount to a seizure of that person.” United

States v. Mendenhall, 446 U.S. 544, 555 (1980).

       {¶11} To justify an investigative stop, an officer must point to “specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant that
                                                 5


intrusion.” Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999), quoting Terry v. Ohio, 392 U.S.

1, 21 (1968). In evaluating the facts and inferences supporting the stop, a court must consider

the totality of the circumstances as “viewed through the eyes of a reasonable and cautious police

officer on the scene, guided by his experience and training.” State v. Bobo, 37 Ohio St.3d 177,

179 (1988), quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976). A totality of the

circumstances review includes consideration of “(1) [the] location; (2) the officer’s experience,

training or knowledge; (3) the suspect’s conduct or appearance; and (4) the surrounding

circumstances.” State v. Biehl, 9th Dist. No. 22054, 2004-Ohio-6532, ¶ 14, citing Bobo, 37 Ohio

St.3d at 178-179.

       {¶12} A seizure that equates to an arrest goes beyond a mere investigatory detention and

requires the existence of probable cause. Patterson, 2006-Ohio-5424, at ¶ 14. “The existence of

an arrest is dependent * * * upon the existence of four requisite elements: (1)[a]n intent to arrest,

(2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or

detention of the person, and (4) which is so understood by the person arrested.” State v. Barker,

53 Ohio St.2d 135 (1978), paragraph one of the syllabus. “Officers have probable cause to

justify an arrest if ‘from the information known to the arresting officers based on reasonably

trustworthy information, a reasonably prudent person would be warranted in believing that the

arrestee had committed or was committing an offense.’” State v. Oliver, 9th Dist. No. 24500,

2009-Ohio-2680, ¶ 10, quoting State v. Scott, 9th Dist. No. 08CA009446, 2009-Ohio-672, ¶ 11.

       {¶13} This Court fully recognizes that in reviewing a trial court’s suppression ruling,

“we must defer to the credibility assessments of the trial court.” State v. McGinty, 9th Dist. No.

08CA0039-M, 2009-Ohio-994, ¶ 22. The problem in this case is that the trial court failed to
                                                  6


make any credibility determinations. In its judgment entry, the court merely set forth the two

inconsistent versions of the events here followed by these conclusions of law:

       Based upon all the circumstances outlined above, [Payne] had not committed any
       violations of law prior to Officer Lash’s stop of her on March 24, 2011. There
       were no articulable facts to give Officer Lash a reasonable suspicion that [Payne]
       was involved in criminal activity to allow him to make contact with [Payne].
       Therefore, all evidence obtained as a result of the stop/encounter that night is
       suppressed.

The court did not indicate that it found Payne more credible than Officer Lash or that it believed

her version of the events. One might argue that the trial court found Payne more credible, given

its conclusion that Payne did not commit “any violations of law.” That conclusion is inconsistent

with Officer Lash’s testimony that Payne committed three traffic violations. Even so, Payne’s

version of the events, if believed, arguably supports a seizure equating to an arrest, not an

investigatory detention. The fact that the court applied a reasonable suspicion standard rather

than a probable cause standard suggests either that the court misapplied the law or disbelieved

some or all of Payne’s testimony. See State v. McCraney, 9th Dist. No. 09CA0079-M, 2010-

Ohio-2667, ¶ 8-9 (setting forth the law that applies to investigatory detentions versus seizures

equating to arrest). The law that applies here depends upon whose version of the events is to be

believed, and the trial court failed to make any credibility determinations in the first instance.

       {¶14} This Court faced a similar problem in State v. Martin, 9th Dist. No. 24812, 2009-

Ohio-6948, ¶ 13-15. In Martin, we held as follows:

       Our review is hindered by the trial court’s incomplete findings of fact. Although
       the trial court stated that Detective Zimcosky testified that Martin gave his
       statement voluntarily before any questions were asked and that Martin disputed
       this testimony, the court did not reconcile the conflict in testimony and make
       findings about what it believed happened. Instead, the trial court determined that
       the evidence is at best in equipoise, and the Defendants have not satisfied their
       burden to show a Constitutional violation occurred. It is imperative to this
       Court’s application of law to the facts in this case that the trial court make a
       finding of credibility as to the disputed facts. Due to our limited standard of
                                                 7


         review with regard to the facts, we are not permitted to fill in this gap. Because
         the trial court has failed to adequately set forth its findings of fact, we cannot
         properly apply the law. Accordingly, we must remand to the trial court to set
         forth its findings of fact with regard to the disputed testimony of the timing of
         Martin’s statements to Detective Zimcosky. (Internal citations and quotations
         omitted.) Martin at ¶ 14.

This Court sustained the assignment of error in Martin, reversed the suppression judgment, and

remanded the matter for further proceedings. Id. at ¶ 14-16. We conclude that Martin applies in

this instance and reach the same result.

         {¶15} Due to our limited standard of review in suppression appeals, we must reverse the

trial court’s judgment here and remand this matter for the trial court to set forth factual findings

with regard to the disputed testimony. The State’s sole assignment of error is sustained on this

basis.

                                                III

         {¶16} The State’s sole assignment of error is sustained for the reasons outlined above.

The judgment of the Wayne County Municipal Court is reversed, and the cause is remanded for

further proceedings consistent with the foregoing opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.




         There were reasonable grounds for this appeal.

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

Municipal Court, County of Wayne, 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
                                                8


period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to 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 Appellee.




                                                    BETH WHITMORE
                                                    FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR


APPEARANCES:

DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellant.

ERIC D. HALL, Attorney at Law, for Appellee.
