[Cite as State v. Castro, 2017-Ohio-112.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
ANGELA CASTRO                                :       Case No. 16-CA-08
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 15TRC06800




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 9, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL E. COGLEY                                     DORIAN KEITH BAUM
136 West Main Street                                 123 South Broad Street
Lancaster, OH 43130                                  Suite 201
                                                     Lancaster, OH 43130
Fairfield County, Case No. 16-CA-08                                                     2

Farmer, P.J.

       {¶1}    On June 20, 2015, Fairfield County Sheriff's Deputy Trent Temper received

a tip from the Postmaster for Bremen, Ohio, that one of his employees, appellant, Angela

Castro, was potentially intoxicated while she was delivering mail. Deputy Temper located

appellant and observed two marked lane violations. Deputy Temper initiated a traffic stop

and conducted field sobriety tests. Thereafter, appellant was charged with operating a

motor vehicle while impaired in violation of R.C. 4511.19(A)(1)(a) and (2) and marked lane

violation under R.C. 4511.33.

       {¶2}    On September 24, 2015, appellant filed a motion to suppress, claiming an

illegal stop and arrest. A hearing was held on December 11, 2015. By entry filed

December 28, 2015, the trial court denied the motion.

       {¶3}    A jury trial commenced on January 24, 2016. The jury found appellant guilty

of the (A)(1)(a) charged and the marked lane violation. The state had dismissed the (A)(2)

charge. By judgment entry filed January 28, 2016, the trial court sentenced appellant to

ninety days in jail, eighty days suspended, and imposed a $375 fine.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶5}    "THE TRIAL COURT ERRED IN DETERMINING THAT THE TRAFFIC

STOP    OF     APPELLANT        BY   LAW   ENFORCEMENT        WAS      SUPPORTED      BY

REASONABLE AND ARTICULABLE SUSPICION THAT CRIMINAL ACTIVITY WAS

AFOOT PRIOR OR THAT A TRAFFIC VIOLATION OCCURRED WHICH WOULD

PROVIDE REASONABLE TO LAWFULLY INITIATE A TRAFFIC STOP OF THE
Fairfield County, Case No. 16-CA-08                                  3


APPELLANT'S VEHICLE, AND ERRED IN FAILING TO RECOGNIZE THAT THE

OFFICER'S CONDUCT WAS PREDICATED UPON LITTLE MORE THAN A HUNCH,

THEREBY ALLOWING AN UNLAWFUL SEARCH AND SEIZURE IN VIOLATION OF

ARTICLE 1 SECTIONS 10, 14, AND 16 OF THE OHIO CONSTITUTION AND THE 4TH,

5TH, 6TH, AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION."

                                      II

      {¶6}   "THE TRIAL COURT ERRED BY INCORRECTLY DETERMINING THAT

LAW ENFORCEMENT LAWFULLY FORMED PROBABLY CAUSE THAT THE

APPELLANT HAD COMMITTED THE TRAFFIC OFFENSE OF OPERATION OF A

VEHICLE WHILE INTOXICATED, AND THEREFORE UNLAWFULLY PLACED THE

APPELLANT UNDER ARREST FOR SAID CHARGE, THEREBY IMPROPERLY FAILING

TO SUPPRESS THE EVIDENCE OF SAID STOP AND ARREST, ALLOWING AN

UNLAWFUL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE 1, SECTIONS 10, 14,

AND 16 OF THE OHIO CONSTITUTION AND THE 4TH, 5TH, 6TH, AND 14TH

AMENDMENTS OF THE UNITED STATES CONSTITUTION."

                                      III

      {¶7}   "THE TRIAL COURT ERRED BY INCORRECTLY STATING THE

MANDATORY MINIMUM SENTENCE FOR A FIRST OFFENSE OF OPERATION OF A

VEHICLE WHILE INTOXICATED (OVI), WHICH MAY HAVE LED THE COURT TO

IMPROPERLY DETERMINE THAT IT WAS BOUND TO SENTENCE THE APPELLANT

TO A LONGER INCARCERATION TERM THAN WAS ACTUALLY MANDATED BY

STATUTE."
Fairfield County, Case No. 16-CA-08                                                            4


                                              I, II

        {¶8}   Appellant claims the trial court erred in denying her motion to suppress as

Deputy Temper merely relied on a "tip" from her employer and lacked a reasonable

suspicion of criminal activity to initiate the stop, lacked justification to extend the stop, and

lacked probable cause to arrest her. We disagree.

        {¶9}   As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, ¶ 12:



               "Appellate review of 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. In ruling on 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, 582 N.E.2d 972 (1992). On

        appeal, we "must accept the trial court's findings of fact if they are supported

        by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

        19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

        "independently determine as a matter of law, without deference to the

        conclusion of the trial court, whether the facts satisfy the applicable legal

        standard." Id.
Fairfield County, Case No. 16-CA-08                                                        5

       {¶10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

       {¶11} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior even

though there is no probable cause to make an arrest." However, for the propriety of a brief

investigatory stop pursuant to Terry, the police officer involved "must be able to point to

specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be

viewed in the light of the totality of the surrounding circumstances" presented to the police

officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.

Probable cause to arrest is not synonymous to probable cause for search. Probable cause

to arrest focuses on the prior actions of the accused. Probable cause exists when a

reasonable prudent person would believe that the person arrested had committed a crime.

State v. Timson, 38 Ohio St.2d 122 (1974). A determination of probable cause is made

from the totality of the circumstances. Factors to be considered include an officer's

observation of some criminal behavior by the defendant, furtive or suspicious behavior,

flight, events escalating reasonable suspicion into probable cause, association with

criminals, and location. Katz, Ohio Arrest, Search and Seizure, Sections 2:13-2:19, at 59-

64 (2009 Ed.). As the United States Supreme Court stated when speaking of probable

cause "we deal with probabilities. These are not technical; they are the factual and
Fairfield County, Case No. 16-CA-08                                                        6


practical considerations of everyday life in which reasonable and prudent men, not legal

technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (1949).

       {¶12} In denying the motion to suppress, the trial court in its entry filed December

28, 2015, acknowledged Deputy Temper's initial attention to appellant was the result of

the tip from her employer, but before he initiated the stop, he observed two violations:



              5. Deputy Temper observed Ms. Castro's vehicle make two

       successive lane violations, and stopped her vehicle in the parking lot of

       Westerman's at 245 N. Broad Street in Bremen.

              6. Deputy Temper testified that as he was approaching Ms. Castro's

       vehicle, he observed that she had glassy eyes, that she was unsuccessfully

       attempting to light a cigarette, and thereafter put a piece of chewing gum in

       her mouth. Despite the chewing gum, Deputy Temper testified that he was

       able to detect an odor of an alcoholic beverage.

              7. Deputy Temper then had Ms. Castro get out of her vehicle and

       requested that she perform various field sobriety tests, and she complied.



       {¶13} We find the testimony given during the suppression hearing supports the

trial court's finding that Deputy Temper observed "two successive lane violations" before

he initiated the stop. December 11, 2015 T. at 6-7. After stopping the vehicle, Deputy

Temper detected a strong odor of alcohol, and observed that appellant had "bloodshot,

glassy eyes." Id. at 7, 9. Deputy Temper conducted field sobriety tests. Id. at 9. During

the horizontal gaze nystagmus test, Deputy Temper observed six out of six clues. Id. at
Fairfield County, Case No. 16-CA-08                                                           7


14. During the walk and turn test, he observed two clues, and during the one leg stand

test, he observed four clues. Id. at 16-18. Based upon his personal observations and

appellant's performance on the field sobriety tests, Deputy Temper arrested appellant for

operating a motor vehicle while impaired. Id. at 19.

          {¶14} We find the trial court's findings and conclusions to be supported by the

record.

          {¶15} In addition, the traffic violations, although de minimis, constituted sufficient

articulate facts to warrant the stop.

          {¶16} Upon review, we find the trial court did not err in denying the motion to

suppress.

          {¶17} Assignments of Error I and II are denied.

                                                III

          {¶18} Appellant claims the trial court erred in sentencing her to ten days in jail

because ten days is not the minimum sentence, and the trial court was incorrect in stating

ten days was the mandatory minimum sentence. We disagree.

          {¶19} During the January 28, 2016 sentencing hearing, the trial court stated it

would impose the minimum fine of $375, but never stated the mandatory minimum

sentence was ten days (T. at 3-4):



                 THE COURT: Um, as far as jail sanction, there's going to be a, um,

          90 day jail sentence in this case. Um, at this point, uh, the Court is going to

          impose a, uh, is going to suspend 80 of those days, there will be a 10 day

          jail sentence or it can be, uh, 3 days of a driver's intervention program and
Fairfield County, Case No. 16-CA-08                                                      8


       an additional 7 days in the county jail. The minimum on this would be, uh,

       6 days in jail or 3 days jail and the 3 day driver intervention program.



       {¶20} Upon review, we do not find any error or prejudice to appellant in the trial

court's determination of the jail sentence coupled with a driver intervention program.

       {¶21} Assignment of Error III is denied.

       {¶22} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

affirmed.

By Farmer, P.J.

Gwin, J. and

Baldwin, J. concur.




SGF/sg 129
