[Cite as State v. Roth, 2014-Ohio-984.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-13-10

        v.

WILLIAM L. ROTH,                                          OPINION

        DEFENDANT-APPELLANT.




                         Appeal from Napoleon Municipal Court
                          Trial Court No. 12 TRC 00686 A, B

                                      Judgment Affirmed

                             Date of Decision: March 17, 2014




APPEARANCES:

        William F. Hayes for Appellant

        Paul A. Skaff for Appellee
Case No. 7-13-10


SHAW, J.

       {¶1} Defendant-appellant, William L. Roth (“Roth”), appeals the August 6,

2013 judgment of the Napoleon Municipal Court journalizing his conviction by a

jury for operating a vehicle while under the influence of alcohol and operating a

vehicle while under the influence of alcohol with refusal, and finding him guilty of

driving left of center. Roth assigns as error the trial court overruling his motion to

suppress evidence based upon his interaction with a member of the Damascus

Township Fire and Rescue crew. As grounds for suppression, Roth claimed that

he was unlawfully “seized” in prohibition of the Fourth Amendment to the United

States Constitution.

       {¶2} On March 23, 2012, at 5:06 p.m., the Damascus Township Fire and

Rescue responded to a call regarding a traffic accident at the intersection of U.S. 6

and S.R. 65 in the Village of McClure located in Henry County, Ohio. The traffic

accident occurred when Roth, who was operating a motorcycle without a helmet,

drove left of center and collided with another individual driving a pizza delivery

truck. Emergency medical personnel made contact with Roth, who had visible

cuts and abrasions on his face and arms. Roth’s glasses were also broken during

the accident and his nose was bleeding. Roth was examined by the fire and rescue

crew and treated at the scene. Roth refused to be transported to a hospital for

further medical evaluation.


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       {¶3} While the fire and rescue crew was attending to Roth, a Henry County

Sheriff’s Deputy briefly stopped by the scene while en route to a “welfare check”

concerning a domestic violence call. Upon observing that Roth’s injuries were

minor and upon learning that the State Highway Patrol was on its way, the Deputy

left the scene and continued on to the domestic violence call.

       {¶4} Several minutes later, at 5:29 p.m., Trooper Fitzgerald of the State

Highway Patrol arrived on the scene. Trooper Fitzgerald made contact with Roth.

During his interaction with Roth, Trooper Fitzgerald detected an odor of alcoholic

beverage. Trooper Fitzgerald asked Roth to sit in his cruiser so that he could get a

statement regarding the accident from Roth.        While in the cruiser, Trooper

Fitzgerald again detected an odor of alcoholic beverage coming from Roth.

Trooper Fitzgerald asked Roth if he had recently consumed any alcoholic

beverages. Roth claimed that he had been drinking the previous evening and had

yet to take a shower or change his clothes.

       {¶5} Roth agreed to submit to a series of standardized field sobriety tests

and a preliminary breath test on a portable device. Based on the odor of alcoholic

beverage, Roth’s performance on the standardized field sobriety tests, and the

results of the preliminary breath test, which indicated a BAC of .086, Trooper

Fitzgerald determined Roth to be impaired and placed him under arrest for




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operating a vehicle while under the influence of alcohol. Roth refused any further

impairment testing while in custody.

       {¶6} On March 26, 2012, Roth was charged with operating a vehicle while

under the influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a);

refusing to submit to a chemical test of his blood, breath, or urine (“OVI with

refusal”), in violation of R.C. 4511.19(A)(2)(a); and driving left of center, in

violation of R.C. 4511.29. The complaint also noted that this offense was Roth’s

third OVI offense in six years. Roth pled not guilty to the charges.

       {¶7} On June 20, 2012, Roth filed a motion requesting the trial court to

suppress any evidence obtained as a result of an unlawful seizure. Specifically,

Roth asserted in his motion that after he was treated and cleared by the fire and

rescue crew and had exchanged insurance information with the other driver, “a

member of the Damascus Township Fire and Rescue advised [him] that he was not

free to leave and [he] was forced to wait for the police to arrive.” (Doc. No. 14 at

3). Roth claimed that this constituted an unlawful “seizure” by the Damascus

Township Fire and Rescue because the crew member had no probable cause to

detain him.

       {¶8} On June 28, 2012, the trial court held a hearing on Roth’s motion to

suppress where several witnesses testified.       Notably, David Badenhop, the

member of the Damascus Township Fire and Rescue crew who allegedly made


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statements to Roth preventing him from leaving the accident scene until law

enforcement arrived was not called to testify as a witness at the suppression

hearing.

           {¶9} The following testimony was adduced at the suppression hearing.

           {¶10} Joel Ward, the volunteer fire chief with the Damascus Township Fire

and Rescue, testified that he arrived at the accident scene roughly a minute after

receiving the dispatch call. He testified that he made contact with Roth and

persuaded him to have his injuries assessed by the ambulance crew. Ward recalled

that even though Roth’s medical assessment demonstrated that he did not suffer

any significant injuries, standard emergency medical protocol required the

ambulance crew to contact a doctor and get confirmation of their assessment

before releasing Roth. Ward recalled that the ambulance crew was still on the

scene at the time Trooper Fitzgerald arrived.

           {¶11} Ward also testified that he did not order Roth to remain at the scene

nor did he hear any member of his crew do so. Ward explained that he had no

authority to keep Roth at the scene and, if Roth had indicated to him that he was

leaving, his only course of action would have been to call dispatch and notify them

of Roth’s departure.1 Ward also testified that he was the only contact between the

dispatcher and the crew at the scene. He recalled contacting the dispatcher prior to



1
    Ward testified that the dispatcher worked for the Henry County Sheriff’s Office.

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the arrival of law enforcement and inquiring about “an ETA” for the State

Highway Patrol because the accident participants were free to leave and in the

process of leaving. (Tr. at 17). Ward testified that he then heard sirens and

estimated that “thirty seconds or so” elapsed between the time he contacted

dispatch and Trooper Fitzgerald’s arrival. (Id. at 18).

       {¶12} Deputy Vocke testified that he was at the accident scene for

approximately thirty seconds before continuing on to another call.       He made

contact with Fire Chief Wade and informed him that the State Highway Patrol was

on their way to handle the accident investigation. Deputy Vocke testified that he

did not instruct anyone on the fire and rescue crew to keep Roth at the scene until

the arrival of the State Highway Patrol.

       {¶13} Trooper Fitzgerald testified that he was travelling from Wood

County when he received the dispatch call and arrived at the accident scene at 5:29

p.m., approximately twenty three minutes later. He recalled that while he was en

route to the accident location the dispatcher informed him that the driver of the

motorcycle was leaving the scene and that the Damascus Fire and Rescue crew

was attempting to keep him there. He stated that he did not tell dispatcher or

anyone else to keep Roth at the scene until he arrived. Trooper Fitzgerald also

testified that he was never advised of a possible OVI before arriving at the scene

and had no reason to suspect an OVI until he made contact with Roth.


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        {¶14} Roth testified that after he exchanged insurance and contact

information with the other driver, his friend, Ray Rutledge, arrived at the accident

scene to drive Roth’s motorcycle home for him. Roth recalled that Rutledge was

on the motorcycle and Roth was helping him get it started when Badenhop walked

to the front of the motorcycle, told Roth and Rutledge that they could not leave,

and asked them to turn off the motorcycle. Roth explained that he had intended to

leave in a car once he assisted Rutledge in getting the motorcycle started.

Notably, the trial court sustained an objection raised by the prosecution on the

grounds of hearsay that prevented Roth from testifying to the specific statements

Badenhop allegedly made to him and Rutledge regarding them leaving the

accident scene.        Neither Badenhop nor Rutledge testified at the suppression

hearing.

        {¶15} After hearing the evidence before it, the trial court overruled Roth’s

motion to suppress finding that the evidence failed to demonstrate that Roth was

prevented from leaving the scene of the accident or that he was subjected to a

custodial situation.

        {¶16} The trial court conducted a jury trial and Roth was convicted on all

three counts. The trial court sentenced Roth to serve 180 days in jail with 120

days suspended and ordered him to pay a fine of $850.00, plus court costs.2


2
 The trial court initially issued its judgment entry of conviction and sentence on December 6, 2012 and an
appeal of that judgment was filed by Roth. However, this Court dismissed the appeal because the judgment

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        {¶17} Roth now appeals, asserting the following assignments of error.

                             ASSIGNMENT OF ERROR NO. I

        THE TRIAL COURT ERRED TO THE PREJUDICE OF
        DEFENDANT/APPELLANT “MR. ROTH” BY EXCLUDING
        EVIDENCE AS “HEARSAY,” WHEN IT CLEARLY WAS
        NOT, AT THE SUPPRESSION HEARING DESPITE THE
        WELL ESTABLISHED RULE THAT THE RULES OF
        EVIDENCE DO NOT APPLY TO SUPPRESSION
        HEARINGS.

                            ASSIGNMENT OF ERROR NO. II

        THE TRIAL COURT ERRED TO THE PREJUDICE OF
        DEFENDANT/APPELLANT IN FAILING TO SUPPRESS
        THE OBSERVATIONS OF, AND EVIDENCE OBTAINED BY,
        THE    POLICE   AS    A    RESULT   OF    THE
        UNCONSTITUTIONAL       SEIZURE     OF     THE
        DEFENDANT/APPELLANT’S VEHICLE. THE SEIZURE
        WAS UNCONSTITUTIONAL AS THE PARAMEDIC
        ACTING AS AN AGENT OF THE GOVERNMENT DID NOT
        HAVE A REASONABLE, ARTICULABLE BASIS TO STOP
        DEFENDANT FROM LEAVING UNDER THE FOURTH
        AMENDMENT OF [SIC] THE UNITED STATES
        CONSTITUTION.

        {¶18} For ease of discussion, we elect to address the assignments of error

together.

                            First and Second Assignments of Error

        {¶19} On appeal, Roth argues that the trial court erred in excluding his

testimony regarding statements made to him by a member of the Damascus



was not a final order. The trial court subsequently issued its August 13, 2013 judgment entry of conviction
and sentence which is the subject of this appeal.

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Township Fire and Rescue crew on the grounds of inadmissible hearsay. Roth

also argues that the trial court erred in overruling his motion to suppress.

       {¶20} We will first address Roth’s contention regarding the trial court’s

ruling on his motion to suppress. A review of the denial of a motion to suppress

involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152,

2003–Ohio–5372, ¶ 8. At a suppression hearing, the trial court assumes the role of

trier of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. State v. Carter, 72 Ohio St.3d 545, 552 (1995). When

reviewing a ruling on a motion to suppress, deference is given to the trial court’s

findings of fact so long as they are supported by competent, credible evidence.

Burnside at ¶ 8. With respect to the trial court’s conclusions of law, however, our

standard of review is de novo and we must decide whether the facts satisfy the

applicable legal standard. State v. McNamara, 124 Ohio App.3d 706, 710 (4th

Dist. 1997).

       {¶21} On appeal, Roth claims he was unlawfully “seized” by Dave

Badenhop, a member of the Damascus Township Fire and Rescue crew, when,

according to Roth, Badenhop stepped in front of his motorcycle and advised Roth

and his friend that they had to remain at the accident scene until law enforcement

arrived. Specifically, Roth argues that at the time of his encounter with Badenhop

he had already been cleared by the ambulance crew and had exchanged insurance


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Case No. 7-13-10


information with the other driver and therefore was under no obligation to remain

at the scene of the accident. Roth further asserts that Badenhop did not have

probable cause to detain him and that any evidence obtained by Trooper Fitzgerald

subsequent to Roth’s “unlawful detention” by Badenhop should be suppressed.

      {¶22} “ ‘The fourth amendment protects the privacy and personal security

of individuals from arbitrary and oppressive interference by limiting the search-

and-seizure authority of law enforcement officials.’ ” State v. Gardner, 135 Ohio

St.3d 99, 2012-Ohio-5683, ¶ 17, quoting Wanger v. Bonner, 621 F.2d 675, 681

(5th Cir.1980).    “In a Fourth Amendment context, the judicially-created

exclusionary rule, created to deter illegal police conduct, provides that evidence

obtained through unconstitutional searches and seizures is subject to exclusion and

prospectively inadmissible.” State v. Starkey, 11th Dist. Portage No. 2012–P–

0038, 2012-Ohio-6219, ¶ 25, citing U.S. v. Leon, 468 U.S. 897, 916 (1984).

      {¶23} In the case sub judice, Roth has failed to establish that he was in fact

“seized” by law enforcement officials. First, other than Roth’s own testimony,

there was no evidence presented at the suppression hearing to support Roth’s

contention that Badenhop prevented him from leaving the location of the accident.

Fire Chief Wade explicitly stated that he did not observe any member of his crew

advise Roth to remain at the scene. Wade also acknowledged that he had no

authority to keep Roth at the accident scene if Roth had attempted to leave.


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Wade’s testimony on this point is corroborated by the fact that he called dispatch

to inform them that the accident participants were free to leave the scene and

inquired about the estimated arrival time of law enforcement.

       {¶24} Moreover, the timeline established by the testimony at the

suppression hearing demonstrated that a matter of minutes elapsed from the time

Roth was cleared by the ambulance crew and Trooper Fitzgerald’s arrival.

Additionally, Roth fully cooperated with Trooper Fitzgerald’s investigation by

sitting in his cruiser and voluntarily giving him a statement regarding the details of

the accident. In short, there was no evidence presented at the suppression hearing

to corroborate Roth’s version of the events that he felt that he was not free to leave

the scene of the accident prior to the arrival of law enforcement.

       {¶25} Second, even if Badenhop had made statements to Roth indicating

that he was not free to leave, Roth has failed to demonstrate that Badenhop was a

law enforcement official. Testimony at the suppression hearing revealed that the

members of the Damascus Township Fire and Rescue crew are volunteers who are

compensated $10.00 per call by the Township. Roth argues that this minimal

compensation, combined with fact that the Township pays for the crew’s

equipment and machinery as well as the firehouse utilities, is sufficient to establish

a governmental/law enforcement nexus for purposes of a Fourth Amendment

analysis.


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      {¶26} However, Roth cites no authority to support this contention. To the

contrary, the relevant case law on this issue dictates that in this case there must

have been some evidence that Badenhop acted at the direction or as an agent of

law enforcement. See e.g., State v. Archer, 197 Ohio App.3d 570, 2011-Ohio-

5471, ¶ 22 (7th Dist.); State v. Ellis, 2d Dist. Greene No. 05CA78, 2006-Ohio-

1588, ¶ 14. In other words, there must have been evidence of “a great deal of

entanglement” between Badenhop’s conduct and law enforcement for the alleged

seizure in this case to have implicated Fourth Amendment protection. State v.

Cook, 149 Ohio App.3d 422, 426, 2002-Ohio-4812 ¶ 11 (2d Dist.). Here, both

Deputy Vocke and Trooper Fitzgerald testified that they never instructed anyone

at the accident scene to keep Roth at the location until law enforcement arrived.

Moreover, Trooper Fitzgerald testified that it was not until he made contact with

Roth, and detected an odor of alcoholic beverage, that he first became suspicious

that Roth had possibly committed an OVI offense.

      {¶27} Next, Roth argues that the trial court erred in excluding his testimony

regarding the specific statements Badenhop allegedly made to him. Roth argues

that his testimony on this matter was not hearsay but rather was offered to explain

his conduct under the circumstances. Roth further maintains that even if his

testimony was hearsay, the trial court erred in excluding it because hearsay is

permissible at suppression hearings.


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       {¶28} We acknowledge that in some instances in a suppression hearing a

trial court “ ‘may rely on hearsay and other evidence, even though that evidence

would not be admissible at trial.’ ” Maumee v. Weisner, 87 Ohio St.3d 295, 298

(1999), quoting United States v. Raddatz, 447 U.S. 667, 679 (1980). However, a

trial court still retains discretion to determine the admissibility of evidence at a

suppression hearing—i.e., the inherent reliability and relevance of the evidence

being offered. See State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989).

       {¶29} Here, Roth was attempting to testify to specific statements allegedly

made by Badenhop to corroborate his own testimony that Badenhop prevented

him from leaving the accident scene. For reasons not apparent in the record, Roth

chose not to call Badenhop as a witness at the suppression hearing and there is

nothing in the record to suggest that Badenhop was unavailable to testify at the

hearing. Even without the specific statements, Roth was still able to testify to his

interaction with Badenhop and the circumstances contributing to him feeling that

he was not free to leave the accident scene. However, as previously mentioned,

none of the other witnesses provided testimony to support Roth’s position.

       {¶30} Even assuming arguendo that the trial court should have allowed

Roth’s testimony at the suppression hearing, Roth has failed to demonstrate that

the admission of this evidence would have changed the trial court’s ruling on his

motion to suppress and therefore he has failed to demonstrate that he suffered


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prejudice as a result of the trial court’s exclusion of the evidence as hearsay. See

Crim.R. 52(A); State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989).

       {¶31} For all these reasons, we find no error in the trial court’s decision to

overrule Roth’s motion to suppress. Accordingly, the assignments of error are

overruled and the judgment of the Napoleon Municipal Court is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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