[Cite as State v. Ramsier, 2011-Ohio-2295.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-COA-031
TROY L. RAMSIER                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland Municipal
                                                   Court, Case No. 10-CRB-624ABC

JUDGMENT:                                          Afifrmed



DATE OF JUDGMENT ENTRY:                            May 10, 2011



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

W. DAVID MONTAGUE                                  DAVID R. STIMPERT
ASSISTANT LAW DIRECTOR                             10 East Main Street
1213 East Main Street                              Ashland, OH 44805
Ashland, OH 44805
[Cite as State v. Ramsier, 2011-Ohio-2295.]


Gwin, P.J.

        {¶1}     Defendant-appellant Troy L. Ramsier appeals from his conviction and

sentence in the Ashland Municipal Court for possession of drug paraphernalia, a

misdemeanor of the fourth degree pursuant to Ashland City Ordinance Section

513.12(C)(1). Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On July 4, 2010 at approximately 5:16 a.m., Officer Brian Kunzen of the

Ashland Police Department was dispatched to a local Taco Bell, approximately one (1)

hour after closing, upon a report of a "male in the parking lot sitting on the curb next to

his vehicle." Further investigation of this issue revealed that the employees at Taco Bell

had closed, cleaned the restaurant and were getting ready to leave when they saw

appellant in the parking lot. This caused them to call the police department.

        {¶3}     Upon arrival, Officer Kunzen made several observations of appellant and

the scene. First, appellant was observed to be sitting on the curb next to his vehicle, the

engine was running and a passenger was found to be sleeping in the passenger seat of

the vehicle. As Officer Kunzen spoke with appellant, he observed that appellant’s eyes

were red and watery, that his speech was slow, that he was unsteady on his feet and

that there was vomit on the ground next to him. Furthermore, there was a strong odor of

an alcoholic beverage coming from appellant.

        {¶4}     Appellant stated that he was diabetic and feeling sick. He also stated that

he was too intoxicated to drive. Contact with the passenger of the vehicle revealed that

she was more passed out in the vehicle than asleep. When she was awakened she was

very stuporous and could not walk without assistance. The Officer testified that based on
Ashland County, Case No. 2010-COA-031                                                    3


his training and experience, appellant was intoxicated by reason of his alcohol

consumption. Furthermore, he testified that based on his training and experience the

appellant’s condition was the result of alcohol consumption and not the result of his

diabetic condition. However, appellant’s diabetic condition created a further concern

because appellant chose to mix his alcohol consumption with the condition.

       {¶5}   Further conversation with appellant revealed that appellant drove his car

to Taco Bell and he and his female friend were picked up by another friend named

Marcus. Marcus apparently picked them up at Taco Bell and drove them to the local

bars. Appellant told the Officer that Marcus dropped the pair off at their Jeep in the Taco

Bell parking lot. Officer Kunzen asked if there was anyone in the area that could come

and get the couple. Appellant told the Officer that there was none. Appellant said he did

not know too many people in the Ashland area and he could not find his phone to try to

call someone. Appellant stated that he lived in West Salem which was a 20 to 30 minute

drive from the appellant's location at Taco Bell. The Officer also indicated that officers

from the Ashland Police Department made approximately a 12 minute effort to find

someone who could take control of appellant. These efforts were unsuccessful. At the

conclusion of that effort, appellant was arrested for disorderly conduct.

       {¶6}   Appellant was searched subsequent to his arrest for disorderly conduct.

During the search Officer Kunzen found a small plastic straw with white powdery

residue in it. Appellant stated that he had snorted vicodin, a scheduled drug, while at

the bar earlier in the evening. Appellant stated that he snorted the pill in combination

with alcohol consumption purposely to increase the effects. A marijuana joint found in

the appellant's cigarette box.
Ashland County, Case No. 2010-COA-031                                                  4


      {¶7}   On July 4, 2010, three (3) Complaints were filed against appellant in the

Ashland Municipal Court, charging appellant with possession of drug paraphernalia,

pursuant to Ashland City Ordinance Section 513.12(C)(1); possession of marijuana,

pursuant to Ashland City Ordinance Section 513.03(C)(3); and disorderly conduct,

pursuant to Ohio Revised Code Section 2912.11(B)(2).

      {¶8}   On August 18, 2010, appellant filed a Motion to Suppress "any evidence

obtained during the unlawful arrest and subsequent search of [Appellant] on or about

July 4, 2010." In appellant's motion, appellant argued that the probable cause

necessary to arrest appellant for disorderly conduct was not present because the

evidence was insufficient to prove that appellant created a significant risk of harm to

himself or others, as required by Ohio Revised Code 2917.11(B)(2).

      {¶9}   The trial court conducted a hearing on appellant’s motion to suppress on

September 7, 2010. Officer Kunzen was the sole witness. After hearing the testimony

the trial court overruled appellant’s motion by Judgment Entry filed October 11, 2010.

On September 20, 2010, pursuant to an agreement with the state, appellant entered a

plea of no contest to the possession of drug paraphernalia charge, Appellant was

sentenced to serve 30 days in the Ashland County Jail, 15 of those days were

suspended. Further, appellant was placed on probation for one year. He was also fined

$250 plus costs, and his driver's license was suspended for 6 months.

      {¶10} Appellant has timely appealed raising as his sole assignment of error,

      {¶11} “I.   THE    ASHLAND       MUNICIPAL       COURT     ERRED      BY       NOT

SUPPRESSING THE EVIDENCE GATHERED AS A RESULT OF THE ARREST OF

APPELLANT, WHICH         ARREST WAS         WITHOUT     PROBABLE        CAUSE,   AND,
Ashland County, Case No. 2010-COA-031                                                        5


THEREFORE, IN VIOLATION OF APPELLANT'S FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEARCHES AND SEIZURES.”

                                                  I.

       {¶12} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 2003-

Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d

988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111

Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts

as true, it must independently determine as a matter of law whether the trial court met

the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997),

124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002),

534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct.

1657. That is, the application of the law to the trial court's findings of fact is subject to a

de novo standard of review. Ornelas, supra. Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

       {¶13} Appellant’s sole assignment of error relates to the propriety of the trial

court’s overruling of his motion to suppress. Specifically, appellant contends that the
Ashland County, Case No. 2010-COA-031                                                       6


state failed to produce sufficient evidence that he engaged in conduct or created a

condition that presented a risk of physical harm to himself or another while voluntarily

intoxicated.

       {¶14} Disorderly Conduct in violation of R.C. 2917.11(B)(2) states in pertinent

part as follows:

       {¶15} “(B) No person, while voluntarily intoxicated, shall do either of the

following:

       {¶16} “ * * *

       {¶17} “(2) Engage in conduct or create a condition that presents a risk of

physical harm to the offender or another, or to the property of another.”

       {¶18} The law focuses, not on the drunken state of the accused, but rather upon

his   conduct      while   drunk.   State   v.   Pennington   (Nov.   16, 1998),   5th   Dist.

No.1998CA00137; State v. Hoopingarner, Tuscarawas App. No. 2010AP 07 00022,

2010-Ohio-6490 at ¶61. The law requires some affirmative behavior on the part of the

defendant and does not prohibit merely being intoxicated. State v. Jenkins (Mar. 31,

1998), 6th Dist. No. L-97-1303, 1998 WL 161190; State v. Parks (1990), 56 Ohio App.

3d 8, 10-11, 564 N. E. 2d 747. “Risk” is statutorily defined as “a significant possibility as

contrasted with a remote possibility, that a certain result may occur or that certain

circumstances exist.” R.C. 2901.01(A)(7). Additionally, “the duty to arrest a person for

disorderly conduct while intoxicated is necessarily discretionary.” Knapp v. Gurish

(1989), 44 Ohio App.3d 57, 541 N.E.2d 121. A police officer “must assess the condition

of the intoxicated person and determine whether his condition poses a risk of harm to
Ashland County, Case No. 2010-COA-031                                                    7


himself or others. This assessment requires an exercise of professional judgment that is

essential to the proper implementation of [R.C. 2917.11(B)(2)].” Id.

       {¶19} In addition to appellant’s admitted intoxication in the case at bar, Officer

Kunzen based his decision that appellant presented a risk of physical harm to himself or

another upon the following facts. Appellant’s passenger was unable to assist appellant

or herself and was seated in the passenger seat of appellant’s vehicle; appellant was

diabetic; appellant had become physically ill; the Officer was unable to locate anyone on

appellant’s behalf who could come to the scene to assist appellant and his passenger;

the car was running which created a significant risk that appellant while still intoxicated

would attempt to drive the car, perhaps not even mindful that he was still too intoxicated

to drive thus placing himself and his passenger in peril.

       {¶20} We commend appellant and his friend for utilizing a designated driver for

the evening, acknowledging that they should not drive and for waiting in the parking lot.

However, we again emphasize that appellant was not arrested and convicted for simply

waiting outside the restaurant or being intoxicated-it was because he failed to do so in a

safe manner. In this case, appellant was arrested for disorderly conduct, a fourth

degree misdemeanor, but he was never prosecuted for that offense. Thus, the question

is not whether the evidence supported a finding beyond a reasonable doubt that

appellant committed disorderly conduct. The question is whether the officer had

probable cause or a reasonable basis to believe that appellant had committed disorderly

conduct. State v. Glenn, 1st Dist. No. C-030356, 2004-Ohio-1489, at ¶ 26; State v.

Cottrell, Ashtabula App. No. 2004-A-0059, 2005-Ohio-6082 at ¶ 23.
Ashland County, Case No. 2010-COA-031                                                    8


      {¶21} Based upon the foregoing, we conclude that Officer Kunzen had a

reasonable basis to believe that he needed to arrest appellant to obtain control of the

situation and that he had a reasonable basis to believe that appellant had committed

disorderly conduct. The trial court as the trier of fact weighed the testimony and believed

the testimony of Officer Kunzen was sufficient to demonstrate that appellant was

lawfully arrested for disorderly conduct. Since the arrest was lawful, the trial court did

not err in denying appellant’s motion to suppress.

      {¶22} Appellant’s sole assignment of error is overruled.

      {¶23} For the forgoing reasons, the judgment of the Ashland County Municipal

Court, Ashland County, Ohio is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur




                                              _________________________________
                                              HON. W. SCOTT GWIN

                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN

                                              _________________________________
                                              HON. PATRICIA A. DELANEY



WSG:clw 0427
[Cite as State v. Ramsier, 2011-Ohio-2295.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
TROY L. RAMSIER                                  :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2010-COA-031




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Ashland County Municipal Court, Ashland County, Ohio is affirmed.            Costs to

appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN

                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
