[Cite as State v. Asp, 2011-Ohio-4567.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                          Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-40
JAMES ASP                                      :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Cambridge
                                                   Municipal Court, Case No. 09CRB01643

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            September 9, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM FERGUSON                                   MELISSA M. WILSON
City of Cambridge Law Director                     1009 Steubenville Avenue
150 Highlalnd Avenue                               Cambridge, OH 43725
Cambridge, OH 43725
[Cite as State v. Asp, 2011-Ohio-4567.]


Gwin, P.J.

        {¶1}     Defendant-appellant James Asp appeals the July 21, 2010 Judgment

Entry of the Cambridge Municipal Court overruling his motion to suppress evidence.

Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     At the evidentiary hearing on appellant’s motion to suppress held March

24, 2010, and April 24, 2010, the following facts were established:

        {¶3}     Trooper Shawn Allar is an eight year veteran of the Ohio State Highway

Patrol. On December 14, 2009 at approximately 10:06 p.m. he was on duty and

patrolling on U.S. Route 40 in Guernsey County.

        {¶4}     Trooper Allar was westbound and observed a vehicle traveling eastbound

at what appeared to be a speed over the posted limit of 55 miles per hour. Trooper Allar

checked the vehicle’s speed using a K 55 radar unit, and determined that the vehicle

was traveling at 64 miles per hour. Trooper Allar had checked the calibration of the K-55

radar unit prior to starting his shift. Trooper Allar noted the make and color of the vehicle

and turned to follow it.

        {¶5}     Trooper Allar observed the vehicle go over a small rise on the road which

turned off Route 40. The vehicle which appellant was driving then proceeded north on

Cooks Run Road and, utilizing its turn signal, turned into a private driveway. At this

point Trooper Allar had turned on the cruiser lights. The video camera in the cruiser is

retroactively activated thirty (30) seconds before the cruisers lights are turned on, and

these events are shown in State's exhibit B, a video disk admitted into evidence.
Guernsey County, Case No. 2010-CA-40                                                      3


       {¶6}   The Trooper followed the appellant's vehicle into the driveway of the

residence and stopped behind the vehicle. As shown in State's exhibit B, the appellant

exited his vehicle and walked across the front of the Trooper's cruiser with his hands in

his pockets. Trooper Altar exited his cruiser, ordered the appellant to stop and remove

his hands from his pockets. Appellant complied and Trooper Allar then frisked him for

weapons. At this point Trooper Allar testified that he could observe appellant’s eyes

were glassy and blood shot and his face was flushed. Trooper Allar further smelled what

he characterized as a strong odor of an alcoholic beverage coming from appellant.

       {¶7}   Trooper Allar called appellant by name because he knew him from prior

professional contact. Appellant repeatedly asked the reason for the stop, and how it was

that the Trooper knew his name. Trooper Allan testified that he knew appellant and

called him by his first name because he had responded approximately two (2) years ago

at the same residence. That prior incident involved charges against appellant, and an

allegation that he used a Bobcat fork lift to lift up and then drop a vehicle containing the

family of an ex- girlfriend. Trooper Allar testified that he remembered that he responded

to that prior incident at that same address and having been advised, at that time, that

appellant had been armed with a machete.

       {¶8}   Appellant demanded to see the speed on the K-55 radar. He continued to

ask why he had been stopped, and requested to know what charge the officer was

investigating. Trooper Allar testified that he attempted to have appellant sit in the

backseat of the cruiser so that he could view the speed on the K-55 radar’s display unit.

He testified that the backseat was preferable for safety reasons to having a suspect sit

in the driver’s seat of the cruiser. Trooper Allar further testified that due to the radar
Guernsey County, Case No. 2010-CA-40                                                       4


unit’s configuration as well as the configuration of the interior of the cruiser, the display

was most easily viewable from the rear passenger seat. The cruiser speed is shown on

the digital read out on the right, and the object vehicle speed is shown on the left of the

screen.

       {¶9}   Appellant refused to be seated in the cruiser and walked away from

Trooper Allar toward his own vehicle. According to Trooper Allar's testimony, appellant

had pushed away from him before returning to his vehicle. Thereupon, as shown by the

video, the Trooper followed him, put appellant in a bear hug and took him to the ground.

       {¶10} While on the ground, appellant was attempting to put his hands under his

chest while Trooper Allar was on top of him. Appellant was continuously questioning the

reason for the stop, and shouting "What is this all about?"

       {¶11} In response to Trooper Allar's call for backup, Trooper Bayless of the

Highway Patrol arrived. Trooper Bayless testified that when he arrived he saw both

vehicles and appellant on the ground with Trooper Altar on top of him. At this point,

according to Trooper Allar, he had made the decision to arrest appellant for OVI and

resisting arrest. Because appellant would not stop struggling after repeated requests to

cooperate by each of the Trooper’s, Trooper Bayless applied a five (5) second dry stun

to the appellant with a Taser. Trooper Bayless also testified that he noticed a strong

odor of an alcoholic beverage coming from appellant.

       {¶12} The video indicates that once appellant was arrested he was read his

Miranda rights.    Additionally in his post incident statement taken at the hospital,

appellant verified that he had previously been read his Miranda rights by Trooper Allar

and the scene of the arrest.
Guernsey County, Case No. 2010-CA-40                                                                  5


       {¶13} In Trooper Allar's opinion, appellant was under the influence of alcohol at

the time of the arrest. Appellant appeared to Trooper Allar to be paranoid and subject to

mood swings. Trooper Allar testified that he found a bottle of whisky and a bottle of

vodka in the appellant’s vehicle but conceded that he did not take those items into

evidence, nor did he note whether or not the bottles had been opened.

       {¶14} Appellant was arrested and transported to the Guernsey County Jail

where they refused to incarcerate him because he had been tasered. Appellant was

then taken to the local hospital, Southeastern Ohio Regional Medical Center, to be

cleared to be incarcerated. At the hospital, appellant refused a blood test. Because

appellant had been tasered, and appellant was complaining, Sergeant Perkins of the

Ohio State Highway Patrol arrived at the hospital to do an incident report. In that report

appellant stated that he had been advised of his Miranda rights at the time of arrest, and

that he was giving a statement voluntarily.1

       {¶15} Appellant testified on his behalf. He denied that he was going over the

fifty-five (55) mile an hour speed limit, and testified that he had never increased his

speed to get away from the officer.

       {¶16} Appellant testified at some length that he had been through years of very

unpleasant litigation with the mother of his child, Connie Pace. That litigation has

revolved around the issue of their daughter. Appellant testified that he believed that

every Christmas season, Ms. Pace engineered some problem for him with law

enforcement so that he could not exercise his parental rights with his daughter over the

Christmas season. According to appellant’s testimony, he felt certain that when the


1
 Because it was shift change for budgetary reasons Sergeant Perkins was replaced at the hospital by
Sergeant Glennon who concluded the appellant’s report.
Guernsey County, Case No. 2010-CA-40                                                         6


Trooper pulled into the driveway behind him, Ms. Pace was again causing him a

problem during the holiday season.

        {¶17} Appellant testified that he found it very suspicious that Trooper Allar called

him by his first name at the time of their initial contact. Appellant further testified that he

found it very suspicious that his daughter was brought to the emergency room

approximately fourteen (14) minutes later by the her mother, Ms. Pace. However,

appellant conceded on cross-examination that his daughter had been sick that day and

had previously been to the emergency room roughly seven hours before on that same

day.

        {¶18} On rebuttal, Trooper Allar testified that he did not know anyone named

Connie Pace, that he was not aware of the legal problems existing between appellant

and Ms. Pace, and that he certainly was not in any way part of a conspiracy with Ms.

Pace to cause problems with the law for the appellant over the Christmas season.

        {¶19} The trial court overruled the motion to suppress by Judgment Entry filed

July 21, 2010.

        {¶20} On September 23, 2010 appellant entered pleas of no contest to an

amended count of "reckless operation", an amended count of "no operator's license",

and "resisting arrest." The State dismissed the remaining charges.

        {¶21} Appellant timely appealed raising the following Assignment of Error:

        {¶22} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION TO SUPPRESSED BASED ON NO LAWFUL CAUSE TO STOP, DETAIN

AND ARREST THE APPELLANT WITHOUT A WARRANT, STATEMENTS OBTAINED

IN     VIOLATION     OF     HIS    FIFTH     AMENDMENT          RIGHT      AGAINST      SELF
Guernsey County, Case No. 2010-CA-40                                                     7


INCRIMINATION, AND THE APPELLANT'S RIGHT TO COUNSEL AS THE TRIAL

COURT'S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                                I.

      {¶23} In his sole Assignment of Error, appellant cites as error the trial court's

decision to overrule his motion to suppress the evidence. Specifically, he contends that

the officer did not have a reasonable suspicion based upon articulable facts that he was

speeding. Additionally, appellant further contends that he did not knowingly, intelligently

and voluntarily waive his right to remain silent. We disagree.

       {¶24} In Whren v. United States (1996), 517 U.S. 806, the United States

Supreme Court held:

       {¶25} “The temporary detention of a motorist upon probable cause to believe

that he has violated the traffic laws does not violate the Fourth Amendment's prohibition

against unreasonable seizures, even if a reasonable officer would not have stopped the

motorist absent some additional law enforcement objective.” Whren at 1771. Less than

one month later, the Ohio Supreme Court reached a similar decision in City of Dayton v.

Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091. In Erickson, the Court stated:

       {¶26} “Where a police officer stops a vehicle based on probable cause that a

traffic violation has occurred or was occurring, the stop is not unreasonable under the

Fourth Amendment to the United States Constitution even if the officer had some

ulterior motive for making the stop, such as a suspicion that the violator was engaging in

more nefarious criminal activity.” Id. at syllabus. However, the Ohio Supreme Court has

emphasized that probable cause is not required to make a traffic stop; rather the
Guernsey County, Case No. 2010-CA-40                                                         8

standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406,

894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 23.

       {¶27} Based on the above, neither the United States Supreme Court nor the

Ohio Supreme Court considered the severity of the offense as a factor in determining

whether the law enforcement official had a reasonable, articulable suspicion to stop a

motorist. In fact, the Ohio Supreme Court stated that " * * * we conclude that where an

officer has an articulable reasonable suspicion or probable cause to stop a motorist for

any criminal violation, including a minor traffic violation, the stop is constitutionally valid

regardless of the officer's underlying subjective intent or motivation for stopping the

vehicle in question." (Emphasis added.) City of Dayton v. Erickson, supra at 11-12, 665

N.E.2d 1091. See, also, State v. Rice, Fifth Dist. No. 2005CA00242, 2006-Ohio-3703 at

¶33-34; State v. Rice (Dec. 23, 1999), 5th Dist. No. 99CA48. If an officer’s decision to

stop a motorist for a criminal violation, including a traffic violation, is prompted by a

reasonable and articulable suspicion considering all the circumstances, then the stop is

constitutionally valid. State v. Mays, supra at ¶ 8.

       {¶28} In Mays, supra the defendant argued that his actions in the case – twice

driving across the white edge line – were not enough to constitute a violation of the

driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. The appellant further

argued that the stop was unjustified because there was no reason to suspect that he

had failed to first ascertain that leaving the lane could be done safely or that he had not

stayed within his lane “as nearly as [was] practicable,” within the meaning of R.C.

4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of

whether appellant might have a possible defense to a charge of violating R.C. 4511.33
Guernsey County, Case No. 2010-CA-40                                                       9


is irrelevant in our analysis of whether an officer has a reasonable and articulable

suspicion to initiate a traffic stop. An officer is not required to determine whether

someone who has been observed committing a crime might have a legal defense to the

charge.” Id. at ¶ 17.

       {¶29} In the case at bar, Trooper Allar first made a visual estimate of the speed

of appellant’s vehicle. He then substantiated that the vehicle was in fact traveling at a

speed greater than the posted speed limit by use of the K-55 radar unit.

       {¶30} While appellant testified that he had not exceed the speed limit, the judge

is in the best position to determine the credibility of witnesses, and his conclusion in this

case is supported by competent facts. See State v. Burnside (2003), 100 Ohio St.3d

152, 154-55, 797 N.E.2d 71, 74. The fundamental rule that weight of evidence and

credibility of witnesses are primarily for the trier of fact applies to suppression hearings

as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584. The

Officer’s testimony represents competent, credible evidence that appellant was

speeding. Therefore, the factual finding of the trial court that appellant was exceeding

the speed limit is not clearly erroneous.

       {¶31} Reviewing courts should accord deference to the trial court’s decision

concerning the credibility of the witnesses because the trial court has had the

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St.

3d 71. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d

1273, the Ohio Supreme Court explained: "[a] reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the
Guernsey County, Case No. 2010-CA-40                                                      10


witnesses and evidence submitted before the trial court. A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not." See, also State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.

       {¶32} We accept the trial court's conclusion that appellant's violation of the traffic

laws gave Trooper Allar reasonable suspicion to stop appellant's vehicle because the

factual findings made by the trial court are supported by competent and credible

evidence. Thus, the trial court did not err when it denied appellant's motion to suppress

on the basis that the initial stop of her vehicle was valid.

       {¶33} In this case, appellant was arrested for OVI and resisting arresting arrest,

but he was never prosecuted for the OVI offense. Thus, the question is not whether the

evidence supported a finding beyond a reasonable doubt that appellant committed the

OVI offense. The question is whether the officer had probable cause or a reasonable

basis to believe that appellant had committed the offense of OVI.

       {¶34} In Ohio, it is well settled that, "[w]here 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." State v. Wells, Montgomery App. No. 20798, 2005-Ohio-5008; State v. Cooper,

Clark App. No.2001-CA-86, 2002-Ohio-2778; State v. Robinson, Greene App. No.

2001-CA-118, 2002-Ohio-2933; State v. Mapes, Lake App. No. F-04-031, 2005-Ohio-

3359 (odor of alcohol, 'slurred speech' and glassy and bloodshot eyes); Village of

Kirtland Hills v. Strogin, supra; State v. Beeley, Lucas App. No. L-05-1386, 2006-Ohio-

4799, paragraph 16, New London v. Gregg, Huron App. No. H-06-030, 2007-Ohio-4611.
Guernsey County, Case No. 2010-CA-40                                                     11


       {¶35} The phrase “under the influence of intoxicating liquor” has been defined as

“[t]he condition in which a person finds himself after having consumed some intoxicating

beverage in such quantity that its effect on him adversely affects his actions, reactions,

conduct, movement or mental processes or impairs his reactions to an appreciable

degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks

(1971), 25 Ohio App .2d 162, 166. See, also, State v. Steele (1952), 95 Ohio App. 107,

111 (“[B]eing ‘under the influence of alcohol or intoxicating liquor’ means that the

accused must have consumed some intoxicating beverage, whether mild or potent, and

in such quantity, whether small or great, that the effect thereof on him was to adversely

affect his actions, reactions, conduct, movements or mental processes, or to impair his

reactions, under the circumstances then existing so as to deprive him of that clearness

of the intellect and control of himself which he would otherwise possess”). See, State v.

Henderson, 5th Dist. No.2004-CA-00215, 2005-Ohio-1644 at ¶ 32. [Citing State v.

Barrett (Feb. 26, 2001), Licking App. No. 00CA 47].

       {¶36} The evidence produced at the evidentiary hearing on appellant’s motion to

suppress supports the inference that appellant's consumption of alcohol on the night in

question adversely affected his actions, reactions, conduct, movement or mental

processes or impaired his reactions to an appreciable degree, thereby lessening his

ability to operate his car on the night in question.

       {¶37} Trooper Allar’s testimony represents competent, credible evidence that

appellant was operating his vehicle while under the influence of alcohol. Therefore, the

factual finding of the trial court that Trooper Allar had probable cause to arrest appellant

for an OVI violation is not clearly erroneous. Thus, the trial court did not err when it
Guernsey County, Case No. 2010-CA-40                                                     12


denied appellant's motion to suppress on the basis that Trooper Allar had probable

cause to arrest appellant for resisting arrest and an OVI violation.

       {¶38} Appellant next contends that because he had been tasered before he was

read his Miranda rights, it was incumbent upon the State to re-read those rights prior to

obtaining his statement while in the hospital.

       {¶39} A suspect's decision to waive his Fifth Amendment privilege is made

voluntarily absent evidence that his will was overborne and his capacity for self-

determination was critically impaired because of coercive police conduct. Colorado v.

Spring, supra, 479 U.S. at 574, 107 S.Ct. at 857. See, also, State v. Black (1976), 48

Ohio St.2d 262, 2 O.O.3d 422, 358 N.E.2d 551, paragraph four of the syllabus, vacated

in part (1978), 438 U.S. 910, 98 S.Ct. 3134, 57 L.Ed.2d 1154.          Thus, coercive police

activity is a necessary predicate to finding that a confession is not voluntary within the

Fifth Amendment, on which Miranda was based. Colorado v. Connelly (1986), 479 U.S.

157, 170, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473.

       {¶40} In Berghuis v. Thompkins ( 2010), ––– U.S. ––––, 130 S.Ct. 2250,

176 L.Ed. 2d 1098, the U.S. Supreme Court found no Miranda violation where the

suspect made a statement nearly three hours after receiving his Miranda warning:

       {¶41} “If Thompkins wanted to remain silent, he could have said nothing in

response to Helgert's questions, or he could have unambiguously invoked his Miranda

rights and ended the interrogation. The fact that Thompkins made a statement about

three hours after receiving a Miranda warning does not overcome the fact that he

engaged in a course of conduct indicating waiver. Police are not required to re-warn

suspects from time to time. Thompkins' answer to Helgert's question about praying to
Guernsey County, Case No. 2010-CA-40                                                    13


God for forgiveness for shooting the victim was sufficient to show a course of conduct

indicating waiver.” Id. at 2263.

       {¶42} In State v. Roberts (1987), 32 Ohio St.3d 225, 513 N.E.2d 720. the Ohio

Supreme Court applied a totality of the circumstances test and found that the warnings

given earlier had gone stale at the time the defendant made incriminating statements:

       {¶43} “The totality of the circumstances test is explained by the Supreme Court

of North Carolina in State v. McZorn (1975), 288 N.C. 417, 219 S.E.2d 201. The

following criteria are set forth:

       {¶44} “ * * * (1)[T]he length of time between the giving of the first warnings and

subsequent interrogation, * * * (2) whether the warnings and the subsequent

interrogation were given in the same or different places, * * * (3) whether the warnings

were given and the subsequent interrogation conducted by the same or different

officers, * * * (4) the extent to which the subsequent statement differed from any

previous statements; * * * [and] (5) the apparent intellectual and emotional state of the

suspect. * * *” (Citations omitted.) Id. at 434, 219 S.E.2d at 212. See, also, State v.

Myers (Me.1975), 345 A.2d 500; State v. Artis (1981), 304 N.C. 378, 283 S.E.2d 522.

       {¶45} “Applying these standards to the case sub judice, we note that Roberts

was given warnings at the time of arrest (approximately two hours prior to talking to

Fuqua), and that the record does not establish whether those warnings were given in

the context of interrogation. Second, the prior warnings were given at Roberts'

girlfriend's home while the subsequent interrogation took place at the county jail. Third,

the warnings were given by police officers, whereas the interrogation was conducted by

a probation officer (having a prior relationship with the defendant Roberts). Thus, the
Guernsey County, Case No. 2010-CA-40                                                        14


warnings given at the time of arrest fail on the criteria necessary to satisfy the totality-of-

circumstances test.” Id. at 232–233, 283 S.E.2d 522

       {¶46} In the case at bar, appellant concedes that he was read his Miranda rights

at the time of his arrest. The record further shows that appellant that appellant explicitly

stated that he understood his Miranda rights and proceeded to respond to Sergeant

Gannon’s questions. (T. at 25).        Appellant he did not ask the officers to cease

questioning him, he did not ask for an attorney and he did not refuse to answer any of

the questions put to him by the officers. Further, appellant’s statement at the hospital

was obtained less than two (2) hours after Trooper Allar first noticed appellant’s vehicle.

(T. at 12-14; 77).

       {¶47} The evidence supports the trial court's findings that appellant was properly

advised of his Miranda rights and that he understood those rights. The trial court did not

err in finding that under the totality of the circumstances; appellant's Miranda warnings

had not gone stale.

       {¶48} For the foregoing reasons, appellant’s sole assignment of error is

overruled.
Guernsey County, Case No. 2010-CA-40                                          15


       {¶49} The judgment of the Cambridge Municipal Court, Guernsey County, Ohio

is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN

                                         _________________________________
                                         HON. SHEILA G. FARMER

                                         _________________________________
                                         HON. JULIE A. EDWARDS
WSG:clw 0812
[Cite as State v. Asp, 2011-Ohio-4567.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JAMES ASP                                         :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010-CA-40




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

the Cambridge Municipal Court, Guernsey County, Ohio is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
