[Cite as State v. Lauer, 2014-Ohio-1165.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 13CA0006
                                               :
CHET LAUER                                     :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Morrow County
                                                   Municipal Court Case No. 2012 TRC
                                                   2885



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            February 28, 2014



APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

CHARLES S. HOWLAND                                 TODD A. BRININGER
MORROW CO. PROSECUTOR                              1801 Watermark Dr., Ste. 350
THOMAS J. SMITH                                    Columbus, OH 43215
60 East High St.
Mt. Gilead, OH 43308                               RUSSELL S. BENSING
                                                   1370 Ontario St.
                                                   1350 Standard Bldg.
                                                   Cleveland, OH 44113
Morrow County, Case No. 13CA0006                                                           2

Delaney, J.

       {¶1} Appellant Chet Lauer appeals from the May 21, 2013 Journal Entry of the

Morrow County Municipal Court. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} At 3:44 a.m. on May 27, 2012, Trooper Ruhl of the Ohio State Highway

Patrol was stationary in his cruiser on a crossover on Interstate Route 71, north of Exit

140, in the Township of Bennington, Morrow County. He pulled onto the highway into a

group of vehicles traveling north and noticed the Chevy Malibu driven by appellant

commit a marked lanes violation. Ruhl caught up to appellant’s vehicle, activated his

overhead lights, and initiated a traffic stop.

       {¶3} Appellant put on his left turn signal and pulled off the highway onto the

median, not completely out of the lane of travel. Ruhl left his cruiser partly in the lane of

travel with its overhead lights on to block the scene of the stop from oncoming traffic.

When Ruhl approached the vehicle and asked appellant why he pulled into the median,

appellant apologized.

       {¶4} Appellant was the only occupant of the vehicle. Ruhl observed appellant’s

bloodshot, glassy eyes and noted the moderate odor of an alcoholic beverage

emanating from the vehicle.        Ruhl asked appellant for his operator’s license and

registration; appellant produced his license without incident but was unable to locate the

vehicle registration.   (Evidence was later adduced the car belonged to appellant’s

parents.) Ruhl asked appellant whether he’d had anything to drink and appellant initially

said “not much” and then quickly said “none” or “one,” a matter disputed at the

suppression hearing.
Morrow County, Case No. 13CA0006                                                        3


         {¶5} Ruhl asked appellant to exit the vehicle and brought him back near the

cruiser to perform standardized field sobriety tests (S.F.S.T.s). Outside the vehicle Ruhl

noted the odor of an alcoholic beverage upon appellant’s person. Ruhl testified he

observed six clues of impairment on the horizontal gaze nystagmus, two indications of

impairment on the walk-and-turn test, and three clues on the one-leg stand test.

         {¶6} Appellant was charged by uniform traffic citation with one count of O.V.I.

pursuant to R.C. 4511.19(A)(1)(a) and (A)(1)(d) and one count of marked lanes

pursuant to R.C. 4511.33. Appellant entered pleas of not guilty and moved to suppress

evidence flowing from the traffic stop and arrest. Appellee opposed the motion and the

trial court held a suppression hearing on September 24, 2012. On November 14, 2012,

by written judgment entry, the trial court found the trooper failed to administer the

standardized field sobriety tests in substantial compliance with standardized procedures

and suppressed those results, but otherwise overruled the motion to suppress.

         {¶7} On or about May 21, 2013, appellant entered pleas of no contest to the

charges and was found guilty by the trial court. His sentence included a three-day

driver intervention program, mandatory fine and license suspension, all suspended

pending the instant appeal.

         {¶8} Appellant now appeals from the May 21, 2013 Journal Entry of the trial

court.
Morrow County, Case No. 13CA0006                                                             4


       {¶9} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶10} “I.   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

OVERRULING DEFENDANT’S MOTION TO SUPPRESS, IN DEROGATION OF

DEFENDANT’S RIGHTS UNDER THE 4TH AND 14TH AMENDMENT[S] TO THE

UNITED STATES CONSTITUTION.”

                                         ANALYSIS

       {¶11} In his sole assignment of error, appellant argues the trial court erred in

overruling his motion to suppress because the trooper had no specific, articulable facts

justifying his administration of the standardized field sobriety tests and had no probable

cause to arrest appellant.

       {¶12} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.
Morrow County, Case No. 13CA0006                                                         5


         {¶13} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See, Williams,

supra.    Finally, an appellant may argue the trial court has incorrectly decided the

ultimate or final issues raised in a motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court’s conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

         {¶14} First, appellant contends the trial court reached the wrong conclusion in

finding specific, articulable reasons existed for the trooper to administer SFSTs,

essentially contesting the trial court’s findings of fact. It is well-established that an

officer may not request a motorist to perform field sobriety tests unless that request is

independently justified by reasonable suspicion based upon articulable facts that the

motorist is intoxicated. State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761(11th

Dist.1998), citing State v. Yemma, 11th Dist. No. 95–P–0156, unreported, 1996 WL

495076 (Aug. 9, 1996). Reasonable suspicion is “ * * * something more than an

inchoate or unparticularized suspicion or hunch, but less than the level of suspicion

required for probable cause.” State v. Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d
Morrow County, Case No. 13CA0006                                                          6


778 (2nd Dist.1997). “A court will analyze the reasonableness of the request based on

the totality of the circumstances, viewed through the eyes of a reasonable and prudent

police officer on the scene who must react to events as they unfold.” Village of Kirtland

Hills v. Strogin, 11th Dist. Lake No. 2005–L–073, 2006–Ohio–1450, at ¶ 13, citing

Village of Waite Hill v. Popovich, 11th Dist. Lake No. 2001–L–227, 2003–Ohio–1587, at

¶ 14.

        {¶15} We find the totality of the circumstances gave the trooper sufficient indicia

of intoxication to establish a reasonable suspicion to request appellant to submit to field

sobriety testing. State v. Patel, 5th Dist. Stark No. 2012CA00190, 2013-Ohio-3300, ¶

25-26 ; State v. Strope, 5th Dist. Fairfield No. 08 CA 50, 2009–Ohio–3849, ¶ 20. In

addition to appellant’s admitted traffic violation, the trooper noticed a “moderate” odor of

alcohol emanating from the vehicle and then from appellant’s person; appellant's eyes

were bloodshot and glassy; and appellant first admitted to drinking then vacillated.

Based on the totality of the circumstances, we find the trooper had sufficient indicia of

intoxication to establish a reasonable suspicion to request appellant to submit to field

sobriety testing. Id.

        {¶16} Appellant then concludes appellee failed to establish probable cause

existed to arrest him for O.V.I. Probable cause to arrest exists if the facts and

circumstances within the knowledge of the trooper are sufficient to cause a reasonably

prudent person to believe that the defendant has committed the offense. State v.

Cummings, 5th Dist. Stark No. 2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State v.

Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). “The arrest merely has to be

supported by the arresting officer's observations of indicia of alcohol consumption and
Morrow County, Case No. 13CA0006                                                          7

operation of a motor vehicle while under the influence of alcohol.” State v. Eustis, 5th

Dist. Knox No. 08CA000006, 2008–Ohio–5955, ¶ 11 citing State v. Van Fossen, 19

Ohio App.3d 281, 484 N.E.2d 191(10th Dist.1984). In making this determination, the

trial court must examine the totality of facts and circumstances surrounding the arrest.

See State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997); State

v. Brandenburg, 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987). When

evaluating probable cause to arrest for OVI, the totality of the facts and circumstances

can support a finding of probable cause to arrest even where no field sobriety tests

were administered. See State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952

(2000). Furthermore, a police officer does not have to observe poor driving performance

in order to effect an arrest for driving under the influence of alcohol if all the facts and

circumstances lead to the conclusion that the driver was impaired. See State v. Harrop,

5th Dist. Muskingum No. CT2000–0026 (July 2, 2001), citing Atwell v. State, 35 Ohio

App.2d 221, 301 N.E.2d 709 (8th Dist.1973).

       {¶17} In examining the totality of facts and circumstances surrounding this

arrest, the trial court looked to a number of factors. As appellant points out, the trial

court relied upon the eleven-part test found in State v. Evans, supra, 127 Ohio App.3d

at 56, in determining whether the trooper had probable cause to arrest appellant.

Specifically, the Evans court stated:

              Without citing the numerous cases which have been canvassed, it

              may be said these factors include, but are not limited to (1) the time

              and day of the stop (Friday or Saturday night as opposed to, e.g.,

              Tuesday morning); (2) the location of the stop (whether near
Morrow County, Case No. 13CA0006                                                        8


             establishments selling alcohol); (3) any indicia of erratic driving

             before the stop that may indicate a lack of coordination (speeding,

             weaving, unusual braking, etc.); (4) whether there is a cognizable

             report that the driver may be intoxicated; (5) the condition of the

             suspect's eyes (bloodshot, glassy, glazed, etc.); (6) impairments of

             the suspect's ability to speak (slurred speech, overly deliberate

             speech, etc.); (7) the odor of alcohol coming from the interior of the

             car, or, more significantly, on the suspect's person or breath; (8) the

             intensity of that odor, as described by the officer (“very strong,”

             “strong,” “moderate,” “slight,” etc.); (9) the suspect's demeanor

             (belligerent, uncooperative, etc.); (10) any actions by the suspect

             after the stop that might indicate a lack of coordination (dropping

             keys, falling over, fumbling for a wallet, etc.); and (11) the suspect's

             admission of alcohol consumption, the number of drinks had, and

             the amount of time in which they were consumed, if given. All of

             these factors, together with the officer's previous experience in

             dealing with drunken drivers, may be taken into account by a

             reviewing court in determining whether the officer acted reasonably.

      {¶18} No single factor is determinative. Id. at fn. 2.

      {¶19} We have previously noted the Evans factors are “more accurately cited in

the context of an officer's decision to conduct field sobriety tests, rather than for the

issue of probable cause to arrest.” State v. Shullo, 5th Dist. Stark No. 2010 CA 00261,

2011-Ohio-1619, ¶ 15, citing State v. Foster, 5th Dist. Tuscarawas No.2009AP020007,
Morrow County, Case No. 13CA0006                                                          9

2009–Ohio–4764, ¶ 13–19. A trial court's reliance on Evans in the context of probable

cause does not constitute a reversible failure to apply the correct test or law to the

findings of fact.   Id.   In the instant case, the trial court used the Evans factors to

thoroughly evaluate the facts and circumstances surrounding the trooper’s decision to

make the arrest.

       {¶20} We agree with the trial court’s decision finding probable cause existed for

this arrest. We note the trial judge is in the best position to determine the credibility of

witnesses and his conclusion in this case is supported by competent facts. State v.

Anderson, 5th Dist. Muskingum No. CT2013-0016, 2013-Ohio-4664, ¶ 21, citing State v.

Burnside, 100 Ohio St.3d 152, 154–55, 797 N.E.2d 71 (2003). 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, 1 Ohio St.3d 19, 20,

437 N.E.2d 583 (1982). Upon our review of the record, we disagree with appellant’s

minimization of his erratic driving. Appellant admits to the marked lanes violations; we

further note, however, upon being traffic stopped on an interstate, he put on his left turn

signal and pulled into the median, not fully clearing the lane of traffic, requiring the

trooper to block the scene of the stop with his cruiser. Additional factors supporting the

finding of probable cause include the time of the stop, appellant’s admission and

vacillation, and the moderate odor of an alcoholic beverage emanating not only from the

interior of the vehicle, but also upon appellant’s person.

       {¶21} We find appellee’s evidence supports the conclusion the trooper had

specific, articulable reasons justifying the administration of the SFSTs and probable
Morrow County, Case No. 13CA0006                                                     10


cause to arrest appellant for O.V.I. The trial court therefore did not err in overruling

those portions of appellant’s motion to suppress.

                                    CONCLUSION

      {¶22} Appellant’s sole assignment of error is overruled and the judgment of the

Morrow County Municipal Court is affirmed.

By: Delaney, J. and

Gwin, P.J.

Farmer, J., concur.
