[Cite as State v. Hagerman, 2018-Ohio-2135.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                        C.A. No.      17CA011176

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAIME HAGERMAN                                       COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   15CR092591

                                DECISION AND JOURNAL ENTRY

Dated: June 4, 2018



        HENSAL, Judge.

        {¶1}    Jaime Hagerman appeals a judgment of the Lorain County Court of Common

Pleas that denied her motion to suppress. For the following reasons, this Court affirms.

                                                I.

        {¶2}    A white male wearing a bandana left the Joyful Mug in a dark Chevrolet Blazer

without paying his tab. Upon learning about the theft, the Elyria Police Department sent a

dispatch to Officer Brandon Pool, who was patrolling in the area where the Blazer had headed.

Officer Pool drove his patrol car to the road on which the Blazer had been seen and spotted a

vehicle matching the description. It was approximately 2:15 a.m. and there were no other

vehicles on the road, so he initiated a traffic stop. After the vehicle stopped, he got out and

approached the driver, Ms. Hagerman, while his partner approached the front-seat passenger, a

white male. The officers spotted a bandana inside the vehicle.
                                                 2


       {¶3}    When Officer Pool reached Ms. Hagerman, he detected a strong odor of alcohol.

He asked her whether she had come from the Joyful Mug, and she said that they had. While

speaking to her, Officer Pool noticed that her eyes were bloodshot, that her face was flushed red,

that her speech was slightly slurred, and that she was not making much sense. When he asked

her whether she had been drinking, she answered that she had, except that it was “way earlier.”

To ensure that she was safe to continue driving, Officer Pool asked Ms. Hagerman to step out of

her vehicle so that he could administer field sobriety testing. Although agitated by the stop, Ms.

Hagerman became even more agitated upon having to exit her vehicle, and she began flailing

around. Officer Pool testified that he administered two field sobriety tests, the walk and turn test

and the horizontal gaze nystagmus test, observing clues of intoxication during both tests. He

began to administer the one-leg stand test, but stopped because of how agitated Ms. Hagerman

had become. Based on his observations, he attempted to arrest her for operating a vehicle under

the influence of alcohol. Ms. Hagerman fought the officer and his partner, but they eventually

handcuffed her and secured her in the back of their patrol car.

       {¶4}    The Grand Jury indicted Ms. Hagerman for two counts of operating a vehicle

under the influence of alcohol, one count of obstructing official business, and one count of

resisting arrest. She moved to suppress the evidence against her, arguing that there was no

lawful cause to detain her, that there was no probable cause to arrest her without a warrant, that

her statements were obtained in violation of her right against self-incrimination and her right to

counsel, that the field sobriety testing was not conducted in accordance with national standards,

that Officer Pool did not have reasonable cause to believe that she was operating a vehicle under

the influence of alcohol, and that he improperly advised her of the Ohio Implied Consent

provisions. Following a hearing, the trial court denied her motion. Ms. Hagerman subsequently
                                                3


pleaded no contest to the offenses, and the trial court found her guilty of them. It sentenced her

to three years of community control, which included 120 days in a correctional facility. Ms.

Hagerman has appealed, assigning two errors.

                                                II.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO
        SUPPRESS FIELD SOBRIETY TESTS AS COMPLIANCE WAS NOT
        SUPPORTED BY EVIDENCE OF ANY ACCEPTABLE STANDARDS OR
        RULES, NEITHER PROFFERED BY THE STATE NOR TAKEN BY
        JUDICIAL NOTICE.

        {¶5}    Ms. Hagerman notes that, under Revised Code Section 4511.19(D)(4)(b), an

officer may testify about field sobriety test results if the officer administered the test in

substantial compliance with its standards. She argues that the field sobriety tests that Officer

Pool administered did not comply with any generally accepted standards, so the trial court should

have suppressed the results of the tests.

        {¶6}    Field sobriety test results can be used for two purposes. First, they can serve as

evidence of probable cause to arrest. See State v. Homan, 89 Ohio St.3d 421 (2000), paragraph

one of the syllabus. Second, they can be admitted at trial as evidence that the defendant operated

a vehicle under the influence of alcohol. See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37,

¶ 8. In this assignment of error, Ms. Hagerman is not arguing that the test results should not

have been used by the trial court to determine whether Officer Pool had probable cause to arrest

her. Instead, she is arguing that the court should have “suppressed” the results and not permitted

their introduction at trial.

        {¶7}    A motion to suppress is a device used to eliminate evidence from a criminal case

that was obtained illegally, typically in violation of the defendant’s fourth, fifth, or sixth
                                                   4


amendment rights.      State v. French, 72 Ohio St.3d 446, 449 (1995).             The issue that Ms.

Hagerman raises does not involve a constitutional question such as probable cause to arrest. In

general, motions that seek a pre-trial ruling on the admissibility of evidence that do not involve a

defendant’s constitutional rights are motions in limine. State v. Green, 4th Dist. Pickaway No.

01CA8, 2001 Ohio App. LEXIS 6065, *8 (Nov. 20, 2001). Ms. Hagerman’s motion to exclude

the results of the field sobriety tests at trial, therefore, should be treated as a motion in limine, not

a motion to suppress. Id. at *9.

        {¶8}    “A ruling on a motion in limine is an interlocutory ruling as to the potential

admissibility of evidence at trial and cannot serve as the basis for reviewing error on appeal.”

State v. Kerr, 9th Dist. Medina No. 3205-M, 2002-Ohio-2095, ¶ 7.                 Because it is only a

preliminary decision as to the admissibility of the evidence, “an objection to such must be raised

once the evidentiary issue is presented during trial in order to properly preserve the question for

appeal.” Id. In this case, Ms. Hagerman pleaded no contest to the charges instead of going to

trial. Accordingly, we conclude that she has not preserved this issue for appellate review. Id. at

¶ 8 (concluding that this Court could not review the trial court’s ruling that field sobriety results

were admissible because defendant pleaded no contest); Green at *10. Ms. Hagerman’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

        THE DENIAL OF DEFENDANT’S MOTION TO SUPPRESS WAS
        IMPROPER AS THE DEFENDANT’S ARREST FOR OVI WAS NOT
        SUPPORTED BY PROBABLE CAUSE AND IN VIOLATION OF THE
        FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
        CONSTITUTION, AND ARTICLE I, SECTION 14 OF THE CONSTITUTION
        OF THE STATE OF OHIO.
                                                5


       {¶9}    Ms. Hagerman next argues that the trial court incorrectly denied her motion to

suppress because Officer Pool did not have probable cause to arrest her for operating under the

influence of alcohol. A motion to suppress presents a mixed question of law and fact:

       When considering 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. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶10} To determine whether a police officer had probable cause to arrest an individual

for operating under the influence, we consider whether, under the totality of the facts and

circumstances surrounding the arrest at the moment of arrest, the officer “had sufficient

information, derived from a reasonably trustworthy source of facts and circumstances, sufficient

to cause a prudent person to believe that the suspect was driving under the influence.” Homan,

89 Ohio St. 3d 421, at 427.       In evaluating whether probable cause existed, the officer’s

observations during the defendant’s performance of nonscientific field sobriety tests can be

considered even if the results of those tests cannot. State v. Reddington, 9th Dist. Medina No.

14CA0064-M, 2015-Ohio-2890, ¶ 23; see Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, at ¶ 14-

16.

       {¶11} Officer Pool testified that, when he encountered Ms. Hagerman, her eyes were

bloodshot red, she smelled of the odor of alcoholic beverages, her face was flushed red, her

speech was slightly slurred, and she was not making much sense while talking. She admitted

that she had been drinking to him. After she got out of her vehicle, she was agitated and “flailing

around[.]” He testified that, when he administered a walk and turn test, Ms. Hagerman did not
                                                6


follow his instructions. Specifically, she took only eight steps instead of nine, she did not turn

correctly, she did not walk heel to toe, and she stepped off the line with both her left and right

feet. When he administered a nystagmus test, he observed nystagmus during each part of the

test. Ms. Hagerman also refused to perform a one-leg stand test. Officer Pool testified that, in

his training and experience, if someone refuses to do that test, it means that she was too

intoxicated to do it.

        {¶12} Ms. Hagerman notes that Officer Pool never observed her commit any traffic

violations. It is possible, however, “to have a valid arrest for driving under the influence of

alcohol even though the arresting officer has not actually observed the arrestee operating a

vehicle in an erratic or unsafe manner.” City of Tallmadge v. Barker, 9th Dist. Summit No.

24414, 2009-Ohio-1334, ¶ 17, quoting State v. Snider, 9th Dist. Medina No. 2924-M, 1999 Ohio

App. LEXIS 3442, *8 fn. 3 (July 28, 1999). Upon review of the totality of the circumstances in

this case, we conclude that Officer Pool had sufficient cause to believe that Ms. Hagerman was

operating a vehicle under the influence. We, therefore, conclude that the trial court correctly

denied her motion to suppress. Ms. Hagerman’s second assignment of error is overruled.

                                               III.

        {¶13} Ms. Hagerman’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 7


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MICHAEL E. STEPANIK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and RICHARD A. GRONSKY and LINDSEY C.
POPROCKI, Assistant Prosecuting Attorneys, for Appellee.
