[Cite as State v. McKenzie, 2018-Ohio-4321.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




 STATE OF OHIO                                 JUDGES:
                                               Hon. John W. Wise, P.J
         Plaintiff – Appellee                  Hon. William B. Hoffman, J.
                                               Hon. Earle E. Wise, Jr., J.
 -vs-
                                               Case No. 17-CA-49
 DONALD L. McKENZIE

        Defendant – Appellant                  O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Fairfield County
                                               Municipal Court Case No. 17TRC04954




 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       October 24, 2018


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 TAMAS D. TABOR                                ANDREW SANDERSON
 Assistant City Prosecutor                     Burkett & Sanderson
 136 W. Main Street                            738 East Main Street
 Lancaster, OH 43130                           Lancaster, OH 43130
Fairfield County, Case No. 17-CA-49                                                    2


Hoffman, J.
     {¶1}     Appellant Donald L. McKenzie appeals the judgment entered by the

Fairfield County Municipal Court convicting him of operating a vehicle while intoxicated

(R.C. 4511.19(A)(1)(a)) following his plea of no contest. Appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

     {¶2}     At approximately 1:15 a.m. on April 30, 2017, Trooper Daniel Muck of the

Ohio State Highway Patrol stopped a Cadillac in Lancaster, Ohio. While conducting

standardized field sobriety checks on the driver, he saw a motorcycle travel recklessly

through an intersection.    The motorcycle was operated by Appellant’s son-in-law,

Richard Runyon. Appellant was operating a three-wheeled motorcycle in front of the

motorcycle operated by Runyon.

     {¶3}     Trp. Muck began to pursue the motorcycle operated by Runyon, observing

him travel outside of marked lanes.      He initiated a stop of Runyon’s motorcycle.

Appellant also stopped.

     {¶4}     Trp. Muck approached Runyon and began explaining why he stopped him.

In the course of conversation, Runyon told Trp. Muck the vehicle was owned by

Appellant.    Appellant got off his three-wheeled motorcycle and walked toward the

trooper with the paperwork for the motorcycle. When Appellant engaged the trooper in

conversation, he noticed Appellant’s eyes were red, bloodshot and glassy; his speech

was slurred, and he smelled of alcohol. The trooper asked if they had consumed any

alcohol, and Appellant stated they had “quite a few.”

     {¶5}     Appellant was charged with OVI in violation of R.C. 4511.19(A)(1)(a) and

operating a vehicle with a prohibited breath alcohol concentration. He filed a motion to
Fairfield County, Case No. 17-CA-49                                                        3


suppress, arguing the trooper did not have a reasonable suspicion of criminal activity to

stop him, and further the officer could not detain him after the initial stop, but rather was

required to tell him he was free to leave. The court overruled the motion, finding

Appellant was not stopped by the trooper but voluntarily chose to stop and engage the

officer in conversation.

     {¶6}    Appellant entered a plea of no contest to OVI, and the charge of driving with

a prohibited breath alcohol concentration was dismissed. He was convicted upon his

plea and sentenced to 180 days incarceration with 165 suspended. It is from the

November 30, 2017 judgment of conviction and sentence he prosecutes this appeal,

assigning as error:




            THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING

     THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS EVIDENCE.




     {¶7}    There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

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

findings of fact are against the manifest weight of the evidence. 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(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). 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
Fairfield County, Case No. 17-CA-49                                                      4


committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141

(1993). Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

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, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d

906 (1993); Guysinger, supra. As the United States Supreme Court held in Ornelas v.

U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general

matter determinations of reasonable suspicion and probable cause should be reviewed

de novo on appeal.”

     {¶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 the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243,

652 N.E.2d 988; Fanning, supra.

     {¶9}   Appellant argues the officer lacked a reasonable suspicion of criminal

activity to stop him. He argues because he responded to the officer’s signal to pull over,

if he was not the target of the officer’s investigation, it was incumbent upon the officer

to inform him he was free to leave, citing State v. Chatton, 11 Ohio St. 3d 59, 463 N.E.2d

1237 (1984).

     {¶10} The trial court found Appellant was not seized within the meaning of the

Fourth Amendment’s protection against unreasonable searches and seizures. A person
Fairfield County, Case No. 17-CA-49                                                         5


is seized in an investigatory stop when in view of all the circumstances surrounding the

incident, by means of physical force or show of authority, a reasonable person would

have believed he was not free to leave or was compelled to respond to questions. State

v. Taylor, 106 Ohio App.3d 741, 747–748, 667 N.E.2d 60 (1995).

     {¶11} Trooper Muck testified he intended to stop the back motorcycle, driven by

Runyon, for attempting to do a “burn-out” while proceeding through an intersection and

for traveling outside his lane of travel. He testified he did not speak to Appellant at first,

and would not have pursued Appellant if he had driven off. The video from the trooper’s

dash-cam also demonstrates he did not engage Appellant in conversation nor did he

acknowledge Appellant had stopped, but rather he immediately went to Runyon’s

motorcycle to discuss the reason for the stop. Appellant got off his three-wheeled

motorcycle and approached Trooper Muck with the paperwork for the motorcycle

operated by Runyon.       Whether or not Appellant believed the officer’s signal was

intended for both motorcycles, after he stopped, Appellant initiated the contact with the

officer by getting off his motorcycle, approaching the officer as he was discussing the

stop with Runyon, and engaging the officer in conversation. We find the trial court did

not err in finding Appellant was not seized for Fourth Amendment purposes in the initial

stop. Once Appellant approached the officer and initiated a conversation, Trooper Muck

testified he noticed Appellant’s eyes were red, bloodshot and glassy; his speech was

slurred, and he smelled of alcohol. The trooper asked if they had consumed any

alcohol, and Appellant stated they had “quite a few.” At this point, the officer possessed

a reasonable suspicion of criminal activity to justify further detention pursuant to Terry

v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Fairfield County, Case No. 17-CA-49                                                      6


     {¶12} Appellant argues pursuant to State v. Chatton, it was incumbent upon

Trooper Muck to indicate to Appellant he was free to leave. In Chatton, the police officer

stopped a car which displayed neither front nor rear license plates. Upon approaching

the stopped vehicle, the officer observed a temporary tag visible through the rear

windshield. He then asked the driver to produce his driver’s license and registration.

As a result, he determined the driver’s license was suspended. He then asked the driver

to step out of the car, and placed him under arrest. Upon searching the vehicle, the

officer found a gun under the driver’s seat of the car.

     {¶13} The Ohio Supreme Court held the detention of the driver to check his

driver’s license violated the Fourth Amendment. Chatton, supra, at 63. Once the officer

observed the temporary tag, he no longer had a reasonable suspicion the vehicle was

not properly registered or licensed, and he could not further detain the driver and

demand he produce his driver’s license. Id.

     {¶14} The instant case is distinguishable from Chatton.          Appellant was not

stopped by Trooper Muck, as discussed above. Rather, he voluntarily stopped when

Runyon was stopped.         Both the dash-cam video and the Trooper’s testimony

demonstrate he ignored Appellant immediately after the stop, while discussing the

reason for the stop with Runyon. Appellant then voluntarily approached the officer and

began to converse with him, producing the registration for the motorcycle Runyon was

operating. In contrast, in Chatton, the vehicle in question was the target of the officer’s

stop, and the officer approached the driver of the vehicle, asking for his license and

registration.
 Fairfield County, Case No. 17-CA-49                                                      7


      {¶15} Further, unlike the officer in Chatton, immediately upon his contact with

 Appellant, Trooper Muck noted indicia of intoxication. At the time Trooper Muck asked

 Appellant for his driver’s license, he had a reasonable suspicion of criminal activity to

 justify the further detention of Appellant. In Chatton, the officer did not have any reason

 to continue the detention at the time he asked for the driver’s operator’s license, and did

 not develop a reason to continue the detention until he checked the status of the driver’s

 license.

      {¶16} We find the trial court did not err in overruling Appellant’s motion to

 suppress.

      {¶17} The assignment of error is overruled. The judgment of the Fairfield County

 Municipal Court is affirmed.

By: Hoffman, J.

Wise, P.J. and

Wise, Earle, J. concur
