[Cite as State v. Henderson, 2019-Ohio-4041.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                  :   JUDGES:
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                    :   Hon. John W. Wise, J.
                                                :   Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
JOSEPH HENDERSON,                               :   Case No. 2019CA00026
                                                :
        Defendant - Appellant                   :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Canton Municipal
                                                    Court, Case No. 2018 TRC 09407



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 30, 2019



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KRISTEN BATES-AYLWARD                               STEPHEN J. KANDEL
Canton Law Director                                 700 Courtyard Center
                                                    116 Cleveland Avenue, NW
JASON P. REESE                                      Canton, Ohio 44702
Canton City Prosecutor

By: KRISTINA M. LOCKWOOD
Assistant City Prosecutor
218 Cleveland Ave. SW
Canton, Ohio 44702
Stark County, Case No. 2019CA00026                                                      2

Baldwin, J.

       {¶1}   Joseph Henderson appeals the decision of the Canton Municipal Court

denying his motion to suppress evidence gathered by the Louisville Police Department

as well as his conviction for driving while under the influence of alcohol, in violation of

R.C. 4511.19(D)(2), a first degree misdemeanor.

       {¶2}   Appellee is the State of Ohio.

                        STATEMENT OF FACTS AND THE CASE

       {¶3}   Appellant contends that the Louisville Police Department did not have

reasonable, articulable suspicion to stop him based upon the report of an employee at

the local McDonald's restaurant. He refers this court to a "Cruiser Video" at several

significant points in his description of the facts, but that video is not part of the record and

neither the transcript of the suppression hearing nor the balance of the record contain

evidence that support the facts allegedly revealed by the video. The record presented to

us reflects only a consensual encounter with the police and not a traffic stop as alleged

by Appellant. For that reason, we find that Appellant’s argument is not supported by the

facts and the assignment of error must be denied.

       {¶4}   Appellant visited the Louisville McDonald's restaurant on November 23,

2018, just before midnight. As he went through the drive-through he was told the ice

cream machine was not working. The McDonald's employee reported to the Louisville

Police Department that Appellant became very upset, was causing a disturbance and

smelled of alcohol. The McDonald's employee directed Appellant to pull forward and wait

for his food, and, while he was waiting, the restaurant manager called the police and

reported Appellant’s behavior. Louisville Police Officers were dispatched to the scene
Stark County, Case No. 2019CA00026                                                  3


with a description of the Appellant's vehicle, a partial license plate number and the

location of the vehicle as well as a description of the employee’s encounter with Appellant.

       {¶5}   The Louisville police officers arrived at the scene and found a vehicle

matching the description provided by the dispatch in the location described by the

McDonald's employee. Officer Jordan was first on the scene and asked if Appellant had

been drinking. After Appellant denied drinking, Lieutenant Steed assumed responsibility

for the case. Lt. Steed noticed Appellant had bloodshot, watery eyes, a strong odor of

alcohol and "uncooperative behavior, borderline of being somewhat disorderly, being

evasive toward questioning." (Transcript, p. 9, lines 3-5).     Lt. Steed concluded that

Appellant might be under the influence of alcohol and asked him to step out of the car.

The Officer noted that the odor of alcohol did not dissipate when Appellant stepped out

of the car.

       {¶6}   Lt. Steed administered field sobriety tests and Appellant performed poorly.

Appellant's blood alcohol content was measured that evening at .136 grams by weight of

alcohol per two hundred ten liters of the Appellant breath. Appellant was arrested and

charged with driving under the influence, a violation of R. C. 4511.19(A)(1)(a) and (d).

       {¶7}   Appellant filed a Motion to Suppress/Dismiss contending there was no

reasonable suspicion for the stop and lack of probable cause for the arrest. At the hearing

on the motion, Appellant withdrew the second prong of the motion and argued that

because neither the McDonald's employees nor the police officers witnessed Appellant

driving erratically or committing any traffic violations, there was no support for a traffic

stop. Appellee offered the testimony of Lt. Steed, but no video was played or referenced.

Appellant did not testify and did not offer any exhibits. In closing Appellant argued that
Stark County, Case No. 2019CA00026                                                         4


because there was no bad driving, the traffic stop was unwarranted. The trial court

overruled the motion, but focused upon the justification for conducting the field sobriety

tests. The Court found that the Appellant’s behaviors, his appearance and the proximity

of places selling alcohol nearby supported the police officer’s administration of the tests.

Appellant entered a no contest plea and was convicted of a violation of R. C.

4511.19(A)(1)(d).

       {¶8}   Appellant filed a timely appeal and submitted one assignment of error:

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

TO SUPPRESS.”

                                 STANDARD OF REVIEW

       Appellate review of a motion to suppress presents a mixed question of law

       and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

       N.E.2d 71, ¶ 8. In ruling on 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.” Id., citing State v. Mills,

       62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we “must

       accept the trial court's findings of fact if they are supported by competent,

       credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

       N.E.2d 583 (1982). Accepting those facts as true, we must then

       “independently determine as a matter of law, without deference to the

       conclusion of the trial court, whether the facts satisfy the applicable legal

       standard. Id.

State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12
Stark County, Case No. 2019CA00026                                                      5


       {¶10} “...[A]s a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal.” Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996).

                                         ANALYSIS

       {¶11} The trial court focused upon the detention of Appellant for the administration

of field sobriety tests, but Appellant's appeal instead contends that the Louisville Police

Department did not have reasonable suspicion to conduct a traffic stop, referring to the

initial encounter between Appellant and the officers. He opens his argument by stating

"The Officer's act of pulling behind the Appellant's vehicle and activating his overhead

lights was a seizure implicating the Fourth Amendment" and he contends the officer

"initiated a traffic stop without having witnessed any violations." (Appellant's Brief, p. 3).

He notes the call from the McDonald's employee was not reliable and that neither that

caller nor the arresting officer witnessed any criminal activity or traffic violation. Appellant

does not argue that the administration of field sobriety tests was unwarranted or violative

of any right, so our review is limited to an examination of the alleged traffic stop.

       {¶12} The Appellant argues that the Louisville Police lacked reasonable,

articulable suspicion to support a traffic stop, but he has failed to provide any evidence

that the officers conducted any type of stop that would implicate the Fourth Amendment.

Appellant relies upon a "Cruiser Video" to support his argument, but no video is contained

within the record. No video was mentioned at the hearing on the motion to suppress and

the transcript expressly states "NO EXHIBITS OFFERED." (Transcript, p. 27). As a

practical matter we cannot consider the video because it was not included in the case file

and as a legal matter we cannot consider the content of any video because:
Stark County, Case No. 2019CA00026                                                    6


      *** a bedrock principle of appellate practice in Ohio is that an appeals court

      is limited to the record of the proceedings at trial. In State v. Ishmail (1978),

      54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, we reversed the

      judgment of a court of appeals that had considered, in an appeal from a

      postconviction proceeding, a transcript that was not before the trial court in

      the proceeding that was appealed. In Ishmail, we declared: “A reviewing

      court cannot add matter to the record before it, which was not a part of the

      trial court's proceedings, and then decide the appeal on the basis of the new

      matter.” Id. at paragraph one of the syllabus. We have consistently enforced

      this holding.

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13 (2004).

      {¶13} Our review is limited to the record, primarily the transcript of the hearing on

the motion to suppress. The transcript shows that Appellant was parked at McDonald's

and was approached by the officers who began speaking with him about his drinking that

evening. The record does not show that Lt. Steed "by either physical force or show of

authority restrained the [appellant's] liberty so that a reasonable person would not feel

free to decline the officer's requests or otherwise terminate the encounter.” State v.

Taylor, 106 Ohio App.3d 741, 747-748, 667 N.E.2d 60 (1995). Based upon the record

before us, we are constrained to conclude that this was a consensual encounter where

the officers approached appellant "in a public place, engaged him in conversation,

requested information, and he was free not to answer and walk away. Taylor at 747, 667

N.E.2d 60, citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980). Without evidence that the officers conducted a traffic stop, we conclude the
Stark County, Case No. 2019CA00026                                      7


record reflects no more than consensual encounter which does not trigger Fourth

Amendment guarantees. Taylor, supra at 747-748, 667 N.E.2d 60.

      {¶14} Appellant's assignment of error is overruled.

      {¶15} The decision of the Canton Municipal Court is affirmed.



By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.
