[Cite as State v. Mackim, 2018-Ohio-3033.]


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

STATE OF OHIO                                        C.A. No.      28741

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KIMBERLY MACKIM                                      BARBERTON MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   16 TRC 4025

                                DECISION AND JOURNAL ENTRY

Dated: August 1, 2018



        CALLAHAN, Judge.

        {¶1}    Appellant, Kimberly Mackim, appeals from her conviction for operating a vehicle

under the influence of alcohol (“OVI”) in the Barberton Municipal Court. For the reasons set

forth below, this Court reverses.

                                                I.

        {¶2}    A New Franklin patrolman (“the Officer”) responded to a call from a gas station

owner regarding a woman, Ms. Mackim, who was asleep in the driver’s seat of a truck parked in

the gas station parking lot. After briefly questioning Ms. Mackim, the officer administered field

sobriety tests to her and subsequently arrested her for OVI pursuant to R.C. 4511.19(A)(1)(a).

        {¶3}    Ms. Mackim filed a motion to suppress and a hearing was held. Ms. Mackim

challenged the following: 1) the Officer’s initial contact with Ms. Mackim as being a community

caretaking function, 2) the Officer’s compliance with the NHTSA standards in administering the

field sobriety tests, 3) the Officer’s reasonable suspicion to detain her to administer the field
                                                 2


sobriety tests, and 4) the Officer’s probable cause to arrest her. At the conclusion of the hearing,

the trial court took the matter under advisement and permitted the parties to file post-hearing

briefs.

          {¶4}   On the record at a pre-jury conference, the trial court orally granted Ms.

Mackim’s motion to suppress the field sobriety test results and the Officer’s expert opinions

regarding Ms. Mackim’s impairment based on the test results. The trial court denied the

remainder of Ms. Mackim’s motion to suppress.            The trial court did not journalize the

suppression decision. Ms. Mackim proceeded to a jury trial and was found guilty of OVI.

          {¶5}   Ms. Mackim has timely appealed her conviction and raises three assignments of

error.

                                                 II.

                               ASSIGNMENT OF ERROR NO. 1

          THE TRIAL COURT ERRED WHEN IT DENIED, IN PART, [MS.
          MACKIM’S] MOTION TO SUPPRESS.

          {¶6}   Ms. Mackim asserts that the trial court erred in denying her motion to suppress by

finding that the Officer engaged in a community caretaking encounter, by finding that the Officer

had reasonable suspicion to detain her and to administer field sobriety tests, and by finding that

the Officer had probable cause to arrest her. To the extent that Ms. Mackim argues that the

initial encounter exceeded the scope of any community caretaking function, this Court agrees.

This Court, however, is unable to reach the remaining arguments.

          {¶7}   A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio
                                                   3


St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1

Ohio St.3d 19, 20 (1982).        “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.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio

App.3d 706, 710 (4th Dist.1997). Therefore, this Court grants deference to the trial court’s

findings of fact, but conducts a de novo review of whether the trial court applied the appropriate

legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th

Dist.).

          {¶8}   The community caretaking function is an exception to the Fourth Amendment

warrant requirement that permits “‘police officers to stop a person to render aid if they

reasonably believe that there is an immediate need for their assistance to protect life or prevent

serious injury.’” State v. Clapper, 9th Dist. Medina No. 11CA00031-M, 2012-Ohio-1382, ¶ 12,

quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, ¶ 22. “Police officers without

reasonable suspicion of criminal activity are allowed to intrude on a person’s privacy to carry out

community caretaking functions to enhance public safety.” (Internal quotation marks omitted.)

State v. Thompson, 9th Dist. Lorain No. 04CA008603, 2005-Ohio-3802, ¶ 10, quoting State v.

Norman, 136 Ohio App.3d 46, 54 (3d Dist.1999). “When approaching a vehicle for safety

reasons, the police officer must be able to point to reasonable, articulable facts upon which to

base [the] safety concerns.” Norman at 54.

          {¶9}   On the other hand, in order to administer field sobriety tests, a police officer must

have a reasonable suspicion of criminal activity. State v. Slates, 9th Dist. Summit No. 25019,

2011-Ohio-295, ¶ 24. “‘Reasonable suspicion’ is more than an ill-defined hunch * * *.” State v.
                                                4


Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 31 (9th Dist.). “‘[R]easonable suspicion exists

if an officer can point to specific and articulable facts indicating that [an individual] may be

committing a criminal act.’” State v. Osburn, 9th Dist. Wayne No. 07CA0054, 2008-Ohio-3051,

¶ 9, quoting Wadsworth v. Engler, 9th Dist. Medina No. 2844-M, 1999 Ohio App. LEXIS 5993,

*9 (Dec. 15, 1999). “Reasonable suspicion is based on the totality of the circumstances.” State v.

Hochstetler, 9th Dist. Wayne No. 16AP0013, 2016-Ohio-8389, ¶ 10.

       {¶10} The Officer testified that dispatch received a call from the owner of the gas station

describing a truck that was parked in the gas station lot by the dumpster with “a female [] passed

out behind the wheel of her vehicle.” The gas station owner indicated that the truck had been in

the parking lot for 20 to 25 minutes and he wanted the driver to leave the premises. The Officer

testified that he arrived at the gas station at approximately 10:00 a.m. and found the truck parked

by the dumpster and a woman passed out in the driver’s seat. The Officer testified and his body

camera footage showed that the Officer approached the truck and knocked on the driver’s side

window to rouse the driver, Ms. Mackim, who was sitting sideways and leaning over towards the

middle console with her back to the driver’s door. The body camera footage shows Ms. Mackim

sit up and turn forward in the driver’s seat and then open the driver’s side door. The Officer

inquired about what Ms. Mackim was doing, to which she replied that she was “laying down”

“taking a break” “because [she] didn’t feel good.”

       {¶11} When Ms. Mackim opened the door and spoke, the Officer detected an “odor of

alcohol coming from her, around her person.” The Officer testified that the odor of alcohol

“alerted [him] that there was some sort of [] drinking going on.” The Officer then asked Ms.

Mackim for her driver’s license, but she handed him her credit card instead. The Officer testified

that the production of something other than the driver’s license is another indicator of alcohol
                                                 5


involvement. Based on these two indicators, the Officer asked Ms. Mackim to step out of the

truck so he could “run her through field sobriety tests.”

           {¶12} The Officer’s body camera shows that once Ms. Mackim was outside the truck,

she admitted to drinking the night before. The Officer then began to administer the field sobriety

tests. The trial court, however, found that “[Ms. Mackim] did admit to drinking the night before,

and at that point, the [O]fficer asked Ms. Mackim to then step out of her [truck] to perform field

sobriety tests.” Based on the body camera footage, the trial court’s chronology of these events is

incorrect. Consequently, the trial court’s finding of fact on this point is not supported by

competent and credible evidence and is rejected by this Court. See State v. Bramley, 9th Dist.

Medina No. 17CA0033-M, 2017-Ohio-8512, ¶ 15.

           {¶13} Nonetheless, the Officer’s testimony from the suppression hearing and his body

camera footage support the trial court’s findings of fact that the Officer “was called to the scene

with reference to a[n ] unwanted visitor that had pulled into a gas station parking lot [] and then

proceeded to fall asleep, pass out” and the gas station owner wanted the police “to look into why

that person was there and ostensibly to have them removed.” Accordingly, those findings of fact

regarding community caretaking are supported by competent, credible evidence and are accepted

as true.

       {¶14}     Taking these facts as true, this Court “independently determine[s], without

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

standard.” See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8, citing McNamara, 124

Ohio App.3d at 710. In this case, the Officer was called to the gas station to check on Ms.

Mackim who was asleep or passed out in her truck and, thus, was responding to a call about a

driver possibly being in distress. See Clapper, 2012-Ohio-1382, at ¶ 13 (recognizing that the
                                                  6


community caretaking function applies to officers helping drivers who are in distress).

Accordingly, the Officer had “reasonable, articulable facts upon which to base [his] safety

concerns” for Ms. Mackim and to approach her vehicle and speak with her under the community

caretaking function. See Norman, 136 Ohio App.3d at 54.

       {¶15}    However, because according to the Officer’s own testimony that the nature of his

encounter with Ms. Mackim changed early on in his interaction with her, the trial court

erroneously extended its fact finding and analysis under the community caretaking function to the

finding of probable cause, foregoing any discussion of reasonable suspicion. While the Officer’s

initial contact and focus was based upon Ms. Mackim’s welfare under the community caretaking

function, he testified that he “smelled [alcohol] when [Ms. Mackim] was in the vehicle when [he]

first made contact with her” and this “alerted” him that there was “drinking going on” despite Ms.

Mackim’s initial statement that she was sick. The Officer testified that he did not believe Ms.

Mackim was ill. Moreover, the Officer stated that a claim of illness “doesn’t take away the fact

[that] the smell of the alcohol” was present. According to the Officer, upon smelling alcohol on

Ms. Mackim inside her truck, he believed she was under the influence and asked her if she had

been drinking, which she denied. Ms. Mackim then handed the Officer her credit card instead of

her driver’s license. In light of these two “indicator[s],” the Officer “made [up his] mind that [he]

was pulling [Ms. Mackim] out of the vehicle and rendering [sic.] her to do some tests.”

       {¶16}    Courts have repeatedly held that when the initial nature of the encounter is

expanded to an investigatory detention the officer must possess reasonable suspicion of criminal

activity for that detention. See State v. Martin, 9th Dist. Summit No. 28722, 2018-Ohio-1705, ¶

12 (“when a consensual encounter later results in an investigatory detention, that detention must

be supported by reasonable suspicion”). See also State v. Saunders, 5th Dist. Muskingum No.
                                                  7


CT2017-0052, 2018-Ohio-2624, ¶ 28; State v. Windle, 4th Dist. Athens No. 16CA1, 2017-Ohio-

7813, ¶ 33, 35. “[B]ecause some contacts that start out as constitutional may at some point cross

a line and become an unconstitutional seizure,” it is necessary to examine the constitutionality of

the next stage of the stop. Saunders at ¶ 26. Based on the Officer’s testimony, it was necessary

for the trial court to make findings of fact and conclusions of law regarding whether the Officer

had a reasonable suspicion of criminal activity that would support his administering field sobriety

tests. The trial court, however, failed to do so. In light of the absence of findings of fact relative

to reasonable suspicion to administer field sobriety tests, this Court cannot conclude the trial

court’s findings of fact are supported by competent, credible evidence.

       {¶17}    Additionally, the trial court’s findings of fact as to probable cause to arrest Ms.

Mackim are incomplete. With regard to probable cause, the trial court relied on the odor of

alcohol and “some of the responses and some of the things” it viewed on the body camera

footage. The trial court’s reference to “some of the responses and some of the things” is vague

and provides this Court with no information as to which factors it found to support its finding that

there was probable cause to arrest Ms. Mackim. (Emphasis added.) See State v. Trivett, 9th Dist.

Medina No. 15CA0041-M, 2016-Ohio-8204, ¶ 7-8 (findings of fact are incomplete when they fail

to include pertinent facts that were presented during the hearing and which are necessary to

conduct the legal analysis). In the absence of necessary findings of fact, this Court cannot

conclude the trial court’s findings of fact as to probable cause to arrest are supported by

competent, credible evidence.

       {¶18}    Having concluded that the trial court erred by extending the community

caretaking function beyond what is allowable under the law and failing to make findings of fact as

to reasonable suspicion to administer field sobriety tests and probable cause to arrest, we conclude
                                                      8


that the trial court erred in denying Ms. Mackim’s motion to suppress. Because the trial court has

failed to adequately set forth its findings of fact and failed to apply the correct law, this Court

cannot properly review the suppression decision. Accordingly, this Court must remand this case

to the trial court to set forth its findings of fact with regard to reasonable suspicion to administer

field sobriety tests and probable cause to arrest.

       {¶19}    Ms. Mackim’s first assignment of error is sustained.

                                ASSIGNMENT OF ERROR NO. 2

        THE TRIAL COURT ERRED WHEN IT RULED THAT [MS. MACKIM]
        COULD NOT CROSS [EXAMINE] THE [] OFFICER ON ANY OF HIS
        NHTSA TRAINING DURING THE JURY TRIAL.

                                ASSIGNMENT OF ERROR NO. 3

        THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
        EVIDENCE PRESENTED AT TRIAL.

       {¶20}    In the second assignment of error, Ms. Mackim contends that the trial court erred

in precluding her from cross examining the Officer regarding his NHTSA training. In the third

assignment of error, Ms. Mackim argues that her conviction is against the manifest weight of the

evidence because the State failed to present evidence that she was impaired. Due to this Court’s

resolution of Ms. Mackim’s first assignment of error, her second and third assignments of error

are premature and this Court declines to address them.

                                                     III.

       {¶21}    Ms. Mackim’s first assignment of error is sustained. This Court declines to

address the second and third assignments of error because they are premature. The judgment of

the Barberton Municipal Court is reversed and the cause is remanded for proceedings consistent

with this opinion.
                                                 9


                                                                                Judgment reversed
                                                                              and cause remanded.



       There were reasonable grounds for this appeal.

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

Municipal Court, County of Summit, 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 Appellee.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT




TEODOSIO, P. J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶22} I would reverse and remand on the basis of the rationale articulated in State v

Dennis, 9th Dist. Summit No. 27692, 2016-Ohio-8136.
                                          10


APPEARANCES:

JOHN T. FORRISTAL, Attorney at Law, for Appellant.

JENNIFER ROBERTS, Prosecuting Attorney, for Appellee.
