[Cite as State v. Woody, 2016-Ohio-631.]


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

STATE OF OHIO                                       C.A. No.      14CA010679

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
KEITH J. WOODY                                      OBERLIN MUNICIPAL COURT
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   14TRC01136

                                 DECISION AND JOURNAL ENTRY

Dated: February 22, 2016



        SCHAFER, Judge.

        {¶1}    Defendant-Appellant, Keith Woody, appeals the judgment of the Oberlin

Municipal Court denying his suppression motion and subsequently imposing a jail sentence

above the mandatory minimum. For the reasons set forth below, we affirm.

                                               I.

        {¶2}    On the morning of March 22, 2014, Sergeant Michael Murphy of the City of

Amherst Police Department was on patrol in a marked cruiser at the State Route 2 and State

Route 58 intersection in Amherst, Ohio. At roughly 1:30 a.m., Sgt. Murphy received a radio

dispatch informing him that a citizen had called in to report a possibly intoxicated driver

traveling northbound on State Route 58. The caller also informed the dispatcher that the vehicle

in question was in front of him and was driving “all over the road.” The caller provided his

name, contact information, and present location to the dispatcher.         From the provided
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information, Sgt. Murphy was able to identify the caller as a local tow driver with whom he was

familiar.

       {¶3}    Upon receiving this information regarding the possibly intoxicated driver from the

radio dispatcher, Sgt. Murphy immediately observed the vehicle in question traveling

northbound on Rt. 58. Once the vehicle passed his location, Sgt. Murphy turned onto Rt. 58 and

began following the vehicle in question for roughly one-quarter mile, during which time he

observed the vehicle weaving within its lane of travel, going side to side. Sgt. Murphy then

effectuated a traffic stop. Sgt. Murphy identified the driver of the vehicle as Keith Woody. Sgt.

Murphy also observed and identified an individual sitting in the front passenger seat. Sgt.

Murphy detected a strong odor of alcoholic beverage coming from within the vehicle and

emanating from the driver’s mouth as he spoke. At this point, Sgt. Murphy had the driver exit

the vehicle in order to perform a series of field sobriety tests. Following the conclusion of those

field sobriety tests, Sgt. Murphy placed Woody under arrest for operating a vehicle under the

influence of alcohol.

       {¶4}    Woody was charged with one count of driving while under the influence of

alcohol in violation of R.C. 4511.19(A)(1)(a), one count of operating a motor vehicle with a

prohibited blood-alcohol concentration in violation of R.C. 4511.19(A)(1)(h), and one count of

weaving in violation of Amherst Codified Ordinance (“A.C.O.”) 331.34.             Woody filed a

suppression motion, which the trial court denied following a hearing. Woody subsequently pled

no contest to driving under the influence in violation of R.C. 4511.19(A)(1)(a) in exchange for

the State dismissing the remaining two counts. The trial court accepted Woody’s no contest plea

and found him guilty.
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       {¶5}    The trial court sentenced Woody to serve 180 days in jail with 150 days

suspended on various conditions. The trial court stayed execution of Woody’s sentence, pending

resolution of this timely appeal, which presents three assignments of error for our review. Since

the first two assignments of error implicate similar issues, we elect to address them together.

                                                II.

                                     Assignment of Error I

       The trial court erred in entering judgment against Appellant as there is
       insufficient evidence to establish reasonable suspicion for an investigatory
       stop of Appellant.

                                     Assignment of Error II

       The trial court erred when it found that the officer had sufficient indicia of
       reliability based on a citizen’s tip that allowed the officer to make an
       investigative stop of Appellant’s vehicle.

       {¶6}    In his first and second assignments of error, Woody argues that the police

officer’s investigative stop was unconstitutional as Sgt. Murphy did not have a reasonable,

articulable suspicion that criminal activity was afoot. We disagree.

       {¶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

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.” Id. “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.”         Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
                                                  4


       {¶8}    The investigatory stop of an automobile is a seizure for purposes of the Fourth

Amendment and, consequently, must be based on a law enforcement officer's reasonable

suspicion “that a motorist has committed, is committing, or is about to commit a crime.” State v.

Mays, 119 Ohio St.3d 406, 2008–Ohio–4539, ¶ 7. In justifying the stop, the officer “must be

able to point to specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). The

reasonableness of the officer's actions is evaluated in light of the totality of the circumstances

surrounding the stop.     State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the

syllabus. This is because:

       The reasonable suspicion necessary for such a stop * * * eludes precise definition.
       Rather than involving a strict, inflexible standard, its determination involves a
       consideration of “the totality of the circumstances.” United States v. Cortez, 449
       U.S. 411, 417 (1981). Under this analysis, “both the content of information
       possessed by police and its degree of reliability” are relevant to the court's
       determination. Alabama v. White, 496 U.S. 325, 330 (1990).

Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999).

       {¶9}    When the officer who conducts an investigatory traffic stop relies solely on the

information provided through dispatch, “the state must demonstrate at a suppression hearing that

the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.” Id. at

paragraph one of the syllabus. When the dispatch is based on information provided by an

informant's tip, “the determination of reasonable suspicion will be limited to an examination of

the weight and reliability due that tip. The appropriate analysis, then, is whether the tip itself has

sufficient indicia of reliability to justify the investigative stop.” Id. at 299. Relevant factors in

this determination include “the informant's veracity, reliability, and basis of knowledge.” Id.,

citing White, 496 U.S. at 328.      In making this determination, courts consider whether the

informant can be classified as an anonymous tipster, a known confidential informant, or an
                                                    5


identified citizen informant.    Id. at 300.    As a general rule, anonymous informants are

“comparatively unreliable,” and a tip “will generally require independent police corroboration.”

Id., citing White at 329. On the other hand,

       an identified citizen informant may be highly reliable and, therefore, a strong
       showing as to the other indicia of reliability may be unnecessary: “[I]f an
       unquestionably honest citizen comes forward with a report of criminal activity—
       which if fabricated would subject him to criminal liability—we have found
       rigorous scrutiny of the basis of his knowledge unnecessary.”

Id., quoting Illinois v. Gates, 462 U.S. 213, 233–234 (1983).

       {¶10} Here, Sgt. Murphy initiated a traffic stop based on information relayed to him via

radio dispatch. This dispatch informed Sgt. Murphy that a citizen had called in to report a

possibly intoxicated driver headed northbound on Rt. 58 in Amherst. The citizen informed the

dispatcher that the vehicle in question was driving “all over the road.” Although the citizen

informant did not testify at the suppression hearing, it is undisputed that he provided the

dispatcher with his name, present location, and contact information at the time of phoning in his

tip. Sgt. Murphy testified that he recognized the citizen informant’s name at the time that he

received the radio dispatch and knew him to be a local tow driver. Sgt. Murphy also observed

the citizen informant’s vehicle driving in proximity to Woody’s vehicle on Rt. 58 just prior to

effectuating the traffic stop of Woody’s vehicle.

       {¶11} Because the tipster was an identified citizen informant, we may ascribe a high

degree of reliability to the information that he provided, and it need not be supported by

independent observations by Sgt. Murphy. See id. The record demonstrates that in this case, the

citizen informant observed erratic driving by a possibly intoxicated driver, which caused the

informant to call the police. The informant told dispatch that the vehicle in question was driving

“all over the road.” The caller informed dispatch that he and the vehicle in question were driving
                                                 6


northbound on Rt. 58 in Amherst, which is where Sgt. Murphy observed Woody’s vehicle. We

note that although Sgt. Murphy was not legally required to independently corroborate the citizen

informant’s tip in this matter, he did testify that he observed Woody’s vehicle “weaving within

its lane of travel, going side to side” in a “zigzag motion,” in violation of A.C.O. 331.34.

       {¶12} These factors lend credibility to the caller's account and provide sufficient indicia

of reliability to justify the traffic stop. See State v. Rapp, 9th Dist. Wayne No. 12CA0062, 2013–

Ohio–4408, ¶ 11; State v. Saravia, 9th Dist. Summit No. 25977, 2012–Ohio–1443, ¶ 8; State v.

Roberts, 9th Dist. Summit No. 20355, 2001 WL 490014, *2 (May 9, 2001).                   Thus, after

thoroughly reviewing the trial court's decision, we conclude that Sgt. Murphy acted upon

reasonable suspicion based upon the information provided by the citizen informant, and the

investigatory stop of Woody's vehicle was constitutionally valid.

       {¶13} As such, Woody’s first and second assignments of error are overruled.

                                     Assignment of Error III

       The trial court erred when it sentenced the Appellant to serve more than the
       minimum mandatory jail sanction then required by law.

       {¶14} In his third assignment of error, Woody argues that the trial court abused its

discretion by sentencing him to a jail term that was higher than the minimum mandatory

sentence. We disagree.

       {¶15} A trial court generally has discretion in misdemeanor sentencing.                 State v.

Schneider, 9th Dist. Wayne No. 09CA0026, 2009–Ohio–6025, ¶ 6. “Unless a sentence is

contrary to law, we review challenges to misdemeanor sentencing for an abuse of discretion.”

Id.   An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
                                                  7


       {¶16} Woody pled no contest and was found guilty of operating a motor vehicle while

under the influence of alcohol, as a second offense within six years, in violation of R.C.

4511.19(A)(1)(a). Driving under the influence of alcohol is a first degree misdemeanor. R.C.

4511.19(G)(1)(a). A misdemeanor of the first degree is punishable by no more than 180 days in

jail. R.C. 2929.24(A)(1). R.C. 4511.19(G)(1)(b)(i) imposes a mandatory minimum jail term of

ten consecutive days on offenders, such as Woody, who have previously been convicted of or

pled guilty to one violation of R.C. 4511.19(A) or R.C. 4511.19(B) within the past six years.

However, a trial court “may impose a jail term in addition to the ten-day mandatory jail term.”

Id. Thus, the trial court in this matter was permitted by statute to impose a sentence on Woody

ranging from ten days to 180 days in jail. As the trial court sentenced Woody to 180 days in jail

with 150 days suspended on conditions, Woody was sentenced to serve 30 days in jail, which

falls squarely within the sentencing guideline.

       {¶17} Woody contends that the trial court failed to consider the criteria listed in R.C.

2929.22 prior to sentencing him to a jail term above the mandatory minimum. It is well-

recognized that a trial court abuses its discretion when, in imposing a sentence for a

misdemeanor, it fails to consider the factors set forth in R.C. 2929.22. State v. Smith, 9th Dist.

No. Wayne 05CA0006, 2006–Ohio–1558, ¶ 21; see also State v. Jones, 9th Dist. Wayne No.

02CA0018, 2003–Ohio–20, ¶ 7. “A trial court is presumed to have considered the factors set

forth in R.C. 2929.22 ‘absent an affirmative showing to the contrary.’” State v. Endress, 9th

Dist. Medina No. 08CA0011–M, 2008–Ohio–4498, ¶ 4, quoting Smith at ¶ 21. “The burden of

demonstrating this error falls to the appellant.” Id., citing Knapp v. Edwards Laboratories, 61

Ohio St.2d 197, 199 (1980). Moreover, “[w]hen a presentence investigation report is ordered,

‘[w]e presume that the court utilized the information in the report when issuing its sentence.’”
                                                 8


State v. Pope, 9th Dist. Medina No. 13CA0031–M, 2014–Ohio–2864, ¶ 14, quoting State v.

Coryell, 9th Dist. Summit No. 24338, 2009–Ohio–1984, ¶ 19.

       {¶18} Woody has failed to identify anything in the record suggesting that the trial court

disregarded the sentencing factors, and the review of the record fails to yield an affirmative

showing that the trial court failed to consider the factors set forth in R.C. 2929.22. Furthermore,

the sentencing hearing transcript reflects that the trial court reviewed the presentence

investigation report prior to sentencing. That report contained accounts of Woody’s past OVIs,

which the trial court found concerning.       In light of Woody’s history of driving under the

influence of alcohol, and absent any indication that the trial court failed to consider the

sentencing factors set forth in R.C. 2929.22, Woody’s argument that the trial court’s sentence

constituted an abuse of discretion is not well-taken.

       {¶19} Accordingly, Woody’s third assignment of error is overruled.

                                                III.

       {¶20} With all of Woody’s assignments of error having been overruled, the judgment of

the Oberlin Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Court, 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.
                                                9


       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.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL E. STEPANIK, JACK W. BRADLEY, and R.J. BUDWAY, Attorneys at Law, for
Appellant.

FRANK CARLSON, Prosecuting Attorney, for Appellee.
