[Cite as State v. Carter, 2013-Ohio-5153.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
WILLIAM CARTER                               :       Case No. 2013CA00036
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Canton Municipal
                                                     Court, Case No. 2012 TRC 08354



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 18, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TASHA FORCHIONE                                      RHYS B. CARTWRIGHT-JONES
218 Cleveland Avenue, SW                             42 North Phelps Street
P.O. Box 24218                                       Youngstown, OH 44503-1130
Canton, OH 44701-4218
Stark County, Case No. 2013CA00036                                                         2

Farmer, P.J.

       {¶1}    On December 28, 2012, Ohio State Highway Patrol Trooper Duane

Shephard stopped appellant, William Carter, for speeding. Appellant was travelling 56

m.p.h. in a 35 m.p.h. zone.     Upon investigation, Trooper Shephard conducted field

sobriety tests. Appellant was subsequently charged with operating a motor vehicle

while under the influence in violation of R.C. 4511.19 and speeding in violation of R.C.

4511.21.

       {¶2}    On January 30, 2013, appellant filed a motion to suppress, claiming an

unreasonable arrest. A hearing was held on February 14, 2013. By judgment entry

filed same date, the trial court denied the motion.

       {¶3}    On February 14, 2013, appellant pled no contest to the charges.            By

judgment entry filed same date, the trial court found appellant guilty and sentenced him

to one hundred eighty days in jail, all but three days suspended. Appellant was ordered

to perform twenty-five hours of supervised community service work in lieu of jail days.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶5}    "THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION

TO SUPPRESS."

                                             I

       {¶6}    Appellant claims the trial court erred in denying his motion to suppress.

We disagree.
Stark County, Case No. 2013CA00036                                                            3


       {¶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 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist. 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 committing an error of law. State

v. Williams, 86 Ohio App.3d 37 (4th Dist. 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 (8th Dist. 1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

       {¶8}   In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior

even though there is no probable cause to make an arrest." However, for the propriety
Stark County, Case No. 2013CA00036                                                      4

of a brief investigatory stop pursuant to Terry, the police officer involved "must be able

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

from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory

stop "must be viewed in the light of the totality of the surrounding circumstances"

presented to the police officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph

one of the syllabus.   Probable cause to arrest focuses on the prior actions of the

accused. Probable cause exists when a reasonable prudent person would believe that

the person arrested had committed a crime. State v. Timson, 38 Ohio St.2d 122 (1974).

A determination of probable cause is made from the totality of the circumstances.

Factors to be considered include an officer's observation of some criminal behavior by

the defendant, furtive or suspicious behavior, flight, events escalating reasonable

suspicion into probable cause, association with criminals, and location.      Katz, Ohio

Arrest, Search and Seizure, Sections 2:13-2:19, at 59-64 (2009 Ed.). As the United

States Supreme Court stated when speaking of probable cause "we deal with

probabilities. These are not technical; they are the factual and practical considerations

of everyday life in which reasonable and prudent men, not legal technicians, act."

Brinegar v. United States, 338 U.S. 160, 175 (1949).

      {¶9}   Appellant does not dispute the fact that Trooper Shephard had probable

cause to stop appellant as he was travelling 56 m.p.h. in a 35 m.p.h. zone. Appellant

points out that although he was speeding, there were no other factors to indicate

drunkenness such as erratic driving, weaving, and lane changes; therefore, appellant

argues a lack of probable cause to conduct field sobriety tests and arrest him for

operating a motor vehicle while under the influence.
Stark County, Case No. 2013CA00036                                                      5

       {¶10} In support of his position, appellant cites the case of State v. Derov, 7th

Dist. Mahoning No. 07 MA 71, 2009-Ohio-5513. In Derov, the defendant was stopped

for expired tags on her license plate. The trooper did not observe any erratic driving.

Upon speaking with the defendant, the trooper smelled a strong odor of alcohol

emanating from the defendant's vehicle and person. The defendant did not exhibit any

physical signs of impairment due to alcohol consumption. The trooper conducted field

sobriety tests wherein he observed the defendant's eyes to be glassy and red. The

defendant failed two of the three tests and thereafter, admitted to having consumed

alcohol. As a result, the defendant was placed under arrest for operating a motor

vehicle while under the influence. A subsequent motion to suppress was denied. The

defendant pled no contest and was sentenced. The defendant appealed. The Derov

court reversed the denial of the motion to suppress, finding the following at ¶ 16: "The

facts of this case are strikingly similar to those in Reed, supra. Based on our holding in

Reed, we must conclude that the Trooper in this case lacked reasonable suspicion to

conduct the field sobriety tests."

       {¶11} The facts in Derov where in fact very similar to the facts in State v. Reed,

7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075. The Reed defendant was stopped for

loud exhaust and improperly tinted windows. The arresting officer detected a slight odor

of alcohol and red eyes. After admitting to consuming alcohol, field sobriety tests were

administered which the defendant failed. Following his arrest and motion to suppress

which was denied, appellant pled no contest and was sentenced. Upon appeal, the

Reed court reviewed several appellate decisions, including State v. Dixon, 2nd Dist.

Greene No. 2000-CA-30, 2000 WL 1760664 (December 1, 2000), and State v. Spillers,
Stark County, Case No. 2013CA00036                                                    6


2nd Dist. Darke No. 1504, 2000 WL 299550 (March 24, 2000), and reversed the denial

of the motion to suppress, stating the following at ¶ 27:



              There are countless other cases that deal with distinguishable facts

       which would support an officer's decision to detain a person in order to

       conduct field sobriety cases. However, those cases would not apply to

       this situation as the officer failed to give any evidence that Reed not only

       drank intoxicating beverages, but that he was also impaired. The trial

       court erred by failing to grant Reed's motion to suppress any evidence that

       stemmed from his illegal detainment.



       {¶12} In reaching this conclusion, the Reed court at ¶ 10-11 quoted "a list of

factors collected from various cases which may be considered by a court in determining

whether an officer had reasonable suspicion to administer field sobriety tests under the

totality of the circumstances" from State v. Evans, 127 Ohio App.3d 56, fn. 2 (11th

Dist.1998):



              "(1) the time of day of the stop (Friday or Saturday night as

       opposed to, e.g., Tuesday morning); (2) the location of the stop (whether

       near establishments selling alcohol); (3) any indicia of erratic driving

       before the stop that may indicate a lack of coordination (speeding,

       weaving, unusual braking, etc.); (4) whether there is a cognizable report

       that the driver may be intoxicated; (5) the condition of the suspect's eyes
Stark County, Case No. 2013CA00036                                                      7


      (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability to

      speak (slurred speech, overly deliberate speech, etc.); (7) the odor of

      alcohol coming from the interior of the car, or, more significantly, on the

      suspect's person or breath; (8) the intensity of that odor as described by

      the officer ('very strong,['] 'strong,' 'moderate,' 'slight,' etc.); (10) any

      actions by the suspect after the stop that might indicate a lack of

      coordination (dropping keys, falling over, fumbling for a wallet, etc.); and

      (11) the suspect's admission of alcohol consumption, the number of drinks

      had, and the amount of time in which they were consumed, if given. All of

      these factors, together with the officer's previous experience in dealing

      with drunken drivers, may be taken into account by a reviewing court in

      determining whether the officer acted reasonably."



      {¶13} During the suppression hearing held on February 14, 2013, Trooper

Shephard testified that around 2:30 a.m. on a Friday, he observed and clocked

appellant traveling 56 m.p.h. in a 35 m.p.h. zone. T. at 6-7. There was "a little bit of

snow on the ground."     T. at 10.   Trooper Shephard opined appellant's speed was

unreasonable for the conditions. Id. Upon speaking with appellant, Trooper Shephard

detected an odor of alcohol coming from the vehicle.        T. at 10, 28.    In his report

admitted as Exhibit 2, Trooper Shephard noted appellant's eyes were red and

bloodshot. T. at 33. Appellant denied that he had been drinking. T. at 10. Trooper

Shephard conducted three field sobriety tests and appellant indicated several clues of

impairment. T. at 16.
Stark County, Case No. 2013CA00036                                                   8

      {¶14} As noted by Evans and quoted in Reed, supra, speeding is an indication

of erratic driving. We find this fact to be distinguishable from the cases cites above

which involved expired license plate tags, loud exhaust, and improperly tinted windows.

In the case sub judice, appellant was exhibiting erratic driving (speeding) on snowy

roads at 2:30 a.m. Upon speaking with appellant, Trooper Shephard detected an odor

of alcohol and red, bloodshot eyes.

      {¶15} Based on the totality of the circumstances, we believe Trooper Shephard

had a reasonable and articulable suspicion to request appellant to submit to field

sobriety testing. Once the tests were performed and appellant indicated several clues,

Trooper Shephard had sufficient probable cause to arrest appellant for operating a

motor vehicle while under the influence.

      {¶16} Upon review, we find the trial court did not err in denying appellant's

motion to suppress.
Stark County, Case No. 2013CA00036                                           9


      {¶17} The judgment of the Canton Municipal Court of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                       _______________________________
                                       Hon. Sheila G. Farmer



                                       _______________________________
                                       Hon. John W. Wise



                                       _______________________________
                                       Hon. Craig R. Baldwin



SGF/sg 115
[Cite as State v. Carter, 2013-Ohio-5153.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
WILLIAM CARTER                                 :
                                               :
        Defendant-Appellant                    :       CASE NO. 2013CA00036




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer



                                               _______________________________
                                               Hon. John W. Wise



                                               _______________________________
                                               Hon. Craig R. Baldwin
