[Cite as State v. Wem, 2014-Ohio-2326.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 13 CA 20
SHAWN C. WEM

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Municipal Court,
                                              Case No. TRC 1300616


JUDGMENT:                                    Affirmed



DATE OF JUDGMENT ENTRY:                       May 29, 2014



APPEARANCES:

For Plaintiff-Appellee                       For Defendant-Appellant

CHRISTIE M. L. THORNSLEY                     JEFFREY G. KELLOG
ASSISTANT LAW DIRECTOR                       ASSISTANT PUBLIC DEFENDER
760 Chestnut Street                          239 North Fourth Street
Coshocton, Ohio 43812                        Coshocton, Ohio 43812
[Cite as State v. Wem, 2014-Ohio-2326.]


Wise, J.

        {¶1}    Appellant appeals the July 29, 2013, decision of the Coshocton County

Municipal Court denying his motion to suppress.

        {¶2}    Appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

        {¶3}    On April 24, 2013, Rickie Workman an employee of the Coshocton Village

Inn and Suites called the Coshocton County Sheriff to report a possible intoxicated

driver. Mr. Workman identified himself and his place of employment and advised the

dispatcher that a male who appeared to be intoxicated, later identified as Appellant

Shawn C. Wem, came into the hotel and took a large number of brochures from a rack

located by the front door. (T. at 6). This rack of brochures is about 15 feet from the

clerk's desk. (T. at 9). Mr. Workman stated that Appellant was stumbling and staggering.

At one point, Appellant nearly fell down as he was looking at the brochures. (T. at 6)

Appellant never spoke to Mr. Workman and never got close enough to him for Mr.

Workman to smell the odor of alcohol. (T. at 6). Mr. Workman further testified that when

Appellant left the lobby, he walked north. Mr. Workman knew there were no vehicles

parked in that direction, so he went to the front door to watch Appellant. (T. at 6). He

observed Appellant turn around and walk to the south end of the hotel. Appellant then

got into his vehicle and drove toward McDonald's. Mr. Workman went back into the

hotel and contacted the Sheriff’s Office. (T. at 6).

        {¶4}    The Dispatch Narrative stated: "Rick Workman of Coshocton Village Inn

and Suites advised a male subject came into the hotel and took a bunch of brochures,
Coshocton County, Case No. 13 CA 20                                                   3


got into a silver Jeep Liberty and drove over to McDonalds drive-thru. FOE9857 was the

license plate. Unit 42 went out for a test." (T. at 19).

       {¶5}      Deputy Adam Mast was dispatched to investigate. Dispatch advised

Deputy Mast that "an employee of Coshocton Village Inn and Suites said a man had

come in and picked up a bunch of brochures from their brochure rack and he appeared

to be drunk and got in his silver or gray Jeep and wound up in the McDonald's parking

lot. And the clerk said he appeared to be intoxicated." (T. at 14).

       {¶6}      Deputy Mast testified that when he arrived at McDonald's, Appellant's

vehicle was stopped in the drive through. Deputy Mast parked his cruiser and

approached Appellant's vehicle. Deputy Mast did not activate his sirens or lights. (T. at

16-17). Deputy Mast advised Appellant that he had received a report that Appellant was

under the influence and asked that Appellant pull over so he could conduct field sobriety

tests to see if Appellant was able to drive. (T. at 15-16). Deputy Mast reported that he

could not smell the odor of alcohol at this time. Appellant pulled over into a parking spot.

(T. at 16-17).

       {¶7}      Appellant was subsequently arrested and taken to the Coshocton County

Jail for a breath test.

       {¶8}      On April 24, 2013, Appellant was charged two counts of Operating a

Vehicle    under     the   Influence   in   violation      of   R.C.   §4511.19(A)(1)(a)   and

§4511.19(A)(1)(d).

       {¶9}      Appellant was set for arraignment on April 30, 2013. Appellant failed to

appear on that date so a bench warrant was issued. Appellant was picked up on the
Coshocton County, Case No. 13 CA 20                                                   4


bench warrant and appeared for the arraignment on May 10, 2013. Appellant entered a

not guilty plea.

       {¶10} On July 12, 2013, Appellant filed a motion to suppress.

       {¶11} On July 17, 2013, a hearing on the motion to suppress was held.

       {¶12} On July 29, 2013, the trial court denied Appellant's motion to suppress.

       {¶13} On August 7, 2013, Appellant entered a no contest plea.

       {¶14} Appellant now appeals, assigning the following error:

                                ASSIGNMENT OF ERROR

       {¶15} “I. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE.”

                                                  I.

       {¶16} Appellant argues that the trial court erred in finding reasonable suspicion

of criminal activity in this case. We disagree.

       {¶17} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist .1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996–Ohio–134,

661 N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d

142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court's conclusion, whether the trial court's decision meets the applicable legal
Coshocton County, Case No. 13 CA 20                                                 5

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

       {¶18} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

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

court's findings of fact are against the manifest weight of the evidence. See, 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(4th Dist 1991). 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. See, Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or

final issues raised in a 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, 96, 620 N.E.2d 906 (8th Dist.1994).

       {¶19} In the case sub judice, Appellant challenges the stop of his vehicle. An

investigative stop does not violate the Fourth Amendment to the United States

Constitution if the police have reasonable suspicion that “the person stopped is, or is

about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417,

101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Reasonable suspicion can arise from information

that is less reliable than that required to show probable cause. Alabama v. White, 496

U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). But it requires something more

than an “inchoate and unparticularized suspicion or hunch.” Terry v. Ohio, 392 U.S. 1,
Coshocton County, Case No. 13 CA 20                                                 6


27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[T]he Fourth Amendment requires at least a

minimal level of objective justification for making the stop.” Illinois v. Wardlow, 528 U.S.

119, 123, 120 S.Ct. 673, 145 L.Ed .2d 570 (2000).

       {¶20} In the case sub judice, the police received a call from an identified

informant. Where the information possessed by the police before the stop was solely

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

examination of the weight to be given the tip and the reliability of the tip. Id. at 299, 720

N.E.2d 507. Courts have generally identified three classes of informants: the

anonymous informant, the known informant from the criminal world who has provided

previous reliable tips, and the identified citizen informant. Id. at 300, 720 N.E.2d 507. An

identified citizen informant may be highly reliable, and therefore a strong showing as to

other indicia of reliability may be unnecessary. Id. Thus, courts have routinely credited

the identified citizen informant with greater reliability. Id.

       {¶21} Here, Appellant does not contest that the caller in this case was a reliable

identified citizen informant. Rather, Appellant asserts the officer lacked sufficient

probable cause to effectuate the stop as the officer did not personally observe

Appellant's impaired driving.

       {¶22} In Maumee v. Weisner (1999), 87 Ohio St.3d 295, the Ohio Supreme

Court held:

       {¶23} “Having resolved this issue, we emphasize that our categorization of the

informant as an identified citizen informant does not itself determine the outcome of this

case. Instead it is one element of our totality of the circumstances review of this

informant's tip, weighing in favor of the informant's reliability and veracity. Continuing
Coshocton County, Case No. 13 CA 20                                              7


our review, we believe that the informant's basis of knowledge also furthers his

credibility. Typically, a personal observation by an informant is due greater reliability

than a secondhand description. Gates, 462 U.S. at 233-234, 103 S.Ct. at 2329-2330, 76

L.Ed.2d at 545. Here, the citizen's tip constituted an eyewitness account of the crime.

His version of that night was not mere rumor or speculation. It was a firsthand report of

the events as they happened. Also significant is the fact that the tip was an exact relay

of the circumstances as they were occurring. Immediately upon witnessing the events,

the citizen described them to the dispatcher. This immediacy lends further credibility to

the accuracy of the facts being relayed, as it avoids reliance upon the informant's

memory.

       {¶24} “We also believe the informant's motivation supports the reliability of his

tip. According to the evidence, the informant reported that Weisner was weaving all over

the road. He made this report from the perspective of a motorist sharing the road with

another motorist driving erratically. We can reasonably infer from these circumstances

that he considered Weisner a threat to him personally, as well as to other motorists and

that he was motivated, therefore, not by dishonest and questionable goals, but by his

desire to eliminate a risk to the public's safety.

       {¶25} “Taken together, these factors persuade us that the informant's tip is

trustworthy and due significant weight. The informant was an identified citizen who

based his knowledge of the facts he described upon his own observations as the events

occurred. As a result, his tip merits a high degree of credibility and value, rendering it

sufficient to withstand the Fourth Amendment challenge without independent police
Coshocton County, Case No. 13 CA 20                                              8


corroboration. Accordingly, the dispatch based upon this tip was issued on sufficient

facts to justify Patrolman Roberts's investigative stop.”

       {¶26} “The simple corroboration of neutral details describing the suspect or other

conditions existing at the time of the tip, without more, will not produce reasonable

suspicion for an investigatory stop.” State v. Ramsey (Sept. 20, 1990), Franklin App No.

89AP-1298, unreported. “A tip which standing alone would lack sufficient indicia of

reliability may establish reasonable suspicion to make an investigatory stop if it is

sufficiently corroborated through independent police work.” Id.

       {¶27} Upon review, we find that Mr. Workman’s statements to the dispatcher

included sufficient information to provide reasonable suspicion that Appellant was

operating a motor vehicle while under the influence of alcohol. Mr. Workman provided

the dispatcher with the make and color of Appellant's vehicle, along with the license

plate number. Mr. Workman advised dispatch that he witnessed Appellant stumbling,

staggering and nearly falling down in the hotel lobby. He further relayed to dispatch that

he followed Appellant outside where he observed Appellant head in the wrong direction

before eventually locating his car and driving away in the direction of the McDonald’s

restaurant.

       {¶28} Accordingly, the trial court did not err in finding there was reasonable

articulable suspicion for the stop based on suspicion of criminal activity.
Coshocton County, Case No. 13 CA 20                                  9


      {¶29} Appellant’s sole Assignment of Error is overruled.

      {¶30} For the foregoing reasons, the judgment of the Municipal Court of

Coshocton County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



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