[Cite as State v. Johnson, 2015-Ohio-3449.]


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

STATE OF OHIO                                        C.A. No.      27558

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JASON M. JOHNSON                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   CR 14 06 1745

                                 DECISION AND JOURNAL ENTRY

Dated: August 26, 2015



        MOORE, Judge.

        {¶1}     Plaintiff-Appellant the State of Ohio appeals from the judgment entry issued by

the Summit County Court of Common Pleas. We reverse and remand the matter for proceedings

consistent with this opinion.

                                                I.

        {¶2}     Defendant-Appellee Jason Johnson was indicted in June 2014, on one count of

operating a vehicle under the influence of alcohol or drugs (“OVI”) in violation of R.C.

4511.19(A)(1)(a). The indictment included an allegation that Mr. Johnson had pleaded guilty or

been convicted of five or more previous violations of R.C. 4511.19 in the past 20 years, thus the

offense was a felony of the fourth degree. Additionally, the count contained a specification

pursuant to R.C. 2941.1413 related to his alleged prior convictions. Mr. Johnson was also

indicted on one count of driving under financial responsibility suspension or cancellation in

violation of R.C. 4510.16.
                                                 2


       {¶3}    Mr. Johnson filed a motion to dismiss the specification to count one, only

asserting that the R.C. 2941.1413 specification was facially unconstitutional as it violated the

Equal Protection Clause. In so doing, Mr. Johnson cited the Eighth District’s opinion in State v.

Klembus, 8th Dist. Cuyahoga No. 100068, 2014-Ohio-3227. Additionally, Mr. Johnson filed a

motion to suppress arguing that the State would be unable to demonstrate that he had five prior

OVI convictions. Thus, he maintained that there would be no lawful reason to introduce

evidence of the convictions and the State should be precluded from introducing evidence of his

prior convictions. The State responded in opposition to both motions.

       {¶4}    The trial court held a hearing on the motion to suppress. At the hearing, Mr.

Johnson’s counsel agreed that the only prior conviction of the five that he was challenging was

the 2000 conviction from Akron Municipal Court.           At the conclusion of the hearing, Mr.

Johnson’s counsel indicated that he would “rely upon our motion[,]” with the respect to the

motion to dismiss.

       {¶5}    The trial court issued a single entry granting both defense motions. In addressing

the motion to dismiss, the trial court “decline[d] to decide the constitutional challenge as it

f[ound] that the State [] failed to carry its burden regarding the requisite number of convictions

and [dismissed] the specification to Count I of the indictment.” In so doing, the trial court

concluded that “because of the record keeping in this case, it is not at all clear to this Court that

[Mr. Johnson] was convicted of an OVI offense on September 6, 2000.”

       {¶6}    In granting the motion to suppress, the trial court found that if Mr. Johnson had

five convictions, evidence of the convictions could “be seen as a way to meet the elements of

R.C. 4511.19’s charge for a repeat offender.” However, as there was not evidence of five prior
                                                  3


convictions, the trial court concluded that evidence of his prior convictions should be excluded

pursuant to Evid.R. 404(B).

       {¶7}    The State filed a notice of appeal pursuant to R.C. 2945.67(A) and Crim.R. 12(K),

stating that it was appealing “from the Judgment Entry granting the motion to Suppress entered

October 16, 2014.” Mr. Johnson subsequently filed a motion to strike references and argument

in the State’s brief related to the motion to dismiss, as the State failed to indicate in its notice of

appeal that it was appealing from that portion of the entry as well. This Court deferred decision

on that issue. We will now proceed to resolve the motion to strike prior to addressing the State’s

assignment of error.

                                                  II.

Scope of the Appeal

       {¶8}    Mr. Johnson argues in his motion to strike that the State limited its appeal to the

portion of the trial court’s entry granting the motion to suppress. He bases this contention upon

language in App.R. 3(D) and one of our cases, Buckeye Union Ins. Co. v. Stiffler, 81 Ohio

App.3d 227, 231 (9th Dist.1992).

       {¶9}    App.R. 3(D) provides in pertinent part that, “[t]he notice of appeal shall specify

the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed

from; and shall name the court to which the appeal is taken.” In Buckeye Union Ins. Co., this

Court cited App.R. 3(D) and determined that Buckeye Union limited its appeal to the judgment

dismissing one of the parties from the action because the notice of appeal indicated it was

appealing “from the order dismissing Defendant Ralph E. Mooney from the action[.]”

(Emphasis omitted.) Id. at 231. We concluded that the foregoing language meant that Buckeye

Union had excluded the other rulings made in the same judgment entry from its appeal. Id.
                                                  4


          {¶10} Here, the State in its notice of appeal indicated that it was appealing “from the

Judgment Entry granting the Motion to Suppress entered October 16, 2014.” Based on this, Mr.

Johnson argues that the State has limited its appeal to the portion of the judgment entry granting

the motion to suppress. While we agree that there are similarities between this matter and

Buckeye Union Ins. Co. that would support Mr. Johnson’s position, we nonetheless conclude that

the State has appealed from the entirety of the entry. Given the procedural irregularities that

occurred below, we are not inclined to so narrowly read the State’s notice of appeal. The trial

court granted Mr. Johnson’s motion to dismiss based on arguments made at the suppression

hearing and in the motion to suppress. Those arguments were not contained in his motion to

dismiss, which was based on a constitutional challenge. The trial court declined to address the

merits of Mr. Johnson’s constitutional challenge, and, instead, granted the motion to dismiss

based upon arguments made at the suppression hearing and in the motion to suppress. In light of

the foregoing unique circumstances, and the fact that the State indicated it was appealing from

the entry granting the motion to suppress, which included the ruling on the motion to dismiss,

this case is not controlled by Buckeye Union Ins. Co. and we overrule Mr. Johnson’s motion to

strike.

                                                 III.

                                   ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SUPPRESS
          AND DISMISSING THE SPECIFICATION TO COUNT ONE OF THE
          INDICTMENT.

          {¶11} The State, in its sole assignment of error challenges the trial court’s grant of the

motion to suppress and the dismissal of the R.C. 2941.1413 specification to count one of the

indictment. While the State focuses on whether a single conviction from September 6, 2000 was
                                                  5


admissible, we believe it is necessary to sua sponte address more troubling problems with the

trial court’s decision.

Ruling on the Motion to Dismiss

        {¶12} Mr. Johnson filed a motion to dismiss the specification at issue contending it was

facially unconstitutional as it violated the Equal Protection Clause. The trial court declined to

address the issue, instead concluding that “the State [] failed to carry its burden regarding the

requisite number of convictions[,]” and therefore the court dismissed the specification to Count

one of the indictment. Specifically, the trial court found that “it is not at all clear to this Court

that [Mr. Johnson] was convicted of an OVI offense on September 6, 2000.”

        {¶13} “In reviewing the propriety of a criminal indictment issued under Ohio law, a trial

court may determine only whether the indictment is valid on its face[.] A motion to dismiss an

indictment tests the sufficiency of the indictment, without regard to the quantity or quality of

evidence that may be produced by either [the State] or the defendant.” (Internal citations and

quotations omitted.) Akron v. Buzek, 9th Dist. Summit No. 20728, 2002 WL 712731, *1, 2002-

Ohio-1960 (Apr. 24, 2002).

        {¶14} Here Mr. Johnson did not assert, nor did the trial court find that the specification

was invalid on its face. Moreover, “[t]he Ohio Rules of Criminal Procedure [] do not allow for

‘summary judgment’ on an indictment prior to trial.” (Citations omitted.) Id. Here, essentially

the trial court determined that the State would be unable to present sufficient evidence to convict

Mr. Johnson of the specification. Such is not a proper basis for granting a motion to dismiss

prior to trial. See id; see also State v. Scott, 174 Ohio App.3d 446, 2007-Ohio-7065, ¶ 9 (1st

Dist.) (“If a motion to dismiss requires the examination of evidence beyond the face of the

indictment, the issue must be presented in a motion for acquittal at the close of the state’s case.”).
                                                 6


        {¶15} Accordingly, to the extent the State has argued that the trial court erred in

dismissing the specification to Count one, we agree. We take no position on the merits of Mr.

Johnson’s challenge to the constitutionality of the specification, as that issue was never resolved

by the trial court.

Ruling on the Motion to Suppress

        {¶16} Mr. Johnson asserted below in his motion to suppress that he did not have five

prior OVI convictions, and therefore, could not be convicted of a felony violation for the instant

offense. See R.C. 4511.19(G)(1)(d) (requiring five convictions in the past twenty years). Citing

State v. Allen, 29 Ohio St.3d 53, 55 (1987), he argued that, because he could not be convicted of

a felony violation, the State should be prohibited from introducing evidence of any of his prior

convictions, as the fact of prior convictions would only increase the penalty of the instant

offense, but not the degree.

        {¶17} The trial court concluded that “the danger of prejudice to [Mr. Johnson] of

admitting his prior convictions may ‘incite the jury to convict based on past misconduct rather

than restrict their attention to the offense at hand[,]’ something the Rules of Evidence strictly

prohibit.” Based upon that finding, the trial court granted Mr. Johnson’s motion to suppress. In

the portion of the entry ruling on the motion to suppress, the trial court did not specifically

mention Mr. Johnson’s September 6, 2000 conviction, which was the conviction expressly

challenged at the hearing on the motion to suppress. Instead, it suppressed evidence of all of Mr.

Johnson’s prior convictions. It appears that the trial court essentially decided that, because it

believed that there was not sufficient evidence of the September 6, 2000 conviction, the State

would be unable to prove Mr. Johnson had five prior convictions (something it would not have to

do until trial), and, because of that, suppressed all evidence of Mr. Johnson’s prior convictions.
                                               7


       {¶18} “A motion to suppress [i]s a [d]evice used to eliminate from the trial of a criminal

case evidence which has been secured illegally, generally in violation of the Fourth Amendment

(search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth

Amendment (right to assistance of counsel, right of confrontation etc.), of [the] U.S.

Constitution.”   (Internal quotations omitted.)    State v. Patterson, 9th Dist. Medina No.

09CA0014-M, 2009-Ohio-6953, ¶ 7, quoting Hilliard v. Elfrink, 77 Ohio St.3d 155, 158 (1996).

“In extremely limited instances, the [Supreme] Court [of Ohio] has recognized a motion to

suppress as a proper vehicle for non-Fourth, Fifth, or Sixth Amendment challenges.” Patterson

at ¶ 7. “The Court has cautioned, however, that the principles developed in those cases must be

narrowly construed because they represent specific narrow departures * * * by [the Court] from

settled law regarding suppression of evidence.” (Internal quotations and citation omitted.) Id.

“As such, unless a specific, recognized departure from the settled law applies, a motion to

suppress may only be used to challenge evidence obtained in violation of one’s Fourth, Fifth, or

Sixth Amendment rights.” Id.

       {¶19} Mr. Johnson’s motion to suppress was not based on a constitutional challenge to

his Fourth, Fifth, or Sixth Amendment rights; instead, it was centered around the Ohio Rules of

Evidence.   Accordingly, Mr. Johnson’s challenge is not appropriately addressed through a

motion to suppress. See id. at ¶ 7-9. Instead, the motion is more properly characterized as a

motion in limine. See State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, ¶ 2-3.

Thus, the trial court erred in characterizing the motion as a motion to suppress and thereafter

granting it as a motion to suppress.

       {¶20} To the extent the State has argued the trial court erred in granting the motion to

suppress, we agree. The matter is remanded to the trial court for it to consider the arguments
                                                 8


made by Mr. Johnson in his motion to dismiss and to consider Mr. Johnson’s motion to suppress

as a motion in limine.

       {¶21} The State’s assignment of error is sustained.

                                                III.

       {¶22} In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas, and remand the matter for proceedings consistent with this opinion.

                                                                              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 Court of Common

Pleas, 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.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                       9


HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

JACK MORRISON, JR. and THOMAS R. HOULIHAN, Attorneys at Law, for Appellee.
