[Cite as State v. Elam, 2014-Ohio-1666.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
SHAUN ELAM                                   :       Case No. 13-CA-89
                                             :
        Defendant-Appellant                  :       OPINION

                                                     NUNC PRO TUNC


CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 13TRC05498




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 17, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

J. MICHAEL KING                                      BRYAN BOWEN
40 West Main Street                                  338 South High Street
4th Floor                                            Columbus, OH 43215
Newark, OH 43055
Farmer, J.
Lickking County, Case No. 13-CA-89                                                      2


      {¶1}   On June 8, 2013, Ohio State Highway Patrol Trooper Daniel Moran, Jr.,

stopped appellant, Shaun Elam, for speeding.           Upon investigation, Trooper Moran

asked appellant to perform field sobriety tests. Appellant was subsequently charged

with speeding in violation of R.C. 4511.21 and driving under the influence in violation of

R.C. 4511.19.

      {¶2}   On July 8, 2013, appellant filed a motion to suppress, claiming Trooper

Moran did not have probable cause to arrest him. A hearing was held on August 21,

2013. By judgment entry filed August 23, 2013, the trial court denied the motion.

      {¶3}   On August 29, 2013, appellant pled no contest to the charges.             By

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

to thirty days in jail, twenty-seven days suspended.

      {¶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 DEFENDANT-APPELLANT'S

MOTION TO SUPPRESS EVIDENCE."

                                            I

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

Trooper Moran lacked sufficient probable cause to arrest him. We disagree.

      {¶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
Lickking County, Case No. 13-CA-89                                                            3

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}   Probable cause to arrest 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
Lickking County, Case No. 13-CA-89                                                       4


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}   "The standard for determining whether the police have probable cause to

arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient

information, derived from a reasonable trustworthy source of facts and circumstances to

cause a prudent person to believe that the suspect was driving under the influence."

State v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶ 22.

      {¶10} The     issue    is   whether   appellant's   actions   and Trooper Moran's

observations lead to probable cause to arrest.        We note each case is determined

individually from the facts and observations presented.

      {¶11} In its August 23, 2013 judgment entry denying the motion to suppress, the

trial court included a detailed discussion of the facts leading to Trooper Moran's decision

to arrest appellant, and concluded the following:



              Although the Court believes the facts and circumstances in this

      case provide the thinnest of margins to establish probable cause to arrest

      the defendant for OVI, the holding in Lominack, combined with the factors

      enumerated in Evans and adopted in Shullo by the Fifth District Court of

      Appeals, requires that there can be no conclusion but that Trooper Moran

      had probable cause to arrest the defendant and request that he submit to

      a breath alcohol test.
Lickking County, Case No. 13-CA-89                                                     5


       {¶12} Appellant was first observed traveling on U.S. Route 40 over the speed

limit, 67 m.p.h. in a 55 m.p.h. zone. T. at 6. When asked where he was coming from,

appellant had to correct himself from "Wal-Mart Road" to "Wal-Mart." T. at 7. Trooper

Moran observed that appellant had red glassy eyes and his cheeks were red, and

detected an odor of alcohol coming from his person. T. at 7-8. Although appellant

originally denied drinking, he changed his story and admitted he had consumed two

beers and was coming from Easton. T. at 8. Trooper Moran had appellant perform

three field sobriety tests. Appellant was administered the horizontal gaze nystagmus

test and six clues were observed, indicating impairment. T. at 15-16. Appellant also

performed the one-leg stand test which he performed satisfactorily indicating only one

clue out of four, and the walk and turn test indicating only one clue out of eight. T. at

17-18. Appellant passed two of the three tests. Appellant also successfully recited the

"alphabet test" twice. T. at 19.

       {¶13} Trooper Moran testified to the following:



              Based on everything that I saw from the uh… His speed was a

       primary reason why I was stopping him, from his answers that he gave

       me, the way he smelled, the way he looked, his eyes, his cheeks, just his

       mannerisms.      Uh based on the field testing, the Horizontal Gaze

       Nystagmus, which is an involuntary motion and the other tests. I felt that

       he was over the legal limit.
Lickking County, Case No. 13-CA-89                                                        6


       {¶14} Upon review, we find from the facts observed by Trooper Moran, coupled

with appellant's own actions, the trial court did not err in denying the motion to suppress.

       {¶15} The sole assignment of error is denied.

       {¶16} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, J.

Hoffman, P.J. and

Baldwin, J. concur.




SGF/sg 321
