[Cite as State v. Jones, 2014-Ohio-3460.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :       Hon. Sheila G. Farmer, J.
                                            :       Hon. John W. Wise, J.
-vs-                                        :
                                            :
DAVID JONES, JR.                            :       Case No. 2013 AP 10 0041
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2013 CR 03 0041




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 6, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

R. SCOTT DEEDRICK                                   AARON A. SCHWARTZ
125 East High Avenue                                409 South Prospect Street
New Philadelphia, OH 44663                          Ravenna, OH 44266
Tuscarawas County, Case No. 2013 AP 10 0041                                            2

Farmer, J.

      {¶1}   On March 1, 2013, the Tuscarawas County Grand Jury indicted appellant,

David Jones, Jr., on two counts of operating a motor vehicle while under the influence in

violation of R.C. 4511.19.     Said charges arose after Tuscarawas County Sherriff's

Deputy Phillip Valdez stopped appellant for a marked lanes violation.

      {¶2}   On March 29, 2013, appellant filed a motion to dismiss and/or suppress,

claiming an illegal stop and challenging the field sobriety and breath tests. A hearing

commenced on May 6, 2013. By judgment entry filed July 18, 2013, the trial court

denied the motion.

      {¶3}   On August 5, 2013, appellant pled no contest to one of the counts. The

remaining count was dismissed. By judgment entry filed same date, the trial court found

appellant guilty. By judgment entry filed September 20, 2013, the trial court sentenced

appellant to three years of community control.

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

consideration. Assignments of error are as follows:

                                            I

      {¶5}   "THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT-

APPELLANT'S MOTION TO DISMISS AND/OR SUPPRESS WHERE THE POLICE

HAD NO PROBABLE CAUSE TO STOP THE DEFENDANT-APPELLANT FOR

OPERATING      A     VEHICLE     UNDER      THE       INFLUENCE,   IN    VIOLATION   OF

DEFENDANT-APPELLANT'S            RIGHT    TO      BE     FREE    FROM     GOVERNMENT

INTERFERENCE         GUARANTEED        BY       THE     FOURTH     AND    FOURTEENTH
Tuscarawas County, Case No. 2013 AP 10 0041                                                   3


AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND

14, ARTICLE I OF THE OHIO CONSTITUTION."

                                               II

       {¶6}   "THE TRIAL COURT ERRED WHEN IT ALLOWED UNRELIABLE

AND/OR INACCURATE TESTS TO BE ADMITTED INTO EVIDENCE."

                                              III

       {¶7}   "THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT-

APPELLANT'S MOTION TO DISMISS AND/OR SUPPRESS BECAUSE IT IS A

VIOLATION OF DUE PROCESS FOR THE STATE, IN AN OVI CASE, TO DESTROY A

URINE SAMPLE PROVIDED BY A DEFENDANT, AT THE REQUEST OF LAW

ENFORCEMENT."

                                               I

       {¶8}   Appellant claims the trial court erred in denying his motion to

dismiss/suppress as Deputy Valdez lacked sufficient probable cause and articulable

facts to warrant a stop. We disagree.

       {¶9}   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
Tuscarawas County, Case No. 2013 AP 10 0041                                                 4

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."

       {¶10} 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

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.

       {¶11} As the Supreme Court of Ohio recognized in State v. Roberts, 110 Ohio

St.3d 71, 2006-Ohio-3665, ¶ 100, a review of a trial court's findings of fact is limited:
Tuscarawas County, Case No. 2013 AP 10 0041                                            5




              "Appellate review of a motion to suppress presents a mixed

       question of law and fact. 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.

       State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.

       Consequently, an appellate court must accept the trial court's findings of

       fact if they are supported by competent, credible evidence.         State v.

       Fanning (1982), 1 Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583.

       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." State v. Burnside, 100

       Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, at ¶ 8.



       {¶12} In its judgment entry filed July 18, 2013, the trial court entered the

following pertinent findings:



              Findings of Fact

              1. Deputy Valdez observed a slow vehicle southbound on State

       Route 800. The vehicle was driving 45-50 mph on a 55 mph road.

              2. Upon following the vehicle, Deputy Valdez observed the vehicle

       driving left of center, then driving across the fog line at the right, over-

       correcting and crossing the center line again.
Tuscarawas County, Case No. 2013 AP 10 0041                                                6


               3. The first time the truck drove left of center, one-half of the vehicle

        crossed the center line.

               4. When the vehicle crossed the fog line, the truck produced a

        cloud of dust.

               5. Deputy Valdez closed the gap between the cruiser and truck in

        order to get a view of the license plate. The license plate was not lighted.

        The Deputy sought to identify the license plate number in order to call it in

        to the dispatcher, pursuant to protocol.

               6. When the deputy's cruiser came close, the driver of the truck hit

        his brakes and came to a near stop.



        {¶13} Appellant argues these specific facts are insufficient to create a valid Terry

stop.

        {¶14} Our first inquiry is whether the testimony supports the findings enumerated

by the trial court. We find that it does. Deputy Valdez testified he observed appellant

southbound on State Route 800 at a slow rate of speed with no license plate light. T. at

42. He observed that the vehicle "went left of center, it overcorrected, went off the right

side of the road past the fog line, overcorrected again and went left of center." T. at 43.

The vehicle did a "brake check," almost coming to a complete stop. T. at 43, 44, 46, 47.

        {¶15} Our second inquiry is whether the facts satisfy the applicable legal

standard.     We find going left of center, overcorrecting, crossing the fog line,

overcorrecting again, and going left of center again, coupled with the slow speed and
Tuscarawas County, Case No. 2013 AP 10 0041                                                   7


the brake check, are sufficient articulable facts to establish a reasonable suspicion of

criminal activity.

       {¶16} Upon review, we find the trial court did not err in denying the motion to

suppress.

       {¶17} Assignment of Error I is denied.

                                               II

       {¶18} Appellant claims the trial court erred in admitting the results of the breath

test machine into evidence without first holding an evidentiary hearing. We disagree.

       {¶19} Appellant concedes an objection was not made to the admission of the

Intoxilyzer 8000 test results, but argues the trial court sua sponte should have

determined its reliability pursuant to Evid.R. 104.

       {¶20} It is appellant's position that the trial court should have held an evidentiary

hearing on the reliability of the Intoxilyzer 8000 because of the ruling in State v.

Lancaster, Marietta M.C. No. 12 TRC 1615 (Aug. 14, 2013), made one month after the

trial court's denial of the motion to suppress. In Lancaster, the Marietta Municipal Court

held a full evidentiary hearing and suppressed the results of the Intoxilyzer 8000. We

disagree with appellant's position. A ruling of a municipal court outside the trial court's

jurisdiction and outside the jurisdiction of this appellate district has no binding effect.

       {¶21} Because an objection was not made, we must consider this issue under a

plain error standard. An error not raised in the trial court must be plain error for an

appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In

order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the
Tuscarawas County, Case No. 2013 AP 10 0041                                                8

error.    Long.     Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

         {¶22} Upon review, we find no error in the trial court's admission of the evidence.

         {¶23} Assignment of Error II is denied.

                                                III

         {¶24} Appellant claims the trial court erred in denying his motion to

dismiss/suppress the results of the breath test when he had submitted a urine sample

that was subsequently destroyed and the "reliability of one could have been verified by

the results of the other." Appellant's Brief at 12. We disagree.

         {¶25} In its judgment entry filed July 18, 2013, the trial court found the following

facts:



                  15. While awaiting the officer certified for the Intoxilyzer 8000,

         Deputy Valdez collected a urine sample from the Defendant.

                  16. Thereafter, since the officer was available to perform the breath

         test, and since the urine test could reveal multiple substances, Deputy

         Valdez permitted the Defendant to elect his method of testing. Before

         testing the urine, the Defendant elected the breath test, and the officers

         disposed of the urine sample.



         {¶26} The trial court concluded:
Tuscarawas County, Case No. 2013 AP 10 0041                                               9


              The Court FINDS that the Defendant consented to the use of the

       breath test instead of the urine test, and the State had no duty to preserve

       the urine sample.

              The Court FINDS that the Defendant has not met his burden of

       showing that the destroyed urine sample was materially exculpatory

       evidence, or that the destruction was done in bad faith.



       {¶27} While waiting for the Intoxilyzer 8000 operator to arrive, appellant

submitted a urine sample. T. at 59. After the operator arrived, Deputy Valdez asked

appellant if he wanted to take the breath test as a urine sample will be "tested for illegal

drugs and other-other things." T. at 60. Appellant advised that yes, he wanted to take

the breath test. Id. Deputy Valdez disposed of the urine sample as appellant had taken

the breath test and "[i]t would have cost us money to submit the urine test also and he–

he elected to take the breath test." T. at 61.

       {¶28} "Where evidence is destroyed pursuant to routine procedures before any

request for it has been made, it is not the State's burden to show that the evidence was

not exculpatory, but rather Defendant's burden to show that it was exculpatory." State

v. Terry, 2nd Dist. Greene No. 04CA0063, 2004-Ohio-7257, ¶ 15. "If a defendant is

unable to show that the withheld evidence is materially exculpatory, a defendant may

nonetheless show a violation of his due process right to a fair trial if the prosecution

withheld, in bad faith, potentially exculpatory evidence." State v. Fox, 4th Dist. Ross No.

11CA3302, 2012-Ohio-4805, ¶ 27.
Tuscarawas County, Case No. 2013 AP 10 0041                                       10


      {¶29} In this case, the advice given by Deputy Valdez was correct, and there

was no indication of bad faith. Further, there was no demonstration that a urine test

would have been materially exculpatory. To be materially exculpatory, "evidence must

both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means." California v. Trombetta,

467 U.S. 479, 489 (1984).

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

motion to suppress the breath test results.

      {¶31} Assignment of Error III is denied.

      {¶32} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 728
