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State v. Lominack

Court of Appeals of Ohio, Fifth District

June 25, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
EDWARD F. LOMINACK, III, Defendant-Appellant

Criminal appeal from the the Canton Municipal Court, Case No. 2012 TRC 5990

For Plaintiff-Appellee: lominack

For Defendant-Appellant: TYRONE D. HAURITZ ANTHONY FLEX DOMINIC VANNUCCI

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Edward F. Lominack, III ["Lominack"] appeals his convictions and sentences from the Canton Municipal Court on one count of driving while under the influence of alcohol or drugs ["OVI"] and one count of driving in marked lanes. Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

{¶2} On September 9, 2012 around 12:15 a.m. Trooper Jason Halstead of the Ohio State Highway Patrol was traveling south on I-77 South. Trooper Halstead noticed a dark gray Nissan Maxima that was moving back and forth within its lane of travel. Trooper Halstead proceeded to follow the vehicle. After observing the Nissan drive on top of and over the white lane markings Trooper Halstead activated his cruiser's overhead lights. At this time, the Nissan was already in the process of exiting the interstate at the Tuscarawas Street exit. As shown on the cruiser's digital camera, the Nissan drove over the fog line bordering the left-hand lane, drove through a gore, which was marked with white diagonal lines, then, without signaling, abruptly changed path across three lanes to the right-hand side, before stopping on the right-hand berm.

{¶3} Upon contact, the trooper observed that Lominack's eyes were a little bit glossy. The trooper further smelled a slight odor of alcohol. As the conversation between the two continued, Lominack informed Trooper Halstead that he had been at the Vineyard Bistro in Jackson Township and was attempting to return to his home in Westlake. When asked if he knew where he was, Lominack responded that he was headed back up I-77, North. Trooper Halstead informed Lominack that he was headed in the wrong direction.

{¶4} Trooper Halstead asked Lominack to perform three field sobriety tests. Lominack performed the Horizontal Gaze Nystagmus Test ["HGN"], the One-leg Stand ["OLS"] and the Walk and Turn test [WAT"]. In addition, Lominack agreed to perform a portable breath test ["PBT"]. The PBT test result registered a .078. Trooper Halstead testified on each of the three FSTs Lominack displayed indicators that he was under the influence of alcohol. Accordingly, at the conclusion of the FST's and the PBT Trooper Halstead placed Lominack under arrest for OVI.

{¶5} Lominack was transported to the Ohio State Highway Patrol Post in Canton. While there, he was read the BMV 2255 and was offered a Breathalyzer test. Lominack agreed to take the test. The test result showed that Lominack's blood alcohol content ["BAC"] was .085.

{¶6} On September 9, 2012, Lominack was cited for OVI "under the influence" in violation of R.C. 4511.19(A)(1)(d); OVI "prohibited level" in violation of R.C. 4511.19(A)(1)(a); and Driving in Marked Lanes in violation of R.C. 4511.33.

{¶7} On October 5, 2012, Lominack filed a Motion to Dismiss, Suppress, and in Limine. A hearing on this motion was set for October 30, 2012. On October 12, 2012, Lominack filed a motion to continue the jury trial. The motion was denied on October 15, 2012.

{¶8} On October 19, 2012, Lominack filed a Motion to Allow the Deposition of a witness for trial. A hearing was begun on Lominack's motions on October 30, 2012.

{¶9} At the hearing on October 30, 2012, Trooper Halstead testified about the probable cause for the stop and arrest. The remainder of the hearing was continued until November 8, 2012, prior to the commencement of the jury trial.

{¶10} On November 2, 2012, Lominack filed a supplement to his motion to suppress. The state filed an objection opposing the supplementation.

{¶11} On November 8, 2012, the court denied the request to supplement the motion to suppress. The case proceeded to jury trial on November 8, 2012, and Lominack was found "guilty" of OVI per se in violation of 4511.19(A)(1)(d) and "not guilty" of OVI driving under the influence in violation of R.C. 4511, 19(A)(1)(a) by the jury. The trial court found Lominack guilty of Marked Lanes in violation of R.C. 4511.33.

{¶12} The trial court sentenced Lominack on the OVI conviction to 180 days in the Stark County Jail, all but three days suspended upon conditions, a fine of $650.00 and court costs. Lominack's driver's license was suspended for 180 days and 6 points were assessed. Lominack was sentenced to pay court costs on the Marked Lanes conviction.

{¶13} By Judgment Entry filed December 3, 2012, the trial court overruled Lominack's motion to suppress.

Assignments of Error

{¶14} Lominack raises five assignments of error,

{¶15} "I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANTS MOTION TO SUPPRESS.

{¶16} "II. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF A VIOLATION OF MARKED LANES, O.R.C. §4511.33.

{¶17} "III. THE TRIAL COURT ERRED IN REFUSING TO PERMIT APPELLANT TO PRESENT EXPERT TESTIMONY AT TRIAL.

{¶18} "IV. THE TRIAL COURT ERRED IN REFUSING TO PERMIT APPELLANT'S COUNSEL TO CHALLENGE THE CREDIBILITY OF FIELD SOBRIETY TESTING RESULTS.

{¶19} "V. THE TRIAL COURT ERRED IN REFUSING TO ALLOW APPELLANT TO PROFFER TESTIMONY WHICH WOULD HAVE BEEN RECEIVED FROM APPELLANT'S EXPERT."

I.

{¶20} In his first assignment of error, Lominack argues the trial court erred by overruling his motion to suppress.

{¶21} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.

1. The traffic stop.

{¶22} The Ohio Supreme Court has emphasized that probable cause is not required to make a traffic stop; rather the standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶23. Further, neither the United States Supreme Court nor the Ohio Supreme Court considered the severity of the offense as a factor in determining whether the law enforcement official had a reasonable, articulable suspicion to stop a motorist. See, City of Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091(1996); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996). If an officer's decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid. Mays at ¶8.

{¶23} In Mays, the defendant argued that his actions in the case - twice driving across the white edge line - were not enough to constitute a violation of the driving within marked lanes statute, R.C. 4511.33. Id . at ¶15. The appellant further argued that the stop was unjustified because there was no reason to suspect that he had failed to first ascertain that leaving the lane could be done safely or that he had not stayed within his lane "as nearly as [was] practicable, " within the meaning of R.C. 4511.33(A)(1). The Supreme Court found,

Appellant's argument is not persuasive. R.C. 4511.33 requires a driver to drive a vehicle entirely within a single lane of traffic. When an officer observes a vehicle drifting back-and-forth across an edge line, the officer has a reasonable and articulable suspicion that the driver has violated R.C. 4511.33.

Mays at ¶16. Further, the Supreme Court noted,

The question of whether appellant might have a possible defense to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required to determine whether someone who has ...

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