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City of Cleveland v. Harding

Court of Appeals of Ohio, Eighth District

June 27, 2013


Criminal Appeal from the Cleveland Municipal Court Case No. 2011 TRC 070444


ATTORNEYS FOR APPELLEE Barbara Langhenry Director of Law, Gina M. Villa Assistant City Prosecutor The Justice Center

BEFORE: Stewart, A.J., Celebrezze, J., and Jones, J.



{¶ 1} Defendant-appellant Leon Harding appeals the decision of the Cleveland Municipal Court finding him guilty of driving under the influence of alcohol in violation of Cleveland Codified Ordinances ("C.C.O.") 433.01(A), a misdemeanor of the first degree. At his bench trial, the court ordered Harding to pay fines and court costs, suspended his driver's license, ordered him to attend alcohol abuse programs, and placed him on probation for one year. Harding challenges the propriety of the investigation into whether he was driving under the influence and also challenges the sufficiency of the evidence used to convict him. We affirm the decision of the trial court.

{¶2} In the evening hours of December 17, 2011, Harding and a friend were driving on West 117th Street in the city of Cleveland when they were involved in a minor collision with another vehicle. Officer Carlos Robles arrived at the scene and was immediately approached by the driver of the other vehicle who informed Robles that he believed Harding to be driving while intoxicated. When Robles approached Harding's vehicle, Harding was in the driver's seat and the vehicle was on. Robles noticed that Harding's breath smelled of alcohol, and his speech was slurred. Officer Robles asked Harding to get out of his vehicle and into the police car. Inside the officer's car, Robles administered two sobriety tests including having Harding recite the alphabet and count up to 50 in units of five. Given the icy, snowy conditions, the weather was too inclement to perform any walking sobriety tests.

{¶ 3} After the tests were administered, Harding was arrested for driving under the influence. His conviction was based solely on the testimony of Officer Robles. A blood alcohol content test was conducted, but the results were deemed inconsistent by the prosecution and not introduced into evidence at trial.

{¶ 4} On appeal, Harding raises two assignments of error. First, Harding argues that the police officer wrongfully administered sobriety tests where there was no reasonable suspicion of criminal activity. Secondly, Harding argues that his conviction for driving under the influence of alcohol was based on insufficient evidence.

{¶5} The Fourth Amendment of the United States Constitution, as well as Section 14, Article I of the Ohio Constitution, guarantee the right to be free from unreasonable searches and seizures. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, _ 7, citing State v. Orr, 91 Ohio St.3d 389, 745 N.E.2d 1036 (2001). In general, a traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion that a motorist has committed, is in the process of committing, or is about to commit a crime. Mays at _ 7. The legality of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. Id, citing State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of syllabus. Additionally, a police officer who initially lacks probable cause, but whose observations lead him to reasonably suspect that a particular person's behavior is criminal, may detain the person briefly to investigate the circumstances that provoked the suspicion. Mays at _13.

{¶ 6} An officer may not request a motorist to perform field sobriety tests unless the request is separately justified by a reasonable suspicion based upon articulable facts that the motorist is intoxicated. Parma Hts. v. Dedejczyk, 8th Dist. No. 97664, 2012-Ohio-3458, _ 29, citing State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist. 1998). However, the Supreme Court of Ohio has recognized that probable cause to arrest for driving under the influence exists where a police officer arrives at the scene of an accident and, although no driving is observed, a suspect is found in or near the automobile with an odor of alcohol and slurring his speech. Oregon v. Szakovits, 32 Ohio St.2d 271, 291 N.E.2d 742 (1972).

{¶ 7} In this case, while Officer Robles did not observe Harding driving, Harding was behind the steering wheel of the vehicle with the engine running when Robles arrived at the scene. These facts, coupled with the officer's testimony that he smelled alcohol and that Harding's speech was slurred, were sufficient to suspect Harding was driving under the influence, thus justifying conducting the sobriety tests. Only after Harding's performance on the sobriety tests did Robles have probable cause to arrest Harding for driving under the influence. Harding's first assigned error is overruled.

{¶ 8} Next, Harding argues that his conviction was based on insufficient evidence. We disagree.

{¶ 9} An appellate court's role when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of a defendant's guilt beyond a reasonable doubt. State v. Grablovic, 8th Dist. No. 91514, 2009-Ohio-2716, _ 19. After reviewing the evidence in a light most favorable to the prosecution, an appellate court must decide whether any ...

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