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State v. Newell

Court of Appeals of Ohio, First District, Hamilton

June 7, 2017

STATE OF OHIO, Plaintiff-Appellant,
v.
PAMELA NEWELL, Defendant-Appellee.

         Hamilton County Municipal Court TRIAL NOS. C-15TRC-5524 A-D

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

          D. Joseph Auciello, Jr., for Defendant-Appellee.

          OPINION

          Deters, Judge.

         {¶1} Plaintiff-appellant state of Ohio appeals pursuant to R.C. 2945.67 and Crim.R. 12(K) the judgment of the Hamilton County Municipal Court granting defendant-appellee Pamela Newell's motion to suppress evidence in these four consolidated appeals. Because Newell failed to sustain her initial burden of proof to demonstrate that her stop and seizure were warrantless and that her statements were the result of custodial interrogation, the trial court erred as a matter of law in granting her motion to suppress.

         Factual and Procedural Posture

          {¶2} Newell was arrested on December 10, 2015, and charged in the cases numbered C-15TRC-55244 A-D with one count of operating a vehicle while intoxicated ("OVI") in violation of R.C. 4511.19(A)(1)(a), one count of refusal of a chemical test in violation of R.C. 4511.19(A)(2)(b), one count of driving under OVI suspension in violation of R.C. 4510.14, and one count of failing to yield the right of way when making a left-hand turn in violation of R.C. 451142.

         {¶3} On March 7, 2016, Newell filed a motion to suppress any statements she made to the police and any evidence the state may seek to introduce at trial from her warrantless search and seizure. The first hearing on the motion was continued, over Newell's objection, because the arresting officer was unavailable to testify. At the next hearing, on May 5, 2016, the arresting officer was again unavailable to testify, and the state requested a continuance.

         {¶4} The trial court denied the state's request for a continuance and stated that it was inclined to move forward with the motion to suppress. Defense counsel then moved to suppress the evidence in accordance with the motion that previously had been filed. The assistant prosecuting attorney objected, arguing that under Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), Newell had the burden of initially going forward with some evidence beyond the motion to suppress before the trial court could grant the motion.

         {¶5} Defense counsel responded, "I'm not sure how the burden would shift to me. What evidence, I guess, would I put on to show that I would ask to be dismissed? There's not a police officer here to ask any questions of. So there's not a witness. My client has a Fifth Amendment right. She can exercise that right. So I think the remedy is to set the matter for a trial setting."

         {¶6} Following a brief recess, the trial court stated,

I did find what I was looking for by way of an answer. So I'll do this the best way I recall. The defendant previously - the defense has already filed a motion alleging that the state did not properly follow procedures in the arrest and charging of the defendant. By that motion, and the particularity of that motion, it hasn't been challenged. That then puts the burden on the state to show in fact they did follow the proper procedures in doing that. At the very least produce a witness who can justify or who can refute the propriety of those allegations. That witness is not here. Has not been here. There's no evidence for the defense to call. [sic] So that reverts back to the motion and raising of those issues. With the failure of that burden, the court has no option but to grant the motion to suppress.

         {¶7} The trial court journalized an entry granting Newell's motion to suppress evidence in all four cases. The state now appeals, arguing that the trial court erred in granting Newell's motion to suppress because she failed to sustain her burden of production on the motion.

          {¶8} Before addressing the merits of the state's argument, we note that the record transmitted with these consolidated appeals did not contain Newell's motion to suppress. Following oral argument, the parties filed a stipulation pursuant to App.R. 9(E), supplementing the record in the consolidated appeals with a copy of ...


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