Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018CR00653.
Vincent Faris, Clermont County Prosecuting Attorney,
Katherine Terpstra, 76 South Riverside Drive, 2nd Floor,
Batavia, OH 45103, for appellee.
Stephen Haynes, Clermont County Public Defender, Robert F.
Benintendi, 302 East Main Street, Batavia, OH 45103, for
1} Appellant, Brent Lung, appeals a decision of the
Clermont County Court of Common Pleas denying his motion to
suppress. For the reasons set forth below, we affirm.
2} On June 29, 2018, Williamsburg Police Officer
Justin Beatty was dispatched to an apartment shared by Monica
Comberger and Lung regarding a domestic dispute. While at the
scene, the officer contacted dispatch to determine if Lung
had active warrants. Dispatch advised the officer that there
were no active warrants; however, Lung's driver's
license was under suspension. Officer Beatty resolved the
situation and left the scene.
3} On July 19, 2018, while on duty, Officer Beatty
stopped at a local convenience store to buy a drink. The
store is located across the street from the apartment shared
by Lung and Comberger. Upon entering the store, Officer
Beatty saw Lung standing in line, recognized him, and
recalled that Lung's driver's license was suspended.
Curious as to whether Lung had driven to the store, the
officer exited the store, returned to his police cruiser, and
watched for Lung to exit the store.
4} While waiting in his police cruiser, Officer
Beatty noticed Comberger's car parked outside the store.
Because Williamsburg is a small community, the officer knew
that Lung drove Comberger's car. During the time he
waited for Lung to exit the store, the officer did not
contact dispatch to verify Lung's driver's license
suspension. After about five minutes, the officer observed
Lung exit the store, enter Comberger's car on the
driver's side, and drive approximately 100 yards across
the street and into the parking lot of the apartment complex
where Lung lived.
5} Officer Beatty followed Lung and initiated a
traffic stop. The traffic stop was based entirely upon the
officer's suspicion that Lung was driving under
suspension. After initiating the traffic stop and approaching
Lung, the officer confirmed that Lung's driver's
license was still under suspension. During his interaction
with Lung, the officer observed several indicia of
intoxication leading him to suspect that Lung was under the
influence of alcohol. Consequently, the officer administered
several field sobriety tests. Lung's poor performance on
the field sobriety tests confirmed the officer's
suspicion that Lung was under the influence. Lung was
arrested and transported to an Ohio State Patrol post where
he refused to submit to a breath test.
6} Lung was indicted on a third-degree felony count
of operating a vehicle while under the influence of alcohol
("OVI") because of a prior felony OVI conviction.
Lung filed a motion to suppress, arguing that Officer Beatty
did not have "lawful cause to stop [and] detain"
him due to a lack of a reasonable, articulable suspicion of
criminal activity. A hearing on the motion was held on
October 18, 2018. Officer Beatty was the sole witness to
testify. On October 23, 2108, the trial court denied the
motion. The trial court found that the information Officer
Beatty had concerning Lung's suspended driver's
license was a proper basis for the officer to initiate an
investigative stop. The matter proceeded to a jury trial. On
October 25, 2019, the jury returned a verdict finding Lung
guilty as charged. Lung was subsequently sentenced according
7} Lung appeals, raising one assignment of error:
8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S
MOTION TO SUPPRESS.
9} Appellate review of a ruling on a motion to
suppress presents a mixed question of law and fact. State
v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶
8. An appellate court must defer to the trial court's
factual findings if they are supported by competent, credible
evidence. State v. Banks-Harvey, 152 Ohio St.3d 368,
2018-Ohio-201, ¶ 14. However, an appellate court
independently determines, without deference to the trial
court's decision, whether the facts satisfy the
applicable legal standard. State v. Cummins, 12th
Dist. Clermont No. CA2018-07-051, 2019-Ohio-1496, ¶ 22.
10} The Fourth Amendment to the United States