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State v. Lung

Court of Appeals of Ohio, Twelfth District, Clermont

July 22, 2019

STATE OF OHIO, Appellee,
v.
BRENT A. LUNG, Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2018CR00653.

          D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South Riverside Drive, 2nd Floor, Batavia, OH 45103, for appellee.

          W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, OH 45103, for appellant.

          OPINION

          M. POWELL, J.

         {¶ 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 to law.

         {¶ 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 ...


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