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State v. Greene

Court of Appeals of Ohio, Fourth District, Hocking

August 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BRANDON E. GREENE, Defendant-Appellant.

          Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

          Benjamin Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          JASON P. SMITH, PRESIDING JUDGE

         {¶1} Appellant, Brandon Greene, appeals his convictions for aggravated vehicular assault, a third-degree felony in violation of R.C. 2903.08(A)(1), and OVI, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a). On appeal, Appellant contends that the trial court erred by overruling his motion to suppress. However, after a careful review of the record, we conclude that Appellant's sole assignment of error is without merit. Accordingly, we affirm the judgment of the trial court.

         FACTS

         {¶2} This matter was disposed of fairly early on in the litigation process when Appellant entered no contest pleas to all charges in the indictment after the trial court denied his motion to suppress. It is noted that Appellee failed to file a statement of the case or facts. App.R. 16(B) provides that Appellee's brief shall include a statement of the case and statement of the facts, as required by App.R. 16(A)(5) and (6), "except that a statement of the case or of the facts relevant to the assignments of error need not be made unless the appellee is dissatisfied with the statement of the appellant." As the parties appear to agree on the facts and case history, we generally rely on the statement of the case and statement of the facts as set forth in Appellant's brief.

         {¶3} On March 19, 2017, at approximately 1:12 a.m., a vehicle driven by Appellant collided with a vehicle driven by Hocking County Sheriff's Department Deputy Brian McManaway.[1] Both drivers were transported to Hocking Valley Community Hospital to receive medical care. Ohio State Highway Patrol Trooper Nathan Smith first responded to the scene of the accident to investigate. Upon arrival, he found Appellant's vehicle had partially burned, but there was no alcohol inside of it. After completing an investigation at the scene, he attempted to interview Appellant at the hospital.

         {¶4} Upon arrival at the hospital, Trooper Smith found Appellant to be drifting in and out of consciousness. Appellant had a laceration to his forehead and was on a backboard with a neck brace. Trooper Smith noticed a slight odor of alcohol on Appellant but was not able to conduct any field sobriety tests. Trooper Smith specifically noted that Appellant "could not keep his eyes open long enough to administer" the horizontal-gaze nystagmus test. Appellant never admitted to drinking or using illegal drugs. Trooper Smith nevertheless requested that Appellant submit to a urine screen. Despite Appellant's altered state of consciousness, he agreed to submit to a urine test. Trooper Smith read the BMV 2255 to Appellant at approximately 3:10 a.m. At the time of the urine screen, Appellant was receiving an intravenous drip of Toradol and antibiotics.

         {¶5} After obtaining the urine at 3:29 a.m., Trooper Smith completed form HP 28. Trooper Smith failed to indicate whether Appellant was receiving any fluids intravenously at the time of the test. He then sent the test to the post office to be mailed at 5:15 a.m. on March 19, 2017. The laboratory received the urine on March 28, 2017, to perform the urinalysis.[2]

         {¶6} Thereafter, on May 19, 2017, Appellant was indicted in the Hocking County Court of Common Pleas with a third-degree count of aggravated vehicular assault, a third-degree felony, in violation of R.C. 2903.08(A)(1)(a), and four separate counts of driving under the influence (hereinafter "OVI"), first-degree misdemeanors, in violation of R.C. 4511.19. (A)(1)(a), R.C. 4511.19(A)(1)(j)(viii)(II), R.C. 4511.19(A)(1)(j)(ix), and R.C. 4511.19(A)(1)(j)(i). Appellant filed a motion to suppress certain evidence on October 19, 2017, which the trial court denied after holding two days of evidentiary hearings. As a result, on July 19, 2018, Appellant entered no contest pleas to all five counts of the indictment. The trial court merged the four misdemeanor counts of OVI for purposes of sentencing. Appellant was sentenced to a forty-eight-month prison term for aggravated vehicular assault, as well as an additional one-hundred-eighty-day's jail term on the merged counts of OVI, to run concurrent with the felony sentence. Appellant thereafter requested a stay of execution, which was denied by the trial court, and this appeal followed.

         ASSIGNMENT OF ERROR

         I. "THE TRIAL COURT ERRED BY OVERRULING MR. GREENE'S MOTION TO SUPPRESS."

         {¶7} In his sole assignment of error Appellant contends the trial court erred by overruling his motion to suppress. Appellant raises two arguments under his assignment of error. First, Appellant contends the trial court erred in holding that Trooper Smith had probable cause to place him under arrest for suspicion of driving under the influence. Second, Appellant contends the trial court erred by holding that the testing was collected and performed according to the procedure manual of the laboratory that performed the analysis. The State counters by arguing the trooper had probable cause to arrest Appellant based upon the serious head-on collision caused by Appellant, as well as Appellant's condition when the trooper made contact with him at the hospital, which consisted of bloodshot eyes, lethargic speech, a slight of odor of alcohol and an inability to stay awake. The State contends that, based upon the totality of the circumstances as well as the trooper's training and experience, there was probable cause to arrest.

         Standard of Review

         {¶8} Our review of a trial court's decision on a motion to suppress presents a mixed question of law and fact. State v. Jones, 4th Dist. Washington No. 11CA13, 2012-Ohio-1523, ¶ 6, citing State v. Roberts, 110 Ohio St.3d 71, 2006- Ohio-3665, 850 N.E.2d 1168, ¶ 100 and State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we defer to the trial court's findings of fact if they are supported by competent, credible evidence. Id., citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). Accepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case. Id., citing Roberts at ¶ 100 and Burnside at ¶ 8.

         Probable Cause to Arrest for OVI

         {¶9} A police officer has probable cause for an arrest if the facts and circumstances within his knowledge are sufficient to cause a reasonably prudent person to believe that the defendant has committed the offense. State v. Roar, 4th Dist. Pike No. 13CA842, 2014-Ohio-5214, ¶ 28; State v. Hollis, 5th Dist. Richland No. 12CA34, 2013-Ohio-2586, ¶ 28; State v. Cummings, 5th Dist. Stark No. 2005- CA-00295, 2006-Ohio-2431, ¶ 15, citing State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). When evaluating probable cause to arrest for OVI, the totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered. Hollis, supra; State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000)(superseded by statute).

         {¶10} Furthermore, a police officer does not have to observe poor driving performance in order to effect an arrest for driving under the influence of alcohol if all the facts and circumstances lead to the conclusion that the driver was impaired. Hollis, supra; State v. Harrop, 5th Dist. Muskingum No. CT2000-0026, 2001 WL 815538 (July 2, 2001), citing Atwell v. State, 35 Ohio App.2d 221, 301 N.E.2d 709 (8th Dist.1973). This Court has recently observed that" '[t]he standard for determining whether an officer had probable cause to arrest an individual for OVI is whether, at the moment of arrest, the officer had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was operating a motor vehicle while under the influence.'" State v. King, 4th Dist. Athens No. 18CA5, 2018-Ohio-4929, ¶ 17, quoting State v. Kilbarger, 4th Dist. Hocking No. 11CA23, 2012-Ohio-1521, ¶ 18.

         Legal Analysis

         {¶11} Appellant first contends the trial court erred in holding that Trooper Smith had probable cause to place him under arrest for suspicion of driving under the influence. More specifically, Appellant argues that aside from the "slight odor" of alcohol, all of the indicators of impairment observed by Trooper Smith could be explained by, or attributed to, his severe injuries. Essentially, Appellant contends there is an alternative explanation for his condition at the time the trooper encountered him. In particular, Appellant contends that his bloodshot eyes could be attributed to the fact he had just experienced a serious accident and had received a significant head injury. He further suggests that although his speech was lethargic, the trooper had no past experience with him to know what his normal speech was like. Appellant also argues that he was drifting in and out of consciousness as a result of his injuries. Finally, Appellant contends that courts frequently find an officer lacks probable cause to arrest for OVI where the odor of alcohol on a defendant is "slight" versus moderate or heavy.

         {¶12} In the present case, a serious accident which resulted from Appellant's vehicle going left of center and hitting a cruiser head-on is what initiated the investigation. Trooper Smith's first encounter with Appellant was at the hospital, rather than the scene of the accident, as Appellant had already been transported there due to his injuries. The record indicates Trooper Smith observed a slight odor of alcohol upon encountering Appellant at the hospital, but that Appellant did not admit to drinking and no alcohol was found in his vehicle. The record further reveals that Trooper Smith observed Appellant's speech was lethargic, his eyes were bloodshot, and he was drifting in and out of sleep. Appellant also notes that Trooper Smith was unable to conduct any field sobriety testing. Although Appellant argues that the trooper's observations can be explained by the injuries he sustained in the accident, we believe they can equally be attributed to impairment from alcohol or drugs.

         {¶13} Appellant cites State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-6009, 948 N.E.2d 468, ¶ 9 (1st Dist. 2010), for the proposition that an officer lacks probable cause to arrest where the odor of alcohol on a driver is only "slight," rather than moderate to heavy. He further relies on State v. Finch, 24 Ohio App.3d 38, 492 N.E.2d 1254 (12th Dist. 1985) for the proposition that driving with bloodshot eyes, a flushed face, or slurred speech, along with an odor of alcohol does not violate the law where the officer failed to observe any impaired motor coordination. However, in State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 41, this Court recently noted "several factors indicating operation of a vehicle under the influence of alcohol that a court should consider when reviewing the totality of the circumstances surrounding an officer's decision to administer field sobriety tests[, ]" as observed by the Eleventh District Court of Appeals in State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761, fn. 2 (11th Dist. 1998); see also State v. Coates, 4th Dist. Athens No. 01CA21, 2002 WL 851765, *5. These factors are as follows, with no single one being determinative of the issue of impairment:

(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath; (8) the intensity of that odor, as described by the officer ("very strong," "strong," "moderate," "slight," etc.); (9) the suspect's demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination ...

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