Fairview Park v. BowmanFairview Park v. Bowman
John T. Castele, City of Fairview Park Assistant Director of Law and Prosecutor, for appellee.
Gary Cook; James Alexander, Jr., Esq., LLC, and James Alexander, Jr., for appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
ANITA LASTER MAYS, A. J.:
{¶ 1} Defendant-appellant Ted Bowman (“Bowman“) appeals his convictions for operating a vehicle under the influence of alcohol (“OVI“) under
I. Procedural History
{¶ 2} On June 28, 2021, at approximately 10:00 p.m., Bowman was cited for OVI and Open Container and pleaded not guilty on June 30, 2021. On July 9, 2021, Bowman served discovery on the state. On August 10, 2021, Bowman filed a motion to suppress and a motion in limine. A hearing was conducted on April 25, 2022, after which the trial court denied the motions.
{¶ 3} On September 26, 2022, Bowman filed a second motion in limine to bar the admission of the state‘s video evidence that was provided by the city just six days before trial. On September 27, 2022, Bowman‘s trial brief was filed. A jury trial was held on September 27, and September 28, 2022. Bowman made a
{¶ 4} Bowman filed a motion for a new trial on October 12, 2022, that was denied on November 30, 2022.
{¶ 5} Bowman appeals.
II. Facts
{¶ 6} On June 28, 2021, off-duty detective sergeant Matthew Beck (“Det. Beck“) of the North Olmsted Police Department testified that he worked at the bureau from 6:00 a.m. to 4:00 p.m. and for traffic enforcement on I-480 until 10:00
{¶ 7} The detective testified that the Oldsmobile turned east (left) onto Butternut Ridge and the “right front [passenger side] wheel struck the curb on Butternut Ridge, which sparked my attention.” (Tr. 26.) Instead of turning right to go home, Det. Beck followed the vehicle, observed it weaving and crossing the double yellow line and the white fog line and informed dispatch that he was “probably behind a drunk.” (Tr. 27.) License plate information provided the owner‘s name and address and determined they had driven past the driver‘s residence. (Tr. 28.) The Oldsmobile turned northbound (left) onto Columbia Road and continued to weave, crossing the yellow and white lines.
{¶ 8} The vehicles were approaching Fairview Park‘s jurisdiction at Mastick Road. The dispatcher reached out to the Fairview Park Police Department to intercept a “possible OVI,” described the vehicle, and advised that the North Olmsted officer was following the Oldsmobile. Det. Beck stated he ultimately had to contact Fairview Park Officer Kelley (“Officer Kelley“) directly until Officer Kelley stopped the Oldsmobile “northbound on West 220th between Mastick and Lorain Road.” (Tr. 34.)1 Det. Beck remained at the stop until a Fairview Park officer arrived and advised that officer what he had witnessed.
{¶ 10} The detective parked in front of the Oldsmobile during the stop but did not approach the vehicle. He and Officer Kelley discussed their observations with Officer Mike Thompson (“Officer Thompson“) of Fairview Park who arrived at the scene shortly thereafter.
{¶ 11} Officer Kelley was working a 6:00 p.m. to 6:00 a.m. shift the night of the incident. Officer Kelley recounted his OVI training and experience and testified that he responded to a dispatch request. He finally located the Oldsmobile in the West 220th Street and Mastick Road area of Fairview Park. Mastick Road is a “contiguous roadway between North Olmsted and Fairview Park.” (Tr. 46.)
{¶ 12} The officer observed:
The vehicle was weaving in its own lane as well as crossing over into the continuous left-turn lane, shared left-turn lane. And then at one point for — not sure approximately how long, but for a pretty good distance, was driving straight down the middle of the continuous left turn lane.
(Tr. 48.)
{¶ 14} Bowman reportedly fumbled with his driver‘s license as he handed it to the Officer Kelley.2 In response to questions by Officer Kelley, Bowman stated he was going to his mother‘s house and that he had consumed three beers earlier in the evening, though he did not specify what time period.3 (Tr. 68.)
{¶ 15} Bowman exhibited glassy eyes but no other physical signs of impairment and Officer Kelley did not smell alcohol during the encounter. About three to five minutes into the stop, Officer Thompson arrived and took over. Officer Kelley left the scene a few minutes later. He recalled preparing a short report that was later provided to Officer Thompson.
{¶ 16} Officer Thompson testified he spent ten years with the Fairview Park police department but joined the Westlake police department six months prior to trial. He was trained in alcohol detection, apprehension, and prosecution, and advanced roadside impaired driver enforcement.
{¶ 18} Officer Thompson arrived at the scene where Officer Kelley explained he suspected possible impairment. Officer Thompson testified:
I had a short conversation with Mr. Bowman, observed that he had slurred speech. He looked like he was going to fall asleep. So, typically, I ask if someone has a medical issue. It wasn‘t expressed to me that he did. So, while speaking to him, slurred speech and glassy eyes and drooping like he‘s about to fall asleep.
(Tr. 74.)
{¶ 19} After explaining the factors that he looked for to determine impairment, Officer Thompson added “when he was out of the vehicle, [he] used, tried to use the vehicle for kind of like a crutch. Like, showing lack of balance. Very deliberate, short, choppy steps and didn‘t look stable on his feet.” (Tr. 75.) Officer Thompson said that Bowman was also unable to perform pre-exit tests employed prior to a suspect exiting the vehicle. The first test required that Bowman recite the alphabet from C to S without singing it. Bowman mixed up the letters. Bowman was also unable to perform the Horizontal Gaze Nystagmus (“HGN“) test that required that he follow the tip of the officer‘s finger with his eyes.
{¶ 20} Officer Thompson stated that the Fairview Park officers did not have body cameras that night and the only cruiser equipped with a dash cam belonged to Officer Barnie (“Officer Barnie“) who also had the audio pack. This court‘s review
{¶ 21} Officer Thompson narrated that he next searched Bowman and instructed him to step over to the sidewalk. Bowman appeared to slightly lose his balance at the beginning of the gaze test. Officer Thompson stated he told Bowman that he turned his head instead of holding it still and moving his eyes only. The officer also stated that when Bowman held his head still, he was not watching the finger move but was looking straight ahead though Bowman responded that he could see the finger.
{¶ 22} As Officer Thompson testified and the video supports, Bowman appeared to have difficulty walking the imaginary line using heel to toe steps though he finished well until he stumbled turning around. He next attempted to stand on one foot and count but was unable to hold his foot off the ground. He was then arrested. Officer Thompson agreed that someone who stayed up for 24 hours and has a beer or two may appear to be under the influence and not test over the legal limit. Officer Thompson said to the other officers that he did not smell alcohol but Officer Barnie can be heard and seen at the end of the video saying that he “thought” he smelled alcohol coming from Bowman. Officer Thompson testified he was unable to complete the tests due to “lack of compliance is what I would — the way I would put it. * * * [e]ither [Bowman] wasn‘t following directions or not able to follow the directions.” (Tr. 85.)
{¶ 24} Defense counsel pointed out that, as Officer Thompson reported, Bowman had no prior OVIs and possibly did not understand the impairment test instructions. The officer also noted in his report that Bowman stated he would provide a breath sample, but the test resulted in an improper reading the first time. Officer Thompson explained that Bowman was given a second chance because sometimes people are unable, unwilling, or pretend they are blowing into the machine. However, the report indicated that Bowman made the request to test a second time.
{¶ 25} Officer Thompson read the report excerpt:
When asked if he would provide a breath sample, [Bowman] stated that he would. Patrolman Calabrese gave him an opportunity to provide a breath sample. Again, Bowman was either unable or unwilling to follow the directions given for the test. He was given a second chance, per his request, to give a breath sample. He, again, was not able or willing to follow directions and the test was marked as a refusal.
{¶ 26} Counsel asked why Bowman was not taken to Fairview Hospital approximately two miles away for a blood or urine test as authorized by
Counsel: And Mr. Bowman didn‘t refuse to take either a urine test or a blood test, did he?
Witness: By his — not his words, his actions, he refused to take a breath test, yes.
Counsel: Okay. All right. And so, again, we don‘t have the video of that encounter between you and Mr. Bowman at the station, do we?
Witness: Not to my knowledge.
(Tr. 130-131.)
{¶ 27} During redirect, over defense objections that the matter was outside the scope of cross-examination, the officer testified he would have advised Bowman of the penalties and vehicle sanctions for an OVI such as refusing to take the breathalyzer, the option to submit blood and urine samples, and having a high alcohol level as stated on Form BMV 2255. “I would have read it [aloud] because I signed it. So, I read the back of the form that would have told him the penalties for refusing or for a high blood alcohol content.” (Tr. 140.)
{¶ 28} The city also presented a photograph purported to depict the road conditions in the area at the time of the incident. Officer Thompson appeared to
{¶ 29} During recross-examination, Officer Thompson confirmed that he did not smell alcohol and did not test the contents of the container found in the vehicle. Officer Thompson indicated on the BMV 2255 form that Bowman refused to take the breathalyzer test. Bowman was not taken for a urine or blood sample because the department typically did not conduct those tests unless drugs or something else is suspected and, because the officers determined that Bowman‘s lack of breathalyzer success constituted a refusal versus an inability to blow, the other tests were not administered.
{¶ 30} Officer Thompson said he did not inventory Bowman‘s vehicle that was towed and impounded for inventory purposes after Bowman‘s arrest but did recall seeing an open container in the vehicle as Bowman exited. This court‘s review of the dashcam video revealed that after Bowman had been placed in the police cruiser, Officer Thompson opened the driver‘s side of Bowman‘s vehicle and looked inside while Sergent Jurcak, joined by Officer Barnie, stood on the passenger side with a flashlight. Officer Thompson eventually located a container in the vehicle and placed it on top of the vehicle where it was photographed. The officers also checked the vehicle for Bowman‘s cell phone that Bowman believed he left in the car.
{¶ 32} Officer Barnie confirmed during cross-examination that he said on the dashcam video that he thought he smelled something on Bowman during the sidewalk sobriety testing but testified at trial that he “definitely” smelled something. He explained that was “just how I decided to phrase it, yes, I thought I smelled something, yeah.” (Tr. 176.)
{¶ 33} Officer Barnie was not aware of any tests of the open container removed from Bowman‘s vehicle but believed it contained alcohol because of the container information and odor. He did not recall whether there were road aberrations due to the gas line construction in the area that night.
{¶ 34} Sergeant Jurcak of the Fairview Park Police Department confirmed that the container depicted in the exhibit photograph was the one removed from Bowman‘s vehicle and stated that he conducted the pre-tow inventory. A smashed container with the same label was in the back seat along with several bags of groceries that Bowman said were for his mother. The officer delivered the groceries to Bowman‘s mother who resided in Fairview Park approximately two miles from
{¶ 35} The city rested. Bowman‘s
{¶ 36} Bowman took the stand and testified he has lived at the same residence in North Olmsted since 1975, except for a two-year period in the 1980s and obtained a Bachelor‘s Degree from what was then known as Baldwin-Wallace College where his father was a professor. Sixty-six years old at the time of trial and 65 at the time of the incident, Bowman, who possessed a commercial driver‘s license, worked 30 years operating an excavating contracting business and for the past eight years was a truck driver hauling expedited freight to and from Chicago.
{¶ 37} Bowman usually left for Chicago at night, dropped off deliveries, slept, picked up items for transport and returned home in the early morning. Bowman returned home during the early morning hours of June 28, 2021, unloaded the trailer, and drove his 1990 Oldsmobile Regency Brougham sedan to his 93-year old mother‘s home in Fairview Park where he slept a few hours and then took his mother to breakfast. Bowman has been her sole caregiver.
{¶ 38} Bowman took his mother home about 2:00 p.m. and went to his seven and one-half acre property in Olmsted Falls consisting of vacant, industrial land and trees to perform property maintenance. The temperature was about 88 degrees that day but Bowman said, “it felt like 99.” (Tr. 211.) He picked up a couple of cans of Redd‘s Wicked Ale and consumed them at the property.
{¶ 40} Bowman described the gas line construction at Mastic Road and West 220th Street and said that the city‘s exhibit of the road did not depict the state of the road at the time of the incident. Counsel inquired, “[Y]ou heard Officer Kelley and I believe it was [Det.] Beck [say] that you were driving your vehicle continually in the left turn lane[?]” (Tr. 218.)
{¶ 41} Bowman explained:
North of the bridge, they had done gas line replacement work on West 220th Street from the fall of 2020 and they had only wrapped it up about maybe three weeks prior, early to mid June. * * *
In which case the traffic was in the left side of the road, the west side of the road. And there was a line of barrels separating what was one north and one southbound lane. Then you had a row of barrels to the right of the northbound lane. Then you had a row of barrels to the right of the northbound lane and then you had a row of barrels to the right of the
The pavement on the east lane, the northbound lane east about third of the road had been removed for the gas line replacement. It was new concrete and it had not been marked yet. * * *
Well, the last markings I had were going across the bridge where I was * * * in the left half of the right half of the pavement. * * * [T]here was no markings to the contrary. And I continued on that basis until I got to where the excavation had stopped * * * at which point you inherit some old lane markings. So, I was just sizing up to get into those lane markings when the [police] lights came on. * * *
(Tr. 218-220.) Bowman stated that “the entirety of the time, I had Det. Beck‘s truck following me with the bright lights * * * and I thought when the police lights were activated it was for the truck behind me.” (Tr. 220.)
{¶ 42} Bowman said his eyes were irritated and bloodshot from sweat and chaff from working at his property and he left his glasses at home. Officer Kelley requested his license — which indicated that he wore corrective lenses — and Officer Thompson returned in his stead. While in the automobile, Officer Thompson asked Bowman to have his eyes follow a moving pen.
{¶ 43} Bowman narrated portions of the video and stated he did not refuse to follow test directions. The then 65-year-old stated he had trouble with his legs and tried to stand on one leg but was unable to. He was then arrested for intoxication.
{¶ 44} Bowman waited in the cell for 20 to 30 minutes and was seated in another room for breathalyzer testing by Officer Callahan and he believed Officer Thompson was present. For both tests, “[t]hey said I started out fine with
{¶ 45} Bowman explained that he did not and would not refuse a drug or alcohol test because that would result in an automatic one-year suspension of his commercial license that also indicated that he wore corrective lenses. Bowman summarized that he had a long day, suffers from physical limitations due to past injury and age, the weather was very hot and humid, his car did not have operable air-conditioning, he consumed the two cans of ale at his property earlier in the day when cutting the grass, was not wearing his glasses, road lines were altered or missing due to the gas line instruction, and he had driven from his home to his mother‘s house numerous times.
{¶ 46} During cross-examination, Bowman stated he did not see the indication on the BMV-2255 form that he could take a chemical or urine test at his own cost because he did not receive the form until the next day. The form was not read to him as was stated on the form and it inaccurately indicated that he refused to sign but it was never requested. Bowman also said the liquid in the container located in the vehicle console was tart cherry juice that he poured into the can because it fit into the cupholder.
{¶ 47} Bowman was convicted of both charges.
III. Assignments of Error
{¶ 48} Bowman assigns four errors for review.
- The trial court erred to the prejudice of the appellant in denying the appellant‘s motion to suppress and motions in limine and allowing the appellee to present evidence against the appellant to the jury.
- The Appellants conviction of
Fairview Park Codified Ordinances 333.01(A)(1)(a) and529.07(B)(4) was based upon insufficient evidence and was otherwise against the sufficient and/or manifest weight of the evidence and not beyond a reasonable doubt contrary to Ohio law and the state and federal constitutions. - The appellant was denied due process and fundamental fairness when the City of Fairview Park failed to produce probative, reliable, and exculpatory evidence, which was available and within its control, and which appellant had requested during the evidence state of proceedings.
- The cumulative and totality of the circumstances so severely prejudiced the prosecution of appellant as to require a new trial.
IV. Discussion
A. Denial of motions in limine and to suppress evidence
{¶ 49} A “motion to suppress” is a “[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation” of constitutional rights. State v. French, 72 Ohio St.3d 446, 650 N.E.2d 887 (1995), citing Black‘s Law Dictionary 1014 (6th Ed.1990). An appellate court‘s review of a motion to suppress is subject to de novo review because it involves a mixed question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Under this bilateral standard of review, we give deference to the trial court‘s findings of fact if supported by competent, credible evidence. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). However, an appellate court independently determines whether the facts satisfy the applicable legal standard. Id.
{¶ 50} A motion in limine “is usually made before or after the beginning of a jury trial for a protective order against prejudicial [evidence], questions and statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial.” (Citation omitted.) State v. Grubb, 28 Ohio St.3d 199, 200, 503 N.E.2d 142 (1986). The standard of review for a motion in limine is whether the trial court abused its discretion regarding a request to limit or exclude evidence or testimony at trial. Sokolovic v. Hamilton, 195 Ohio App.3d 406, 2011-Ohio-4638, 960 N.E.2d 510, ¶ 13 (8th Dist.), citing State v. Graham, 58 Ohio St.2d 350, 390 N.E.2d 805 (1979); State v. May, 11th Dist. Ashtabula No. 2005-A-0011, 2006-Ohio-3406.
1. Lack of reasonable suspicion and probable cause
{¶ 51} Bowman first claims that the city lacked reasonable suspicion to stop and search/test him and lacked probable cause to arrest him. We disagree.
{¶ 52} Individuals are protected from unreasonable searches and seizures by the
{¶ 53} For an arrest to be constitutionally compliant, the arresting officer must have probable cause to believe the individual has committed a crime. Id. at ¶ 57, citing Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “In determining whether the police had probable cause to arrest appellant for OVI, we must determine whether, at the moment of arrest, the police had information sufficient to cause a prudent person to believe that the suspect was driving under the influence.” Id., citing id. at 91.
{¶ 54} “A probable cause determination is based on the ‘totality’ of facts and circumstances within a police officer‘s knowledge.” Id., citing State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997). “[T]he odor of alcohol, glassy eyes, slurred speech, and other indicia of alcohol use by a driver are, in and of themselves, insufficient to constitute probable cause to arrest.” Id., citing Kirtland Hills v. Deir, 11th Dist. Lake No. 2004-L-005, 2005 Ohio 1563, ¶ 16. However, “they are factors to be considered in determining the existence of probable cause.” Id., citing id.
2. Extraterritorial Stop
{¶ 55} The city advances that
{¶ 56} Bowman replies that
- The pursuit takes place without unreasonable delay after the offense is committed;
- The pursuit is initiated within the * * * limits of the territorial jurisdiction of the peace officer;
- The offense involved is a felony, a misdemeanor of the first degree or a substantially equivalent municipal ordinance, a misdemeanor of the second degree or a substantially equivalent municipal ordinance, or any offense for which points are chargeable pursuant to section 4510.036 of the Revised Code.
{¶ 57} This court has held that the exclusionary rule is used to remedy violations of constitutional rights but not state statutes. State v. Ponce, 8th Dist. Cuyahoga No. 91329, 2010-Ohio-1741, ¶ 27, citing State v. Fannin, 8th Dist. Cuyahoga No. 79991, 2002-Ohio-6312, ¶ 9 (“The courts have held that a violation of
{¶ 58} The city also cites State v. Weideman, 94 Ohio St.3d 501, 764 N.E.2d 997 (2002), as justification for Officer Kelley‘s extraterritorial detention. Weideman held, “[W]here a law enforcement officer, acting outside the officer‘s statutorily territorial jurisdiction, stops and detains a motorist for an offense committed and observed outside the officer‘s jurisdiction, the seizure of the motorist by the officer is not unreasonable per se under the
{¶ 59} A court considers the “totality of the circumstances in determining whether a violation of a statutory standard is unreasonable per se thus requiring suppression of evidence.” Id. at 504. Thus, it is also possible that “a court could find that an extraterritorial stop is unreasonable based on the unique facts and circumstances of a particular case.” (Fn. omitted.) State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464, ¶ 14.5
- Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity.
- A telephone tip can, by itself, create reasonable suspicion justifying an investigatory stop where the tip has sufficient indicia of reliability.
Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999), paragraphs one and two of the syllabus.
In that case, we said that when “the information possessed by the police before the stop stems solely from an informant‘s tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip.” [Weisner] at 299. “The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.” Id. Acknowledging the three recognized categories of informants, we noted that an anonymous informant was comparatively unreliable and would consequently require independent police corroboration in order to demonstrate some indicia of reliability. Id. at 300. By contrast, we determined that an identified citizen informant may be highly reliable and, therefore, a strong showing as to other indicia of reliability may be unnecessary. Id.
3. Probable cause to arrest
4. R.C. 4513.17(D)
5. NHTSA test noncompliance
6. Breathalyzer
7. Bowman‘s statements
B. Sufficiency and manifest weight of the evidence
No person shall operate any vehicle within this Municipality, if, at the time of the operation, any of the following apply:
A. The person is under the influence of alcohol, a drug of abuse, or a combination of them.
(b) No person shall have in the person‘s possession an opened container of beer or intoxicating liquor in any of the following circumstances
(4) Except as provided in subsection (d) or (e) hereof, while operating or being a passenger in or on a motor vehicle on any street, highway or other public or private property open to the public for purposes of vehicular travel or parking * * *.
C. Failure to produce exculpatory evidence
D. New trial
V. Conclusion
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and
MICHAEL JOHN RYAN, J., CONCUR