STATE OF OHIO v. DANIEL BILLITER
CASE NO. 10 MO 5
STATE OF OHIO, MONROE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 24, 2012
2012-Ohio-4551
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
Criminal Appeal from the County Court of Monroe County, Ohio, Case No. 09 TRC 55. Judgment: Affirmed.
For Plaintiff-Appellee: Atty. Thomas A. Hampton, Assistant Prosecuting Attorney, P.O. Box 480, 101 Courthouse, Woodsfield, Ohio 43793
For Defendant-Appellant: Atty. Douglas A. King, Hartford, Dickey & King Co., LPA, 91 West Taggart Street, P.O. Box 85, East Palestine, Ohio 44113
WAITE, P.J.
{¶1} Appellant Daniel Billiter (“Appellant“) appeals the judgment of the Monroe County Court convicting and sentencing him for operating a motor vehicle while under the influence of alcohol (“OMVI“). Appellant assigns as error: (1) the trial court‘s finding that Deputy Chappell had probable cause to arrest him; and (2) the trial court‘s finding that there was no violation of Appellant‘s Miranda rights. The prosecutor has effectively argued that Deputy Chappell did have probable cause to arrest Appellant. In addition to the observation of Appellant‘s glassy eyes, slurred speech, odor of alcohol, and failure to stop at a stop sign, Deputy Chappell noticed Appellant earlier in the evening showing signs of intoxication and admitting that he was intoxicated. Regarding the Miranda issue, the record indicates that Appellant waived his Miranda rights. For these reasons, the judgment of the trial court is affirmed.
Statement of Facts
{¶2} On the evening of October 5, 2009, Monroe County Sheriff Deputy Robert Chappell was dispatched to investigate a disturbance at the Chevron Par-Mar convenience store in Hannibal, Ohio. It was reported to Deputy Chappell that Appellant was intoxicated and threatened to blow up a building across the Ohio River in West Virginia. (Tr., pp. 6-7.)
{¶3} Deputy Chappell drove from the convenience store to Appellant‘s home in Sardis, Ohio. While he and the deputy discussed Appellant‘s conduct at the convenience store, he noticed signs that Appellant had been drinking, which included slurred speech and a very strong odor of alcohol. (Tr., pp. 9-10.) Appellant told
{¶4} Approximately three hours later, at 11:43 p.m., Deputy Chappell was sitting in his cruiser in Sardis two blocks from Appellant‘s home when he observed a pickup truck proceeding through an intersection without stopping at the stop sign. (Tr., p. 12.) He recognized the driver as Appellant. Deputy Chappell activated his lights and followed Appellant‘s vehicle, but Appellant failed to stop. Deputy Chappell then turned on his siren, and Appellant pulled over about two blocks from the intersection where he had disregarded the stop sign. (Tr., p. 15.)
{¶5} When Deputy Chappell approached the truck, Appellant had his window slightly rolled down. (Tr., p. 16.) The deputy told Appellant that he pulled him over for running a stop sign. Appellant asked him to just give him his ticket so he could leave. Deputy Chappell requested that he roll his window down further and hand over his license, registration, and proof of insurance. After fumbling for the papers, Appellant produced his license and registration. Even though Appellant had not rolled the driver‘s side window down any further, Deputy Chappell noticed Appellant had a strong odor of alcohol, glassy eyes, and slurred speech. Deputy Chappell again requested that Appellant roll his window down, turn off his motor, and step out of the vehicle, but Appellant refused. (Tr., p. 17.)
{¶7} At the Woodsfield Police Department, at 2:20 a.m., Deputy Chappell again read Appellant his Miranda warnings. Appellant verbally waived his Miranda rights but refused to sign the waiver form. Appellant was given a breath test using a BAC Datamaster, with a result of .228. (Tr., p. 32.) Appellant did not ask for an attorney and admitted to consuming alcohol. (Tr., pp. 34, 37.)
Procedural History
{¶8} On October 5, 2009, Appellant was charged with OMVI in Sardis, Ohio. Appellant filed a variety of pretrial motions including a motion to dismiss, motions to disqualify the judge and the prosecutor, and a motion to suppress evidence. All of Appellant‘s pretrial motions were denied. Appellant then entered a plea of no contest on June 18, 2010, to one count of first offense OMVI. Appellant was sentenced to twenty days in jail, with six days served and fourteen suspended; a fine of $675, with $300 suspended; a one-year license suspension; and two years of supervised
Standard of Review
{¶9} The standard of review with respect to a motion to suppress is limited to determining whether the trial court‘s findings are supported by competent, credible evidence. State v. Culberson, 142 Ohio App.3d 656, 660, 756 N.E.2d 734 (7th Dist.2001); State v. Lloyd, 126 Ohio App.3d 95, 100, 709 N.E.2d 913 (7th Dist.1998). Such a standard of review is appropriate because ” ‘[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.’ ” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). If there is competent and credible evidence supporting the trial court‘s findings, the reviewing court must independently determine, as a matter of law and without deference to the trial court‘s legal conclusions, whether the trial court met the applicable legal standards. Culberson at 660; Lloyd at 100-101.
ASSIGNMENT OF ERROR NO.1
THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE FOR THE ARREST OF DEFENDANT/APPELLANT FOR AN OVI OFFENSE.
{¶11} We have agreed with other courts that there is no probable cause to arrest for OMVI when “the only basis for arresting the defendant was the appearance of being intoxicated,” such as an odor of alcohol or glassy eyes. (Emphasis sic.) State v. Blake, 7th Dist. No. 01 CO 44, 2002-Ohio-5221, ¶38. Nevertheless, there
{¶12} In State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d 952 (2000), the Supreme Court of Ohio held that the totality of facts and circumstances surrounding an arrest may be used to support probable cause to make an arrest for OMVI. In Homan, the Supreme Court held that the arrest of the defendant was valid because of the totality of following factors: erratic driving, the driver‘s “red and glassy” eyes, the smell of alcohol on the driver‘s breath, and the driver‘s admission that she had been consuming alcoholic beverages. Id.
{¶13} Based on the ruling in Homan and the other aforementioned cases, Deputy Chappell had probable cause to arrest Appellant for violating
{¶14} Following this encounter, just before midnight, Deputy Chappell observed Appellant driving erratically by failing to stop at a stop sign. During the traffic stop, Deputy Chappell noticed a strong smell of alcohol. Appellant had difficulty producing his license and registration, and refused to comply with Deputy Chappell‘s simple orders to roll down his window and put his car in park. Appellant‘s continued refusal to cooperate was so pervasive that backup had to be called in.
{¶15} The facts and circumstances surrounding Deputy Chappell‘s encounter with Appellant on the night of his arrest amply support the conclusion that he had probable cause to arrest Appellant for OMVI. Thus, the trial court‘s ruling that there was probable cause for arrest was correct and Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT/APPELLANT‘S MOTION TO SUPPRESS HIS STATEMENTS.
{¶16} A defendant‘s waiver of his Miranda rights must be given voluntarily, knowingly, and intelligently. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515 (1986). An explicit waiver in writing is not required, if the defendant‘s conduct
{¶17} The record reveals that Appellant received Miranda warnings twice. Nothing in the record indicates coercive police conduct while Appellant was being questioned. Appellant verbally waived his rights after the second reading of his Miranda warnings, and thereafter admitted to drinking. (Tr., p. 32.) At the suppression hearing, Appellant focused solely on his description of the intersection where the stop sign violation occurred, and denied that he had failed to stop at the stop sign. At no time did he dispute Deputy Chappell‘s testimony that he had waived his rights after receiving his second Miranda warning and subsequently made admissions to the deputy. The record reflects that there is no reason why Appellant‘s statement that he had been drinking should be suppressed, and his second assignment of error is overruled.
PRO SE ASSIGNMENTS OF ERROR
{¶18} The following pro se assignments of error are filed pursuant to the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED DEFENDANT/APPELLANT‘S MOTION TO DISMISS BASED ON SELECTIVE PROSECUTION OR ALTERNATIVELY MOTION TO DISQUALIFY PROSECUTORS AND WHEN THE TRIAL COURT DENIED DEFENDANT/APPELLANT‘S MOTION TO DISQUALIFY JUDGE.
{¶19} No error occurred when the trial court refused to dismiss the citation on the grounds of selective prosecution and refused to disqualify the judge and the prosecutor. Appellant claims that the judge had “preconceived facts and opinions” about him, but the court refused to excuse the judge and prosecutor from this case. (Appellee‘s Brf., p. 9.) An appellate court has no authority to disqualify a county court judge on grounds of bias, as this issue lies solely in the hands of the court of common pleas. State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, 783 N.E.2d 991, ¶18 (9th Dist.);
ANDERS ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY NOT SUPPRESSING DEFENDANT/APPELLANT‘S BAC TEST RESULTS AS TIMING OF ITS COLLECTION WAS IMPROPER.
{¶20} Pursuant to
{¶21} No error occurred when the trial court refused to suppress the result of the breath test due to an asserted failure to administer the test in a timely manner. The traffic stop occurred at 11:43 p.m. Less than two hours later, Deputy Chappell read Appellant the required warnings set forth in BMV form 2255. (Tr., p. 29.) The breath test was administered at 2:29 a.m., less than three hours after Deputy Chappell observed Appellant running the stop sign at the intersection. (Tr., pp. 5, 29.) Therefore, Deputy Chappell complied with
ANDERS ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY DENYING DEFENDANT/APPELLANT‘S REQUEST FOR A JURY VIEW.
{¶22} The standard of review of whether a jury view is appropriate is abuse of discretion.
{¶23} Appellant was seeking an order to have the jury view the intersection where the traffic violation occurred. The trial court did not err when it denied Appellant‘s request for a jury view. The view that Appellant sought would not assist the jury on the issues of whether Appellant drove while under the influence of alcohol or with a prohibited level of alcohol in his blood. The trial court concluded that photographs and videos of the intersection would suffice, and declined to transport
CONCLUSION
{¶24} Appellant asserted that the trial court erred in finding that Deputy Chappell had probable cause to arrest him and finding that there was no violation of his rights under Miranda. These arguments are without merit. The traffic violation, along with the officer‘s observations of Appellant during the evening of October 5, 2009, constitute probable cause to arrest. The record also indicates that Appellant effectively waived his rights under Miranda. Appellant‘s Anders assignments of error are also without merit. All of Appellant‘s assignments of error are overruled, and his conviction and sentence are affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.