State v. FinkState v. Fink
Darin S. Barber, 12 East Warren Street, Lebanon, OH 45036, for defendant-appellant
O P I N I O N
POWELL, P.J.
{¶1} Defendant-appellant, Christopher D. Fink, appeals from the decision of the Mason Municipal Court denying his motion to suppress evidence of field sobriety test results, as well as his conviction for driving under the influence of alcohol and underage consumption. We affirm in part and reverse in part.
{¶2} In the early morning hours of March 11, 2008, appellant was driving home
{¶3} Upon his arrival, Deputy Everhart found appellant standing beside the crashed vehicle. Appellant admitted that he had been driving.1 Thereafter, while speaking with аppellant, Deputy Everhart noticed a “very strong odor of alcoholic beverage coming from his person,” and that his speech was “lethargic” and “kind of slow.” Deputy Saylor, who had since arrived at the scene, also noticed an odor of alcoholic beverage emanating from appellant, as well as from the overturned vehicle. After first denying that he had anything to drink, appellant later admitted to consuming alcohol that evening. At that point, Deputy Saylor administered thе horizontal gaze nystagmus (HGN) test, a standardized field sobriety test, to appellant.
{¶4} After appellant completed the HGN test, Deputy Everhart asked him to perform the walk-and-turn and one-leg stand tests, two other standardized field sobriety tests, to which he agreed. At the conclusion of the field sobriety tests, and after Deputy Everhart ran appellant‘s Social Security number through the police computer, appellant was arrested and transported to the Deerfield Township Post, a part of Warren County Sheriff‘s Department. Appellant later refused to submit to a breathalyzer test.
{¶5} Appellant was subsequently charged with driving under the influence of alcohol (OVI) in violation of
misdemeanor, and failure to control in violation of
{¶6} Appellant now appеals the trial court‘s decision overruling his motion to suppress, as well as its decision denying his
{¶7} Assignment of Error No. 2:
{¶8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT OVERRULED HIS OBJECTIONS TO DEPUTY EVERHART‘S TESTIMONY AS TO THE ALLEGED BIRTH DATE OF DEFENDANT-APPELLANT.”
{¶9} In his second assignment of error, appellant argues that the trial court erred by permitting Deputy Everhart to testify regarding his date of birth at trial. Specifically, appellant claims the testimony regarding his birth date, which Deputy Everhart apparently obtained from the Law Enfоrcement Automated Data System (“LEADS“), was inadmissible hearsay, and therefore, since this testimony was the only evidence regarding his age, his conviction for underage consumption should be reversed.2 We agree.
{¶10} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Roten, 149 Ohio App.3d 182, 2002-Ohio-4488, ¶5. An appellate court will not disturb a trial court‘s ruling as to the exclusion of evidence absent an abuse of discretion “and the defendant has been materially prejudiced thereby.” Roten at ¶6; State v. McCroskey, Stark App. No. 2007CA00089, 2008-Ohio-2534, ¶36. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130.
{¶11} As defined by
{¶12} Appellant was charged with underage consumption in violation of
{¶13} After being asked if he was able to determine appellant‘s age, Deputy Everhart, over appellant‘s objection, testified as follows:
{¶14} “Yes, we got his Social Security number, ran it through the LEADS and I believe he was nineteen at the time * * *.”
{¶16} “His date of birth, I copied it down, 5/28/89, which would have been 18 years old at the time.”
{¶17} Deputy Everhart also testified that he never asked appellant his age, and that appellant did not provide him with his driver‘s license. The state provided no further evidence relating to appellant‘s age or date of birth.
{¶18} After a careful review of the record, it is apparent that Deputy Everhart testified regarding appellant‘s date of birth based solely on undocumented computer generated information that he received through LEADS, and that this information went uncorroborated due to the state‘s failure to provide the trial court with a copy of appellant‘s driver‘s license, or with a printout of the LEADS report.3 See State v. Fair (Mar. 6, 1998), Wood App. No. WD-97-054, 1998 WL 114218 at *2. As a result, because there was no evidence indicating appellant told Deputy Everhart his age, nor was there any evidence that Deputy Everhart had personal knowledge of appellant‘s age and date of birth beyond that which he received from the police computer, the trial court erred by admitting Deputy Everhart‘s testimony regarding appellant‘s date of birth as it was inadmissible hearsay. Id.; see State v. Wolderufael, Franklin App. No. 02AP-1148, 2003-Ohio-3817; Cleveland v. Mohamoud, Cuyahoga App. No. 84333, 2004-Ohio-6104; see, also, State v. Eberts (Sept. 26, 2000), Franklin App. No. 99AP-1327, 2000 WL 1376447.
{¶19} Further, because Deputy Everhart‘s testimony was the only evidence referencing appellant‘s age or date of birth, appellant was clearly prejudiced by its admission at trial. Fair, 1998 WL 114218 at *2; State v. Sims, Butler App. No. CA2007-11-300, 2009-Ohio-550, ¶16. Therefore, because the state failed to prove appellant was underage, an essential element of an underage consumption charge, we hereby sustain appellant‘s second assignment of error and order his conviction for undеrage consumption be reversed.
{¶20} Assignment of Error No. 1:
{¶21} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION TO SUPPRESS THE EVIDENCE.”
{¶22} In his first assignment of error, appellant argues the trial court erred in its decision denying his motion to suppress evidence of field sobriety tests because the state “failed to show the necessary requisite level of compliance with accepted testing standards.”
{¶23} Appellate review of a ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332. When considering a motion to suppress, the trial court assumes the rоle of the trier of fact, and therefore, is in the best position to resolve factual questions and evaluate witness credibility. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. In turn, the reviewing court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence, and then determine as a matter of law, without deferring
{¶24} Pursuant to
{¶25} The extent of the state‘s burden of proof establishing compliance with the applicable standards “only extends to the level with which the defendant takes issue with the legality of the test.” State v. Wyatt, Clermont App. No. CA2008-01-013, 2008-Ohio-5667, ¶10; State v. Crothers, Clinton App. No. CA2003-08-020, 2004-Ohio-2299, ¶10. As a result, where the defendant‘s motion to suppress merely raises issues in general terms and is not sufficiently specific, the state‘s burden to show compliance is slight and it need only “present general testimony that there was compliance.” Henry, 2009-Ohio-10 at ¶12.
{¶26} The typical standards applicable to field sobriety tests, and that were used in this case, are those from the NHTSA manual. State v. Jimenez, Warren App. No. CA2006-01-005, 2007-Ohio-1658, ¶12. In order to satisfy its burden of proof, the state is not required to show strict compliance with the NHTSA standards, but instead need only establish substantial compliance by clear and convincing evidence.
{¶27} As noted in Plunkett, this court has repeatedly been faced with OVI cases where the defendant files a boilerplate motion to suppress that merely contains a laundry list of virtually every fathomable defect that could occur in the collection of evidence. Plunkett at ¶14. This case is of no exception.
{¶28} Appellant‘s motion lists the evidence he seeks to have suppressed, including field sobriety tests and observations of the police officer, and is followed by a number of vague grounds upon which the motiоn is based,4 including the general claim that “the tests were not administered in substantial compliance with the testing standards in effect at the time the tests were administered.” These stated grounds, although sufficient to place the state and the court on notice that he challenged the administration of the field sobriety tests in general, fail to provide anything more than the same vague language that we have considered insufficient to raise the state‘s slight burden previously. See, e.g., Plunkett at ¶15-19, 25; Wood at ¶13; Wyatt at ¶12; Henry at ¶14-19.
{¶29} In addition, appellant‘s аccompanying “Memorandum in Support” is nearly entirely comprised of boilerplate language that does nothing more than relay legal concepts, only some of which were applicable, and provides only one paragraph evidencing the specific facts of the case. Plunkett at ¶16-17; Wyatt at ¶12-14. That paragraph reads as follows:
{¶30} “Warren County Sheriff‘s deputies encountered [appellant] on March 11, 2008 after he had an accident in his vehicle. The encounter occurred on Rich Road at about 4:00 a.m. He wаs arrested for operating a motor vehicle under the influence in violation of
{¶31} This statement, which contains even less information than other factual statements that we have found insufficient to raise the state‘s burden previously, does
{¶32} Further, although the necessary factual basis can be obtained during cross-examination at the motion hearing, appellant failed to do so in this case. Plunkett at ¶26; Wyatt at ¶15. After reviewing the record, аppellant failed to ask specific questions during his cross-examination to support his claim that the NHTSA standards were not followed. Instead, appellant‘s cross-examination, which spans a total of four pages, merely consists of generalized questions regarding the road conditions observed and listed on the incident report, the arresting officer‘s observations during the administration of the field sobriety tests, and whether he was familiar with the NHTSA manual. As a result, we find appellant‘s questioning also failed to provide any factual basis with sufficient particularity to raise the state‘s slight burden of proof.5
{¶33} Accordingly, because appellant‘s motion to suppress contains only general claims and vague assertions, and because appellant‘s cross-examination did not allege any factual basis with sufficient particularity, we find the state needed only to address
Walk-and-Turn Test
{¶34} With respect to the walk-and-turn test, appellant first argues that the trial court erred by denying his motion to suppress because “the [road] conditions at that time were deplorable and unacceptable,” and therefore, not administered in substantial compliance with NHTSA standards.
{¶35} The NHTSA manual lists specific instructions officers are taught to provide the suspect prior to the walk-and-turn test, and recommends certain test conditions in which the test should be performed. Wood, 2008-Ohio-5422 at ¶20. Specifically, the NHTSA manual calls for the walk-and-turn test to be conducted on a “reasonably dry, hard, level, non-slippery surface.” However, “the conditions will seldom be perfect,” and simply because the environmental conditions were less than ideal does not, by itself, render the test result invalid. State v. Benson, Portage App. No. 2001-P-0086, 2002-Ohio-6942, ¶10; Marcinko, 2007-Ohio-1166 at ¶17. In addition, as the NHTSA manual explicitly states, “[r]ecent field validation studies have indicated that varying environmental conditions have not affected a suspect‘s ability to pеrform [the walk-and-turn] test.” State v. Mapes, Fulton App. No. F-04-031, 2005-Ohio-3359, ¶49.
{¶36} In an effort to conduct the walk-and-turn test, Deputy Everhart testified that he “took [appellant] to where the crash of the vehicle was.” However, after realizing that the crash scene was “actually on a pretty good grade,” Deputy Everhart testified that he escorted appellant to the back of his cruiser “where the grade [was] not absolutely level
{¶37} The trial court, in its decision denying appellant‘s motion to suppress the walk-and-turn test result, found Deputy Everhart “took [appellant] to a level grade” prior to conducting the test, and that “[t]here [was] no reason to believe that the [road] conditions were out of compliance with NHTSA standards.” After reviewing the record, and because performing a field sobriety test under less than ideal conditions does not automatically negate the test result, we find no error in the trial court‘s decision finding the walk-and-turn test was administered in substantial compliance with NHTSA standards based on the road conditions. See Jimenez, 2007-Ohio-1658 at ¶19; see, also, State v. Almonte, Portage App. No. 2005-P-0093, 2006-Ohio-6688, ¶22; State v. Barnett, Portage App. No. 2006-P-0117, 2007-Ohio-4954, ¶44 (slight grade in road does not prevent it from being level for purposes of walk-and-turn test).
{¶38} In addition, appellant claims that the trial court erred by denying his motion to suppress the walk-and-turn test result because there was “no evidence that a straight line was used.” However, Deputy Everhart was never questioned, either during direct or cross-examination, regarding his use of a straight line during the administration of the test. As stated in Plunkett, a motion to suppress “is not designed to be a game of hide and seek to see if the state fails to give testimony on every issue raised in the broad motion,” only to then rely upon the implicit omissions to support assertions of
One-Leg Stand Test
{¶39} With respect to the one-leg stand test, appellant initially argues that the trial court erred by denying his motion to suppress the result of this test because it was not administered under proper lighting conditions. However, although the test was administered to appellant behind Deputy Everhart‘s cruiser during the early morning hours, there is no evidence in the record that the test cannot be performed in dimly lit conditions,6 nor was there any evidence that the lighting conditions interfered in any way, material or otherwise, with appellant‘s performance. Therefore, we find no error in the trial court‘s decision finding the one-leg stand test administered in substantial compliance with the NHTSA standards based on the alleged insufficient lighting conditions.7
{¶40} In addition, appellant argues that the trial court erred by denying his motion to suppress because Deputy Everhart “did not testify to any of the clues that [were] part of the test.” However, while it may be true that Deputy Everhart made no reference to the four specific “clues” listed in the NHTSA manual, such a failure is not indicative as to
{¶41} Regardless, contrary to appellant‘s claim, and although he made no reference to the specific “clues” listed in the NHTSA manual, Deputy Everhart never offered any testimony regarding the result of the one-leg stand test. Instead, Deputy Everhart testified as to his observations of appellant during the administration of the test, which included testimony that appellant failed to “raise his foot the six inches,” he did not “point his toe out,” he continuously looked down at his feet, and, while counting to 30, he “missed” the number 22 all together. It is well-established that a law enforcement officer may testify as а lay witness regarding the observations made during a defendant‘s performance of the standardized field sobriety tests, which is exactly what occurred here. Schmitt, 2004-Ohio-37 at syllabus; State v. Hammons, Warren App. No. CA2004-01-008, 2005-Ohio-1409, ¶5; State v. Kirby, Butler App. No. CA2002-06-136, 2003-Ohio-2922, ¶17. Therefore, despite Deputy Everhart‘s failure to testify regarding the “clues” listed in the NHTSA manual, because there was evidence indicating Deputy Everhart properly administered the one-leg stand test in substantial compliance with the NHTSA standards, the trial court did not err by denying appellant‘s motion to suppress the one-leg stand test result, as there was no result tо suppress.
{¶42} With respect to the HGN test, appellant argues that the trial court erred by denying his motion to suppress because “there was no evidence of compliance with the NHTSA standards.” After reviewing the record, it is clear that the state provided absolutely no evidence regarding the administration of the HGN test to appellant at the suppression hearing. In fact, Deputy Saylor, the officer who administered the HGN test to appellant, did not even testify. Therefore, even though the state‘s burden was slight, the trial court erred by denying appellant‘s motion to suppress the result of the HGN test because there was simply no evidence presented at the suppression hearing to establish whether the test was administered to him in substantial compliance with NHTSA standards.
{¶43} In light of the foregoing, we find that the trial court erred in denying appellant‘s motion to suppress with respect to the HGN test result, and therefore, the result was inadmissible at trial. However, upon further review, we find such error was harmless аs the state presented more than enough evidence to support appellant‘s OVI conviction even without the result of the HGN test. State v. Williams (1983), 6 Ohio St.3d 281, 290.
{¶44} Appellant was convicted of OVI in violation of
{¶45} “No person shall operate any vehicle * * * within this state, if, at the time of the operation * * * [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.”
{¶46} At trial, the state presented evidence indicating appellant had been driving
{¶47} After reviewing the record, and viewing the evidence in a light most favorable to the state, we find that there was ample evidence to convict appellant of OVI beyond a reasonable doubt. See State v. Norris, 168 Ohio App.3d 572, 2006-Ohio-4325, ¶13-17. As a result, because we find the evidence sufficient to support appellant‘s OVI conviction even without the otherwise inadmissible HGN test result, the trial court‘s error in denying his motion to suppress was harmless. Therefore, aрpellant‘s second assignment of error is overruled.
{¶48} Assignment of Error No. 3:
{¶49} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE‘S CASE-IN-CHIEF AND AT THE CLOSE OF ALL THE EVIDENCE.”
{¶50} In his third assignment of error, appellant argues that the trial court erred in denying his
{¶51} Judgment affirmеd in part, reversed in part and remanded for further proceedings.
RINGLAND and HENDRICKSON, JJ., concur.