State v. GhoucheState v. Ghouche
Dated: June 15, 2020
HENSAL, Judge.
{¶1} Harrison Ghouche appeals his conviction for operating a vehicle under the influence of alcohol from the Medina Municipal Court. This Court affirms.
I.
{¶2} This appeal presents a challenge to the trial court‘s denial of Mr. Ghouche‘s pretrial motion to suppress, and to his conviction for operating a vehicle under the influence of alcohol, which was rendered after a jury trial.
{¶3} According to his testimony at the suppression hearing, Trooper Betzel with the Ohio State Highway Patrol observed Mr. Ghouche‘s vehicle going 11 m.p.h. over the posted speed limit on State Route 303 in Brunswick at approximately 2:35 a.m. on a Friday morning. Trooper Betzel pulled behind Mr. Ghouche‘s vehicle and activated his overhead lights. Mr. Ghouche immediately slowed down, but drove for approximately 30 seconds and turned onto a side street before coming to a complete stop.
{¶4} When Trooper Betzel approached Mr. Ghouche‘s vehicle, he observed an odor of alcohol coming from inside the vehicle, and noticed that Mr. Ghouche‘s eyes were glassy and red. He did not indicate the strength of the odor of alcohol (i.e., mild, moderate, or strong), or that it was coming specifically from Mr. Ghouche‘s person. Trooper Betzel asked Mr. Ghouche for his driver‘s license and proof of insurance. While waiting for him to produce those items, Trooper Betzel asked Mr. Ghouche where he was coming from, and Mr. Ghouche responded that he was coming from Akron City Hospital, where he worked. Mr. Ghouche later clarified that he had stopped at a friend‘s house on his way home from work, which is how he ended up in Brunswick when he lives in University Heights on the east side of Cleveland.
{¶5} Mr. Ghouche produced his driver‘s license without issue, but was unable to access his insurance information on his phone. Trooper Betzel then asked Mr. Ghouche to step out of the vehicle and conducted three field sobriety tests: the Horizontal Gaze Nystagmus (“HGN“) test, the walk-and-turn test, and the one-leg-stand test. Trooper Betzel indicated that he observed 4 out of 6 clues of impairment during the HGN test, 5 out of 8 clues during the walk-and-turn test, and 4 out of 4 clues during the one-leg-stand test. Additionally, Trooper Betzel offered Mr. Ghouche a portable breathalyzer test, which he refused. Trooper Betzel then placed Mr. Ghouche under arrest and transported him to the station. While there, Trooper Betzel read and showed Mr. Ghouche the BMV 2255, and offered Mr. Ghouche another opportunity to take a breathalyzer test, which he ultimately did not take.
{¶6} Mr. Ghouche was charged with operating a vehicle under the influence of alcohol or drugs in violation of
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT TROOPER BETZEL HAD REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY THE CONTINUED DETENTION FOR FIELD SOBRIETY TESTING.
{¶7} In his first assignment of error, Mr. Ghouche argues that the trial court erred by denying his motion to suppress relative to whether Trooper Betzel had reasonable, articulable suspicion to justify his continued detention for field sobriety testing. This Court disagrees.
{¶8} Appellate review of a trial court‘s 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. The trial
{¶9} The
{¶10} Trooper Betzel testified at the suppression hearing that he pulled Mr. Ghouche over for speeding at approximately 2:35 a.m. on a Friday morning. He testified that Mr. Ghouche‘s speed did not indicate that he was impaired, but that Mr. Ghouche took longer than usual to bring his vehicle to a stop. He acknowledged, however, that pulling onto a side road was safer than stopping on S.R. 303. Trooper Betzel testified that he noticed an odor of alcohol when he approached Mr. Ghouche‘s vehicle, and that he noticed that Mr. Ghouche‘s eyes were red and glassy. Additionally, Trooper Betzel testified that Mr. Ghouche initially told him he was coming from work, but – when questioned further regarding his route of travel – indicated that he had stopped at a friend‘s house. He further testified that Mr. Ghouche had trouble accessing his insurance information on his phone, and that Mr. Ghouche offered him his registration despite the fact that he did not ask for it.
{¶11} In denying Mr. Ghouche‘s motion to suppress, the trial court relied on a number of factors. Included in those factors were: (1) the time of the stop (i.e., 2:35 a.m.); (2) the time it took Mr. Ghouche to bring his vehicle to a complete stop; (3) the fact that Mr. Ghouche made a wide turn when turning onto the side street; (4) Mr. Ghouche‘s speed, which – it noted – can be evidence of erratic driving; (5) Mr. Ghouche‘s red, glassy eyes; (6) the odor of alcohol; (7) Mr. Ghouche‘s inability to access his insurance information on his phone; and (8) Mr. Ghouche offering his registration despite not being asked for it.
{¶12} Initially, this Court takes issue with the trial court‘s reliance on Mr. Ghouche‘s speed, and the fact that he executed a wide turn onto the side street. Trooper Betzel specifically testified that Mr. Ghouche‘s speed was not an indicator of impairment. While “reasonable
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION TO SUPPRESS[] BECAUSE TROOPER BETZEL LACKED PROBABLE CAUSE TO ARREST DEFENDANT.
{¶13} In his third assignment of error, Mr. Ghouche argues that the trial court erred by denying his motion to suppress because Trooper Betzel lacked probable cause to arrest him. This Court disagrees.
{¶14} “[T]his Court reviews a probable cause determination de novo.” State v. Russo, 9th Dist. Medina No. 09CA0009-M, 2009-Ohio-6914, ¶ 6, quoting Sunday, 2006-Ohio-2984, at ¶ 28.
{¶15} Notably, the “totality of the facts and circumstances can support probable cause for arrest even in the absence of the administration of field sobriety tests[,]” or “where the test results should have been excluded for lack of compliance with certain standards.” Russo at ¶ 10; State v. Keene, 7th Dist. Mahoning No. 08 MA 95, 2009-Ohio-1201, ¶ 28; see State v. George, 9th Dist. Wayne No. 13CA0036, 2014-Ohio-4123, ¶ 7, quoting
ASSIGNMENT OF ERROR IV
DEFENDANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17} In his fourth assignment of error, Mr. Ghouche argues that his conviction was against the manifest weight of the evidence. This Court disagrees.
{¶19} Mr. Ghouche argues that Trooper Betzel‘s dash cam video shows that he skillfully performed the field sobriety tests and demonstrates that he was not under the influence of alcohol. Mr. Ghouche also argues that the jury was overly influenced by his refusal to submit to a breathalyzer test, and that it relied too heavily on Trooper Betzel‘s testimony.
{¶20} This Court‘s review of the dash cam video supports Trooper Betzel‘s testimony in several respects, including that Mr. Ghouche stepped off of the imaginary line during the walk-and-turn test, and that he swayed and hopped during the one-leg-stand test. Additionally, this Court has no way of knowing whether Mr. Ghouche‘s refusal to submit to a breathalyzer test influenced the jury‘s decision, or which testimony from Trooper Betzel the jury believed. The jury was “free to believe all, part, or none of the testimony of each witness[,]” including Mr. Ghouche‘s testimony regarding the events that transpired. Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.
{¶21} Further, to the extent that Mr. Ghouche‘s assignment of error can be construed as arguing that the evidence weighed heavily in his favor absent Trooper Betzel‘s testimony regarding the results of the field sobriety tests (the admission of which Mr. Ghouche has challenged in his
{¶22} This Court “will not overturn the [jury‘s] verdict on a manifest weight of the evidence challenge only because the trier of fact chose to believe certain witness’ testimony over the testimony of others.” State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 15. Having reviewed the record, this Court cannot say that this is the exceptional case where the evidence weighs heavily against conviction. Mr. Ghouche‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
WHEN CONSIDERED IN THE LIGHT MOST FAVORABLE TO THE STATE, THE EVIDENCE PRESENTED AT TRIAL WAS NOT LEGALLY SUFFICIENT TO FIND DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.
{¶23} In his fifth assignment of error, Mr. Ghouche argues that the State failed to present sufficient evidence to support his conviction for driving under the influence of alcohol. This Court disagrees.
{¶24} A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “[T]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Although we conduct de novo review, “we neither resolve evidentiary conflicts nor assess the credibility of
{¶25}
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN FINDING THAT THE FIELD SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH NHTSA STANDARDS.
{¶26} In his second assignment of error, Mr. Ghouche argues that the trial court erred when it determined that Trooper Betzel conducted the field sobriety tests in substantial compliance with the NHTSA standards. He asserts that his conviction, therefore, should be vacated, but otherwise provides no argument within his assignment of error as to how the trial court‘s alleged error in this regard prejudiced him. This is significant given an appellant‘s burden on appeal, and
III.
{¶27} Mr. Ghouche‘s assignments of error are overruled. The judgment of the Medina Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J. CONCURS.
CARR, P. J. CONCURRING IN JUDGMENT ONLY.
{¶28} I respectfully depart from the majority regarding its analysis of which facts are relevant to the reasonable suspicion analysis in the first assignment of error. Whether a police officer has reasonable suspicion is measured by courts objectively while taking into account the totality of the circumstances. State v. Borum, 9th Dist. Summit No. 27167, 2014-Ohio-5639, ¶ 11. It is well settled that “the circumstances surrounding the stop must ‘be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his [or her] experience and training.‘” State v. Bobo, 37 Ohio St.3d 177, 179 (1988), quoting United States v. Hall, 525 F.2d 857, 859 (D.C. Cir.1976). There is no dispute that an officer‘s training and experience can aid the officer in detecting the existence of specific and articulable facts that are relevant to whether further investigation is justified. State v. Gaylord, 9th Dist. Summit No. 22406, 2005-Ohio-2138, ¶ 9. While a reasonable and cautious police officer may rely on his or her training and experience in discerning the existence of an articulable fact, however, an officer‘s subjective belief regarding the probative value of a particular fact is not relevant to a court‘s reasonable suspicion analysis.
{¶29} In this case, I would conclude that the trial court‘s reliance on the fact that Ghouche was speeding was an appropriate consideration under its reasonable suspicion analysis. This Court has recognized that speeding is a factor that can be considered under the totality of the circumstances when making a determination whether a driver is impaired. See State v. Spees, 9th Dist. Summit No. 17CA0061-M, 2018-Ohio-2568, ¶ 34 (noting the fact that a driver was speeding in the middle of the night supported an officer‘s decision to arrest a driver for driving under the influence). There is no doubt that Ghouche was speeding in this case, though Trooper Betzel expressed a subjective belief that Ghouche‘s speeding was not indicative of impairment. While Trooper Betzel‘s subjective belief as to the probative value of that particular fact was indeed rooted in his training and experience, his subjective belief in that regard does not negate the fact of Ghouche‘s speeding, which was supported by competent, credible evidence. Accordingly, Trooper Betzel‘s subjective belief did not preclude the trial court from considering that fact in determining whether reasonable suspicion existed to prolong the traffic stop.
{¶30} Furthermore, assuming arguendo that the trial court‘s finding that Ghouche took a wide left turn was supported by competent credible evidence, that fact would also be relevant to the trial court‘s reasonable suspicion analysis as it further evidences impaired driving.
{¶31} I concur in judgment only with respect to the remainder of the opinion.
APPEARANCES:
JOSEPH C. PATITUCE, MEGAN M. PATITUCE, and CHRISTOPHER WOODWORTH, Attorneys at Law, for Appellant.
J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.