STATE OF OHIO v. TERRY L. GLADMAN, II
C.A. CASE NO. 2013 CA 99
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
June 13, 2014
2014-Ohio-2554
T.C. NO. 12TRC12332 (Criminal appeal from Municipal Court)
Rendered on the 13th day of June, 2014.
MARC T. ROSS, Atty. Reg. No. 0070446, Prosecutor‘s Office, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Blvd., Suite A, Beavercreek, Ohio 45430
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Terry L. Gladman, II, appeals his conviction and sentence for one count of operating a vehicle under the influence of alcohol (OVI), in
{¶ 2} The incident which gives rise to the instant appeal occurred on October 13, 2012, at approximately two a.m. when Sergeant Brad Barnhart of the Clark County Sheriff‘s Office observed a truck driven by Gladman merge onto East National Road in Clark County, Ohio, from the vicinity of the Horseshoe Bar. While following behind, Sgt. Barnhart observed the truck drive onto or cross over the white line on the edge of the road between eight to ten times within a span of two miles. Sgt. Barnhart testified that he also observed that Gladman turned on his turn signal for approximately ten seconds but never turned anywhere. Based on his observations, Sgt. Barnhart activated his overhead lights and initiated a traffic stop of the truck.
{¶ 3} Upon approaching the truck and speaking with Gladman, Sgt. Barnhart observed that his eyes were glassy, his speech was very slurred, and that he had a “moderate” odor of alcohol about his person. Sgt. Barnhart asked for Gladman‘s license, registration, and proof of insurance. Gladman, however, only provided Sgt. Barnhart with his driver‘s license. Sgt. Barnhart testified that Gladman did not attempt to locate his registration or proof of insurance. Sgt. Barnhart asked Gladman if he had been drinking. Gladman admitted to drinking three beers in the last hour at the Horseshoe Bar.
{¶ 4} Before asking Gladman to exit the vehicle, Sgt. Barnhart directed him to recite the alphabet from the letter “D” to the letter “R,” but Gladman was unable to do so. Sgt. Barnhart ordered Gladman out of the truck in order to submit to field sobriety tests. Sgt. Barnhart testified that when he got out of the truck, Gladman was unsteady on his feet
{¶ 5} Sgt. Barnhart subsequently arrested Gladman and transported him to the Clark County Jail. At the jail, Sgt. Barnhart asked Gladman if he would consent to a breathalyzer exam. Gladman submitted to the exam, and he registered two times. The machine, an Intoxylizer 8000, obtained valid readings from both tests and reported the lower of the two readings as indicative of Gladman‘s alcohol level. Specifically, Gladman‘s blood alcohol level measured .149 grams of alcohol per 210 liters of breath.
{¶ 6} Gladman was charged with operating a vehicle under the influence of alcohol, in violation of
{¶ 7} A hearing was held on Gladman‘s motion to suppress on April 16, 2013. In a judgment entry filed on June 12, 2013, the trial court overruled Gladman‘s motion to suppress. Gladman subsequently pled no contest to one count of OVI, in violation of
{¶ 8} It is from this judgment that Gladman now appeals.
{¶ 9} Gladman‘s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED BY FAILING TO SUPPRESS ALL EVIDENCE BECAUSE THE POLICE OFFICER DID NOT HAVE A REASONABLE, ARTICULABLE SUSPICION APPELLANT WAS DRIVING UNDER THE INFLUENCE OF ALCOHOL, THUS HAVING NO REASON TO DETAIN THE APPELLANT FOR THE PURPOSE OF ADMINISTERING A FIELD SOBRIETY TEST AND SUBSEQUENT BREATHALYZER TEST.”
{¶ 11} In his first assignment, Gladman contends that the trial court erred when it overruled his motion to suppress all of the evidence seized as a result of a traffic stop conducted by Sgt. Barnhart. Specifically, Gladman argues that he had only committed de minimis traffic violations that did not provide Sgt. Barnhart with a reasonable articulable suspicion to initiate a traffic stop. Gladman also argues that there was little or no evidence that he was driving while under the influence of alcohol.
{¶ 12} In regards to a motion to suppress, “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),
{¶ 13} The
{¶ 14} A police officer may stop and detain a motorist when he has a reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit any criminal offense, including a traffic offense, and no independent reasonable and articulable suspicion of other criminal activity is required under Terry. State v. Stewart, 2d Dist. Montgomery No. 19961, 2004-Ohio-1319, at ¶ 13; Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996). We determine the existence of reasonable suspicion by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047.
{¶ 16} In State v. Clark, 2d Dist. Darke No. 1733, 2009-Ohio-529, a police officer observed the defendant drift across the right hand berm line twice before initiating a traffic stop. After initiating the stop, the officer noticed a “medium” odor of alcohol emanating from the defendant. The officer further testified that the defendant had bloodshot, glassy eyes, his speech was slurred, and he was having trouble walking. We found that the officer had a reasonable and articulable suspicion that the defendant had committed a marked lane violation, in derogation of
{¶ 17} Similar to the circumstances observed in Clark, Sgt. Barnhart observed Gladman drive onto or cross over the white line on the edge of the road between eight to ten times within a span of two miles. We note that Sgt. Barnhart observed the foregoing traffic violations occur immediately after Gladman left the vicinity of a bar at approximately two a.m. Sgt. Barnhart testified that he also observed that Gladman activated his turn signal for approximately ten seconds but never turned anywhere. Based on his observations, Sgt. Barnhart was clearly justified in initiating a traffic stop of Gladman‘s vehicle.
{¶ 18} Moreover, upon approaching the vehicle, Sgt. Barnhart observed that Gladman‘s eyes were glassy, his speech was very slurred, and that he had a “moderate” odor of alcohol about his person. Sgt. Barnhart asked for Gladman‘s license, registration, and proof of insurance. Gladman, however, only provided Sgt. Barnhart with his driver‘s license. Sgt. Barnhart testified that Gladman did not attempt to locate his registration or proof of insurance. Significantly, Sgt. Barnhart asked Gladman if he had been drinking, and he admitted to drinking three beers in the last hour at the Horseshoe Bar. In light of the foregoing, Sgt. Barnhart had sufficient indicia of Gladman‘s intoxication to establish a reasonable, articulable suspicion to detain him for field sobriety tests. We also note that Gladman failed all three field sobriety tests administered by Sgt. Barnhart, thereby further justifying his arrest for OVI.
{¶ 19} Gladman‘s first assignment of error is overruled.
{¶ 20} Gladman‘s second and final assignment of error is as follows:
{¶ 22} In his final assignment, Gladman argues that the evidence adduced at the suppression hearing established that Sgt. Barnhart administered the breathalyzer test improperly. Thus, Gladman asserts that the results of the test should have been suppressed.
{¶ 23} We note that Gladman pled no contest to OVI, in violation of
{¶ 24} A conviction under
{¶ 26} Both of Gladman‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Marc T. Ross
David M. McNamee
Hon. Denise L. Moody