State v. LothesState v. Lothes
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, George P. Lothes, III, appeаls the denial of his motion to suppress and his subsequent conviction for Operating a Vehicle Under the Influence of Alcohol. For the reasons that follow, we affirm the judgment of the lower court.
{¶2} Just before midnight on February 11, 2006, Sergeant Dunbar of the Ohio State Highway Patrol, was traveling westbound on State Route 59 near the City of Kent,
{¶3} Dunbar caught up to Lothes’ truck in the vicinity of the intersection of State Route 59 and Sixth Avenue, at which point, Lothes mаde a left hand turn onto Sixth and into the parking lot of the Discount Drug Mart store located at the corner of Route 59 and Sixth. Sergeant Dunbar activated his overhead lights just as Lothes pulled into a parking space in front of the store and pulled up behind the truck, on the passenger side, almost perpendicular to the rear of Lothes’ vehicle.
{¶4} Approaching the vehicle, Sergeant Dunbar conducted a trаffic stop, informing Lothes that he had observed him drive past without his headlights on. Sergeant Dunbar asked where Lothes was going, and Lothes responded that he was “taking his friend back to his vehicle.” Sergeant Dunbar then asked if his friend‘s vehicle was parked in the parking lot, and he said no.
{¶5} As they were speaking, Sergeant Dunbar noticed that Lothes was slurring his speech, and that there was a “moderate” odor of alcohol emanating from the cab of the vehicle. Sergeant Dunbar asked Lothes if he had anything to drink that evening, and Lothes responded that he had “three or four” alcoholic beverages.
{¶6} Sergeant Dunbar then asked Lothes to exit the cab of the vehicle to perform standardized sobriety tests, which included the one-legged stand test, followed
{¶7} Based upon the results of these tests and his observations, Lothes was arrested and charged with Operating a Vehicle while Under the Influence, in violation of
{¶8} Lothes was given a Miranda warning. Lothes later volunteered that he and his friend had been returning from Ray‘s, in Kent that evening. When initially asked to take a breath test for alcohol, Lothes refused, but he subsequently agreed to submit to testing.
{¶9} Lothes filed a motion to suppress with the trial court on March 21, 2006. The trial court held a hearing on Lothes’ motion on April 27, 2006. At the hearing, Sergeant Dunbar was the only witness to testify. The trial court overruled Lothes’ motion on the same day.
{¶10} Following the court‘s denial of his suppression motion, Lothes pled no contest to the OVI charge, the remaining charges were dropped, and the trial court found him guilty. The trial court sentenced Lothes to ten days in jail, fined him $500, and suspended his license for one year. The trial court subsequently stayed execution of Lothes’ sentence pending this appeal.
{¶12} “[1.] The trial court erred in denying defendant‘s motion to suppress when the arresting officer destroyed potentially exculpatory evidence of defendant‘s performance during field sobriety tests.
{¶13} “[2.] The trial court erred in denying defendant‘s motion to suppress as the state presented no evidence that the arresting officer conducted the field sobriety tests in conformance with the requiremеnts established by [the National Highway Traffic Safety Administration] (“NHTSA”).
{¶14} “[3.] Defendant-appellant was denied his constitutional right to the effective assistance of counsel.”
{¶15} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8. The trial court acts as trier of fact at a suppression hearing and must weigh the evidence and judge the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195, 208, 1996-Ohio-222. Since the trial court is in the best position to resolve the factual issues, State v. Searls (1997), 118 Ohio App.3d 739, 741, citing State v. Mills (1992), 62 Ohio St.3d 357, 366, an appellate court is bound to accept the trial court‘s factual determinations as long as they are supported by competent and credible evidence. Id. Once the appellate court accepts the trial court‘s factual determinations, the appellate court conducts a de novo review of the trial court‘s application of the law to these facts. Id.
{¶16} In his first assignment of error, Lothes argues that his due process rights under the
{¶17} The State‘s failure to preserve materially exculpatory evidence is a violation of a defendant‘s due process rights under the
{¶18} However, evidence is not materially exculpatory if it is merely potentially useful to the defense. State v. Lewis, (1990), 70 Ohio App.3d 624, 634. “Potentially useful” evidence is evidence that may or may not have incriminated the defendant. Id. The failure to preserve evidence that is merely potentially useful violates a defendant‘s due process rights only if the police or prosecution acted in bad faith. State v. Keith, 79 Ohio St.3d 514, 523, 1997-Ohio-367; Lewis, 70 Ohio App.3d at 634. “The term ‘bad
{¶19} With regard to the videotaped evidence of the traffic stop, Sergeant Dunbar testified, upon cross-examination, as follows:
{¶20} “Q: Now your cruiser is equipped with video capability, correct?
{¶21} “A: Yes, it is.
{¶22} “Q: And that video camera, is it from basically the driver‘s view or from inside the car or is it on top?
{¶23} “A: It‘s mounted on the passenger side windshield. Inside the vehicle.
{¶24} “Q: And it gives you a video view or it‘s supposed to give you a video view of what happens in front of your car?
{¶25} “***
{¶26} “A: Right. It would have picked up the vehicle at that time.
{¶27} “Q: O.K. Now, I had commented to you about getting a copy of that videotape, and aside from a little bit at the beginning when you first pull into the parking lot, the rest of the tape doesn‘t exist, correct?
{¶28} “A: That‘s correct.
{¶29} “Q: And that‘s because it was inadvertently erased?
{¶30} “A: Well, it was put back in the machine. It‘s got an automatic lock on the video machine. It‘s supрosed to forward up to that stop and then start again. Well,
{¶31} “Q: O.K. Let‘s assume that hadn‘t happened. Would you have been able to get any of the field sobriety tests on that video if the video – or if the field sobriety tests were done at the left of defendant‘s vehicle?
{¶32} “A: Probably not. Probably wouldn‘t have seen anything. Might have seen the heads, but you wouldn‘t have seen –
{¶33} “Q: Wouldn‘t have seen the feet?
{¶34} “A: No.
{¶35} “Q: Wouldn‘t have seen anything else? Because it‘s a pickup truck.
{¶36} “A: Well, yeah. And just the fact that it was back in that area over there. And the truck blocking it and the angle.
{¶37} “Q: And so we‘re clear and the Court‘s clear, the sobriety tests, I believe you used one of the parking lines –
{¶38} “A: Uh-huh.
{¶39} “Q: -- as the reference point for beginning the test, etcetera?
{¶40} “A: Right.
{¶41} “ ***
{¶42} “Q: “I understand. So it might havе been the next parking space over? Maybe in this area here?
{¶43} “A: Yeah. It got started right around where the driver‘s seat would be. A little out in front. Did it right across from where the driver would be sitting.”
{¶45} Lothes’ reliance on State v. Benton (2000), 136 Ohio App.3d 801, and State v. Benson 152 Ohio App.3d 495, 2003-Ohio-1944, is misplaced. Whether viewed as the “failure to create” evidence or the destruction of evidence, “[p]roving that lost or destroyed evidence is materially exculpatory is a daunting burden, one that has generally been placed on the defendant.” Benton, 136 Ohio App.3d 801, 805 (citations omitted). Both Benson and Benton stand for the limited proposition in which the burdеn is shifted from the defendant to the state to show that the destroyed evidence was not materially exculpatory. Such burden shifting will only occur “where a defendant moves to have evidence preserved and that evidence is nonetheless destroyed by the state ***.” Id. (citation omitted); accord Benson, 2003-Ohio-1944, at ¶11 (“[W]here the defendant moves to have the evidence preserved and the state destroys the evidence, the burden shifts to the state to show the inсulpatory value of the evidence.”).
{¶47} Moreover, unlike Benson, Lothes has offered absolutely no proof that the videotaped evidence would have been materially exculpatory. 2003-Ohio-1944, at ¶12 (The appellate court ruled that, once the burden had shifted, the stаte did not meet its burden where the testimony of the defendant and two eyewitnesses “disputed much of the testimony that the [arresting] officer gave *** relating to the stop and the DUI charge.”)
{¶48} Nor has Lothes shown that the videotaped evidence, had it been preserved, would have been potentially useful to his defense. Sergeant Dunbar‘s undisputed testimony was that he conducted the walk-and-turn and the one-legged stand tests on thе driver‘s side of the vehicle. A review of the short portion of the videotape evidence remaining from the traffic stop of Lothes’ truck corroborates Dunbar‘s testimony that Lothes performance of the aforementioned tests, would have been at least partially blocked from view by his vehicle. With regard to the HGN test, the undisputed testimony reveals that the test was performed with Lothes seated in the
{¶49} Even if we were to assume some potential usefulness of the videotaped evidence, there is no evidence herein, unlike as in Benson and Benton, of bad faith involving the erasure of the videotape in question.
{¶50} At the hearing, Sergeant Dunbar explained the operation of the videotape equipment and testified that the erasure was due to a malfunction of the “automatic lock” on the video machine. In addition, Dunbar produced the portion of the videotape that had not been erased. The defense played this portion of the videotape at the hearing. Cf. Benson 2003-Ohio-1944, at ¶3-5 (Defendants were informed by the state that no videotape of the arrest existеd when the testimony at the suppression hearing clearly indicated this was not the case.); Benton, 136 Ohio App.3d at 804, 806 (Defendant offered evidence at trial of the police agency‘s videotape retention policy and proof of a specific discovery request to which the state did not respond in good faith.)
{¶51} For the aforementioned reasons, we find Lothes’ first assignment of error to be without merit.
{¶52} In his second assignment of еrror, Lothes argues that the trial court erred in denying his suppression motion, since the State offered no evidence that the tests were conducted in compliance with NHTSA standards.
{¶53}
{¶54} Our review of the transcript reveals that, despite the fact that the state established Sergeant Dunbar was trained to conduct the field sobriety tests in a certain fashion and that he did, indeed, conduct the tests in accordance with his training, the state did not offer any evidence or testimony to show that Sergeant Dunbar‘s training was in accordance with NHTSA standards. See State v. Brown, 166 Ohio App.3d 638, 2006-Ohio-1172, at ¶25 (An arresting officer‘s “testimony that he conducted the field sobriety tests in conformity with the manner and procedures with which he was taught is not the same as testifying that he administered the tests in substantial compliance with the guidelines set forth in the NHSTA manual”). Thus, we agree with Lothes that the state failed to meet its burden and the results of the tests should not have been admitted.
{¶55} However, this is not the end to our inquiry. “In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. *** In making this determination, we will examine the ‘totality’ of the facts and circumstances surrounding the arrest.” State v. Homan, 89 Ohio St.3d 421, 427, 2000-Ohio-212 (citations оmitted). “While probable cause means more than bare suspicion, it means less than evidence that would justify conviction.” State v. Hummel, 154 Ohio App.3d 123, 2003-Ohio-4602,
{¶56}
{¶57} The aforementioned statute is a codification of the Ohio Supreme Court‘s holding in State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, which held that even if the actual test results of nonscientific standard field sobriety tests were deemed inadmissible, an officer may nevertheless testify as a lay witness, regarding observations made during a defendant‘s performance of these tests and the court may rely оn this testimony in making its probable cause determination. Id. at ¶¶13-16.
{¶58} In the case sub judice, Sergeant Dunbar testified that he viewed Lothes’ vehicle driving without its headlights on and that, based upon his 28 years of experience as an officer, it was “not uncommon” for people who were impaired to drive without their headlights on at night. Sergeant Dunbar further testified that upon stopping and approaching Lothes’ vehicle, he detected an odor of alcohol emanating from the passenger compartment, which persisted from Lothes’ person when he was later asked to step out and away from the vehicle. He characterized Lothes’ speech as “slurred,” and stated that Lothes delayed in responding to his questioning. When questioned, Lothes volunteered information that he was returning with his friend from Ray‘s, a local bar and restaurant, wherе he had consumed “three to four” alcoholic beverages.
{¶60} Finally, there was evidence in the record of Lothes’ refusal to submit to a breath test. Courts in Ohio have held that a trier of fаct may consider a defendant‘s refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik, 69 Ohio St.3d 339, 1994-Ohio-157, at syllabus; see also, State v. Wargo (Oct. 31, 1997), 11th Dist. No. 96-T-5528, 1997 Ohio App. LEXIS 4846, at *10.
{¶61} Based upon the totality of the circumstances, we conclude that there was sufficient competent, credible evidence to support the trial court‘s finding of probable cause, in the absence of the admission of thе test results.
{¶62} Appellant‘s second assignment of error is without merit.
{¶63} In his third assignment of error, Lothes argues that his counsel was ineffective, since but for the ineffective performance of his counsel, the outcome of his motion to suppress would have been different. He argues that the failure of his counsel
{¶64} In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court of Ohio adopted the following test to determine if counsel‘s performance is ineffective: “[c]ounsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s pеrformance.” Id. at paragraph two of the syllabus, following Strickland v. Washington (1984), 462 U.S. 668.
{¶65} “[T]he proper standard for attorney performance is that of reasonably effective assistance *** [and] the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 462 U.S. at 687-688. A court “must indulge a strong presumption that counsel‘s conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcоme the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Id. at 689 (citation omitted).
{¶66} We find nothing in the record which would indicate counsel‘s representation fell below an objective standard of reasonableness. Contrary to Lothes’ assertions, our discussion of the first and second assignments of error reveal not merely “legal” distinctions between the cases cited and the instant matter, but factual distinctions as well. Since we found no error in the trial court‘s denial of Lothes’ motion to suppress, based upon the evidence properly before the court, we cannot conclude that counsel‘s performance was ineffective.
{¶67} Lothes’ third assignment of error is without merit.
CYNTHIA WESTCOTT RICE, P.J.,
MARY JANE TRAPP, J.
concur.