State v. StarksState v. Starks
[Cite as State v. Starks, 2016-Ohio-5872.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
AARON STARKS
Defendant-Appellant
Appellate Case No. 26932
Trial Court Case No. 2014-TRC-8820
(Criminal Appeal from
Dayton Municipal Court)
O P I N I O N
Rendered on the 16th day of September, 2016.
BARBARA J. DOSECK, Atty. Reg. No. 0079159, and STEPHANIE L. COOK, Atty. Reg.
No. 0067101, by EBONY N. WREH, Atty. Reg. No. 0080629, Dayton Municipal
Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 52 Marco Lane, Dayton, Ohio 45458
Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Aaron Starks appeals from his conviction and sentence,
following a plea of no contest, for Speeding and Operating a Vehicle Under the Influence
In support, he argues that the arresting officer did not have a reasonable articulable
suspicion justifying a traffic stop, and that the officer did not properly perform the field
sobriety tests used to determine whether he was intoxicated.
{¶ 2} We conclude that there is sufficient evidence in the record to demonstrate
that the traffic stop for speeding was justified based on the police officer‘s pacing of the
suspect‘s automobile, using the officer‘s own speedometer to determine that the suspect
was well above the speed limit. We further conclude the evidence demonstrates
substantial compliance with the requirements for administering field sobriety tests.
{¶ 3} Accordingly, the judgment of the trial court is Affirmed.
I. The Stop
{¶ 4} Just before midnight, in early July 2014, Ohio State Patrol Trooper
Christopher Colbert was on routine patrol sitting stationary on Fourth Street in a marked
cruiser in downtown Dayton. He saw a vehicle go through an intersection at a speed he
visually estimated to be 60 miles per hour. Colbert pulled out to follow the vehicle.
Before he could catch up, the vehicle entered the ramp for U.S. 35 East. Once Colbert
got on to U.S. 35, he was again able to observe the vehicle. Colbert observed that the
vehicle continued to pull away from his cruiser despite the fact that he was traveling about
100 miles per hour. Colbert observed the vehicle get caught up in some traffic, which
caused it to slow to approximately 80 miles per hour. At that point, Colbert activated his
cruiser lights, and pulled the vehicle over.
{¶ 5} Upon approaching the driver, Starks, Colbert noted that Starks had a very
slurred. Colbert asked him to exit the vehicle. Starks was unsteady on his feet and
stumbled into Colbert as he exited the vehicle. He then leaned on Colbert, as he walked
toward the cruiser. Colbert asked Starks to perform three field sobriety tests. The first
test involved reciting the alphabet from the letter D through the letter Q. Colbert had to
repeat the instructions for the test three times. Colbert noted that Starks omitted letters,
and that his speech was slurred. The next test was the horizontal gaze nystagmus
(HGN) test. Colbert observed six out of six possible clues, indicating a high probability of
intoxication. The next test was the one-leg stand test, which Colbert terminated because
Starks almost fell. After conducting the tests, Colbert arrested Starks for OVI. A
breathalyzer test determined that Starks’s blood alcohol level was .229.
II. Course of the Proceedings
{¶ 6} Starks was charged with one count of OVI, in violation of
not guilty, and moved to suppress evidence. A hearing was conducted in May of 2015,
following which the motion to suppress was overruled. Thereafter, Starks pled no
contest to, and was found guilty of, both charges. He was sentenced to three days in
jail, and was ordered to pay fines and court costs. He was also required to attend a
three-day driver intervention program. His license was suspended for a period of six
months. He appeals. His sentence was stayed pending appeal.
I. There Is Sufficient Evidence in the Record to Warrant a Finding of
Administration Standards in the Field Sobriety Testing and a Finding
of Sufficient Impairment to Justify an OVI Arrest
{¶ 7} Starks’ First Assignment of Error states as follows:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO SUPPRESS BECAUSE THE ADMINISTRATION OF THE FIELD
SOBRIETY TESTS WAS NOT SUBSTANTIALLY COMPLIANT.
{¶ 8} Starks argues that the field sobriety tests Trooper Colbert administered were
not shown to have been conducted in substantial compliance with National Highway
Traffic Safety Administration (NHTSA) standards. Consequently, he claims that the
results of those tests are inadmissible, and that without those test results Trooper Colbert
lacked probable cause to arrest Starks for OVI.
{¶ 9} Appellate review of a trial court‘s decision regarding a motion to suppress
evidence involves mixed questions of law and fact. State v. Long, 127 Ohio App.3d 328,
332, 713 N.E.2d 1 (4th Dist.1998). When ruling on a motion to suppress evidence, a trial
court assumes the role of trier of fact and is in the best position to resolve questions of
fact and to evaluate the credibility of witnesses. State v. Treesh, 90 Ohio St.3d 460, 472,
739 N.E.2d 749 (2001). Accordingly, reviewing courts must defer to the trial court’s
findings of fact if competent, credible evidence exists to support the findings. State v.
Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995). A reviewing court then must
independently determine, without deference to the trial court, whether the trial court
properly applied the substantive law to the facts of the case. Long at 332, 713 N.E.2d 1.
{¶ 10} Starks was stopped for greatly exceeding the speed limit. We have held
Clark No. 10CA0046, 2011-Ohio-2560, ¶ 11. Upon addressing Starks, Colbert noted
that he smelled of alcohol, had glassy bloodshot eyes, and was slurring his speech.
When Starks exited the vehicle, he was unsteady on his feet, and actually stumbled into
Colbert. These facts are sufficient to establish a reasonable suspicion of impairment
justifying further detention for the purpose of conducting field sobriety tests.
{¶ 11} The legal requirement for the admission of field sobriety tests is whether
they are conducted in substantial compliance with National Highway Traffic Safety
Administration (NHTSA) standards. State v. Tyner, 2d Dist. Montgomery No. 25405,
2014-Ohio-2809, ¶ 7. Colbert testified as to his training, experience, and compliance
with the applicable standards.
{¶ 12} With regard to the horizontal gaze nystagmus (HGN), Starks complains that
Colbert did not inform Starks that he would be checking Starks’s eyes, and did not check
to determine whether Starks wears contact lenses. But the NHTSA manual does not
require the person performing the test to do either of these things. Starks also notes that
Colbert failed to tell him to follow the stimulus, in this case the Trooper’s finger, until told
to stop. But the evidence indicates that Starks was able to perform the test for the time
required, and that Starks did not attempt to stop following prematurely. Thus, we find
that even if the failure to so inform Starks constituted non-compliance, there is no
evidence that it resulted in an invalid test result.
{¶ 13} Starks next complains that Colbert inserted an unnecessary instruction into
the instructions for the one-leg stand. This test requires the suspect to stand with one foot
approximately 6 inches off the ground, and to count for a specified amount of time. If
that as evidence of some impairment. During the test, Colbert instructed Starks that if
his foot touched the ground, he should lift it back up and continue with the test. This is
not a part of the instructions for the test, and it could lead a suspect to think that he can
place his foot back on the ground without negative consequences. However, in this case
Starks was initially unable to lift his foot, and he started to fall as soon as he did so.
Colbert testified that he then terminated the test for Starks’s safety. We conclude,
therefore, that the instruction to which Starks objects had no bearing on the outcome of
the test.
{¶ 14} The credibility of the witnesses and the weight to be given to their
testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967). In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997
WL 476684 (Aug. 22, 1997), we observed: “Because the factfinder * * * has the
opportunity to see and hear the witnesses, the cautious exercise of the discretionary
power of a court of appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder‘s
determinations of credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witness.”
{¶ 15} We agree with the trial court that based upon the entirety of the evidence,
the substantial-compliance requirement was met, and there was sufficient evidence of
impairment to merit Starks’s arrest for OVI.
{¶ 16} The First Assignment of Error is overruled.
in a 35 mph Zone) Justified a Traffic Stop
{¶ 17} Starks’ Second Assignment of Error states:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO SUPPRESS BECAUSE THE OFFICER DID NOT HAVE
REASONABLE ARTICULABLE SUSPICIONS.
{¶ 18} Starks contends that Trooper Colbert had no basis for stopping him
because the Trooper did not have sufficient time in which to pace his vehicle in order to
determine that he was speeding. In support, he cites State v. Woods, 8th Dist.
Cuyahoga No. 98054, 2012-Ohio-5509, ¶ 23, for the proposition that an officer needs
sufficient time or distance in order to estimate a vehicle’s speed based upon pacing, and
that two city blocks does not constitute either sufficient time or sufficient distance. He
further argues that an officer’s visual estimation of speed is insufficient when the officer
lacks training and certification in visual estimations.
{¶ 19} This court has upheld the use of pacing as a method of determining speed.
State v. Collins, 2d Dist. Clark No. 2002 CA 51, 2002–Ohio–6858, ¶ 14. Other appellate
districts have also upheld this method. See, e.g., City of Cleveland v. Bates, 8th Dist.
Cuyahoga No. 90212, 2008–Ohio–3679; State v. Horn, 7th Dist. Belmont No. 04 BE 31,
2005–Ohio–2930.
{¶ 20} In Woods, there was no evidence that the pacing officer was trained in
visually estimating speed. Id. at ¶ 21. Thus, the appellate court affirmed the trial court’s
finding that there was no basis for admitting a visual estimation of the defendant’s speed.
the trial court, which found that the officer did not travel far enough to pace the vehicle.
Id. Unlike Starks, we do not read Woods as establishing a bright-line test for pacing.
We conclude that under the facts of that particular case, the trial court concluded that the
officer had neither the time, nor the distance, to establish the speed of the defendant’s
vehicle.
{¶ 21} Conversely, in this case, Colbert testified that he has training in speed
detection, including visual estimation and pacing. He testified that, based upon his
experience and training, when he first observed Starks on the downtown surface streets,
he concluded that Starks was traveling close to 60 miles per hour, which prompted him
to follow Starks’s vehicle. Colbert testified that while on U.S. 35, he was traveling over
100 miles per hour, and that Starks continued to pull away from him. He testified that
when Starks slowed due to encountering traffic, Colbert was traveling about 80 miles per
hour.
{¶ 22} This is not a situation involving nominal speeding, as in Woods wherein the
defendant was traveling 35 mph in a 25 mph zone, and the police were attempting to
travel at the same pace as the defendant. Id. This case involves excessive speeding.
We conclude that the pacing conducted in this situation, which required Colbert to
accelerate to over 100 miles per hour before he was able to keep pace with Starks, was
sufficient to establish that Starks was violating the established speed limit of 55 miles per
hour. Had Colbert not testified that Starks continued to pull ahead of his cruiser until the
cruiser reached a speed of over 100 miles per hour, we might not reach the same
conclusion.
probable cause that Starks was exceeding the speed limit, justifying a traffic stop.
Accordingly, the Second Assignment of Error is overruled.
III. Conclusion
{¶ 24} Both of Starks’s assignments of error having been overruled, the judgment
of the trial court is Affirmed.
DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Barbara J. Doseck
Stephanie L. Cook
Ebony N. Wreh
Benjamin W. Ellis
Hon. Mia Wortham Spells
(successor to Judge John S. Pickrel)