Cleveland v. Collins , 109 N.E.3d 208 ( 2018 )

[Cite as Cleveland v. Collins, 2018-Ohio-958.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105804
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
CARL A. COLLINS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2014 TRC 050482
BEFORE: McCormack, P.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 15, 2018
FOR APPELLANT
Carl A. Collins, pro se
12621 Walnut Hill Drive
North Royalton, OH 44133
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
City of Cleveland Law Department
Kimberly G. Barnett-Mills
Chief City Prosecutor
By: Karyn J. Lynn
Assistant City Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Carl A. Collins, pro se, appeals from a judgment of the
Cleveland Municipal Court, convicting him of operating a vehicle under the influence
(“OVI”) in violation of R.C. 4511.19(A)(1), OVI and refusing a chemical test with a prior
conviction within 20 years in violation of R.C. 4511.19(A)(2), and driving under OVI
suspension in violation of R.C. 4510.14. After a thorough review of the record and
applicable law, we affirm the judgment of the trial court.
Procedural History and Substantive Facts
{¶2} On September 24, 2014, Collins was charged with OVI, OVI in connection
with a refusal to submit to testing and having a prior conviction within 20 years, driving
while under OVI suspension, and driving outside of marked lanes. Collins entered not
guilty pleas to all of the charges and proceeded pro se on the matter. He filed a motion
to suppress and a supplemental motion to suppress. The court held a hearing in which it
heard testimony from Ohio State Trooper Hiram Morales and Collins, on his own behalf.
{¶3} Trooper Morales has been employed with the Ohio State Highway Patrol
for 11 years, performing traffic enforcement and OVI apprehension. He has received
training concerning detection and apprehension of impaired drivers and is familiar with
the National Highway Traffic Safety Administrative (“NHTSA”) manual and its
standards. Trooper Morales has received training in the administration of field sobriety
tests in accordance with the NHTSA standards, and he has conducted over 100 OVI stops.
{¶4} Trooper Morales testified that he was working at 1:11 a.m. on September
24, 2014, when he observed a vehicle drive outside of the marked lanes of I-90
approximately four times. He stopped the vehicle, approached the driver, and requested
the driver’s license and vehicle registration. When he ran a computer check of the
driver’s license, he learned that the driver, Carl Collins, was under an administrative
license suspension (“ALS”) for an OVI refusal on August 29, 2014. Trooper Morales
asked Collins to exit the vehicle, and he inquired of Collins’s suspension. When Collins
exited the vehicle, the trooper observed Collins chewing gum and asked Collins to spit it
out. When Collins spit out the gum, Trooper Morales smelled alcohol on Collins’s
breath. The trooper asked Collins if he had been drinking, and Collins replied that he
had not.
{¶5} At this point, Trooper Morales asked Collins to perform certain field
sobriety tests. He testified that Collins consented to taking the tests. The trooper first
conducted the horizontal gaze nystagmus (“HGN”) test. Trooper Morales testified
concerning the NHTSA standard for this test:
First we ask the individual/suspect if there’s any issue with their eyesight.
Any eye condition or head trauma we should be aware of or the medical
issues that the person has. Then we use a stimulus or a pen is placed
slightly above eye level between 12 and 15 inches from the center of the
individual’s face.
***
We advised Mr. Collins that he has to follow the tip of the pen with his eyes
only. He’s not to move his head during the test. The pen is going to be
moving from one side to the other at a slow pace. With each clue, there’s
a specific amount of time that we have to move the pen from one side on
the other.
{¶6} The trooper testified that he administered the test in accordance with the
NHTSA standards, allowing Collins to remove his eyeglasses. The trooper further
testified regarding the clues of impairment from this test and explained what they meant
and what he observed:
Witness: We are looking for smooth pursuit, in maximum deviation and
onset prior to 45 degree[s] as well as vertical nystagmus. The defendant
showed clues of lack of smooth pursuit, maximum nystagmus, and that’s
four clues out of a possible six clues.
Prosecutor: Okay. And how many clues need to be observed in order to
indicate impairment?
Witness: Four.
Prosecutor: Okay. And you stated he had lack of smooth pursuit. What
does that mean?
Witness: Basically, when you [are] looking for smooth pursuit, best way
to explain it is * * * [i]f you move your eyes from one side to the other, it
should be a smooth movement from one side [to] the other. The
defendant’s case, you can see jerking of the eye as they were going from
one side to the other.
Prosecutor: What does that indicate to you?
Witness: The presence of alcohol in his system.
Prosecutor: In which eye or eyes did you obtain lack of smooth pursuit?
Witness: On both. Right and left.
Prosecutor: You stated nystagmus with maximum. How would you
describe what that means?
Witness: Again we are looking for involuntary jerking of the eyes. In a
normal individual, you move your stimulus all the way to the side as far as
eyes can go, allow the eyes to set and then you hold it there for four
seconds, no more than 30 seconds and you [are] looking for again,
involuntary jerking of the eyes.
Prosecutor: And in which eye or eyes did you observe that in Mr. Collins?
Witness: Both eyes, left and right.
{¶7} The trooper then conducted the walk-and-turn (“WAT”) test. Trooper
Morales testified concerning the NHTSA standard for this test. The trooper explained that
an officer asks the suspect if he has any medical issues with his back or lower extremities
that may prevent them from walking a straight line. He then instructs an individual as
follows:
I tell the defendant not to start the test until the instructions are completed.
Proceed to either use a straight line on the pavement or have the defendant
imagine a straight line on the pavement. I usually allow the individual to
use the front license plate of my patrol car as reference point for a straight
line.
My first set of instructions, I’ll ask the defendant when told to do so they
have to place their left foot on the line, right foot in front of it touching heel
to toe. Hands down to their side and to hold that position for the very next
set of instructions.
Once the defendant is in the requested position, I’ll demonstrate the fact
that they have to take nine steps. First step from the initial position would
be step number one. Because of distance restraints, I usually take three
steps just to explain/demonstrate the test, but I make an emphasis to the
defendant that they have to take nine steps heel to toe.
First step would be step number one. Once they reach their nin[th] step,
the front foot, whichever it is, stays planted, the back foot comes around,
take the few choppy steps, basically pivoting on just the front foot. Once
they turn around, again, first step would be step number one. They take
nine more steps.
Basically nine steps forward, turn around, as they were instructed, and walk
back taking nine steps heel to toe. Before the test begins, I tell them to
look down at their toes, count out loud every step, don’t stop until that
person [has] completed the test.
Then I’ll ask them if they have any questions for me or if there’s something
within the test that they didn’t understand.
{¶8} Trooper Morales testified that he considered Collins’s age as a factor in
taking the test, but NHTSA standards did not prohibit someone of his age (70 years old at
the time) from performing the test. He asked Collins if he had any physical limitations
that would prevent him from being able to take the test. The trooper testified that
Collins advised the trooper that he “had some issues with his right leg.” The trooper
stated that he was going to give Collins a demonstration and Collins could then decide
whether he could perform the test. According to the trooper, Collins “said he was going
to give it a try.” The trooper then asked Collins to perform the WAT test.
{¶9} Trooper Morales testified that he administered the WAT test after Collins
indicated that he understood the trooper’s instructions. The trooper observed three of a
possible eight clues of impairment with Collins’s performance — starting before
instructions are complete, failing to touch heel-to-toe, and turning incorrectly. The
number of clues indicative of impairment is two.
{¶10} Trooper Morales then administered the one-legged stand (“OLS”) test.
Once again, Collins emphasized his knee issue and, once again, the trooper told Collins
that it was his choice as to whether to perform the test. The trooper also testified
regarding the NHTSA standards for administration:
Again we ask the defendant, we already know if they have any issues with
their back or knees based on the WAT test so again, I’ll reiterate, that I’ll
give the explanation for the test and the defendant will let me know if they
can do the test or not based upon their condition. I’ll ask the defendant to
put feet [his] together. Hand[s] to the side again. They’re not going to
start the test until told to do so.
When told to do so, they’re going to raise whichever foot they prefer. It’s
their choice on the foot they’re going to use. They’re going to raise that
foot approximately six inches from the ground. Toes are going to be
pointed out. They’re * * * looking down on their toes. Hands down to
their side. When they’re in an established position, they’re going to start
counting the following manner. One thousand, a thousand two, a thousand
three, and so on so forth. That test is going to last 30 seconds.
In the meantime, if they drop their foot during those 30 seconds, they’re
told to bring their same foot back up and continue counting where they left
off. * * *
{¶11} The trooper observed two clues of impairment — swaying while counting,
and dropping his foot, to the point where Collins “basically almost fell.” Two clues in
this test are indicative of impairment.
{¶12} Finally, the trooper testified that Collins refused to take the portable breath
test, and Collins was placed under arrest. According to Trooper Morales, Collins was
under the influence of alcohol and not able to drive a motor vehicle. Trooper Morales
engaged his dashboard camera to record the events of the evening, and the camera
recorded the events without sound.
{¶13} Following the suppression hearing, and after viewing the trooper’s
dashboard camera, the court denied Collins’s motion to suppress and scheduled the matter
for trial.
{¶14} A jury trial commenced on March 9, 2017, following numerous
continuances, delays, and Collins’s interlocutory appeal of the trial court’s denials of
Collins’s motion to suppress and motion to dismiss. At trial, Trooper Morales testified
on behalf of the city, and Collins proceeded pro se and testified on his own behalf. The
state introduced into evidence video footage from Trooper Morales’s dashboard camera,
which was played for the jury.
{¶15} Trooper Morales testified for the jury that he observed Collins’s vehicle
drive over the marked lanes of I-90 approximately four times, by “at least a tire’s width,”
at almost 1:30 a.m. on September 24, 2014. The trooper initiated a traffic stop and ran
Collins’s driver’s license through the Law Enforcement Automated Data System
(“LEADS”), which showed that Collins was under an administrative license suspension
for a “refusal” from a previous OVI stop in August 2014. When the trooper approached
Collins, he observed Collins chewing gum. He asked him to spit the gum out, and when
he did, the trooper smelled alcohol on Collins’s breath. The trooper testified that Collins
denied having been drinking.
{¶16} Trooper Morales then testified that he administered three field sobriety tests:
HGN, WAT, and OLS. He testified at length regarding the NHTSA standards for
administration of the tests and how he administered the tests on Collins in accordance
with these standards. The trooper testified that Collins agreed to perform the tests,
despite advising the trooper that he had issues concerning his knee. Trooper Morales
stated that he took into consideration Collins’s age in administering the test, but the
NHTSA standards do not prohibit an individual over 65 years of age from performing the
physical field sobriety tests, such as the WAT and the OLS tests. Trooper Morales
testified that Collins demonstrated four clues of impairment during the HGN test, three
clues of impairment during the WAT test, and two clues of impairment during the OLS
test. In each test, the number of clues met or exceeded the number of clues indicative of
impairment. Trooper Morales stated that Collins refused the portable breath test.
{¶17} On cross-examination, Trooper Morales testified that he did not recall
Collins advising him that he had eye surgery a couple of months before the arrest.
{¶18} On his own behalf, Collins testified that he was returning from work on the
morning in question and he had not been drinking. He stated that he believed the
highway lanes were 12 feet apart when in reality they were only 10 feet wide. Collins
indicated that he may have driven over the marked lanes because he assumed, incorrectly,
that he had more room for his large car to travel within the lanes. Collins also testified
that he told Trooper Morales that he had a “bad eye.” He conceded that he believed he
could perform the HGN test. Collins explained his knee problem and an injury to his
“semicircular canals,” which determine balance. Collins also testified that he was not
drinking that morning because he is allergic to alcohol. Finally, Collins admitted on
cross-examination that he was convicted of an OVI offense in 2002 and that he was under
an ALS suspension for an OVI refusal at the time of the stop in question.
{¶19} The jury found Collins guilty of OVI in violation of R.C. 4511.19(A)(1),
OVI and refusing a chemical test with a prior conviction within 20 years in violation of
R.C. 4511.19(A)(2), and driving under OVI suspension in violation of R.C. 4510.14.
The minor misdemeanor charge of a marked lanes violation was subsequently dismissed.
{¶20} Collins now appeals his conviction, assigning the following errors for our
review:
I. The arresting officer had no valid reason for stopping the Defendant
and initiating testing to determine whether or not the Defendant had
consumed alcohol or was under the influence of an intoxicant.
II. The arresting officer misstated comments and answers given by the
Defendant and proceeded to ask the Defendant if he would perform a list of
test[s] to [e]nsure that he was capable of continuing to drive.
III. The arresting officer obtained the acquiescence of the Defendant to
participating in the field sobriety test by telling the Defendant that he had to
ascertain, through the tests, that the Defendant was capable of continuing to
drive his vehicle.
IV. [The] court denied the Defendant’s Motion to Suppress.
V. The court denied the Defendant’s Motion to Dismiss even though the
court proceedings prior to trial had continued far beyond the ninety (90)
days required by law even though this Defendant had not signed or made
any other indication that he was waiving his right to a speedy trial.
Law and Analysis
{¶21} In his pro se appeal, Collins essentially claims that the police unlawfully
detained and arrested him, the trial court erred in denying his motion to suppress, and the
trial court erred in denying his motion to dismiss based upon speedy trial grounds.
{¶22} In his first assignment of error, Collins argues that the police officer “had no
valid reason” to stop him.
{¶23} The Fourth Amendment of the United States Constitution, as well as Article
I, Section 14, of the Ohio Constitution, prohibit unreasonable searches and seizures
lacking probable cause. Cleveland Hts. v. Brisbane, 2016-Ohio-4564, 70 N.E.3d 52, ¶
14 (8th Dist.). This prohibition applies to the stopping of motor vehicles and the seizing
of its occupants. Id., citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59
L.Ed.2d 660 (1979), paragraph two of the syllabus.
{¶24} “A police officer may effect a traffic stop of any motorist for any traffic
infraction, even if the officer’s true motive is to detect more extensive criminal conduct.”
State v. Bennett, 8th Dist. Cuyahoga No. 86962, 2006-Ohio-4274, ¶ 21, citing United
States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995). Furthermore, “when conducting the
stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time
sufficient to investigate the reason for which the vehicle was initially stopped.” Id.,citing State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 17.
This time period may include the time it takes to run a computer check on the driver’s
license, registration, and vehicle’s plates. Bennett, citing Prouse.
{¶25} Where an officer stops a motorist after observing a violation of a traffic law,
probable cause exists for the detention in order to issue a citation. Dayton v. Erickson, 76
Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996) (determining that where a police officer
stops a vehicle based on probable cause that a traffic violation has occurred or was
occurring, the stop is not unreasonable under the Fourth Amendment to the United States
Constitution).
{¶26} R.C. 4511.33(A)(1) provides that a vehicle “shall be driven, as nearly as is
practicable, entirely within a single lane or line of traffic and shall not be moved from
such lane or line until the driver has first ascertained that such movement can be made
with safety.” Thus, the driver must remain within the lane markings “unless the driver
cannot reasonably avoid straying.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,
894 N.E.2d 1204, ¶ 18.
{¶27} The Ohio Supreme Court held in Mays that a traffic stop is constitutionally
valid when a law enforcement officer witnesses a motorist “drift” over lane markings, in
violation of R.C. 4511.33 at syllabus (finding where the trooper observed appellant twice
cross the white edge line, the trooper had reasonable suspicion and probable cause to stop
the vehicle). “[W]hen an officer could reasonably conclude from a person’s driving
outside the marked lanes that the person is violating a traffic law, the officer is justified in
stopping the vehicle.” Id. at ¶ 20. A traffic stop is lawful even if the traffic violation
is minor, or “de minimus.” Strongsville v. Spoonamore, 8th Dist. Cuyahoga No. 86948,
2006-Ohio-4884, ¶ 12.
{¶28} Here, Trooper Morales testified that he observed Collins drive outside of the
marked lane approximately four times, “at least a tire’s width.” And the video footage
of the trooper’s dashboard camera appears to support the trooper’s testimony, depicting at
least two instances where Collins’s vehicle appears to cross the right edge line. Collins
claims that the width of the highway lane was only 10 feet, which is in violation of the
federally mandated 12 feet width. He argues that this difference in the width of the lane
somehow contributed to his inability to drive within the marked lanes. Collins’s defense
of his actions, however, is not relevant to whether a law enforcement officer had a
reasonable and articulable suspicion to initiate a traffic stop. Mays at ¶ 17; Cleveland v.
Martin, 8th Dist. Cuyahoga No. 105420, 2018-Ohio-740, ¶ 7. “An officer is not
required to determine whether someone who has been observed committing a crime might
have a legal defense to the charge.” Mays. The initial traffic stop of Collins’s vehicle
was therefore lawful.
{¶29} Collins also contends that Trooper Morales “had no valid reason” to “initiate
testing” to determine whether he was under the influence of alcohol.
{¶30} A police officer may request a motorist to perform field sobriety tests after
the officer has stopped the vehicle for a minor traffic offense, when “the request is
separately justified by a reasonable suspicion based upon articulable facts that the
motorist is intoxicated.” Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664,
2012-Ohio-3458, ¶ 29, citing State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761(11th Dist.1998). Moreover, to evaluate the reasonableness of the request for field
sobriety tests, we consider “the totality of the circumstances, viewed through the eyes of a
reasonable and prudent police officer on the scene who must react to events as they
unfold.” Dedejczyk at ¶ 29, citing State v. Dye, 11th Dist. Portage No. 2001-P-0140,
2002-Ohio-7158, ¶ 18.
{¶31} In Evans, the court enumerated a nonexhaustive list of factors that courts
may consider in evaluating whether an officer had reasonable suspicion to administer
field sobriety tests under the totality of the circumstances:
(1) the time of day of the stop (Friday or Saturday night as opposed to, e.g.,
Tuesday morning);
(2) the location of the stop (whether near establishments selling alcohol);
(3) any indicia of erratic driving before the stop that may indicate a lack of
coordination (speeding, weaving, unusual braking, etc.);
(4) whether there is a cognizable report that the driver may be intoxicated;
(5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.);
(6) impairments of the suspect’s ability to speak (slurred speech, overly
deliberate speech, etc.);
(7) the odor of alcohol coming from the interior of the car, or, more
significantly, on the suspect’s person or breath;
(8) the intensity of that odor, as described by the officer (“very strong,”
“strong,” “moderate,” “slight,” etc.);
(9) the suspect’s demeanor (belligerent, uncooperative, etc.);
(10) any actions by the suspect after the stop that might indicate a lack of
coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
(11) the suspect’s admission of alcohol consumption, the number of drinks
had, and the amount of time in which they were consumed, if given.
Evans at 63, fn. 2. “All of these factors, together with the officer’s previous experience
in dealing with drunken drivers, may be taken into account by a reviewing court in
determining whether the officer acted reasonably.” Id.{¶32} Here, the incident occurred at almost 1:30 in the morning. Trooper Morales
observed Collins’s vehicle drive outside the marked lanes at least four times. When the
trooper ran Collins’s driver’s license through LEADS, the computer showed that Collins
was under an administrative license suspension for a “refusal” from a previous OVI stop
that occurred approximately one month prior to this stop. When the trooper approached
Collins, he observed Collins chewing gum. He asked him to spit the gum out, and when
he did, the trooper smelled alcohol on Collins’s breath. Collins denied having been
drinking. Viewing the totality of circumstances through the eyes of a reasonable and
prudent police officer, we believe the trooper reasonably suspected that Collins was
driving while intoxicated and he was justified in extending the scope of the detention and
requesting Collins to perform the field sobriety tests.
{¶33} In the second and third assignments of error, Collins makes certain
statements concerning the stop: “The arresting officer misstated comments and answers
given by the Defendant and proceeded to ask the Defendant if he would perform a list of
test[s] to [e]nsure that he was capable of continuing to drive” and “The arresting officer
obtained the acquiescence of the Defendant to participating in the field sobriety test[s] by
telling the Defendant he had to ascertain, through the tests, that the Defendant was
capable of continuing to drive his vehicle.”
{¶34} We note that these assignments of error do not comply with
App.R. 16(A)(7), which provides that an appellant’s brief must include “[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.” The brief, at a
minimum, must contain an argument that is supported by legal authority. Inner City
Living, Inc. v. Ohio Dept. of Dev. Disabilities, 8th Dist. Cuyahoga No. 105255,
2017-Ohio-8317, ¶ 15, citing App.R. 16(A)(7). Where an appellant fails to comply with
this rule, the reviewing court may disregard the assignment of error. Young v. Kaufman,
8th Dist. Cuyahoga Nos. 104990 and 105359, 2017-Ohio-9015, ¶ 44, citing
App.R. 12(A)(2). Collins’s second and third assignments of error are statements that do
not include any legal support. We are therefore not obligated to consider them.
{¶35} Nevertheless, to the extent that Collins objects to the alleged
“misstatements” of the trooper’s testimony or what Collins did or did not say regarding
his “acquiescence,” we note that this testimony is a credibility issue and is therefore
within the province of the jury. Where the appellant raises a factual issue, “the weight to
be given the evidence and the credibility of the witnesses are primarily for the trier of the
facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. And the jury is free to believe all, some, or none of the testimony of each
witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538,
2013-Ohio-1184, ¶ 18.
{¶36} Here, the jury weighed the evidence and considered the credibility of the
witnesses — Trooper Morales and Collins. In doing so, the jury determined Collins was
guilty. We cannot substitute our own judgment for that of the factfinder on issues
concerning witness credibility. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277(1986).
{¶37} Collins’s first, second, and third assignments of error are overruled.
{¶38} Collins contends in his fourth assignment of error that the trial court “denied
Defendant’s Motion to Suppress.” Although Collins once again fails to present an
argument that is supported by legal authority, we presume from Collins’s brief that
Collins objects to Trooper Morales’s administration of the field sobriety tests. Collins
states that the trooper “slavishly performed a useless procedure known as the Vertical
Gaze Nystagmus (“VGN”), which cannot show jittering up or down due to the natural top
to bottom dimension of the normal eye.” Collins also generally argues “many other
types of errors and oversights in the methods and evaluations” of Trooper Morales,
without legal support, including an allegation that the NHTSA prohibits an officer from
performing field sobriety tests on individuals 65 years and older.
{¶39} In moving to suppress the results of a field sobriety test, the defendant must
provide an “adequate basis” to seek suppression of the results, which include stating the
legal and factual bases “‘with sufficient particularity to place the prosecutor and [the]
court on notice as to the issues contested.’” State v. Hunter, 8th Dist. Cuyahoga No.
91110, 2009-Ohio-1239, ¶ 24, citing State v. Shindler, 70 Ohio St.3d 54, 58,
1994-Ohio-452, 636 N.E.2d 319; Crim.R. 47. Where the defendant establishes an
adequate basis, the prosecutor then bears the burden of demonstrating substantial
compliance; and if the prosecutor demonstrates substantial compliance, the burden then
shifts to the defendant to overcome the presumption of admissibility. Hunter at ¶ 25.
{¶40} This court reviews a denial of a motion to suppress under a mixed standard
of review that involves questions of law and fact. Cleveland v. Giering, 8th Dist.
Cuyahoga No. 105020, 2017-Ohio-8059, ¶ 12, citing State v. Burnside, 100 Ohio St.3d
152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In a motion to suppress, “the trial court
assumes the role of trier of fact and is in the best position to resolve questions of fact and
evaluate witness credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172(8th Dist.1994). The reviewing court must therefore accept the trial court’s findings of
fact in ruling on a motion to suppress if the findings are supported by competent, credible
evidence. Giering; Burnside. The reviewing court, however, must independently
determine whether those facts satisfy the applicable legal standard. Id.{¶41} Under R.C. 4511.19(D)(4)(b), an officer may testify concerning the results
of the field sobriety test if the officer administered the test in “substantial compliance”
with the testing standards. Therefore, “in order for the results of the field sobriety tests
to be admissible, the city must demonstrate by clear and convincing evidence that the
officer performing the testing substantially complied with accepted testing standards.”
State v. Hyppolite, 8th Dist. Cuyahoga No. 103955, 2016-Ohio-7399, ¶ 47, citing
Middleburg Hts. v. Gettings, 8th Dist. Cuyahoga No. 99556, 2013-Ohio-3536, ¶ 12;
Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at ¶ 42. The city may
demonstrate what the NHTSA standards are through competent testimony and/or by
introducing the applicable portions of the NHTSA manual. State v. Boczar, 113 Ohio
St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28; see State v. Jackman, 8th Dist.
Cuyahoga No. 89835, 2008-Ohio-1944, ¶ 24 (“Under Ohio law, the state is not required
to introduce the NHTSA guidelines or expert testimony.”).
{¶42} Substantial compliance is not defined in R.C. 4511.19(D)(4)(b); therefore,
courts have some discretion in determining the “‘substantiability of the compliance.’”
Hyppolite at ¶ 48, quoting State v. Perry, 129 Ohio Misc. 61, 2004-Ohio-7332, 822
N.E.2d 862, ¶ 45 (M.C.). Thus, a determination of whether the facts satisfy the
substantial compliance standard is made on a case-by-case basis. Hyppolite; Dedejczyk
at ¶ 42.
{¶43} Trooper Morales conducted three field sobriety tests on Collins: the HGN
test, the WAT test, and the OLS test. Regarding the HGN test, a police officer must
instruct a suspect according to the NHTSA manual as follows:
“[A] police officer should instruct the suspect that they are going to check
the suspect’s eyes, that the suspect should keep their head still and follow
the stimulus with their eyes, and that the suspect should do so until told to
stop. After these initial instructions are provided, the officer is instructed to
position the stimulus approximately 12 to 15 inches from the suspect’s nose
and slightly above eye level. The officer is then told to check the suspect’s
pupils to determine if they are of equal size, the suspect’s ability to track the
stimulus, and whether the suspect’s tracking is smooth. The officer then
checks the suspect for nystagmus at maximum deviation and for onset of
nystagmus prior to 45 degrees.”
Cleveland v. Krivich, 2016-Ohio-3072, 65 N.E.3d 279 (8th Dist.), ¶ 15, quoting State v.
Secoy, 5th Dist. Muskingum No. CT2008-0065, 2009-Ohio-5100, ¶ 16. Additionally,
according to NHTSA standards, the officer must face a suspect away from flashing lights
and traffic that is in close proximity to the subject. State v. Stritch, 2d Dist. Montgomery
No. 20759, 2005-Ohio-1376, ¶ 23.
{¶44} In evaluating the suspect for impairment, the police officer should look for
three indicators: “(1) if the eye cannot follow a moving object smoothly, (2) if jerking is
distinct when the eye is at maximum deviation, and (3) if the angle of onset of jerking is
within 45 degrees of center.” Krivich, citing S. Euclid v. Bautista-Avila,
2015-Ohio-3236, 36 N.E.3d 246, ¶ 11 (8th Dist.).
{¶45} Our review of the record indicates that Trooper Morales substantially
complied with NHTSA standards in administering the HGN test and found four out of the
six clues of impairment. The trooper testified that Collins exhibited lack of smooth
pursuit and nystagmus with maximum deviation in both eyes. On cross-examination, the
trooper explained that the VGN is part of the HGN test and is “not taken into
consideration as a clue.” According to Trooper Morales, four clues indicate impairment.
{¶46} Regarding the WAT test, the NHTSA manual provides the following
instructions:
[A]n officer is required to first instruct the suspect of the initial positioning,
which requires the suspect to stand with his arms down at his side, and to
place his left foot on a line (real or imaginary). The suspect’s right foot is to
be placed on the line ahead of the left foot, with the heel of the right foot
against the toe of the left foot. The suspect is then told to remain in that
position while further instructions are given.
Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at ¶ 52, citing State v. Clark,
12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567, ¶ 43. Additionally, during this
test, the suspect “walks while touching his heel to his toe for every step, counting the nine
steps out loud while walking down the line, and making a turn with small steps with one
foot while keeping the other foot on the line.” Finally, the officer must demonstrate
three heel-to-toe steps. Brookpark v. Key, 8th Dist. Cuyahoga No. 89612,
2008-Ohio-1811, ¶ 89.
{¶47} Again, we find the record demonstrates that Trooper Morales substantially
complied with the NHTSA standards concerning the WAT test. He properly instructed
Collins regarding the process, and he demonstrated the test for Collins. The trooper
testified that he observed three out of a possible eight clues of impairment during this test
— beginning before instructed, not touching heel-to-toe, and incorrectly turning.
Trooper Morales testified that two clues are indicative of impairment. The trooper
stated that he took into consideration Collins’s age (70 years old at the time of the
incident) in the performance of the WAT test; however, there is no NHTSA prohibition
on administering this test on someone of Collins’s age.
{¶48} Concerning the OLS test, the NHTSA manual requires
the officer to instruct subjects to begin the test with their feet together and
keep their arms at their side for the entire test. The officer must also tell the
suspects that they must raise one leg, either leg, six inches from the ground
and maintain that position while counting out loud for thirty seconds.
NHTSA standards provide that the counting should be done in the
following manner: “one thousand and one, one thousand and two, until told
to stop.”
Dedejczyk at ¶ 49, quoting Clark at ¶ 36.
{¶49} We find once again that Trooper Morales substantially complied with
NHTSA standards in administering the OLS test. He testified that Collins indicated he
had difficulty with his right leg, but the trooper gave Collins the option of not performing
the test and Collins chose to proceed with the test. Trooper Morales observed two of the
six possible clues of impairment — swaying while counting and dropping a foot. Two
clues are indicative of impairment. The trooper stated, and the video depicts, that
Collins “basically almost fell at one point in time.”
{¶50} Based upon the uncontradicted testimony of Trooper Morales, we find that
the trial court relied upon competent, credible evidence in determining that the trooper’s
administration of the field sobriety tests substantially complied with the NTHSA
standards. Collins’s fourth assignment of error is therefore overruled.
{¶51} In his final assignment of error, Collins contends that the trial court erred
when it denied his motion to dismiss based upon speedy trial violations. He argues that
speedy trial time was violated due to motions made by the prosecutor, delays in receiving
discovery, and other extensions such as the prosecutor’s or arresting officer’s
unavailability.
{¶52} R.C. 2945.71(B)(2) provides that a defendant charged on a first-degree
misdemeanor must be brought to trial within 90 days after arrest or service of summons.
The statutory speedy trial period begins to run on the date the defendant is arrested,
although the date of arrest is not counted when calculating speedy trial time. State v.
Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 44. If the defendant is not
arrested for the offense, speedy trial time begins on the day he is served with the
indictment. State v. Pirkel, 8th Dist. Cuyahoga No. 93305, 2010-Ohio-1858, ¶ 12.
{¶53} Speedy trial time may, however, be tolled by certain events delineated in
R.C. 2945.72. These events include: delay “necessitated by the accused’s lack of
counsel”; delay “necessitated by reason of a plea in bar or abatement, motion, proceeding,
or action made or instituted by the accused, and any continuances granted upon the
accused’s own motion”; the “period of any continuance granted on the accused’s own
motion” as well as the period of “any reasonable continuance granted” upon any other
party’s motion; and the time during which an appeal is pending. R.C. 2945.72(C), (E),
(H), and (I).
{¶54} A defendant’s demand for discovery tolls the speedy trial time until the state
responds to the discovery, or for a reasonable time, whichever is sooner. State v.
Shabazz, 8th Dist. Cuyahoga No. 95021, 2011-Ohio-2260, ¶ 26, 31; R.C. 2945.72(E).
This court has interpreted “reasonable response time” to mean 30 days. See Shabazz at ¶
26; State v. Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283, ¶ 9; State v. Barb, 8th
Dist. Cuyahoga No. 90768, 2008-Ohio-5877, ¶ 9. However, what is reasonable or
necessary is determined on a case-by-case basis. Pirkel at ¶ 17, citing State v. Saffell, 35
Ohio St.3d 90, 518 N.E.2d 934 (1988).
{¶55} Moreover, motions filed by the defendant tolls the speedy trial time under
R.C. 2945.72(E) for a “reasonable period” to allow the prosecution an opportunity to
respond and the court an opportunity to rule. State v. Sanchez, 110 Ohio St.3d 274,
2006-Ohio-4478, 853 N.E.2d 283, ¶ 26. A motion to suppress evidence, for example,
will toll the speedy trial time. State v. Gibson, 8th Dist. Cuyahoga No. 100727,
2014-Ohio-3421, ¶ 20.
{¶56} Motions to continue that are filed by the prosecution may also toll speedy
trial time so long as the trial record affirmatively demonstrates the necessity for a
continuance and the reasonableness thereof. State v. Myers, 97 Ohio St.3d 335,
2002-Ohio-6658, 780 N.E.2d 186. Shabazz at ¶ 29. Specifically, a prosecutor’s
motion to continue based upon the unavailability of a witness will toll the speedy trial
provisions if the length of the delay is reasonable. Shabazz citing Saffell; see also State
v. Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976) (The reasonableness of a continuance
is determined by examining the purpose and length of the continuance.). And finally,
scheduling and docketing conflicts are reasonable grounds for extending an accused’s
trial date beyond the speedy trial time. Gibson at ¶ 19, citing Lee; Saffell at 92.
{¶57} We must strictly construe any ambiguity in the record in favor of the
accused. State v. Scahel, 8th Dist. Cuyahoga No. 102557, 2016-Ohio-18, ¶ 10.
{¶58} Here, Collins was cited on September 24, 2014. He was arraigned on
September 29, 2014, at which time a judge was assigned and a pretrial scheduled for
October 9, 2014. At this point, the speedy trial time was 15 days.
{¶59} During the October pretrial, Collins was not represented and he was
informed of his right to counsel. He filed a demand for discovery, and the pretrial was
continued at Collins’s request until November 5, 2014. At the continued pretrial,
Collins waived his right to counsel. The record indicates that discovery was ongoing
and Collins requested a continuance until November 26, 2014.
{¶60} Collins contends that the trooper “kept forgetting” to bring to court the
requested video demanded during discovery and this failure caused “several delays.”
We note, however, that there is no evidence in the record that the trooper caused any
delays; rather, the court’s docket indicates that the pretrials were continued at the
defendant’s request. Moreover, even if the trooper did, in fact, fail to turn over the
video at some point during these pretrial proceedings, we cannot find this delay
unreasonable, nor do we find it counted toward Collins’s speedy trial time. The
discovery demand was made on October 9, which tolls the speedy trial time for a
reasonable response time of 30 days, and on November 12, 2014, Collins filed a motion
to suppress, which also tolls the speedy trial time. The period of time between Collins’s
discovery demand and his motion to suppress was 34 days. Under the circumstances, we
find Collins’s speedy trial time was tolled during this period.
{¶61} On November 26, 2014, Collins filed a supplemental motion to suppress,
which further tolled the speedy trial time. The city filed its timely opposition to
Collins’s motions to suppress and a response to Collins’s discovery demand on December
3, 2014. The trial court held a hearing on Collins’s motion on December 17, 2014,
which was within 30 days of the filing of the motion and therefore presumptively
reasonable. The court denied Collins’s motion to suppress on January 7, 2015, which
was also a reasonable time. All of this time was therefore tolled.
{¶62} On January 15, 2015, Collins filed his motion to dismiss for speedy trial
violations pursuant to R.C. 2945.71. The period of time between the court’s ruling on
Collins’s motion to suppress and Collins’s filing of the motion to dismiss was 8 days,
thereby providing a total of 23 days on the speedy trial clock. His motion to dismiss
tolls the time period yet again, until the motion is ruled upon. There is no record in this
case, however, of the court ruling on this motion. As such, it is deemed denied. State
v. Carter, 8th Dist. Cuyahoga No. 104653, 2017-Ohio-5573, ¶ 3. And in calculating the
speedy trial time for the court to rule on Collins’s motion, we apply a reasonable 30-day
time period. See Gibson, 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, at ¶ 22.
Thus, the time is tolled until February 15, 2015.
{¶63} The court’s docket indicates that a bench trial scheduled for February 5,
2015, was continued at the prosecutor’s request to February 19, 2015. There is no
reason stated, and no apparent motion filed.1 And on February 19, the record shows that
this hearing was continued per Collins’s request and the court scheduled a jury trial for
April 2, 2015. In strictly construing any ambiguity in the record in favor of Collins, we
charge an additional 4 days to the city — from February 15, when the last tolling period
ended, to February 19, when Collins requested a continuance that commenced a new
tolling event. The speedy trial time up to this point was 27 days.
The city asserts in its appellee brief that the prosecutor requested this continuance due to
1
{¶64} On March 25, 2015, the prosecutor filed a motion to continue the jury trial
scheduled for April 2, 2015. The prosecutor stated that it was the city’s first
continuance requested of the jury trial, noting that the trial was scheduled in his absence
while he was on bereavement leave, and he was unavailable on that April date due to a
conflict. The court continued the trial until April 30, 2015. Finding the record
demonstrates the need for a continuance and the request is reasonable, we find the
prosecutor’s motion is a tolling event.
{¶65} We note, that even if we were to find the prosecutor’s request unreasonable,
thus charging the additional 28-day period to the state, Collins’s speedy trial time would
have amounted to 55 days at this point, which is within the statutory speedy trial time.
{¶66} On April 30, the trial was continued once again, this time at Collins’s
request, and the court rescheduled the trial for May 28, 2015. On this May date, Collins
signed a waiver of speedy trial, consenting to a continuance of the matter beyond the
statutory period. At this point, based on our calculations, and considering the numerous
tolling events, only 27 days of speedy trial time had elapsed, which is well below the 90
days for a speedy trial.
{¶67} Collins’s right to a speedy trial was therefore not violated. Accordingly,
Collins’s fifth assignment of error is overruled.
{¶68} Judgment affirmed.
its witness, Trooper Morales, attending training. The court’s record, however, contains no
explanation for the continuance.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR