State v. Gordon , 2011 Ohio 3938 ( 2011 )

[Cite as State v. Gordon, 2011-Ohio-3938.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25531
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GREGORY WILLIAM GORDON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 03 0580
DECISION AND JOURNAL ENTRY
Dated: August 10, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Christopher Phillips saw Gregory Gordon buy beer at a gas station, even though
Mr. Gordon appeared to already be intoxicated. When Mr. Gordon got into the driver’s seat of a
car, Mr. Phillips called the sheriff’s office. He followed Mr. Gordon to his house and waited
until deputies arrived. The Grand Jury indicted Mr. Gordon for driving under a specified
lifetime suspension, driving under suspension, and operating a vehicle while under the influence
of alcohol. A jury found him guilty of each count, and the trial court sentenced him to five years
in prison. Mr. Gordon has appealed, arguing that the trial court incorrectly denied his motion to
suppress, that his convictions are not supported by sufficient evidence and are against the
manifest weight of the evidence, and that the court improperly sentenced him. We affirm
because the trial court did not deny Mr. Gordon’s right to a fair trial by allowing Mr. Phillips to
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identify him, his convictions are supported by sufficient evidence and are not against the
manifest weight of the evidence, and the court properly sentenced him.
FACTS
{¶2} Mr. Phillips testified that he was at a gas station buying milk on December 13,
2009, when he noticed a man who smelled like he had had a lot of alcohol buying a six-pack of
beer. After the man left, Mr. Phillips asked the cashier if the man had driven to the gas station,
but she did not answer. When he finished his purchase, Mr. Phillips walked outside and saw the
man getting into the driver’s seat of a car. Mr. Phillips got into his truck, moved it so that it was
blocking the other man’s car, and called the sheriff’s office. The other man got out of his car and
yelled at Mr. Phillips, then got back in his car and started backing out. Because he did not want
to get hit, Mr. Phillips moved his truck, but decided to follow the other man’s car. The man
noticed Mr. Phillips following him, and stopped a couple of times to yell at him. Undeterred,
Mr. Phillips continued following the car to a house. According to him, as the man was getting
out of his car, deputies arrived and confronted the man.
{¶3} Deputy Michael Lowe testified that he was on patrol when he received a dispatch
about a possibly intoxicated driver. He determined the address where the car was registered and,
because the driver appeared to be heading to that address, drove to it also. When he arrived, he
saw someone, whom he later identified as Mr. Gordon, exiting a car. As Deputy Lowe stopped
his cruiser, Mr. Gordon began rushing toward the house. The deputy told Mr. Gordon to stop,
and he eventually complied. Deputy Lowe testified that Mr. Gordon had a “strong odor of
alcoholic beverages” and that he could tell, from his training in the detection of people who are
under the influence of alcohol, that Mr. Gordon had been drinking.
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{¶4} Deputy Thomas Harvey testified that he received the same dispatch as Deputy
Lowe and arrived at Mr. Gordon’s house “[s]econds” after Deputy Lowe. When he arrived, Mr.
Gordon was outside a car, but near it. He saw Deputy Lowe block Mr. Gordon from entering his
house and helped secure him. According to Deputy Harvey, Mr. Gordon’s speech was slurred,
he had a strong odor of alcohol, his face was flushed, his eyes were bloodshot, he was
combative, and he expressed a wide range of emotions in a short period of time, which were all
indicative of intoxication. Deputy Harvey found a six-pack of beer in the car.
MOTION TO SUPPRESS
{¶5} Mr. Gordon’s third assignment of error is that “[t]he trial court committed
reversible error by denying [his] motion to suppress identification.” A motion to suppress
evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152,
2003-Ohio-5372, at ¶8. Generally, a reviewing court “must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.” Id. But see State v. Metcalf, 9th
Dist. No. 23600, 2007-Ohio-4001, at ¶14 (Dickinson, J., concurring). The reviewing court “must
then independently determine, without deference to the conclusion of the trial court, whether the
facts satisfy the applicable legal standard.” Burnside, 2003-Ohio-5372, at ¶8.
{¶6} Addressing Mr. Gordon’s assignment of error is complicated because his
argument has changed over time. Before trial, he moved to suppress “his out-of-court
identification that occurred on December 13, 2009, . . . on the grounds that it was an unduly
suggestive show-up identification procedure[.]” At a hearing on the motion, it came to light that
there was no such procedure and that the deputies had never asked Mr. Phillips to identify Mr.
Gordon after the incident. In its ruling on the motion, the trial court focused, instead, on whether
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Mr. Phillips, as an informant, provided sufficiently reliable information to give the deputies
reasonable suspicion to stop Mr. Gordon outside his house.
{¶7} In his brief to this Court, Mr. Gordon’s argument focuses on the fact that Mr.
Phillips could not positively identify him at the suppression hearing. According to him, because
Mr. Phillips could not identify him at the suppression hearing, the trial court should have granted
his motion to suppress.
{¶8} “[If] an officer making an investigative stop relies solely upon a dispatch, the state
must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a
reasonable suspicion of criminal activity.” City of Maumee v. Weisner, 87 Ohio St. 3d 295,
paragraph one of the syllabus (1999). In such a situation, “the determination of reasonable
suspicion will be limited to an examination of the weight and reliability due that tip.” Id. at 299.
“The appropriate analysis . . . is whether the tip itself has sufficient indicia of reliability to justify
the investigative stop.” Id. “Factors considered ‘highly relevant in determining the value of [the
informant’s] report’ are the informant’s veracity, reliability, and basis of knowledge. Id.
(quoting Alabama v. White, 496 U.S. 325, 328 (1990)).
{¶9} Whether Mr. Phillips could identify Mr. Gordon at the suppression hearing had no
bearing on whether his tip the night of the incident had such sufficient indicia of reliability that it
justified the deputies stopping Mr. Gordon outside his house. Mr. Gordon’s argument, therefore,
is without merit.
{¶10} Mr. Gordon has also argued that, since Mr. Phillips could not identify him at the
suppression hearing, the trial court denied him the right to a fair trial by allowing Mr. Phillips to
identify him at trial. At the suppression hearing, Mr. Phillips testified, in response to a question
about whether he had been asked to identify Mr. Gordon the night of the incident, that “I could
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not make a positive ID today, no.” At trial, he testified, in response to a question of whether he
could “identify the defendant by face,” that “I didn’t get a clear look at the guy’s face, other than
what appears to be this gentleman here to my right.” Mr. Phillips clarified that, “[t]o be fair,” he
did not know the color of the person’s eyes, and only knew that he was a “tall white male with
dark hair.” On cross-examination, Mr. Gordon impeached Mr. Phillips with his testimony from
the suppression hearing, namely, that he had been unable to identify Mr. Gordon as the man he
saw at the gas station at that time. On redirect, Mr. Phillips said that, although the person he saw
at the suppression hearing “look[ed] like the guy” he saw at the gas station, he “just [could not]
say that is – that is the guy.”
{¶11} “When a witness has been confronted with a suspect before trial, due process
requires a court to suppress [his] identification of the suspect if the confrontation was
unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under all the
circumstances.” State v. Waddy, 63 Ohio St. 3d 424, 438 (1992) (citing Neil v. Biggers, 409 U.S.
188 (1972)). “[N]o due process violation will be found where an identification does not stem
from an impermissibly suggestive confrontation, but is instead the result of observations at the
time of the crime.” State v. Davis, 76 Ohio St. 3d 107, 112 (1996).
{¶12} Mr. Gordon’s argument appears to be that it was unnecessarily suggestive for Mr.
Phillips to see him at the suppression hearing. Although each case must be examined on an
individual basis, courts have generally rejected arguments that an in-court identification was
unnecessarily suggestive. See State v. Jenkins, 2d Dist. No. CA 1213, 1981 WL 2849 at *4 (July
8, 1981) (compiling cases). In United States ex rel. Riffert v. Rundle, 464 F.2d 1348 (3d Cir.
1972), the Third Circuit recognized “[t]he inherent suggestiveness of any one-to-one
identification may very well be increased when a witness is asked to positively identify a
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defendant in the context of a judicial proceeding already instituted against him” and
recommended that “[t]o minimize this effect, any identification initially made at a judicial
proceeding, should be kept, wherever possible, within the formal context of that proceeding.” Id.
at 1350. Distinguishing the case before it from those involving police identification procedures,
the court noted that the witnesses “were present at the [pretrial] hearing in order to testify for the
Commonwealth and their identifications were made in that context with full opportunity to
defense counsel to cross-examine. Counsel was present and participated throughout the hearing
and was therefore able to cross-examine the witnesses both at the hearing and the trial as to any
weakness in their identifications. Further, there is no indication in the record, nor does counsel
suggest, that the police ‘aided’ the two witnesses in their identification prior to their taking the
stand.” Id. It, therefore, concluded that “[t]here was no violation of due process.” Id.; see also
Laury v. State, 260 A. 2d 907, 909 (Del. 1969) (“If accepted, the defendants’ contention would
require a ‘line-up’ identification in every case as a prerequisite to every court room
identification. . . . Generally speaking, a court room confrontation, in the presence of court and
counsel and with the right of cross examination preserved, provides adequate protection to the
rights of an accused[.]”).
{¶13} The United States Supreme Court has recognized that “the primary evil to be
avoided” in eye-witness identification cases “is ‘a very substantial likelihood of irreparable
misidentification.’” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). Upon review of the record, we conclude that it was not
unnecessarily suggestive for Mr. Phillips to see Mr. Gordon at the suppression hearing. As in
Rundle and Laury, the identification occurred at a formal hearing during which Mr. Gordon was
represented by counsel and had the opportunity for cross-examination. We also note that Mr.
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Phillips’s answer at the suppression hearing was in response to a question by Mr. Gordon’s
lawyer on cross-examination. Mr. Gordon had the opportunity to follow-up on Mr. Phillips’s
unresponsive answer, but did not. We further note that, at trial, Mr. Phillips’s identification of
Mr. Gordon was equivocal and that Mr. Gordon’s lawyer thoroughly cross-examined him on the
issue, using his answer from the suppression hearing to impeach him. Accordingly, we conclude
that Mr. Phillips’s identification testimony did not violate Mr. Gordon’s right to a fair trial. Mr.
Gordon’s third assignment of error is overruled.
SUFFICIENCY
{¶14} The first part of Mr. Gordon’s second assignment of error is that his convictions
were not supported by sufficient evidence. Whether a conviction is supported by sufficient
evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St.
3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶33. We must
determine whether, viewing the evidence in a light most favorable to the prosecution, it could
have convinced the average finder of fact of Mr. Gordon’s guilt beyond a reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991).
{¶15} The jury found Mr. Gordon guilty of driving under suspension and driving under
lifetime suspension. Under Section 4510.11(A) of the Ohio Revised Code, “[n]o person whose
driver’s . . . license . . . has been suspended . . . shall operate any motor vehicle upon the public
roads . . . during the period of suspension[.]” Under Section 4510.18(A), “[n]o person whose
driver’s . . . license . . . has been suspended for life . . . shall operate any motor vehicle upon the
public roads . . . within this state during the remaining life of the person.” It also found him
guilty of operating a motor vehicle while under the influence of alcohol. Under Section
4511.19(A)(1)(a), “[n]o person shall operate any vehicle . . . within this state, if, at the time of
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the operation, . . . [t]he person is under the influence of alcohol[.]” According to Mr. Gordon,
there was insufficient evidence presented at trial to prove that he operated a vehicle or was under
the influence of alcohol.
{¶16} Regarding whether Mr. Gordon operated a vehicle, Mr. Phillips testified that the
man he saw at the gas station got into a vehicle by himself and drove away, that he followed the
man home, and that he watched deputies make contact with the man. The deputies testified that
Mr. Gordon was the man with whom they made contact based on Mr. Phillips’s report.
Accordingly, we conclude that there was sufficient evidence for the jury to find beyond a
reasonable doubt that Mr. Gordon operated a motor vehicle.
{¶17} Regarding whether Mr. Gordon was intoxicated, the deputies testified that,
because Mr. Gordon was combative, it was not safe for them to do any field sobriety tests. Mr.
Gordon also refused to take a breath-alcohol content test. The deputies testified, however, that
they each had nine years of experience, that they had been trained in detecting alcohol use, and
that, consistent with their training and experience, they determined that Mr. Gordon was
intoxicated. According to Deputy Harvey, Mr. Gordon’s speech was slurred, his face was
flushed, his eyes were bloodshot, he had a strong odor of alcohol, he was combative, and he
expressed a wide range of emotions in a short period of time.
{¶18} A defendant can be convicted under Section 4511.19(A)(1)(a) even if “no field
sobriety tests were requested or completed, and no blood, breath or urine test was requested or
completed.” State v. Bolish, 12th Dist. No. CA2005-10-441, 2006-Ohio-5375, at ¶40; State v.
Cunningham, 9th Dist. No. 2475, 1989 WL 109125 at *1 (Sept. 20, 1989). In Cunningham, this
Court specifically rejected the argument that an “arresting officer’s opinion that [the defendant]
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was under the influence of alcohol, with no field sobriety or breath tests to support the opinion,
was insufficient evidence to establish that [he] was under the influence of alcohol.” Id.{¶19} In State v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37, the Ohio Supreme Court
recognized that “slurred speech, bloodshot eyes, and odor of alcohol” are all “indicia of
intoxication.” Id. at ¶14. In Bolish, a police officer, who had 18 years of experience, testified
that Mr. Bolish was intoxicated because he was talking very fast, his speech was slurred, his eyes
were “glassy” and bloodshot, he smelled strongly of alcoholic beverages, and he was swaying
back and forth. State v. Bolish, 12th Dist. No. CA2005-10-441, 2006-Ohio-5375, at ¶47. The
Twelfth District concluded that there was “ample evidence” to convict Mr. Bolish under Section
4511.19(A)(1)(a). Id.; see also City of Columbus v. Thevenin, 10th Dist. No. 05AP-879, 2006-
Ohio-4714, at ¶26-31 (reaching same conclusion under similar facts).
{¶20} In light of the deputies’ combined experience, their alcohol detection training, and
their observations of Mr. Gordon’s appearance and conduct, we conclude that there was
sufficient evidence in the record from which the jury could find that Mr. Gordon was intoxicated
at the time he drove home from the gas station. To the extent that Mr. Gordon’s second
assignment of error is that his convictions are not supported by sufficient evidence, it is
overruled
MANIFEST WEIGHT
{¶21} The second part of Mr. Gordon’s second assignment of error is that his
convictions are against the manifest weight of the evidence. When a defendant argues that his
convictions are against the manifest weight of the evidence, we “must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
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created such a manifest miscarriage of justice that the conviction[s] must be reversed and a new
trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶22} Mr. Gordon’s manifest weight argument focuses on whether the evidence that he
drove a car was credible. He has noted that neither deputy saw him operate a car and that the
car’s engine was not running when they arrived. While not mentioned by Mr. Gordon in his
brief, we note that there was also testimony that Mr. Gordon did not have any keys in his
possession at the time the deputies arrested him.
{¶23} The State submitted the recording of Mr. Phillips’s call to the dispatcher, which
runs until Mr. Phillips indicates that the deputies “got” the person he had been following. The
deputies also found a six-pack of beer in the car, which was consistent with what Mr. Phillips
said Mr. Gordon bought at the gas station. In addition, while it was Mr. Gordon’s wife who had
the keys to the car, the deputies testified that it took them about ten minutes to secure Mr.
Gordon. During that time, they were unable to keep track of Mrs. Gordon, who had come out of
the house during the encounter. It was undisputed, however, that she was wearing a nightgown
and did not have shoes on. The jury could have reasonably inferred that Mr. Gordon dropped his
keys while the deputies were approaching him and that Mrs. Gordon picked them up while they
were handcuffing him. Upon review of the entire record, we conclude that the jury did not lose
its way when it found that Mr. Gordon operated a motor vehicle. To the extent that his second
assignment of error is that his convictions are against the manifest weight of the evidence, it is
overruled.
SENTENCING
{¶24} Mr. Gordon’s first assignment of error is that the trial court exercised improper
discretion when it gave him the maximum sentence for driving under a lifetime suspension. In
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State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, a plurality of the Ohio Supreme Court
determined that, in light of State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, when appellate
courts review criminal sentences, they must apply a “two-step approach.” Id. at ¶4. The first
step is whether the sentence was contrary to law. Id. The second step is whether the court
exercised proper discretion in imposing the term of imprisonment. Id. at ¶26. The parties agree
that Kalish provides the correct standard of review in this case.
{¶25} Mr. Gordon has argued that his sentence is contrary to law because the trial court
failed to consider the principles and purposes of sentencing under Sections 2929.11 and 2929.12
of the Ohio Revised Code. Under Section 2929.11(A) of the Ohio Revised Code, “[a] court that
sentences an offender for a felony shall be guided by the overriding purposes of felony
sentencing. The overriding purposes of felony sentencing are to protect the public from future
crime by the offender and others and to punish the offender. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring the offender
and others from future crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.” R.C. 2929.11(A). “A sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in
[Section 2929.11(A)], commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” R.C. 2929.11(B).
{¶26} Section 2929.12 of the Ohio Revised Code provides additional guidance. “Unless
otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a
sentence . . . upon an offender for a felony has discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised
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Code. In exercising that discretion, the court shall consider the factors set forth in [Sections
2929.12(B) and (C)] relating to the seriousness of the conduct and the factors provided in
[Sections 2929.12(D) and (E)] relating to the likelihood of the offender’s recidivism and, in
addition, may consider any other factors that are relevant to achieving those purposes and
principles of sentencing.” R.C. 2929.12(A).
{¶27} “[If] the trial court does not put on the record its consideration of R.C. 2929.11
and 2929.12, it is presumed that the trial court gave proper consideration to those statutes.” State
v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at ¶18 n.4 (citing State v. Adams, 37 Ohio St. 3d
295, paragraph three of the syllabus (1988)); State v. Steidel, 9th Dist. No. 10CA0025-M, 2011-
Ohio-2320, at ¶13. Furthermore, it is evident from the record in this case that the trial court did
consider those factors. At the sentencing hearing, the trial court noted that, not only did Mr.
Gordon have a previous conviction for driving under the influence, but that the “worst thing” had
happened, which was that Mr. Gordon had killed someone. It noted that, even though Mr.
Gordon killed someone while driving drunk and spent ten years in prison for it, when he got out
he continued to drink and drive. It also noted that Mr. Gordon had violated the conditions of his
bond by drinking while awaiting trial. It determined, therefore, that Mr. Gordon had “nothing
but a total disregard for everything about the law” and “other human beings.” The court’s
statements show that it considered its need to protect the public and to punish Mr. Gordon, the
seriousness of his offense, and his likelihood of recidivism before imposing sentence.
Accordingly, Mr. Gordon has failed to establish that his sentence is contrary to law. Kalish,
2008-Ohio-4912, at ¶4.
{¶28} Mr. Gordon has also argued that the trial court exercised improper discretion
when it sentenced him. He has noted that there was no positive breath-alcohol content test
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proving that he was intoxicated, that he did not cause any injury to person or property, and that
none of the deputies saw him inside a car. Mr. Gordon’s arguments, however, go to the weight
of the evidence and not the factors on which the court must base its sentencing decision. See
R.C. 2929.11, 2929.12. His first assignment of error is overruled.
CONCLUSION
{¶29} The trial court did not deprive Mr. Gordon of his right to a fair trial when it
allowed Mr. Phillips to identify him at trial. Mr. Gordon’s convictions are supported by
sufficient evidence and are not against the manifest weight of the evidence. The trial court
exercised proper discretion when it sentenced Mr. Gordon and his sentence is not contrary to
law. The judgment of the Summit County Common Pleas 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 Court of Common
Pleas, County of Summit, 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(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR
APPEARANCES:
KERRY O’BRIEN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.