State v. Bradley , 2022 Ohio 3352 ( 2022 )

[Cite as State v. Bradley, 2022-Ohio-3352.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-21-1143
Appellee Trial Court No. TRC2000532
v.
Charles Bradley DECISION AND JUDGMENT
Appellant Decided: September 23, 2022
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Daniel C. Arnold, City of Sylvania Prosecuting Attorney, for appellee.
Anthony J. Richardson, II, for appellant.
*****
OSOWIK, J.
I. Introduction
{¶ 1} In this appeal, appellant, Charles Bradley challenges the Sylvania Municipal
Court decision denying appellant’s motion to suppress evidence. Appellant pled no
contest to the charge of operating a vehicle while intoxicated. Appellant also challenges
the trial court’s failure to consider his ability to pay fines.
II. Facts and Procedural Background
{¶ 2} On January 29, 2020, around 11:55pm, Charles Bradley was driving on
Airport highway. At the time, Deputy Matthew Johnson, an officer with the Lucas
County Sheriff’s Office, was patrolling with the OVI task force. Deputy Johnson
observed a taupe colored trailblazer, crossing over and “straddling” the dotted line
dividing two lanes of traffic, remaining there for an extended period of time. Deputy
Johnson testified that he then began following the vehicle and turned his lights and siren
on, after noticing the infraction on Airport Highway east of Albon road. He eventually
pulled Bradley over into a parking lot near the intersection of Airport Highway and
Roycraft at which time Bradley hit a curb and came to a stop.
{¶ 3} Officer Johnson approached Mr. Bradley at his driver’s side window and
had a conversation with appellant. After detecting the smell of cologne and slurred
speech, the deputy told appellant to step out of the car and administered field sobriety
tests. On the Horizontal Gaze Nystagmus test the appellant lacked smooth pursuit in his
eyes and had a distinct nystagmus in both eyes. He had difficulty getting into position for
the walk and turn test and needed to be reminded multiple times to follow directions. On
the one leg stand test, Mr. Bradley put his leg down and used his arms for balance
multiple times.
2.
{¶ 4} However, Mr. Bradley refused to submit to the Preliminary Breath Test.
Based on the field sobriety test appellant was taken into custody and was asked to
provide two breath samples, the lower of which was used to determine if there was an
OVI violation. He blew a breath alcohol content of .124g/210L and .131g/210L, the
lesser of the two samples was used to determine if there was an OVI violation.
{¶ 5} Appellant was then charged with operating a vehicle under the influence of
alcohol in violation of R.C. 4511.19(A)(1)(A) and (A)(1)(D) and a marked lane violation
of R.C. 4511.33(A)(1). The appellant filed a motion to suppress on October, 14, 2020,
claiming that the evidence against him was obtained in violation of the Fourth
Amendment protection against unreasonable searches and seizures and that the officer’s
arrest of him was unreasonable because there were no specific and articulable facts that
would lead a reasonable person to believe that appellant was committing a crime.
{¶ 6} The motion to suppress went to a hearing before a magistrate on
October, 28, 2020. Deputy Johnson was the only witness to testify. At the hearing he
also acknowledged that there was not dash cam footage of the arrest and the body cam
footage did not record any of the driving infractions to supplement his testimony. Deputy
Johnson claimed that it was reasonable to stop Bradley’s vehicle because his car’s
placement over the line was more than merely merging lanes. He testified that Bradley’s
car remained straddled between two lanes for several seconds at two separate times. This
was enough indication to make a stop and assess the situation according to Officer
3.
Johnson. He was not able to recall some more specific facts of the case such as whether
appellant was traveling eastbound or westbound, the lane that Mr. Bradley was in, where
exactly on Airport Highway did he first spot appellant, or the speed at which he traveled.
The motion to suppress was filed ten months after the initial incident. Based on his
observations that night, Deputy Johnson determined that there was probable cause to
believe that appellant was violating a law and therefore was justified in stopping
appellant and subjecting him to sobriety tests.
{¶ 7} On February, 23, 2021, this issue was decided by the magistrate who denied
the motion to suppress. The magistrate concluded that the officer’s testimony indicated
that appellant was straddling the line between two lanes twice and that observation was
enough for a reasonable person to believe that appellant was violating a traffic law, and
that the officer was acting appropriately when performing the traffic stop. The
magistrate’s decision was affirmed by the trial court on August, 26, 2021.
{¶ 8} Appellant ultimately pled no contest to a violation of R.C. 4511.19(A)(1).
Upon the appellant’s plea to the OVI, the marked lanes violation was dismissed by the
prosecution. The court found appellant guilty and he was sentenced to 30 days in jail,
150 days of probation a violation cost of $130.00, a fine of $850.00 for the OVI and a
forfeiture of his vehicle. The vehicle however, had already been sold prior to sentencing.
Appellant’s attorney made a motion to stay, pending the appeal, which was granted.
Appellant timely filed appeal from the judgment.
4.
III. Assignment of Error
{¶ 9} Appellant asserts two assignments of error for our review:
1. The court erred in denying the motion to suppress evidence.
2. The trial court erred in failing to make a finding regarding
appellant’s ability to pay fines at either his hearing or entry.
IV. Law and Analysis Standard of Review
{¶ 10} Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. The appellate court must accept the trial court's findings of fact if the
facts are supported by competent, credible evidence. State v. Steed, 2016-Ohio-8088, 75
N.E.3d 816, ¶ 11 (6th Dist.). Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706,
707 N.E.2d 539 (4th Dist.1997).
{¶ 11} Bradley argues that the trial court erred in denying his motion to suppress,
claiming that the stop was unlawful and that Johnson’s testimony was not credible. The
Fourth Amendment guarantees the right of the people to be secure in their persons,
5.
houses, papers, and effects, against unreasonable searches and seizures. Temporary
detention of individuals during the stop of an automobile by the police, even if only for a
brief period and for a limited purpose, constitutes a “seizure” of “persons” within the
meaning of this provision. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996). However in certain circumstances the United States
Supreme Court has interpreted the Fourth Amendment to permit police stops of motorists
in order to investigate a reasonable suspicion of criminal activity. Maumee v. Weisner, 87
Ohio St.3d 295, 720 N.E.2d 507 (1999).
{¶ 12} When determining the reasonableness of a stop, this Court has previously
held that the decision to stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred. Bowling Green v. Godwin, 110
Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698.
{¶ 13} In this case, the officer testified that he observed Bradley driving and
crossing the dotted line separating the two lanes, in violation of R.C. 4511.33(A)(1).
Appellant argues that the officer’s narrative was inconsistent and therefore the credibility
of this witness should be challenged. We are not persuaded. A review of the record
indicates that there was sufficient evidence to convict appellant of the offense OVI, in
violation of R.C. 4511.19(A)(1).
{¶ 14} Appellant’s primary argument regarding the reasonableness of the traffic
stop rests on this court’s decision in City of Maumee v. Stone, 6th Dist. Lucas No. L-18-
6.
1144, 2019-Ohio-3214. Bradley cites that this court focused on the inconsistent narrative
set forth by the officers. In Stone, the officer testified that he witnessed Stone driving 35
mph in a 50 mph zone and pulled into a gas station. The officer testified that there was
60 seconds of footage before the camera was turned on, but prior to recording he had
witnessed the appellant cross over the line between lanes. However, his testimony of the
events that night were inconsistent with the police report and video evidence. The
unreliable testimony was accompanied with lack of video evidence of the actual alleged
violation.
{¶ 15} Here, Bradley contends that Johnson’s testimony was not credible enough
to justify the stop. He cites inconsistency in his narrative and a lack of video evidence to
support his telling of events. Appellant notes the officer’s failure to recall whether
appellant was in the center lane or outer lane, failure to recall the weather conditions that
night, failure to recall the approximate speed being traveled at the time, failure to recall
the length of time it took the appellant’s vehicle to come to a stop, and other such
uncertainty regarding various peripheral details. There was a nine-month gap between
the date of the arrest and the suppression hearing, in which the officer may have forgotten
minor details, which occurred during the stop. Unlike the facts of Stone, there is no
contrary evidence in this record that would dispute the officer’s representation of the
facts as he recalled them to have occurred.
7.
{¶ 16} We find no abuse of discretion by the trial court when it denied the
appellant’s motion to suppress and find appellant’s first assignment of error not well-
taken and is denied.
{¶ 17} Appellant’s second and final assignment of error urges this court to reverse
the trial court’s assessment of a mandatory fine and court costs as it failed to make a
finding of appellant’s ability to pay.
{¶ 18} The decision to impose or waive a fine rests within the sound discretion of
the court and will not be reversed on appeal absent an abuse of that discretion. See State
v. Kessler, 6th Dist. Wood No. WD-08-055, 2009-Ohio-3918, ¶ 7, citing State v. Kruse,
6th Dist. No. Wood No. WD-05-001, 2006-Ohio-3179, ¶ 49.
{¶ 19} Appellant was convicted of violating R.C. 4511.19(A)(1). The sentencing
statute for this violation is found at R.C. 4511.19(G)(1), which provides, in pertinent part:
(c) * * * [A]n offender who, within six years of the offense,
previously has been convicted of or pleaded guilty to two violations of
division (A) or (B) of this section or other equivalent offenses, is
guilty of a misdemeanor. The court shall sentence the offender to all
of the following:
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8.
(iii) In all cases, notwithstanding the fines set forth in Chapter
2929. of the Revised Code, a fine of not less than eight hundred fifty
and not more than two thousand seven hundred fifty dollars[.]
{¶ 20} This sentencing language is mandatory. The use of the word “shall”
denotes that compliance is necessary. City of Cleveland v. Tighe, 8th Dist. Cuyahoga
Nos. 81767 and 81795, 2003-Ohio-1845, ¶ 9;
{¶ 21} There is nothing in the Presentence Investigation Report that would
demonstrate an inability to pay the mandatory fine and costs. Further, the available
record does not indicate any objection at sentencing to the imposition of the fine or costs.
Despite appellant’s arguments, there is no requirement that the trial court make an
affirmative finding that an offender is able to pay a mandatory fine. State v. Lenhert, 6th
Dist. Wood No. WD-08-078, 2009-Ohio-5392, ¶ 10.
{¶ 22} Under the foregoing circumstances, the imposition of a fine and court costs
upon Bradley for his conviction cannot be said to constitute an abuse of discretion.
Consequently, his second assignment of error is overruled.
V. Conclusion
{¶ 23} The decision of the Sylvania Municipal Court is affirmed. Appellant is
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
9.
State of Ohio/City of Sylvania
v. Charles Bradley
L-21-1143
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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