State v. Rasool , 2022 Ohio 3409 ( 2022 )

[Cite as State v. Rasool, 2022-Ohio-3409.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOs. C-210615
C-210616
Plaintiff-Appellant, : TRIAL NO. 21TRC-16570A
21TRC-16570A
:
VS.
: O P I N I O N.
DELBERT RASOOL, :
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 28, 2022
Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Chris Konitzer, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In the summer of 2021, Officer Sydney Morehead arrested defendant-
appellee Delbert Rasool for various offenses involving operating a vehicle while
impaired (“OVI”). At a suppression hearing, based on the officer’s failure to
administer the field sobriety test properly and her inability to recall critical details
from the night in question, the trial court granted Mr. Rasool’s motion to suppress any
evidence obtained after the alleged unlawful stop and warrantless seizure. On the
state’s appeals, after reviewing the record and the factual findings by the trial court,
we must affirm its judgment.
I.
{¶2} Officer Morehead responded to a car crash close to midnight involving
Mr. Rasool. When Officer Morehead arrived, she found Mr. Rasool outside of his car,
which had gone “kind of up on the grassy area off the curb.” Officer Morehead testified
that the accident happened on a narrow residential street with cars parked on both
sides, rendering it impossible for more than one car to pass at a time. She believed
that Mr. Rasool must have hit a parked car head-on based on the resting place of his
car. She never, however, asked for Mr. Rasool’s account of what happened.
{¶3} Officer Morehead testified that she believed Mr. Rasool to be
appreciably impaired to the point that he should not be operating a vehicle.
Furthermore, according to the state, Officer Morehead observed Mr. Rasool struggling
to retrieve his documents, presenting a moderate odor of alcohol, and exhibiting
difficulty in following directions. She further testified that Mr. Rasool “was standing
up straight and he just fell over.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Based on these concerns, Officer Morehead administered an HGN test,
a field sobriety test conducted by having the subject follow a finger or pen with their
eyes while the tester observes their eye movements. Officer Morehead did not
administer any other field sobriety test that would have required Mr. Rasool to move
because “I could tell he had a bad leg” (Mr. Rasool recently had knee replacement
surgery). After performing the HGN sobriety test and based on her other observations,
Officer Morehead arrested Mr. Rasool for violations of R.C. 4511.19(A)(1)(a) and (d),
and R.C. 4511.202 (OVI and failure to control). After the trial court granted Mr.
Rasool’s motion to suppress, the state appealed the charges under R.C.
4511.19(A)(1)(a) and (d).
II.
{¶5} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Winfrey, 1st Dist. Hamilton No. C-070490, 2008-Ohio-3160, ¶
19. At a suppression hearing, the trial court sits in the best position to decide the facts
and to evaluate the credibility of the witnesses. Id. Appellate courts accordingly must
defer to the factual findings of a trial court in evaluating a suppression motion when
they are supported by competent, credible evidence. State v. Banks-Harvey, 152 Ohio
St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a ruling on a
motion to suppress presents a mixed question of law and fact. * * * [a]n appellate court
must accept the trial court’s findings of fact if they are supported by competent,
credible evidence.”). “[B]ut we review de novo the court’s application of the law to
those facts.” State v. Jordan, 2020-Ohio-689, 145 N.E.3d 357, ¶ 9 (1st Dist.).
{¶6} A warrantless arrest in a public place does not violate the Fourth
Amendment if the officer possessed probable cause to believe that the person
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OHIO FIRST DISTRICT COURT OF APPEALS
committed or was committing a criminal offense. Jordan at ¶ 11. “In determining
whether a police officer has probable cause to arrest a suspect for OVI, a court
considers whether, at the moment of arrest, the officer had information within the
officer’s knowledge, or derived from a reasonably trustworthy source, of facts and
circumstances sufficient to cause a prudent person to believe the suspect was driving
under the influence of alcohol, drugs, or both.” State v. Montelauro, 10th Dist.
Franklin No. 11AP-413, 2011-Ohio-6568, ¶ 20.
{¶7} As pertinent to this appeal, the ticket issued to Mr. Rasool cited
violations of R.C. 4511.19(A)(1)(a) and (d), and R.C. 4511.202. R.C. 4511.19(A)(1)(a)
and (d) provide that “No person shall operate any vehicle * * * if, at the time of the
operation, * * * [t]he person is under the influence of alcohol, a drug of abuse, or a
combination of them[, or] * * * [t]he person has a concentration of eight-hundredths
of one gram or more but less than seventeen-hundredths of one gram by weight of
alcohol per two hundred ten liters of the person’s breath.”
{¶8} The state argues that probable cause existed because Mr. Rasool caused
an accident, fell down during Officer Morehead’s investigation, had difficulty
retrieving his documents, and presented a moderate odor of alcohol. But this view of
the facts is one-sided and disregards the trial court’s assessment and its credibility
appraisals. In fact, Officer Morehead’s testimony undermines many of the facts the
state features in its brief. We generally defer to the trial court’s credibility
determinations because “the trial court has had the opportunity to observe the witness’
demeanor, gestures, and voice inflections that cannot be conveyed to us through the
written record.” State v. Whitfield, 1st Dist. Hamilton No. C-190591, 2020-Ohio-
2929, ¶ 12.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} We take heed of the trial court’s findings below—it concluded that the
HGN test could not be considered, and recognized inconsistencies in Officer
Morehead’s testimony. In the trial court’s view, Officer Morehead failed to
substantially comply with the requirements of the National Highway Traffic Safety
Administration (“NHTSA”) by rushing the test and failing to follow NHTSA testing
guidelines, which precluded the trial court from assessing it in its calculus of probable
cause. Notably, the state does not challenge on appeal the trial court’s finding
regarding the noncompliant HGN test administered by Officer Morehead.
{¶10} Moreover, Officer Morehead’s testimony at trial created further doubt
for the court: she failed to answer straightforward questions from Mr. Rasool’s counsel
about the night in question, could not recall many of the essential details of how she
administered the HGN test to him (notwithstanding body-worn camera evidence),
answered many questions with “I don’t recall,” and to a degree negated many of the
state’s arguments. In assessing Officer Morehead’s wanting testimony, the trial court
noted “we have to take that into consideration when you’re considering [probable
cause].”
{¶11} Other testimony offered by the officer exhibited inconsistencies. For
instance, while Officer Morehead did initially testify that Mr. Rasool “fell over,” she
later acknowledged that she also understood that Mr. Rasool “had a bad leg,” which is
why she administered the HGN test and no other field sobriety test. In other words,
the state’s effort to portray the first part of this testimony as consistent with
intoxication runs headlong into her subsequent acknowledgment that physical
difficulties with his leg could have caused the fall. As the trial court recalled this point,
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OHIO FIRST DISTRICT COURT OF APPEALS
the officer’s testimony established that his injury “very well could have been the reason
he fell.”
{¶12} Likewise, Officer Morehead also described Mr. Rasool as “fumbling
quite a bit when I was asking him for his documentation,” but when asked the follow-
up question of whether that meant he was fumbling with his wallet, she answered, “I
think he might have looked in his vehicle for something if I was asking for registration
or insurance.” When pressed by defense counsel, she acknowledged that he was “going
through his papers and trying to get me, like, his ID and things like that.”
{¶13} As defense counsel inquired further, Officer Morehead answered that
she “didn’t remember” or “couldn’t recall” at least 18 times during her testimony. She
couldn’t recall if Mr. Rasool’s eyes were bloodshot, couldn’t recall whether his speech
was slurred, couldn’t recall how far from his eyes she held the pen during the sobriety
test, and couldn’t recall if Mr. Rasool was able to walk to her police cruiser without any
difficulty (other than the limp). Beyond this, Officer Morehead apparently failed to
ask him some fairly basic questions, such as “were you drinking” and “how did the
crash occur.” It may well be that Officer Morehead possessed probable cause on the
night in question, but the state failed to adduce necessary facts and testimony that
would have substantiated the point.
{¶14} In light of the transcript and evidence at hand, we see nothing amiss in
the trial court’s credibility assessment or in its ultimate conclusion to grant the
suppression motion. The court here found that the officer’s testimony added very little
to the facts surrounding the car crash—a finding supported by competent, credible
evidence. Because “a reviewing court should not reverse a decision simply because it
holds a different opinion concerning the credibility of the witnesses and evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
submitted before the trial court,” we overrule the assignment of error and affirm the
judgment of the trial court. Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77,
81, 461 N.E.2d 1273 (1984).
III.
{¶1} In light of the foregoing analysis, we overrule the state’s assignment of
error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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