State v. Lilly , 2022 Ohio 3521 ( 2022 )

[Cite as State v. Lilly, 2022-Ohio-3521.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-22-13
PLAINTIFF-APPELLEE,
v.
DOUGLAS P. LILLY, OPINION
DEFENDANT-APPELLANT.
Appeal from Bellefontaine Municipal Court
Trial Court No. 21-TRC-02573
Judgment Affirmed in Part
Reversed in Part
Date of Decision: October 3, 2022
APPEARANCES:
Marc S. Triplett for Appellant
Crystal K. Welsh for Appellee
Case No. 8-22-13
WILLAMOWSKI, J.
{¶1} Defendant-appellant Douglas P. Lilly (“Lilly”) brings this appeal from the
judgment of the Bellefontaine Municipal Court denying his motion to suppress. On
appeal, Lilly argues that the trial court’s decision was against the manifest weight of
the evidence and that the trial court used an incorrect test in reaching its judgment. For
the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On July 22, 2021, Deputy Cole Piatt (“Piatt”) was observing traffic on US
33. Tr. 11. Piatt saw a silver Ford pass going much slower than the posted speed limit
causing vehicles to go around it. Tr. 11. Piatt then pulled out to observe the driving.
Tr. 11. While following the vehicle, Piatt did not observe any driving infractions, but
noted that there was no visible county number sticker or county name on the rear license
plate as is required by R.C. 4503.21(A). Tr. 11-12. Piatt then initiated a traffic stop
and identified the driver as Lilly. Tr. 12.
{¶3} While speaking with Lilly, Piatt detected a moderate odor of an alcoholic
beverage coming from within the vehicle. Tr. 12. When questioned, Lilly admitted
that he had been drinking “hours ago.” Doc. 13 and Tr. 12. Piatt noted that Lilly’s
speech was slurred and his actions appeared “sluggish”. Tr. 13, 23. Piatt then asked
Lilly to exit the vehicle. Tr. 13. Lilly was initially unsteady on his feet and brushed up
against the vehicle as he walked towards the patrol car. Tr. 13. Lilly agreed to allow
Piatt to conduct the Horizontal Gaze Nystagmus test. Doc. 13. After the test was
complete, Piatt noted there were six out of six clues, along with Lilly swaying during
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the test. Tr. 18. Once this test was completed, Lilly admitted that he had drank three
beers approximately two to three hours earlier. Tr. 18.
{¶4} Piatt also conducted a walk-and-turn test with Lilly. Tr. 19. Lilly stepped
off the line, failed to touch heel to toe, and used his arms to balance. Tr. 21. Of the
eight possible clues, Lilly showed three. Tr. 20-21. Piatt then conducted the one-leg
stand test. Tr. 21. Lilly placed his foot on the ground more than three times and was
unable to finish the test. Tr. 22-23. As a result of Lilly’s performance on the field
sobriety tests, Piatt arrested Lilly for Operating a Motor Vehicle While Under the
Influence of Alcohol and/or Drugs of Abuse (“OVI”) in violation of R.C.
4511.19(A)(1)(a), a misdemeanor of the first degree. Doc. 1. Piatt then took Lilly to
the jail and performed a chemical breathalyzer test. Tr. 23-25. The result of the test
showed a blood alcohol content of 0.145 g/210L. Doc. 15.
{¶5} On August 30, 2021, Lilly filed a motion to suppress alleging that 1) the
stop was unlawful; 2) the field sobriety tests were not performed in substantial
compliance with the applicable standards; 3) statements were obtained from Lilly after
he was taken into custody without first warning Lilly of his right to remain silent.; 4)
the breathalyzer test was done without advising Lilly of his right to independent testing;
and 5) the breathalyzer test was not completed in compliance with Ohio Department of
Health rules. Doc. 47. A hearing was held on the motion to suppress on December 28,
2021. Doc. 86. Following the hearing, the trial court entered judgment denying the
motion to suppress. Doc. 86. On March 18, 2022, Lilly changed his plea to one of no
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contest and the trial court found him guilty of OVI with refusal.1 Doc. 120. Lilly
appeals from this decision and on appeal raises the following assignment of error.
The trial court erred when it overruled [Lilly’s] motion to
suppress.
{¶6} Lilly claims in the sole assignment of error that the trial court erred in
denying his motion to suppress.
An appellate review of the trial court's decision on
a motion to suppress involves a mixed question of law and fact. *
* * We will accept the trial court's factual findings if they are
supported by competent, credible evidence, because the
“evaluation of evidence and the credibility of witnesses” at the
suppression hearing are issues for the trier of fact. * * * But we
must independently determine, without deference to the trial
court, whether these factual findings satisfy the legal standard as
a matter of law because “the application of the law to the trial
court's findings of fact is subject to a de novo standard of
review.” * * *
State v. Urdiales, 3d Dist. Henry No. 7-15-03, 2015-Ohio-3632, ¶ 12, 38 N.E.3d
907. (citations omitted). Lilly is only challenging the decision of Piatt to continue
to detain him after the initial stop. Appellant’s Brief at 7.
{¶7} Lilly presents three arguments in support of his claim. The first and the
third both argue that the trial court’s factual findings are against the manifest weight of
the evidence and are in error. A traffic stop may be prolonged if an officer has a
reasonable, articulable suspicion of criminal activity. State v. Skaggs, 3d Dist.
Crawford No. 3-20-13, 2021-Ohio-2803, ¶ 12. “[T]he ‘reasonable and articulable’
1
This Court notes that the charging document does not indicate that there was any refusal and to the contrary
shows a result for the test given.
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standard applied to a prolonged traffic stop encompasses the totality of the
circumstances and that a court may not evaluate in isolation each articulated reason for
the stop.” State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 17, 865 N.E.2d
1282.
{¶8} The trial court made the following factual findings regarding why the initial
stop was continued.
Deputy Piatt observed a plate violation in that he did not have the
appropriate county sticker, in violation of [R.C. 4503.21(A)]. At
this point, Deputy Piatt initiated a traffic stop based on the plate
violation. Upon interaction with the Defendant, the operator of
the vehicle, Deputy Piatt observed unopened alcoholic beverages
in the front seat, an odor of alcoholic beverage, sluggish actions
from the Defendant and slurred or sluggish speech. Upon inquiry
about the odor, the Defendant admitted to consuming alcohol
earlier in the day. There was sufficient cause to further detain the
Defendant based on a totality of the circumstances.
Doc. 86 at 2. All of these findings were supported by the testimony of Piatt. Lilly
claims that the testimony regarding Lilly’s slurred speech and “sluggish”
movements was not supported by the video from the dash camera. A review of the
footage is not dispositive of whether Lilly was slurring his speech or moving slowly.
However, even if it were, the dash camera footage does not address the odor of an
alcoholic beverage, the closed containers of alcohol in the vehicle, and Lilly’s
admission that he had been drinking in the last few hours. Given this evidence, the
officer had a reasonable, articulable suspicion that Lilly might have been driving
under the influence of alcohol - noticeably slow speed, smell of alcoholic beverage,
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and admission - to continue the stop and to perform the field sobriety tests. Thus,
the trial court’s factual determinations were not against the manifest weight of the
evidence and the trial court did not err in determining that there was reasonable,
articulable suspicion to prolong the stop.
{¶9} Lilly’s second argument is that the trial court failed to consider all of
the evidence, focusing exclusively upon the testimony of Piatt. In support of this
argument, Lilly points to the factual findings of the trial court as “proof” that the
trial court did not consider all of the evidence. However, the record shows that the
trial court listened to all the testimony, including the cross-examination of Piatt, and
observed the footage from the dash camera. There is nothing in the record to
indicate that the trial court did not consider all of the evidence. The trial court, as
the trier of fact in this matter, can weigh the evidence and determine what to believe.
This Court must accept the factual findings of the trial court if there is competent,
credible evidence in the record to support it. Urdiales, supra. As the trial court’s
findings are supported by competent, credible evidence, this Court will accept those
findings. The assignment of error is overruled.
{¶10} Although this Court affirms the judgment of the trial court as to the
motion to suppress, a review of the record shows that the conviction stated in the
judgment entry does not match the offense listed on the charging document. The
charging document does not indicate any refusal of sobriety tests. The trial court in
its judgment entry indicates that there was a refusal. This Court notes that no
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transcript of the change of plea or sentencing was provided to this Court for review.
The record shows that Lilly did not refuse to take the test. Piatt testified that after
reading Ohio BMV form 2255 to Lilly and observing Lilly for 20 minutes, Lilly
“submitted to a chemical breathalyzer test.” Tr. 25. This testimony was not
contradicted and the charging document shows a BAC of .145. Doc. 1. Therefore,
the judgment entry of conviction indicating that Lilly refused the chemical
breathalyzer test was in error. The matter is remanded to the trial court for further
proceedings consistent with this opinion.
{¶11} Having found prejudicial error in the particulars assigned and argued, the
judgment of the Bellefontaine Municipal Court is affirmed in part and reversed in part.
Judgment Affirmed in Part
Reversed in Part
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
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