[Cite as State v. Asp, 2011-Ohio-4567.]

COURT OF APPEALS 

GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJAMES ASP 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2010-CA-40 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge 

Municipal Court, Case No. 09CRB01643 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 9, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

WILLIAM FERGUSON MELISSA M. WILSON 

City of Cambridge Law Director 1009 Steubenville Avenue 

150 Highlalnd Avenue Cambridge, OH 43725 

Cambridge, OH 43725 
[Cite as State v. Asp, 2011-Ohio-4567.]

Gwin, P.J. 

{¶1} Defendant-appellant James Asp appeals the July 21, 2010 Judgment 

Entry of the Cambridge Municipal Court overruling his motion to suppress evidence. 

Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} At the evidentiary hearing on appellant’s motion to suppress held March 

24, 2010, and April 24, 2010, the following facts were established: 

{¶3} Trooper Shawn Allar is an eight year veteran of the Ohio State Highway 

Patrol. On December 14, 2009 at approximately 10:06 p.m. he was on duty and 

patrolling on U.S. Route 40 in Guernsey County. 

{¶4} Trooper Allar was westbound and observed a vehicle traveling eastbound 

at what appeared to be a speed over the posted limit of 55 miles per hour. Trooper Allar 

checked the vehicle’s speed using a K 55 radar unit, and determined that the vehicle 

was traveling at 64 miles per hour. Trooper Allar had checked the calibration of the K-55 

radar unit prior to starting his shift. Trooper Allar noted the make and color of the vehicle 

and turned to follow it. 

{¶5} Trooper Allar observed the vehicle go over a small rise on the road which 

turned off Route 40. The vehicle which appellant was driving then proceeded north on 

Cooks Run Road and, utilizing its turn signal, turned into a private driveway. At this 

point Trooper Allar had turned on the cruiser lights. The video camera in the cruiser is 

retroactively activated thirty (30) seconds before the cruisers lights are turned on, and 

these events are shown in State's exhibit B, a video disk admitted into evidence. 
Guernsey County, Case No. 2010-CA-40 3 

{¶6} The Trooper followed the appellant's vehicle into the driveway of the 

residence and stopped behind the vehicle. As shown in State's exhibit B, the appellant 

exited his vehicle and walked across the front of the Trooper's cruiser with his hands in 

his pockets. Trooper Altar exited his cruiser, ordered the appellant to stop and remove 

his hands from his pockets. Appellant complied and Trooper Allar then frisked him for 

weapons. At this point Trooper Allar testified that he could observe appellant’s eyes 

were glassy and blood shot and his face was flushed. Trooper Allar further smelled what 

he characterized as a strong odor of an alcoholic beverage coming from appellant. 

{¶7} Trooper Allar called appellant by name because he knew him from prior 

professional contact. Appellant repeatedly asked the reason for the stop, and how it was 

that the Trooper knew his name. Trooper Allan testified that he knew appellant and 

called him by his first name because he had responded approximately two (2) years ago 

at the same residence. That prior incident involved charges against appellant, and an 

allegation that he used a Bobcat fork lift to lift up and then drop a vehicle containing the 

family of an ex- girlfriend. Trooper Allar testified that he remembered that he responded 

to that prior incident at that same address and having been advised, at that time, that 

appellant had been armed with a machete. 

{¶8} Appellant demanded to see the speed on the K-55 radar. He continued to 

ask why he had been stopped, and requested to know what charge the officer was 

investigating. Trooper Allar testified that he attempted to have appellant sit in the 

backseat of the cruiser so that he could view the speed on the K-55 radar’s display unit. 

He testified that the backseat was preferable for safety reasons to having a suspect sit 

in the driver’s seat of the cruiser. Trooper Allar further testified that due to the radar 
Guernsey County, Case No. 2010-CA-40 4 

unit’s configuration as well as the configuration of the interior of the cruiser, the display 

was most easily viewable from the rear passenger seat. The cruiser speed is shown on 

the digital read out on the right, and the object vehicle speed is shown on the left of the 

screen. 

{¶9} Appellant refused to be seated in the cruiser and walked away from 

Trooper Allar toward his own vehicle. According to Trooper Allar's testimony, appellant 

had pushed away from him before returning to his vehicle. Thereupon, as shown by the 

video, the Trooper followed him, put appellant in a bear hug and took him to the ground. 

{¶10} While on the ground, appellant was attempting to put his hands under his 

chest while Trooper Allar was on top of him. Appellant was continuously questioning the 

reason for the stop, and shouting "What is this all about?" 

{¶11} In response to Trooper Allar's call for backup, Trooper Bayless of the 

Highway Patrol arrived. Trooper Bayless testified that when he arrived he saw both 

vehicles and appellant on the ground with Trooper Altar on top of him. At this point, 

according to Trooper Allar, he had made the decision to arrest appellant for OVI and 

resisting arrest. Because appellant would not stop struggling after repeated requests to 

cooperate by each of the Trooper’s, Trooper Bayless applied a five (5) second dry stun 

to the appellant with a Taser. Trooper Bayless also testified that he noticed a strong 

odor of an alcoholic beverage coming from appellant. 

{¶12} The video indicates that once appellant was arrested he was read his 

Miranda rights. Additionally in his post incident statement taken at the hospital, 

appellant verified that he had previously been read his Miranda rights by Trooper Allar 

and the scene of the arrest. 
Guernsey County, Case No. 2010-CA-40 5 

{¶13} In Trooper Allar's opinion, appellant was under the influence of alcohol at 

the time of the arrest. Appellant appeared to Trooper Allar to be paranoid and subject to 

mood swings. Trooper Allar testified that he found a bottle of whisky and a bottle of 

vodka in the appellant’s vehicle but conceded that he did not take those items into 

evidence, nor did he note whether or not the bottles had been opened. 

{¶14} Appellant was arrested and transported to the Guernsey County Jail 

where they refused to incarcerate him because he had been tasered. Appellant was 

then taken to the local hospital, Southeastern Ohio Regional Medical Center, to be 

cleared to be incarcerated. At the hospital, appellant refused a blood test. Because 

appellant had been tasered, and appellant was complaining, Sergeant Perkins of the 

Ohio State Highway Patrol arrived at the hospital to do an incident report. In that report 

appellant stated that he had been advised of his Miranda rights at the time of arrest, and 

that he was giving a statement voluntarily.1

 

{¶15} Appellant testified on his behalf. He denied that he was going over the 

fifty-five (55) mile an hour speed limit, and testified that he had never increased his 

speed to get away from the officer. 

{¶16} Appellant testified at some length that he had been through years of very 

unpleasant litigation with the mother of his child, Connie Pace. That litigation has 

revolved around the issue of their daughter. Appellant testified that he believed that 

every Christmas season, Ms. Pace engineered some problem for him with law 

enforcement so that he could not exercise his parental rights with his daughter over the 

Christmas season. According to appellant’s testimony, he felt certain that when the 

 

1

 Because it was shift change for budgetary reasons Sergeant Perkins was replaced at the hospital by 

Sergeant Glennon who concluded the appellant’s report. 
Guernsey County, Case No. 2010-CA-40 6 

Trooper pulled into the driveway behind him, Ms. Pace was again causing him a 

problem during the holiday season. 

{¶17} Appellant testified that he found it very suspicious that Trooper Allar called 

him by his first name at the time of their initial contact. Appellant further testified that he 

found it very suspicious that his daughter was brought to the emergency room 

approximately fourteen (14) minutes later by the her mother, Ms. Pace. However, 

appellant conceded on cross-examination that his daughter had been sick that day and 

had previously been to the emergency room roughly seven hours before on that same 

day. 

{¶18} On rebuttal, Trooper Allar testified that he did not know anyone named 

Connie Pace, that he was not aware of the legal problems existing between appellant 

and Ms. Pace, and that he certainly was not in any way part of a conspiracy with Ms. 

Pace to cause problems with the law for the appellant over the Christmas season. 

{¶19} The trial court overruled the motion to suppress by Judgment Entry filed 

July 21, 2010. 

{¶20} On September 23, 2010 appellant entered pleas of no contest to an 

amended count of "reckless operation", an amended count of "no operator's license", 

and "resisting arrest." The State dismissed the remaining charges. 

{¶21} Appellant timely appealed raising the following Assignment of Error: 

{¶22} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S 

MOTION TO SUPPRESSED BASED ON NO LAWFUL CAUSE TO STOP, DETAIN 

AND ARREST THE APPELLANT WITHOUT A WARRANT, STATEMENTS OBTAINED 

IN VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF 
Guernsey County, Case No. 2010-CA-40 7 

INCRIMINATION, AND THE APPELLANT'S RIGHT TO COUNSEL AS THE TRIAL 

COURT'S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” 

I. 

{¶23} In his sole Assignment of Error, appellant cites as error the trial court's 

decision to overrule his motion to suppress the evidence. Specifically, he contends that 

the officer did not have a reasonable suspicion based upon articulable facts that he was 

speeding. Additionally, appellant further contends that he did not knowingly, intelligently 

and voluntarily waive his right to remain silent. We disagree. 

{¶24} In Whren v. United States (1996), 517 U.S. 806, the United States 

Supreme Court held: 

{¶25} “The temporary detention of a motorist upon probable cause to believe 

that he has violated the traffic laws does not violate the Fourth Amendment's prohibition 

against unreasonable seizures, even if a reasonable officer would not have stopped the 

motorist absent some additional law enforcement objective.” Whren at 1771. Less than 

one month later, the Ohio Supreme Court reached a similar decision in City of Dayton v. 

Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091. In Erickson, the Court stated: 

{¶26} “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 even if the officer had some 

ulterior motive for making the stop, such as a suspicion that the violator was engaging in 

more nefarious criminal activity.” Id. at syllabus. However, the Ohio Supreme Court has 

emphasized that probable cause is not required to make a traffic stop; rather the 
Guernsey County, Case No. 2010-CA-40 8 

standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 

894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 23. 

{¶27} Based on the above, neither the United States Supreme Court nor the 

Ohio Supreme Court considered the severity of the offense as a factor in determining 

whether the law enforcement official had a reasonable, articulable suspicion to stop a 

motorist. In fact, the Ohio Supreme Court stated that " * * * we conclude that where an 

officer has an articulable reasonable suspicion or probable cause to stop a motorist for 

any criminal violation, including a minor traffic violation, the stop is constitutionally valid 

regardless of the officer's underlying subjective intent or motivation for stopping the 

vehicle in question." (Emphasis added.) City of Dayton v. Erickson, supra at 11-12, 665 

N.E.2d 1091. See, also, State v. Rice, Fifth Dist. No. 2005CA00242, 2006-Ohio-3703 at 

¶33-34; State v. Rice (Dec. 23, 1999), 5th Dist. No. 99CA48. If an officer’s decision to 

stop a motorist for a criminal violation, including a traffic violation, is prompted by a 

reasonable and articulable suspicion considering all the circumstances, then the stop is 

constitutionally valid. State v. Mays, supra at ¶ 8. 

{¶28} In Mays, supra the defendant argued that his actions in the case – twice 

driving across the white edge line – were not enough to constitute a violation of the 

driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. The appellant further 

argued that the stop was unjustified because there was no reason to suspect that he 

had failed to first ascertain that leaving the lane could be done safely or that he had not 

stayed within his lane “as nearly as [was] practicable,” within the meaning of R.C. 

4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of 

whether appellant might have a possible defense to a charge of violating R.C. 4511.33 
Guernsey County, Case No. 2010-CA-40 9 

is irrelevant in our analysis of whether an officer has a reasonable and articulable 

suspicion to initiate a traffic stop. An officer is not required to determine whether 

someone who has been observed committing a crime might have a legal defense to the 

charge.” Id. at ¶ 17. 

{¶29} In the case at bar, Trooper Allar first made a visual estimate of the speed 

of appellant’s vehicle. He then substantiated that the vehicle was in fact traveling at a 

speed greater than the posted speed limit by use of the K-55 radar unit. 

{¶30} While appellant testified that he had not exceed the speed limit, the judge 

is in the best position to determine the credibility of witnesses, and his conclusion in this 

case is supported by competent facts. See State v. Burnside (2003), 100 Ohio St.3d 

152, 154-55, 797 N.E.2d 71, 74. The fundamental rule that weight of evidence and 

credibility of witnesses are primarily for the trier of fact applies to suppression hearings 

as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584. The 

Officer’s testimony represents competent, credible evidence that appellant was 

speeding. Therefore, the factual finding of the trial court that appellant was exceeding 

the speed limit is not clearly erroneous. 

{¶31} Reviewing courts should accord deference to the trial court’s decision 

concerning the credibility of the witnesses because the trial court has had the 

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that 

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St. 

3d 71. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 

1273, the Ohio Supreme Court explained: "[a] reviewing court should not reverse a 

decision simply because it holds a different opinion concerning the credibility of the 
Guernsey County, Case No. 2010-CA-40 10 

witnesses and evidence submitted before the trial court. A finding of an error in law is a 

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and 

evidence is not." See, also State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. 

{¶32} We accept the trial court's conclusion that appellant's violation of the traffic 

laws gave Trooper Allar reasonable suspicion to stop appellant's vehicle because the 

factual findings made by the trial court are supported by competent and credible 

evidence. Thus, the trial court did not err when it denied appellant's motion to suppress 

on the basis that the initial stop of her vehicle was valid. 

{¶33} In this case, appellant was arrested for OVI and resisting arresting arrest, 

but he was never prosecuted for the OVI offense. Thus, the question is not whether the 

evidence supported a finding beyond a reasonable doubt that appellant committed the 

OVI offense. The question is whether the officer had probable cause or a reasonable 

basis to believe that appellant had committed the offense of OVI. 

{¶34} In Ohio, it is well settled that, "[w]here a non-investigatory stop is initiated 

and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of 

intoxication, such as an admission of having consumed alcohol, reasonable suspicion 

exists." State v. Wells, Montgomery App. No. 20798, 2005-Ohio-5008; State v. Cooper,

Clark App. No.2001-CA-86, 2002-Ohio-2778; State v. Robinson, Greene App. No. 

2001-CA-118, 2002-Ohio-2933; State v. Mapes, Lake App. No. F-04-031, 2005-Ohio3359 (odor of alcohol, 'slurred speech' and glassy and bloodshot eyes); Village of 

Kirtland Hills v. Strogin, supra; State v. Beeley, Lucas App. No. L-05-1386, 2006-Ohio4799, paragraph 16, New London v. Gregg, Huron App. No. H-06-030, 2007-Ohio-4611. 
Guernsey County, Case No. 2010-CA-40 11 

{¶35} The phrase “under the influence of intoxicating liquor” has been defined as 

“[t]he condition in which a person finds himself after having consumed some intoxicating 

beverage in such quantity that its effect on him adversely affects his actions, reactions, 

conduct, movement or mental processes or impairs his reactions to an appreciable 

degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks

(1971), 25 Ohio App .2d 162, 166. See, also, State v. Steele (1952), 95 Ohio App. 107, 

111 (“[B]eing ‘under the influence of alcohol or intoxicating liquor’ means that the 

accused must have consumed some intoxicating beverage, whether mild or potent, and 

in such quantity, whether small or great, that the effect thereof on him was to adversely 

affect his actions, reactions, conduct, movements or mental processes, or to impair his 

reactions, under the circumstances then existing so as to deprive him of that clearness 

of the intellect and control of himself which he would otherwise possess”). See, State v. 

Henderson, 5th Dist. No.2004-CA-00215, 2005-Ohio-1644 at ¶ 32. [Citing State v. 

Barrett (Feb. 26, 2001), Licking App. No. 00CA 47]. 

{¶36} The evidence produced at the evidentiary hearing on appellant’s motion to 

suppress supports the inference that appellant's consumption of alcohol on the night in 

question adversely affected his actions, reactions, conduct, movement or mental 

processes or impaired his reactions to an appreciable degree, thereby lessening his 

ability to operate his car on the night in question. 

{¶37} Trooper Allar’s testimony represents competent, credible evidence that 

appellant was operating his vehicle while under the influence of alcohol. Therefore, the 

factual finding of the trial court that Trooper Allar had probable cause to arrest appellant 

for an OVI violation is not clearly erroneous. Thus, the trial court did not err when it 
Guernsey County, Case No. 2010-CA-40 12 

denied appellant's motion to suppress on the basis that Trooper Allar had probable 

cause to arrest appellant for resisting arrest and an OVI violation. 

{¶38} Appellant next contends that because he had been tasered before he was 

read his Miranda rights, it was incumbent upon the State to re-read those rights prior to 

obtaining his statement while in the hospital. 

{¶39} A suspect's decision to waive his Fifth Amendment privilege is made 

voluntarily absent evidence that his will was overborne and his capacity for selfdetermination was critically impaired because of coercive police conduct. Colorado v. 

Spring, supra, 479 U.S. at 574, 107 S.Ct. at 857. See, also, State v. Black (1976), 48 

Ohio St.2d 262, 2 O.O.3d 422, 358 N.E.2d 551, paragraph four of the syllabus, vacated 

in part (1978), 438 U.S. 910, 98 S.Ct. 3134, 57 L.Ed.2d 1154. Thus, coercive police 

activity is a necessary predicate to finding that a confession is not voluntary within the 

Fifth Amendment, on which Miranda was based. Colorado v. Connelly (1986), 479 U.S. 

157, 170, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473. 

{¶40} In Berghuis v. Thompkins ( 2010), ––– U.S. ––––, 130 S.Ct. 2250, 

176 L.Ed. 2d 1098, the U.S. Supreme Court found no Miranda violation where the 

suspect made a statement nearly three hours after receiving his Miranda warning: 

{¶41} “If Thompkins wanted to remain silent, he could have said nothing in 

response to Helgert's questions, or he could have unambiguously invoked his Miranda

rights and ended the interrogation. The fact that Thompkins made a statement about 

three hours after receiving a Miranda warning does not overcome the fact that he 

engaged in a course of conduct indicating waiver. Police are not required to re-warn 

suspects from time to time. Thompkins' answer to Helgert's question about praying to 
Guernsey County, Case No. 2010-CA-40 13 

God for forgiveness for shooting the victim was sufficient to show a course of conduct 

indicating waiver.” Id. at 2263. 

{¶42} In State v. Roberts (1987), 32 Ohio St.3d 225, 513 N.E.2d 720. the Ohio 

Supreme Court applied a totality of the circumstances test and found that the warnings 

given earlier had gone stale at the time the defendant made incriminating statements: 

{¶43} “The totality of the circumstances test is explained by the Supreme Court 

of North Carolina in State v. McZorn (1975), 288 N.C. 417, 219 S.E.2d 201. The 

following criteria are set forth: 

{¶44} “ * * * (1)[T]he length of time between the giving of the first warnings and 

subsequent interrogation, * * * (2) whether the warnings and the subsequent 

interrogation were given in the same or different places, * * * (3) whether the warnings 

were given and the subsequent interrogation conducted by the same or different 

officers, * * * (4) the extent to which the subsequent statement differed from any 

previous statements; * * * [and] (5) the apparent intellectual and emotional state of the 

suspect. * * *” (Citations omitted.) Id. at 434, 219 S.E.2d at 212. See, also, State v. 

Myers (Me.1975), 345 A.2d 500; State v. Artis (1981), 304 N.C. 378, 283 S.E.2d 522. 

{¶45} “Applying these standards to the case sub judice, we note that Roberts 

was given warnings at the time of arrest (approximately two hours prior to talking to 

Fuqua), and that the record does not establish whether those warnings were given in 

the context of interrogation. Second, the prior warnings were given at Roberts' 

girlfriend's home while the subsequent interrogation took place at the county jail. Third, 

the warnings were given by police officers, whereas the interrogation was conducted by 

a probation officer (having a prior relationship with the defendant Roberts). Thus, the 
Guernsey County, Case No. 2010-CA-40 14 

warnings given at the time of arrest fail on the criteria necessary to satisfy the totality-ofcircumstances test.” Id. at 232–233, 283 S.E.2d 522 

{¶46} In the case at bar, appellant concedes that he was read his Miranda rights 

at the time of his arrest. The record further shows that appellant that appellant explicitly 

stated that he understood his Miranda rights and proceeded to respond to Sergeant 

Gannon’s questions. (T. at 25). Appellant he did not ask the officers to cease 

questioning him, he did not ask for an attorney and he did not refuse to answer any of 

the questions put to him by the officers. Further, appellant’s statement at the hospital 

was obtained less than two (2) hours after Trooper Allar first noticed appellant’s vehicle. 

(T. at 12-14; 77). 

{¶47} The evidence supports the trial court's findings that appellant was properly 

advised of his Miranda rights and that he understood those rights. The trial court did not 

err in finding that under the totality of the circumstances; appellant's Miranda warnings 

had not gone stale. 

{¶48} For the foregoing reasons, appellant’s sole assignment of error is 

overruled. 
Guernsey County, Case No. 2010-CA-40 15 

{¶49} The judgment of the Cambridge Municipal Court, Guernsey County, Ohio 

is affirmed. 

By Gwin, P.J., 

Farmer, J., and 

Edwards, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS 

WSG:clw 0812 
[Cite as State v. Asp, 2011-Ohio-4567.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JAMES ASP : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2010-CA-40 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Cambridge Municipal Court, Guernsey County, Ohio is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS