[Cite as State v. Elam, 2014-Ohio-1666.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

SHAUN ELAM : Case No. 13-CA-89 

 : 

 Defendant-Appellant : O P I N I O N

 NUNC PRO TUNC 

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, 

Case No. 13TRC05498 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: April 17, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

J. MICHAEL KING BRYAN BOWEN 

40 West Main Street 338 South High Street 

4th Floor Columbus, OH 43215 

Newark, OH 43055 

Farmer, J. 
Lickking County, Case No. 13-CA-89 2 

{¶1} On June 8, 2013, Ohio State Highway Patrol Trooper Daniel Moran, Jr., 

stopped appellant, Shaun Elam, for speeding. Upon investigation, Trooper Moran 

asked appellant to perform field sobriety tests. Appellant was subsequently charged 

with speeding in violation of R.C. 4511.21 and driving under the influence in violation of 

R.C. 4511.19. 

{¶2} On July 8, 2013, appellant filed a motion to suppress, claiming Trooper 

Moran did not have probable cause to arrest him. A hearing was held on August 21, 

2013. By judgment entry filed August 23, 2013, the trial court denied the motion. 

{¶3} On August 29, 2013, appellant pled no contest to the charges. By 

judgment entry filed same date, the trial court found appellant guilty, and sentenced him 

to thirty days in jail, twenty-seven days suspended. 

{¶4} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignment of error is as follows: 

I 

{¶5} "THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S 

MOTION TO SUPPRESS EVIDENCE." 

I 

{¶6} Appellant claims the trial court erred in denying his motion to suppress, as 

Trooper Moran lacked sufficient probable cause to arrest him. We disagree. 

{¶7} There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's findings of fact. 

In reviewing a challenge of this nature, an appellate court must determine whether said 

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 
Lickking County, Case No. 13-CA-89 3 

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. 

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the 

trial court failed to apply the appropriate test or correct law to the findings of fact. In that 

case, an appellate court can reverse the trial court for committing an error of law. State 

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's 

findings of fact are not against the manifest weight of the evidence and it has properly 

identified the law to be applied, an appellant may argue the trial court has incorrectly 

decided the ultimate or final issue raised in the motion to suppress. When reviewing 

this type of claim, an appellate court must independently determine, without deference 

to the trial court's conclusion, whether the facts meet the appropriate legal standard in 

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held 

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "...as a general matter 

determinations of reasonable suspicion and probable cause should be reviewed de 

novo on appeal." 

{¶8} Probable cause to arrest exists when a reasonable prudent person would 

believe that the person arrested had committed a crime. State v. Timson, 38 Ohio St.2d 

122 (1974). A determination of probable cause is made from the totality of the 

circumstances. Factors to be considered include an officer's observation of some 

criminal behavior by the defendant, furtive or suspicious behavior, flight, events 

escalating reasonable suspicion into probable cause, association with criminals, and 

location. Katz, Ohio Arrest, Search and Seizure, Sections 2:13-2:19, at 59-64 (2009 

Ed.). As the United States Supreme Court stated when speaking of probable cause "we 
Lickking County, Case No. 13-CA-89 4 

deal with probabilities. These are not technical; they are the factual and practical 

considerations of everyday life in which reasonable and prudent men, not legal 

technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (1949). 

{¶9} "The standard for determining whether the police have probable cause to 

arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient 

information, derived from a reasonable trustworthy source of facts and circumstances to 

cause a prudent person to believe that the suspect was driving under the influence." 

State v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶ 22. 

{¶10} The issue is whether appellant's actions and Trooper Moran's 

observations lead to probable cause to arrest. We note each case is determined 

individually from the facts and observations presented. 

{¶11} In its August 23, 2013 judgment entry denying the motion to suppress, the 

trial court included a detailed discussion of the facts leading to Trooper Moran's decision 

to arrest appellant, and concluded the following: 

Although the Court believes the facts and circumstances in this 

case provide the thinnest of margins to establish probable cause to arrest 

the defendant for OVI, the holding in Lominack, combined with the factors 

enumerated in Evans and adopted in Shullo by the Fifth District Court of 

Appeals, requires that there can be no conclusion but that Trooper Moran 

had probable cause to arrest the defendant and request that he submit to 

a breath alcohol test. 
Lickking County, Case No. 13-CA-89 5 

{¶12} Appellant was first observed traveling on U.S. Route 40 over the speed 

limit, 67 m.p.h. in a 55 m.p.h. zone. T. at 6. When asked where he was coming from, 

appellant had to correct himself from "Wal-Mart Road" to "Wal-Mart." T. at 7. Trooper 

Moran observed that appellant had red glassy eyes and his cheeks were red, and 

detected an odor of alcohol coming from his person. T. at 7-8. Although appellant 

originally denied drinking, he changed his story and admitted he had consumed two 

beers and was coming from Easton. T. at 8. Trooper Moran had appellant perform 

three field sobriety tests. Appellant was administered the horizontal gaze nystagmus 

test and six clues were observed, indicating impairment. T. at 15-16. Appellant also 

performed the one-leg stand test which he performed satisfactorily indicating only one 

clue out of four, and the walk and turn test indicating only one clue out of eight. T. at 

17-18. Appellant passed two of the three tests. Appellant also successfully recited the 

"alphabet test" twice. T. at 19. 

{¶13} Trooper Moran testified to the following: 

Based on everything that I saw from the uh... His speed was a 

primary reason why I was stopping him, from his answers that he gave 

me, the way he smelled, the way he looked, his eyes, his cheeks, just his 

mannerisms. Uh based on the field testing, the Horizontal Gaze 

Nystagmus, which is an involuntary motion and the other tests. I felt that 

he was over the legal limit. 
Lickking County, Case No. 13-CA-89 6 

{¶14} Upon review, we find from the facts observed by Trooper Moran, coupled 

with appellant's own actions, the trial court did not err in denying the motion to suppress. 

{¶15} The sole assignment of error is denied. 

{¶16} The judgment of the Municipal Court of Licking County, Ohio is hereby 

affirmed. 

By Farmer, J. 

Hoffman, P.J. and 

Baldwin, J. concur. 

 

 

 

 

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