[Cite as State v. Henderson, 2019-Ohio-4041.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, : JUDGES: 

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

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

JOSEPH HENDERSON, : Case No. 2019CA00026 

 : 

 Defendant - Appellant : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal 

Court, Case No. 2018 TRC 09407 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: September 30, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KRISTEN BATES-AYLWARD STEPHEN J. KANDEL 

Canton Law Director 700 Courtyard Center 

 116 Cleveland Avenue, NW 

JASON P. REESE Canton, Ohio 44702 

Canton City Prosecutor 

By: KRISTINA M. LOCKWOOD 

Assistant City Prosecutor 

218 Cleveland Ave. SW 

Canton, Ohio 44702 
Stark County, Case No. 2019CA00026 2 

Baldwin, J.

{¶1} Joseph Henderson appeals the decision of the Canton Municipal Court 

denying his motion to suppress evidence gathered by the Louisville Police Department 

as well as his conviction for driving while under the influence of alcohol, in violation of 

R.C. 4511.19(D)(2), a first degree misdemeanor. 

{¶2} Appellee is the State of Ohio. 

STATEMENT OF FACTS AND THE CASE 

{¶3} Appellant contends that the Louisville Police Department did not have 

reasonable, articulable suspicion to stop him based upon the report of an employee at 

the local McDonald's restaurant. He refers this court to a "Cruiser Video" at several 

significant points in his description of the facts, but that video is not part of the record and 

neither the transcript of the suppression hearing nor the balance of the record contain 

evidence that support the facts allegedly revealed by the video. The record presented to 

us reflects only a consensual encounter with the police and not a traffic stop as alleged 

by Appellant. For that reason, we find that Appellant’s argument is not supported by the 

facts and the assignment of error must be denied. 

{¶4} Appellant visited the Louisville McDonald's restaurant on November 23, 

2018, just before midnight. As he went through the drive-through he was told the ice 

cream machine was not working. The McDonald's employee reported to the Louisville 

Police Department that Appellant became very upset, was causing a disturbance and 

smelled of alcohol. The McDonald's employee directed Appellant to pull forward and wait 

for his food, and, while he was waiting, the restaurant manager called the police and 

reported Appellant’s behavior. Louisville Police Officers were dispatched to the scene 
Stark County, Case No. 2019CA00026 3 

with a description of the Appellant's vehicle, a partial license plate number and the 

location of the vehicle as well as a description of the employee’s encounter with Appellant. 

{¶5} The Louisville police officers arrived at the scene and found a vehicle 

matching the description provided by the dispatch in the location described by the 

McDonald's employee. Officer Jordan was first on the scene and asked if Appellant had 

been drinking. After Appellant denied drinking, Lieutenant Steed assumed responsibility 

for the case. Lt. Steed noticed Appellant had bloodshot, watery eyes, a strong odor of 

alcohol and "uncooperative behavior, borderline of being somewhat disorderly, being 

evasive toward questioning." (Transcript, p. 9, lines 3-5). Lt. Steed concluded that 

Appellant might be under the influence of alcohol and asked him to step out of the car. 

The Officer noted that the odor of alcohol did not dissipate when Appellant stepped out 

of the car. 

{¶6} Lt. Steed administered field sobriety tests and Appellant performed poorly. 

Appellant's blood alcohol content was measured that evening at .136 grams by weight of 

alcohol per two hundred ten liters of the Appellant breath. Appellant was arrested and 

charged with driving under the influence, a violation of R. C. 4511.19(A)(1)(a) and (d). 

{¶7} Appellant filed a Motion to Suppress/Dismiss contending there was no 

reasonable suspicion for the stop and lack of probable cause for the arrest. At the hearing 

on the motion, Appellant withdrew the second prong of the motion and argued that 

because neither the McDonald's employees nor the police officers witnessed Appellant 

driving erratically or committing any traffic violations, there was no support for a traffic 

stop. Appellee offered the testimony of Lt. Steed, but no video was played or referenced. 

Appellant did not testify and did not offer any exhibits. In closing Appellant argued that 
Stark County, Case No. 2019CA00026 4 

because there was no bad driving, the traffic stop was unwarranted. The trial court 

overruled the motion, but focused upon the justification for conducting the field sobriety 

tests. The Court found that the Appellant’s behaviors, his appearance and the proximity 

of places selling alcohol nearby supported the police officer’s administration of the tests. 

Appellant entered a no contest plea and was convicted of a violation of R. C. 

4511.19(A)(1)(d). 

{¶8} Appellant filed a timely appeal and submitted one assignment of error: 

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

TO SUPPRESS.” 

STANDARD OF REVIEW 

Appellate review of a motion to suppress presents a mixed question of law 

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 

N.E.2d 71, ¶ 8. In ruling on 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.” Id., citing State v. Mills, 

62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we “must 

accept the trial court's findings of fact if they are supported by competent, 

credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 

N.E.2d 583 (1982). Accepting those facts as true, we must then 

“independently determine as a matter of law, without deference to the 

conclusion of the trial court, whether the facts satisfy the applicable legal 

standard. Id.

State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12 
Stark County, Case No. 2019CA00026 5 

{¶10} “...[A]s a general matter determinations of reasonable suspicion and 

probable cause should be reviewed de novo on appeal.” Ornelas v. U.S., 517 U.S. 690, 

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996). 

ANALYSIS 

{¶11} The trial court focused upon the detention of Appellant for the administration 

of field sobriety tests, but Appellant's appeal instead contends that the Louisville Police 

Department did not have reasonable suspicion to conduct a traffic stop, referring to the 

initial encounter between Appellant and the officers. He opens his argument by stating 

"The Officer's act of pulling behind the Appellant's vehicle and activating his overhead 

lights was a seizure implicating the Fourth Amendment" and he contends the officer 

"initiated a traffic stop without having witnessed any violations." (Appellant's Brief, p. 3). 

He notes the call from the McDonald's employee was not reliable and that neither that 

caller nor the arresting officer witnessed any criminal activity or traffic violation. Appellant 

does not argue that the administration of field sobriety tests was unwarranted or violative 

of any right, so our review is limited to an examination of the alleged traffic stop. 

{¶12} The Appellant argues that the Louisville Police lacked reasonable, 

articulable suspicion to support a traffic stop, but he has failed to provide any evidence 

that the officers conducted any type of stop that would implicate the Fourth Amendment. 

Appellant relies upon a "Cruiser Video" to support his argument, but no video is contained 

within the record. No video was mentioned at the hearing on the motion to suppress and 

the transcript expressly states "NO EXHIBITS OFFERED." (Transcript, p. 27). As a 

practical matter we cannot consider the video because it was not included in the case file 

and as a legal matter we cannot consider the content of any video because: 
Stark County, Case No. 2019CA00026 6 

*** a bedrock principle of appellate practice in Ohio is that an appeals court 

is limited to the record of the proceedings at trial. In State v. Ishmail (1978), 

54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, we reversed the 

judgment of a court of appeals that had considered, in an appeal from a 

postconviction proceeding, a transcript that was not before the trial court in 

the proceeding that was appealed. In Ishmail, we declared: “A reviewing 

court cannot add matter to the record before it, which was not a part of the 

trial court's proceedings, and then decide the appeal on the basis of the new 

matter.” Id. at paragraph one of the syllabus. We have consistently enforced 

this holding. 

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13 (2004). 

{¶13} Our review is limited to the record, primarily the transcript of the hearing on 

the motion to suppress. The transcript shows that Appellant was parked at McDonald's 

and was approached by the officers who began speaking with him about his drinking that 

evening. The record does not show that Lt. Steed "by either physical force or show of 

authority restrained the [appellant's] liberty so that a reasonable person would not feel 

free to decline the officer's requests or otherwise terminate the encounter.” State v. 

Taylor, 106 Ohio App.3d 741, 747-748, 667 N.E.2d 60 (1995). Based upon the record 

before us, we are constrained to conclude that this was a consensual encounter where 

the officers approached appellant "in a public place, engaged him in conversation, 

requested information, and he was free not to answer and walk away. Taylor at 747, 667 

N.E.2d 60, citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 

497 (1980). Without evidence that the officers conducted a traffic stop, we conclude the 
Stark County, Case No. 2019CA00026 7 

record reflects no more than consensual encounter which does not trigger Fourth 

Amendment guarantees. Taylor, supra at 747-748, 667 N.E.2d 60. 

{¶14} Appellant's assignment of error is overruled. 

{¶15} The decision of the Canton Municipal Court is affirmed. 

By: Baldwin, J. 

Hoffman, P.J. and 

Wise, John, J. concur.