[Cite as State v. Ebersole, 2012-Ohio-895.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCHATHAM EBERSOLE 

 Defendant-Appellant 

JUDGES: 

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

: Hon. William B. Hoffman, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2011-CA-00215 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Canton Municipal 

Court, Case No. 2011TRC4698 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: March 5, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BRANDEN PAXOS MICHAEL A. BOSKE 

Assistant Canton City Prosecutor 122 Central Plaza North 

218 Cleveland Avenue S.W., Ste. 700 Canton, OH 44702 

Canton, OH 44701-4218 
[Cite as State v. Ebersole, 2012-Ohio-895.]

Gwin, P.J. 

{¶ 1} Appellant, Chatham Ebersole, appeals a judgment of the Canton 

Municipal Court, Stark County, Ohio, overruling his motion to suppress. 

{¶ 2} On June 18, 2011, appellant was cited by Trooper Evans of the Ohio State 

Highway Patrol following a traffic stop. Appellant was charged with one count of 

Operating a Motor Vehicle While under the Influence of Alcohol, a first-degree 

misdemeanor, and one count of Failure to Drive in a Marked Lane a minor 

misdemeanor.1

{¶ 3} On June 29, 2011, counsel for appellant filed a Demand for Discovery. On 

July 8, 2011, appellee filed its response to appellant's discovery request. This response 

was later supplemented by appellee on August 9, 2011. 

{¶ 4} On July 26, 2011, appellant filed a Motion in Limine/Motion to Suppress. 

On July 27, 2011, the trial court issued a Judgment Entry overruling appellant's Motion 

in Limine/Motion to Suppress for failing to give sufficient notice of the specific legal and 

factual grounds for the motion. The trial court gave appellant fourteen days to 

supplement his motion. 

{¶ 5} On August 4, 2011, appellant filed a Supplemental Motion to Suppress. 

On August 17, 2011 without a hearing, the trial court overruled appellant’s supplemental 

motion. 

 1

 A Statement of the Facts underlying appellant’s original stop are unnecessary to our disposition 

of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be 

contained therein. 
Stark County, Case No. 2011-CA-00215 3 

{¶ 6} On September 14, 2011, the Appellant entered a plea of no contest and 

was sentenced to six (6) days in jail, twenty-five (25) hours community service and a six 

(6) month license suspension. 

{¶ 7} Appellant has timely appealed raising as his sole assignment of error, 

{¶ 8} “I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S 

MOTION TO SUPPRESS WITHOUT A HEARING.” 

I. 

{¶ 9} Appellate review of a motion to suppress presents a mixed question of law 

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of 

fact and is in the best position to resolve questions of fact and to evaluate witness 

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a 

reviewing court must defer to the trial court's factual findings if competent, credible 

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. 

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111 

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has 

accepted those facts as true, it must independently determine as a matter of law 

whether the trial court met the applicable legal standard. See Burnside, supra, citing 

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See, 

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); 

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That 

is, the application of the law to the trial court's findings of fact is subject to a de novo
Stark County, Case No. 2011-CA-00215 4 

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences 

drawn from those facts by resident judges and local law enforcement officers.” Ornelas, 

supra at 698, 116 S.Ct. at 1663. 

{¶ 10} In his sole assignment of error, appellant argues the trial court erred by 

overruling his Supplemental Motion to Suppress without a hearing on the basis that, on 

its face, the motion was insufficiently specific. We agree. 

{¶ 11} “The defendant must first challenge the validity of the alcohol test by way 

of a pretrial motion to suppress; failure to file such a motion ‘waives the requirement on 

the state to lay a foundation for the admissibility of the test results.’” Burnside at ¶ 24, 

quoting State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. The motion to 

suppress must notify the state and the trial court of the issues to be determined by 

setting forth with sufficient particularity both the legal and factual bases for 

inadmissibility. State v. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319(1994); see, also, 

State v. Price, 11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 22; State v. Nicholson,

12th Dist. No. CA2003-10-106, 2004-Ohio-6666, at ¶ 9. 

While courts vary in their determinations as to what 

constitutes ‘sufficient particularity,’ at a minimum, an accused is 

required to identify some section of the Ohio Administrative Code 

that is implicated and/or make some sort of assertion that the State 

failed to follow the proper standards in administering the breath 

test. See [State v. Shindler] (holding that a virtual copy of the 

sample motion to suppress contained in Ohio Driving Under the 

Influence Law (1990) 136–137, Section 11. 16, a legal handbook, 
Stark County, Case No. 2011-CA-00215 5 

that listed numerous allegations of violations of the OAC by the 

State and provided the cite to the implicated OAC section was 

stated with sufficient particularity); State v. Yeaples, 180 Ohio 

App.3d 720, 907 N.E.2d 333, 2009–Ohio–184, at ¶ 14 (holding that 

a motion originally containing twenty alleged violations of the OAC, 

narrowed into ten allegations at the suppression hearing, that 

included the specific OAC section and sub-section at issue was 

stated with sufficient particularity); Norwood v. Kahn, 1st Dist. Nos. 

C–060497, C–060498, and C–060499, 2007–Ohio–2799 (finding 

that a motion containing a general allegation of non-compliance by 

the State and a listing of applicable OAC sections alleged to have 

been violated was stated with sufficient particularity). 

State v. Minnick, 3rd Dist. No. 15-09-06, 2009-Ohio-5274, 2009 WL 3165581, ¶ 

12. 

{¶ 12} In the case sub judice, appellant’s supplemental motion specifically cites 

to the statute and regulations he contends were not followed. The supplemental motion 

further provided the following specific, factual allegations, 

The Defendant alleges that the State's procedures in this 

case were not in substantial compliance with the requirements set 

forth in O.A.C. 3701.53. Specifically the Defendant alleges that the 

urine sample in this case was not refrigerated while not in transit 

and that no documentation of the sample's chain of custody has 

been provided. The lab test was not performed until two weeks 
Stark County, Case No. 2011-CA-00215 6 

after the sample was taken. Furthermore, the Defendant alleges 

that the positive result in this case was not confirmed by one or 

more dissimilar analytical techniques or methods. 

{¶ 13} State v. Neuhoff, 119 Ohio App.3d 501, 695 N.E.2d 825(5th Dist. 1997) 

cited by the trial court is distinguishable. First, unlike the case at bar the trial court in 

Neuhoff did hold an evidentiary hearing on the defendant’s motion to suppress. 119 

Ohio App.3d at 509. Further, we have also noted, 

Once the state has produced enough evidence at the hearing on a 

motion to suppress to create a reasonable inference that the regulation at 

issue was properly followed, the accused must do more than merely 

assert that it is hypothetically possible some more specific aspect of the 

regulation was not followed. The accused must have a factual basis for 

the assertion. State v. Embry supra 2004-Ohio-2535 at ¶ 26. One way this 

factual basis can be obtained is during cross-examination at the hearing 

on the motion. [Id.]. A defendant who files a boilerplate motion with a bare 

minimum factual basis will need to engage in cross-examination if he 

wishes to require the state to respond more than generally to the issues 

raised in the motion. [Id. at ¶ 27]* * * 

State v. Raleigh, 5th Dist. No. 2007-CA-31, 2007-Ohio-5515, 2007 WL 2994237, 

¶74. 

{¶ 14} Accordingly, under the facts of this case we find appellant fully complied 

and did set forth some underlying facts in the memorandum and the supplemental 

memorandum in support of the motion to suppress. Appellant's motion and 
Stark County, Case No. 2011-CA-00215 7 

supplemental memorandum stated with particularity the statues and regulations he 

alleged were violated, set forth some underlying factual basis to warrant a hearing, and 

gave the prosecutor and court sufficient notice of the basis of his challenge. Shindler, 70 

Ohio St.3d at 70, 636 N.E.2d 319. 

{¶ 15} Appellant’s sole assignment of error is sustained. 

{¶ 16} The judgment of the Canton Municipal Court, Stark County, Ohio 

overruling appellant's motion to suppress is vacated. This cause is remanded to that 

court for further proceedings in accordance with our opinion and the law. 

By Gwin, P.J., 

Hoffman, J., and 

Edwards, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 

 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 

 

 _________________________________ 

 HON. JULIE A. EDWARDS 
[Cite as State v. Ebersole, 2012-Ohio-895.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

CHATHAM EBERSOLE : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2011-CA-00215 

For the reasons stated in our accompanying Memorandum-Opinion, The 

judgment of the Canton Municipal Court, Stark County, Ohio overruling appellant's 

motion to suppress is vacated. This cause is remanded to that court for further 

proceedings in accordance with our opinion and the law. Costs to appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. JULIE A. EDWARDS