[Cite as State v. Hardison , 2021-Ohio-1028.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsRAYSHAWN HARDISON Defendant-Appellant JUDGES: Hon. Craig R. Baldwin, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. Case No. 2020 CA 0046

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 19 CR 869

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 29, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant WILLIAM C. HAYES WILLIAM T. CRAMER PROSECUTING ATTORNEY 470 Olde Worthington Road PAULA M. SAWYERS Suite 200 ASSISTANT PROSECUTOR Westerville, Ohio 43082 20 South Second Street, Fourth Floor Newark, Ohio 43055Licking County, Case No. 2020 CA 0046 2
Wise, John, J. {¶1} Defendant-Appellant Rayshawn Hardison appeals the May 1, 2020, judgment entry of the Court of Common Pleas of Licking County, Ohio, denying his motion to suppress. Plaintiff-Appellee is the State of Ohio. The relev ant facts leading to this appeal are as follows. STATEMENT OF THE FACTS AND CASE {¶2} On October, 27, 2019, Appellant was arrested for Driving While Under the Influence of Alcohol or Drugs (OVI) in violation of R.C. 4511.1 9, a felony in the thirddegree due to a prior OVI conviction. In addition, Appellant wa s charged with driving under an OVI suspension in violation of R.C. 4510.14(A), a first-degr ee misdemeanor. {¶3} On January 14, 2020, Appellant filed a Motion to Suppress all e vidence in this matter. {¶4} On January 30, 2020, a hearing on the Motion to Suppress was he ld. {¶5} At the hearing, Officer Harris of the Newark Police Department testified that she was dispatched to the exit ramp to Country Club and Church Street off of Route 16 westbound for a report of an unresponsive male behind the wheel

. {¶6} Upon arriving on scene, she noted a female standing on the side of the road pointing to a black Honda Civic with taillights illuminated and left hand turn signal activated. It was stopped in the left-hand turn lane off of the exit ramp. As Harris approached the vehicle she noted Appellant was unresponsive in the driver’s seat, either unconscious or asleep, and that the vehicle was running and in drive. The window to the vehicle was partially open, and she detected a faint odor of al cohol coming from inside the vehicle.Licking County, Case No. 2020 CA 0046 3 {¶7} Harris then attempted to reach into the car to unlock the door in order to place the car in park. At this point Appellant awoke and took h is foot off of the brake, and the vehicle began rolling down t he exit ramp. Harris then instr ucted Appellant to stop the vehicle and place the vehicle in park. Appellant was unable to do this until his vehicle struck a parked ambulance and came to a stop. Harris then had A ppellant exit the vehicle to conduct a pat down for officer safety. {¶8} When Appellant exi ted the car, Harris sme lled a stronger odor o f alcohol coming from Appellant’s breath and on his person. Harris inquir ed if Appellant had been drinking. Appellant responded that he had the night before and the last beverage he remembered was around 2 a.m. Harris then asked how he came to b e at the exit ramp. Appellant indicated the night before he had been at the Lucky B amboo and then remembered nothing until he awoke on the exit ramp. {¶9} Harris then detained Appellant, as he was under suspicion of OV I. Harris observed that Appellant was wearing an ankle monitor. He confir med he was wearing the monitor because he was on probation for a previous OVI charge. Office Harris ran Appellant’s information and determined Appellant was driving un der a suspended license due to his previous OVI. {¶10} Appellee then showed a video of the interaction beginning with Officer Harris attempting to unlock Appellant’s car. The video then sho ws the car rolling into the ambulance. {¶11} Harris further testified she asked Appellant to perform standar dized field sobriety tests, but Appellant refused to participate. Officer H arris then placed Appellant under arrest.Licking County, Case No. 2020 CA 0046 4 {¶12} Appellant then testified he was not offered field sobriety test s, but admitted he was not handcuffed when questioned about his ankle monitor. {¶13} In its judgment entry date May 1, 2020, the trial court denied Appellant’s Motion to Suppress. The trial court found that Officer Harris r esponded to a call and observed the car stopped at the traffic light with its left tur n signal activated. Harris found Appellant unconscious or asleep behind the wheel of a running c ar. There was an odor of alcohol coming from the vehicle. In order to safely put the vehicle in park, Harris had to open the door, at which point Appellant awoke and rolled his car into an ambulance. Appellant did not put his foot on the brake when ordered to do so. {¶14} The trial court further found Officer Harris could smell alcoho l on Appellant’s breath, and that he was unsteady on his feet. Appellant had bee n drinking at Lucky Bamboo until two in the morning and could not recall anything a fter the Lucky Bamboo. Harris determined Appellant was under a driving suspension for a previous OVI, and Appellant refused field sobriety tests. Based on all of these f indings, the trial court found Appellee had probable cause to arrest Appellant for OVI and for operating a vehicle with a suspended license. {¶15} On July 14, 2020, Appellant entered a plea of no contest to bot h charges. The trial court sentenced Appellant to two years in prison, the mandatory minimum fine of $1,350, and a five-year driver license suspension for the dr iving under an OVI suspension charge. ASSIGNMENT OF ERROR {¶16} On July, 2020, Appellant filed a notice of appeal and herein ra ises the following sole Assignment of Error:Licking County, Case No. 2020 CA 0046 5 {¶17} “I. APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED BY AN ARREST FOR AN OVI THAT IS NOT SUPPORTED BY PROBABLE CAUSE.” I. {¶18} In Appellant’s sole Assignment of Error, Appellant argues the t rial court erred in denying his motion to suppress. We disagree. {¶19} Appellate review of a trial court’s decision to deny a motion t o suppress involves a mixed question of law and fact. State v. Long , 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4 th Dist.1998). During a suppression hearing, the trial court assu mes the role of trier of fact and, as such, is in the best position to resol ve questions of fact and to evaluate witness credibility. State v. Brooks , 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661 N.E.2d 1030. A reviewing court is bound to accept the trial cou rt’s findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4 th Dist. 1996). Accepting these facts as true, the appellate cour t must independently determine as a matter of law, without defere nce to the trial court’s conclusion, whether the trial court’s decision meets the applic able legal standard. State v. Williams , 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4 th Dist.1993), overruled on other grounds, State v. Gunther , 4 th Dist. Pickaway No. 04CA25, 2005-Ohio-3492, ¶16. {¶20} Three methods exist to challenge a trial court’s ruling on a mo tion to suppress. First, appellant may challenge the trial court’s find ings of facts. State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Second, appellant may argue the trial court failed to apply the appropriate test or correct law of the findings of fact. In that case, the appellate court can reverse the trial court for commi tting an error of law. WilliamsLicking County, Case No. 2020 CA 0046 6
at 41. Third, appellant may argue the trial court incorrectly d ecided the ultimate issue raised in the motion to suppress. When addressing the third typ e of challenge, an appellate court must independently determine, without deference to the trial court’s conclusion, whether the facts meet the appropriate legal standa rd in the given case (Citation omitted.) State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8 th Dist.1994). {¶21} In the case sub judice , Appellant argues Officer Harris had no probable cause to arrest Appellant for an OVI. We disagree. A police off icer has probable cause for an arrest if the facts and circumstances within his knowled ge are sufficient to cause a reasonably prudent person to believe that the defendant has com mitted the offense. State v. Cummings , 5 th Dist. Stark No. 2005-CA-00295, 2006-Ohio-2431, ¶15, citing State v. Heston , 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). In making this dete rmination, the trial court must examine the totality of facts and circumstances surr ounding the arrest. See State v. Miller , 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11 th Dist.1997); State v. Brandenburg , 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2 nd Dist.1987). When evaluating probable cause to arrest for OVI, the totality of the circumsta nces can support a finding of probable cause to arrest even where no field sobriety tests are administered. See State v. Homan , 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000). {¶22} In the case at bar, Officer Harris testified Appellant was asle ep behind the wheel of a running vehicle which was in drive at 8 a.m. Appella nt told Harris he was drinking until 2 a.m. at a bar and had no memory from 2 a.m. un til he awoke behind the wheel at 8 a.m. Upon waking up, Appellant rolled his car into a parked ambulance. Appellant did not respond to Officer Harris telling him to stop the vehicle and put it in park. Upon Appellant leaving the vehicle, Officer Harris smelled the odor of alcohol coming fromLicking County, Case No. 2020 CA 0046 7
Appellant’s breath. Officer Harris also discovered Appellant wa s driving on suspension for a previous OVI. {¶23} Appellant points to Cincinnati v. Bryant , where the First District Court of Appeals held a minor traffic violation in connection with arres ting officer’s perception of an odor of alcohol does not rise to the level of probable cause

. Cincinnati v. Bryant , 1 st Dist. Hamilton No. C-090546, 2010-Ohio-4474, ¶25, citing State v. Taylor , 3 Ohio App.3d 197, 198, 444 N.E.2d 481 (1 st Dist.1981). However, in the case at bar, Officer Harris had more indicia than the odor of alcohol and a minor traffic viola tion. Appellant admitted to Officer Harris that Appellant drank alcohol the night before, t o having a six hour gap in memory, and to being on suspension for a previous OVI. {¶24} Based on Officer Harris’s testimony we find that the totality o f facts and circumstances supported a finding of probable cause to arrest A ppellant for driving under the influence of alcohol in violation of R.C. 4511.19. {¶25} Appellant’s sole Assignment of Error is overruled. {¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is hereby affirmed. By: Wise, John, J. Baldwin, P. J., and Wise, Earle, J., concur.

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