[Cite as State v. Johnson , 2020-Ohio-3097.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellant

v. BRIONNA D. JOHNSON Appellee C.A. Nos. 29470 29504

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE Nos. 2019CRB03051 2019CRB05668

DECISION AND JOURNAL ENTRY Dated: May 27, 2020

SCHAFER, Judge. {¶1} Plaintiff-Appellant, the State of Ohio, appeals the decision gr anting DefendantAppellee, Brionna D. Johnson’s , motion to suppress evidence in the Akron Municipal Court. For the reasons that follow, this C ourt reverses and remands the ma tter for further proceedings.

I. {¶2} On the evening of April 4, 2019, Tr ooper Jason Fowler of the Oh io State Highway Patrol was on patrol with his se rgeant in the city of Akron. T hey observed a vehicle on Arlington Road traveling with its high-beam head lights on and noticed th at the operator failed to dim the vehicle’s lights as it passed th eir patrol car. The officers i nitiated a traffic stop of the vehicle. Ms.

Johnson was identified as the dri ver of the vehicle, and was tr avelling with a friend in the passenger

seat and a child in the back seat.2

{¶3} Upon approaching the vehicle, the officers detected odors of al cohol and burnt marijuana. The officers remove d Ms. Johnson from the vehicle a nd obtained her information. Trooper Fowler asked Ms. Johnson how much alcohol she had to dr ink and how much marijuana she had smoked; she denied drinking or smoking. Trooper Fowler then had Ms. Johnson perform field sobriety tests to determin e whether she was impaired. Ba sed on his observations, Trooper Fowler deemed Ms. Johnson imp aired and arrested her. {¶4} Trooper Fowler charged Ms. Johnson with child endangerment in v iolation of R.C. 2919.22, operating a motor vehicle wh ile impaired (“OVI”) in vi olation of R.C. 4511.19(A)(1)(a),

failure to dim in violation of R.C. 4513.15, driving under susp ension in violation of R.C. 4510.16,

and failure to wear a seat belt in violation of R.C. 4513.263(B )(1). Ms. Johnson entered a plea of not guilty to all charges. Thereafter, Ms. Johnson filed a mot ion to suppress evidence on multiple grounds. The trial court held a hearing on the motion and took the matter under advisement. The trial court issued a decision granting Ms. Johnson’s motion upo n finding the trooper lacked probable cause to arrest her and suppressing all evidence incid ent to her arrest. In its decision, the trial court summarily stated “[a ]ll other motions are denied[,] ” but did not reach the merits of Ms. Johnson’s alternative arguments presented in her brief in suppo rt of her motion to suppress. {¶5} The State timely appealed the trial court’s decision and presen ted one assignment

of error for our review.

II. Assignment of Error The trial court erred when it gr anted [Ms. Johnson]’s motion to suppress.3

{¶6} In its sole assignment of error, the State argues that the tria l court erred when it determined Trooper Fowler lacked probable cause to arrest Ms. J ohnson for operating a vehicle under the influence and gran ted her motion to suppress. {¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When the trial cour t considers a motion to suppress, it assumes the role o f trier of fact and, therefore, it is 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 (1992). Accordingly, a reviewing court “must accept t he trial court’s findings of fact if they are supported by competen t, credible evidence.” Id. Accepting such facts as true, this Court must “then independently determine, without deference to the co nclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id. This Court must, therefore, grant deference to the trial court’s findings of f act while conducting a de novo r eview to determine whether the trial court applied the appropriate l egal standard to those facts. State v. Booth , 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th Dist.). {¶8} “The legal standard for probable cause to arrest for OVI is whe ther ‘at the moment of the arrest, the police had sufficient information, derived f rom a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent perso n to believe that the suspect was driving under the influence.’” State v. Krzemieniewski , 9th Dist. Medina No. 15CA0015-M, 2016- Ohio-4991, ¶ 11, quoting State v. Homan , 89 Ohio St.3d 421, 427 (2000), superseded by statute on other grounds . “[T]he totality of the facts and circumstances can support p robable cause for an

arrest even in the absence of the administration of field sobri ety tests.” State v. Russo , 9th Dist. Medina No. 09CA0009–M, 2009–Ohio–6914, ¶ 10. Further, even if the field sobriety tests did4

not establish a driver’s impairmen t, “that does not negate the other indicia of impairment observed by [an officer].” Krzemieniewski , at ¶ 17. {¶9} The State first argues in its merit brief that the trial court’ s findings are not supported by the record. The Sta te also argues that the trial court’s findings of fact are incomplete. Further, the State contends that the facts, when viewed in the totality of the circumstances, show that Trooper Fowler had probable cause to arrest Ms. Johnson. {¶10} As indicated above, a probable cau se determination is a fact-in tensive inquiry that “‘requires consideration of the t otality of the circumstances k nown to the officer at the time of the

arrest.’” State v. Spees , 9th Dist. Medina No. 17CA0061-M, 2018-Ohio-2568, ¶ 30, quotin g State v. Rogers , 9th Dist. Wayne No. 16AP0014, 2017-Ohio-357, ¶ 9. Consequent ly, “a trial court’s findings of fact are deemed incomplete when they fail to includ e pertinent facts that were presented during the hearing and which are necessary to conduct the legal analysis.” State v. Soto , 9th Dist. Lorain No. 16CA011024, 2017-Ohio-4348, ¶ 10, citing State v. Trivett , 9th Dist. Medina No. 15CA0041-M, 2016-Ohio-8204, ¶ 7-8. {¶11} Our review of the record confirms that the trial court did not specifically make findings of fact in its decision granting the motion to suppres s. However, the trial court’s order

does include a discussion of certa in facts considered in its an alysis. When discussing the field sobriety tests Trooper Fowle r administered to Ms. Johnson, the trial court state d the following: Trooper Fowler performed the walk and turn, the HGN[,] and the one-leg stand. Trooper Fowler has been trained to perform these NHTSA approved tests. Trooper Fowler found clues on all three te sts; however, he did not conc lude that [Ms. Johnson] was an impaired driver based on these t ests alone. Trooper Fowler administered two additional tests to [Ms. Johnso n], which included the Romberg’s test and an alphabet test. These tests are not N HTSA approved, but they are used to detect impai rment from marijuana use.5

[Ms. Johnson] passed the Romberg’ s test. Trooper Fowler testif ied that [Ms. Johnson] did not perform well on the alphabet test, but could n ot articulate what she did wrong. Furthermore, after a review of the dashboard ca mera video, the [trial c]ourt cannot determine that [Ms. Johnson] performed poo rly on this test. Trooper Fowler did not testify to any other observation that sh owed [Ms. Johnson] to be impaired.

The trial court determined tha t Trooper Fowler “did not have su fficient indication of impairment based on the trooper’s testimony and [Ms. Johnson]’s performanc e on the tests administered and, based on the totality of the c ircumstances, did not have probab le cause to arrest [Ms. Johnson].” {¶12} Our review of the record reveals that the trial court’s factual analysis is flawed in several respects. First, the tr ial court’s description of the sequence of events is misleading insofar as it implies Trooper Fowler admin istered the three tests appro ved by the National Highway Traffic Safety Administration (“NHTSA”) to detect impairment fr om alcohol, observed clues but did not determine impairment, and then administered two additio nal tests to detect impairment from marijuana. Per Trooper Fowler’s testimony at the hearing, he had Ms. Johnson perform the NHTSA-approved horizontal gaze nystagmus (“HGN”) test first and observed four out of six possible clues for impairment. Next, Trooper Fowler administer ed a lack of convergence test and observed signs of impairment fro m marijuana. Third, Trooper Fo wler administered the Modified Romberg test and observed that Ms. Johnson was within the margi n of error for that test. Fourth, Trooper Fowler had Ms. Johnson pe rform the NHTSA-approved walk- and-turn test and testified that he observed four out of eight clues for impairment. The f ifth test Trooper Fowler administered to Ms. Johnson was the NHTSA-approved one-leg stand, and he tes tified that he observed three out of four clues for impairment on that test. Finally, Troope r Fowler asked Ms. Johnson to recite the alphabet from letters “C” through “X”. Thus, the trial cou rt’s rendition of the field sobriety tests is not supported by compet ent credible evidence.6

{¶13} Second, the trial court’s findi ng that Trooper Fowler found clu es on all three NHTSA-approved tests, but that he did not conclude Ms. Johnson was an impaired driver based on these tests alone, is not supported by the record. Trooper Fowler testified that, “at the beginning, [he] did detect the alcohol, so she did have some al cohol into her system, but more or less she’s probably more impaired off the marijuana than alcoho l, because I got four of six clues.” Trooper Fowler agreed that it was his belief that Ms. Johnson h ad “some impairment from alcohol, but also impairment from marijuana[.]” Thus, while Trooper Fowl er believed that Ms. Johnson was primarily impaired by marijuana, there is no evidence in th e record to support the trial court’s finding that Trooper Fowler had not determined Ms. Johnson was impaired based solely on the HGN, walk-and-turn, and one-leg stand tests. {¶14} Third, the trial court inaccurate ly described the “two addition al tests” as “the Romberg’s test and an alphabet test[,]” and then indicated that the additional tests did not show impairment. The record reflects that, in addition to the NHTSA -approved tests, Trooper Fowler administered the “Modified Romberg” and the “lack of convergenc e” tests. As stated above, the

trial court noted tha t Trooper Fowler observed Ms. Johnson perf orm the Modified Romberg test within the correct time frame. Significantly, however, the tri al court omitted from its analysis any mention of the lack of converg ence test and Ms. Johnson’s perfo rmance on that test. As to the lack of convergence test, Trooper Fowler testified that “when s omeone is not impaired on marijuana, their eyes should cross automatically. With [Ms. Jo hnson’s eyes] they both didn’t cross and she said (inaudible), which is a sign of impairment of mari juana.” Describing Ms. Johnson’s performance, Trooper Fowler stated “[b]oth eyes had converged o n two separate occasions” and “[h]er eyes shot out * * * [t]hey went across and then stayed i nward.” Trooper Fowler testified that, in addition to the two aforementioned tests, he also gave Ms. Johnson the alphabet test.7

Although he did testify that Ms. Johnson “didn’t do it correctl y[,]” Trooper Fowler also stated that he did not rely on the alphabet te st because he “already made [ his] decision before that.” {¶15} Additionally, the trial court’s finding that Trooper Fowler did not testify to any

other observations that showed Ms. Johnson to be impaired disre gards evidence in the record. Trooper Fowler testified that, in addition to detecting the odo r of alcohol, he also detected the smell of burnt marijuana. Troope r Fowler testified that he obs erved a greenish tint and raised taste buds on Ms. Johnson’s tongue, which is a sign of impairment fro m marijuana. This Court is unable to determine whether the trial court inadvertently omitted any mention of Trooper Fowler’s observations as to impairment, or if the trial court discounted his testimony and failed to mention that in its analysis. {¶16} In light of the trial court’s omission of facts relevant to its analysis, in addition to the trial court’s factual findings that are contradicted by the record, this Court cannot conclude that the trial court’s findings of f act are supported by competent, credible evidence. See Soto , 2017- Ohio-4348 at ¶ 10. Consequently, we must conclude that the tri al court erred by granting the motion to suppress upon the analysis set forth in its decision. Furthermore, “[b]ecause the trial court has failed to adequately set forth its findings of fact, this Court cannot properly apply the

law.” Id . at ¶ 17. Accordingly, this Court remands the matter to the t rial court to adequately state its findings and to resolve any discrepancies in its assessment of the evidence. In doing so, the trial court shall include any relevant omitted facts and ensure that its findings conform to the competent credible evidence of record. {¶17} Therefore, the State’s assig nment of error is sustained.8

III. {¶18} The State’s assignment of error is sustained. The judgment of the Akron Municipal Court is reversed, and this matte r is remanded for further proc eedings consistent with this decision. Judgment reversed, Cause remanded.

There were reasonable grounds for this appeal. We order that a special manda te issue out of this Court, direc ting the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

JULIE A. SCHAFER FOR THE COURT

CALLAHAN, P. J. CARR, J. CONCUR.9

APPEARANCES: EVE V. BELFANCE, Director of Law , and BRIAN D. BREMER, Assistan t Director of Law, for Appellant. ANGELA M. KILLE, Attorney at Law, for Appellee.