[Cite as State v. Waters , 2022
- Ohio
- 2667.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, :

Plaintiff

- Appell ee , : No. 11 0821 v. : J AMES WATERS , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 4, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 20
- 652560

- A
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van , Assi stant Prosecuting Attorney, for a

ppellee

. Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender , for appellant

.
KATHLEEN ANN KEOUGH, J. :

Defendant

- appellant, James Waters, appeals the trial court’s decision denying his motion to suppress and the court’s imposition of a sentence pursuant to the Reagan Tokes Law. For the reasons that follow, we affirm

.I. Procedural History and Background
In Au gust 2020, Waters was named in a four

- count indictment charging him with one count of aggravated vehicular homicide , a first

- degree felony violation of R.C. 2903.06(A)(1)(a) (Count 1); aggravated vehicular homicide, a second

- degree felony violation of R.C. 2903.06(A)(2)(a) (Count 2); driving while under the influence of alcohol, a first

- degree misdemeanor violation of R.C. 4511.19(A)(1)(a) (Count 3); an d driving while under the influence of alcohol, a first

degree misdemeanor violation of R.C. 4511.19(A)(1) (d) (Count 4). Counts 1 and 2 contained furthermore specifications that at the time of the offense, he did not have a valid driver’s license.

The charges stemmed from a motor vehicle accident where Waters was alleged to have sped through a red light at the intersection of West 130th Street and Lorain Avenue. A truck turning left onto Lorain Avenue struck the backside of Waters’s vehicle causing it to spin out of control and collide with a pole on the side of the road. Waters’s aunt, Carmen Stewart, was seated in the backseat of his vehicle, sustained life

- threatening injuries , and died as a result of the accident

. Following field sobriety tests, Waters was arrested for driv ing under the influence of alcohol. It was later discovered that Waters did not have a valid driver’s license , and

a subsequent breath test yielded a blood alcohol content (“BAC”) of .172.

Waters filed a motion to suppress, contending that (1) there was n o reasonable suspicion or probable cause to stop and detain him; (2) the officer administered the field sobriety tests in an inappropriate manner and location ; (3)the police obtained statements from him in violation of Miranda ; and (4) the

procedures used by police in collecting and testing his breath sample did not conform to the Ohio Administrative Code.
II. Suppression Hearing

Cleveland Patrol Officer Arthur Fessler testified that he responded to

an accident at W est 130th Street and Lorain Avenue. His in teractions with Waters and witnesses were captured on his body cam era , and portions of those interactions were played for the court

.

Officer Fessler identified Waters in the video as the man who was on the ground screaming. His body

- cam video showed Waters then pounding on the ambulance door and attempt ing to open it

. Officer Fessler can be seen trying to calm Waters down, but Waters cursed at him and pulled away . The body

- cam vi deo also showed Waters get ting into an altercation with one of the eyewitnesses , accusing the
witness of causing the accident. Waters can be heard stating that as he drove through the yellow light , his vehicle was struck, causing it to spin and crash into a pole. Officer Fessler testified that he decided to place Waters into the back seat of the police vehicle because of the altercation with the witness . He stated that he also held Waters because after Waters admitted that he was the driver of the

v ehicle, the strong odor of alcohol coming from him indicated that Waters may have been driving while under the influence

. Officer Fessler testified that he did notMirandize Waters, but did not ask him any additional questions . According to

Officer Fessle r, Waters started yelling statements from the police vehicle.

As part of his on

- site investigation, Officer F essler obtained statements from both independent eyewitnesses , who stated that the ir vehicle was stopped behind the pickup truck at a red light o n Lorain Avenue. They stated that when the light turned green, the truck in front of them started turning left on to West
13 0th Street , and that a silver Toyota Camry “came out of nowhere” speeding through the light . According to the witnesses, the driver of the truck applied the brake , but struck the back end of the Toyota, causing it to spin out of control and crash into a pole. The female witness testified that she performed CPR on a female
passenger of the Toyo ta. Video of the accident captured from a nearby surveillance camera was played for the court corroborating the statements

.

Detective Charles Moten of the Cleveland Police Department Accident Investigation Unit (“AIU”) testified tha t A IU covers all majo r crashes and occasionally conducts field sobriety tests. He state d that he is a 21

- year veteran of the police department, and worked in AIU for the past 12 years. He stated that he holds two certifications to conduct field sobriety test s and is an instr uctor on standardized field sobriety tests. According to Detective Moten , the National Highway of Traffic Safety Administration (“NHTSA”) manual is 648 pages long and only substantial compliance with those guidelines was necessary

.

Detective Moten stated that he ha s conducted hundreds of field sobriety tests and made arrests in investigations involving vehicular accidents. Heprovided a thorough explanation regarding the tests he conducts , including

Horizontal Gaze Nystagmus (“HGN”) , walk and turn, and single leg stand. Detective Moten explained that if there are clues of impairment the person is arrested , Mirandized , and then taken to the county jail where a breathalyzer test may be conducted

. Detective Moten testified about his encounter with Waters, which was captured and recorded by his body camera. He stated Waters was seated in the back of the police cruiser , and a s he was opening the cruiser door, he asked Waters about the accident and whether he had been drinking. Waters responded that someone hit him and that he had four beers about “two hours ago

. ” Detective Moten testified that he could smell alcohol from Waters ’s person . He stated that he asked Waters to perform the HGN, walk and turn, and one leg stand tests.

Regarding the HGN test, Detective Moten explained that he observed that Waters exhibited five out of the six indicators of impairment during the HGN

— a lack of smooth pursuit in the left and right eyes; distinct and sustained nystagmu s at maximum deviation in the left and right eyes; and the onset of nystagmus prior to 45 degrees in the right eye. Regarding the walk and turn test, Detective Moten testified that during the instruction phase of the test, Waters failed to maintain his st anding position and attempted to start the test before being instructed to start. Additionally, Detective Moten stated that he observed Waters failing to touch heel to toe , and making an improper turn for a total of four clues of impairment during this te st. Detective Moten testified that during the one

- leg standtest, he observed that Waters exhibited one clue of impairment by putting his foot

down before being instructed. Detective Moten testified that based on his training and experience with alcohol

- impaired drivers, he believed Waters operated his vehicle while under the influence of an alcoholic beverage due to his observations and Waters’s performance of the standardized field sobriety tests. Accordingly, he placed Waters under arrest.

On cross - examination, defense counsel questioned Detective Moten about how flashing or strobing lights may affect the eyes or results of the HGN test.
He testified that in order for flashing lights to affect the eyes for purposes of the test, the lights have to be in close proximity and come straight into the eyes . Detective Moten testified, and the video showed, that the flashing lights from the zone cars were coming from behind Waters. Accordingly, he opined that the lights would not have a ffected Waters’s test.

Defense counsel also questioned Detective Moten on the comprehensive nature of his field report, specifically whether his report contained
any information about the pretests he conducted prior to administering the HGN
test. Detectiv e Moten stated that he conducted pretests, including a medical impairment examination and whether he checked for contact lenses , but did not include this information in his report. He further admitted that he did not ask Waters about his eye health or gen eral health conditions prior to administering the
HGN , which is a requirement under the NHTSA guidelines.Officer Thomas Smith testified that he administered Waters’s

breathalyzer test . His interactions with other officers and Waters were captured on hi s body camera , and the video was played for the court. 1 Officer Smith stated that he is certified to use both the Data Master and Intoxilyzer 8000. He testified that he noticed an odor of alcohol coming from Waters . Officer Smith stated that he and his partner transported Waters to the county jail where the breath test was performed using the Intoxilyzer 8000 . The test yielded a BAC level of .172. Officer Smith testified that d uring the testing process , Waters told him that he had two 24
- ounce cans of beer earlier that evening

. The body

- cam video corroborated this testimony. The trial court admitted the following exhibits into evidence : body

cam video from Fessler, Moten, Smith , and Smith’s partner ; surveillance video of the accident; a copy of Officer Smith’s Intoxilyzer 8000 certification card; the printed copy of Waters’s BAC results; Moten’s field report; and a copy of Session 8, Concepts and Principles of the Standardized Field Sobriety Tests published by the
NHTSA , revised Octobe r 2015.

On May 10, 2021, the trial court announced its decision in open court , denying the motion to suppress . The court focused its decision on Waters’s argument that the HGN results were affected by the zone car s’ flashing and strobing lights

. The tr ial court explained:

1 Video from Officer Smith’s partner’s body camera was also played during Officer Smith’s testimony.[T] he Court did have the opportunity to review the evidence, and one

of the things in particular that it looked at was Defense Exhibit B, the Section 8, [we are] talking about the optokinetic nystagmus issues. The Court, having read this and looked at all the evidence, is going to find as follows: That the defense suppression motion is not well

- taken and it will be denied. We will proceed to trial. The issue of the optokinetics, if administered properly, which basically mandates th e driver to look at the object, basically to the exclusion of everything else, will not be affected by, the way I read it, by flashing lights. So it appears that nystagmus can be induced through strobe lights, but only when [they are] being observed directly; not when the attention and the focus is on the point of fixation that is being used in this case. So with that having been said, the Court is going to deny the motion

. (Tr. 136

- 137.)
I n July 2021, Waters pleaded no contest to the indictmen t. Following a sentencing hearing, t he trial court ordered Waters to serve an aggregate minimum prison term of six years; but up to the maximum term under the Reagan Tokes Law of nine years. Waters now appeals, raising four assignments of error. The first two assignments of error relate to the Reagan Tokes Law; and assignments of error three and four pertain to Waters’s motion to suppress. This court will address these assignments of error out of order and together where appropriate

. III. Motion t o Suppress

In his third assignment of error, Waters contends that the trial court erred in denying his motion to suppress. He contends in his fourth assignment of error that his trial counsel rendered ineffective assistance of counsel by failing to
reques t the trial court to issue findings of fact and conclusions of law.“ 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. With regard to factual d eterminations, “ [a]n appellate court must accept the trial court ’ s findings of fact if they are supported by competent, credible evidence. ” State v. Hawkins , 158 Ohio St.3d 94, 2019

- Ohio

- 4210, 140 N.E.3d 577, ¶ 16, citing State v. Fanning , 1 Ohio St.3d 19 , 20, 437 N.E.2d 583 (1982). “ But the appellate court must decide the legal questions independently, without deference to the trial

court ’ s decision. ” Id ., citing Burnside at id

.

Waters moved to suppress all evidence against him, contending that (1) the arresting officer did not have reasonable susp icion to believe that he was driving under the influence; (2) the field sobriety tests were not conducted in substantial compliance with the NHTSA standards; (3) his Miranda rights were violated; and (4) the test results from the Intoxlyzer 8000 were unreliable. 2
A. Reasonable Suspicion In his suppression motion, Waters generally asserted that officers lacked reasonable articulable suspicion to b elieve that he was driving under the influence. On appeal, he s pecifically contends that the mere odor of an alcoholic beverage was an insufficient reaso n to detain him to perform field sobriety tests because his “trauma

- driven behaviors” should be take n out of consideration.

2 Although Waters raised four arguments in his motion to suppress, he has not raised any argument on appeal regarding the procedures used by police in collecting and testing his breath sample. Accordingly, we will not address that issue on appeal.Reasonable suspicion requires that the officer “point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 186 8, 20 L.Ed.2d 889 (1968). An officer may not request a motorist to perform field sobriety

tests unless the request is separately justified by a reasonable suspicion based upon articulable facts that the motorist is intoxicated. Cleveland v. Kalish , 8th Dist. Cuyahoga No. 105557, 2018

- Ohio

- 682, ¶ 19, citing Parma Hts. v. Dedejczyk , 8th Dist. Cuyahog a No. 97664, 2012

- Ohio

- 3458, ¶ 29, citing State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist. 1998). “‘ A court analyzes the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold. ’” Id ., quoting Dedejczyk at id. , citing State v. Dye , 11th Dist. Geauga No. 2001

- P

- 0140, 2002
- Ohio

- 7158

.

A court may consider various factors when determining whether an officer had reasonable suspicion to administer field sobriety tests: (1) the time of day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of er ratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect ’ s eyes (bloodshot, glassy, glaz ed, etc.); (6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect ’ s person or breath; (8) the intensity of that odor, as described by the officer ( “ very strong, [” ] “ strong, ” “ moderate, ” “ slight, ” etc.); (9) the suspect ’ s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack ofcoordin ation (dropping keys, falling over, fumbling for a wallet, etc.);

and (11) the suspect ’ s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. All of these factors, together with the offi cer ’ s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. Dedejczyk at ¶ 30 , quoting Evans at 63, fn. 2.

This court has explained that t he se factors are merely assistive guides in the determination of reasonable suspicion because no one factor is dispositive and the list does not represent an exhaustive account of factors that can or should be considered. Dedejczyk at ¶ 31, citing State v. Bo czar , 11th Dist. Ashtabula No.
2004
- A

- 0063, 2005

- Ohio

- 6910, ¶ 14

. Generally, courts approve a request to submit to field sobriety testing only where the officer based his or her decision on a number of these factors. Evans at 63.

In this case, Officer Fessler testified that when he arrived on the scene of a fatal accident that occurred during the early morning hours, he witnessed
Waters yelling and screaming, while trying to open the ambulance door where his aunt was being treated. He stated that during this interaction, he observed that Waters’s eyes were bloodshot , he could smell a strong odor of alcohol coming from Waters, and when officers attempted to guide him away from the ambulance, Waters cursed at them and shrugged them a way. Officer Fessler stated that during his investigation, he learned from the eyewitnesses , who assisted the occupants of Waters’s vehicle, that Waters smelled of alcohol.Additionally , Officer Fessler testified about Waters confront ing and

threatening one of the eyewitnesses claiming that the witness caused the accident. During this altercation, Waters admitted to operating the vehicle

— a fact that was unknown to Officer Fessler at the time

— while speeding through a yellow light. According to Offic er Fessler, Waters was slurring his words , pacing, acting belligerently, and threatening the eyewitness. Based on his observations and belief that Waters could be intoxicated, and for the safety of all persons, Officer Fessler decided to detain Waters in the back of his zone car for further investigation. He then contacted Detective Moten to in itiate field sobriety tests.

Detective Moten testified that when he arrived on scene, he conferred with Officer Fessler about his investigation and impressions. He stated that he then approached the zone car where Waters was seated and opened the door . According
to Detective Moten , he could smell an odor of alcohol comin g from Waters . He stated that Waters admitted to consuming four beers around midnight , and agreed to perform the field sobriety tests.

Based on the foregoing, we conclude that Officer Fessler and
Detective Moten’s request to perform field sobriety tests was reasonable based on the totality of the circumstances.
B. Field Sobriety Tests Waters contends that the trial court should have suppressed the results of the field sobriety tests because Detective Moten did not substantially comply with NHTSA standards and guidelines. Although Waters generally raised inthe trial court that Detective Moten did not substantially comply with the guidelines

in his administration of all the field sobriety tests, h e focuses his appeal on Detective Moten’s testimony that he d id not include in his report that he conducted any medical impairment examination or pretests

. Ac cordingly, Waters contends that
Detective Moten did not substantially comply with the NHTSA standards and guidelines. In order for the results of field sobr iety tests to be admissible, the state must demonstrate that the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b); State v. Clark , 12th Dist. No. CA2009

- 10
- 039, 2010
- Ohio

4567, ¶ 11. “A determination of whether the facts satisfy the substantial compliance standard is made on a case

- by

- case basis.” State v. Fink , 12th Dist. Warren Nos.
CA2008

- 10
- 118 and CA2008

- 10
- 119, 2009
- Ohio

- 3538, ¶ 26. The state may demonstrate what t he NHTSA standards are through competent testimony and/or by introducing the applicable portions of the NHTSA manual. Boczar , 113 Ohio St.3d 148, 2007

- Ohio

- 1251, 863 N.E.2d 155, at ¶ 28. E ven if a court finds that the officer did not substantially comply with the NHTSA standards (which would require the results of the tests to be excluded), the officer ’ s testimony regarding the defendant ’ s performance on nonscientific field sobriety tests is admissible under Evid.R. 701. Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012

- Ohio

- 3458 , at 43, citing State v. Schmitt , 101 Ohio St.3d 79, 2004

- Ohio

- 37, 801 N.E.2d 446, ¶ 14
- 15.

In this case, Detective Moten testified as to his qualifications as a police officer and to his training in conducting field sobriety testing

. He furthertestified about how he conducted each test and Water’s performance on each test.

Additionally, the state introduced the relevant portion of the NHTSA manual during
Detective Moten’s testimony.

Specific to the argument raised on appeal, Detective Moten testified that he checked for medical impairments prior to administering the tests, but admitted that he did not include this information in his field report. Additionally, he admitted that he did not ask Waters about his eye health or gen eral health conditions , which he agreed is contrary to th e NHTSA manual’s guidelines when conducting the HGN test

.

At the suppression hearing, the state played Detective Moten’s body

cam video taken during the field sobriety tests. As the video played, he testified how he conducted each test and how Water’s performed on each test. Additionally, the evidence showed that Detective Moten conferred with other officers prior to administering the tests, knew that Waters was involved in a traffic accident, and observed Waters exiting the zone car and walking to the testing location. T he minor deviations or deficiencies of not asking Waters about his general health condition and failing to include in the report his assessment and impressions from the medical

- im pairment examination or pretests do not warrant suppression of the evidence obtained from the field sobriety tests

. Accordingly, after reviewing the entirety of Detective Moten’s testimony, body

- cam video, and field report, we find that the state demonstr ated that Detective Moten substantially complied with the NHTSA standards when conducting the field sobriety tests.Even if the court suppressed the results of the HGN test because

Detective Moten did not ask Waters about his eye health or general health , probable

cause remained to arrest Waters for OVI. According to Detective Moten’s report and testimony, he observed four clues of impairment during the walk and turn test, and one clue of impairme nt during the one

- leg stand test. Waters has not challenged

t hese results on appeal. Accordingly, even excluding the HGN test results, sufficient evidence existed to establish probable cause to arrest Waters for OVI.
C. Miranda Violation Waters contends t hat he was subjected to a custodial interrogation requiring Miranda warnings when he was seated in the police cruiser for 30
- 40 minutes and not free to leave . Accordingly, he maintains that the court should have suppressed his responses to Detective Moten ’s question s about the accident and whether he had been drinking

.

In Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that custodial interrogations have the potential to undermine the Fifth Amendm ent privilege against self

- incrimination by possibly exposing a suspect to physical or psychological coercion. Id . at 436. To guard against such coercion, the court established a prophylactic procedural mechanism that requires that a suspect receive a wa rning before custodial interrogation commences. Id . at 444. Individuals in custody must be warned, among other things, that they have a right to remain silent and that their statements may be used against them at trial.The Supreme Court has defined the term “ custody ” as the deprivation

of “ freedom of action in any significant way. ” Id

. A person is in custody if, under the totality of the circumstances, a reasonable person would not feel free to end the encounter and leave. Yarborough v. Alvarado , 541 U.S. 652, 663

- 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); State v. Martinez , 8th Dist. Cuyahog a Nos. 103572 and 103575, 2016

- Ohio

- 5515, ¶ 20. “ The ‘ ultimate inquiry when determining whether an individual is in ‘ custody ’ for Miranda purposes is ‘ whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. ’” Id . at ¶ 24, citing State v. Duhamel , 8th Dist. Cuyahoga No. 102346,
2015
- Ohio

- 3145, ¶ 22, quoting California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

In this case, officers placed Waters into the back of the police cruiser after he became combative with an eyewitness after accusing the witness of causing accident and then threatening the witness

. Additionally, officers detained him for further investigation because they believed Waters was intoxicated du e to the strong odor of alcohol emanating from him

. Officer Fessler testified, however, that Waters was not free to leave once placed in the cruiser.

E ven if the statements Waters made to Detective Moten should have been suppressed, probable cause exist ed to justify arresting Waters . Based on Officer Fessler ’s and Detective Moten’s observations and detection of an odor of alcohol emanating from Waters, they had reasonable suspicion to conduct field sobriety tests , which yielded clues that Waters was impaired . Accordingly, evenwithout Waters’s statements that he drank four beers earlier that evening , there was

probable cause to arrest Waters for operating a vehicle while intoxicated

. D. Conclusion Based on the for egoing , the trial court did not err in denying Waters’s
motion to suppress. H aving found no error, Waters was therefore not deprived of effective assistance of counsel when counsel did not request the trial court to issue separate findings of fact and con clusions of law.

Waters’s third and fourth assignments of error are overruled.
IV. Reagan Tokes Law

In his first and second assignments of error, Waters contends that he received ineffective assistance of counsel when counsel failed to object to the trial court imposing a sentence under the Reagan Tokes Law because the law is unconstitutional. He assert s the Reagan Tokes Law is unconstitutional because it violates the separation

- of

- powers doctrine, and his right s to a trial by jury and due
process. Based on the authority established by this district’s en banc holding
in State v. Delvallie , 

### 2022
- Ohio

- 470, 185 N.E.3d 536 (8th Dist.) , the challenges
Waters advances against the constitutional validity of the Reagan Tokes Act have been overruled. Id . at ¶ 17

- 54. Therefore, even if counsel objected or challenged the constitutional validity of th e Reagan Tokes Law, Waters’s sentence pursuant to the Reagan Tokes Law is not a violation of his constitutional rights , and thus, Watershas failed to demonstrate any prejudice to warrant a finding that his counsel was

ineffective

. Accordingly, his first and second assignments of error are overruled.

Judgment affirmed

. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mand ate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this en try shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE ANITA LASTER MAYS, P.J., and CORNELIUS J. O’SULLIVAN, JR., J ., CONCUR



### N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis, see State v. Delvallie , 2022
- Ohio

- 470, 185 N.E.3d 536 (8th Dist.). (Laster Mays, J., concurring in part and dissenting in part).