[Cite as State v. Won , 2021-Ohio-3869.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO Appellee

v. CHONG U. WON Appellant C.A. No. 20CA0076-M

APPEAL FROM JUDGMENT ENTERED IN THE WADSWORTH MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 20TRC01484
DECISION AND JOURNAL ENTRY Dated: November 1, 2021

CARR, Presiding Judge. {¶1} Defendant-Appellant Chong U. Won appeals the judgment of the Wa dsworth Municipal Court. This Court affirms.

I. {¶2} Following a July 19, 2020 traffic stop, a complaint was filed c harging Won with driving while under the influen ce of alcohol or drugs in violat ion of R.C. 4511.19(A)(1)(a) and a marked lanes violation under R.C. 4511.33. {¶3} Won filed a motion to suppress a sserting that the trooper lacke d the reasonable suspicion necessary to conduct field sobriety testing. Followi ng a hearing on the motion, the trial court issued an entry de nying the motion to suppress. Wo n then pleaded no contest and was sentenced accordingly. {¶4} Won has a raised a single assignm ent of error for our review.2

II. ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT FOUND TROOPER YUREK HAD REASONABLE, ARTICULABLE SUSPICION TO CONTINUE APPELLANT’S DETENTION BEYOND THE INITIAL REASON FOR THE STOP TO PERFORM FIELD SOBRIETY TESTS. {¶5} Won argues in his sole assignmen t of error that the trial court erred in denying his motion to suppress. Specifically, he maintains that some of th e trial court’s findings of fact are not supported by the record. {¶6} 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 considering a motion to suppress, the trial court assumes the role of trier of fact and is theref ore 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). Thus, a reviewing court “must accept th e trial court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the appellate court must then independently determine, wi thout deference to the conclusion of the trial court, whether the facts satisfy the applicable le gal standard.” Id ., citing State v.

McNamara , 124 Ohio App.3d 706 (4th Dist.1997). {¶7} “A police officer must simply have a reasonable suspicion of cr iminal activity in order to conduct field sobriety tests.” State v. Todd , 9th Dist. Wayne No. 19AP0012, 2020- Ohio-963, ¶ 8, citing State v. Simin , 9th Dist. Summit No. 26016, 2012-Ohio-4389, ¶ 12. “Reasonable suspicion requires th at an officer be able to point to specific and articulable facts which, taken together with rational inferences from those facts , reasonably warrant [the] intrusion.” Todd at ¶ 8, quoting State v. Davenport , 9th Dist. Lorain No. 11CA010136, 2012- Ohio-4427, ¶ 6. “The totality of the circumstances is consider ed when determining whether3 reasonable suspicion exists.” State v. Panero , 9th Dist. Medina No. 16CA0067-M, 2018-Ohio1005, ¶ 18. “[N]o single factor is dispositive of whether a la w enforcement officer is legally justified in conducting field sobr iety tests in any given case. ” (Internal quotations and citations omitted.) State v. Lee , 9th Dist. Summit No. 29597, 2020-Ohio-4970, ¶ 25. {¶8} On Sunday, July 19, 2020, Trooper Tara Yurek with the Ohio Stat e Highway Patrol was patrolling Interstate 71 in Guilford Township in Med ina County. Close to midnight, Trooper Yurek observed a gray pickup truck in the right lane tr aveling approximately 50 m.p.h. in a 70 m.p.h. zone. She began to follow the vehicle and witne ssed it make several marked lane violations. She also noted that the truck was weaving within i ts lane. Trooper Yurek then initiated a traffic stop. The veh icle pulled over, however, it was straddling the right lane and the berm. {¶9} Trooper Yurek approached the pa ssenger side for safety and moti oned the driver, Won, to roll down the front pa ssenger window. Won began to rol l down the right rear window instead. After the window was p artially down, Won realized his mistake and rolled down the front window. Won provided Troope r Yurek with the appropriate documents. {¶10} Trooper Yurek asked where Won was coming from and going to and Won indicated that he was coming fro m Cleveland and going home. Wh en she asked where Won was at in Cleveland he said he was with some friends. Trooper Yure k inquired if he was at a friend’s house, Won told her he was in Lakewood. {¶11} Trooper Yurek informed Won of the reason for the stop and asked him to pull the vehicle all the way onto the berm. Won moved the truck onto th e berm but was still very close to the marked white line.4
{¶12} Trooper Yurek then went to the driver’s side to ask Won to step out of the vehicle so that she could safely talk to him. Trooper Yurek testified that there had been a traffic stop in Ashland where the van did not move completely into the berm and a commercial truck hit the

van. {¶13} When Won stepped out of the vehicle, Trooper Yurek smelled the odor of an alcoholic beverage emanating from his person. She also asked h im if he had consumed any alcohol. Won said “maybe earlie r.” Trooper Yurek inquired whe ther Won had a beer or something like that and he nodded his head up and down and said yes. Based on the foregoing circumstances, Trooper Yurek t hen decided to conduct field sobr iety testing. {¶14} First, Won challenges the trial court’s finding that “[t]he tro oper testified that because she was so far away from the defendant she really could n’t see his eyes or get an indication of odor because this was a rather large pickup truck .” Won is correct that the size of the pickup is not discussed in the transcript. However, Troope r Yurek did agree that, while she was on the passenger side of the vehicle, she could not see if Won’s eyes were bloodshot or glassy. To the extent the finding is inaccurate, we fail to se e how it is anything other than harmless. See State v. Buck , 2d Dist. Montgomery No. 21297, 2006-Ohio-4394, ¶ 9; State v.
Brooks , 11th Dist. Lake No. 2005-L-200, 2007-Ohio-344, ¶ 27. The tri al court did not find that Won’s eyes were glassy and bloodshot and, thus, the appearance of his eyes did not contribute to the trial court’s conclusion that there was reasonable suspicio n to conduct field sobriety tests. The trial court’s entry correctly reflects that Trooper Yurek d id not notice an odor of alcohol coming from Won until after she asked him to step out of the ve hicle. {¶15} Won next challenges th e trial court’s finding that Trooper Yure k asked Won to step out of the vehicle for safety reasons. He maintains that, at the point Trooper Yurek asked5 him to step out of the vehicle, T rooper Yurek had already decid ed to conduct field sobriety tests, and thus, the additional findings noted by the trooper after Wo n stepped out of the truck should not be considered. Here, there was somewhat conflicting testim ony as to why the trooper had Won exit the vehicle. {¶16} On cross-examination, the f ollowing discussion occurred: [Won’s Counsel:] You decided that you’re going to get him out to do a field sobriety test at that point? [Trooper Yurek:] Right. To t alk to him and do field sobriety t ests, right. [Won’s Counsel:] Yeah. So at that point you decided you’re go ing to do a field sobriety test. Yes? [Trooper Yurek:] Yes. I get him out of the vehicle, yes. {¶17} While this testimony could support Won’s claim, there was also testimony that supports that Trooper Yurek remove d Won from the vehicle for sa fety reasons and only decided to perform field sobriety testi ng after Won was outside the veh icle. On direct examination, Trooper Yurek testified that she had Won get out of the vehicle for safety reasons. In so doing, she described a prior collision at a traffic stop that prompted her concern. She also detailed the safety precautions she undertook in approaching the driver’s si de of the vehicle to ask Won to step out. After she testified as to Won’s characterization of his alcohol consumption, Trooper Yurek stated that, based upon the totality of the circumstances , she decided to conduct field sobriety testing. On redirect, Trooper Yurek again confirmed t hat she removed Won from the vehicle for safety reasons. {¶18} Given the foregoing, we conclude t hat the trial court’s finding the Trooper Yurek removed Won from the vehicle fo r safety reasons is supported by competent, credible evidence.

See Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372 at ¶ 8. We are mindful th at the trial court, as the trier of fact, is in “the best position to resolve factual questions and evaluate the credibility of6

witnesses.” Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8, citing Mills , 62 Ohio St.3d at
366. {¶19} Won also argues that the trial court should have only found two out of eleven factors present from State v. Evans , 127 Ohio App.3d 56, 63 (11th Dist.1998), fn.2, namely: the time and day and erratic driving. Given only those two factors , he maintains that Trooper Yurek lacked reasonable suspicion to conduct field sobriety testing. The factors listed in Evans are as follows: (1) the time and day of the stop (Friday or Saturday night as o pposed to, e.g., Tuesday morning); (2) the location of the stop (whether near es tablishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speedi ng, weaving, unusual braking, etc .); (4) whether there is a cognizable report tha t the driver may be intoxicated ; (5) the condition of the suspect’s eyes (bloodshot, gl assy, glazed, etc.); (6) impai rments of the suspect’s ability to speak (slurred speech, overly deliberate s peech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more s ignificantly, on the suspect’s person or breath; (8) t he intensity of that odor, as described by the officer (“very strong,” “strong,” “ moderate,” “s light,” etc.); (9) the suspect’s demeanor (belligerent, uncoopera tive, etc.); (10) any actions b y the suspect after the stop that might indicate a la ck of coordination (dropping k eys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of dri nks had, and the amount of time i n which they were consumed, if given. Id. {¶20} The trial court found factors 1, 3, 7-8, 10, and 11 present. W on does not dispute that factors 1 and 3 would weigh in favor of reasonable suspici on. As to factors 7 and 8, Won argues that the information conc erning his alcohol consumption did not come to light until after Won exited the vehicle. This argument is premised on the notio n that Trooper Yurek decided to conduct field sobriety testing pr ior to having Won exit the veh icle; we addressed this issue previously and found it to be without merit. It is true that T rooper Yurek did not testify as to the intensity of the odor of alcohol; however, the trial court conc luded that factor 8 weighed in favor7 of reasonable suspicion because Trooper Yurek noticed the odor of alcohol coming from Won’s person immediately when he exited the vehicle. Even assuming, there is some error in the trial court’s application of this evid ence to factor 8, we conclude t hat, taken together, the evidence supports the trial court’s conclusion that Trooper Yurek posses sed reasonable suspicion. As to factor 10 (actions by the defenda nt after the stop that might i ndicate a lack of coordination), the trial court pointed to Won’s act of rolling down the incorrect window and failing to completely pull off the interstate during the initial stop. Won argues th at he could have accidentally rolled down the wrong window, and thus, it would not support impairmen t. However, merely because Won’s error in rolling down the wrong window could have been attributed to something other than impairment does not mean that it should not be considered as a possible indicator. See id. (“any actions by the suspect after the stop that might indicate a lack of coor dination”) (Emphasis added.). With respect to factor 11 (related to the admission o f alcohol consumption), Won again makes the argument that this in formation was not available to T rooper Yurek at the time she decided to conduct field sobriety testing. Yet, this argument is premised on the notion that Trooper Yurek decided to conduct fi eld sobriety testing prior t o removing Won from the vehicle, an argument we previousl y addressed and rejected. {¶21} Considering the totality of the circumstances, we cannot say th at Won has demonstrated that the trial cour t erred in denying his motion t o suppress. On a Sunday evening, close to midnight, Trooper Yurek noticed Won’s vehicle going ar ound 50 m.p.h. in a 70 m.p.h. zone and thereafter witnessed se veral traffic violations. Won did not pull his vehicle completely on to the berm when he stopped, which Trooper Yurek described a s uncommon. Then, when Won was asked to move the vehicle farther over, he parked very close to the white line. Won initially rolled down the wrong wi ndow when asked for his docum ents. When Won stepped out8

of the vehicle, an odor of alcohol emanated from his person and he admitted to prior alcohol consumption. Taken together, we conclude that the trial court did not err in finding that Trooper Yurek possessed reasonable sus picion authorizing her to conduct field sobriety testing. {¶22} Won’s assignment of error is overruled.

III. {¶23} Won’s assignment of error is overruled. The judgment of the Wa dsworth Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Wadsworth Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal en try shall constitu te the manda te, 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 stamped 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT9

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES: DAVID C. SHELDON, Attorne y at Law, for Appellant. THOMAS J. MORRIS, Director of Law, and BRADLEY J. PROUDFOOT, As sistant Director of Law, for Appellee.