[Cite as State v. Watson, 2011-Ohio-5213.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 24546
v. : T.C. NO. 10CRB1810
JOSEPH R. WATSON : (Criminal appeal from
Municipal Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 7th day of October , 2011.
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RAYMOND J. DUNDES, Atty. Reg. No. 0041515, Prosecuting Attorney, City of Riverside, 7 S.
Mechanic Street, Lebanon, Ohio 45036
Attorney for Plaintiff-Appellant
MICHAEL P. DAILEY, Atty. Reg. No. 0085986, Assistant Public Defender, 117 S. Main Street,
Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
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DONOVAN, J.
{¶ 1} On November 3, 2010, defendant-appellee Joseph Watson was indicted for one
count of possession of drug abuse instruments and two counts of possession of drug
paraphernalia, resulting from the search of a vehicle in which Watson was a passenger. Watson
2
filed a motion to suppress on November 16, 2010 and a supplemental motion to suppress on
December 6, 2010. The hearings for the motions were bifurcated and severed. Following a
hearing on December 14, 2010, the trial court overruled Watson’s first motion, holding that the
initial stop that lead to the search was lawful. The trial court then heard Watson’s supplemental
motion on January 25, 2010, and thereafter sustained the motion, holding that the time elapsed
during the vehicle stop to secure a drug dog was unreasonable. On March 17, 2011, the State
filed a Motion for Clarification and Reconsideration in the trial court. However, on March 22,
2011, after correcting a scrivener’s error, the court reaffirmed its holding in granting Watson’s
supplemental motion to suppress. The State then filed a timely notice of appeal to this Court on
March 23, 2011.
{¶ 2} The State asserts two assignments of error as follows:
{¶ 3} I. “THE TRIAL COURT ERRORED WHEN IT SUSTAINED
APPELLEE-DEFENDANT’S MOTION TO SUPPRESS IN THIS CASE IN THAT
APPELLEE-DEFENDANT DID NOT HAVE STANDING TO CHALLENGE THE FREE-AIR
SNIFF AND SEIZURE OF CONTRABAND IN THIS CASE.”
{¶ 4} II. “THE TRIAL COURT ERRORED WHEN IT SUSTAINED
APPELLEE-DEFENDANT’S MOTION TO SUPPRESS IN THAT THE TIME NEEDED FOR
OFFICER COLON TO WRITE A TRAFFIC TICKET AND HAVE A FREE-AIR SNIFF
CONDUCTED ON THE AUTOMOBILE WAS REASONABLE UNDER THE
CIRCUMSTANCES.”
{¶ 5} “Regarding a motion to suppress, ‘the trial court assumes the role of trier of facts
and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.’
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State v. Hopfer (1996), 112 Ohio App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham
(1994), 96 Ohio App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the trial
court's findings of fact if they are supported by competent, credible evidence in the record. State
v. Isaac, Montgomery App. No. 20662, 2005-Ohio-3733, 2005 WL 1707019, citing State v.
Retherford (1994), 93 Ohio App.3d 586, 639 N.E.2d 498. Accepting those facts as true, the
appellate court must then determine, as a matter of law and without deference to the trial court's
legal conclusion, whether the applicable legal standard is satisfied. Id.” State v. Demus, 192 Ohio
App. 3d 181, 186, 2011-Ohio-124, appeal not allowed, 128 Ohio St. 3d 1484, 2011-Ohio-2055.
Accordingly, in order to resolve the State’s assigned errors, we must examine the factual
findings of the trial court in sustaining Watson’s supplemental motion to suppress.
{¶ 6} In reviewing assigned error on appeal we are confined to the record that was
before the trial court as defined in App. R. 9(A). Craig v. Montgomery County Bd. of County
Commrs., Montgomery App. No. 21056, 2006-Ohio-1132, ¶ 12, citing App. R. 12(A)(1)(b).
App. R. 9(A) provides that the record on appeal consists of “[t]he original papers and exhibits
thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a
certified copy of the docket and journal entries prepared by the clerk of the trial court.” At the
time the record was filed in this case, App.R. 9(A) further provided that “[w]hen the transcript of
proceedings is in the videotape medium, counsel shall type or print those portions of such
transcript necessary for the court to determine the questions presented, certify their accuracy,
and append such copy of the portions of the transcripts to their briefs.” (Emphasis added).
{¶ 7} “In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, the Ohio
Supreme Court stated: ‘The duty to provide a transcript for appellate review falls upon the
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appellant. This is necessarily so because an appellant bears the burden of showing error by
reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d
1355. This principle is recognized in App.R. 9(B), which provides, in part, that “* * * the
appellant shall in writing order from the reporter a complete transcript or a transcript of such
parts of the proceedings not already on file as he deems necessary for inclusion in the record * *
*.” When portions of the transcript necessary for resolution of assigned errors are omitted from
the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the
court has no choice but to presume the validity of the lower court's proceedings, and affirm.’”
State v. Lipscomb, Montgomery App. 22519, 2008-Ohio-6235, ¶¶ 16-17; See also State v.
Matthews, Montgomery App. No. 22650, 2009-Ohio-1289, ¶¶ 5-6.
{¶ 8} The State has merely provided an electronic transcript of the suppression hearings
in videotape form. However, it has not provided the typed or printed portions of the transcript
necessary for us to resolve the State's specific arguments. Without a printed transcript, we must
presume the regularity of the trial court's proceedings on Watson’s motion to suppress, Lipscomb,
¶ 18, and the State's arguments necessarily fail. While it is in our discretion to review the
videotape before us, we have consistently held that “until the express requirements of App.R.
9(A) are changed, we decline to exercise our discretion to avoid the rule’s requirement in order to
cure [an] [a]ppellant’s failure to comply with the express requirements of the rule.”1 Matthews,
¶7; Credit Investments Inc. v. Kraus, Montgomery App. No. 18825, 2001-Ohio-7706.
{¶ 9} The State’s first and second assignments of error are overruled. The judgment of
1
We note that App.R. 9 was recently amended, effective July 1, 2011.
However, those changes do not apply to this case, nor would they change the
outcome herein.
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the trial court is affirmed.
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FAIN, J., concurs.
HALL, J., concurring:
{¶ 10} I concur in the judgment and reasoning of the majority. I write separately to
indicate that with respect to those cases in which the former version of App.R. 9 applies, when an
electronic transcript is filed without a printed version, it is within our discretion to choose to
review the electronic version, even though we may routinely not do so merely to cure appellant’s
non-compliance with App.R. 9. There may be circumstances when a party could justify its
specific request for us to review an electronic transcript. This could be of particular concern if an
audio or audio/video recording demonstrates something that would not appear in a printed
version.
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Copies mailed to:
Raymond J. Dundes
Michael P. Dailey
Hon. James D. Piergies