State v. Gordon

[Cite as State v. Gordon, 2011-Ohio-3938.]

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

STATE OF OHIO C.A. No. 25531

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
GREGORY WILLIAM GORDON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 03 0580

DECISION AND JOURNAL ENTRY

Dated: August 10, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Christopher Phillips saw Gregory Gordon buy beer at a gas station, even though

Mr. Gordon appeared to already be intoxicated. When Mr. Gordon got into the driver’s seat of a

car, Mr. Phillips called the sheriff’s office. He followed Mr. Gordon to his house and waited

until deputies arrived. The Grand Jury indicted Mr. Gordon for driving under a specified

lifetime suspension, driving under suspension, and operating a vehicle while under the influence

of alcohol. A jury found him guilty of each count, and the trial court sentenced him to five years

in prison. Mr. Gordon has appealed, arguing that the trial court incorrectly denied his motion to

suppress, that his convictions are not supported by sufficient evidence and are against the

manifest weight of the evidence, and that the court improperly sentenced him. We affirm

because the trial court did not deny Mr. Gordon’s right to a fair trial by allowing Mr. Phillips to
 2

identify him, his convictions are supported by sufficient evidence and are not against the

manifest weight of the evidence, and the court properly sentenced him.

FACTS

{¶2} Mr. Phillips testified that he was at a gas station buying milk on December 13,

2009, when he noticed a man who smelled like he had had a lot of alcohol buying a six-pack of

beer. After the man left, Mr. Phillips asked the cashier if the man had driven to the gas station,

but she did not answer. When he finished his purchase, Mr. Phillips walked outside and saw the

man getting into the driver’s seat of a car. Mr. Phillips got into his truck, moved it so that it was

blocking the other man’s car, and called the sheriff’s office. The other man got out of his car and

yelled at Mr. Phillips, then got back in his car and started backing out. Because he did not want

to get hit, Mr. Phillips moved his truck, but decided to follow the other man’s car. The man

noticed Mr. Phillips following him, and stopped a couple of times to yell at him. Undeterred,

Mr. Phillips continued following the car to a house. According to him, as the man was getting

out of his car, deputies arrived and confronted the man.

{¶3} Deputy Michael Lowe testified that he was on patrol when he received a dispatch

about a possibly intoxicated driver. He determined the address where the car was registered and,

because the driver appeared to be heading to that address, drove to it also. When he arrived, he

saw someone, whom he later identified as Mr. Gordon, exiting a car. As Deputy Lowe stopped

his cruiser, Mr. Gordon began rushing toward the house. The deputy told Mr. Gordon to stop,

and he eventually complied. Deputy Lowe testified that Mr. Gordon had a “strong odor of

alcoholic beverages” and that he could tell, from his training in the detection of people who are

under the influence of alcohol, that Mr. Gordon had been drinking.
 3

{¶4} Deputy Thomas Harvey testified that he received the same dispatch as Deputy

Lowe and arrived at Mr. Gordon’s house “[s]econds” after Deputy Lowe. When he arrived, Mr.

Gordon was outside a car, but near it. He saw Deputy Lowe block Mr. Gordon from entering his

house and helped secure him. According to Deputy Harvey, Mr. Gordon’s speech was slurred,

he had a strong odor of alcohol, his face was flushed, his eyes were bloodshot, he was

combative, and he expressed a wide range of emotions in a short period of time, which were all

indicative of intoxication. Deputy Harvey found a six-pack of beer in the car.

MOTION TO SUPPRESS

{¶5} Mr. Gordon’s third assignment of error is that “[t]he trial court committed

reversible error by denying [his] motion to suppress identification.” A motion to suppress

evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152,

2003-Ohio-5372, at ¶8. Generally, a reviewing court “must accept the trial court’s findings of

fact if they are supported by competent, credible evidence.” Id. But see State v. Metcalf, 9th

Dist. No. 23600, 2007-Ohio-4001, at ¶14 (Dickinson, J., concurring). The reviewing court “must

then independently determine, without deference to the conclusion of the trial court, whether the

facts satisfy the applicable legal standard.” Burnside, 2003-Ohio-5372, at ¶8.

{¶6} Addressing Mr. Gordon’s assignment of error is complicated because his

argument has changed over time. Before trial, he moved to suppress “his out-of-court

identification that occurred on December 13, 2009, . . . on the grounds that it was an unduly

suggestive show-up identification procedure[.]” At a hearing on the motion, it came to light that

there was no such procedure and that the deputies had never asked Mr. Phillips to identify Mr.

Gordon after the incident. In its ruling on the motion, the trial court focused, instead, on whether
 4

Mr. Phillips, as an informant, provided sufficiently reliable information to give the deputies

reasonable suspicion to stop Mr. Gordon outside his house.

{¶7} In his brief to this Court, Mr. Gordon’s argument focuses on the fact that Mr.

Phillips could not positively identify him at the suppression hearing. According to him, because

Mr. Phillips could not identify him at the suppression hearing, the trial court should have granted

his motion to suppress.

{¶8} “[If] an officer making an investigative stop relies solely upon a dispatch, the state

must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a

reasonable suspicion of criminal activity.” City of Maumee v. Weisner, 87 Ohio St. 3d 295,

paragraph one of the syllabus (1999). In such a situation, “the determination of reasonable

suspicion will be limited to an examination of the weight and reliability due that tip.” Id. at 299.

“The appropriate analysis . . . is whether the tip itself has sufficient indicia of reliability to justify

the investigative stop.” Id. “Factors considered ‘highly relevant in determining the value of [the

informant’s] report’ are the informant’s veracity, reliability, and basis of knowledge. Id.

(quoting Alabama v. White, 496 U.S. 325, 328 (1990)).

{¶9} Whether Mr. Phillips could identify Mr. Gordon at the suppression hearing had no

bearing on whether his tip the night of the incident had such sufficient indicia of reliability that it

justified the deputies stopping Mr. Gordon outside his house. Mr. Gordon’s argument, therefore,

is without merit.

{¶10} Mr. Gordon has also argued that, since Mr. Phillips could not identify him at the

suppression hearing, the trial court denied him the right to a fair trial by allowing Mr. Phillips to

identify him at trial. At the suppression hearing, Mr. Phillips testified, in response to a question

about whether he had been asked to identify Mr. Gordon the night of the incident, that “I could
 5

not make a positive ID today, no.” At trial, he testified, in response to a question of whether he

could “identify the defendant by face,” that “I didn’t get a clear look at the guy’s face, other than

what appears to be this gentleman here to my right.” Mr. Phillips clarified that, “[t]o be fair,” he

did not know the color of the person’s eyes, and only knew that he was a “tall white male with

dark hair.” On cross-examination, Mr. Gordon impeached Mr. Phillips with his testimony from

the suppression hearing, namely, that he had been unable to identify Mr. Gordon as the man he

saw at the gas station at that time. On redirect, Mr. Phillips said that, although the person he saw

at the suppression hearing “look[ed] like the guy” he saw at the gas station, he “just [could not]

say that is – that is the guy.”

{¶11} “When a witness has been confronted with a suspect before trial, due process

requires a court to suppress [his] identification of the suspect if the confrontation was

unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under all the

circumstances.” State v. Waddy, 63 Ohio St. 3d 424, 438 (1992) (citing Neil v. Biggers, 409 U.S.

188 (1972)). “[N]o due process violation will be found where an identification does not stem

from an impermissibly suggestive confrontation, but is instead the result of observations at the

time of the crime.” State v. Davis, 76 Ohio St. 3d 107, 112 (1996).

{¶12} Mr. Gordon’s argument appears to be that it was unnecessarily suggestive for Mr.

Phillips to see him at the suppression hearing. Although each case must be examined on an

individual basis, courts have generally rejected arguments that an in-court identification was

unnecessarily suggestive. See State v. Jenkins, 2d Dist. No. CA 1213, 1981 WL 2849 at *4 (July

8, 1981) (compiling cases). In United States ex rel. Riffert v. Rundle, 464 F.2d 1348 (3d Cir.

1972), the Third Circuit recognized “[t]he inherent suggestiveness of any one-to-one

identification may very well be increased when a witness is asked to positively identify a
 6

defendant in the context of a judicial proceeding already instituted against him” and

recommended that “[t]o minimize this effect, any identification initially made at a judicial

proceeding, should be kept, wherever possible, within the formal context of that proceeding.” Id.

at 1350. Distinguishing the case before it from those involving police identification procedures,

the court noted that the witnesses “were present at the [pretrial] hearing in order to testify for the

Commonwealth and their identifications were made in that context with full opportunity to

defense counsel to cross-examine. Counsel was present and participated throughout the hearing

and was therefore able to cross-examine the witnesses both at the hearing and the trial as to any

weakness in their identifications. Further, there is no indication in the record, nor does counsel

suggest, that the police ‘aided’ the two witnesses in their identification prior to their taking the

stand.” Id. It, therefore, concluded that “[t]here was no violation of due process.” Id.; see also

Laury v. State, 260 A. 2d 907, 909 (Del. 1969) (“If accepted, the defendants’ contention would

require a ‘line-up’ identification in every case as a prerequisite to every court room

identification. . . . Generally speaking, a court room confrontation, in the presence of court and

counsel and with the right of cross examination preserved, provides adequate protection to the

rights of an accused[.]”).

{¶13} The United States Supreme Court has recognized that “the primary evil to be

avoided” in eye-witness identification cases “is ‘a very substantial likelihood of irreparable

misidentification.’” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)). Upon review of the record, we conclude that it was not

unnecessarily suggestive for Mr. Phillips to see Mr. Gordon at the suppression hearing. As in

Rundle and Laury, the identification occurred at a formal hearing during which Mr. Gordon was

represented by counsel and had the opportunity for cross-examination. We also note that Mr.
 7

Phillips’s answer at the suppression hearing was in response to a question by Mr. Gordon’s

lawyer on cross-examination. Mr. Gordon had the opportunity to follow-up on Mr. Phillips’s

unresponsive answer, but did not. We further note that, at trial, Mr. Phillips’s identification of

Mr. Gordon was equivocal and that Mr. Gordon’s lawyer thoroughly cross-examined him on the

issue, using his answer from the suppression hearing to impeach him. Accordingly, we conclude

that Mr. Phillips’s identification testimony did not violate Mr. Gordon’s right to a fair trial. Mr.

Gordon’s third assignment of error is overruled.

SUFFICIENCY

{¶14} The first part of Mr. Gordon’s second assignment of error is that his convictions

were not supported by sufficient evidence. Whether a conviction is supported by sufficient

evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St.

3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005-Ohio-990, at ¶33. We must

determine whether, viewing the evidence in a light most favorable to the prosecution, it could

have convinced the average finder of fact of Mr. Gordon’s guilt beyond a reasonable doubt.

State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991).

{¶15} The jury found Mr. Gordon guilty of driving under suspension and driving under

lifetime suspension. Under Section 4510.11(A) of the Ohio Revised Code, “[n]o person whose

driver’s . . . license . . . has been suspended . . . shall operate any motor vehicle upon the public

roads . . . during the period of suspension[.]” Under Section 4510.18(A), “[n]o person whose

driver’s . . . license . . . has been suspended for life . . . shall operate any motor vehicle upon the

public roads . . . within this state during the remaining life of the person.” It also found him

guilty of operating a motor vehicle while under the influence of alcohol. Under Section

4511.19(A)(1)(a), “[n]o person shall operate any vehicle . . . within this state, if, at the time of
 8

the operation, . . . [t]he person is under the influence of alcohol[.]” According to Mr. Gordon,

there was insufficient evidence presented at trial to prove that he operated a vehicle or was under

the influence of alcohol.

{¶16} Regarding whether Mr. Gordon operated a vehicle, Mr. Phillips testified that the

man he saw at the gas station got into a vehicle by himself and drove away, that he followed the

man home, and that he watched deputies make contact with the man. The deputies testified that

Mr. Gordon was the man with whom they made contact based on Mr. Phillips’s report.

Accordingly, we conclude that there was sufficient evidence for the jury to find beyond a

reasonable doubt that Mr. Gordon operated a motor vehicle.

{¶17} Regarding whether Mr. Gordon was intoxicated, the deputies testified that,

because Mr. Gordon was combative, it was not safe for them to do any field sobriety tests. Mr.

Gordon also refused to take a breath-alcohol content test. The deputies testified, however, that

they each had nine years of experience, that they had been trained in detecting alcohol use, and

that, consistent with their training and experience, they determined that Mr. Gordon was

intoxicated. According to Deputy Harvey, Mr. Gordon’s speech was slurred, his face was

flushed, his eyes were bloodshot, he had a strong odor of alcohol, he was combative, and he

expressed a wide range of emotions in a short period of time.

{¶18} A defendant can be convicted under Section 4511.19(A)(1)(a) even if “no field

sobriety tests were requested or completed, and no blood, breath or urine test was requested or

completed.” State v. Bolish, 12th Dist. No. CA2005-10-441, 2006-Ohio-5375, at ¶40; State v.

Cunningham, 9th Dist. No. 2475, 1989 WL 109125 at *1 (Sept. 20, 1989). In Cunningham, this

Court specifically rejected the argument that an “arresting officer’s opinion that [the defendant]
 9

was under the influence of alcohol, with no field sobriety or breath tests to support the opinion,

was insufficient evidence to establish that [he] was under the influence of alcohol.” Id.

{¶19} In State v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37, the Ohio Supreme Court

recognized that “slurred speech, bloodshot eyes, and odor of alcohol” are all “indicia of

intoxication.” Id. at ¶14. In Bolish, a police officer, who had 18 years of experience, testified

that Mr. Bolish was intoxicated because he was talking very fast, his speech was slurred, his eyes

were “glassy” and bloodshot, he smelled strongly of alcoholic beverages, and he was swaying

back and forth. State v. Bolish, 12th Dist. No. CA2005-10-441, 2006-Ohio-5375, at ¶47. The

Twelfth District concluded that there was “ample evidence” to convict Mr. Bolish under Section

4511.19(A)(1)(a). Id.; see also City of Columbus v. Thevenin, 10th Dist. No. 05AP-879, 2006-

Ohio-4714, at ¶26-31 (reaching same conclusion under similar facts).

{¶20} In light of the deputies’ combined experience, their alcohol detection training, and

their observations of Mr. Gordon’s appearance and conduct, we conclude that there was

sufficient evidence in the record from which the jury could find that Mr. Gordon was intoxicated

at the time he drove home from the gas station. To the extent that Mr. Gordon’s second

assignment of error is that his convictions are not supported by sufficient evidence, it is

overruled

MANIFEST WEIGHT

{¶21} The second part of Mr. Gordon’s second assignment of error is that his

convictions are against the manifest weight of the evidence. When a defendant argues that his

convictions are against the manifest weight of the evidence, we “must review the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
 10

created such a manifest miscarriage of justice that the conviction[s] must be reversed and a new

trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (1986).

{¶22} Mr. Gordon’s manifest weight argument focuses on whether the evidence that he

drove a car was credible. He has noted that neither deputy saw him operate a car and that the

car’s engine was not running when they arrived. While not mentioned by Mr. Gordon in his

brief, we note that there was also testimony that Mr. Gordon did not have any keys in his

possession at the time the deputies arrested him.

{¶23} The State submitted the recording of Mr. Phillips’s call to the dispatcher, which

runs until Mr. Phillips indicates that the deputies “got” the person he had been following. The

deputies also found a six-pack of beer in the car, which was consistent with what Mr. Phillips

said Mr. Gordon bought at the gas station. In addition, while it was Mr. Gordon’s wife who had

the keys to the car, the deputies testified that it took them about ten minutes to secure Mr.

Gordon. During that time, they were unable to keep track of Mrs. Gordon, who had come out of

the house during the encounter. It was undisputed, however, that she was wearing a nightgown

and did not have shoes on. The jury could have reasonably inferred that Mr. Gordon dropped his

keys while the deputies were approaching him and that Mrs. Gordon picked them up while they

were handcuffing him. Upon review of the entire record, we conclude that the jury did not lose

its way when it found that Mr. Gordon operated a motor vehicle. To the extent that his second

assignment of error is that his convictions are against the manifest weight of the evidence, it is

overruled.

SENTENCING

{¶24} Mr. Gordon’s first assignment of error is that the trial court exercised improper

discretion when it gave him the maximum sentence for driving under a lifetime suspension. In
 11

State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, a plurality of the Ohio Supreme Court

determined that, in light of State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, when appellate

courts review criminal sentences, they must apply a “two-step approach.” Id. at ¶4. The first

step is whether the sentence was contrary to law. Id. The second step is whether the court

exercised proper discretion in imposing the term of imprisonment. Id. at ¶26. The parties agree

that Kalish provides the correct standard of review in this case.

{¶25} Mr. Gordon has argued that his sentence is contrary to law because the trial court

failed to consider the principles and purposes of sentencing under Sections 2929.11 and 2929.12

of the Ohio Revised Code. Under Section 2929.11(A) of the Ohio Revised Code, “[a] court that

sentences an offender for a felony shall be guided by the overriding purposes of felony

sentencing. The overriding purposes of felony sentencing are to protect the public from future

crime by the offender and others and to punish the offender. To achieve those purposes, the

sentencing court shall consider the need for incapacitating the offender, deterring the offender

and others from future crime, rehabilitating the offender, and making restitution to the victim of

the offense, the public, or both.” R.C. 2929.11(A). “A sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in

[Section 2929.11(A)], commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B).

{¶26} Section 2929.12 of the Ohio Revised Code provides additional guidance. “Unless

otherwise required by section 2929.13 or 2929.14 of the Revised Code, a court that imposes a

sentence . . . upon an offender for a felony has discretion to determine the most effective way to

comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised
 12

Code. In exercising that discretion, the court shall consider the factors set forth in [Sections

2929.12(B) and (C)] relating to the seriousness of the conduct and the factors provided in

[Sections 2929.12(D) and (E)] relating to the likelihood of the offender’s recidivism and, in

addition, may consider any other factors that are relevant to achieving those purposes and

principles of sentencing.” R.C. 2929.12(A).

{¶27} “[If] the trial court does not put on the record its consideration of R.C. 2929.11

and 2929.12, it is presumed that the trial court gave proper consideration to those statutes.” State

v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at ¶18 n.4 (citing State v. Adams, 37 Ohio St. 3d

295, paragraph three of the syllabus (1988)); State v. Steidel, 9th Dist. No. 10CA0025-M, 2011-

Ohio-2320, at ¶13. Furthermore, it is evident from the record in this case that the trial court did

consider those factors. At the sentencing hearing, the trial court noted that, not only did Mr.

Gordon have a previous conviction for driving under the influence, but that the “worst thing” had

happened, which was that Mr. Gordon had killed someone. It noted that, even though Mr.

Gordon killed someone while driving drunk and spent ten years in prison for it, when he got out

he continued to drink and drive. It also noted that Mr. Gordon had violated the conditions of his

bond by drinking while awaiting trial. It determined, therefore, that Mr. Gordon had “nothing

but a total disregard for everything about the law” and “other human beings.” The court’s

statements show that it considered its need to protect the public and to punish Mr. Gordon, the

seriousness of his offense, and his likelihood of recidivism before imposing sentence.

Accordingly, Mr. Gordon has failed to establish that his sentence is contrary to law. Kalish,

2008-Ohio-4912, at ¶4.

{¶28} Mr. Gordon has also argued that the trial court exercised improper discretion

when it sentenced him. He has noted that there was no positive breath-alcohol content test
 13

proving that he was intoxicated, that he did not cause any injury to person or property, and that

none of the deputies saw him inside a car. Mr. Gordon’s arguments, however, go to the weight

of the evidence and not the factors on which the court must base its sentencing decision. See

R.C. 2929.11, 2929.12. His first assignment of error is overruled.

CONCLUSION

{¶29} The trial court did not deprive Mr. Gordon of his right to a fair trial when it

allowed Mr. Phillips to identify him at trial. Mr. Gordon’s convictions are supported by

sufficient evidence and are not against the manifest weight of the evidence. The trial court

exercised proper discretion when it sentenced Mr. Gordon and his sentence is not contrary to

law. The judgment of the Summit County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, 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 constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
 14

Costs taxed to Appellant.

CLAIR E. DICKINSON
FOR THE COURT

CARR, P. J.
MOORE, J.
CONCUR

APPEARANCES:

KERRY O’BRIEN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.