[Cite as State v. Thompson, 2014-Ohio-2566.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-A-0033
- vs - :
JAMES E. THOMPSON, :
Defendant-Appellant. :
Criminal Appeal from the Conneaut Municipal Court, Case No. 12 TRC 1344.
Judgment: Affirmed.
Carly I. Prather, Assistant Conneaut Law Director, City Hall Building, 294 Main Street,
Conneaut, OH 44030. (For Plaintiff-Appellee).
William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road,
Ashtabula, OH 44004. (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, James E. Thompson, appeals the judgment of the Conneaut
Municipal Court denying his motion to suppress evidence. Following the court’s ruling,
appellant was convicted of operating a motor vehicle under the influence of alcohol and
related charges based on his no contest plea. At issue is whether the state trooper had
probable cause to stop appellant for traffic violations. For the reasons that follow, we
affirm.
{¶2} On November 27, 2012, appellant was cited for operating a motor vehicle
under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a); operating a motor
vehicle with a prohibited blood-alcohol concentration, in violation of R.C.
4511.19(A)(1)(d); and a marked lane violation, in violation of R.C. 4511.33. Appellant
pled not guilty to the charges and filed a motion to suppress.
{¶3} The trial court held a suppression hearing. Trooper Michael Royko of the
Ohio State Highway Patrol testified that on Wednesday, November 21, 2012, the night
before Thanksgiving, at about 9:30 p.m., he was on routine patrol. At that time, the
dispatcher advised him that an identified citizen had called in a report that the driver of a
red Chevrolet Aveo was driving recklessly on Interstate 90 eastbound west of the State
Route 7 exit.
{¶4} Trooper Royko located the suspect vehicle and, while driving behind it,
saw the driver, later identified as appellant, commit three marked lane violations by
driving over the fog line on the right side of the road three times.
{¶5} The trooper testified he also saw appellant following another vehicle too
closely and continually braking his vehicle. The trooper said that, in order to travel at a
safe distance behind another vehicle, for every ten miles per hour, the driver should
maintain a distance of one car length. Appellant was driving at 50 mph so there should
have been five car lengths between him and the car in front of him. However, appellant
was travelling only three car lengths behind the car he was following.
{¶6} Trooper Royko said he stopped appellant on the Route 7 exit ramp from
Interstate 90 eastbound in Conneaut. He approached appellant’s vehicle on the driver’s
side. As he made contact with appellant, he saw appellant’s eyes were bloodshot and
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glassy. He also detected a moderate odor of an alcoholic beverage coming from inside
the vehicle.
{¶7} Trooper Royko asked appellant for his proof of insurance. In looking for it,
appellant fumbled through papers in his glove compartment while dropping papers on
the passenger floor.
{¶8} Trooper Royko then asked appellant to exit his car and to take a seat in
the front passenger seat of his cruiser. Once appellant was seated in the cruiser, the
trooper noticed a moderate odor of alcohol coming from him. The trooper again saw
that appellant’s eyes were bloodshot and glassy.
{¶9} Because Trooper Royko suspected appellant was under the influence of
alcohol, he asked him to perform field sobriety tests and he complied. The trooper
administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the
one-leg-stand test. Trooper Royko said he was taught how to administer each of these
tests in the Alcohol Detection, Apprehension, and Prosecution course he took at the
police academy. He said that before each test, he instructed appellant on how to
perform the test. Appellant failed all three field sobriety tests.
{¶10} Trooper Royko concluded that, based on his experience, training,
education, and observation of appellant’s performance of the field sobriety tests,
appellant was under the influence of alcohol. He arrested appellant for operating a
motor vehicle under the influence. The trooper then transported him to the Conneaut
Police Department. Upon arrival at the station, Trooper Royko asked appellant to
submit to a breathalyzer test and he complied. The result of appellant’s test was .145,
nearly twice the legal limit.
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{¶11} Trooper Royko testified his cruiser was equipped with a dash camera. He
started recording when he began following appellant and saw appellant commit a
marked lane violation. He ended the recording when they entered the sally port of the
police department. The state played the video in court.
{¶12} Appellant did not present any witnesses or evidence on his behalf. Thus,
the state’s evidence was undisputed.
{¶13} Following the hearing, the trial court entered judgment denying appellant’s
motion to suppress. The court found the video showed his vehicle was weaving in its
lane and went over the fog line six times. Further, the court found the video shows
appellant was operating his vehicle too closely to the vehicle ahead of him and did not
maintain a safe distance from that vehicle. The court thus found that Trooper Royko
had legal grounds to stop appellant. Further, the court found the trooper noticed that
appellant’s eyes were bloodshot and glassy and that he had a moderate odor of alcohol
about him. Thus, the court found the trooper had sufficient grounds to ask appellant to
submit to field sobriety tests. The court found that Trooper Royko administered the
HGN test, the walk-and-turn test, and the one-leg-stand test in substantial compliance
with NHTSA standards, following which he arrested appellant and administered a breath
test.
{¶14} Appellant subsequently pled no contest to operating a motor vehicle under
the influence of alcohol and a marked lane violation. The court accepted the plea and
found appellant guilty of these charges. The court sentenced him to 33 days in jail,
suspending 30 days on the condition that he complete an alcohol intervention program.
The court stayed execution of the sentence pending appeal.
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{¶15} Appellant appeals the trial court’s denial of his motion to suppress,
asserting three assignments of error. For his first assigned error, he alleges:
{¶16} “The trial court erred in failing to grant Appellant’s Motion to Suppress
evidence based upon the absence of probable cause to stop Appellant’s vehicle.”
{¶17} Appellate review of a trial court’s ruling on 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. During a hearing on a motion to suppress evidence, the trial judge acts
as the trier of fact and is in the best position to resolve factual questions and assess the
credibility of the witnesses. Id. An appellate court reviewing a motion to suppress is
bound to accept the trial court’s findings of fact where they are supported by some
competent, credible evidence. State v. Norwood, 11th Dist. Lake No. 2012-L-094, 2013-
Ohio-4293, ¶16. Accepting these facts as true, the appellate court independently
reviews the trial court’s legal determinations de novo. State v. Djisheff, 11th Dist.
Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶18} First, appellant argues that his stop was based on an anonymous tip and
that such tips are inadequate to provide reasonable suspicion to justify a stop.
However, the tip in this case was not anonymous. To the contrary, the informant was a
citizen driver who provided his name and address when he made his report to the 911
operator. Such informants are presumed reliable. Norwood, supra, at ¶21. In any
event, appellant’s argument lacks merit because Trooper Royko stopped appellant
based on his own observations of appellant’s traffic violations and erratic driving, rather
than information provided by the informant. In State v. Pandolfi, 11th Dist. Lake No.
2001-L-061, 2002-Ohio-7265, an identified citizen reported the defendant was driving
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erratically. The officer located the defendant and saw him drive left of center. This
court held the officer had probable cause for the stop based on his own observations,
but that, even if he had not seen the defendant’s erratic driving, the informant’s tip
would have provided reasonable suspicion for the stop. Id. at ¶33, 26.
{¶19} Second, appellant argues that Trooper Royko did not have probable
cause to stop his vehicle because the trooper only testified that appellant crossed the
fog line on the right side of the road three times.
{¶20} A stop is constitutional if it is supported by probable cause. Ravenna v.
Nethken, 11th Dist. Portage No. 2001-P-0040, 2002-Ohio-3129, ¶30-31.
{¶21} Moreover, “where a police officer stops a vehicle based on probable cause
that a traffic violation has occurred or was occurring, the stop is not unreasonable under
the Fourth Amendment to the United States Constitution * * *.” Dayton v. Erickson, 76
Ohio St.3d 3, 11 (1996). This court has held that if a police officer observes any traffic
law violation, sufficient grounds exist for the officer to stop the vehicle. State v.
Wojtaszek, 11th Dist. Lake No. 2002-L-016, 2003-Ohio-2105, ¶16, citing State v.
Brownlie, 11th Dist. Portage Nos. 99-P-0005 and 99-P-0006, 2000 Ohio App. LEXIS
1450, *6 (Mar. 31, 2000), citing Erickson, supra, at 11-12. Where a police officer
witnesses a minor traffic violation, the officer is justified in making a limited stop for the
purpose of issuing a citation. Brownlie, supra; State v. Brickman, 11th Dist. Portage No.
2000-P-0058, 2001 Ohio App. LEXIS 2575, *5 (June 8, 2001).
{¶22} Further, in State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, the
Supreme Court of Ohio held that where the trooper observed the defendant cross the
fog line twice, the trooper reasonably concluded that the defendant’s driving violated
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R.C. 4511.33, and the trooper not only had a reasonable and articulable suspicion to
stop appellant’s vehicle, he also had probable cause. Id. at ¶24.
{¶23} Here, Trooper Royko testified that he saw appellant commit three
separate marked lane violations by driving over the fog line three times. Upon
reviewing the dash-cam video, the trial court found that the video documented six
marked lane violations. R.C. 4511.33 provides: “A vehicle * * * shall be driven, as
nearly as is practicable, entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first ascertained that such movement
can be made with safety.” Appellant presented no evidence that, before crossing the
fog line, it was not practicable to drive entirely within one lane of traffic or that before
crossing the fog line, he first ascertained that such movement could be safely made.
Thus, appellant presented no evidence justifying his crossing over the fog line. In
addition, Trooper Royko observed appellant following another vehicle too closely, in
violation of R.C. 4511.34(A) (“[t]he operator of a motor vehicle * * * shall not follow
another vehicle * * * more closely than is reasonable or prudent * * *.”).
{¶24} Appellant’s reliance on Wickliffe v. Petway, 11th Dist. Lake Nos. 2011-L-
101 and 2011-L-102, 2012-Ohio-2439, is misplaced because in Petway, the defendant’s
vehicle did not cross the marked lane; rather, the defendant’s vehicle’s left tires briefly
went onto the center line dividing the lanes without passing into the neighboring lane.
In contrast, here, the trooper testified, and the trial court found, that appellant’s vehicle
went over the fog line. Appellant concedes in his brief that he “crossed” the fog line
three times. Our review of the video confirms that his vehicle crossed over the fog line
several times.
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{¶25} Appellant also argues the trial court abused its discretion in finding that
appellant activated his turn signal more than a mile before his exit and that he was
driving too closely to the vehicle in front of him because appellant was not charged with
offenses based on this conduct. However, in State v. Batchili, 113 Ohio St.3d 403,
2007-Ohio-204, the Supreme Court of Ohio stated that “the constitutionality of a * * *
traffic stop does not depend on the issuance of a citation.” Id. at ¶21. Further, “[t]he
failure to issue a traffic citation when there is an indication of a potentially far more
significant crime is easily excused when more pressing issues are being addressed.”
Id. at ¶20. Here, appellant was charged with operating a motor vehicle under the
influence of alcohol, a far more serious offense than driving too closely to the vehicle in
front of him or failing to properly activate his turn signal. In any event, while appellant
was not cited for these additional traffic violations, the trial court’s findings concerning
them were pertinent to whether the trooper had probable cause to stop appellant.
{¶26} Because appellant crossed over the fog line at least three times, in
violation of R.C. 4511.33, and followed a vehicle too closely, in violation of R.C.
4511.34(A), the trial court did not err in finding that Trooper Royko had probable cause
to stop him.
{¶27} Appellant’s first assignment of error is overruled.
{¶28} For his second assignment of error, appellant contends:
{¶29} “Defendant-Appellant alleges that the Trial Court erred in failing to grant
Appellant’s Motion to Suppress evidence based upon the undertaking of field sobriety
tests and breath tests of Appellant without probable cause.”
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{¶30} As noted above, when a police officer observes a traffic violation, he is
justified in initiating a limited stop for the purpose of issuing a citation. Brickman, supra.
However, a request that a driver perform field sobriety tests constitutes a greater
invasion of liberty than the initial stop, and “must be separately justified by specific,
articulable facts showing a reasonable basis for the request.” State v. Evans, 127 Ohio
App.3d 56, 63 (11th Dist.1998). Whether a request to perform field sobriety tests was
reasonable is to be considered under the totality of the circumstances. Evans, supra, at
63. Appellant argues that Trooper Royko improperly detained him in order to conduct
field sobriety tests.
{¶31} In Evans, this court set forth a non-exclusive list of factors to be
considered when determining whether a police officer has a reasonable suspicion of
intoxication justifying the administration of field sobriety tests. That list, on which no one
factor is dispositive, consists of the following:
{¶32} (1) the time and 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
erratic 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, glazed, 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,
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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 of coordination (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 these factors, together with
the officer’s previous experience in dealing with drunken drivers,
may be taken into account by a reviewing court in determining
whether the officer acted reasonably. Id. at f.n.2.
{¶33} In Brickman, supra, this court stated that “courts generally approve an
officer’s decision to conduct field sobriety tests when [the] officer’s decision was based
on a number of factors [set forth in Evans].” Brickman, supra, at *8, quoting Evans,
supra.
{¶34} Here, several Evans factors were present. First, the stop occurred the
night before Thanksgiving. Second, substantial evidence was presented of appellant’s
erratic driving before the stop. Appellant concedes he “crossed” the fog line three
times. The trial court found, based on the video, that appellant was weaving and
crossed the fog line six times. Further, appellant was driving too closely to and did not
maintain a safe distance from the vehicle in front of him. In addition, the trooper stated
that appellant was continually braking his vehicle. Third, the trooper noticed that
appellant’s eyes were glassy and bloodshot. Fourth, the trooper detected an odor of
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alcohol coming from the vehicle. It is noteworthy that appellant was the only individual
in the vehicle. Further, while the trooper was seated next to appellant in his cruiser, the
trooper detected an odor of alcohol coming from appellant’s person. Fifth, the trooper
described the intensity of the odor of alcohol coming from appellant’s vehicle and later
from appellant himself as moderate, as opposed to slight. Sixth, in attempting to
respond to the trooper’s request for his proof of insurance, appellant was fumbling
through papers in his glove compartment, dropping various papers to the floor of the
passenger compartment.
{¶35} In addition, Trooper Royko described his extensive experience in dealing
with drunk drivers. He said he has arrested about 150 impaired drivers. He has also
witnessed another 100 impaired drivers while on traffic stops with other troopers.
{¶36} In light of the presence of the foregoing Evans factors and Trooper
Royko’s extensive experience in dealing with drunk drivers, the trial court did not err in
finding the trooper had a sufficient basis to ask appellant to submit to field sobriety tests.
{¶37} Appellant’s second assignment of error is overruled.
{¶38} For his third and final assignment of error, appellant alleges:
{¶39} “The trial court erred in failing to suppress the results of field sobriety
tests.”
{¶40} The Ohio Supreme Court has recognized that, since the amendment of
R.C. 4511.19 by the General Assembly in 2003, field sobriety tests need not be
conducted in strict compliance with standardized testing procedures. State v. Schmitt,
101 Ohio St.3d 79, 2004-Ohio-37, ¶9. “Instead, an officer may now testify concerning
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the results of a field sobriety test administered in substantial compliance with the testing
standards.” Id.
{¶41} R.C. 4511.19(D)(4)(b) provides that evidence and testimony regarding the
results of a field sobriety test may be presented “if it is shown by clear and convincing
evidence that the officer administered the test in substantial compliance with the testing
standards for any reliable, credible, and generally accepted field sobriety tests that were
in effect at the time the tests were administered, including, but not limited to, any testing
standards then in effect that were set by the national highway traffic safety
administration.”
{¶42} As a preliminary matter, the state argues that appellant’s allegations in his
suppression motion with regard to the field sobriety tests were not specific and therefore
only required the state to present general testimony to demonstrate substantial
compliance. We note the only allegation made by appellant in his motion to suppress
regarding field sobriety tests was that the state failed to administer them in substantial
compliance with applicable standards. Appellant did not allege any specific grounds for
suppressing the field sobriety test results. This court has held that an accused’s failure
to provide any specificity in his motion to suppress relieves the state of the duty to
specifically address the regulatory standards for such tests. State v. Barnett, 11th Dist.
Portage No. 2006-P-0117, 2007-Ohio-4954, ¶28.
{¶43} This court in Barnett held that, in order to require a hearing on a motion to
suppress evidence, the defendant must state the motion’s factual and legal bases with
sufficient particularity to place the prosecutor and the court on notice of the issues to be
decided. Id. at ¶29, citing State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus. Further,
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only after the defendant satisfies his burden of giving notice of the issues to be
determined does the burden shift to the state to prove it substantially complied with the
regulations. Id. at ¶30. In order to require the state to respond specifically to issues
raised in a motion to suppress, the defendant must raise issues that are supported by
facts specific to those issues. Id. at ¶31. Unless the defendant sets forth facts that
support the allegations that specific regulations have been violated in some specific
way, the burden on the state to show substantial compliance with those regulations
remains general and slight. Id. at ¶32.
{¶44} In Barnett, the defendant’s motion to suppress contained no specific
factual allegations and no legal bases in support. Barnett simply made the conclusory
statement that the officer failed to comply with the NHTSA manual. This court held that,
because the defendant failed to specify in his motion the NHSTA standards that were
allegedly violated, the officer’s general testimony that his testing procedures complied
with the NHSTA manual was sufficient to overcome appellant’s motion to suppress. Id.
at ¶35.
{¶45} Here, appellant failed to specify in his motion the NHSTA standards that
were allegedly violated. He simply said the state failed to administer the field sobriety
tests in substantial compliance with applicable standards. As a result, the trooper’s
general testimony that his testing procedures complied with the standard procedures for
such tests was sufficient to overcome appellant’s motion to suppress.
{¶46} Appellant argues the state failed to present evidence of the NHTSA or
other testing standards and the trooper’s substantial compliance with those standards.
We do not agree.
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{¶47} Trooper Royko testified that he has had training in the administration of
field sobriety tests at the police academy in the Alcohol Detection, Apprehension, and
Prosecution course involving drunk drivers. He is also an instructor of this course.
Further, he has been certified as a drug and alcohol detection expert.
{¶48} Appellant conceded during the suppression hearing that the HGN test, the
walk-and-turn test, and the one-leg-stand test, which Trooper Royko administered to
him, are all included in the National Highway Traffic Safety Administration (NHTSA)
manual and that Ohio courts have recognized each of these tests as reliable.
{¶49} Trooper Royko said he first administered the HGN test to appellant. The
trooper described the standard procedure for administering this test. He said the officer
is to hold the stimulis (usually a pen) about twelve inches from the defendant’s face.
The officer instructs the defendant to follow the tip of the pen with his eyes and not to
move his head. The officer moves the stimulis gradually out of the defendant’s field of
vision. He said that “nystagmus” is the inadvertent jerking of the eye and that,
according to the NHTSA, the onset of nystagmus at an angle less than 45 degrees
indicates the defendant is under the influence of alcohol. The officer checks each of the
defendant’s eyes to determine whether nystagmus occurs at an angle less than 45
degrees. In addition to Trooper Royko’s reference to the NHTSA in connection with this
test, we note that the standard procedure for this test as described by the trooper is the
procedure adopted by the NHTSA manual. See State v. Brooks, 11th Dist. Lake No.
2011-L-049, 2013-Ohio-58, ¶8. Trooper Royko said he has administered the HGN test
about 300 times.
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{¶50} Trooper Royko said he administered the HGN test to appellant in
compliance with this standard procedure, and appellant exhibited all six clues of
impairment in each eye, indicating appellant was impaired due to alcohol consumption.
{¶51} Next, Trooper Royko administered the walk-and-turn test to appellant. He
described the standard procedure for administering this test. This test has two phases,
the instructional phase and the walking phase. In the instructional phase, the officer
instructs the defendant to imagine a straight line; to put his right foot in front of his left
foot, touching heel to toe; to keep his hands down at his sides; and to stay in that
position until given instructions. In the walking phase, the officer instructs the defendant
to take nine heel-to-toe steps on the line, turn, and then take nine heel-to-toe steps
back. The officer demonstrates the first three steps and the turnaround. The standard
procedure for this test as described by Trooper Royko is the procedure adopted by the
NHTSA manual. See Brooks, supra, at ¶14. The trooper said he has administered this
test about 200 times.
{¶52} The trooper said he administered this test to appellant in compliance with
this standard procedure. Appellant was unable to keep his balance three times. At one
point, he lost his balance and almost fell over. Appellant exhibited eight clues of
impairment, indicating he was impaired.
{¶53} Finally, Trooper Royko administered the one-leg-stand test. He described
the standard procedure for administering this test. He said the officer tells the defendant
to put his hands down at his sides and to keep his feet together. The officer then tells
the defendant that, when instructed, he is to elevate his foot six inches off the ground.
He can raise either foot, but his foot must be parallel to the ground. He is then to look at
15
the tip of the elevated toe and to count out loud, 1001, 1002, etc. until he is told to stop.
If he puts his foot down for any reason, he is to pick it back up and continue counting
from where he left off. The officer then demonstrates the test. The standard procedure
for this test as described by Trooper Royko is the procedure adopted by the NHTSA
manual. See Brooks, supra, at ¶10. The trooper said he has administered this test
about 200 times.
{¶54} The trooper said he administered this test to appellant in compliance with
this standard procedure. Appellant swayed; lowered his foot; and, after counting to
1007, put his foot down and said that was all he could do. Appellant exhibited all four
clues of impairment, which indicated he was impaired.
{¶55} Because Trooper Royko adhered to procedures adopted by the NHTSA
manual in administering the field sobriety tests, the trial court did not err in finding that
the trooper administered these tests in substantial compliance with those standards.
{¶56} Appellant’s third assignment of error is overruled.
{¶57} For the reasons stated in this opinion, the assignments of error lack merit
and are therefore overruled. It is the order and judgment of this court that the judgment
of the Conneaut Municipal Court is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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State v. Thompson
Combined Opinion