State v. Walker

[Cite as State v. Walker, 2023-Ohio-3586.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ZANE WALKER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 22 BE 0013

Criminal Appeal from the
Belmont County Court, Northern Division, of Belmont County, Ohio
Case No. 21TRC01073N

BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:
Affirmed.

Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Jacob A. Manning,
Assistant Prosecutor, 52160 National Road, St. Clairsville, Ohio 43950, for Plaintiff-
Appellee

Atty. Adam L. Myser, Myser & Myser, 320 Howard Street, Bridgeport, Ohio 43912, for
Defendant-Appellant.

Dated: September 28, 2023
 –2–

WAITE, J.

{¶1} Appellant Zane Walker pleaded no contest to operating a vehicle while

intoxicated (“OVI”) after his motion to suppress was overruled. Appellant now challenges

the trial court’s decision to overrule his motion to suppress. He argues on appeal that the

arresting officer did not have reasonable suspicion to conduct field sobriety tests, failed

to perform the tests properly, and lacked probable cause to arrest Appellant for OVI.

However, the record contains sufficient facts to justify performing the field sobriety tests,

supports that the tests were performed in substantial compliance with applicable

regulations, and that the arresting officer had probable cause to arrest Appellant.

Appellant's three assignments of error are overruled and the judgment of the trial court is

affirmed.

Case History and Facts

{¶2} On August 7, 2021, Ohio State Highway Patrol Trooper Emily Coakley

observed a vehicle being driven by Appellant merge onto Ohio State Route 7 near

Bridgeport, Ohio in Belmont County. Appellant failed to use a turn signal three times

when merging, driving on the highway, and when rapidly cutting across three lanes of

traffic. Appellant was also observed swerving erratically within and on the lane markers.

This occurred at approximately 11:00 p.m. Appellant's driving was recorded on Trooper

Coakley's cruiser video camera. Trooper Coakley stopped Appellant's vehicle

immediately after Appellant exited the highway on a left-hand exit and entered a gas

station.

{¶3} When the trooper approached Appellant’s vehicle, Appellant rolled his

window down about halfway. He was advised to roll it all the way down. Trooper Coakley

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could smell alcohol coming from the vehicle window. She asked if Appellant had been

drinking, and he said no, that only his passenger had been drinking. Appellant said that

they had just come from the racetrack.

{¶4} Trooper Coakley asked for Appellant's license, registration, and insurance.

Instead of his car registration, Appellant handed over an oil change receipt. Trooper

Coakley again asked if Appellant had been drinking, and he said that he had imbibed two

beers. She then asked Appellant to exit the vehicle. Trooper Coakley noticed an odor of

alcohol coming from Appellant's breath and that Appellant had red watery eyes. At this

point, she administered field sobriety tests. Trooper Coakley observed indicators of

impairment on three field sobriety tests, and Appellant failed two of the tests. She also

conducted a preliminary breath test, then placed Appellant under arrest. Trooper Coakley

informed Appellant of his Miranda rights. In inspecting the car, Trooper Coakley found

two open beer cans in the vehicle. Appellant subsequently admitted to drinking and

driving.

{¶5} The trooper transported Appellant to the Ohio State Highway Patrol post

and administered a breath test. The test resulted in a blood alcohol level of 0.135.

{¶6} Appellant was charged with driving with a prohibited concentration of

alcohol, third offense, pursuant to R.C. 4511.19(A)(1)(b); failure to use a turn signal, R.C.

4511.39; and traveling with an open container of beer, under R.C. 4301.62(B)(4). On

September 21, 2021, Appellant filed a combined motion to dismiss, motion to suppress,

and motion in limine. Appellant argued that Coakley lacked probable cause to stop the

vehicle, to perform field sobriety tests, and to perform the breath test.

Case No. 22 BE 0013
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{¶7} On November 19, 2021, the Belmont County Court, Northern Division, held

a hearing on Appellant’s motion. Trooper Coakley testified about following Appellant's

vehicle on the highway, his traffic violations, her stop of the vehicle, and the field sobriety

tests. She testified that the stop occurred at 11:00 p.m. and noted that people trying to

contain an odor of alcohol often do not roll the window down all the way, thus Appellant’s

behavior in this regard was suspicious. She testified that Appellant handed her an oil

change receipt instead of his registration and that Appellant ultimately told her that he

had consumed two beers.

{¶8} Trooper Coakley testified that she followed the National Highway Traffic

Safety Administration (NHTSA) rules in administering field sobriety tests. She noted that

she was trained to give these tests and performed them nightly. Trooper Coakley testified

that Appellant exhibited six of six indicators of impairment during the horizontal gaze

nystagmus (HGN) test. This indicated a failed HGN test. The test was performed at the

side of the cruiser and was not captured on video, which was directed only towards the

front of the cruiser. She noted that Appellant exhibited two of eight indicators of

impairment in the walk and turn test, which was recorded on video. This reflected that

Appellant had failed the test. She testified that she administered a one-leg stand test and

that Appellant exhibited only one of four indicators of impairment, hence, he passed this

test. The video was played at the hearing.

{¶9} On December 17, 2021, the trial court overruled Appellant's motion in its

entirety. On March 23, 2022, Appellant withdrew his former plea of not guilty and entered

a plea of no contest to OVI. The court then entered judgment against Appellant on one

count of OVI, a first degree misdemeanor. The court sentenced Appellant to 365 days in

Case No. 22 BE 0013
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jail with all but 185 suspended, a fine in the amount of $1,135, court costs, two years of

probation, and an eight-year license suspension. Counts two and three were dismissed.

A nunc pro tunc entry was filed on March 29, 2022, correcting some typographical errors.

{¶10} This appeal was filed on March 24, 2022 and on that same date the trial

court stayed the sentence pending appeal. Appellant raises three assignments of error

on appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN FINDING THE ARRESTING OFFICER

HAD REASONABLE SUSPICION TO CONDUCT FURTHER

INVESTIGATION AND/OR COMPEL DEFENDANT TO PERFORM FIELD

SOBRIETY TESTS AFTER THE INITIAL TRAFFIC STOP.

{¶11} Initially, we note that all of Appellant's three assignments of error challenge

the trial court's decision to overrule his motion to suppress. Although Appellant pleaded

no contest to the charge of OVI, a “plea of no contest does not preclude a defendant from

asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion,

including a pretrial motion to suppress evidence.” Crim.R. 12(I); State v. Vaughn, 7th

Dist. Carroll No. 683, 2003-Ohio-7023, ¶ 33. The review of a ruling on a motion to

suppress generally presents a mixed question of fact and law. State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In a hearing on a motion to

suppress, the trial court sits as the trier of fact and is responsible for determining the

credibility of the witnesses and weighing the importance of the evidence. State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). A reviewing court should accept

Case No. 22 BE 0013
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the trial court's findings of fact if they are supported by competent and credible evidence.

Id. at 20. With respect to the trial court's conclusions of law, however, a court of appeals

applies a de novo standard of review and must determine whether the facts satisfy the

applicable legal standards. Burnside at ¶ 8.

{¶12} Appellant contends in his first assignment of error that Trooper Coakley did

not have a sufficient basis for conducting field sobriety tests. It is well-established that

once an officer has validly stopped a vehicle for a minor traffic offense, “the officer may

then proceed to investigate the detainee for driving under the influence if he or she has a

reasonable suspicion that the detainee may be intoxicated based on specific and

articulable facts * * *.” State v. Jennings, 11th Dist. Trumbull No. 98-T-0196, 2000 WL

263741, *3, citing State v. Yemma, Portage App. No 95-P-0156 (Aug. 9, 1996); see also,

State v. Smith, 7th Dist. Mahoning No. 05 MA 219, 2007-Ohio-3182, ¶ 40. “Probable

cause is not needed before an officer may conduct field sobriety tests.” State v. Perkins,

10th Dist. Franklin No. 07AP-924, 2008-Ohio-5060, ¶ 8.

{¶13} “In evaluating the propriety of an investigative stop, a reviewing court must

consider the totality of the circumstances surrounding the stop as ‘viewed through the

eyes of the reasonable and prudent police officer on the scene who must react to events

as they unfold.’ ” Village of Waite Hill v. Popovich, 11th Dist. Lake No. 2001-L-227, 2003-

Ohio-1587, ¶ 11, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271

(1991).

{¶14} Appellant lists ten factors that can be considered by a court in viewing the

totality of circumstances when an officer decides to administer field sobriety tests: time

and day of the stop; location of the stop; erratic driving before the stop; condition of the

Case No. 22 BE 0013
 –7–

suspect's eyes; impairment of speech; odor of alcohol; intensity of the odor of alcohol;

suspect's demeanor; suspect's lack of coordination; and suspect's admission of alcohol

consumption. State v. Evans, 127 Ohio App.3d 56, 64, 711 N.E.2d 761, 766 (11th

Dist.1998). The list in Evans includes one other factor as well: whether there is a report

that the driver may be intoxicated. Id. at fn. 2. This Court has relied on the Evans list.

State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075, ¶ 11.

{¶15} Appellee points out that Evans does not contain an exhaustive list, and that

there is no specific number of factors that must be present in order to justify administering

field sobriety tests. In Evans, five factors were relied upon, two of which were not

mentioned by Appellant. Id. at 64. Other cases involve even fewer factors in order to

justify administration of field sobriety tests. See State v. Downey, 37 Ohio App.3d 45,

523 N.E.2d 521 (1987) (traffic violation, odor of alcohol, admission to drinking); Reed,

supra (smell of alcohol, red and glassy eyes, admission of drinking); State v. Wilson, 7th

Dist. Mahoning No. 01CA241, 2003-Ohio-1070 (erratic driving, odor of alcohol, red and

bloodshot eyes, impaired coordination.)

{¶16} Trooper Coakley testified that she relied on several factors in deciding to

perform these tests: Appellant’s turn signal violations; lane swerving; that he initially

opened his window only half-way; the odor of alcohol; the time of night; the place where

Appellant had just left (i.e., the racetrack); his admission to drinking two beers; his

mistaking the oil change slip for his car registration; and his red, watery eyes. Regarding

Appellant's driving, the law in Ohio is that “erratic driving that does not amount to a traffic

violation may, nonetheless, support an officer's reasonable suspicion to stop a driver.”

State v. Bahen, 10th Dist. Franklin No. 16AP-65, 2016-Ohio-7012, 76 N.E.3d 438, ¶ 23;

Case No. 22 BE 0013
 –8–

see also State v. Ratliff, 12th Dist. Butler No. CA2019-09-163, 2020-Ohio-3315, ¶ 24.

The record supports the trooper’s testimony that Appellant showed many signs of

possible impairment, justifying her administration of field sobriety tests. Appellant's first

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN NOT SUPPRESSING THE RESULTS OF

THE FIELD SOBRIETY TESTS.

{¶17} This assignment of error is reviewed under the same suppression of

evidence standard earlier discussed. Appellant contends that Trooper Coakley's

testimony should not be believed regarding the HGN test, and that he did not exhibit

enough clues on the walk and turn test to indicate impairment. Appellant concludes that

there were not enough clues of impairment overall to justify his arrest for OVI.

{¶18} “Results from field sobriety tests ‘are not admissible at trial unless the state

shows by clear and convincing evidence that the officer administered the test in

substantial compliance with NHTSA guidelines.’ State v. Codeluppi, 139 Ohio St.3d 165,

2014-Ohio-1574, 10 N.E.3d 691, ¶ 11[.]” State v. Aiken, 6th Dist. Fulton No. F-21-005,

2021-Ohio-3503, ¶ 27.

{¶19} Appellant does not question Trooper Coakley's training or her

understanding of the NHTSA manual. Appellant did not offer the NHTSA manual into

evidence. Appellant did not challenge Trooper Coakley's testimony about the

requirements of the HGN test or the walk and turn test. His primary argument is that the

video of the traffic stop does not confirm that he exhibited two indicators of impairment

Case No. 22 BE 0013
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for the walk and turn test, and that this diminishes the trooper's credibility as to the results

of both field sobriety tests.

{¶20} Trooper Coakley testified about her training and that she conducts these

tests nightly on her shifts. She indicated that there are six indicators to look for in the

HGN test (three in each eye), that four are needed to determine failure of the test, and

that Appellant exhibited all six clues. She testified that there are eight indicators for the

walk and turn test, that two are needed to reflect failure of the test, and that Appellant

exhibited two. She testified that the indicators Appellant failed in the walk and turn test

were swaying during the instructions for the test and turning incorrectly. (11/19/21 Tr., p.

25.)

{¶21} Trooper Coakley further testified about the walk and turn test:

I tell them left foot in front of him. He brings that right foot heel to toe, hands

down at his sides. I will tell him to stay in that position while I demonstrate.

Per NHTSA, it's a clue of while I'm demonstrating, they adjust their feet,

move their feet, fall out of it or anything like that trying to maintain that

balance, trying to maintain that position.

(11/19/21 Tr., p. 25.)

{¶22} It is clear from the video of the test that Appellant did adjust and move his

feet after he placed them toe to heel while Coakley was giving her instructions. There

are also a few seconds where Appellant's legs are obscured by Coakley walking in front

of him, and we cannot observe whether he moves his feet improperly on the video. There

Case No. 22 BE 0013
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is certainly nothing in the video to contradict Trooper Coakley's testimony that Appellant

moved his feet after placing them heel to toe during the instructions for the test.

{¶23} The video does not show Appellant's feet during the turn of the walk and

turn test. His feet are obscured by the trooper's cruiser. Nevertheless, Trooper Coakley

testified that she wrote in her report that Appellant turned incorrectly, and that she was

convinced of that when she wrote the report. Since the video does not contain a view of

Appellant’s feet, it neither confirms nor contradicts her testimony that Appellant failed the

test.

{¶24} We also observe that the video was taken late at night and it was dark.

Thus, it does not contain a perfect record of what actually occurred. Trooper Coakley

relied on the report she made the night of the field sobriety tests to confirm that Appellant

had indeed exhibited two of the indicators of the test and had therefore failed. A reviewing

court may rely on the written report of a field sobriety test to establish that the driver failed

one or more of the tests. State v. Hall, 2d Dist. Montgomery No. 19933, 2004-Ohio-1307,

¶ 28.

{¶25} The trial court believed Trooper Coakley's testimony and the written report,

which were confirmed to a lesser degree by the video of the traffic stop. It is up to the

trier of fact to determine witness credibility. Appellant's attack on the HGN test is based

on his perception that the trooper's testimony of the walk and turn test is not credible. The

record does not reveal any error in the court's determination that Appellant failed the walk

and turn test, and there is no reason to question the trooper’s testimony regarding the

results of the HGN test. This record reveals Appellant failed two field sobriety tests.

Case No. 22 BE 0013
 – 11 –

There was no reason to suppress the field sobriety test results. Appellant's second

assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN FINDING THAT THE ARRESTING

OFFICER HAD PROBABLE CAUSE TO PLACE THE DEFENDANT-

APPELLANT UNDER ARREST FOR VIOLATION OF R.C. §4511.19, OVI.

{¶26} This assignment of error is also reviewed under the same suppression of

evidence standard as the earlier two assignments. Appellant argues that there was no

probable cause to arrest him for OVI once the field sobriety tests are excluded from

evidence. Based on our analysis of the first two assignments of error, there is no reason

to exclude those test results. Even assuming, arguendo, that the walk and turn test result

is excluded, the record shows the trooper still had probable cause for the arrest.

{¶27} Probable cause to arrest someone for OVI may exist without the

administration of any field sobriety tests based on the totality of the circumstances. State

v. Bish, 7th Dist. No. 09 MA 145, 191 Ohio App.3d 661, 2010-Ohio-6604, 947 N.E.2d 257,

¶ 2; State v. Brungs, 4th Dist. Pickaway No. 05CA18, 2005-Ohio-5776, ¶ 31. “Probable

cause to arrest does not have to be based upon a suspect's poor performance on field

sobriety tests alone. Rather, the totality of the facts and circumstances can support a

finding of probable cause to arrest even when no field sobriety tests were given, or when

the test results must be excluded because of failure to comply with standardized testing

procedures.” State v. Hall, 2d Dist. Greene No. 04CA86, 2005-Ohio-4526, ¶ 21 (citations

omitted).

Case No. 22 BE 0013
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{¶28} Also, a single field sobriety test result, if administered properly, can be used

to support probable cause to arrest for DUI. Tallmadge v. McCoy, 96 Ohio App.3d 604,

610, 645 N.E.2d 802 (9th Dist.1994). “[T]he HGN test is a reliable test for determining if

a person in [sic] under the influence and can be used to establish probable cause[.]”

Westlake v. Goodman, 8th Dist. Cuyahoga No. 111300, 2022-Ohio-3045, ¶ 29.

{¶29} Probable cause is not a prohibitively high standard. State v. Taylor, 10th

Dist. No. 19AP-396, 2022-Ohio-2877, 194 N.E.3d 867, ¶ 15. “Probable cause is a flexible

common sense standard, and requires only a showing that a probability rather than an

actual showing of criminal activity existed.” State v. Osorio, 8th Dist. Cuyahoga No.

72147, 1998 WL 23829, *4. This helps to explain why there is such a wide range and

variation of facts supporting probable cause to arrest for OVI.

{¶30} This record contains many indicators that Appellant had probably

committed the crime of OVI: erratic driving; Appellant’s failure to fully open his window to

initially comply with the trooper; his handing over a sales receipt rather than his

registration; the odor of alcohol both inside and outside the vehicle; the time of night; that

Appellant had just been at the racetrack; Appellant's red, watery eyes; Appellant's

admission that he consumed two beers; and Appellant's obvious failure of the HGN test.

The record here supports the trial court's decision to overrule Appellant’s motion to

suppress, and Appellant's third assignment of error is overruled.

Conclusion

{¶31} Appellant argues on appeal that his motion to suppress should have been

granted in this OVI case because there were insufficient grounds to administer field

sobriety tests, because the video of the tests does not support the conclusion that he

Case No. 22 BE 0013
 – 13 –

failed the walk and turn test, and because there was no probable cause to arrest him for

OVI. Appellant's first assignment of error is without merit because the record contains

specific and articulable facts to support the decision to administer field sobriety tests.

Appellant's second assignment of error is without merit because the record supports that

Appellant failed two field sobriety tests. Appellant's third assignment of error is without

merit because there was no basis to suppress any evidence, particularly since there was

probable cause to arrest Appellant for OVI based on the totality of circumstances even

without the results of the walk and turn test. Accordingly, the judgment of the trial court

is affirmed.

Robb, J., concurs.

Hanni, J., dissents with dissenting opinion.

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Hanni, J., dissenting.

{¶32} I respectfully dissent from the majority opinion because I would find there

was not reasonable suspicion to conduct the field sobriety tests. Therefore, I would find

that the trial court should have granted Appellant’s motion to suppress.

{¶33} When an officer stops a motorist for a “minor traffic violation,” the officer

must keep the stop brief and limit it to the issuance of a citation for the violation in

question. State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075, ¶ 9, citing

State v. Jennings, 11th Dist. No. 98-T-0196, 2000 WL 263741 (Mar. 3, 2000). Since any

further detention is a greater invasion into the motorist’s liberty interests, the officer may

not request the motorist to perform field sobriety tests unless the request is separately

justified by reasonable suspicion based upon articulable facts that the motorist is

intoxicated. Id., citing State v. Yemma, 11th Dist. No. 95-P-0156, 1996 WL 495076 (Aug.

9, 1996).

{¶34} In this case, the circumstances relied on in support of reasonable suspicion

to conduct the field sobriety tests were turn signal violations, swerving within his lane, an

odor of alcohol, the window half-rolled down, the time of night (11:09 p.m.), the place

where Appellant was coming from (a race track), and red watery eyes.

{¶35} Numerous appellate courts, including this Court, examining similar

circumstances, have declined to find that reasonable, articulable suspicion justified

expanding the scope of the traffic stop to conduct field sobriety tests. See Reed, 7th Dist.

Belmont No. 05 BE 31, 2006-Ohio-7075, (non-moving violation along with a slight smell

of alcohol, red glassy eyes, and admission to drinking two beers did not provide the officer

with reasonable suspicion that defendant was impaired); State v. Brickman, 11th Dist.

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Portage No. 2000-P-0058, 2001 WL 635954, (June 8, 2001) (speeding, weaving within

the lane, mild odor of alcohol, red/glassy eyes and admission of drinking “a beer” did not

constitute reasonable articulable suspicion of driving under the influence); State v.

Swartz, 2d Dist. Miami No. 2008CA31, 2009-Ohio-902, (left turn without signaling, odor

of alcohol on driver's breath, and glassy/bloodshot eyes did not provide reasonable and

articulable suspicion of driving under the influence); State v. Spillers, 2d Dist. Darke No.

1504, 2000 WL 299550 (Mar. 24, 2000), (three or four marked lane violations, together

with detection of a “slight” odor of an alcoholic beverage, and motorist’s admission that

he had consumed “a couple” of beers did not provide reasonable suspicion to conduct

field sobriety tests).

{¶36} Because I would find that the circumstances in this case did not provide

reasonable articulable suspicion of driving under the influence, I would reverse the trial

court’s judgment overruling Appellant’s motion to suppress and remand the matter for

further proceedings.

Case No. 22 BE 0013
[Cite as State v. Walker, 2023-Ohio-3586.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Belmont County Court, Northern Division, of Belmont County, Ohio, is affirmed. Costs to

be taxed against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.