[Cite as State v. Castro, 2017-Ohio-112.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ANGELA CASTRO : Case No. 16-CA-08
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 15TRC06800
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 9, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL E. COGLEY DORIAN KEITH BAUM
136 West Main Street 123 South Broad Street
Lancaster, OH 43130 Suite 201
Lancaster, OH 43130
Fairfield County, Case No. 16-CA-08 2
Farmer, P.J.
{¶1} On June 20, 2015, Fairfield County Sheriff's Deputy Trent Temper received
a tip from the Postmaster for Bremen, Ohio, that one of his employees, appellant, Angela
Castro, was potentially intoxicated while she was delivering mail. Deputy Temper located
appellant and observed two marked lane violations. Deputy Temper initiated a traffic stop
and conducted field sobriety tests. Thereafter, appellant was charged with operating a
motor vehicle while impaired in violation of R.C. 4511.19(A)(1)(a) and (2) and marked lane
violation under R.C. 4511.33.
{¶2} On September 24, 2015, appellant filed a motion to suppress, claiming an
illegal stop and arrest. A hearing was held on December 11, 2015. By entry filed
December 28, 2015, the trial court denied the motion.
{¶3} A jury trial commenced on January 24, 2016. The jury found appellant guilty
of the (A)(1)(a) charged and the marked lane violation. The state had dismissed the (A)(2)
charge. By judgment entry filed January 28, 2016, the trial court sentenced appellant to
ninety days in jail, eighty days suspended, and imposed a $375 fine.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRED IN DETERMINING THAT THE TRAFFIC
STOP OF APPELLANT BY LAW ENFORCEMENT WAS SUPPORTED BY
REASONABLE AND ARTICULABLE SUSPICION THAT CRIMINAL ACTIVITY WAS
AFOOT PRIOR OR THAT A TRAFFIC VIOLATION OCCURRED WHICH WOULD
PROVIDE REASONABLE TO LAWFULLY INITIATE A TRAFFIC STOP OF THE
Fairfield County, Case No. 16-CA-08 3
APPELLANT'S VEHICLE, AND ERRED IN FAILING TO RECOGNIZE THAT THE
OFFICER'S CONDUCT WAS PREDICATED UPON LITTLE MORE THAN A HUNCH,
THEREBY ALLOWING AN UNLAWFUL SEARCH AND SEIZURE IN VIOLATION OF
ARTICLE 1 SECTIONS 10, 14, AND 16 OF THE OHIO CONSTITUTION AND THE 4TH,
5TH, 6TH, AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION."
II
{¶6} "THE TRIAL COURT ERRED BY INCORRECTLY DETERMINING THAT
LAW ENFORCEMENT LAWFULLY FORMED PROBABLY CAUSE THAT THE
APPELLANT HAD COMMITTED THE TRAFFIC OFFENSE OF OPERATION OF A
VEHICLE WHILE INTOXICATED, AND THEREFORE UNLAWFULLY PLACED THE
APPELLANT UNDER ARREST FOR SAID CHARGE, THEREBY IMPROPERLY FAILING
TO SUPPRESS THE EVIDENCE OF SAID STOP AND ARREST, ALLOWING AN
UNLAWFUL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE 1, SECTIONS 10, 14,
AND 16 OF THE OHIO CONSTITUTION AND THE 4TH, 5TH, 6TH, AND 14TH
AMENDMENTS OF THE UNITED STATES CONSTITUTION."
III
{¶7} "THE TRIAL COURT ERRED BY INCORRECTLY STATING THE
MANDATORY MINIMUM SENTENCE FOR A FIRST OFFENSE OF OPERATION OF A
VEHICLE WHILE INTOXICATED (OVI), WHICH MAY HAVE LED THE COURT TO
IMPROPERLY DETERMINE THAT IT WAS BOUND TO SENTENCE THE APPELLANT
TO A LONGER INCARCERATION TERM THAN WAS ACTUALLY MANDATED BY
STATUTE."
Fairfield County, Case No. 16-CA-08 4
I, II
{¶8} Appellant claims the trial court erred in denying her motion to suppress as
Deputy Temper merely relied on a "tip" from her employer and lacked a reasonable
suspicion of criminal activity to initiate the stop, lacked justification to extend the stop, and
lacked probable cause to arrest her. We disagree.
{¶9} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio
St.3d 165, 2016-Ohio-154, ¶ 12:
"Appellate review of a motion to suppress presents a mixed question
of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial court
assumes the role of trier of fact and is therefore 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, 582 N.E.2d 972 (1992). On
appeal, we "must accept the trial court's findings of fact if they are supported
by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d
19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard." Id.
Fairfield County, Case No. 16-CA-08 5
{¶10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal."
{¶11} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest." However, for the propriety of a brief
investigatory stop pursuant to Terry, the police officer involved "must be able to point to
specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be
viewed in the light of the totality of the surrounding circumstances" presented to the police
officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.
Probable cause to arrest is not synonymous to probable cause for search. Probable cause
to arrest focuses on the prior actions of the accused. Probable cause exists when a
reasonable prudent person would believe that the person arrested had committed a crime.
State v. Timson, 38 Ohio St.2d 122 (1974). A determination of probable cause is made
from the totality of the circumstances. Factors to be considered include an officer's
observation of some criminal behavior by the defendant, furtive or suspicious behavior,
flight, events escalating reasonable suspicion into probable cause, association with
criminals, and location. Katz, Ohio Arrest, Search and Seizure, Sections 2:13-2:19, at 59-
64 (2009 Ed.). As the United States Supreme Court stated when speaking of probable
cause "we deal with probabilities. These are not technical; they are the factual and
Fairfield County, Case No. 16-CA-08 6
practical considerations of everyday life in which reasonable and prudent men, not legal
technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (1949).
{¶12} In denying the motion to suppress, the trial court in its entry filed December
28, 2015, acknowledged Deputy Temper's initial attention to appellant was the result of
the tip from her employer, but before he initiated the stop, he observed two violations:
5. Deputy Temper observed Ms. Castro's vehicle make two
successive lane violations, and stopped her vehicle in the parking lot of
Westerman's at 245 N. Broad Street in Bremen.
6. Deputy Temper testified that as he was approaching Ms. Castro's
vehicle, he observed that she had glassy eyes, that she was unsuccessfully
attempting to light a cigarette, and thereafter put a piece of chewing gum in
her mouth. Despite the chewing gum, Deputy Temper testified that he was
able to detect an odor of an alcoholic beverage.
7. Deputy Temper then had Ms. Castro get out of her vehicle and
requested that she perform various field sobriety tests, and she complied.
{¶13} We find the testimony given during the suppression hearing supports the
trial court's finding that Deputy Temper observed "two successive lane violations" before
he initiated the stop. December 11, 2015 T. at 6-7. After stopping the vehicle, Deputy
Temper detected a strong odor of alcohol, and observed that appellant had "bloodshot,
glassy eyes." Id. at 7, 9. Deputy Temper conducted field sobriety tests. Id. at 9. During
the horizontal gaze nystagmus test, Deputy Temper observed six out of six clues. Id. at
Fairfield County, Case No. 16-CA-08 7
14. During the walk and turn test, he observed two clues, and during the one leg stand
test, he observed four clues. Id. at 16-18. Based upon his personal observations and
appellant's performance on the field sobriety tests, Deputy Temper arrested appellant for
operating a motor vehicle while impaired. Id. at 19.
{¶14} We find the trial court's findings and conclusions to be supported by the
record.
{¶15} In addition, the traffic violations, although de minimis, constituted sufficient
articulate facts to warrant the stop.
{¶16} Upon review, we find the trial court did not err in denying the motion to
suppress.
{¶17} Assignments of Error I and II are denied.
III
{¶18} Appellant claims the trial court erred in sentencing her to ten days in jail
because ten days is not the minimum sentence, and the trial court was incorrect in stating
ten days was the mandatory minimum sentence. We disagree.
{¶19} During the January 28, 2016 sentencing hearing, the trial court stated it
would impose the minimum fine of $375, but never stated the mandatory minimum
sentence was ten days (T. at 3-4):
THE COURT: Um, as far as jail sanction, there's going to be a, um,
90 day jail sentence in this case. Um, at this point, uh, the Court is going to
impose a, uh, is going to suspend 80 of those days, there will be a 10 day
jail sentence or it can be, uh, 3 days of a driver's intervention program and
Fairfield County, Case No. 16-CA-08 8
an additional 7 days in the county jail. The minimum on this would be, uh,
6 days in jail or 3 days jail and the 3 day driver intervention program.
{¶20} Upon review, we do not find any error or prejudice to appellant in the trial
court's determination of the jail sentence coupled with a driver intervention program.
{¶21} Assignment of Error III is denied.
{¶22} The judgment of the Municipal Court of Fairfield County, Ohio is hereby
affirmed.
By Farmer, P.J.
Gwin, J. and
Baldwin, J. concur.
SGF/sg 129