State v. Binkley

2023 Ohio 2532

• Court: Ohio Court of Appeals
• Decided: July 24, 2023
• Docket: 2-23-04
• Status: Published

Opinion

[Cite as State v. Binkley, 2023-Ohio-2532.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-23-04

v.

SUSAN ELAINE BINKLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Municipal Court Trial Court No. 2022 TRC 4699

Judgment Affirmed

Date of Decision: July 24, 2023

APPEARANCES:

Nick A. Catania for Appellant

Joshua Muhlenkamp for Appellee Case No. 2-23-04

WALDICK, J.

{¶1} Defendant-appellant, Susan Elaine Binkley (“Binkley”), brings this

appeal from the February 9, 2023, judgment of the Auglaize County Municipal

Court sentencing her to community control after she pled no contest to, and was

convicted of, OVI and Littering. For the reasons that follow, we affirm the judgment

of the trial court.

Background

{¶2} On July 22, 2022, Binkley was charged with OVI in violation of R.C.

4511.19(A)(1)(a), and Littering in violation of R.C. 4511.82. She originally pled not

guilty to the charges.

{¶3} On September 6, 2022, Binkley filed a suppression motion arguing,

inter alia, that the arresting officer lacked reasonable suspicion to expand the scope

of the traffic stop to an OVI investigation. A hearing was held on Binkley’s motion

on November 17, 2022. The trial court took the matter under advisement and then

issued a written entry denying Binkley’s suppression motion on January 23, 2023.

{¶4} Following the denial of her suppression motion, Binkley withdrew her

pleas of not guilty to the charges and entered pleas of no contest. The trial court then

conducted a Crim.R. 11 hearing and determined that Binkley was entering knowing,

voluntary, and intelligent pleas. The trial court accepted Binkley’s pleas and found

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her guilty.1 Binkley was sentenced to community control, which included a 72-hour

Driver’s Intervention Program.

{¶5} A judgment entry memorializing Binkley’s sentence was filed February

9, 2023. It is from this judgment that Binkley appeals, asserting the following

assignment of error for our review.

First Assignment of Error

The trial court erred in admitting evidence obtained after the officer expanded the scope of the stop from a “Terry Stop” to an OVI investigation without reasonable suspicion to do so.

{¶6} In her assignment of error, Binkley argues that the trial court erred by

determining that the arresting officer had a reasonable suspicion to expand the scope

of the traffic stop to an OVI investigation.

Standard of Review

{¶7} “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, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id.

When reviewing a ruling on a motion to suppress, “an appellate court 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 (1982). With respect to the

1 At the change-of-plea hearing, the State indicated that a urine screen conducted as a result of Binkley’s arrest showed the presence of Gabapentin, Norfentanyl, THC, and Amphetamines.

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trial court’s conclusions of law, however, our standard of review is de novo, and we

must independently determine whether the facts satisfy the applicable legal

standard. Id.

Relevant Authority

{¶8} Once a driver has been lawfully stopped, an officer may not administer

field sobriety tests unless the invasion of privacy is separately justified by a

reasonable suspicion based upon articulable facts that the motorist is impaired. See,

e.g., State v. Schriml, 3d Dist. Marion No. 9-12-32, 2013-Ohio-2845, ¶ 25.

Importantly, reasonable suspicion does not require an officer to observe and relate

overt signs of intoxication. State v. Carpenter, 3d Dist. Auglaize No. 2-22-20, 2023-

Ohio-1702, ¶ 7. Rather, “[a] court will analyze the reasonableness of the request

based on the totality of the circumstances, viewed through the eyes of a reasonable

and prudent police officer on the scene who must react to events as they

unfold.” Cleveland v. Maxwell, 8th Dist. Cuyahoga No. 104964, 2017-Ohio-4442,

¶ 20; Carpenter at ¶ 7.

{¶9} Circumstances from which an officer may derive a reasonable,

articulable suspicion that the detained driver was operating the vehicle while under

the influence include, but are not limited to:

(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 (e.g., whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of

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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, 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.

State v. Schriml, 3d Dist. Marion No. 9-12-32, ¶ 26. “We do not view any single

factor in isolation.” State v. Null, 3d Dist. Logan No. 8-19-50, 2020-Ohio-3222, ¶

19.

Evidence Presented at Suppression Hearing

{¶10} On July 27, 2022, Sergeant Brian Christopher of the St. Mary’s Police

Department was off duty, beginning a workout at “Snap Fitness” in St. Mary’s when

he observed Binkley walking strangely in the building. Sergeant Christopher

testified that she was “flaring her arms to her side, she was staggering back and

forth. It just didn’t seem right.” (Supp. Tr. at 4). Sergeant Christopher thought that

either Binkley was “under the influence of something” or there was “some

handicap.” (Id. at 8). Sergeant Christopher testified that other individuals present at

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the gym noticed Binkley and indicated there might be something wrong or that she

was “high.” (Id. at 6).

{¶11} Sergeant Christopher continued to observe Binkley as she nearly fell

down while she was going into the parking lot, then he saw her “stagger[]” back to

her car and sit in it for “some time.” (Id. at 5). As a result of his observations,

Sergeant Christopher contacted Sergeant Lucas Turpin of the St. Mary’s Police

Department, who was on duty at the time, to express concern about Binkley.

Sergeant Christopher identified the vehicle Binkley was in, which was an older truck

in “rough shape.” (Id. at 6).

{¶12} Sergeant Turpin received the message from Sergeant Christopher,

which included a description of the truck and a license plate number. Sergeant

Turpin responded to the area and eventually located the vehicle at a Shell gas station.

He observed Binkley getting into the truck at that time.

{¶13} Sergeant Turpin followed Binkley’s vehicle and observed garbage fly

out of the bed of her truck and onto the ground. Once he caught up to Binkley’s

vehicle and confirmed the license plate, he activated his overhead lights and initiated

a traffic stop.

{¶14} Sergeant Turpin testified that Binkley’s vehicle stopped “abruptly.”

(Tr. at 15). In fact, he testified that she stopped so quickly that he also had to stop

abruptly to avoid a collision with her. Further, Sergeant Turpin testified that when

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Binkley stopped, her right tires were just over the white fog line of the exit lane so

she was stopped somewhat in the lane despite having plenty of room to get out of

the lane on the right.

{¶15} Sergeant Turpin approached the vehicle and made contact with

Binkley, who only cracked her window “a couple inches.” (Id. at 16). As he spoke

with Binkley, he noticed that her speech was slurred and she was mumbling at times,

making it hard for him to understand. He also noticed that Binkley’s eyes were “very

constricted,” so he asked her to pull her glasses down. (Id.) When she did, he shined

his flashlight in her eyes and noticed that her eyes did not change at all, her pupils

remained extremely constricted.

{¶16} Sergeant Turpin asked Binkley if she was under the influence of

anything and Binkley stated that she had a medical marijuana card and she had

smoked earlier that day. Sergeant Turpin told Binkley that she was very fidgety and

asked her if she had used “meth.” Binkley responded that she had ADHD and

consumed a lot of coffee.

{¶17} Based on the totality of the circumstances, Sergeant Turpin felt

Binkley was possibly under the influence of some type of prescription drug or

narcotic, so he asked Binkley to step out of her vehicle to perform field sobriety

tests.2

2 Testimony at the suppression hearing continued, detailing the field sobriety tests and the information obtained from them such as Sergeant Turpin detecting six of six clues on the HGN test, six of eight clues on

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Analysis

{¶18} Binkley contends that when analyzing the totality of the

circumstances, the evidence did not support a reasonable suspicion that she was

intoxicated by drugs or narcotics. Thus she contends that it was improper for

Sergeant Turpin to ask her to get out of her vehicle and perform field sobriety tests.

{¶19} Binkley emphasizes that there was some evidence presented that was

not indicative of intoxication. For example, Sergeant Turpin did not observe any

erratic driving by Binkley, and Sergeant Turpin did not detect an odor of alcohol or

marijuana from inside the vehicle or from Binkley. She contends that these factors

should have weighed strongly against a reasonable suspicion to expand the traffic

stop into an OVI investigation.

{¶20} At the outset of our review, we disagree with Binkley’s assessment of

the record with regard to her driving. Sergeant Turpin testified that Binkley stopped

abruptly and that she stopped unusually in the road, with her right tires just over the

white fog line. While these driving issues alone might not be indicative of any

specific type of intoxication, they are relevant when combined with the remainder

of the totality of the circumstances.

{¶21} The totality of the circumstances in this case included the observations

of Sergeant Christopher, which were relayed to Sergeant Turpin. See State v.

the walk-and-turn test, and three of four clues on the one-leg-stand test; however, the field sobriety tests are not relevant to this appeal.

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Bearer, 9th Dist. Wayne No. 21AP0035, 2022-Ohio-4554, ¶ 15 (stating tips by

identified citizen informants may be considered highly reliable). The totality of the

circumstances also included Sergeant Turpin’s observations that Binkley had

slurred speech, that she was talking fast, that she was fidgety, and that her pupils

were not reactive when light was shined in her eyes. Further, Binkley also admitted

to Sergeant Turpin that she had used medical marijuana earlier that day.

{¶22} When reviewing all the circumstances that were present, we find that

Sergeant Turpin had a reasonable suspicion to expand the scope of the traffic stop

to an OVI investigation and to ask her to perform field sobriety tests. While Binkley

attempts to have certain factors weigh more strongly in her favor, or to have certain

factors viewed in isolation, our review concerns the totality of the circumstances,

which supports expansion of the traffic stop here. State v. Carpenter, 3d Dist.

Auglaize No. 2-22-20, 2023-Ohio-1702, ¶ 15. Therefore, Binkley’s assignment of

error is overruled.

Conclusion

{¶23} Having found no error prejudicial to Binkley in the particulars

assigned and argued, her assignment of error is overruled and the judgment of the

Auglaize County Municipal Court is affirmed.

MILLER, P.J. and WILLAMOWSKI, J., concur. /jlr -9-