State v. Curfman

2020 Ohio 5632

• Court: Ohio Court of Appeals
• Decided: December 8, 2020
• Docket: 2020CA00082
• Status: Published

Opinion

[Cite as State v. Curfman, 2020-Ohio-5632.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : TANNER CURFMAN, : Case No. 2020CA00082 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, Case No. 2019-TRC-6896

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 8, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KASSIM J. AHMED RONALD D. YARWOOD Assistant Prosecuting Attorney EDWARD A. CZOPUR Massillon Law Department DeGenova & Yarwood, Ltd. Two James Duncan Plaza 42 North Phelps St. Massillon, Ohio 44646 Youngstown, Ohio 44503 Stark County, Case No. 2020CA00082 2

Baldwin, J.

{¶1} Defendant-appellant Tanner Curfman appeals from the denial by the

Massillon Municipal Court of his Motion to Suppress. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 31, 2019, appellant was cited for a littering offense in violation

of R.C. 4511.82, a minor misdemeanor, failure to wear a safety belt in violation of R.C.

4513.263(B)(1), a minor misdemeanor, and operating a motor vehicle under the

influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), a

misdemeanor of the first degree. At his arraignment on September 4, 2019, appellant

entered a plea of not guilty to the charges.

{¶3} On October 24, 2019, appellant filed a Motion to Suppress, arguing, in part,

that there was no legal cause to stop or detain him and that the Trooper did not have the

right to ask appellant to perform field sobriety tests. A supplement to the motion was filed

on October 31, 2019. A hearing on the motion was held on December 12, 2019. At the

beginning of the hearing, defense counsel agreed to limit his motion to only the issue of

reasonable suspicion to request field sobriety testing.

{¶4} At the hearing, Trooper Evan Hill testified that he was in a marked cruiser

and in uniform on August 31, 2019 at approximately 3:30 a.m. when he observed a can

falling from appellant’s window. The Trooper decided to follow appellant to see if he threw

another can out of the window or started committing any traffic violations. Trooper Hill

testified that he observed appellant’s vehicle changing lanes to the right and then Stark County, Case No. 2020CA00082 3

immediately back to the left before turning into or putting a signal on to turn into an

apartment complex. He testified that this struck him as unusual.

{¶5} Trooper Hill testified that he then pulled appellant over and that when he

made contact with appellant, he observed a strong odor of an alcoholic drink emitting

from this vehicle and he observed that appellant’s eyes were red and bloodshot. When

the Trooper shone his light into appellant’s eyes, appellant’s pupils reacted slowly. When

he asked appellant if he had consumed any alcoholic drinks, appellant said that he had

consumed two twisted teas, which are alcoholic beverages. Appellant told the Trooper

that he was coming from a bar and grill in Belden Village called BW3s. Based on the

observations above, Trooper Hill ordered appellant from his vehicle for field sobriety

testing.

{¶6} On cross-examination, Trooper Hill testified that appellant had signaled and

changed lanes correctly both times and pulled over immediately when directed to do so.

Trooper Hill admitted that there was nothing in his narrative about appellant’s pupils and

that there was nothing in the narrative about red bloodshot eyes. He later testified that it

was on a different page of his narrative and that he recorded appellant’s red bloodshot

eyes after appellant was arrested. Trooper Hill admitted that he never asked appellant for

his license and/or proof of insurance and that he never performed a “divided attention

test”1 before conducting filed sobriety testing as he was trained to do.

{¶7} Trooper Hill testified that he documented appellant’s bloodshot eyes after

he had decided to do the breath test. He admitted that red bloodshot eyes had been

removed as an indication of alcohol impairment. Trooper Hill testified that he had a chance

1 Divided attention tests involve a mental and a physical task at the same time. Stark County, Case No. 2020CA00082 4

to talk with the Prosecutor about the issues that defense counsel was going to raise and

that some of the things defense counsel brought up were not necessarily in his report.

{¶8} The trial court, at the conclusion of the hearing, denied appellant’s Motion

to Suppress. The trial court found that the stop was valid based on a criminal violation

known as littering. The trial court further stated, in relevant part, as follows:

{¶9} “I find that the stop was proper because the can left the vehicle’s car and

the officer can stop for that. He observed a strong odor of alcoholic beverage, red

bloodshot eyes. I think at this time at 3:30 in the morning in the Belden Village um that’s

one of the indicators um even though they may have thrown that out. … red bloodshot

eyes to a normal person, forget about being a State trooper who is trained, but we as

individuals would realize it that some people may have indicators of alcohol impairment

um admission to drinking and then leaving BW3’s. The evidence factors talk about

location, time of day, whether it’s a weekend or not only weekend a um Saturday or

Sunday. I would say based on that and we just had recent case come out of the Fifth

District that indicated the evidence factors and of course I had to leave that one back…but

I’m going to find that he officer had every reason to bring the defendant, Mr. Curfman, out

of the vehicle to do the standardized field sobriety tests even though Defense has made

a very good argument that he may have not done a very good job cross-examining the

arresting officer and the officer found that the defendant was very cooperative. For these

reasons, I’m going to deny the Motion to Suppress”.

{¶10} Transcript at 42-43. The trial court’s decision was memorialized in an Entry

filed on December 12, 2019. Stark County, Case No. 2020CA00082 5

{¶11} Thereafter, appellant entered a plea of no contest to all charges. The plea

of no contest was accepted by the trial court and the trial court found appellant guilty.

Appellant was sentenced on March 12, 2020.

{¶12} Appellant now raises the following assignment of error on appeal:

{¶13} “I. THE TRIAL COURT ERRED IN FINDING THAT THE TROOPER HAD

REASONABLE SUSPICION TO CONDUCT FIELD SOBRIETY TESTING AND

THEREBY DENYING APPELLANT’S MOTION TO SUPPRESS.”

I

{¶14} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Suppress. We disagree.

{¶15} Appellate review of a trial court's decision to deny

a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial

court assumes the role of trier of fact and, as such, is in the best position to resolve

questions of fact and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148,

154, 1996-Ohio-134, 661 N.E.2d 1030. A reviewing court is bound to accept the trial

court's findings of fact if they are supported by competent, credible evidence. State v.

Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these

facts as true, the appellate court must independently determine as a matter of law, without

deference to the trial court's conclusion, whether the trial court's decision meets the

applicable legal standard. State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th

Dist.1993), overruled on other grounds. Stark County, Case No. 2020CA00082 6

{¶16} There are three methods of challenging a trial court's ruling on

a motion to suppress on appeal. First, an appellant may challenge the trial court's finding

of fact. In reviewing a challenge of this nature, an appellate court must determine whether

the trial court's findings of fact are against the manifest weight of the evidence. See State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See Williams,

supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate

or final issues raised in a motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

{¶17} Appellant specifically contends that the trial court erred by finding that

Trooper Hill had reasonable suspicion to conduct field sobriety tests. In reviewing whether

field sobriety testing was proper, we apply a “totality of the circumstances” approach. See,

e.g., State v. Locker, 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-4953, ¶ 36,

citing State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).

{¶18} “Requiring a driver to submit to a field sobriety test constitutes a seizure

within the meaning of the Fourth Amendment. Courts have generally held that the

intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer

therefore need only have reasonable suspicion that the driver is under the influence of

alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey Stark County, Case No. 2020CA00082 7

No.2009-CA-28, 2010-Ohio-1111, ¶ 17, citing State v. Knox, 2nd Dist. Greene No.2005-

CA-74, 2006-Ohio-3039.

{¶19} An officer may not request a motorist to perform field sobriety tests unless

the request is independently justified by reasonable suspicion based upon articulable

facts that the motorist is intoxicated. State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d

761 (1998), citing State v. Yemma, 11th Dist. Portage App. No. 95-P-0156, 1996 WL

495076 (Aug. 9, 1996). “Reasonable suspicion is “* * * something more than an inchoate

or unparticularized suspicion or hunch, but less than the level of suspicion required for

probable cause.” State v. Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997).

{¶20} The Supreme Court of Ohio in State v. Batchili, 113 Ohio St.3d 403, 2007-

Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus found: “The ‘reasonable and

articulable’ standard applied to a prolonged traffic stop encompasses the totality of the

circumstances, and a court may not evaluate in isolation each articulated reason for the

stop.” Additionally, “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.” Village of Kirtland Hills v.

Strogin, 6th Dist. Lake App. No.2005-L-073, 2006-Ohio-1450, ¶ 13, citing, Village of

Waite Hill v. Popovich, 6th Dist. Lake App. No.2001-L-227, 2003-Ohio-1587, ¶ 14.

{¶21} In the case sub judice, based on the totality of the circumstances, we find

that the Trooper had reasonable suspicion to conduct field sobriety tests on appellant.

We note that appellant does not argue that the stop of his motor vehicle after appellant

was observed throwing a can out of the window was improper. Stark County, Case No. 2020CA00082 8

{¶22} As is stated above, Trooper Hill testified that he observed appellant make

two abrupt lane changes in quick succession, which he said was “unusual.” He testified

that when he approached appellant’s vehicle at approximately 3:30 a.m., he “observed a

strong odor of an alcoholic beverage emitting from [appellant’s] vehicle…” Transcript at

14. Appellant’s eyes were red and bloodshot and his pupils reacted slowly. Trooper Hill

testified that “the reaction to light being slowed um could be an indicator of impairment…”

Transcript at 15. Appellant told the Trooper that he had consumed two twisted teas, which

are alcoholic, and that he was coming from a bar and grill. Moreover, the Trooper testified

that when appellant exited his vehicle, he “reached to grab his door to close it um he

actually missed the first time and had to re-reach with his hand to grab his door again to

close it.” Transcript at 18. We find that the trial court, based on the totality of the

circumstances, did not err in denying appellant’s Motion to Suppress.

{¶23} Based on the foregoing, appellant’s sole assignment of error is overruled. Stark County, Case No. 2020CA00082 9

{¶24} Accordingly, the judgment of the Massillon Municipal Court is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.