[Cite as State v. Ebersole, 2012-Ohio-895.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00215 CHATHAM EBERSOLE : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Canton Municipal Court, Case No. 2011TRC4698
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDEN PAXOS MICHAEL A. BOSKE Assistant Canton City Prosecutor 122 Central Plaza North 218 Cleveland Avenue S.W., Ste. 700 Canton, OH 44702 Canton, OH 44701-4218 [Cite as State v. Ebersole, 2012-Ohio-895.]
Gwin, P.J.
{¶ 1} Appellant, Chatham Ebersole, appeals a judgment of the Canton
Municipal Court, Stark County, Ohio, overruling his motion to suppress.
{¶ 2} On June 18, 2011, appellant was cited by Trooper Evans of the Ohio State
Highway Patrol following a traffic stop. Appellant was charged with one count of
Operating a Motor Vehicle While under the Influence of Alcohol, a first-degree
misdemeanor, and one count of Failure to Drive in a Marked Lane a minor
misdemeanor.1
{¶ 3} On June 29, 2011, counsel for appellant filed a Demand for Discovery. On
July 8, 2011, appellee filed its response to appellant's discovery request. This response
was later supplemented by appellee on August 9, 2011.
{¶ 4} On July 26, 2011, appellant filed a Motion in Limine/Motion to Suppress.
On July 27, 2011, the trial court issued a Judgment Entry overruling appellant's Motion
in Limine/Motion to Suppress for failing to give sufficient notice of the specific legal and
factual grounds for the motion. The trial court gave appellant fourteen days to
supplement his motion.
{¶ 5} On August 4, 2011, appellant filed a Supplemental Motion to Suppress.
On August 17, 2011 without a hearing, the trial court overruled appellant’s supplemental
motion.
1 A Statement of the Facts underlying appellant’s original stop are unnecessary to our disposition of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be contained therein. Stark County, Case No. 2011-CA-00215 3
{¶ 6} On September 14, 2011, the Appellant entered a plea of no contest and
was sentenced to six (6) days in jail, twenty-five (25) hours community service and a six
(6) month license suspension.
{¶ 7} Appellant has timely appealed raising as his sole assignment of error,
{¶ 8} “I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S
MOTION TO SUPPRESS WITHOUT A HEARING.”
I.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has
accepted those facts as true, it must independently determine as a matter of law
whether the trial court met the applicable legal standard. See Burnside, supra, citing
State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,
generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That
is, the application of the law to the trial court's findings of fact is subject to a de novo Stark County, Case No. 2011-CA-00215 4
standard of review Ornelas, supra. Moreover, due weight should be given “to inferences
drawn from those facts by resident judges and local law enforcement officers.” Ornelas,
supra at 698, 116 S.Ct. at 1663.
{¶ 10} In his sole assignment of error, appellant argues the trial court erred by
overruling his Supplemental Motion to Suppress without a hearing on the basis that, on
its face, the motion was insufficiently specific. We agree.
{¶ 11} “The defendant must first challenge the validity of the alcohol test by way
of a pretrial motion to suppress; failure to file such a motion ‘waives the requirement on
the state to lay a foundation for the admissibility of the test results.’” Burnside at ¶ 24,
quoting State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. The motion to
suppress must notify the state and the trial court of the issues to be determined by
setting forth with sufficient particularity both the legal and factual bases for
inadmissibility. State v. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319(1994); see, also,
State v. Price, 11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 22; State v. Nicholson,
12th Dist. No. CA2003-10-106, 2004-Ohio-6666, at ¶ 9.
While courts vary in their determinations as to what
constitutes ‘sufficient particularity,’ at a minimum, an accused is
required to identify some section of the Ohio Administrative Code
that is implicated and/or make some sort of assertion that the State
failed to follow the proper standards in administering the breath
test. See [State v. Shindler] (holding that a virtual copy of the
sample motion to suppress contained in Ohio Driving Under the
Influence Law (1990) 136–137, Section 11. 16, a legal handbook, Stark County, Case No. 2011-CA-00215 5
that listed numerous allegations of violations of the OAC by the
State and provided the cite to the implicated OAC section was
stated with sufficient particularity); State v. Yeaples, 180 Ohio
App.3d 720, 907 N.E.2d 333, 2009–Ohio–184, at ¶ 14 (holding that
a motion originally containing twenty alleged violations of the OAC,
narrowed into ten allegations at the suppression hearing, that
included the specific OAC section and sub-section at issue was
stated with sufficient particularity); Norwood v. Kahn, 1st Dist. Nos.
C–060497, C–060498, and C–060499, 2007–Ohio–2799 (finding
that a motion containing a general allegation of non-compliance by
the State and a listing of applicable OAC sections alleged to have
been violated was stated with sufficient particularity).
State v. Minnick, 3rd Dist. No. 15-09-06, 2009-Ohio-5274, 2009 WL 3165581, ¶
12.
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[Cite as State v. Ebersole, 2012-Ohio-895.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00215 CHATHAM EBERSOLE : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Canton Municipal Court, Case No. 2011TRC4698
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDEN PAXOS MICHAEL A. BOSKE Assistant Canton City Prosecutor 122 Central Plaza North 218 Cleveland Avenue S.W., Ste. 700 Canton, OH 44702 Canton, OH 44701-4218 [Cite as State v. Ebersole, 2012-Ohio-895.]
Gwin, P.J.
{¶ 1} Appellant, Chatham Ebersole, appeals a judgment of the Canton
Municipal Court, Stark County, Ohio, overruling his motion to suppress.
{¶ 2} On June 18, 2011, appellant was cited by Trooper Evans of the Ohio State
Highway Patrol following a traffic stop. Appellant was charged with one count of
Operating a Motor Vehicle While under the Influence of Alcohol, a first-degree
misdemeanor, and one count of Failure to Drive in a Marked Lane a minor
misdemeanor.1
{¶ 3} On June 29, 2011, counsel for appellant filed a Demand for Discovery. On
July 8, 2011, appellee filed its response to appellant's discovery request. This response
was later supplemented by appellee on August 9, 2011.
{¶ 4} On July 26, 2011, appellant filed a Motion in Limine/Motion to Suppress.
On July 27, 2011, the trial court issued a Judgment Entry overruling appellant's Motion
in Limine/Motion to Suppress for failing to give sufficient notice of the specific legal and
factual grounds for the motion. The trial court gave appellant fourteen days to
supplement his motion.
{¶ 5} On August 4, 2011, appellant filed a Supplemental Motion to Suppress.
On August 17, 2011 without a hearing, the trial court overruled appellant’s supplemental
motion.
1 A Statement of the Facts underlying appellant’s original stop are unnecessary to our disposition of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be contained therein. Stark County, Case No. 2011-CA-00215 3
{¶ 6} On September 14, 2011, the Appellant entered a plea of no contest and
was sentenced to six (6) days in jail, twenty-five (25) hours community service and a six
(6) month license suspension.
{¶ 7} Appellant has timely appealed raising as his sole assignment of error,
{¶ 8} “I. THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S
MOTION TO SUPPRESS WITHOUT A HEARING.”
I.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has
accepted those facts as true, it must independently determine as a matter of law
whether the trial court met the applicable legal standard. See Burnside, supra, citing
State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,
generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That
is, the application of the law to the trial court's findings of fact is subject to a de novo Stark County, Case No. 2011-CA-00215 4
standard of review Ornelas, supra. Moreover, due weight should be given “to inferences
drawn from those facts by resident judges and local law enforcement officers.” Ornelas,
supra at 698, 116 S.Ct. at 1663.
{¶ 10} In his sole assignment of error, appellant argues the trial court erred by
overruling his Supplemental Motion to Suppress without a hearing on the basis that, on
its face, the motion was insufficiently specific. We agree.
{¶ 11} “The defendant must first challenge the validity of the alcohol test by way
of a pretrial motion to suppress; failure to file such a motion ‘waives the requirement on
the state to lay a foundation for the admissibility of the test results.’” Burnside at ¶ 24,
quoting State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. The motion to
suppress must notify the state and the trial court of the issues to be determined by
setting forth with sufficient particularity both the legal and factual bases for
inadmissibility. State v. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319(1994); see, also,
State v. Price, 11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 22; State v. Nicholson,
12th Dist. No. CA2003-10-106, 2004-Ohio-6666, at ¶ 9.
While courts vary in their determinations as to what
constitutes ‘sufficient particularity,’ at a minimum, an accused is
required to identify some section of the Ohio Administrative Code
that is implicated and/or make some sort of assertion that the State
failed to follow the proper standards in administering the breath
test. See [State v. Shindler] (holding that a virtual copy of the
sample motion to suppress contained in Ohio Driving Under the
Influence Law (1990) 136–137, Section 11. 16, a legal handbook, Stark County, Case No. 2011-CA-00215 5
that listed numerous allegations of violations of the OAC by the
State and provided the cite to the implicated OAC section was
stated with sufficient particularity); State v. Yeaples, 180 Ohio
App.3d 720, 907 N.E.2d 333, 2009–Ohio–184, at ¶ 14 (holding that
a motion originally containing twenty alleged violations of the OAC,
narrowed into ten allegations at the suppression hearing, that
included the specific OAC section and sub-section at issue was
stated with sufficient particularity); Norwood v. Kahn, 1st Dist. Nos.
C–060497, C–060498, and C–060499, 2007–Ohio–2799 (finding
that a motion containing a general allegation of non-compliance by
the State and a listing of applicable OAC sections alleged to have
been violated was stated with sufficient particularity).
State v. Minnick, 3rd Dist. No. 15-09-06, 2009-Ohio-5274, 2009 WL 3165581, ¶
12.
{¶ 12} In the case sub judice, appellant’s supplemental motion specifically cites
to the statute and regulations he contends were not followed. The supplemental motion
further provided the following specific, factual allegations,
The Defendant alleges that the State's procedures in this
case were not in substantial compliance with the requirements set
forth in O.A.C. 3701.53. Specifically the Defendant alleges that the
urine sample in this case was not refrigerated while not in transit
and that no documentation of the sample's chain of custody has
been provided. The lab test was not performed until two weeks Stark County, Case No. 2011-CA-00215 6
after the sample was taken. Furthermore, the Defendant alleges
that the positive result in this case was not confirmed by one or
more dissimilar analytical techniques or methods.
{¶ 13} State v. Neuhoff, 119 Ohio App.3d 501, 695 N.E.2d 825(5th Dist. 1997)
cited by the trial court is distinguishable. First, unlike the case at bar the trial court in
Neuhoff did hold an evidentiary hearing on the defendant’s motion to suppress. 119
Ohio App.3d at 509. Further, we have also noted,
Once the state has produced enough evidence at the hearing on a
motion to suppress to create a reasonable inference that the regulation at
issue was properly followed, the accused must do more than merely
assert that it is hypothetically possible some more specific aspect of the
regulation was not followed. The accused must have a factual basis for
the assertion. State v. Embry supra 2004-Ohio-2535 at ¶ 26. One way this
factual basis can be obtained is during cross-examination at the hearing
on the motion. [Id.]. A defendant who files a boilerplate motion with a bare
minimum factual basis will need to engage in cross-examination if he
wishes to require the state to respond more than generally to the issues
raised in the motion. [Id. at ¶ 27]* * *
State v. Raleigh, 5th Dist. No. 2007-CA-31, 2007-Ohio-5515, 2007 WL 2994237,
¶74.
{¶ 14} Accordingly, under the facts of this case we find appellant fully complied
and did set forth some underlying facts in the memorandum and the supplemental
memorandum in support of the motion to suppress. Appellant's motion and Stark County, Case No. 2011-CA-00215 7
supplemental memorandum stated with particularity the statues and regulations he
alleged were violated, set forth some underlying factual basis to warrant a hearing, and
gave the prosecutor and court sufficient notice of the basis of his challenge. Shindler, 70
Ohio St.3d at 70, 636 N.E.2d 319.
{¶ 15} Appellant’s sole assignment of error is sustained.
{¶ 16} The judgment of the Canton Municipal Court, Stark County, Ohio
overruling appellant's motion to suppress is vacated. This cause is remanded to that
court for further proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Hoffman, J., and
Edwards, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JULIE A. EDWARDS [Cite as State v. Ebersole, 2012-Ohio-895.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CHATHAM EBERSOLE : : : Defendant-Appellant : CASE NO. 2011-CA-00215
For the reasons stated in our accompanying Memorandum-Opinion, The
judgment of the Canton Municipal Court, Stark County, Ohio overruling appellant's
motion to suppress is vacated. This cause is remanded to that court for further
proceedings in accordance with our opinion and the law. Costs to appellee.
_________________________________ HON. JULIE A. EDWARDS