[Cite as State v. Hays, 2020-Ohio-2919.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29506
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE TERENCE HAYS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 14 12 3781(B)
DECISION AND JOURNAL ENTRY
Dated: May 13, 2020
CARR, Judge.
{¶1} Defendant-Appellant Terence Hays appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} On December 17, 2014, Troopers Rick Caraway and Eric Golias were training with
Sergeant Stacy Arnold in criminal interdiction. The three were in a marked cruiser stationed in
the median area of the Ohio turnpike facing eastbound traffic. Sergeant Arnold was in the driver’s
seat. There were three lanes of eastbound traffic in the area where they were stationed. They
observed a silver vehicle traveling in the center lane going 65 m.p.h. in a 70-m.p.h. zone. The
driver, who was subsequently identified as Hays, was looking straight ahead and the front seat
passenger appeared to be looking down at the floorboards. After the vehicle passed the cruiser,
the vehicle braked and slowed down more. The vehicle had Nebraska plates. 2
{¶3} Sergeant Arnold, after talking to the two other troopers, left the median and began
following the silver vehicle. Trooper Caraway observed the silver vehicle drift over into the right
lane for approximately 30 to 40 yards and then drift back. After observing the traffic violation,
Sergeant Arnold activated the cruiser’s lights and sirens and initiated a traffic stop. The silver
vehicle pulled over.
{¶4} Trooper Caraway went up towards the silver vehicle and motioned Hays to come
to Trooper Caraway. Hays grabbed an envelope from the visor of the silver car and jogged to
Trooper Caraway. Hays produced his license, registration, and proof of insurance. While Hays
had Nebraska plates, his license was issued in Colorado. Hays explained that he had a house in
Colorado and that he and the passenger were driving to Boston to visit friends for the holidays.
Trooper Caraway then gave the information to Trooper Golias so that Trooper Golias and Sergeant
Arnold could run the information.
{¶5} Trooper Caraway then approached the passenger, who was looking down at a tablet
on her lap. When he tapped on the window, the passenger looked up and appeared very startled.
The passenger rolled down her window and provided Trooper Caraway with her New Jersey
license. She told Trooper Caraway that they were heading to Boston for a vacation and that they
were staying at a hotel, but she did not know which one.
{¶6} Trooper Caraway was concerned that, inter alia, Hays’ and the passenger’s stories
differed and that they were not on the most direct route to Boston. Trooper Caraway returned to
the cruiser and had Hays return to his vehicle. Trooper Caraway discussed what he had learned
with Trooper Golias and Sergeant Arnold. Trooper Caraway then requested that a K-9 be
dispatched to the scene. 3
{¶7} When the K-9 arrived on the scene, the criminal history checks had not come back
yet. The K-9 was walked around the vehicle and the dog alerted on the trunk area. The vehicle
was then searched and over 200 pounds of marijuana was recovered from the vehicle. According
to Trooper Caraway, after the K-9 alerted, the criminal history check came back indicating that
both Hays and the passenger had histories of trafficking in narcotics.
{¶8} An indictment was filed February 2015, charging Hays with one count of
trafficking in marijuana and one count of possession of marijuana. Both counts included a
forfeiture specification. Hays filed a motion to suppress/motion in limine. Hays challenged the
basis of the stop and the length of the detention. A hearing was held on the motion. After the
hearing, Hays filed a supplemental brief. Thereafter, the trial court issued an entry denying the
motion to suppress.
{¶9} Ultimately, Hays entered a plea of no contest to the indictment. At the time of
sentencing, the trial court merged the possession count into the count for trafficking. Hays was
sentenced to five years in prison.
{¶10} Hays has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S MOTION IN LIMINE, MOTION TO SUPPRESS AND FAILED TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF APPELLANT’S ARREST ON DECEMBER 17, 2014, ALL IN VIOLATION OF APPELLANT’S RIGHTS AS SECURED BY AMEND. IV, U.S. CONST. AND APPELLANT’S RIGHTS TO DUE PROCESS IN AMEND. V, U.S. CONST. AND HIS RIGHTS AS SECURED UNDER ART. I, SEC. 10 OF THE OHIO CONSTITUTION.
{¶11} Hays argues that the trial court erred in denying his motion to suppress.
Specifically, Hays maintains that the duration of the stop was violative of Rodriguez v. United 4
States, 575 U.S. 348 (2015). Hays essentially asserts that the request for Hays’ and the passenger’s
criminal histories was improperly delayed to allow time for the K-9 to arrive and conduct a sniff
of the vehicle. Hays also argues that the officers lacked reasonable suspicion to extend the duration
of the stop in order to conduct the K-9 sniff of the vehicle.
{¶12} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering 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 (1992). Thus, a reviewing court “must accept the trial court's findings of fact if they are
supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124
Ohio App.3d 706, (4th Dist. 1997).
{¶13} In Rodriguez, the Supreme Court addressed “whether the Fourth Amendment
tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez at 350. The Court
held “that a police stop exceeding the time needed to handle the matter for which the stop was
made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by
a police-observed traffic violation, therefore, become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission of issuing a ticket for the violation.” (Internal
quotations and citations omitted.) Id.
{¶14} Here, not only did Trooper Caraway and Sergeant Arnold testify at the suppression
hearing, but the video of the traffic stop was also played and admitted into evidence. That video
is referenced in the trial court’s entry denying the motion to suppress and also in Hays’ brief on 5
appeal. Unfortunately, that video is not a part of this Court’s record on appeal. In fact, none of
the exhibits admitted at the suppression hearing are part of this Court’s record on appeal. Notably,
the notice from the clerk of courts, filed in this Court’s record, specifically notified the parties that
no exhibits were filed. This notice was also sent to the attorneys of record.
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[Cite as State v. Hays, 2020-Ohio-2919.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29506
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE TERENCE HAYS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 14 12 3781(B)
DECISION AND JOURNAL ENTRY
Dated: May 13, 2020
CARR, Judge.
{¶1} Defendant-Appellant Terence Hays appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} On December 17, 2014, Troopers Rick Caraway and Eric Golias were training with
Sergeant Stacy Arnold in criminal interdiction. The three were in a marked cruiser stationed in
the median area of the Ohio turnpike facing eastbound traffic. Sergeant Arnold was in the driver’s
seat. There were three lanes of eastbound traffic in the area where they were stationed. They
observed a silver vehicle traveling in the center lane going 65 m.p.h. in a 70-m.p.h. zone. The
driver, who was subsequently identified as Hays, was looking straight ahead and the front seat
passenger appeared to be looking down at the floorboards. After the vehicle passed the cruiser,
the vehicle braked and slowed down more. The vehicle had Nebraska plates. 2
{¶3} Sergeant Arnold, after talking to the two other troopers, left the median and began
following the silver vehicle. Trooper Caraway observed the silver vehicle drift over into the right
lane for approximately 30 to 40 yards and then drift back. After observing the traffic violation,
Sergeant Arnold activated the cruiser’s lights and sirens and initiated a traffic stop. The silver
vehicle pulled over.
{¶4} Trooper Caraway went up towards the silver vehicle and motioned Hays to come
to Trooper Caraway. Hays grabbed an envelope from the visor of the silver car and jogged to
Trooper Caraway. Hays produced his license, registration, and proof of insurance. While Hays
had Nebraska plates, his license was issued in Colorado. Hays explained that he had a house in
Colorado and that he and the passenger were driving to Boston to visit friends for the holidays.
Trooper Caraway then gave the information to Trooper Golias so that Trooper Golias and Sergeant
Arnold could run the information.
{¶5} Trooper Caraway then approached the passenger, who was looking down at a tablet
on her lap. When he tapped on the window, the passenger looked up and appeared very startled.
The passenger rolled down her window and provided Trooper Caraway with her New Jersey
license. She told Trooper Caraway that they were heading to Boston for a vacation and that they
were staying at a hotel, but she did not know which one.
{¶6} Trooper Caraway was concerned that, inter alia, Hays’ and the passenger’s stories
differed and that they were not on the most direct route to Boston. Trooper Caraway returned to
the cruiser and had Hays return to his vehicle. Trooper Caraway discussed what he had learned
with Trooper Golias and Sergeant Arnold. Trooper Caraway then requested that a K-9 be
dispatched to the scene. 3
{¶7} When the K-9 arrived on the scene, the criminal history checks had not come back
yet. The K-9 was walked around the vehicle and the dog alerted on the trunk area. The vehicle
was then searched and over 200 pounds of marijuana was recovered from the vehicle. According
to Trooper Caraway, after the K-9 alerted, the criminal history check came back indicating that
both Hays and the passenger had histories of trafficking in narcotics.
{¶8} An indictment was filed February 2015, charging Hays with one count of
trafficking in marijuana and one count of possession of marijuana. Both counts included a
forfeiture specification. Hays filed a motion to suppress/motion in limine. Hays challenged the
basis of the stop and the length of the detention. A hearing was held on the motion. After the
hearing, Hays filed a supplemental brief. Thereafter, the trial court issued an entry denying the
motion to suppress.
{¶9} Ultimately, Hays entered a plea of no contest to the indictment. At the time of
sentencing, the trial court merged the possession count into the count for trafficking. Hays was
sentenced to five years in prison.
{¶10} Hays has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S MOTION IN LIMINE, MOTION TO SUPPRESS AND FAILED TO SUPPRESS EVIDENCE SEIZED AS A RESULT OF APPELLANT’S ARREST ON DECEMBER 17, 2014, ALL IN VIOLATION OF APPELLANT’S RIGHTS AS SECURED BY AMEND. IV, U.S. CONST. AND APPELLANT’S RIGHTS TO DUE PROCESS IN AMEND. V, U.S. CONST. AND HIS RIGHTS AS SECURED UNDER ART. I, SEC. 10 OF THE OHIO CONSTITUTION.
{¶11} Hays argues that the trial court erred in denying his motion to suppress.
Specifically, Hays maintains that the duration of the stop was violative of Rodriguez v. United 4
States, 575 U.S. 348 (2015). Hays essentially asserts that the request for Hays’ and the passenger’s
criminal histories was improperly delayed to allow time for the K-9 to arrive and conduct a sniff
of the vehicle. Hays also argues that the officers lacked reasonable suspicion to extend the duration
of the stop in order to conduct the K-9 sniff of the vehicle.
{¶12} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering 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 (1992). Thus, a reviewing court “must accept the trial court's findings of fact if they are
supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124
Ohio App.3d 706, (4th Dist. 1997).
{¶13} In Rodriguez, the Supreme Court addressed “whether the Fourth Amendment
tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez at 350. The Court
held “that a police stop exceeding the time needed to handle the matter for which the stop was
made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by
a police-observed traffic violation, therefore, become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission of issuing a ticket for the violation.” (Internal
quotations and citations omitted.) Id.
{¶14} Here, not only did Trooper Caraway and Sergeant Arnold testify at the suppression
hearing, but the video of the traffic stop was also played and admitted into evidence. That video
is referenced in the trial court’s entry denying the motion to suppress and also in Hays’ brief on 5
appeal. Unfortunately, that video is not a part of this Court’s record on appeal. In fact, none of
the exhibits admitted at the suppression hearing are part of this Court’s record on appeal. Notably,
the notice from the clerk of courts, filed in this Court’s record, specifically notified the parties that
no exhibits were filed. This notice was also sent to the attorneys of record. It was Hays’ burden
on appeal to ensure that the record on appeal was complete. See State v. Filip, 9th Dist. Medina
No. 16CA0049-M, 2017-Ohio-5622, ¶ 16. Under these circumstances, we cannot properly
evaluate whether the trial court erred in concluding that Hays was not improperly detained as we
cannot review the video that documented the traffic stop. See id. “Thus, we are required to
presume regularity in the proceedings and affirm the trial court's judgment on that basis.” Id.
{¶15} Hays’ assignment of error is overruled on that basis.
III.
{¶16} Hays’ assignment of error is overruled. The judgment of the Summit County Court
of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 6
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
SCHAFER, J. CONCURS.
CALLAHAN, P. J. DISSENTING.
{¶17} When an appellant does not challenge the trial court’s findings of fact in a
suppression case, this Court may accept them as true and review the trial court’s legal conclusions
de novo. See State v. Hitsman, 9th Dist. Medina No. 18CA0015-M, 2018-Ohio-5315, ¶ 7-8. See
generally State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, citing State v. McNamara,
124 Ohio App.3d 706, 710 (4th Dist.1997). I agree that when an appellant fails to ensure that the
record on appeal contains everything necessary to review the assignments of error asserted, this
Court has no choice but to presume regularity and affirm. Knapp v. Edwards Laboratories, 61
Ohio St.2d 197, 199 (1980). On the other hand, when this Court can review an assignment of error
without reference to the missing parts of the record, we should do so.
{¶18} In this case, the trial court issued detailed findings of fact, which Mr. Hays did not
challenge. Those findings of fact are sufficient to permit this Court to review the legal issues
raised in his assignment of error. I would, therefore, address the merits of his argument.
{¶19} I respectfully dissent. 7
APPEARANCES:
LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.