State v. Kirby

2024 Ohio 2543

Opinion

[Cite as State v. Kirby, 2024-Ohio-2543.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2023 CA 00054 ALYSSA KIRBY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield Municipal Court, Case No. TRC 2305314

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 1, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW D. SEMELSBERGER AARON CONRAD City of Lancaster Law Director Conrad / Wood & City Prosecutor's Office 120 East Main Street, Suite #200 136 West Main Street Lancaster, Ohio 43130 P.O. Box 1008 Lancaster, Ohio 43130 Fairfield County, Case No. 2023 CA 00054 2

Hoffman, J. {¶1} Defendant-appellant Alyssa Kirby appeals the judgment entered by the

Fairfield Municipal Court convicting her following her plea of no contest to operating a

vehicle while intoxicated (hereinafter “OVI”) ,(R. C. 4511.19(A)(1)(a)), and sentencing her

accordingly. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} At 2:54 a.m. in Lancaster, Ohio, on July 29, 2023, Deputy Justin Mann of

the Fairfield County Sheriff’s Department was traveling behind a vehicle driven by

Appellant. The deputy observed the vehicle make several rapid stops at stop signs, then

sit stationary at the stop signs for ten to fifteen seconds before proceeding. Deputy Mann

observed Appellant’s vehicle make a wide left turn, nearly striking the curb. The deputy

also noticed Appellant’s rear license plate was attached with only one bolt on the right

side, was bent at the top, and was hanging down with its left side against the bumper of

the vehicle. Deputy Mann could read the number on the license plate and see the

registration sticker.

{¶3} Deputy Mann stopped Appellant’s vehicle because the license plate was

not properly attached. Appellant stopped the vehicle approximately fifteen seconds after

the deputy activated his overhead lights, turning into an alley rather than pulling to the

side of the road. Deputy Mann detected a strong odor of alcohol coming from inside the

vehicle. The deputy observed Appellant’s eyes were bloodshot and glassy, her speech

was slurred or “thick tongued,” and she had poor finger dexterity when retrieving her

license and registration.

{¶4} Deputy Mann asked Appellant to step out of the vehicle in order to conduct

field sobriety tests, and to separate her from the passenger to determine if the odor of Fairfield County, Case No. 2023 CA 00054 3

alcohol was coming from Appellant. Upon separating Appellant from her passenger, he

detected a moderate odor of alcohol coming from her breath. Appellant admitted to

having a few drinks. Based on her performance on field sobriety tests, Deputy Mann

placed Appellant under arrest for OVI.

{¶5} Appellant was charged with OVI, operating a vehicle with a prohibited

breath alcohol content, and improper display of a license plate. Appellant moved to

suppress the evidence obtained as a result of the stop on the basis the officer lacked a

reasonable suspicion of criminal activity to justify stopping the vehicle, and further lacked

a reasonable suspicion of criminal activity to justify detaining her for field sobriety tests.

Following a hearing, the trial court overruled the motion to suppress. Appellant entered

a plea of no contest to OVI, and the remaining charges were dismissed. The trial court

convicted her upon her plea and sentenced her, in part, to 180 days in jail with 177 days

suspended, with successful completion of 72 hours of a Driver Intervention Program in

lieu of serving the three days in jail. It is from the December 5, 2023 judgment of the trial

court Appellant prosecutes her appeal, assigning as error:

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS.

{¶6} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 2003-Ohio-5372, ¶ 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, 1995-Ohio-243; Fairfield County, Case No. 2023 CA 00054 4

State v. Fanning, 1 Ohio St.3d 19, 20 (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, (4th

Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, (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, (4th Dist. 1997); See, generally, United States

v. Arvizu, 534 U.S. 266 (2002); Ornelas v. United States, 517 U.S. 690, (1996). That is,

the application of the law to the trial court's findings of fact is subject to a de novo 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.

{¶7} Appellant first argues the trial court applied the incorrect legal standard to

the traffic stop. The trial court found the officer had a reasonable suspicion of criminal

activity to justify stopping the vehicle. Appellant argues because the stop was a non-

investigative stop rather than an investigative stop, the officer had to have probable cause

to stop the vehicle, citing Dayton v. Erickson, 76 Ohio St. 3d 3 (1996) and Alabama v.

White, 496 U.S. 325 ((1990).

{¶8} Neither case cited by Appellant directly distinguishes an investigatory stop

from a non-investigatory stop, specifically requiring probable cause for a non-

investigatory stop. In Erickson, the officer had probable cause for the stop, and the Ohio

Supreme Court’s opinion considered whether the stop was valid if the stop was pretextual

because the officer had an ulterior motive for the stop. In White, the United States Fairfield County, Case No. 2023 CA 00054 5

Supreme Court considered whether an informant’s tip was sufficiently reliable to support

a reasonable suspicion of criminal activity to justify a stop.

{¶9} The White court did not overrule Delaware v. Prouse, 440 U.S. 648, 663

(1979), in which the court held “except in those situations in which there is at least

articulable and reasonable suspicion that a motorist is unlicensed or that an automobile

is not registered, or that either the vehicle or an occupant is otherwise subject to seizure

for violation of law, stopping an automobile and detaining the driver in order to check his

driver's license and the registration of the automobile are unreasonable under the Fourth

Amendment.” Subsequent to Erickson, the Ohio Supreme Court recognized while the

officer in Erickson possessed probable cause for the stop, Erickson did not require

probable cause:

Appellant argues that an officer is warranted in stopping a vehicle

only if the officer has probable cause to believe that a motorist has

committed a crime. Appellant cites Dayton v. Erickson (1996), 76 Ohio

St.3d 3, 665 N.E.2d 1091, in which we held that “a traffic stop based upon

probable cause is not unreasonable, and that an officer who makes a traffic

stop based on probable cause acts in an objectively reasonable manner.”

Id. at 11, 665 N.E.2d 1091. Further, we held that “[w]here a police officer

stops a vehicle based on probable cause that a traffic violation has occurred

or was occurring, the stop is not unreasonable under the Fourth

Amendment to the United States Constitution even if the officer had some Fairfield County, Case No. 2023 CA 00054 6

ulterior motive for making the stop, such as a suspicion that the violator was

engaging in more nefarious criminal activity.” Id. at syllabus.

Appellant's reliance on Erickson, and on Whren v. United States

(1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, is misplaced.

Probable cause is certainly a complete justification for a traffic stop, but we

have not held that probable cause is required. Probable cause is a stricter

standard than reasonable and articulable suspicion. State v. Evans (1993),

67 Ohio St.3d 405, 411, 618 N.E.2d 162. The former subsumes the latter.

Just as a fact proven beyond a reasonable doubt has by necessity been

proven by a preponderance, an officer who has probable cause necessarily

has a reasonable and articulable suspicion, which is all the officer needs to

justify a stop. Erickson and Whren do not hold otherwise.

{¶10} State v. Mays, 2008-Ohio-4539, ¶¶ 22-23.

{¶11} Citing Mays, this Court has emphasized the appropriate legal standard for

a traffic stop is reasonable articulable suspicion, and probable cause is not required.

State v. Miller, 2012-Ohio-6147 (5th Dist.). We find the trial court applied the correct legal

standard in this case.

{¶12} Appellant next argues the trial court erred in finding the officer had a

reasonable suspicion of criminal activity to justify stopping her vehicle based on her

license plate being improperly secured, relying on this Court’s opinion in State v.

Culberson, 2012-Ohio-448 (5th Dist.).

{¶13} R.C. 4503.21 provides: Fairfield County, Case No. 2023 CA 00054 7

(A)(1) No person who is the owner or operator of a motor vehicle

shall fail to display in plain view on the rear of the motor vehicle a license

plate that displays the distinctive number and registration mark assigned to

the motor vehicle by the director of public safety, including any county

identification sticker and any validation sticker when required by and issued

under sections 4503.19 and 4503.191 of the Revised Code. However, a

commercial tractor shall display the license plate on the front of the

commercial tractor.

(2) The license plate shall be securely fastened so as not to swing,

and shall not be covered by any material that obstructs its visibility.

{¶14} In Culberson, the license plate was securely fastened by one screw in the

upper corner. The plate was canted, but was not swinging when the officer stopped the

car. The trial court found the officer did not have a reasonable suspicion of criminal

activity to justify stopping the vehicle because the plate was not swinging, and was unable

to swing. In so holding, the trial court distinguished the case from the holding in State v.

Dickerson, 2008-Ohio-6544 (2nd Dist.):

In the case at bar, the trial court distinguished Dickerson on the basis

that although the plate in that case was not in the process of swinging when

observed by the officer, one end of the plate had fallen from the bolt and

was resting on the vehicle bumper. Thus, the officer was able to observe

before making the stop in Dickerson that the plate was able to swing and Fairfield County, Case No. 2023 CA 00054 8

was only stopped by resting upon the vehicle bumper. “Thus, in Dickerson,

the plate was not ‘securely fastened’ so as not to swing.”

{¶15} Culberson at ¶25.

{¶16} This Court affirmed, holding as follows:

The language of R.C. 4503.21(A) is clear and unambiguous on its

face and needs no interpretation. Had the General Assembly intended to

prohibit a “canted” license plate, a “slanted” license plate, or “a license plate

secured by only one of two bolts,” it could have easily done so by including

the words in the statute. To find otherwise would require this court to rewrite

R.C. 4503.21(A) to insert words such as “canted,” “slanted,” “askew,” “ajar,”

or “held in place by one bolt” into that section of the statute.

{¶17} Id. at ¶ 31.

{¶18} Judge Edwards dissented, stating the plate had obviously swung from its

original position, and the fact the plate was lodged and unable to continue swinging, as

opposed to the plate in Dickerson which was able to continue swinging, was a distinction

without a difference. Id. at ¶ 37.

{¶19} In State v. Sheets, 2020-Ohio-6801 (5th Dist.), this Court revisited

Culberson. In Sheets, the officer testified the plate “had already swung or kind of fell, with

the top right falling down, it wasn’t secured.” The officer noted the plate was stopped

from slanting further because of indents on the plate bracket, noting the right corner of Fairfield County, Case No. 2023 CA 00054 9

the side bracket was the only thing preventing the plate from swinging further down. This

Court found the officer had a reasonable suspicion of criminal activity to justify stopping

the vehicle, distinguishing Culberson as follows:

In affirming the trial court's decision, the majority of this Court in

Culberson discussed the case relied upon by the trial court in the case sub

judice, State v. Dickerson, 179 Ohio App.3d 754, 2008-Ohio-6544. The

majority in Culberson quoted the distinction drawn by the trial court from the

Dickerson case where the license plate was “resting” on the vehicle bumper,

and “able to swing.” As pointed out by Judge Edwards in her dissent in

Culberson, the trial court further distinguished Dickerson because

Culberson's license place was “lodged” against the bumper, “preventing it

from continued swinging.” (Emphasis added). Judge Edwards noted the

license plate's “potential to swing” in concluding the trial court in Culberson

erred in suppressing the evidence of drugs.

We disagree with Judge Edwards’ conclusion whether the license

plate was lodged and prevented from continued swinging versus merely

resting on the bumper with the potential to swing is a “distinction without a

difference.” It appears in the case sub judice, Appellant's license plate was

not lodged and prevented from swinging as was the case in Culberson, but

was stopped from slanting down any further because of the indents in the

license plate bracket (more analogous to “resting” as compared to “lodged”) Fairfield County, Case No. 2023 CA 00054 10

and had the potential to swing as demonstrated by Appellant's being able

to put the license plate back up.

{¶20} Sheets at ¶¶ 14-15.

{¶21} Deputy Mann testified he observed the license plate on the rear of

Appellant’s vehicle was “only held on by one bolt and the top of it was bent forward so it

was improperly displayed.” Supp. Tr. 7-8. As noted by the trial court, the picture of the

plate admitted into evidence at the hearing showed it had fallen on one side, and was

resting against the bumper. We find this case is analogous to Sheets and to Dickerson,

in which the license plate was not securely fastened but was merely resting on the

bumper, with the potential to swing. We find the trial court did not err in finding the deputy

had a reasonable suspicion of criminal activity to justify the stop based on the condition

of the license plate.

{¶22} Finally, Appellant argues the trial court lacked a reasonable suspicion of

criminal activity to further detain her to conduct field sobriety tests.

{¶23} A request made of a validly detained motorist to perform field sobriety tests

is generally outside the scope of the original stop, and must be separately justified by

other specific and articulable facts showing a reasonable basis for the request. State v.

Toure, 2023-Ohio-2559 (5th Dist.), ¶ 21. it is well settled Ohio law where a stop is initiated

and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of

intoxication, such as an admission of having consumed alcohol, reasonable suspicion

exists. State v. Bright, 5th Dist. Guernsey No. 2009-CA-28, 2010-Ohio-1111, ¶ 22. Fairfield County, Case No. 2023 CA 00054 11

{¶24} In the instant case, Deputy Mann observed issues with Appellant’s driving

which did not rise to the level of violation of traffic laws, but in his experience were indicia

of impaired driving. Appellant rapidly came to a stop when approaching stop signs, but

would then sit at the sign without proceeding for ten to fifteen seconds. He observed

Appellant make a wide left turn, which was not a lane violation because there was only

one lane on the roadway, but her vehicle traveled all the way to the curb before correcting

back to the lane of travel. After stopping the vehicle based on the license plate violation,

the officer noted a strong odor of alcohol coming from the vehicle. During his conversation

with Appellant, Deputy Mann noted she had “thick-tongued” or slurred speech, and

glassy, bloodshot eyes. Supp. Tr. 10-11. When he asked for her license, registration

and proof of insurance, she displayed poor finger dexterity.

{¶25} At this point, the officer asked Appellant to step out of the vehicle. An officer

may ask a person to exit a vehicle during a lawful traffic stop without having reasonable

suspicion of any further criminal activity. Pennsylvania v. Mimms, 434 U.S. 106, 111

(1977). After Appellant was separated from the passenger, the deputy noted an

“obvious” odor of alcohol coming from Appellant’s breath, and she admitted to consuming

a few drinks. Supp. Tr. 13. Based on all of the circumstances testified to by the deputy,

we find he had a reasonable suspicion of criminal activity to justify further detention of

Appellant for field sobriety testing. Fairfield County, Case No. 2023 CA 00054 12

{¶26} The assignment of error is overruled. The judgment of the Fairfield

Municipal Court is affirmed.

By: Hoffman, J. Delaney, P.J. and Wise, J. concur