[Cite as State v. Lorenzo, 2015-Ohio-3737.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2015 CA 0011 GABRIELLE LORENZO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2014TRC7559
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 14, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANTHONY FLEX JACOB T. WILL ASSISTANT PROSECUTOR 116 Cleveland Avneue N.W. 218 Cleveland Avenue S.W. Suite 808 Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case No. 2015 CA 0011 2
Wise, J.
{¶1} Appellant Gabrielle Lorenzo appeals the decision of the Canton Municipal
Court, Stark County, which denied her motion to suppress evidence in an OVI case.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} The relevant facts leading to this appeal are as follows:
{¶4} On or about October 26, 2014, Appellant Gabrielle Lorenzo was charged
with two counts of Operating a Vehicle Impaired, in violation of R.C. §4511.19, both of
which were based on the same conduct.
{¶5} On November 21, 2014, Appellant filed a Motion to Suppress.
{¶6} On December 16, 2014, a suppression hearing was conducted. At issue
were whether the officer had reasonable, articulable suspicion to stop the vehicle and
then subsequently ask her to exit her vehicle and whether probable cause existed to
arrest Appellant.
{¶7} At the suppression hearing, the State called Ohio State Patrolman
Nicholas Goodnite as their only witness. Trooper Goodnite testified that he was on
patrol on October 26, 2014, at approximately 12:03 a.m. near Cleveland Avenue and
Interstate 77 when he noticed a grey Volvo driving toward him. (T. at 6-7). Trooper
Goodnite testified that this area is heavily patrolled due to the number of OVI related
crashes, OVI drivers, fatalities, and nearby bars. (T. at 9).
{¶8} He stated that his attention was drawn to the grey Volvo because as the
vehicle approached his cruiser it appeared to be "one huge ball of light" as compared to
two distinct separate headlights like the vehicle ahead of the Volvo. (T. at 7). This Stark County, Case No. 2015 CA 0011 3
indicated the high-beam headlights were activated on the Volvo (T. at 7, 19). Trooper
Goodnite testified that high-beams being activated on a vehicle at night will cause
drivers driving the other direction to see spots that can affect their vision for oncoming
cars. (T. at 8).
{¶9} Upon witnessing the high beams being active, Trooper Goodnite
conducted a traffic stop of the grey Volvo. (T. at 8). Upon approaching the vehicle,
Goodnite noticed a female driver, who was later identified as Appellant and a male
passenger. (T. at 8). When he approached the vehicle, Goodnite detected the odor of
alcohol coming from the vehicle. Upon speaking with Appellant, she admitted to having
had some alcohol to drink. (T. at 8). Goodnite testified that Appellant’s eyes were
bloodshot and glassy. (T. at 9). At that time, Goodnite asked Appellant to exit the
vehicle and requested that she perform field sobriety tests. (T. at 9-11). Once Appellant
was outside of the vehicle, Trooper Goodnite could still detect a moderate odor of
alcohol coming from her. (T. 9, 16, 21-22).
{¶10} Goodnite classified the odor of alcohol he detected as moderate, although
he agreed on cross-examination that he did not include that detail in his report. (T. at
16, 22).
{¶11} Trooper Goodnite conducted three standardized field sobriety tests and a
portable breath test on Appellant during the traffic stop, which he stated were all
conducted according to his training. (T. 9-13). Six out of a possible six clues were
observed during the Horizontal Gaze Nystagmus test, which indicated to Trooper
Goodnite that there was a seventy percent (70%) chance Appellant would test at 0.10
BAC or higher. (T. at 10). Two clues were observed during the walk and turn test and no Stark County, Case No. 2015 CA 0011 4
clues were observed during the one-leg stand test. (T. at 11-12, 25-27).
{¶12} At the conclusion of the field sobriety test, Trooper Goodnite offered
Appellant a portable breath test since she had indicated that she had taken thyroid
medication that day. (T. at 12-14). He explained that this test was done to ensure the
clues he observed were due to alcohol and not any medication she was taking. (T. at
12). Appellant took the portable breath test, which yielded a 0.096 BAC. (T. at 12-13).
{¶13} After Appellant was arrested she was transported to the highway patrol
post and asked to provide a breath sample on a Datamaster machine. (T. at 16-17).
Appellant's sample was a 0.086 BAC. (T. 17-18).
{¶14} By Judgment Entry filed, December 18, 2014, the trial court denied
Appellant’s motion to suppress.
{¶15} On December 18, 2014, Appellant entered a plea to one count of OVI.
{¶16} The trial court sentenced Appellant to 3 days in jail or a Driver's
Intervention Program, a six-month license suspension from October 26, 2014, and was
ordered to complete 25 hours of community service.
{¶17} Appellant now appeals, raising the following sole Assignment of Error:
{¶18} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S
MOTION TO SUPPRESS.”
I.
{¶19} In her sole Assignment of Error, Appellant argues the trial court
erroneously denied her motion to suppress. We disagree.
{¶20} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibits the government from conducting unreasonable Stark County, Case No. 2015 CA 0011 5
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶21} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641
N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State
v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United
States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657,
1663, 134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion
and probable cause should be reviewed de novo on appeal.”
{¶22} In the case sub judice, Appellant herein argues that Trooper Goodnite
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[Cite as State v. Lorenzo, 2015-Ohio-3737.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2015 CA 0011 GABRIELLE LORENZO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2014TRC7559
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 14, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANTHONY FLEX JACOB T. WILL ASSISTANT PROSECUTOR 116 Cleveland Avneue N.W. 218 Cleveland Avenue S.W. Suite 808 Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case No. 2015 CA 0011 2
Wise, J.
{¶1} Appellant Gabrielle Lorenzo appeals the decision of the Canton Municipal
Court, Stark County, which denied her motion to suppress evidence in an OVI case.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} The relevant facts leading to this appeal are as follows:
{¶4} On or about October 26, 2014, Appellant Gabrielle Lorenzo was charged
with two counts of Operating a Vehicle Impaired, in violation of R.C. §4511.19, both of
which were based on the same conduct.
{¶5} On November 21, 2014, Appellant filed a Motion to Suppress.
{¶6} On December 16, 2014, a suppression hearing was conducted. At issue
were whether the officer had reasonable, articulable suspicion to stop the vehicle and
then subsequently ask her to exit her vehicle and whether probable cause existed to
arrest Appellant.
{¶7} At the suppression hearing, the State called Ohio State Patrolman
Nicholas Goodnite as their only witness. Trooper Goodnite testified that he was on
patrol on October 26, 2014, at approximately 12:03 a.m. near Cleveland Avenue and
Interstate 77 when he noticed a grey Volvo driving toward him. (T. at 6-7). Trooper
Goodnite testified that this area is heavily patrolled due to the number of OVI related
crashes, OVI drivers, fatalities, and nearby bars. (T. at 9).
{¶8} He stated that his attention was drawn to the grey Volvo because as the
vehicle approached his cruiser it appeared to be "one huge ball of light" as compared to
two distinct separate headlights like the vehicle ahead of the Volvo. (T. at 7). This Stark County, Case No. 2015 CA 0011 3
indicated the high-beam headlights were activated on the Volvo (T. at 7, 19). Trooper
Goodnite testified that high-beams being activated on a vehicle at night will cause
drivers driving the other direction to see spots that can affect their vision for oncoming
cars. (T. at 8).
{¶9} Upon witnessing the high beams being active, Trooper Goodnite
conducted a traffic stop of the grey Volvo. (T. at 8). Upon approaching the vehicle,
Goodnite noticed a female driver, who was later identified as Appellant and a male
passenger. (T. at 8). When he approached the vehicle, Goodnite detected the odor of
alcohol coming from the vehicle. Upon speaking with Appellant, she admitted to having
had some alcohol to drink. (T. at 8). Goodnite testified that Appellant’s eyes were
bloodshot and glassy. (T. at 9). At that time, Goodnite asked Appellant to exit the
vehicle and requested that she perform field sobriety tests. (T. at 9-11). Once Appellant
was outside of the vehicle, Trooper Goodnite could still detect a moderate odor of
alcohol coming from her. (T. 9, 16, 21-22).
{¶10} Goodnite classified the odor of alcohol he detected as moderate, although
he agreed on cross-examination that he did not include that detail in his report. (T. at
16, 22).
{¶11} Trooper Goodnite conducted three standardized field sobriety tests and a
portable breath test on Appellant during the traffic stop, which he stated were all
conducted according to his training. (T. 9-13). Six out of a possible six clues were
observed during the Horizontal Gaze Nystagmus test, which indicated to Trooper
Goodnite that there was a seventy percent (70%) chance Appellant would test at 0.10
BAC or higher. (T. at 10). Two clues were observed during the walk and turn test and no Stark County, Case No. 2015 CA 0011 4
clues were observed during the one-leg stand test. (T. at 11-12, 25-27).
{¶12} At the conclusion of the field sobriety test, Trooper Goodnite offered
Appellant a portable breath test since she had indicated that she had taken thyroid
medication that day. (T. at 12-14). He explained that this test was done to ensure the
clues he observed were due to alcohol and not any medication she was taking. (T. at
12). Appellant took the portable breath test, which yielded a 0.096 BAC. (T. at 12-13).
{¶13} After Appellant was arrested she was transported to the highway patrol
post and asked to provide a breath sample on a Datamaster machine. (T. at 16-17).
Appellant's sample was a 0.086 BAC. (T. 17-18).
{¶14} By Judgment Entry filed, December 18, 2014, the trial court denied
Appellant’s motion to suppress.
{¶15} On December 18, 2014, Appellant entered a plea to one count of OVI.
{¶16} The trial court sentenced Appellant to 3 days in jail or a Driver's
Intervention Program, a six-month license suspension from October 26, 2014, and was
ordered to complete 25 hours of community service.
{¶17} Appellant now appeals, raising the following sole Assignment of Error:
{¶18} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S
MOTION TO SUPPRESS.”
I.
{¶19} In her sole Assignment of Error, Appellant argues the trial court
erroneously denied her motion to suppress. We disagree.
{¶20} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibits the government from conducting unreasonable Stark County, Case No. 2015 CA 0011 5
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶21} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641
N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State
v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United
States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657,
1663, 134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion
and probable cause should be reviewed de novo on appeal.”
{¶22} In the case sub judice, Appellant herein argues that Trooper Goodnite
“lacked cause to have Appellant submit to field sobriety tests.” (Appellant’s Brief at 7).
Appellant also contends that there was not probable cause to arrest her.
{¶23} “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 Stark County, Case No. 2015 CA 0011 6
alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey No.
2009–CA–28, 2010–Ohio–1111, ¶17, citing State v. Knox, 2nd Dist. Greene No. 2005–
CA–74, 2006–Ohio–3039.
{¶24} In reviewing this issue, we apply a “totality of the circumstances”
approach. See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303,
2004–Ohio–90, ¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d
1044.
{¶25} In support of her position, Appellant cites State v, Keserich, 5th Dist.
Ashland County, Case No. 2014-CA-011, 2014-Ohio-5120. In Keserich, this Court
reversed the decision of the trial court overruling Keserich’s motion to suppress. In
Keserich, the defendant was stopped for not having a light illuminating his rear license
plate. Upon stopping Keserich, the officer observed bloodshot and watery eyes, and he
admitted to having consumed two alcoholic beverages. Based on these facts, the officer
requested that Keserich perform field sobriety tests. This Court, under the facts in this
case, found that defendant’s bloodshot eyes could have been attributed to the fact that
there were four or five other passengers in the car who were smoking. This Court found
that this possible explanation for the bloodshot eyes, together with the stop being based
solely on an equipment violation and the lack of any observation of erratic driving, was
not enough to form a basis to request performance of the field sobriety tests.
{¶26} We find this case to be distinguishable from Keserich, supra.
{¶27} In the instant case, as set forth in our recitation of facts, Trooper Goodnite
stopped Appellant because she was driving with her high-beam lights on. He testified
that such action could pose a danger to other drivers. Additionally, upon stopping Stark County, Case No. 2015 CA 0011 7
Appellant he observed that her eyes were bloodshot and glassy, and that there was an
odor of alcohol coming from the vehicle. Appellant admitted to the consumption of
alcohol. Additionally, it was 12:03 a.m. on a Sunday morning in an area where bars are
located.
{¶28} Upon review, based on the above factors, we hold a reasonable basis
existed for Trooper Goodnite to ask Appellant to step out of her vehicle and proceed
with field sobriety testing under the circumstances of this case and that probable cause
existed for the arrest.
{¶29} We therefore hold the trial court did not err in denying the motion to
suppress in this matter. Accordingly, Appellant’s sole Assignment of Error is overruled.
{¶30} For the reasons stated in the foregoing opinion, the judgment of the
Canton Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0910