[Cite as State v. Stengel, 2018-Ohio-2286.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 17-CA-38 EVAN M. STENGEL : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield Municipal Court, Case No. TRC 1611830A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 8, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAMAS TABOR THOMAS EWING Assistant Prosecutor 60 West Columbus Street 136 West Main Street Pickerington, OH 43147 Box 1008 Lancaster, OH 43130 [Cite as State v. Stengel, 2018-Ohio-2286.]
Gwin, P.J.
{¶1} Appellant Evan M. Stengel [“Stengel”] appeals his conviction and sentence
after a negotiated plea of no contest in the Fairfield County Municipal Court.
Facts and Procedural History
{¶2} On November 4, 2016, Thomas Bolden, an employee working at Tiki
Bowling Lanes, reported a motor vehicle accident to law enforcement. The accident had
occurred outside the bowling alley approximately fifteen minutes prior to Bolden's report.
{¶3} Officer Eric Spiegel from the Lancaster Police Department arrived and
observed a fire hydrant broken off at the base, a damaged street sign pole, and tire tracks
leading away from the scene. Officer Spiegel discovered debris from a vehicle located
around the damaged hydrant and around the entrance to a nearby apartment complex.
Officer Spiegel collected several pieces of debris, including plastic parts of a vehicle's
headlights, side mirrors, and bumper. Thomas Bolden had informed the 9-1-1 operator
that the person who had knocked on the door of the bowling alley to report the accident
had advised that the suspect vehicle's last known direction of travel was towards the
nearby apartment complex.
{¶4} Both of the officers were equipped with body cameras; however, Officer
Spiegel’s camera malfunctioned. The events were recorded in real time on Officer
Howell’s camera. State’s Exhibit A.
{¶5} Officer Spiegel and Officer Jared Howell located a vehicle with heavy front-
end damage, a broken headlight, a broken mirror, and a broken bumper, parked outside
the apartment complex. Law enforcement matched the broken edges on some of the
parts found at the scene of the accident, with the missing parts on the damaged vehicle Fairfield County, Case No. 17-CA-38 3
in the parking lot. The officers indicated that the vehicle was still warm to the touch,
despite the cold temperature that evening. Officer Spiegel opined that the vehicle must
have been driven within the preceding hour to maintain that level of warmth in relation to
the air temperature. Law enforcement then ran the license plate on the damaged vehicle
and it returned to Stengel whose listed address was 1526 Courtship Drive, one of the
apartments in front of the parked vehicle. Given the heavy damage to the vehicle, law
enforcement was concerned about the driver's well-being and attempted to contact
Stengel at his nearby address.
{¶6} The officers went to the apartment knocked and announced their presence
for approximately ten minutes. There were two entrances to the apartment where Stengel
resided; a front door and a rear sliding glass door. Officer Spiegel approached the front
door while Officer Howell took up a position at the rear of the apartment to make sure that
no one escaped from the back door.
{¶7} While knocking, the officers heard the sound of a firearm being loaded
coming from the open window of an upstairs bedroom. Per their training, the officers drew
their firearms, held them at “low ready,” i.e. not pointed at any person, but out, and ready
to be brought up if necessary. Officer Spiegel was able to make verbal and visual contact
with a female through an upstairs window and identified himself as a police officer. In
response to Officer Spiegel's request, the female came downstairs and opened the front
door. An adult male accompanied her.
{¶8} The female identified herself as Chrisha Stengel, Stengel’s sister, and the
male, was Ms. Stengel's fiancé Christopher Meyer. Both individuals came to the front Fairfield County, Case No. 17-CA-38 4
door and spoke with officers. At some point during the discussion, the officers holstered
their weapons.
{¶9} Christopher explained to Spiegel that he had loaded his rifle because he
thought someone was trying to break into the apartment. The following exchange then
occurred:
OFFICER SPIEGEL: I was knocking profusely. I need to talk to Evan.
MS. STENGEL: Okay.
OFFICER SPIEGEL: And I need to know that he's not coming down with a
gun.
MS. STENGEL: Oh, no, he doesn't own a gun.
OFFICER SPIEGEL: It doesn't matter, there is a gun in the house.
OFFICER SPIEGEL: Which you said so and it's loaded. I need for him to
come down (inaudible) without any weapon. Okay?
MS. STENGEL: I tried to wake him up. He's not waking up.
OFFICER SPIEGEL: Is he your roommate?
MS. STENGEL: No, he's my brother. My little brother.
OFFICER SPIEGEL: Your little brother wrecked his car tonight. (Inaudible)
car. Okay. And we're here to try to make contact with him. And when we
hear a weapon being loaded, we get a little nervous.
MS. STENGEL: Yes.
OFFICER SPIEGEL: And so I need your permission to go inside to make
contact with Evan. Fairfield County, Case No. 17-CA-38 5
MS. STENGEL: Yes. Can we put the little dog up?
T. Motion to Suppress, May 17, 2017 at 39-40.
{¶10} Officers entered the home, followed Mr. Meyer up the stairs, and watched
him secure the firearm, which he had previously loaded. Mr. Meyer then directed officers
to Stengel's room. It is unclear whether the bedroom door was open, closed, or ajar when
law enforcement reached it. Law enforcement entered Stengel’s room to check on him.
{¶11} Both officers entered the bedroom and found Stengel asleep. The lights
were off, so the officers illuminated the bedroom with their flashlights. The officers roused
Stengel and asked him if he was injured in the crash, and ensured he was unarmed. After
ensuring Stengel was not in need of medical attention and that he did not have any
passengers with him when he crashed, Officer Spiegel advised Stengel of his Miranda
warnings. Stengel was advised of his Miranda rights by Officer Spiegel who stated, "All
right. I'm going to read you something just so I can say I did.” T. Motion to Suppress,
May 17, 2017 at 52. After advising Stengel of his right to remain silent and the fact that
anything he said would be used against him in a court of law, Officer Spiegel asked
Stengel if he understood. Stengel replied, "Some of it.” Officer Spiegel proceeded to
advise Stengel of his additional Miranda rights. After Officer Spiegel completed the
advisement of Miranda rights, he asked, "Would you talk to us about the accident?"
{¶12} Stengel then proceeded to answer questions from Officer Spiegel and made
a number of incriminating statements regarding his involvement in the accident and the
consumption of alcoholic beverages. Stengel was eventually taken outside the apartment
where Officer Howell conducted standardized field sobriety tests. Howell observed four Fairfield County, Case No. 17-CA-38 6
clues on the horizontal gaze nystagmus test and stated that Stengel did not do well on
the walk-and-turn and one-leg-stand tests.
{¶13} After completion of the field sobriety tests, Stengel was arrested for
operating a motor vehicle while impaired in violation of R.C. 4511.19(A)(1)(a); operating
a motor vehicle while having a prohibited concentration of alcohol in violation of R.C.
4511.19(A)(1)(h); leaving the scene of an accident in violation of Licking County
Ordinance 335.14; and failure to control a motor vehicle in violation of Licking County
Ordinance 331.34.OVI. Stengel was transported to the police station where he submitted
to a breath-alcohol test. The result from the breath-alcohol test was 0.171 grams of
alcohol per 210 liters of breath.
{¶14} On August 10, 2017 Stengel pled no contest to one count of “under the
influence” a violation of R.C. 4511.19(A)(1)(a) and the state dismissed the balance of the
charges.
Assignments of Error
{¶15} Stengel raises four assignments of error,
{¶16} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION
TO SUPPRESS BECAUSE THE WARRANTLESS HOME ENTRY BY POLICE
OFFICERS WAS UNREASONABLE UNDER THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶17} “II. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
APPELLANT'S STATEMENTS TO THE POLICE BECAUSE HIS STATEMENTS WERE
OBTAINED WITHOUT A VALID MIRANDA WAIVER IN VIOLATION OF THE PRIVILEGE Fairfield County, Case No. 17-CA-38 7
AGAINST COMPELLED SELF-INCRIMINATION GUARANTEED BY THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10,
ARTICLE I OF THE OHIO CONSTITUTION.
{¶18} “III. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
APPELLANT'S STATEMENTS TO THE POLICE BECAUSE HIS STATEMENTS WERE
INVOLUNTARY AND OBTAINED IN VIOLATION OF THE RIGHT TO DUE PROCESS
OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
{¶19} “IV. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE
RESULTS OF APPELLANT'S BREATH-ALCOHOL TEST BECAUSE THE STATE
FAILED TO DEMONSTRATE COMPLIANCE WITH THE THREE-HOUR TIME
LIMITATION IMPOSED BY R.C. 4511.19(D).
I.
{¶20} In his first assignment of error, Stengel contends that the trial court erred in
not granting his motion to suppress because the warrantless entry into the apartment and
the warrantless entry into his bedroom were unreasonable.
STANDARD OF APPELLATE REVIEW – MOTION TO SUPRESS.
{¶21} 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; Fairfield County, Case No. 17-CA-38 8
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 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.
STANDARD OF APPELLATE REVIEW – CONSENT TO SEARCH.
{¶22} Stengel argues that Chrisha Stengel did not believe that she could refuse
the officers entry into her apartment and thus her consent was not voluntary.
{¶23} A warrantless search based upon a suspect's consent is valid if his consent
is voluntarily given, and not the result of duress or coercion, either express or implied.
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854,
862 (1973); and State v. Danby, 11 Ohio App.3d 38, 463 N.E.2d 47 (6th Dist. 1983). The
voluntariness of consent is a question of fact to be determined from the totality of the
circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854. The
burden of proving that the suspect voluntarily consented to the search rests upon the Fairfield County, Case No. 17-CA-38 9
prosecution. Danby, 11 Ohio App.3d at 50, 463 N.E.2d 47; Bumper v. North Carolina,
391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968); State v. Hassey, 9 Ohio App.3d
231, 236 459 N.E.2d 573 (10th Dist. 1983); and State v. Pi Kappa Alpha Fraternity, 23
Ohio St.3d 141, 491 N.E.2d 1129 (1986).
{¶24} No Fourth Amendment violation occurs when an individual voluntarily
consents to a search. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105,
153 L.Ed.2d 242(2002) (stating that "[p]olice officers act in full accord with the law when
they ask citizens for consent"); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.
2041, 36 L.Ed.2d 854(1973) ("[A] search conducted pursuant to a valid consent is
constitutionally permissible"); State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640
(1990). In Schneckloth, the United States Supreme Court acknowledged the importance
of consent searches in police investigations, noting that "a valid consent may be the only
means of obtaining important and reliable evidence" to apprehend a criminal. 412 U.S.
at 227-228, 93 S.Ct. 2041, 36 L.Ed.2d 854. See, State v. Fry, 4th Dist. No. 03CA26, 2004-
Ohio-5747 at ¶18. The United States Supreme Court further noted: “[w]hile most citizens
will respond to a police request, the fact that people do so, and do so without being told
they are free not to respond, hardly eliminates the consensual nature of the response.”
INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758 (1984); Drayton, supra, 536 U.S. at
205, 122 S.Ct. at 2113. Moreover, a voluntary consent need not amount to a waiver;
consent can be voluntary without being an "intentional relinquishment or abandonment of
a known right or privilege.” Schneckloth v. Bustamonte, 412 U.S. at 235, 93 S.Ct. 2041,
2052 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938)); State
v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922(1986); State v. McConnell, 5th Dist. Stark Fairfield County, Case No. 17-CA-38 10
No. 2002CA00048, 2002-Ohio-5300, ¶8. Rather, the proper test is whether the totality of
the circumstances demonstrates that the consent was voluntary. Id. Further, “[v]oluntary
consent, determined under the totality of the circumstances, may validate an otherwise
illegal detention and search.” State v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762
(1997). The voluntariness of a consent to a search is a question of fact and will not be
reversed on appeal unless clearly against the manifest weight of the evidence1.
ISSUE FOR APPEAL
A. Whether the trial court, in finding Chrisha Stengel’s consent to enter was
voluntarily given, clearly lost his way and created such a manifest miscarriage of justice
that his decision overruling Stengel’s motion to suppress must be reversed.
{¶25} In the case at bar, the entire encounter with Chrisha Stengel was recorded
on Officer Howell’s body camera. State’s Exhibit A.
{¶26} Officer Stengel explained to Ms. Stengel that her brother had been involved
in an automobile accident. Ms. Stengel informed the officers that she had been unable
to wake her brother. Officer Spiegel asked for Ms. Stengel’s permission to enter her
home. When asked by Officer Spiegel to come in to check on her brother Ms. Stengel
said, “Yes.”
{¶27} The officers also asked Mr. Meyer to secure his gun. When asked what he
should do with it, the officers told him to lock it up. Meyer gave the officers permission to
enter and accompany him while he secured the weapon. State’s Exhibit A.
1 See, State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶21 finding that
under Ohio law the “clearly erroneous” standard of review is nothing more than the manifest weight of the evidence standard. Fairfield County, Case No. 17-CA-38 11
{¶28} The officers were polite and made small talk about the couple’s two dogs
when entering the residence. The officer indicated that their primary concern was to make
sure Stengel was all right.
{¶29} In State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972(1992), the Ohio
Supreme Court noted that the evaluation of evidence and the credibility of the witnesses
are issues for the trier of fact in the hearing on the motion to suppress. Id. at 366, 582
N.E.2d at 981-982. The fundamental rule that weight of evidence and credibility of
witnesses are primarily for the trier of fact applies to suppression hearings as well as
trials. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584(1982).
{¶30} A review of the body camera footage supports the conclusion that Ms.
Stengel’s consent was voluntary and not the result of duress or coercion, either express
or implied. Accordingly, competent, credible evidence exists to support the trial court’s
findings.
STANDARD OF APPELLATE REVIEW – COMMUNITY- CARETAKING
EXCEPTION TO THE FOURTH AMENDMENT
{¶31} Stengel next argues that the officers’ warrantless entry into his bedroom
was unreasonable.
{¶32} “The need to protect or preserve life or avoid serious injury is justification
for what would be otherwise illegal absent an exigency or emergency.” Brigham
City v. Stuart, 547 U.S. at 403, 405-406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting
Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 209 (1978). Accord,
State v. Dunn, 131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, syllabus.
{¶33} In Ohio, the Supreme Court has held, Fairfield County, Case No. 17-CA-38 12
The community-caretaking/emergency-aid exception to the Fourth
Amendment warrant requirement allows a law-enforcement officer with
objectively reasonable grounds to believe that there is an immediate need
for his or her assistance to protect life or prevent serious injury to effect a
community-caretaking/emergency-aid stop.
State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, syllabus. In Dunn,
the Ohio Supreme Court cited ABA Standards for Criminal Justice § 1–2.2 for the
proposition that “police officers are duty-bound to provide emergency services to those
who are in danger of physical harm.” Dunn, ¶20. Accordingly, in the case at bar, the
officers’ actions must be examined in light of what actions were objectively reasonable
for a law enforcement officer in the role of a community caretaker to take under the
circumstances. Brigham City v. Stuart, 547 U.S. at 403, 405-406, 126 S.Ct. 1943, 164
L.Ed.2d 650 (2006).
B. Whether the officers had objectively reasonable grounds to believe that Stengel
was in immediate need for his or her assistance to protect life or prevent serious injury.
{¶34} In the case at bar, the officers were investigating a serious automobile
accident. Chrisha Stengel told the officers that she was unable to wake her brother.
Further, the officers were given permission to enter the residence to check on Stengel.
The officers had knocked at the door to the residence for nearly 10 minutes. The evidence
establishes that the officers knocked loud enough and long enough to rouse two of the
apartment’s occupants who had been asleep. The couple’s two dogs can be heard
barking throughout the time the officers entered the residence and approached Stengel’s Fairfield County, Case No. 17-CA-38 13
room. Stengel did not respond when the officers call out to him. Stengel was not aroused
by the noise.
{¶35} The Supreme Court in Michigan v. Fisher, 588 U.S. 45, 130 S.Ct. 546, 175
L.Ed.2d 410, held, “Officers do not need ironclad proof of ‘a likely serious, life-threatening’
injury to invoke the emergency aid exception. * * * [T]he test * * * [is] whether there was
‘an objectively reasonable basis for believing’ that medical attention was needed * * *.”
Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410. Thus, in order for police to
invoke the exception, they need have only a reasonable basis to believe the occupant is
in need of medical attention.
{¶36} Under the circumstances of the case at bar, we find the evidence supports
the conclusion that the officers had objectively reasonable grounds to believe that Stengel
was in immediate need for his or her assistance to protect life or prevent serious injury.
Accordingly, competent, credible evidence exists to support the trial court’s findings.
C. Conclusion.
{¶37} Stengel’s First Assignment of Error is overruled.
II. & III.
{¶38} In his Second Assignment of Error, Stengel acknowledges that Officer
Spiegel read him his Miranda rights shortly after the officers entered his bedroom and
awaked him and that he orally waived each right. However, Stengel asserts that under
the totality of the circumstances there was not a knowing and intelligent waiver of Miranda,
but merely an acquiescence to the officers' show of authority, intimidation, and coercion.
{¶39} In his Third Assignment of Error, Stengel contends the trial court erred in
failing to suppress his statements to the police because his statements were involuntary. Fairfield County, Case No. 17-CA-38 14
STANDARD OF APPELLATE REVIEW - MIRANDA V. ARIZONA.
{¶40} The Fifth Amendment to the United States Constitution guarantees that
“‘[n]o person * * * shall be compelled in any criminal case to be a witness against himself,’
and that ‘the accused shall * * * have the Assistance of Counsel.’” (Ellipses sic.) Miranda
v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Accord, State v.
Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d365, ¶21. The inherently coercive
nature of custodial interrogation heightens the risk that a suspect will be denied the Fifth
Amendment privilege not to be compelled to incriminate himself because custodial
interrogation can “ ‘undermine the individual’s will to resist and * * * compel him to speak
where he would not otherwise do so freely.’” (Ellipsis sic.) J.D.B. v. North Carolina, 564
U.S. 261, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011), quoting Miranda at 467, 86
S.Ct. 1602; Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d
405 (2000).
{¶41} In State v. Wesson, the Ohio Supreme Court set forth the following test,
When a suspect is questioned in a custodial setting, the Fifth
Amendment requires that he receive Miranda warnings to protect against
compelled self-incrimination. Miranda at 478–479, 86 S.Ct. 1602, 16
L.Ed.2d 694. A suspect may then knowingly and intelligently waive these
rights and agree to make a statement. Id. at 479, 86 S.Ct. 1602, 16 L.Ed.2d
694. If a defendant later challenges a confession as involuntary, the state
must prove a knowing, intelligent, and voluntary waiver by a preponderance
of evidence. See id. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; Colorado v.
Connelly, 479 U.S. 157, 168–169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Fairfield County, Case No. 17-CA-38 15
To determine whether a valid waiver occurred, we “consider the
totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31,
358 N.E.2d 1051 (1976), paragraph two of the syllabus; see also Arizona v.
Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
We have held that a waiver is not involuntary unless there is evidence of
police coercion, such as physical abuse, threats, or deprivation of food,
medical treatment, or sleep. State v. Cooey, 46 Ohio St.3d 20, 28, 544
N.E.2d 895 (1989).
137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶34-35.
A. Whether the trial judge, in finding Stengel’s statements were voluntarily given,
clearly lost his way and created such a manifest miscarriage of justice that his decision
overruling Stengel’s motion to suppress must be reversed.
{¶42} In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473
(1986), the court held that "police over-reaching" is a prerequisite to a finding of
involuntariness. Evidence of use by the interrogators of an inherently coercive tactic (e.g.,
physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the
totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d
844, 854(1988). In State v. Belton, the Ohio Supreme Court further defined “coercion,” Fairfield County, Case No. 17-CA-38 16
This court may find coercion when law-enforcement officers
“persuad[e] or deceiv[e] the accused, with false promises or information,
into relinquishing his rights and responding to questions.” Edwards, 49 Ohio
St.2d at 39, 358 N.E.2d 1051. However, “the presence of promises does
not as a matter of law, render a confession involuntary.” Id. at 41, 358
N.E.2d 1051. Officers may discuss the advantages of telling the truth,
advise suspects that cooperation will be considered, or even suggest that a
court may be lenient with a truthful defendant. Id. And “[a]dmonitions to tell
the truth are considered to be neither threats nor promises.” State v. Loza,
71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994); see also State v. Dixon, 101
Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 29. Finally, it is not
unduly coercive for a law-enforcement officer to mention potential
punishments. See State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 38
(2d Dist.); compare State v. Robinson, 9th Dist. Summit No. 16766, 1995
WL 9424, *4 (“While a correct statement of the law may not render a
confession involuntary, a misstatement of the law may cause such a
confession to be involuntary”).
149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶111.
{¶43} In the cause sub judice, Stengel does not assert that he was physically
deprived or mistreated while at the interview, nor does the record reveal any type of
physical deprivation. Moreover, there is no evidence that police subjected Stengel to
threats or physical abuse, or deprived him of food, sleep, or medical treatment. See State
v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908(1989). Fairfield County, Case No. 17-CA-38 17
{¶44} In the case at bar, the interview took place in Stengel’s bedroom. His sister
and her fiancé were present in the home and aware the police were questioning Stengel.
The body camera footage shows that Officer Spiegel expressed his concerns concerning
Spiegel’s well-being and told Spiegel he was investigating the accident involving
Stengel’s car. The officers did not have their guns drawn; nor did they speak in
commanding tones. The officers were professional and courteous at all times.
{¶45} This record does not support his allegation of police coercion, show of
authority or intimidation. Under the circumstances of the case at bar, we find the evidence
supports the conclusion that Stengel knowingly, intelligently and voluntary waived his
Miranda rights and his statements to the police were voluntarily given. Accordingly,
competent, credible evidence exists to support the trial court’s findings.
B. Conclusion.
{¶46} Stengel’s Second and Third assignments of Error are overruled.
IV.
{¶47} In his fourth assignment of error, Stengel argues the trial court erred in
failing to suppress the results of his breath-alcohol test because the state failed to
demonstrate compliance with the three-hour time limitation imposed by R.C. 4511.19(D).
{¶48} 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; Fairfield County, Case No. 17-CA-38 18
State v. Fanning, one 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 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.
A. Whether the trial court, in finding Stengel’s breath test was taken within three
hours of the violation, clearly lost his way and created such a manifest miscarriage of
justice that his decision overruling Stengel’s motion to suppress must be reversed.
{¶49} In the case at bar, Stengel was originally charged with OVI as both a
violation of R.C. 4511.19(A)(1)(a) [“under the influence”] and R.C. 4511.19(A)(1)(h) [“per
se].
{¶50} In the case at bar, “we first noted that in 1983, the General Assembly had
amended R.C. 4511.19 to make ‘it illegal to operate a vehicle not only while under the
influence of alcohol, but also with a proscribed level of alcohol content in one's blood, Fairfield County, Case No. 17-CA-38 19
breath, or urine.’ Newark v. Lucas, 40 Ohio St.3d 100, 103, 532 N.E.2d 130(1988).
Newark v. Lucas, 40 Ohio St.3d 100, 103, 532 N.E.2d 130 (1988). The effect of the
General Assembly's amendment was to divide R.C. 4511.19 into two classification of
offenses: the offense of operating a vehicle while under the influence, and the “per se”
offense.” State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, ¶10
[footnote omitted].
{¶51} Per se offenses make the blood-alcohol content an element of the offense.
The trier of fact must find only “that the defendant operated a vehicle * * * and that the
defendant's chemical test reading was at the proscribed level.” Newark v. Lucas, 40 Ohio
St.3d 100, 103, 532 N.E.2d 130(1988). In contrast, for “driving under the influence” in
violation of R.C. 4511. (A)(1)(a),
The amount of alcohol found as a result of the chemical testing of
bodily substances is only of secondary interest. See Taylor, Drunk Driving
Defense (2 Ed.1986) 394, Section 6.0.1. The defendant's ability to
perceive, make judgments, coordinate movements, and safely operate a
vehicle is at issue in the prosecution of a defendant under such section. It
is the behavior of the defendant which is the crucial issue... The test results,
if probative, are merely considered in addition to all other evidence of
impaired driving in a prosecution for this offense.
Lucas, 40 Ohio St.3d at 104, 532 N.E.2d 130.
{¶52} The phrase “under the influence of intoxicating liquor” has been defined as
“[t]he condition in which a person finds himself after having consumed some intoxicating
beverage in such quantity that its effect on him adversely affects his actions, reactions, Fairfield County, Case No. 17-CA-38 20
conduct, movement or mental processes or impairs his reactions to an appreciable
degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks (1971),
25 Ohio App .2d 162, 166. See, also, State v. Steele (1952), 95 Ohio App. 107, 111
(“[B]eing ‘under the influence of alcohol or intoxicating liquor’ means that the accused
must have consumed some intoxicating beverage, whether mild or potent, and in such
quantity, whether small or great, that the effect thereof on him was to adversely affect his
actions, reactions, conduct, movements or mental processes, or to impair his reactions,
under the circumstances then existing so as to deprive him of that clearness of the
intellect and control of himself which he would otherwise possess”). See, State v.
Henderson, 5th Dist. No.2004-CA-00215, 2005-Ohio-1644 at ¶ 32. [Citing State v. Barrett
(Feb. 26, 2001), Licking App. No. 00CA 47].
{¶53} As Stengel was not convicted of a per se violation, exclusion of the BAC
test results would not have mandated an acquittal.
{¶54} In any event, the breath test in this case occurred at 1:47 A.M. on November
4, 2016. T. Motion to Suppress, May 17, 2017 at 172. Accordingly, so long as the state
presented sufficient evidence that Stengel operated his motor vehicle any time after 10:47
P.M. the previous night, his breath test result is admissible.
{¶55} Thomas Bolden, a maintenance worker at Tiki Bowling lanes called 9-1-1
at 12:48 A.M. and reported the crash to law enforcement. Mr. Bolden advised law
enforcement that the accident had occurred approximately fifteen minutes earlier. States
Exhibit 8. Fifteen minutes prior to the 9-1-1 call would have been just after 12:30 A.M.,
approximately one hour and fifteen minutes before Stengel's breath test. Judicial officials
at suppression hearings may rely on hearsay and other evidence to determine whether Fairfield County, Case No. 17-CA-38 21
alcohol test results were obtained in compliance with methods approved by the Director
of Health, even though that evidence may not be admissible at trial. State v. Edwards,
107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, paragraph 2 of the syllabus.
[Citing Evid.R. 101(C) (1)].
{¶56} Officers were able to observe that Stengel's vehicle was still warm to the
touch, despite the cold temperatures that night. T. Motion to Suppress, May 17, 2017 at
25; 95. Stengel later made statements to law enforcement that he had only driven a
distance of less than a mile, which, given the warmth of Stengel's vehicle, strengthened
law enforcement's belief that Stengel had operated his vehicle very recently. T. Motion
to Suppress, May 17, 2017 at 95.
{¶57} The record contains competent, credible evidence that the test was
conducted in accordance with statutory requirements and the results were therefore
admissible.
{¶58} Stengel’s Fourth Assignment of Error is overruled. Fairfield County, Case No. 17-CA-38 22
{¶59} The judgment of the Fairfield County Municipal Court is affirmed.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur