[Cite as State v. Sugden, 2024-Ohio-4442.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 2023CA0078-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE SUSAN A. SUGDEN MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO Appellant CASE No. 24TRC01851
DECISION AND JOURNAL ENTRY
Dated: September 9, 2024
STEVENSON, Presiding Judge.
{¶1} Defendant-Appellant Susan Sugden appeals an order of the Medina Municipal
Court that denied her motion to suppress. This Court affirms.
I.
{¶2} Montville Township Police Officer Justin Harvey initiated a traffic stop of Ms.
Sugden after he observed her travel out of her lane two times and make an improper left-hand turn.
Officer Harvey activated the lights on his cruiser and followed Ms. Sugden into a back parking
lot.
{¶3} When Officer Harvey approached the truck to speak with Ms. Sugden, he detected
“a slight odor of alcoholic beverage [e]mitting from the vehicle.” He also observed that Ms.
Sugden “was slurring her words” and that “her eyes were bloodshot and glassy.”
{¶4} Officer Harvey’s conversation with Ms. Sugden “was generally taken over by her
passenger Leslie . . . .” After alcohol consumption was initially denied, Leslie, Ms. Sugden’s 2
sister, informed Officer Harvey that they had one glass of wine at dinner which was between 8:00
– 9:00 p.m. Sister also told Officer Harvey that open containers of alcoholic beverages in the
truck’s backseat were recycles.
{¶5} Officer Harvey had Ms. Sugden exit her truck after she failed to accurately
complete two pre-exit tests. Although Ms. Sugden represented that she had a bad knee and was
scheduled for surgery that week, she “hopped down” from the truck without using the truck’s step
rail.
{¶6} Officer Harvey had Ms. Sugden walk to the front of his cruiser for field sobriety
testing. Officer Harvey noticed that Ms. Sugden “stagger[ed] slightly to the left” as she walked to
the cruiser.
{¶7} Officer Harvey performed the horizontal gaze nystagmus (“HGN”) test on Ms.
Sugden, during which she “kept moving her head.” Officer Harvey had to have Ms. Sugden “put
her hands . . . on either side of her chin, to help keep herself from moving her head.” Officer
Harvey noted four out of six clues during the administration of the HGN, which means “[t]hat
there’s a great likelihood that [the person is] over the .08 BAC limit.” Officer Harvey noticed the
odor of alcoholic beverage coming from Ms. Sugden during the HGN.
{¶8} Officer Harvey then checked Ms. Sugden’s eyes for lack of convergence. Neither
of Ms. Sugden’s eyes properly converged on the stimulus. According to Officer Harvey, “[l]ack
of convergence is present with some drugs.”
{¶9} Officer Harvey next administered the Modified Romberg Test. Ms. Sugden
estimated the passage of 30 seconds in 45 seconds during this test. Lastly, Officer Harvey
administered the finger-to-nose test on Ms. Sugden. Ms. Sugden failed to touch her nose on the
first attempt at this test. 3
{¶10} Ms. Sugden was arrested and charged with operating a vehicle under the influence
of alcohol in violation of R.C. 4511.19(A)(1)(a) (“OVI”), operating a vehicle with a prohibited
blood alcohol concentration under R.C. 4511.19(A)(1)(d) (“BAC OVI”), and travelling outside of
marked lanes in violation of R.C. 4511.33.
{¶11} Ms. Sugden moved to suppress all evidence gained as a result of the traffic stop and
her arrest, arguing Officer Harvey did not have a reasonable articulable suspicion to stop her truck;
Officer Harvey did not have a reasonable suspicion that justified detaining her to conduct field
sobriety tests; and Officer Harvey did not have probable cause to arrest her. Ms. Sugden also
moved to suppress the results of the field sobriety tests, arguing that they were not conducted in
substantial compliance with National Highway Traffic Safety Administration (“NHTSA”)
standards. The trial court denied Ms. Sugden’s motion to suppress in its entirety.
{¶12} Ms. Sugden pleaded no contest to the three charges. The trial court found Ms.
Sugden guilty and, for sentencing purposes, it merged the BAC OVI charge into the OVI charge.
On the OVI charge, the trial court imposed a $500 fine; a nine-month license suspension, with
credit for three months served under the administrative license suspension; three days in jail with
three days of credit for attending the driver intervention program; and six points assessed against
her license. The trial court imposed a $50 fine on the travelling outside of marked lanes charge.
Ms. Sugden appeals the trial court’s ruling on the motion to suppress, raising three assignments of
error.
II.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN FINDING THAT OFFICER HARVEY HAD REASONABLE, ARTICULABLE SUSPICION TO STOP [MS. SUGDEN’S] VEHICLE[.] 4
{¶13} Ms. Sugden argues that the trial court erred when it denied her motion to suppress.
We disagree.
Motion to Suppress
{¶14} The Ohio Supreme Court has stated:
Appellate review of a motion to suppress presents a mixed question of law and fact. 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. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. 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.
(Citations omitted.) State v. Burnside, 2003-Ohio-5372, ¶ 8. Pursuant to Burnside, “[o]nce this
Court has determined that the trial court’s factual findings are supported by the evidence, we
consider the trial court’s legal conclusions de novo.” State v. Iloba, 2021-Ohio-3700, ¶ 7 (9th
Dist.), citing Burnside at ¶ 8.
Fourth Amendment
{¶15} The Fourth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .” Article I, Section 14, of the Ohio Constitution contains nearly identical language.
The traffic stop of a vehicle constitutes a seizure for Fourth Amendment purposes. Whren v. United
States, 517 U.S. 806, 809-810 (1996).
Reasonable Suspicion
{¶16} “[A] law enforcement officer may stop a vehicle when the officer has a reasonable
suspicion, based on specific and articulable facts, that an occupant is or has been engaged in
criminal activity.” State v. Epling, 105 Ohio App.3d 663, 664 (9th Dist. 1995). See also Dayton v. 5
Erickson, 76 Ohio St.3d 3, 11-12 (1996) (“where an officer has an articulable reasonable suspicion
or probable cause to stop a motorist for any criminal violation, including a minor traffic violation,
the stop is constitutionally valid . . . .”) A stop is constitutionally valid provided the law
enforcement officer has “a reasonable, articulable suspicion that criminal activity may be afoot.”
(Emphasis added.) State v. Roberts, 2006-Ohio-3042, ¶ 7 (2d Dist.); Terry v. Ohio, 392 U.S. 1, 30
(1968).
{¶17} “Reasonable suspicion is something less than probable cause.” Epling at 664, citing
State v. VanScoder, 92 Ohio App.3d 853, 855 (9th Dist. 1994). Reasonable suspicion “is something
more than an unparticularized suspicion or mere hunch, but less than the level of suspicion required
for probable cause.” Roberts at ¶ 7, citing Terry at 1. “Thus, ‘the likelihood of criminal activity
need not rise to the level required for probable cause, and it falls considerably short of satisfying
a preponderance of the evidence standard.’” State v. Cunningham, 2015-Ohio-4306, ¶ 17 (9th
Dist.), quoting United States v. Arvizu, 534 U.S. 266, 274 (2002). To satisfy that standard, the law
enforcement officer “must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.” Terry at 21.
{¶18} When “analyzing whether reasonable suspicion existed, this Court looks to the facts
available to the officer at the moment of the seizure or the search and considers whether those facts
would warrant a man of reasonable caution in the belief that the action taken was appropriate.”
(Internal citations and quotations omitted.) State v. Blair, 2008-Ohio-6257, ¶ 5 (9th Dist.).
“Reasonable suspicion is based on the totality of the circumstances.” State v. Bralek, 2018-Ohio-
2496, ¶ 11 (9th Dist.), citing United States v. Cortez, 449 U.S. 411, 417-418 (1981). The Court
must consider “the totality of the circumstances as they were known to [the officer] prior to the
time [the officer] stopped [the defendant], together with reasonable inferences that could be drawn 6
from the circumstances . . . .” State v. Tidwell, 2021-Ohio-2072, ¶ 40. Reasonable suspicion exists
even if a defendant is not cited for the traffic violation. State v. Thayer, 2012-Ohio-3301, ¶ 21 (9th
Dist.).
Improper Left-Turn
{¶19} Ms. Sugden has not challenged the trial court’s factual finding that, when turning
left from S.R. 18 onto River Styx Road, she turned “into the rightmost of the two southbound
through lanes . . . instead of into the leftmost lane immediately adjacent to the center double yellow
lane lines.” Accepting this factual finding as true, this Court must independently consider whether
Officer Harvey had “a reasonable suspicion, based on specific and articulable facts, that an
occupant [Ms. Sugden] is or has been engaged in criminal activity.” Epling, 105 Ohio App.3d at
664. See also, Erickson, 76 Ohio St.3d at 11-12.
{¶20} Ms. Sugden argues that she complied with R.C. 4511.36(A)(2) when she made a
left-hand turn from S.R. 18 onto River Styx Road. Ms. Sugden “asks this [C]ourt to rule that [its
decision in State v.] Graham, [2014-Ohio-3283 (9th Dist.)] was wrongly decided and find that
Officer Harvey did not have reasonable suspicion or probable cause to believe that [she] violated
O.R.C. §4511.36(A)(2).” We decline to rule that Graham was wrongly decided.
{¶21} R.C. 4511.36(A) provides that:
[t]he driver of a vehicle intending to turn at an intersection shall be governed by the following rules:
...
(2) At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the 7
left turn shall be made in that portion of the intersection to the left of the center of the intersection.
This Court interpreted R.C. 4511.36(A)(2) in Graham.
{¶22} The appellant in Graham made a left-hand turn from a two-way street with two
lanes on either side of its center line. Graham at ¶ 18. Like Ms. Sugden, the appellant completed
the turn by pulling into the right, outside lane of another two-way street that also had two lanes on
either side of its center line. Id. The trial court held that this turn was proper and “did not give rise
to reasonable suspicion for a stop.” Id. This Court disagreed, holding “both the trial court’s
interpretation of [R.C. 4511.36(A)(2)] and the legal conclusion it drew as a result of its erroneous
interpretation were incorrect.” Id.
{¶23} Recognizing that R.C. 4511.26(A) is concerned with the movement of traffic
behind a vehicle as well as the movement of head-on traffic, this Court noted in Graham that:
[a] driver’s left-hand turn into the outside lane of an intersecting street necessarily requires a longer and wider arc than does a left-hand turn into the inside lane of that same street. If a driver in the oncoming direction employs a similar approach in executing a left-hand turn, the paths of the two cars will cross and the two may collide.
Id. at ¶ 19. Accordingly, Graham concluded that R.C. 4511.36(A)(2) “requires drivers, whenever
practicable, to pull into the left, inside lane when turning left from a two-way street onto another
two-way street.” Id. We hold that Graham was properly decided.
{¶24} Ms. Sugden does not dispute that, when she made a left-hand turn off S.R. 18 onto
River Styx Road, she turned into the rightmost of the two southbound through lanes. This was an
improper left-hand turn under R.C. 4511.36(A)(2). Graham at ¶ 19.
{¶25} Accordingly, based on the totality of the circumstances surrounding the stop at issue
in this case, we conclude that the trial court did not err in finding that Officer Harvey had a
reasonable and articulable suspicion that Ms. Sugden made an improper left-hand turn. The 8
observed improper left-hand turn was sufficient to initiate a traffic stop of Ms. Sugden’s vehicle.
Ms. Sugden’s first assignment of error is, accordingly, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN FINDING THAT OFFICER HARVEY HAD REASONABLE, ARTICULABLE SUSPICION TO DETAIN [MS. SUGDEN] TO PERFORM FIELD SOBRIETY TESTS.
{¶26} Ms. Sugden argues in her second assignment of error that the trial court erred in
finding that Officer Harvey had reasonable, articulable suspicion to detain her to perform field
sobriety tests. We disagree.
{¶27} As set forth above, this Court’s review of a trial court’s ruling on a motion to
suppress “presents a mixed question of law and fact.” Burnside, 2003-Ohio-5372, at ¶ 8. We
“must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id. If the facts are accepted as true, we “must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id.; Iloba, 2021-Ohio-3700, at ¶ 7.
{¶28} “‘[A] police officer does not need probable cause to conduct a field sobriety test;
rather, he must simply have a reasonable suspicion of criminal activity.’” State v. High, 2017-
Ohio-8264, ¶ 8 (9th Dist.), quoting State v. Slates, 2011-Ohio-295, ¶ 24 (9th Dist.). “‘[R]easonable
suspicion exists if an officer can point to specific and articulable facts indicating that [an
individual] may be committing a criminal act.’ (Internal quotations and citations omitted.) High
at ¶ 8. The totality of the circumstances is considered when determining whether reasonable
suspicion exists.” State v. Panaro, 2018-Ohio-1005, ¶ 18 (9th Dist.).
{¶29} Ms. Sugden does not contest that the stop occurred after 1:30 a.m.; her eyes were
red; Officer Harvey had detected a “slight” odor of alcohol; her sister indicated she had a drink; 9
there were empty alcohol containers in the vehicle; and she failed to accurately complete two pre-
exit tests. Ms. Sugden argues that the trial court erred in finding that she committed marked lane
violations; her eyes were bloodshot; Officer Harvey detected alcohol on her breath while she was
still in her vehicle; she had slurred speech; the location of the stop was near establishments selling
alcohol; and she admitted to consuming alcohol.
{¶30} Having reviewed the record, this Court concludes that the trial court’s factual
findings are based on competent, credible evidence. See Burnside, 2003-Ohio-5372, at ¶ 8. Officer
Harvey initiated the traffic stop of Ms. Sugden’s vehicle after observing an improper left-turn and
what he believed to be two marked lane violations. The traffic stop occurred a little after 1:30 a.m.
{¶31} Even if Officer Harvey did not testify that he detected alcohol on Ms. Sugden’s
breath while she was in her vehicle, he testified he detected “a slight odor of alcoholic beverage
[e]mitting from the vehicle” while he was standing at her window. He also testified that Ms.
Sugden “was slurring her words” and that her eyes were “bloodshot and glassy.” Ms. Sugden
acknowledges that her eyes were red.
{¶32} Although Ms. Sugden and Sister initially advised Officer Harvey that Ms. Sugden
had not consumed any alcohol, Sister subsequently informed him that they had one glass of wine
at dinner. Officer Harvey observed open containers of alcoholic beverages in the truck’s backseat.
Ms. Sugden failed to accurately complete two pre-exit tests.
{¶33} The record contains dash and body cam videos that support Officer Harvey’s
testimony. Officer Harvey was the only witness called to testify at the suppression hearing.
{¶34} Based on a review of the totality of the circumstances, this Court concludes that the
trial court did not err in finding Officer Harvey possessed reasonable suspicion to detain Ms. 10
Sugden to investigate her possible impairment. Ms. Sugden’s second assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRONEOUSLY FOUND THAT OFFICER HARVEY HAD PROBABLE CAUSE TO ARREST [MS. SUGDEN] FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL.
{¶35} Ms. Sugden argues in her third assignment of error that the trial court incorrectly
concluded that Officer Harvey had probable cause to arrest her based on observations he made
during non-standardized field sobriety testing. We disagree.
{¶36} “‘[T]his Court reviews a probable cause determination de novo.’” State v. Russo,
2009-Ohio-6914, ¶ 6 (9th Dist.), quoting State v. Sunday, 2006-Ohio-2984, ¶ 28 (9th Dist.). As
this Court has explained:
[t]he legal standard for probable cause to arrest for OVI is whether ‘at the moment of the arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.’
State v. Krzemieniewski, 2016-Ohio-4991, ¶ 11 (9th Dist.), quoting State v. Homan, 89 Ohio St.3d
421, 427 (2000), superseded by statute on other grounds. The Ohio Supreme Court has explained
that “[t]he totality of the facts and circumstances can support a finding of probable cause to arrest
even where no field sobriety tests were administered or where . . . the test results must be excluded
for lack of strict compliance.” Homan at 427.
{¶37} Ms. Sugden argues that the non-standardized field sobriety testing, including the
Modified Romberg test and the finger to nose test, should not be included in the determination of
whether Officer Harvey had probable cause to arrest her for driving under the influence of alcohol.
Ms. Sugden asserts that this Court incorrectly interpreted the Ohio Supreme Court’s decision in 11
State v. Schmitt, 2004-Ohio-37 and, as such, came to the wrong conclusion in State v. Washington,
2012-Ohio-1391 (9th Dist.). We disagree.
{¶38} The Court in Schmitt addressed the issue of whether an officer who failed to
administer field sobriety tests in substantial compliance with applicable guidelines could testify
about the observations he made while the defendant was performing the nonscientific tests.
Schmitt at ¶ 10. The Court answered in the affirmative, concluding “a law enforcement officer may
testify . . . regarding observations made during a defendant’s performance of nonscientific
standardized field sobriety tests.” Id. at ¶ 15.
{¶39} The defendant in Washington argued that “Schmitt only applies to an officer’s
observations while administering ‘standardized’ tests.” Id. at ¶ 16. This Court disagreed, noting
that Schmitt “also explained that it is a person’s difficulty performing simple exercises that may
reveal whether he is intoxicated.” Id. Accordingly, we concluded in Washington that, “because it
is the totality of an officer’s perceptions that assists . . . in determining whether someone was
driving while intoxicated, there is no reason that Schmitt should be limited to an officer’s
observations during standardized non-scientific field sobriety tests as opposed to other non-
scientific field sobriety tests.” Id. Accordingly, Officer Harvey’s observations during the Modified
Romberg test and finger to nose test may be considered when determining whether probable cause
existed to arrest Ms. Sugden for operating a vehicle while under the influence of alcohol.
{¶40} As previously discussed, Officer Harvey testified to three observed traffic
violations. He testified that he detected a slight odor of alcohol coming from Ms. Sugden’s vehicle;
Ms. Sugden’s eyes were bloodshot and glassy; Ms. Sugden’s speech was slurred; he observed open
alcoholic beverages in the vehicle’s backseat; and after an initial denial, he was told that Ms.
Sugden and her sister had a glass of wine at dinner. Officer Harvey testified as to Ms. Sugden’s 12
performance on pre-exit tests; that despite a bad knee, Ms. Sugden hopped down from her truck;
and that Ms. Sugden swayed slightly as she walked toward the cruiser.
{¶41} Officer Harvey testified to his observations while performing the HGN test and
while checking Ms. Sugden for lack of convergence. Officer Harvey also testified to his
observations during the Modified Romberg test and the finger to nose test.
{¶42} Upon review of the totality of the circumstances, we conclude that the trial court
did not err in finding Officer Harvey had probable cause to arrest Ms. Sugden for operating under
the influence of alcohol. Ms. Sugden’s third assignment of error is overruled.
III.
{¶43} Ms. Sugden’s assignments of error are overruled. The judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, 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
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. 13
Costs taxed to Appellant.
SCOT STEVENSON FOR THE COURT
SUTTON, J. FLAGG LANZINGER, J. CONCUR.
APPEARANCES:
DAVID C. SHELDON, Attorney at Law, for Appellant.
GREGORY HUBER, J. MATTHEW LANIER, MEGAN A. PHILBIN, and ROBERT B. CAMPBELL, Prosecuting Attorneys, for Appellee.