text:
    Stanley KAVANAGH, et al., Plaintiffs-Appellees, v. Jerron W. CARUTHERS, et al., Defendants-Appellants.
    NO. 16 JE 0016
    Court of Appeals of Ohio, Seventh District, Jefferson County.
    Dated: December 22, 2017
    Attorney Mark A. Colantonio, Attorney Kevin M. Pearl, 337 Penco Road, Weirton, WV 26062, For Plaintiffs-Appellees.
    Attorney Holly Marie Wilson, 101 West Prospect Ave., Suite 1400, Cleveland, Ohio 44115-174, Attorney Kelly Johns, 11 Federal Plaza Central, Suite 1200, Youngstown, Ohio 44503-1518, For Defendants-Appellants.
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

OPINION

DONOFRIO, J.

{¶ 1} Defendants-appellants, Jerron Caruthers and Butler Transport, Inc., appeal from a Jefferson County Common Pleas Court judgment certifying a class in the class action complaint filed by plaintiffs-appellees, Stanley Kavanaugh, Amy Kavanaugh, Stanley Cottis, Anna Cottis, and Route 22 Pizza, LLC.

{¶ 2} On October 3, 2012, appellees filed a class action complaint alleging that on September 28, 2012, appellant Jerron Caruthers was operating a tractor trailer that struck a "guy wire" resulting in a loss of electricity to the homes and businesses of customers of American Electric Power (AEP). The complaint further alleged that at the time, Caruthers was acting within the scope of his employment with appellant Butler Transport, Inc. (Butler). The complaint asserted that appellees and the proposed class members suffered inconvenience, loss of business, and financial injury. The complaint identified the proposed class as all of those individuals and businesses that lost power on September 28, 2012, as a result of power outages caused by appellants.

{¶ 3} The matter was removed to federal court for some time but was eventually returned to the trial court.

{¶ 4} On January 21, 2016, appellees filed a motion for class certification. The motion stated that 1,563 AEP customers in Jefferson County lost power due to the alleged negligence of appellants.

{¶ 5} The trial court held a hearing on appellees' motion for class certification where it heard arguments from all parties. The court subsequently issued a judgment entry certifying the proposed class. In so doing, the court found that the class was so numerous that a joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims of the representative parties are typical of the claims of the class, and that the representative parties will fairly and adequately protect the interest of the class. Further, the court found that common questions of law and fact predominated over questions affecting only individual class members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

{¶ 6} Appellants filed a timely notice of appeal on June 29, 2016. They now raise a single assignment of error for our review.

{¶ 7} Appellants' assignment of error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CERTIFYING A CLASS WHERE THE PLAINTIFFS FAILED TO SATISFY BOTH
THE EXPLICIT AND IMPLICIT REQUIREMENTS OF CIV.R. 23.

{¶ 8} A trial court has broad discretion in determining whether a class action may be maintained. Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 483, 2000-Ohio-397, 727 N.E.2d 1265. The abuse-of-discretion standard of review applies here due to the trial court's special expertise and familiarity with case-management problems and its inherent power to manage its own docket. Hamilton v. Ohio Sav. Bank , 82 Ohio St.3d 67, 70, 1998-Ohio-365, 694 N.E.2d 442. Therefore, an appellate court will not disturb the trial court's determination absent an abuse of discretion. Id. Abuse of discretion is more than an error of law or judgment; instead it is a finding that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 9} Civ.R. 23 governs class actions. Civ.R. 23(A) contains four requirements for a class member to bring a class action:

(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
Civ.R. 23(B) contains further conditions that must be satisfied:
A class action may be maintained if Civ.R. 23(A) is satisfied, and if:
* * *
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(a) the class members' interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.

{¶ 10} In addition, the Ohio Supreme Court has identified two other prerequisites to a class action that are implied in Civ.R. 23 : (1) the class must be identifiable; and (2) the class representatives must be members of the class. Warner v. Waste Management, Inc. , 36 Ohio St.3d 91, 96, 521 N.E.2d 1091 (1988).

{¶ 11} The plaintiffs have the burden of satisfying the requirements for class certification. Satterfield v. Ameritech Mobile Communications, Inc. , 8th Dist., 2017-Ohio-928, 86 N.E.3d 830, ¶ 24.

{¶ 12} Appellants break their assignment of error into five separate claims of error. We will address each one in turn.

{¶ 13} First, appellants claim the trial court was unclear in its judgment as to which of appellees' three proposed classes it certified.

{¶ 14} In their class action complaint, appellees asked the trial court to certify the following class:

All individuals and entities to whom American Electric Power provided electricity and/or electrical services in Jefferson County, Ohio and who were without such electrical services on September 28, 2012, as a result of the power outages caused by Defendants.

{¶ 15} At the February 22, 2016 hearing, appellees proposed to modify their class definition to include at the end of the definition, "[a]nd who suffered some type of loss." (Tr. 9).

{¶ 16} Then in their March 2, 2016 reply to appellants' supplemental memorandum contra to class certification, appellees proposed the class as:

All individuals and entities to whom American Electrical Power provided electricity and/or power in Jefferson County, Ohio who suffered a loss as a result of the September 27, 2012 and September 28, 2012 power outage caused by Defendants.

{¶ 17} Appellants contend the trial court failed to indicate in its judgment entry which of the three classes it actually certified. They assert this necessitates a remand for clarification.

{¶ 18} The class certified by the trial court was clear. At the hearing, appellees' counsel stated that he was proposing to add the language "who suffered some type of loss" to the end of the proposed class definition. (Tr. 9). Then in their reply to defendants' supplemental memorandum contra to class certification, appellees amended their class definition to include the "who suffered a loss" language as well as another date of the power outage. Thus, at the time the trial court ruled on appellees' motion, this was the only proposed class definition before the court.

{¶ 19} To avoid any confusion on this issue, we clarify that the certified class is:

All individuals and entities to whom American Electrical Power provided electricity and/or power in Jefferson County, Ohio who suffered a loss as a result of the September 27, 2012 and September 28, 2012 power outage caused by Defendants.

An appellate court may modify or clarify the certified class. See Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 2000-Ohio-397, 727 N.E.2d 1265.

{¶ 20} Thus, appellants' first argument fails.

{¶ 21} Second, appellants argue that regardless of which class the trial court certified, the class is not sufficiently definite so that it is administratively feasible for the court to determine membership. They note that appellees failed to define "loss" in their class definition, leaving the class ambiguous. Appellants assert the trial court would be faced with determining multiple questions including which AEP customers actually suffered a loss; what constitutes a loss; for those claiming a loss from food spoilage, how will the customer prove the loss; how will the customers prove that they mitigated their losses; and can the losses be proven on a case-wide basis. Moreover, they point out that some customers only lost power for one hour, while others lost power for ten hours. Appellants cite to numerous cases from other states, which they assert show that class certification is routinely rejected for power-loss cases.

{¶ 22} A proposed class must be identifiable. " '[T]he requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.' " Hamilton , 82 Ohio St.3d at 71-72, 694 N.E.2d 442, quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2 Ed. 1986) 120-121, Section 1760. Thus, the proposed class definition must be precise enough "to permit identification within a reasonable effort." Warner , 36 Ohio St.3d at 96, 521 N.E.2d 1091.

{¶ 23} Here appellants' argument is that the class is not sufficiently definite because different class members likely suffered different damages and some may have suffered no damages at all.

{¶ 24} As to those who suffered no damages at all, they would not meet the class definition and, therefore, would not be members of the class. The class only includes those "who suffered a loss." Thus, if a Jefferson County AEP customer lost power for an hour and suffered no losses, he or she would not be a member of the class.

{¶ 25} And as to those who did suffer some type of loss, the fact that the losses may be different for different class members does not defeat class certification. "[A] trial court should not dispose of a class certification solely on the basis of disparate damages." Ojalvo v. Bd. of Trustees of Ohio State Univ. , 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984).

{¶ 26} Appellants suggest that our opinion in Fowler v. Ohio Edison Co. , 7th Dist. No. 07-JE-21, 2008-Ohio-6587, 2008 WL 5233476, controls here. Fowler , however, dealt with emissions from a power plant causing illness, not losses from a power outage. Moreover, the trial court in that case denied class certification and we upheld the decision as being within the trial court's discretion.

{¶ 27} Thus, appellants' second argument fails.

{¶ 28} Third, appellants claim that appellees are not all members of the class certified. They assert that Stanley and Anna Cottis failed to assert any damages resulting from the power outage in their affidavits.

{¶ 29} Class representatives must be members of the class. "The class membership prerequisite requires only that 'the representative have proper standing. In order to have standing to sue as a class representative, the plaintiff must possess the same interest and suffer the same injury shared by all members of the class that he or she seeks to represent.' " Hamilton , 82 Ohio St.3d at 74, 694 N.E.2d 442, quoting 5 Moore's Federal Practice (3 Ed. 1997) 23-57, Section 23.21[1].

{¶ 30} Appellants are correct as far as Stanley and Anna Cottis did not set out any explicit damages in the affidavits attached to the motion for class certification. On the other hand, Stanley and Amy Cavanaugh and Route 22 Pizza both averred to monetary damages as a result of the power outage. The fact that the Cottises did not set out damages in the affidavits does not necessarily mean that they did not suffer damages. They alleged damages in their complaint including monetary damages in an amount to be determined at trial.

{¶ 31} In order to proceed as class representatives, Stanley and Anna Cottis would eventually have to allege the specific amount of their damages. But at this point in time, there are other class representatives who did allege specific damages in their affidavits and the Cottises alleged monetary damages in their complaint. Thus, we cannot conclude the trial court abused its discretion in this respect.

{¶ 32} Moreover, "[a] representative is deemed adequate so long as his interest is not antagonistic to that of other class members." Warner , 36 Ohio St.3d at 98, 521 N.E.2d 1091, citing Marks v. C.P. Chemical Co. , 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987). There is nothing in the record to suggest that the Cottises' interests would be antagonistic to those of the class. Thus, appellants' third argument fails.

{¶ 33} Fourth, appellants contend individual issues exceed common issues. They recognize that 1,563 AEP customers lost power, but argue there is no way to determine which of these customers suffered actual damage as a result. Appellants argue that typicality is not shown if the plaintiff who proves his own claim would not necessarily be proving anyone else's claim.

{¶ 34} While common questions must predominate the action, they need not be dispositive of the litigation. Lucio v. Safe Auto Ins. Co. , 183 Ohio App.3d 849, 2009-Ohio-4816, 919 N.E.2d 260, ¶ 17 (7th Dist.). They must instead represent a "significant aspect" of the case and be able to be resolved for all members of the class in a single adjudication. Id. quoting Schmidt v. Avco Corp. , 15 Ohio St.3d 310, 313, 473 N.E.2d 822 (1984).

{¶ 35} In determining whether common questions predominate the action, " 'the focus of the inquiry is directed toward the issue of liability.' " Satterfield v. Ameritech Mobile Communications, Inc. , 8th Dist., 2017-Ohio-928, 86 N.E.3d 830, ¶ 26, quoting Cicero v. U.S. Four, Inc. , 10th Dist. No. 07AP-310, 2007-Ohio-6600, ¶ 38, 2007 WL 4305720.

{¶ 36} In this case, the common questions surround the liability of both Caruthers and Butler. As appellees point out, common to each class member would be a determination as to whether Caruthers was negligent when he struck the AEP guy wire, whether Caruthers was acting within the scope of his employment with Butler at the time, and whether Caruthers' negligence proximately caused the class members' damages. Thus, common questions predominate the action, especially when the focus is on liability. Hence, appellants' fourth argument fails.

{¶ 37} Fifth and finally, appellants assert there is no class capable of certification that is sufficiently definite because any such class would include individuals without legally cognizable claims. They argue that common questions do not predominate over individual determinations and class treatment is not a superior method of adjudication. Appellants claim there is no one class-wide injury for the certified class. They argue each class member would have to prove their damages separately, which would overburden the court and render the case unmanageable as a class action.

{¶ 38} As discussed above, any suggested class member who did not suffer any damages would not actually be a class member. And a trial court should not deny class certification solely on the basis of disparate damages. Ojalvo , 12 Ohio St.3d at 232, 466 N.E.2d 875. Moreover, common questions surround the issue of appellants' liability. Therefore, appellants' fifth argument fails.

{¶ 39} Based on the above analysis of appellants' arguments, we cannot conclude that the trial court abused its discretion in certifying appellees' proposed class. The trial court has expertise and familiarity with its case management and we will not second guess its inherent power to manage its own docket in this case. Hamilton , 82 Ohio St.3d at 70, 694 N.E.2d 442. Accordingly, appellants' sole assignment of error is without merit and is overruled.

{¶ 40} For the reasons stated above, the trial court's judgment is hereby affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.


source: Caselaw Access Project

author: PRESTON, P.J.

license: Public Domain

text:
    IN RE: B.G.S.
    [Zachary Summers-Appellant]
    NO. 9-17-34
    Court of Appeals of Ohio, Third District, Marion County.
    Date of Decision: December 26, 2017
    David H. Lowther, Marion, for Appellant
    Justin J. Kahle for Appellee
   PRESTON, P.J.

{¶ 1} Appellant Zachary Summers ("Summers") appeals the July 20, 2017 judgment entry of the Marion County Family Court denying his Motion for Relief From Judgment and his Motion to Provide Documents. For the reasons that follow, we reverse.

{¶ 2} B.G.S. was born in July of 2016 to Elizabeth Sappington ("Sappington") and Summers. The birth of B.G.S. was unknown to Summers until after the case was disposed of. On August 2, 2016, the Marion County Children Services Board ("the Agency") filed "Motion For Ex Parte/Emergency Orders With Notice Of Hearing" asking that the trial court grant the Agency temporary emergency custody of B.G.S., and the trial court granted the motion. (Doc Nos. 1, 2). On August 2, the Agency filed a complaint alleging that B.G.S. was a dependent child under R.C. 2151.04 (Doc. No. 3). After a shelter care hearing on August 2, 2016, the trial court granted the Agency pre-dispositional interim custody on August 5, 2016. (Doc. No. 5). After an adjudication on September 16, 2016, the magistrate found B.G.S. to be a dependent child on October 20, 2016. (Doc. No. 19). That same day, the trial court adopted the magistrate's decision as its order. (Doc. No. 20).

{¶ 3} On November 23, 2016, the Agency filed a motion for permanent custody of B.G.S. (Doc. No. 28). After a hearing on November 29, 2016 at which Sappington executed a permanent voluntary surrender of her parental rights, the trial court granted permanent custody of B.G.S. to the Agency on December 13, 2016. (Doc. No. 32). The Agency attempted to serve Summers by posting in order to inform him of both the dependency hearing and the permanent custody hearing. The postings included initials to identify the child and did not include Sappington's name.

{¶ 4} On January 31, 2017, Summers filed "Motion to Provide Documents," as well as a Motion For Relief From Judgment under Civ.R. 60(B) asking that the trial court vacate its judgment entry granting permanent custody to the Agency. (Doc. Nos. 37, 38). In his Motion For Relief From Judgment, Summers alleges that he was not aware of the birth of B.G.S. and was not properly served with notice of the permanent custody hearing. On February 28, the Agency filed a response to Summers's Motion For Relief From Judgment. (Doc. No. 42). On April 28, 2017, Summers filed an additional brief in which he argues that he is entitled to relief under Civ.R. 60(B) because the Agency did not perfect service upon him and because Sappington committed fraud. (Doc. No. 48). The trial court denied Summers's motions on July 20, 2017. (Doc. No. 49).

{¶ 5} Summers filed his notice of appeal on August 25, 2017. (Doc. No. 51). He brings one assignment of error for our review.

Assignment of Error

The [Trial] Court Erred To The Prejudice Of Appellant By Dismissing Appellant's Motion For Relief From Judgment.

{¶ 6} In his sole assignment of error, Summers argues that the trial court erred by denying his motion under Civ.R. 60(B). Specifically, Summers argues that the trial court erred in denying his motion because Summers was the victim of fraud. Summers further argues that the trial court was without jurisdiction to hear the case because Summers did not receive adequate notice of the dependency proceeding or the permanent custody hearing.

{¶ 7} In order to prevail on a motion for relief from judgment under Civ.R. 60(B), a movant must show that (1) he has a meritorious defense if relief is granted; (2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time. In re Schuette , 12th Dist. No. CA2002-11-042, 2003-Ohio-2371, 2003 WL 21054760, ¶ 11, citing GTE Automatic Elec., Inc. v. ARC Industries , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). A trial court exercises broad discretion in ruling on a motion under Civ.R. 60(B), and a reviewing court will not reverse the trial court's decision absent an abuse of that discretion. Id. Where a movant files a motion to vacate a judgment under Civ.R. 60(B) and specifically challenges the court's personal jurisdiction over him on the basis that he was not provided notice, reviewing courts treat the motion as a common-law motion to vacate, and such a motion need not meet the standards applicable to a Civ.R. 60(B) motion. In re R.P. , 9th Dist. Summit No. 26271, 2012-Ohio-4799, 2012 WL 4898682, ¶ 19. Issues related to a court's jurisdiction are reviewed de novo. In re Z.H. , 2013-Ohio-3904, 995 N.E.2d 295, ¶ 12 (9th Dist.).

{¶ 8} The right to raise one's child is a basic and essential right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). "Parents have a 'fundamental liberty interest' in the care, custody, and management of the child." Id., quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Where a complaint for dependency has been filed, parents are entitled to notice, whether actual or constructive, of the dependency proceeding. In re Billingsley , 3d Dist. Putnam Nos. 12-02-07 and 12-02-08, 2003-Ohio-344, 2003 WL 178661, ¶ 9. Failure of notice renders any determination in relation to such a proceeding void. Id. In order to be proper, service of process must be made in some manner reasonably calculated to apprise interested parties of the action and give them an opportunity to respond. In re J.K.M. , 2d Dist. Montgomery No. 27183, 2016-Ohio-7799, 2016 WL 6835709, ¶ 15. Because of the importance of the rights at issue in permanent custody proceedings, parents whose children are the subject of such proceedings must be afforded every procedural and substantive protection the law requires. In re Thompkins , 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 11.

{¶ 9} Juv.R. 16 sets forth various methods by which notice may be accomplished and provides, in relevant part, that a valid notice by posting must contain "the name and address of the court, the case number, [and] the name of the first party on each side[.]" Juv.R. 16(A). Juv.R. 2(Y) defines "party" to include "a child who is the subject of a juvenile court proceeding * * * [and] the child's parent or parents." Juv.R. 2(Y). The requirement of Juv.R. 16 that the child's name be included is not met by the inclusion of mere initials. In re Z.H. at ¶ 19. This is especially true where the initials in question pertain to a child that the unknown father had never met and of whom he may have been entirely unaware. Id. Juvenile courts may adopt rules permitting the use of initials in juvenile court documents; however, in the absence of such a rule, all juvenile court documents must identify juveniles by their names rather than their initials. Juv.R. 5(B). Marion County's local rules of court specifically require that "captions in all actions involving juveniles or parentage actions shall contain the child's name [.]" Loc.R. 5(c) of the Court of Common Pleas of Marion County, Family Division.

{¶ 10} We conclude that the notices of the dependency and permanent custody hearings in this case were not reasonably calculated to apprise Summers of the pendency of the action. (See Doc. Nos. 13, 25); In re Z.H. at ¶ 19. Both notices are deficient, in part, because they contain only initials to identify the child. In re Z.H. at ¶ 19 (noting that the inclusion of initials does not comply with Juv.R. 15's requirement that parties be identified by name). The initials in this case are all the more ineffective because B.G.S. stands for "Baby Girl Sappington." Thus, though the use of the initials B.G.S. may identify the child to the Agency and the trial court, two of the three letters are not initials for a name at all. We further conclude that the notices at issue are defective because they clearly do not include the name of the mother, as the rules require. Juv.R. 2(Y) ; Juv.R. 15(A).

{¶ 11} We further conclude that the notices at issue are defective because, despite the fact that Juv.R. 5 permits trial courts to adopt rules permitting juveniles to be identified by their initials, the applicable local rule does not so provide. Loc.R. 5(c) of the Court of Common Pleas of Marion County, Family Division. Thus, the notices in this case do not comply with Juv.R. 15, or the trial court's own local rule.

{¶ 12} Summers's assignment of error is sustained.

{¶ 13} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

ZIMMERMAN and SHAW, J.J., concur.

      The Agency filed an "Amended Motion For Ex Parte/Emergency Orders With Notice Of Hearing" on August 8, 2016 (Doc. No. 6). That same day, the trial court granted the amended motion. (Doc. No. 9).

      The Agency filed an amended complaint on August 8, 2016, asking that the trial court grant the Agency permanent custody of B.G.S. (Doc. No. 7).

      The Agency also filed a memorandum in opposition to Summers's "Motion To Provide Documents" on April 18, 2017. (Doc. No. 45).

      This appeal is timely because the Notice Of Appealable Order was not served until July 31, 2017, as reflected in the docket.

      Specifically, the rule requires that such information be contained in a notice by publication; it then provides that any notice properly given by posting must contain the same information that must be included in a notice by publication. Juv.R. 16(A).


author: MELODY J. STEWART, P.J.:

text:
    GRAFTECH INTERNATIONAL, LTD., et al., Plaintiffs-Appellants v. PACIFIC EMPLOYERS INSURANCE CO., et al., Defendants-Appellees
    No. 105258
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 28, 2017
    Richard D. Milone, Jones Day, 51 Louisiana Avenue, N.W., Suite 400, Washington, D.C. 20001, Robert P. Ducatman, Ryan A. Doringo, Jones Day, North Point, 901 Lakeside Avenue, Cleveland, OH 44114, ATTORNEYS FOR APPELLANTS
    John G. Farnan, Weston Hurd, L.L.P., 1301 East 9th Street, Suite 1900, Cleveland, OH 44114, Shane Robert Heskin, White and Williams, L.L.P., One Liberty Place, Suite 1800, Philadelphia, PA 19103, Rema A. Ina, Gallagher Sharp, 1501 Euclid Avenue, 6th Floor, Cleveland, OH 44115, ATTORNEYS FOR APPELLEES
    BEFORE: Stewart, P.J., Boyle, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, P.J.:

{¶ 1} Eighty-four employees working in smelting plants of Alcoa, Inc., an aluminum manufacturer, alleged that they suffered injuries from exposure to toxic coal-tar pitch contained in a product made by plaintiff-appellant GrafTech International, Ltd. GrafTech demanded coverage and legal representation under a series of insurance policies issued by its primary insurer, defendant-appellee Pacific Employers Insurance Company, whose parent company is defendant-appellee ACE American Insurance Company. Pacific denied coverage under a pollution exclusion that excluded coverage for any injury caused by a substance introduced into the environment that allegedly causes the environment to become impure or harmful. GrafTech sought a declaration of its rights under the policy and asked the court to determine the coverage issue. The court ruled that the plain language of the pollution exclusion "specifically excludes coverage under the policy for the types of bodily injury claims that have been asserted against the Plaintiffs." GrafTech appeals. We agree with the court that the pollution provision excludes coverage and that Pacific has no duty to defend or pay for GrafTech's legal representation.

{¶ 2} In the proceedings below, the parties comprehensively addressed a choice-of-law question that GrafTech maintained was potentially dispositive of three coverage issues: (1) whether GrafTech is entitled to apply Ohio's "all sums" rule, which allows it to seek payment of all the defense costs for each of the coal-tar pitch cases within a certain selected policy year; (2) whether the "contiguous trigger" rule applies, triggering coverage under each policy that was in effect from the first date of alleged exposure to GrafTech's products and continuing through the date of claim, or death of the claimant; and (3) whether the coal-tar pitch lawsuits all arise out of a single occurrence for purposes of satisfying the Pacific policy's deductible per occurrence.

{¶ 3} GrafTech argued that the substantive laws of Ohio, Pennsylvania, or Delaware apply: it is a Delaware corporation based in Ohio and that Pacific has been a Pennsylvania corporation and was so at the time it issued the policies. Pacific argued that New York law applies because the Pacific policy had been underwritten, quoted, negotiated, bound, signed, issued, delivered, and performed in New York. The court agreed with Pacific and granted a partial summary judgment ruling that New York law would apply. It provided the Civ.R. 54(B) certification of no just reason for delay.

{¶ 4} GrafTech appealed from the partial summary judgment. We dismissed the appeal as nonfinal. Although both the parties and the court claimed that the choice-of-law determination controlled the outcome of GrafTech's claims, we noted that the court specifically refused to determine the merits of GrafTech's claims by applying New York law. The failure to do so meant that the trial court had not declared all the rights and obligations of the parties in a way that determined the action for purposes of R.C. 2505.02. GrafTech Internatl. Ltd. v. Pacific Emps. Ins. Co. , 2016-Ohio-1377, 62 N.E.3d 1031, ¶ 10 (8th Dist.).

{¶ 5} On remand from the dismissal of the appeal, the court considered the pollution exclusion contained in the Pacific policy and concluded that exposure to coal-tar pitch allegedly suffered by the employees was "pollution" that was excluded from coverage. It rejected GrafTech's argument that it should use the word "environment" in a more expansive sense to encompass the "natural world" and not the workplace.

The court noted that the parties defined the word "environment" to include "any air, land, structure or the air therein, watercourse or water, including underground water." Under this definition, a factory or plant was a "structure," and the issuance of coal-tar pitch into the air inside the factory or plant would constitute "pollution" under the policy.

{¶ 6} In this appeal, GrafTech continues to argue that the court erred by deciding to apply New York law to the coverage issues. This is an argument we need reach only if we find that the court erred by concluding that the pollution exclusion barred coverage under the Pacific policy. Because we conclude that coverage for coal-tar pitch is excluded by the pollution exclusion, we need not consider which state law to apply in deciding the duty of representation.

{¶ 7} Both parties agree that, regardless of their differences on the choice-of-law issue that should apply to Pacific's duty to defend, there is no difference between the laws of Ohio and New York with respect to the pollution exclusion. See appellant's brief at fn. 4 ("Neither party has identified any difference between the laws of Ohio and New York with respect to the pollution exclusion, and Pacific framed its argument to the trial court on the premise that there is no difference."); Pacific's brief in opposition to motion for summary judgment at 3 ("even if Ohio law were to apply, Graftech's claims still fail. Among other things, GrafTech's claims are barred by the absolute pollution exclusion * * *."). Given these statements by the parties, we rely exclusively on Ohio law when addressing the pollution-exclusion issue, with the caveat that by doing so we express no opinion on whether the law of Ohio or New York applies to the duty-to-defend issue.

{¶ 8} Insurance policies are contracts that we interpret as a matter of law. Sharonville v. Am. Emps. Ins. Co. , 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶ 6. "The fundamental goal when interpreting an insurance policy is to ascertain the intent of the parties from a reading of the policy in its entirety and to settle upon a reasonable interpretation of any disputed terms in a manner designed to give the contract its intended effect." Laboy v. Grange Indem. Ins. Co. , 144 Ohio St.3d 234, 2015-Ohio-3308, 41 N.E.3d 1224, ¶ 8, citing Burris v. Grange Mut. Cos. , 46 Ohio St.3d 84, 89, 545 N.E.2d 83 (1989).

{¶ 9} The relevant portions of the policy state:

This insurance does not apply to any injury, damage, expense, cost, loss, liability or legal obligation arising out of or in any way related to pollution, however caused.
Pollution includes the actual, alleged or potential presence in or introduction into the environment of any substance if such substance has, or is alleged to have, the effect of making the environment impure, harmful, or dangerous. Environment includes any air, land, structure or the air therein, watercourse or water, including underground water.
* * *
We have no duty to defend any suit arising out of or in any way related to pollution excluded by this endorsement.

{¶ 10} GrafTech cites Andersen v. Highland House Co. , 93 Ohio St.3d 547, 2001-Ohio-1607, 757 N.E.2d 329, for the proposition that pollution exclusions apply only to contamination of the environment, not to personal injury lawsuits alleging localized exposure to allegedly dangerous products, even if such exposure happens somewhere in the "environment." It maintains that the Pacific policy is ambiguous on whether it applies only to localized pollution of the environment, so it is entitled to have the policy construed in favor of providing coverage. King v. Nationwide Ins. Co. , 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus ("Where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured.").

{¶ 11} Andersen held that the release of carbon monoxide from a residential heater located in an apartment building could not be a "pollutant" under a pollution exclusion of an insurance policy because the parties had not specifically defined carbon monoxide as a pollutant. Id. at syllabus. The Supreme Court noted that the history and purpose of pollution exclusions were to protect insurers against claims for " 'gradual environmental degradation of any type and to preclude coverage responsibility for government-mandated cleanups.' " Id. at 550, 757 N.E.2d 329, quoting Stempel, Reason and Pollution: Correctly Construing the "Absolute" Exclusion in Context and in Accord With Its Purpose and Party Expectations , 34 Tort & Ins.L.J. 1, 5 (1998). Because the carbon monoxide claim in Andersen involved a residential setting-an atypical setting for pollution claims involving environmental degradation-the Supreme Court found that an insured would have to "guess" on whether it was excluded. Construing the ambiguity against the insurer, the Supreme Court held that "carbon monoxide emitted from a malfunctioning residential heater is not a pollutant under the pollution exclusion of a comprehensive general liability policy unless specifically enumerated as such." Id. at 552, 757 N.E.2d 329.

{¶ 12} The circumstances here do not raise the same concerns addressed in Andersen. The alleged toxic exposure in this case occurred in an industrial setting that would be a prime example of a "traditional" case of environmental pollution. See Citizens Ins. v. Lanly Co. , N.D.Ohio Nos. 1:07 CV 241, 1:07 CV 467, and 1:07 CV 469, 2007 WL 3129783, *4 (Oct. 23, 2007) (distinguishing Andersen because the claim "involves residential carbon monoxide poisoning, whereas the instant case involves industrial asbestos poisoning."). One of the complaints alleged the following facts about the aluminum manufacturing process and how coal-tar pitch is used:

Coal tar pitch plays a prominent and omnipresent role in the aluminum manufacturing process, and is used to line the pots and to make both anodes and cathodes. The plant used green anode blocks consisting of coke bound together with coal tar pitch. When the anodes were baked, hydrocarbon volatiles were released. Coal tar pitch was also used to make the cathodes, to cover all the pots during the baking process, and applied to all of the metal columns and even the ventilation systems throughout the plant as an anti-corrosive, and was additionally used as insulation to prevent corrosion and fires in the manufacturing process. The application of high temperatures to coal tar pitch released dangerous hydrocarbons, which could reach the plaintiff's decedent and others by way of respiration and by physical contact with the skin.
Coal tar pitch is used throughout Alcoa's production process. Alcoa had production pots in service at the time of Plaintiff's employment. A production pot is a large trough approximately 40 feet long and 12 feet wide and 4 feet deep with nothing inside. Because of their number, workers were continually stripping and relining the pots. To reline the pots, the Rockdale plant used seam mix, which contained coal tar pitch. At all material times, each of the 19 pots were re-lined with approximately 5000 lbs of seam mix. The relining process required the workers to use coal tar pitch, which exposed Plaintiff's decedent and other employees by emitting vapors into the air and dust onto their clothing and skin.

Complaint of Richter at ¶ 31-31.

{¶ 13} Another complaint made similar allegations about the industrial nature of the aluminum manufacturing process:

Aluminum is made from an anode and a cathode, which form what is called a pot. The anode (or positive electrode) is a large block of carbon made from coke and coal tar pitch. It is inserted in a steel box lined with carbon made by baking a mixture of metallurgical coke and coal tar pitch. The lining is called the cathode (or negative electrode). Between the anode and the cathode is a space filled by electrolyte, which is [sic] mixture that when heated melts into molten aluminum. It produced aluminum using the Soderberg process, which uses a continuous anode that is baked from the heat from the electrolyte cell. During electrolysis, coal tar pitch in the form of a paste is continuously added to the anode. During the baking process, the application of high temperatures to the coal tar pitch causes coal tar volatiles to be emitted in the form of polycyclic aromatic hydrocarbonates (PAHs). Several of the PAHs emitted from the pots are carcinogenic.

Complaint of Karl at ¶ 24.

{¶ 14} The allegations show a large-scale, industrial setting for the manufacture of aluminum. This industrial setting is vastly different from the residential setting in Andersen .

{¶ 15} GrafTech maintains, however, that Andersen stands for the proposition that pollution exclusions were meant to protect insurers against the "explosion" of expensive pollution clean-up litigation and that "localized" pollution falls outside the purpose of the pollution exclusion. It argues that a localized release of substances in one part of an aluminum manufacturing plant is insufficient to constitute a fouling of the "environment" under the policy because some of the substances may have traveled only a few feet.

{¶ 16} We must reject this argument. The parties defined the word "environment" to mean, among other things, any "structure or the air therein." "[W]ords and phrases used in an insurance policy must be given their natural and commonly accepted meaning, where they in fact possess such meaning, to the end that a reasonable interpretation of the insurance contract consistent with the apparent object and plain intent of the parties may be determined." Gomolka v. State Auto. Mut. Ins. Co. , 70 Ohio St.2d 166, 167-168, 436 N.E.2d 1347 (1982), citing Dealers Dairy Prods. Co. v. Royal Ins. Co. , 170 Ohio St. 336, 164 N.E.2d 745 (1960), paragraph one of the syllabus. Nothing in the words used by the parties suggests that the "air" inside a "structure" was intended to make the pollution exclusion inapplicable to minimal, localized releases of pollutants into the air within a structure. For purposes of the Pacific policy, the air in a structure can be polluted in part; or in the terms used by the parties, even a minimal, localized release of pollutants can render the air within a structure harmful or impure. This is an unremarkable conclusion: we do not understand GrafTech to suggest, for example, that the same policy definition of pollution that mentions "water" would not apply to a chemical discharge in Lake Erie that did not pollute the entire lake. Nothing in the way the parties defined the word "pollution" makes the pollution exclusion apply only to a release of pollutants in a structure that is so pervasive that it renders the air throughout the entire structure harmful or impure.

{¶ 17} The claims by the employees collectively alleged that they were exposed to hazardous substances in products that GrafTech supplied to Alcoa as early as 1942. The employees also alleged that they were exposed to fumes or particles released from the burning of coal-tar pitch in various parts of Alcoa plants. That these particles may not have permeated the entire manufacturing plant is immaterial-the insurance policy required only that the particles make the air inside the structure (the plant) impure or harmful.

{¶ 18} In any event, GrafTech does not dispute that the employees alleged that the release of fumes from coal-tar pitch had the effect of harming the environment or making the environment impure. See GrafTech motion for summary judgment at 31.

{¶ 19} Finally, GrafTech argues that the pollution exclusion does not apply because all of the employee complaints contain tort allegations regarding the use or handling of a product manufactured by GrafTech that, if proven, could potentially establish liability on GrafTech's part. It maintains that these allegations that GrafTech manufactured and sold allegedly dangerous products that each employee came into contact with or was exposed to state a potentially covered claim by GrafTech for which Pacific must pay the defense cost.

{¶ 20} An insurer's duty to defend is determined by the facts as alleged, not the legal theory of liability asserted in the complaint. Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d 574, 576, 752 N.E.2d 267 (2001) (court must decide whether complaint alleges sufficient facts to trigger a duty to defend); Orthopedic & Neurological Consultants v. Cincinnati Ins. Co. , C.P. No. 16CV-5552, 2017 Ohio Misc. LEXIS 426, 16 (May 8, 2017) ("a plaintiff's label for their legal theory is not the sole test for defense, there still must be conduct alleged in some manner that at least arguably could implicate coverage before a duty of defense can be found."). The complaints collectively allege that GrafTech's products released a toxic substance into the plant. The complaints further allege that GrafTech negligently failed to provide a safe product, the normal use of which resulted in a release of toxic chemicals that caused harm to exposed employees. These are allegations that GrafTech's products had the effect of making the environment impure, harmful, or dangerous. The pollution exclusion thus applies.

{¶ 21} The court did not err by finding that Pacific had no duty to defend GrafTech or that it had any duty to pay for GrafTech's defense of the employee lawsuits. Our disposition of this assignment of error moots consideration of the choice-of-law question. See App.R. 12(A)(2).

{¶ 22} Judgment affirmed.

MARY J. BOYLE, J., and ANITA LASTER MAYS, J., CONCUR

      There were allegations to show plant-wide releases of fumes from coal-tar pitch. One employee alleged that in 1977, air monitoring at the Alcoa plant "showed that excess exposures" to coal-tar pitch "could be found almost anywhere in the carbon plants and that both pitch dust and volatiles were contributing to the airborne concentrations." Phillips's complaint at ¶ 72. There were other allegations of airborne "migration" of polycyclic aromatic hydrocarbonates into various departments at the Alcoa plant. See Pevehouse complaint at ¶ 13.


author: SADLER, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael A. LONG, Defendant-Appellant.
    No. 16AP-708
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 29, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Argued: Laura R. Swisher.
    On brief: Koenig & Long, LLC, Columbus, and Charles A. Koenig, Columbus, for appellant. Argued: Charles A. Koenig.
    DECISION
   SADLER, J.

{¶ 1} Defendant-appellant, Michael A. Long, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of aggravated burglary, in violation of R.C. 2911.11, kidnapping, in violation of R.C. 2905.01, aggravated robbery, in violation of R.C. 2911.01, two counts of felonious assault, in violation of R.C. 2903.11, murder, in violation of R.C. 2903.02, attempted grand theft when the property is a firearm or dangerous ordinance, in violation of R.C. 2923.02 as it relates to R.C. 2913.02, and having weapons while under disability, in violation of R.C. 2923.13. For the reasons that follow, we reverse and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} The events that gave rise to this appeal occurred in the early morning hours of July 17, 2015, involving appellant and his friend Clement "Poncho" Cooper. The theory of plaintiff-appellee, State of Ohio, is that appellant and Poncho broke into a home occupied by several members of the Bowles family located at 3831 Scales Drive, Columbus, Ohio. According to witnesses, appellant and Poncho broke into the home to steal guns while the Bowles family members were away at work. When the Bowles family returned to their home, Jill Bowles found her son Timmy laying on the basement floor tied up with an extension cord. Other members of the Bowles family found appellant and Poncho in the home. A melee ensued during which Shawn Bowles received numerous stab wounds from Poncho about the head and neck as he held Poncho in a choke hold. When the police arrived, they found Poncho dead from asphyxia. Jill received a gunshot wound during the incident.

{¶ 3} The defense theory of the case was that the entire incident and Poncho's death were the tragic result of a love triangle between Timmy, his ex-girlfriend Elaine, who resided in the Scales Drive address with Timmy's parents, Jill and Tim Bowles, Sr., and Poncho, who was reportedly dating Elaine. According to the defense, Elaine had argued with Poncho the evening prior to the incident, and Poncho had ended up with Elaine's cell phone. The defense claims Elaine invited Poncho and appellant to the Scales Drive residence so she could recover her cell phone. When Timmy found Poncho in the home, the two began fighting. Appellant maintains that he did not break into the Bowles' home to steal guns. Appellant further maintains that he was invited into the home and that Poncho's death was the result of Timmy's jealousy over Elaine, not the result of appellant's attempt to commit a theft offense.

{¶ 4} On July 22, 2015, a Franklin County Grand Jury indicted appellant on the following charges: aggravated burglary, in violation of R.C. 2911.11, a felony of the first degree; kidnapping, in violation of R.C. 2905.01, a felony of the first degree; aggravated robbery, in violation of R.C. 2911.01, a felony of the first degree; two counts of felonious assault, in violation of R.C. 2903.11, a felony of the second degree; murder, in violation of R.C. 2903.02, an unclassified felony; and attempted grand theft when the property is a firearm or dangerous ordinance with firearm specification, in violation of R.C. 2923.02 as it relates to R.C. 2913.02, a felony of the fourth degree. Each of the above listed charges included a firearm specification. Appellant was also indicted for having weapons while under disability, in violation of R.C. 2923.13.

{¶ 5} On August 1, 2016, the jury trial commenced. At the opening of court, the trial judge made the following announcement in the presence of the jury:

THE COURT: * * * I just wanted to let everyone know in the courtroom that we are here to resolve this case, right? And so you need to be very careful about what you say and do, who you talk to and the like, so that there is no mistrial or anything that causes a disturbance to the trial. Because if there is anything that I think is going to distract the jurors, I'm going to have to ask you to leave the courtroom; and then, if there are other things that happen that [appellant's trial counsel] can talk to you about, like talking to witnesses or anything like that, it would cause us to start all over again and you wouldn't get the resolution that we're here today to start.

(Tr. Vol. 1 at 5-6.)

{¶ 6} On August 2, 2016, appellee presented the testimony of several witnesses, including police officers and detectives who were involved in the case. On August 3, 2016, appellee produced testimony from a forensic expert, several members of the Bowles family, and a family friend who was in the home on July 17, 2015.

{¶ 7} On August 4, 2016, prior to continuing with the trial, the court and counsel examined juror number 4, outside the presence of the other jury members, regarding efforts allegedly made by someone associated with appellant to relay a message to juror number 4 through the juror's son-in-law. The transcript of the trial court's examination of juror number 4 reveals that some unidentified person contacted the son-in-law because he wanted someone to "get with" the juror. Juror number 4 told the court, after speaking with his son-in-law, he realized that he might know appellant. According to juror number 4, he and appellant are part of the same "motorcycle set," meaning they are both members of local motorcycle clubs. (Tr. Vol. 3 at 464.) Juror number 4 told the court that he did not realize he knew appellant at the start of the trial because he knew appellant by the nickname he used in the motorcycle club and therefore did not know appellant's real name. Juror number 4 told the court he had not spoken to any of the other jurors regarding this issue.

{¶ 8} Following the examination of juror number 4, the court made the following ruling:

THE COURT: * * * I think you probably understand why we have to thank you for answering your jury summons and being fair and attentive up until this point. But based on the attempted messages to you as well as the fact that you even have any kind of connection at all to the defendant, we are going to excuse you from your service.
JUROR NO. 4: Mm-hmm. I have no problem with that.

(Tr. Vol. 3 at 468.)

{¶ 9} Following this ruling, and before the state called its next witness, the trial court decided, sua sponte, to close the courtroom to the public. The trial court announced its ruling on the record as follows:

At the beginning of the trial, there was an altercation in the hallway between-I'm not sure who but someone in the Bowles family. After that occurred, the court stated to everyone that was in the courtroom that what-they had to be careful what they said or did, because their actions could cause them to be asked to leave the courtroom or for them-or for us to have to start this trial over.
It has come the court's attention that someone associated with the defendant-I don't know who, but someone associated with the defendant did try and contact one of the jurors, which is very concerning, because the goal here is to have a fair trial unimpeded by outside influences. So for those reasons and in this context I am going to shut the courtroom down.
The goal of shutting the courtroom down is-well, first of all, I'm going to excuse that juror, and I swore in all of the jurors as regular jurors anyway. So one of the alternates, Alternate No. 1, will replace that juror. However, that doesn't completely solve the problem, because I don't know who it was that called the juror who is going to be excused. So for that reason and in order to preserve the integrity of this trial, I am going to shut the courtroom down, so that no one else has an opportunity to see or hear what's going on in this courtroom. Again, it is to make sure we have a fair and impartial trial that is not influenced by any outside sources.

(Tr. Vol. 3 at 470-71.)

{¶ 10} Neither party objected to the trial court's ruling. The courtroom remained closed to the public for the remainder of the trial including the testimony of the deputy coroner, Timmy Bowles, and Shawn Bowles. Appellant rested his case without calling any witnesses. Prior to sending the case to the jury, the trial court clarified that "we * * * close[d] the courtroom to everyone except the media. * * * [O]nce the jury comes up with a verdict, the concern about contacting jurors is gone. So the courtroom will be open back up to everyone if and when we get a verdict." (Tr. Vol. 4 at 599.)

{¶ 11} The jury subsequently found appellant guilty of all charges in the indictment. The trial court found appellant guilty of the offense of having weapons while under disability. After merging several counts in the indictment for purposes of conviction and sentence, and ordering appellant to serve several of the prison terms concurrently, the trial court imposed an aggregate sentence of 25 years to life.

{¶ 12} Appellant timely appealed to this court from the judgment of the trial court.

II. ASSIGNMENTS OF ERROR

{¶ 13} Appellant asserts the following four assignments of error:

1. The trial court deprived Appellant of his constitutional rights to a public trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, when it closed his trial to the public.
2. Appellant was deprived of his constitutional rights to due process in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of ineffective assistance of counsel.
3. The evidence adduced at trial is insufficient as a matter of law to support Appellant's convictions on the charge of Kidnapping.
4. The trial court erred when it sentenced Appellant to consecutive terms of imprisonment without making the required findings set forth in the Ohio Revised Code section 2929.14(C)(4).

III. LEGAL ANALYSIS

A. First Assignment of Error

{¶ 14} In appellant's first assignment of error, appellant contends the trial court committed reversible error when it closed the trial to the public. We agree.

{¶ 15} In State v. Sowell , 10th Dist. No. 06AP-443, 2008-Ohio-3285, 2008 WL 2600222, this court discussed the constitutional significance of the right to a public trial as follows:

The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Section 10, Article I, Ohio Constitution also guarantees an accused the right to a public trial. Historically, the right to a public trial has been recognized as a safeguard against possible infringements against the accused. State v. Grant , Cuyahoga App. No. 87556, 2007-Ohio-1460 [2007 WL 926398], at ¶ 12. "An open courtroom is necessary to preserve and support the fair administration of justice because it encourages witnesses to come forward and be heard by the public, discourages perjury by the witnesses, and ensures that the judge and prosecutor will carry out their duties properly." Id. , citing State v. Lane (1979), 60 Ohio St.2d 112, 119, 397 N.E.2d 1338, and Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed. 2d 31. Further, a public trial permits the general public to observe that the accused is " 'fairly dealt with and not unjustly condemned, and that the presence of the interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.' " Id. , quoting Waller at 43 [104 S.Ct. 2210]. The public's right to attend criminal trials is also implicit within the guarantees of the First Amendment. State v. Morris , 157 Ohio App.3d 395, 398, 2004-Ohio-2870, 811 N.E.2d 577, citing State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 420, 28 Ohio B. 472, 504 N.E.2d 37.

Id. at ¶ 32.

{¶ 16} Because of the constitutional significance of an accused's right to a public trial, "[t]he violation of the right to a public trial is considered structural error and not subject to harmless-error standard." State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 50, citing Waller v. Georgia , 467 U.S. 39, 49-50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), fn. 9. " 'A structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." ' " Sowell at ¶ 33, quoting Drummond at ¶ 50, quoting Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Because the denial of a defendant's right to a public trial under Article I, Section 10 of the Ohio Constitution is considered structural error, it "cannot be waived by the defendant's silence." State v. Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. Consequently, appellant did not waive his right to a public trial in this case by a failure to object at trial. Id. See also Sowell at ¶ 36.

{¶ 16} The right to a public trial is not absolute, however, and an order barring spectators from observing a portion of an otherwise public trial does not necessarily introduce error of constitutional dimension. In Waller, the Supreme Court of the United States set forth the following four-part test trial courts should apply in determining whether a courtroom closure is warranted: 1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; 2) the closure must be no broader than necessary to protect that interest; 3) the trial court must consider reasonable alternatives to closing the proceeding; and 4) the trial court must make findings adequate to support the closure. Bethel at ¶ 82, quoting Waller at 48, 104 S.Ct. 2210.

{¶ 17} The Supreme Court of Ohio in Drummond subsequently modified the Waller test in cases where the trial closure is partial rather than total. In Drummond , the court concluded that "[w]hen a trial judge orders a partial, as opposed to a total, closure of a court proceeding, a 'substantial reason' rather than Waller's 'overriding interest' will justify the closure." Id. at ¶ 53.

{¶ 18} In Drummond , the defendant was on trial for capital murder in connection with a gang-related drive-by shooting. During the trial, there had been a physical altercation between a spectator and courtroom deputies and another incident where "one of the spectators * * * showed total disrespect to the Court in chambers." Id. at ¶ 32. There was also an earlier disturbance involving a member of the victim's family and a spectator, as well as an incident where "John Drummond approached a potential juror's husband in the jail." Id. at ¶ 40. The trial judge closed the courtroom to all spectators during the cross-examination of one witness and the testimony of two other witnesses. The trial judge permitted the media to remain in the courtroom. The trial court cited the prior altercations and "the fear of retaliation expressed by various witnesses" as justification for the closure. Id. at ¶ 54. The court of appeals affirmed the conviction, and appellant appealed to the Supreme Court arguing the trial court violated his right to a public trial.

{¶ 19} With respect to the first Waller factor, the Drummond court concluded "the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation" provided the trial court with a substantial reason or interest in closing the courtroom. Id. at ¶ 54. The Drummond court concluded, as to the second Waller factor, that the closure of the courtroom during the testimony of three state witnesses was not broader than necessary. Drummond at ¶ 55. The court also noted the fact that the media remained in the courtroom "helped safeguard Drummond's right to a public trial" because the witnesses' awareness of the media minimized the risk that they would alter their testimony. Id.

{¶ 20} Though the Drummond court found, as to the third Waller factor, that the trial court did not consider alternatives to closing the courtroom, the court did not believe this was error given the fact the closure was only during the testimony of three specific witnesses. Drummond at ¶ 57. Finally, as to the fourth factor, the Drummond court found "the trial court should have made additional findings to clarify the reasons for closing the court." Id. at ¶ 58. Nevertheless, because the trial court stated on the record there had been a physical altercation between spectators and courtroom deputies, another incident occurred in the judge's chambers, and certain witnesses related their fear of retaliation if they testified in open court, the Supreme Court concluded the reasons expressed by the trial court for the limited closure were adequate. Id.

{¶ 21} Here, the closure of the courtroom is arguably a partial closing inasmuch as several witnesses had testified prior to the closing, and the trial court permitted the media to remain in the courtroom. However, unlike the situation in Drummond , the trial court did not close the courtroom during the testimony of any particular witness to protect the safety and welfare of the witness. Rather, the trial court closed the courtroom to all but the media once the trial judge felt the circumstances warranted closure, out of an apparent concern for the integrity of the process. Even considering the closure in this case as a partial closure for purposes of conducting the Waller analysis, we find, under these facts, the trial court abused its discretion by closing the courtroom to the public.

{¶ 22} With regard to the first Waller factor, because we consider the closure in this case to be partial, the trial judge needed a "substantial reason" to close the trial to the public. The trial judge articulated the following reason on the record:

At the beginning of the trial, there was an altercation in the hallway between-I'm not sure who but someone in the Bowles family. After that occurred, the court stated to everyone that was in the courtroom that what-they had to be careful what they said or did, because their actions could cause them to be asked to leave the courtroom or for them-or for us to have to start this trial over.
It has come the court's attention that someone associated with the defendant-I don't know who, but someone associated with the defendant did try and contact one of the jurors, which is very concerning, because the goal here is to have a fair trial unimpeded by outside influences. So for those reasons and in this context I am going to shut the courtroom down.
The goal of shutting the courtroom down is-well, first of all, I'm going to excuse that juror, and I swore in all of the jurors as regular jurors anyway. So one of the alternates, Alternate No. 1, will replace that juror. However, that doesn't completely solve the problem, because I don't know who it was that called the juror who is going to be excused. So for that reason and in order to preserve the integrity of this trial, I am going to shut the courtroom down, so that no one else has an opportunity to see or hear what's going on in this courtroom. Again, it is to make sure we have a fair and impartial trial that is not influenced by any outside sources.

(Tr. Vol. 3 at 470-71.)

{¶ 23} At appellant's sentencing hearing, the trial court clarified the extent to which it closed the trial to the public as follows:

THE COURT: Just so everyone is clear on everything-you can have a seat. You know, Monday there was an issue out in the hallway between the Bowles family and some other people that were here in support of [appellant] and/or-he's been called Poncho so many times now, I'm sorry. I can't remember his real name. So for that reason and because of that altercation in the hallway, through the course of the trial, there have been two deputies in here as well as two deputies outside of the courtroom, which served us well through Thursday when we received news that one of the jurors-there had been some attempts made to contact one of the jurors.
We went on the record regarding that attempted contact. We did excuse that juror. However, the court has already put on the record that that did not completely solve the problem, because we did not know who it was that tried to contact the juror, and that already has been placed on the record, to prevent any more such attempts. To make sure that there was a separation of witnesses and to preserve the integrity of [appellant's] trial, we did close the courtroom to everyone except the media.

(Tr. Vol. 4 at 598-99.)

{¶ 24} First, we believe the trial court properly handled the altercation in the hallway prior to trial by posting two deputies in the courtroom and two deputies in the hallway on the first day of trial. There is nothing in the record to suggest that any further altercations took place either in the courtroom or in the hallway on August 2 or 3. Accordingly, the posting of the extra deputies appears to have resolved the issues of safety and security in the courtroom and hallway. Consequently, the altercation that occurred in the hallway on the first day of trial could not have provided the trial court with a substantial reason to close the courtroom to the public on August 4.

{¶ 25} Moreover, even if the trial court believed that the altercation on the first day of trial involving a member of the Bowles family necessitated stronger measures to preserve courtroom safety and security on the fourth day of trial because of the subsequent incident with juror number 4, the trial judge did not consider alternatives to closing the trial to the public. For instance, the record does not show that the trial court considered prohibiting non-testifying family members from attending the trial. Even if the trial court's concern had been security in the courtroom, because no further altercations had occurred, excluding the family members would have been a more narrowly tailored solution than closing the trial to the public. Sowell at ¶ 39, citing Shepard v. Artuz , S.D.New York No. 99 Civ. 1912, 2000 WL 423519 (Apr. 19, 2000), quoting United States ex rel. Orlando v. Fay , 350 F.2d 967, 971 (2d Cir.1965) (a trial court may exclude disorderly spectators after " 'balanc[ing] between the requirement that the actions of the courts be open to public scrutiny and the need to have the trial proceed in an orderly manner' "); State v. Dubose , 174 Ohio App.3d 637, 2007-Ohio-7217, 884 N.E.2d 75, ¶ 105 (7th Dist.) (the trial court should have identified the problem spectators and only excluded them from the courtroom, rather than closing the trial to the public and the media). Though Drummond and Waller required the trial court to consider other available options before closing the trial, it does not appear from the record that the trial court did so in this case.

{¶ 26} Similarly, we fail to see how the incident with juror number 4 could have provided a substantial reason to close the courtroom to the public. Juror number 4 realized he was acquainted with appellant as a fellow member of the "motorcycle set" after his son-in-law relayed a message to him from an unidentified third party who recognized juror number 4. (Tr. Vol. 3 at 464.) The trial judge excused juror number 4 after he disclosed the improper contact. In our view, excusing juror number 4 resolved the issue.

{¶ 27} In Drummond , the trial court closed the trial to the public during the testimony of certain witnesses who expressed a fear of retaliation from persons associated with the accused. Thus, in Drummond , there was a clear nexus between the trial court's decision to close the trial to the public and the need to eliminate of risk of harm to certain witnesses. Unlike the Drummond case, neither the jurors nor any other participant in the trial expressed concerns for their physical safety.

{¶ 28} In this case, given the unique nature of the improper contact with juror number 4, we do not perceive an increased risk that the same unidentified individual or another member of the public would contact other jurors. The trial had been open to the public for three days prior to the time the trial court decided to close the court to the public. Consequently, closing the trial to the public on August 4, 2016 would not have prevented similar attempts to contact other jurors. Simply put, the record does not reveal any increased risk of jury tampering arising from the prior contact with juror number 4 that would have justified closing the trial to the public.

{¶ 29} Moreover, in consideration of the second and third Waller factors, even if it were reasonable to conclude that a risk of further jury contact existed in this case as a result of the improper contact with juror number 4, the trial judge could have taken other measures short of closing the trial to the public which would have eliminated the risk.

{¶ 30} R.C. 2945.31 provides for the separation of jurors as follows:

After the trial has commenced, before or after the jury is sworn, the court may order the jurors to be kept in charge of proper officers, or they may be permitted to separate during the trial. If the jurors are kept in charge of officers of the court, proper arrangements shall be made for their care, maintenance, and comfort, under the orders and direction of the court. In case of necessity the court may permit temporary separation of the jurors.

Crim.R. 24(H)(1) and Ohio Sup.R. Standard 19(A) provide a trial court may, on its own initiative, sequester a jury for the purpose of insulating its members from improper information or influences. Though such a measure may certainly inconvenience the jury and results in additional expense, sequestering the jury would have eliminated the risk of improper juror contact in this case without infringing on appellant's constitutional right to a public trial. The record does not show the trial court considered the available alternative of jury sequestration, as permitted by R.C. 2945.31 and Ohio Sup.R. Standard 19, or any other measure to ensure "a separation of witnesses and to preserve the integrity of [appellant's] trial." (Tr. Vol. 4 at 599.) Thus, the trial court erred when it failed to consider reasonable alternatives to closing the proceeding as required by Drummond and Waller .

{¶ 31} With regard to the final Waller factor, as noted above, the trial judge made two findings in support of the decision to close the trial to the public: 1) the altercation involving a Bowles family member that occurred in the hallway on the first day of trial; and 2) the improper indirect contact with juror number 4. The trial court made no other findings in support of its decision, and the record does not disclose any other incidents or circumstances that would have necessitated the closing of the trial to the public. If there were other relevant incidents or circumstances justifying closure that are not evident from the record, the trial court made no such findings. We cannot agree with the trial court's conclusion that the cumulative effect of the two specified incidents affected the integrity of the proceedings in such a way that closing the trial to the public became necessary. For the reasons stated above, it is our determination that the findings of the trial court are insufficient to warrant denial of appellant's constitutional right to a public trial.

{¶ 32} "As has been aptly stated, 'the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial , contributing a dignity essential to the "integrity of the trial" process.' " (Emphasis sic.) State v. Lane , 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979), quoting Estes v. Texas , 381 U.S. 532, 561, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). In Lane , the Supreme Court of Ohio identified "at least four policy reasons for safeguarding the need for public trials." Id. at 119, 397 N.E.2d 1338. The court stated that "a public trial assures testimonial trustworthiness by inducing fear of testimony falsely given * * *; * * * a public trial makes the proceedings known to a possible material witness who might otherwise be unknown to the parties * * *; and * * * public trial allows the public to learn about the functioning of their government." (Internal citations omitted.) Id.

{¶ 33} For the foregoing reasons, we find the trial court's failure to satisfy the Waller test and lack of a substantial reason to close the trial to the public, as required by Drummond , violated appellant's Sixth Amendment right to a public trial and mandates reversal. Though we recognize and appreciate the trial court's desire to avoid a "mistrial or anything that causes a disturbance," the lack of a record to support closing the courtroom on August 4, 2016 and the failure to consider other available and alternative measures leaves this court with no alternative but to find that the trial court abused its discretion. (Tr. Vol 1 at 5.) We further find the appropriate remedy is to reverse the judgment of the trial court and remand this matter for a new trial. State v. Woods , 8th Dist. No. 94141, 2011-Ohio-817, 2011 WL 662764, ¶ 29 ; Dubose at ¶ 3.

{¶ 34} For the foregoing reasons, we sustain appellant's first assignment of error.

B. Second, Third, and Fourth Assignments of Error

{¶ 35} Because we have sustained appellant's first assignment of error and remanded this cause for a new trial, appellant's second assignment of error alleging ineffective assistance of counsel, appellant's third assignment of error alleging insufficiency of the evidence as to the kidnapping conviction, and appellant's fourth assignment of error alleging failure of the trial court to make findings in support of consecutive sentences are rendered moot. App.R. 12(A)(1)(c).

IV. CONCLUSION

{¶ 36} Having sustained appellant's first assignment of error and having determined that appellant's remaining assignments of error are moot, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter for a new trial.

Judgment reversed ; cause remanded.

BROWN and LUPER SCHUSTER, JJ., concur.

      We note that the colloquy between juror number 4 and the trial court indicates that someone called "the jack" contacted the son-in-law, but the motive behind the contact is unclear. The transcript provides, in relevant part, as follows:
      THE COURT: So, someone asked your son-in-law-
      JUROR NO. 4: No, someone-and he-the way it came to me was they asked someone to get with me. So then the jack transferred it on to my son-in-law. My son-in-law called me.
      THE COURT: Mm-hmm. And when you said they asked-
      JUROR NO. 4: To just get with me, I don't know what that meant. I didn't know which way it was going, you know. So, that's why I'm here. Because they may be-
      THE COURT: Well, you know, get with you could mean injure you.
      JUROR NO. 4: Mm-hmm.
      THE COURT: Or it could mean talk to you, like, get with you, hook up, meet up with you.
      JUROR NO. 4: Or try to find out what's going on also.
      THE COURT: Yep.
      JUROR NO. 4: I look at that the same way.
      THE COURT: Mm-hmm.
      JUROR NO. 4: I was, like, how did he-so I noticed that he kept looking at me, and I kept figuring out, like, I've seen him somewhere, but it don't really look like him.
      * * *
      JUROR NO. 4: * * * But I didn't know which way that went. But I do have my eyes open now, though, in case. I mean, I'm okay. I ain't worried about it, really. You know, but it could have been some repercussions behind this. I feel like if I made a judgment, you know, maybe it would have, maybe it wouldn't. I didn't know which way it was going. So that's why I came in. Well, mainly, I came in to let you all know from the start, because after they put it together for me, it came to me on who he was.
      (Tr. Vol. 3 at 465-68.)

      This statement makes apparent that the trial court's concern with closing the courtroom was not to ensure the safety of the jurors and participants of the trial but, rather, to protect the jurors from outside influences.

      R.C. 2945.32 requires the clerk of the court of common pleas to administer an oath to any officer in charge of the jurors if the court orders jury sequestration in a criminal case.


author: Baldwin, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Christopher REECE, Defendant-Appellant
    No. 17 CAC 03 0019
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT: January 11, 2018
    MICHAEL D. SHAW, Assistant Prosecuting Attorney, Delaware City Prosecutor's Office, 70 North Union Street, Delaware, Ohio 43015, For Plaintiff-Appellee
    MICHAEL A. MARROCCO, 98 North Union Street, Delaware, Ohio 43015, For Defendant-Appellant
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellant, Christopher Reece, appeals from the Municipal Court of Delaware County's December 28, 2016 decision that the arresting officer was justified in conducting field sobriety tests because the evidence supported a finding of reasonable suspicion that the appellant was driving while impaired. Appellee is the State of Ohio.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 26, 2016, at approximately 1:46 a.m., appellant left a bar on Sancus Boulevard after consuming a "couple" beers, and made a very wide right turn into the leftmost lane of Sancus Boulevard heading southbound. Trooper Rueda noticed his behavior and executed a U-turn. She believed he may be exceeding the speed limit and, through the use of a radar gun, she was able to determine that the appellant was traveling 45 mph in a 35 mph zone. She stopped the appellant for the traffic violation.

{¶ 3} After the appellant stopped, the trooper noticed that he appeared to lose his balance as he dismounted from his motorcycle. Despite the fact that he was outdoors and had been riding a motorcycle at 45 mph, the trooper detected a strong odor of alcohol about him. This odor of alcohol remained strong throughout her contact with the appellant. She also saw that his eyes were glassy and bloodshot. In an exchange with the appellant she learned that he had just left Rude Dog, a local bar, and that he had "a couple of beers." Based upon her observations and appellant's admissions, she administered field sobriety tests and, subsequent to the field sobriety tests, arrested appellant. He was charged with violation of R.C. 4511.19 (A)(1)(a), 4511.19 (A)(1)(d) (O.V.I. per se), and a charge of Speeding under 4511.21.

{¶ 4} Appellant filed a motion to suppress evidence resulting from the traffic stop pursuant to Crim.R. 12(C). Appellant contended that the state failed to establish reasonable suspicion to conduct the field sobriety tests, that scoring of the field sobriety tests was done incorrectly, that the state did not establish probable cause for his arrest and that the Breathalyzer test was not valid.

{¶ 5} The trial court conducted a hearing on the motion to suppress the evidence on December 6, 2016. Prior to the hearing, the parties stipulated that the traffic stop was proper because the appellant exceeded the speed limit. The parties stipulated other issues not relevant to the assignment of error. After receiving testimony from the trooper, the trial court overruled appellant's motion to suppress.

{¶ 6} On February 22, 2017, appellant amended his plea to no contest to the charge under R.C. 4511.19 (A)(1)(a) and the balance of the charges were dismissed. The trial court found the appellant guilty and appellant filed a timely notice of appeal with regard to the Court's finding regarding the issue of reasonable suspicion that the appellant was under the influence of alcohol.

{¶ 7} Appellant submits one assignment of error:

{¶ 8} I. THE TRIAL COURT ERRED IN FINDING THE TROOPER HAD REASONABLE SUSPICION TO EXPAND THE SCOPE OF APPELLANT'S STOP TO INCLUDE FIELD SOBRIETY TESTS.

{¶ 9} The appellant limits his appeal to the trial court's holding that Trooper Rueda had reasonable suspicion that appellant was under the influence of alcohol. Appellant contends the facts do not support reasonable suspicion and that, therefore, the administration of field sobriety tests was an improper expansion of the detention of appellant. 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. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583 ; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141 ; 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. The United States Supreme Court has held that "... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911. Therefore we will review the appellant's assignment of error de novo.

{¶ 10} The propriety of an investigative stop must be viewed in light of the totality of the circumstances surrounding the stop "as viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Andrews , 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991) ; State v. Bobo , 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States has re-emphasized the importance of reviewing the totality of the circumstances in making a reasonable-suspicion determination:

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." Although an officer's reliance on a mere "hunch" is insufficient to justify a stop, 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. United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), citing United States v. Cortez , 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

State v. Caplinger , 5th Dist. Muskingum No. CT2013-0018, 2013-Ohio-5675, 2013 WL 6834807, ¶ 16.

{¶ 11} Appellant conceded that the traffic stop was justified, but argued that there was not sufficient evidence to justify the continued detention and the conduct of field sobriety tests. In analyzing the facts presented, we accept the template set forth by the Supreme Court of Ohio in State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus: "The 'reasonable and articulable' standard applied to a prolonged traffic stop encompasses the totality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop." The intrusion on the drivers' liberty resulting from a field sobriety test is minor, and the officer therefore need only have reasonable suspicion the driver is under the influence of alcohol in order to conduct a field sobriety test. State v. Knox , Greene App. No. 2005-CA-74, 2006-Ohio-3039, 2006 WL 1661628. See also, State v. Bright , 5th Dist. Guernsey App. No. 2009-CA-28, 2010-Ohio-1111, 2010 WL 1035466.

{¶ 12} 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. Albaugh , 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, 2015 WL 5096900, ¶ 18, quoting State v. Anez (2000), 108 Ohio Misc.2d 18, 26-27, 738 N.E.2d 491.

{¶ 13} In the case at bar, the totality of the circumstances provided the Trooper a "particularized and objective basis" for suspecting the appellant was impaired by alcohol. The Trooper first noticed the appellant when he made an unusual right turn, placing him in the far left lane of the road rather than the right lane as might normally be expected, and then he proceeded to exceed the speed limit by approximately 10 mph. The time of the offense, 1:46 a.m., appellant's admission of recently consuming alcohol at a local bar, and his apparent difficulty dismounting his motorcycle are additional relevant facts. The Trooper noticed that appellant had glassy, bloodshot eyes and a strong odor of alcohol even though he was driving 45 mph outdoors. All of these details, in the context of the trooper's training and experience, provide a sufficient basis for a conclusion that the trooper was warranted in having reasonable suspicion the appellant had violated the Revised Code. In fact, the evidence provided by the totality of the circumstances in this case exceeds what we have found necessary to support reasonable suspicion in other cases.

{¶ 14} This Court has held that "[I]n Ohio, it is well settled that, "[w]here a non-investigatory 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." (citations omitted) State v. Smith , 5th Dist. Licking No. 09-CA-42, 2010-Ohio-1232, 2010 WL 1138830, ¶ 34. The facts of this case fit precisely within the holding of Smith and the cases cited by the trial court in its decision. Trooper Rueda testified that appellant had glassy and bloodshot eyes, that she noticed a strong odor of alcohol and that the appellant admitted to consuming alcohol. Those facts, combined with the wide right turn, excessive speed, and the admission that appellant had just left a bar, provide abundant evidence from which reasonable suspicion can be derived.

{¶ 15} Appellant cites the Sixth District Court of Appeals holding in Whitehouse v. Stricklin , 6th Dist. Lucas No. L-10-1277, 2012-Ohio-1877, 2012 WL 1493830 in support of his argument that the facts are insufficient to provide reasonable suspicion of the commission of a crime. That case is distinguishable in that the odor of alcohol about appellant in that case was described as slight, whereas the trooper in the case at bar described the odor as strong. This distinction is significant because the Sixth District Court of Appeals has held that the strong odor of alcohol and an admission of consumption of alcohol are sufficient to justify administration of field sobriety tests. "These two factors, perceived * * * during the initial stop, created a reasonable suspicion that appellant's blood-alcohol level was over the proscribed limits and justified field sobriety tests." State v. Beeley , 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, 2006 WL 2640228, ¶ 18. Consequently, following the precedent of the Sixth District Court of Appeals would not alter our analysis or conclusion.

{¶ 16} Appellant refers to cases cited in Stricklin , State v. Spillers , (Mar. 24, 2000), 2d Dist. 1504, 2000 WL 299550, and State v. Dixon (Dec. 1, 2000), 2d Dist. No. 2000-CA-30, 2000 WL 1760664, but those cases provide no support for appellant. The Second District "has repeatedly held that a strong odor of alcohol alone is sufficient to provide an officer with a reasonable, articulable suspicion of driving under the influence." (Citations omitted) State v. Louis , 2nd Dist. Montgomery No. 27268, 2017-Ohio-8666, 2017 WL 5629571, ¶ 33 The Second District would presumably not reach a different result in this case as the trooper has testified that appellant had a strong odor of alcohol about him even though he was on a motorcycle and not enclosed in vehicle.

{¶ 17} Based upon the totality of the circumstances, we find Trooper Rueda relied upon specific, articulable facts giving rise to a reasonable suspicion appellant was driving under the influence, that an extension of the initial detention for the performance of field sobriety testing was justified, and the ruling of the trial court was correct.

{¶ 18} The assignment of error is denied.

{¶ 19} The judgment of the Delaware Municipal Court is affirmed.

{¶ 20} The costs assessed to appellant.

Delaney, P.J. and John Wise, J. concur.