author: PRESTON, J.

text:
    Timothy A. ECHEMANN, Plaintiff-Appellee, v. Thomas A. ECHEMANN, Defendant-Appellant, and Echo Outdoor, et al., Defendants-Appellees.
    NO. 17-17-15
    Court of Appeals of Ohio, Third District, Shelby County.
    Date of Decision: April 16, 2018
    Thomas W. Kerrigan, II for Appellant
    Jeremy M. Tomb for Appellee, Timothy Echemann
   PRESTON, J.

{¶ 1} Defendant-appellant, Thomas A. Echemann ("Tom"), appeals the August 28, 2017 judgment entry of the Shelby County Common Pleas Court granting plaintiff-appellee, Timothy A. Echemann ("Tim"), relief from judgment. For the reasons that follow, we reverse the decision of the trial court.

{¶ 2} Tom, Tim, and Pat Echemann ("Pat") were equal partners in Echo Outdoor, an Ohio partnership which owned and operated three billboards in or near Sidney, Ohio. (Doc. Nos. 142, 147).

{¶ 3} On September 28, 2015, Tim filed a complaint with the trial court seeking a judicial dissolution of Echo Outdoor. (Doc. No. 1). On October 15, 2015, Tom and Pat filed a joint answer. (Doc. No. 23). On November 9, 2015, Tim filed an amended complaint. (Doc. No. 33). On November 24, 2015, Tom and Pat filed a joint answer to Tim's amended complaint. (Doc. No. 39).

{¶ 4} On December 2, 2016, the trial court ordered judicial dissolution of Echo Outdoor. (Doc. No. 174).

{¶ 5} Following a June 26, 2017 bench trial, the trial court issued a judgment entry on July 17, 2017 determining the remaining assets of the partnership and setting an order of distribution. (Doc. Nos. 211, 231).

{¶ 6} On August 9, 2017, Tim filed a motion for relief from judgment under Civ.R. 60(B) requesting that the trial court vacate the July 17, 2017 judgment entry and issue a new judgment entry. (Doc. No. 247). On August 14, 2017, Tom filed a memorandum in opposition to Tim's motion for relief from judgment. (Doc. No. 250).

{¶ 7} On August 23, 2017, the trial court granted Tim relief from judgment under Civ.R. 60(B) to correct a "mistake by the Court." (Doc. No. 252). The trial court stated that it "failed to address the issue of credits which were unilaterally taken by the parties in advance of trial but not considered by the Court in its Judgment Entry filed July 17, 2017." (Id. ). The trial court further "acknowledge[d] that it focused on the issues as discussed by counsel without taking a more broad consideration of all the testimony presented at trial." (Id. ). In conjunction with relieving Tim from judgment, the trial court issued an amended judgment entry purporting to remedy defects in the July 17, 2017 judgment entry. (Id. ).

{¶ 8} On August 28, 2017, the trial court sua sponte issued a second amended judgment entry to correct a clerical error contained within the judgment entry filed on August 23, 2017. (Doc. No. 256).

{¶ 9} On September 8, 2017, Tom filed a notice of appeal. (Doc. No. 261). Tom raises two assignments of error for our review. We will address the assignments of error together.

Assignment of Error No. I

The Trial Court Erred by Granting Tim Echemann's Civ.R. 60(B) Motion for Relief from the Judgment Entry.

Assignment of Error No. II

The Trial Court Erred by Granting Tim Echemann's Request to Amend the Judgment Entry in his Civ.R. 60(B) Motion for Relief from the Judgment Entry.

{¶ 10} In his first assignment of error, Tom argues that the trial court erred in granting Tim's Civ.R. 60(B) motion for relief from the July 17, 2017 judgment ("July 17 judgment") of the trial court. Specifically, Tom argues that the trial court erred because Tim failed to proffer a meritorious defense or demonstrate that he is entitled to relief under any of the grounds set forth in Civ.R. 60(B)(1) through (5). In his second assignment of error, Tom asserts that the trial court erred by amending the July 17 judgment as part of granting Tim's motion for relief from judgment.

{¶ 11} To prevail on a motion for relief from judgment brought under Civ.R. 60(B), the moving party must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party 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, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. "These requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met." Strack v. Pelton , 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994), citing GTE at 151, 351 N.E.2d 113.

{¶ 12} From the face of the trial court's order relieving Tim from judgment, it is unclear precisely which basis for relief from judgment under Civ.R. 60(B) the trial court relied on. However, based on the language contained in Tim's motion for relief from judgment and the trial court's order and because Civ.R. 60(B)(2) through (4) are inapplicable to this case, we are assuming that the trial court granted Tim relief from judgment under Civ.R. 60(B)(1) or (5). See Kerr Bldgs., Inc. v. Bishop , 3d Dist. Henry No. 7-14-07, 2014-Ohio-5391, 2014 WL 6871355, ¶ 16, citing Estate of Heffner v. Cornwall , 3d Dist. Mercer No. 10-03-06, 2003-Ohio-6318, 2003 WL 22787613, ¶ 20.

{¶ 13} Civ.R. 60(B) provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment.

Civ.R. 60(B)(1), (5). Of the four grounds listed in Civ.R. 60(B)(1), we are assuming that, based on the language used in the trial court's August 23, 2017 order and amended judgment entry, the trial court relieved Tim from its July 17 judgment on grounds of "mistake."

{¶ 14} "Mistake," as the term is used in Civ.R. 60(B)(1), refers to the mistakes of a party or a party's agent. Doyle v. St. Clair , 9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, 2017 WL 2743365, ¶ 14 ; Blatt v. Meridia Health Sys. , 8th Dist. Cuyahoga No. 89074, 2008-Ohio-1818, 2008 WL 1747427, ¶ 10 ; Carrabine v. Brown , 11th Dist. Geauga No. 92-G-1736, 1993 WL 318809, *3 (Aug. 13, 1993) ("In our opinion, the term 'mistake' as used in Civ.R. 60(B)(1) refers solely to mistakes which have been made by a party * * *."); Karpanty v. Scheer , 6th Dist. Lucas No. L-86-020, 1986 WL 6282, *2 (June 6, 1986). See Hankinson v. Hankinson , 7th Dist. Mahoning No. 03 MA 7, 2004-Ohio-2480, 2004 WL 1088408, ¶ 20. In contrast, " 'a factual or legal mistake on the part of the trial court is not the type of mistake contemplated by Civ.R. 60(B)(1).' " Culgan v. Miller , 9th Dist. Medina No. 10CA0074-M, 2011-Ohio-6194, 2011 WL 6016489, ¶ 12, quoting Hankinson at ¶ 20, citing Gold Touch, Inc. v. TJS Lab., Inc. , 130 Ohio App.3d 106, 110-111, 719 N.E.2d 629 (8th Dist.1998). Accord In re Adoption of A.N.L. , 12th Dist. Warren Nos. CA2004-11-131 and CA2005-04-046, 2005-Ohio-4239, 2005 WL 1949678, ¶ 26 ; Morley v. Morley , 6th Dist. Lucas No. L-04-1051, 2004-Ohio-5247, 2004 WL 2334161, ¶ 10 ("A mistake by the trial court in applying the law or finding of fact is not the type of 'mistake' contemplated by Civ.R. 60(B)(1) or any other section of Civ.R. 60(B) * * *."); Carrabine at *3. See Chester Twp. v. Fraternal Order of Police, Ohio Labor Council, Inc. , 102 Ohio App.3d 404, 408, 657 N.E.2d 348 (11th Dist.1995) ("The failure of a trial court to read or consider a brief is not an event covered by the various provisions of Civ.R. 60(B).").

{¶ 15} " Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power of a court to relieve a person from the unjust operation of a judgment, but it is not to be used as a substitute for any of the other more specific provisions of Civ.R. 60(B)." Caruso-Ciresi, Inc. v. Lohman , 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the syllabus. "The grounds for invoking Civ.R. 60(B)(5) should be substantial." Id. at paragraph two of the syllabus. "Relief on this ground should be granted only in extraordinary situations, where the interests of justice require it." Bish Constr., Inc. v. Wickham , 3d Dist. Seneca No. 13-12-16, 2013-Ohio-421, 2013 WL 500494, ¶ 16, citing Bank of New York v. Stilwell , 5th Dist. Fairfield No. 12 CA 3, 2012-Ohio-4123, 2012 WL 3939920, ¶ 34. See also Adomeit v. Baltimore , 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist. 1974) (" Civil Rule 60(B)(5) is only to be used in an extraordinary and unusual case * * *.").

{¶ 16} " 'A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion.' " Kerr , 2014-Ohio-5391, at ¶ 15, quoting Griffey v. Rajan , 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An abuse of discretion suggests a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 17} The trial court abused its discretion by relieving Tim from the July 17 judgment because Tim cannot demonstrate that he is entitled to relief under any of the grounds stated in Civ.R. 60(B)(1) through (5). First, the mistake relied on by the trial court in relieving Tim from judgment is not the type of "mistake" referred to in Civ.R. 60(B)(1). Second, the circumstances surrounding the July 17 judgment are not so extraordinary or unusual as to necessitate relief under Civ.R. 60(B)(5).

{¶ 18} In Tim's motion for relief from judgment, he stated that he was "trying to get the Judgment Entry correct based upon the Court's rulings and the evidence present in this case." (Doc. No. 247). Tim argued that "[t]he Trial Court's Entry [did] not indicate Trial Court testimony" and that it failed to include findings which Tim believes, in light of the evidence and testimony presented at trial, the trial court should have been compelled to make. (Id. ). Essentially, Tim argued that the trial court either completely failed to consider evidence and testimony or that it did not properly consider evidence and testimony and that, as a result, the July 17 judgment is unsupported by the evidence.

{¶ 19} In its order relieving Tim from judgment, the trial court admits that it granted Tim's Civ. R. 60(B) motion "due to [a] mistake by the Court." (Doc. No. 252). This "mistake," according to the trial court, was that in crafting its original judgment entry, the trial court "focused on the issues as discussed by counsel without taking a more broad consideration of all the testimony presented at trial." (Id. ). Further, the trial court commented that it "failed to address the issue of credits which were unilaterally taken by the parties in advance of trial but not considered by the Court in its Judgment Entry filed July 17, 2017." (Id. ). These remarks indicate that the trial court concluded that it made a mistake in rendering its July 17 judgment and that the mistake amounted to more than the erroneous omission of findings it otherwise made.

{¶ 20} In sum, the "mistake" relied on by the trial court to relieve Tim from judgment-the trial court's purported failure to consider certain evidence and trial testimony in rendering its July 17 judgment-is a factual mistake on the part of the trial court and thus not the type of mistake contemplated by Civ.R. 60(B)(1). See Chester Twp. , 102 Ohio App.3d at 408, 657 N.E.2d 348 ("The failure of a trial court to read or consider a brief is not an event covered by the various provisions of Civ.R. 60(B).").

{¶ 21} Additionally, "[a] party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal." Doe v. Trumbull Cty. Children Servs. Bd. , 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. Where a party alleges an error which concerns "substantive, contested factual issues and potentially complex legal arguments" that "could have been supported by transcripts and evidence in the record," a direct appeal, not a Civ.R. 60(B) motion, is the "only proper vehicle for the correction" of said error. Perez v. Angell , 10th Dist. Franklin No. 07AP-37, 2007-Ohio-4519, 2007 WL 2473470, ¶ 9. Accord Saqr v. Naji , 1st Dist. Hamilton No. C-160850, 2017-Ohio-8142, 2017 WL 4538886, ¶ 29 ; Ritchie v. Mahoning Cty. , 7th Dist., 2017-Ohio-1213, 80 N.E.3d 560, ¶ 25 ; In re A.K. , 2d Dist. Champaign No. 2011 CA 4, 2011-Ohio-4536, 2011 WL 3963009, ¶ 15 ; Morley , 2004-Ohio-5247, at ¶ 10. See Volodkevich v. Volodkevich , 35 Ohio St.3d 152, 155, 518 N.E.2d 1208 (1988) ("[T]he gist of post-trial relief is to remedy an injustice resulting from a cause that could not reasonably be addressed during the ordinary trial and appellate proceedings."). Because the trial court's failure to consider evidence or testimony would have been reflected somewhere in the record of the trial court's proceedings, the proper procedure was to seek relief from the July 17 judgment through a direct appeal, not through the use of a Civ.R. 60(B)(1) motion as a substitute for that appeal. See Johnson v. Drum , 11th Dist. Trumbull No. 2009-T-0038, 2009-Ohio-6147, 2009 WL 4021180, ¶ 27 ("[Johnson], in essence, claims the trial court's judgment was not supported by the evidence, a claim that he could and should have made on direct appeal.").

{¶ 22} Therefore, we conclude that Tim is not entitled to relief from judgment under Civ.R. 60(B)(1). Our conclusion is consistent with the principle that motions for reconsideration of final judgments are nullities. See Pitts v. Ohio Dept. of Transp. , 67 Ohio St.2d 378, 380-381, 423 N.E.2d 1105 (1981). Allowing litigants to use Civ.R. 60(B)(1) to request trial courts to correct supposed factual errors in judgments may likely flout this well-established principle. To circumvent this rule, a party could just brand a motion for reconsideration as a " Civil Rule 60(B)(1) Motion for Relief from Judgment." That is, instead of asking the court to "reconsider" the evidence or factual findings that formed the basis of the trial court's judgment, a party could simply request the trial court to amend its judgment entry on the grounds that the court made a "mistake" in interpreting the facts or considering or weighing the evidence and testimony. The latter motion would be nothing more than a disguised motion for reconsideration. See Smith v. Bd. of Health , 4th Dist. Scioto No. 92CA-2095, 1993 WL 256323, *7 (June 29, 1993).

{¶ 23} Furthermore, we conclude that Tim is not entitled to relief from judgment under Civ.R. 60(B)(5). Claims that a trial court's judgment is against the manifest weight of the evidence or based on insufficient evidence are not so extraordinary or unusual as to rise to the level of other situations in which Ohio courts have found that relief under Civ.R. 60(B)(5) is or could be appropriate. See, e.g. , Volodkevich at 154, 518 N.E.2d 1208 (concluding that "[a] judge's participation in a case which gives rise to the appearance of impropriety and possible bias could constitute grounds for relief under Civ.R. 60(B)(5)"); Coulson v. Coulson , 5 Ohio St.3d 12, 17, 448 N.E.2d 809 (1983) (holding that "pursuant to Civ.R. 60(B)(5) a court in appropriate circumstances may vacate a judgment vitiated by a fraud upon the court"); Parts Pro Automotive Warehouse v. Summers , 8th Dist., 2013-Ohio-4795, 4 N.E.3d 1054, ¶ 17 (noting that the inexcusable neglect of a party's attorney is an " 'other factor' under Civ.R. 60(B)(5) and is grounds for relief").

{¶ 24} Because we conclude that Tim is not entitled to relief from judgment under any of the grounds listed in Civ.R. 60(B)(1) through (5), Tim failed to meet the second prong of the GTE test. A party cannot prevail on a Civ.R. 60(B) motion if they fail to satisfy any one of the GTE elements. See United Bank v. Lemon , 3d Dist. Crawford No. 3-17-17, 2018-Ohio-634, 2018 WL 985942, ¶ 6, citing Bish Constr. , 2013-Ohio-421, at ¶ 15. As such, the trial court acted unreasonably in relieving Tim from the July 17 judgment and issuing an amended judgment entry. Therefore, we conclude that the trial court abused its discretion by relieving Tim from the July 17 judgment.

{¶ 25} Tom's assignments of error are, therefore, sustained.

{¶ 26} 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

SHAW, J., concurs.

{¶ 27} Although I concur with the conclusion of the majority, I am writing separately because I would reach that conclusion solely on the basis of the logic set forth in paragraph 21. The 60(B) motion in this case was merely being used as a substitute for an appeal, which is not permissible. Thus, I concur in the judgment to reverse the decision of the trial court.


source: Caselaw Access Project

author: SCHAFER, Presiding Judge.

license: Public Domain

text:
    Marlene C. MATUS, Appellant v. The JACTS GROUP, LLC, et al., Appellee
    No. 17CA0056-M
    Court of Appeals of Ohio, Ninth District, Medina County.
    Dated: April 16, 2018
    MARK E. STEPHENSON, Attorney at Law, Lorain, for Appellant.
    CRAIG J. PELINI and ERIN E. KELLY, Attorneys at Law, North Canton, for Appellee.
    DECISION AND JOURNAL ENTRY
   SCHAFER, Presiding Judge.

{¶ 1} Appellant-Plaintiff, Marlene Matus, appeals the judgment of the Medina County Court of Common Pleas granting summary judgment in favor of Defendants-Appellees, The Jacts Group and Golden Dawn Enterprises. For the reasons that follow, we reverse, and remand.

I.

{¶ 2} On March 12, 2013, Ms. Matus had lunch with friends at a restaurant operated by The Jacts Group in a building constructed by Golden Dawn. Upon leaving the restaurant, Ms. Matus was injured when she fell walking from an elevated area to the ground level of the restaurant near a single riser stair.

{¶ 3} Ms. Matus thereafter filed a complaint against The Jacts Group and Golden Dawn on March 11, 2015. Ms. Matus' deposition was conducted and a site inspection of the restaurant took place, however, Ms. Matus voluntarily dismissed the case on February 19, 2016.

{¶ 4} Ms. Matus re-filed her complaint against The Jacts Group and Golden Dawn Enterprises, asserting claims of negligence against the defendants on February 15, 2017. On March 23, 2017, the trial court ordered that all discovery conducted in the previous case would apply in the present matter. Thereafter, The Jacts Group and Golden Dawn filed a joint motion for summary judgment on April 10, 2017. On May 24, 2017, Matus filed a motion for leave of court to amend her complaint and a motion for an order that requests for admission one through six directed to The Jacts Group and Golden Dawn be deemed admitted. Ms. Matus filed a response to the motion for summary judgment on June 2, 2017. The trial court ultimately granted summary judgment in favor of The Jacts Group and Golden Dawn. The trial court did not expressly rule upon Ms. Matus' motions for leave to amend her complaint or for an order that requests for admission one through six directed to The Jacts Group and Golden Dawn be deemed admitted.

{¶ 5} Ms. Matus filed this timely appeal, raising three assignments of error for our review.

II.

Assignment of Error I

The lower court erred when it granted summary judgments for the appellees.

{¶ 6} In her first assignment of error, Ms. Matus contends that the trial court erred by granting summary judgment in favor of The Jacts Group and Golden Dawn. For the following reasons, we agree.

{¶ 7} In their motion for summary judgment, The Jacts Group and Golden Dawn argued that Ms. Matus' claim failed as a matter of law because she had already traversed the step at issue or, in the alternative, because the step constituted an open and obvious condition. Under Civ.R. 56(C), summary judgment is appropriate when:

(1)[no] genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party satisfies this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 293, 662 N.E.2d 264. A review of a trial court's grant of summary judgment is considered de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we apply the same standard as the trial court, viewing the facts in the light most favorable to the non-moving party and resolving any doubt in the favor of the non-moving party. Viock v. Stowe-Woodward Co. , 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983) ; Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992).

{¶ 8} To obtain relief in a negligence action, the plaintiff "must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of duty." Mondi v. Stan Hywet Hall & Gardens, Inc. , 9th Dist. Summit No. 25059, 2010-Ohio-2740, 2010 WL 2393680, ¶ 11. Regarding premises liability, "[i]t is the duty of the owner of the premises to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition." Light v. Ohio Univ. , 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). However, "[a] shopkeeper is not * * * an insurer of the customer's safety[,]" Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985), and when "a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises." Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus; see Andamasaris v. Annunciation Greek Orthodox Church , 9th Dist. Summit No. 22191, 2005-Ohio-475, 2005 WL 313691, ¶ 14 ("An owner is under no duty to protect its customers from dangers * * * otherwise so obvious and apparent that a customer should reasonably be expected to discover them and protect herself from them."). Thus, the presence of an open and obvious danger "acts as a complete bar to any negligence claims." Armstrong at ¶ 5. The reasoning for such a complete bar "is that the open and obvious nature of the hazard itself serves as a warning [and the owner] may reasonably expect that persons entering the premises will discover [the hazard] and take appropriate measures to protect themselves." Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).

{¶ 9} "Open and obvious dangers are not hidden, are not concealed from view, and are discoverable upon ordinary inspection." Zambo v. Tom-Car Foods , 9th Dist. Lorain No. 09CA009619, 2010-Ohio-474, 2010 WL 520804, ¶ 8. "To decide whether a hazard is open and obvious, we must resolve 'the determinative issue [of] whether the [hazardous] condition is observable.' " (Internal quotation omitted.) Fletcher v. Wal-Mart Stores, Inc. , 9th Dist. Lorain No. 16CA010938, 2017-Ohio-1215, 2017 WL 1236291, ¶ 10, quoting Baker v. Bob Evans Farms, Inc. , 9th Dist. Wayne No. 13CA0023, 2014-Ohio-2850, 2014 WL 2957465, ¶ 11. Additionally, we "must look to the totality of the circumstances, considering 'both the nature of the dangerous condition and any attendant circumstances that may have existed at the time of the injury.' " Baker at ¶ 11, quoting Gehm v. Tri-Cty., Inc. , 9th Dist. Lorain No. 09CA009693, 2010-Ohio-1080, 2010 WL 1016091, ¶ 8. Nonetheless, "[t]he existence of attendant circumstances do not create an exception to the open and obvious doctrine" but are rather "considered as part of the totality of the circumstances in determining whether a genuine issue of material fact exists regarding whether a reasonable person would have discovered the hazard." Gardner v. Kinstlinger , 9th Dist. Summit No. 26374, 2012-Ohio-5486, 2012 WL 5943624, ¶ 11.

{¶ 10} In their motion for summary judgment, The Jacts Group and Golden Dawn argued that Ms. Matus' claim failed as a matter of law because she had already traversed the step at issue or, in the alternative, because the step constituted an open and obvious condition. In support of their claims, The Jacts Group and Golden Dawn heavily relied on statements Ms. Matus made during her deposition. However, a review of the record shows that Ms. Matus' deposition was never filed in this case nor was it attached as an exhibit to either of the parties' motions below. Further, neither party has attempted to supplement the record on appeal to include Ms. Matus' deposition. Consequently, although the record does contain photographs of the step at issue and the deposition testimony of a woman familiar with the step, it is devoid of any deposition testimony from Ms. Matus regarding her ability to appreciate the danger of the step at the time of the incident. As stated above, the existence of attendant circumstances, or lack thereof, is considered as part of the totality of the circumstances in determining whether a genuine issue of material fact exists regarding whether a reasonable person would have discovered the danger of the step. See Gardner at ¶ 11. Consequently, upon review of the record in its current status, we cannot conclude that The Jacts Group and Golden Dawn have carried their initial Dresher burden to establish the applicability of the open and obvious doctrine. See Parker v. Red Roof Inn , 9th Dist. Summit No. 27894, 2016-Ohio-3147, 2016 WL 3004493, ¶ 12.

{¶ 11} The Jacts Group and Golden Dawn alternatively argued that since Ms. Matus has previously traversed the step at issue, her claim failed as a matter of law pursuant to Raflo v. Losantiville Country Club , 34 Ohio St.2d 1, 295 N.E.2d 202 (1973), paragraph two of the syllabus ("One who enters a building by traversing a step described as 'abnormally high,' is charged with knowledge of the presence of that abnormality upon exiting * * *."). In response, Ms. Matus argued that Raflo was inapplicable because it was decided during a time when Ohio law recognized contributory negligence as a complete bar to a plaintiff's tort claim. Nonetheless, a review of the trial court's judgment entry shows a lack of any analysis on the issue of whether Ms. Matus was or was not charged with the knowledge of the presence of the abnormality of the step at issue due to her having previously traversed the step. This Court's "role on appeal is to review the trial court's decision and determine whether it is supported by the record." Allen v. Bennett , 9th Dist. Summit Nos. 23570, 23573, 23576, 2007-Ohio-5411, 2007 WL 2935879, ¶ 21. Accordingly, "[b]ecause this Court acts as a reviewing court, it should not consider for the first time on appeal issues that the trial court did not decide." Id. "This applies regardless of the fact that this Court's review of an award of summary judgment is de novo." Montville Lakes Cluster Homeowners Assoc. Phase One v. Montville Lakes Homeowners Assoc. , 9th Dist. Medina No. 16CA0082-M, 2017-Ohio-7920, 2017 WL 4334343, ¶ 17.

{¶ 12} Therefore, because The Jacts Group and Golden Dawn did not meet their initial Dresher burden to establish that no genuine issues of material fact existed, The Jacts Group and Golden Dawn are not entitled to judgment as a matter of law, and the trial court erred in granting their motion for summary judgment.

{¶ 13} Ms. Matus' first assignment of error is sustained.

Assignment of Error II

The lower court erred when it denied the appellant's motion for an order that requests for admissions 1 through 6 to the appellees are admitted.

Assignment of Error III

The lower court erred when it denied the appellant's motion for leave of court to file an amended complaint.

{¶ 14} In her second assignment of error, Ms. Matus contends that the trial court erred when it denied her motion for an order to deem Ms. Matus' requests for admission one through six as admitted. In her third assignment of error, Ms. Matus contends that the trial court erred by not granting her leave to file an amended complaint. Nonetheless, a review of the record shows that the trial court never expressly ruled on either motion. "Generally, when a trial court fails to rule on a motion, as is the case here, the motion will be considered denied for purposes of appellate review." Canfield v. Columbia Gas Transmission, LLC , 9th Dist. Lorain No. 15CA010838, 2016-Ohio-5662, 2016 WL 4607858, ¶ 20 (collecting cases). However, given our resolution of Ms. Matus' first assignment of error determining that The Jacts Group and Golden Dawn were not entitled to summary judgment, Ms. Matus' motion for an order to deem Ms. Matus' requests for admission one through six as admitted and her leave to file an amended complaint will still be pending before the trial court on remand. See Id. Therefore, assignments of error two and three are not yet ripe for review and we decline to address them.

III.

{¶ 15} Ms. Matus' first assignment of error is sustained. Ms. Matus' second and third assignments of error are not yet ripe for review. The judgment of the Medina County Court of Common Please is reversed, and the cause is remanded for further proceedings consistent with the foregoing opinion.

Judgement reversed, and remanded.

TEODOSIO, J.

CALLAHAN, J.

CONCUR.


author: Wise, Earle, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Nathanael L. JANES, Defendant-Appellant
    No. 17CA43
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT: April 16, 2018
    JOSEPH C. SNYDER, 38 South Park Street, Mansfield, OH 44902, for Plaintiff-Appellee
    DAVID M. WATSON, 3 North Main Street, Suite 702, Mansfield, OH 44902, for Defendant-Appellant
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
   Wise, Earle, J.

{¶ 1} Defendant-Appellant, Nathanael L. Janes, appeals the April 18, 2017 judgment entry of the Court of Common Pleas of Richland County, Ohio, denying his motion to suppress. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 20, 2016, police officers were dispatched to appellant's apartment on a reported domestic disturbance, possibly involving a gun. When the police officers arrived, they heard screams coming from the apartment. They knocked on the door and did not receive a response. They then forced entry and encountered appellant and a woman. The two were detained while the police officers performed a protective sweep of the apartment. When police checked an open closet, they discovered a gun on the top shelf partially covered by a sheet. The gun had been stolen.

{¶ 3} On April 6, 2017, the Richland County Grand Jury indicted appellant on one count of receiving stolen property (the gun) in violation of R.C. 2913.51.

{¶ 4} On April 14, 2017, appellant filed a motion to suppress, challenging the search of his apartment and the seizure of the gun without a warrant. A hearing was held on April 17, 2017. At the conclusion of the hearing, the trial court denied the motion. The decision was memorialized by judgment entry filed April 18, 2017.

{¶ 5} A jury trial commenced on April 17, 2017. The jury found appellant guilty as charged. By sentencing entry filed April 20, 2017, the trial court sentenced appellant to sixteen months in prison.

{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

{¶ 7} "THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO SUPPRESS."

I

{¶ 8} In his sole assignment of error, appellant claims the trial court erred in denying his motion to suppress. We disagree.

{¶ 9} As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12 :

"Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In ruling on 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." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then "independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id.

{¶ 10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), "...as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."

{¶ 11} In his April 14, 2017 motion to suppress, appellant challenged the search of his apartment and the seizure of the gun without a warrant. Appellant argued "the seizure does not fall into one of the warrant requirement exceptions that Ohio law recognizes."

{¶ 12} An evidentiary hearing was held on April 17, 2017. Appellee called one witness, Mansfield Police Patrolman Joshua Frech. Patrolman Frech testified on December 20, 2016, he was dispatched to appellant's apartment on a reported domestic disturbance, possibly involving a gun. T. at 9-10. He stated as part of his duties, he needed to "make sure the people are safe and make sure we can locate and look for the gun." T. at 11. When he and his partner arrived, they heard screams coming from the apartment. T. at 11-12, 23. It sounded like someone was in distress. T. at 27. They knocked on the door, but did not receive a response. T. at 12. They then forced entry and encountered appellant and a woman. T. at 12-13, 23. Appellant did not have a gun on his person. T. at 15. The police officers did not know how many people were in the apartment and whether there were other victims and/or a perpetrator with a gun. T. at 13, 15, 24. The two occupants were detained while the police officers performed a protective sweep of the apartment. T. at 13-14, 23-24. The purpose of the sweep was to "check every closet to make sure no one is hiding. Check under the beds, anything that anybody can hide in." T. at 14. When police checked an open closet in the main bedroom, they discovered a gun on the top shelf partially covered by a sheet. T. at 16, 25. The handle of the gun was sticking out. Id.

{¶ 13} At the conclusion of the hearing, the trial court denied the motion to suppress, stating the following (T. at 32-33):

The Fourth Amendment all comes down to what is reasonable. I do think it is reasonable for an officer who gets a call about an individual with a gun in a domestic violence situation, for him to investigate. No one would come to the door, and they had to force entry. Made contact with a male and female. At that point, they still don't know if that's the extent of the call. They do the protective sweep. They do see the gun in plain view during the protective sweep.
I think it's reasonable for the officer to be where he was doing the sweep through the home. And then I think they collected the firearm, as they had information prior to the scene that there was a firearm involved.

{¶ 14} In its judgment entry filed April 18, 2017, the trial court found Patrolman Frech's testimony to be credible.

{¶ 15} As held by the United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) : "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." That is because police officers have an interest "in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id. at 333, 110 S.Ct. 1093. "[A]n in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' " Id. The court held, "that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 334, 110 S.Ct. 1093. A protective sweep "may extend only to a cursory inspection of those spaces where a person may be found." Id. at 335, 110 S.Ct. 1093.

{¶ 16} Given the facts of this case and the reasoning in Buie, we find the protective sweep was not overly broad. We concur with the trial court's analysis that the sweep was reasonable.

{¶ 17} Upon review, we find the trial court did not err in denying the motion to suppress.

{¶ 18} The sole assignment of error is denied.

{¶ 19} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed.

Gwin, P.J. and Delaney, J. concur.


author: WILLAMOWSKI, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Darian J. SMITH, Defendant-Appellant.
    NO. 1-17-50
    Court of Appeals of Ohio, Third District, Allen County.
    Date of Decision: April 16, 2018
    Kenneth J. Rexford, Lima, for Appellant
    Jana E. Emerick, Lima, for Appellee
   WILLAMOWSKI, P.J.

{¶ 1} Defendant-appellant Darian J. Smith ("Smith") appeals the judgment of the Allen County Court of Common Pleas for denying his motion to suppress (1) the contents of a red jacket and (2) a statement he made to the police. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶ 2} On February 16, 2017, Smith was charged with possession of heroin in violation of R.C. 2925.11(A)(C)(6)(e). Doc. 1. On March 3, 2017, he filed a motion to suppress. Doc. 12. At a suppression hearing on March 16, 2017, Patrolman Ben Thompson ("Thompson") testified that he was running license plates during his patrol on the night of January 24, 2016. Tr. 6. A Grand Marquis with expired license plates passed his patrol car. Tr. 7. As the driver was pulling into a driveway, Thompson activated his lights to initiate a stop of the vehicle. Tr. 8. As Thompson activated his lights, Smith-the driver of the Grand Marquis-exited the vehicle and "started to run northbound." Tr. 8. Thompson noticed that the driver was wearing a red jacket at this time. Tr. 8. Thompson then gave chase. Tr. 8.

{¶ 3} Smith ran into a house and shut the door behind him. Tr. 9. Thompson entered the house and noticed that the back door was open. Tr. 9. Thompson then ran out the back door and apprehended Smith shortly thereafter. Tr. 10. Smith was not wearing his red jacket at the time he was apprehended. Tr. 11. Thompson and another officer retraced the route of the pursuit and recovered Smith's red jacket. Tr. 12. Ex. 1, 2. The police "checked the jacket to see if there was identification in it for the defendant." Tr. 14. The police found eighty-three grams of heroin in the jacket. Tr. 14. Doc. 2.

{¶ 4} Following Smith's apprehension, Investigator Dustin Brotherwood ("Inv. Brotherwood") interviewed Smith. Tr. 25, 27. The State submitted a recording of this interview. Ex. 4. Prior to the interview, the following exchange occurred between Inv. Brotherwood and Smith:

Inv. Brotherwood: Do you know what your Miranda rights are?
Smith: My what?
Inv. Brotherwood: Your Miranda Rights.
Smith: What is that?
Inv. Brotherwood: Okay. I'm gonna explain them to you. If you got any questions let me know. We'll make sure you fully understand them. You have the right to remain silent. Anything you say or do can be used against you in court. You have the right to an attorney. If you can't afford one, one will be appointed to you by the courts. If you choose to start talking to me, anytime that we're talking, you have the right to stop talking until your attorney is present. Okay. Those are what's called your Miranda rights. Any questions about those?
Smith: No sir.

Ex. 4. During the subsequent interview, Smith admitted that he was the driver of the Grand Marquis; that he ran from the police; and that the red jacket that was recovered at the scene was his. Tr. 33. Ex. 4.

{¶ 5} On April 12, 2017, the trial court denied the appellant's motion to suppress. Doc. 25. On August 10, 2017, the appellant pled no contest to the charge against him. Doc. 42. The trial court sentenced Smith on September 25, 2017. Doc. 49. On appeal, he raises the following two assignments of error:

First Assignment of Error
The trial court erred by not suppressing the contents of the red jacket.
Second Assignment of Error
The trial court erred by not suppressing the statement elicited from Mr. Smith.

We will consider these assignments of error in the order in which they were presented in the appellant's brief.

First Assignment of Error

{¶ 6} In his first assignment of error, Smith advances two arguments against the trial court's decision to deny his motion to suppress the contents of a red jacket. First, Smith argues that the basis for the traffic stop was invalid. In this case, Smith was stopped for driving a vehicle with an expired registration. Smith argues that state law requires that license plates must be registered by December 31 of each year and not by the birthday of the vehicle owner. Smith then contends that he did not commit a traffic violation and that the police did not, therefore, have reasonable suspicion to conduct a traffic stop. Second, Smith challenges the search of his jacket.

We will address these two arguments in separate analyses.

Legal Standard for the Traffic Stop

{¶ 7} A motion to suppress presents an appellate court with mixed questions of fact and law. State v. Kerr , 3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, 2017 WL 5256352, ¶ 18. As trier of fact, the trial court is in the best position to evaluate the credibility of witnesses and resolve factual issues. State v. James , 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d Dist.). For this reason, the reviewing court is to accept the trial court's factual findings if these findings are supported by competent, credible evidence. State v. McDonald , 2017-Ohio-9250, 102 N.E.3d 635, ¶ 12 (3d Dist.). "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." State v. Sullivan , 2017-Ohio-8937, 102 N.E.3d 86, ¶ 11 (3d Dist.), quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 8} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Fourth Amendment, United States Constitution. In order to initiate a constitutionally permissible traffic stop, law enforcement must, at a minimum, have a reasonable, articulable suspicion to believe that a crime has been committed or is being committed. State v. Andrews , 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991).

{¶ 9} "The Supreme Court of Ohio has defined 'reasonable articulable suspicion' as 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion [upon an individual's freedom of movement].' " State v. Shaffer , 2013-Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo , 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio , 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Reasonable suspicion entails some minimal level of objective justification for making a stop-that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." Kerr,supra , at ¶ 15, quoting State v. Jones , 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d Dist. 1990).

{¶ 10} A police officer may initiate a traffic stop after witnessing a traffic violation. Dayton v. Erickson , 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996). R.C. 4503.11(A) requires the owner of a motor vehicle that is driven on public roads to "to file annually the application for registration or to pay the tax therefor." R.C. 4503.10(A). R.C. 4503.101 reads, in its relevant part, as follows: "except as otherwise provided by rule, motor vehicles owned by an individual shall be registered based upon the motor vehicle owner's date of birth ." (Emphasis added.) R.C. 4503.101(A). Further, "the registrations of passenger cars * * * owned by individuals shall expire on the individual's date of birth." O.A.C. 4501:1-7-03(F). See R.C. 4503.101(B). The failure to register a passenger vehicle annually in violation of R.C. 4503.11(A) is a minor misdemeanor. R.C. 4503.11(D).

Legal Analysis of the Traffic Stop

{¶ 11} In this case, Thompson ran the plates of the Grand Marquis that Smith was driving on January 24, 2017. Tr. 6-7. Thompson found that the license plates on the Grand Marquis had expired on January 19, 2017. Id . As R.C. 4503.101(A) explains, the word "annually" in R.C. 4503.10(A) contemplates a one-year period that runs from the vehicle owner's birthday in one calendar year to vehicle owner's subsequent birthday in the following calendar year. The word "annually" does not refer to a one-year period running from January 1 to December 31. O.A.C. 4501:1-7-03(F). Vehicle owners are to register their passenger vehicles before their birthday in order to comply with R.C. 4503.10(A).

{¶ 12} In this case, the Grand Marquis that Smith was driving had not been registered by the vehicle owner's birthdate. Tr. 6-7. Thus, Smith was driving with an expired registration. For this reason, Thompson had a reasonable, articulable suspicion that a traffic violation was being committed and had legal justification to initiate a traffic stop. State v. Alexander , 8th Dist. Cuyahoga No. 83848, 2004-Ohio-3735, 2004 WL 1575399, ¶ 12. Further, since Thompson was legally justified in initiating a traffic stop, he was legally justified in pursuing and seizing Smith after Smith refused to submit to Thompson's show of authority. State v. Etherington , 172 Ohio App.3d 756, 2007-Ohio-4097, 876 N.E.2d 1285, ¶ 22-24 (2d Dist.).

Legal Standard for the Search of the Red Jacket

{¶ 13} "A defendant has no standing under the Fourth Amendment to the United States Constitution to object to a search and seizure of property that he has voluntarily abandoned." State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph two of the syllabus.

'Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'

(Citations omitted.) Id. at 1048. "The State also bears the burden of establishing, by a preponderance of the evidence, that the defendant abandoned the property at issue." State v. Dailey , 3d Dist. Logan No. 8-10-01, 2010-Ohio-4816, 2010 WL 3836204, ¶ 15.

Legal Analysis of the Search of the Red Jacket

{¶ 14} In this case, Thompson testified that Smith was wearing a red jacket when he exited the Grand Marquis and fled from the police. Tr. 8. By the time Smith was apprehended, however, he was no longer in possession of the red jacket, having apparently discarded this effect. Tr. 11. Thompson testified that he discovered the red jacket as he went from the location of Smith's apprehension to the location where the Grand Marquis was parked. Tr. 12. With this testimony, we find that the State demonstrated, by a preponderance of evidence, that this property was voluntarily abandoned prior to Smith's apprehension. Thus, the abandoned property was not the fruit of an unreasonable seizure. State v. Richardson , 3d Dist. Seneca No. 13-06-21, 2007-Ohio-115, 2007 WL 92367, ¶ 22. Further, Smith did not have a reasonable expectation of privacy in this voluntarily abandoned property. State v. Polk , 150 Ohio St.3d 29, 2017-Ohio-2735, 78 N.E.3d 834, ¶ 27. For these reasons, he did not have standing to challenge the search and seizure of the red jacket.

Freeman at 1048. Thus, Smith's first assignment of error is overruled.

Second Assignment of Error

{¶ 15} In his second assignment of error, Smith asserts that the Miranda warning he was given were inadequate, arguing the police failed to inform him that he could confer with counsel prior to being questioned. Smith, therefore, argues that his statements to police should have been suppressed.

Legal Standard

{¶ 16} Law enforcement officers must give Miranda warnings prior to custodial interrogations. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under Miranda , a defendant

must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 478, 86 S.Ct. 1602. Miranda warnings "are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' " Oregon v. Elstad , 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), quoting New York v. Quarles , 467 U.S. 649, 654, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

{¶ 17} "Police do not have to provide additional warnings to a suspect beyond what Miranda requires." State v. Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 69. In the process of analyzing the adequacy of Miranda warnings, the Supreme Court of Ohio noted that

[f]ederal courts have * * * rejected challenges to the adequacy of Miranda warnings based on the absence of additional warnings. See, e.g., United States v. Ricks (C.A.6, 1993), 989 F.2d 501, unpublished opinion, 1993 WL 78781 (suspect need not be informed that he has the right to stop answering questions at any time); United States v. Lares-Valdez (C.A.9, 1991), 939 F.2d 688 (suspect need not be advised of the right to have questioning stopped at any time, of the option to answer some questions but not others, or that some questions may call for incriminating responses); United States v. Caldwell (C.A.8, 1992), 954 F.2d 496, 501-504 (suspect need not be explicitly advised of his right to counsel before and during questioning); United States v. DiGiacomo (C.A.10, 1978), 579 F.2d 1211, 1214 (no express requirement under Miranda to advise suspects of the right to terminate questioning).

Foust at ¶ 70.

{¶ 18} "[T]here is no rigid rule requiring that the content of the Miranda warnings given to an accused prior to police interrogations be a virtual incantation of the precise language contained in the Miranda opinion." State v. Dailey , 53 Ohio St.3d 88, 91, 559 N.E.2d 459 (1990). "Reviewing courts * * * need not examine Miranda warnings as if construing a will or defining the terms of an easement." Duckworth v. Eagan , 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). "Generally, 'the adequacy of Miranda warnings is treated as a question of law' " and is, thus, reviewed de novo. United States v. Crumpton , 824 F.3d 593, 604 (6th Cir. 2016), quoting United State v. Wooten , 602 Fed.Appx. 267, 272 (6th Cir. 2015). "The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda .' " Florida v. Powell , 559 U.S. 50, 130 S.Ct. 1195, 1240, 175 L.Ed.2d 1009 (2010), quoting Duckworth at 201, 109 S.Ct. 2875.

Legal Analysis

{¶ 19} In this case, prior to custodial interrogation, Inv. Brotherwood gave Smith the following Miranda warning:

You have the right to remain silent. Anything you say or do can be used against you in court. You have the right to an attorney. If you can't afford one, one will be appointed to you by the courts. If you choose to start talking to me, anytime that we're talking, you have the right to stop talking until your attorney is present.

Ex. 4. Smith argues this warning is deficient because it is missing an express statement that explains that he had the right to confer with counsel before being questioned. We find, however, that the context of this Miranda warning shows that this alleged deficiency does not exist. Smith was, in fact, informed that he had the right to confer with his attorney before questioning began.

{¶ 20} At the time this Miranda warning was issued, Inv. Brotherwood was speaking with Smith after they were seated in an interrogation room for questioning. At that moment, a warning that Smith had the right to confer with counsel prior to sitting down in an interrogation room with the police for questioning would have been of no benefit to Smith. Inv. Brotherwood instead communicated the substance of Smith's right to counsel in a way that was applicable to that particular context. As they were discussing Smith's Miranda rights before the questioning had begun, Inv. Brotherwood expressly advised Smith that he could stop the interview at any time and speak with counsel. Thus, Inv. Brotherwood clearly communicated to Smith that he could, at that moment, before any questions had been asked, stop the interview from proceeding and consult with his attorney.

{¶ 21} While this Miranda warning did not come in the form of Smith's preferred language, the deficiency he alleges does not exist. For this reason, Smith's argument has no merit. Further, we find that this statement contains each of the "four particular rights" that are required in Miranda warnings. United States v. Crumpton , 824 F.3d 593, 610-611 (6th Cir. 2016). Thus, the trial court did not err in denying Smith's motion to suppress as to the statements made by Smith to Inv. Brotherwood. For these reasons, Smith's second assignment of error is overruled.

Conclusion

{¶ 22} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of Allen County Court of Common Pleas is affirmed.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.


author: Gwin, P.J.

text:
    STATE of Ohio, Plaintiff-Appellant v. Vern L. FEARS, Defendant-Appellee
    No. 17-CA-67
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT ENTRY: April 16, 2018
    GARY BISHOP, PROSECUTING ATTORNEY, BY: JOSEPH SNYDER, 38 South Park Street, Mansfield, OH 44902, For Plaintiff-Appellee
    RANDALL FRY, 10 West Newlon Place, Mansfield, OH 44902, For Defendant-Appellant
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, J.
   Gwin, P.J.

{¶ 1} Defendant-appellant Vern Fears ["Fears"] appeals the July 13, 2017 Judgement Entry of the Richland County Court of Common Pleas finding that he violated his community control sanctions.

Facts and Procedural History

{¶ 2} On February 4, 2013 in Richland County Court of Common Pleas, Case Number 2012-CR-0847 Fears was convicted of one count of Aggravated Burglary a felony of the first degree and one count of Robbery, a felony of the second degree. The trial court sentenced Fears to four years in prison on the Aggravated Burglary charge. On the Robbery charge, Fears was given a four year suspended prison sentence, with a mandatory five years of post-release control, and five years of community control to begin upon Fears' release from prison on the Aggravated Burglary charge.

{¶ 3} On November 23, 2016, Fears was released from prison and placed on probation/community control. On April 4, 2017, a "Notice of Hearing Probation Violation" was filed alleging that Fears had violated his probation. Fears pled to the violation and was found guilty by the trial court. By Judgment Entry filed May 8, 2017, Fears' community control was continued with the addition that he pay a $200.00 sanction and successfully complete "Thinking for a Change."

{¶ 4} On June 27, 2017, a "Notice of Hearing Probation Violation" was filed alleging that Fears had violated his probation. The Notice set forth in three separate counts the alleged violations.

{¶ 5} On July 12, 2017, a probation violation hearing was conducted by the trial court. Fears admitted to the allegations contained in Counts 2 and Count 3 but denied the allegations contained in Count 1 . T. September 15, 2017 at 4-5. A hearing was held concerning Fears' violation of Count 1, which alleged that Fears "On or about 06/10/17... entered [a residence] without the consent of the person authorized to give consent" and further, "On or after 05/28/17...changed your residence without obtaining permission from your supervising officer." Id. at 4.

{¶ 6} The only witness called by the state during the revocation hearing was the probation officer, Mary Gates.

{¶ 7} Gates testified that Fears is on Community Control for the Robbery charge and Fears is on Post-release Control for the Aggravated Burglary charge. T. at 7. Gates testified that she went to the location that Fears was supposed to be residing on two occasions and no one answered the door. Gates left her card in the door on both occasions. T. at 9. Fears testified that she spoke on the telephone with Fears' wife on May 30, 2017, and she reported that he had not been home since May 28, 2017. T. at 10. Gates testified that on June 12, 2017, an officer from the Mansfield Police Department contacted her informing her that Fears went to the residence of his wife, kicked the door in and was shot by an alleged boyfriend who was at the home. T. at 11-13; 20. Gates also testified that The Northern Ohio Fugitive Task Force was attempting to locate Fears after this incident. T. at 13-14. Gates contacted the task force because she was in fear for the safety of Fears' wife. T. at 15. Fears further testified that Fears' wife had told her Fears was staying with his father in Cleveland. T. at 17.

{¶ 8} After his arrest, Gates met with Fears who told her that he never changed his address and was still living in Mansfield, not Cleveland. Fears claimed his wife was lying and trying to set him up. T. at 21.

{¶ 9} After listening to the testimony of Mary Gates, the Court ruled that Fears was guilty of changing his residence without obtaining permission from his supervision officer. The Court said it based its ruling for a number of reasons. The first reason the Court stated was that Fears' wife said so and that her testimony is uncontracted. T.at 40. The Court stated that Fears' wife had been a reliable reporter in the past so there was no reason to disbelieve her testimony. T. at 40. The Court also stated in its ruling that on June 10, 2017, that Fears could not get into his residence without kicking in the door. T. at 40, 41.

{¶ 10} On July 13, 2017, a Community Control Violation Journal Entry was filed. The Court accepted Fears' admission to Community Control violations Count 2 and Count 3 and found Fears guilty of Community Control violation Count 1. Fears was sentenced to 3 years of prison on the underlying charge of Robbery, along with 3 years of mandatory Community Control.

Assignment of Error

{¶ 11} Fears raises one assignment of error:

{¶ 12} "I. THE TRIAL COURT FAILED TO AFFORD THE APPELLANT A FULL AND FAIR PROBATION REVOCATION HEARING AS REQUIRED BY DUE PROCESS AND GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION."

Law and Analyses

{¶ 13} In finding that Fears was guilty of Count 1 of his probation violation/community control violation, Fears argues that the trial court violated his right to confront and cross-examine his accusers and erred in permitting the probation officer to testify to the hearsay statement alleged made by Fears' wife. However, Fears did not raise the constitutional argument at trial. Fears only objected to hearsay in the form of the Mansfield Police detective telling Gates that Fears had kicked the door in to his wife's residence and was shot by the wife's boyfriend. T. at 12-13.

STANDARD OF APPELLATE REVIEW

A. Plain error.

{¶ 14} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings," State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 15} Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. The Ohio Supreme Court recently clarified in State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice-the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez , 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32-34.

{¶ 16} If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; the Supreme Court has "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32-34.

B. Probation/Community Control revocation.

{¶ 17} "The privilege of probation rests upon the probationer's compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege."

State v. Ohly , 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th Dist.), ¶ 19, quoting State v. Bell , 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990). "Because a community control revocation hearing is not a criminal trial, the state does not have to establish a violation with proof beyond a reasonable doubt." State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, 2004 WL 1178724, ¶ 7 ; see, also, State v. Payne , 12th Dist. Warren No. CA2001-09-081, 2002 WL 649403 ; State v. Hylton , 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state need only present "substantial" proof that a defendant willfully violated the community control conditions. See Hylton , 75 Ohio App.3d at 782, 600 N.E.2d 821 . "The test ordinarily applied is highly deferential to the decision of the trial court and is akin to a preponderance of the evidence burden of proof. See State v. Alderson , 4th Dist. Meigs No. 98CA12, 1999 WL 713594 (Aug. 31, 1999). Accordingly, the court's conclusion must be sustained if there is competent credible evidence to support it. Id." State v. Hayes , 6th Dist. Wood No. WD-00-075, 2001 WL 909291 (Aug. 10, 2001). Additionally, the "[d]etermination of the credibility of the witnesses is for the trier of fact." Ohly , 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675, ¶ 19. See also , State v. Brank , 5th Dist. Tusc. No.2006AP 090053, 2007-Ohio-919, 2007 WL 657704.

{¶ 18} Once a trial court finds that a defendant violated community control conditions, it possesses discretion to revoke the defendant's community control. In that event, appellate courts should not reverse trial court decisions unless a court abused its discretion. Wolfson, 2004-Ohio-2750, 2004 WL 1178724, ¶ 8.

{¶ 19} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, 2014 WL 602264, ¶ 35 ; In re Guardianship of S.H. , 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, 2013 WL 5519847, ¶ 9 ; State v. Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175, ¶ 54.

1. The confrontation clause and post-release control/community control revocation hearings.

{¶ 20} The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him."

{¶ 21} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the United States held that out-of-court statements that are testimonial are barred, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statements are deemed reliable by the trial court.

{¶ 22} In Blanks v. Maryland, the Court of Special Appeals of Maryland had the following observation,

In the twelve years since Crawford was decided, ten federal courts of appeals have addressed whether the Crawford standard for admissibility of testimonial hearsay applies in a revocation of probation (or parole) proceeding. All ten courts have held that because the rights guaranteed by the Sixth Amendment only apply to "criminal prosecutions," neither the Sixth Amendment right to confrontation nor the Crawford Court's interpretation of that right applies in such a proceeding. See United States v. Rondeau , 430 F.3d 44, 47 (1st Cir. 2005) ("Nothing in Crawford indicates that the Supreme Court intended to extend the Confrontation Clause's reach beyond the criminal prosecution context"); United States v. Aspinall , 389 F.3d 332, 343 (2nd Cir. 2004) ("Nothing in Crawford , which reviewed a criminal trial, purported to alter the standards set by Morrissey /[ Gagnon ] or otherwise suggested that the Confrontation Clause principle enunciated in Crawford is applicable to probation revocation proceedings"); United States v. Lloyd , 566 F.3d 341, 343 (3rd Cir. 2009) ("The limited right to confrontation [afforded in a revocation proceeding] stems from the Fifth Amendment's Due Process Clause, not from the Confrontation Clause of the Sixth Amendment."); United States v. Ferguson , 752 F.3d 613, 619 (4th Cir. 2014) (revocation of parole proceeding "does not involve the Sixth Amendment")9; United States v. Kirby , 418 F.3d 621, 627 (6th Cir. 2005) ( Crawford does not apply to a revocation of probation proceeding because, by its text, the Sixth Amendment does not apply outside of a criminal prosecution); United States v. Kelley , 446 F.3d 688, 691 (7th Cir. 2006) (" Crawford changed nothing with respect to [probation] revocation hearings" because the "limited confrontation right in revocation proceedings was explicitly grounded in considerations of due process, not the Sixth Amendment"); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008) ( Crawford does not apply in the context of a revocation of supervised release proceeding); United States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005), cert denied , 546 U.S. 1080, 126 S.Ct. 838, 163 L.Ed.2d 714 (2005) ( Crawford does not apply in a revocation of probation proceeding where "due process standard[s] [are] used to determine whether hearsay evidence" is admissible); Curtis v. Chester , 626 F.3d 540, 544 (10th Cir. 2010) (Sixth Amendment right to confrontation does not apply in parole revocation proceeding and "neither do any Supreme Court cases dealing with it, specifically Crawford "); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir 2005) (due process rights afforded to a parolee at a revocation proceeding emanate from the Due Process Clause of the Fourteenth Amendment, not the Confrontation Clause of the Sixth Amendment, thus making Crawford inapplicable in that setting). See also Reyes v. State , 868 N.E.2d 438, 440 & n. 1 (Ind. 2007) (holding that Crawford has no application in a civil revocation of probation proceeding); State v. Carr , 216 Ariz. 444, 167 P.3d 131, 134 (App.2007) (probation revocation proceeding is not "a stage of a criminal prosecution" and thus does not implicate the Sixth Amendment).

228 Md.App. 335, 351-352, 137 A.3d 1074, 1083-1084 (2016). Accord , State v. Esquilin, 179 Conn.App. 461, 179 A.3d 238 (2018), at n. 10. (since Crawford "an overwhelming majority of federal circuit and state appellate courts that have addressed this issue have concluded that Crawford does not apply to a revocation of probation hearing." (Citations omitted.) ).

2. Hearsay and post-release control/community control revocation hearings.

{¶ 23} As set forth by the United States Supreme Court in Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the due process requirements of Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), with regard to parole violation hearings, are applicable to probation revocation proceedings. The minimal due process requirements for final revocation hearings include:

(a) [W]ritten notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ; (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole. (Emphasis added). Gagnon v. Scarpelli , 411 U.S. at 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), citing Morrissey v. Brewer , 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

{¶ 24} Whether there is "good cause" for not allowing confrontation during a revocation hearing should be determined by using a balancing test. State v. Esquilin, 179 Conn.App. 461, 472, 179 A.3d 238 (2018). This test requires the court to "to balance, " 'on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay. United States v. Williams , 443 F.3d 35, 45 (2d Cir. 2006) ; see also United States v. Chin , 224 F.3d 121, 124 (2d Cir. 2000).' (Internal quotation marks omitted.) State v. Shakir, 130 Conn. App. 458, 468, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011)." Esquilin, 179 Conn.App. at 473, 179 A.3d 238. In Blanks v. State , the court observed,

"[G]ood cause need not reach the high standard governing the admissibility of hearsay evidence at criminal trials." [State v.] Fuller, 308 Md. [547] at 553 n. 5, 520 A.2d 1315 [ (1987) ]. "In determining whether there is good cause to admit hearsay in a probation revocation hearing, it is obvious that the most important factor is the reliability of the proffered hearsay evidence" and "whenever the proffered hearsay evidence has substantial guarantees of trustworthiness the hearsay is admissible without the need to establish any additional good cause." Bailey [v. State] , 327 Md. [689] at 699, 612 A.2d 288 [ (1992) ] (citing Egerstaffer v. Israel , 726 F.2d 1231, 1234-35 (7th Cir. 1984) ).

228 Md.App. at 355, 137 A.3d at 1085.

{¶ 25} The Ohio Supreme Court has also recognized that there is a limitation on the admissibility of hearsay testimony during revocation proceedings. In State v. Tims , 9 Ohio St.2d 136, 224 N.E.2d 348 (1967), the defendant was prosecuted for statutory rape, and, at trial, a document entitled "Report of Examination for Alleged Rape" was admitted in evidence through a clerk in the medical record room of the hospital who admitted that she had not made the examination and was not present when it was made. The question before the court in that case was "whether the report of the examination for alleged rape was properly admitted into evidence under the provisions of Section 2317.40, Revised Code (Business Records as Evidence Act)." It was held that the Business Records as Evidence Act was not applicable. See also, State v. Miller, 42 Ohio St.2d 102, 104-105, 326 N.E.2d 259 (1975).

{¶ 26} In State v. Miller, the Ohio Supreme Court held.

Where at a probation revocation hearing the trial court permits a probation officer who did not prepare the entries in the probation department record to testify as to the contents of that record and the probation officer who prepared the entries does not appear, there is a denial of the probationer's right to confront the witnesses against him, and, where the record does not show that the probation officer who prepared the entries was unavailable or that a specific finding was made of good cause for not allowing confrontation , there is a denial of the minimum requirements of due process of law required for probation revocation proceedings. ( Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, followed.)

42 Ohio St.2d 102, 104-105, 326 N.E.2d 259, at syllabus (emphasis added). The Court found that,

The record here does not indicate that appellee's original probation officer, although no longer employed by the probation department, was unavailable, or that the trial court made a specific finding of good cause for not allowing confrontation. The trial court, therefore, did not provide appellee the minimum due process requirements specified in Morrissey at his probation revocation hearing.

42 Ohio St.2d 102, 106, 326 N.E.2d 259 (emphasis added).

{¶ 27} In the case at bar, Fears only objected to testimony by the probation officer that Fears had kicked in the door to his wife's residence. T. at 12. However, the probation officer without objection previously testified to these facts. T. at 11-12.

{¶ 28} Courts have "held that minimum due process requirements are satisfied where the parolee admits the alleged parole violation at the revocation hearing. Helton v. Ohio Adult Parole Auth. (June 26, 2001), Franklin App. No. 00AP-1108, 2001 WL 709946. This principle was recognized in Morrissey, supra , 408 U.S. at 490, 92 S.Ct. 2593, 33 L.Ed.2d 484, wherein the United States Supreme Court stated that "[i]f it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter." Wilkins v. Timmerman-Cooper, United States District Court, S.D. Ohio, Case No. 2:06-cv-00027, 2006 WL 3762122(Dec. 20, 2006), at *7.

{¶ 29} In the case at bar, Fears admitted two of the three violations thus establishing minimum due process requirements for those violations. In addition,

Moreover, once a revocation hearing satisfies minimum due process requirements, the decision to deny parole is not subject to judicial review unless parole is revoked for a constitutionally impermissible reason. Helton, supra, citing Mayrides v. Ohio Adult Parole Auth. (Apr. 30, 1998), Franklin App. No. 97APE08-1035, 1998 WL 211923. Under R.C. 2967.15, the Ohio Adult Parole Authority is authorized to revoke parole when the parolee has violated the terms and conditions of his parole. State ex rel. Nedea v. Capots (1988), 40 Ohio St.3d 74, 75, 531 N.E.2d 707. Therefore, Wilkins's four parole violations were sufficient grounds for the revocation of his parole.

Wilkins v. Wilkinson , 157 Ohio App.3d 209, 2004-Ohio-2530, 809 N.E.2d 1206, ¶ 22.

{¶ 30} After finding that the defendant has violated community control sanctions, the sentencing court may: (1) extend the period of the same community control sanction, but not beyond the five-year maximum; (2) impose a more restrictive community control sanction for any remaining period of time up to the five-year maximum; or (3) cancel the community control sanction and impose a definite sentence of imprisonment within the range allowed for the offense under RC 2929.14(A). R.C. 2929.15(C).

{¶ 31} In the case at bar, by Fears' own admissions the trial court had substantial proof that Fears violated the community control sanctions. Fears had previously violated community control sanctions and the trial court modified those sanctions. Under R.C. 2929.15(C), the trial court had authority to cancel the community control sanctions and impose a prison sentence, even if it found Fears had not violated Count 1.

{¶ 32} Fears has failed to demonstrate a reasonable probability that any error resulted in prejudice that affected the outcome of the revocation proceedings. The trial court neither lost his way nor created a miscarriage of justice in convicting and sentencing Fears for violating his community control sanctions.

CONCLUSION.

{¶ 33} Fears' sole assignment of error is overruled. The judgment of the Richland County Court of Common Pleas is affirmed.

Delaney, J., and Wise, Earle, J., concur

      Count 2 alleged that Fears had failed to report for office visits every Tuesday as instructed; Count 3 alleged that Fears failed to attend Reentry Court as instructed.

      Prior case law governing probation revocations applies to the revocation of community control. State v. Wolfson , 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, 2004 WL 1178724.


text:
    STATE of Ohio, Plaintiff-Appellee v. Scott FAREY, Defendant-Appellant
    No. 2017CA00137
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: April 16, 2018
    ANTHONY LAPENNA, Massillon Prosecutor's Office, Two James Duncan Plaza, Massillon, OH 44646, for Plaintiff-Appellee.
    JEFFRY V. SERRA, The Ferruccio Law Firm, 301 Cleveland Avenue N.W., Canton, OH 44702, for Defendant-Appellant.
    JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, Jr., J.
   Wise, Earle, J.

{¶ 1} Defendant-appellant Scott Farey appeals the June 12, 2017 decision of the Massillon Municipal Court, Stark County, Ohio, overruling his motion to suppress. Plaintiff-appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 24, 2016 at 12:20 a.m., Lieutenant Haymaker of the Ohio State Highway Patrol was conducting routine patrol. He noticed appellant travelling at what appeared to be faster than the posted limit of 40 miles per hour. Lt. Haymaker followed appellant's vehicle and activated his ground radar. He clocked appellant traveling at 49 miles per hour. He further noted a slight sideways movement of the vehicle, but appellant never left his lane of travel. Lt. Haymaker activated his overhead lights and pulled appellant over.

{¶ 3} Upon making contact with appellant, Lt. Haymaker noticed appellant smelled of alcohol, had glassy bloodshot eyes and a flushed face. Asked where he was coming from, appellant stated he had just picked his girlfriend up from a bar. Appellant denied he had been drinking. Appellant's speech and motions were slow as he gave Lt. Haymaker his license.

{¶ 4} Lt. Haymaker performed a preliminary horizontal gaze nystagmus (HGN) test while appellant was still seated in his vehicle and noted nystagmus present. He asked appellant if he was sure he had not been drinking, and appellant responded he had one drink while waiting for his girlfriend.

{¶ 5} Based on his observations and appellant's changing alcohol consumption claim, Lt. Haymaker asked appellant to exit his vehicle for field sobriety testing. He first placed appellant in his cruiser to perform complete HGN testing. Appellant exhibited six of six clues. Lt. Haymaker had appellant perform two other tests. He observed one of five clues on the one-legged stand and two of eight clues on walk and turn. He placed appellant under arrest and transported him to the Highway Patrol post. On the way, appellant stated he had two beers and had smoked marijuana around 8:00 p.m.

{¶ 6} At the post, appellant submitted to a breath alcohol test, and at .073, was under the legal limit for alcohol.

{¶ 7} Appellant also provided a urine sample which was sent to the Ohio State Highway Patrol laboratory for testing. Appellant's urine later tested positive for cocaine and marijuana.

{¶ 8} Appellant was cited for speeding in violation of R.C. 4511.21(C) and operating a vehicle under the influence of alcohol or drugs (OVI) in violation of R.C. 4511.19(A)(1)(a). He entered pleas of not guilty and filed a motion to suppress. Appellant argued Lt. Haymaker had no reasonable, articulable suspicion to ask him to exit his vehicle to perform sobriety tests, and no probable cause to arrest him for OVI.

{¶ 9} On May 18, 2017, a hearing was held on the matter. The state presented evidence from Lt. Haymaker as well as Edward Yingling of the Ohio State Highway Patrol's crime lab.

{¶ 10} Yingling testified appellant's urine contained prohibited amounts of both marijuana and cocaine. Under R.C. 4511.19(A)(1)(a), the per se limit for marijuana metabolite levels in urine is 35 nanograms per milliliter. Appellant's urine contained 114 nanograms per milliliter.

{¶ 11} As for cocaine, the per se limit is 150 nanograms per milliliter. Yingling testified appellant's urine contained 646 nanograms per milliliter. Appellant's urine also contained benzoylecgonine, a metabolite of cocaine. The per se cocaine metabolite level is 150 nanograms per milliliter. Yingling found that appellant's urine contained 1700 nanograms per milliliter.

{¶ 12} After hearing the evidence, the trial court found on the record:

* * * I think the stop was fine. I think there was speed. I saw [appellant] pulling away and so I think there was a reasonable suspicion for the stop um regardless of any lane violation that I didn't see or movement that I didn't see. When he got [to appellant's vehicle] he noticed obviously a smell of an odor of alcohol, defendant having denied drinking at all, but noticed his eyes were glassy, flushed face um later the defendant admitted to one drink, then two drinks um his speech sounded really slow to me um he had a hard time or took time finding his operator's license. I thought there was a reasonable suspicion to remove him from the vehicle. The HGN * * *, he found six out of six clues. The walk and turn test and the one-leg stand test um he did them about as well as I think you could probably do them, so I think there may have ... there was an initial um fall, not fall, but movement of his feet on the walk and turn test, but then he performed the test, I thought, perfectly. And yeah the turn wasn't exactly right, but he did a quicker turn than he's supposed to do and he kept his balance through it all, so I thought he did that well * * *. I thought he did well on the one-leg stand. I don't think that gave it probable cause. I think probable cause was found because of the initial reasons for getting him out of the car um the smell of alcohol, the not telling the truth about the drinking and that the HGN um six out of six clues and it just didn't add up with the flush face and the slow speed, so I thought he was right to take him and test him.

{¶ 13} On June 12, 2017, the trial court issued its judgment finding reasonable articulable suspicion for the stop, adequate indicia of impairment to continue the investigation, and from the totality of the circumstances, probable cause to arrest.

{¶ 14} Appellant entered a plea of no contest. The trial court found appellant guilty and convicted him. Appellant was then sentenced to 180 days in the Stark County Jail with 110 days suspended. For the balance, appellant was ordered to serve 10 days in the Stark County Jail and 60 days of electronically monitored house arrest. Appellant's operator's license was suspended for three years and assessed 6 points. He was ordered to obtain a drug and alcohol assessment and follow all treatment recommendations. Finally, appellant was ordered to pay a fine and court costs.

{¶ 15} With the exception of the operator's license suspension, appellant's sentence was stayed pending this appeal. Appellant raises two assignments of error:

I

{¶ 16} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION

TO SUPPRESS EVIDENCE BECAUSE LIEUTENANT HAYMAKER LACKED A REASONABLE, ARTICULABLE SUSPICION THAT THE APPELLANT WAS DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS TO REQUEST THE APPELLANT TO EXIT HIS VEHICLE TO PERFORM FIELD SOBRIETY TESTS IN VIOLATION OF THE APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES."

II

{¶ 17} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE ARRESTING OFFICER LACKED PROBABLE CAUSE TO ARREST THE APPELLANT FOR OVI."

{¶ 18} First, as stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12 :

"Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In ruling on 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." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then "independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id.

{¶ 19} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), "...as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."

REASONABLE SUSPICION FOR FIELD SOBRIETY TESTING

{¶ 20} In his first assignment of error, appellant claims the trial court erred in overruling his motion to suppress because Lt. Haymaker lacked reasonable, articulable suspicion that appellant was impaired, and therefore could not further detain him for field sobriety testing. We disagree.

{¶ 21} In reviewing whether such testing was proper, we apply a "totality of the circumstances" approach. See, e.g., State v. Locker , 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-4953, 2015 WL 7738365, ¶ 36, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.

{¶ 22} "Requiring a driver to submit to a field sobriety test constitutes a seizure within the meaning of the Fourth Amendment. Courts have generally held that the intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer therefore need only have reasonable suspicion that the driver is under the influence of alcohol in order to conduct a field sobriety test." State v. Bright , 5th Dist. Guernsey No.2009-CA-28, 2010-Ohio-1111, 2010 WL 1035466, ¶ 17, citing State v. Knox , 2nd Dist. Greene No.2005-CA-74, 2006-Ohio-3039, 2006 WL 1661628.

{¶ 23} An officer may not request a motorist to perform field sobriety tests unless the request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated. State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (1998), citing State v. Yemma , 11th Dist. Portage App. No. 95-P-0156, 1996 WL 495076 (Aug. 9, 1996). "Reasonable suspicion is "* * * something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause." State v. Shepherd , 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997). "A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." Village of Kirtland Hills v. Strogin , 6th Dist. Lake App. No.2005-L-073, 2006-Ohio-1450, 2006 WL 766541, ¶ 13, citing, Village of Waite Hill v. Popovich , 6th Dist. Lake App. No.2001-L-227, 2003-Ohio-1587, 2003 WL 1634152, ¶ 14.

{¶ 24} "Where 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." State v. Strope , 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, 2009 WL 2372124 ¶ 19.

{¶ 25} Appellant cites to this court's decision in State v. Hall , 2016-Ohio-5787, 70 N.E.3d 1154 in support of his argument that Lt. Haymaker lacked reasonable suspicion to conduct field sobriety tests. In Hall , we concluded that red, watery, bloodshot eyes and an odor of alcohol, without additional indicia of intoxication, did not give the officer reasonable suspicion the driver was under the influence when the stop was for a single marked lanes violation made during a left turn, without speeding or additional swerving. In this case, however, appellant was stopped for speeding at 12:20 a.m., had an odor of alcohol, slow speech, lethargic movements as he retrieved his license for the trooper, glassy, bloodshot eyes, and a flushed face. Appellant stated he had just picked his girlfriend up from a bar and initially denied drinking, but then stated he had one beer while he was at the bar. T. 13-15. We therefore find the evidence in this matter differs from that in Hall .

{¶ 26} Appellant further notes that there was no testimony presented as to the intensity of the odor of alcohol. Odor of alcohol, however, is but one consideration in an officer's decision to administer field sobriety tests. 4511.19(A)(1)(a) prohibits driving under the influence both alcohol and drugs. As was borne out in this matter, a motorist may display signs of intoxication from prohibited levels of substances other than alcohol.

{¶ 27} In State v. Ciminello , 5th Dist. Ashland No. 17-COA-030, 2018-Ohio-467, 2018 WL 721349, we were presented with a nearly factually identical scenario. In that matter appellant was stopped for travelling between 5 and 11 miles over the speed limit at 2:09 a.m. Appellant had a moderate odor of alcohol, glassy red eyes and stated she was coming from picking up her friend at a drinking establishment. She initially denied drinking herself, then admitted to consuming one beer. The trooper then asked appellant to perform field sobriety testing. On appeal, appellant argued the officer lacked reasonable, articulable suspicion to administer field sobriety tests. We found, however, based on the totality of the circumstances, the trooper "relied on specific articulable facts giving rise to a reasonable suspicion appellant was driving under the influence; justifying an extension of the initial detention for the performance of field sobriety testing." Ciminello ¶ 25.

{¶ 28} We reach the same conclusion here. Lt. Haymaker also relied on specific articulable facts to justify the administration of field sobriety tests. Appellant's first of assignment of error is therefore is not well taken.

PROBABLE CAUSE TO ARREST

{¶ 29} In his second assignment, appellant argues trial court erred in finding that Lt. Haymaker had probable cause to arrest. We disagree.

{¶ 30} A police officer has probable cause for an arrest if the facts and circumstances within his knowledge are sufficient to cause a reasonably prudent person to believe that the defendant has committed the offense. State v. Cummings , 5th Dist. No. 2005-CA-00295, 2006-Ohio-2431, 2006 WL 1330931, ¶ 15, citing State v. Heston , 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). In making this determination, the trial court must examine the totality of facts and circumstances surrounding the arrest. See State v. Miller , 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997) ; State v. Brandenburg , 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987).

{¶ 31} Appellant cites the trial court's findings on his good performance on two of the field sobriety tests. As noted above, upon review of the video tape of the incident, the trial court found that appellant did exceptionally well on the one leg stand and the walk and turn tests. While these are factors to be considered in appellant's favor they do not constitute the entire calculus in the totality of the circumstances test. Probable cause does not necessarily have to be based, in whole or in part, upon a suspect's good or poor performance on one or more field sobriety tests. Poor performance on one test and adequate performance on others may establish probable cause to arrest. State v. Elam , 5th Dist. Licking App. No. 13-CA-89, 2014-Ohio-1666, 2014 WL 1561910 ¶ 12-14. Or, as we noted in State v. Tipple , 5th Dist. Fairfield No. 16CA33, 2017-Ohio-2774, 2017 WL 2259639 ¶ 19 :

The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered. State v. Homan , 89 Ohio St.3d 421, 732 N.E.2d 952 (2000), superseded by statute on other grounds as stated in State v. Boczar , 113 Ohio St.3d 148, 863 N.E.2d 155, 2007-Ohio-1251. In Homan , the facts which supported a finding of probable cause to arrest for driving under the influence were: red and glassy eyes, breath which smelled of alcohol, erratic driving and an admission that the suspect had consumed alcohol.

{¶ 32} Appellant here exhibited six of six clues on the HGN test. The HGN test is a reliable test for determining if a person in under the influence. State v. Bresson , 51 Ohio St.3d 123, 129, 554 N.E.2d 1330 (1990). Failure of an HGN test, combined with an odor of alcohol and an admission to consuming alcohol, even without conducting other field sobriety tests, had been found to constitute probable cause to arrest. Tallmadge v. McCoy , 96 Ohio App.3d 604, 610, 645 N.E.2d 802 (1994).

{¶ 33} Appellant also argues the video in this matter shows no erratic driving or weaving, and that there was no testimony from Lt. Haymaker that speeding was indicative of driving under the influence. In State v. Carter , 5th Dist. No. 2013CA00036, 2013-Ohio-5153, 2013 WL 6158723, ¶ 14, we found that speeding was an indication of erratic driving. However, in Carter the defendant was traveling 56 mph in a 35 mph zone on a snowy road where the officer testified the speed was unreasonable for the conditions. Id. We are not prepared to say that every speed violation is erratic driving. We have reviewed the testimony and the video in this case we do not find erratic driving here.

{¶ 34} Additionally, it was not necessary for Lt. Haymaker to observe poor driving performance in order to place appellant under arrest for driving under the influence when all the facts and circumstances lead to the conclusion that appellant was impaired. State v. Harrop , 5th Dist. No. CT2000-0026, unreported, 2001 WL 815538, (July 2, 2001), *2.

{¶ 35} Lt. Haymaker testified that upon approaching the vehicle he observed five indicators of intoxication. He smelled an odor of alcohol about the vehicle, appellant's speech was slow, his motions while looking for his operator's license were lethargic, his eyes were glassy and bloodshot, and his face was flushed. T. 12-13. Appellant initially said he had not had any alcohol to drink, but when asked a second time he admitted that he recently had one drink. T. 13-14. Lt. Haymaker testified that appellant performed poorly on the HGN exhibiting six clues, two clues on the walk and turn and one clue on the one leg stand. T. 19-23. After the field sobriety test were conducted, Lt. Haymaker is heard on the video tape telling the appellant that, "you reek of alcohol" and emphasized that, "the clues I'm looking for in your eyes are very very distinct."

{¶ 36} While this matter represents a close call, we nonetheless find the totality of these observations adequate to establish probable cause to arrest appellant for operating his vehicle under the influence of alcohol or drugs.

{¶ 37} The judgment of the Massillon Municipal court is affirmed.

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