IN THE SUPREME COURT OF OHIO

ICASE NO. I Plaintiff-Appellee, IC.A. No. 09 CA 0002

Defend ant-Appellant.

ON APPEAL FROM THE COURT OF APPEALS FOR THE SECOND APPELLATE DISTRICT OF OHIO DARKE COUNTY, OHIO

APPELLANT'S MEMORANDUM IN SUPPORT OF SUPREME COURT JURISDICTION

JOHN H. RION of JESSE GREEN RION, RION & RION, L.P.A., INC. PROSECUTING ATTORNEY Registration No. 0002228 Registration No. 00040265 P.O. Box 10126 504 S. Broadway 130 W. Second St., Suite 2150 Greenville, OH 45331 Dayton, OH 45402 (937) 547-7380 (937) 223-9133

Attorney for Defendant,4ppella,n,+. Attorney for Plaintiff-Appellee TABLE OF CONTENTS

CITES PAGE(S)

TABLE OF CONTENTS ...... i-ii

JURISDICTIONAL STATEMENT ...... I

Authorities cited (in the order in which they appear in the brief):

STATEMENT OF THE CASE AND FACTS ...... 2

PROPOSITION OF LAW ...... 4 IN ORDER TO SUSTAIN A CONVICTION FOR DISORDERLY CONDUCT, UNDER ANY SUBSECTION OF R.C. 2917.11, THERE MUST BE SUFFICIENT EVIDENCE THAT THE BEHAVIOR CAUSED INCONVENIENCE, ANNOYANCE OR ALARM, WHICH CANNOT BE INFERRED

State v. Patterson ...... 4 2007 Ohio 1769

City of Cincinnati v. Summers ...... 5 2003 Ohio 2773

State v. Holmes ...... 5 129 Ohio App.3d 735

PROPOSITION OF LAW ...... 6 A POLICE OFFICER IS NOT QUALIFIED AS A "PERSON" FOR PURPOSES OF ENGAGING IN DISORDERLY CONDUCT, UNDER R.C. 2917.11(B)(1)

PROPOSITION OF LAW ...... 7 iNTOXICATION FOR PURPOSES OF VIOLATiNG R.C. 2917.11(B) REQUIRES MORE THAN A MERE ODOR OF ALCOHOL, AND SHOULD BE HELD TO THE SAME STANDARD AS INTOXICATION UNDER OTHER CRIMINAL OFFENSES

State v. Smith ...... 8 1979 Ohio App. LEXIS 11527 State v. Taylor ...... 8 (1981) 3 Ohio App.3d 197

State v. Beagle ...... 8 2003 Ohio 4331

State v. Spillers ...... 8-9 2000 Ohio App. LEXIS 1151

State v. Graves ...... 9 173 Ohio App.3d 526

State v. Jenkins ...... 9 1998 Ohio App. LEXIS 1266

State v. Swiecicki ...... 9-10 (2002) 149 Ohio App.3d 77

CONCLUSION ...... 11

CERTIFICATE OF SERVICE ...... 11 WHY THIS COURT SHOULD GRANT JURISDICTION

In this case, Appellant was arrested because she was allegedly drunk in her own home. While the officers arrived at her home legitimately, her ensuing conduct was not criminal. Further, she was not voluntarily intoxicated in public or in the presence of two or more persons, as required by the statute.

Finally, she was considered to be "intoxicated," despite any evidence but an odor of alcohol. A mere odor of alcohol is not intoxication for purposes of operating a vehicle impaired, in violation of R.C. 4511.19, and thus should not be here.

This case involves some interesting issues: what constitutes

"disorderly conduct" in one's own home; can one be convicted of disorderly conduct where there is no evidence of public annoyance or alarm; do police officers count as "persons" for purposes of engaging in disorderly conduct in the presence of two or more persons; does "intoxication" under this statue require less proof than "intoxication" under other criminal statutes?

This case presents a prime opportunity for this court to address these issues. A home is not public, and therefore one's actions in their home are not public matters. These same actions are not criminal if there is no evidence of annoyance or alarm. As is the case here.

Additionally, allowing a police officer to be considered a "person" for purposes sustaining a conviction under disorderly conduct is problematic.

1 First, it defeats the purpose of prohibiting that conduct. The prohibition of this

behavior is because it is disruptive to the public or at least the surrounding

people. It is not intended to prevent behavior committed to police. Second, when the police are called to a situation, and are then considered "persons" to

sustain a conviction, it entraps the person into committing a disorderly conduct. If one officer arrives, they may simply call for another officer to assist, and the requisite two person requirement is met, and the person can then be arrested. Third, the police, by their nature, are employed to deal with the unsavory. Their sensibilities are heightened, and arguably not as easily offended as the general public.

Finally, there are varying legal standards of intoxication, depending upon the context. For example, the standard for intoxication in reference to operating a vehicle, under R.C. 4511.19, appears to differ from the standard for under R.C. 2917.11. Appellant argues the standards, and the evidence by which to prove intoxication, should be uniform in the law.

STATEMENT OF THE CASE AND FACTS

Three police officers responded to a appellant's house in the early evening of November 7, 2008. The officers had responded to a 911 call placed by appellant's husband. (TR 6, 18.)

As they pulled up to the house, the officers heard a woman's voice

2 yelling. (TR 8, 19.) Shortly after, the officers saw appellant on the front porch of the home. She was yelling at the officers to leave. She told them that they were "crooked." (TR 8-9, 19.)

Appellant was obviously upset. (TR 13.) One of the officers testified that she was very "irate" and "out of control." (TR 20-21.) The officers tried to calm appellant down, unsuccessfully. (TR 21.)

At some point appellant sought to excuse herself from the conversation, and she started to go inside her house. The officers told her not to go inside. They claimed they wanted to stay in contact with her since the original 911 call had reported that she was attempting suicide, and they were concerned for her safety. Accordingly, Officer Barga followed appellant inside the house. At that point appellant turned around, called the officer a name, and then pushed her toward the door. (TR 13-15, 21-22.)

At that point officers arrested appellant. One officer said that he only smelled alcohol on her person after she was inside the cruiser. (TR 12.)

Another officer stated that she smelled alcohol on appellant's person both before and after she was put inside the cruiser. (TR 23.) This officer also opined that appellant was intoxicated. (TR 25.)

The police officers arrested appellant that night. She was ultimately charged with one count of disorderly conduct. R.C. 2917.11(B)(1). On March

24, 2009, following a bench trial, the court found appellant guilty of the charge.

(TR 32.) The court then imposed a $150 fine and a 30 day jail sentence. The

3 court then suspended the jail sentence and ordered probation.

Appellant then timely filed a notice of appeal. The court of appeals affirmed the conviction. Appellant now timely submits this appeal.

PROPOSITION OF LAW

IN ORDER TO SUSTAIN A CONVICTION FOR DISORDERLY CONDUCT, UNDER ANY SUBSECTION OF R.C. 2917.11, THERE MUST BE SUFFICIENT EVIDENCE THAT THE BEHAVIOR CAUSED INCONVENIENCE, ANNOYANCE OR ALARM, WHICH CANNOT BE INFERRED

In this case, Appellant was convicted for behaving in an irate manner, while intoxicated. The court used her behavior, yelling at the officers, calling them "crooked", and telling them to leave as evidence that he behavior was annoying, alarming, or caused an inconvenience. Appellant contends the effect of her behavior cannot be inferred, and there must be direct evidence that her behavior actually caused an inconvenience, annoyance, or alarm.

It is well-established in Ohio that the inconvenience, alarm or annoyance cannot be inferred to sustain a conviction under 2917.11(A). In

State v. Patterson, 2007 Ohio 1769, the court reversed the disorderly conduct conviction, stating the prosecution failed to elicit any testimony that the defendant's behavior caused any inconvenience, annoyance or alarm. In that case, the defendant was charged under subsection (A) of R.C. 2917.11; however it is analogous despite Appellant being charged under subsection (B)

4 as both sections prohibit actions which cause annoyance, inconvenience or alarm. Also, in Cincinnati v. Summers, 2003 Ohio 2773, the court held there was insufficient evidence the defendant's behavior, yelling at passing cars, caused any annoyance, inconvenience or alarm. Also, in State v. Holmes,

129 Ohio App.3d 735, the court reversed the conviction, holding: "In this case

before us, it is a matter of mere speculation whether any of the residents in the apartment complex were inconvenienced, alarmed or annoyed."

Appellant contends that proof of the inconvenience, alarm or

annoyance is required in any disorderly conduct conviction. While the above

cases addressed convictions under subsection (A), this same principle should

apply to cases charged under subsection (B). Both sections of the statue

prohibit conduct which is likely to cause an inconvenience, annoyance or

alarm. Thus, merely speculating as to whether the behavior actually causes this effect allows the state to evade the responsibility of proving an essential

element of the offense.

In this case, there was no direct evidence that Appellant's actions

inconvenienced, annoyed, or alarmed any of the officers. The officers testified they told her to calm down, to no avail, and eventually followed her into her

home. After telling one officer to leave, she was arrested. Any person who was trying to calm down an irate, hostile person may be inconvenienced by

that person's refusal to calm down, but may is not proof beyond a reasonable

doubt.

5 PROPOSITION OF LAW

A POLICE OFFICER IS NOT QUALIFIED AS A "PERSON" FOR PURPOSES OF ENGAGING IN DISORDERLY CONDUCT, UNDER R.C. 2917.11(E)(1)

A conviction under R.C. 2917.11(B) requires the offender's conduct to

occur either in public, or in the presence of two or more people. In this case,

the state agrees the offense did not occur in public, but in the presence of two

or more people. Appellant contends police officers should not count as

people under this statute.

Appellant maintains that when considering this component of the

statute, police officers should not "count." The gist of this offense is that, while

he or she is intoxicated, the offender engages in conduct that is likely to be

offensive to other people - hence the "two person" or "public place"

requirement. But appellant contends that a police officer is not the kind of

person who should be allowed to take offense at untoward behavior. The very

essence of an officer's job is to deal with unsavory acts and, sometimes,

unsavory people.

In addition, by allowing police officers to "count" as persons under the

statute, a person can be charged with disorderly conduct based solely on whether one or more officers responds to any particular complaint. That a

person could be charged with a crime based entirely on whether more than

one officer happens to respond to a purported crime scene is just fundamentally unfair.

6 Thus, appellant submits that no reasonable person could conclude that her conduct occurred in front of two or more persons or in a public place. The officers responded to her home on a call that she was suicidal. The mere nature of the call lead the officers to believe Appellant would be agitated, or at the very least, emotional. In performing their job duties, they simultaneously forced Appellant to commit criminal actions. The conviction should be reversed.

PROPOSITION OF LAW

INTOXICATION FOR PURPOSES OF VIOLATING R.C. 2917.11(B) REQUIRES MORE THAN A MERE ODOR OF ALCOHOL, AND SHOULD BE HELD TO THE SAME STANDARD AS INTOXICATION UNDER OTHER CRIMINAL OFFENSES

The court here held there was sufficient evidence of Appellant's intoxication, in an odor of alcohol and erratic behavior. In making this determination, the court found it was her behavior from which intoxication could be inferred. The court stated it was a reasonable inference that her behaviors were an annoyance, inconvenience, or alarm to the officers, which meant she was intoxicated. Appellant contends this is not the standard, and a mere odor of alcohol and erratic behavior is insufficient evidence of intoxication. Further, a conviction under this statute requires both intoxication

AND criminal conduct. Thus, the conduct is not evidence of the impairment.

7 Appellant finally argues a finding of "intoxication" under this statute should be the same as other criminal offenses.

Here, the officers testified Appellant had an odor of alcohol, and she was irate, and out of control. This is insufficient evidence of intoxication.

Intoxication is an element for several criminal offenses, see R.C. 4511.19 prohibiting the operation of a motor vehicle while under the influence, and

R.C. 2923.15 prohibiting the carry or use of a firearm while under the influence. "Under the influence" is synonymous to "intoxication." See State v.

Smith, 1979 Ohio App. LEXIS 11527. Thus, a review of the sufficiency of the evidence under these statutes is necessary.

For purposes of driving under impairment, a mere odor of intoxication is insufficient evidence of impairment. In fact, mere odor of alcohol in insufficient to justify probable cause to arrest. In State v. Taylor, (1981), 3

Ohio App.3d 197, the court held an odor of alcohol and speeding were insufficient probable cause to arrest for OVI. "The mere odor of alcohol about a driver's person...may be indicia of alcohol ingestion, but it is not more a probable indication of intoxication than eating a meal is of gluttony." Id. In

State v. Beacale, 2003 Ohio 4331, the second district held a marked lane violation, which almost caused an accident, an odor of alcohol and an admission of having "three shots of Jack" was at most, reasonable suspicion that the driver was impaired, but not probable cause. A slight odor of alcohol is insufficient to trigger reasonable suspicion, and the addition of a de minimis

8 violation, common to every driver, is insignificant. State v. Spillers, 2000 Ohio

App. LEXIS 1151.

Applying the same facts of impairment in this case, there is insufficient evidence of intoxication. These preceding cases show a lack of probable cause to even arrest based upon an odor of alcohol and erratic behavior. If this evidence is insufficient to support probable cause to arrest, then it is certainly insufficient to support a conviction, beyond a reasonable doubt.

Further, in this case, the court of appeals justified the finding of

intoxication based upon Appellant's actions, citing to State v. Graves, 173

Ohio App.3d 526. The Graves case says this statute focuses not on the drunken state of the accused but their conduct while drunk, however this

reference is misplaced, as Graves also says mere intoxication is not enough and there must be some conduct rendering his behavior criminal. See also

State v. Jenkins, 1998 Ohio App. LEXIS 1266, which says the law requires some conduct by the defendant and mere intoxication is not enough. The

court here attempts to use her conduct as evidence of her impairment, when these cases state both evidence of impairment AND conduct are necessary for a conviction. Using her conduct as proof of impairment is insufficient.

In a similar case, State v. Swiecicki (2002), 149 Ohio App.3d 77, the trial court found insufficient evidence of intoxication for purposes of disorderly

conduct. In that case, the defendant was at a baseball game, and heckled

one of the players. The court found the only evidence of intoxication was an

9 observation the defendant carried beers to his seat, and was holding a beer while heckling the player. There was no other indicia of impairment, and thus

it was insufficient. Id.

Here, according to the evidence presented, there is insufficient evidence of impairment, for purposes of R.C. 4511.19. There is also

insufficient evidence under Swiecicki's ruling. If this court finds a mere odor of

alcohol and erratic behavior is evidence of intoxication, then intoxication has two different meanings for the purposes of operating a car and disorderly

conduct. Creating a sliding scale of intoxication is a slippery slope. Further,

Swiecicki has analogous facts, and shows the evidence here was insufficient.

Finally, to use another element of the offense, her conduct, as evidence of

impairment prevents the state from having to prove intoxication at all, so long

as the behavior element has been met. Therefore, behavior coupled with

even a slight odor would be sufficient to justify a conviction.

10 CONCLUSION

For the reasons stated above, appellant asks this Court to accept jurisdiction in this matter.

Respectfully Submitted,

PAUL-RION of RION, RIOR! & RION, L.P.A., INC.

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a copy of this Notice of Appeal was delivered to Darke County Prosecutors Office, 504 Broadway, Greenville, OH 45331, by regular U.S. mail on the same day as filing.

H. RION of ON, RION & RION, L.P.A., INC.

11 IN THE COURT OF APPEALS OF DARKE COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NO. 09CA0002 vs. T.C. CASE NO. 08CRB11209

STACY A. NAPIER (Criminal Appeal from Municipal Court) Defendant-Appellant

O P I N I O N

Rendered on the 19th day of February , 2010.

Phillip D. Hoover, Asst. Pros. Attorney, Atty. Reg. No. 0034386, Courthouse, Greenville, OH 45331 Attorney for Plaintiff-Appellee

John H. Rion, Atty. Reg. No. 0002228, P.O. Box 10126, 130 W. Second Street, Suite 2150, Dayton, OH 45402 Attorney for Defendant-Appellant

GRADY, J.:

Defendant, Stacy A. Napier, appeals from her conviction for disorderly conduct in violation of R.C. 2911.17(B)(1).

On November 7, 2008, Ansonia police officers Zimmer, Barga, and McCana were dispatched to Defendant's residence in Ansonia.

As they approached the residence, the officers heard Defendant

screaming in a loud and high-pitched voice. Defendant's husband

told the officers that he called 911 because Defendant had tried

to kill herself. Defendant denied that, saying that she just had

THE COURT OF API'EAI,S OF OllIO SECOND APPELLATP DISTRICT 2 been trying to get a cat out of a tree.

Defendant was inside her house when the officers arrived, but stepped outside onto a porch or patio to deal with them.

Defendant denounced the officers as "crooked" and demanded that

they get off her property. At Defendant's trial, Officer Zimmer

stated that Defendant's tone was "harsh" and that she was

"cussing." (T. 9). Officer Barga testified that Defendant was

"very irate" and uncooperative. (T. 20). Both officers

testified that they asked Defendant several times to settle down

and be quiet.

Defendant began to go back inside her house. Concerned

about her condition and the reported suicide attempt, Officer

Barga told Defendant she should not go inside. Defendant

nevertheless went in, followed by Officer Barga, who testified:

"I opened the door, (and) went in after her. She turned around

and said, `you fat bitch, get out of my house' and pushed me

through the screen door." (T. 22). Officer Zimmer also

testified that Defendant pushed officer Barga back outside the

door.

Defendant was arrested for disorderly conduct and placed in

the officers' police cruiser. Officer Zimmer testified that he

noticed an odor of alcohoi from Defendant when they were in the

cruiser. Officer Barga testified that Defendant then "had a

strong odor of alcohol beverage coming from about her." (T. 23).

Officer Barga testified that she first noticed the odor from

Defendant when they were talking on the porch or patio.

THE COURT OF APPEALS OF OHIO SECOND APPELLAI'E UIS'I'RICT Officer Barga was asked what other "indicators" of alcohol impairment she noticed. Officer Barga did not recall any, except that Defendant was "[j]ust very belligerent and out of control."

(T. 24). She added that when Defendant was placed in the cruiser

Defendant "was banging her head on the glass, and I don't know if she was elbowing the door or what she was doing." (Id.)

Defendant was twice asked to stop, and then did. Officer Barga testified that, in her opinion, Defendant was intoxicated.

Defendant was found guilty by the court, which imposed a fine of $150 and a thirty day jail sentence. The sentence was ordered suspended. Defendant filed a notice of appeal.

Before proceeding to the error Defendant assigns, we caution the State to in the future comply with App.R. 19, which governs the form of briefs. Division (A) of that rule requires that, except for quoted matters, briefs shall be double-spaced between each line of text. The State's brief is instead single-spaced throughout.

FIRST ASSIGNMENT OF ERROR

"THE CONVICTION SHOULD BE REVERSED BECAUSE THE EVIDENCE

SUPPORTING THE INTOXICATION ELEMENT OF THE OFFENSE WAS

INSUFFICIENT."

A person is not guilty of a criminal offense unless the person's liability is based on conduct that includes either a voluntary act or an omission to perform an act or duty that the person is capable of performing, and the person has the requisite degree of culpability for each element as to which a culpable

TI-I7s' COURT OF APPEALS OF OHlO SECOND APl'ELLA7'L"+ DIS'I'12IC.'I' mental state is specified by the section of the Revised Code defining the offense. R.C. 2901.22(A). The standard applicable to that determination is the reasonable doubt standard. R.C.

2901.05(A).

When deciding whether evidence that was offered at trial was

sufficient as a matter of law to support a guilty verdict, a reviewing court must determine "whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Jackson v.

Virginia (1979) , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560.

Defendant was convicted of engaging in disorderly conduct in

violation of R.C. 2911.17(B)(1). That section states:

"No person, while voluntarily intoxicated, shall . . . in a

public place or in the presence of two or more persons, engage in

conduct likely to be offensive or to cause inconvenience,

annoyance, or alarm to persons of ordinary sensibilities, which

conduct the offender, if the offender were not intoxicated,

should know is likely to have that effect on others."

Defendant argues that the evidence was insufficient to prove

that she was intoxicated. The disorderly conduct statute focuses

not on the drunken state of the accused but rather on the

accused's conduct while drunk. State v. Graves, 173 Ohio App.3d

526, 2007-Ohio-4904. Furthermore, whether an individual is

intoxicated within the meaning of the disorderly conduct statute

'rNS Co1LT oP APPEALS OF OHIO SACOND APPRLLA'IL DIS'IRICT is determined from the perspective of an ordinary observer. S.C.

2917.11(D); McCurdy v. Montgomery County (C.A. 6, 2001), 240 F.3d

512. Addressing the issue in the context of the Liquor Control

Act, which prohibits sales of liquor to intoxicated persons, the

Franklin County Court of Appeals wrote:

"For many years it has been a controverted question as to when a person is intoxicated. Different courts have determined different standards. We think it a fair statement to say that the person claimed to be intoxicated must be so far under the

influence that his conduct and demeanor are not up to standard.

We also think it would be fair to say that such conduct or

demeanor should be reasonably discernible to a person of ordinary

experience; at least, as applicable to this case."

State ex rel. Gutter v. Hawley (1942), 44 N.E.2d 815, 819; 36

Ohio Law Abs. 594.

Defendant, citing State v. Spillers (Mar. 24, 2000), Darke

App. No. 1504, argues that evidence of the odor of alcohol the

officers said they detected was insufficient to demonstrate

intoxication. The issue in Spillers was whether the defendant

was impaired for purposes of R.C. 4519.11, which presents the

question in a different context. We held that absent additional

evidence of impaired driving, an odor of alcohol on the driver

was insufficient probable cause to support an arrest for an R.C.

4511.19 violation. That further proof of intoxication is not

absent from the case before us. Defendant engaged in conduct

which reasonable minds could find was a product of her

THE COCR'P OF APPEALS OF OHIO SECOND APPTLI.ATE DISTRICT -6 intoxication.

Defendant also relies on Cleveland v. Swiecicki, 149 Ohio

App.3d 77, 2002-Ohio-4027. In that case, the defendant heckled a player at a baseball game. The defendant was also seen to have carried several beers to his seat during the game, and to be holding a beer in his hand when he heckled the player. The appellate court held that evidence the Defendant carried or held beers, absent supporting breath-alcohol or blood alcohol evidence, was insufficient to prove intoxication. However, the court put more significance on the fact that the heckling involved was insufficient to cause inconvenience, annoyance, or alarm to person of ordinary sensibilities, which is the conduct in which the offender must have engaged while drunk in order to be convicted of disorderly conduct.

Such evidence is not lacking in the present case.

Reasonable minds could find that Defendant's screaming, her harsh and irate manner, and her denunciation of the officers as

"crooked," caused annoyance, inconvenience, andJor alarm to the

officers who where dispatched to Defendant's home on official business. Coupled with evidence of the odor of alcohol about her

to which the officers testified, reasonable minds could find that

Defendant was intoxicated.

Even were we to find that such evidence was insufficient to prove intoxication circumstantially, we would find that the matter was proved by direct evidence. Officer Barga was asked

whether "there is any doubt in your mind as to whether or not the

THE COURT OF APPEALS OF OH1O SECOND APPELLATE DTSTRLCT Defendant was or was not intoxicated?" She replied: "In my opinion, she was intoxicated." (T. 25). There was no objection to that testimony.

Evid.R. 701 states:

"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."

A lay opinion is rationally based on the witness's perception if it is derived from firsthand knowledge of the subject and involves an opinion or inference that a normal person would form on the basis of the observed facts. Weisenberger's

Ohio Evidence Treatise (2009 Ed.) §701.3. The opinion is

"helpful" if it aids the trier of fact in determining a matter in issue. Id., §701.4,

Officer Barga's opinion satisfies the requirements that

Evid.R. 701 imposes. Therefore, her opinion was admissible to prove intoxication. Then, the only issue remaining is the weight

to be given that evidence. State v. Hopfer (1996), 112 Ohio

App.3d 521, 556. Construing that evidence in a light most favorable to the prosecution, Jackson v. Virginia, we find that

the evidence was sufficient to prove the element of intoxication in R.C. 2907.11(B)(1), beyond a reasonable doubt.

The first assignment of error is overruled.

THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRIC'1' 8

SECOND ASSIGNMENT OF ERROR

"THE EVIDENCE SHOULD ALSO BE DEEMED INSUFFICIENT BECAUSE THE

STATE FAILED TO PROVE THAT THE `CONDUCT' HERE OCCURRED IN A

PUBLIC PLACE OR IN FRONT OF TWO OR MORE PERSONS."

Defendant argues that her conduct did not occur in a "public place" for purposes of R.C. 2917.11(B)(1), and the State does not

dispute the point.

Alternatively, R.C. 2917.11(B)(1) prohibits the conduct

defined therein when it occurs "in the presence of two or more

persons." Defendant concedes that three police officers were

present, but argues that they should not count as persons for

purposes of the disorderly conduct statute because "[t]he very

essence of an officer's job is to deal with unsavory acts and,

sometimes, unsavory people." (Brief, p. 7).

The gist of Defendant's argument is that police officers,

unlike other persons, are not likely to be offended or

inconvenienced, annoyed, or alarmed by conduct that might

otherwise be disorderly. That contention imposes a subjective

standard that R.C. 2917.11(B) (1) rejects, by providing that

whether such reactions are likely to result from a defendant's

conduct is determined according to the reactions that "persons of

ordinary sensibilities" would have to that conduct. The standard

does not make an exception for the thicker skins police officers

are expected to develop. Police officers therefore "count" as

persons for purposes of R.C. 2917.11(B)(1).

The second assignment of error is overruled.

TIIE COURT OF APPEALS OF OfIlO SECOND APPELLATE DISTRICT THIRD ASSIGNMENT OF ERROR

"THE EVIDENCE TO SUPPORT THE CONVICTION AS A FOURTH DEGREE

MISDEMEANOR WAS INSUFFICIENT BECAUSE APPELLANT DID NOT `PERSIST

IN DISORDERLY CONDUCT AFTER REASONABLE WARNING OR REQUEST TO

DESIST."'

A violation of the disorderly conduct statute is a minor misdemeanor. R.C. 2917.11(E)(2). The offense is instead a fourth degree misdemeanor if "[t]he offender persists in disorderly conduct after reasonable warning or request to desist." R.C. 2917.11(E)(3), Defendant was convicted of disorderly conduct as a fourth degree misdemeanor.

Officer Zimmer testified that all three officers told

Defendant to be quiet. (T. 13). Officer Barga, when asked whether she asked Defendant "to settle down or be quiet" replied,

"Many times." (T. 21). Officer Barga explained that was

"[p]ossibly three or four times at least." (Id.)

Reasonable minds could infer from the foregoing evidence that, following requests to desist, Defendant continued to

"engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities." R.C. 2917.11(B)(1). The evidence was therefore sufficient to elevate Defendant's conviction from a minor misdemeanor to a fourth degree misdemeanor per R.C.

2917.11(E)(3).

Defendant further argues that the nature or quality of her conduct did not rise to the level of an R.C. 2917.11(B)(1)

THP COURT OF APPEALS OF OHIO SECOND APPELLA7'E DIS'1'RICT in

violation. That argument and the contentions it involves concern

the weight of the evidence and are outside the sufficiency of

evidence error Defendant assigns, and will therefore be

disregarded.

The third assignment of error is overruled. The judgment of

he trial court will be affirmed.

DONOVAN, P.J. And FAIN, J., concur.

Copies mailed to:

Phillip D. Hoover, Esq. John H. Rion, Esq. Hon. Julie L. Monnin

THE COURT OF APPEAI,S OF OHIO SECOND APPELLATE DISTRICT IN THE COURT OF APPEALS OF DARKE COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NO. 09CA0002 vs. T.C. CASE NO. 08CRB11209

STACY A. NAPIER

Defendant°Appellant FINAL ENTRY

Pursuant to the opinion of this court rendered on the

19th day of February , 2010, the judgment of the trial court is Affirmed. Costs are to be paid as provided in App.R. 24.

MAR `E.^DONOVAN, PRESIDING JUDGE

THB COURT OF APPEALS OF 01110 SHCOND APPELLA'11. D19TR1CT Copies mailed to:

Phillip D. Hoover Asst. Pros. Attorney Courthouse Greenville, OH 45331.

John H. Rion, Esq. P.O. Box 10126 130 W. Second Street Suite 2150 Dayton, OH 45402

Hon. Julie L. Monnin Municipal Court Courthouse, 3^d Floor Greenville, OH 45331-1990

Clerk, Municipal Court Courthouse Greenville, OH 45331

THE COURT OF API'EALS OF OHIO SECOND APPELLATE DISTRICT Page 1

4)5? xisNexis^

LEXSEE 2007 OH1O 1769

CITY OF CHARDON, Plaintiff-Appellee, - vs - DAVID N. PATTERSON, Defendant-Appellant.

CASE NO. 2006-C-2726

COUR"T OF APPEALS OF 01110, ELEVENTH APPELLA'fE DISTRICT, GEAUGA COUNTY

2007 Ohio 1769; 2007 Ohio App. LEXIS 1627

April 13, 2007, Decided

PRIOR HISTORY: [**]] Criminal Appeal from the [*P2] 'The charges against Patterson arose from an Chardon Municipal Court, Case No. 2006 CRB 00294. incident which occurred at Cooke's Sunoco gas station located at 400 Water Street in Chardon, Geauga County, DISPOSITION: Reversed and judgment entered for Ohio. The following facts are undisputed. At appellant. approximately 8:15 a.m., on March 17, 2006, Patterson arrived at Cooke's to purchase gasoline. Upon his arrival, Patterson signaled for the pmups to be tumed on, and COUNSEL: Dennis M. Coyne, Police Prosecutor, began filling his oar with gasoline_ [**2] Rollin Cooke, Dennis M. Coyrte Co., L.P.A., Cleveland, OH, (For the proprietor of the station, was working at the time. Plaintiff-Appellee). Cooke, who testified that he had heard rumors about Patterson having an affa,ir with Cooke's wife, came out of David N. Patterson, pro se, Patterson and Frost, the building to confront Patterson about the alleged affair. Willoughby, OH, (For Defendant-Appellant). [*P3] Sarn Ritondaro was inside the station while JUDGES: DIANE V. GRENDEI.L, J. CYNT111A the confrontation occurred, and testified that he witnessed WESTCOTT RICE, P.J., COLLEEN MARY O'TOOLE, the events through the front picture window of the J., concur. station, and that his view was unobstmeted. Although lie did not hear anything that was said between the two men, OPINION BY: DIANE V. GRENDELL Ritondaro testified that the men appeared to be having a heated argument, and that Cooke stoodwithin "six to OPINION eight" inches from Patterson. Ritondaro testified that he witnessed Patterson shove Cooke in the chest and walk DIANE V. GRFNDELL, J. away. Altltough Patterson claims that Cooke was poking hirn in the chest as thcy argued, Ritondaro tesfified that [*Pl] Defendant-appellant, David N. Patterson, he did not witness Cooke poking Patterson. appeals the judgment of the Chardon Municipal Cotnt, Snding him guilty of Disorderly Conduct, a minor [*P4] Cooke testified that after he was shoved by misdemeanor, in violation of R.C. 2917.11(A)(I). We Patterson, he went around to the driver's side of reverse the decision of the lower court and enter Patterson s vehicle and removed the keys. Cooke then judgment in favor of appellant. began walking toward the station, with Patterson Page 2 2007 Ohio 1769, *P4; 2007 Ohio App. LEXIS 1627, **2

following him. Both men then called the police from their presented is a question of law, thus, an appellate court is ecllular phones. not pennitted to weigh the evidence when making this inquiry_ State v. Schlee (Dec. 23, 1994), 17tk Dist. No. [*P5] Patterson [**3] was cited for Disorderly 93-L-082, 1994 Ohio App. LEXLS 5862, at *13 (citations Conduct, and subsequently pled not guilty to the charge. ornitted). A reviewing court will not reverse a judgment The matter proceeded to trial before the magistrate on as beiug against [**51 the manifest weight of the May 17,2006. evidence "where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all of the [*P6] On May 30, 2006, the magistrate issued her elemeitts of an offense have been proven beyond a decision, finding Patterson guilty. Patterson timely filed reasonable doubt." ld. cithtg State v_ Eley (1978), 56 Ohio objections to the Magistrate's Decision. On August 4, St.2d 169, 383 N:E2d 132, at the syllabus. Thus, an 2006, the court overruled Patterson's objections and appellate court will exainine the evidenee and determine found hint guilty. The court irnposed no fine, but ordered whether that evidence, "if believed, would convince the that Patterson.pay the costs of the act'ron by September I, average mind of a defendant's guilt beyond a reasonable 2006. Upon Patterson's motion, the court stayed the doubt." State v. Norwood, 11th Dist. No. 2005-L-047, execution of its judgment pending this appeal. 2006 Ohio 3415, at P15, citing Slate v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 NE.2d 492 (emphasis added). [*P7] Patterson timely appealed his eonviction, assign'ntg the following as error: [*P]3] iJnder the Ohio Rules of Criminal Procedure, a defendant may move the trial court for a [*P8] "[7.] The trial comt erred to the prejudice of judbnnent of acquittel "if the evidence is insufficient to the appellant by affirming the magistrate's errors in sustain a conviction." Crim.R 29(A). findings of fact and conclusions of law in finding that appellant was guilty of Disorderly Conduct beyond a [*P14] In the case sub judice, Patterson raised his reasonable doubt as such was not supported by the Crim.R. 29 motion at the end of the state's case, but failed sufficiency of the evidence. to renew the motion at the close of his defense. However, since Patterson also argued that his conviction was [*P9] "[2.] The trial court erred to the prejudice of against the mauifest weight of the evidence, we may the appellant by affirming the magistrate's errors in consider whether [**6] his conviction was based upon findings of fact and conclusions of law in finding that suffrcient evidence. See Willoughky v. Wutchett, llth appellant was guilty of disorderly conduct beyond [**4] Dist. No. 2002-L-165, 2004 Ohio 1177, at PP7-9; State v. a reasonable doubt as appellant's conviction was against McCrory, Il th Dist. No. 2006-P-0017, 2006 Ohio 6348, the nranifest weight of the evidence." at P40 (a detennination of whether a conviction is or is ['P10] In his first assignment of error, Patterson not supported by the manifest weight of the evidence argues that his conviction was based upon insufFcient "necessarily rests on the existence of sufficient evidence. We agree. evidence") (citations omitted).

[*P11] "[S]ufficiency of the evidence *** [*Pl5] R.C. 2917.11(A)(1), the Disorderly Conduct challenges whether the state has presented evidence for statute, provides as follows: each element of the charged offense. The test for [*P16] "No person shall recklessly cause snfficiency of evidence is whether, after viewing the inconvenience, annoyance, or alarm to another by *** probative evidence and the inferences drawn from it, in a [e]ngagiug in fighting, in threatening harm to persons or light most favorable to the prosecntion, any rational trier property, or in violent or tiubulent behavior." of fact could frnd all elements of the charged offense proven beyond a reasonable doubt." State v. Barno, llth [*P17] In the instant inatter, there is no evidence Di.ct. No. 2000-P-O100, 2001 Ohio 4319, 2007 Ohio App. that Patterson either fotight with or threatened harm to LEXIS 4280, at *16, citing State v. Jone.r, 91 Ohio St.3d Cooke. Thus, there are two issaes for this court to 335, 345, 2001 Ohio 57, 744 N,E.2d 1163. detennine: First, we must consider whether the state produced evidence that Patterson engaged in "violent or [*P12] Whether sufficient evidence has been turbulent behavior" within the purview of R.C. Page 3 2007 Ohio 1769, *P 17; 2007 Ohio App. LEXIS 1627, **6

2917.11(A)(1). Next, we must consider whether the state and witnessed the incident, testified that prior to the push, offered evidence that Patterson's actions caused Cooke Cooke was standing within six to eight inches of "inconvenience, [**7] annoyauce or alarrn." We answer Patterson, and after the push, Patterson inunediately both of these questions in the negative and, therefore, walked away from Cooke. reverse the lower court's judgment. [*P38] We conclude, as a matter of law, that this [*PI8] Wben asked what happened after Patterson evidence is insufficient to establish that Patterson arrived at the station, Cooke responded: engaged in "violent or turbulent" behavior, as prohibited by R.C. 2917_11(A)(1). [*P19] "A: I went out to confront [Patterson] about [the alleged affair]. [*P39] Moreover, the state failed to adduce any evidence that Patterson's actions caused Cooke [*P20] "Q: Okay. And what did you say? "inconvenience, annoyance or alarm." R.C. 2917.11(A)(1). [*P21] "A: I said, 'Is it trueT First, I asked, 'What are you doing in here?' He says, 'I'rn in here getting gas.' 1 [*P40] With regard to the eleinents of says - I said, *** 'I heard you were sleeping with tny wife inconvenience, annoyance, or alann, it lras been stated: and showing pictures around town of her.' [*P41] "Annoyance and alarrn are each mental ['*P22] "And ttten he *** pushed me aside and that's states and, therefore, are not part of the concept of when I decided to call police." physical harm ***." State v. Neal (Sept. 1, 1998), 10th Dist. No. 97APA12-1676, 1998 Ohio App. LEXbS 4149, [*P23] Cooke later testified as follows: at *19. Altltough inconvenience may also have "physical elements," it may also "be ptuely mental in its scope." Id. [*P24] "Q: How did he push you? [*P42] In the instant matter, [**9] the prosecution [*P25] "A: Pushed me in tbe chest. failed to elicit any testimony from Cooke that Patterson's [*P26] "Q: With two hands extended? push caused hint "inconvenience, annoyance or alarm," over and above that which he may have already been [*P27] "A: Corrcct. experiencing due to Patterson's presence on Cooke's premises. As limited to the facts and ciraunstances of [*P28] "Q: What did yon do in relation to the push'7 this particnlar case, we conclude that there was insufficient evidence presented to estabfish this element. [*P29] "A: Went around his car and yanked the keys out and called the police." [*P43] Patterson's first assignmeut of error has ine [*P30] "*** [*P44] Our disposition of Patterson's first [*P31] "Q: So the only touching that took place was assignment of error renders Patterson's second him pushing you in the chest? assignment oS' error moot.

[*P32] "A: ThaPs correct. [*P45] For the foregoing reasons, the jtulgment of the Chardon Municipal Court is reversed and judgment is [*P33] "Q: And did you fall backwards? entered in favor of appellant. [*P34] "A: r+rTent [**8] backf^ard a little bit. CYNTHIA WESTCOTT RICE, P.J., [*P35] "Q: You didn't fall though2 COLLEEN MARY O'TOOLE, J., [*P36] "A: No. concur. [*P37] Sam Ritondaro, who was inside the station Page 1

L xisNexis'

LEXSEE 2003 OHIO 2773

CITY OF CINCINNATI, Plaintiff-Appellee, vs. TERRY SUMMERS, Defendant-Appellant.

APPEAL NO. C-020624

COURT' OF APPEALS OF OHIO, FIRST APPLLLAI'E DISTRICT, HAMILTON COUNTY

2003 Ohio 2773; 2003 Ohio App. LEXLS" 2494

May 30, 2003, Date o Judgtnent Entry on Appeal

NOTICE: Kenneth L. Lawson, for Defendant-Appellant.

[**1] THESE ARE NOT OFFICIAL JUDGES: SUNDERMANN, P.J., IIILDEBRANDT and HEADNOTES OR SYLLABI AND ARE NEITHER GORMAN, JJ. APPROVED IN ADVANCE NOR ENDORSED BY THE COURT. PLEASE REVIEW THE CASE IN FULL. OPINION

PRIOR HISTORY: Criminal Appeal From: Hamilton DECISION. County Municipal Court. TRIAL NO. 02CRB-25865. Per Curiam. DISPOSITION: Judgment reversed and appellant [*Pl] Defendant-appellant Terry Summers appeals discharged. the judgnrent of the IIamilton County Municipal Cour[ convicting him, following [**2] 'a bench trial, of R.C. 2917.1](A)(3). SYLLABUS disorderly conduct in violation of Becanse there was insnfficient evidence to support the There was utsufficient evidence to support a conviction, we reverse the judgment of the trial court and conviction for disorderly conduct under R.C. discharge Strmmeis. 2917.]](A)(3), when there was no evidence presented to [*P2] The record reveals the following facts. Terry demonstrate, beyond a reasonable donbt, that the Smnmers is a member of a group called "Black Fist," defendant had taunted or insulted passing motorists at a which protests allegations of police miscondnct. In the busy intersection, or that his act of protesting police early evening of August 1, 2002, Black Fist was nzisconduct by dragging a sign through a crosswa(k and protestiug at the intersection of Vinc Street and Fitth shaking a small baseball bat in the air, without actually Street in downtown Cincinnati. Smnmers was walking swinging the bat so as to hit a passing vebicle, was likely back and forth across the street at the crosswalk, dragging to provoke a violent response. a sign and shaking a small black baseball bat over his COUNSEL: Ernest F. McAdams, Jr., City Proseeutor, head. Upon observing Summers's actions while and Lura Clark Teass, Assistant City Prosecntor, for protesting, police officers arrestcd Summers for Plaintiff-Appellee. disorderly conduet because they perceived his actions as Page 2 2003 Ohio 2773, *P2; 2003 Ohio App. LL'XIS 2494, **2

threatening to the passing motorists. Summers told the ineonvenience and annoyance. The two police officers police that he was merely shaking the bat over his head testified that the protest occurred during the afternoon and yelling "Black Power" to passing motorists. rush hour, that there was heavy ntotorist and pedestrian traffic and that, despite the traffic, Summers was walking [*P3] At trial, Police Officer David Jolmston very slowly across the strcet. But the evidence was not testified that Summers had been holding a bat over his sufficient to support the remaining elements of disorderly head and that he had believed that Summers's actions conduct beyond a reasonable doubt. would provoke a violent response from passersby. Police Officer [**3] Pat Norton testified that Sutnmers had [*P8] There was no evidence that Summeshad been holding a small black baseball bat over his head and acted recklessly or had taunted or challenged any passing shaking it. But neither officer could hear what Sunimers motorist. Summers stayed within the crosswalk when was saying to the passing motorists. crossing the street [**5] and presumably crossed witlt the light in his favor, as there was no cluztge of [*P4] At the conclusion of the testimony, the trial jaywalking. Further, both officers testified that they had court found Summers guilty of disorderly conduct and not heard what Snmmers was saying to the passing ordered him to pay a $ 100 fuie and court costs. In this motorists. Although there was testimony that Summers appeal, Simvners now brings forth three assignments of had raised his bat in the air and sltaken it, neither officer error. said that Summers had swutig his bat at any passing car. Shnply protesting within the limits of the law did not [*P5] In his first assigiiment of error, Sununers reasonably support the inference that Summers was asserts that the trial court'sjudgnent was not supported insulting, taunting, or challenging passing motorists. by sufficient evidence. The test for sufficiency of the llutlter, from our review of the record, we hold that evidence is whether, with the evidence viewed in a light peacefitlly protesting in a crosswalk while raising a small most favorable to the prosecution, any reasonable trier of bat in the air and yelling "Black Power," without fact could have found the essential elements of the crime swinging the bat so as to hit a passing vehicle, was not proven beyond a reasonable doubt. I something that was likely to provoke a violent response. ( St.3d 259, 574 1 State v. ./enkc 1991), 61 Ohio [*P9] Accordingly, there was insufficient evidence TLE.2d 492, paragraph two of the syllabus. to support the disorderly-conduct conviction beyond a reasonable doubt. The fnst assignment of error is [*P6] R.C. 2917.11(A)(3)provides that "no person sustained. shall recklessly cause ineonvetuence, [**4] annoyance, or alarm to another, by doing any of the following: * * * [*P 10] As we have held that there was insufficient (3) insulting, taunting, or challenging another, under cvidence to support Summers's conviction for disorderly circumstances in which such conduct is likely to provoke conduct, we reverse the judgment of the trial court and a violent response ***." Thus, we must determine if a discharge Sunimers. Because we have discharged reasonable trier of fact could have found that Stmnners Suminers based on the [**6] first assigmnent of error, had recklessly caused inconvenience, annoyance, or the remaining assignments of error are moot and we alarm to another by insulting, taunting, or challenging decline to acldress thetn. another under circumstance.s in which such conduct was likely to provoke a violent response. Judgment reversed and appellant discharged.

[*P7] There is evidence in the rccord upon which a SUNDERMANN, P.J., FIILDEBRANDT and reasonable trier of fact could have found beyond a (:ORNIAN, JJ. reasonable doubt tltai Surmners had in fact caused Page I

Lex i sNex i s

LEXSEE 2003 OHIO 4331

STATE OF 01110, Plainfiff-Appellee v. LARRY BEAGLE, Defeudant-Appellant

C.A. Case No. 2002-CA-59

COURT OF APPEALS OF 01110, SECOND APPELLAI'E D1S'1'RIC1', CLARK COUNTY

2003 Ohio 4331; 2003 Ohio App. LEXIS 3836

August 15, 2003, Rendered

SUBSEQUENT IIIS1'ORY: Appeal denied by State v. the result of his allegedly unlawful arrest. Beagle Beagle, 100 Ohio St. 3d 1531, 2003 Ohio 6458, 800 contends that the results of certain field sobriety tests N.B.2d 48, 2003 Ohio LEXIS 3369 (Ohio, Dec. 10, 2003) should not have been considered, because they were not perfonned in strict accordance with regulations of the PRIOR HISTORY: [**1] (Criminal Appeal from National Highway Traffic Safety Administration, as Common Pleas Court). T.C. Case No. 02-TRC-950 required by State v. Homan (2000), 89 Ohio St.3d 427, 02-CRB-388. 2000 Ohio 2IZ, 732 N.E.2d 952. Beagle contends that without the results of the field sobriety tests, the arresting DISPOSITION: Judgment reversed; cause remanded. officer lacked probable cause for the arrest, which led to the breath alcohol test result.

COUNSEL: MICHAEL R. SHEILS, Chief Prosecutor, [*P2] At the suppression hearing, the atTesting By: KATHRYN A. RECKLEY, Assistant City officer conceded that [**2] he had not inquired Prosecutor, Springfield, Ohio, Attorneys for concerning physical impaimtents, as required by the Plaintiff-AppAllee. regulations. Consequently, we agree with Beagle that the field sobriety tests ought not to have beett considered. LARRY J. DENNY, Dayton, Ohio, Attomey for When the results of the field sobriety tests are excltuled, Defendant-Appellant. we agree with Beagle that the arresting officer lacked probable cause for the arrest. Consequently, the judgment JUDGES: FAIN, P.J. GRADY and YOUNG, JJ., concur. of the trial court is Reversed, and this cause is Remanded forfnrtherproceedings. OPINION BY: FAIN

OPINION ['P3] A iittle after 1:00, one motning in.7amiary, FAIN, P.J. 2002, Ohio State Trooper Doug Bitler, observed a vehicle being driven by dCfendant-appellant Larry Beagle in the [*Pl] Defendant-appellant Larry Beagle appeals center lane of the three westbound lanes of Interstate 70, from his conviction and sentence for DUI, following a near State Route 4. Bitler saw the vehicle drift twice no-contest plea. Beagle contends that the trial court erred across the right dividing line, about the width of a tire, at by denyiog his motion to suppress evidence obtained as one point coming "very close" to ttte car it was Page 2 2003 Ohio 4331, *P3; 2003 Olrio App- LEXIS 3836, **2

overtaking. Bitler then saw Beagle pull all the way over Beagle appeals. to the leti side of the lane he was in, but without crossing the left lane line. II

[*P4] After Beagle and Bitler had passed the [*P12] Beagle's First Assigument of Error is as vehicle in the right-most lane, they both shifted into that follows: lane, aud Bitler activated his overhead lights, effecting a [*P13] "THE TR1AL COURT ERRED BY traffic stop. Biller described the stop of Beagle's [**3] FAILING TO SUPPRESS ALL THE FIELD van, as follows: SOBRIETY TESTS SINCE THE STATE FAILED TO [*P5] "The van was slow in stopping and as he MEET IT'S [SIC] BURDEN OF PROOF started to pull the vari off the road, thcre is a light post out FSTABLISHING THE S'FANDARDS AND that way because we're close to Exit 46 to 675, and he GUIDELiNES USED BY TIIE OFFICER AND THE started off the right-hand side of the road and then came 'FESTS WERE NOT ADMINISTERED IN STRICT very close to hitting the light post, and then kind of COMPLIANCE WITH THE NHTSA STANDARDS." jerked the wheel and then went arotmd and then stopped [*P14] Beagle cites State v. ILoman, supra, for the the van." proposition that the results of field sobriety tests, to be [*P6] Bitler had Beagle exit the van. Bitler detected admissible in evidence,[**5] or to be considered in an odor of alcohol. Bitler had Beagle enter Bitlcr's connection with a finding of probable cause for an arrest, cruiser, and sit in the passenger seat. The odor of alcohol must be administered strictly in accordance with the imensifred, becornintg "a strong odor." standards set forth in the National Highway Traffic Safety Administration rnanual. The State does not [*P7] Bitler did not notice anything out of the disagree with this proposition, but contends that the ordinary in the appearance of Beagle's eyes or in Beagle's evidence in the record supports a finding that the tlnee rnanner of speech. Bitler asked Beagle how much Beagle field sobriety tests Bitler perfonned - the horizontal gaze had had to drink, and Beagle responded that "he had three nystagmtts test, the one- legged stand test, and the shots of Jack." walk-and-hun test - were administered in compliance with the NHTSA manual. [*P8] Bitler performed a horiz,ontal gaze nystagmus test inside the cruiser, while they were both seated in the [*P15] We conclude that the record does not front seat. Beagle tested positive ori five of six clues. support the State's position. Beagle attempted to examine Bitler in some detail as to which edition of the NHTSA [*P9] Bitler then administered the one-legged stand martual he was following. Beagle's attempts to do so were test, which Beagle failed to perform satisfactorily. not entirely successful. However, Bitler admitted that an Finally, Bitler had Beagle perform the walk-and-tum test. officer is required to determine whether an individual is Beagle ntoved his feet during the instructions, [**4] attd able to perfonn the field sobriety tests, before the tests took an additional two steps upon his rettun, after are perfonned: pivoting, but otherwise performed this test satisfactorily. [*P16] "Q. OK, then you go into his ability to [*P10] Following the administration of the field understand and do the required tests that you give him. sobriety tests, Bitler arrested Beagle and took him to jail, Now, are you required to determine whether or not this where Beagle was given a breath alcohol test. Followiug individual is able to perform these exercises that you give that test, Beagle was charged with DUI. him before yon give them to him?

[*P11] Beagie moved to suppress the breath test 1**61 [*P17] "A. Yes. result, contending that it was obtained as the result of an nnlawful arrest. Following a suppression hearing, the trial [*Pl8] "Q. Isn't that part of your training to screen a court denied Beagle's motion to suppress. Thereafter, person first? Beagle pled no contest, was found guilty, and was sentenced accordingly. From his convietion and sentenee, [*P19] "A. Yes. Page 3 2003 Ohio 4331, *P19; 2003 Ohio App. LEXIS 3836, **6

[*P20] "Q. For example, one thing is you're to Accordingly, we agree wittt Beagle that the results of the deterinine wltether or not they have a glass eye, isn't that field sobriety tests should have been suppressed, and, correct? pursuant to State v. Honian, secpra, should not have been considered in determining whcther there was probable [*P21 ] "A. Yes. cause for the arrest.

[*P22] "Q. OK, and you're to determine whether [*P341 Beagle's First Assignment of Error is they're over 60 years of age or over 50 pounds sustained. overweight. Those things would exclude them from having to take the balance test, compounded that iR together, the over the age and the over the weight would cause the balance test to be excluded, would they not? [*P35] Beagle's Second Assigtmtent of Error is as follows: [*P23] "A. Yes. [*P36] "THE TRIAL COURT' ERRBD BY [*P24] "Q. All right, and as a relation of the glass FAILING TO SUPPRESS ALL EVIDENCE [**8] eye. Those are things you're required to do, aren't they? OB'PA1NL'D BY THE POLICE WHEN THE MANIFEST WEIGHT OF EVIDENCL^' SHOWED [*P25] "A. Yes. THFRE WAS A LACK OF PROBABLE CAIJSE TO ARREST TIIE APPELLANT FOR R.C. 4511.19." [*P26] "Q_ All right, additionally aren't you required to deterniine whether they've had any injuries [*P37] In this assignment of error, Beagle contends that would affect their balance before you give them a that when the resnlts of the field sobriety tests are balance test? excluded froin consideration, Bitler lacked probable cause to arrest Beagle for DUI. In Part 11, above, we have [*P27] "A. Yes. agreed with Beagle that the field sobriety tests, not having been petd'ormed in strict accordance with the [*P28] "Q. OK, now, the prosecutor asked you if he NH'I'SA Manual, as required by State v. Homan, supra, told you about any iujuries or complaitted of any should be cxcluded from wnsideration in determining aihnents. Isn't it true that you did not inquire of any prior whether there was probable cause for Beagle's arrest. We sttrgeries or injuries that he's had to his ankle, back, knee, must now determine whether Bitler had probable cause leg, hips, anything that would affect [**7] his balance? for the arrest, independently of the results of the field You didn't inquire of that? sobriety tests. [*P29] "A. I didu't inquire that, no." [*P38] Although the issue is close, we conclude [*P30] Furthermore, Bitler did not ask Beagle abont that Bitler lacked probable cause for the arrest. The any vistial impairments that would have prevented hirn existence of probable cause for a DIII arrest is fact- from doing the horizontal gaze nystagmus test: sensitive, and depends upon the totality of the eircumstances. All material observations should be [*P31] "Q. I didn't ask you about glasses. I asked considered. In the case before us, Bitler's observations you about whether or not you asked him if he had a glass weighing in favor of a conclusion that Beagle was under eye or had any eye problems that would prevent him from the influence included: (1) Beagle's having [**91 crossed doing this HGN test? the right lane line by a tire's width, two times, a little after 1:00 in the morunig, coming "very close" to hitting a [*P32] "A. No, i did not." vehicle in the adjacent lane; (2) Beagle's having then driven to the extreme left side of his lane, but without [*P33] We conclude that the record supports crossing the lane line; (3) Beagle's having been slow in Beagle's contention that Bitler was reqrrired by the stopping, and having come "very close" to hitting a light NH'I'SA manual to inquire concerning any physical or post off the right side of the road while pulling over, but visual impaimtents that would have prevented Beagle successfully driving around the light post; (4) Beagle's from performing the tests, and that Bitler failed to do so. having had an odor of alcohol, which intensified when he 1'age 4 2003 Ohio 4331, *P38; 2003 Ohio App. LEXIS 3836, **9

and Bitter ent',ered Bitler's cruiser; and (5) Beagle's having or red eyes; (4) the fact that Beagle's clothes were neither admitted that he had had "three shots of Jack." The record soiled nor disorderly; (5) the fact that Beagle had no does not reflect what "three shots of Jack," may have difficulty producing his license when reqnested to do so; been. Nor does the record reflect the thne frame within (6) the fact that Beagle took no unusual actions, and wltich those three shots were constuned, although the made no unusual statements; and (7) the fact that Beagle strong odor of alcohol suggests a reasonable inference used no vulgar or abusive language. that the shots were an alcoholic beverage, and that at least one of the shots was recently consumed. Bitler's [*P40] When all these facts are considered in their observation of Beagle's driving, wbile consistent with an totality, we conclnde that Bitler had, at most, a reasonable inference that Beagle was under the influence of alcohol, suspicion that Beagle may have been tmder [**11] the witli Beagle that the is also susceptible of other inferences. Considering the inflnence of alcohol. We agree hour of night, Beagle may have been fired, and he may totality of these circtunstances, when the results of the [**10] have been less sensitive to the possiblo proximity field sobriety tests are excluded, do not rise to the level of of a vehicle to his right. And, although Beagle's having probable cause to believe that Beagle was under the come "very close" to hitting the light post on the side of influence of alcohol. the road when ptilling over upon being stopped niight be [*P41] Beagle's Second Assignment of Error is explained by his having been under the influence of sustained. alcolrol, he may also have been somewhat disconcerted and distracted upon being pulled over by a state highway IV patrol officer. [*P42] Both of Beagle's assignments of error [*P39] Against the evidence suggesting the having been sustained, the judgnient of the trial court is possibility that Beagle niight be under the influence of Reversed, and this cause is Remanded for further alcohol is sonic eoimtervailing evidence. This would proceedings. iuclude: (1) his having had no trouble in exiting his vehicle or walking back to Bitler; (2) the lack of any GRADY and YOUNG, JJ., concur. slurred or mumbled speech; (3) the lack of any bloodshot Page I

Lex i sNexK

LEXSEE 2000 01110 APP. LEXIS 1151

STATE OF OHIO, Plaintiff-Appellant v. DAVID D. SPILLERS, De(endant-Appellee

C.A. Case No. 1504

COURT OF APPEALS OF OAiO, SECOND APPELLATE DISTRICT, DARKE COUNTY

2000 Ohio App. LEXlS 1151

March 24, 2000, Rendered

PRIOR ftISTORY: [*1] T.C_ Case No. sufficient to justify a stop for the purpose of issuing a 99-TRC-002-3138. citation, the police officer lacked sufficient cause, even upon detectirtg a slight odor of an alcoholic beverage, to DISPOSITION: Affirmed. extend the scope andduration of the detention for the purpose of imposing field sobriety tests. Accordingly, the trial court properly suppressed evidence of the horizontal COUNSEL: JESSE J. GREEN, Assistant Prosecuting gaze nystagimts test performed on defendant-appellee Attomey, Greenville, Oluo, Attomey for David Spillers and [*2] the subsequently-performed Plaintiff-Appellant. breath alcohol test. "11te judgment of the trial court is Affzrined ERIC fI. BRAND, Greenville, Ohio, Attomey for Defendant-Appellee. I

JIJDGES: BROGAN and YOIJNG, JJ., concur: About 2:00 in the morning, one day in September, 1999, Ohio State IIighway Patrol Oflicer Bryan Foltz OPINION BY: FAIN saw a velricle being driven by defendant-appellee David Spillers. Foltz described his observation as follows: OPINION Q. Okay. And why don't you tell the Court what you FA1N, J. observed at that date and time at thatlocation.

Plaintiff-Appellant State of Ohio appeals fronr an A. I was traveling westbound on 47. Observed the order snppressing evidence in a prosecution for Driving defendant's vehicle traveling eastbound_ When I looked Under the Intluenoe. The State contends thai the trial in my rearview mirror, T observed that hc was close to ii-ie court improperly based its decision upon the minimal white line. His right tires were close to the white line. I nature of certain lane violations fomring the basis for the turned around and followed the defendant for roughly a traffic stop. Froni our review of the record, we conclude inile and observed him cross the white line three times that there is evidence in the record to support the trial and go over and drive on the yellow line. court's conclusion that the lane violations were "de minimis." Accordingly, although the violations were Q_ When you say "drive on the yellow line," he did Page 2 2000 Ohio App. LEXIS 1151, *2

not cross the yellow line? Based on the results of the breath alcohol test, Spillers was charged with Driving Under the Influence, A. No, sir. Failure '1'o Wear A Seat Belt, and "Marked Lanes." Spillers moved to suppress the evidence, contending Q. So he was weaving within his lane of traftic? a nong other things, that it was obtained as the result of an unlawful "stop and seizure." Foltz and Spillers both A. Yes, sir. testified at the suppression bearing. Spillers contradicted Q. You say you observed this for approxiinately a mile? Foltz's testimony, contending that he did not cross any lines. Spillers also contradicted Foltz's testimony A. Right. conceming what Spillers said to Foltz upou being stopped at his home. In fact, Spillers testified that Foltz, Q. I3ow far behind him were you`? after giving an account to other officers indicating that Spillers had manifested a desire to cause trouble, A. Four to five car lengths. acknowledged to Spillers that lie had lied to the other officers. Q. Okay. So what did you do? Following the suppression hearing, the trial court A. I then contintued to follow him, and he tunted into granted the motion to suppress. Its decision is jotunalized a driveway or his residence at [*3] the airport and in an entry, the entire text of which is as follows: stopped him. [sic]. I activated rny lights, and he jumped out of his car and yelled soinething to the effect "I am at The matter before the Court is Defendant's Motion to home. You can't do nothing" to where 1 then approached Suppress based upon lack of probable cause to detain and him. Smelled a odor of alcohol. Asked him how niuch he question Defendant. bad to drink. Based upon the scant testimony presented by the Q. What was his response? State and particularly [*5] based upon the failme of the State to quantify, in either terms of distance or time, tlte A. A conple of beers. alleged lane violations of the Defendant, based upon the Q. Okay. So what happened then? principles presented in State vs. Drogi, 96 Ohio App. 3d 466, 645 NE.2d 153 (Belmont), this Court finds the A. I tlten asked him to ride - or do some sobriety alleged lane violations to be de minimis. 'Cherefore, tests, and which he could only perform the HGN test, Defendant's Motion is granted and all test results are ordered suppressed. Based upon Spillers's performance on die IIGN test, and his refusal, or inability, to perfortn other field Froni this suppression order, the State appeals. sobriety tests, Foltz arrested Spillers and took him to the Versailles PoliceDepartment, where a breath alcohol test II was performed. The State's sole assignntent of error is as follows: On cross-examination, Foltz characterized the odor of alcohol, which he believed to be that of beer, to be THE TRIAL COURT ERRED IN RELYING ON "slight." Furthermore, he did not testify conceming any PRECEDENT WHICH HAS BEEN OVERRULED other indieia of impairment, such as slurred speech or AND BY IGNORING TESTIMONY BY TIIE bloodshot eyes. Also on cross-examination, Foltz ARRESTING OFFICER THA'1' TIBS STOP WAS acknowledged that after the lane violations that he BASED UPON HIS REASONABLE BELIEF THAT A initially observed, he continued to follow Spillers over TRAFFIC VIOLATION HAD OCCURRED NO several roads, over a route that included several stop MATTF_R HOW MINOR THE VIOLATION. signs, one railroad crossing, and at least one turn, and The State contends, and we agree, that State v. saw neither any further [*4] traffic violations nor Drogi, supra, upon which the trial conrt relied, is of anything remarkable about Spillers' driviug. limited precedential value in view of the Page 3 2000 Ohio App. LEXIS 1151, *5

subsequently-decided R'hren v. United States (1996), together with Foltz's detection of a "slight" odor of an 517 US. 806, 116 S. Ct. 1769, 135 L. F.d 2d 89, and alcoholic beverage, which he believed to have been beer, Dayton v. Erickson (1996), 76 Ohin St. 3d 3, 665 N.E.2d and Spillers' admission that he had consumed "a couple" 1091. As we understand the holdings in both of those of beers. [*6] cases, a police officer in a marked cruiser may stop a vehicle for any trallic violation no matter how slight, The issue [*8] is close. However, we conclude that for the purpose of issuing a citation for the violation. See, traffic violations of a de ntinimis nature are not sufficient, State v. Stephens, 1998 Ohio App. LEXIS 2235 (May 22, combined with a slight odor of an alcoholic beverage, and 1998), Mont. App. 16727, unreported. Ilowever, any an admission to having consumed "a couple" of beers, to intrusion upon a persort's liberty must be limited to the support a reasonable and articulable suspicion of Drivntg legitiniate purposes requiring it. See, State v. Chattan Under the Influence. Few of us drive any appreciable (1994), 11 Ohio St. 3d 59, 463 KE.2d 1237. distance without comtnitthtg traf6c violations that could properly be characterized as "de mininiis." By Although, in the case before us, Spillers contends themselves, then, trafFc violations of a de minimis nature that the alleged lane violations never occurred, the trial are not indicative of impaired driving. Otherwise, eotut appears to have fonnd that they did occur, but that virtually every rnotorist could reasonably be suspected of they were "de zninimis." Consequently, we conclude that impaired driving, since virtually every motorist, driving a Foltz properly stopped Spillers for the purpose of issning distance of several miles, will fail to signal a lane cltange; a citation for the lane violations. Flowever, that would not touch, or even slightly cross, a line niarking a lane; or necessarily give Foltz the right to subject Spillers to the exceed the speed limit slightly. Furthemzore, a slight odor further intrusion represented by the administration of of an alcoholic beverage, without more, is not indicative field sobriety tests. of inrpaired driving. The law prohibits driving under the influence of alcohol; it does not prohibit driving after the In determining whether police intrusion upon a mere consumption of an alcoholic beverage. State v. citizen's protected liberty interests is reasonable, both the Taylor (1981), 3 Ohio App_ 3d 197, at 198, 444 N.E.2d extent of the intnvcion and the basis for suspicion must be 481. considered_ In other words, the greater the intrusion, the greater the basis for snspicion must be. City 1*71 of The closer qucstion, of course, is whether the Xenia v. Beatty, 1994 Ohio App. LEXIS 1544 (April 13, conjunction [*9] of these facts - nontinal traffic 1994); Greene App. No. 93-CA-28, unreported, citing violations combined with a slight odor of alcohol - is Terry [v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. sufficient to create a reasonable articnlable snspicion of Ed. 2d 889]. Driving iJnder the Influence. Because, in our experience, virtually the entire motoring public commits noniinal Thus, an analysis of an investigatory stop leading to traffic violations regularly, we conclude that even the an arrest reqtrires careful attention to each stage of the conjunction of these facts is insufficient to create a deteution in order to make sare that the extent of the reasonable articulable suspicion of Driving Uuder the intavsion represented by each stage is warranted by the Intluencx;. A slight odor of an alcoholic beverage is officer's reasonable and articulable suspicion at that insufficient, by itself, to trigger a reasonable suspicion of point. DUI, and nominal traffic violations, being conunon to virtually every driver, add nothing of significance. State v. Smethurst, 1995 Ohio App. LEXIS 900, *8-9 Accordingly, we conelude that the trial court did not ea (Mar. 8, 1995), Clark App. No. 94-CA-24, unreported. in finding that the deten6on of Spillers for the purpose of administering a field sobriety test was unlawful. Thus, the question we must decide is whethe Foltz had a reasonable and articulable suspicion of a DUI The State's sole assignment of enor is overrnled. violat'tou, justifying the administration of field sobriety tests. The facts known to Foltz at that time included three lll or f'our marked lane violations, which the trial court found to have been "de minimis," followed by a The State's sole assignment of error having been significant interval in which Spillers drove home with overruled, the judgment of the trial court is Affzrmed. neither any traffic violations, nor any remarkable driving, Page 4 2000 Ohio App.LBXIS 1151, *9

BROGAN and YOUNG, JJ., concur.