[Cite as State v. Marcum,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 18-CAC- 11 0083 JOHN F. MARCUM : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware Municipal Court, Case No. 18TRC08128

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 7, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA SCHIFFEL WILLIAM CRAMER Delaware City Prosecutor 470 Olde Worthington Road, Suite 200 70 Union Street Westerville, OH 43082 Delaware, OH 43015 [Cite as State v. Marcum,

.]

Gwin, P.J.

{¶1} Appellant John F. Marcum (“Marcum”) appeals the July 10, 2018 Judgment

of the Delaware Municipal Court overruling his motion to suppress evidence. Plaintiff-

appellee is the State of Ohio.

Facts and Procedural History

{¶2} Trooper Ryan May has been a trooper with the Ohio State Highway patrol

for approximately 6 years. He was first trained in the apprehension and detection of

impaired drivers at the patrol's academy. Specifically, while at the academy in 2012 he

learned how to conduct field-sobriety tests in accordance with the standards promulgated

by the National Highway Traffic Safety Administration (NHTSA) in NHTSA's DWI

Detection and Standardized Field Sobriety Testing manual. Trooper May has updated

his training to include training in the apprehension and detection of drivers impaired by

drugs of abuse alone and in combination with alcohol—the training is known as ARIDE.

Trooper May currently is certified to administer standardized filed sobriety tests.

{¶3} On February 13, 2018, at approximately 9:03 p.m. Trooper May was on

routine patrol on Interstate 71. While on I-71 Trooper May noticed a pick-up truck travel

over the lane markings on the highway several times. Marcum was driving the truck.

{¶4} Based on these observations, Trooper May activated the overhead flashing

light on his cruiser to stop the pick-up. Trooper May noted that the pick-up took longer

than usual to come to a complete stop on State Route 36/37.

{¶5} Upon initial approach, Trooper May observed Marcum's eyes to be very

glassy and blood shot. Marcum also had slow speech and could not easily locate his

vehicle information. Trooper May observed Marcum took a long time in locating his Delaware County, Case No. 18-CAC- 11 0083 3

information and fumbled with paperwork on the passenger seat. Trooper May also had

to instruct Marcum several times to keep his hands on the steering wheel. Trooper May

did not notice any alcohol or drug odors in his encounter with Marcum.

{¶6} Trooper May asked Marcum to step out of his truck and asked Marcum if

he would be willing to participate in some field-sobriety tests.

{¶7} Trooper May administered the horizontal gaze nystagmus (HGN) test to

Marcum. When checking Marcum’s eyes, Trooper May notice a lack of smooth pursuit in

both eyes. Also, Trooper May noted nystagmus in both of Marcum’s eyes at maximum

deviation. When the trooper looked for onset of nystagmus prior to 45 degrees, however,

he did not observe any clues. Trooper May observed four of six possible clues. In

addition, Trooper May had to re-instruct Marcum to follow his stimulus during this test.

{¶8} Trooper May then administered the vertical gaze nystagmus test (VGN). He

observed no clues during this test.

{¶9} Trooper May next explained and demonstrated the walk-and-turn test

(WAT) to Marcum. Trooper May noted the following clues: defendant moved his feet for

balance during the instruction phase; did not touch heel-to-toe; stopped while walking;

stepped off the line; took an incorrect number of steps, and improperly turned. Trooper

May observed a total of seven clues during the WAT test.

{¶10} Trooper May then administered the one-leg stand test (OLS). Marcum told

Trooper May that his legs were shaking. He further told the officer that he had a bad

knee. During the test Trooper May noted three clues: Marcum swayed; raised his arms

for balance; and, put his foot down during the test. Delaware County, Case No. 18-CAC- 11 0083 4

{¶11} Trooper May asked Marcum to recite the alphabet form the letter "D" to the

letter "O.” Marcum recited the alphabet as instructed.

{¶12} After Marcum had completed all of the tests, Trooper May placed Marcum

under arrest for committing an OVI offense. Specifically, Trooper May believed Marcum

to be operating a vehicle while impaired by drugs.

{¶13} Marcum's urine sample was sent to the state crime lab and tested positive

for Carboxy-THC, a marijuana metabolite, at a rate of 131.46 nomograms per milliliter.

As a result, Marcum was separately charged with a per se OVI offense. [Case No.

18TRC08128].

{¶14} Marcum filed a motion to suppress, challenging the traffic stop, reasonable

suspicion of OVI to support the field sobriety tests, probable cause to arrest for OVI, and

the urine collection and testing procedures. At the suppression hearing, Marcum

withdrew the challenge to the traffic stop. After the suppression hearing, the trial court

issued a written entry denying the motion.

{¶15} The state dismissed the impaired OVI [Case No. 18TRCO2023] and

Marcum pled no contest to the per se Offense [Case No. 18TRC081281. Marcum was

sentenced to twenty days in jail, two years of community control, a fine of $600 plus costs,

a three-year driver's license suspension, and alcohol/drug assessment and treatment.

Assignments of Error

{¶16} Marcum raises two Assignments of Errors,

{¶17} “I. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS WAS VIOLATED

WHEN COUNSEL WITHDREW THE CHALLENGE TO THE TRAFFIC STOP. Delaware County, Case No. 18-CAC- 11 0083 5

{¶18} “II. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES WERE VIOLATED

WHEN APPELLANT WAS SUBJECTED TO FIELD SOBRIETY TESTS WITHOUT A

REASONABLE SUSPICION THAT HE WAS UNDER THE INFLUENCE.”

I.

{¶19} In his First Assignment of Error, Marcum argues that his trial attorney was

ineffective because he withdrew Marcum’s challenge to the traffic stop. [Appellant’s Brief

at 4].

STANDARD OF APPELLATE REVIEW.

{¶20} To obtain a reversal of a conviction based on ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington,

, 687–688,

,

(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other.

,

,

; State v. Madrigal,

,

,

(2000).

{¶21} In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel’s assistance was reasonable

considering all the circumstances.” Strickland v. Washington,

,

. At all points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington,

,

. Delaware County, Case No. 18-CAC- 11 0083 6

{¶22} The United States Supreme Court discussed the prejudice prong of the

Strickland test,

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”

,

. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

,

. Counsel’s errors must be “so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”

,

.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ––––, ––––,

,

(2010). An ineffective-assistance claim can function as a way to escape

rules of waiver and forfeiture and raise issues not presented at trial, and so

the Strickland standard must be applied with scrupulous care, lest “intrusive

post-trial inquiry” threaten the integrity of the very adversary process the

right to counsel is meant to serve. Strickland, 466 U.S., at 689–690,

. Even under de novo review, the standard for judging counsel’s

representation is a most deferential one. Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing counsel, and with the

judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.”

,

; see also Bell Delaware County, Case No. 18-CAC- 11 0083 7

v. Cone,

,

,

(2002);

Lockhart v. Fretwell,

,

,

(1993). The question is whether an attorney’s representation amounted to

incompetence under “prevailing professional norms,” not whether it

deviated from best practices or most common custom. Strickland,

,

.

Harrington v. Richter,

,

,

(2011).

Failure to File a Motion to Suppress.

{¶23} We find that Marcum’s argument that his counsel withdrew the challenge to

the traffic stop is analogous to a situation where counsel fails to file a motion to suppress.

{¶24} Trial counsel’s failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal,

, 2000–Ohio–

0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098,

.

Counsel can only be found ineffective for failing to file a motion to suppress if, based on

the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA

130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–

3009, at ¶ 86. The defendant must further show that there is a reasonable probability that

the outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison,

,

,

(1986); see, also, State v. Santana,

,

(2001), citing State v. Lott,

,

(1990). Delaware County, Case No. 18-CAC- 11 0083 8

ISSUE FOR APPEAL.

A. Whether there is a reasonable probability a motion to suppress the traffic

stop would have been granted.

1. Whether the Trooper had a reasonable and articulable suspicion to initiate a

traffic stop of Marcum’s vehicle.

{¶25} 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 * * *.” The Fourth Amendment is enforced against

the States by virtue of the due process clause of the Fourteenth Amendment of the United

States Constitution. Mapp v. Ohio,

,

,

(1961). The stop of a vehicle and the detention of its occupants by law enforcement, for

whatever purpose and however brief the detention may be, constitutes a seizure for

Fourth Amendment purposes. Delaware v. Prouse,

,

,

(1979), citing United States v. Martinez-Fuerte,

,

,

(1976).

{¶26} The Supreme Court of Ohio has observed, “‘[a]uthorities seem to be split as

to whether a traffic stop is reasonable when supported merely by reasonable suspicion,

or whether the heightened standard of probable cause must underlie the stop.’” City of

Bowling Green v. Godwin,

,

,

,

quoting Gaddis ex rel. Gaddis v. Redford Twp.,

(E.D.Mich. 2002).

There are actually two types of “traffic” stops, and each has a different constitutional

standard applicable to it. In State v. Moller, the Court of Appeals observed, Delaware County, Case No. 18-CAC- 11 0083 9

First is the typical non-investigatory traffic stop, wherein the police

officer witnesses a violation of the traffic code, such as crossing over the

centerline of a road, and then stops the motorist for this traffic violation.

Second is the investigative or “Terry” stop, wherein the officer does not

necessarily witness a specific traffic violation, but the officer does have

sufficient reason to believe that a criminal act has taken place or is

occurring, and the officer seeks to confirm or refute this suspicion of criminal

activity. See Terry v. Ohio (1968),

,

, 1879-

1880 [

]. A non-investigatory traffic stop must be supported

by probable cause, which arises when the stopping officer witnesses the

traffic violation. See Whren v. United States (1996),

,

[

]; Pennsylvania v. Mimms (1977),

,

[

]. By contrast, an

investigatory Terry stop is proper so long as the stopping officer has

“reasonable articulable suspicion” of criminal activity. Terry,

,

.

12th Dist. Butler No. CA99-07-128,

(Oct. 23, 2000); Accord, State v.

Baughman,

,

,

(12th Dist.), ¶ 14;

State v. Nwachukwa, 3rd Dist. Marion No. 9-15-03,

; ¶ 26; State v.

Woods, 5th Dist. Licking No. 18-CA-13,

,

.

{¶27} The cause for a non-investigatory traffic stop has been succinctly stated by

the Supreme Court of Ohio: “Where a police officer stops a vehicle based upon probable

cause that a traffic violation has occurred or was occurring, the stop is not unreasonable Delaware County, Case No. 18-CAC- 11 0083 10

under the Fourth Amendment to the United States Constitution[.]” Dayton v. Erickson,

,

(1996). Probable cause is defined in terms of “facts

or circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had

committed or was committing an offense.’” Gerstein v. Pugh,

,

,

(1975), quoting Beck v. Ohio,

,

,

(1964).

{¶28} In State v. Mays,

,

,

,

the defendant argued that his actions in the case – twice driving across the white edge

line – were not enough to constitute a violation of the driving within marked lanes statute,

R.C. 4511.33. Id. at ¶ 15. The appellant further argued that the stop was unjustified

because there was no reason to suspect that he had failed to first ascertain that leaving

the lane could be done safely or that he had not stayed within his lane “as nearly as [was]

practicable,” within the meaning of R.C. 4511.33(A)(1). In rejecting these arguments, the

Supreme Court noted, “the question of whether appellant might have a possible defense

to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has

a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required

to determine whether someone who has been observed committing a crime might have

a legal defense to the charge.” Id. at ¶ 17. The Supreme Court concluded that a law-

enforcement officer who witnesses a motorist drift over lane markings in violation of a

statute that requires a driver to drive a vehicle entirely within a single lane of traffic has

reasonable and articulable suspicion sufficient to warrant a traffic stop, even without

further evidence of erratic or unsafe driving. Id. at syllabus. In Mays, the Ohio Supreme

Court made the following observation as it pertains to Ohio law, Delaware County, Case No. 18-CAC- 11 0083 11

Appellant’s reliance on [Dayton v.] Erickson [

,

(1996)], and on Whren v. United States (1996),

,

,

, is misplaced. Probable cause is certainly

a complete justification for a traffic stop, but we have not held that probable

cause is required. Probable cause is a stricter standard than reasonable

and articulable suspicion. State v. Evans (1993),

,

. The former subsumes the latter. Just as a fact proven

beyond a reasonable doubt has by necessity been proven by a

preponderance, an officer who has probable cause necessarily has a

reasonable and articulable suspicion, which is all the officer needs to justify

a stop. Erickson and Whren do not hold otherwise.

,

,

(emphasis added). The

Ohio Supreme Court concluded,

Therefore, if an officer’s decision to stop a motorist for a criminal

violation, including a traffic violation, is prompted by a reasonable and

articulable suspicion considering all the circumstances, then the stop is

constitutionally valid.

(emphasis added).

{¶29} In the case at bar, Trooper May witnessed “a couple” of marked lanes

violations. Thus, the trooper had reasonable and articulable suspicion sufficient to stop

Marcum’s vehicle. Delaware County, Case No. 18-CAC- 11 0083 12

{¶30} As there is not a reasonable probability that a motion to suppress the traffic

stop would have been granted, trial counsel was not ineffective in withdrawing Marcum’s

challenge to the traffic stop.

{¶31} Marcum’s First Assignment of Error is overruled.

II.

{¶32} In his Second Assignment of Error Marcum contends that that in overruling

his motion to suppress the trial court erroneously concluded that Trooper Mays had a

reasonable, articulable suspicion that he was driving under the influence of alcohol to

justify prolonging the traffic stop to conduct field sobriety testing. [Appellant’s Brief at 6.]

STANDARD OF APPELLATE REVIEW.

{¶33} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside,

,

,

. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap,

,

,

;

State v. Fanning,

,

(1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See

Dunlap, supra; State v. Long,

,

(4th Dist. 1998); State v. Medcalf,

,

(4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See

citing State v. McNamara,

,

(4th Dist. 1997); See, generally, United States v. Arvizu, 534 Delaware County, Case No. 18-CAC- 11 0083

,

,

(2002); Ornelas v. United States,

,

,

(1996). That is, the application of the law to the trial

court's findings of fact is subject to a de novo standard of review

Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.”

, 116 S.Ct. at 1663.

ISSUE FOR APPEAL.

A. Whether the lawful detention for the traffic infraction became an unlawful

detention when the officer decided to conduct field sobriety tests. (FST’s).

{¶34} A request made of a validly detained motorist to perform field sobriety tests

is generally outside the scope of the original stop, and must be separately justified by

other specific and articulable facts showing a reasonable basis for the request. State v.

Albaugh, 5th Dist. Tuscarawas No. 2014 AP 11 0049,

,

, ¶18, quoting State v. Anez,

, 26–27,

(2000). Although 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 (or

another drug) in order to conduct a field sobriety test. See State v. Bright, 5th Dist.

Guernsey No. 2009–CA–28,

, ¶ 17, citing State v. Knox, 2nd Dist. Greene

No. 2005–CA–74,

. Under a “totality of the circumstances” approach, we

look at the entirety of the events leading to the officer’s decision to conduct field sobriety

tests. See, e.g., State v. Locker, 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-

4953, ¶ 36, citing State v. Freeman,

,

(1980). Delaware County, Case No. 18-CAC- 11 0083 14

{¶35} “Reasonable suspicion is “* * * something more than an inchoate or un-

particularized suspicion or hunch, but less than the level of suspicion required for

probable cause.” State v. Shepherd,

,

(2nd

Dist. 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.” State v. Farey, 5th Dist. Stark

No. 2017CA00137,

, citing Village of Kirtland Hills v. Strogin, 6th

Dist. Lake App. No.2005–L–073,

(internal citation omitted).

{¶36} In analyzing similar cases, we have accepted the template set forth by the

Supreme Court of Ohio in State v. Batchili,

, 2007–Ohio–2204,

, paragraph two of the syllabus: “The ‘reasonable and articulable’ standard

applied to a prolonged traffic stop encompasses the totality of the circumstances, and a

court may not evaluate in isolation each articulated reason for the stop.” The intrusion on

the drivers’ liberty resulting from a field sobriety test is minor, and the officer therefore

need only have reasonable suspicion the driver is under the influence of alcohol in order

to conduct a field sobriety test. State v. Knox, 2nd Dist. Greene App. No. 2005–CA–74,

2006–Ohio–3039. See also, State v. Bright, 5th Dist. Guernsey App. No. 2009–CA–28,

2010–Ohio–1111.

{¶37} Marcum cites State v. Newson, 11th Dist. Ashtabula No. 2012-A-0019,

and State v. Gustin,

,

(12th Dist.

1993). Marcum argues that Marcum did not admit drinking, was not involved in an

accident, had no odor of alcohol and drugs, and only committed a marked lanes violation. Delaware County, Case No. 18-CAC- 11 0083 15

He contends therefore that the officer lacked a reasonable and articulable suspicion

sufficient to support the request for FST’s.

{¶38} Marcum’s reading of both cases is superficial. In Newsome, the trial court

sustained Newsome’s motion to suppress. The state appealed. On appeal, the court

noted,

The officers specifically testified that appellee showed no signs of

intoxication. Appellee’s eyes were not red; he did not slur his words; he had

no odor of alcohol; and he was highly cooperative with the investigating

officers.

, ¶17. The court further noted,

In this case, appellee’s admission to consuming one large beer was

the only factor upon which Officer Defina relied to conduct field sobriety

tests. Because it is not illegal to consume alcohol and drive in this state,

appellee’s admission, standing alone, is insufficient to establish reasonable

suspicion of intoxication. Alcohol ingestion is not tantamount to alcohol

impairment.

{¶39}

, ¶ 21 (citations omitted).

{¶40} In Gustin, also cited by Marcum, Gustin had been involved in an accident.

At the time of the accident, the road was wet and fog had reduced visibility.

,

. “Gustin was bleeding from a cut on his forehead suffered

when he was thrown against his vehicle’s windshield. Gustin’s eyes were neither

bloodshot nor glassy, his speech was not slurred, and there was no odor of alcohol about

him, although he strongly smelled of cologne. Ward administered a horizontal gaze Delaware County, Case No. 18-CAC- 11 0083 16

nystagmus (“HGN”) test to Gustin, the result of which, according to Ward, indicated that

Gustin was under the influence of alcohol. After having Gustin perform additional field

sobriety tests, Ward arrested Gustin for driving while under the influence of alcohol.

Although Gustin admitted to consuming one beer, it is unclear whether he made this

statement to Ward before or after Ward subjected Gustin to the HGN test and other field

sobriety tests.”

,

. As was true in Newsome on

appeal the court noted,

The only substantive factor to support a reasonable suspicion that

Gustin was under the influence of alcohol was his statement that he had

consumed one beer. As previously noted, however, it is unclear whether

Gustin made this statement before or after Ward administered the HGN test.

Since Ward testified that his initial action was to administer the HGN test, it

is reasonable to assume that the court determined that Gustin’s statement

was made following the test.

- 861,

.

{¶41} In the case at bar, Trooper May said that he observed Marcum make a

“couple lane violations.” T. at 16. He also stated Marcum was slow to stop on the side

of the road.

While at the window, Trooper May observed that Marcum’s eyes were

“very glassy and bloodshot” and that his speech was slow.

Additionally, Trooper May

observed that Marcum "took a long time to locate his vehicle information" and fumbled

with paperwork on his passenger seat. T. at 17. Marcum could not keep his hands on

the steering wheel.

Delaware County, Case No. 18-CAC- 11 0083 17

{¶42} Based upon the totality of the circumstances, we find Trooper May relied

upon specific, articulable facts giving rise to a reasonable suspicion Marcum was driving

under the influence, that an extension of the initial detention for the performance of field

sobriety testing was justified, and the ruling of the trial court was correct.

{¶43} Marcum’s Second Assignment of Error is overruled.

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

By Gwin, P.J.,

Wise, John, J, and

Delaney, J., concur