Opinion
Case No. 17-CA-31
01-08-2018
STATE OF OHIO Plaintiff-Appellee v. THOMAS PIZZUTO Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee BRIAN M. ZETS DAVID C. MOSER Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio 43215 For Defendant-Appellant JESSICA G. D'VARGA JON J. SAIA 713 South Front Street Columbus, Ohio 43206
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 16-TRC-11223 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee BRIAN M. ZETS
DAVID C. MOSER
Isaac Wiles Burkholder & Teetor, LLC
Two Miranova Place, Suite 700
Columbus, Ohio 43215 For Defendant-Appellant JESSICA G. D'VARGA
JON J. SAIA
713 South Front Street
Columbus, Ohio 43206 Hoffman, J.
{¶1} Defendant-appellant Thomas Pizzuto appeals the judgment entered by the Licking County Municipal Court convicting him of operating a vehicle with a prohibited alcohol concentration in his breath (R.C. 4511.19(A)(1)(d)). Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} During the late night and early morning hours of November 5 and 6, 2016, Trooper Justin Hurlbert of the Ohio State Highway Patrol was on routine patrol in Pataskala, Ohio. As he approached the intersection of Main Street and Taylor Road, he saw a car operated by Appellant travel southbound on Taylor and make a left turn eastbound onto Main Street on a red light.
{¶3} Appellant turned into the parking lot of a Circle K gas station. Trp. Hurlbert followed Appellant into the parking lot. Upon making contact with Appellant, Trp. Hurlbert noticed Appellant had difficulty grasping his license, and fumbled with his other documents. He detected a strong odor of alcohol about Appellant and observed Appellant's eyes were bloodshot and glassy. The trooper also found Appellant's responses to questions were "a little off."
{¶4} As a result of his interaction with Appellant, the trooper asked him to move to the front passenger seat of the police cruiser. Once inside the cruiser, the trooper determined the odor of alcohol came from Appellant's breath, and Appellant admitted drinking two beers before the Ohio State game earlier in the evening. The trooper administered the horizontal gaze nystagmus test and observed six out of six clues. Appellant missed touching his fingertips on the finger dexterity test, but correctly recited the alphabet from D to N, and was able to count backwards from 52 to 38.
{¶5} Trp. Hurlbert asked Appellant to exit the cruiser, where he administered the one-legged stand test. Hurlbert observed all four possible clues of impairment on this test. He then asked Appellant to perform the walk-and-turn test, on which he observed five out of eight possible clues of impairment.
{¶6} Appellant was transported to the Reynoldsburg Police Department where the Ohio State Highway Patrol maintains a DataMaster breath alcohol testing machine. Appellant agreed to the breath test; however, in order to get a ticket to print which the trooper could then fill out with the results of the test, he marked the "refused" box on the ticket. He explained to Appellant why he had to mark "refused" even though Appellant consented to the test. The ticket included printed charges of operating a vehicle while impaired in violation of R.C. 4511.19(A)(1)(a) and a traffic light violation in R.C. 4511.13.
{¶7} Appellant's result on the breath alcohol test was .131g/210 liters of breath, which was over the legal limit of .080. Trp. Hurlbert handwrote the result of .131 on the ticket, as well as a charged violation of R.C. 4511.19(A)(1)(d), and handed the ticket to Appellant.
{¶8} On November 7, 2016, the State filed the ticket with the Licking County Municipal Court. The ticket as filed was entirely computer generated and did not include the Trooper's handwritten notations; however, the only change to the content of the ticket was the "refused" box was no longer checked.
{¶9} Appellant filed a motion to suppress the results of the BAC test, arguing in pertinent part there was no reasonable probability of criminal activity to justify the stop, and the DataMaster machine was not maintained and calibrated in substantial compliance with Ohio Department of Health regulations. The suppression motion was overruled and the case proceeded to jury trial.
{¶10} At trial, Trp. Hurlbert was the only witness who testified. Appellant moved to dismiss the charges for want of jurisdiction because the Trooper did not serve the complaint filed with the court on Appellant as required by Traf. R. 3(E). The court overruled the motion. The State dismissed the charges of driving while impaired in violation of R.C. 4511.19(A)(1)(a) and violating a traffic signal in violation of R.C. 4511.13. Appellant was found guilty by the jury and convicted of the violation of R.C. 4511.19(A)(1)(d). He was sentenced to 30 days incarceration with 27 days suspended. He was placed under the supervision of the Licking County Municipal Court Probation Department, and would receive credit for the remaining three days of jail time upon successful completion of the Driver Intervention Program. He was fined $575.00 and his driver's license was suspended for one year effective November 6, 2016. Appellant prosecutes his appeal from this April 13, 2017 judgment of the court, assigning as error:
"I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE.
II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS BASED ON LACK OF PERSONAL JURISDICTION.
III. THE TRIAL COURT ERRED IN PERMITTING TESTIMONY REGARDING THE RESULT OF APPELLANT'S BREATH TEST WITHOUT PROPER FOUNDATION BEING LAID FOR ADMISSION OF THE RESULT.
I.
{¶11} Appellant argues the trial court erred in overruling his motion to suppress. We disagree.
{¶12} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (1991); State v. Guysinger , 86 Ohio App.3d 592, 621 N.E.2d 726 (1993). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993), overruled on other grounds. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993); Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), "... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶13} An investigatory stop must be based upon reasonable suspicion of criminal activity, supported by specific articulable facts pointing towards a citizen's involvement in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶14} Appellant first argues the trial court erred in finding the stop was justified by a reasonable suspicion of criminal activity because the video evidence demonstrates the traffic light was not red when Appellant entered the intersection. The trial court made the following finding from the video of Appellant's alleged red light violation:
The Court had the opportunity to view the video recording both during the hearing and later in chambers. The video is from Hurlbert's cruiser which is facing eastward on Main Street. The defendant's vehicle becomes visible as it approaches the intersection from the left, heading southbound. The defendant's argument is that the light governing Main Street traffic is red as he enters the intersection, meaning that the light governing Taylor Road traffic is still green. A careful examination of the video reveals that the light governing northbound Taylor Road traffic is visible. That light clearly turns red before the defendant enters the intersection. The Court infers by circumstantial evidence that the lights governing each direction of travel on the same road at the same intersection are synchronous. As a result, the Court concludes that the trooper did observe a traffic violation and the initial stop was lawful.
Judgment, April 12, 2017.
{¶15} Although upon our review of the video we could not observe the light governing northbound Taylor Road, we also find the video does not affirmatively demonstrate Appellant entered the intersection before the light turned red. While Appellant is correct the video demonstrates he is in the intersection before the light facing the officer turned green, he had not yet begun his left turn when the light turned green. It can be inferred his light was yellow or red when he entered the intersection. From the video and the officer's testimony, the trial court could find when Appellant entered the intersection, the light facing him had turned red. The evidence need not demonstrate proof beyond a reasonable doubt Appellant ran a red light in order for the officer to stop Appellant's vehicle, it need only demonstrate a reasonable suspicion Appellant ran the red light. The video coupled with the officer's testimony supports the officer's reasonable suspicion Appellant entered the intersection when the light was red.
{¶16} Appellant next argues the trial court erred in overruling his motion to suppress because the testimony of the Senior Operator calibrating the breath testing instrument testified she failed to perform the instrument check in accordance with Ohio Administrative Code §3701-53-04.
{¶17} Ohio Administrative Code §3701-53-04 provides:
A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 no less frequently than once every seven days
in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.
{¶18} The checklist used by the Senior Operator, Sgt. Carolyn Zeisler, was admitted into evidence without objection, and Appellant assigns no error to the checklist itself. However, he argues Sgt. Zeisler's testimony at the suppression hearing demonstrates she did not conduct the calibration in accordance with the checklist. Exhibit 2h reflects Sgt. Zeisler checked the box for the fourth item on the checklist, "With the simulator at 34 degrees + .2 degrees Celsius." However, she testified as follows regarding the checklist:
Q: Okay. So, no we're - I'm kind of backtracking just a little bit, but you have the solution, you've poured it into the simulator, and then what do you have to do with it? You plug it in and turn it on or you turn it on?
A Yeah.
Q: What's happening to it?
A: It's warming up.
Q: Okay. And how do you know when it's ready?
A: There's a temperature gage (sic) and you warm it up to plus or minus two degrees. You warm it up to 34 degrees, plus or minus two.
Q: Okay.
A: Two degrees.
{¶19} Although Sgt. Zeisler testified "two degrees" rather than ".2 degrees," because the written checklist reflected the proper numerical value, the trial court could conclude her testimony was a mere misstatement or "shorthand" for the proper value, and she did in fact conduct the calibration in accordance with the checklist she filled out at the time.
{¶20} The first assignment of error is overruled.
II.
{¶21} In his second assignment of error, Appellant argues the court erred in denying his motion to dismiss the complaint for lack of personal jurisdiction. He argues because he was not served with a copy of the amended ticket filed as the complaint in the instant case, the trial court did not obtain personal jurisdiction over him.
{¶22} When a defendant appears in the trial court and enters a plea of not guilty to charges, he waives any objection to the court's exercise of personal jurisdiction over him. State v. Savage, 60 Ohio App. 2d 394, 397 N.E.2d 1205 (1977); Cleveland v. Fitos, 8th Dist. Cuyahoga No. 81404, 2003-Ohio-33, ¶11; State v. Jones, 76 Ohio App. 3d 604, 602 N.E.2d 751 (1991); State v. Anderson, 5th Dist. Ashland No. 2005-COA-022, 2006-Ohio-510, ¶17. It is undisputed Appellant raised the issue of failure of service of the ticket as filed in the instant case for the first time after the State presented its case-in-chief at trial, and well after the entry of his plea. Therefore, we find Appellant has waived any objection to the court's exercise of personal jurisdiction over him.
{¶23} Appellant relies on our opinion in State v. McKenna, 5th Dist. Licking No. 96CA00085, 1997 WL 219071 (April 14, 1997), in which we found the trial court erred in failing to dismiss a traffic case where the officer amended the ticket as served on the defendant to change the date of the offense, and failed to serve the amended ticket as required by Traf. R. 3(C) and 3(E). However, in McKenna the issue of improper service was raised by a motion to dismiss a few days after the complaint was filed. Although not expressly addressed in McKenna, the immediacy of the motion to dismiss suggests the issue was raised prior to entry of a plea, and prior to the time at which jeopardy attached.
{¶24} Traf. R. 11(B) requires defenses and objections based on defects in the institution of the prosecution to be raised prior to entry of a plea. Pursuant to this rule, a defendant waives any objection to the trial court's exercise of personal jurisdiction over him by failing to assert such objection at the time the defendant appears in the trial court and enters a not guilty plea. State v. Johnson, 10th Dist. Franklin No. 16AP-134, 2016-Ohio-5904, ¶ 13, citing Columbus v. Ford, 10th Dist. Franklin No. 04AP-260, 2004-Ohio-5715, ¶7.
{¶25} We find the trial court acquired personal jurisdiction over Appellant at the time he entered his not guilty plea on November 9, 2016. Appellant did not raise the issue of lack of service of the amended ticket until after the State presented its entire case at trial, and has waived any objection.
{¶26} The second assignment of error is overruled.
III.
{¶27} In his third assignment of error, Appellant argues the court erred in admitting the breath test result at trial. He argues the State did not lay a proper foundation at trial for admission of the test result.
{¶28} In State v. French, 72 Ohio St. 3d 446, 650 N.E.2d 887 (1995), syllabus 1, the Ohio Supreme Court held a criminal defendant charged with operating a motor vehicle while intoxicated who does not challenge the admissibility of the chemical test results through a pretrial motion to suppress waives the requirement on the state to lay a foundation for the admissibility of the test results at trial. Appellant argues the converse should be true: when a defendant challenges the admission of the chemical test via a pre-trial motion to suppress, whether or not he prevails on his motion, the State should be required to lay a proper foundation for the admission of the chemical test at trial.
{¶29} The court's decision in French belies Appellant's interpretation of the holding. "[A] ruling on a motion to suppress challenging the admissibility of a BAC test is not a preliminary ruling on an evidentiary matter." Id. at 451, 650 N.E.2d 887. "An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial." Id. at 449, 650 N.E.2d 887. See also State v. Wang, 5th Dist. Delaware No. 2007CAC090048, 2008-Ohio-2144, ¶ 11 (an accused must file a motion to suppress in order to contest the admissibility of test results on foundational grounds related to compliance with ODH regulations; failure to do so, or alternatively, failure to succeed on the merits will result in admission of the results without the requirement that the state lay a foundation on these issues).
{¶30} The issue of the admissibility was resolved in the suppression hearing in the State's favor. As a result of the ruling, the result of the BAC test was admissible at trial without the necessity of the State laying a foundation related to compliance with ODH regulations.
{¶31} The third assignment of error is overruled.
{¶32} The judgment of the Licking County Municipal Court is affirmed. By: Hoffman, J. Delaney, P.J. and Wise, Earle, J. concur