[Cite as State v. McGrath,
2021-Ohio-2605.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-21
:
v. : Trial Court Case Nos. 2019-CRB-001-
: 0409 and 2019-TRC-001-1357
MATTHEW WILLIAM MCGRATH :
: (Criminal Appeal from Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of July, 2021.
...........
JESSE J. GREEN, Atty. Reg. No. 0040265, Assistant Prosecuting Attorney, Darke
County Municipal Court, 504 South Broadway, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
REGINA R. RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana, Ohio 43078
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Appellant, Matthew William McGrath, was convicted of being in physical
control of a vehicle while under the influence of alcohol or drugs. McGrath asserts that
he was subjected to an unconstitutional stop and that the field sobriety testing which
followed was not supported by a reasonable, articulable suspicion that he was under the
influence of alcohol. McGrath additionally asserts that, when taking his no contest plea,
the trial court did not comply with the Traf.R. 10(B)(2) requirement that he be advised of
the effect of a no contest plea. We conclude that the stop was a constitutional
investigative stop and that the field sobriety testing was supported by a reasonable
articulable suspicion of alcohol impairment. But we also conclude that the trial court
completely failed to comply with the Traf.R. 10(B)(2) requirement that a defendant
entering a no contest plea must be advised of the effect of such a plea. The trial court’s
judgment will be reversed and remanded.
Facts and Procedural History
{¶ 2} On June 26, 2019, at approximately 8:45 p.m., Darke County Sheriff’s Deputy
Greg Armstrong observed a parked automobile in the 1200 block of Imler Drive, Wayne
Lakes, Ohio, while on routine patrol. Armstrong initiated a stop of the automobile by
activating the cruiser’s overhead lights. McGrath was seated in the parked automobile’s
driver’s seat; he exited the vehicle and approached Armstrong. The ensuing encounter
resulted in McGrath’s arrest for operating a vehicle while under the influence (OVI) under
R.C. 4511.191, a first-degree misdemeanor. However, Armstrong testified at a
subsequent suppression hearing that the OVI citation was a mistake, because it had been
his intent to issue McGrath a citation for having physical control of a vehicle while under
the influence (having physical control), in violation of R.C. 4511.194, also a first-degree
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misdemeanor.
{¶ 3} Trial counsel filed a motion to suppress, challenging the constitutionality of
the stop, the field sobriety testing, and whether there was probable cause to arrest
McGrath. Following a hearing, the trial court overruled the suppression motion, except
that the court suppressed the horizontal gaze nystagmus (HGN) test. Thereafter,
McGrath pleaded no contest to having physical control, and he was sentenced
accordingly. This appeal followed.
Assignments of Error
{¶ 4} McGrath presents two assignments of error:
The trial court erred by overruling Appellant’s motion to suppress
where law enforcement lacked reasonable [articulable] suspicion of criminal
activity to justify an investigatory stop and seizure and/or further intrusion to
perform [field sobriety tests].
McGrath claims that the trial court erred in accepting his no contest
plea, because the court failed to inform him of the effect of his no contest
plea, as required by Traf.R. 10(D) and as applicable under Traf.R. 10(B)(2)
and therefore it was not entered knowingly, intelligently or voluntarily.
Traffic Stop
{¶ 5} At the suppression hearing, during his direct examination, Armstrong testified
that he made the traffic stop because he observed McGrath’s vehicle “partially on the
roadway.” Armstrong also testified that on previous occasions at the same location, he
had “caught people [who were] unresponsive and overdosing on heroin.” During cross-
examination, Armstrong expanded upon the facts surrounding the stop as follows:
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Q. Specifically, the place where you located my client’s vehicle, is there
loose gravel in the area?
A. There’s loose gravel but it’s flat and smooth.
Q. Is it slanted or sloped.
A. The only place it’s sloped, Your Honor, is down where there used to be -
- or possibly still is like a boat launch but that is below where they were
sitting. Where they was sitting it was straight and - - it was a straight area.
Q. And how many lanes?
A. There’s two lanes, Your Honor, right there.
Q. Are they clearly marked?
A. There’s no markings for the lanes. The only thing that identifies the
markings would be the - - there’s grass and weeds on both sides.
Q. Would you agree that it’s essentially a back country road?
A. I would agree with that, Your Honor.
Q. And you testified that [the] CRV was about a foot onto the road?
A. Yes, Your Honor. It was approximately one foot into the roadway.
Q. Was it blocking the roadway?
A. It was not blocking the roadway, Your Honor.
Q. So it wasn’t prohibiting the flow of traffic in any way.
A. Other than if two people were to meet at that particular area, you would
have to - - one of them would have to stop.
Suppression Hearing Tr. p. 24-25. Additionally, a photograph was introduced (Exhibit B)
which depicted McGrath’s vehicle parked on the roadway, albeit slightly.
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{¶ 6} Appellate “review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8.
As the trier of fact, a trial court “is in the best position to weigh … evidence … and
evaluate [the credibility of] witness[es],” so an “appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.”
Id., citing State
v. Fanning,
1 Ohio St.3d 19,
437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont
No. CA2015-03-022,
2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No.
CA2013-10-008,
2014-Ohio-4280, ¶ 12. Accepting the trial court’s findings of fact as
true, “the appellate court must then independently determine, without deference to the
[trial court’s legal] conclusion[s],” whether the “facts satisfy the applicable … standard.”
Burnside at ¶ 8, citing Fanning and State v. McNamara,
124 Ohio App.3d 706,
707 N.E.2d
539 (3d Dist.1997).
{¶ 7} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8,
88 S.Ct. 1868,
20
L.Ed.2d 889 (1968); see also State v. Taylor,
138 Ohio App.3d 139, 145,
740 N.E.2d 704
(2d Dist.2000) (noting “the Fourth and Fourteenth Amendments to the United States
Constitution and Section 14, Article 1” of the Ohio Constitution “protect the same interests
in a consistent manner”). Warrantless searches and seizures violate this prohibition
unless conducted pursuant to one of the “few specifically established and well-delineated
exceptions.” (Citations omitted.) Katz v. United States,
389 U.S. 347, 357,
88 S.Ct.
507,
19 L.Ed.2d 576 (1967). One of these exceptions “is commonly known as an
investigative or Terry stop,” which includes the temporary detention of motorists for the
enforcement of traffic laws. State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-
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Ohio-2334, ¶ 17, citing Terry.
{¶ 8} The temporary “detention of [persons] during the stop of an automobile by
the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’
of ‘persons’ within the meaning” of the Fourth Amendment. (Citations omitted.) Whren
v. United States, 517 U.S. 806, 809-810,
116 S.Ct. 1769,
135 L.Ed.2d 89 (1996). An
“automobile stop is thus subject to the constitutional imperative that it not be
‘unreasonable’ under the circumstances.”
Id. at 810. Generally, a police officer’s
decision to stop an automobile will comport with this requirement if the officer has a
“reasonable suspicion” of criminal activity. United States v. Lopez-Soto,
205 F.3d 1101,
1104-1105 (9th Cir.2000); State v. Mays,
119 Ohio St.3d 406,
2008-Ohio-4539,
894
N.E.2d 1204, ¶ 23.
{¶ 9} Moreover, the constitutionality of a stop supported by a reasonable suspicion
that a traffic violation has been committed is not undermined by an officer’s ulterior
investigative motive for making the stop. Dayton v. Erickson, 76 Ohio St.3d 3,
665
N.E.2d 1091 (1996), syllabus.
{¶ 10} Turning to the pending case, R.C. 4511.66(A) states in pertinent part as
follows:
Upon any highway outside a business or residence district, no person shall
stop, park, or leave standing any vehicle, whether attended or unattended,
upon the paved or main traveled part of the highway if it is practicable to
stop, park, or so leave such vehicle off the paved or main traveled part of
said highway ….
Armstrong’s testimony, which the trial court implicitly found credible, and Exhibit B, a photo
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of McGrath’s vehicle on the roadway (which was referenced in the trial court’s decision),
lead to the conclusion that the traffic stop was supported by at least a reasonable
suspicion that McGrath’s vehicle was parked in violation of R.C. 4511.66(A).
Field Sobriety Testing
{¶ 11} At the suppression hearing, Armstrong testified that, when he activated the
cruiser’s overhead lights, McGrath exited his vehicle and began walking toward the
cruiser “pretty rapidly.” Armstrong observed that, as McGrath exited his vehicle, “he had
some trouble” performing this task, and as McGrath approached the cruiser, he seemed
to be having “some trouble” walking. Armstrong ordered McGrath to return to his car,
and McGrath complied with this request. Armstrong observed that, as McGrath returned
to his car, he continued to have “trouble” walking and had difficulty getting back into his
car. Armstrong testified that, overall, McGrath was “just very stumbly [and] staggering.”
{¶ 12} Armstrong ultimately approached McGrath’s vehicle and made contact
with him. Upon doing so, Armstrong noted an “odor of alcohol emanating from
[McGrath].” Armstrong further observed that McGrath’s eyes were “glassy” and
“bloodshot,” and, upon talking to McGrath, Armstrong noted that McGrath’s speech was
“slurred.” Armstrong observed an open container of beer near McGrath’s person, and,
when asked, McGrath admitted to consuming two beers. Based upon these
observations and this information, Armstrong requested that McGrath perform a series of
field sobriety tests, and McGrath complied. Upon completion of the tests, McGrath was
arrested.
{¶ 13} To justify the further detention associated with field sobriety testing, “the
officer must have a reasonable, articulable suspicion that [the detained] person is …
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under the influence[.]” State v. Turney, 2020-Ohio-4148,
157 N.E.3d 809, ¶ 14 (2d Dist.),
quoting State v. Brown, 2d Dist. Greene No. 2011-CA-52,
2012-Ohio-3099, ¶ 13. The
determination of the existence of reasonable suspicion is based upon the “totality of …
circumstances” as viewed “ ‘through the eyes of the reasonable and prudent police officer
on the scene …’ ”
Id., quoting State v. Gladman, 2d Dist. Clark No. 2013-CA-99, 2014-
Ohio-2554, ¶ 14, quoting State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-
1047, ¶ 14. In the context of alcohol impairment, “many observations can satisfy [the]
reasonable, articulable suspicion [requirement], including the odor of an alcoholic
beverage …, glassy bloodshot eyes, and slurred speech.” Id. at ¶ 15, quoting Brown
at ¶ 13.
{¶ 14} Armstrong’s observations, which included McGrath’s trouble ambulating,
his difficulty exiting and entering his vehicle, his glassy bloodshot eyes and slurred
speech, and the odor of alcohol, coupled with the open container and McGrath’s
admission of consuming two beers, taken together, were sufficient to provide the
necessary reasonable, articulable suspicion of impairment to allow field sobriety testing.
{¶ 15} Having found that the stop was legal and that there was a basis for field
sobriety testing, McGrath’s first assignment of error is overruled.
No contest Plea
{¶ 16} A trial court’s duties at a plea hearing are “graduated according to the
seriousness of the crime with which the defendant is charged.” State v. Watkins, 99 Ohio
St.3d 12,
2003-Ohio-2419,
788 N.E.2d 635, ¶ 25.
{¶ 17} Having physical control while under the influence, as a first degree
misdemeanor, is a petty offense, “which means ‘an offense for which the penalty
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prescribed by law includes confinement of six months or less.’ ” State v. McGlinch, 2019-
Ohio-1380, 135 N.E.3d 406, ¶ 21 (2d Dist.), quoting Traf.R. 2(D).1 A plea in a traffic case
involving a petty offense is governed by Traf.R. 10(D), which states the following:
In misdemeanor cases involving petty offenses … the court may refuse to
accept a plea of guilty or no contest and shall not accept such pleas without
first informing the defendant of the effect of the pleas of guilty, no contest,
and not guilty. This information may be presented by general orientation
or pronouncement.
Traf.R. 10(B) defines the effect of a guilty or no contest plea and states, in relevant
part, that a plea of no contest “is not an admission of defendant’s guilt, but is an admission
of the truth of the facts alleged in the complaint and such pleas shall not be used against
the defendant in any subsequent civil or criminal proceeding.” Traf.R. 10(B)(2); see also
Crim.R. 11(B)(2), which is identical to Traf.R. 10(B)(2). A trial court accepting a plea to
a petty traffic offense need only comply with Traf.R. 10(D), but such compliance must,
when applicable, include the Traf.R. 10(B)(2) explanation of the effect of a no contest
plea. McGlinch at ¶ 24.
{¶ 18} In McGlinch, we concluded that, when a defendant pleads no contest to a
petty traffic offense and the trial court completely fails to inform the defendant of the effect
of a no contest plea, in violation of Traf.R. 10(D), and the plea is contested on appeal, the
defendant need not demonstrate prejudice, and the plea must be vacated. Id. at ¶ 30-
1
The Ohio Traffic Rules apply in all Ohio courts in traffic cases. Traf.R. 1(A). A “traffic
case” is “any proceeding, other than a proceeding resulting from a felony indictment, that
involves one or more violations of a law, ordinance, or regulation governing the operation
and use of vehicles, conduct of pedestrians in relation to vehicles, or weight, dimension,
loads or equipment, or vehicles drawn or moved on highways and bridges.” Traf.R. 2(A).
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31. See also State v. Sauceman, 11th Dist. Trumbull No. 2020-T-0033, 2021-Ohio-172,
¶ 17; State v. Williams, 6th Dist. Lucas No. L-17-1064,
2018-Ohio-1000, ¶ 5. We note
that this conclusion is consistent with the case law in felony cases that a trial court’s
complete failure to advise a defendant of a Crim.R. 11(C)(2)(a) non-constitutional right
obviates the defendant’s obligation to establish prejudice. See State v. Dangler,
162
Ohio St.3d 1,
2020-Ohio-2765,
164 N.E.3d 286, ¶ 15.
{¶ 19} In McGrath’s case, the trial court completely failed to inform him of the effect
of a no contest plea. Moreover, the record does not reflect that McGrath was informed
of the effect of a no contest plea through "general orientation” as allowed by Traf.R. 10(D).
As such, we conclude, consistent with McGlinch, that McGrath’s no contest plea must be
reversed, and the case remanded to the trial court.
Conclusion
{¶ 20} McGrath’s first assignment of error is overruled. His second assignment of
error is sustained. The judgment of the Darke County Municipal Court is reversed, and
the matter is remanded to the trial court.
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HALL, J. and WELBAUM, J., concur.
Copies sent to:
Jesse J. Green
Regina R. Richards
Matthew William McGrath
Hon. James S. Detling, Visiting Judge
Hon. Julie L. Monnin
