COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59175 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALEXANDER HANZMANN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, No. 89-TRC-54591A-C. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Mark A. McClain, Esq. Cleveland City Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John W. Hickey, Esq. 3794 Pearl Road Cleveland, OH 44109 -2- MATIA, P.J.: THE FACTS On September 28, 1989, two (2) Cleveland police officers riding in a logo marked police vehicle, observed defendant- appellant Alex Hanzmann operating his vehicle at the intersection of West 45th Street and Clinton Avenue. The officers testified that the defendant-appellant made a "wide turn" westbound on Clinton Avenue. The officers further testified that appellant Hanzmann's car weaved, and that he "nearly" hit two parked cars. The police further observed appellant comply legally with two traffic control devices before the police officers pulled him over and approached his car. When appellant Hanzmann rolled down his window, the officers noted a strong odor of alcohol coming from the car. The officers then requested that the appellant perform several field sobriety tests, which he failed. The appellant was then arrested for DWI and failure to control his vehicle. Appellant Hanzmann was transported to Lutheran Hospital where he was given a blood test. He was then taken to the police station where he was booked for the charges. The police officers released appellant on September 29, 1989. THE CASE On September 28, 1989, defendant-appellant Alex Hanzmann was arrested and charged with violating Cleveland Municipal Ordinance 433.01(A)(1), operating a motor vehicle while under the influence or the combined influence of alcohol and any drug or -3- abuse; Cleveland Municipal Ordinance 433.01(A)(2), operating a motor vehicle with a concentration of ten-hundredths of one percent (.10%) or more by weight of alcohol in his/her blood; and Cleveland Municipal Ordinance 431.34, operating a motor vehicle without exercising reasonable and ordinary control over such vehicle. On December 27, 1989, a pretrial hearing was held on the appellant's motion in limine, a motion to suppress evidence, and at trial, appellant's oral motion to dismiss pursuant to the speedy trial statute, R.C. 2945.71. All motions were denied by the trial court. Appellant Hanzmann then entered a plea of no contest and was found guilty of Cleveland Municipal Ordinance 433.01(A), DWI, and Cleveland Municipal Ordinance 431.34, failure to exercise reasonable and ordinary control over vehicle. Appellant Hanzmann was sentenced and that sentence was stayed pending this appeal. ASSIGNMENT OF ERROR I "WHETHER THE COURT ERRED TO THE DEFENDANT/APPELLANT'S DETRIMENT BY NOT GRANTING THE MOTION TO DISMISS FOR LACK OF A SPEEDY TRIAL PURSUANT TO R.C. 2945.71(B)(2), R.C. 2945.73 AND THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE THROUGH THE FOURTEENTH AMENDMENT, AS WELL AS SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION." Appellant, in his first assignment of error argues that the court erred by not granting his motion to dismiss. Specifically appellant argues that his constitutional right to a speedy trial was violated. -4- This assignment of error is not well taken. Appellant Hanzmann argues that he was brought to trial 92 days after his arrest, which violates his constitutional and statutory rights to a speedy trial. R.C. 2945.71(B)(2) addresses the rights of appellant Hanzmann to a speedy trial and states in part: "*** a person against whom a charge other than a minor misdemeanor is pending shall be brought to trial within ninety (90) days after the arrest or service of summons." In the within case, appellant Hanzmann argues that he was not brought to trial until the ninety-second (92nd) day after his arrest. Appellant reaches this conclusion by setting forth the argument that he was held one day in jail in lieu of bail. Appellant reasons that pursuant to R.C. 2945.71(E), that his one day spent in jail should be computed as three days. "Computing the 29th day of September, 1989, as three days we submit the following time table: 09/28/89 - Date of arrest = -0- days 9/29/89 - Partial day of incarceration pending posting of bail = 3 days 09/30/89 - 12/27/89 = 89 days TOTAL DAYS 92 days" Appellant's brief, p. 7. We find that the record reveals otherwise, and does not support appellant's contention that he was held in jail for the statutorily required "day" in lieu of bail. Accordingly, appellant's "one day" jail time will not be computed as three -5- days, and therefore, appellant Hanzmann was brought to trial within 90 days as prescribed by statute. ISSUE: WHETHER APPELLANT WAS BROUGHT TO TRIAL WITHIN 90 DAYS The record indicates that appellant Hanzmann was arrested at approximately 11:15 p.m. on September 28, 1989. The record further indicates that approximately two hours later at 1:15 a.m., September 29, 1989, appellant Hanzmann was released from police custody. The record shows that during these two hours in which appellant was in the custody of police officers, police procedures were being followed which required the duration of most of that time, to-wit: appellant was taken to Lutheran Hospital where blood was drawn. He was subsequently transported to the station house for booking procedures. Appellant was subsequently released from police custody at approximately 1:15 a.m. We reason that two hours is not an unreasonable amount of time to allot to police procedures necessary to document and book appellant's charges. We further reason that this time spent processing routine police matters related to appellant's charges does not comply with the legislative intent of the triple time provision of R.C. 2945.71(E). In State v. Wolos (1983), 8 Ohio App. 3d 361, this court reasoned that defendant's one day detention incidental to bail did not toll the time pursuant to R.C. 2945.71. The court stated: -6- "It is the contention of defendant that his detention by the sheriff in the post- arraignment process and within the jail on April 1, 1981 amounted to a day in jail in lieu of bail as contemplated by former 2945.71(D) (now R.C. 2945.71(E)). We disagree." Wolos, at 361. The court continued to state that the legislative definition of the word "detention" as contained in R.C. 2921.01(E) expressly does not include "constraint incidental to release on bail." In Wolos, the defendant was detained in jail one day pursuant to the arraignment process. In the within case, appellant Hanzmann was detained in jail two hours pursuant to his orderly arrest and booking. We reason, however, as the Wolos court did, that appellant's two hour detention was "constraint incidental to release on bail," and as such, is specifically prohibited by statute (R.C. 2921.01(E) to fall within the legislative purview of R.C. 2945.71(E). Accord State v. Dusz (Tuscarawas, 1983), No. CA-1633, unreported. Accordingly, appellant Hanzmann's statutory and constitutional rights were not violated as he was brought to trial within 90 days. Accordingly, Assignment of Error I is without merit. ASSIGNMENT OF ERROR II "WHETHER THE COURT ERRED IN ALLOWING TESTIMONY FROM THE MEDICAL NURSE WHO WITHDREW BLOOD FROM THE DEFENDANT/APPELLANT BECAUSE OF THE PROSECUTOR'S FAILURE TO TIMELY RESPOND TO DISCOVERY PURSUANT TO DEFENDANT'S REQUESTS UNTIL THE DAY BEFORE THE TRIAL?" -7- Appellant argues in his second assignment of error that the trial court allowed impermissible testimony. Appellant alleges that the prosecutor did not timely respond to his discovery request concerning Nurse Kovuch's name, thereby, appellant asserts that he was prejudiced. This assignment of error is not well taken. ISSUE: WHETHER THE ADMITTED TESTIMONY VIOLATED THE RULES OF DISCOVERY One of the purposes of the rules of discovery is to avoid surprise at trial. The Supreme Court of Ohio, in Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App. 3d 176, 178 held that: "One of the purposes of the Rules of Civil Procedure is to eliminate surprise. This is accomplished by way of a discovery procedure which mandates a free flow of accessible information between the parties upon request, and which imposes sanctions for failure to timely respond to reasonable inquiries." Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App. 3d 176, 178, quoting Jones v. Murphy (1984), 12 Ohio St. 3d 84. Civ. R. 26(E) states that a party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired. However, in Jackson, this court reasoned that "the elements of surprise and ambush become the focus with regard to whether a free flow of information between the parties has been disrupted by deliberate actions of one of the parties." 47 Ohio App. 3d at 179. Herein, the critical issue becomes whether or not the prosecutor's response to appellant's discovery request was so -8- deficient as to cause "the elements of surprise and ambush" at trial. We reason that it did not. Appellant Hanzmann specifically opposes the testimony of Nurse Ann Kovuch. Appellant asserts that the prosecutor's untimely response, less than twenty-three (23) hours before trial, to the request for the nurse's name, left him unable to verify the nurse's credentials or the procedure which she used in drawing the blood. The record indicates that the nurse took the stand to testify at trial. We reason that appellant's counsel then had ample time and opportunity to cross-examine the nurse -- as to the issues of her credentials and procedure used in drawing the blood. Appellant would have us believe that the nurse's testimony regarding her qualifications and the procedure she used to draw the blood was not adequate testimony. We submit that the nurse was under oath, and appellant's counsel had ample opportunity to impeach on cross-examination. We cannot infer from the evidence within, that appellant Hanzmann was "surprised and ambushed" by the nurse's testimony. Jackson v. Booth Memorial Hospital, supra. Accordingly, Assignment of Error II is without merit. ASSIGNMENT OF ERROR III "WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT'S MOTION TO SUPPRESS IN THE ABSENCE OF ARTICULABLE FACTS JUSTIFYING THE TRAFFIC STOP." -9- Appellant, in his third assignment of error argues that the court erred in denying his motion to suppress. Specifically, appellant argues that there were no articulable facts justifying the traffic stop. This assignment of error is not well taken. ISSUE: WHETHER POLICE HAD SPECIFIC AND ARTICULABLE FACTS TO CAUSE STOP "A police stop of a motor vehicle is a significant intrusion requiring justification as a 'seizure' within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution. Delaware v. Prouse (1979), 440 U.S. 648, 653. At the very least, such justification requires that the stopping officer have '"specific and articulable facts"' indicating that the stop is reasonable. State v. Chatton (1984), 11 Ohio St. 3d 59, 61, 11 OBR 250, 251, 463 N.E. 2d 1237, 1239." In the case sub judice, it is clear from the record that police officers Simone and Cuadra initially observed appellant Hanzmann's vehicle weaving and nearly strike two parked cars on Clinton Road. It is axiomatic that the detention of an individual by a law enforcement officer must, at the very least, be justified by "specific and articulable facts" indicating that the detention was reasonable. Terry v. Ohio (1968), 392 U.S. 1. Under Terry, police officers can make an investigatory stop based on at least reasonable suspicion that a crime is being committed. Within, the arresting officer observed appellant Hanzmann's automobile weaving and nearly hit two parked cars. This gave the -10- officer sufficient reasonable suspicion to detain and investigate further appellant Hanzmann. Consequently, the initial stop of appellant was reasonable and based on an articulable and reasonable suspicion. Delaware, supra; Terry, supra. A brief investigative stop of appellant was justifiable. It is long standing law that the fruits derived from the initial stop will not justify that stop, however, herein, once appellant Hanzmann was justifiably stopped, other circumstances, to-wit; the odor of alcohol, and failing the field sobriety test, gave probable cause for the subsequent arrest. We cannot agree with appellant that he was stopped in absence of articulable facts justifying the traffic stop. Police officers, after observing appellant's car weaving and nearly hitting two parked cars, had reasonable articulable suspicion to briefly detain appellant for further investigation. Accordingly, Assignment of Error III is not well taken. ASSIGNMENT OF ERROR IV "WHETHER THE COURT ERRED IN ACCEPTING THE BLOOD TEST RESULTS WHEN THE TESTIMONY OF THE NURSE COLLECTOR OF THE BLOOD DOES NOT CONFORM TO THE ADMINISTRATIVE CODE 3701-53-05(B) AND (C)." Appellant in his fourth assignment of error argues that the trial court erred in admitting the results of the blood test. Specifically, appellant argues that the Administrative Code was violated. This assignment of error is not well taken. -11- Appellant argues in his fourth assignment of error that the prosecutor failed to demonstrate that the collection of the blood sample complied with sections (B) or (C) of Administrative Code 3701-53-05. ISSUE: WHETHER THE COLLECTION OF BLOOD SAMPLE SUBSTANTIALLY COMPLIED WITH ADMINISTRATIVE CODE Administrative Code 3701-53-05: Collection and handling of blood and urine specimen: "(B) When collecting a blood sample, an aqueous solution of a non-volatile antiseptic shall be used on the skin. Alcohol shall not be used as a skin antiseptic. "(C) Blood shall be drawn with a: "(1) Sterile dry needle into a vacuum container containing a solid anticoagulant; or "(2) Sterile dry needle and syringe and deposited into a clean container containing a solid anticoagulant and the container shall then be capped or stoppered." We submit that appellant's argument is without merit. Nurse Kovuch testified that she used Betadine to prep appellant's arm for the collection of blood. The nurse further testified as to the procedure she used to draw the blood. Appellant's attorney accepted the testimony as given and made no objections. Appellant then cannot bring an error for review by this court which has not been preserved at the lower court. State v. Holden (1985), 23 Ohio App. 3d 5. Further, we submit that appellant had ample opportunity to cross-examine the nurse while she was on the stand. The record -12- indicates that the appellant did not ask the nurse specific questions regarding his concerns about the procedure used in collecting the blood sample. Appellant's counsel was very concerned with the medical record, and whether or not the nurse had brought it with her, however, when the court asked appellant's counsel if he wanted the one record the nurse had in her possession submitted into evidence, counsel said that he would subpoena the records. We note that appellant's Exhibit "B" was identified by the nurse as a form supplied by the hospital, and signed by the nurse, which certified that the blood sample was obtained in accordance with Ohio Revised Code for analysis for alcohol and/or drugs of abuse. On review of the record, we are compelled to believe that the nurse, on behalf of the hospital, was in substantial compliance with R.C. 4511.19(B) and with Administrative Code 3701-53-05(B). Accordingly, appellant's Assignment of Error IV is not well taken. ASSIGNMENT OF ERROR V "WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT'S MOTION TO SUPPRESS WHERE THE TRIAL COURT FAILED TO STATE ITS ESSENTIAL FINDINGS ON THE RECORD." Appellant, in his fifth assignment of error, argues that the trial court erred in denying his motion to suppress. Specifically, appellant argues that the trial court failed to state its findings on the record. -13- This assignment of error is not well taken. ISSUE: WHETHER THE COURT WAS COMPELLED TO SUBMIT ITS ESSENTIAL FINDINGS OF FACT FOR THE RECORD Appellant argues that the trial court committed error when it failed to state its essential findings of fact for the record in overruling appellant's motion to suppress. Appellant relies on State v. Almalik (1986), 31 Ohio App. 3d 33, and Akron v. Milewski (1985), 21 Ohio App. 3d 140. We distinguish the rulings in these cases from the case at bar and in so doing, overrule appellant's assignment of error. In Almalik, the appellate court found that it was error for the trial court to not state its findings for the record pursuant to Crim. R. 12(E) because the appellant in Almalik had requested that the court state its findings for the record. Herein, we find no such request from appellant. Similarly, Milewski is distinguishable from the within case, because the appellate court in Milewski reasoned that the trial court had to make several factual conclusions in order to grant the suppression order. Therefore, the court's suppression order did not meet the requirements of Crim. R. 12(E). "*** Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." In the within case, the court had to rule on the legal issue of whether the police had probable cause or reasonable suspicion to stop appellant. Of course, the court had to take into consideration the facts as submitted in making its determination, -14- but the court's resolution was cut and dry, either there was probable cause on those facts or there was not. In Milewski, however, the court found: "In the case, the court must make several factual conclusions in order to grant the suppression order. There is of course no dispute that Milewski was not given her Miranda rights; however, there remain the questions of where and when she was in custody and where and when thereafter she was custodily interrogated, as well as what statements were made in response to such interrogation. As such, the trial court's order simply stating that the motion to suppress was granted was facially erroneous in the light of Crim. R. 12(E)." Milewski, supra, at 141, 142. Herein, the court found that appellant's weaving driving and his nearly hitting two parked cars was sufficient reasonable suspicion to permit the officer's stop. There were no other factual considerations to be made, and therefore, we distinguish Milewski from the case at bar, and submit that the court did not commit error in light of Crim. R. 12(E). Accordingly, Assignment of Error V is without merit. Accordingly, for the foregoing reasons, the trial court is affirmed. -15- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. and HARPER, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .