COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67007 CITY OF WESTLAKE : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARK R. HODDINOTT : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court Case No. 93-TRC-7136 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARY A. LENTZ Ohio Savings Plaza 1801 East 9th Street Suite 1701 Cleveland, Ohio 44114 For Defendant-Appellant: KENNETH A. BOSSIN 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 - 2 - KARPINSKI, J: Defendant-appellant Mark R. Hoddinott appeals from his jury conviction for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1). The record demonstrates defendant was arrested and charged with driving under the influence of alcohol in the City of Westlake on June 20, 1993. Westlake police officers discovered defendant unconscious in the driver's seat of his vehicle parked in the parking lot of a closed fast food restaurant at 12:57 a.m. with the keys in the ignition. When Officer Robert Walling approached defendant's vehicle, he also observed what appeared to be an open, dark-colored beer bottle in a beverage holder between the front seats of the vehicle. Defendant was arrested for driving under the influence of alcohol after he admitted to having had too much alcohol to drink and failed a series of field sobriety tests. Defendant filed a written motion in the municipal court on September 29, 1993 to suppress the evidence the police obtained after they approached his vehicle. Specifically defendant requested the suppression of all observations made by the officers, the statements made by defendant, and the results of his subsequent sobriety tests. The record demonstrates that Officer Walling was the sole witness called to testify during the hearing conducted by the municipal court October 29, 1993, on defendant's motion to suppress. - 3 - During that hearing Officer Walling testified that while on routine patrol at approximately 12:57 a.m. on June 20, 1993, he observed defendant alone in a vehicle parked in the unlighted parking lot of a Kentucky Fried Chicken restaurant which had closed for business. (Tr. I, pp. 5-6). Officer Walling found this "odd" and drove his police cruiser into the parking lot to investigate further. (Tr. I, p. 6). Officer Walling approached the driver's side of defendant's vehicle on foot and through the window observed defendant in an unconscious state in the driver's seat of the vehicle. The keys to the vehicle were in the ignition, but the engine was not running. Officer Walling also noticed that the radio was turned on and that an open bottle of beer was in the cup holder next to defendant. (Tr. I, pp. 6, 16). Officer Walling thereafter walked to the rear of defendant's vehicle and made a radio call for additional backup. Defendant was awake when Officer Walling approached the driver's side of defendant's vehicle a second time. As he requested identification from defendant, Officer Walling observed defendant's eyes were "very bloodshot" and smelled a "moderate odor" of alcohol on defendant's breath. (Tr. I, pp. 7-8). Defendant responded to Officer Walling with a statement to the effect that "he wasn't driving because he'd had too much to drink." (Tr. I, p. 8). Officer Walling thereafter requested defendant exit his vehicle and complete a series of field sobriety tests. Defendant - 4 - was unable to recite the alphabet correctly and received unsatisfactory results on horizontal gaze nystagmus and physical coordination walking tests. (Tr. I, pp. 9-10). Officer Walling arrested defendant for driving under the influence of alcohol and issued a citation to defendant at the police station. (Tr. I, pp. 11, 13). Defendant refused to submit to a breathalyzer test at the police station. Officer Walling conceded during cross-examination that he was unable to read the label but recognized the distinctive dark- colored bottle as a beer bottle when he first observed it in the beverage holder of defendant's vehicle. (Tr. I, pp. 18-20). Officer Walling ultimately seized the bottle which "smelled as beer" and observed the "Blatz" label sometime after he conducted the field sobriety tests. (Tr. I, p. 26). The suppression hearing concluded with legal arguments by the parties. The municipal court denied defendant's motion to suppress and scheduled the matter for a jury trial in a detailed three- page journal entry journalized December 17, 1993. Defendant subsequently filed a written request for certain jury instructions on January 24, 1994, four days prior to the scheduled trial. The record on appeal contains only a partial transcript of the proceedings conducted thereafter by the municipal court on January 28, 1994. The seventeen-page excerpt of the January 28, 1994, proceedings contains only various - 5 - pretrial rulings and does not recite any of the trial proceedings. (Tr. II, pp. 1-17). The record demonstrates the jury returned a guilty verdict following deliberations. The municipal court entered judgment on the jury verdict and, following a hearing, sentenced defendant in an order journalized February 3, 1994. The municipal court sentenced defendant to ninety days' imprisonment and imposed a $1,000 fine plus court costs. However, the municipal court suspended execution of sixty-seven days' imprisonment, ordered defendant to serve five days' actual incarceration, and placed defendant on inactive probation with various conditions. Defendant timely appeals raising two assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED FROM THE DEFENDANT/APPELLANT WHERE THE BASIS FOR PROBABLE CAUSE WAS AN "OPEN CONTAINER OF BLATZ BEER" WHICH WAS NOT IN PLAIN VIEW IN A PUBLIC AREA. Defendant's first assignment of error lacks merit. Defendant contends the municipal court improperly denied his motion to suppress evidence. Defendant argues generally that the police lacked reasonable suspicion to approach his vehicle in the parking lot or sufficient probable cause to arrest him for driving under the influence. However, based on our review of the record, defendant has failed to show any error. The Ohio Supreme Court recently confronted a similar situation in State v. Gill (1994), 70 Ohio St.3d 150. In Gill - 6 - two police officers on routine patrol encountered a vehicle parked in a public parking lot at 1:00 a.m. with the defendant asleep in the driver's seat, the keys in the ignition, and the radio turned on. The two officers smelled a strong odor of alcohol but did not observe an open bottle of beer. The Gill Court concluded the officer's investigation of defendant and his vehicle was reasonable and the arrest of defendant was proper under these circumstances. Id. at 154-155. The record in this case likewise demonstrates that, contrary to defendant's argument, Officer Wallings' initial approach to defendant's vehicle did not constitute an improper investigative stop. Defendant's citation to caselaw involving traffic stops in this context is particularly misplaced since the record unambiguously demonstrates defendant's vehicle was parked in a public parking lot and was not stopped by the police to detain defendant or to view the interior of his vehicle. Officer Wallings specifically testified that defendant was asleep or had passed out behind the steering wheel of the vehicle and that Wallings was concerned about defendant's physical well- being. (Tr. I, p. 15). The observations made by Officer Wallings during his initial approach to defendant's vehicle for the purpose of determining whether to render assistance did not constitute an improper search or seizure. Routine encounters with stationary automobiles by police officers which result in observation of objects in open view, as in this case, should be - 7 - distinguished from investigations for evidence of criminal activity. See id.; accord State v. Tate (1987), 40 Ohio App.3d 186, 187. The record demonstrates that Officer Wallings subsequently approached defendant's vehicle a second time after making a radio call for backup. Defendant was conscious at this time and Officer Wallings requested defendant to produce identification. It is evident that Officer Wallings' request for identification was no longer motivated by concern for defendant's medical condition and may have been sufficient to constitute an investigatory stop. However, the totality of the circumstances, i.e., Officer Wallings' personal observation of defendant unconscious in the driver's seat of his vehicle in a parking lot at approximately 1:00 a.m., the key in the ignition, the radio turned on, an open dark-colored bottle which appeared to be a beer bottle within reach, provided sufficient specific articulable facts to warrant further investigation. Id.; see also Bucyrus v. Lewis (1990), 66 Ohio App.3d 256. Defendant contends that Officer Wallings' observation of the open, dark-colored beer bottle in defendant's vehicle could not be used to justify this subsequent investigation since Wallings' observation did not satisfy the requirements of the "plain view" doctrine. Defendant's reliance on State v. Thornton (1989), 51 Ohio App.3d 97, to support this argument is misplaced for two reasons. - 8 - First, as noted by the municipal court, the requirements of the "plain view" doctrine do not apply when a police officer merely observes an object in open view through the window of a parked vehicle from a public area when the officer has not made any prior physical intrusion into the vehicle. (Municipal Court's Journal Entry at p. 2, citing State v. Claytor (1993), 85 Ohio App.3d 623, 633 (Harsha, J., concurring)). Second, even if the "plain view" doctrine applied in this context as defendant argues, the record demonstrates the requirements have been satisfied in this case. Defendant cites Thornton to support his argument that the following three requirements are necessary to satisfy the "plain view" doctrine: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. Id. at 98. Since Thornton was decided in 1989, however, the Ohio Supreme Court has simplified the "plain view" analysis to require only the first and third elements cited above. The Court abandoned the second requirement mandating that the discovery be inadvertent. State v. Waddy (1992), 63 Ohio St.3d 424, 442 n.5 (citing Horton v. California (1990), 496 U.S. 128). Defendant does not dispute that Officer Wallings' observation of the open beer bottle in defendant's vehicle in the parking lot was lawful to satisfy the first element in this case. Defendant contends, however, that the incriminating nature of the - 9 - distinctive dark-colored beer bottle was not "immediately apparent" to satisfy the remaining requirement since Officer Wallings did not know with certainty that the bottle contained beer. However, it is well established that the "immediately apparent" requirement does not require absolute certainty concerning the incriminating nature of an object. Texas v. Brown (1983), 460 U.S. 730, 741-743; State v. Claytor, supra. Moreover, as noted by the municipal court, the apparent incriminating nature of the bottle, i.e., its distinctive dark color resembling a beer bottle, more clearly satisfies this requirement than the clear plastic bag believed to contain cocaine in Claytor or the green balloon believed to contain heroin in Brown. (Municipal Court's Journal Entry at p. 2). Under the circumstances, defendant has failed to demonstrate the police conducted an improper investigatory stop in this case. Moreover, this evidence when coupled with the information subsequently obtained by Officer Wallings, including his (1) observation of defendant's "very bloodshot" eyes, (2) detection of a "moderate odor" of alcohol on defendant's breath, (3) defendant's statement concerning his consumption of "too much" alcohol, and (4) defendant's inadequate performance of the field sobriety tests, provided sufficient probable cause to arrest defendant for driving under the influence of alcohol. State v. Williams (1992), 83 Ohio App.3d 536, 539. - 10 - Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED IN DENYING DEFENDANT/ APPELLANT'S PROPOSED JURY INSTRUCTIONS. Defendant's second assignment of error lacks merit. Defendant argues the trial court improperly denied his written request for jury instructions defining the terms "operate," "can," and "shall" in this case. Based on our review of the record, however, defendant has failed to show any error. As noted above, defendant has submitted on appeal only a partial verbatim transcript of the municipal court's January 28, 1994, proceedings. The transcript excerpt contains only a preliminary pretrial ruling concerning the court's proposed jury instructions, but does not recite the instructions actually delivered by the municipal court during trial or any objection to such instructions during trial. Since the record does not demonstrate that defendant raised a timely objection to the municipal court's instructions during trial, defendant has waived any claim of error. Szymczak v. Midwest Premium Finance Co. (1984), 19 Ohio App.3d 173, 177. Moreover, we note that even if defendant had properly raised and preserved this issue, defendant has failed to show reversible error. The partial transcript indicates the municipal court determined, prior to trial, that it would recite the standard definition of "operate" set forth in the Ohio Judicial - 11 - Instructions ("OJI") Section 545.25(2) to the jury at trial. Defendant contends, however, that this standard instruction does not accurately reflect Ohio law. OJI Section 545.25(2) defines the term "operate" in pertinent part as follows: The term "operate" is a broader term than driving. It includes not only a person being in control of a vehicle when it is in motion but [can] also [include] a person, whether conscious or unconscious, in the driver's location in the front seat of a stationary vehicle so as to be capable of doing any act or series of acts which could cause or contribute to the vehicle being put in motion. *** (Bracketed terms added). Citing State v. Cleary (1986), 22 Ohio St.3d 198, defendant argues the municipal court improperly omitted the bracketed terms "can" and "include" from its instructions to the jury. Defendant complains that omitting these two words deprived the jury of discretion whether to find defendant "operated" his stationary vehicle merely by being seated in the driver's seat with the keys in the ignition in this case. Defendant's argument is unpersuasive. As noted by defendant, the exact scope of the Ohio Supreme Court's definition of the term "operate" in Cleary has been the subject of some debate. Since Cleary, however, the Ohio Supreme Court has clearly construed the definition of "operate" to be consistent with the definition set forth in OJI Section 545.25(2). The Ohio Supreme Court eliminated any confusion concerning the definition of the term "operate" in State v. McGlone (1991), 59 Ohio St.3d - 12 - 122, by specifically defining the term "operating" without referring to the additional terms "can" or "include" as follows: *** We hold that an intoxicated person who is in the driver's seat of a motor vehicle parked on private or public property with the key in the ignition is operating the vehicle in violation of R.C. 4511.19(A)(1). (Emphasis added.) Id. at 124. McGlone left absolutely no doubt that the mere presence of an intoxicated person in the driver's seat of a stationary vehicle with the keys in the ignition constitutes "operating" the vehicle and did not recognize any discretion for the jury to find otherwise. The Ohio Supreme Court recently reiterated this definition in State v. Gill, supra. The Gill Court expressly rejected arguments made in the dissenting opinion similiar to those raised by defendant in the case sub judice concerning the scope of its prior decision in Cleary. Based on this authority, defendant has failed to demonstrate that the OJI Section 545.25(2) definition of the term "operate" is contrary to law or resulted in any prejudice in this case. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 13 - 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 Rocky River 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. DYKE, P.J., and NAHRA, J., CONCUR JUDGE DIANE KARPINSKI N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .