COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68068 68069 68070 CITY OF MAPLE HEIGHTS : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION WILLIAM HARRIS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: Criminal appeals from Garfield Heights Municipal Court Case Nos. 94-TRD-4023A, 4023B and 4023C JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MICHAEL G. CIARAVINO Maple Heights Prosecutor 4700 Rockside Road Suite 525 Independence, Ohio 44131-2155 For Defendant-Appellant: TODD J. McKENNA 55 Public Square #1260 Cleveland, Ohio 44113-1992 - 2 - O'DONNELL, J.: Appellant William Harris appeals from a judgment of the Garfield Heights Municipal Court entered pursuant to a jury verdict finding him guilty of violating Maple Heights Ordinance No. 434.01, Driving Under the Influence of Alcohol, 432.01, Lanes of Travel, and 436.11, Stopping After an Accident. The Statement of Evidence filed in this case reveals that the facts are generally not disputed. On April 25, 1994, Maple Heights Police Officer Timothy Love received a radio dispatch advising that a resident in the area of 21018 Clare Avenue reported that a car struck a tree and left the scene. Officer Love located the damaged tree, found a broken headlight and other auto parts, and drove down Clare Avenue where he spotted a vehicle parked in the driveway at 20811 Clare which he believed matched the broken auto parts. The officer then approached the appellant's home, and in speaking with appellant noticed a strong odor of alcohol on appellant's breath. In response to Love's questions, appellant stated he had been driving the vehicle, hit the tree, and left the scene to go home. Also, according to the officer's testimony, that defendant had consumed alcohol prior to driving the vehicle but had not consumed any alcohol after hitting the tree. - 3 - As appellant's wife came downstairs, appellant indicated he no longer wished to speak to Love and asked Love to leave. Love then placed appellant under arrest, read the Miranda warnings, and took appellant to the police station. At the station, Love administered field sobriety tests to appellant who, according to Love, appeared to sway and was unable to perform the turning test. When asked to take a BAC Verifier Test, appellant did not blow into the mouthpiece which Officer Blaha deemed a refusal to take the test. The appellant's wife, Deborah Rucker, testified and stated she lived with appellant for seven years, that he was not an alcoholic, that he left their home around 1:00 a.m. to buy cigarettes, that he was gone a short time, and upon returning had told her that when he swerved to avoid hitting a cat in the street, he hit a tree. They had further decided to call the police in the morning. Finally, the appellant testified that he is a car salesman, has no prior convictions of any sort, that while returning home from buying cigarettes he swerved to avoid hitting a cat and struck a tree, proceeded home, parked his car in the driveway, discussed the incident with his wife and decided to contact the police in the morning. He also denied refusing to take the BAC test and denied being argumentative with police on the night of arrest which had been videotaped by police and later shown to the jury. - 4 - Prior to trial, on August 29, 1994, appellant's original counsel withdrew. On September 12, 1994, new counsel appeared and sought a continuance of the September 13, 1994 trial date. The court continued trial one day. On September 14, new counsel filed a motion to suppress which was summarily denied and the case proceeded to jury trial. Following the court's charge, the jury returned guilty verdicts to all charges and appellant now raises four assignments of error for our consideration. I. THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S RULE 29 MOTION TO ACQUIT WHEN THE ARRESTING OFFICER DID NOT SEE OFFENSE COMMITTED, DID NOT SAY WHEN THE ACCIDENT OCCURRED, AND NO TESTIMONY WAS OFFERED SHOWING THAT DEFENDANT WAS ACTUALLY "UNDER THE INFLUENCE" AT THE TIME WHEN THE ACCIDENT OCCURRED. Appellant argues the trial court erred by denying the Crim. R. 29 motion for acquittal because the arresting officer did not see the offense committed, did not know when the accident occurred, and offered no testimony showing appellant was under the influence of alcohol at the time of the accident. Appellee contends that officer Love arrived at the scene of the accident within five minutes of the resident's call, located the broken auto parts and upon investigation determined appellant's vehicle had struck the tree. Love arrested appellant - 5 - after a conversation in which the appellant allegedly admitted consuming alcohol prior to driving the vehicle. The issue then is whether or not the officer properly arrested the appellant, and whether the court erred in denying the Crim. R. 29 motion. "R.C. 2935.03(A) provides police officers with the authority to arrest and detain persons 'found violating' the laws of this state, or ordinances of municipal corporations until a warrant can be obtained. ***. This language 'found violating' has been interpreted to permit a warrantless arrest for a misdemeanor only when the offense is committed in the officers' presence." State v. Reyman (1989), 55 Ohio App.3d 222, 224 (citing State v. Matthews (1976), 46 Ohio St.2d 72, 75). However, an exception to this rule arises when, based upon circumstances perceivable by his own senses, a policeman would be justified in concluding that a misdemeanor has been committed. Cleveland v. Murad (1992), 84 Ohio App.3d 317. In Murad, however, we cautioned: "*** probable cause for this purpose must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly drawn from the testimony of the senses." Id. at 322 (citing 5 American Jurisprudence 2d (1962), 723, Arrest, Section 32.) In State v. Allen (1981), 2 Ohio App.3d 441, the court there concerned itself with a strikingly similar situation to that - 6 - presented by the facts in this case. The headnote of that case states: "The testimony of a police officer will not be suppressed when in response to an accident call, he observes an automobile in the front yard of a private residence, with a person standing nearby who admits that he owns the automobile and has been driving it, whose speech is slurred and who otherwise appears to be intoxicated, and then arrests such person without a warrant for operating a vehicle while under the influence of alcohol." And, at 442, considering the precise issue presented for our consideration, the court opined, "Even if we were to conclude that because the offense was not committed in the presence of the officer the arrest was contrary to R.C. 2935.03 and therefore illegal, the facts as adduced would not require the suppression of evidence." And, finally, the court concluded, "In determining whether the defendant's arrest was unconstitutional, we note that an arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at the time. According to the officer's testimony, the defendant appeared visibly intoxicated, admitted ownership of the vehicle and admitted driving it. We hold that the officer had probable cause to reasonably believe that a crime had been committed and that it had been committed by the defendant. ***" Here, officer Love, in the course of investigating a telephone complaint of an accident, verified the information from the scene and located a vehicle which he believed was probably involved. Upon further inquiry, he smelled a strong odor of alcohol on the appellant's breath, and after hearing that appellant had been driving, he arrested the appellant. - 7 - We believe the officer had probable cause to pursue a warrantless arrest of the appellant in this case and the trial court did not err in denying the motion for directed verdict. This assignment of error is not well taken. II. THE "LEAVING THE SCENE OF AN ACCIDENT" CHARGE UNDER THE CITY'S CODIFIED ORDINANCE 436.11 SHOULD HAVE BEEN DISMISSED, OR THE COURT SHOULD HAVE GRANTED DEFENDANT'S RULE 29 MOTION, AS THE PROSECUTION NEVER PROVED THAT THE TREE WAS LOCATED ON PUBLIC PROPERTY, WHICH IS AN ESSENTIAL ELEMENT OF OFFENSE; AND FURTHER A DRIVER HITTING A TREE LOCATED 1 FOOT FROM THE STREET, WOULD NOT BE HITTING AN OBJECT IN THE PUBLIC STREET. Here, appellant argues that Ordinance 436.11 pertains to leaving the scene of an accident upon a public highway, and since the tree was located on the tree lawn, the ordinance does not apply and the court should have directed a verdict in appellant's favor. Appellee believes common knowledge implies that tree lawns are public property. R.C. 4511.01 (BB) states: "'Street' or 'highway' means the entire width between the boundary lines of every way open to the use of the public as a thoroughfare for purposes of vehicular traffic." And (FF) defines sidewalk to include a portion of a street: "'Sidewalk' means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for the use of pedestrians." - 8 - Therefore, the commonly referred to portion of the public street known as a tree lawn is actually a part of the public street. R.C. 4511.711 prohibits one from driving any vehicle other than a bicycle upon a sidewalk. Upon reasonable investigation and locating the matching auto headlight and other broken auto parts to the appellant's vehicle and upon determining that appellant's vehicle had matching damage and a flattened tire, the officer properly cited the appellant for this offense, and the court did not err in denying the directed verdict motion. We find no merit to the assigned error. III. Appellant's third assignment of error states: DEFENDANT HAD REASONABLE EXPLANATION FOR LEAVING HIS LANE OF TRAVEL, AND DEFENDANT'S RULE 29 MOTION SHOULD HAVE BEEN GRANTED ON THE BASIS THAT THERE WAS NO CONTRARY TESTIMONY; OFFICER DID NOT SEE OFFENSE COMMITTED; AND THAT DEFENDANT HAD CREDIBLE EXPLANATION FOR LEAVING LANE. Next, appellant argues that since he swerved to avoid a cat, a reasonable explanation exists for the accident, no evidence of intoxication at that time exists, and the court should have directed a verdict on the lane of travel citation. Appellee urges the earlier referenced activity of the police officer provides a sufficient basis for the court's denial of the motion. - 9 - Here, we reference the test for a trial court in considering whether to grant a directed verdict. In State v. Bridgeman (1978), 55 Ohio St.2d 261, the court held "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach material element of a crime has been proved beyond a reasonable doubt." Applying this test, we cannot conclude the court erred in denying the motion, because of the conflicting evidence presented at trial from which the jury made its decision. IV. Appellant's fourth assignment of error states: THE COURT'S GRANT OF ONLY A ONE DAY CONTINUANCE WAS UNREASONABLE AND NEGATED DEFENDANT'S ABILITY TO HAVE HEARING ON HIS MOTION TO SUPPRESS, REGARDING LACK OF PROBABLE CAUSE. Appellant avers that the court erred in failing to hold a hearing on the motion to suppress. Appellee believes the court properly exercised its discretion in ruling on this motion. The issue, then, presented for our resolution is whether or not the trial court abused its discretion in granting only a one day continuance. The Ohio Supreme Court stated in State v. Unger (1981), 67 Ohio St.2d 65, at 67: "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there - 10 - has been an abuse of discretion." (Citations omitted.) The court also stated, "In evaluating a motion for continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance, and other relevant factors, depending on the unique facts of each case." (Citations omitted.) In this case the trial court denied Harris' motion to suppress because it was not timely filed. In fact, Harris filed the motion to suppress the same day the case was tried before a jury, and seven days after the deadline for pretrial motions under Crim.R. 12(C). Therefore, we cannot conclude the trial court abused its discretion in failing to grant a longer continuance, and the fourth assignment of error is without merit. Judgment affirmed. - 11 - 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 Garfield Heights 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. SPELLACY, P.J., and BLACKMON, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .