COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69054 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT CARRIE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 19, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case No. 94-TRC 73834 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Carolyn W. Allen, Esq. William Randle, Jr., Esq. Chief Prosecutor 11705 Detroit Avenue City of Cleveland Lakewood, Ohio 44107 By: Bryan Fritz, Esq. Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, P.J.: Defendant-appellant, Robert Carrie, appeals from his conviction for driving under the influence in violation of Section 433.01(A)(1) of the Codified Ordinances of the city of Cleveland ("C.C.O. 433.01[A][1]"). Appellant asserts that the Cleveland Municipal Court abused its discretion in permitting the testimony of police officers at his motion to suppress hearing and then erred in denying the motion. A careful review of the record compels affirmance. On November 18, 1994, Mark Shepard, an off-duty Cleveland police officer, was operating his personal motorcycle westbound on Lakewood Heights Boulevard just after 1:00 p.m. Shepard wore civilian clothing at the time. Four to five vehicles were ahead of Shepard as he neared the intersection of Lakewood Heights Boulevard and Warren Road. The vehicle at the forefront was motionless despite repeated cycling of the traffic signal from red to green. The vehicles in front of Shepard, in fact, began to maneuver around the stopped vehicle in order to continue their travel. These observations led Shepard to park his motorcycle and approach the vehicle. Appellant was asleep in the driver's seat with his head facing upward on the head rest. A strong odor of alcohol emanated from the partially opened driver's window of the vehicle, a vehicle which was in gear and running. Fearing that appellant would take his foot off the brake, Shepard turned off the engine. He then shook appellant to wake him, after which he -3- identified himself as a police officer and showed his badge. Prior to appellant's return to unconsciousness, appellant related that he did not know where he was at and also failed to recite the alphabet as requested by Shepard. The intersection of Lakewood Heights Boulevard and Warren Road borders the cities of Cleveland and Lakewood. Shepard, believing that he and appellant were located in Lakewood, used his cellular telephone to contact the Lakewood Police Department. Lakewood police officers Robert Zbydnowski and Edwin Morley responded to the call. An off-duty police sergeant from Cleveland and a police sergeant from Lakewood also arrived at the scene, and determined that appellant's vehicle was actually situated in the city of Cleveland. Appellant was taken to the First District Police Station following his arrest. After refusing to take a chemical test, appellant was transported to the Second District where he was charged with three violations of the Codified Ordinances of the city of Cleveland. The three charges were driving under the influence, C.C.O. 443.01(A)(1); operating without a chauffeur's license, C.C.O. 535.01; and traffic control signal, C.C.O. 413.03. Appellant filed a motion to suppress in the trial court on February 17, 1995. The motion came on for hearing and was denied on February 23, 1995. Appellant withdrew his previously entered not guilty plea to the charge of driving under the influence on April 6, 1995. In -4- exchange for a no contest plea to that charge, the trial court dismissed the remaining charges. The court sentenced appellant to a 180-day term of incarceration and fined him $1,000 plus court costs. The court suspended 120 days of the 180-day term, and $500 of the fine. Appellant was also ordered to serve a two-year term of active probation. This appeal followed with appellant claiming as error: 1. ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF A WITNESS WHO WAS INCOMPETENT TO TESTIFY[.] 2. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ERRED IN ADMITTING TESTIMONY WHICH FLOWED FROM THAT OF A WITNESS WHO WAS INCOMPETENT TO TESTIFY. 3. ASSIGNMENT OF ERROR NO. 3 THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE. Appellant, in the first assignment of error, challenges the trial court's allowance of Officer Shepard's testimony at the motion to suppress hearing. Appellant, in maintaining that Shepard was incompetent to testify, cites R.C. 4549.14, Evid.R. 601(C), State v. Clark (1983), 10 Ohio App.3d 308, Brookville v. Louthan (1982), 3 Ohio Misc.2d 1 and State v. Maxwell (1978), 60 Ohio Misc. 1, as dispositive authority. Specifically, appellant argues that Shepard's testimony should not have been accepted by the trial court because at the time of the arrest, Shepard was off duty, in plain-clothes, and not riding in a marked police vehicle. -5- Appellant's second assignment of error, in part, contains a piggyback argument. He avers that Officer Zbydnowski's testimony at the suppression hearing stemmed from the incompetent and inadmissible testimony of Officer Shepard. According to appellant, Zbydnowski's testimony was inadmissible under the Exclusionary Rule as the "fruit of the poisonous tree." If this court determines that Shepard's testimony was not incompetent, this portion of appellant's second assignment is not viable. As a preliminary matter, plaintiff-appellee, the city of Cleveland, cites State v. Clark (1983), 10 Ohio App.3d 308, in suggesting that appellant waived these errors for purposes of this appeal. However, Clark was a prosecutor's appeal from the trial court's granting of a motion to suppress. The state argued in one of its assignments that the arresting officer was incompetent to testify at the motion to suppress hearing, but the error was not reviewed because the state failed to raise this objection during the motion hearing. Id., 311-312. Appellant herein called Officers Shepard, Zbydnowski and Morley as witnesses in order to demonstrate their incompetency, as well as the impropriety of the stop. Since appellant called these witnesses at the suppression hearing for these reasons, it is illogical that appellant would have objected to their testimony. See Milnark v. City of Eastlake (1968), 14 Ohio Misc. 185 (objection to testimony of arresting officer based upon incompetency not waived unless officer is allowed to testify without objection after disclosure of facts showing incompetency). -6- This observation also leads to the following inquiry: how can appellant introduce the officers' testimony at the suppression hearing, then claim that the trial court abused its discretion in allowing the testimony. Appellant does not argue that the trial court abused its discretion in finding the witnesses competent and then permitting their testimony at the trial stage because there was no trial. Appellant, however, entered a no contest plea that was accepted by the trial court. In the interests of justice, and since appellant's plea was accepted pursuant to the officers' testimony, we will nonetheless review appellant's first and second assignments of error. Evid.R. 601(C) provides that a police officer is not competent to testify if the following conditions are present: (1) the officer is on duty for the exclusive or main purpose of either enforcing traffic laws, or arresting or assisting in the arrest of a person for a minor misdemeanor traffic violation; and (2) the officer was not using a properly marked motor vehicle, as defined by statute, and/or not wearing a legally distinctive uniform, as 1 defined by statute. The rule reiterates R.C. 4549.14 and 1 R.C. 4549.14 provides: Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws, is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was using a motor vehicle not marked in accordance with section 4549.13 of the Revised Code. -7- 2 4549.16 . The issue before the trial court herein, and now this court, is whether Officer Shepard was "on duty for the exclusive or main purpose of enforcing traffic laws *** at the time of the arrest ***." In determining Shepard's status, this court is mindful of the legislative intent behind the relevant code sections, i.e., the creation of uniformity in police work and the prevention of speed traps and other similar abuses in traffic law enforcement, such as the forcing off the road of a frightened motorist by a stranger. See State v. Heins (1995), 72 Ohio St.3d 504; City of Dayton v. Adams (1967), 9 Ohio St.2d 89; Columbus v. Murchison (1984), 21 Ohio App.3d 75; Columbus v. Stump (1974), 41 Ohio App.2d 81; Clark. If we determine that Shepard was "on duty" for the exclusive or main purpose of traffic law enforcement, he was not a competent witness against appellant. The cases cited by appellant, Clark, Louthan and Maxwell, stand for the proposition that an off-duty officer is incompetent 2 R.C. 4549.16 sets forth: Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was not wearing a distinctive uniform in accordance with section 4549.15 of the Revised Code. -8- to testify against an individual who is arrested for a misdemeanor traffic violation when the officer is not in uniform while driving an unmarked motor vehicle at the time he or she follows or stops the individual. However, a review of cases since then reveals distinguishing factors. In State v. Heatherly (Dec. 21, 1992), Butler App. No. CA92- 05-080, unreported, a police constable observed the defendant driving in an erratic fashion on a divided highway. The constable was off duty, but in uniform, and was driving his personal vehicle. The defendant drove onto the emergency lane after the constable flashed his headlights and honked his horn. The constable noticed a smell of alcohol on the defendant's breath. He administered a series of sobriety tests, after which he informed the defendant that he was being detained until the arrival of an on-duty officer. An officer from the local sheriff's department arrived and administered field sobriety tests. The defendant was then placed under arrest for driving under the influence of alcohol. The defendant filed motions to suppress and in limine in which he argued that the constable was outside his jurisdiction at the time of arrest and was also incompetent to testify under R.C. 4549.14. The trial court denied the motions. In defending the constable's right to offer testimony, the state of Ohio relied on a recent supreme court decision, State v. Huth (1986), 24 Ohio St.3d 114. In Huth, an airport security officer stopped a motorist for a traffic violation on a public road -9- adjacent to airport property. The Huth court, relying on the intent behind R.C. 4549.14 and Evid.R. 601(C), concluded that the airport security officer was competent to testify. The court reasoned that "the phrase 'on duty exclusively or for the main purpose of enforcing [traffic] laws' in R.C. 4549.14 and similar language in Evid.R. 601(C) [refers] to the officer's main purpose for his whole period of duty and not to his duty during the apprehension and arrest of the suspect." Id., 116, citing Stump with approval. Since the officer's primary duty was airport security, not traffic law enforcement, he was competent to testify even though he was not driving a marked vehicle at the time of arrest. Id. In Heatherly, the Court of Appeals for the Twelfth Appellate District nonetheless distinguished Huth. The court stated to this effect: [I]n Huth, the officer was on duty and performing his regular job (i.e., airport security) when he observed the defendant fail to stop at a stop sign. In the instant action, Roland was off duty and driving an unmarked vehicle to his residence at the time he observed appellant driving erratically. Roland came on duty only after he began to follow appellant. See Village of Brookville v. Louthan (C.C. 1982), 3 Ohio Misc.2d 1. Moreover, by following appellant and apprehending him, it is clear that Roland's sole enforcement duty during the entire period of time that he was "on duty" was to enforce a traffic law. The facts clearly show that he was not on duty for any other purpose. See City of Middletown v. O'Connor (June 11, 1984), Butler App. No. CA83-10-111, unreported. Thus, pursuant to R.C. 4549.14 and Evid.R. 601(C), the trial court should have precluded Roland from testifying. *** The same court of appeals revisited Heatherly in Hamilton v. Jacobs (1995), 100 Ohio App.3d 724. A sheriff's deputy was off -10- duty and riding her personal motorcycle when she observed Jacobs' truck operating erratically. The deputy followed the truck. When the truck came to a stop at a stop sign, and the truck's passenger exited the vehicle to check for damage, the deputy pulled alongside, showed her badge, and identified herself. She then advised Jacobs to remain at the stop sign until she called for an officer from the local police department. Id., 726. An officer arrived at the location and spoke with the deputy. When the responding officer approached Jacobs' truck, he noticed a "very strong" odor of alcohol. Further observations, questioning, and the administering of field sobriety tests, led to Jacobs' arrest for driving under the influence of alcohol. Id., 727. Jacobs filed a motion to suppress any testimony by the deputy, arguing that not only was she on duty for the purpose of enforcing traffic laws at the time of the incident, but also assisted in appellant's arrest while wearing plain clothes and using an unmarked vehicle. The trial court denied the motion to suppress that was based upon Evid.R. 4549.14, 4549.16 and Evid.R. 601(C). Id. Jacobs relied on Heatherly in pursing this argument in the court of appeals. However, the Jacobs court, without abandoning its earlier ruling in Heatherly, overruled the decision to the extent that it "concluded that following a vehicle in an unmarked car, without more, constitutes enforcement of traffic laws within the meaning of R.C. 4549.14." Id., 728-729. -11- The difference between Heatherly's arrest and that of Jacobs is illustrated in the following passage: Deputy Jones was off duty at the time she observed appellant driving erratically and began following him. Deputy Jones was not operating a speed trap, nor did she attempt to pull appellant over using an unmarked vehicle. When appellant stopped of his own accord, Deputy Jones showed him her badge and identified herself as a police officer. Deputy Jones then called for an on-duty police officer to respond to the scene. Therefore, we conclude that Deputy Jones was not on duty for the purpose of enforcing traffic laws within the statutory meaning of R.C. 4549.14 and 4549.16. Since the statutory language requires that all elements be met in order to render an officer incompetent to testify, we need not reach the issue of whether or not Deputy Jones assisted in appellant's arrest. The trial court did not err in its finding that Deputy Jones was competent to testify as a witness. (Emphasis added.) Id., 729. As just stated, this quoted passage reveals one distinguishing factor between Heatherly and Jacobs. The officer in Heatherly used an unmarked vehicle to effectuate the defendant's stop whereas the deputy in Jacobs did not approach the suspected vehicle until it was stopped by the driver of his own volition. The distinction, which finds its basis in legislative intent as expressed in Murchison, is also recognized by the Courts of Appeals in the Fourth, Tenth and Eleventh Appellate Districts. See, e.g., State v. Butler (1991), 77 Ohio App.3d 143; State v. Shahan (Dec. 15, 1995), Trumbull App. No. 95-T-5206, unreported; State v. Whitmer (Aug. 16, 1994), Franklin App. No. 94APCO3-455, unreported; State v. Lyon (Mar. 25, 1994), Ashtabula App. No. 93-A-1799, unreported. But, see, State v. Stevens (Dec. 20, 1993), Stark App. No. CA- 9289, unreported. -12- In the within case, there is no dispute that Officer Shepard did not effectuate the appellant's stop with an unmarked vehicle. Shepard observed the stopped vehicle, identified himself as a police officer, showed his badge, then called for an on-duty police officer to respond to the scene. Furthermore, Shepard was not operating a speed trap, nor controlling traffic at the time of his approach to the appellant's stopped vehicle. Under these circumstances, this court fails to find that the officer's testimony was inadmissible under the Rules of Evidence and the Revised Code. Butler; Murchison; Shahan; Jacobs. Appellant's first assignment of error is overruled. As stated supra, appellant relies on a positive outcome from his first assignment to secure a similar result in the second assignment. Even though the incompetency argument is without validity, appellant presents two alternative theories to justify a conclusion that Officer Zbydnowski should not have been allowed to testify at the suppression hearing. These theories are: (1) Officer Zbydnowski's testimony should have been excluded because he related what he learned from Shepard at the site of appellant's arrest, i.e.., inadmissible hearsay; and (2) the Lakewood officer was outside his jurisdiction and thus could not question or administer field sobriety tests in Cleveland. For the same reason that we found curious appellant's argument that the trial court abused its discretion in permitting Officer Shepard's testimony at the suppression hearing, we likewise find his first theory just as curious. Appellant's counsel posed -13- multiple questions to Officer Zbydnowski about what Officer Shepard said to him. In light of this examination, this court cannot in good conscience find that the trial court abused its discretion in allowing the officer's responses. With regard to the remaining theory that Zbydnowski was outside his jurisdiction, the officer's actions were arguably authorized under R.C. 2935.03(E)(3), not the "hot pursuit" statute, R.C. 2935.03(D), as contended by appellant. R.C. 2935.03(E)(3) states that a police officer may detain any person found violating any provision in Chapter 4511 on a street or highway that is located immediately adjacent to the boundaries of the municipal corporation which employs the officer. See State v. Coppock (1995), 103 Ohio App.3d 405 (discussing general requirements of R.C. 2934.03[E][3] applicability). Even assuming that Zbydnowski's actions did not fall within this statute, there was no constitutional violation to which the trial court could have applied the exclusionary rule. See State v. Filler (1995), 106 Ohio App.3d 731; State v. Riggenbach (1994), 97 Ohio App.3d 661; State v. Murchison (1991), 72 Ohio App.3d 840, motion to certify overruled, 61 Ohio St.3d 1427; State v. Wates (July 10, 1990), Franklin App. No. 89AP-1296, unreported. Appellant's second assignment of error is accordingly overruled. The third and final assignment concerns the propriety of the "stop" of appellant's vehicle and his arrest. Appellant first resubmits the erroneous argument that "the court had no competent -14- testimony to justify the stop, search and seizure of any evidence without a warrant" because Officers Shepard and Zbydnowski could not testify at the suppression hearing. He then argues that his arrest was not warranted because the arresting officers did not have a reasonable or articulable reason to suspect he was engaged in criminal activity. Brief investigative stops are valid when a police officer has reasonable suspicion, based on articulable facts, that the detainee engaged in, is engaging in, or is about to engage in criminal activity. See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. A subsequent arrest is constitutionally valid upon the officer's knowledge of facts or circumstances which are sufficient to warrant a prudent man to believe that the detainee committed the suspected offense. See Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. R.C. 4511.19(A)(1) provides that no person shall operate any motor vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. If a person enters a motor vehicle, puts the key into the ignition, and engages the engine, he is operating the vehicle within the meaning contemplated by R.C. 4511.19(A)(1) even if the vehicle is stationary. State v. Cleary (1986), 22 Ohio St.3d 198, paragraph two of the syllabus; see State v. Gill (1994), 70 Ohio St.3d 150; State v. McGlone (1991), 59 Ohio St.3d 122. In the within case, Officer Shepard observed appellant's vehicle at a standstill at a traffic signal. The signal cycled -15- more than once, but appellant's vehicle remained motionless. Shepard pulled over and approached the vehicle. Appellant was sleeping in the driver's seat with the vehicle running and in gear, with his foot on the brake pedal. Shepard noticed a strong odor of alcohol emanating from the partially opened passenger window. Shepard awakened appellant who could not recite the alphabet at the officer's request. Shepard called for an on-duty officer, and Officers Zbydnowski and Morley responded to the call. Appellant could not recite the alphabet for Zbydnowski nor could he balance himself. Given these circumstances, this court finds that the trial court did not err in determining that the officers were warranted in investigating the situation, and in arresting appellant based upon that investigation. See Gill; State v. Smith (1994), 96 Ohio App.3d 130. Appellant's third assignment of error is overruled. Judgment affirmed. -16- 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY MCMONAGLE, J., AND JOHN T. PATTON, J., CONCUR . PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .