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State v. Lambrecht11/4/2005
DECISION AND JUDGMENT ENTRY
{ } Defendant-appellant, Scott Lambrecht, appeals the December 3, 2004 judgment entry of the Perrysburg Municipal Court which, following a no contest plea, found appellant guilty of operating a motor vehicle while under the influence of alcohol. For the reasons that follow, we affirm the trial court's decision.
{ } On April 2, 2004, appellant was charged with operating a motor vehicle while under the influence of alcohol, a violation of R.C. 4511.19(A)(1). On May 4, 2004, appellant filed a motion to suppress the B.A.C. DataMaster results on the ground that the officer did not have probable cause to arrest appellant. Following a hearing, the trial court denied the motion. Appellant then entered a no contest plea and the trial court found him guilty. This appeal followed.
{ } Appellant now raises the following two assignments of error:
{ } "Appellant's first assignment of error
{ } "The trial court erred in denying appellant's motion to suppress when the investigating officer did not possess a reasonable and articulable suspicion to justify a stop and detention of the appellant, and as is required under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Constitution of the state of Ohio.
{ } "Appellant's second assignment of error
{ } "The trial court erred in finding that the appellant was operating a vehicle while under the influence of alcohol (OVI) pursuant to Ohio Revised Code 4511.19 as this finding was not supported by competent and credible evidence and the trial court did not meet the applicable legal standard."
{ } At the outset we note that the suppression hearing was not recorded. On January 18, 2005, appellant, pursuant to App.R. 9(C), filed a statement of the evidence in the trial court. On January 19, 2005, the state filed its own App.R. 9(C) statement of the evidence. The trial court presumably approved both statements of the evidence by signing the orders prepared by each of the parties adopting their respective statements of the evidence. However, contrary to such approval, the court then submitted its own statement of the evidence pursuant to App.R. 9(C). A trial court is permitted to reject an appellant's 9(C) statement by filing its own statement of the evidence. Covey v. Natural Foods, Inc., 6th Dist. No. L-03-1111, 2004-Ohio-1336, citing State ex rel. Fant v. Trumbo (1986), 22 Ohio St.3d 207, 208. See, also, In re Davis, 8th Dist. No. 82233, 2003-Ohio-5074, at 28-33. Where a trial court submits its own statement of the evidence for appeal purposes, the reviewing court, pursuant to App.R. 12(A), is bound to accept the trial court's statement of the evidence. State v. Dickard (1983), 10 Ohio App.3d 293, 295. After careful review, we find that the trial court's act of filing its own statement of the evidence acted as a tacit rejection of appellant's 9(C) statement; accordingly, we will rely on the trial court's statement of the evidence.
{ } We now turn to the merits of appellant's appeal. In his first assignment of error, appellant argues that the trial court erroneously denied his motion to suppress where the officer did not have a reasonable and articulable suspicion to initiate a traffic stop. In response, the state contends that this argument has been waived because it was not raised in the trial court.
{ } When reviewing a trial court's ruling on a motion to suppress, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594. An appellate court must independently
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