State v. Brown , 2021 Ohio 3078 ( 2021 )

[Cite as State v. Brown, 2021-Ohio-3078.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-017
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
GREGORY BROWN,
Trial Court No. 2020 CR 000062
Defendant-Appellant.
OPINION
Decided: September 7, 2021
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Brian A. Smith, Brian A. Smith Law Firm, LLC, 755 White Pond Drive, Suite 403, Akron,
OH 44320 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Gregory Brown, appeals the final judgment of conviction and
sentencing entered by the Lake County Court of Common Pleas on January 21, 2021.
For the reasons set forth herein, the judgment is affirmed.
{¶2} One evening in January 2020, Patrolman Cook happened to be behind a
silver Nissan, later determined to be driven by appellant, travelling southbound on East
286th Street in Wycliffe, Ohio toward Euclid Avenue. The Patrolman testified that he
observed the vehicle turn right onto Euclid Avenue into the leftmost westbound lane,
instead of into the curb lane as required by law. He also testified that the vehicle came
to a stop “past the stop bar and came to a stop in the cross walk prior to turning,” though
he did not mention this violation to appellant at the time.
{¶3} Patrolman Cook initiated a traffic stop and testified that immediately upon
approach he detected a strong odor of marijuana emanating from the vehicle. The vehicle
was thereafter determined to be a rental car rented by one of the occupant’s girlfriend,
but none of the vehicle’s passengers were authorized to operate the vehicle. Therefore,
the vehicle had to be towed and it was necessary to conduct an inventory of the vehicle’s
contents. Additionally, based on the odor of marijuana, Patrolman Cook had probable
cause to conduct a search of the vehicle. The search yielded a baggie of suspected crack
cocaine hidden under the drivers’ seat, a scale with a white powder residue between the
front seats, and a bag of marijuana. Appellant was arrested for possession of drug
paraphernalia; however, he was not cited for any traffic violation.
{¶4} Appellant was indicted on three counts: Counts 1 and 2, Possession of
Cocaine, a felony of the fifth degree, in violation of R.C. 2925.11; and Count 3, Illegal Use
or Possession of Drug Paraphernalia, a misdemeanor of the fourth degree, in violation of
R.C. 2925.14(C)(1). All three counts included forfeiture specifications as set forth in R.C.
2941.1417 and R.C. 2981.04. Initially, appellant pleaded not guilty and filed a Motion to
Suppress, alleging that officers did not have reasonable suspicion to conduct a traffic stop
of his vehicle nor probable cause to arrest him. Following a hearing, the trial court denied
the motion. Appellant then entered a plea of “No Contest.”
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{¶5} The trial court sentenced appellant to two years of community control on
each count to be served concurrently to each other, subject to several sanctions and
conditions not directly relevant here.
{¶6} On appeal, appellant assigns one error for our review, which states:
{¶7} The trial court erred in denying Appellant’s Motion to Suppress, in
violation of Article I, Section 14 of the Ohio Constitution and the
Fourth and Fourteenth Amendments to the United States
Constitution.
{¶8} “An appellate court’s review of a decision on a motion to suppress involves
issues of both law and fact.” State v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068,
2015-Ohio-958, ¶18. “‘When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses.’” State v. Freshwater, 11th Dist. Lake No. 2018-L-
117, 2019-Ohio-2968, ¶4, quoting State v. Burnside, 110 Ohio St.3d 152, 2003-Ohio-
5372, ¶8. As such, the appellate court must accept the trial court’s findings of fact if they
are supported by competent, credible evidence. State v. Jones, 11th Dist. Ashtabula No.
2001-A-0041, 2002-Ohio-6569, ¶16, citing State v. Guysinger, 86 Ohio App.3d 592, 594
(4th Dist.1993). “Accepting these findings of facts as true, a reviewing court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether they meet the appropriate legal standard.” Jones, supra, citing State
v. Curry, 95 Ohio App.3d 93, 96 (8th Dist.1994).
{¶9} Under this assignment of error, appellant argues that neither of the traffic
violations provided Patrolman Cook with sufficient reasonable suspicion to stop the
vehicle. It is well established that “[a]n officer’s observation of a traffic violation provides
probable cause to stop a vehicle.” Freshwater, supra, at ¶7, citing Eggleston, supra, at
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¶20. At the suppression hearing, the Patrolman testified to two traffic violations: stopping
beyond the stop bar and improper turn. Appellant challenges both.
{¶10} First, he challenges the stop bar violation on the grounds that the Wickliffe
City Ordinance 331.18(a) conflicts with R.C. 4511.43(A), and argues that applying W.C.O.
331.18(a), he did not commit any traffic violation.
{¶11} R.C. 5411.43(A), which discusses violations pertaining to a stop sign, states
in pertinent part:
{¶12} Except when directed to proceed by a law enforcement officer, every
driver of a vehicle or trackless trolley approaching a stop sign shall
stop at a clearly marked stop line, but if none, before entering the
crosswalk on the near side of the intersection, or, if none, then at the
point nearest the intersecting roadway where the driver has a view
of approaching traffic on the intersecting roadway before entering it.
* * * Id.
{¶13} However, W.C.O. 331.18, entitled Operation of Vehicle at Yield Signs,
pertains not to stop signs, but yield signs; thus R.C. 5411.43(A) and W.C.O. 331.18 are
incomparable. Further, as appellant was stopped for a stop bar violation, W.C.O. 331.18
is entirely inapplicable here. The Wickliffe ordinance pertaining to stop signs is W.C.O.
331.19 and is near verbatim to R.C. 4511.43(A), with the only difference pertaining to the
application to trackless trollies. Thus, appellant’s argument of a material discrepancy
between the Wickliffe City Ordinance and the Ohio Revised Code regarding stop signs is
mistaken.
{¶14} Appellant also challenges the Patrolman’s ability to see the stop sign
violation due to his location behind appellant and the late time of day. Though it was after
sunset, the Patrolman was about a car and half length behind appellant. The Patrolman
testified that he was able to see the violation and was familiar with the area. Given that
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the trial court was in the best position to determine the veracity of the Patrolman’s
statements and that nothing in the record contradicted his testimony, we determine the
trial court’s finding is supported by competent, credible evidence. Thus, we find no
reversible error on these grounds.
{¶15} Second, appellant challenges the improper turn violation. He does not
dispute that he turned from the southbound curb lane into the leftmost westbound lane,
but instead asserts the Patrolman committed a mistake of law as to the turn violation.
R.C. 4511.36(A) states in pertinent part:
{¶16} The driver of a vehicle intending to turn at an intersection shall be
governed by the following rules:
{¶17} (1) Approach for a right turn and a right turn shall be made as close
as practicable to the right-hand curb or edge of the roadway.
{¶18} Appellant argues that the law does not absolutely require a turn into the
curb lane and that the state failed to show that it was practicable for appellant to turn into
the curb lane. The statute, however, states the turn “shall be” made as close as
practicable to the curb. Thus, unless there is an obstruction, a driver must turn into the
curb lane. After being shown pictures of the intersection in question, Patrolman Cook
testified that the condition of the roadway in the pictures were the same as they were on
the night in question. The pictures clearly depict no obstruction or reason why it would
not have been practicable for appellant to turn into the curb lane. Thus, we find
appellant’s contentions to be without merit.
{¶19} As either violation alone would have allowed the Patrolman to legally stop
the vehicle, we find the court did not err in denying the motion to suppress. Appellant’s
sole assignment of error is without merit.
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{¶20} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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