State v. Howard , 2022 Ohio 3958 ( 2022 )

[Cite as State v. Howard, 2022-Ohio-3958.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0034
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN D. HOWARD WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 TR-C 000874
DECISION AND JOURNAL ENTRY
Dated: November 7, 2022
HENSAL, Judge.
{¶1} John Howard appeals a judgment of the Wayne County Municipal Court that denied
his motion to suppress. For the following reasons, this Court affirms.
I.
{¶2} Trooper Josiah Custer testified that he was on patrol at night in Wooster Township
when he observed the right two wheels of a vehicle go off the roadway as it was making a left turn
from U.S. 30 onto Fry Road. The trooper turned his lights on and then watched the vehicle drive
on the yellow line between the lanes of traffic on Fry Road. According to Trooper Custer, his
patrol vehicle has a dash camera that begins to record from 60 seconds before he activates his
lights. He testified that, because of the angle of the camera, it did not capture the violation he
observed. He explained that, whereas the camera captures the vehicle “kind of off towards the
right[ ] side of the road, kind of coming back,” he “was able to see the entire culmination of the
events where [the vehicle] actually did go off the road.” The trooper acknowledged that the right
2
tires of the vehicle appear to be off the roadway at the 1:25 mark of the video and that its left tires
are completely on the double yellow line at the 1:28 mark.
{¶3} After making his observations, Trooper Custer stopped the vehicle, which was
being driven by Mr. Howard. Upon further investigation, Trooper Custer arrested Mr. Howard for
operating under the influence (“OVI”). He also cited him for a marked lanes violation. Mr.
Howard moved to suppress the evidence against him, arguing that Trooper Custer did not have
reasonable articulable suspicion to stop him. Following a hearing, the municipal court denied the
motion, finding that Trooper Custer had probable cause to stop Mr. Howard’s vehicle.
Specifically, the court found that Mr. Howard committed a traffic violation prior to the stop, which
was going off the right side of the roadway while making a left turn onto Fry Road. The court
found that a violation was visible at the 1:25 mark of the dash camera video. The court also found
that the trooper conducted field sobriety tests appropriately and that there was probable cause to
arrest Mr. Howard for suspected OVI. The court further found that Trooper Custer substantially
complied with the regulations for urine screening.
{¶4} Following the denial of his motion to suppress, Mr. Howard pleaded no contest to
one count of OVI. The municipal court found him guilty of the offense and sentenced him to 120
days in jail. It also fined him $1,200 and suspended his driver’s license for five years. Mr. Howard
has appealed, assigning as error that the municipal court incorrectly denied his motion to suppress.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS BECAUSE THE ARRESTING OFFICER DID NOT HAVE
REASONABLE ARTICULABLE SUSPICION TO STOP AND DETAIN HIIM.
3
{¶5} Mr. Howard argues that the traffic stop was unconstitutional because Trooper
Custer did not have reasonable articulable suspicion to stop and detain him. A motion to suppress
evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court
“must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “Accepting these facts as true,
the appellate court must then independently determine, without deference to the conclusion of the
trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,
124 Ohio App.3d 706, 710 (4th Dist.1997). Accordingly, this Court grants deference to the trial
court’s findings of fact but conducts a de novo review of whether the trial court applied the
appropriate legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶
12 (9th Dist.).
{¶6} “[A] traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.”
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7. The officer “must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.” (Alteration in original). State v. Jenkins, 9th Dist. Lorain No.
15CA010826, 2016-Ohio-5190, ¶ 6, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). “[T]he
propriety of an investigative stop by a police officer must be viewed in light of the totality of the
surrounding circumstances.” Mays at ¶ 7, quoting State v. Freeman, 64 Ohio St.2d 291 (1980), at
paragraph one of the syllabus. “[I]f an officer’s decision to stop a motorist for a criminal violation,
4
including a traffic violation, is prompted by a reasonable and articulable suspicion considering all
the circumstances, then the stop is constitutionally valid.” Id. at ¶ 8.
{¶7} According to Trooper Custer, he stopped Mr. Howard because he saw him commit
a marked lanes violation. Ohio Revised Code Section 4511.33(A)(1) provides that, if a road “has
been divided into two or more clearly marked lanes for traffic, * * * [a] vehicle * * * shall be
driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first ascertained that such movement can be made
with safety.”
{¶8} At the conclusion of the suppression hearing, the municipal court found that,
because the dash camera was mounted in a particular location, it could not capture everything that
Trooper Custer saw, including when Mr. Howard turned left while the trooper was still on Route
30. The court found credible the trooper’s testimony that he saw Mr. Howard travel off the right
side of the roadway. The court also explained that, when Mr. Howard’s vehicle does come back
into view of the dash camera “you can see the * * * back right tire at least kind of popping out of
the portion that the truck, the back of the truck bounces a bit as it is coming back out of the portion
of the roadway where it had been off previously.” Following the hearing, the municipal court
issued a written decision that incorporated its findings from the suppression hearing. It also wrote
that Mr. Howard committed a traffic violation before the stop, “namely going off the right side of
the roadway while making a left turn * * * [t]his is visible at approximately one minute twenty
five seconds (1:25) on [the video].”
{¶9} Mr. Howard argues that the video belies the municipal court’s finding that he
committed a traffic violation. Trooper Custer testified, however, that the violation was not
captured by the dash camera, which the municipal court found credible. As Mr. Howard’s vehicle
5
re-enters the view of the dash camera as the trooper turned onto Fry Road to follow him, Mr.
Howard’s vehicle is on the far right side of the roadway and the back of the vehicle bounces in a
way that is consistent with part of the vehicle coming back onto the roadway. Accordingly, upon
review of the record, Mr. Howard has not established that the municipal court’s factual findings
are not supported by competent credible evidence.
{¶10} Mr. Howard also argues that he could not commit a marked lanes violation on Fry
Road because it is not divided into two or more clearly marked lanes for traffic. Mr. Howard
appears to mistakenly believe that the roadway in question must have multiple lanes headed in the
same direction. Section 4511.33(A), however, indicates that it applies whenever a roadway “has
been divided into two or more clearly marked lanes for traffic” or whenever “traffic is lawfully
moving in two or more substantially continuous lines in the same direction[.]” Fry Road is
divided into multiple lanes, one for northbound traffic and one for southbound traffic, which are
separated by a double yellow line. As the State has argued, although there was no fog line along
the right side of the road, a vehicle travelling partially off the roadway would not be driving
“entirely within a single lane or line of traffic” as required by Section 4511.33(A)(1).
{¶11} Mr. Howard has also challenged the credibility of Trooper Custer, particularly how
the trooper ended up behind him as he was turning on to Fry Road. Mr. Howard argues that the
trooper was not just on routine patrol but spotted a vehicle that looked like his as it exited the
parking lot of a bar and decided to follow him. The trooper lost the vehicle at one point and had
to travel at 100 miles per hour in order to catch up. The municipal court, however, was in the best
position to evaluate whether Trooper Custer was credible when he testified that he saw Mr. Howard
commit a marked lanes violation.
6
{¶12} Upon review of the record, we conclude that the municipal court did not err when
it determined that the trooper had reasonable articulable suspicion to initiate a traffic stop.
Accordingly, Mr. Howard has not established that the trial court incorrectly denied his motion to
suppress. Mr. Howard’s assignment of error is overruled.
III.
{¶13} Mr. Howard’s assignment of error is overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
7
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
BRENT L. ENGLISH, Attorney at Law, for Appellant.
DAVID R. LUTZ, Prosecuting Attorney, and SHANNON PARKER, Assistant Prosecuting
Attorney, for Appellee.