[Cite as State v. Gonzaliz, 2013-Ohio-5309.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
ELVIS GONZALIZ : Case No. 2013CA00077
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton
Municipal Court, Case No.
2013TRC0766
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 2, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TASHA FORCHIONE JOHN SIVINSKI
Assistant City Prosecutor BRIAN J. SMITH
218 Cleveland Ave. S.W. JEREMY M. SAMUELS
P.O. Box 24218 Sivinski & Smith, LLC
Canton, OH 44702 8905 Lake Ave, 4th Floor
Cleveland, OH 44102
Stark County, Case No. 2013CA00077 2
Baldwin, J.
{¶1} Appellant Elvis Gonzaliz appeals a judgment of the Canton Municipal
Court overruling his motion to suppress and convicting him of driving with a prohibited
breath alcohol content (R.C. 4511.19(A)(1)(h)) and driving outside marked lanes (R.C.
4511.33) upon a plea of no contest. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On February 11, 2013, Sergeant David Garber of the Ohio State Highway
Patrol was on routine patrol on State Route 800, also known as Cleveland Avenue, in
Canton, Ohio. At 12:48 a.m. he observed a Kia Sorento without a front plate. He
turned to make a stop for the front plate violation. As he attempted to catch up with the
vehicle, he saw the car travel over the white dotted line separating the lanes by
approximately a quarter width of the vehicle. He noted that the vehicle’s headlights
were at least across the white line.
{¶3} Sgt. Garber activated his overhead lights. The Kia Sorento, driven by
appellant, turned into a pancake restaurant. As the officer followed appellant into the
parking lot, he noted that the back of the vehicle had a Florida plate, and he was aware
that Florida does not require a front license plate. Upon encountering appellant, Sgt.
Garber noted a strong odor of alcohol inside the vehicle, and appellant had glassy,
bloodshot eyes. After administering field sobriety tests, appellant was arrested for
operating a motor vehicle while intoxicated. Appellant consented to a breath test and
the result was .198.
{¶4} Appellant was charged with operating a motor vehicle while intoxicated,
operating a motor vehicle with a prohibited breath alcohol content and driving outside
Stark County, Case No. 2013CA00077 3
marked lanes. He moved to suppress on the basis that the officer lacked a reasonable
suspicion of criminal activity to stop his vehicle. He also filed an appeal of his
Administrative License Suspension (ALS) on the same basis. The trial court overruled
the motion to suppress. The state consolidated the OVI charges and appellant pled no
contest to a violation of R.C. 4511.191(A)(1)(h) and driving outside marked lanes. He
was fined $375 on the OVI conviction and sentenced to 180 days incarceration with all
but six days suspended, and he was to serve those six days in Oriana House. On the
marked lanes violation he was ordered to pay costs.
{¶5} Appellant assigns two errors on appeal:
{¶6} “I. THAT THE CANTON MUNICIPAL COURT OVERRULED MR.
GONZALIZ’ MOTION TO SUPPRESS EVIDENCE THAT WAS OBTAINED AS A
RESULT OF A TRAFFIC STOP THAT WAS NOT SUPPORTED BY REASONABLE
SUSPICION THAT A TRAFFIC VIOLATION HAD OCCURRED.
{¶7} “II. THAT THE CANTON MUNICIPAL COURT SHOULD NOT HAVE
DENIED MR. GONZALIZ’ APPEAL OF ADMINISTRATIVE LICENSE SUSPENSION
SINCE THE SUSPENSION WAS A RESULT OF EVIDENCE OBTAINED FROM A
TRAFFIC STOP NOT SUPPORTED BY REASONABLE SUSPICION THAT A TRAFFIC
VIOLATION HAD OCCURRED.”
I.
{¶8} Appellant argues that the court erred in overruling his motion to suppress.
He argues that the officer did not have a reasonable suspicion of criminal activity to
justify stopping him because the officer failed to determine whether appellant had first
Stark County, Case No. 2013CA00077 4
ascertained the safety of changing lanes, and the officer’s testimony that appellant
crossed the white line is not supported by the video recording of the stop.
{¶9} R.C. 4511.33(A) provides:
{¶10} “(A) Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, or wherever within municipal corporations traffic is lawfully
moving in two or more substantially continuous lines in the same direction, the following
rules apply:
{¶11} “(1) A vehicle or trackless trolley 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.”
{¶12} Appellant argues that if there is no traffic in the other lane, there is no
violation because the movement can be made with safety. The Ohio Supreme Court
has rejected appellant’s argument that an officer does not have to have a reasonable
suspicion of criminal activity to justify stopping a vehicle for a marked lanes violation if
the move could be made with safety:
{¶13} “Appellant further argues that the stop was unjustified because there was
no reason to suspect that he had failed to first ascertain that leaving the lane could be
done safely or that he had not stayed within his lane ‘as nearly as [was] practicable,’
within the meaning of R.C. 4511.33(A)(1). R.C. 4511.33 does provide for certain
circumstances in which a driver can cross a lane line without violating the statute.
However, the question of whether appellant might have a possible defense to a charge
of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has a
Stark County, Case No. 2013CA00077 5
reasonable and articulable suspicion to initiate a traffic stop. An officer is not required to
determine whether someone who has been observed committing a crime might have a
legal defense to the charge.
{¶14} “R.C. 4511.33(A)(1) provides that a driver must remain within the lane
markings ‘as nearly as is practicable’ and that a driver shall not move from a lane ‘until
the driver has first ascertained that such movement can be made with safety.’ The
phrase ‘as nearly as is practicable’ does not give the driver the option to remain within
the lane markings; rather, the phrase requires the driver to remain within the lane
markings unless the driver cannot reasonably avoid straying.” State v. Mays, 119 Ohio
St. 3d 406, 894 N.E.2d 2104, 2008-Ohio-4538, ¶17-18.
{¶15} Therefore, upon observing appellant drift over the lane dividing line and
then back into his own lane, Sgt. Garber did have a reasonable suspicion of criminal
activity to justify stopping appellant, even though appellant might have had a possible
defense to the charge in that the movement could be made safely.
{¶16} Appellant also argues that because the video of the stop does not show
the violation, the trooper’s credibility is in question and at best the violation was de
minimis. At the time the violation would appear on the video, appellant’s vehicle was
well in front of the cruiser, and due to glare of streetlights on the roadway it is virtually
impossible to see the white lane markings in the area where appellant’s vehicle was
traveling. The trooper testified that he observed appellant cross the line by about a
quarter width of the vehicle. The judge is in the best position to determine the credibility
of witnesses. See State v. Burnside, 100 Ohio St.3d 152, 154-55, 797 N.E.2d 71, 74
(2003). The fundamental rule that weight of evidence and credibility of witnesses are
Stark County, Case No. 2013CA00077 6
primarily for the trier of fact applies to suppression hearings as well as trials. State v.
Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584 (1982). The trooper’s testimony
represents competent, credible evidence that appellant was not traveling within the
lanes marked for travel. As the video was unclear and inconclusive, the trial court did
not err in finding the testimony of the trooper to be credible.
{¶17} The first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues the court erred in
overruling his ALS appeal.
{¶19} An administrative license suspension terminates when the defendant is
convicted after entering a plea of no contest to the offense. R.C. 4511.191(B)(2).
Accordingly, appellant’s second assignment of error is moot. State v. Kanavel, 5th Dist.
Licking No. 2010–CA–131, 2011-Ohio-1711, ¶43-44, citing State v. Williams, 76 Ohio
St.3d 290, 667 N.E.2d 932, 1996–Ohio–408 at para. 2 of the syllabus.
{¶20} The second assignment of error is overruled.
Stark County, Case No. 2013CA00077 7
{¶21} The judgment of the Canton Municipal Court is affirmed. Costs assessed
to appellant.
By: Baldwin, J.
Farmer, P. J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. SHEILA G. FARMER
HON. JOHN W. WISE
CRB/rad
[Cite as State v. Gonzaliz, 2013-Ohio-5309.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
ELVIS GONZALIZ :
:
Defendant - Appellant : CASE NO. 2013CA00077
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court is affirmed. Costs assessed to appellant.
HON. CRAIG R. BALDWIN
HON. SHEILA G. FARMER
HON. JOHN W. WISE