[Cite as State v. Belvin, 2014-Ohio-3634.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25987
v. : T.C. NO. 13CR1988
DANIEL C. BELVIN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of August , 2014.
..........
APRIL CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 W. Second Street, Suite 603, Dayton, Ohio
45402
Attorney for Defendant-Appellant
DANIEL C. BELVIN, 5508 Bigger Road, Apt. G., Dayton, Ohio 45440
Defendant-Appellant
..........
FROELICH, P.J.
[Cite as State v. Belvin, 2014-Ohio-3634.]
{¶ 1} After the trial court overruled his motion to suppress evidence, Daniel
C. Belvin pled no contest to improper handling of a firearm in a motor vehicle (loaded/no
license), a fourth-degree felony. The trial court found him guilty and imposed mandatory
community control for a period not to exceed five years. Belvin appeals from his
conviction. For the following reasons, the trial court’s judgment will be affirmed.
{¶ 2} Belvin’s appellate counsel filed a brief under Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the
record and the law, he found no potentially meritorious issues for appeal. Counsel set forth
one potential assignment of error, namely that the trial court misinterpreted R.C. 4511.37,
the statute regarding U-turns, and should have granted the motion to suppress. By entry, we
informed Belvin that his attorney had filed an Anders brief on his behalf and granted him 60
days from that date to file a pro se brief. To date, no pro se brief has been filed. The
matter is now before us for our independent review of the record. Penson v. Ohio, 488 U.S.
75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{¶ 3} Appellate counsel’s sole assignment of error concerns the trial court’s denial
of Belvin’s motion to suppress. The evidence at the suppression hearing established that in
the “very, very early” morning hours of July 1, 2013, Belvin was driving westbound on
Needmore Road, a divided four-lane road, and made a U-turn from the left turn lane at the
intersection of Needmore Road and Northcrest Drive. Dayton Police Officers Patterson and
Fero were parked in a marked cruiser in a parking lot located at that intersection, less than
100 feet away, and they observed Belvin’s U-turn. The officers believed that Belvin had
made an illegal U-turn, because the intersection was at “the beginning of a graded curve,”
and the road curved down as it continued westward. Officer Patterson testified that
3
Belvin’s vehicle would not be visible to oncoming traffic (coming up the hill and curve)
within 500 feet. (On cross-examination, Officer Patterson reviewed a video created, after
the fact, by Belvin, which showed the topography and distances between Northcrest Drive
and Frederick Pike, the next major intersection heading westbound on Needmore Road.)
The intersection did not have a “No U-Turn” sign.
{¶ 4} The officers followed Belvin’s vehicle to a nearby gas station where Belvin
stopped. The officers initiated a traffic stop. Within seconds of approaching the passenger
side of the vehicle, Officer Patterson observed a shotgun lying on the floor behind the front
seats. The officer retrieved the weapon and found it was loaded. Belvin was subsequently
charged with improper handling of a firearm in a motor vehicle.
{¶ 5} Belvin testified at the suppression hearing and acknowledged that he had
made the U-Turn. He stated that, approaching the intersection from the west, he would be
able to see all four lanes and the median from “at least almost two football fields,” which he
clarified to be approximately one and three-quarters football fields. Belvin stated that, “[i]f
anyone was on that road at that time, I would have been able to see their headlights with well
enough distance.”
{¶ 6} Belvin moved to suppress the evidence, claiming that the police lacked
“probable cause” to initiate the traffic stop. The trial court denied the motion, concluding
Officer Patterson had probable cause to believe that Belvin had violated the U-turn statute,
which justified the stop. The court found that the gun was in plain view, and there were no
Fourth Amendment violations in the stop or the observation of the shotgun.
{¶ 7} In addressing a motion to suppress, the trial court assumes the role of the
4
trier of fact. State v. Morgan, 2d Dist. Montgomery No. 18985, 2002-Ohio-268, citing State
v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The court must
determine the credibility of the witnesses and weigh the evidence presented at the hearing.
Id. In reviewing the trial court’s ruling, an appellate court must accept the findings of fact
made by the trial court if they are supported by competent, credible evidence. Id.
However, “the reviewing court must independently determine, as a matter of law, whether
the facts meet the appropriate legal standard.” Id.
{¶ 8} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). A police officer may stop and detain a motorist when he or
she has a reasonable and articulable suspicion that the motorist has committed, is
committing, or is about to commit any criminal offense, including a traffic offense, and no
independent reasonable and articulable suspicion of other criminal activity is required under
Terry. State v. Stewart, 2d Dist. Montgomery No. 19961, 2004-Ohio-1319, ¶ 13; Dayton v.
Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996). We determine the existence of
reasonable suspicion by evaluating the totality of the circumstances, considering those
circumstances “through the eyes of the reasonable and prudent police officer on the scene
who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No. 19323,
2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271
(1991). The officer must have more than an inchoate hunch or suspicion to justify an
investigatory stop.
{¶ 9} R.C. 4511.37(A), which governs U-turns, provides:
5
(A) Except as provided in section 4511.13 and division (B) of this section, no
vehicle shall be turned so as to proceed in the opposite direction upon any
curve, or upon the approach to or near the crest of a grade, if the vehicle
cannot be seen within five hundred feet by the driver of any other vehicle
approaching from either direction.
Officer Patterson testified that oncoming traffic would not be able to see Belvin’s U-turn
while within 500 feet, whereas Belvin testified that oncoming traffic could see
approximately one and three-quarters football fields (or approximately 525 feet).
{¶ 10} In denying Belvin’s motion, the trial court noted that Officer Patterson
testified that he believed that oncoming traffic could not have clearly seen Belvin’s vehicle
and that a violation of R.C. 4511.37(A) had occurred. The court found that, from the video,
“it’s reasonable to conclude that a reasonable officer would have believed that a violation of
this statute occurred.” Although probable cause is not required, the court concluded that
probable cause existed for the stop. Given Officer Patterson’s testimony and the evidence
concerning the topography of the area involved, we find no potentially meritorious argument
that the trial court erred in concluding that the traffic stop was justified. We further
conclude that any claim based on the officers’ seizure of the shotgun would be frivolous.
{¶ 11} In accordance with Penson, we have independently reviewed the entire
record, including Belvin’s plea hearing and sentencing. Based on our review, we agree with
appellate counsel that there are no potentially meritorious issues for appeal and that this
appeal is wholly frivolous. The trial court’s judgment will be affirmed.
..........
6
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
April Campbell
John S. Pinard
Daniel C. Belvin
Hon. Mary Katherine Huffman
State v. Belvin
Combined Opinion