[Cite as State v. Swint, 2019-Ohio-1607.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2018 CA 00115
ALEXANDER SWINT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2018 TRC 1737
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 29, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES-AYLWARD AARON KOVALCHIK
CANTON LAW DIRECTOR 116 Cleveland Avenue, NW
JASON P. REESE Suite 808
CANTON CITY PROSECUTOR Canton, Ohio 44702
BEAU WENGER
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Canton, Ohio 44702
Stark County, Case No. 2018 CA 00115 2
Wise, J.
{¶1} Appellant Alexander Swint appeals his conviction for operating a vehicle
while impaired, marked lanes violation, and speeding, following a plea of no contest in
the Canton Municipal Court.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} This matter arises from a traffic stop which resulted in Appellant being
charged with violations of OVI, marked lanes and speeding:
{¶4} On March 4, 2018, at 1:36 a.m., Ohio State Highway Patrol Trooper Evan
Hill was traveling east on 12th Street in the city of Canton, when he observed Appellant's
vehicle pull out of a parking lot onto 12th Street, also traveling east. About the same time,
another vehicle turned onto 12th Street going east between the trooper's vehicle and
Appellant's vehicle. As all three vehicles traveled on 12th street, the trooper saw the
vehicle in front of him maintain its lane of travel while Appellant's vehicle crossed over to
the other lane of travel. The trooper observed Appellant's vehicle's tail lights "go way to
the left" of the center line. Shortly after the violation, the vehicle in between turned off of
12th Street, which then allowed the trooper to observe Appellant's vehicle accelerate away
from him at a rate which he perceived to be above the 35 mph speed limit. The trooper
then activated his in-car radar to pace Appellant's speed at 50 mph. After the trooper
caught up to Appellant, he pulled Appellant over for the marked-lanes violation and the
speeding violation.
{¶5} As a result of the stop, Appellant was charged with one count of OVI, in
violation of R.C. §4511.19(A)(1)(D) and R.C. §4511.19(A)(1)(A), speeding, in violation of
Stark County, Case No. 2018 CA 00115 3
R.C. §4511.21, and Left of Center, in violation of R.C. §4511.25.
{¶6} A suppression hearing was held on June 29, 2017, concerning the issue of
whether or not there was reasonable and articulable suspicion for the stop of Appellant's
vehicle. At the hearing, Trooper Evan Hill testified that he made a traffic stop of Appellant
at 12th St. and Gibbs Avenue. (Supp. T. at 5). Trooper Hill stated that he believed
Appellant was operating his vehicle left of center because Appellant's tail light was not in
line with another vehicle's taillight that was between Appellant and Trooper Hill. (Supp. T.
at 5). Trooper Hill further stated that he believed Appellant was traveling left of center
because the vehicle that was between him and Appellant was traveling in a straight line.
(Id.). Trooper Hill also testified that he paced Appellant's vehicle traveling at 50 mph in a
35 mph zone. (Id.). Upon cross-examination Trooper Hill testified that Appellant
immediately got back in his lane after being left of center. (Supp. T. at 11). Trooper Hill
further admitted that he did not use his radar to determine the speed of Appellant's
vehicle. (Id).
{¶7} Appellant also testified at the Suppression Hearing. Appellant testified that
he did not operate his vehicle left of center. (Supp. T. at 15). Appellant further testified
that his vehicle could not have been going over 50 mph because it was having mechanical
difficulties that prevented it from reaching such speed. (Id.).
{¶8} By Judgment Entry filed June 29, 2018, the trial court overruled Appellant's
Motion to Suppress.
{¶9} On July 10, 2018, Appellant entered a plea of No Contest.
{¶1} It is from this conviction Appellant now appeals, raising the following error
for review.
Stark County, Case No. 2018 CA 00115 4
ASSIGNMENT OF ERROR
{¶2} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S
MOTION TO SUPPRESS.”
I.
{¶3} In his sole assignment of error, Appellant claims the trial court erred in
denying his motion to suppress. We disagree.
Standard of Review
{¶4} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),
1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),
86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the
appropriate test or correct law to the findings of fact. In that case, an appellate court can
reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio
App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest
weight of the evidence and it has properly identified the law to be applied, an appellant
may argue the trial court has incorrectly decided the ultimate or final issue raised in the
motion to suppress. When reviewing this type of claim, an appellate court must
independently determine, without deference to the trial court's conclusion, whether the
facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95
Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United
States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, "…as a
Stark County, Case No. 2018 CA 00115 5
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal."
The Traffic Stop
{¶5} The Ohio Supreme Court has emphasized that probable cause is not
required to make a traffic stop; rather the standard is reasonable and articulable
suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶ 23.
Reasonable suspicion constitutes something less than probable cause. State v. Carlson
(1995), 102 Ohio App.3d 585, 590. The propriety of an investigative stop must be viewed
in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177,
paragraph one of the syllabus. In a situation where the officer has observed a traffic
violation, the stop is constitutionally valid. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9,
665 N.E.2d 1091. In sum, “ ‘ * * * if an officer's decision to stop a motorist for a criminal
violation, including a traffic violation, is prompted by a reasonable and articulable
suspicion considering all the circumstances, then the stop is constitutionally valid.’ ” State
v. Adams, 5th Dist. Licking No. 15 CA 6, 2015–Ohio–3786, ¶ 23, quoting State v. Mays,
119 Ohio St.3d 406, 894 N.E.2d 1204, 2008–Ohio–4539, ¶ 8. Further, neither the United
States Supreme Court nor the Ohio Supreme Court considered the severity of the offense
as a factor in determining whether the law enforcement official had a reasonable,
articulable suspicion to stop a motorist. Whren v. United States, 517 U.S. 806, 116 S.Ct.
1769, 135 L.Ed.2d 89(1996); City of Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d
1091(1996).
{¶6} In the case at bar, the record establishes that the trial court had before it the
testimony of Trooper Hill, who stated that he witnessed Appellant drive his vehicle “way
Stark County, Case No. 2018 CA 00115 6
to the left” and beyond the double yellow center line. (Supp. T. at 6). He further stated
that he was able to see the taillights of Appellant’s vehicle to the left of the tail lights of
the vehicle travelling between them. (Supp. T. at 9).
{¶7} It is well-established that an officer's reasonable articulable suspicion does
not require proof beyond a reasonable doubt that the defendant's conduct has satisfied
the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103, 2015–Ohio–
3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (8th
Dist.1997)
{¶8} Based on the above facts, the trial court found that the officer had a
reasonable, articulable suspicion to stop the Appellant. The judge is in the best position
to determine the credibility of witnesses, and his conclusion in this case is supported by
competent facts. 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
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).
{¶9} The officer’s testimony represents competent, credible evidence that
Appellant had committed these traffic violations, therefore, the factual finding of the trial
court is not clearly erroneous.
{¶10} We accept the trial court's conclusion that the officer had reasonable
suspicion to stop Appellant’s vehicle because the factual findings made by the trial court
are supported by competent and credible evidence. Thus, the trial court did not err when
it denied Appellant’s motion to suppress on the basis that the initial stop of his vehicle
was valid. State v. Busse, 5th Dist. No. 06 CA 65, 2006-Ohio-7047, ¶ 20.
Stark County, Case No. 2018 CA 00115 7
{¶11} Accordingly, Appellant’s sole assignment of error is overruled.
{¶12} For the reasons stated in the foregoing opinion, the judgment of the Canton
Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 0424