State v. Anthony

[Cite as State v. Anthony, 2009-Ohio-6717.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-09-26

v.

BRIAN J. ANTHONY, OPINION

DEFENDANT-APPELLANT.

Appeal from Tiffin Municipal Court
Trial Court No. 09 TRC 00774 A

Judgment Affirmed

Date of Decision: December 21, 2009

APPEARANCES:

Richard A. Kahler for Appellant

Richard A. Palau for Appellee
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PRESTON, P.J.

{¶1} Defendant-appellant, Brian Anthony (hereinafter “Anthony”),

appeals the Tiffin Municipal Court’s judgment denying his motion to suppress

evidence seized following a traffic stop. For the reasons that follow, we affirm.

{¶2} In the evening of April 4, 2009, Ohio State Highway Patrol Trooper

Jacob T. Tidabeck observed two vehicles traveling southwest bound on Sycamore

Street within the city limits of Tiffin, Ohio. (June 29, 2009 Tr. at 6-7). Trooper

Tidabeck paced both vehicles at thirty-five miles per hour (35 m.p.h.) in a twenty-

five mile per hour (25 m.p.h.) zone. (Id. at 6, 7-8). Trooper Tidabeck followed the

two vehicles and witnessed the first vehicle “riding the right edge line on County

Road 19.” (Id. at 8). Trooper Tidabeck continued to follow the vehicles and

witnessed the first vehicle cross the white edge line by “right around two tire

widths” after it crossed the intersection at County Road 19 and U.S. 224. (Id.).

Trooper Tidabeck described the vehicle’s action in crossing the white line as: “* *

* [w]asn’t, uh, sharp, you know, gradual jerking, it was lethargic action probably

about one to two seconds over the white line.” (Id.).

{¶3} After these observations, Trooper Tidabeck activated his overhead

lights and initiated a traffic stop of the first vehicle. (Id.). Anthony was charged

with: (1) operating a vehicle while under the influence of alcohol (“OVI”) in

violation of R.C. 4511.19(A)(1)(a), a first violation within six (6) years, which

was assigned case no. 09 TRC 774 A; operating a vehicle with a prohibited blood

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alcohol concentration in violation of R.C. 4511.19(A)(1)(d), a first violation

within six (6) years, which was assigned case no. 09 TRC 774 B; and marked

lanes in violation of R.C. 4511.33, which was assigned case no. 09 TRC 774 C.

(See Doc. No. 1).

{¶4} On April 6, 2009, Anthony appeared in court and pled not guilty to

all of the charges. (Doc. No. 3). On April 17, 2009, Anthony filed a motion to

suppress evidence seized as a result of the traffic stop. (Doc. No. 17). On June 29,

2009, the motion came on for hearing, and the trial court overruled the motion.

(Doc. No. 36). On July 20, 2009, Anthony informed the trial court of his intention

to forego his jury trial and to enter a no contest plea. (Doc. No. 37).

{¶5} On July 28, 2009, Anthony pled no contest to a violation of R.C.

4511.19(A)(1)(a), operating a vehicle while under the influence of alcohol (case

no. 09 TRC 744 A) and a violation of R.C. 4511.33, marked lanes (case no. 09

TRC 744 C). The R.C. 4511.19(A)(1)(d) violation (case no. 09 TRC 744 B) was

dismissed. (See Doc. No. 41). The trial court found Anthony guilty on both

offenses and sentenced him to sixty (60) days in jail with fifty (50) days

suspended. (Doc. No. 41). The trial court also: fined Anthony $375; ordered that

he pay court costs; imposed a two-year driving suspension; ordered two years of

intensive community control and restricted license plates; and allowed for an

ignition interlock and SCRAM unit for up to ninety (90) days at the probation

department’s discretion. (Id.).

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{¶6} On August 26, 2009, Anthony filed a notice of appeal from the trial

court’s judgment entry of conviction and sentence. (Doc. No. 42). Anthony now

appeals asserting one assignment of error for our review.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.

{¶7} In his sole assignment of error, Anthony argues that the trial court

erred in overruling his motion to suppress evidence because “the riding of the right

white edge line and the minimal crossing of same for one or two seconds * * *

[does not] provide[] * * * either probable cause or a reasonable articulable

suspicion to commence a traffic stop.” (Appellant’s Brief at 4). The State, on the

other hand, argues that Trooper Tidabeck had probable cause to initiate the traffic

stop based upon both Anthony’s speeding violation and his marked lanes

violation.

{¶8} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of

trier of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. See State v. Carter (1995), 72 Ohio St.3d 545, 552, 651

N.E.2d 965.

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{¶9} When reviewing a ruling on a motion to suppress, deference is given

to the trial court's findings of fact so long as they are supported by competent,

credible evidence. Burnside, 2003-Ohio-5327, at ¶8. With respect to the trial

court’s conclusions of law, however, our standard of review is de novo and we

must decide whether the facts satisfy the applicable legal standard. State v.

McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.

{¶10} As this Court has stated before, in order to constitutionally stop a

vehicle, an officer must, at a minimum, have either: (1) a reasonable suspicion,

supported by specific and articulable facts, that criminal behavior has occurred, is

occurring, or is imminent; or (2) a reasonable suspicion, supported by specific and

articulable facts, that the vehicle should be stopped in the interests of public

safety. State v. Moore, 3d Dist. No. 9-07-60, 2008-Ohio-2407, ¶10, citing State v.

Andrews, 3d Dist. No. 2-07-30, 2008-Ohio-625, ¶8, citing State v. Chatton (1984),

11 Ohio St.3d 59, 61, 463 N.E.2d 1237, certiorari denied by 469 U.S. 856, 105

S.Ct. 182, 83 L.Ed.2d 116; State v. Purtee, 3d Dist. No. 8-04-10, 2006-Ohio-6337,

¶9, citing State v. Norman (1999), 136 Ohio App.3d 46, 53-54, 735 N.E.2d 453.

{¶11} An officer’s “reasonable suspicion” is determined based on the

totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews,

2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719

N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. ‘“Specific and articulable facts’ that will justify an investigatory stop by

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way of reasonable suspicion include: (1) location; (2) the officer’s experience,

training or knowledge; (3) the suspect’s conduct or appearance; and (4) the

surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v.

Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37

Ohio St.3d 177, 178-79, 524 N.E.2d 489; State v. Davison, 9th Dist. No. 21825,

2004-Ohio-3251, ¶6.

{¶12} “[A] traffic stop is constitutionally valid when a law-enforcement

officer witnesses a motorist drift over the lane markings in violation of R.C.

4511.33, even without further evidence of erratic or unsafe driving.” State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶25 (abrogating

State v. Phillips, 3d Dist. No. 8-04-25, 2006-Ohio-6338).

{¶13} Applying the foregoing rules of law sub judice, we must reject

Anthony’s arguments. Trooper Tidabeck testified at the suppression hearing that

he witnessed Anthony’s vehicle cross the white edge line by “right around two tire

widths” after it crossed the intersection at County Road 19 and U.S. 224. (June 29,

2009 Tr. at 8). Trooper Tidabeck described the vehicle’s action in crossing the

white line as: “* * * [w]asn’t, uh, sharp, you know, gradual jerking, it was

lethargic action probably about one to two seconds over the white line.” (Id.).

Trooper Tidabeck testified that his view of Anthony’s marked lanes violation was

“definitely, clear 100% of this other side of the intersection without – I mean,

there’s no vehicle obstruction whatsoever * * * I had a clear line of sight of the

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whole intersection, there was nothing obscuring my view, whatsoever.” (Id. at 9-

10). Based upon these observations alone Trooper Tidabeck had probable cause,

and thus a reasonable articulable suspicion, to initiate the traffic stop; and

therefore, the traffic stop was constitutionally valid. Mays, 2008-Ohio-4539, at

¶¶16, 21, 24-25. Aside from Anthony’s marked lanes violation, Trooper Tidabeck

also testified that he observed Anthony traveling in excess of the posted speed

limit, which independently provided Trooper Tidabeck with probable cause, and

thus the minimally required reasonable articulable suspicion, to institute the traffic

stop. State v. Fykes, 6th Dist. No. WD-07-072, 2009-Ohio-2926, ¶17, citing State

v. Robinette (1997), 80 Ohio St.3d 234, 239, 685 N.E.2d 762; State v. Slocum,

11th Dist. No. 2007-A-0081, 2008-Ohio-4157, ¶21.

{¶14} Anthony cites three cases in support of his position that a de minimis

crossing of the white edge line alone does not constitute reasonable articulable

suspicion to effect an investigatory traffic stop: Phillips, 2006-Ohio-6338; State v.

Gullet (1992), 78 Ohio App.3d 138, 145, 604 N.E.2d 176; and State v. Brite

(1997), 120 Ohio App.3d 517, 698 N.E.2d 478. We, however, are not persuaded

by these cases. To begin with, State v. Brite was subsequently overruled by State

v. Woodrum (Nov. 20, 2001), 4th Dist. No. 00CA50, 2001-Ohio-2650. State v.

Gunther, 4th Dist. No. 04CA25, 2005-Ohio-3492, at ¶¶16-18. Furthermore,

several appellate courts have recognized that Gullet is no longer good law on this

issue even prior to the Ohio Supreme Court’s decision in Mays. State v. Lopez (1st

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Dist), 166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781, ¶16, citing State v.

Hodge (7th Dist.), 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶¶11-

26; State v. Hicks, 7th Dist. No. 01 CO 42, 2002-Ohio-3207, 2002 WL 1396802,

¶¶15-34; State v. Moeller (Oct. 23, 2000), 12th Dist. No. CA99-07-128, 2000 WL

1577287. Finally, the Ohio Supreme Court’s decision in State v. Mays controls

here. 2008-Ohio-4539, at ¶25 (“a traffic stop is constitutionally valid when a law-

enforcement officer witnesses a motorist drift over the [solid white edge (fog) line]

in violation of R.C. 4511.33, even without further evidence of erratic or unsafe

driving.”). Therefore, we find these cases unpersuasive.

{¶15} Anthony’s assignment of error is, therefore, overruled.

{¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI AND SHAW, J.J., concur.

/jlr

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