[Cite as State v. Curley, 2016-Ohio-7624.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27104
:
v. : T.C. NO. 15CRB1938 and
: 15TRC7526A-C
TYLER CURLEY :
:
Defendant-Appellant : (Criminal Appeal from
: Municipal Court)
:
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OPINION
Rendered on the ___4th___ day of _____November_____, 2016.
...........
JOHN D. EVERETT, Atty. Reg. No. 0069911, Prosecuting Attorney, City of Kettering,
2325 Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
JEFFREY E. RICHARDS, Atty. Reg. No. 0016610, 147 Miami Street, P. O. Box 536,
Waynesville, Ohio 45068
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Tyler Curley appeals from two judgments of the Kettering Municipal Court,
which found him guilty of several offenses on his no contest pleas after overruling his
motion to suppress evidence. Curley was convicted of operating a motor vehicle while
intoxicated (OVI) (second offense), in violation of R.C. 4511.19(A)(1), refusal to submit to
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a chemical test with a prior OVI conviction within 20 years, in violation of R.C.
4511.19(A)(2), failure to have his rear license plate illuminated, in violation of Kettering
Ordinance 438.04(b), possession of marijuana (less than 100g), and possession of drug
paraphernalia. On appeal, Curley challenges the denial of his motion to suppress.
{¶ 2} For the following reasons, the judgments of the trial court will be affirmed.
I. Facts and Procedural History
{¶ 3} Curley was stopped by uniformed Kettering Police Officer Jonathon McCoy
on October 2, 2015, at 2:49 a.m., in the vicinity of Dorothy Lane and Galewood Street.
McCoy had driven past Curley’s vehicle on Dorothy Lane as they traveled in opposite
directions. Upon looking in his rearview and side mirrors, McCoy believed that Curley’s
rear license plate was not properly illuminated, and McCoy turned his cruiser around to
investigate. McCoy got behind Curley’s vehicle and turned off his own headlights; he
again concluded that Curley’s license plate was not sufficiently illuminated, and he
initiated a traffic stop.
{¶ 4} When McCoy approached Curley’s vehicle on foot and examined the area
around the license plate, he observed that one light bulb above the license plate was on,
but it was dim and was not illuminating the plate. A second license plate light was not
working at all.
{¶ 5} McCoy detected a strong odor of burnt marijuana coming from the vehicle,
and Curley admitted smoking marijuana and “drinking” one hour earlier. McCoy observed
that Curley’s eyes were “bloodshot” and “glassy,” and his speech was “slurred.” Curley
submitted to and failed unspecified field sobriety tests. He refused to submit to a
chemical test. He was charged with the offenses listed above.
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{¶ 6} On November 6, 2015, Curley filed a motion to suppress “all evidence of the
field sobriety tests,” on the grounds that they were not properly administered. The trial
court conducted a hearing on the motion on February 1, 2016. Although the motion to
suppress indicated an intent to challenge the manner in which the field sobriety tests were
performed, the hearing itself focused on whether McCoy had reasonable suspicion to stop
Curley’s vehicle. On February 8, 2016, the trial court overruled the motion to suppress.
{¶ 7} After the ruling on the motion to suppress, Curley entered no contest pleas
on all of the charges against him. On the OVI and OVI refusal, he was sentenced to 180
days in jail, with 170 and 160 days suspended, respectively; he was fined $1,000 for each
offense, with $400 suspended on each count. Curley was placed on supervised
probation for four years, and his operator’s license was suspended for two years.
Additionally, Curley was fined $25 each for possession of marijuana and possession of
drug paraphernalia and was fined $10 on the license plate light violation.
{¶ 8} Curley raises one assignment of error on appeal, which challenges the trial
court’s decision on his motion to suppress based on the sufficiency and manifest weight
of the evidence.
II. Standard of Review
{¶ 9} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-
116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. Retherford
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at 592. “Accepting those facts as true, we must independently determine as a matter of
law, without deference to the trial court’s conclusion, whether they meet the applicable
legal standard.” Id.
{¶ 10} Curley frames his argument in terms of the sufficiency and weight of the
evidence, but these standards apply to our review of a court’s final judgment, not its
interlocutory orders, such as a decision on a motion to suppress. We will review whether
the trial court’s factual findings are supported by competent, credible evidence, id., and
whether the trial court erred in overruling the motion to suppress.
III. The Justification for the Traffic Stop
{¶ 11} A law enforcement officer may lawfully stop a vehicle if the officer has a
reasonable, articulable suspicion that the operator has engaged in criminal activity,
including a minor traffic violation. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,
894 N.E.2d 1204, ¶ 7-8; State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241,
¶ 20. We determine the existence of reasonable suspicion by evaluating the totality of
the circumstances and considering those circumstances “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” Hardy at ¶ 20, citing State v. Heard, 2d Dist. Montgomery No. 19323, 2003-
Ohio-1047, ¶ 14. Whether the officer’s suspicion of criminal activity was reasonable is
not dependent on whether any occupant of the vehicle is charged or found guilty of the
suspected activity. See State v. Eggleston, 2015-Ohio-958, 29 N.E.3d 23, ¶ 29 (11th
Dist.); State v. Pfeiffer, 12th Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, ¶ 26. The
duration of a traffic stop may last no longer than is necessary to resolve the issue that led
to the stop and issue a traffic citation, except that continued detention is justified if the
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officer becomes aware of additional specific and articulable facts that demonstrate a
reasonable suspicion of criminal activity other than the traffic violation. State v. Ramos,
155 Ohio App.3d 396, 2003-Ohio-6535, 801 N.E.2d 523, ¶ 13 (2d Dist.); State v. Cole,
2d Dist. Montgomery No. 26576, 2015-Ohio-5295, ¶ 20; State v. Dewitt, 2d Dist.
Montgomery No. 23735, 2010-Ohio-6476, ¶ 41.
{¶ 12} City of Kettering Code 438.04(b), which is identical in all substantive
respects to R.C. 4513.05(A), requires illumination of the rear registration plate of every
motor vehicle:
(b) Either a tail light or a separate light shall be so constructed and placed
as to illuminate with a white light the rear registration plate, when such
registration plate is required, and render it legible from a distance of fifty
feet to the rear. Any tail light, together with any separate light for
illuminating the rear registration plate, shall be so wired as to be lighted
whenever the headlights or auxiliary driving lights are lighted, except where
separate lighting systems are provided for trailers for the purpose of
illuminating such registration plate.
{¶ 13} At the suppression hearing, McCoy testified that he looked at Curley’s
vehicle using his rear and side mirrors after passing Curley’s car (in the opposite direction)
on Dorothy Lane; McCoy was not able to read Curley’s rear license plate or even see if a
license plate was present. He also testified that, after turning around to follow Curley
and turning off the cruiser’s headlights, he could not see the rear license plate at a
distance of less than 50 feet. McCoy described 50 feet as “five stories” and stated that
he had “paced [him]self about a half block behind” the vehicle. No testimony was offered
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about the size of the blocks in that area. McCoy also testified that he followed the vehicle
about three-quarters of a mile before making the traffic stop, and that he did not have to
“catch up” to Curley to make the traffic stop; “I was already behind his vehicle.”
{¶ 14} McCoy further testified that when he approached Curley’s stopped vehicle
on foot, he was “unable to read the license plate in the dark.” He noticed that there was
one “dim” bulb illuminated above the rear license plate, but it was so dim that it was “not
projecting any light onto the license plate.” He compared the illumination from this light
to “the flicker of a candle.” On closer examination, McCoy also noticed that there was a
second bulb above the license plate, which was not operational at all.
{¶ 15} Curley presented testimony from his step-father, John Szanto, at the
suppression hearing. Szanto was not present at the time of the traffic stop, but he took
photographs of Curley’s vehicle approximately one month later, at night and at a different
location. These photographs were offered into evidence to demonstrate the legibility of
the license plate at night.
{¶ 16} Curley also testified at the hearing. He stated that there had been no
changes to the “lighting system” between the time of the traffic stop and the time Szanto
took his photographs.
{¶ 17} The trial court “did not find anything in the photographs or the Defense
testimony which detracts from the credibility of [Officer] McCoy’s testimony.” The court
found that the appearance of the rear license plate at a different place and time did not
contradict McCoy’s testimony as to what he observed on Dorothy Lane on the night of the
traffic stop. The court noted that Curley “did not offer any testimony on the visibility of
the plate on 2 Oct 2015.” The court concluded that McCoy had pointed to “specific and
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articulable facts” which, considered with rational inferences from those facts, “reasonably
warranted [Officer] McCoy in making a traffic stop” on the night in question.
{¶ 18} Curley argues that there was insufficient evidence that his license plate
was “unreadable” at a distance of 50 feet or less. He challenges the accuracy or
plausibility of McCoy’s estimation at the hearing that 50 feet is approximately “half a block”
and of McCoy’s description of the distance and manner in which he (McCoy) turned
around on Dorothy Lane and followed Curley’s vehicle to close within 50 feet. Curley’s
brief also contains many purported measurements (for example, the length of a block, the
number of houses on a block, the length of a police cruiser, and number of car lengths
McCoy must have been behind Curley’s car, and the speed at which McCoy must have
been traveling); Curley relies on these suggested measurements, as well as his own
testimony and the testimony of “an acquaintance” (presumably (Szanto) that the license
plate could be read at 50 feet in concluding that the State’s evidence was “nonsensical”
and unreliable. At oral argument, Curley’s attorney also argued that a court must use
“common sense” in interpreting the evidence presented, and that the court could not have
reasonably credited McCoy’s testimony equating half a block with 50 feet.
{¶ 19} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-
116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. Retherford
at 592. Moreover, when reviewing suppression rulings, we consider only the evidence
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before the trial court at the suppression hearing; we cannot consider any evidence outside
the record of the suppression hearing. State v. Harris, 2d Dist. Montgomery No. 26810,
2016-Ohio-7097, ¶ 3.
{¶ 20} The trial court reasonably concluded that the photographs demonstrating
illumination of the license plate – which were taken at night but at a different time and
place than the traffic stop ̶ did not refute McCoy’s testimony that, at the time of the traffic
stop, Curley’s license plate was not “legible” due to inadequate lighting. Further, the
court was not required to credit Curley’s testimony that no modifications to the lighting
system had been made during the intervening weeks. We cannot conclude that the trial
court erred in crediting McCoy’s testimony when it weighed the conflicting testimony about
the visibility of the license plate.
{¶ 21} At oral argument, Curley’s attorney also argued, for the first time, that 1) the
statute did not require that the rear license plate be illuminated by the vehicle on which it
was mounted (rather, that it was sufficient that it be legible when the headlights from
another vehicle shined upon it); and 2) that the last paragraph of the Kettering ordinance
differs from R.C. 4513.05 and creates some ambiguity about when or whether rear plate
lighting was required on Curley’s vehicle.
{¶ 22} The ordinance at issue clearly requires that the rear registration plate be
lighted by a white light “placed as to illuminate” that plate and render it legible; this
requirement cannot reasonably be interpreted to permit illumination from the headlights
of a separate vehicle, as Curley suggests. See U.S. v. Pate, S.D.Ohio No. 1:09-CR-18,
2009 WL 3418664 (Oct. 19, 2009) (interpreting R.C. 4513.05); see also State v. Held,
146 Ohio App.3d 365, 766 N.E.2d 201 (11th Dist. 2001) (rejecting trial court’s view that it
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was no longer reasonable to issue a citation for a violation of R.C. 4513.05, in light of
requirement that Ohio license plates now use reflective paint, and further holding that
having an operable light where the license plate normally would be affixed is of no avail
if the license plate was not in that spot to receive the illumination). Moreover, the last
sentence of Kettering Ordinance 438.04 is not different from R.C. 4513.05, nor does it
create any ambiguity about the lighting requirement for a vehicle, like Curley’s, that is not
pulling a trailer.
{¶ 23} The trial court’s decision that McCoy had reasonable, articulable suspicion
for the traffic stop was supported by competent, credible evidence, and we find no basis
to reverse it.
{¶ 24} The assignment of error is overruled.
IV. Conclusion
{¶ 25} The judgments of the trial court will be affirmed.
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DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
John D. Everett
Jeffrey E. Richards
Hon. James F. Long
State v. Curley
Combined Opinion