[Cite as State v. Franklin, 2012-Ohio-3089.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-CA-128 : : RICHARD FRANKLIN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County Municipal Court Case No. 11 TRC 08419
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JONATHAN C. DIERNBACH ROBERT CALESARIC Assistant Law Director 35 South Park Place, Suite 150 40 W. Main Street Newark, Ohio 43055 Newark, Ohio 43055 [Cite as State v. Franklin, 2012-Ohio-3089.]
Edwards, J.
{¶1} Defendant-appellant, Richard Franklin, appeals from the denial by the
Licking County Municipal Court of his Motion to Suppress. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 13, 2011, appellant was arrested and charged with operating a
motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a)
and (A)(1)(d) and a marked lanes violation in violation of R.C. 4511.33. On August 16,
2011, appellant filed a written not guilty plea.
{¶3} Subsequently, on September 13, 2011, appellant filed two Motions to
Suppress. Appellant, in one of the motions, argued, in part, that he was illegally
stopped. A hearing on such motion was held on October 27, 2011. At the hearing, the
sole issue for determination was whether or not the officer had reasonable, articulable
suspicion to stop appellant’s vehicle.
{¶4} Trooper Jermaine Thaxton of the Ohio State Highway Patrol testified that
he was on duty in uniform in a marked cruiser on August 13, 2011. As he was patrolling
the City of Newark, Trooper Thaxton observed appellant’s car, a 2004 Cadillac CTS, go
over the double solid yellow pavement lines. According to the Trooper, after going over
the line approximately a half a tire width, appellant “swayed back into his lane.”
Transcript at 6. Trooper Thaxton pulled appellant over at approximately 2:42 a.m.
{¶5} On cross-examination, the Trooper testified that the only basis for the
traffic stop was the marked lanes violation. Licking County App. Case No. 11-CA-128 3
{¶6} A videotape of the traffic stop, as well as still images from the stop, were
admitted as exhibits.
{¶7} Pursuant to a Judgment Entry filed on November 15, 2011, the trial court
denied appellant’s Motion to Suppress. The trial court, in its Judgment Entry, indicated
that the video from Trooper Thaxton’s cruiser revealed that the tires of appellant’s
vehicle touched the far right line of the double solid center line traffic marking and that
tires crossed the double center line by “approximately 3 inches or one half of a tire
width.” The trial court, in its Judgment Entry, stated, in relevant part, that “[w]hile it
would appear that this is an extremely de-minimis violation of the code the Court
believes that when a vehicle’s tire crosses onto the painted center line that the vehicle is
no longer driven within a single lane or line of traffic.”
{¶8} Thereafter, appellant pleaded no contest to the charges and was found
guilty by the trial court. Pursuant to a Judgment Entry filed on December 2, 2011,
appellant was sentenced to 90 days in jail with 60 days suspended, was fined $500.00
and was placed on probation for a period of one year. In addition, appellant’s driver’s
license was suspended for a period of one year.
{¶9} Appellant now raises the following assignment of error on appeal:
{¶10} “APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT
TROOPER LANNING [SIC] HAD REASONABLE ARTICULABLE SUSPICION TO
STOP APPELLEE’S MOTOR VEHICLE.”
I
{¶11} Appellant, in his sole assignment of error, argues that the trial court erred
in denying appellant’s Motion to Suppress. Appellant specifically contends that the trial Licking County App. Case No. 11-CA-128 4
court erred in finding that Trooper Thaxton had reasonable, articuable suspicion to stop
appellant’s vehicle for a marked lanes violation after appellant drove three (3) inches
onto a double yellow center line without going across or over the line.
{¶12} Appellate review of a trial court's decision to grant a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). A
reviewing court is bound to accept the trial court's findings of fact if they are supported
by competent, credible evidence. State v. Metcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993).
{¶13} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); and State v. Klein, 73 Ohio App.3d
486, 597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue that 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. See
Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided Licking County App. Case No. 11-CA-128 5
the ultimate or final issues raised in a 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. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist. 1993), and State
v. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994).
{¶14} At issue in the case sub judice is whether or not Trooper Thaxton had
reasonable, articulable suspicion to stop appellant’s vehicle. An investigative stop of a
motorist does not violate the Fourth Amendment if the officer has a reasonable
suspicion that the individual is engaged in criminal activity. Maumee v. Weisner, 87
Ohio St.3d 295, 299, 1999-Ohio-68, 720 N.E.2d 507, citing Terry v. Ohio, 392 U.S. 1,
22, 88 S.Ct. 1868 20 L.Ed.2d 889.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Franklin, 2012-Ohio-3089.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-CA-128 : : RICHARD FRANKLIN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County Municipal Court Case No. 11 TRC 08419
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JONATHAN C. DIERNBACH ROBERT CALESARIC Assistant Law Director 35 South Park Place, Suite 150 40 W. Main Street Newark, Ohio 43055 Newark, Ohio 43055 [Cite as State v. Franklin, 2012-Ohio-3089.]
Edwards, J.
{¶1} Defendant-appellant, Richard Franklin, appeals from the denial by the
Licking County Municipal Court of his Motion to Suppress. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 13, 2011, appellant was arrested and charged with operating a
motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a)
and (A)(1)(d) and a marked lanes violation in violation of R.C. 4511.33. On August 16,
2011, appellant filed a written not guilty plea.
{¶3} Subsequently, on September 13, 2011, appellant filed two Motions to
Suppress. Appellant, in one of the motions, argued, in part, that he was illegally
stopped. A hearing on such motion was held on October 27, 2011. At the hearing, the
sole issue for determination was whether or not the officer had reasonable, articulable
suspicion to stop appellant’s vehicle.
{¶4} Trooper Jermaine Thaxton of the Ohio State Highway Patrol testified that
he was on duty in uniform in a marked cruiser on August 13, 2011. As he was patrolling
the City of Newark, Trooper Thaxton observed appellant’s car, a 2004 Cadillac CTS, go
over the double solid yellow pavement lines. According to the Trooper, after going over
the line approximately a half a tire width, appellant “swayed back into his lane.”
Transcript at 6. Trooper Thaxton pulled appellant over at approximately 2:42 a.m.
{¶5} On cross-examination, the Trooper testified that the only basis for the
traffic stop was the marked lanes violation. Licking County App. Case No. 11-CA-128 3
{¶6} A videotape of the traffic stop, as well as still images from the stop, were
admitted as exhibits.
{¶7} Pursuant to a Judgment Entry filed on November 15, 2011, the trial court
denied appellant’s Motion to Suppress. The trial court, in its Judgment Entry, indicated
that the video from Trooper Thaxton’s cruiser revealed that the tires of appellant’s
vehicle touched the far right line of the double solid center line traffic marking and that
tires crossed the double center line by “approximately 3 inches or one half of a tire
width.” The trial court, in its Judgment Entry, stated, in relevant part, that “[w]hile it
would appear that this is an extremely de-minimis violation of the code the Court
believes that when a vehicle’s tire crosses onto the painted center line that the vehicle is
no longer driven within a single lane or line of traffic.”
{¶8} Thereafter, appellant pleaded no contest to the charges and was found
guilty by the trial court. Pursuant to a Judgment Entry filed on December 2, 2011,
appellant was sentenced to 90 days in jail with 60 days suspended, was fined $500.00
and was placed on probation for a period of one year. In addition, appellant’s driver’s
license was suspended for a period of one year.
{¶9} Appellant now raises the following assignment of error on appeal:
{¶10} “APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT
TROOPER LANNING [SIC] HAD REASONABLE ARTICULABLE SUSPICION TO
STOP APPELLEE’S MOTOR VEHICLE.”
I
{¶11} Appellant, in his sole assignment of error, argues that the trial court erred
in denying appellant’s Motion to Suppress. Appellant specifically contends that the trial Licking County App. Case No. 11-CA-128 4
court erred in finding that Trooper Thaxton had reasonable, articuable suspicion to stop
appellant’s vehicle for a marked lanes violation after appellant drove three (3) inches
onto a double yellow center line without going across or over the line.
{¶12} Appellate review of a trial court's decision to grant a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). A
reviewing court is bound to accept the trial court's findings of fact if they are supported
by competent, credible evidence. State v. Metcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993).
{¶13} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); and State v. Klein, 73 Ohio App.3d
486, 597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue that 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. See
Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided Licking County App. Case No. 11-CA-128 5
the ultimate or final issues raised in a 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. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist. 1993), and State
v. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994).
{¶14} At issue in the case sub judice is whether or not Trooper Thaxton had
reasonable, articulable suspicion to stop appellant’s vehicle. An investigative stop of a
motorist does not violate the Fourth Amendment if the officer has a reasonable
suspicion that the individual is engaged in criminal activity. Maumee v. Weisner, 87
Ohio St.3d 295, 299, 1999-Ohio-68, 720 N.E.2d 507, citing Terry v. Ohio, 392 U.S. 1,
22, 88 S.Ct. 1868 20 L.Ed.2d 889. Before a law enforcement officer may stop a vehicle,
the officer must have a reasonable suspicion, based upon specific and articulable facts
that an occupant is or has been engaged in criminal activity. State v. Gedeon, 81 Ohio
App.3d 617, 618, 611 N.E.2d 972 (11th Dist. 1992). Reasonable suspicion constitutes
something less than probable cause. State v. Carlson, 102 Ohio App.3d 585, 590, 657
N.E.2d 591 (9th Dist. 1995). The propriety of an investigative stop must be viewed in
light of the totality of the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d
489 (1988), ¶ 2 of the syllabus.
{¶15} In the case sub judice, the trial court found that Trooper Thaxton had
reasonable, articulable suspicion that appellant, by driving three (3) inches onto the
double yellow center line, had violated R.C. 4511.33. R.C. 4511.33 states, in relevant
part, as follows: “(A) Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, or wherever within municipal corporations traffic is lawfully Licking County App. Case No. 11-CA-128 6
moving in two or more substantially continuous lines in the same direction, the following
rules apply: (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.”
{¶16} In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,
the Ohio Supreme Court held that, because R.C. 4511.33 requires a driver to drive a
vehicle entirely within a single lane of traffic, when an officer observes a vehicle driving
twice across a white edge line, the officer has a reasonable and articulable suspicion
that the driver has violated R.C. 4511.33. The Mays Court stated, in relevant part, as
follows: “The court in Hodge1 also stated that it did not intend for its decision to stand for
‘the proposition that movement within one lane is a per se violation giving rise to
reasonable suspicion, nor does inconsequential movement within a lane give law
enforcement carte blanche opportunity to make an investigatory stop.’ Id., 147 Ohio
App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, at ¶ 45. However, when an officer could
reasonably conclude from a person's driving outside the marked lanes that the person is
violating a traffic law, the officer is justified in stopping the vehicle.” Id. at ¶20.
{¶17} In State v. Richardson, 5th Dist. No. 00-CA-A-01-003, 2000 WL 1055917
(July 14, 2000), the appellee was pulled over after an officer observed his vehicle drive
on top of the center line a total of four times. After the appellee was arrested for driving
under the influence of alcohol, driving under suspension and a marked lanes violation,
he filed a Motion to Suppress. In his motion, the appellee argued that the officer did not
1 th The complete citation is State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331 (7 Dist.). Licking County App. Case No. 11-CA-128 7
have a reasonable and articuable suspicion that the appellee had violated traffic laws.
After the trial court granted such motion, the State appealed.
{¶18} In affirming the decision of the trial court, this Court, in Richardson, stated,
in relevant part, as follows: “Appellee in the case sub judice was cited for violating R.C.
4511.33. It is appellee's alleged violation of such section that was Officer Whitlatch's
justification for stopping appellee's vehicle. R.C. 4511.33 requires a motor vehicle to be
driven within a single lane. At the January 3, 2000, suppression hearing, Officer
Whitlatch testified that appellee's vehicle ‘traveled over top of the center line [sic] about
a tire width four different times’ and that, each time, appellee steered his vehicle back
into the northbound lane. Transcript of Proceedings at 15. Officer Whitlatch further
testified that appellee's vehicle never crossed over the centerline of the highway and
that appellee never actually went left of center. Based on the foregoing, we agree with
the trial court that Officer Whitlatch never observed any violation of R.C. 4511.33 since
‘R.C. 4511.33, the marked-lanes statute, requires a vehicle to be driven within a single
lane. This vehicle was operated within a single lane and further did not go left of the
centerline. The defendant ‘exactly drove on top of the center line [sic].’ See trial court's
January 5, 2000 Judgment Entry at 5. Accordingly, since appellee did not violate R.C.
4511.33, which Officer Whitlatch cited as the justification for his stop of appellee's
vehicle, Officer Whitlatch lacked an articuable and reasonable suspicion that appellee
was operating his motor vehicle in violation of the law. The trial court, therefore, did not
err in granting appellee's Motion to Suppress.” Id at 2.
{¶19} In State v. Messick, 5th Dist. No. 06CAC090065, 2007-Ohio-1824, the
appellee, who had been stopped and arrested for operating a motor vehicle while under Licking County App. Case No. 11-CA-128 8
the influence of alcohol and a marked lanes violation, filed a Motion to Suppress,
arguing that there was no articuable and reasonable suspicion to support the traffic
stop. At the suppression hearing, the officer testified that he observed the driver’s side
tires of appellee’s vehicle on top of the yellow line on three separate occasions within
one mile. The trial court granted such motion and the State of Ohio appealed. In
reversing the decision of the trial court, this Court agreed with the trial court that the
officer’s testimony did not establish a marked lanes violation, but found that the
appellee’s weaving within his lane of travel and earlier erratic left turn gave the officer a
reasonable and articuable suspicion to justify the stop of appellee. In contrast, see
State v. Landon, 5th Dist. No. 09-CA-0009, 2009-Ohio-6818. In such case, this Court
held that the officer had reasonable, articuable suspicion to stop the appellant after the
appellant’s driver’s side tires went completely over the yellow line to the point that they
were not touching the lines.
{¶20} More recently, in State v. Grigoryan, 8th Dist. No. 93030, 2010-Ohio-2883,
the appellant was stopped after his vehicle drifted to the left, drifted to the right and
drove on the yellow lane line on the left. After the appellant filed a Motion to Suppress,
the trial court granted the same and the State appealed. In affirming the decision of the
trial court, the court, in Grigoryan, held that the drifting followed by brief driving on the
left yellow edge line constituted “’inconsequential movement within a lane’ that does not
give rise to articuable suspicion to make an investigatory stop…” Id at ¶25. See also
City of Mentor v. Phillips, 11th Dist. No. 99-L-119, 2001 WL 20736 (Dec. 29, 2000), in
which the court held that there was no probable cause to stop the appellant for a
marked lanes violation. In such case, the appellant was observed driving onto the Licking County App. Case No. 11-CA-128 9
white broken line dividing the two eastbound lanes and then quickly driving back
towards the center of the lane.
{¶21} As is stated above, in the case sub judice, the trial court found that the
videotape showed that the left tires of appellant’s vehicle touched the far right line of the
double solid center line traffic marking. The trial court further found that the tires
crossed onto that portion of the double center line by approximately 3 inches. There
was no testimony or evidence that appellant crossed the center line, but rather that
appellant drove on the marked center line. Based on the foregoing, we find that Trooper
Thaxton did not have reasonable, articuable suspicion that appellant was violating R.C.
4511.33. We find, therefore, that the trial court erred in denying appellant’s Motion to
Suppress.
{¶22} Appellant’s sole assignment of error is, therefore, sustained. Licking County App. Case No. 11-CA-128 10
{¶23} Accordingly, the judgment of the Licking County Municipal Court is
reversed and this matter is remanded for further proceedings.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
______________________________
JUDGES
JAE/d0425 Licking County App. Case No. 11-CA-128 11
Farmer, J., dissents
{¶24} I respectfully dissent from the majority's opinion.
{¶25} I would find that crossing onto the double center line by three inches was
an indication of impaired or inattentive driving warranting a stop. I would also defer to
the trial court's analysis of the videotape in its role as the trier of fact.
{¶26} I would affirm the trial court's decision denying the motion to suppress.
________________________________ HON. SHEILA G. FARMER [Cite as State v. Franklin, 2012-Ohio-3089.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : RICHARD FRANKLIN : : Defendant-Appellant : CASE NO. 11-CA-128
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Municipal Court is reversed and remanded to the trial
court for further proceedings. Costs assessed to appellee.
_________________________________