State v. Hairston
This text of 2011 Ohio 2952 (State v. Hairston) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Hairston, 2011-Ohio-2952.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2011 AP 01 0002 TODD HAIRSTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the County Court, Uhrichsville, Case No. 2010 TRD 1060
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. ONG GERALD A. LATANICH 201 North Main Street TUSC. CTY. PUBLIC DEFENDER OFFICE Post Office Box 44683 153 North Broadway Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2011 AP 01 0002 2
Wise, J.
{¶1} Appellant Todd Hairston appeals from his conviction for driving under
suspension in the Tuscarawas County Court, Uhrichsville, Ohio. The Appellee is the
State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On or about May 16, 2010, Patrol Officer James McConnell of the
Dennison Police Department was observing traffic in his marked cruiser. At a few
minutes before 10:00 PM, in the vicinity of Logan Street in Dennison, McConnell
observed a blue 1994 Ford fail to use its turn signal when making a right-hand turn from
an alley. McConnell thereupon made a traffic stop of the Ford, which was being driven
by appellant. Upon checking appellant’s information, McConnell discovered that
appellant’s driver’s license was under a twelve point noncompliance suspension.
{¶3} McConnell testified in pertinent part as follows regarding his decision to
stop appellant’s automobile:
{¶4} “Q. Do you recall when you first made contact or made visual contact with
Mr. Hairston’s vehicle?
{¶5} “A. Yes, I do.
{¶6} “Q. Where were you located when you made contact with him?
{¶7} “A. I was along Warehouse Alley and in between South Second and
South Third Street.
{¶8} “Q. Where was Mr. Hairston’s vehicle?
{¶9} “A. He was turning right from the alley onto Logan. I believe it’s going to
be South Third Drive to South Second Drive I think is the technical alley name for it. But Tuscarawas County, Case No. 2011 AP 01 0002 3
he was turning off that alley right onto Logan Street whenever I observed him not use
his turn signal.
{¶10} “Q. Do you have any idea about how far behind you were, how close in
proximity your cruiser was to Mr. Hairston’s vehicle when you observed him?
{¶11} “A. I would have been at the very beginning of South Second Drive and
he would have been, I would have been at Warehouse Alley and South Second Drive
and he would have been at South Second Drive and Logan Street so it was a short
distance, the alleyway.
{¶12} “Q. Was there anything blocking your view --
{¶13} “A. No.
{¶14} “Q. --of his vehicle? And you had indicated on the record that Mr.
Hairston did not use his turn signal; is that correct?
{¶15} “A. That is correct.
{¶16} “Q. Any chance you were mistaken on this?
{¶17} “A. No.
{¶18} “Q. Did you see any turn signal of any sort while following Mr. Hairston?
{¶19} “A. Nope.
{¶20} “Q. Was it at night during the traffic stop?
{¶21} “A. Yes.
{¶22} “Q. Safe to say that if the blinker were used, there would have been some
illumination that would have caught your attention?
{¶23} “A. It would have.
{¶24} “Q. And you didn’t see anything? Tuscarawas County, Case No. 2011 AP 01 0002 4
{¶25} “A. No, I did not.” Tr., September 23, 2010, at 5-6.
{¶26} Appellant was thereafter charged, via traffic summons, with driving under
suspension (R.C. 4510.11) and failure to use a turn signal (Dennison Ordinances Sec.
72.16). He entered pleas of not guilty. The case proceeded to a bench trial on
September 23, 2010. Appellant, via counsel, obtained leave to further brief some of the
legal issues pertaining to turn signal usage. Furthermore, on October 14, 2010,
appellant filed a written motion to suppress evidence. The trial court, on November 23,
2010, heard additional evidence and arguments pertaining to the issue of suppression.
{¶27} On December 1, 2010, the trial court issued a combined judgment entry
denying appellant’s motion to suppress and finding him guilty on both charges. On
December 21, 2010, the trial court issued a final judgment entry with sentencing
provisions. Appellant was ordered, inter alia, to serve 90 days in jail, with 65 days
suspended.
{¶28} On January 6, 2011, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶29} “I. THERE WAS NO REASONABLE AND ARTICULABLE SUSPICION
TO PULL OVER THE DEFENDANT’S VEHICLE.”
I.
{¶30} In his sole Assignment of Error, appellant contends the trial court erred in
denying his motion to suppress the evidence obtained from the traffic stop. We
disagree. Tuscarawas County, Case No. 2011 AP 01 0002 5
{¶31} A de minimis violation of traffic laws, including an observed turn signal
violation, constitutes probable cause for a law enforcement officer to stop a vehicle. See
State v. Alemu, Licking App.No. 2005CA00039, 2005-Ohio-5955, ¶ 46 - ¶ 47.
{¶32} 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 finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. See
State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993),
85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d
592, 621 N.E.2d 726.
{¶33} In the case sub judice, we read appellant’s brief as contending that the
trial court failed to correctly decide the facts connected to the motion to suppress. In
reviewing this type of challenge, we must determine whether said findings of fact are
against the manifest weight of the evidence. The weight to be given the evidence and
the credibility of the witnesses are primarily for the trier of fact to determine, and it is not
an appellate court's function to substitute its judgment for that of the factfinder. See
State v. Ivers (Dec. 23, 1999), Licking App.No. 99CA48, 2000 WL 1480 (internal
citations omitted).
{¶34} Appellant herein called Ryan Presutti as an eyewitness in support of his
suppression motion. Presutti, an acquaintance of appellant, was standing in front of a
nearby garage on the evening in question. In his testimony, Presutti maintained that
based on the relative positions of the vehicles and structures in the area, Officer Tuscarawas County, Case No. 2011 AP 01 0002 6
McConnell could not have seen whether appellant had used his signal. See Tr.,
November 23, 2010, at 4-5.
{¶35} The trial court was thus presented with two versions of the events leading
to the traffic stop. However, as the State properly observes in its brief, the trial court had
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