State v. Massey

2020 Ohio 1206

• Court: Ohio Court of Appeals
• Decided: March 31, 2020
• Docket: 29312
• Status: Published

Opinion

[Cite as State v. Massey, 2020-Ohio-1206.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29312

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTHONY MASSEY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 17 12 4379

DECISION AND JOURNAL ENTRY

Dated: March 31, 2020

CARR, Presiding Judge.

{¶1} Appellant, Anthony Massey, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

I.

{¶2} This matter arises out of a traffic stop that occurred just before midnight on the

evening of December 1, 2017, in Akron, Ohio. Massey, the driver of the vehicle, was ultimately

placed under arrest during the stop. The Summit County Grand Jury returned an indictment

charging Massey with one count of operating a vehicle under the influence of alcohol or drugs in

violation of R.C. 4511.19(A)(1)(a) and one count of operating a vehicle under the influence of

alcohol or drugs in violation of R.C. 4511.19(A)(1)(d). Massey pleaded not guilty to the charges

at arraignment.

{¶3} Massey filed a motion to suppress raising a number of issues in relation to the stop,

including whether there was reasonable suspicion to initiate the stop, whether there was reasonable 2

suspicion to administer field sobriety tests, as well as whether there was probable cause to place

Massey under arrest. The matter proceeded to a hearing on the motion. Massey filed a post hearing

memorandum addressing the application of the Supreme Court of Ohio’s decision in State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4539, to the facts of the instant case. On October 26, 2018, the

trial court issued a journal entry denying the motion to suppress.

{¶4} Massey ultimately pleaded no contest to the indictment and the trial court found

him guilty. After ordering a presentence investigation report, the trial court imposed a 60-day jail

sentence followed by a two-year term of community control.

{¶5} On appeal, Massey raises one assignment of error.

II.

ASSIGNMENT OF ERROR

BY OVERRULING THE MOTION TO SUPPRESS, THE TRIAL COURT VIOLATED ANTHONY MASSEY’S FOURTH AMENDMENT RIGHTS PURSUANT TO THE UNITED STATES CONSTITUTION.

{¶6} In his sole assignment of error, Massey contends that the trial court erred in denying

his motion to suppress. This Court disagrees.

{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual

questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 3

Ohio App.3d 706 (4th Dist.1997). We emphasize, however, that “[t]his Court must only accept

the trial court’s findings of fact if they are supported by component, credible evidence.” State v.

Hendrix, 9th Dist. Summit Nos. 26648, 26649, 2013-Ohio-2430, ¶ 14, quoting State v. Figueroa,

9th Dist. Lorain No. 09CA009612, 2010-Ohio-189, ¶ 20.

{¶8} The Fourth Amendment to the United States Constitution and Article 1, Section 14

of the Ohio Constitution proscribe unreasonable searches and seizures. A traffic stop constitutes

a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806,

809-810 (1996). A law enforcement official may conduct a traffic stop when there is a reasonable

suspicion of criminal activity, such as a traffic violation. State v. Campbell, 9th Dist. Medina No.

05CA0032-M, 2005-Ohio-4361, ¶ 10-11. “[W]here an officer has an articulable reasonable

suspicion or probable cause to stop a motorist for any criminal violation, including a minor traffic

violation, the stop is constitutionally valid[.]” Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996);

State v. Woods, 9th Dist. Summit No. 28838, 2018-Ohio-3352, ¶ 13.

Background

{¶9} The trial court held a hearing on the motion to suppress on October 18, 2018. The

only witness to testify at the hearing was Officer Matthew Boyer of the Ohio State High Patrol. A

dashboard camera video of the stop was admitted into evidence. The trial court found Officer

Boyer’s testimony to be credible and made factual findings as follows.

{¶10} On the evening of December 1, 2018, Officer Boyer was on patrol on Arlington

Road, a four-lane road with two northbound lanes. Officer Boyer explained that the northbound

lanes were divided by a white hash line. While driving in the center northbound lane, Officer

Boyer saw Massey driving a pickup truck in the same lane approximately 100 yards ahead. Officer

Boyer testified that he observed Massey drive over the white hash line and into the outside 4

northbound lane, with the Massey’s passenger side tires crossing one tire width over the line for

one or two seconds. When Officer Boyer accelerated to get closer to Massey, he again observed

Massey drive over the white hash line for approximately one or two seconds.

{¶11} Officer Boyer initiated a traffic stop of Massey’s pickup truck. Upon making his

way to the driver side window, Officer Boyer noticed that Massey smelled of alcohol. Officer

Boyer further observed that Massey’s eyes were “bloodshot” and “glassy.” Massey denied that he

had been drinking. Officer Boyer asked Massey to exit the vehicle. The odor of alcohol emanated

from Massey’s person after he excited the vehicle. Officer Boyer administered the Horizontal

Gaze Nystagmus (“HGN”) test where Massey demonstrated six out of six possible cues, indicating

that he was above the legal limit. Officer Boyer also administered the Vertical Gaze Nystagmus

(“VGN”) test, which can indicate whether someone is under the influence of drugs or has a very

high blood alcohol level. Massey demonstrated no cues during the VGN test. When Massey stated

that he had suffered a back injury, Officer Boyer declined to administer the one-leg stand test and

the walk-and-turn test as the results would have been invalid. Massey completed a portable

breathalyzer test that suggested his blood alcohol level was above the legal limit. Officer Boyer

subsequently placed Massey under arrest for OVI. Massey was transported to the police station

where he completed a breathalyzer test revealing a blood alcohol level of .111.

Discussion

{¶12} Massey’s foremost argument on appeal is that law enforcement lacked reasonable

suspicion to stop his vehicle. Massey suggests that the trial court’s factual findings that he

committed two marked lane violations ignored the evidence presented at the hearing. Massey

points to the dashboard camera video introduced at the hearing in support of the proposition that 5

Officer Boyer’s testimony regarding the traffic violations was not credible. Massey maintains that

the video shows that “[a]t worst, [he] may have drifted for no more than 1 or 2 seconds.”

{¶13} Officer Boyer testified that Massey “cross[ed] over” into another lane on two

separate occasions. When the dashboard camera video was played at the hearing, Officer Boyer

explained that the clarity of the video was somewhat poor because it was recorded on an older

camera. Officer Boyer acknowledged at the hearing that the first alleged violation was not

discernable on the video due to the quality of the video and the fact that he was 100 yards away

when he observed the violation. Officer Boyer insisted, however, that his eyesight was better than

what the camera depicted and that he observed Massey cross over the white hash lines with both

passenger side tires. After observing the marked lanes violation, Officer Boyer accelerated so that

his cruiser was much closer to Massey’s truck.

{¶14} The video of the second alleged violation was presented by the State at the

suppression hearing. A review of the video shows Massey drifting to the right before abruptly

correcting and returning to the center of his lane. It appears from the video that the drifting

occurred at a spot in the roadway where there was a temporary break in the white hash lines

because of a side street that intersected from the right. The video shows that as Massey progressed

northbound, he drifted to the right such that his right passenger tires would have at minimum been

on top of the white hash lines had they continued, perhaps even crossing them. At the hearing,

Officer Boyer explained that he used the white hash lines as a reference point and that “if there

[had been] a solid white line, [Massey] would have been over that.” Officer Boyer further testified

that the first marked lanes violation was more pronounced than the second violation. Though

Officer Boyer can be heard telling Massey that he was drifting “all over the road” during the 6

footage of the stop, Officer Boyer’s testimony was simply that Massey committed two marked

lanes violations and that he was driving at a rate of speed noticeably below the speed limit.

{¶15} Massey’s contention that the record does not support the trial court’s findings with

respect to the traffic violations is without merit. A review of the dashboard camera video reveals

that its quality was indeed somewhat poor. Given the distance between Officer Boyer’s cruiser

and Massey’s truck, the video is non probative with respect to first alleged violation. Accordingly,

the issue of whether to accept Officer Boyer’s testimony regarding the first violation is entirely a

matter of credibility. The trial court expressly found Officer Boyer’s testimony to be credible.

While Massey contends that Officer Boyer was overzealous on the evening of the incident, we

remain mindful that “the trial court is in the best position to resolve credibility issues and this Court

will not substitute our own judgment for that of the trial court regarding the weight given to

[Officer Boyer’s] testimony.” State v. Rogers, 9th Dist. Wayne No. 16AP0014, 2017-Ohio-357,

¶ 11. With respect to the second alleged violation, Officer Boyer testified that Massey committed

a lane violation that was minor and brief. Massey suggests on appeal that the “[w]orst case

scenario” may have been “an extremely technical violation[.]” While the video does not depict an

egregious lane violation, it also does not clearly contradict Officer Boyer’s testimony that a

violation occurred. Absent evidence to the contrary, the question of whether Officer Boyer

observed a second violation is also a matter of credibility, and this Court will refrain from

disturbing the trial court’s credibility determination in that regard. Id. Under these circumstances,

we cannot say that the trial court’s findings were not supported by competent credible evidence.

{¶16} “A traffic stop is constitutionally valid when a law-enforcement officer witnesses a

motorist drive over the lane markings in violation of R.C. 4511.33, even without further evidence

of erratic or unsafe driving.” Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, syllabus. While Massey 7

contends that Mays is factually distinguishable because that case also involved slight weaving

within the driver’s lane, the Supreme Court ultimately concluded that the officer had reasonable

and articulable suspicion to initiate a traffic stop for a marked lane violation after twice observing

the driver cross over the white edge lines. Id. at ¶ 15-16; State v. Davis, 9th Dist. Lorain No.

14CA010639, 2015-Ohio-4218, ¶ 13 (concluding that law enforcement had reasonable suspicion

to effectuate a traffic stop where the officer observed “three or four” instances where the vehicle

crossed over the marked lane). Here, where Officer Boyer observed Massey commit two marked

lane violations, there was reasonable suspicion to effectuate a stop of his pickup truck.

{¶17} While the gravamen of Massey’s argument focuses on the basis for the traffic stop,

he further contends that police lacked probable cause to place him under arrest for OVI. This

argument is also without merit. After observing Massey commit multiple traffic violations, Officer

Boyer initiated a stop of Massey’s vehicle. Upon approaching the vehicle, Officer Boyer noticed

the odor of alcohol emanating from Massey’s person. Officer Boyer also observed that Massey’s

eyes were bloodshot and glassy. Based on these specific and articulable facts, Officer Boyer

removed Massey from the vehicle to perform field sobriety tests. See State v. Tomko, 9th Dist.

Summit No. 19253, 1999 WL 1037762, *3-4 (Nov. 3, 1999) (concluding that the defendant’s

bloodshot eyes and the smell of alcohol contributed to the officer’s reasonable suspicion to

continue the defendant’s detention for purposes of administering field sobriety tests). Officer

Boyer continued to smell alcohol on Massey’s person after he had exited his pickup truck. On the

HGN test, Massey demonstrated six out of six possible cues for impairment. Officer Boyer would

have administered the one-leg stand and walk-and-turn tests but Massey was unable to perform

them due to injury. These facts, when viewed in their totality, constituted probable cause to place

Massey under arrest for OVI as the evidence was sufficient to cause a prudent person to believe 8

that Massey was driving while impaired. See Akron v. Burch, 9th Dist. Summit No. 29024, 2019-

Ohio-121, ¶ 9.

{¶18} Massey’s sole assignment of error is overruled.

III.

{¶19} Massey’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT 9

HENSAL, J. SCHAFER, J. CONCUR.

APPEARANCES:

BRIAN J. WILLIAMS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.