[Cite as State v. Muller, 2013-Ohio-3438.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 12 CAC 11 0080 : EUGENE MULLER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 12 TRC 07370
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH E. SCHMANSKY MICHAEL A. MARROCCO City Prosecutor 98 N. Union St. 70 N. Union St. Delaware, OH 43015 Delaware, OH 43015 Delaware County, Case No.12 CAC 11 0080 2
Delaney, J.
{¶1} Defendant-Appellant Eugene Muller appeals the September 7, 2012
judgment entry of the Delaware Municipal Court denying Muller’s motion to suppress.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 26, 2012, Defendant-Appellant Eugene Muller was cited for
operating a motor vehicle under the influence of alcohol, in violation of R.C.
4511.19(A)(1)(a) and 4511.19(A)(1)(h); marked lanes violation, in violation of R.C.
4511.33; and child endangering. Muller filed a plea of not guilty.
{¶3} Muller filed a motion to suppress on August 6, 2012. He requested the
trial court suppress any and all information gathered by law enforcement from the illegal
stop of Muller, because the initial seizure of Muller was accomplished in the absence of
any reasonable and articulable suspicion or probable cause that Muller had violated any
law. Muller also argued the BAC test was not administered in substantial compliance
with Ohio Department of Health rules and regulations. Muller does not raise this second
issue on appeal.
{¶4} A hearing on the motion to suppress was held before the trial court on
August 30, 2012. The following facts were adduced at the suppression hearing.
{¶5} On June 23, 2012, Trooper Frank Applegate with the Ohio State Highway
Patrol was patrolling southbound on U.S. 23 in Delaware County, Ohio. Trooper
Applegate observed Muller driving in the right lane, approximately ten miles per hour
below the speed limit. As Trooper Applegate ran a check of Muller’s license plate, the
officer testified he observed Muller drive over the right fog line onto the shoulder Delaware County, Case No.12 CAC 11 0080 3
approximately by two to three tire widths. Trooper Applegate initiated a traffic stop of
Muller’s vehicle around 1:19 a.m. In the vehicle were Muller, his minor son, and dog.
{¶6} Trooper Applegate testified the basis for the traffic stop was a marked
lanes violation for traveling over the white fog line and back into his lane.
{¶7} Trooper Applegate’s vehicle was equipped with video equipment. The
video recording of the traffic stop was played to the trial court and admitted into
evidence as State’s Exhibit 1.
{¶8} After the traffic stop, Trooper Applegate administered field sobriety tests to
Muller. The parties stipulated at the hearing that the officer administered the field
sobriety tests in substantial compliance with the NHTSA standards. Based on the
administration of the field sobriety tests, Trooper Applegate placed Muller under arrest
for operating a vehicle while under the influence of alcohol or drugs. Trooper Applegate
administered the breath test on a BAC Datamaster at 3:13 a.m. The test registered a
reading of 0.161 grams of alcohol per 210 liters of breath.
{¶9} On September 7, 2012, the trial court issued its judgment entry denying
Muller’s motion to suppress. The trial court found the officer testified the vehicle
crossed completely over the right fog line by two to three tire widths. The trial court
found the video evidence showed the tires completely crossed the right edge of the line
by one tire width. The trial court held Trooper Applegate had a reasonable and
articulable suspicion Muller violated R.C. 4511.33.
{¶10} Muller entered a no contest plea to R.C. 4511.19(A)(1)(a) and the
remaining charges were dismissed. The trial court found Muller guilty. Muller’s
sentence was stayed on November 26, 2012 pending appeal. Delaware County, Case No.12 CAC 11 0080 4
ASSIGNMENTS OF ERROR
{¶11} Muller raises two Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT’S VEHICLE
COMPLETELY CROSSED THE FOG LINE BY A TIRE’S WIDTH.
{¶13} “II. THE TRIAL COURT ERRED IN FINDING THE TROOPER HAD A
LAWFUL BASIS TO STOP APPELLANT’S VEHICLE.”
ANALYSIS
{¶14} We consider Muller’s two Assignments of Error together because they are
interrelated. Muller argues the trial court erred in finding Trooper Applegate had a basis
to initiate a traffic stop of Muller. We disagree.
{¶15} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141 (4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th
Dist.1993). Second, an appellant may argue 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. State v. Williams, 86 Ohio
App.3d 37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings
of fact are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this type of Delaware County, Case No.12 CAC 11 0080 5
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. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v.
Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist.1993); Guysinger. As the United
States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134
L.Ed.2d 911 (1996), “... as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”
{¶16} Muller argues the trial court’s finding that the tires of Muller’s vehicle
completely crossed the white fog line by one tire width was against the manifest weight
of the evidence. He next argues the trial court erred in finding the Trooper had a lawful
basis for stopping Muller’s vehicle.
{¶17} The issue is whether or not Trooper Applegate had reasonable, articulable
suspicion to stop Muller’s vehicle. An investigative stop of a motorist does not violate
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[Cite as State v. Muller, 2013-Ohio-3438.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 12 CAC 11 0080 : EUGENE MULLER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 12 TRC 07370
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH E. SCHMANSKY MICHAEL A. MARROCCO City Prosecutor 98 N. Union St. 70 N. Union St. Delaware, OH 43015 Delaware, OH 43015 Delaware County, Case No.12 CAC 11 0080 2
Delaney, J.
{¶1} Defendant-Appellant Eugene Muller appeals the September 7, 2012
judgment entry of the Delaware Municipal Court denying Muller’s motion to suppress.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 26, 2012, Defendant-Appellant Eugene Muller was cited for
operating a motor vehicle under the influence of alcohol, in violation of R.C.
4511.19(A)(1)(a) and 4511.19(A)(1)(h); marked lanes violation, in violation of R.C.
4511.33; and child endangering. Muller filed a plea of not guilty.
{¶3} Muller filed a motion to suppress on August 6, 2012. He requested the
trial court suppress any and all information gathered by law enforcement from the illegal
stop of Muller, because the initial seizure of Muller was accomplished in the absence of
any reasonable and articulable suspicion or probable cause that Muller had violated any
law. Muller also argued the BAC test was not administered in substantial compliance
with Ohio Department of Health rules and regulations. Muller does not raise this second
issue on appeal.
{¶4} A hearing on the motion to suppress was held before the trial court on
August 30, 2012. The following facts were adduced at the suppression hearing.
{¶5} On June 23, 2012, Trooper Frank Applegate with the Ohio State Highway
Patrol was patrolling southbound on U.S. 23 in Delaware County, Ohio. Trooper
Applegate observed Muller driving in the right lane, approximately ten miles per hour
below the speed limit. As Trooper Applegate ran a check of Muller’s license plate, the
officer testified he observed Muller drive over the right fog line onto the shoulder Delaware County, Case No.12 CAC 11 0080 3
approximately by two to three tire widths. Trooper Applegate initiated a traffic stop of
Muller’s vehicle around 1:19 a.m. In the vehicle were Muller, his minor son, and dog.
{¶6} Trooper Applegate testified the basis for the traffic stop was a marked
lanes violation for traveling over the white fog line and back into his lane.
{¶7} Trooper Applegate’s vehicle was equipped with video equipment. The
video recording of the traffic stop was played to the trial court and admitted into
evidence as State’s Exhibit 1.
{¶8} After the traffic stop, Trooper Applegate administered field sobriety tests to
Muller. The parties stipulated at the hearing that the officer administered the field
sobriety tests in substantial compliance with the NHTSA standards. Based on the
administration of the field sobriety tests, Trooper Applegate placed Muller under arrest
for operating a vehicle while under the influence of alcohol or drugs. Trooper Applegate
administered the breath test on a BAC Datamaster at 3:13 a.m. The test registered a
reading of 0.161 grams of alcohol per 210 liters of breath.
{¶9} On September 7, 2012, the trial court issued its judgment entry denying
Muller’s motion to suppress. The trial court found the officer testified the vehicle
crossed completely over the right fog line by two to three tire widths. The trial court
found the video evidence showed the tires completely crossed the right edge of the line
by one tire width. The trial court held Trooper Applegate had a reasonable and
articulable suspicion Muller violated R.C. 4511.33.
{¶10} Muller entered a no contest plea to R.C. 4511.19(A)(1)(a) and the
remaining charges were dismissed. The trial court found Muller guilty. Muller’s
sentence was stayed on November 26, 2012 pending appeal. Delaware County, Case No.12 CAC 11 0080 4
ASSIGNMENTS OF ERROR
{¶11} Muller raises two Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT’S VEHICLE
COMPLETELY CROSSED THE FOG LINE BY A TIRE’S WIDTH.
{¶13} “II. THE TRIAL COURT ERRED IN FINDING THE TROOPER HAD A
LAWFUL BASIS TO STOP APPELLANT’S VEHICLE.”
ANALYSIS
{¶14} We consider Muller’s two Assignments of Error together because they are
interrelated. Muller argues the trial court erred in finding Trooper Applegate had a basis
to initiate a traffic stop of Muller. We disagree.
{¶15} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141 (4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th
Dist.1993). Second, an appellant may argue 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. State v. Williams, 86 Ohio
App.3d 37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings
of fact are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this type of Delaware County, Case No.12 CAC 11 0080 5
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. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v.
Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist.1993); Guysinger. As the United
States Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134
L.Ed.2d 911 (1996), “... as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”
{¶16} Muller argues the trial court’s finding that the tires of Muller’s vehicle
completely crossed the white fog line by one tire width was against the manifest weight
of the evidence. He next argues the trial court erred in finding the Trooper had a lawful
basis for stopping Muller’s vehicle.
{¶17} The issue is whether or not Trooper Applegate had reasonable, articulable
suspicion to stop Muller’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
(1968). 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 Delaware County, Case No.12 CAC 11 0080 6
of the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), ¶ 2 of
the syllabus.
{¶18} Upon viewing the video recording admitted as State’s Exhibit 1, the trial
court concluded Trooper Applegate had reasonable suspicion that Muller violated R.C.
4511.33 because the tires of Muller’s vehicle completely crossed the white fog line by
one tire width. R.C. 4511.33 states, in relevant part: “(A) Whenever any roadway has
been divided into two or more clearly marked lanes for traffic, or wherever within
municipal corporations traffic is lawfully moving in tow 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 drive has first ascertained that
such movement can be made with safety.”
{¶19} This Court reviewed the video recording and we agree with the trial court’s
findings of fact. At the time of the traffic stop, Muller was driving in the right lane and
Trooper Applegate was driving in the left lane behind Muller’s vehicle. As Muller
rounded a curve to the right, the video recording shows Muller’s right rear tire
completely crossing the white fog line. The left edge of the rear tire touches the outer
edge of the white fog line, but the tire is completely on the pavement of the shoulder,
outside the white fog line.
{¶20} The trial judge is in the best position to determine the credibility of
witnesses, and his conclusion in this case is supported by competent facts. See State
v. Burnside, 100 Ohio St.3d 152, 154–55, 797 N.E.2d 71, 74 (2003). The fundamental
rule that weight of evidence and credibility of witnesses are primarily for the trier of fact Delaware County, Case No.12 CAC 11 0080 7
applies to suppression hearings as well as trials. State v. Fanning, 1 Ohio St.3d 19, 20,
437 N.E.2d 583, 584 (1982). The manifest weight of the evidence supports the finding
that Muller was not traveling within the lanes marked for travel. Therefore, the factual
finding of the trial court that Muller was not traveling within the lanes marked for travel is
not clearly erroneous.
{¶21} The facts in this case can be distinguished from State v. Houck, 5th Dist.
Licking No. 11-CA-49, 2011-Ohio-6359. In that case, the officer testified he observed
the defendant’s vehicle travel under the posted speed limit, swerve back and forth within
the lane of travel, and cross the yellow center line. The officer’s vehicle was equipped
with a video recording device. The defendant argued the officer lacked a reasonable
suspicion to initiate a traffic stop. The trial court granted the motion to suppress and the
State appealed.
{¶22} We found the video recording demonstrated the defendant’s vehicle did
not appear to swerve back and forth and did not appear to drive left of center. Id. at ¶
12. Reviewing the traffic stop under the totality of the circumstances, we affirmed the
trial court’s decision that the officer did not have a reasonable, articulable suspicion
upon which to base the stop. Id. at ¶ 17.
{¶23} In the present case, the record establishes Muller committed a marked
lanes violation. Trooper Applegate also testified he observed Muller travelling ten miles
below the posted speed limit, although the officer did not cite Muller for that offense.
Reviewing the traffic stop under the totality of the circumstances, we find the trial court
did not err in denying the motion to suppress because the officer had a reasonable,
articulable suspicion upon which to base the initial stop of Muller. Delaware County, Case No.12 CAC 11 0080 8
{¶24} Muller’s two Assignments of Error are overruled.
CONCLUSION
{¶25} The Assignments of Error raised by Defendant-Appellant Eugene Muller
are overruled.
{¶26} The judgment of the Delaware Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. CRAIG R. BALDWIN