State v. Snell

2021 Ohio 482

• Court: Ohio Court of Appeals
• Decided: February 19, 2021
• Docket: 20CA0064
• Status: Published

Opinion

[Cite as State v. Snell, 2021-Ohio-482.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 20CA0064 DOMINIK A.R. SNELL : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 20CR355

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: February 19, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

PAULA SAWYERS ANDREW T. SANDERSON Assistant County Prosecutor Burkett & Sanderson 20 South Second Street, 4th Floor 738 East Main Street Newark, OH 43055 Lancaster, OH 43130 [Cite as State v. Snell, 2021-Ohio-482.]

Gwin, J.,

{¶1} Appellant the State of Ohio appeals the October 19, 2020 judgment entry

of the Licking County Court of Common Pleas granting appellee Dominik Snell’s motion

to suppress evidence.

Facts & Procedural History

{¶2} On July 23, 2020, appellee was indicted on the following: Count I,

aggravated possession of a controlled substance (methamphetamine), in violation of R.C.

2925.11(A)(C)(1)(c), a felony of the second degree, and Count II, possession of a defaced

firearm, in violation of R.C. 2923.201(A)(2), a misdemeanor of the first degree.

{¶3} Appellant filed a bill of particulars on August 13, 2020. The bill of particulars

contains the following facts: On July 15, 2020, the Central Ohio Regional Drug

Enforcement Task Force was conducting surveillance on an alleged known drug location

on Union Street in Newark. Detectives witnessed a red Volkswagen park in front of the

location and the occupants of the vehicle enter the building. When the vehicle left the

location, the vehicle traveled eastbound on West Main Street. The vehicle stopped at the

red light at West Main Street and 5th Street. Officer Burris conducted a traffic stop after

witnessing the vehicle failed to signal when turning right onto 5th Street. Appellee was

the driver of the vehicle. After the traffic stop, the officer conducted a K9 free air sniff.

The K9 positively alerted on the vehicle. The officer searched the vehicle, and found a

firearm and a baggie of 22.529 grams of methamphetamine in a lockbox located under

the front passenger seat. Appellee was interviewed after being mirandized, and stated

that everything in the vehicle belonged to him, including the lockbox. Licking County, Case No. 20CA0064 3

{¶4} Appellee filed a motion to suppress on September 8, 2020. Appellee

argued as follows: it is impossible to tell from the video whether appellee failed to signal

100 feet before turning due to the obstructed view of the cruisers and the distance

between the police vehicle and the Volkswagen; the traffic stop was a pretext; the officer

delayed the stop beyond a period permissible by law; and his seizure was beyond that

which was reasonably necessary to effectuate a traffic stop for the stated purpose.

{¶5} Appellant filed a memorandum in opposition on September 18, 2020. With

regards to the argument on the turn signal, the citation in appellant’s response

memorandum is to R.C. 4511.22(A). However, the text of the statute cited in opposition

to the motion is the text of R.C. 4511.39(A). Appellee filed a reply brief on September 29,

2020.

{¶6} The trial court held a hearing on the motion to suppress on October 19,

2020. Prior to the presentation of evidence, the court questioned the parties about the

motion, response, and reply. Counsel for appellee stated he meant to cite R.C.

4511.39(A) in his motion. The trial court continued as follows:

The problem is that it [R.C. 4511.39(A)] doesn’t apply here. And you say in

your motion specifically that Mr. Snell came up to the red light, stopped at

the red light and turned, and that’s governed by 4511.36. 4511.36 is rules

for turns at intersections so – well, that’s right turn. I take it back.

4511.13(A)(1) is the one for turns at the intersection.

So, let’s look at 4511.13(A)(1) and see how we’re supposed to drive our

motor vehicle as we were taught in driver’s school. Highway traffic signal

indications for vehicles and pedestrians shall have the following meanings: Licking County, Case No. 20CA0064 4

steady green indicates vehicle traffic facing a circular green signal are

permitted to proceed straight or turn right or left or make a u-turn through

the intersection. So, when you come up to a green light at a traffic light, you

can go three ways without any signal at all. You don’t need to make it

continuously; you can’t make it continuously. That’s why it says when

appropriate or when required. It’s not required at a traffic light. Anybody

can turn any way they want once they come to a stop at a red traffic light

and it turns green without a signal.

So, on that basis, I think I’m going to be required to grant their motion to

suppress here today since there’s no basis to issue a ticket or to stop them

for that reason * * *.

{¶7} The trial court asked counsel for appellant whether there was anything else

he could think of, and counsel responded, “No, Your Honor.”

{¶8} The trial court issued a judgment entry on October 19, 2020, granting

appellee’s motion to suppress. The trial court stated as follows: “[p]rior to the presentation

of evidence, the Court represented to the parties that pursuant to R.C. 4511.13(A)(1) of

the Revised Code, there is no basis to have issued a ticket in this matter and the Court,

therefore, finds the motion to suppress be well taken and grants the same.”

{¶9} Appellant appeals the October 19, 2020 judgment entry of the Licking

County Court of Common Pleas and assigns the following as error:

{¶10} “I. THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION TO

SUPPRESS.” Licking County, Case No. 20CA0064 5

I.

{¶11} 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); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist. 1991). 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. Id. Finally, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in a

motion to suppress. Id. 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. Curry, 95 Ohio

App.3d, 620 N.E.2d 906 (8th Dist. 1994).

{¶12} Appellant contends the trial court committed error in granting the motion to

suppress without allowing them to present evidence or, in the alternative, that the trial

court failed to apply the correct law to the findings of fact and incorrectly decided the

ultimate issue in its interpretation of R.C. 4511.13(A)(1) and R.C. 4511.39(A).

{¶13} R.C. 4511.13 states, “[h]ighway traffic signal indications for vehicles * * *

shall have the following meaning,” and provides the following for a steady green signal

indication: “Vehicular traffic * * * facing a circular green signal indication are permitted to

proceed straight through or turn right or left or make a u-turn movement except as such

movement is modified by a lane-use signal, turn prohibition sign, lane marking, roadway Licking County, Case No. 20CA0064 6

design, separate turn signal indication, or other traffic control device * * *.” R.C.

4511.13(A)(1).

{¶14} R.C. 4511.39(A), entitled “turn and stop signals,” states:

No person shall turn a vehicle or trackless trolley or move right or left upon

a highway unless such person has exercised due care to ascertain that the

movement can be made with reasonable safety nor without giving an

appropriate signal in the manner hereinafter provided.

When required, a signal of intention to turn or move right or left shall be

given continuously during not less than the last one hundred feet traveled

by the vehicle or trackless trolley before turning * * *.

{¶15} The trial court’s specific findings of fact with respect to the pleadings in this

case are as follows: (1) appellee stopped at the red light controlling the intersection in

question; (2) appellee turned when the light turned green; (3) appellee turned without

signaling 100 feet prior to the intersection in question; and (4) appellee was seized without

a warrant. Appellant contends the trial court did not properly apply the appropriate law to

these findings of fact and/or incorrectly decided the ultimate issue.

{¶16} We agree with appellant. There is nothing in the language of either R.C.

4511.39(A) or R.C. 4511.13 that provides they are exclusive of each other, or that R.C.

4511.39(A) does not apply in a case where a vehicle is stopped at a light. The plain

language of R.C. 4511.13(A)(1) provides that at a steady green circle, a vehicle is

permitted to turn right or left. However, simply because a driver is permitted to turn these

directions does not relieve the driver of the duty to comply with R.C. 4511.39(A). Licking County, Case No. 20CA0064 7

{¶17} “In pari materia” is a rule of statutory construction – the meaning of which is

that the General Assembly, in enacting a statute, is assumed to have been aware of other

statutory provisions concerning the subject matter of the enactment.” See Meeks v.

Papadopulos, 62 Ohio St.2d 187, 404 N.E.2d 159 (1980). “All legislative provisions that

relate to the same general subject matter must be read in pari materia, and in construing

these provisions together, courts must harmonize and give full application to all provisions

‘unless they are irreconcilable and in hopeless conflict.’” City of Canton v. Burns, 5th Dist.

Stark No. 2015CA00164, 2016-Ohio-4885, quoting State v. Cook, 128 Ohio St.3d 120,

2020-Ohio-6305, 942 N.E.2d 357. In this case, R.C. 4511.13(A)(1) and R.C. 4511.39(A)

are not in hopeless conflict and can both be given full application.

{¶18} At the hearing, the trial court stated that the “when required” language in

R.C. 4511.39(A) indicates a turn signal is not required at a traffic light. However, neither

the plain language of R.C. 4511.39(A), the plain language of R.C. 4511.13, or the case

law support this conclusion. Rather, the case law discussing the “when required”

language focuses on what is considered a “turn” pursuant to the statute and holds that

the “when required” language is “not itself meant to create a conditional aspect to the

statute’s requirements,” but “references the signal requirement in the first paragraph of

the statute.” State v. Smith, 4th Dist. Washington No. 03CA50, 2004-Ohio-791; State v.

Lowman, 82 Ohio App.3d 831, 613 N.E.2d 692 (12th Dist. Warren 1992) (“when required”

refers to a situation in which a driver turns on the roadway; language not intended to make

the requirement conditional); State v. Trout, 5th Dist. Licking No. 18-CA-00043, 2019-

Ohio-124 (holding a turn signal was not required pursuant to R.C. 4511.39(A) because Licking County, Case No. 20CA0064 8

the curvature of the roadway is not “a turn”); State v. Jerew, 1999 WL 292616, 3rd Dist.

Wyandot No. 9-98-47 (Feb. 22, 1999).

{¶19} In this case, there is no dispute that the movement of appellee’s vehicle was

considered a turn pursuant to R.C. 4511.39(A).

{¶20} The plain language of R.C. 4511.39(A) supports appellant’s argument that

a driver who is turning must use a turn signal no less than 100 feet prior to turning, and

there is no exclusion for a vehicle stopped at a traffic light prior to a turn. The comment

to R.C. 4511.39(A) provides, “the section requires a signal to be given not only before

making a right or left turn, but also before changing lanes, passing another vehicle, or

pulling into or out of a parking place.” Further, that the “section modifies the requirement

that a signal be given in sufficient time to amply warn other traffic, by requiring that a

signal be given continuously for at least 100 feet before turning.” 1975 Legislative Service

Comment to R.C. 4511.39(A). The Digest of Ohio Motor Vehicle Laws, a product of the

Ohio Department of Public Safety, provides, “turn signals must be used to show intention

to turn right or left, to change course of direction, or to change lanes on a multi-lane road.

They should be turned on well in advance of the planned change of direction (at least 100

feet).”

{¶21} Case law in this district and other districts supports appellant’s argument

that a driver who is turning must use a turn signal no less than 100 feet prior to turning.

State v. Jerew, 1999 WL 292616, 3rd Dist. Wyandot No. 9-98-47 (Feb. 22, 1999) (vehicle

stationary at red light; when light changed, appellant turned right without activating his

turn signal; appellant was in violation of R.C. 4511.39); State v. Delevie, 5th Dist. Licking

No. 18-CA-111, 2019-Ohio-3563 (R.C. 4511.39 requires a motorist to both use Licking County, Case No. 20CA0064 9

reasonable care and to signal when making a turn, and failure to do either gives rise to a

traffic violation); State v. Bennett, 5th Dist. Guernsey No. 2010-CA-34, 2011-Ohio-4527

(appellant’s vehicle made a right-hand turn onto road and did not use a turn signal; finding

that appellant committed a traffic violation was not clearly erroneous); State v. Brunner,

5th Dist. Stark No. 2007CA00285, 2008-Ohio-4519 (even though the traffic citation was

minimal and perhaps pretextual, the officer had reasonable suspicion to make a traffic

stop when appellant moved from his lane of travel to the curb without activating a turn

signal); State v. Bangoura, 5th Dist. Licking No. 08 CA 95, 2009-Ohio-3339 (stop of

vehicle constitutionally valid even if the stop was pretext for the officer’s motive of

investigating reports of drug activity when the vehicle made a right turn without using a

signal); State v. Durosko, 5th Dist. Fairfield No. 2019 CA 00048, 2020-Ohio-3133

(appellant turned on turn signal less than 100 feet before turning; regardless of whether

“turn” under R.C. 4511.39(A) includes the distance traveled while a vehicle completes the

act of turning, the range of distances by the parties was sufficient for officer to reasonably

conclude a violation occurred); State v. Burnett, 1st Dist. Hamilton Nos C-110565, C-

110567 (regardless of whether traffic would have been affected by the failure to signal,

the officers would still have had justification to make the stop because it is a violation of

R.C. 4511.39 to fail to signal); State v. Smith, 4th Dist. Washington No. 03CA50, 2004-

Ohio-791 (R.C. 4511.39 requires drivers to use a turn signal when making a turn, even if

they are in the “turn only” lane); State v. Lowman, 82 Ohio App.3d 831, 613 N.E.2d 692

(12th Dist. Warren 1992) (state not required to prove appellant’s failure to signal interfered

with the movement of other drivers). Licking County, Case No. 20CA0064 10

{¶22} Based on the foregoing, we find the trial court failed to apply the correct law

to the findings of fact and/or incorrectly decided the ultimate or final issue in its

interpretation of R.C. 4511.13(A)(1) and R.C. 4511.39(A). Appellant’s assignment of error

is sustained.

{¶23} The October 19, 2020 judgment entry of the Licking County Court of

Common Pleas is reversed and remanded for further proceedings in accordance with this

opinion.

By Gwin, J.,

Baldwin, P.J., and

Delaney, J., concur