[Cite as State v. Lemaster,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA3236 : vs. : Released: March 2, 2012 : BRANDY K. LEMASTER, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, and Jessica S. McDonald, Assistant Ohio Public Defender, Chillicothe, Ohio, for Appellant.

Toni L. Eddy, City of Chillicothe Law Director, and Michele R. Rout, Assistant City of Chillicothe Law Director, Chillicothe, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Appellant, Brandy Lemaster, appeals the Chillicothe Municipal

Court’s judgment denying her motion to suppress all evidence obtained from

an allegedly illegal stop. On appeal, Appellant contends that the court below

erred in ruling that there existed probable cause to stop her vehicle when the

video did not show any traffic violation in which to justify the stop. As we

conclude that the trooper had probable cause to stop Appellant’s vehicle, we

disagree. Accordingly, we affirm the trial court’s judgment. Ross App. No. 11CA3236 2

FACTS

{¶2} Appellant’s vehicle was stopped at 2:20 a.m. on May 28, 2010,

as it was travelling north on State Route 23 after Trooper Morgan of the

Ohio State Highway Patrol observed Appellant driving outside of the clearly

marked lanes of travel and weaving within her lane. Based upon this

observation, the trooper activated his emergency lights to initiate a traffic

stop. Upon making contact with Appellant, Appellant informed Trooper

Morgan that she was on her way to the hospital because she had just broken

her ankle. The trooper noted Appellant’s eyes appeared droopy, bloodshot

and glassy, her speech was affected, and she seemed lethargic. Appellant

also informed the trooper that she had taken Percocet and Xanax. After

performing and failing a Horizontal Gaze Nystagmus field sobriety test,

Appellant was transported by ambulance to Adena Medical Center.

{¶3} As Trooper Morgan’s shift was ending, Trooper Wilson took

over the investigation and met with Appellant at the hospital. After

Appellant refused a urine test, she was cited for OVI, as well as a marked

lanes violation. Appellant initially pled not guilty to the charges and the

matter was scheduled for trial. Prior to trial, on December 2, 2010,

Appellant filed a motion to suppress any evidence obtained by the allegedly

illegal stop. In support of her motion, Appellant argued that the video Ross App. No. 11CA3236 3

recording of the traffic stop failed to show that she left her lane of travel or

any other erratic driving that would have justified a stop.

{¶4} A suppression hearing was held on January 31, 2011, at which

Trooper Morgan testified for the State. Trooper Morgan testified that he

observed a marked lanes violation, and then turned on the video to observe

further driving, which he further testified exhibited weaving within the lane

of travel. In addition, the State introduced the video recording of the stop.

In response to claims by Appellant’s counsel that the video failed to show

any traffic violation, Trooper Morgan testified that he “could better see”

with his eyes “than this camera is showing.” Appellant did not offer any

evidence; however, Appellant’s counsel argued that the video failed to show

a marked lanes violation and as such there was no probable cause for the

stop.

{¶5} The trial court issued its findings in open court denying

Appellant’s motion to suppress. In reaching its decision, the trial court

noted that “if the Court had to rely solely on the video, the Court would

agree with Mrs. McDonald [Appellant’s counsel] that the video doesn’t

conclusively show marked lanes violation, but the Court believes the trooper

had the better perspective seated at that distance.” As a result, Appellant

entered a plea of no contest to the OVI offense, in exchange for the State Ross App. No. 11CA3236 4

dismissing the marked lanes charge. The trial court found Appellant guilty

of OVI and sentenced her accordingly. It is from the trial court’s denial of

her motion to suppress that Appellant now brings her timely appeal,

assigning a single assignment of error for our review.

ASSIGNMENT OF ERROR

“I. THE COURT BELOW ERRED IN RULING THAT THERE EXISTED PROBABLE CAUSE TO STOP THE DEFENDANT’S VEHICLE WHEN THE VIDEO DID NOT SHOW ANY TRAFFIC VIOLATION TO JUSTIFY THE STOP.”

LEGAL ANALYSIS

{¶6} In her sole assignment of error, Appellant contends that the trial

court erred in ruling that there existed probable cause to stop her vehicle

when the video did not show any traffic violation to justify the stop.

Appellant further states that the issue presented for review is whether the

trial court properly overruled her motion to suppress evidence when the

video evidence of the events surrounding the traffic stop was in direct

contradiction to the trooper’s testimony, and failed to show any violation of

law that would justify the stop.

{¶7} Our review of a decision on a motion to suppress “presents

mixed questions of law and fact.” State v. McNamara (1997),

,

; citing United States v. Martinez (C.A.11,

1992),

. At a suppression hearing, the trial court is in the Ross App. No. 11CA3236 5

best position to evaluate witness credibility. State v. Dunlap (1995),

,

,

. Accordingly, we must

uphold the trial court's findings of fact if competent, credible evidence in the

record supports them.

We then conduct a de novo review of the trial

court's application of the law to the facts. State v. Anderson (1995),

,

; State v. Fields (Nov. 29, 1999),

Hocking App. No. 99CA11,

.

{¶8} The Fourth Amendment to the United States Constitution and

Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the

people to be secure * * * against unreasonable searches and seizures * * *.”

Searches and seizures conducted without a prior finding of probable cause

by a judge or magistrate “are per se unreasonable under the Fourth

Amendment, subject to only a few specifically established and well-

delineated exceptions.” California v. Acevedo (1991),

,

; State v. Tincher (1988),

,

. If

the government obtains evidence through actions that violate an accused's

Fourth Amendment rights, that evidence must be excluded at trial.

{¶9} Appellant was initially stopped for a marked lanes violation.

R.C. 4511.33, which governs rules for driving in marked lanes provides as

follows: Ross App. No. 11CA3236 6

“(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 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.”

{¶10} A police officer may stop the driver of a vehicle after observing

a de minimis violation of traffic laws. State v. Guseman, Athens App. No.

08CA15,

at ¶ 20, citing, State v. Bowie, Washington App.

No. 01 CA34,

, ¶ 8, 12, and 16, citing Whren v. United

States (1996),

,

. See, also, Dayton v. Erickson

(1996),

, syllabus. When the officer has probable cause to

believe that a traffic violation has occurred, the detention of a motorist is

reasonable and constitutional. Id.; see, also, State v. McDonald, Washington

App. No. 04CA7,

.

{¶11} Appellant relies on the case of Village of New Lebanon v.

Blankenship (Montgomery C.P, 1993),

,

,

in support of her argument the trooper did not possess probable cause to

initiate a traffic stop. In Blankenship, the driver was stopped after he was

observed weaving in his own lane of travel, on a road without a centerline.

We find the facts of Blankenship to be distinguishable from the facts in this Ross App. No. 11CA3236 7

case. But see, State v. Guseman, supra (Judge Harsha’s concurring opinion

finding no need to distinguish from Blankenship because it is nonbinding

and finding that “any persuasive effect its rationale may have carried has

been extinguished by the subsequent rulings of the Supreme Court of the

United States and the Supreme Court of Ohio”). In Blankenship, the state

charged the defendant with a marked lane violation, contrary to R.C.

4511.33, despite the fact that the lanes were not marked and despite the fact

that the officer only observed the defendant weaving within his own lane of

travel. The court concluded that the officer's observations of the defendant

weaving in his own lane did not support a charge under R.C. 4511.33 or

R.C. 4511.25. In addition, as we noted in Guseman at ¶ 22, the key issue in

Blankenship was whether the officer could properly stop the defendant under

R.C. 4511.33 or R.C. 4511.25 when the officer only observed the defendant

weaving in his own lane. That is not the issue in this case.

{¶12} Here, the court found that the trooper observed Appellant travel

outside of marked lanes. Competent, credible evidence in the form of the

trooper’s testimony from the suppression hearing supports this finding,

despite the fact that this violation was not caught on the video. Although

Appellant attempts to argue that the trooper testified that Appellant’s

mirrors, rather than her tires, crossed over the line, a close review of the Ross App. No. 11CA3236 8

transcript reveals that the trooper clarified his testimony to state that her tires

crossed the lines, which prompted him to activate his video. Further,

although the trial court noted that the video, standing alone, was not enough

to show a marked lanes violation, the court noted its belief that the trooper’s

view would have been better than the camera view, and that the trooper was

believable. As such, the trial court found a marked lanes violation and

denied Appellant’s motion to suppress.

{¶13} Based on the totality of these circumstances, we find

competent, credible evidence in the record to support the trial court’s

decision and as such, we cannot conclude that the trial court erred when it

found that the trooper had probable cause to stop Appellant for a marked

lanes violation.

{¶14} Accordingly, we overrule Appellant’s sole assignment of error.

JUDGMENT AFFIRMED. Ross App. No. 11CA3236 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Chillicothe Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.