[Cite as State v. Hill,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case Nos. 2015 CA 00078 and MARK HILL 2015 CA 00079

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Alliance Municipal Court, Case Nos. 2014 CRB 1687 and 2014 TRC 4492

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 11, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MATTHEW S. KUHN STACEY M. ZIPAY ASSISTANT CITY PROSECUTOR PUBLIC DEFENDER OFFICE 470 East Market Street 201 Cleveland Avenue S.W., Suite 104 Alliance, Ohio 44601 Canton, Ohio 44702 Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 2

Wise, J.

{¶1} Appellant Mark Hill appeals from his convictions, in the Alliance Municipal

Court, for operating a vehicle while intoxicated (“OVI”), running a stop sign, and

possessing marijuana. Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

{¶2} On October 16, 2014, Officer Christopher McCord of the Alliance Police

Department was patrolling in his cruiser on East Main Street when he observed an

eastbound 2000 Chevrolet waiting to make a left turn onto another street. According to

the officer: “The car was in the turn lane to turn onto Mechanic [Avenue] but was at a

weird angle and the front of the car actually in the westbound lane.” Tr., Suppression

Hearing, at 9-10.

{¶3} As he approached closer, the officer observed the Chevrolet complete the

turn and rapidly proceed up Mechanic Avenue. Officer McCord, who estimated that the

Chevrolet was moving above the posted speed limit, followed the vehicle, watching it

cross some railroad tracks and approach the intersection of Mechanic Avenue and Ely

Street. According to the officer, the Chevrolet came to a complete stop at said intersection

short of the painted stop line at the stop sign; it then “went through the intersection without

clearing it safely.” Tr. at 10, 30. Officer McCord then effectuated a traffic stop. Appellant

Hill was thereby determined to be the driver of the vehicle.

{¶4} As a result of the aforesaid events, appellant was arrested for OVI (R.C.

4511.19(A)(1)(a); 4511.19(A)(1)(d) (breath); and 4511.19(A)(1)(e) (urine)). Appellant was

also cited for a stop sign violation (Alliance Codified Ordinance 331.19(A)), a seat belt Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 3

violation (Alliance Codified Ordinance 337.27), and possession of marijuana (Alliance

Codified Ordinance 513.03).

{¶5} Appellant thereafter entered pleas of not guilty in the Alliance Municipal

Court (hereinafter “trial court”).

{¶6} On December 12, 2014, appellant filed a motion to suppress. A hearing on

the motion was conducted on January 14, 2015. The trial court judge stated as follows at

the commencement of the hearing: “It’s my understanding that the motion to suppress is

a very narrow motion limited to the reasonable articulable suspicion for the actual stop of

defendant’s motor vehicle.” Tr. at 6. Defense counsel concurred with the court’s

assessment of such parameters.

{¶7} On January 27, 2015, the trial court issued a judgment entry denying the

motion to suppress. The trial court therein concluded that although appellant had not

violated the stop sign ordinance or any other traffic laws, the arresting officer’s

understanding of said ordinance, while found to be mistaken, was reasonable and did not

invalidate the traffic stop.

{¶8} On March 30, 2015, appellant pled no contest to, and was found guilty of,

one count of OVI, R.C. 4511.19(A)(1)(e), one count of violating the stop sign ordinance,

and one count of possession of marijuana. The remaining counts were dismissed.

{¶9} On April 27, 2015, appellant filed a notice of appeal. On May 21, 2015, this

Court consolidated both cases under number 2015CA00078. Appellant herein raises the

following sole Assignment of Error:

{¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS BECAUSE PATROLMAN MCCORD’S STOP OF APPELLANT WAS NOT Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 4

BASED ON A REASONABLE MISTAKEN UNDERSTANDING OF THE LAW IN

QUESTION.”

I.

{¶11} In his sole Assignment of Error, appellant challenges the trial court's denial

of his motion to suppress.

{¶12} 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. When

reviewing this third 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 the given case. See State v. Fanning (1982),

, 1 OBR

57,

; State v. Williams (1993),

,

; State

v. Curry (1994),

,

; State v. Claytor (1993),

,

; State v. Guysinger (1993),

,

. However, the United States Supreme Court has held that “... as a general

matter determinations of reasonable suspicion and probable cause should be reviewed

de novo on appeal.” Ornelas v. U.S. (1996),

,

,

.

{¶13} 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. Logan, 5th Dist. Richland No. 07-CA-56, Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 5

, quoting State v. Gedeon (1992),

.

Reasonable suspicion constitutes something less than probable cause. State v. Carlson

(1995),

. The propriety of an investigative stop must be viewed

in light of the totality of the circumstances. State v. Bobo (1988),

,

paragraph one of the syllabus. In a situation where the officer has observed a traffic

violation, the stop is constitutionally valid. Dayton v. Erickson (1996),

,

. In sum, “ ‘ * * * if an officer's decision to stop a motorist for a criminal

violation, including a traffic violation, is prompted by a reasonable and articulable

suspicion considering all the circumstances, then the stop is constitutionally valid.’ ” State

v. Adams, 5th Dist. Licking No. 15 CA 6,

, quoting State v. Mays,

,

, 2008–Ohio–4539, ¶ 8.

{¶14} The traffic law at issue, Alliance Codified Ordinance 331.19(A), is similar to

R.C. 4511.43. The ordinance states in pertinent part: "Except when directed to proceed

by a law enforcement officer, every driver of a vehicle approaching a stop sign shall stop

at a clearly marked stop line ***. After having stopped, the driver shall yield the right of

way to any vehicle in the intersection or approaching on another roadway so closely as

to constitute an immediate hazard during the time the driver is moving across or within

the intersection or junction of roadways."1

{¶15} The trial court in the case sub judice made the following pertinent findings,

which we find no basis to presently contradict:

1 We have not been presented herein with arguments directly pertaining to appellant’s other driving actions on the date in question, such as his positioning of the Chevrolet in relation to the marked lanes on East Main or his estimated rate of speed after making the turn onto Mechanic Street. Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 6

After crossing the railroad tracks, the Defendant's vehicle next

approached a clearly marked stop sign at the intersection of Mechanic St.

and Ely St. The intersection is also marked with a clearly painted "stop

block" or "stop line" of white reflective traffic paint on the pavement. All

persons agree that the Defendant came to a full and complete stop prior to

the stop line. Ptl. McCord testified that the Defendant stopped his vehicle

approximately five feet prior to the stop line, and that action is a violation of

A.C.O. 331.19(a) according to his understanding of the statute. He also

testified that the cruiser video did not provide a proper depiction of the depth

perception on this particular point, but that he personally observed the

vehicle to have stopped approximately five feet prior to the stop line, and he

believed that distance was too far back from the stop line to constitute

compliance with the statute. The headlights of the vehicle and the shadows

on the side of the road indicate to the Court that the vehicle appears closer

to the stop block than five feet as testified by the officer; however, the Court

accepts the officer's opinion as to distance as it is difficult to determine the

exact distance on the video due to the angles and depth perception

involved.

{¶16} Judgment Entry, January 27, 2015, at 2.

{¶17} The trial court went on to conclude that a complete stop five feet from a stop

line would not constitute a violation of A.C.O. 331.19. Id. at 5. However, the court found

the officer’s assessment of the law at the traffic stop to be a reasonable mistake. Id. at 6. Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 7

{¶18} We note, as did the trial court, that when an officer is confronted in the midst

of his or her duties with a situation requiring the application of an unclear statute, the

officer can still make a valid stop if the officer's mistaken interpretation of the law is

reasonable. See State v. Millerton, 2nd Dist. Montgomery No. 26209,

,

, ¶ 16, citing Heien v. North Carolina, ––– U.S. ––––,

,

(2014). Appellant herein recognizes the rule of Heien, but he urges that the

law enforcement officer in that case was required to interpret a more complex North

Carolina statute involving the operability of a “stop lamp” within a motor vehicle’s rear

lighting system. See Appellant’s Brief at 9.

{¶19} Appellant then directs us, in contrast, to State v. Drushal, 9th Dist. Wayne

No. 13CA0028,

, wherein the Ninth District Court of Appeals found the

basic language in the Wooster Codified Ordinances that "a vehicle approaching a stop

sign shall stop at a clearly marked stop line” to be unambiguous. Id. at ¶ 12.2 Appellant

secondly points to State v. Abele, 4th Dist. Jackson No. 04CA7,

, which

involved a defendant’s vehicle making a complete stop directly behind another vehicle

which had stopped beyond the stop line, and then proceeding through the intersection

behind the “lead vehicle,” without stopping a second time. Id. at ¶ 2. The Fourth District

Court of Appeals ruled that without evidence from the State indicating where the

defendant had stopped in relation to the stop line, the State failed to sufficiently prove a

stop-sign violation under the Ohio statute, R.C. 4511.43. Id. at ¶ 11. Appellant thus

maintains that the language of A.C.O. 331.19 is clear and urges us to find the United

2 The facts in Drushal indicate the driver had stopped either just at or somewhat on top of the stop line, but not “before” it, which is how the Wooster officer interpreted the law. See id. at ¶ 4. Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 8

States Supreme Court’s holding in Heien to be inapplicable in the present context, i.e.,

where the officer believed that appellant simply did not stop “at” the stop line by stopping

approximately five feet short.

{¶20} It is well-established that an officer's reasonable articulable suspicion does

not require proof beyond a reasonable doubt that the defendant's conduct has satisfied

the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103, 2015-Ohio-

3739, ¶ 25, citing Westlake v. Kaplysh,

,

(8th

Dist. 1997). We find it noteworthy in the case sub judice that Officer McCord’s

interpretation of the stop-sign ordinance at the scene may have involved general safety

concerns about the particular location, which he indicated often incorporates several cars

parked on Ely Street near a corner house: “I know going through that intersection all the

time that if you don’t actually pull all the way up to the intersection that a car can come by

and you’re going to end up scaring yourself or someone else a little bit.” Tr. at 18.

{¶21} Upon review, we find the officer’s imperfect interpretation of the Alliance

stop-sign ordinance at the time in question to be objectively reasonable under the totality

of the circumstances, and we therefore find no reversible error in the trial court's denial of

appellant’s suppression motion in the instant case. Stark County, Case Nos. 2015 CA 00078 and 2015 CA 00079 9

{¶22} Appellant's sole Assignment of Error is overruled.

{¶23} For the reasons stated in the foregoing opinion, the judgment of the Alliance

Municipal Court, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

JWW/d 0324