[Cite as State v. Ferrell, 2013-Ohio-4651.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Patricia A. Delaney, J.
-vs-
                                                    Case No. 13 CAC 01 0001
STEPHEN FERRELL

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Municipal Court,
                                                Case Nos. 12 TRC 06056 & 12 TRC 11516


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          October 21, 2013



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

MARK CORROTO                                    WILLIAM T. CRAMER
PROSECUTING ATTORNEY                            470 Olde Worthington Road
ELIZABETH A. MATUNE                             Suite 200
ASSISTANT PROSECUTOR                            Westerville, Ohio 43082
70 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 13 CAC 01 0001                                                   2

Wise, J.

       {¶1}   Appellant Stephen Ferrell appeals the judgment of the Delaware County

Municipal Court, which convicted him on merged OVI counts, following the denial of his

suppression motion and his entry of pleas of no contest. The relevant facts leading to

this appeal are as follows.

       {¶2}   At about 12:15 AM on May 27, 2012, Officer David Leighty of the

Westerville Police Division encountered appellant, operating a 2004 Saab, stopped at a

traffic light at the intersection of State Street and Maxtown Road. As he made a left turn

at said intersection, Leighty noticed that appellant was not wearing a seatbelt. As

Leighty continued through his turn, he looked back and noticed the rear license plate of

the vehicle was not illuminated, even though the vehicle's headlights were on. The

officer made a U-turn and followed the Saab into a nearby grocery store parking lot.

       {¶3}   Upon further investigation, which is not at issue in the present appeal,

appellant was charged with operating a vehicle while under the influence in violation of

R.C. 4511.19(A)(1)(a), operating a vehicle with a prohibited level of alcohol in his blood

in violation of R.C. 4511.19(A)(1)(b), refusing to submit to chemical testing in violation of

R.C. 4511.19(A)(2), driving under suspension in violation of R.C. 4510.11, driving

without a seatbelt in violation of R.C. 4513.263, and failing to have his rear license plate

properly illuminated in violation of R.C. 4513.05.

       {¶4}   After the State received the results of a blood test, appellant was charged

with a second count of operating a vehicle with a prohibited level of blood-alcohol in

violation of R.C. 4511.19(A)(1)(b). It was further alleged that he had two prior OVI
Delaware County, Case No. 13 CAC 01 0001                                                3


convictions within six years, which elevated the potential punishment for the OVI-related

offenses.

       {¶5}   On August 14, 2012, appellant filed a motion to suppress. A suppression

hearing was conducted on September 24, 2012. On that date, the lab technician that

had analyzed the blood-draw was not available for the initial suppression hearing date.

The parties agreed to move forward with the challenges to the traffic stop at the first

hearing, taking the testimony of Officer Leighty. The matter was scheduled for a second

hearing to review issues relating to the preservation and testing of the blood sample.

However, the second hearing did not go forward; instead the court was provided with

photographs of appellant’s Saab, taken at some point subsequent to the stop in

question.

       {¶6}   On November 15, 2012, via a detailed twenty-three page judgment entry,

the trial court overruled the motion to suppress.

       {¶7}   On December 26, 2012, appellant pleaded no contest to all of the

aforesaid charges. The OVI offenses were all merged into the refusal count. In regard to

the refusal count, the court imposed three years of community control, 60 days in jail, a

fine of $1,000.00, a five-year license suspension, and a mandatory alcohol addiction

treatment program. The court imposed an additional consecutive ten days in jail, a fine

of $300.00, and a six-month license suspension for driving under suspension. In regard

to the seatbelt and license plate lighting violations, the court imposed specific fines

against appellant.

       {¶8}   Appellant thereupon filed a notice of appeal. He herein raises the following

sole Assignment of Error:
Delaware County, Case No. 13 CAC 01 0001                                                    4


      {¶9}     “I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO BE FREE

OF   UNREASONABLE          SEARCHES       AND    SEIZURES      UNDER      THE    FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

14 OF THE OHIO CONSTITUTION WHEN IT DENIED APPELLANT'S MOTION TO

SUPPRESS.”

                                                I.

      {¶10} In his sole Assignment of Error, appellant contends the trial court erred

and violated his constitutional rights in overruling his motion to suppress. We disagree.

      {¶11} 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. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. As a general rule,

“determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911.
Delaware County, Case No. 13 CAC 01 0001                                                     5


       {¶12} “It is well-settled law in Ohio that reasonable and articulable suspicion is

required for a police officer to make a warrantless stop.” State v. Bay, Licking App.No.

06CA113, 2007-Ohio-3727, ¶ 65, citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889. “* * * [R]easonable suspicion is not proof beyond a reasonable doubt,

but is judged by all the surrounding circumstances.” State v. Boyd (Oct. 10, 1996),

Richland App.No. 96-CA-3. However, when police observe a traffic offense being

committed, the initiation of a traffic stop does not violate Fourth Amendment

guarantees, even if the stop was pretextual or the offense so minor that no reasonable

officer would issue a citation for it. State v. Mullins, Licking App.No. 2006-CA-00019,

2006 WL 2588770, ¶ 26, citing Whren v. United States (1996), 517 U.S. 806, 116 S.Ct.

1769, 1774-75.

       {¶13} Appellant in the case sub judice essentially maintains the trial court

applied an erroneous legal standard by effectively requiring an operator of a motor

vehicle to provide “full illumination” of the rear license plate. He urges that the trial court

misinterpreted our affirmance of the denial of a suppression motion in State v. Helline,

Ashland App.No. 01COA01424, 2001-Ohio-1899. The facts of Helline entail a dual-light

system on a rear plate where one bulb was completely out and the other was heavily

covered with dirt. See id. at 1. We note the relevant traffic statute, R.C. 4513.05,

provides in pertinent part: “*** Either a tail light or a separate light shall be so

constructed and placed as to illuminate with a white light the rear registration plate, * * *

and render it legible from a distance of fifty feet to the rear. * * *” As noted in our

recitation of the facts of the present case, the trial court was supplied with several

photographs of the rear license plate area of appellant’s Saab, taken some time after
Delaware County, Case No. 13 CAC 01 0001                                                  6


the stop in question. The trial court judge subsequently stated that he was “willing to

accept the photos as a true representation of the appearance of the Saab’s license

plate at the time of the stop.” Judgment Entry Denying Motion to Suppress, November

15, 2012, at 10. As appellant correctly notes, the trial court, although ultimately

determining that the stop was valid, concluded that based on the photographs, the rear

license plate may have been at least partially illuminated, although more than half of the

letters/number on the plate appeared to be unlit. See id. at 10. The trial court judge,

nonetheless, did “give credence to Officer Leighty’s testimony, which convinces me that

the plate did not appear to be properly illuminated at the time of the traffic stop.” Id. at

10.

       {¶14} However, based on our de novo review of these issues (Ornelas, supra),

we are not bound by the trial court’s application of the post-incident photographic

exhibits. Our review of the transcript of the suppression hearing reveals that Officer

Leighty repeated at least ten times in his testimony his observation that appellant’s

Saab did not have an operating rear license plate light. See Tr. at 8, 9, 10, 22 (line 13),

22 (line 21), 24, 25, 26, and 27 (line 3) and 27 (line 10). At one point, he noted: “*** I

have been doing this long enough that when there is no license plate light it is

completely dark back there. You can’t see the plate.” Tr. at 25.

       {¶15} It has been aptly stated that “*** only when an officer is unable to articulate

a reasonable suspicion of either a traffic or equipment violation or some other violation

of law that an investigatory stop is not justified.” City of Akron v. Dotson, Summit

App.No. 19053, 1998 WL 852573 (emphases deleted), citing Delaware v. Prouse

(1979), 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660. Just as in our decision in
Delaware County, Case No. 13 CAC 01 0001                                                   7

Helline, reasonable and articulable grounds to make the stop could be properly found

where a law enforcement officer makes an on-the-road investigatory observation that a

vehicle’s license plate lighting is either non-existent or significantly obscured.

       {¶16} Accordingly, based upon the totality of the circumstances, we hold the

State presented sufficient evidence to support a finding of reasonable suspicion to

conduct the traffic stop in question. At that point, the officer's observation of the indicia

of intoxication justified a further investigatory detention. The trial court did not apply an

incorrect legal standard or otherwise err in denying appellant's motion to suppress

under the circumstances presented.

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

       {¶18} For the foregoing reasons, the judgment of the Municipal Court of

Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, J., concurs

Hoffman, P. J., concurs separately.




                                               ___________________________________
                                               HON. JOHN W. WISE


                                               ___________________________________
                                               HON. WILLIAM B. HOFFMAN


                                               ___________________________________
                                               HON. PATRICIA A. DELANEY

JWW/d 0913
Delaware County, Case No. 13 CAC 01 0001                                                        8

Hoffman, P.J., concurring

          {¶19} I concur in the majority’s decision to overrule Appellant’s sole assignment

    of error.

          {¶20} While we review de novo application of the law to the established facts,

    we are bound by the trial court’s factual finding regarding the post-incident

    photographic exhibits, unless such finding is against the manifest weight of the

    evidence. I interpret the majority opinion as concluding the trial court’s acceptance of

    the post-incident photos as a true representation of the appearance of the license plate

    at the time of the stop as being against the manifest weight of the evidence.

          {¶21} I would affirm the trial court’s ultimate decision without addressing whether

    its acceptance of the photos was against the manifest weight of the evidence. I find it

    unnecessary to do so.

          {¶22} The statute does not require the license plate be “fully-illuminated”;1

    rather, it be sufficiently illuminated to render it legible from a distance. The trial court’s

    conclusion the photographs establish the license plate may have been at least partially

    illuminated, although more than half of the letters/numbers appear to have been unlit;

    i.e., illegible, is sufficient to support a violation of R.C. 4513.05; thereby justifying the

    traffic stop.


                                                      _____________________________
                                                      HON. WILLIAM B. HOFFMAN




1
   I find Appellant’s suggestion the trial court found the license plate must be fully
illuminated to comply with the statute unpersuasive.
Delaware County, Case No. 13 CAC 01 0001                                       9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT



STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STEPHEN FERRELL                            :
                                           :
       Defendant-Appellant                 :         Case No. 13 CAC 01 0001




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Delaware County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
