[Cite as State v. Locker, 2015-Ohio-4953.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2015 CA 00050
GARY LOCKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No. 2015 TRC 0207


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 30, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH MARTUCCIO                               JEFFRY SERRA
CANTON LAW DIRECTOR                            THE FERRUCCIO LAW FIRM
TYRONE D. HAURITZ                              301 Cleveland Avenue NW
CANTON CITY PROSECUTOR                         Canton, Ohio 44702
218 Cleveland Avenue SW
Canton, Ohio 44701
Stark County, Case No. 2015 CA 00050                                                     2

Wise, J.

       {¶1}   Appellant Gary Locker appeals the decision of the Canton Municipal Court,

Stark County, which denied his motion to suppress evidence in an OVI case.

       {¶2}   Appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS

       {¶3}    The relevant facts leading to this appeal are as follows:

       {¶4}   On Friday, January 9, 2015, at approximately 11:35 p.m., Sergeant

Goodnite initiated a traffic stop on Walnut Avenue southbound near Third Street in the

city of Canton. (T. at 5). Walnut Avenue is a one-way street, with three lanes that travel

southbound. Id. Before stopping the vehicle, Sgt. Goodnite observed Appellant's vehicle

make a right-hand turn onto Walnut. Id. While making this turn, Appellant committed a

marked lanes offense, in violation of R.C. §4511.33. (T. at 19). The marked lanes offense

occurred when Appellant's vehicle crossed the right lane over the dash line into the middle

lane, and then went back into the right lane. (T. at 5).

       {¶5}   Sgt. Goodnite then stopped Appellant's vehicle for the violations he had

observed. (T. at 5).

       {¶6}   Sgt. Goodnite stated that upon making contact with Appellant, he observed

the odor of alcohol. (T. at 6). He stated that he also observed that Appellant's eyes were

bloodshot and glassy. Id. Appellant informed Sgt. Goodnite that he was coming from a

place that served alcohol, although Sgt. Goodnite could not recall the name of the

establishment at the suppression hearing. (T. at 28).

       {¶7}   Based on his observations to this point, Sergeant Goodnite asked Appellant

to perform standardized field sobriety tests. (T. at 7). The first test Sgt. Goodnite
Stark County, Case No. 2015 CA 00050                                                        3


administered was the Horizontal Gaze Nystagmus Test. (T. at 7, 9). Sgt. Goodnite

observed six out of six clues that would indicate nystagmus. (T. at 9). Sergeant Goodnite

testified that this meant there was a seventy-seven percent chance that Appellant would

test above a .10 for alcohol. (T. at 9).

       {¶8}   Next, Sergeant Goodnite administered the walk-and-turn test. (T. at 9).

During this test, Appellant failed to touch heel to toe on each step, failed to keep his hands

at his side during the turn, turned to the right instead of the left, raised his arms for

balance, and also moved his feet during the instruction phase. (T. at 10).

       {¶9}   The last test Sgt. Goodnite administered was the one-leg stand test. (T. at

10). During this test, Appellant put his foot down nine (9) times in the thirty seconds he

was asked to have it raised, and he raised his arms for balance. (T. at 12).

       {¶10} As a result of the above, Appellant was charged with one count of OVI, in

violation of R.C. §4511.19(A)(1)(a) and R.C. §4511.19(A)(1)(d), and one count of Driving

in Marked Lanes, in violation of R.C. §4511.33. Sgt. Goodnite testified that instead of

charging Appellant for both minor misdemeanor violations, he only cited him for one. (T.

at 18-19).

       {¶11} On February 12, 2015, Appellant filed a Motion to Suppress arguing there

was no reasonable, articulable suspicion of criminal activity and/or lawful cause to request

Appellant to exit his vehicle and perform field sobriety tests. Appellant also argued that

Sgt. Goodnite lacked probable cause to arrest him.

       {¶12} On February 17, 2015, a hearing was held on Appellant’s motion.

       {¶13} By Judgment Entry filed February 18, 2015, the trial court overruled

Appellant's Motion.
Stark County, Case No. 2015 CA 00050                                                     4


       {¶14} On March 3, 2015, Appellant came before the trial court and entered a

change of plea to a no-contest plea to one count of OVI and the marked lanes violation.

The trial court subsequently found Appellant guilty of both charges. On the OVI charge,

the trial court sentenced Appellant to serve one hundred eighty (180) days in the Stark

County Jail with all but three (3) days suspended on condition of Appellant's good

behavior for two (2) years. Appellant was also sentenced to pay a fine of six hundred

twenty-five dollars ($625) to which a two hundred fifty dollar ($250) credit would be given

if Appellant completed the Driver's Intervention Program. Appellant's license was also

suspended for one hundred eighty (180) days, effective from January 9, 2015. On the

second count, Appellant was sentenced to pay court costs.

       {¶15} On March 27, 2015, Appellant filed a Motion of Stay of Execution of

Sentence with the trial court, which was denied on March 31, 2015.

       {¶16} On April 3, 2015, a Motion of Stay of Execution of Sentence was filed with

this Court.

       {¶17} On April 27, 2015, this Court granted a stay of sentence as it pertained to

the Driver's Intervention Program.

       {¶18} Appellant now appeals, raising the following errors for review:

                                  ASSIGNMENTS OF ERROR

       {¶19} “I. THE TRIAL COURT'S FINDINGS OF FACT ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE BASED UPON THE TESTIMONY OF

TROOPER GOODNIGHT.

       {¶20} “II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION TO SUPPRESS EVIDENCE BECAUSE TROOPER GOODNIGHT LACKED A
Stark County, Case No. 2015 CA 00050                                                    5


REASONABLE, ARTICULABLE SUSPICION TO REQUEST THE APPELLANT TO EXIT

HIS VEHICLE TO PERFORM FIELD SOBRIETY TESTS IN VIOLATION OF THE

APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS

TO THE CONSTITUTION OF THE UNITED STATES.

      {¶21} “III. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION TO SUPPRESS EVIDENCE BECAUSE TROOPER GOODNIGHT LACKED

PROBABLE CAUSE TO ARREST THE APPELLANT FOR OVI.”

                                            I., II., III.

      {¶22} In each of his Assignments of Error, Appellant argues the trial court

erroneously denied his motion to suppress. We disagree.

      {¶23} 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. However, as the United States

Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”
Stark County, Case No. 2015 CA 00050                                                          6


       {¶24} Initially, Appellant argues that the trial court’s findings of fact are against the

manifest weight of the evidence. Specifically, Appellant claims that Appellant did not

commit a marked lanes violations as stated by the trial court in its judgment entry.

       {¶25} As stated above, in reviewing this type of challenge, an appellate court must

determine whether said findings of fact are against the manifest weight of the evidence.

See Guysinger, supra. The weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of fact to determine. State v. Thomas (1982), 70 Ohio

St.2d 79, syllabus. It is not an appellate court's function to substitute its judgment for that

of the fact-finder. State v. Jenks (1981), 61 Ohio St.3d 259, 279, 574 N.E.2d 492. Since

we are not fact finders, we neither weigh the evidence nor judge the credibility of

witnesses. Our role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb.

10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will not

be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

Foley Construction (1978), 54 Ohio St.2d 279.

       {¶26} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.
Stark County, Case No. 2015 CA 00050                                                        7


                                              Traffic Stop

       {¶27} There are two standards applied to determine whether police have

legitimately stopped a vehicle. State v. Weinheimer, Warren App. No. CA2003–04–044,

2004–Ohio–801, ¶8. First, police may make an investigatory stop of a vehicle when they

have a “reasonable articulable suspicion” criminal activity has occurred or is occurring,

and the officer seeks to confirm or refute this suspicion of criminal activity. Id.

       {¶28} Second, police may stop a vehicle based on “probable cause” a traffic

violation, even minor, has occurred or is occurring. Dayton v. Erickson, 76 Ohio St.3d 3,

11–12, 665 N.E.2d 1091, 1996–Ohio–431. Such is the case when an officer witnesses a

traffic violation and then stops the motorist for this traffic violation.

       {¶29} Appellant argues that he did not commit a marked lanes violation because

his turn signal blinker was on when he made the right-hand turn onto Walnut and

remained on when he moved from the right lane, over the dash line into the middle lane

and then back into the right lane.

       {¶30} In the instant case, we find Sgt. Goodnite had legal authority to stop

Appellant's vehicle.

       {¶31} R.C. §4511.33, Ohio's “marked lane” statute, mandates in pertinent part as

follows:

       {¶32} “(A) Whenever any roadway has been divided into two or more clearly

marked lanes for traffic * * *, 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. * * * .”
Stark County, Case No. 2015 CA 00050                                                          8


       {¶33} Sgt. Goodnite testified that Appellant’s vehicle made a continuous motion

turning and then changing from lane to lane. This Court has also reviewed the video tape,

which captured Appellant’s vehicle making the right-hand turn onto Walnut Avenue. Upon

review, we find that Appellant could not have “first ascertained that such movement

[could] be made with safety.” We therefore find that the trial court’s finding that Appellant

committed a marked lanes violation was not against the manifest weight of the evidence.

       {¶34} Next, appellant argues that Sgt. Goodnite lacked reasonable, articulable

suspicion to request that he perform field sobriety tests. Appellant also contends there

was not probable cause to arrest him

                                        Field Sobriety Tests

       {¶35} “Requiring a driver to submit to a field sobriety test constitutes a seizure

within the meaning of the Fourth Amendment. Courts have generally held that the

intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer

therefore need only have reasonable suspicion that the driver is under the influence of

alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey No.

2009–CA–28, 2010–Ohio–1111, ¶17, citing State v. Knox, 2nd Dist. Greene No. 2005–

CA–74, 2006–Ohio–3039.

       {¶36} In reviewing this issue, we apply a “totality of the circumstances” approach.

See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303, 2004–Ohio–90,

¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.

       {¶37} In support of his position, Appellant cites State v. Keserich, 5th Dist.

Ashland County, Case No. 2014-CA-011, 2014-Ohio-5120. In Keserich, this Court

reversed the decision of the trial court overruling Keserich’s motion to suppress.
Stark County, Case No. 2015 CA 00050                                                      9

          {¶38} In Keserich, the defendant was stopped for not having a light illuminating

his rear license plate. Upon stopping Keserich, the officer observed bloodshot and watery

eyes, and he admitted to having consumed two alcoholic beverages. Based on these

facts, the officer requested that Keserich perform field sobriety tests. This Court, under

the facts in this case, found that defendant’s bloodshot eyes could have been attributed

to the fact that there were four or five other passengers in the car who were smoking. This

Court found that this possible explanation for the bloodshot eyes, together with the stop

being based solely on an equipment violation and the lack of any observation of erratic

driving, was not enough to form a basis to request performance of the field sobriety tests.

          {¶39} We find this case to be distinguishable from Keserich, supra.

          {¶40} In the instant case, as set forth in our recitation of facts, Sgt. Goodnite

stopped Appellant for moving violations. He testified he observed Appellant make an

improper turn as well as a marked lanes violation. Additionally, upon stopping Appellant,

he observed that his eyes were bloodshot and glassy, and that there was an odor of

alcohol coming from the vehicle. Sgt. Goodnite continued to detect the odor of alcohol

once Appellant was outside of the vehicle. Further, Appellant admitted to having just left

a drinking establishment. Additionally, it was 11:35 p.m. on a Friday evening.

          {¶41} Upon review based on the above factors, we hold a reasonable basis

existed for Sgt. Goodnite to ask Appellant to step out of his vehicle and proceed with field

sobriety testing under the circumstances of this case.

                                               Arrest

          {¶42} We further find, based on the foregoing, that probable cause existed for the

arrest.
Stark County, Case No. 2015 CA 00050                                                    10


       {¶43} “The standard for determining whether the police have probable cause to

arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient

information, derived from a reasonable trustworthy source of facts and circumstances to

cause a prudent person to believe that the suspect was driving under the influence.” State

v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009–Ohio–3849, ¶ 22.

       {¶44} The issue is whether appellant's actions and Sgt. Goodnite’s observations

lead to probable cause to arrest. We note each case is determined individually from the

facts and observations presented.

       {¶45} Here, based on the totality of the circumstances, including Sgt. Goodnite’s

observations as set forth above and Appellant’s poor performance on all of the field

sobriety tests, we find that probable existed to arrest Appellant.

       {¶46} We therefore hold the trial court did not err in denying the motion to

suppress in this matter. Accordingly, Appellant’s Assignments of Error are overruled.

       {¶47} For the reasons stated in the foregoing opinion, the judgment of the Canton

Municipal Court, Stark County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.



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