[Cite as State v. Holland, 2017-Ohio-921.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00111
LATRICE N. HOLLAND                             :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2016 TRC 0871



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            March 13, 2017

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

TASHA FORCHIONE                                    ANTHONY KOUKOUTAS
Canton City Prosecutor’s Office                    116 Cleveland Avenue North
218 Cleveland Avenue S.W.                          Suite 808
Canton, OH 44702                                   Canton, OH 44702
Stark County, Case No. 2016CA00111                                                      2

Gwin, P.J.

       {¶1}   Appellant appeals the trial court’s May 18, 2016 judgment entry of the

Canton Municipal Court overruling his motion to suppress. Appellee is the State of Ohio.

                                   Facts & Procedural History

       {¶2}   On February 5, 2016 appellant Latrice Holland was arrested and charged

with one count of operating a vehicle under the influence of alcohol, no seat belt, and a

marked lanes violation.    On March 28, 2016, appellant filed a motion to suppress and

argued there was no reasonable, articulable suspicion for the officer to stop the vehicle.

Further, that there was no probable cause to arrest appellant for OVI.

       {¶3}   The trial court held a suppression hearing on May 9, 2016.         Appellee

presented the testimony of Trooper Carlos Castellanos (“Castellanos”). Castellanos is a

trooper with the Ohio State Highway Patrol who works the night shift and was working the

night shift on February 5, 2016. At 11:40 p.m. on that night, Castellanos was working

with his coach and initiated a traffic stop after he saw a dark purple car, driven by

appellant, commit marked lanes violations. He testified the car went over the right white

fog line by approximately one-half of a tire width and then went back in its lane again.

Castellanos stated that it was more than just riding the line.

       {¶4}   Castellanos stated the area where he observed the violations had lights and

it was a dry on the road. Further, that it was a two lane road with marked pavement,

marked fog lines, and a double yellow line. He testified there was nothing obstructing his

view of appellant’s vehicle as her vehicle and his vehicle were the only vehicles on the

road at that time.
Stark County, Case No. 2016CA00111                                                           3


       {¶5}      Exhibit 1, the video from Castellanos’ car, was introduced into evidence by

appellee. Castellanos testified the first violation was for the car traveling over the fog line

and, in watching the video, he observed appellant commit a second marked lanes

violation when the left tire travels over the yellow line.

       {¶6}      On cross-examination, Castellanos testified he was coming over a hill when

the fog lines began on the road and that is when he observed the marked lines violation.

Further, that he was approximately ten car lengths away from appellant’s vehicle when

he observed the violation, but he sped up to get a closer look. Castellanos confirmed

appellant’s vehicle was not completely over the fog line, but was about half of a tire width

over the line.

       {¶7}      On re-direct, Castellanos testified when he observed the violation, he could

see the fog line. Further, that the distance between him and appellant’s vehicle did not

affect his observation of the violation as it was a clear night and he could see the violation.

       {¶8}      The trial court issued a judgment entry on May 18, 2016 overruling

appellant’s motion to suppress. The trial court noted that, in the video, appellant’s tire

was to the left of the center line. The trial court found there was reasonable suspicion for

the stop of appellant’s vehicle based upon the trooper’s observation of appellant’s vehicle

crossing the white fog line and riding the yellow center line, including to the left of the

center line.

       {¶9}      Appellant pled no contest to the charges. The trial court found her guilty

and sentenced her accordingly.

       {¶10} Appellant appeals the May 18, 2016 judgment entry of the Canton Municipal

Court overruling her motion to suppress and assigns the following as error:
Stark County, Case No. 2016CA00111                                                            4


       {¶11} “I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S

MOTION TO SUPPRESS.”

       {¶12} In her sole assignment of error, appellant cites as error the trial court’s

decision to overrule her motion to suppress. Specifically, she contends the trooper did

not have a reasonable suspicion based upon articulable facts that she was not traveling

within the marked lanes for travel.

       {¶13} 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 findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982). 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. State v. Williams, 86 Ohio

App.3d 37, 619 N.E.2d 726 (4th Dist. 1993). Finally, assuming the trial court’s findings of

fact are not against the manifest weight of the evidence and it has properly identified the

law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. 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 93, 641 N.E.2d 1172 (8th Dist. 1994); State v. Laizure,

5th Dist. Tuscarawas No. 2015 AP 10 0056, 2016-Ohio-3252. As a general matter,

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

on appeal. Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
Stark County, Case No. 2016CA00111                                                           5


       {¶14} 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. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d

889 (1968). If an officer’s decision to stop a motorist for a criminal violation, including a

traffic violation, is prompted by a reasonable and articulate suspicion considering all the

circumstances, then the stop is constitutionally valid. State v. Adams, 5th Dist. Licking

No. 15 CA 6, 2015-Ohio-3786, quoting State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539, 894 N.E.2d 1204.

       {¶15} R.C. 4511.33(A) provides, in pertinent part: “Whenever any roadway has

been divided into two or more clearly marked lanes for traffic * * * a vehicle * * * 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.”

       {¶16} According to appellant, Castellanos had no reasonable, articulable

suspicion to stop the vehicle she was driving because she travelled within the single lane

as required by R.C. 4511.33. Appellant cites this Court’s decision in State v. Marcum,

5th Dist. Licking No. 12-CA-88, 2013-Ohio-2652, and argues this case is analogous to

the Marcum case.

       {¶17} In Marcum, the trooper conducted a traffic stop of the appellee’s vehicle and

testified he saw the vehicle go over the solid white fog line on the right and then over the

double yellow line on the left. Id. However, the trial court, after reviewing the video, stated

it was not convinced the appellee drove completely over the white line and that while

appellee did drive on the white line, driving on the white line was not a violation of R.C.
Stark County, Case No. 2016CA00111                                                            6

4511.33. Id. The trial court further found the appellee did not completely cross over the

double yellow line and, therefore, there was no violation of R.C. 4511.33. Id. We held

that, due to the trial court’s factual determinations that the appellee drove on the white

line, not over it, and drove on the double yellow line, not over it, the trial court did not err

in finding the trooper did not have a reasonable and articulable suspicion to stop the

appellee. Id.

        {¶18} However, we find the instant case to be distinguishable from Marcum.

Unlike in Marcum, the trial court in this case considered the testimony of Castellanos,

reviewed the videotape, and made the factual determination that appellant’s vehicle

crossed the white fog line and rode the yellow center line, including to the left of the center

line.

        {¶19} The trial judge is in the best position to determine the credibility of the

witnesses.      State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71 (2003).               The

fundamental rule that the weight of the evidence and credibility of the witnesses are

primarily for the trier of fact applies to suppression hearings as well as trials. State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). Accordingly, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.

        {¶20} In review of the videotape, at the point where Castellanos stated he

observed appellant go over the right fog line, the video is blurry and not clear. However,

the video where Castellanos observed appellant riding the center line is clear and it

appears that appellant’s tire was to the left of the center line. Here, Castellanos, the only

witness at the hearing, provided consistent and unrebutted testimony that he observed

appellant’s tire cross the fog line by half a tire width and that appellant was riding the
Stark County, Case No. 2016CA00111                                                           7


yellow center line, including to the left of the center line. He described appellant’s going

over the fog line as more than riding the line.

       {¶21} Castellanos was cross-examined and confirmed there was nothing

obstructing his view of appellant’s vehicle as her vehicle and his vehicle were the only

vehicles on the road at that time.        Castellanos further testified that while he was

approximately ten car lengths away from the car when he observed the fog line violation,

he could see the fog line at that point and the distance between him and appellant’s

vehicle did not affect his observation of the violation as it was a clear night and he could

see the violation. The trooper’s testimony and the portion of the video as to the center

lane violation represents competent and credible evidence that appellant was not

traveling within the lanes marked for travel. See State v. Landon, 5th Dist. Coshocton

No. 09-CA-0009, 2009-Ohio-6818, State v. Muller, 5th Dist. Delaware No. 12 CAC 11

0080, 2013-Ohio-3438.

       {¶22} Reviewing courts should accord deference to the trial court’s decision

concerning the credibility of the witnesses because the trial court has had the opportunity

to observe the witnesses’ demeanor, gestures, and voice inflections that cannot be

conveyed to us through the written record. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d

846 (1988). “A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court. A finding of an error of law is a legitimate ground for reversal, but a

difference of opinion on credibility of witnesses and evidence is not.” Seasons Coal Co.

v. Cleveland, 10 Ohio St.3d 77,461 N.E.2d 1273 (1984); see also State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967).
Stark County, Case No. 2016CA00111                                                      8


      {¶23} We find the trial court’s factual findings are supported by competent and

credible evidence and, reviewing the traffic stop under the totality of the circumstances,

find the trial court did not err in denying the motion to suppress because the trooper had

a reasonable, articulable suspicion upon which to base the stop of appellant. Appellant’s

assignment of error is overruled. Thus, we affirm the May 18, 2016 judgment entry of the

Canton Municipal Court overruling appellant’s motion to suppress.

By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur
