[Cite as State v. Johnson, 2017-Ohio-7515.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27452
                                                    :
 v.                                                 :   Trial Court Case No. 16TRD8507
                                                    :
 FRANK JOHNSON                                      :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                          Rendered on the 8th day of September, 2017.

                                               ...........

TROY DANIELS, Atty. Reg. No. 0084957, 335 West Third Street, Room 372, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellee

CARLA MARAGANO, Atty. Reg. No. 0090163, 117 South Main Street, Suite 400, Dayton,
Ohio 45422
      Attorney for Defendant-Appellant

                                              .............

HALL, P.J.
                                                                                          -2-




       {¶ 1} Frank Johnson appeals from his conviction and sentence in Dayton Municipal

Court following a no-contest plea to driving while under an OVI suspension.1

       {¶ 2} In his sole assignment of error, Johnson contends the trial court erred in

overruling a suppression motion he filed prior to his plea.

       {¶ 3} The only witness at the suppression hearing was Dayton police officer Gary

Roesser. He testified that he observed Johnson commit a traffic violation while driving on

September 2, 2016. Specifically, Roesser saw Johnson’s vehicle approaching a stop sign

at the intersection of Delphos and Oakridge in Dayton. There was no marked stop line at

the intersection. Nor was there a crosswalk. Roesser testified that Johnson drove into the

intersection to the point where “he was almost a car length past the stop sign.” (Tr. at 8).

Roesser estimated that Johnson’s vehicle was two to three feet into the intersection. (Id.).

The officer was unsure whether Johnson actually made a complete stop. In any event, he

testified: “I know that he clearly went past the stop sign, into the intersection before he

did come to a stop, if he did.” (Id. at 10). On cross examination, Roesser agreed with

defense counsel that the reason for the traffic stop was Johnson’s act of “stopping past

the stop sign.” (Id. at 12).

       {¶ 4} We have reviewed State’s Exhibit # 1, the cruiser cam video of the traffic

stop. Although this was introduced as an exhibit, and it is evident that at least the part

containing the traffic violation itself was played during the hearing, the court did not make

specific reference to the video in its decision overruling the motion to suppress. We note,



1Although Johnson also faced other charges, the trial court’s docket indicates that they
were withdrawn.
                                                                                         -3-


however, after reviewing the entire video, that upon stopping Johnson, Officer Roesser

said “you have to stop before the stop sign,” and later, “you’ve got to stop in front of the

stop sign.” These are incorrect statements of the applicable law. We do not know whether

the trial court reviewed these portions of the video. Nonetheless, based on our analysis

below, the trial court did not err in overruling the motion to suppress.

       {¶ 5} Johnson argued below that stopping past, rather than at, the stop sign did

not violate the applicable ordinance, Dayton Revised Code of General Ordinances

(R.C.G.O.) section 71.44(A). The trial court overruled the suppression motion, reasoning:

               * * * Evidence obtained from a stop for what officers thought was a

       traffic offense need not be suppressed if the officer’s mistake of law was

       reasonable, State v. Greer, 114 Ohio App.3d 299, 305, 683 N.E.2d 82 (2nd

       Dist.1996), State v. Perkins, 2nd Sist. (sic) No. 2011-CA-24, 2012-Ohio-

       2544, in 6.

               Based upon the officer’s testimony, he believed that a traffic offense

       had occurred and his belief was reasonable. Therefore the officer was

       justified in stopping the defendant’s vehicle for what he believed was a

       traffic offense.

(Doc. #10).2

       {¶ 6} On appeal, Johnson argues that he did not violate R.C.G.O. section 71.44(A)

by stopping past the stop sign and that Roesser made an objectively unreasonable


2  See also Heien v. North Carolina, __U.S.__, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014),
where the Court held that an officer's mistake of law in stopping a vehicle with one
functioning brake light, when the state vehicle code requires only one working brake
light, was a reasonable mistake that did not violate the Fourth Amendment's prohibition
against unreasonable searches and seizures.
                                                                                           -4-


mistake of law by concluding otherwise. Johnson contends this is so because the

ordinance clearly and unambiguously does not prohibit stopping past a stop sign when

there is no marked stop line or crosswalk.

       {¶ 7} Upon review, we find Johnson’s assignment of error to be unpersuasive.

R.C.G.O. section 71.44(A), which is identical to R.C. 4511.43(A), provides:

              Except when directed to proceed by a law enforcement officer, every

       driver of a vehicle or trackless trolley approaching a stop sign shall stop at

       a clearly marked stop line, but if none, before entering the crosswalk on the

       near side of the intersection, or, if none, then at the point nearest the

       intersecting roadway where the driver has a view of approaching traffic on

       the intersecting roadway before entering it. * * *.

(Emphasis added).

       {¶ 8} The foregoing language obligated Johnson to stop “at the point nearest the

intersecting roadway” where he had a view of approaching traffic “before entering” the

intersection. As set forth above, Roesser testified that Johnson stopped two or three feet

into the intersection. (Tr. at 8). The trial court stated in its factual findings that Roesser

testified that Johnson stopped “a foot or two in the intersection.” (Doc. #10). On these

facts, Johnson violated the ordinance by failing to stop “before entering” the intersection.

Roesser’s agreement with defense counsel that the reason for the traffic stop was

Johnson’s act of “stopping past the stop sign” was a mistaken understanding of the law.

Notably, however, Johnson not only went past the stop sign but also entered into the

intersection, a fact the officer also pointed out in his testimony. Therefore, Johnson’s

driving was not only contrary to what Roesser reasonably but mistakenly thought was the
                                                                                      -5-


law, it was contrary to what the law actually is. Under either circumstance, Roesser had

reasonable suspicion—indeed, probable cause—of a traffic violation to justify a traffic

stop. That being so, the trial court properly overruled the suppression motion.

      {¶ 9} Johnson’s assignment of error is overruled, and the judgment of the Dayton

Municipal Court is affirmed.

                                     .............



FROELICH, J. and TUCKER, J., concur.




Copies mailed to:

Troy Daniels
Carla Maragano
Hon. Mia Wortham Spells
