[Cite as State v. Powell, 2018-Ohio-1223.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27632
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-2746
                                                   :
 RODNEY L. POWELL                                  :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 30th day of March, 2018.

                                              ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                             .............
                                                                                          -2-


WELBAUM, P.J.

       {¶ 1} Defendant-Appellant, Rodney Powell, appeals from his conviction and

sentence on one count of improper handling of firearms in a motor vehicle in violation of

R.C. 2923.16(B), a fourth-degree felony. After a no-contest plea, Powell was sentenced

to various community control sanctions.

       {¶ 2} Powell contends that the trial court erred by failing to find that a police stop

of his motor vehicle violated Article I, Section 14 of the Ohio Constitution and the Fourth

Amendment to the United States Constitution. For the reasons discussed below, the trial

court did not err in overruling Powell’s motion to suppress. Accordingly, the judgment of

the trial court will be affirmed.



                                I. Facts and Course of Proceedings

       {¶ 3} On September 2, 2016, a complaint was filed in Dayton Municipal Court,

alleging that Powell had violated R.C. 2923.16(B) by improperly handing a firearm in a

motor vehicle on September 2, 2016. Powell subsequently waived a preliminary hearing

and agreed to be bound over to the common pleas court. An indictment was then filed

in common pleas court on October 7, 2016, charging Powell with the above offense.

Powell filed a motion to suppress on November 9, 2016, and the court held a suppression

hearing on December 16, 2016.

       {¶ 4} At the hearing, the court heard testimony from Dayton Police Officer, James

Campolongo, and from Powell. Officer Campolongo testified that he was on patrol on

September 2, 2016. He was driving a marked cruiser, was in the uniform of the day, and

was alone in the cruiser.
                                                                                           -3-


       {¶ 5} At about 1:40 a.m., Campolongo was driving on Paul Laurence Dunbar

Street, going north towards West Riverview Avenue, when he saw a blue Dodge truck

sitting at a stop light. The truck was stopped in the right-hand turn lane, but no turn signal

was flashing. As Campolongo approached closer to the vehicle, a turn signal went on,

but the vehicle did not move; it was still stopped at the light. When the light turned green,

the truck turned right onto West Riverview, and Campolongo followed the truck.

Campolongo then activated his overhead lights to initiate a traffic stop based on the fact

that the driver did not have his turn signal on 100 feet prior to a turn.

       {¶ 6} The vehicle was slow to pull over, but stopped on Ferguson Avenue, which

is a little bit north of West Riverview. Because Campolongo was alone, he used the IPA

system to tell the driver to turn off his car. Before Campolongo got out of the cruiser, he

notified dispatch and asked for backup. After Campolongo made contact with the driver

(Powell), he had an interaction with Powell that resulted in a search of the vehicle, during

which a firearm was discovered.

       {¶ 7} Campolongo testified that no other vehicles were around at the time. He

also said that his interpretation of the ordinance involved (Revised Code of General

Ordinances of the City of Dayton, Ohio (“R.C.G.O.”) 71.31), was that it was subject to

traffic conditions at the time and applied if a failure to signal affected other traffic.

According to Campolongo, he was affected by this failure when he pulled in behind

Powell’s truck.

       {¶ 8} Powell testified that he was driving towards his home when he stopped in a

right-turn only lane. He initially activated his turn signal and made a partial turn of the

wheel, which caused his turn signal to go off. No other traffic was around. As Powell
                                                                                        -4-


looked in his rear-view mirror, he saw a vehicle approaching at a high rate of speed. At

that point, Powell realized his turn signal was off, and he turned it back on because he

did not know if the vehicle was going to hit him. He indicated he was in a dangerous

area, and people were out celebrating because it was Labor Day weekend. When the

car got closer, Powell realized it was a police car. Powell then turned right on West

Riverview Avenue, and the officer waited for about a block and half before initiating the

traffic stop.

       {¶ 9} After hearing the evidence, the trial court overruled the motion to suppress.

The court concluded that the officer had a reasonable, articulable suspicion of criminal

activity based on Powell’s failure to comply with the turn signal requirements. Powell

subsequently pled no contest to the charge and was sentenced to community control

sanctions. This appeal followed.



                      II. Alleged Error in Overruling the Motion to Suppress

       {¶ 10} Powell’s sole assignment of error states that:

                The Trial Court Erred by Failing to Find that the Stop of Appellant’s

       Motor Vehicle Was in Violation of Article I, Section 14 of the Constitution of

       Ohio, and the Fourth Amendment to the United States Constitution.

       {¶ 11} According to Powell, the language in R.C.G.O. 71.31 (and R.C. 4511.39,

which is nearly identical) is vague and should not be interpreted to mean that using a turn

signal “when required” means that a signal must be maintained continuously. Powell

also argues that since he was stopped at the light, Officer Campolongo could not have

known whether his turn signal was activated 100 feet before he turned. And finally,
                                                                                            -5-


Powell argues that the ordinance and statute improperly restrict a driver’s freedom by

requiring that the driver must always know 100 feet in advance that he or she will be

making a turn.

       {¶ 12} In its decision, the trial court noted that the police officer was incorrect when

he concluded that enforcement of the ordinance was subject to traffic conditions at the

time. Nonetheless, based on prior authority from our district, the trial court held that the

police officer lawfully stopped Powell and that any subjective motivation for the stop was

irrelevant.

       {¶ 13} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence. * * *

Accepting these facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” (Citations omitted.) Id.

       {¶ 14} “The Fourth Amendment to the United Stated Constitution prohibits

unreasonable searches and seizures. Stopping an automobile constitutes a ‘seizure.’ ”

State v. Rastbichler, 2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 16, citing

Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The

United States Supreme Court has stated that a traffic stop is constitutionally valid if an

officer has a reasonable and articulable suspicion that a motorist has committed, is
                                                                                          -6-

committing, or is about to commit a crime.” (Citations omitted.) State v. Mays, 119 Ohio

St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. This includes even minor traffic

violations. State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, ¶ 20, citing

Mays at ¶ 7-8.

       {¶ 15} “Further, ‘[t]he propriety of an investigative stop by a police officer must be

viewed in light of the totality of the surrounding circumstances.’ ” Mays at ¶ 7, quoting

State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the

syllabus. “[T]hese circumstances are to be viewed through the eyes of the reasonable

and prudent police officer on the scene who must react to events as they unfold.”

(Citations omitted.) State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

       {¶ 16} In Rastbichler, we specifically considered R.C.G.O. 71.31. The current

version, which is unchanged from the ordinance discussed in Rastbichler, provides, in

pertinent part, that:

               (A) No person shall turn a vehicle or trackless trolley or move right or

       left upon a highway unless and until such person has exercised due care to

       ascertain that the movement can be made with reasonable safety nor

       without giving an appropriate signal in the manner hereinafter provided.

               (B) When required, a signal of intention to turn or move right or left

       shall be given continuously during not less than the last 100 feet traveled

       by the vehicle or trackless trolley before turning.

R.C.G.O. 71.31 (Dec. 20, 2017).1 See also Rastbichler, 2d Dist. Montgomery No. 25753,


1 This ordinance can be found at: https : // library . municode . com / oh / dayton / codes
/ code of ordinances ? nodeld = TITVIITRC O CH71 RUOP DIV2 TUMO S71.31
TUSTSI (accessed on January 31, 2018).
                                                                                               -7-


2014-Ohio-628, at ¶ 19, and R.C. 4511.39(A) (which contains the same general

requirements as R.C.G.O. 71.31).

       {¶ 17} In Rastbichler, we rejected the defendant’s contention that R.C.G.O. 71.31

only requires a turn signal if there is traffic in the area that is potentially affected. Instead,

we stated that this ordinance “ ‘imposes an absolute duty as to giving turn signals that is

not conditioned on prevailing traffic conditions.’ ” Rastbichler at ¶ 20, quoting State v.

Bartone, 2d Dist. Montgomery No. 22920, 2009-Ohio-153, ¶ 20.

       {¶ 18} Thus, Officer Campolongo was incorrect in his interpretation, as the trial

court noted.     However, as the trial court also stressed, the officer’s mistake was

irrelevant. Regardless of the conditions, Powell had an absolute duty to use turn signals

continuously to signal his intention to turn.

       {¶ 19} In this regard, we note that Bartone involved facts very similar to those in

the case before us. In Bartone, a police officer observed the defendant’s vehicle while

the vehicle was stopped at an intersection. After several minutes, a turn signal was

activated, and the driver turned. The vehicle again stopped at another intersection for

several minutes, and the turn signal was again activated, followed by another turn. Id.

at ¶ 3-4. As here, there were no other cars on the street, and the officer’s cruiser was

the only car in the vicinity. After stopping the vehicle for the traffic violations, the officer

discovered drugs and the defendant was charged with possession of cocaine. Id. at ¶ 5-

13.

       {¶ 20} On appeal, we reversed the trial court, which had sustained the defendant’s

motion to suppress evidence. Specifically, the trial court concluded that the defendant

had not violated R.C.G.O. 71.31 “because there was no traffic in the vicinity of where
                                                                                                -8-


Officer Imwalle had observed him driving and, therefore, [the defendant] was not required

to signal his intention to turn within the last 100 feet of travel prior to the turn.” Id. at ¶ 15.

       {¶ 21} In analyzing the matter, we gave special consideration to the words “[w]hen

required,” which is the part of the ordinance that Powell currently challenges. (Emphasis

sic.) Bartone at ¶ 18. We noted that:

               The trial court reasoned that the “when required” language excused

       Bartone's failure to signal within the last 100 feet of travel where there were

       no other drivers who could benefit from Bartone's signaling. While this may

       not be an unreasonable interpretation of the ordinance, this interpretation

       has been rejected by several appellate districts construing R.C. 4511.39(A),

       or comparable ordinances, which in pertinent part are identical to Ordinance

       71.31(A)(B). State v. Lowman (1992), 82 Ohio App.3d 831, 835-6, 613

       N.E.2d 692 (12th District); State v. Sanders (1998), 130 Ohio App.3d 789,

       799-800, 721 N.E.2d 433 (11th District); State v. Evans (Summit App. No.

       19803), June 7, 2000 (9th District); State v. Dennowitz (Ross App. No.

       99CA2491), Nov. 5, 1999 (4th District).

               Bartone attempts to distinguish these cases from his case because

       they involved more than a stop for a mere minor misdemeanor.                   This

       attempt is wide of the mark. What is of significance is that these cases

       stand for the proposition that Ordinance 71.31 imposes an absolute duty as

       to giving turn signals that is not conditioned on prevailing traffic conditions.

       The legislature, in enacting R.C. 4511.39, and the Dayton City Commission,

       in enacting Ordinance 71.31, could have expressly made the duty to signal
                                                                                          -9-

       dependent on traffic conditions but did not. See Lowman, at 835, 613

       N.E.2d 692. Indeed, such language might well introduce an undesirable

       element of subjectivity which would be a disservice to the motoring public

       and law enforcement alike.

Bartone, 2d Dist. Montgomery No. 22920, 2009-Ohio-153, at ¶ 19-20.

       {¶ 22} The wording of R.C.G.O. 71.31 has not changed since Bartone, nor has

there been any change in R.C. 4511.39(A). The trial court cited both Rastbichler and

Bartone in its suppression decision, and correctly relied on these cases. See Decision,

Order and Entry Overruling Defendant’s Motion to Suppress and Setting Scheduling

Conference, Doc. #25, p. 4.

       {¶ 23} The trial court also cited Hardy, 2d Dist. Montgomery No. 24114, 2011-

Ohio-241, for the proposition that R.C.G.O. 71.31 does not contain any exception for

vehicles that are in turn only lanes or through lanes. Doc. #25, p. 4, citing Hardy at ¶ 25.

Again, we agree with the trial court. As in the above cases, the defendant in Hardy

argued that R.C.G.O. 71.31 is vague. In response, we stated that:

              We find nothing vague about Dayton R.C.G.O[.] Sec. 71.31(A) and

       (B).   Dayton R.C.G.O[.] Sec. 71.31(A) prohibits a driver from turning

       without ensuring that such turn can be performed safely and giving an

       appropriate signal. Dayton R.C.G.O[.] Sec. 71.31(B) specifies that the turn

       signal must be given continuously for at least 100 feet prior to the turn.

       “[T]he ordinance has sufficient clarity and details to put a person of ordinary

       intelligence on notice of what conduct is prohibited * * *, [and] [t]he language

       of the ordinance provides fair warning that failure to signal at least 100 feet
                                                                                          -10-

       prior to turning will expose a driver to liability.” State v. Acord, Ross App.

       No. 05 CA 2858, 2006-Ohio-1616, ¶ 19 (concluding that Chillicothe City

       Ordinance 331.14, which is identical to R.C. 4511.39(A), is not vague).

              Hardy argues that she was not required to use a turn signal prior to

       turning onto North Smithville Road, because the intersection of Smithville

       and Woodley was a T-intersection, which required her to turn. Dayton

       R.C.G.O[.] Sec. 71.31(A) contains no exception for T-intersections (in fact,

       signaling in which direction a turn will be made would be helpful to other

       drivers or pedestrians at the intersection), and the ordinance is not rendered

       vague merely because the configuration of a particular intersection requires

       the driver to make a turn. See State v. Bartone, Montgomery App. No.

       22920, 2009-Ohio-153, ¶ 20 (stating that the “Dayton City Commission, in

       enacting Ordinance 71.31, could have expressly made the duty to signal

       dependent on traffic conditions but did not.”)

Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, at ¶ 24-25.

       {¶ 24} We see nothing to distinguish the current case from others we have

decided.   Whether or not drivers have previously signaled an intention to turn, the

ordinance gives fair warning that drivers are required to maintain a signal until their turns

have been completed. This makes sense, since the purpose of using turn signals is to

warn other drivers of an intention to turn. As we have stressed in the past, the ordinance

is not conditioned on traffic conditions at the time. If the City of Dayton wished to alter

its ordinance to reflect that position, it could have done so. However, the City has not

chosen that option.
                                                                                          -11-


       {¶ 25} As to Powell’s argument that the officer could not have cited him because

he did not observe Powell traveling 100 feet, that argument is without merit, given our

decision in Bartone. The facts in Bartone indicate that when the police officer first saw

the defendant’s car, the car was at an intersection. After stopping there for several

minutes, the defendant then activated a turn signal and turned.             Bartone, 2d Dist.

Montgomery No. 22920, 2009-Ohio-153, at ¶ 4.             Clearly, the police officer did not

observe the defendant traveling 100 feet while failing to use his turn signal. Furthermore,

while another similar violation occurred, during which the officer did see the defendant

travel for a distance, we did not rest our decision on that fact. Instead, we noted that the

officer felt traffic violations had occurred at both intersections. Id. at ¶ 6.

       {¶ 26} The Tenth District Court of Appeals also rejected a similar argument in State

v. Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio-712. In that case, the defendant

parked about 20 to 30 feet from an intersection. When the defendant got back in his car,

he went to the left around another parked car, came to the stop sign, and then activated

his turn signal. Id. at ¶ 3. Police officers initiated a traffic stop and found drugs. Id.

The pertinent traffic ordinance [C.C.C. 2131.14(a)] was similar to R.C.G.O. 71.31 and

R.C. 4511.39(A). Id. at ¶ 4 and fn.1.

       {¶ 27} In reviewing the denial of the defendant’s motion to suppress, the court of

appeals rejected the defendant’s argument that he had not violated the ordinance

because he was parked less than 100 feet from the intersection and could not have

continuously signaled his turn for at least 100 feet as the ordinance required. Id. at ¶ 12.

The court stated that “[t]he relevant question in this case is not whether appellant had a

possible defense to the violation.” Id., citing Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,
                                                                                         -12-

894 N.E.2d 1204, at ¶ 17, and State v. Acord, 4th Dist. Ross No. 05CA2858, 2006-Ohio-

1616, ¶ 13-15. The court then said that:

       Instead, the relevant question in the context of determining the

       constitutionality of a traffic stop is whether the officers had a reasonable

       suspicion that appellant committed a traffic violation. * * * Based on the

       events observed by the police officers, we conclude they had reasonable

       suspicion. The officers first observed appellant either as he approached or

       actually stopped at the stop sign. They did not know where he had come

       from or how far he had been driving down the road. What they did see,

       however, was that he did not activate his turn signal until he stopped at the

       stop sign. This is enough for a police officer to have reasonable suspicion

       that appellant violated C.C.C. 2131.14(a).

Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio-712, ¶ 12, citing Hardy, 2d Dist.

Montgomery No. 24114, 2011-Ohio-241, at ¶ 26. (Other citations omitted.)

       {¶ 28} In light of the preceding discussion, the trial court did not err in overruling

the motion to suppress. Consistent with the above cases, Officer Campolongo had a

reasonable suspicion that Powell violated the ordinance, and the officer, therefore, was

permitted to initiate a traffic stop. Accordingly, Powell’s sole assignment of error is

overruled.



                                         III. Conclusion

       {¶ 29} Powell’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.
                                               -13-




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



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Lori R. Cicero
Hon. Michael W. Krumholtz
