[Cite as Canton v. Cameron, 2019-Ohio-3850.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


 CITY OF CANTON                                JUDGES:
                                               Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                    Hon. John W. Wise, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. 2018CA00179
 ROBERT C. CAMERON

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Canton Municipal Court,
                                               Case No. 2018 TRD 08055

 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       September 23, 2019

 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 KRISTEN BATES-AYLWARD                         ROBERT ROE FOX
 Canton Law Director                           388 South Main Street, Ste. #402
                                               Akron, Ohio 44311
 JASON P. REESE
 Canton City Prosecutor

 CARRIE FRANKHAUSER
 Assistant City Prosecutor
 218 Cleveland Avenue, S.W.
 Canton, Ohio 44702
Stark County, Case No. 2018CA00179                                                       2

Hoffman, P.J.
      {¶1}   Appellant Robert C. Cameron appeals the judgment entered by the Canton

Municipal Court convicting him of gross overload of a vehicle (R.C. 339.01) upon his plea

of no contest and fining him $214.00. Appellee is the city of Canton.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   On September 25, 2018 at 7:30 a.m., Officer Jeffrey Hothem of the Canton

Police Department Traffic Bureau was monitoring commercial traffic in the area of West

Tuscarawas Street and Interstate 77 in Canton, Ohio.           His primary job involves

commercial weight enforcement. He noticed a truck traveling southbound with what he

believed to be items visible above the rails of the roll-off container. He began to follow

the vehicle. While following the truck, he noticed the tires were bulging, which caused

him to suspect the vehicle might be overweight.

      {¶3}   After following the truck for about two miles, he stopped the truck. Appellant

was the driver of the truck. Officer Hothem directed Appellant to drive to the nearest

scale, Brechbuhler Scales, to have the vehicle weighed.         Brechbuhler Scales was

approximately half a mile from the point at which the truck was stopped, and was the

nearest scale. The vehicle was 1840 pounds overweight, and Officer Hothem cited

Appellant for gross overload.

      {¶4}   Appellant filed a motion to suppress, arguing Officer Hothem lacked a

reasonable articulable suspicion of criminal activity to justify the stop.    Following a

hearing, the trial court found Officer Hothem had twelve years of experience with the

Canton Police Department and experience with other departments prior to coming to

Canton. The court found he had training in dealing with commercial vehicles with the

Stark County Sheriff’s Department, the Ohio State Highway Patrol, the federal
Stark County, Case No. 2018CA00179                                                      3


government and the Canton Police Department, with his most recent training in May or

June of 2018. The court found the officer’s testimony to be credible. The court concluded

the officer had reasonable suspicion the vehicle was overweight based on his observation

items were sticking out of the box above the top rails, thereby indicating a heavy load,

and his observation of the bulging tires. The court overruled the motion to suppress.

      {¶5}   Appellant changed his plea to no contest and was convicted as charged.

The court fined him $214. It is from the November 13, 2018 judgment of conviction and

sentence Appellant prosecutes this appeal, assigning as error:



             I. THE TRIAL COURT’S DECISION OVERRULING DEFENDANT-

      APPELLANT’S MOTION TO SUPPRESS WAS ERROR AS THERE WAS

      NO REASONABLE SUSPICION TO STOP OR DETAIN DEFENDANT-

      APPELLANT’S VEHICLE.

             II. THE TRIAL COURT’S DECISION TO PRECLUDE DEFENDANT-

      APPELLANT FROM INQUIRING INTO THE FINANCIAL RELATIONSHIP

      BETWEEN THE CITING POLICE OFFICER AND THE WEIGH SCALE

      OPERATOR WAS ERROR AS THE CREDIBILITY OF THE POLICE

      OFFICER WAS CRITICAL TO THE DECISION MADE BY THE TRIAL

      COURT.



                                               I.

      {¶6}   Appellant argues the court erred in overruling his motion to suppress

because the body camera footage demonstrates no objects protruding from the truck,
Stark County, Case No. 2018CA00179                                                          4


and further does not demonstrate the tires were bulging.             He argues the officer

characterized the tire bulge as “not necessarily unordinary,” and other factors such as

underinflation could cause bulging tires. He further argues bulging tires alone does not

provide reasonable suspicion to justify a stop of the truck.

       {¶7}    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); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). 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 1141 (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 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter
Stark County, Case No. 2018CA00179                                                            5

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

on appeal.”

       {¶8}   When ruling on a motion to suppress, the trial court assumes the role of trier

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

of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d

988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

       {¶9}   In particular to the investigation of overweight trucks, R.C. 4513.33 states:

“[a]ny police officer having reason to believe that the weight of a vehicle and its load is

unlawful may require the driver of said vehicle to stop and submit to a weighing ...” The

“reason to believe” requirement is a lower standard than the constitutional concept of

probable cause. State v. Compton, 5th Dist. Licking No. 01CA00012, 2001-Ohio-1559.

The ‘reason to believe’ standard has been interpreted to be the same as the ‘reasonable

suspicion’ standard as set forth in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). Therefore, for a police officer to stop a vehicle and check its weight,

the officer must be able to point to some reasonable and articulable facts which, when

taken together with the rational inferences from those facts, lead the officer to believe that

“the weight of the vehicle and its load is unlawful.” State v. Myers, 63 Ohio App. 3d 765,

580 N.E.2d 61 (1990). An investigatory stop “must be viewed in the light of the totality

of the surrounding circumstances” presented to the police officer. State v. Freeman, 64

Ohio St.2d 291, 414 N.E.2d 1044, paragraph one of the syllabus (1980).

       {¶10} This court has previously held bulging tires alone provide sufficient

reasonable suspicion to justify a stop of a commercial vehicle by a trained officer, and the
Stark County, Case No. 2018CA00179                                                          6


officer need not eliminate other possible causes, such as under-inflation, for the bulging

tires:



                Appellant argues numerous courts of appeals have examined the

         “reason to believe” language of the statute, and have decided bulging or

         squatting tires, without more, do not provide sufficient reasonable suspicion

         for the arresting officer to stop the vehicle. We do not agree, but rather adopt

         the holding of the Fourth District Court of Appeals in State v. Horsely

         (January 25, 1999), Ross Co.App. No. 98CA2423, which held:

                “We disagree, however, with the trial court's holding that bulging tires

         “without more” can never form a proper basis for an investigative stop. We

         believe that bulging tires coupled with an officer's training and experience

         can indeed give rise to a reasonable suspicion that a vehicle exceeds the

         applicable weight restrictions. Whether a certain tire's bulge is greater or

         more pronounced than a normal tire bulge is a factor that the trier of fact

         can consider when making a determination* * *

                “We also recognize that innocent reasons may exist that can cause

         a tire to bulge under weight-permissible loads. For example, tire

         construction, low tire pressure, or extreme changes in temperatures can

         affect a tire's appearance. We note, however, that law enforcement officers

         are not required to rule out all possibilities of innocent behavior before

         initiating an investigative stop. United States v. Holland (C.A.9, 1975), 510

         F.2d 453. Conduct consistent with innocent behavior may give rise to a
Stark County, Case No. 2018CA00179                                                          7

       reasonable suspicion of criminal activity. United States v. Soklow (1989),

       490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1; United States v. Gomez (C.A.5,

       1985), 776 F.2d 542.”



       {¶11} State v. Ratta, 5th Dist. Stark No. 2004CA00070, 2004-Ohio-6140, ¶¶ 32-

34; accord, State v. Swain, 5th Dist. Stark No. 2005CA00243, 2006-Ohio-2727.

       {¶12} Appellant does not challenge the finding the officer was trained in the area

of commercial vehicle work, and had been doing commercial motor vehicle enforcement

work for ten to twelve years. The officer testified repeatedly the tires on the vehicle driven

by Appellant were bulging in a manner consistent with an overweight vehicle, and pointed

out spots on the video taken from his body camera which, although blurry, demonstrated

the bulge.

       {¶13} Appellant somewhat mischaracterizes the officer’s testimony the bulging of

his tires was “not necessarily unordinary.” Officer Hothem testified as follows:



              Q. And – and you believe that that is an improper appearance for

       that tire?

              A. Yes, sir.

              Q. In- in- an unordinary?

              A. That is not necessarily unordinary, however that is an indication

       to me prior to knowing the weights that that tire has load induced tire bulge

       on it from the amount of material or product or commodity that that vehicle’s

       hauling.
Stark County, Case No. 2018CA00179                                                           8


              Q. So let me clarify cause I- I don’t want to know about other

       vehicles, I want to know about this vehicle.

              A. U-mmm.

              Q. You said that would not necessarily be out of the ordinary for that

       tire to look like that going down the road?

              A. If it’s overweight. If the vehicle’s overweight, absolutely.

              Q. Okay. Alright. So, there aren’t vehicles of that kind that go down

       the road with that kind of distance between the road and the rim?

              A. Providing they’re following the law, no there aren’t. But vehicles

       that are overweight will show exactly this is showing.



       {¶14} Tr. 50-51.

       {¶15} Taken in its entirety, the officer’s testimony was the tire was “not necessarily

unordinary” for an overweight vehicle.

       {¶16} Based on the officer’s consistent testimony throughout the hearing the tires

were bulging in a manner consistent with an overweight vehicle, the officer’s extensive

training and experience in commercial weight enforcement and the trial court’s finding the

testimony of the officer was credible, we find the court did not err in finding the officer had

a reasonable suspicion of criminal activity to justify stop of the vehicle.

       {¶17} The first assignment of error is overruled.
Stark County, Case No. 2018CA00179                                                         9


                                                 II.

       {¶18} In his second assignment of error, Appellant argues the court erred in

restricting his questioning of Officer Hothem regarding his financial connection to

Brechbuhler Scales.

       {¶19} During cross-examination, Officer Hothem admitted in 2016, he entered into

a relationship with Brechbuhler Scales whereby the business provided financial

sponsorship of Officer Hothem’s competitive tractor pulling team.           The trial court

prevented Appellant from presenting evidence of the specific amounts of financial

remuneration Appellant received from Brechbuhler for his tractor pulling team, but

Appellant proffered the exhibits, and they are a part of the record before this Court on

appeal.

       {¶20} Evid. R. 616(A) provides, “Bias, prejudice, interest, or any motive to

misrepresent may be shown to impeach the witness either by examination of the witness

or by extrinsic evidence.” The admission or exclusion of relevant evidence rests within

the sound discretion of the trial court, and the trial court's ruling as to such matters will

not be reversed absent an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510

N.E.2d 343 (1987). In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶21} Appellant was permitted to question the witness regarding the existence of

a financial relationship between himself and Brechbuhler Scales. We find the exclusion

of the specific financial details of this arrangement between the parties was not an abuse

of discretion. It is undisputed Brechbuhler was only half a mile from the spot of the traffic
Stark County, Case No. 2018CA00179                                                    10


stop, and was the nearest scale. Appellant did not challenge the results of the weighing

process at Brechbuhler, opting instead to plea no contest to the charge his vehicle was

grossly overweight. The officer’s financial connection to Brechbuhler was only marginally

relevant to the issue before the court on the motion to suppress, and the trial court did

admit evidence of the existence and duration of the financial relationship.

      {¶22} The second assignment of error is overruled.

      {¶23} The judgment of the Canton Municipal Court is affirmed.




By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
