[Cite as State v. Hoegler, 2014-Ohio-1158.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-P-0075
        - vs -                                  :

GREGORY J. HOEGLER,                             :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
13 TRC 2647.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main
Street, #203, Kent, OH 44240 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Gregory J. Hoegler appeals from the judgment of the Portage County

Municipal Court, Ravenna Division, overruling his motion to suppress regarding a traffic

stop, which led to his conviction for operating a vehicle under the influence of alcohol.

For the reasons stated below we affirm.

        {¶2}     At about 1:00 a.m. on the morning of February 28, 2013, Trooper John

Lamm of the State Highway Patrol was patrolling Rootstown Road, near Tallmadge
Road, in Rootstown Township, Ohio. At this time Trooper Lamm observed appellant,

Gregory Hoegler, operating a vehicle on Rootstown Road. Upon following Mr. Hoegler,

Trooper Lamm observed his vehicle travel left of center on two occasions within a short

period of time. In each instance, Trooper Lamm testified that both of the left tires on Mr.

Hoegler’s vehicle crossed over the centerline.

      {¶3}   Based on this observation, Trooper Lamm initiated a traffic stop. Trooper

Lamm determined he had probable cause to believe Mr. Hoegler was operating his

vehicle under the influence of alcohol. The trooper asked Mr. Hoegler to submit to field

sobriety tests, which he did. Based upon the results of these tests Mr. Hoegler was

arrested and transported to the Brimfield Township Police Department where he

submitted to an alcohol breath test. The test returned a BAC result of 0.140. Mr.

Hoegler was charged with operating a vehicle under the influence, in violation of R.C.

4511.19(A)(1)(a); having a breath alcohol concentration in excess of .08, in violation of

R.C. 4511.19(A)(1)(d); and a left-of-center violation under R.C. 4511.25.

      {¶4}   Mr. Hoegler moved to suppress, on the basis that Trooper Lamm had no

reason for the traffic stop. Hearing went forward June 11, 2013. After hearing the

testimony of Trooper Lamm and viewing a grainy DVD from the trooper’s dash-cam, the

trial overruled the motion to suppress. Eventually, Mr. Hoegler changed his plea to no

contest; and, the trial court found him guilty of violating R.C. 4511.19(A)(1)(d) and

4511.33. The trial court stayed Mr. Hoegler’s sentence pending this timely appeal.

      {¶5}   Mr. Hoegler assigns one errors. It reads:

      {¶6}   “The trial court erred in overruling appellant’s motion to suppress.”

      {¶7}   Under his assigned error, appellant presents three issues for review:




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       {¶8}   “1. The trial courts findings of fact were not supported by competent

credible evidence.

       {¶9}   “2. Trooper Lamm did not have probable cause or reasonable suspicion

that a left of center violation(s) occurred and therefore violated Appellant’s Fourth

Amendment right against unreasonable seizures.

       {¶10} “3. The trial (sic) did not state its essential findings of fact on the record,

nor were findings apparent from the transcript, leaving the reviewing court no alternative

than to review all of the evidence to determine whether the trial court’s decision was

based on competent credible evidence.”

       {¶11} “Appellate review of a trial court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154,

2003-Ohio-5372. During a hearing on a motion to suppress evidence, the trial judge

acts as the trier of fact and, as such, is in the best position to resolve factual questions

and assess the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366.

An appellate court reviewing a motion to suppress is bound to accept the trial court's

findings of fact where they are supported by competent, credible evidence. State v.

Guysinger (1993), 86 Ohio App.3d 592, 594.           Accepting these facts as true, the

appellate court independently reviews the trial court’s legal determinations de novo.

State v. Djisheff, 11th Dist. Trumbull No. 2005-T-0001, 2006 Ohio 6201, at ¶19.”

Geneva v. Fende, 11th Dist. Ashtabula No. 2009-A-0023, 2009 Ohio 6380, ¶11.

(Parallel citations omitted.)




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       {¶12} We deal with Mr. Hoegler’s second issue, finding it dispositive. By it, Mr.

Hoegler contends the evidence from the suppression hearing, in the form of Trooper

Lamm’s testimony, and the DVD of the events, does not show he committed either of

the marked lanes violations, and, consequently, that Trooper Lamm had no reason to

conduct a traffic stop.

       {¶13} “A stop is constitutional if it is supported by either a reasonable suspicion

or probable cause. City of Ravenna v. Nethken, 11th Dist. Portage No. 2001-P-0040,

2002-Ohio-3129, at ¶30-31. ‘(* * *) (T)he concept of an investigative stop allows a

police officer to stop an individual for a short period if the officer has a reasonable

suspicion that criminal activity has occurred or is about to occur.’ State v. McDonald

(Aug. 27, 1993), 11th Dist. No. 91-T-4640, 1993 Ohio App. LEXIS 4152, *10.               ‘“In

justifying the particular intrusion, the police officer must be able to point to specific and

articulable facts which would warrant a man of reasonable caution in the belief that the

action taken was appropriate.”’ Id., quoting State v. Klein (1991), 73 Ohio App.3d 486,

488.” Fende, supra, at ¶13. (Parallel citation omitted.)

       {¶14} Regarding the first alleged left of center violation, Trooper Lamm testified

initially at the suppression hearing:

       {¶15} “I’m following a vehicle that’s traveling in front of me, the same direction.

As you’re going up Rootstown Road right there, there’s going to be a curve, like an

elevation curve.   It goes up and down to the right.       And right prior to that vehicle

entering the curve, I was a little worried. He swerved left of center. Both of his left tires

crossed over the centerline.”




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       {¶16} Regarding the second left of center violation, Trooper Lamm stated at the

suppression hearing, “[A]s we were out of the curve, once again, I observed his vehicle,

both of his left tires cross over the centerline again.” When asked how far the two

driver’s side tires went over the centerline, the trooper responded they went completely

over by about “one tire-width.”

       {¶17} Mr. Hoegler contends the DVD from Trooper Lamm’s cruiser fails to

support Trooper Lamm’s testimony from the suppression hearing concerning the left of

center violations. We agree. However, we note the DVD likewise fails to establish that

the left of center violations did not occur.

       {¶18} Our own review of the DVD of the incident made by Trooper Lamm

comports with his testimony at the suppression hearing: it is extremely grainy, and it is

not possible to see on the DVD what the trooper saw from inside his patrol car. The

evidentiary value of the DVD is very limited. While Mr. Hoegler’s car appears to drift

toward the center lane during the times Trooper Lamm testified he observed the left of

center violations, the DVD quality is simply too poor to be conclusive. We are therefore

left with only the testimony of Trooper Lamm to resolve this matter.

       {¶19} Following     oral   argument     in   this   matter,   Mr.    Hoegler   submitted

supplemental authority on this issue, that being the February 3, 2014 decision in State

v. Harper, 9th Dist. Medina No. 12CA0076-M, 2014-Ohio-347. In that case, the Ninth

District determined, in relevant part, that the arresting officer had no reasonable,

articulable suspicion for stopping appellant’s car.        Id. at ¶16.     The arresting officer

testified that appellant’s car was approaching too close to a truck in front of it, and

suddenly swerved in front of another vehicle. The Ninth District noted:




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       {¶20} “[U]pon careful review of the dash-cam video, which was submitted as

evidence during the suppression hearing, it is clear that Ms. Harper did not pull out in

front of any vehicles when changing lanes from far-right to center. In fact, other than

the trooper’s police cruiser, there were no other vehicles visible in the center lane of

traffic. However, although the dash-cam video evidence directly contradicts Trooper

Ausse’s testimony that Ms. Harper failed to yield to oncoming traffic while changing

lanes, the trial court incorrectly found that Trooper Ausse ‘saw (Ms. Harper’s vehicle) ()

(move from) the right lane to the center lane just in front of another vehicle.’ (Emphasis

added.)   Additionally, the trial court found that Trooper Ausse witnessed this lane

change violation while remaining stationary in the median, when the dash-cam video

reveals that the trooper had initiated his pursuit and was already following Ms. Harper

when she changed lanes.” Id. at ¶14.

       {¶21} The situation in Harper is distinguishable from that in this case. In Harper,

the dash-cam video directly contradicted the arresting officer’s testimony. In this case, it

neither supports, nor contradicts, that testimony.

       {¶22} A lower court’s factual findings are to be accorded “great deference.”

Kirtland Hills v. Hall, 11th Dist. Lake No. 2008-L-005, 2008-Ohio-3391, ¶30 (“[a]n

appellate court is to give great deference to the judgment of the trier of fact,” where the

motion to suppress has been denied). The Supreme Court of Ohio has clearly and

consistently held that “the trial court is best able to decide facts and evaluate the

credibility of witnesses. Its findings of fact are to be accepted if they are supported by

competent, credible evidence, and we are to independently determine whether they




                                             6
satisfy the applicable legal standard.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, ¶41.

         {¶23} The trial court found, based on the testimony of Trooper Lamm at the

suppression hearing, that “he viewed the Defendant’s vehicle go left of center on more

than one occasion and the Court believes that his testimony is credible.” We note that

Mr. Hoegler failed to show, through photographic evidence or cross-examination, any

basis for the trial court to question the credibility of Trooper Lamm’s testimony. Since

the court’s factual finding is supported by competent, credible evidence, we must defer

and affirm the lower court’s Judgment. See, e.g., State v. Ewing, 10th Dist. Franklin No.

09AP-776, 2010-Ohio-1385, ¶20. Mr. Hoegler’s second assignment of error is without

merit.

         {¶24} Regarding Mr. Hoegler’s first issue – that the trial court’s findings of fact

were not supported by competent credible evidence – we find our disposition of the

second issue disposes of this as well. As noted above, Trooper Lamm’s testimony was

competent and credible and the trial court was justified in relying upon it in denying the

motion to suppress. Mr. Hoegler’s first issue is without merit.

         {¶25} In his third issue, Mr. Hoegler avers the trial court did not state its findings

of fact on the record, nor were they apparent from the transcript.            He argues this

supports his assertion the trial court’s findings were not supported by competent,

credible evidence. We disagree.




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       {¶26} The trial court denied Mr. Hoegler’s motion to suppress from the bench

following the hearing. The court issued a written order denying Mr. Hoegler’s motion to

suppress. Mr. Hoegler later filed a motion asking the trial court to state its findings on

the record. This motion was denied.

       {¶27} In evaluating a suppression motion as the trier of fact, the trial court must

follow Crim.R. 12(F), which states: “[w]here factual issues are involved in determining a

motion, the court shall state its essential findings on the record.”       “The underlying

rationale of Crim.R. 12(F) is to allow for effective judicial review.”      Kirtland Hills v.

Medancic, 11th Dist. Lake Nos. 2011-L-136 and 2011-L-137, 2012-Ohio-4333, ¶8, citing

State v. Marinacci, 5th Dist. No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3,

1999). “Indeed, only with a recitation of the trial court’s factual findings is a reviewing

court able to properly determine whether the findings are supported by the record and

whether the correct law was applied to those facts. Conversely, ‘(i)f the trial court does

not make findings of fact, appellate review of the decision is hampered.’” Medancic at

¶8, quoting State v. Bailey, 5th Dist. No. CT2002-0041, 2003 Ohio App. LEXIS 5690, *6

(Nov. 21, 2003). However, it is not reversible error for a trial court to fail to place these

findings in writing, so long as they are apparent from the transcript of proceedings.

       {¶28} A review of the transcript shows the trial court made the essential findings

of fact at the end of the suppression hearing. As noted above, the trial court believed

that Trooper Lamm’s testimony at the suppression hearing was credible and, based

upon it, “the Court believes that there was sufficient reason for the stop and the

subsequent action.” Mr. Hoegler’s third issue is without merit.




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      {¶29} For the foregoing reasons, appellant’s assignment of error is without merit.

The judgment of the Portage County Municipal Court, Ravenna Division, is affirmed.

The court finds there were reasonable grounds for this appeal.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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