[Cite as State v. Henderson, 2011-Ohio-3448.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2010 CA 00312
CHRISTOPHER HENDERSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Massillon
                                                Municipal Court, Case No. 2010 TRC 4332


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         July 11, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

ROBERT A. ZEDELL                                ERICA PRUITT VORHEES
ASSISTANT LAW DIRECTOR                          ASSISTANT PUBLIC DEFENDER
Two James Duncan Plaza                          200 West Tuscarawas Street
Massillon, Ohio 44646                           Canton, Ohio 44702
Stark County, Case No. 2010 CA 00312                                                     2

Wise, J.

       {¶1}      Appellant Christopher Henderson appeals the decision of the Massillon

Municipal Court, Stark County, which denied his motion to suppress evidence resulting

from a DUI traffic stop. The relevant facts leading to this appeal are as follows.

       {¶2}      On May 27, 2010, Trooper Carlos Smith of the Ohio State Highway Patrol

was proceeding eastbound on Lincoln Way East (State Route 172) in the Massillon

area. At about 1:30 AM, he observed a 1999 Oldsmobile traveling in a westerly direction

on Lincoln Way, with its tires straddling the dashed white line of the two westbound

lanes. Trooper Smith turned his cruiser around and followed the Oldsmobile for a time.

He observed additional traffic violations and proceeded to make a traffic stop after the

vehicle had turned onto 27th Street NW. He thereupon obtained the identity of the driver

as appellant.

       {¶3}      After further roadside investigation, Trooper Smith proceeded to charge

appellant with operating a motor vehicle while intoxicated (R.C. 4511.19(A)(1)(a)), a

marked lanes violation (R.C. 4511.33), and failure to wear a seat belt (R.C. 4513.263).

Appellant thereafter appeared before the Massillon Municipal Court and entered pleas

of not guilty.

       {¶4}      On July 14, 2010, appellant filed a motion to suppress the evidence

obtained as a result of the traffic stop, asserting, inter alia, lack of probable cause for

the stop. At the first hearing on July 26, 2010, the trooper was unable to appear;

however, the video from the patrol cruiser was reviewed by court and counsel. On

August 13, 2010, the remainder of the suppression hearing was conducted, at which
Stark County, Case No. 2010 CA 00312                                                   3


time the trooper testified. The trial court thereafter issued a judgment entry denying

appellant’s motion to suppress.

      {¶5}   On October 7, 2010, appellant entered pleas of no contest to all three

charges. The trial court found him guilty on all three counts and sentenced him, inter

alia, to twenty days in the Stark County Jail and thirty days in a residential treatment

program.

      {¶6}   On October 29, 2010, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

      {¶7}   “I.    THE    TRIAL    COURT       ERRED   IN   DENYING      DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS.”

                                           I.

      {¶8}   In his sole Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress evidence. We disagree.

      {¶9}   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 finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. As a general rule,
Stark County, Case No. 2010 CA 00312                                                    4


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

novo on appeal.” Ornelas v. U .S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911.

         {¶10} In the case sub judice, appellant specifically contends both that the trial

court failed to apply the correct law to the findings of fact and that the trial court

incorrectly decided the ultimate issue raised in his motion to suppress. Appellant’s Brief

at 2.1

         {¶11} We next address the parameters of the legal issues before us. The record

on appeal reveals that at the outset of the August 13, 2010 suppression hearing,

appellant’s counsel maintained that “even if that … somehow the court can find that [the

traffic violations] did occur they … did not necessarily give the trooper the right to

continue with the intrusion ***.” Tr., August 13, 2010, at 3-4. However, the following

exchange shortly thereafter took place between the court and counsel:

         {¶12} “COURT: Okay, now I think ... Erica, you’re just alleging stop.

         {¶13} “DEFENSE: That ... yes, that there was no reason to stop. That they

continued ... the continued detention is a continuation.

         {¶14} “COURT:      Okay, so Tony I think Erica is just challenging stop, not

probably [sic] cause to make the arrest.




1
    Appellant also urges that “the violations to which Trooper Smith testified never
actually even occurred.” Appellant’s Brief at 3. However, appellant does not articulate
any points in the trooper’s testimony or the dash camera video to support this position,
other than to basically point out that the trooper could not testify as to the contents of
the video, which the court had previously viewed at the first probable cause hearing.
See App.R. 16(A)(7).
Stark County, Case No. 2010 CA 00312                                                      5


       {¶15} “DEFENSE: Okay, that’s fine your honor. Yes we will um and I believe

what Erica is going to want to do also is once officer ... excuse me once Sgt. Smith

testifies is to um of course enter this into evidence the tape.

       {¶16} “COURT: Yeah he can enter it into evidence um so let’s just focus on the

stop so what we’ll do is we will have Sgt. Smith um I’ll swear you in sergeant and you

can come up here and then we’ll challenge ... we’re going to talk about the stop. ***.”

Tr., August 13, 2010, at 4-5.

       {¶17} Accordingly, we find the issue preserved for appeal goes solely to the

constitutionality of Trooper Smith’s initial traffic stop. “[W]here a police officer stops a

vehicle based on probable cause that a traffic violation has occurred or was occurring,

the stop is not unreasonable under the Fourth Amendment to the United States

Constitution * * *.” Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, syllabus.

“Evidence of a defendant's marked lane violation establishes reasonable suspicion or

probable cause for a traffic stop.” State v. Graham, Warren App.No. CA2008-07-095,

2009-Ohio-2814, ¶ 17, quoting State v. McEldowney, Clark App. No. 06-CA-138, 2007-

Ohio-6690, ¶ 38.

       {¶18} The record further reveals the following testimony by the trooper on direct

examination:

       {¶19} “Q. And what did you see when you were on Lincoln?

       {¶20} “A. I was um Lincoln Way is a four lane divided highway um I was in the

left lane traveling east on 172 um I saw the vehicle driving down the center of the two

dotted lines, I then turned around, followed the vehicle, when I turned around and

started proceeding west he then made a right turn onto a side street, went up to the
Stark County, Case No. 2010 CA 00312                                                       6


stop sign, slowed down, made a left turn, by that time I caught up to the vehicle and

then proceeded to follow the vehicle for a short distance.

        {¶21} “Q. And then what happened?

        {¶22} “A. After we got up to 27th Street or Jackson Avenue, whatever you want

to call it, the defendant stopped at the stop sign, made a right turn, I followed for another

short distance and I activated my lights about Tanglewood area of 27th and Tanglewood

area.

        {¶23} “ * * *

        {¶24} “Q. Okay and why did you pull him over?

        {¶25} “A. Well he was driving ... first of all he was traveling the white fog lines,

that’s a marked lane violation, then he made a right turn from the left lane.

        {¶26} “COURT: So come back again with that ... so he was traveling the white

fog lines?

        {¶27} “A. Yes sir.

        {¶28} “COURT: And then ...

        {¶29} “A. He made a right turn from center ... from traveling down the center of

the road he made a right turn.

        {¶30} “COURT: Okay.

        {¶31} “STATE: And um how long have you been a trooper?

        {¶32} “A. Twelve and a half years.

        {¶33} “Q. Okay and what kind of training do you have in the apprehension or I

guess you call it the apprehension of those violating traffic code?

        {¶34} “A. I’m actually a regional instructor for um ADAP.
Stark County, Case No. 2010 CA 00312                                                  7


      {¶35} “STATE: Your Honor that’s all the questions I have at this time.” Tr. at 6-

8.

      {¶36} Thus, the stop of appellant’s vehicle was based on the trooper’s

observation of at least two traffic violations. His testimony was subjected to cross-

examination (see Tr. at 8-10). The trial court, in its discretion, chose to accept his

version of events in conjunction with its earlier review of the video of the stop.

Accordingly, we hold the trial court did not err in denying the motion to suppress under

the facts and circumstances of this case.

      {¶37} Appellant’s sole Assignment of Error is overruled.

      {¶38} For the reasons stated in the foregoing opinion, the judgment of the

Massillon Municipal Court, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Hoffman, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0620
Stark County, Case No. 2010 CA 00312                                           8


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
CHRISTOPHER HENDERSON                       :
                                            :
       Defendant-Appellant                  :         Case No. 2010 CA 00312




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Massillon Municipal Court, Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
