         [Cite as State v. Slaughter, 2018-Ohio-105.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NOS. C-170110
                                                                    C-170111
        Plaintiff-Appellee,                        :                C-170112
                                                        TRIAL NOS. 16TRC-37026A
  vs.                                              :               16TRC-37026B
                                                                   16TRC-37026C
TYRONE SLAUGHTER,                                  :

    Defendant-Appellant.                           :       O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-170110 and C-170112; Appeal
                             Dismissed in C-170111

Date of Judgment Entry on Appeal: January 12, 2018


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Defendant-appellant Tyrone Slaughter appeals his convictions,

following his no-contest pleas, for operating a vehicle with a prohibited breath-

alcohol content and a marked-lanes violation. In this appeal, he argues that the trial

court erred by overruling his motion to suppress evidence on the basis that an Ohio

State Highway Patrol trooper lacked probable cause or a reasonable and articulable

suspicion to stop his vehicle for a marked-lanes violation.

       {¶2}    The trial court based its decision to overrule the motion on a second

marked-lanes violation that it noted after viewing a video recording taken from the

trooper’s cruiser camera. But the trooper testified he had not seen that violation.

Since the trooper’s unrebutted testimony was that he had witnessed a prior marked-

lanes violation, and that testimony was not inconsistent with the video recording of

the traffic stop, the trooper had reasonable and articulable suspicion to stop

Slaughter’s vehicle. We, thus, affirm the trial court’s judgments albeit for reasons

other than those stated by the trial court.

                             Trial Court Proceedings

       {¶3}    Slaughter was charged with operating a vehicle while under the

influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a), having a prohibited

breath-alcohol content under R.C. 4511.19(A)(1)(d), and crossing marked lanes in

violation of R.C. 4511.33. Slaughter filed a motion to suppress all the evidence

against him on the basis that the officer lacked reasonable articulable suspicion or

probable cause to stop his vehicle.

       {¶4}    At the suppression hearing, Slaughter stipulated that he had been

arrested without a warrant. Trooper Alex Burnett testified that he was in a uniform

and in a marked cruiser on patrol on North Bend Road when he observed a Nissan



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Altima ahead of him traveling out of its lane. He testified the vehicle was in the left

lane and it traveled to the right approximately one to two feet. He sped up to catch

the vehicle and signaled to the driver to pull over. He then came into contact with

Slaughter, who was driving the vehicle. After administering field-sobriety tests, he

arrested Slaughter for OVI.

       {¶5}    The video from Trooper Burnett’s cruiser camera was admitted into

evidence and played during the suppression hearing. As the video was playing,

defense counsel questioned Trooper Burnett about the basis for the traffic stop. The

video showed a vehicle ahead of Trooper Burnett that turned right onto one of the

north-south streets. Trooper Burnett testified that while it was difficult to see on the

video, he had then followed a red Nissan Altima. He saw the marked-lanes violation

and sped up to stop the vehicle. The video showed that Slaughter had committed a

second marked-lanes violation near the intersection of North Bend Road and

Hamilton Avenue when he had driven his vehicle partly into the left-turn lane and

then back into the adjoining lane, before proceeding straight through the traffic light.

Trooper Burnett testified, however, that he had not seen that marked-lanes violation.

       {¶6}    On cross-examination, Trooper Burnett testified that even though he

was 100-110 meters behind Slaughter’s vehicle, he had a clear and unobstructed view

of the marked-lanes violation. He acknowledged it was difficult to see this violation

on the video because “the blur from the traffic lights and the headlights of the other

vehicles had blurred out some of the violation.”

       {¶7}    The trial court overruled the motion to suppress.         It found that

Trooper Burnett had probable cause to stop Slaughter based on the second marked-

lanes violation depicted on the video. Shortly thereafter, Slaughter pled no contest to

OVI with a prohibited concentration of alcohol and the marked-lanes violation. The



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trial court accepted the pleas and found Slaughter guilty. It dismissed the remaining

OVI charge.

       {¶8}    In a single assignment of error, Slaughter argues the trial court erred

in overruling his motion to suppress.

       {¶9}    Appellate review of a motion to suppress presents a mixed question of

fact and law. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. The trial court, acting as the trier of fact, is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, an appellate court

must accept a trial court’s findings of historical fact if they are supported by

competent, credible evidence, but it reviews de novo the trial court’s application of

the law to the facts. See id.; see also State v. Sweeten, 1st Dist. Hamilton No. C-

150583, 2016-Ohio-5828, ¶ 8.

       {¶10}   A traffic stop initiated by a police officer constitutes a seizure within

the meaning of the Fourth Amendment. Thus, any seizure must comply with the

Fourth Amendment’s reasonableness requirement. Whren v. United States, 517 U.S.

806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). A police officer’s decision to

stop an automobile is reasonable where the officer has probable cause to believe that

a traffic violation has occurred. Id. Accord Dayton v. Erickson, 76 Ohio St.3d 3, 11-

12, 665 N.E.2d 1091 (1996). Probable cause is a complete justification for a traffic

stop. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23;

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶

11.

       {¶11}   Probable cause, however, is not required to justify a traffic stop.

Mays at ¶ 23. A traffic stop may be based on less than probable cause when an

officer possesses reasonable suspicion that a driver has committed, or is committing



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a crime, including a minor traffic violation. Id. at ¶ 7-8. To justify a traffic stop

based on reasonable articulable suspicion, the officer must be able to articulate

specific facts that would warrant a person of reasonable caution to believe that the

driver has committed, or is committing, a crime, including a minor traffic violation.

Id. at ¶ 8 and 12. Probable cause is a stricter standard than reasonable and

articulable suspicion and subsumes reasonable and articulable suspicion. Id. at ¶ 23,

citing State v. Evans, 67 Ohio St.3d 405, 411, 618 N.E.2d 162 (1993). Accordingly, an

officer who witnesses a traffic violation possesses probable cause, and a reasonable

articulable suspicion to conduct a traffic stop. Mays at ¶ 23-24.

       {¶12}   In determining whether an officer possesses probable cause or a

reasonable articulable suspicion to stop a vehicle, the court must examine the totality

of the circumstances. Id. at ¶ 7. “[T]he existence of probable cause [or reasonable

and articulable suspicion] depends on whether an objectively reasonable police

officer would believe that [the driver’s] conduct * * * constituted a traffic violation,

based on the totality of the circumstances known to the officer at the time of the

stop.” Bowling Green, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, at ¶ 16.

       {¶13}   Here, the record reflects that Trooper Burnett testified that he had

stopped Slaughter’s vehicle because he had observed Slaughter’s vehicle, which was

ahead of him in the left lane, travel out of that lane and into the right lane

approximately one to two feet. Trooper Burnett testified that he then sped up to

catch Slaughter’s vehicle. He testified that it was difficult to see this marked-lanes

violation on the video because the traffic lights and the headlights of the other

vehicles had blurred out some of the violation.

       {¶14}   The video showed Slaughter had committed a second marked-lanes

violation when his vehicle traveled out of the left-turn lane into the adjoining lane



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and then drove straight through a traffic light. Trooper Burnett testified, however,

that this was not the marked-lanes violation that he had seen. Rather, he had

stopped Slaughter’s vehicle based solely on his observation of the first marked-lanes

violation.

       {¶15}   The trial court’s legal conclusion that the second marked-lanes

violation provided the trooper with probable cause to stop Slaughter’s vehicle is

erroneous given that the trooper expressly denied observing this second marked-

lanes violation. However, we cannot conclude the trial court erred in overruling the

motion to suppress, because the trooper’s unrebutted testimony that he had

personally observed a prior marked-lanes violation was sufficient to provide him

with reasonable articulable suspicion to stop Slaughter’s vehicle. See State v. Lopez,

166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781, ¶ 14 (1st Dist.); State v.

Shisler, 1st Dist. Hamilton Nos. C-050860, C-050861, C-050878 and C-050879,

2006-Ohio-5265, ¶ 7; State v. Burwell, 3d Dist. Putnam No. 12-09-06, 2010-Ohio-

1087, ¶ 14.

       {¶16}   Slaughter argues that this court cannot rely on the trooper’s

testimony because the trial court chose not to rely on the trooper’s testimony when

overruling the motion to suppress. Thus, he contends, the trial court must have

found the trooper’s testimony lacking in credibility. We disagree. The trial court did

not expressly address the credibility of the trooper’s testimony. Our review of the

record reveals that the trooper’s testimony conforms to the video of the traffic stop,

which reflects that the trooper’s vehicle was 100-110 meters behind another vehicle

and that the glare of oncoming headlights blurred out the violation. The trooper’s

vehicle accelerated and he initiated the traffic stop. Because the trooper’s testimony

that he had observed Slaughter’s vehicle, which was in the left lane, travel out of that



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lane and into the right lane is not inconsistent with the video, it was sufficient to

establish a reasonable suspicion, based on articulable facts, that Slaughter’s vehicle

had been operated in violation of the law. See Mays, 119 Ohio St.3d 406, 2008-

Ohio-4539, 894 N.E.2d 1204, at ¶ 24; State v. Hodge, 147 Ohio App.3d 550, 2002-

Ohio-3053, 771 N.E.2d 331, ¶ 50 (7th Dist.). Under these circumstances, the trial court

did not err in overruling Slaughter’s motion to suppress.

       {¶17}   We, therefore, overrule Slaughter’s sole assignment of error and affirm

the judgments of the trial court in the appeals numbered C-170110 and C-170112. We

dismiss the appeal numbered C-170111, which was taken from the trial court’s judgment

dismissing the R.C. 4511.191(A)(1)(a) charge.

                                                               Judgment accordingly.

CUNNINGHAM, P.J., and ZAYAS, J., concur.


Please note:
       The court has recorded its own entry this date.




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