[Cite as State v. Bennett, 2011-Ohio-4527.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO

                          Plaintiff-Appellee

-vs-

DAVID BENNETT

                     Defendant-Appellant
       JUDGES:
:      Hon. W. Scott Gwin, P.J.
:      Hon. Sheila G. Farmer, J.
:      Hon. Julie A. Edwards, J.
:
:
:      Case No. 2010-CA-34
:
:
:      OPINION




CHARACTER OF PROCEEDING:                       Criminal appeal from the Cambridge
                                               Municipal Court, Case No. 10TRC01936

JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                         September 6, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RONALD C. COUCH                                WILLIAM F. FERGUSON
121 West Eighth Street                         134 Southgate Parkway
Cambridge, OH 43725                          Cambridge, OH 43725-2324
Gwin, P.J.

       {¶1}   Defendant-appellant David A. Bennett appeals the July 2, 2010 Judgment

Entry of the Cambridge Municipal Court overruling his motion to suppress evidence.

Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On April 6, 2010 at approximately 6:24 p.m. Sergeant Mark Glennon of the

Ohio State Highway Patrol was on duty, in uniform and in a marked vehicle patrolling on

S.R. 209 in Guernsey County, Ohio.

       {¶3}   Sergeant Glennon was on S.R. 209 traveling eastbound. That area is a

four lane area of highway with two lanes going east and two lanes going west. Sergeant

Glennon was behind the vehicle being driven by appellant. As appellant’s vehicle

crossed a set of railroad tracks, a part of the vehicle's exhaust system fell off and went

to the right side of the roadway. Appellant's vehicle moved over to the right lane of S.R.

209 without using a turn signal. Appellant’s vehicle then made a right-hand turn onto

Country Club Road and again did not use a turn signal.

       {¶4}   Based upon the failure of the appellant to utilize a turn signal on two

separate occasions and further upon observation of a portion of appellant's muffler

falling off of appellant's vehicle, Sergeant Glennon decided to stop appellant's vehicle.

       {¶5}   Appellant was subsequently charged with one count of a per se violation

of R.C. 4511.19(A) (1) (D) [Operating a Vehicle While under the Influence of Alcohol or

Drugs, a.k.a. OVI]; one count of OVI in violation of R.C. 4511.19(A) (1) (a), one count of

Operating a Motor Vehicle Without a Valid License in violation of R.C. 4510.12(A)/
Failure to reinstate a license in violation of R.C. 4510.21 and one count of having a

defective exhaust system in violation of R.C. 4513.22(A).

      {¶6}   On June 25, 2010, defendant-appellant filed a motion to suppress. On

June 29, 2010 appellant filed a written consent to have the motion heard by a

Magistrate. A hearing on appellant's motion to suppress evidence was held before the

Magistrate on June 29, 2010. By Judgment Entry filed June 30, 2010 the Magistrate

overruled appellant’s motion to suppress. The trial court approved and adopted the

decision of the Magistrate by Judgment Entry filed July 2, 2010.

      {¶7}   On August 24, 2010 appellant pled no contest to one count of OVI in

violation of R.C. 4511.19(A)(1)(a) and one count of driving under suspension for having

failed to reinstate his license in violation of R.C. 4510.21. The state dismissed the

remaining charges. The trial court sentenced appellant to sixty days in jail, six hundred

dollars and court costs on the OVI count and ten days in jail, two hundred fifty dollars

and costs on the driving under suspension count. The trial court suspended fifty jail

days on the OVI count and ran the jail time for both charges concurrent. The trial court

further suspended appellant’s driver’s license for twenty-four months and ordered

supervised probation for eighteen months.

      {¶8}   It is from the trial court’s overruling of his motion to suppress that

appellant’s has timely appealed raising as his sole assignment of error:

      {¶9}   “I. THE COURT ERRED IN FINDING THAT THE ARRESTING OFFICER

HAD A REASON TO STOP THE DEFENDANT AGAINST THE WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”
                                                I.

       {¶10} In his sole assignment of error, appellant argues the trial court erred in

finding that Sergeant Glennon had a reasonable articulable suspicion to support his

stop of the vehicle appellant was driving. We disagree.

       {¶11} At the outset we note that appellant did not object to the decision of the

Magistrate. Crim. R. 19(D)(3)(b). Crim. R. 19(D)(3)(b)(iv) provides, “Except for a claim of

plain error, a party shall not assign on appeal the court’s adoption of any factual finding

or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Crim. R 19(D)(3)(a)(ii), unless the party has objected to that

finding or conclusion as required by Crim. R. 19(D)(3)(b).”

       {¶12} As the United States Supreme Court recently observed in Puckett v.

United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266,           “If an error is not

properly preserved, appellate-court authority to remedy the error (by reversing the

judgment, for example, or ordering a new trial) is strictly circumscribed. There is good

reason for this; ‘anyone familiar with the work of courts understands that errors are a

constant in the trial process, that most do not much matter, and that a reflexive

inclination by appellate courts to reverse because of unpreserved error would be fatal.’”

(Citation omitted).

       {¶13} “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,

2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks

and citations omitted).

       {¶14} “We have previously held that if the defendant had counsel and was tried

by an impartial adjudicator, there is a strong presumption that any other constitutional[l]

errors that may have occurred are subject to harmless-error analysis. State v. Hill

(2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S.

570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in State v. Perry,

101 Ohio St.3d 118, 2004- Ohio-297, 802 N.E.2d 643, [c]onsistent with the presumption

that errors are not structural, the United States Supreme Court ha[s] found an error to

be structural, and thus subject to automatic reversal, only in a very limited class of

cases. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718

(1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

(complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749

(1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d

598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465

U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self representation at trial);

Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31(1984) (denial of public

trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124L.Ed.2d 182 (1993)

(defective reasonable-doubt instruction). Wamsley, supra 117 Ohio St.3d at 391-392,

884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Citations and internal quotation marks

omitted].
       {¶15} “We emphasize that both this court and the United States Supreme Court

have cautioned against applying a structural-error analysis where, as here, the case

would be otherwise governed by Crim.R. 52(B) because the defendant did not raise the

error in the trial court. See Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274; Johnson, 520

U.S. at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. This caution is born of sound policy. For

to hold that an error is structural even when the defendant does not bring the error to

the attention of the trial court would be to encourage defendants to remain silent at trial

only later to raise the error on appeal where the conviction would be automatically

reversed. We believe that our holdings should foster rather than thwart judicial economy

by providing incentives (and not disincentives) for the defendant to raise all errors in the

trial court-where, in many cases, such errors can be easily corrected.” 101 Ohio St.3d at

124, 802 N.E.2d at 649, 2004-Ohio-297 at ¶23.

       {¶16} Thus, the defendant bears the burden of demonstrating that a plain error

affected his substantial rights and, in addition that the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings. United States v. Olano

(1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118,

120 802 N.E.2d 643, 646. Even if the defendant satisfies this burden, an appellate

court has discretion to disregard the error. State v. Barnes (2002), 94 Ohio St.3d 21, 27,

759 N.E.2d 1240; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph

three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

       {¶17} The condition that “the error affect the appellant's substantial rights,”

requires the error to be prejudicial, meaning that there is a reasonable probability that

the error affected the trial's outcome, not that there is “any possibility,” however remote,
that the jury could have convicted based exclusively on evidence. Further, to be

revisable as plain error, the failure to grant the motion to suppress must meet the

criterion that “the error seriously affect[t] the fairness, integrity or public reputation of

judicial proceedings.” Puckett, supra, at ----, 129 S.Ct. 1423 (internal quotation marks

omitted).

       {¶18} Accordingly, we will review appellant’s assignment of error for plain error.

       {¶19} In Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769 the

United States Supreme Court held:

       {¶20} “The temporary detention of a motorist upon probable cause to believe

that he has violated the traffic laws does not violate the Fourth Amendment's prohibition

against unreasonable seizures, even if a reasonable officer would not have stopped the

motorist absent some additional law enforcement objective.” Whren at 806 116 S.Ct. at

1771. Less than one month later, the Ohio Supreme Court reached a similar decision in

City of Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, 1996-Ohio-431. In

Erickson, the Court stated:

       {¶21} “Where 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 even if the officer had some

ulterior motive for making the stop, such as a suspicion that the violator was engaging in

more nefarious criminal activity.” Id. at syllabus. However, the Ohio Supreme Court has

emphasized that probable cause is not required to make a traffic stop; rather the

standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406,

894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 23.
       {¶22} Based on the above, neither the United States Supreme Court nor the

Ohio Supreme Court considered the severity of the offense as a factor in determining

whether the law enforcement official had a reasonable, articulable suspicion to stop a

motorist. In fact, the Ohio Supreme Court stated that " * * * we conclude that where an

officer has an articulable reasonable suspicion or probable cause to stop a motorist for

any criminal violation, including a minor traffic violation, the stop is constitutionally valid

regardless of the officer's underlying subjective intent or motivation for stopping the

vehicle in question." (Emphasis added.) City of Dayton v. Erickson, supra at 11-12, 665

N.E.2d 1091. See, also, State v. Rice, Fifth Dist. No. 2005CA00242, 2006-Ohio-3703 at

¶33-34; State v. Rice (Dec. 23, 1999), 5th Dist. No. 99CA48. If an officer’s decision to

stop a motorist for a criminal violation, including a traffic violation, is prompted by a

reasonable and articulable suspicion considering all the circumstances, then the stop is

constitutionally valid. State v. Mays, supra at ¶ 8.

       {¶23} In Mays, supra the defendant argued that his actions in the case – twice

driving across the white edge line – were not enough to constitute a violation of the

driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. The appellant further

argued that the stop was unjustified because there was no reason to suspect that he

had failed to first ascertain that leaving the lane could be done safely or that he had not

stayed within his lane “as nearly as [was] practicable,” within the meaning of R.C.

4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of

whether appellant might have a possible defense to a charge of violating R.C. 4511.33

is irrelevant in our analysis of whether an officer has a reasonable and articulable

suspicion to initiate a traffic stop. An officer is not required to determine whether
someone who has been observed committing a crime might have a legal defense to the

charge.” Id. at ¶ 17.

        {¶24} In the case at bar, appellant argues that the video of the traffic stop shows

that in fact nothing at all fell off his car and that therefore there was no reason for the

stop.

        {¶25} However, Sergeant Glennon also testified that he observed two traffic

violations where the appellant turned on two separate occasions without utilizing a turn

signal. (T. at 7-8; 12-13).

        {¶26} The judge is in the best position to determine the credibility of witnesses,

and his conclusion in this case is supported by competent facts. See State v. Burnside

(2003), 100 Ohio St.3d 152, 154-55, 797 N.E.2d 71, 74. The fundamental rule that

weight of evidence and credibility of witnesses are primarily for the trier of fact applies to

suppression hearings as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437

N.E.2d 583, 584. The Officer’s testimony represents competent, credible evidence that

appellant had committed two traffic violations. Therefore, the factual finding of the trial

court that appellant committed two traffic violations is not clearly erroneous.

        {¶27} Reviewing courts should accord deference to the trial court’s decision

concerning the credibility of the witnesses because the trial court has had the

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St.

3d 71. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d

1273, the Ohio Supreme Court explained: "[a] reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the
witnesses and evidence submitted before the trial court. A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not." See, also State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.

          {¶28} We accept the trial court's conclusion that appellant's violation of the traffic

laws gave Sergeant Glennon reasonable suspicion to stop appellant's vehicle because

the factual findings made by the trial court are supported by competent and credible

evidence. Thus, the trial court did not err when it denied appellant's motion to suppress

on the basis that the initial stop of her vehicle was valid. State v. Busse, Licking App.

No. 06 CA 65, 2006-Ohio-7047 at ¶ 20.

          {¶29} In the case at bar, we find no plain error affecting appellant's substantial

rights.

          {¶30} Accordingly, we overrule appellant's sole assignment of error.

          {¶31} For the foregoing reasons, the judgment of the Cambridge Municipal Court

of Guernsey County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                                  _________________________________
                                                  HON. W. SCOTT GWIN

                                                  _________________________________
                                                  HON. SHEILA G. FARMER

                                                  _________________________________
WSG:clw 0811                       HON. JULIE A. EDWARDS
         IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
                        Plaintiff-Appellee   :
                                             :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
DAVID BENNETT                                :
                                             :
                                             :
                     Defendant-Appellant     :       CASE NO. 2010-CA-34




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

the Cambridge Municipal Court of Guernsey County, Ohio, is affirmed.        Costs to

appellant.




                                                 _________________________________
                                                 HON. W. SCOTT GWIN

                                                 _________________________________
                                                 HON. SHEILA G. FARMER

                                                 _________________________________
                                                 HON. JULIE A. EDWARDS
