[Cite as State v. Franklin, 2012-Ohio-3089.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 11-CA-128
                                               :
                                               :
RICHARD FRANKLIN                               :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Licking County
                                                    Municipal Court Case No.
                                                    11 TRC 08419

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             June 29, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JONATHAN C. DIERNBACH                               ROBERT CALESARIC
Assistant Law Director                              35 South Park Place, Suite 150
40 W. Main Street                                   Newark, Ohio 43055
Newark, Ohio 43055
[Cite as State v. Franklin, 2012-Ohio-3089.]


Edwards, J.

        {¶1}     Defendant-appellant, Richard Franklin, appeals from the denial by the

Licking County Municipal Court of his Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On August 13, 2011, appellant was arrested and charged with operating a

motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a)

and (A)(1)(d) and a marked lanes violation in violation of R.C. 4511.33. On August 16,

2011, appellant filed a written not guilty plea.

        {¶3}     Subsequently, on September 13, 2011, appellant filed two Motions to

Suppress.       Appellant, in one of the motions, argued, in part, that he was illegally

stopped. A hearing on such motion was held on October 27, 2011. At the hearing, the

sole issue for determination was whether or not the officer had reasonable, articulable

suspicion to stop appellant’s vehicle.

        {¶4}     Trooper Jermaine Thaxton of the Ohio State Highway Patrol testified that

he was on duty in uniform in a marked cruiser on August 13, 2011. As he was patrolling

the City of Newark, Trooper Thaxton observed appellant’s car, a 2004 Cadillac CTS, go

over the double solid yellow pavement lines. According to the Trooper, after going over

the line approximately a half a tire width, appellant “swayed back into his lane.”

Transcript at 6. Trooper Thaxton pulled appellant over at approximately 2:42 a.m.

        {¶5}     On cross-examination, the Trooper testified that the only basis for the

traffic stop was the marked lanes violation.
Licking County App. Case No. 11-CA-128                                                    3


       {¶6}   A videotape of the traffic stop, as well as still images from the stop, were

admitted as exhibits.

       {¶7}   Pursuant to a Judgment Entry filed on November 15, 2011, the trial court

denied appellant’s Motion to Suppress. The trial court, in its Judgment Entry, indicated

that the video from Trooper Thaxton’s cruiser revealed that the tires of appellant’s

vehicle touched the far right line of the double solid center line traffic marking and that

tires crossed the double center line by “approximately 3 inches or one half of a tire

width.” The trial court, in its Judgment Entry, stated, in relevant part, that “[w]hile it

would appear that this is an extremely de-minimis violation of the code the Court

believes that when a vehicle’s tire crosses onto the painted center line that the vehicle is

no longer driven within a single lane or line of traffic.”

       {¶8}   Thereafter, appellant pleaded no contest to the charges and was found

guilty by the trial court. Pursuant to a Judgment Entry filed on December 2, 2011,

appellant was sentenced to 90 days in jail with 60 days suspended, was fined $500.00

and was placed on probation for a period of one year. In addition, appellant’s driver’s

license was suspended for a period of one year.

       {¶9}   Appellant now raises the following assignment of error on appeal:

       {¶10} “APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT

TROOPER LANNING [SIC] HAD REASONABLE ARTICULABLE SUSPICION TO

STOP APPELLEE’S MOTOR VEHICLE.”

                                                   I

       {¶11} Appellant, in his sole assignment of error, argues that the trial court erred

in denying appellant’s Motion to Suppress. Appellant specifically contends that the trial
Licking County App. Case No. 11-CA-128                                                   4


court erred in finding that Trooper Thaxton had reasonable, articuable suspicion to stop

appellant’s vehicle for a marked lanes violation after appellant drove three (3) inches

onto a double yellow center line without going across or over the line.

      {¶12} Appellate review of a trial court's decision to grant a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

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

evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). A

reviewing court is bound to accept the trial court's findings of fact if they are supported

by competent, credible evidence. State v. Metcalf, 111 Ohio App.3d 142, 675 N.E.2d

1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993).

      {¶13} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); and State v. Klein, 73 Ohio App.3d

486, 597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue that 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. See

Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided
Licking County App. Case No. 11-CA-128                                                 5


the ultimate or final issues raised in a 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. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist. 1993), and State

v. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994).

       {¶14} At issue in the case sub judice is whether or not Trooper Thaxton had

reasonable, articulable suspicion to stop appellant’s vehicle. An investigative stop of a

motorist does not violate the Fourth Amendment if the officer has a reasonable

suspicion that the individual is engaged in criminal activity. Maumee v. Weisner, 87

Ohio St.3d 295, 299, 1999-Ohio-68, 720 N.E.2d 507, citing Terry v. Ohio, 392 U.S. 1,

22, 88 S.Ct. 1868 20 L.Ed.2d 889. Before a law enforcement officer may stop a vehicle,

the officer must have a reasonable suspicion, based upon specific and articulable facts

that an occupant is or has been engaged in criminal activity. State v. Gedeon, 81 Ohio

App.3d 617, 618, 611 N.E.2d 972 (11th Dist. 1992). Reasonable suspicion constitutes

something less than probable cause. State v. Carlson, 102 Ohio App.3d 585, 590, 657

N.E.2d 591 (9th Dist. 1995). The propriety of an investigative stop must be viewed in

light of the totality of the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d

489 (1988), ¶ 2 of the syllabus.

       {¶15} In the case sub judice, the trial court found that Trooper Thaxton had

reasonable, articulable suspicion that appellant, by driving three (3) inches onto the

double yellow center line, had violated R.C. 4511.33. R.C. 4511.33 states, in relevant

part, as follows: “(A) Whenever any roadway has been divided into two or more clearly

marked lanes for traffic, or wherever within municipal corporations traffic is lawfully
Licking County App. Case No. 11-CA-128                                                         6


moving in two or more substantially continuous lines in the same direction, the following

rules apply: (1) A vehicle or trackless trolley shall be driven, as nearly as is practicable,

entirely within a single lane or line of traffic and shall not be moved from such lane or

line until the driver has first ascertained that such movement can be made with safety.”

       {¶16} In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,

the Ohio Supreme Court held that, because R.C. 4511.33 requires a driver to drive a

vehicle entirely within a single lane of traffic, when an officer observes a vehicle driving

twice across a white edge line, the officer has a reasonable and articulable suspicion

that the driver has violated R.C. 4511.33. The Mays Court stated, in relevant part, as

follows: “The court in Hodge1 also stated that it did not intend for its decision to stand for

‘the proposition that movement within one lane is a per se violation giving rise to

reasonable suspicion, nor does inconsequential movement within a lane give law

enforcement carte blanche opportunity to make an investigatory stop.’ Id., 147 Ohio

App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, at ¶ 45. However, when an officer could

reasonably conclude from a person's driving outside the marked lanes that the person is

violating a traffic law, the officer is justified in stopping the vehicle.” Id. at ¶20.

       {¶17} In State v. Richardson, 5th Dist. No. 00-CA-A-01-003, 2000 WL 1055917

(July 14, 2000), the appellee was pulled over after an officer observed his vehicle drive

on top of the center line a total of four times. After the appellee was arrested for driving

under the influence of alcohol, driving under suspension and a marked lanes violation,

he filed a Motion to Suppress. In his motion, the appellee argued that the officer did not




1                                                                                                  th
 The complete citation is State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331 (7
Dist.).
Licking County App. Case No. 11-CA-128                                                     7


have a reasonable and articuable suspicion that the appellee had violated traffic laws.

After the trial court granted such motion, the State appealed.

       {¶18} In affirming the decision of the trial court, this Court, in Richardson, stated,

in relevant part, as follows: “Appellee in the case sub judice was cited for violating R.C.

4511.33. It is appellee's alleged violation of such section that was Officer Whitlatch's

justification for stopping appellee's vehicle. R.C. 4511.33 requires a motor vehicle to be

driven within a single lane. At the January 3, 2000, suppression hearing, Officer

Whitlatch testified that appellee's vehicle ‘traveled over top of the center line [sic] about

a tire width four different times’ and that, each time, appellee steered his vehicle back

into the northbound lane. Transcript of Proceedings at 15. Officer Whitlatch further

testified that appellee's vehicle never crossed over the centerline of the highway and

that appellee never actually went left of center. Based on the foregoing, we agree with

the trial court that Officer Whitlatch never observed any violation of R.C. 4511.33 since

‘R.C. 4511.33, the marked-lanes statute, requires a vehicle to be driven within a single

lane. This vehicle was operated within a single lane and further did not go left of the

centerline. The defendant ‘exactly drove on top of the center line [sic].’ See trial court's

January 5, 2000 Judgment Entry at 5. Accordingly, since appellee did not violate R.C.

4511.33, which Officer Whitlatch cited as the justification for his stop of appellee's

vehicle, Officer Whitlatch lacked an articuable and reasonable suspicion that appellee

was operating his motor vehicle in violation of the law. The trial court, therefore, did not

err in granting appellee's Motion to Suppress.” Id at 2.

       {¶19} In State v. Messick, 5th Dist. No. 06CAC090065, 2007-Ohio-1824, the

appellee, who had been stopped and arrested for operating a motor vehicle while under
Licking County App. Case No. 11-CA-128                                                     8


the influence of alcohol and a marked lanes violation, filed a Motion to Suppress,

arguing that there was no articuable and reasonable suspicion to support the traffic

stop. At the suppression hearing, the officer testified that he observed the driver’s side

tires of appellee’s vehicle on top of the yellow line on three separate occasions within

one mile. The trial court granted such motion and the State of Ohio appealed. In

reversing the decision of the trial court, this Court agreed with the trial court that the

officer’s testimony did not establish a marked lanes violation, but found that the

appellee’s weaving within his lane of travel and earlier erratic left turn gave the officer a

reasonable and articuable suspicion to justify the stop of appellee.       In contrast, see

State v. Landon, 5th Dist. No. 09-CA-0009, 2009-Ohio-6818. In such case, this Court

held that the officer had reasonable, articuable suspicion to stop the appellant after the

appellant’s driver’s side tires went completely over the yellow line to the point that they

were not touching the lines.

       {¶20} More recently, in State v. Grigoryan, 8th Dist. No. 93030, 2010-Ohio-2883,

the appellant was stopped after his vehicle drifted to the left, drifted to the right and

drove on the yellow lane line on the left. After the appellant filed a Motion to Suppress,

the trial court granted the same and the State appealed. In affirming the decision of the

trial court, the court, in Grigoryan, held that the drifting followed by brief driving on the

left yellow edge line constituted “’inconsequential movement within a lane’ that does not

give rise to articuable suspicion to make an investigatory stop…” Id at ¶25. See also

City of Mentor v. Phillips, 11th Dist. No. 99-L-119, 2001 WL 20736 (Dec. 29, 2000), in

which the court held that there was no probable cause to stop the appellant for a

marked lanes violation.     In such case, the appellant was observed driving onto the
Licking County App. Case No. 11-CA-128                                                     9


white broken line dividing the two eastbound lanes and then quickly driving back

towards the center of the lane.

       {¶21} As is stated above, in the case sub judice, the trial court found that the

videotape showed that the left tires of appellant’s vehicle touched the far right line of the

double solid center line traffic marking.     The trial court further found that the tires

crossed onto that portion of the double center line by approximately 3 inches. There

was no testimony or evidence that appellant crossed the center line, but rather that

appellant drove on the marked center line. Based on the foregoing, we find that Trooper

Thaxton did not have reasonable, articuable suspicion that appellant was violating R.C.

4511.33. We find, therefore, that the trial court erred in denying appellant’s Motion to

Suppress.

       {¶22} Appellant’s sole assignment of error is, therefore, sustained.
Licking County App. Case No. 11-CA-128                                       10


      {¶23} Accordingly, the judgment of the Licking County Municipal Court is

reversed and this matter is remanded for further proceedings.



By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                                JUDGES

JAE/d0425
Licking County App. Case No. 11-CA-128                                                   11

Farmer, J., dissents

       {¶24} I respectfully dissent from the majority's opinion.

       {¶25} I would find that crossing onto the double center line by three inches was

an indication of impaired or inattentive driving warranting a stop. I would also defer to

the trial court's analysis of the videotape in its role as the trier of fact.

       {¶26} I would affirm the trial court's decision denying the motion to suppress.




                                                     ________________________________
                                                     HON. SHEILA G. FARMER
[Cite as State v. Franklin, 2012-Ohio-3089.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
RICHARD FRANKLIN                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 11-CA-128




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

judgment of the Licking County Municipal Court is reversed and remanded to the trial

court for further proceedings. Costs assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
