[Cite as State v. Neitzel, 2019-Ohio-2122.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :       Hon. John W. Wise, J.
                                              :       Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
JENNIFER M. NEITZEL                           :       Case No. 18-CA-46
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Fairfield Municipal
                                                      Court, Case No. 18 TRC 6707




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     May 28, 2019




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

DAVID R. KLEMP                                        SCOTT C. WALKER
Assistant Prosecuting Attorney                        Walker Novack Legal Group LLC
City of Lancaster Law Director's Office               5013 Pine Creek Drive
136 W. Main Street                                    Westerville, Ohio 43081
Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-46                                                   2




Baldwin, J.

       {¶1}    Defendant-appellant Jennifer Neitzel appeals her conviction and sentence

from the Fairfield County Municipal Court. Plaintiff-appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶2}    On June 23, 2018, appellant was cited for driving under the influence of

alcohol in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and a

marked lanes violation under R.C. 4511.33, a minor misdemeanor. At her arraignment on

June 26, 2018, appellant entered a plea of not guilty to the charges.

       {¶3}    On August 3, 2018, appellant filed a Motion to Suppress, arguing that all

evidence was illegally seized. A hearing on the motion was held on August 28, 2018. The

sole issue to be determined was whether or not there was a reasonable and articulable

basis sufficient to justify the stop.

       {¶4}    At the hearing, Trooper Adam Dickerson of the Ohio State Highway Patrol

testified that he was on normal patrol on June 23, 2018 at approximately 12:45 a.m. when

he observed appellant’s vehicle swerving. At the time, he was patrolling westbound on

U.S. 33 in Violet Township, Fairfield County, Ohio. He testified that appellant’s vehicle

was “[b]ouncing back and forth between it’s (sic) lanes.” Transcript of Suppression

hearing at 8. A video of the stop was played and admitted as an exhibit. The Trooper

testified as follows when asked if he observed any abnormal driving: “Yes, sir, right here

is when I start to observe this vehicle starting to drift over -- over the white fog line and

then coming back over and coming close to the white dotted line.” Transcript of

Suppression hearing at 12. Trooper Dickerson testified that because he had observed
Fairfield County, Case No. 18-CA-46                                                  3


the vehicle having a difficult time staying within the lane, he decided to initiate a traffic

stop at 00:45:30.

       {¶5}   On cross-examination, Trooper Dickerson testified that appellant first

touched the right hand fog line at 44:58 and that at the point where appellant touched the

right fog line, she never completely crossed over it with a tire. According to the Trooper,

“there is a mirror that sticks out further than the tire that would cross over the line.”

Transcript of Suppression hearing at 16. The following is an excerpt from the Trooper’s

testimony at the hearing:

       {¶6}   Q: But you did not and we did not observe on this video any tire crossing

completely over that fog line.

       {¶7}   A: No, sir.

       {¶8}   Q: Would you agree with that?

       {¶9}   A: Yes, sir.

       {¶10} Q: And as we move forward, she starts to drift to the left right here. Correct?

       {¶11} A: Yes, sir.

       {¶12} Q: And that’s 45:18 and she’s again touching the left marked lane. Correct?

       {¶13} A: Yes, sir.

       {¶14} Q: Once again you would agree that at no time did her tires completely

cross over that white line?

       {¶15} A: Correct.

       {¶16} Q: Okay. That was 19.

              All right. Now she’s - - you would agree that all through there she’s fine.

              Right?
Fairfield County, Case No. 18-CA-46                                                   4


       {¶17} A: I mean you still observe her swerving within her lane. Yes, sir.

       {¶18} Q: But you would still agree that there was about ten seconds worth of good

driving. She wasn’t swerving for about ten seconds. Would you agree with that?

       {¶19} A: I mean she was swerving there.

       {¶20} Q: And she’s driving fine there at 45:14?

       {¶21} A: She’s going straight right now. Yes, sir.

       {¶22} Q: Now 45:17 she starts to drift. Do you agree?

       {¶23} A: Yes, sir.

       {¶24} Q: 45:18 she’s touching the left marked lane. Correct?

       {¶25} A: Yes, sir.

       {¶26} Q: And again you would agree that she did not completely cross over?

       {¶27} A: Correct. Not with the tire.

       {¶28} Q: Okay. So from 19 to about 25, now she drifts over to the left again?

       {¶29} A: It appeared just before that she was starting to come back over towards

that white fog line as well.

       {¶30} Q: Okay. But 45:27 you agree that she’s touching the left marked lane

again?

       {¶31} A: Yes, sir.

       {¶32} Q: Okay. Again, she’s not completely crossed over. You would agree that

she’s driving on it. Right?

       {¶33} A: Yes, sir.

       {¶34} Q: And it’s at this point that you decide to initiate the traffic stop. Correct?

       {¶35} A: Yes, sir.
Fairfield County, Case No. 18-CA-46                                                 5


       {¶36} Q: And the reason for the traffic stop is marked lanes violation. Right?

       {¶37} A: Yes, sir.

       {¶38} Transcript of Suppression hearing at 16-18.

       {¶39} After the hearing, the parties submitted post-hearing briefs. Pursuant to an

Entry filed on September 20, 2018, the trial court denied the Motion to Suppress. The trial

court found that appellant’s vehicle had touched the fog line three times and the center

dividing line two times in the span of less than 30 seconds and that “[i]n this Court’s

opinion, this constitutes erratic driving on the part of [appellant] that would give Trooper

Dickerson a reasonable and articulable suspicion that a traffic violation is being

committed.”

       {¶40} On October 30, 2018, appellant entered a plea of no contest to operating a

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

and was found guilty by the court. The remaining charge was dismissed. The trial court

sentenced appellant to 180 days in jail, but suspended 177 of those days, and also

suspended appellant’s driver’s license for a period of one year. The trial court also placed

appellant on community control for a period of two years and ordered that she

successfully complete a 72 hour Driver Intervention Program. Appellant also was fined

$375.00.

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

       {¶42} “I. IN AN OVI PROSECUTION UNDER R.C. [SECTION] 4511.19(A)(1)(a)

WHERE THE DEFENDANT WAS STOPPED FOR VIOLATING THE MARKED LANES

STATUTE, R.C. [SECTION] 4511.33, AND THE OFFICER ADMITTED THAT THE

DEFENDANT NEVER DROVE COMPLETELY OVER A MARKED LANE, THE TRIAL
Fairfield County, Case No. 18-CA-46                                                    6


COURT ERRED IN FINDING THAT THE OFFICER HAD A REASONABLE

ARTICULABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND ALL EVIDENCE

SUBSEQUENT TO THE STOP SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT

OF AN UNCONSTITUTIONAL SEARCH AND SEIZURE.”

                                               I

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

in denying her Motion to Suppress. We disagree.

       {¶44} Appellate review of a trial court's decision to grant or deny 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. Brooks, 75 Ohio St.3d 148, 1996-Ohio-134, 661

N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 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 37,42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other

grounds.

       {¶45} 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.
Fairfield County, Case No. 18-CA-46                                                     7

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue 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. State v. Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided 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. Curry,

95 Ohio App.3d 93, 620 N.E.2d 906 (8th Dist. 1994).

       {¶46} 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 (1968). Before a law enforcement

officer may stop a vehicle, the officer must have a reasonable suspicion, based upon

specific and articuable 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), ¶ 1 of the syllabus.

       {¶47} Thus, if the specific and articulable facts indicate to the officer the driver of

an automobile may be committing a criminal act, which includes a violation of a traffic law,

the officer can justifiably make an investigative stop. State v. Carlson, 102 Ohio App.3d
Fairfield County, Case No. 18-CA-46                                                      8

585, 593, 657 N.E.2d 591, 596-597 (9th Dist. 1995); State v. Cole, 3rd Dist. Wyandot

App. No. 16-94-11, 1995 WL 551110 (Sept. 13, 1995). In a situation where the officer has

observed a traffic violation, the stop is constitutionally valid. Dayton v. Erickson, 76 Ohio

St.3d 3, 9, 1996-Ohio-431, 665 N.E.2d 1091, 1095-1096; State v. Evans, 67 Ohio St.3d

405, 1993-Ohio-186, 618 N.E.2d 162.

       {¶48} Appellant, in the case sub judice, specifically argues that the Trooper did

not have reasonable articulable suspicion to stop her for a marked lanes violation

pursuant to R.C. 4511.33 because appellant never crossed over a marked lane. 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 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.”

       {¶49} In the case sub judice, the trial court found that appellant’s vehicle touched

the fog line three times and the center dividing line two times in the span of less than 30

seconds and that “[i]n this Court’s opinion, this constitutes erratic driving on the part of

[appellant] that would give Trooper Dickerson a reasonable and articulable suspicion that

a traffic violation is being committed.” While Trooper Dickersons’s testimony may or may

not have established a marked lanes violation, we find, under the totality of the

circumstances, that the Trooper had a reasonable and articulable suspicion appellant

may have been violating the statute and, therefore, was justified in stopping appellant's
Fairfield County, Case No. 18-CA-46                                                 9


vehicle. Trooper Dickerson testified that he observed appellant weaving in her lane of

travel and touch the center and fog lines multiple times. The State does not have to charge

a motorist with a traffic violation in order to use the facts of such a violation to support

reasonable suspicion to initiate a traffic stop. State v. Shiley, 74 Ohio App.3d 230, 232,

233, 598 N.E.2d 775 (3rd Dist. 1991). The State is only required to present reasonable

and articulable facts which support the traffic stop.

       {¶50} As stated supra, Trooper Dickerson’s testimony provided reasonable and

articulable facts which provided justification to stop appellant’s vehicle. We find that the

additional evidence in the record, including the video, supported the stop.

       {¶51} Based upon the foregoing, we find the trial court did not err in denying

appellee's Motion to suppress.

       {¶52} Appellant’s sole assignment of error is, therefore, overruled.

       {¶53} Accordingly, the judgment of the Fairfield County Municipal Court is

affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.
