[Cite as State v. Curley, 2016-Ohio-7624.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :  C.A. CASE NO. 27104
                                                   :
 v.                                                :  T.C. NO. 15CRB1938 and
                                                   :  15TRC7526A-C
 TYLER CURLEY                                      :
                                                   :
         Defendant-Appellant                       :  (Criminal Appeal from
                                                   :   Municipal Court)
                                                   :
                                              ...........

                                             OPINION

              Rendered on the ___4th___ day of _____November_____, 2016.

                                              ...........

JOHN D. EVERETT, Atty. Reg. No. 0069911, Prosecuting Attorney, City of Kettering,
2325 Wilmington Pike, Kettering, Ohio 45420
      Attorney for Plaintiff-Appellee

JEFFREY E. RICHARDS, Atty. Reg. No. 0016610, 147 Miami Street, P. O. Box 536,
Waynesville, Ohio 45068
     Attorney for Defendant-Appellant

                                             .............

FROELICH, J.

        {¶ 1} Tyler Curley appeals from two judgments of the Kettering Municipal Court,

which found him guilty of several offenses on his no contest pleas after overruling his

motion to suppress evidence. Curley was convicted of operating a motor vehicle while

intoxicated (OVI) (second offense), in violation of R.C. 4511.19(A)(1), refusal to submit to
                                                                                         -2-


a chemical test with a prior OVI conviction within 20 years, in violation of R.C.

4511.19(A)(2), failure to have his rear license plate illuminated, in violation of Kettering

Ordinance 438.04(b), possession of marijuana (less than 100g), and possession of drug

paraphernalia. On appeal, Curley challenges the denial of his motion to suppress.

       {¶ 2} For the following reasons, the judgments of the trial court will be affirmed.

                            I. Facts and Procedural History

       {¶ 3} Curley was stopped by uniformed Kettering Police Officer Jonathon McCoy

on October 2, 2015, at 2:49 a.m., in the vicinity of Dorothy Lane and Galewood Street.

McCoy had driven past Curley’s vehicle on Dorothy Lane as they traveled in opposite

directions. Upon looking in his rearview and side mirrors, McCoy believed that Curley’s

rear license plate was not properly illuminated, and McCoy turned his cruiser around to

investigate. McCoy got behind Curley’s vehicle and turned off his own headlights; he

again concluded that Curley’s license plate was not sufficiently illuminated, and he

initiated a traffic stop.

       {¶ 4} When McCoy approached Curley’s vehicle on foot and examined the area

around the license plate, he observed that one light bulb above the license plate was on,

but it was dim and was not illuminating the plate. A second license plate light was not

working at all.

       {¶ 5} McCoy detected a strong odor of burnt marijuana coming from the vehicle,

and Curley admitted smoking marijuana and “drinking” one hour earlier. McCoy observed

that Curley’s eyes were “bloodshot” and “glassy,” and his speech was “slurred.” Curley

submitted to and failed unspecified field sobriety tests.     He refused to submit to a

chemical test. He was charged with the offenses listed above.
                                                                                           -3-


       {¶ 6} On November 6, 2015, Curley filed a motion to suppress “all evidence of the

field sobriety tests,” on the grounds that they were not properly administered. The trial

court conducted a hearing on the motion on February 1, 2016. Although the motion to

suppress indicated an intent to challenge the manner in which the field sobriety tests were

performed, the hearing itself focused on whether McCoy had reasonable suspicion to stop

Curley’s vehicle. On February 8, 2016, the trial court overruled the motion to suppress.

       {¶ 7} After the ruling on the motion to suppress, Curley entered no contest pleas

on all of the charges against him. On the OVI and OVI refusal, he was sentenced to 180

days in jail, with 170 and 160 days suspended, respectively; he was fined $1,000 for each

offense, with $400 suspended on each count.            Curley was placed on supervised

probation for four years, and his operator’s license was suspended for two years.

Additionally, Curley was fined $25 each for possession of marijuana and possession of

drug paraphernalia and was fined $10 on the license plate light violation.

       {¶ 8} Curley raises one assignment of error on appeal, which challenges the trial

court’s decision on his motion to suppress based on the sufficiency and manifest weight

of the evidence.

                                      II. Standard of Review

       {¶ 9} In ruling on a motion to suppress, the trial court “assumes the role of the

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

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford
                                                                                          -4-


at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

       {¶ 10} Curley frames his argument in terms of the sufficiency and weight of the

evidence, but these standards apply to our review of a court’s final judgment, not its

interlocutory orders, such as a decision on a motion to suppress. We will review whether

the trial court’s factual findings are supported by competent, credible evidence, id., and

whether the trial court erred in overruling the motion to suppress.

                           III. The Justification for the Traffic Stop

       {¶ 11} A law enforcement officer may lawfully stop a vehicle if the officer has a

reasonable, articulable suspicion that the operator has engaged in criminal activity,

including a minor traffic violation. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,

894 N.E.2d 1204, ¶ 7-8; State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241,

¶ 20. We determine the existence of reasonable suspicion by evaluating the totality of

the circumstances and considering those circumstances “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” Hardy at ¶ 20, citing State v. Heard, 2d Dist. Montgomery No. 19323, 2003-

Ohio-1047, ¶ 14. Whether the officer’s suspicion of criminal activity was reasonable is

not dependent on whether any occupant of the vehicle is charged or found guilty of the

suspected activity. See State v. Eggleston, 2015-Ohio-958, 29 N.E.3d 23, ¶ 29 (11th

Dist.); State v. Pfeiffer, 12th Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, ¶ 26. The

duration of a traffic stop may last no longer than is necessary to resolve the issue that led

to the stop and issue a traffic citation, except that continued detention is justified if the
                                                                                           -5-


officer becomes aware of additional specific and articulable facts that demonstrate a

reasonable suspicion of criminal activity other than the traffic violation. State v. Ramos,

155 Ohio App.3d 396, 2003-Ohio-6535, 801 N.E.2d 523, ¶ 13 (2d Dist.); State v. Cole,

2d Dist. Montgomery No. 26576, 2015-Ohio-5295, ¶ 20; State v. Dewitt, 2d Dist.

Montgomery No. 23735, 2010-Ohio-6476, ¶ 41.

       {¶ 12} City of Kettering Code 438.04(b), which is identical in all substantive

respects to R.C. 4513.05(A), requires illumination of the rear registration plate of every

motor vehicle:

       (b) Either a tail light or a separate light shall be so constructed and placed

       as to illuminate with a white light the rear registration plate, when such

       registration plate is required, and render it legible from a distance of fifty

       feet to the rear.     Any tail light, together with any separate light for

       illuminating the rear registration plate, shall be so wired as to be lighted

       whenever the headlights or auxiliary driving lights are lighted, except where

       separate lighting systems are provided for trailers for the purpose of

       illuminating such registration plate.

       {¶ 13} At the suppression hearing, McCoy testified that he looked at Curley’s

vehicle using his rear and side mirrors after passing Curley’s car (in the opposite direction)

on Dorothy Lane; McCoy was not able to read Curley’s rear license plate or even see if a

license plate was present. He also testified that, after turning around to follow Curley

and turning off the cruiser’s headlights, he could not see the rear license plate at a

distance of less than 50 feet. McCoy described 50 feet as “five stories” and stated that

he had “paced [him]self about a half block behind” the vehicle. No testimony was offered
                                                                                         -6-


about the size of the blocks in that area. McCoy also testified that he followed the vehicle

about three-quarters of a mile before making the traffic stop, and that he did not have to

“catch up” to Curley to make the traffic stop; “I was already behind his vehicle.”

       {¶ 14} McCoy further testified that when he approached Curley’s stopped vehicle

on foot, he was “unable to read the license plate in the dark.” He noticed that there was

one “dim” bulb illuminated above the rear license plate, but it was so dim that it was “not

projecting any light onto the license plate.” He compared the illumination from this light

to “the flicker of a candle.” On closer examination, McCoy also noticed that there was a

second bulb above the license plate, which was not operational at all.

       {¶ 15} Curley presented testimony from his step-father, John Szanto, at the

suppression hearing. Szanto was not present at the time of the traffic stop, but he took

photographs of Curley’s vehicle approximately one month later, at night and at a different

location. These photographs were offered into evidence to demonstrate the legibility of

the license plate at night.

       {¶ 16} Curley also testified at the hearing. He stated that there had been no

changes to the “lighting system” between the time of the traffic stop and the time Szanto

took his photographs.

       {¶ 17} The trial court “did not find anything in the photographs or the Defense

testimony which detracts from the credibility of [Officer] McCoy’s testimony.” The court

found that the appearance of the rear license plate at a different place and time did not

contradict McCoy’s testimony as to what he observed on Dorothy Lane on the night of the

traffic stop. The court noted that Curley “did not offer any testimony on the visibility of

the plate on 2 Oct 2015.” The court concluded that McCoy had pointed to “specific and
                                                                                           -7-


articulable facts” which, considered with rational inferences from those facts, “reasonably

warranted [Officer] McCoy in making a traffic stop” on the night in question.

       {¶ 18} Curley argues that there was insufficient evidence that his license plate

was “unreadable” at a distance of 50 feet or less.         He challenges the accuracy or

plausibility of McCoy’s estimation at the hearing that 50 feet is approximately “half a block”

and of McCoy’s description of the distance and manner in which he (McCoy) turned

around on Dorothy Lane and followed Curley’s vehicle to close within 50 feet. Curley’s

brief also contains many purported measurements (for example, the length of a block, the

number of houses on a block, the length of a police cruiser, and number of car lengths

McCoy must have been behind Curley’s car, and the speed at which McCoy must have

been traveling); Curley relies on these suggested measurements, as well as his own

testimony and the testimony of “an acquaintance” (presumably (Szanto) that the license

plate could be read at 50 feet in concluding that the State’s evidence was “nonsensical”

and unreliable. At oral argument, Curley’s attorney also argued that a court must use

“common sense” in interpreting the evidence presented, and that the court could not have

reasonably credited McCoy’s testimony equating half a block with 50 feet.

       {¶ 19} In ruling on a motion to suppress, the trial court “assumes the role of the

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

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. Moreover, when reviewing suppression rulings, we consider only the evidence
                                                                                            -8-


before the trial court at the suppression hearing; we cannot consider any evidence outside

the record of the suppression hearing. State v. Harris, 2d Dist. Montgomery No. 26810,

2016-Ohio-7097, ¶ 3.

       {¶ 20} The trial court reasonably concluded that the photographs demonstrating

illumination of the license plate – which were taken at night but at a different time and

place than the traffic stop ̶ did not refute McCoy’s testimony that, at the time of the traffic

stop, Curley’s license plate was not “legible” due to inadequate lighting. Further, the

court was not required to credit Curley’s testimony that no modifications to the lighting

system had been made during the intervening weeks. We cannot conclude that the trial

court erred in crediting McCoy’s testimony when it weighed the conflicting testimony about

the visibility of the license plate.

       {¶ 21} At oral argument, Curley’s attorney also argued, for the first time, that 1) the

statute did not require that the rear license plate be illuminated by the vehicle on which it

was mounted (rather, that it was sufficient that it be legible when the headlights from

another vehicle shined upon it); and 2) that the last paragraph of the Kettering ordinance

differs from R.C. 4513.05 and creates some ambiguity about when or whether rear plate

lighting was required on Curley’s vehicle.

       {¶ 22} The ordinance at issue clearly requires that the rear registration plate be

lighted by a white light “placed as to illuminate” that plate and render it legible; this

requirement cannot reasonably be interpreted to permit illumination from the headlights

of a separate vehicle, as Curley suggests. See U.S. v. Pate, S.D.Ohio No. 1:09-CR-18,

2009 WL 3418664 (Oct. 19, 2009) (interpreting R.C. 4513.05); see also State v. Held,

146 Ohio App.3d 365, 766 N.E.2d 201 (11th Dist. 2001) (rejecting trial court’s view that it
                                                                                          -9-


was no longer reasonable to issue a citation for a violation of R.C. 4513.05, in light of

requirement that Ohio license plates now use reflective paint, and further holding that

having an operable light where the license plate normally would be affixed is of no avail

if the license plate was not in that spot to receive the illumination). Moreover, the last

sentence of Kettering Ordinance 438.04 is not different from R.C. 4513.05, nor does it

create any ambiguity about the lighting requirement for a vehicle, like Curley’s, that is not

pulling a trailer.

       {¶ 23} The trial court’s decision that McCoy had reasonable, articulable suspicion

for the traffic stop was supported by competent, credible evidence, and we find no basis

to reverse it.

       {¶ 24} The assignment of error is overruled.

                                         IV. Conclusion

       {¶ 25} The judgments of the trial court will be affirmed.

                                         .............

DONOVAN, P.J. and WELBAUM, J., concur.




Copies mailed to:

John D. Everett
Jeffrey E. Richards
Hon. James F. Long
