[Cite as State v. Hairston, 2011-Ohio-2952.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2011 AP 01 0002
TODD HAIRSTON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the County Court,
                                               Uhrichsville, Case No. 2010 TRD 1060


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        June 14, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. ONG                                   GERALD A. LATANICH
201 North Main Street                          TUSC. CTY. PUBLIC DEFENDER OFFICE
Post Office Box 44683                          153 North Broadway
Uhrichsville, Ohio 44683                       New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2011 AP 01 0002                                             2

Wise, J.

       {¶1}   Appellant Todd Hairston appeals from his conviction for driving under

suspension in the Tuscarawas County Court, Uhrichsville, Ohio. The Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

       {¶2}   On or about May 16, 2010, Patrol Officer James McConnell of the

Dennison Police Department was observing traffic in his marked cruiser. At a few

minutes before 10:00 PM, in the vicinity of Logan Street in Dennison, McConnell

observed a blue 1994 Ford fail to use its turn signal when making a right-hand turn from

an alley. McConnell thereupon made a traffic stop of the Ford, which was being driven

by appellant. Upon checking appellant’s information, McConnell discovered that

appellant’s driver’s license was under a twelve point noncompliance suspension.

       {¶3}   McConnell testified in pertinent part as follows regarding his decision to

stop appellant’s automobile:

       {¶4}   “Q. Do you recall when you first made contact or made visual contact with

Mr. Hairston’s vehicle?

       {¶5}   “A. Yes, I do.

       {¶6}   “Q. Where were you located when you made contact with him?

       {¶7}   “A.   I was along Warehouse Alley and in between South Second and

South Third Street.

       {¶8}   “Q. Where was Mr. Hairston’s vehicle?

       {¶9}   “A. He was turning right from the alley onto Logan. I believe it’s going to

be South Third Drive to South Second Drive I think is the technical alley name for it. But
Tuscarawas County, Case No. 2011 AP 01 0002                                              3


he was turning off that alley right onto Logan Street whenever I observed him not use

his turn signal.

       {¶10} “Q. Do you have any idea about how far behind you were, how close in

proximity your cruiser was to Mr. Hairston’s vehicle when you observed him?

       {¶11} “A. I would have been at the very beginning of South Second Drive and

he would have been, I would have been at Warehouse Alley and South Second Drive

and he would have been at South Second Drive and Logan Street so it was a short

distance, the alleyway.

       {¶12} “Q. Was there anything blocking your view --

       {¶13} “A. No.

       {¶14} “Q.    --of his vehicle?    And you had indicated on the record that Mr.

Hairston did not use his turn signal; is that correct?

       {¶15} “A. That is correct.

       {¶16} “Q. Any chance you were mistaken on this?

       {¶17} “A. No.

       {¶18} “Q. Did you see any turn signal of any sort while following Mr. Hairston?

       {¶19} “A. Nope.

       {¶20} “Q. Was it at night during the traffic stop?

       {¶21} “A. Yes.

       {¶22} “Q. Safe to say that if the blinker were used, there would have been some

illumination that would have caught your attention?

       {¶23} “A. It would have.

       {¶24} “Q. And you didn’t see anything?
Tuscarawas County, Case No. 2011 AP 01 0002                                             4


      {¶25} “A. No, I did not.” Tr., September 23, 2010, at 5-6.

      {¶26} Appellant was thereafter charged, via traffic summons, with driving under

suspension (R.C. 4510.11) and failure to use a turn signal (Dennison Ordinances Sec.

72.16). He entered pleas of not guilty. The case proceeded to a bench trial on

September 23, 2010. Appellant, via counsel, obtained leave to further brief some of the

legal issues pertaining to turn signal usage. Furthermore, on October 14, 2010,

appellant filed a written motion to suppress evidence. The trial court, on November 23,

2010, heard additional evidence and arguments pertaining to the issue of suppression.

      {¶27} On December 1, 2010, the trial court issued a combined judgment entry

denying appellant’s motion to suppress and finding him guilty on both charges. On

December 21, 2010, the trial court issued a final judgment entry with sentencing

provisions. Appellant was ordered, inter alia, to serve 90 days in jail, with 65 days

suspended.

      {¶28} On January 6, 2011, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

      {¶29} “I. THERE WAS NO REASONABLE AND ARTICULABLE SUSPICION

TO PULL OVER THE DEFENDANT’S VEHICLE.”

                                          I.

      {¶30} In his sole Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress the evidence obtained from the traffic stop. We

disagree.
Tuscarawas County, Case No. 2011 AP 01 0002                                                   5


       {¶31} A de minimis violation of traffic laws, including an observed turn signal

violation, constitutes probable cause for a law enforcement officer to stop a vehicle. See

State v. Alemu, Licking App.No. 2005CA00039, 2005-Ohio-5955, ¶ 46 - ¶ 47.

       {¶32} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. See

State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993),

85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d

592, 621 N.E.2d 726.

       {¶33} In the case sub judice, we read appellant’s brief as contending that the

trial court failed to correctly decide the facts connected to the motion to suppress. In

reviewing this type of challenge, we must determine whether said findings of fact are

against the manifest weight of the evidence. The weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of fact to determine, and it is not

an appellate court's function to substitute its judgment for that of the factfinder. See

State v. Ivers (Dec. 23, 1999), Licking App.No. 99CA48, 2000 WL 1480 (internal

citations omitted).

       {¶34} Appellant herein called Ryan Presutti as an eyewitness in support of his

suppression motion. Presutti, an acquaintance of appellant, was standing in front of a

nearby garage on the evening in question. In his testimony, Presutti maintained that

based on the relative positions of the vehicles and structures in the area, Officer
Tuscarawas County, Case No. 2011 AP 01 0002                                                 6


McConnell could not have seen whether appellant had used his signal. See Tr.,

November 23, 2010, at 4-5.

       {¶35} The trial court was thus presented with two versions of the events leading

to the traffic stop. However, as the State properly observes in its brief, the trial court had

the duty to determine which portrayal of events was more credible. Under the

circumstances presented in this case, we are disinclined to attempt to substitute our

judgment for that of the trial court, which reviewed the evidence and heard the

testimony firsthand.

       {¶36} Appellant’s sole Assignment of Error is overruled.

       {¶37} For the reasons stated in the foregoing opinion, the judgment of the

Tuscarawas County Court, Uhrichsville, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.



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                                              ___________________________________


                                              ___________________________________

                                                                   JUDGES
JWW/d 0527
Tuscarawas County, Case No. 2011 AP 01 0002                                     7


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
TODD HAIRSTON                              :
                                           :
       Defendant-Appellant                 :         Case No. 2011 AP 01 0002




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

judgment of the Tuscarawas County Court, Uhrichsville, Ohio, is affirmed.

       Costs assessed to appellant.




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                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
