[Cite as State v. Hatfield, 2011-Ohio-597.]


                                         COURT OF APPEALS
                                       MORROW COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :      JUDGES:
                                                :
                                                :      Hon. Julie A. Edwards, P.J.
                        Plaintiff-Appellant     :      Hon. W. Scott Gwin, J.
                                                :      Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :      Case No. 10-CA-8
DAVID HATFIELD                                  :
                                                :
                                                :
                       Defendant-Appellee       :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Morrow County Municipal
                                                    Court Case No. 2009-TRC-454


JUDGMENT:                                           REVERSED AND REMANDED

DATE OF JUDGMENT ENTRY:                             February 2, 2011


APPEARANCES:

For Plaintiff-Appellant:                               For Defendant-Appellee:

Eric C. Penkal 0084240                                 W. Jeffrey Moore 0023429
Assistant Morrow County Prosecutor                     326 S. High St., Ste. 300
60 E. High St.                                         Columbus, Ohio 43215
Mt. Gilead, Ohio 43338
[Cite as State v. Hatfield, 2011-Ohio-597.]


Delaney, J.

        {¶1}     Plaintiff-Appellant, the State of Ohio, appeals the trial court’s judgment

granting Appellee’s Motion to Suppress. Defendant, David Hatfield, is the Appellee.

        {¶2}     On February 8, 2009, Appellee was driving in Morrow County on

Township Road 49 (“TR 49”). Trooper Morris Johnson of the Ohio State Highway Patrol

observed Appellee traveling left of center on TR 49. Trooper Johnson testified that TR

49 is 19 feet wide, which is a sufficient width for two lanes of traffic and that Appellee

was driving left of the center of his lane of travel, almost in the middle of the road.

        {¶3}      After following Appellee for approximately a mile and observing this traffic

violation, Trooper Johnson activated his overhead lights and initiated a traffic stop.

Upon approaching Appellee’s vehicle, Trooper Johnson noticed that Appellee had a

moderate odor of alcohol on or about his person, that his eyes were glassy, and that his

speech was slurred. When Trooper Johnson asked Appellee to step out of the vehicle,

Appellee was a bit unsteady on his feet and leaned up against the side of his vehicle.

As Trooper Johnson told Appellee why he had stopped him, Appellee admitted to

driving left of center, stating that it is his common practice to do so to avoid potholes

and deer.

        {¶4}     Trooper Johnson had Appellee perform two field sobriety tests, the one

legged stand and the walk and turn test. He then conducted the HGN test on Appellee

and noted six of six clues to indicate that Appellee was under the influence of alcohol.

        {¶5}     After Appellee was read his Miranda rights and waived those rights, he

admitted that he had consumed four to five beers that evening, with the last beer being

consumed approximately 20 minutes prior to the traffic stop.
Morrow County, Case No. 10-CA-8                                                           3


       {¶6}   Trooper Johnson arrested Appellee for violations of R.C. 4511.25, for

driving left of center, and R.C. 4511.19(A)(1) for operating a vehicle under the influence

of alcohol.

       {¶7}   Appellee filed a plea of not guilty and thereafter filed a Motion to Suppress

evidence obtained as a result of the traffic stop, arguing there was no reasonable

suspicion to effectuate the traffic stop and no probable cause to arrest Appellee.

       {¶8}   On June 22, 2009, a hearing was held on the Motion to Suppress. After

the hearing and after post-hearing briefs were filed by the parties, the trial court granted

Appellee’s motion, stating that the trooper lacked reasonable suspicion to stop

Appellee’s vehicle.    The trial court heavily relied upon the Ohio Department of

Transportation’s Location and Design Manual (also referred to as the Roadway Design

Manual) in making its determination.

       {¶9}   Appellant now appeals the trial court’s ruling and raises one Assignment

of Error:

       {¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

FIND THAT THE TROOPER HAD REASONABLE AND ARTICULABLE SUSPICION

TO STOP THE APPELLE’S [SIC] VEHICLE WHEN THE TROOPER OBSERVED A

VIOLATION OF ORC 4511.25.”

                                             I.

       {¶11} In its sole assignment of error, Appellant, State of Ohio, asserts that the

trial court erred when it suppressed evidence resulting from the defendant’s traffic stop

and subsequent arrest for operating a vehicle under the influence of alcohol.
Morrow County, Case No. 10-CA-8                                                              4


       {¶12} 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 (1998), 127 Ohio

App.3d 328, 713 N.E.2d 1. 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, (1996), 75 Ohio St.3d 148, 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. Metcalf (1996), 111 Ohio App.3d

142, 675 N.E.2d 1268.        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 (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶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 (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio

App.3d 486, 597 N.E.2d 1141. 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 State v.

Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. 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
Morrow County, Case No. 10-CA-8                                                             5

appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d

623, 620 N.E.2d 906.

       {¶14} Appellant challenges the trial court’s judgment entry on two separate

grounds: first, that the trial court erred as a matter of law by raising the standard of proof

for an investigative traffic stop from that of reasonable suspicion to beyond a reasonable

doubt when the Trooper’s testimony established a violation of R.C. 4511.25; and

second, that the trial court erred as a matter of law by taking judicial notice of ODOT’s

Location and Design Manual and relying on that manual even though it is subject to

reasonable dispute given the lack of testimony regarding the condition of Township

Road 49 in Morrow County, Ohio.

       {¶15} In analyzing these claims, we must consider the purpose of the Fourth

Amendment as well as R.C. 4511.25.

       {¶16} The Fourth Amendment of the Constitution of the United States

guarantees each citizen a right to be free from unreasonable governmental intrusions.

Specifically, it states:

       {¶17} “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.”

       {¶18} “The Fourth Amendment's prohibition against unreasonable searches and

seizures has always been interpreted to prevent a search that is not limited to the

particularly described ‘place to be searched, and the persons or things to be seized,’
Morrow County, Case No. 10-CA-8                                                           6


U.S. Const., Amend. IV, even if the search is made pursuant to a warrant and based

upon probable cause.” Florida v. Royer (1983), 460 U.S. 491, 499, 103 S.Ct. 1319.

       {¶19} The predicate for permitting seizures on suspicion short of probable cause

“is that law enforcement interests warrant a limited intrusion on the personal security of

the suspect. The scope of the intrusion permitted will vary to some extent with the

particular facts and circumstances of each case. This much, however, is clear: an

investigative detention must be temporary and last no longer than is necessary to

effectuate the purpose of the stop. Similarly, the investigative methods employed should

be the least intrusive means reasonably available to verify or dispel the officer's

suspicion in a short period of time.” Id., at 500, citing, e.g., United States v. Brignoni-

Ponce, 422 U.S., at 881-882, 95 S.Ct., at 2580-2581; Adams v. Williams, 407 U.S., at

146, 92 S.Ct., at 1923.

       {¶20} It is the State's burden to demonstrate that the seizure it seeks to justify

was sufficiently limited in scope and duration to satisfy the conditions of an investigative

seizure.

       {¶21} R.C. 4511.25 states, in pertinent part:

       {¶22} “(A) Upon all roadways of sufficient width, a vehicle or trackless trolley

shall be driven upon the right half of the roadway, except as follows:

       {¶23} “(1) When overtaking and passing another vehicle proceeding in the same

direction, or when making a left turn under the rules governing such movements;

       {¶24} “(2) When an obstruction exists making it necessary to drive to the left of

the center of the highway; provided, any person so doing shall yield the right of way to
Morrow County, Case No. 10-CA-8                                                             7


all vehicles traveling in the proper direction upon the unobstructed portion of the

highway within such distance as to constitute an immediate hazard;

       {¶25} “(3) When driving upon a roadway divided into three or more marked lanes

for traffic under the rules applicable thereon;

       {¶26} “(4) When driving upon a roadway designated and posted with signs for

one-way traffic;

       {¶27} “(5) When otherwise directed by a police officer or traffic control device.”

       {¶28} The question as to whether a traffic stop violates the Fourth Amendment

to the United States Constitution requires an objective assessment of a police officer's

actions in light of the facts and circumstances then known to the officer. United States v.

Ferguson (6th Cir. 1993), 8 F.3d 385, 388. “Thus, the question whether a Fourth

Amendment violation occurred in this case depends upon an objective assessment of

the officer's actions at the time of the traffic stop, and not upon the officer's actual

(subjective) state of mind.” City of Dayton v. Erickson (1996), 76 Ohio St.3d 3, 6, 665

N.E.2d 1091. Even if the purpose of the stop is pretextual, so long as there is an

articulable reasonable suspicion or probable cause to stop the vehicle for a traffic

violation, the stop is justified. Id. at 11-12.

       {¶29} Trooper Johnson testified that he observed Appellee violating R.C.

4511.25 and that he initiated a traffic stop based on that violation. Upon approaching

the vehicle, Trooper Johnson recognized Appellee and also noticed a moderate odor of

alcohol on or about Appellee’s person and noted that Appellee had glassy eyes and

slurred speech.     At that time, Trooper Johnson asked Appellee to step out of the

vehicle. Appellee admitted that he was driving in the middle of the road and that he
Morrow County, Case No. 10-CA-8                                                         8


commonly does so. When Appellee stepped out of the vehicle, he swayed briefly and

leaned up against his vehicle for a moment. Trooper Johnson had Appellee perform

two field sobriety tests, the one legged stand test and the walk and turn test. Trooper

Johnson then conducted the HGN test on Appellee. After conducting these tests, the

trooper arrested Appellee and Mirandized him. Appellee waived his Miranda rights.

Trooper Johnson asked Appellee if he had been drinking and Appellee admitted that he

had consumed four to five beers, with the last beer being consumed approximately 20

minutes before Trooper Johnson pulled Appellee over. Based on these circumstances,

Trooper Johnson arrested Appellee on one count of Operating a Vehicle Under the

Influence (“OVI”) and for driving left of center.

       {¶30} Appellee filed a Motion to Suppress evidence from the traffic stop, arguing

that the officer did not have reasonable, articulable suspicion to stop him nor did he

have probable cause to arrest Appellee. After hearing the trooper testify, the trial court

asked counsel to submit post-hearing briefs in lieu of closing arguments. Counsel for

both the State and Appellee limited their arguments to the issues of reasonable

suspicion for the stop and probable cause for arrest. Neither party focused on the width

of the road or whether the road was in compliance with ODOT regulations as set forth in

the Location and Design Manual, specifically section 301.1.2.

       {¶31} In its judgment entry granting Appellee’s motion, the trial court stated as

follows:

       {¶32} “[T]he testimony revealed that Defendant was westbound on Township

Road (“TR”) 49 at 12:00 A.M. when Trooper Johnson of the Ohio State Highway Patrol

observed the Defendant driving, almost continuously, down the center of TR 49. The
Morrow County, Case No. 10-CA-8                                                         9


trooper observed no other erratic driving or traffic violation. . . The trooper approached

the defendant’s vehicle and explained why he stopped him. The Defendant stated that

he always drove down the center of county roads to avoid potholes and potential deer.

       {¶33} “TR 49 is a blacktop township road with no centerlines or fog lines,

measuring approximately 19 feet in width. At the time of the stop, the roadway was

dark, wet, and contained no other traffic. Snow and/or ice covered the ground on each

side of the roadway. Defendant is charged with left of center in violation of Ohio Rev.

Code 4511.25(A) and OVI in violation of Ohio Rev. Code 4511.19(A)(1)(a).

       {¶34} “The threshold issue is whether the trooper had a ‘reasonable and

articulable suspicion’ to stop Defendant because Defendant committed or was

committing a traffic violation. Dayton v. Erickson (1996), 76 Ohio St. 3, 11.

       {¶35} “Ohio Rev. Code 4511.25(A) requires motor vehicles to be driven on the

right half of the roadway ‘upon all roadways of sufficient width.’”

       {¶36} The trial court went on to extensively discuss what is considered sufficient

width under ODOT’s Location and Design Manual. The court decided to take judicial

notice of the manual, likening it to trial courts taking judicial notice of the NHTSA

manual. The court then engaged in mathematical calculations, determining that TR 49,

which was determined to be 19 feet wide according to Trooper Johnson’s

measurements, was too narrow for fog lines, center lines, and therefore was too narrow

to reasonably expect a vehicle to drive on the right half of the roadway when it is wet,

dark, and there is ice on the sides of the roadway.         The court presumed that the

township viewed the road as too narrow to “stripe.” Though the court acknowledged

that a car or truck could be driven on the right half of the roadway, a “common sense
Morrow County, Case No. 10-CA-8                                                                  10


look at TR 49 and reading of the ODTRD Manual indicates that, even under perfect

conditions and at a speed approaching the lawful limit, such operation would be

unsafe.” The court then held that TR 49 is not of “sufficient width” as required by ORC

4511.25.

       {¶37} The court then stated, “It is therefore the opinion of this Court that

Defendant did not violate Ohio Rev. Code 4511.25(A). There was also no evidence of

erratic driving to justify a non-Erikson stop. Absent any extraordinary circumstance,

including but not limited to, on-coming [sic] traffic or the defendant’s vehicle cresting the

top of a hill, the trooper did not have a reasonable and articulable suspicion to stop the

Defendant for a traffic violation.”

       {¶38} While we understand the trial court’s desire to be thorough in its decision,

we find that the trial court overstepped its bounds in its judgment entry. By opining that

“Defendant did not violate Ohio Rev. Code 4511.25(A)”, the trial court raised the burden

of proof from a preponderance of the evidence to beyond a reasonable doubt. The

objective of a suppression hearing is not to determine whether or not the defendant

violated the statute. That is a matter left to the trier of fact at trial. It is the role of a trial

court in a suppression hearing such as this to determine whether there was sufficient

evidence of the officer having reasonable and articulable suspicion to effectuate a traffic

stop and then whether there was probable cause to arrest the defendant for the

charges.

       {¶39} Moreover, we find the trial court’s conclusion that “[t]here was . . . no

evidence of erratic driving to justify a non-Erikson stop.            Absent any extraordinary

circumstance, including but not limited to, on-coming [sic] traffic or the defendant’s
Morrow County, Case No. 10-CA-8                                                       11


vehicle cresting the top of a hill, the trooper did not have a reasonable and articulable

suspicion to stop the Defendant for a traffic violation.”, to be in error.

       {¶40} The trooper testified that Appellee was driving in the center of the road,

left of center. The Appellee admitted that he was driving in the center of the road and

that it is his common practice to do so to avoid potholes and deer. The consideration of

a defense to the crime does not negate the fact that there is reasonable suspicion to

stop and probable cause to arrest. The trial court acknowledges the facts as set forth

by Trooper Johnson, the parties do not dispute the underlying facts, and the court does

not conclude that Trooper Johnson was not credible.

       {¶41} We also find that the trial court was in error in considering ODOT’s

Location and Design Manual and the width of the road as well as whether it was the

township’s conclusion that the road was too narrow to stripe. Such matters, again, may

be appropriate to consider at trial, but not at a suppression hearing.

       {¶42} Based upon the testimony of Trooper Johnson that Appellee was driving

left of center and Appellee’s admission that he was driving left of center, we find that

reasonable suspicion did exist for Trooper Johnson to effectuate a traffic stop.

Moreover, based on Appellee’s appearance and odor of alcohol on his person, his

performance on the field sobriety tests, and the Appellee’s Mirandized admission that

he had consumed four to five beers immediately preceding being pulled over, we find

that there was also probable cause for arresting Appellant.
Morrow County, Case No. 10-CA-8                                                    12


       {¶43} Accordingly, we find Appellant’s assignment of error to have merit and we

sustain the assignment of error. This matter is reversed and remanded for proceedings

consistent with our opinion.

By: Delaney, J.

Edwards, P.J. and

Gwin, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. JULIE A. EDWARDS



                                       HON. W. SCOTT GWIN
[Cite as State v. Hatfield, 2011-Ohio-597.]


               IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                        Plaintiff-Appellant     :
                                                :
                                                :
-vs-                                            :    JUDGMENT ENTRY
                                                :
DAVID HATFIELD                                  :
                                                :
                       Defendant-Appellee       :    Case No. 10-CA-8
                                                :




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

judgment of the Morrow County Municipal Court is reversed and remanded. Costs

assessed to Appellee.



                                                    _________________________________
                                                    HON. PATRICIA A. DELANEY


                                                    _________________________________
                                                    HON. JULIE A. EDWARDS


                                                    _________________________________
                                                    HON. W. SCOTT GWIN
