[Cite as State v. Perdue, 2016-Ohio-4947.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 CA 00181
TERRY LYNN PERDUE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No 2015 TRC 3992


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         July 11, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KELLY PARKER                                   EARLE E. WISE, JR.
ASSISTANT PROSECUTOR                           122 Central Plaza North
218 Cleveland Avenue S.W.                      Canton, Ohio 44702
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2015 CA 00181                                                      2

Wise, J.

       {¶1}   Defendant-Appellant Terry Lynn Perdue appeals from the denial of his

motion to suppress evidence and from his subsequent conviction for OVI in the Canton

Municipal Court, Stark County. Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows:

       {¶2}   In the early morning hours of June 6, 2015, Officer Mark Brownsword of the

Waynesburg Police Department was in his cruiser observing traffic from a gas station

parking lot at the intersection of Canal Street and North Mill Street. At approximately 1:35

AM, the officer observed a 1990 red Chevrolet pickup truck make a wide right turn at said

intersection. The vehicle’s turn was captured on the police cruiser’s video camera.

According to the officer’s subsequent suppression hearing testimony, the truck crossed

over the double yellow line by a tire width and drove back onto the double yellow line, but

then crept over to the left of the double yellow line again, before returning to its correct

lane of travel. See S.H. Tr. at 6, 15. Officer Brownsword proceeded to effectuate a traffic

stop at that time.

       {¶3}   Upon approaching the truck, Officer Brownsword noticed empty beer cans

in the bed of the vehicle. In conversing with Appellant Perdue, the driver of the truck, the

officer observed appellant’s glazed eyes, and further noticed that appellant dropped a lit

cigarette onto his lap and struggled to find his driver’s license. The officer also detected

slurred speech and an “overwhelming” smell of alcoholic beverage. When asked to exit

the truck, appellant stumbled out and continued to have difficulty balancing himself.

       {¶4}   Waynesburg Police Chief William Bath also arrived on the scene to assist.

Appellant was thereupon charged with one count of operating a vehicle under the
Stark County, Case No. 2015 CA 00181                                                      3


influence of alcohol (R.C. 4511.19(A)(1)(e)), a first-degree misdemeanor, and one count

of violating lanes of travel (R.C. 4511.25(A)), a minor misdemeanor.

       {¶5}   Appellant was arraigned on June 8, 2015. At a pretrial on June 12, 2015,

appellant, with the assistance of legal counsel from the Stark County Public Defender's

Office, waived speedy trial time and made a demand for a jury trial. A jury trial was

originally set for August 6, 2015, but was later continued to September 4, 2015.

       {¶6}   On July 20, 2015, appellant filed a motion to suppress the results of the

traffic stop. A hearing on said motion was set for August 4, 2015, following which the trial

court denied the motion from the bench. The court filed a written judgment entry denying

the motion on the same day.

       {¶7}   On September 3, 2015, the State filed a motion to amend the OVI charge

from R.C. 4511.19(A)(1)(e) (concentration level of eleven-hundredths of one gram or

more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol

per one hundred milliliters of urine) to R.C. 4511.19(A)(1)(i) (concentration level of two

hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one

hundred milliliters of urine). The court granted the amendment to the OVI charge.

       {¶8}   The case proceeded to a jury trial on September 4, 2015. During the jury

trial, the judge simultaneously heard the minor misdemeanor lane violation charge.

       {¶9}   Appellant was ultimately found guilty of both charges. Following a

sentencing hearing on September 8, 2015, the court sentenced appellant to 180 days in

jail, suspending all but 71 days and giving credit for one day served. Appellant was also

fined, given community service, a license suspension, and the assessment of six points
Stark County, Case No. 2015 CA 00181                                                         4


on his license. A judgment entry of conviction and sentence was issued on September 9,

2015.

        {¶10} On October 1, 2015, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

        {¶11} THE TRIAL COURT ERRED TO [THE] PREJUDICE OF THE APPELLANT

WHEN IT DENIED HIS MOTION TO SUPPRESS THE EVIDENCE WHICH WAS

COLLECTED AFTER APPELLANT'S VEHICLE WAS STOPPED WITHOUT PROBABLE

CAUSE IN VIOLATION [OF] HIS RIGHTS UNDER THE FOURTH AND FORTEENTH

[SIC] AMENDMENTS TO THE UNITED STATE [SIC] CONSTITUTION AND ARTICLE

ONE OF THE OHIO CONSTITUTION, PROTECTING AGAINST UNREASONABLE

SEARCHES AND SEIZURES.

        {¶12} II. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                                 I.

        {¶13} In his First Assignment of Error, appellant challenges the trial court's denial

of his motion to suppress the evidence obtained as a result of the officer’s traffic stop.

        {¶14} 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. When

reviewing this third type of claim, an appellate court must independently determine,
Stark County, Case No. 2015 CA 00181                                                        5


without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR

57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; 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. However, the United States Supreme Court has held that “... as a general

matter determinations of reasonable suspicion and probable cause should be reviewed

de novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911.

       {¶15} 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. Logan, 5th Dist. Richland No. 07–CA–56,

2008–Ohio–2969, ¶ 15, quoting State v. Gedeon (1992), 81 Ohio App.3d 617, 618.

Reasonable suspicion constitutes something less than probable cause. State v. Carlson

(1995), 102 Ohio App.3d 585, 590. The propriety of an investigative stop must be viewed

in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177,

paragraph one of the syllabus. In a situation where the officer has observed a traffic

violation, the stop is constitutionally valid. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9,

665 N.E.2d 1091. In sum, “ ‘ * * * if an officer's decision to stop a motorist for a criminal

violation, including a traffic violation, is prompted by a reasonable and articulable

suspicion considering all the circumstances, then the stop is constitutionally valid.’ ” State

v. Adams, 5th Dist. Licking No. 15 CA 6, 2015–Ohio–3786, ¶ 23, quoting State v. Mays,

119 Ohio St.3d 406, 894 N.E.2d 1204, 2008–Ohio–4539, ¶ 8.
Stark County, Case No. 2015 CA 00181                                                         6


       {¶16} We also note that when an officer is confronted in the midst of his or her

duties with a situation requiring the application of an unclear statute, the officer can still

make a valid stop if the officer's mistaken interpretation of the law is reasonable. See

State v. Millerton, 2nd Dist. Montgomery No. 26209, 2015–Ohio–34, 26 N.E.3d 317, ¶ 16,

citing Heien v. North Carolina, ––– U.S. ––––, 135 S.Ct. 530, 533, 190 L.Ed.2d 475

(2014).

       {¶17} Appellant’s main emphasis in the present assigned error is on certain

discrepancies between the officer’s testimony and the video recording of the traffic stop

in question, which was played at the suppression hearing. After viewing the video at the

hearing, Officer Brownsword conceded on cross-examination and re-direct that the

double yellow line is only seen onscreen for a brief time early in the sequence, and thus

the back-and-forth movement of the truck is not fully reflected in the recording. See. Tr.

at 15-17.

       {¶18} Although the trial court found that the back-and-forth movement across the

double yellow line is not evident in the video, it nonetheless concluded the video “shows

the [appellant’s] car in a relative point where a violation could occur, and you add that

with the officer’s testimony which I find reasonable enough.” S.H. Tr. at 24. Some of the

discrepancy asserted by appellant was addressed by Officer Brownsword, who testified

that his eye level and angle of sight when in the police cruiser are different from that of

the mounted dash camera. See S.H. Tr. at 17. It has been aptly recognized that

“[b]ecause the trial court acts as the trier of fact in suppression hearings and is in the best

position to resolve factual issues and evaluate the credibility of witnesses, an appellate

court must accept the trial court's findings of fact if they are supported by competent,
Stark County, Case No. 2015 CA 00181                                                       7

credible evidence.” State v. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014–Ohio–716,

¶ 11, citing State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, 2003–Ohio–5372, ¶ 8.

Furthermore, it is well-established that an officer's reasonable articulable suspicion does

not require proof beyond a reasonable doubt that the defendant's conduct has satisfied

the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103, 2015–Ohio–

3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App .3d 18, 20, 691 N.E.2d 1074 (8th

Dist.1997).

       {¶19} Accordingly, we find no reversible error in the trial court's denial of

suppression under the facts and circumstances presented. Appellant's First Assignment

of Error is overruled.

                                                 II.

       {¶20} In his Second Assignment of Error, appellant argues his OVI conviction is

not supported by sufficient evidence and is against the manifest weight of the evidence.

We disagree.1

       {¶21} In reviewing a defendant’s claim of insufficient evidence, “[t]he relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. To be admissible under Evid.R. 702, expert testimony must

assist the trier of fact in determining a fact issue or understanding the evidence. Estate of

Thompson v. Club Car, Inc., 5th Dist. Richland No. 2009-CA-0120, 2010-Ohio-2593, ¶




1  Appellant has limited his arguments to the more serious OVI conviction; therefore, we
will not review the marked lanes offense in this context. See App.R. 16(A)(7).
Stark County, Case No. 2015 CA 00181                                                         8

30, citing Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735 (additional

citations omitted).

       {¶22} Appellant herein was tried on an amended charge of violating R.C.

4511.19(A)(1)(i), which states as follows: “No person shall operate any vehicle, streetcar,

or trackless trolley within this state, if, at the time of the operation *** [t]he person has a

concentration of two hundred thirty-eight-thousandths of one gram or more by weight of

alcohol per one hundred milliliters of the person's urine.”

       {¶23} There is no dispute in the case sub judice the trial court instructed the jury

that in order to find appellant guilty they were required to find a concentration of two

hundred and thirty-eight thousandths (0.238) or more. Tr. at 196.

       {¶24} During the trial, Criminalist Jay Spencer from the Canton-Stark County

Crime Lab, who conducted the analysis of appellant’s urine sample, testified as to the

scientific results. Trial Tr. at 162-163. Spencer, a twenty-nine year employee of the crime

lab, was recognized by the trial court as an expert witness in regard to headspace gas

chromatography testing. Tr. at 155, 160. He testified on direct examination that the urine

sample test result was twenty-four hundredths (0.24). Tr. at 166. He further testified that

the result was expressed along with a margin of error of 0.03, plus or minus. Tr. at 166-

167. The prosecutor continued his questioning as follows:



       Q: And with the plus or minus variance there next to [the test result] in the

       percentage of probability are you able to say here today in court that you have any

       reason to believe that that level in Mr. Perdue's sample is anything other than that

       point two four percent?
Stark County, Case No. 2015 CA 00181                                                        9


       A: No I don't believe so. I think it- actually running it twice and getting the correct

       answer I believe it is point two four.



       Tr. at 169-170.



       {¶25} On cross-examination, Spencer was asked additional questions about the

margin of error of ± 0.03. He indicated that this was not a factor for human error but rather

variability that is inherent in the methodology of the technique used to test. Tr. at 175. He

agreed that he could say with scientific certainty that the sample fell within the range of

0.21 to 0.27. Tr. at 176.

       {¶26} After the State rested, appellant moved for dismissal under Crim.R. 29,

arguing that there was uncertainty in Spencer’s testimony as to the range of values for

the alcohol level. Tr. at 178. The court denied the motion. Tr. at 179. It was renewed at

the end of the presentation of evidence and was denied again. Tr. at 180-181.

       {¶27} Appellant presently urges that since a jury likely has limited knowledge of

areas such as headspace gas chromatography and testing methods for alcohol

concentration in the urine, the testimony of an expert chemist is paramount. Thus,

appellant maintains, where the jury is given expert testimony that supported to a

reasonable degree of scientific certainty a range of 0.21 to 0.27, vis-à-vis a statutory

requirement of 0.238, the jury is essentially left to guess the result, based upon the 0.03

margin of error.

       {¶28} Our research reveals several cases that have touched upon the issue raised

by appellant. In State v. Richards, 4th Dist. Athens No. 14CA1, 2015-Ohio-669, ¶ 56, a
Stark County, Case No. 2015 CA 00181                                                           10


defendant’s “margin of error” argument concerning his urine test was found to be related

“to the credibility and reliability of his test” and was thus an evidentiary issue to be raised

at trial. In State v. King, 1st Dist. Hamilton No. C-010778, 2003-Ohio-1541, a defendant

argued on appeal that his blood samples were insufficient to establish a violation of R.C.

4511.19(A), given the margin of error associated with the tests for blood-alcohol content.

The First District Court noted: “*** [T]he test for sufficiency requires that we give the state

the benefit of all reasonable inferences from its evidence, and so we cannot assume that

these particular test results were affected by error.” Id. at ¶ 12. Moreover, in State v.

Troutman, 9th Dist. Lorain No. 12CA010223, 2013-Ohio-4559, a defendant made a

strikingly similar argument to that raised herein, except in the context of the amount of

cocaine seized in a drug possession case. The Ninth District Court concluded: “Mr.

Troutman argues that the State failed to produce sufficient evidence that the bag found

in the trunk of Mr. Troutman's car contained 500 or more grams of cocaine because [crime

lab scientist] Ms. Doyle testified that her scale had a .5 gram margin of error.

Nevertheless, Ms. Doyle testified that the product weighed 500.3 grams and, when

viewed in the light most favorable to the State, her testimony would be sufficient to support

a finding that the cocaine found in Mr. Troutman's trunk weighed at least 500 grams.” Id.

at ¶ 19.

       {¶29} In the case sub judice, as the State notes in its response brief, Spencer

testified that appellant’s urine sample, which was tested twice, yielded a result of 0.24,

exceeding the 0.238 threshold. Tr. at 166, 169. He noted that in the realm of testing bodily

fluids, “there’s a little bit of variability” Tr. at 167. Sometimes this is due to the question of

the homogeneity of the fluid samples. Id. However, he opined that the test result he
Stark County, Case No. 2015 CA 00181                                                     11


obtained “[was] an accurate number for the result of alcohol in the system.” Tr. at 168.

Spencer also testified that due to the effect of alcohol dissipation, appellant would have

had a range 0.02 higher, i.e., 0.23 to 0.29, at the time of the stop. See Tr. at 171-172,

176.

       {¶30} Upon review of the record and transcript in a light most favorable to the

prosecution, and applying the rationale of Troutman, we find that a reasonable finder of

fact could establish beyond a reasonable doubt, via the scientific evidence presented,

that appellant violated R.C. 4511.19(A)(1)(i).

       {¶31} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

       {¶32} Although we find the focus of the argument in appellant’s brief is on the

sufficiency of the evidence, in the interest of justice, we have reviewed the record under

the standard of Martin and we find the jury did not clearly lose its way and create a

manifest miscarriage of justice requiring that appellant's conviction be reversed and a

new trial ordered.

       {¶33} Appellant's Second Assignment of Error is therefore overruled.
Stark County, Case No. 2015 CA 00181                                           12


      {¶34} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is hereby affirmed.



By: Wise, J.

Gwin, P. J., concurs.

Hoffman, J., concurs in part and dissents in part.




JWW/d 0620
Stark County, Case No. 2015 CA 00181                                                    13

Hoffman, J., concurring in part and dissenting in part

       {¶35} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error.

       {¶36} I respectfully dissent from the majority’s disposition of Appellant’s second

assignment of error. While I agree with the majority the evidence was sufficient to support

his conviction, I find the .03 variance within the actual test result renders Appellant’s

conviction against the manifest weight of the evidence.2

       {¶37} I would reverse Appellant’s conviction under R.C. 4511.19(A)(1)(i). I would

enter conviction under R.C. 4511.19(A)(1)(e) and remand the matter for sentencing.




2I find a distinction between the effect of a permissible variance in the calibration of a
breath-testing machine and the effect of a variance in the actual test result.
