[Cite as State v. Swint, 2019-Ohio-1607.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2018 CA 00115
ALEXANDER SWINT

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No. 2018 TRC 1737


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 29, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KRISTEN BATES-AYLWARD                           AARON KOVALCHIK
CANTON LAW DIRECTOR                             116 Cleveland Avenue, NW
JASON P. REESE                                  Suite 808
CANTON CITY PROSECUTOR                          Canton, Ohio 44702
BEAU WENGER
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Canton, Ohio 44702
Stark County, Case No. 2018 CA 00115                                                         2

Wise, J.

       {¶1}   Appellant Alexander Swint appeals his conviction for operating a vehicle

while impaired, marked lanes violation, and speeding, following a plea of no contest in

the Canton Municipal Court.

       {¶2}   Appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS

       {¶3}   This matter arises from a traffic stop which resulted in Appellant being

charged with violations of OVI, marked lanes and speeding:

       {¶4}   On March 4, 2018, at 1:36 a.m., Ohio State Highway Patrol Trooper Evan

Hill was traveling east on 12th Street in the city of Canton, when he observed Appellant's

vehicle pull out of a parking lot onto 12th Street, also traveling east. About the same time,

another vehicle turned onto 12th Street going east between the trooper's vehicle and

Appellant's vehicle. As all three vehicles traveled on 12th street, the trooper saw the

vehicle in front of him maintain its lane of travel while Appellant's vehicle crossed over to

the other lane of travel. The trooper observed Appellant's vehicle's tail lights "go way to

the left" of the center line. Shortly after the violation, the vehicle in between turned off of

12th Street, which then allowed the trooper to observe Appellant's vehicle accelerate away

from him at a rate which he perceived to be above the 35 mph speed limit. The trooper

then activated his in-car radar to pace Appellant's speed at 50 mph. After the trooper

caught up to Appellant, he pulled Appellant over for the marked-lanes violation and the

speeding violation.

       {¶5}   As a result of the stop, Appellant was charged with one count of OVI, in

violation of R.C. §4511.19(A)(1)(D) and R.C. §4511.19(A)(1)(A), speeding, in violation of
Stark County, Case No. 2018 CA 00115                                                        3


R.C. §4511.21, and Left of Center, in violation of R.C. §4511.25.

       {¶6}      A suppression hearing was held on June 29, 2017, concerning the issue of

whether or not there was reasonable and articulable suspicion for the stop of Appellant's

vehicle. At the hearing, Trooper Evan Hill testified that he made a traffic stop of Appellant

at 12th St. and Gibbs Avenue. (Supp. T. at 5). Trooper Hill stated that he believed

Appellant was operating his vehicle left of center because Appellant's tail light was not in

line with another vehicle's taillight that was between Appellant and Trooper Hill. (Supp. T.

at 5). Trooper Hill further stated that he believed Appellant was traveling left of center

because the vehicle that was between him and Appellant was traveling in a straight line.

(Id.). Trooper Hill also testified that he paced Appellant's vehicle traveling at 50 mph in a

35 mph zone. (Id.). Upon cross-examination Trooper Hill testified that Appellant

immediately got back in his lane after being left of center. (Supp. T. at 11). Trooper Hill

further admitted that he did not use his radar to determine the speed of Appellant's

vehicle. (Id).

       {¶7}      Appellant also testified at the Suppression Hearing. Appellant testified that

he did not operate his vehicle left of center. (Supp. T. at 15). Appellant further testified

that his vehicle could not have been going over 50 mph because it was having mechanical

difficulties that prevented it from reaching such speed. (Id.).

       {¶8}      By Judgment Entry filed June 29, 2018, the trial court overruled Appellant's

Motion to Suppress.

       {¶9}      On July 10, 2018, Appellant entered a plea of No Contest.

       {¶1}      It is from this conviction Appellant now appeals, raising the following error

for review.
Stark County, Case No. 2018 CA 00115                                                       4


                                   ASSIGNMENT OF ERROR

       {¶2}   “I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S

MOTION TO SUPPRESS.”

                                                 I.

       {¶3}   In his sole assignment of error, Appellant claims the trial court erred in

denying his motion to suppress. We disagree.

                                       Standard of Review

       {¶4}   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 findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),

1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),

86 Ohio App.3d 592. 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 (1993), 86 Ohio

App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

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 (1994), 95

Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United

States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, "…as a
Stark County, Case No. 2018 CA 00115                                                         5


general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal."

                                          The Traffic Stop

       {¶5}   The Ohio Supreme Court has emphasized that probable cause is not

required to make a traffic stop; rather the standard is reasonable and articulable

suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶ 23.

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. Further, neither the United

States Supreme Court nor the Ohio Supreme Court considered the severity of the offense

as a factor in determining whether the law enforcement official had a reasonable,

articulable suspicion to stop a motorist. Whren v. United States, 517 U.S. 806, 116 S.Ct.

1769, 135 L.Ed.2d 89(1996); City of Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d

1091(1996).

       {¶6}   In the case at bar, the record establishes that the trial court had before it the

testimony of Trooper Hill, who stated that he witnessed Appellant drive his vehicle “way
Stark County, Case No. 2018 CA 00115                                                         6


to the left” and beyond the double yellow center line. (Supp. T. at 6). He further stated

that he was able to see the taillights of Appellant’s vehicle to the left of the tail lights of

the vehicle travelling between them. (Supp. T. at 9).

       {¶7}   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)

       {¶8}   Based on the above facts, the trial court found that the officer had a

reasonable, articulable suspicion to stop the Appellant. The judge is in the best position

to determine the credibility of witnesses, and his conclusion in this case is supported by

competent facts. See State v. Burnside, 100 Ohio St.3d 152, 154-55, 797 N.E.2d 71, 74

(2003). The fundamental rule that weight of evidence and credibility of witnesses are

primarily for the trier of fact applies to suppression hearings as well as trials. State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584 (1982).

       {¶9}   The officer’s testimony represents competent, credible evidence that

Appellant had committed these traffic violations, therefore, the factual finding of the trial

court is not clearly erroneous.

       {¶10} We accept the trial court's conclusion that the officer had reasonable

suspicion to stop Appellant’s vehicle because the factual findings made by the trial court

are supported by competent and credible evidence. Thus, the trial court did not err when

it denied Appellant’s motion to suppress on the basis that the initial stop of his vehicle

was valid. State v. Busse, 5th Dist. No. 06 CA 65, 2006-Ohio-7047, ¶ 20.
Stark County, Case No. 2018 CA 00115                                                 7


      {¶11} Accordingly, Appellant’s sole assignment of error is overruled.

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

Municipal Court, Stark County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.


JWW/d 0424
