[Cite as State v. Elkins, 2017-Ohio-5554.]


                                       stCOURT 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 Nos. 2016 CA 00191 and
AARON BRADY ELKINS                                           2016 CA 00195

        Defendant-Appellant
                                                   OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Alliance Municipal
                                               Court, Case Nos. 2016 CRB 698 and 2016
                                               TRC 01157


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 26, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAITLYN R. SCHNEIDER                           JEFFREY R. JAKMIDES
ASSISTANT PROSECUTOR                           325 East Main Street
470 East Market Street                         Alliance, Ohio 44601
Alliance, Ohio 44601
                                               EDWARD J.MACK
                                               TZANGAS, PLAKAS & MANNOS
                                               220 Market Avenue South, 8th Floor
                                               Canton, Ohio 44702
Stark County, Case Nos. 2016 CA 00191 and 2016 CA 00195                                   2

Wise, John, J.

       {¶1}     Appellant Aaron Brady Elkins appeals his conviction and sentence for

Underage Consumption, OVI (breath), and Turning at Intersections following a plea of no

contest in the Alliance 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 Aaron

Brady Elkins being charged with violations of Alliance Codified Ordinance 313.04 Lane

Use Control Signals Over Individual Lanes, and Ohio Revised Code §4511.19(A)(1)(d)

OVI and §4511.19(A)(1)(a) OVI. (Supp. T. at 8-9, 14). Appellant was also charged with

Underage Consumption under a different case number. Id. All of the charges arose as a

result of a traffic stop that occurred in the City of Alliance, Stark County, Ohio, on April

24, 2016. Id.

       {¶4}     On the evening of April 24, 2016, Officer Christian Tussey was working as

the OVI grant officer in the City of Alliance and observed Appellant enter the Taco Bell

parking lot in what he considered to be beyond a reasonable rate of speed and then make

contact with a cement barrier in that parking lot. Officer Tussey testified at a suppression

hearing that he considered these actions to be reckless, therefore he watched the vehicle.

He noticed that no one exited the vehicle and, after a short while, the vehicle pulled out

of the parking lot and went around the business to get to State Street, rather than simply

exiting directly from the parking lot to get to that same street. Officer Tussey then

observed Appellant make a left-hand turn onto State Street where, instead of sticking to

the inside lane, he drove directly to the outside lane of travel without signaling a lane
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                       3


change. Officer Tussey testified that from his understanding of the law, motorists making

a left-hand turn onto a four-lane road need to remain in the inside lane and then use the

appropriate signal to merge into the curb lane.

       {¶5}    Officer Tussey initially cited Appellant with a violation of Alliance City

Ordinance 313.04 Lane-Use Control Signals. This section relates to traffic control signal

indications and permitted lane travel.

       {¶6}    Appellant was arraigned on April 27, 2016.

       {¶7}    On June 22, 2016, Appellant filed a Motion to Suppress and Dismiss.

       {¶8}    On July 20, 2016, a hearing was held on said motion.

       {¶9}    At the commencement of the suppression hearing, the prosecutor made a

preliminary motion to amend the charge that was the subject of the hearing. Her motion

asked the court to amend the charge from Alliance City Ordinance 313.04 to Alliance City

Ordinance 331.14 Signals Before Changing Course, Turning Or Stopping. (Supp. T. at

7).

       {¶10} No objection was lodged by defense counsel, and the motion was granted

by the trial court.

       {¶11} Officer Tussey testified at the suppression hearing that the basis for his stop

was his belief that Mr. Elkins failed to properly signal where required (Supp. T. at 13-14).

       {¶12} During the suppression hearing, there were numerous remarks from both

the prosecutor and the police officer regarding rules for changing lanes in a turn. It is not

clear from the record whether Officer Tussey understood that there was a city ordinance

dealing with this aspect of traffic law, but it is clear that he initiated the traffic stop and

wrote his citation for an alleged failure to use turn signals. (Supp. T. at 14).
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                  4


      {¶13} Near the end of the suppression hearing, the trial court made a remark to

both parties referencing another section of the Alliance Codified Ordinances which he

stated might also be relevant to the matter. He stated:

             Alright. And the basis of the ticket is he didn't signal a lane change.

      Mr. Jakmides has cited that in his brief and you've argued that before the

      Court. The Court is going to take the matter under advisement, but I would

      ask you all to have a quick look at Three Thirty-One One Oh. If anyone

      wants to submit any supplemental arguments for the Court, take that into

      consideration as well I'm gonna spend some time tomorrow, hopefully

      drafting up a decision by the Court. Okay. Anything else, Madam

      Prosecutor? (Supp. T. at 20-21).

      {¶14} By Judgment Entry filed August 18, 2016, the trial court denied Appellant’s

motion to suppress, stating:

             For purposes of clarity, the Court does not find sufficient reasonable

      articulable suspicion for the cited violation of A.C.O. 313.04 or the amended

      citation of A.C.O. 331.14. Nevertheless, although the officer cited the wrong

      code section, the officer’s stop of the Defendant’s vehicle was proper. The

      Court also notes that the State has, after the conclusion of the hearing, filed

      a second motion to amend the citation to be a violation of A.C.O. 331.10.

      This second motion to amend will be taken under consideration for review

      at the next pretrial. (August 18, 2016, Judgment Entry at 5-6).
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                 5


       {¶15} The State’s second Motion to Amend was filed on August 18, 2016.

According to the time-stamps, the motion to amend was filed immediately after the trial

court’s judgment entry, with both reflecting a 10:04 a.m. time-stamp.

       {¶16} On September 21, 2016, another pre-trial was held. At this time, the second

Motion to Amend filed by the State of Ohio was granted. On this day, Appellant entered

a plea of no contest to Underage Consumption, OVI (breath), and Turning at Intersections

Additionally, Appellant preserved his right to appeal the Court's ruling on the Motion to

Suppress. (Plea T. at 5).

       {¶17} It is from this conviction and sentence Appellant now appeals, raising the

following errors for review:

                                 ASSIGNMENTS OF ERROR

       {¶18} “I. THE STATE OF OHIO DID NOT ESTABLISH THE TRAFFIC STOP WAS

SUPPORTED BY REASONABLE, ARTICULABLE SUSPICION BECAUSE UNDER

ALLIANCE CODIFIED ORDINANCE 331.10(A)(2), THE STATE WAS REQUIRED TO

SHOW THAT IT WAS PRACTICABLE FOR APPELLANT TO TURN INTO THE CENTER

LANE RATHER THAN THE CURB LANE, DESPITE HIS NEAR IMMEDIATE RIGHT

TURN.

       {¶19} “II. AS INDICATED IN THE TRIAL COURT'S JUDGEMENT ENTRY,

NEITHER THE ORIGINAL NOR THE FIRST AMENDED CHARGE SUPPORTED A

FINDING OF PROBABLE CAUSE. THE TRIAL COURT'S DECISION TO DENY THE

MOTION TO SUPPRESS ON THE ASSUMPTION THAT THE CHARGE WOULD BE

AMENDED ERRONEOUSLY RELIED ON AN AMENDMENT THAT HAD NOT YET

BEEN FILED WHEN THE JUDGEMENT ENTRY WAS WRITTEN, AND HAS THE
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                     6


APPEARANCE OF COMING AS A RESULT OF THE SUGGESTION OF THE TRIAL

COURT JUDGE AT THE SUPPRESSION HEARING.”

                                               I., II.

       {¶20} In his Two Assignments of Error, Appellant claims the trial court erred in

denying his motion to suppress and finding that he did not have standing to challenge the

warrantless search of his vehicle. We disagree.

                                       Standard of Review

       {¶21} 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. 2016 CA 00191 and 2016 CA 00195                                      7


general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal."

                                          The Traffic Stop

       {¶22} 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).

       {¶23} In the case at bar, the record establishes Officer Tussey first observed

Appellant pull in to the Taco Bell parking lot at a high rate of speed, strike a concrete
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                         8


barrier, sit in his car in the parking lot without ever exiting the vehicle, circle the building,

and then make a wide left turn onto State Street into the curb lane, rather than the inside

lane. The officer testified that he believed the wide turn onto State Street was a violation

of Alliance City Ordinance 331.14 Signals Before Changing Course, Turning or Stopping,

(initially cited improperly as ACO 313.04).

       {¶24} Alliance City Ordinance 331.14 SIGNALS BEFORE CHANGING COURSE,

TURNING OR STOPPING, reads:

              (a) No person shall tum a vehicle or move right or left upon a highway

       unless and until such person has exercised due care to ascertain that the

       movement can be made with reasonable safety nor without giving an

       appropriate signal in the manner hereinafter provided. When required, a

       signal of intention to turn or move right or left shall be given continuously

       during not less than the last l 00 feet traveled by the vehicle before turning.

       {¶25} 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)

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

reasonable, articulable suspicion to stop 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
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                      9

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).

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

Appellant had committed traffic violations, albeit not the one mistakenly cited by the officer

or as amended by the prosecutor. Therefore, the factual finding of the trial court is not

clearly erroneous.

       {¶28} We accept the trial court's conclusion that the officer’s belief that Appellant

had committed a violation of the traffic laws gave the officer 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.

       {¶29} We further find, upon review of the trial court’s judgment entry, that the trial

court does not state that its decision is based on an amendment of the citation or an

assumption that the citation would be amended. Rather, the decision was based on the

facts as set forth above. The actual language in the entry notes that the State had filed a

second motion to amend the charge and that such would be taken into consideration at

the next pretrial.

       {¶30} While we cannot explain why the motion to amend is time-stamped after the

trial court’s judgment entry, we do not find same to be significant to our determination of

the issues in this appeal.
Stark County, Case No. 2016 CA 00191 and 2016 CA 00195                                10


      {¶31} Accordingly, Appellant’s Assignments of Error are overruled.

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

Municipal Court, Stark County, Ohio, is affirmed.

By: Wise, John, J.

Gwin, P. J., and

Hoffman, J., concur.



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