[Cite as State v. Butler, 2016-Ohio-4836.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00016
ALAN BUTLER                                    :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.
                                                   2015CR1249

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            July 5, 2016


APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO
BY: RENEE WATSON                                   KENNETH FRAME
Stark County Prosecutor’s Office                   Stark County Public Defender’s Office
110 Central Plaza South                            201 Cleveland Ave. S.W.
Canton, OH 44702                                   Canton, OH 44702
Stark County, Case No. 2016CA00016                                                      2

Gwin, P.J.

      {¶1}   Appellant appeals the November 2, 2015 judgment entry of the Stark

County Court of Common Pleas overruling his motion to suppress. Appellee is the State

of Ohio.

                                  Facts & Procedural History

      {¶2}   On September 15, 2015, appellant Alan Butler was charged with one count

of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth

degree. Appellant was arraigned on October 9, 2015. On October 15, 2015, appellant

filed a motion to suppress and argued there was no reasonable, articulable suspicion for

the officer to stop the vehicle in which appellant was a passenger.

      {¶3}   The trial court held a suppression hearing on October 28, 2015. Appellee

presented the testimony of Officer Jerrod Goodnight (“Goodnight”). Goodnight is an

officer with the Magnolia Police Department. On August 4, 2015, appellant was the

passenger in a vehicle Goodnight stopped due to a heavily cracked windshield.

Goodnight testified the windshield was cracked approximately one-and-a-half to two feet.

The crack started on the driver’s side of the window and then continued off the passenger

side approximately one-third of the way up from the bottom of the dashboard. When

Goodnight pulled behind the vehicle, he could see the crack in the windshield at

approximately 1:30 p.m. in the afternoon on a nice August day. Goodnight observed the

vehicle traveling south on Elmford Street and, when the vehicle turned onto Broadford

Street, he could see the glare go from the left side of the crack all the way to the right

side. Goodnight was one or two car lengths behind the vehicle for one block when he

saw the crack due to the glare.
Stark County, Case No. 2016CA00016                                                         3


       {¶4}   Goodnight testified a windshield’s job is to protect occupants from debris

and items that might be a danger or hazard to the occupants or driver and, when cracked,

it is no longer safety glass as the integrity of the glass is compromised and the glass could

shatter and completely fail in its duty as safety glass because it was compromised.

Goodnight stated the cracked windshield was a “heavy safety issue” and that is the reason

he stopped the vehicle.

       {¶5}   Goodnight advised dispatch of his location and the plate number on the car.

Dispatch informed Goodnight the owner of the vehicle had an active warrant for his arrest.

While Goodnight was in his vehicle communicating with dispatch, Goodnight observed

appellant reach down into the front seat. Goodnight stated appellant appeared to be

hiding something under or in between the seats with his left hand. Goodnight stated

appellant almost laid down in the right front passenger seat. Goodnight testified the

Elmford area is an area of high drug activity. When Goodnight returned to the vehicle

and inquired of the driver and passenger about appellant’s furtive movements, both the

driver of the car, who was not the owner of the car, and appellant, told Goodnight that

appellant was trying to swat a bee.       However, Goodnight did not think appellant’s

movements were consistent with swatting a bee and Goodnight did not see a bee when

he approached the vehicle.

       {¶6}   Due to appellant’s furtive movements, Goodnight wanted to search the area

where appellant was seen reaching and thus asked appellant to exit the vehicle.

Goodnight conducted a Terry pat down of appellant for safety and felt a hard, cylindrical

object in appellant’s front left pocket. Goodnight thought the object might be a pen knife.

However, the object was a four to six inch long metal tube used to smoke crack.
Stark County, Case No. 2016CA00016                                                         4

Goodnight then advised appellant of his Miranda rights, cuffed him, and placed him under

arrest. When Goodnight searched appellant after his arrest, Goodnight found a rock of

crack cocaine in appellant’s right front pocket. When Goodnight searched the area of the

car where appellant was seen reaching, he found a second crack pipe which appellant

admitted was his. Goodnight testified there was no video of the traffic stop because there

was an error with the SD card and the SD card was corrupt.

       {¶7}   On cross-examination, Goodnight again confirmed the cracked windshield

drew his attention to the vehicle and he first noticed it when he was twenty to thirty yards

away from the vehicle. Goodnight stated he felt there was danger to the occupants of the

vehicle due to the crack in the windshield. Goodnight testified the crack in the windshield

affected the safety of the vehicle. Appellant presented no evidence at the suppression

hearing.

       {¶8}   At the conclusion of the suppression hearing, the trial court overruled

appellant’s motion. The trial court stated a crack in a windshield approximately one-and-

a-half or two feet long is a hazard to the driver of the vehicle and to the driving public in

general in that if the window were to give out, the driver and passengers are at risk, as is

anybody on the road because of the reactions of the driver when that should happen.

The trial court found the stop was necessary given the size of the crack and danger to

passengers and the driving public; further, that the vehicle was an unsafe vehicle. The

trial court formalized its decision on the motion to suppress in a judgment entry on

November 2, 2015.
Stark County, Case No. 2016CA00016                                                            5


       {¶9}   On November 4, 2015, appellant pled no contest to the charge and signed

a plea form. The trial court convicted appellant, found him guilty, and ordered a pre-

sentence investigation. Appellant was later sentenced to a term of probation.

       {¶10} Appellant appeals the November 2, 2015 judgment entry of the Stark

County Court of Common Pleas overruling his motion to suppress and assigns the

following as error:

       {¶11} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO

GRANT DEFENDANT-APPELLANT’S MOTION TO SUPPRESS.”

       {¶12} In his assignment of error, appellant contends the crack in the windshield

did not obstruct the driver’s view and thus was not unsafe. Accordingly, appellant argues

Goodnight had no reasonable, articulable suspicion to justify the traffic stop and thus the

trial court erred in denying the motion to suppress.

       {¶13} 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, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982). 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, 86 Ohio

App.3d 37, 619 N.E.2d 726 (4th Dist. 1993). 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,
Stark County, Case No. 2016CA00016                                                         6


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, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist. 1994); State v. Laizure,

5th Dist. Tuscarawas No. 2015 AP 10 0056, 2016-Ohio-3252. As a general matter,

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal. Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

        {¶14} 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. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d

889 (1968). If an officer’s decision to stop a motorist for a criminal violation, including a

traffic violation, is prompted by a reasonable and articulate suspicion considering all the

circumstances, then the stop is constitutionally valid. State v. Adams, 5th Dist. Licking

No. 15 CA 6, 2015-Ohio-3786, quoting State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539, 894 N.E.2d 1204.

        {¶15} In this case, appellant argues the trial court incorrectly decided the ultimate

issue. According to appellant, Goodnight had no reasonable, articulable suspicion to stop

the vehicle he was riding in because the crack in the windshield did not obstruct the

driver’s view. Appellant cites this Court’s decision in State v. Kendall, 5th Dist. Morrow

No. 2009-CA-0010, 2010-Ohio-227, and argues this case is analogous to the Kendall

case.

        {¶16} In Kendall, a State Highway Patrolman executed a traffic stop of the

appellant’s vehicle, which had a crack in the windshield, pursuant to R.C. 4315.24 (“no

person shall drive any motor vehicle on a street or highway in this state, other than a
Stark County, Case No. 2016CA00016                                                         7


motorcycle or a motorized bicycle, that is not equipped with a windshield”). Kendall filed

a motion to suppress, arguing the trooper was without reasonable, articulable suspicion

to stop the vehicle based upon a cracked windshield. Id. At the suppression hearing, the

trooper could not recall anything about the crack in the windshield and the trial court was

unable to see any crack or other obstruction in the windshield on the videotape of the

stop. Id. The trial court granted the appellant’s motion to suppress. Id.

       {¶17} In our opinion, we noted the “simple appearance of a crack in a windshield

does not give rise to a reasonable suspicion” and “the size and placement of the crack

must be sufficient to create a reasonable suspicion that R.C. 4513.02 was being violated.”

Id. We found that, in Kendall, since the trooper could not remember anything about the

crack in the windshield, since the trial court was unable to see any crack in the videotape

of the stop, and due to the lack of testimony on the size and location of the crack in the

windshield, the trial court properly granted Kendall’s motion to suppress.

       {¶18} However, we find the instant case to be distinguishable from Kendall. First,

Goodnight stopped the vehicle pursuant to R.C. 4513.02, the unsafe vehicle statute, not

the section at issue in Kendall (R.C. 4315.24) requiring motor vehicles to be equipped

with a windshield. Second, unlike in Kendall, Goodnight provided detailed testimony

about the crack in the windshield. Goodnight testified the windshield in the vehicle was

heavily cracked, approximately one-and-a-half to two feet. The crack started on the

driver’s side of the window and then continued off the passenger side approximately one-

third of the way up from the bottom of the dashboard. When Goodnight was behind the

vehicle one or two car lengths, he could see the crack in the windshield. Goodnight stated

if the windshield were to take another blow, it could possibility shatter and completely fail
Stark County, Case No. 2016CA00016                                                        8


in its duty as safety glass. Goodnight testified the cracked windshield was a “heavy safety

issue.”

          {¶19} Rather, we find the instant case is analogous to State v. Repp, 5th Dist.

Knox No. 01-CA-11, 2001-Ohio-7034. Repp was stopped for driving an unsafe vehicle,

i.e. having a cracked windshield, in violation of Mount Vernon Ordinance No. 337.01(A).

The language in the Mount Vernon Ordinance mirrors the language in R.C. 4513.02, the

statute at issue in this case, and provides that “no person shall drive any vehicle which is

in such unsafe condition as to endanger any person.” Id. In Repp, there was evidence

the crack in the windshield was large, approximately one to two feet long, and extended

into the driver’s side of the windshield. Id. We found the size and placement of the crack

was sufficient to create a reasonable suspicion that R.C. 4513.02 was being violated and

the trial court did not err in overruling Repp’s motion to suppress.

          {¶20} Similarly, in the above-captioned case, Goodnight testified the crack was

between one-and-a-half feet to two feet long and extended into the driver’s side of the

windshield. Further, appellant in this case did not dispute the testimony of Goodnight as

to the location or size of the crack and failed to offer any evidence to the contrary.

Accordingly, we find the officer had a reasonable, articulable suspicion that the windshield

crack had rendered the operation of the vehicle unsafe and in violation of R.C.

4513.02(A). Appellant’s assignment of error is overruled.
Stark County, Case No. 2016CA00016                                                  9


      {¶21} Based on the foregoing, we affirm the November 2, 2015 judgment entry of

the Stark County Court of Common Pleas overruling appellant’s motion to suppress.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
