[Cite as State v. Kneier, 2015-Ohio-3419.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2015-P-0006
        - vs -                                  :

GEORGE E. KNEIER, III,                          :

                 Defendant-Appellee.            :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2014 TRC 10715.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

William Carlin and Mark W. Biggerman, Carlin & Carlin, 29325 Chagrin Blvd., Suite
305, Pepper Pike, OH 44122 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, the state of Ohio, appeals from the judgment of the Portage

County Municipal Court, Ravenna Division, pursuant to Crim.R. 12(K), granting a motion

to suppress evidence filed by appellee, George E. Kneier, III.        For the reasons

discussed below, we affirm the trial court’s judgment.

        {¶2}     On August 2, 2014, at 3:45 a.m., Trooper Chester Engle entered the

eastbound on-ramp of Interstate 76 at State Route 44 when he observed appellee’s
vehicle travel “over the top” of the fog line. The trooper was approximately 500 feet

behind appellee. The vehicles proceeded onto the interstate and the trooper again

observed appellee’s vehicle move “over the top” of the fog line. The trooper continued

to follow appellee and, within 1 ½ miles, he witnessed appellee’s vehicle “over the top”

of the fog line a third time. Based upon his conclusion that appellee had committed a

marked lanes violation, the trooper initiated a traffic stop.

       {¶3}   The trooper approached the vehicle and advised appellee he stopped him

because appellee “drove over the top of the line several times.” Appellee was the sole

occupant of the car and indicated he was unaware he had committed the alleged

infraction. The trooper noted appellee had a strong odor of alcoholic beverage about

his person, was slurring his speech, and had red, glassy eyes. Appellee admitted he

had consumed six beers since 7:00 p.m. the previous evening. Appellee was asked to

exit the vehicle to perform field sobriety tests. Appellee was subsequently cited for OVI

and a marked lanes violation.

       {¶4}   At the suppression hearing, the state introduced a DVD of the trooper’s

dash cam. The recording did not capture the initial alleged fog-line violation; only the

second and third alleged violations. The trooper testified that his statement regarding

appellee’s tire being “over the top” of the fog line was equivalent to crossing the fog line.

He did not specifically testify, however, how far across the vehicle moved over the fog

line and the DVD failed to show appellee actually crossing over the fog line.

       {¶5}   After the hearing, the trial court granted appellee’s motion to suppress

evidence, ruling: “The Court does not equate ‘over top’ of the fog line with crossing the

fog line and the Trooper’s testimony is consistent with Defendant being over top of but




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not crossing the fog line.” The court therefore determined appellee did not leave his

lane of travel or cross over the fog line. Accordingly, the court concluded appellee

committed no marked lane violation as a matter of law and the trooper lacked probable

cause to stop him.         The court further determined the evidence was insufficient to

establish appellee was engaged in erratic driving and, as a result, the trooper lacked

reasonable, articulable suspicion to initiate an investigative stop.1

        {¶6}     The state appealed the trial court’s ruling and assigns the following error:

        {¶7}     “The Portage County Municipal Court erred in determining that a Trooper’s

observations of a marked lanes violation did not amount to probable cause to conduct a

traffic stop.”

        {¶8}     At a suppression hearing, “the trial court is best able to decide facts and

evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, ¶41. A reviewing court must then “independently determine, without deference to

the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. State v. Korb, 11th Dist.

Lake No. 2013-L-126, 2014-Ohio-4543, ¶13.

        {¶9}     In evaluating a suppression motion, “the trial court is required to state its

essential findings of fact on the record pursuant to Crim.R. 12(F).” Kirtland Hills v.

Medancic, 11th Dist. Lake Nos. 2011-L-136 and 2011-L-137, 2012-Ohio-4333, ¶8. That

rule provides, “[w]here factual issues are involved in determining a motion, the court

shall state its essential findings on the record.” (Emphasis added.) The basic rationale

of Crim.R. 12(F) is to permit effective judicial review. Medancic, supra, citing State v.


1. The state does not challenge the court’s supplemental conclusion that an investigative stop was also
improper under these facts.


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Marinacci, 5th Dist. Fairfield No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3,

1999). Indeed, a recitation of a trial court’s factual findings is often necessary for a

reviewing court to properly determine whether the findings are supported by the record

and whether the correct law was applied to those facts. Medancic, supra.

       {¶10} The state argues that the trial court erred in granting appellee’s motion to

suppress because, even though the trooper initially stated appellee’s vehicle traveled

“on the top” of the fog line, he later clarified that appellee, in fact, crossed the white fog

line. We do not agree that the trooper’s clarification, unto itself, established probable

cause sufficient to undermine the trial court’s findings and conclusion.

       {¶11} R.C. 4511.33(A)(1), the marked lanes violation statute, provides:

       {¶12} (A) Whenever any roadway has been divided into two or more

              clearly marked lanes for traffic, or wherever within municipal

              corporations traffic is lawfully moving in two or more substantially

              continuous lines in the same direction, the following rules apply:

       {¶13} (1) A vehicle or trackless trolley shall be driven, as nearly as is

              practicable, entirely within a single lane or line of traffic and shall

              not be moved from such lane or line until the driver has first

              ascertained that such movement can be made with safety.

       {¶14} In codifying the foregoing subsection, the General Assembly specifically

chose the phrase “as nearly as is practicable” to delineate a motorist’s obligation to

drive within a marked lane. Given this language, it is clear a motorist’s duty to remain

within his or her marked lane is not absolute. To this point, the Third Appellate District

has observed: “the language ‘as nearly as is practicable’ inherently contemplates some




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inevitable and incidental touching of the lines by a motorist’s vehicle during routine and

lawful driving, without the vehicle being considered to have left the lane of travel so to

constitute a marked lanes violation as proscribed by R.C. 4511.33(A)(1), such as to

avoid debris, obstructions or imperfections in the roadway.” State v. Shaffer, 3d Dist.

Paulding No. 11-13-02, 2013-Ohio-3581, ¶21. The court in Shaffer further observed

that “the same subsection notably does not proscribe all movement from the marked

lane but expressly links any movement from the marked lane directly with the element

of safety - - specifically permitting movement from the lane only where ‘the driver has

first ascertained that such movement can be made with safety.” Id. at ¶22.

       {¶15} With these points in mind, this court has determined that a court need not

reach the issues of the practicability of remaining in the lane or a motorist’s

ascertainment of the safety of his or her movement, unless, first of all, the vehicle’s tires

have been observed to actually cross over the marked line. See Wickliffe v. Petway,

11th Dist. Lake Nos. 2011-L-101 and 2011-L-102, 2012-Ohio-2439; see also Mentor v.

Phillips, 11th Dist. Lake No. 99-L-119, 2000 Ohio App. LEXIS 6207 (Dec. 29, 2000).

Without such circumstances, this court has reasoned a vehicle does not leave its lane of

travel and, as a result, there is no marked lane violation supporting probable cause to

stop. Petway, supra, at ¶19.

       {¶16} In this case, the trial court determined that, even though the trooper

testified that traveling “over top” of the line meant appellee “crossed over” the line, this

was insufficient to establish a marked lanes violation. The trial court underscored that

the trooper failed to elucidate how far over the vehicle’s tire went onto the fog line. And

there was no testimony that the tire had completely passed over the line. Moreover, the




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DVD of the stop not only failed to demonstrate the vehicle’s tire passed over the line, it

was unclear whether the tire was even on the fog line. The video initially tracked footage

of appellee’s vehicle on the curved access ramp, at which time it was impossible to tell,

due to the distance between the vehicle and the cruiser, whether appellee had driven

onto or was anywhere near the fog line. And, once the road straightened, it is not

possible to unquestionably discern that the tires of the vehicle touched upon, let alone

crossed over the line. Without some specific testimony that the trooper actually

observed the vehicle’s tire pass over the line such that it was no longer within its

specific lane of travel, or clear video evidence of the alleged illicit movement, the

trooper’s testimony that the tire was “over top” or “crossed” did not establish probable

cause of a marked lanes violation.

       {¶17} The trial court weighed the trooper’s testimony and found his equivocation

of the phrases “over the top” and “crossed over” dubious. As indicated above, the trial

court was in the best position to resolve this factual question as well as the credibility of

the witness’ “clarification.” The video evidence does not in any way controvert the trial

court’s factual findings.   Hence, the trial court’s factual findings are supported by

competent, credible evidence; accepting these findings as true, there was inadequate

evidence to establish appellee’s vehicle left its lane of travel. Under the circumstances,

therefore, the state failed to establish appellee committed a marked lane violation

supporting probable cause to stop the vehicle.

       {¶18} The state’s assignment of error lacks merit.




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      {¶19} For the reasons discussed above, the judgment of the Portage County

Municipal Court, Ravenna Division, granting appellee’s motion to suppress evidence, is

affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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