[Cite as State v. Kirkpatrick, 2017-Ohio-7629.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NOS. C-160880
                                                                   C-160881
         Plaintiff-Appellee,                      :                C-160882
                                                      TRIAL NOS. 16TRC-23203A
   vs.                                            :              16TRC-23203B
                                                                 16TRC-23203C
STEPHANIE ANN KIRKPATRICK,                        :

         Defendant-Appellant.                     :      O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-160880; Reversed and Appellant
                             Discharged in C-160882; Appeal Dismissed in C-
                             160881

Date of Judgment Entry on Appeal: September 15, 2017



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Pinales, Stachler, Young, Burrell & Crouse Co. and Candace C. Crouse, for
Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

        {¶1}   Defendant-appellant Stephanie Ann Kirkpatrick appeals from her

convictions for driving while under the influence of alcohol (“OVI”) and making an

improper turn. Because we determine that the officer who initiated the traffic stop of

Kirkpatrick’s vehicle for an improper turn made a reasonable mistake of law, the trial

court properly denied Kirkpatrick’s motion to suppress; therefore, we affirm

Kirkpatrick’s OVI conviction.       As to Kirkpatrick’s improper-turn offense, we

determine that the trial court erred in finding Kirkpatrick guilty, and we reverse the

trial court’s judgment on that charge.

                          Facts and Procedural History

        {¶2}   On May 26, 2016, at approximately 2 a.m., a Cincinnati police officer

noticed a Honda Civic “driving significantly faster” than the posted speed limit. The

officer watched the vehicle approach an intersection, stop, and then continue again,

still well over the posted speed limit. The officer witnessed the vehicle stop at a red

light, and when the light changed to green, the vehicle turned left into the outside

right lane, instead of the nearest inside lane closest to the center line. At that point,

the officer believed a traffic violation had occurred, and the officer initiated a traffic

stop.   The officer eventually administered field-sobriety testing to the driver,

Kirkpatrick, and arrested her for OVI. At the police station, Kirkpatrick submitted to

a breath-alcohol test. As a result, the state charged Kirkpatrick with OVI under R.C.

4511.19(A)(1)(a) and 4511.19(A)(1)(d), as well as making an improper turn under R.C.

4511.36.

        {¶3}   Kirkpatrick filed a motion to suppress the evidence against her. In the

motion, she argued, in part, that the officer lacked probable cause to stop her for an


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                   OHIO FIRST DISTRICT COURT OF APPEALS


illegal left turn under R.C. 4511.36, because the statute had been found ambiguous by

this court in State v. Stadelmann, 1st Dist. Hamilton No. C-130138, 2013-Ohio-5035.

The trial court overruled Kirkpatrick’s motion to suppress, and she pleaded no

contest to all three charges. The trial court found Kirkpatrick guilty of all offenses,

but for purposes of sentencing, the trial court merged the OVI offense under R.C.

4511.19(A)(1)(a) with the offense under R.C. 4511.19(A)(1)(d).        The trial court

sentenced Kirkpatrick to 180 days in jail, with 170 days suspended, a $525 fine, and

six months of community control. The trial court stayed Kirkpatrick’s sentence

pending appeal.

              Motion to Suppress under the Fourth Amendment

       {¶4}   In her first assignment of error, Kirkpatrick argues that the trial court

erred in denying her motion to suppress.

       {¶5}   This court reviews a trial court’s ruling on a motion to suppress as a

mixed question of law and fact. See State v. Haynes, 1st Dist. Hamilton No. C-

140205, 2015-Ohio-3432, ¶ 17, citing State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. “A reviewing court must accept the trial court’s

findings of fact if they are supported by competent and credible evidence.” Haynes

at ¶ 17, citing Burnside. “But the reviewing court must then determine, without any

deference to the trial court, whether the facts satisfy the applicable legal standard.”

Id.

       {¶6}   The Fourth Amendment requires that law-enforcement officials act

reasonably, and the permissibility of a law-enforcement officer’s actions are

determined by balancing the intrusion on an individual against the government’s

interest. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶


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                      OHIO FIRST DISTRICT COURT OF APPEALS


12, citing Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S.Ct. 1391, 59 L.Ed.2d 660

(1979). Thus, in order to initiate a traffic stop, a police officer must have reasonable

suspicion that the driver of the vehicle has committed a traffic violation. Mays at ¶

8. A police officer’s objectively reasonable belief that a traffic violation has occurred,

including reasonable mistakes of law, can constitute reasonable suspicion to justify a

traffic stop. See Heien v. North Carolina, __ U.S. __, 135 S.Ct. 530, 540, 190

L.Ed.2d 475 (2014).

       {¶7}    Kirkpatrick argues that the officer acted unreasonably in initiating a

traffic stop for a suspected violation of R.C. 4511.36, improper left turn, because of

this court’s decision in Stadelmann, 1st Dist. Hamilton No. C-130138, 2013-Ohio-

5035. The facts of Stadelmann are similar to the case at bar. In Stadelmann, a

police officer initiated a traffic stop of a vehicle after the officer witnessed the driver

of the vehicle make a wide left turn, turning into the far, right lane, instead of the

lane closest to the center line. The officer believed that the driver had violated R.C.

4511.36(A)(2). R.C. 4511.36(A)(2) provides:

               At any intersection where traffic is permitted to move in

               both    directions   on   each    roadway    entering    the

               intersection, an approach for a left turn shall be made in

               that portion of the right half of the roadway nearest the

               center line thereof and by passing to the right of such

               center line where it enters the intersection and after

               entering the intersection the left turn shall be made so as

               to leave the intersection to the right of the center line of

               the roadway being entered. Whenever practicable the


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                   OHIO FIRST DISTRICT COURT OF APPEALS


              left turn shall be made in that portion of the intersection

              to the left of the center of the intersection.

       {¶8}   After stopping the vehicle, the police officer eventually arrested the

driver for OVI. The defendant-driver filed a motion to suppress, arguing that he had

made a legal left-hand turn, and therefore the officer acted unreasonably in initiating

the traffic stop. The trial court overruled the defendant’s motion to suppress and

found the defendant guilty of OVI.

       {¶9}   The defendant in Stadelmann appealed the denial of his motion to

suppress, arguing that his actions did not violate R.C. 4511.36(A)(2). A majority of

this court determined that R.C. 4511.36(A)(2) could be interpreted two ways: “First,

and more likely, it means that a driver must turn into the lane closest to the center

line when making a left turn onto a two-way street. * * * Alternatively, the statute

could simply mean that one must complete the turn without driving left-of-center—

i.e. into oncoming traffic.” Stadelmann at ¶ 3. The majority opined that the second

reading “seems less likely” given other portions of the Revised Code and the Digest of

Ohio Motor Vehicle Laws. Id. at ¶ 3, 9.

       {¶10} Ultimately, the Stadelmann majority held that its resolution of the

defendant’s appeal did not depend upon an interpretation of R.C. 4511.36(A)(2), but

upon whether the officer reasonably believed that the defendant had violated R.C.

4511.36(A)(2). See Stadelmann at ¶ 4, quoting State v. Reedy, 5th Dist. Perry No. 12-

CA-1, 2012-Ohio-4899, ¶ 19 (“[w]here a statue is vague or ambiguous, or requires

judicial construction to determine its scope of meaning, exceptional circumstances

exist which permit courts to extend the good faith exception to the exclusionary rule

to not only mistakes of fact but also mistakes of law.”). The majority determined that


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                    OHIO FIRST DISTRICT COURT OF APPEALS


the officer had had an objectively reasonable belief that the defendant had violated

R.C. 4511.36(A)(2) by turning left into the far, outside lane, instead of the lane

nearest the center line, because “the language of the statute lends itself to that

interpretation.” Stadelmann at ¶ 10. Therefore, the majority affirmed the denial of

the defendant’s motion to suppress.

       {¶11} Former Judge, now Ohio Supreme Court Justice Patrick DeWine

dissented in Stadelmann, stating that R.C. 4511.36(A)(2) was clear and

unambiguous:

              It simply requires the driver ‘square into the turn,’ as we

              are all taught in drivers’ education class. The driver

              must proceed through the intersection and across the

              center line before turning left. The statute says nothing

              about whether the driver must make the turn into the

              right or left side of the right lane.     Under the plain

              language of the statute, a turn into either side is

              perfectly legal.

Stadelmann at ¶ 14.

       {¶12} Kirkpatrick argues that once a statute has been found ambiguous by a

court, as in Stadelmann, an officer can no longer reasonably rely on that statute in

initiating a traffic stop. In support of this argument, Kirkpatrick relies on the rule of

lenity, which provides that ambiguous criminal statutes must be construed against

the state and in favor of the defendant. See R.C. 2901.04(A) (“sections of the Revised

Code defining offenses or penalties shall be strictly construed against the state, and

liberally construed in favor of the accused”); State v. Stevens, 139 Ohio St.3d 247,


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                    OHIO FIRST DISTRICT COURT OF APPEALS


2014-Ohio-1932, 11 N.E.3d 252. Kirkpatrick also relies on an Illinois Supreme Court

case, People v. Gayton, 2015 IL 116223, 392 Ill.Dec. 333, 32 N.E.3d 641. In Gayton,

the court determined that an officer reasonably believed a driver committed a traffic

offense, because the criminal statute in question was ambiguous and no other

appellate court had addressed the scope of the statute.

       {¶13} We disagree with the finding in Stadelmann that R.C. 4511.36(A)(2) is

ambiguous. The plain language of R.C. 4511.36(A)(2) does not prohibit a driver from

turning into the outside, right lane, instead of the inside, left lane. We recognize that

other appellate districts arguably disagree with this position; however, we do not find

their analysis persuasive. See State v. Graham, 2014-Ohio-3283, 17 N.E.3d 112 (9th

Dist.) (determining that “R.C. 4511.36(A)(2) * * * requires drivers, whenever

practicable, to pull into the left, inside lane when turning left from a two-way street

onto another two-way street.”); State v. Connelly, 6th Dist. Wood No. WD-13-080,

2014-Ohio-2688, ¶ 22 (relying on the Digest of Ohio Motor Vehicle Laws in holding

that the statute “at least arguably” prohibits left turns into the far-right curb lane);

State v. Coles, 4th Dist. Athens No. 95CA1662, 1996 WL 334423, *3 (June 7, 1996)

(determining that the defendant “arguably violated” former R.C. 4511.36(B), which is

now R.C. 4511.36(A)(2), by making a “wide left turn in that he failed to enter the road

he was turning onto in the lane just right of center.”). Therefore, we adopt the

reasoning in Justice DeWine’s dissenting opinion in Stadelmann and hold that R.C.

4511.36(A)(2) is clear and unambiguous.

       {¶14} Nevertheless, because the Stadelmann majority interpreted R.C.

4511.36(A)(2), albeit in dicta, to prohibit wide left turns into an outside lane, the

police officer’s belief that Kirkpatrick’s wide left turn violated R.C. 4511.36


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                    OHIO FIRST DISTRICT COURT OF APPEALS


constitutes an objectively reasonable mistake of law in this case. See Stadelmann, 1st

Dist. Hamilton No. C-130138, 2013-Ohio-5035, at ¶ 10; Heien, __ U.S. __, 135 S.Ct.

at 540, 190 L.Ed.2d 475. Thus, the trial court properly denied Kirkpatrick’s motion

to suppress, and we overrule her first assignment of error.

                                      Improper Turn

       {¶15} In her second assignment of error, Kirkpatrick argues that the trial

court erred in finding her guilty under R.C. 4511.36.

       {¶16} As a jurisdictional matter, the city argues that this court lacks

jurisdiction over Kirkpatrick’s appeal, because the trial court did not impose a

sentence for the improper-turn violation. The city relies on State v. Bennett, 1st Dist.

Hamilton Nos. C-140507 and C-140508, 2015-Ohio-3246. In Bennett, this court

held that the trial court’s entry imposing court costs only was not a “sentence,” and

therefore the trial court’s judgment was not a final, appealable order. Id. at ¶ 6.

However, Bennett is distinguishable from this case. The trial court’s entry in this

case indicates that the trial court imposed a six-month term of community control on

the improper left-turn offense, and a trial court speaks through its journal entries.

See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. Even

though community control cannot be imposed upon a minor-misdemeanor offense,

see R.C. 4511.36(D) and 2929.25(A)(1), the trial court nevertheless imposed a

sentence. Therefore, this court has jurisdiction over this appeal. See Crim.R. 32(C);

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one

of the syllabus.

       {¶17} As to the merits of Kirkpatrick’s second assignment of error, we agree

that the trial court erred in finding Kirkpatrick guilty under R.C. 4511.36. As we


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                     OHIO FIRST DISTRICT COURT OF APPEALS


stated in the disposition of Kirkpatrick’s first assignment of error, R.C. 4511.36(A)(2)

does not prohibit Kirkpatrick’s conduct in this case, namely making a left turn into

the far, outside lane, instead of the inside, right lane. Therefore, the trial court’s

finding of guilt constitutes plain error. See Crim.R. 52(B). We sustain Kirkpatrick’s

second assignment of error.

                                          Conclusion

        {¶18} In conclusion, we affirm the judgment of the trial court convicting

Kirkpatrick of OVI under R.C. 4511.19(A)(1)(d). We dismiss the appeal from the

trial   court’s judgment      finding    Kirkpatrick    guilty of     OVI    under    R.C.

4511.19(A)(1)(a), because the trial court merged that offense, and therefore

Kirkpatrick was never convicted of that offense. See Crim.R. 32(C); State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24. Finally, we

reverse the judgment of the trial court with respect to Kirkpatrick’s conviction

under R.C. 4511.36, and Kirkpatrick is discharged from further prosecution in

that case.


                                                                   Judgment accordingly.


ZAYAS, P.J., and MYERS, J., concur.



Please note:
        The court has recorded its own entry on the date of the release of this opinion.




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