[Cite as State v. Carey, 2018-Ohio-831.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       28689

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL CAREY                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2015-12-3894

                                  DECISION AND JOURNAL ENTRY

Dated: March 7, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Michael A. Carey, appeals from his convictions in the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Summit County Sheriff’s Deputy Bryce Lesnasky was in a GetGo parking lot

when he noticed Mr. Carey’s truck parked at a gas pump. The deputy noticed what he described

as a long, big crack in the truck’s windshield, so he drove around to the front of the truck to get a

better look at it. While deciding whether to pull Mr. Carey over for the cracked windshield, the

deputy followed Mr. Carey out of the lot and ran his license plate number. According to Deputy

Lesnasky, while following Mr. Carey he observed the truck swerving and driving over both the

fog line and the median line. The deputy initiated a traffic stop of Mr. Carey’s vehicle. During

the traffic stop, the deputy noticed several indicators that Mr. Carey was possibly intoxicated, so
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he conducted some field sobriety tests. Mr. Carey performed poorly on the tests and was

arrested.

       {¶3}    According to Deputy Lesnasky, Mr. Carey became very agitated and started

screaming obscenities at the deputy. After he was placed inside of the police cruiser, Mr. Carey

began banging his head into the glass divider to the point of cutting his own forehead. Mr. Carey

was transferred to an ambulance and began screaming at the emergency medical technicians

(“EMT’s”). Mr. Carey also kicked one of the EMT’s, but the EMT declined to file any assault

charges. While traveling to the hospital, Mr. Carey told the EMT’s that he was going to kill

Deputy Lesnasky. At the hospital, Mr. Carey continued screaming and yelling and was out of

control to the point where doctors and nurses could not stitch his wound. Mr. Carey took off his

shoes and threw them at Deputy Lesnasky. While attempting to transfer Mr. Carey back to a

police cruiser by wheelchair, he continued fighting, struggling, and screaming obscenities while

attempting to stop the wheelchair from moving forward. As the deputies tried to transfer him

from the wheelchair to the cruiser, he spit blood and mucus onto one of the deputies.

       {¶4}    Mr. Carey filed a motion to suppress, which was denied by the trial court after a

hearing. He then pled no contest to harassment with bodily substance, resisting arrest, two

counts of operating under the influence of alcohol or drugs (“OVI”), and obstructing official

business. The trial court found him guilty of those offenses and merged the OVI’s for purposes

of sentencing. The court sentenced him to 24 months of community control and ordered him to

pay a $375.00 fine.

       {¶5}    Mr. Carey now appeals from his convictions and raises two assignments of error

for this Court’s review.

       {¶6}    For ease of analysis, we will consolidate Mr. Carey’s assignments of error.
                                                 3


                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING
       APPELLANT’S MOTION TO SUPPRESS BASED UPON AN IMPROER (SIC)
       TRAFFIC STOP AND THEREBY VIOLATING APPELLANT’S FOURTH
       AND FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION
       14 OF THE OHIO CONSTITUTION AGAINST UNREASONABLE
       SEARCHES AND SEIZURES * * *.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
       STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT
       EVIDENCE TO SUPPORT THE TRAFFIC STOP OF APPELLANT IN
       VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶7}    In his assignments of error, Mr. Carey argues that the trial court erred in denying

his motion to suppress because the crack in his windshield was insufficient to provide the deputy

with reasonable suspicion to justify a traffic stop of the vehicle. We disagree.

       {¶8}    A motion to suppress presents a mixed question of law and fact:

       When considering a motion to suppress, the trial court assumes the role of trier of
       fact and is therefore in the best position to resolve factual questions and evaluate
       the credibility of witnesses. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

State v. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 5, quoting State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶9}    The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
                                                 4


violated * * *.”    Article I, Section 14, of the Ohio Constitution contains nearly identical

language. “For a search or seizure to be reasonable under the Fourth Amendment, it must be

based upon probable cause and executed pursuant to a warrant, unless an exception to the

warrant requirement applies.” State v. Hetrick, 9th Dist. Lorain No. 07CA009231, 2008-Ohio-

1455, ¶ 19, citing Katz v. United States, 389 U.S. 347, 357 (1967). “‘One well-delineated

exception to the warrant requirement occurs where police officers perform an investigatory stop

based on their reasonable suspicion that criminal activity is afoot.’” State v. Hale, 9th Dist.

Summit No. 28334, 2017-Ohio-7048, ¶ 9, quoting State v. Jackson, 9th Dist. Lorain No.

14CA010555, 2015-Ohio-2473, ¶ 13, citing Terry v. Ohio, 392 U.S. 1, 21 (1968).

       {¶10} The traffic stop of a vehicle constitutes a seizure for purposes of the Fourth

Amendment. State v. Phillips, 9th Dist. Medina No. 16CA0018-M, 2017-Ohio-1312, ¶ 6.

“‘[W]here an officer has an articulable reasonable suspicion or probable cause to stop a motorist

for any criminal violation, including a minor traffic violation, the stop is constitutionally valid

regardless of the officer’s underlying subjective intent or motivation for stopping the vehicle in

question.’” State v. Jackson, 9th Dist. Summit No. 28625, 2018-Ohio-19, ¶ 16, quoting Dayton

v. Erickson, 76 Ohio St.3d 3, 11-12 (1996). Reasonable suspicion is something less than

probable cause and is determined by considering and evaluating the totality of the circumstances.

See Phillips at ¶ 6-7. An analysis of whether reasonable suspicion existed requires this Court to

look at “the facts available to the officer at the moment of the seizure or the search” and consider

whether those facts would “warrant a man of reasonable caution in the belief that the action

taken was appropriate.” State v. Smiley, 9th Dist. Summit No. 23815, 2008-Ohio-1915, ¶ 19,

quoting State v. Bobo, 37 Ohio St.3d 177, 178-179 (1988), quoting Terry at 21-22.
                                                  5


       {¶11} At the suppression hearing, Deputy Lesnasky testified that, on December 12,

2015, he went to GetGo for coffee and saw Mr. Carey’s truck parked at one of the gas pumps.

The deputy testified that he noticed the windshield on Mr. Carey’s truck had a long crack in it.

He testified: “I think [the crack] went from the top all the way to the bottom, but I’m not 100

percent sure on that. That’s the best I can recall. It was a big crack. I could see it from - - I was

probably 50, 60 feet away, maybe even more.” The deputy then drove by the front of Mr.

Carey’s truck and “took a little better look at it.” When asked on cross-examination as to the

location of the crack, Deputy Lesnasky testified, “I think it was approximately in the center of

the vehicle” near the rearview mirror, but he admitted, “I’m not - - like I said, I can’t really truly

recall.” When he was shown several photographs of the truck and was asked to indicate where

the crack was located, Deputy Lesnasky testified, “It’s over here by the passenger side, more

toward the passenger side (indicating).”

       {¶12} Upon review of the photographs entered into evidence by Mr. Carey, this Court

cannot definitively discern the size or location of the crack in the windshield in any of the five

photographs. The photographs are somewhat blurry to varying degrees and only one of them is a

relatively close-up view of the windshield. Mr. Carey testified that the photographs were taken

by himself and his father a week or so before the suppression hearing. It is undisputed that the

traffic stop occurred on December 12, 2015, while the suppression hearing was held several

months later on March 8, 2016. Mr. Carey testified that he has not replaced or done anything to

his windshield since the traffic stop.

       {¶13} Deputy Lesnasky testified that he elected to follow Mr. Carey while deciding

whether to stop him for the cracked windshield. When Mr. Carey exited the GetGo lot, Deputy

Lesnasky followed him for about a mile and ran the truck’s license plate number. He testified
                                                 6


that Mr. Carey was “swerving back and forth a little bit” and drove over both the fog line and the

median line. The deputy then initiated a traffic stop of the vehicle. Mr. Carey testified at the

hearing that Deputy Lesnasky said he was stopped because of the cracked windshield, but he

claimed the deputy did not mention anything about any trouble staying within the marked lanes

on the road.

       {¶14} As to the crack in Mr. Carey’s windshield, the trial court made the following

findings of fact:

       [T]his is long (sic) crack running vertically down the entire windshield, top to
       bottom near the center of the window. While the crack may not cause significant
       obscuring of vision, it does present as a threatening hazard due to the potential for
       shattering in a head on collision as the securing of the window at top and bottom
       appeared to be compromised.

In denying Mr. Carey’s motion to suppress, the trial court found as follows: “Based upon the

totality of the circumstances, the court finds there was probable cause for the stop based upon the

cracked windshield as a hazard to both the driver and any passengers who might ride in the front

seat.” The trial court further “[found] credible Deputy Lesnasky’s testimony of [Mr. Carey]

crossing the fog and middle lanes which supplied additional probable cause of the stop.”

       {¶15} Pursuant to R.C. 4513.02(A), “[n]o person shall drive * * * on any highway any

vehicle * * * which is in such unsafe condition as to endanger any person.” Ohio Adm.Code

4501:2-1-11 also states: “Every motor vehicle shall be equipped with safety glass * * * [which]

shall be free of discoloration or diffusion, cracks and unauthorized obstructions * * *.”

       {¶16} Many Ohio courts have concluded that a cracked windshield provides reasonable

suspicion to justify a traffic stop if the crack renders the vehicle “unsafe,” pursuant to R.C.

4513.02(A). See State v. Latham, 2d Dist. Montgomery No. 20302, 2004-Ohio-2314, at ¶ 19

(“the simple appearance of a crack in a windshield does not give rise to a reasonable suspicion of
                                               7


a violation of R.C. 4513.02(A), * * * but the particular facts surrounding the crack in the

windshield [must give] rise to a reasonable suspicion that [the vehicle] was in an unsafe

condition such that its operation would endanger persons”). See also In re M.M., 1st Dist.

Hamilton Nos. C-140628, C-140629, C-140630, & C-140631, 2015-Ohio-3485, ¶ 9 (“A cracked

windshield can result in a violation of R.C. 4513.02(A)—and thus serve as justification for

stopping a car—only if it renders the car []in such an unsafe condition as to endanger any

person[]”); State v. Imboden, 4th Dist. Ross No. 92CA1901, 1993 Ohio App. LEXIS 5579, *6

(Nov. 16, 1993) (concluding that reasonable suspicion does not exist in the absence of any

evidence that the officer believed the cracked windshield affected the safeness of the vehicle);

State v. McWhorter, 8th Dist. Cuyahoga No. 95108, 2011-Ohio-1074, ¶ 17 (affirming the trial

court’s finding that the officer’s description of the alleged crack did not describe an unsafe

condition that would justify stopping the vehicle.).      “Some courts have stated that the

combination of [R.C. 4513.02(A) and Ohio Adm.Code 4501:2-1-11] make it a violation to

operate a vehicle with any cracks in the windshield because administrative agencies’ rules have

the full force and effect of law when issued pursuant to statutory authority.” (Emphasis added.)

Latham at ¶ 14, citing State v. Repp, 5th Dist. Knox No. 01-CA-11, 2001 Ohio App. LEXIS

6026, *6-7 (Dec. 28, 2001) (noting that the promulgation of Ohio Adm.Code 4501:2-1-11 is

expressly authorized by R.C. 4513.02 and carries the full force and effect of law, requiring

windshield safety glass to be “free from, among other things, cracks”). The Repp Court did note,

however, that the evidence presented in that particular case demonstrated the size and placement

of a crack which extended into the driver’s viewing area and was sufficient to create reasonable

suspicion that R.C. 4513.02 was being violated.      See Latham at ¶ 14, citing Repp at *7.

Generally, courts have also found a windshield crack to establish reasonable suspicion that R.C.
                                                 8


4513.02(A) has been violated when the crack is substantial or impairs the driver’s vision. See

State v. Heiney, 11th Dist. Portage No. 2000-P-0081, 2001 Ohio App. LEXIS 4434, *4-5 (stating

a substantial spider crack on the windshield is sufficient to create a reasonable suspicion that

R.C. 4513.02 is being violated); State v. Thames, 2d Dist. Montgomery No. 26052, 2015-Ohio-

626, ¶ 6 (stating a large, vertical windshield crack that obstructs the driver’s view justifies a

traffic stop).

        {¶17} Recently in State v. Barber, where a police detective followed a vehicle and

observed several large cracks in its windshield, this Court rejected an argument that the trial

court erred in finding the cracks created an unsafe condition. State v. Barber, 9th Dist. Summit

No. 28507, 2017-Ohio-8010, ¶ 8-12. The detective in Barber testified at the suppression hearing

and described the cracks in detail, “estimating that there were in excess of five or six and that

they ‘ran all the way across the windshield.’” Id. at ¶ 10. The detective also agreed at the

hearing that “the cracks posed a safety hazard because they traversed the driver’s line of sight.”

Id. Mr. Barber testified at the hearing as well, but denied the existence of any cracks. Id. at ¶ 11.

He introduced several pictures into evidence, none of which clearly showed multiple cracks, but

the pictures had been taken the day before the suppression hearing and four months after the

traffic stop. Id. The trial court in Barber concluded that the detective had a reasonable suspicion

to believe the vehicle was being operated in an unsafe manner and thus properly conducted a

traffic stop. Id. at ¶ 8. This Court found that there was competent, credible evidence in the

record to support the trial court’s determination that “the size, location, and number of cracks

‘obstructed the driver’s view and could [have] compromise[d] the windshield glass.’” Id. at ¶ 12.

        {¶18} Here, as in Barber, the photographs entered into evidence were taken by Mr.

Carey and do not clearly show a crack in the windshield. The photographs were taken relatively
                                                 9


close to the suppression hearing, which was held several months after the traffic stop. Unlike in

Barber, Deputy Lesnasky did not specifically testify as to the effect of the crack on the safety of

Mr. Carey’s vehicle. Compare State v. Emerick, 4th Dist. Washington No. 06CA45, 2007-Ohio-

4398, ¶ 16 (concluding a trooper had reasonable suspicion to justify a stop of a vehicle with a

cracked windshield for being unsafe even though the trooper “failed to describe the location of

the crack or give his opinion on whether it rendered the vehicle unsafe or dangerous * * *”).

Deputy Lesnasky did, however, describe the crack in Mr. Carey’s windshield as being both long

and big, further stating that he initially noticed it from at least 50 feet away, but maybe more than

60 feet, before moving in for a closer look. He also testified that he believed the crack went all

the way from the top of the windshield down to the bottom. He testified that he thought it was

near the center of the windshield, but stated that he could not truly recall. When he was

eventually shown pictures of Mr. Carey’s truck on cross-examination, the deputy indicated that

the crack was by the passenger’s side. While the deputy’s testimony did not include any

talismanic language explicitly stating that the crack in the windshield made the vehicle “unsafe,”

such exact language is not required. Deputy Lesnasky’s testimony was sufficient to demonstrate

the existence of a substantial or significant crack in the truck’s windshield. The trial court found

that the crack presented “a threatening hazard due to the potential for shattering in a head on

collision as the securing of the window at top and bottom appeared to be compromised.” Based

on the evidence presented at the hearing, we conclude that the trial court’s findings were based

on competent, credible evidence. We further conclude that Deputy Lesnasky had a reasonable

suspicion that Mr. Carey’s windshield was in violation of R.C. 4513.02(A) and the traffic stop

was therefore not an unreasonable seizure.
                                               10


        {¶19} Furthermore, although Deputy Lesnasky testified that he stopped Mr. Carey

because of the cracked windshield, he also testified that Mr. Carey was swerving and drove over

both the fog line and the median line. “A traffic stop is constitutionally valid when a law-

enforcement officer witnesses a motorist drift over the lane markings in violation of R.C.

4511.33, even without further evidence of erratic or unsafe driving.” State v. Mays, 119 Ohio

St.3d 406, 2008-Ohio-4539, at syllabus. Mr. Carey claims that he was never cited for any

marked lanes violations and testified at the hearing that Deputy Lesnasky never mentioned any

such violations during the traffic stop. However, the deputy was not required to cite Mr. Carey

for the cracked windshield or the marked lanes violations, as a police officer’s decision not to

cite an individual for the underlying traffic offense that prompted a traffic stop does not negate

the validity of the stop. See State v. Alexander, 8th Dist. Cuyahoga No. 90509, 2009-Ohio-597,

¶ 38, citing State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 13-14. The trial court

found Deputy Lesnasky’s testimony to be credible and determined that his observations of the

truck swerving and driving over both the fog line and the median line presented the deputy with

additional probable cause to conduct a traffic stop. We conclude that the trial court’s findings

here were based on competent, credible evidence. We further conclude that Deputy Lesnasky

had probable cause to stop Mr. Carey’s vehicle for driving over both the fog line and the median

line.

        {¶20} Mr. Carey’s assignments of error are both overruled.

                                               III.

        {¶21} Mr. Carey’s first and second assignments of error are overruled. The judgment of

the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                11




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

DAVID G. LOMBARDI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
