State v. Smith

[Cite as State v. Smith, 2014-Ohio-712.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-592
v. : (C.P.C. No. 12CR-11-5653)
Gino M. Smith, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 27, 2014
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.
Tyack, Blackmore, Liston & Nigh Co., L.P.A., and
Jonathan T. Tyack, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Gino M. Smith, appeals from a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas. Because the trial
court did not err when it denied appellant's motion to suppress, we affirm that judgment
but remand the matter for the trial court to correct a clerical error in its judgment.
I. Factual and Procedural Background
{¶ 2} On November 6, 2012, a Franklin County Grand Jury indicted appellant
with counts of possession of marijuana and possession of cocaine, both in violation of R.C.
2925.11. Police found the drugs in appellant's car after stopping him for failure to use a
turn signal in violation of Columbus City Code ("C.C.C.") 2131.14(a). Appellant entered a
No. 13AP-592 2
not guilty plea and subsequently filed a motion to suppress the drugs. Appellant argued
that he did not commit a traffic violation and, therefore, the officers that pulled him over
lacked reasonable and articulable suspicion to conduct the traffic stop.
{¶ 3} The underlying facts of the traffic stop were not in dispute. Appellant
lawfully parked his car on Duncan Street, about 20 to 30 feet west of its intersection with
High Street in the Clintonville area of Columbus. Duncan Street has a stop sign at its
intersection with High Street. After going to a store, appellant got back in his car and
began to drive away. Because there was a car parked in front of his on the street, he had
to "veer to the left and then come back to the stop sign and stop." (Tr. 46.) After he came
to a stop at the stop sign, he activated his turn signal and then turned onto High Street.
Law enforcement officers were in a police cruiser on the opposite side of the intersection.
The officers observed appellant stop at the stop sign, activate his turn signal and then
proceed to turn onto High Street. Based upon these observations, the officers initiated a
traffic stop during which they found drugs.
{¶ 4} The city ordinance relied on by the officers to stop appellant, C.C.C.
2131.14(a),1 provides in relevant part that "[n]o person shall turn a vehicle or move right
or left upon a street or 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 one hundred (100) feet traveled by the vehicle before turning." Appellant argued that
he did not violate this ordinance because he was parked less than 100 feet from the
intersection and, therefore, could not have activated his turn signal 100 feet before
turning.
{¶ 5} The trial court appeared to empathize with appellant's argument, noting
that it was not the "biggest, strongest traffic stop I've ever seen" (Tr. 62), but nevertheless
concluded that the officers legally stopped appellant for the traffic violation. Therefore,
the trial court denied appellant's motion to suppress the drugs found during the traffic
1 In relevant part, the city ordinance is identical to R.C. 4511.39, the state statute regarding the use of turn
signals.
No. 13AP-592 3
stop. As a result, appellant entered a no contest plea to the charges, and the trial court
sentenced him accordingly.
{¶ 6} Appellant now appeals and assigns the following errors:
I. THE TRIAL COURT ERRED BY INDICATING IN ITS
FINAL JUDGMENT ENTRY THAT APPELLANT HAD
ENTERED A "GUILTY" PLEA WHEN, IN FACT,
APPELLANT ENTERED A "NO CONTEST" PLEA.
II. THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS.
II. Did Appellant Enter a Guilty Plea or a Plea of No Contest?
{¶ 7} Appellant argues in his first assignment of error that the trial court's
judgment entry erroneously indicates that he entered a guilty plea. The state concedes
that appellant entered a no contest plea and that the notation of a guilty plea on
appellant's judgment entry must be a clerical error. Upon a review of the transcript, we
agree. Accordingly, we sustain appellant's first assignment of error and remand the
matter to the trial court to correct its error.
III. Appellant's Motion to Suppress
{¶ 8} Appellant's second assignment of error addresses the trial court's denial of
his motion to suppress.
A. Standard of Review
{¶ 9} " 'Appellate review of 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.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Here, appellant does not
dispute any of the trial court's factual findings. He contends that the trial court's legal
conclusion was wrong. Thus, we must independently determine whether the officers had
reasonable and articulable suspicion to stop appellant.
No. 13AP-592 4
B. Did the Officers have Reasonable Suspicion that Appellant
Committed a Traffic Violation?
{¶ 10} The Fourth Amendment to the U.S. Constitution and Ohio Constitution,
Article I, Section 14, is the guarantee of the right to be free from unreasonable searches
and seizures. State v. Orr, 91 Ohio St.3d 389, 391 (2001). It is well-established that
stopping an automobile, thus temporarily detaining its occupants, constitutes a seizure
under the Fourth Amendment to the U.S. Constitution. State v. Dorsey, 10th Dist. No.
04AP-737, 2005-Ohio-2334, ¶ 17, citing Delaware v. Prouse, 440 U.S. 648, 653 (1979). A
traffic stop is constitutionally valid, however, if an officer has a reasonable and articulable
suspicion that a motorist has committed, is committing, or is about to commit a crime,
including a traffic violation. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7,
citing Prouse at 663; State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 10
(observation of traffic violation is enough for reasonable and articulable suspicion to stop
car); State v. Barker, 10th Dist. No. 11AP-170, 2011-Ohio-5769, ¶ 12-13. "Reasonable
suspicion entails some minimal level of objective justification, 'that is, something more
than an inchoate and unparticularized suspicion or "hunch," but less than the level of
suspicion required for probable cause.' " State v. Jones, 188 Ohio App.3d 628, 2010-
Ohio-2854, ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d
Dist.1990). In evaluating reasonable suspicion to support the propriety of a traffic stop, a
reviewing court must consider the totality of the circumstances surrounding the stop as
" 'viewed through the eyes of the reasonable and prudent police officer on the scene who
must react to events as they unfold.' " McCandlish at ¶ 7, quoting State v. Andrews, 57
Ohio St.3d 86, 87-88 (1991).
{¶ 11} It is undisputed that appellant did not activate his turn signal until after he
stopped at the intersection. Therefore, it is undisputed that appellant did not
continuously signal his intent to turn for at least 100 feet before turning. Based on these
facts, the state contends that the officers had reasonable suspicion to believe appellant
violated C.C.C. 2131.14(a). A violation of this ordinance would provide the officers with
reasonable suspicion to constitutionally stop appellant. State v. Jerew, 3d Dist. No. 9-98-
47 (Feb. 22, 1999), citing City of Marysville v. Creameans, 3d Dist. No. 14-91-27
(Jan. 27, 1992). Appellant contends that the officers lacked reasonable suspicion to stop
No. 13AP-592 5
him because he did not violate the ordinance. He argues that he did not violate the
ordinance because he was parked less than 100 feet from the intersection, and therefore,
it was impossible to continuously signal his turn for at least 100 feet before turning as
required by C.C.C. 2131.14(a).
{¶ 12} The relevant question in this case is not whether appellant had a possible
defense to the violation. Mays at ¶ 17; State v. Acord, 4th Dist. No. 05CA2858, 2006-
Ohio-1616, ¶ 13-15 (regardless of whether defense to violation would have prevailed at
trial, traffic stop was reasonable and constitutional). Instead, the relevant question in the
context of determining the constitutionality of a traffic stop is whether the officers had a
reasonable suspicion that appellant committed a traffic violation. Barker at ¶ 10-11.
Based on the events observed by the police officers, we conclude they had reasonable
suspicion. The officers first observed appellant either as he approached or actually
stopped at the stop sign. They did not know where he had come from or how far he had
been driving down the road. What they did see, however, was that he did not activate his
turn signal until he stopped at the stop sign. This is enough for a police officer to have
reasonable suspicion that appellant violated C.C.C. 2131.14(a). State v. Hardy, 2d Dist.
No. 24114, 2011-Ohio-241, ¶ 26 (police officer's observation of vehicle approach and stop
at stop sign and then activate turn signal supports reasonable suspicion of failure to signal
100 feet prior to turn); Acord at ¶ 14-15 (finding that police officer's observation of driver
who did not activate turn signal until after stopped provided reasonable suspicion to
conduct stop).
{¶ 13} The Acord case is particularly instructive, as the facts are strikingly similar
to the present case. There, a police officer observed Acord driving her car toward an
intersection but did not see where it came from. Acord did not activate her turn signal
until after stopping at the intersection. The police officer stopped her for that violation2
and found drugs in the car. On appeal, after the trial court denied her motion to suppress,
Acord argued that it was impossible for her to comply with the ordinance because she had
not been driving on the road for 100 feet before the intersection and, therefore, could not
comply with the law. The court rejected her argument because the question was not
whether she violated the law but whether the traffic stop was supported by reasonable
2
The city ordinance involved is identical to the relevant Columbus City Code as well as R.C. 4511.39.
No. 13AP-592 6
suspicion. Id. at ¶ 13. The court concluded that it was because the officer observed Acord
activate her turn signal just before turning. Id. at ¶ 15. The court noted that the question
would have been more difficult if the officer had observed Acord pull onto the street less
than 100 feet from the intersection, but given what the officer observed, the traffic stop
was supported by reasonable suspicion.
{¶ 14} The facts in Acord are almost identical to the present case, in which the
officers did not observe appellant enter the street but did see him activate his turn signal
only after coming to a stop at the intersection. That observation provides the minimal
level of objective justification required in order for a police officer to have reasonable
suspicion that appellant violated C.C.C. 2131.14(a) by failing to properly activate a turn
signal. Whether or not appellant might have had a defense to the traffic citation is not a
question we need to address.
{¶ 15} We conclude that the police officers' observations were sufficient to
constitute reasonable suspicion that appellant committed a traffic violation. Thus, the
resulting traffic stop was constitutionally permissible, and the trial court did not err by
denying appellant's motion to suppress. We overrule appellant's second assignment of
error.
IV. Conclusion
{¶ 16} We sustain appellant's first assignment of error and overrule his second
assignment of error. Additionally, we grant the state's motion to strike appellant's reply
brief, as this court's local rules do not allow for a reply brief to be filed in a case assigned
to the accelerated calendar. Loc.R. 8(B). Accordingly, we affirm the judgment of the
Franklin County Court of Common Pleas denying appellant's motion to suppress but must
remand the matter for the trial court to correct its clerical error to indicate that appellant
entered a no contest plea.
Appellee's motion to strike granted;
judgment affirmed; cause remanded with instructions.
CONNOR and O'GRADY, JJ., concur.