State v. Kneier

[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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