State v. Powell

[Cite as State v. Powell, 2018-Ohio-1223.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27632
:
v. : Trial Court Case No. 2016-CR-2746
:
RODNEY L. POWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of March, 2018.
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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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WELBAUM, P.J.
{¶ 1} Defendant-Appellant, Rodney Powell, appeals from his conviction and
sentence on one count of improper handling of firearms in a motor vehicle in violation of
R.C. 2923.16(B), a fourth-degree felony. After a no-contest plea, Powell was sentenced
to various community control sanctions.
{¶ 2} Powell contends that the trial court erred by failing to find that a police stop
of his motor vehicle violated Article I, Section 14 of the Ohio Constitution and the Fourth
Amendment to the United States Constitution. For the reasons discussed below, the trial
court did not err in overruling Powell’s motion to suppress. Accordingly, the judgment of
the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On September 2, 2016, a complaint was filed in Dayton Municipal Court,
alleging that Powell had violated R.C. 2923.16(B) by improperly handing a firearm in a
motor vehicle on September 2, 2016. Powell subsequently waived a preliminary hearing
and agreed to be bound over to the common pleas court. An indictment was then filed
in common pleas court on October 7, 2016, charging Powell with the above offense.
Powell filed a motion to suppress on November 9, 2016, and the court held a suppression
hearing on December 16, 2016.
{¶ 4} At the hearing, the court heard testimony from Dayton Police Officer, James
Campolongo, and from Powell. Officer Campolongo testified that he was on patrol on
September 2, 2016. He was driving a marked cruiser, was in the uniform of the day, and
was alone in the cruiser.
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{¶ 5} At about 1:40 a.m., Campolongo was driving on Paul Laurence Dunbar
Street, going north towards West Riverview Avenue, when he saw a blue Dodge truck
sitting at a stop light. The truck was stopped in the right-hand turn lane, but no turn signal
was flashing. As Campolongo approached closer to the vehicle, a turn signal went on,
but the vehicle did not move; it was still stopped at the light. When the light turned green,
the truck turned right onto West Riverview, and Campolongo followed the truck.
Campolongo then activated his overhead lights to initiate a traffic stop based on the fact
that the driver did not have his turn signal on 100 feet prior to a turn.
{¶ 6} The vehicle was slow to pull over, but stopped on Ferguson Avenue, which
is a little bit north of West Riverview. Because Campolongo was alone, he used the IPA
system to tell the driver to turn off his car. Before Campolongo got out of the cruiser, he
notified dispatch and asked for backup. After Campolongo made contact with the driver
(Powell), he had an interaction with Powell that resulted in a search of the vehicle, during
which a firearm was discovered.
{¶ 7} Campolongo testified that no other vehicles were around at the time. He
also said that his interpretation of the ordinance involved (Revised Code of General
Ordinances of the City of Dayton, Ohio (“R.C.G.O.”) 71.31), was that it was subject to
traffic conditions at the time and applied if a failure to signal affected other traffic.
According to Campolongo, he was affected by this failure when he pulled in behind
Powell’s truck.
{¶ 8} Powell testified that he was driving towards his home when he stopped in a
right-turn only lane. He initially activated his turn signal and made a partial turn of the
wheel, which caused his turn signal to go off. No other traffic was around. As Powell
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looked in his rear-view mirror, he saw a vehicle approaching at a high rate of speed. At
that point, Powell realized his turn signal was off, and he turned it back on because he
did not know if the vehicle was going to hit him. He indicated he was in a dangerous
area, and people were out celebrating because it was Labor Day weekend. When the
car got closer, Powell realized it was a police car. Powell then turned right on West
Riverview Avenue, and the officer waited for about a block and half before initiating the
traffic stop.
{¶ 9} After hearing the evidence, the trial court overruled the motion to suppress.
The court concluded that the officer had a reasonable, articulable suspicion of criminal
activity based on Powell’s failure to comply with the turn signal requirements. Powell
subsequently pled no contest to the charge and was sentenced to community control
sanctions. This appeal followed.
II. Alleged Error in Overruling the Motion to Suppress
{¶ 10} Powell’s sole assignment of error states that:
The Trial Court Erred by Failing to Find that the Stop of Appellant’s
Motor Vehicle Was in Violation of Article I, Section 14 of the Constitution of
Ohio, and the Fourth Amendment to the United States Constitution.
{¶ 11} According to Powell, the language in R.C.G.O. 71.31 (and R.C. 4511.39,
which is nearly identical) is vague and should not be interpreted to mean that using a turn
signal “when required” means that a signal must be maintained continuously. Powell
also argues that since he was stopped at the light, Officer Campolongo could not have
known whether his turn signal was activated 100 feet before he turned. And finally,
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Powell argues that the ordinance and statute improperly restrict a driver’s freedom by
requiring that the driver must always know 100 feet in advance that he or she will be
making a turn.
{¶ 12} In its decision, the trial court noted that the police officer was incorrect when
he concluded that enforcement of the ordinance was subject to traffic conditions at the
time. Nonetheless, based on prior authority from our district, the trial court held that the
police officer lawfully stopped Powell and that any subjective motivation for the stop was
irrelevant.
{¶ 13} “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.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “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.) Id.{¶ 14} “The Fourth Amendment to the United Stated Constitution prohibits
unreasonable searches and seizures. Stopping an automobile constitutes a ‘seizure.’ ”
State v. Rastbichler, 2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 16, citing
Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The
United States Supreme Court has stated that a traffic stop is constitutionally valid if an
officer has a reasonable and articulable suspicion that a motorist has committed, is
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committing, or is about to commit a crime.” (Citations omitted.) State v. Mays, 119 Ohio
St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. This includes even minor traffic
violations. State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, ¶ 20, citing
Mays at ¶ 7-8.
{¶ 15} “Further, ‘[t]he propriety of an investigative stop by a police officer must be
viewed in light of the totality of the surrounding circumstances.’ ” Mays at ¶ 7, quoting
State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the
syllabus. “[T]hese circumstances are to be viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.”
(Citations omitted.) State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶ 16} In Rastbichler, we specifically considered R.C.G.O. 71.31. The current
version, which is unchanged from the ordinance discussed in Rastbichler, provides, in
pertinent part, that:
(A) No person shall turn a vehicle or trackless trolley or move right or
left upon a 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.
(B) When required, a signal of intention to turn or move right or left
shall be given continuously during not less than the last 100 feet traveled
by the vehicle or trackless trolley before turning.
R.C.G.O. 71.31 (Dec. 20, 2017).1 See also Rastbichler, 2d Dist. Montgomery No. 25753,
1 This ordinance can be found at: https : // library . municode . com / oh / dayton / codes
/ code of ordinances ? nodeld = TITVIITRC O CH71 RUOP DIV2 TUMO S71.31
TUSTSI (accessed on January 31, 2018).
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2014-Ohio-628, at ¶ 19, and R.C. 4511.39(A) (which contains the same general
requirements as R.C.G.O. 71.31).
{¶ 17} In Rastbichler, we rejected the defendant’s contention that R.C.G.O. 71.31
only requires a turn signal if there is traffic in the area that is potentially affected. Instead,
we stated that this ordinance “ ‘imposes an absolute duty as to giving turn signals that is
not conditioned on prevailing traffic conditions.’ ” Rastbichler at ¶ 20, quoting State v.
Bartone, 2d Dist. Montgomery No. 22920, 2009-Ohio-153, ¶ 20.
{¶ 18} Thus, Officer Campolongo was incorrect in his interpretation, as the trial
court noted. However, as the trial court also stressed, the officer’s mistake was
irrelevant. Regardless of the conditions, Powell had an absolute duty to use turn signals
continuously to signal his intention to turn.
{¶ 19} In this regard, we note that Bartone involved facts very similar to those in
the case before us. In Bartone, a police officer observed the defendant’s vehicle while
the vehicle was stopped at an intersection. After several minutes, a turn signal was
activated, and the driver turned. The vehicle again stopped at another intersection for
several minutes, and the turn signal was again activated, followed by another turn. Id.
at ¶ 3-4. As here, there were no other cars on the street, and the officer’s cruiser was
the only car in the vicinity. After stopping the vehicle for the traffic violations, the officer
discovered drugs and the defendant was charged with possession of cocaine. Id. at ¶ 5-
13.
{¶ 20} On appeal, we reversed the trial court, which had sustained the defendant’s
motion to suppress evidence. Specifically, the trial court concluded that the defendant
had not violated R.C.G.O. 71.31 “because there was no traffic in the vicinity of where
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Officer Imwalle had observed him driving and, therefore, [the defendant] was not required
to signal his intention to turn within the last 100 feet of travel prior to the turn.” Id. at ¶ 15.
{¶ 21} In analyzing the matter, we gave special consideration to the words “[w]hen
required,” which is the part of the ordinance that Powell currently challenges. (Emphasis
sic.) Bartone at ¶ 18. We noted that:
The trial court reasoned that the “when required” language excused
Bartone's failure to signal within the last 100 feet of travel where there were
no other drivers who could benefit from Bartone's signaling. While this may
not be an unreasonable interpretation of the ordinance, this interpretation
has been rejected by several appellate districts construing R.C. 4511.39(A),
or comparable ordinances, which in pertinent part are identical to Ordinance
71.31(A)(B). State v. Lowman (1992), 82 Ohio App.3d 831, 835-6, 613
N.E.2d 692 (12th District); State v. Sanders (1998), 130 Ohio App.3d 789,
799-800, 721 N.E.2d 433 (11th District); State v. Evans (Summit App. No.
19803), June 7, 2000 (9th District); State v. Dennowitz (Ross App. No.
99CA2491), Nov. 5, 1999 (4th District).
Bartone attempts to distinguish these cases from his case because
they involved more than a stop for a mere minor misdemeanor. This
attempt is wide of the mark. What is of significance is that these cases
stand for the proposition that Ordinance 71.31 imposes an absolute duty as
to giving turn signals that is not conditioned on prevailing traffic conditions.
The legislature, in enacting R.C. 4511.39, and the Dayton City Commission,
in enacting Ordinance 71.31, could have expressly made the duty to signal
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dependent on traffic conditions but did not. See Lowman, at 835, 613
N.E.2d 692. Indeed, such language might well introduce an undesirable
element of subjectivity which would be a disservice to the motoring public
and law enforcement alike.
Bartone, 2d Dist. Montgomery No. 22920, 2009-Ohio-153, at ¶ 19-20.
{¶ 22} The wording of R.C.G.O. 71.31 has not changed since Bartone, nor has
there been any change in R.C. 4511.39(A). The trial court cited both Rastbichler and
Bartone in its suppression decision, and correctly relied on these cases. See Decision,
Order and Entry Overruling Defendant’s Motion to Suppress and Setting Scheduling
Conference, Doc. #25, p. 4.
{¶ 23} The trial court also cited Hardy, 2d Dist. Montgomery No. 24114, 2011-
Ohio-241, for the proposition that R.C.G.O. 71.31 does not contain any exception for
vehicles that are in turn only lanes or through lanes. Doc. #25, p. 4, citing Hardy at ¶ 25.
Again, we agree with the trial court. As in the above cases, the defendant in Hardy
argued that R.C.G.O. 71.31 is vague. In response, we stated that:
We find nothing vague about Dayton R.C.G.O[.] Sec. 71.31(A) and
(B). Dayton R.C.G.O[.] Sec. 71.31(A) prohibits a driver from turning
without ensuring that such turn can be performed safely and giving an
appropriate signal. Dayton R.C.G.O[.] Sec. 71.31(B) specifies that the turn
signal must be given continuously for at least 100 feet prior to the turn.
“[T]he ordinance has sufficient clarity and details to put a person of ordinary
intelligence on notice of what conduct is prohibited * * *, [and] [t]he language
of the ordinance provides fair warning that failure to signal at least 100 feet
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prior to turning will expose a driver to liability.” State v. Acord, Ross App.
No. 05 CA 2858, 2006-Ohio-1616, ¶ 19 (concluding that Chillicothe City
Ordinance 331.14, which is identical to R.C. 4511.39(A), is not vague).
Hardy argues that she was not required to use a turn signal prior to
turning onto North Smithville Road, because the intersection of Smithville
and Woodley was a T-intersection, which required her to turn. Dayton
R.C.G.O[.] Sec. 71.31(A) contains no exception for T-intersections (in fact,
signaling in which direction a turn will be made would be helpful to other
drivers or pedestrians at the intersection), and the ordinance is not rendered
vague merely because the configuration of a particular intersection requires
the driver to make a turn. See State v. Bartone, Montgomery App. No.
22920, 2009-Ohio-153, ¶ 20 (stating that the “Dayton City Commission, in
enacting Ordinance 71.31, could have expressly made the duty to signal
dependent on traffic conditions but did not.”)
Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, at ¶ 24-25.
{¶ 24} We see nothing to distinguish the current case from others we have
decided. Whether or not drivers have previously signaled an intention to turn, the
ordinance gives fair warning that drivers are required to maintain a signal until their turns
have been completed. This makes sense, since the purpose of using turn signals is to
warn other drivers of an intention to turn. As we have stressed in the past, the ordinance
is not conditioned on traffic conditions at the time. If the City of Dayton wished to alter
its ordinance to reflect that position, it could have done so. However, the City has not
chosen that option.
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{¶ 25} As to Powell’s argument that the officer could not have cited him because
he did not observe Powell traveling 100 feet, that argument is without merit, given our
decision in Bartone. The facts in Bartone indicate that when the police officer first saw
the defendant’s car, the car was at an intersection. After stopping there for several
minutes, the defendant then activated a turn signal and turned. Bartone, 2d Dist.
Montgomery No. 22920, 2009-Ohio-153, at ¶ 4. Clearly, the police officer did not
observe the defendant traveling 100 feet while failing to use his turn signal. Furthermore,
while another similar violation occurred, during which the officer did see the defendant
travel for a distance, we did not rest our decision on that fact. Instead, we noted that the
officer felt traffic violations had occurred at both intersections. Id. at ¶ 6.
{¶ 26} The Tenth District Court of Appeals also rejected a similar argument in State
v. Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio-712. In that case, the defendant
parked about 20 to 30 feet from an intersection. When the defendant got back in his car,
he went to the left around another parked car, came to the stop sign, and then activated
his turn signal. Id. at ¶ 3. Police officers initiated a traffic stop and found drugs. Id.
The pertinent traffic ordinance [C.C.C. 2131.14(a)] was similar to R.C.G.O. 71.31 and
R.C. 4511.39(A). Id. at ¶ 4 and fn.1.
{¶ 27} In reviewing the denial of the defendant’s motion to suppress, the court of
appeals rejected the defendant’s argument that he had not violated the ordinance
because he was parked less than 100 feet from the intersection and could not have
continuously signaled his turn for at least 100 feet as the ordinance required. Id. at ¶ 12.
The court stated that “[t]he relevant question in this case is not whether appellant had a
possible defense to the violation.” Id., citing Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,
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894 N.E.2d 1204, at ¶ 17, and State v. Acord, 4th Dist. Ross No. 05CA2858, 2006-Ohio-
1616, ¶ 13-15. The court then said that:
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. * * * 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).
Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio-712, ¶ 12, citing Hardy, 2d Dist.
Montgomery No. 24114, 2011-Ohio-241, at ¶ 26. (Other citations omitted.)
{¶ 28} In light of the preceding discussion, the trial court did not err in overruling
the motion to suppress. Consistent with the above cases, Officer Campolongo had a
reasonable suspicion that Powell violated the ordinance, and the officer, therefore, was
permitted to initiate a traffic stop. Accordingly, Powell’s sole assignment of error is
overruled.
III. Conclusion
{¶ 29} Powell’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Lori R. Cicero
Hon. Michael W. Krumholtz