State v. Parsons

[Cite as State v. Parsons, 2019-Ohio-3140.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-19-02
v.
THOMAS M. PARSONS, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 2018 TRC 05803
Judgment Affirmed
Date of Decision: August 5, 2019
APPEARANCES:
Kenneth J. Rexford for Appellant
Laia D. Zink for Appellee
Case No. 2-19-02
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Thomas M. Parsons (“Parsons”), appeals the
December 11, 2018 judgment entry of the Auglaize County Municipal Court
convicting him of operating a motor vehicle while under the influence of alcohol or
drugs of abuse (“OVI”) and a marked-lanes violation after his motion to suppress
evidence was denied. We affirm.
{¶2} On July 20, 2018, at approximately 11:54 p.m., Ohio State Highway
Patrol Trooper Z. Deitering (“Trooper Deitering”) initiated a traffic stop of the
vehicle operated by Parsons after Trooper Deitering observed Parsons commit
marked-lanes violations while travelling on State Route 198 in Auglaize County,
Ohio. (Oct. 9, 2018 Tr. at 3). After determining that Parsons had a blood-alcohol
concentration of .142 grams by weight of alcohol per two hundred ten liters of his
breath, he was arrested and charged with OVI in violation of R.C. 4511.19(A)(1)(a)
and (d), first-degree misdemeanors, and the failure to drive within the marked lanes
in violation of R.C. 4511.33, a minor misdemeanor. (Doc. No. 1).
{¶3} On July 25, 2018, Parsons appeared and entered pleas of not guilty.
(Doc. No. 10). On August 30, 2018, Parsons filed a motion to suppress evidence
arguing that Trooper Deitering lacked a reasonable, articulable suspicion to believe
that he committed a marked-lanes violation. (Doc. No. 21). After a hearing on
October 9, 2018, the State filed a memorandum in opposition to Parsons’s motion
-2-
Case No. 2-19-02
to suppress evidence on October 12, 2018. (Doc. No. 34).1 On October 17, 2018,
Parsons filed a response to the State’s memorandum in opposition to his motion to
suppress. (Doc. No. 35). On December 11, 2018, the trial court denied Parsons’s
motion to suppress evidence after finding Trooper Deitering’s testimony that he
observed the vehicle operated by Parsons “drift over the white edge line on one
occasion” to be credible. (Doc. No. 36).
{¶4} On January 8, 2019, a change-of-plea hearing was held in the trial court.
(Doc. No. 37). Pursuant to a negotiated plea agreement, Parsons withdrew his pleas
of not guilty and entered no-contest pleas to the OVI charge under R.C.
4511.19(A)(1)(d) and the marked-lanes charge. (Id.). The trial court accepted
Parsons’s no-contest pleas, found him guilty, and dismissed the OVI charge under
R.C. 4511.19(A)(1)(a). (Id.). The trial court sentenced Parsons to three years of
community-control sanctions, including 180 days in jail, with 170 days suspended
conditioned on his compliance with his community-control sanctions. (Id.). The
trial court further imposed a $525 fine and a two-year license suspension. (Id.).
{¶5} Parsons filed his notice of appeal on January 31, 2019 and raises one
assignment of error for our review. (Doc. No. 50).
1
The trial court permitted the State to file its memorandum in opposition to Parsons’s motion to suppress
after the suppression hearing. (Oct. 9, 2018 Tr. at 14-15). The trial court also permitted Parsons’s time to
file a response to the State memorandum in opposition to his motion to suppress. (Id.).
-3-
Case No. 2-19-02
Assignment of Error
The Trial Court Erred by Denying Mr. Parsons’ Motion to
Suppress, In Violation of His Rights Under the Ohio and United
States Constitutions.
{¶6} In his sole assignment of error, Parsons argues that the trial court erred
by denying his motion to suppress evidence. In particular, he argues that the trial
court erred by concluding that Trooper Deitering had a reasonable, articulable
suspicion to believe that he committed a marked-lanes violation.
Standard of Review
{¶7} A review of the denial of a motion to suppress involves mixed questions
of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. At a
suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id. See
also State v. Carter, 72 Ohio St. 3d 545, 552 (1995). When reviewing a ruling on a
motion to suppress, “an appellate court must accept the trial court’s findings of fact
if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State
v. Fanning, 1 Ohio St. 3d 19 (1982). With respect to the trial court’s conclusions of
law, however, our standard of review is de novo, and we must independently
determine whether the facts satisfy the applicable legal standard. Id., citing State v.
McNamara, 124 Ohio App. 3d 706 (4th Dist.1997).
-4-
Case No. 2-19-02
Analysis
{¶8} “[I]n order to constitutionally stop a vehicle, an officer must, at a
minimum, have either: (1) a reasonable suspicion, supported by specific and
articulable facts, that criminal behavior has occurred, is occurring, or is imminent;
or (2) a reasonable suspicion, supported by specific and articulable facts, that the
vehicle should be stopped in the interests of public safety.” State v. Anthony, 3d
Dist. Seneca No. 13-09-26, 2009-Ohio-6717, ¶ 10, citing State v. Moore, 3d Dist.
Marion No. 9-07-60, 2008-Ohio-2407, ¶ 10, citing State v. Andrews, 3d Dist.
Auglaize No. 2-07-30, 2008-Ohio-625, ¶ 8, citing State v. Chatton, 11 Ohio St. 3d
59, 61 (1984), and citing State v. Purtee, 3d Dist. Logan No. 8-04-10, 2006-Ohio-
6337, ¶ 9, citing State v. Norman, 136 Ohio App. 3d 46, 53-54 (3d Dist.1999).
{¶9} “An officer’s ‘reasonable suspicion’ is determined based on the totality
of the circumstances.” Id. at ¶ 11, citing Moore at ¶ 11, citing Andrews at ¶ 8, citing
State v. Terry, 130 Ohio App. 3d 253, 257 (3d Dist.1998), citing State v. Andrews,
57 Ohio St. 3d 86, 87 (1991). “‘“Specific and articulable facts” that will justify an
investigatory stop by way of reasonable suspicion include: (1) location; (2) the
officer’s experience, training or knowledge; (3) the suspect’s conduct or
appearance; and (4) the surrounding circumstances.’” Id., quoting Purtee at ¶ 9,
citing State v. Gaylord, 9th Dist. Summit No. 22406, 2005-Ohio-2138, ¶ 9, citing
-5-
Case No. 2-19-02
State v. Bobo, 37 Ohio St. 3d 177, 178-179 (1988), and citing State v. Davison, 9th
Dist. Summit No. 21825, 2004-Ohio-3251, ¶ 6.
{¶10} In this case, Trooper Deitering stopped Parsons for violating R.C.
4511.33, which provides, in its relevant part, as follows:
(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:
(1) A vehicle * * * 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.
R.C. 4511.33(A)(1). “‘[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.’” Anthony
at ¶ 12, quoting State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, ¶ 25.
{¶11} On appeal, Parsons argues that the trial court’s credibility
determination regarding Trooper Deitering is not supported by competent, credible
evidence. In particular, he contends that the trial court improperly relied on Trooper
Deitering’s testimony that he observed Parsons “drift over the white edge line on
one occasion” because the dashboard-camera recording does not reflect any
evidence “in the way of weaving or crossing lines.” (Doc. No. 36); (Appellant’s
Brief at 13). Stated another way, Parsons argues that Trooper Deitering’s credibility
-6-
Case No. 2-19-02
is impeached by the dashboard-camera recording because (as Parsons contends)
such recording is inconsistent with Trooper Deitering’s testimony. Furthermore,
(absent Trooper Deitering’s testimony) Parsons argues that the dashboard-camera
recording does not support that Trooper Deitering had a reasonable, articulable
suspicion to believe that Parsons committed a marked-lanes violation to justify the
traffic stop. Specifically, he argues that
the cruiser video shows nothing in the way of weaving or crossing the
lines. At best, it is possible at a single brief point that a very minimal
single touching of the white fog line on the right edge of the lane or
[sic] travel perhaps occurred * * *.
(Appellant’s Brief at 13). Relying on this court’s decision in State v. Shaffer,
Parsons contends there is no competent, credible evidence supporting the trial
court’s conclusion that he committed a marked-lanes violation. 3d Dist. Paulding
No. 11-13-02, 2013-Ohio-3581.
{¶12} Parsons’s arguments are misplaced on both accounts. It is widely
understood that credibility determinations are squarely within the province of the
trial court. See State v. Dukes, 4th Dist. Scioto No. 16CA3745, 2017-Ohio-7204, ¶
39; State v. Smith, 7th Dist. Belmont No. 15 BE 0064, 2017-Ohio-2708, ¶ 49.
Contrary to Parsons’s argument on appeal, Trooper Deitering’s credibility is not
belied by the dashboard-camera recording. That is, this is not a case in which the
dashboard camera directly contradicts a witness’s testimony. Rather, at the
-7-
Case No. 2-19-02
suppression hearing, Trooper Deitering testified that he stopped Parsons after
observing the following:
As soon as I turned onto [State Route] 198 I noticed the vehicle go
over the white fog line off to the right side of the road. I continued to
follow the vehicle northbound noticing it serving within its lane, and
eventually I [activated] my overhead lights * * *.”
(Oct. 9, 2018 Tr. at 3). He further clarified that he “noticed” Parsons “travel over
the white fog line” and witnessed Parsons “swerving within [his] lane,” and “noticed
a couple of times he touched the white fog line, * * * then * * * go toward the left
of center of the road.” (Id. at 5). Trooper Deitering also indicated that he did not
“see anything on the roadway that was unsafe or that would cause [Parsons] to leave
the roadway.” (Id. at 12).
{¶13} The trial court admitted into evidence the recording from Trooper
Deitering’s dashboard camera. (Id. at 4, 12-13); (State’s Ex. 1).2 However, before
the recording was played for the trial court, Trooper Deitering testified that the
dashboard camera did not capture the initial marked-lanes violation that he
observed. (Oct. 9, 2018 Tr. at 5, 12). That is, Trooper Deitering testified that the
“look back period” of his dashboard camera is one minute and the initial marked-
lanes violation occurred prior to the one-minute-look-back period. (Id. at 4, 12).
Nevertheless, the balance of Trooper Deitering’s observations are supported by the
2
Parsons stipulated to State’s Exhibit 1. (Oct. 9, 2018 Tr. at 12-13).
-8-
Case No. 2-19-02
dashboard-camera recording. Accordingly, we conclude that the trial court’s
credibility determination regarding Trooper Deitering is supported by competent,
credible evidence.
{¶14} Moreover, because the trial court’s credibility determination is
supported by competent, credible evidence, the trial court’s ultimate conclusion—
that Trooper Deitering had a reasonable, articulable suspicion to believe Parsons
committed a marked-lanes violation—is based on competent, credible evidence.
Specifically, Trooper Deitering testified that he witnessed Parsons cross the white
fog line without a practicable reason to deviate from his lane of travel. See
Williamson v. Bur. of Motor Vehicles, 3d Dist. Defiance No. 4-17-06, 2017-Ohio-
7363, ¶ 14, citing Anthony, 2009-Ohio-6717, at ¶ 12, quoting Mays, 119 Ohio St. 3d
406, 2008-Ohio-4539, at ¶ 25.
{¶15} As to Parsons’s secondary argument (that the dashboard-camera
recording is not competent, credible evidence that Parsons committed a marked-
lanes violation based on this court’s decision in Shaffer), we determine such
argument to be without merit. In Shaffer, we concluded that the evidence in the
record did not support a reasonable, articulable suspicion to justify the traffic stop
of Shaffer based on a marked-lanes violation where the tires of Shaffer’s vehicle
were on the white fog line without evidence that it was not practicable for Shaffer
to remain in her lane of travel or evidence that she travelled outside her lane for
-9-
Case No. 2-19-02
safety purposes. Shaffer, 2013-Ohio-3581, at ¶ 26. Accordingly, foregoing Trooper
Deitering’s initial observation of Parsons crossing the white fog line, there is
competent, credible evidence in the record that Parsons committed a marked-lanes
violation. That is, the evidence reflecting that Parsons’s driving caused his vehicle
to weave within the lane, touching the white fog line (which Parsons admits),
together with the evidence that there was no condition making it impractical for him
to remain in the lane (as discussed in Shaffer), supports a reasonable, articulable
suspicion to justify a traffic stop.
{¶16} For these reasons, Parsons’s assignment of error is overruled.
{¶17} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
-10-