State v. Moore

2023-Ohio-494

STATE OF OHIO, Plaintiff-Appellee, v. KARISTEN H. MOORE, Defendant-Appellant.

No. 21CA3756

Court of Appeals of Ohio, Fourth District, Ross

February 21, 2023

Timothy Young, Ohio Public Defender, Stephen P. Hardwick Assistant Public Defender, Columbus, Ohio, for Appellant.

Anna Villarreal, City of Chillicothe Law Director, Michele R Rout, Assistant Law Director, Chillicothe, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Jason P. Smith Presiding Judge

{¶1} Karisten H. Moore appeals the August 25, 2021 Entry of Sentence of the Chillicothe Municipal Court. Under two assignments of error, Moore challenges (1) the trial court's denial of her motion to dismiss; and (2) the trial court's evidentiary ruling made during Moore's suppression hearing. For the reasons which follow, we find no merit to the arguments raised herein. Accordingly, we overrule both assignments of error and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On January 3, 2021, Moore was cited by Trooper Josh McCarty of the Ohio State Highway Patrol for operating a vehicle under the influence of alcohol/drug of abuse, R.C 4511.19(A)(1)(a), and driving in marked lanes, R.C. 4511.33. The alleged violations occurred on S.R. 327 in Liberty Township, Ross County, Ohio. Moore held a Tennessee driver's license.

{¶3} Moore was appointed counsel. She entered not guilty pleas and demanded a jury trial. Moore's counsel requested discovery and eventually filed a motion to suppress. The suppression hearing was conducted on May 21, 2021.

{¶4} Prior to the introduction of evidence, the parties stipulated that the issue was limited to the trooper's justification for the traffic stop, the marked lanes violation. State's Exhibit 1, a copy of a portion of the video recording from the trooper's cruiser prior to the traffic stop, was admitted into evidence. On May 27, 2021, the trial court overruled the motion to suppress. In the court's entry, the trial court concluded:

The video evidence was reviewed by the court. The recording occurred near midnight on a dark and winding road. While the taillights of defendant's vehicle are visible on the video as are the lane markings, the angle and distance from the defendant's vehicle make it insufficient to overcome the trooper's testimony. The video is somewhat unclear and could be construed to reveal the defendant's vehicle committed a marked lanes violation.

The Court finds the trooper's testimony in this case is credible and believes that he had a better perspective to observe the operation of defendant's vehicle on the night in question than may be observed by watching the video.

{¶5} On August 25, 2021, Moore changed her initial plea of not guilty to operating a vehicle under the influence of alcohol/drugs to a plea of no contest. The State moved to dismiss the marked lanes charge. The trial court granted the State's motion.

{¶6} Moore's sentence was a $375.00 fine, with court costs in the amount of $379.00. She was placed on one year of community control. She was also sentenced to complete 72 hours in a certified driver's intervention program by December 31, 2021. Her driver's license was suspended for one year, with credit, on the suspension.

{¶7} This timely appeal followed.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY DENYING MS. MOORE'S MOTION TO DISMISS.

II. THE TRIAL COURT ABUSED ITS DISCRETON BY REFUSING TO ALLOW MS MOORE TO CROSS-EXAMINE THE TROOPER OVER POTENTIAL BIAS.

ASSIGNMENT OF ERROR ONE

1. Standard of Review {¶8} Moore filed a motion to suppress all evidence and officer observation from the allegedly unlawful traffic stop. While Moore's first assignment of error references a "motion to dismiss," we believe this to be a scrivener's error as the record does not contain a filing of a motion to dismiss. Moore argues that the trooper's dashcam video demonstrates that her car was within the traffic lane at the time the trooper testified it had crossed the line. As a result, Moore asks this court to find that the trooper did not have probable cause to believe that she committed a marked lanes violation. Thus, she actually argues that the trial court erred by denying Moore's motion to suppress evidence resulting from the stop.

{¶9} Generally, "appellate review of a motion to suppress presents a mixed question of law and fact." State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained as follows:

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.) Burnside at ¶ 8. 2.

Legal Analysis

{¶10} "The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures." State v Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. "This constitutional guarantee is protected by the exclusionary rule, which mandates the exclusion at trial of evidence obtained from an unreasonable search and seizure." State v. Petty, 4th Dist., 2019-Ohio-4241, 134 N.E.3d 222, ¶ 11. "An officer's temporary detention of an individual during a traffic stop constitutes a seizure of a person within the meaning of the Fourth Amendment * * *." State v. Lewis, 4th Dist. Scioto No. 08CA3226, 2008-Ohio-6691, ¶ 14; see also State v. Eatmon, 4th Dist. Scioto No. 12CA3498, 2013-Ohio-4812, ¶ 13 (quoting Lewis). "To be constitutionally valid, the detention must be reasonable under the circumstances." Lewis at ¶ 14. "While probable cause 'is certainly a complete justification for a traffic stop,' it is not required." Eatmon at ¶ 13, quoting State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. "So long as 'an officer's decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid.'" Id., quoting Mays at ¶ 8. "Reasonable and articulable suspicion is a lower standard than probable cause." Id., citing Mays at ¶ 23.

{¶11} Additionally, investigatory stops "must be supported by a reasonable, articulable suspicion that the driver has, is, or is about to commit a crime, including a minor traffic violation." Petty at ¶ 12, citing State v. Hudson, 4th Dist. Gallia No. 17CA19, 2018-Ohio-2717, at ¶ 14, and State v. Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, at ¶ 16, in turn citing United States v. Williams, 525 Fed.Appx. 330, 332 (6th Cir. 2013) and Florida v. Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319 (1983). In Petty, supra, we explained as follows:

"To justify a traffic stop based upon reasonable suspicion, the officer must be able to articulate specific facts that would warrant a person of reasonable caution to believe that the driver has committed, or is committing, a crime, including a minor traffic violation." State v. Taylor, 2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of reasonable suspicion depends on whether an objectively reasonable police officer would believe that the driver's conduct constituted a traffic violation based on the totality of the circumstances known to the officer at the time of the stop. Id.

{¶12} "Once a defendant demonstrates that he or she was subjected to a warrantless search or seizure, the burden shifts to the state to establish that the warrantless search or seizure was constitutionally permissible." State v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-3478, at ¶ 13.

{¶13} Here, Trooper McCarty initiated an investigatory traffic stop and detained Moore. At the suppression hearing, Trooper McCarty testified that he had worked in law enforcement since 2007. He completed training at the Ohio State Patrol in 2018. Since that time, he had made 1000 or more traffic stops.

{¶14} Trooper McCarty testified he was working in the Londonderry area of Ross County near the intersection of S.R. 50 and S.R. 327. He was wearing his uniform and driving a marked vehicle. He initially saw Moore's vehicle crossing Route 50 onto Route 327 and traveling north. During his first visual observation, Moore's vehicle was "across the center line, the dotted line." As Trooper McCarty turned onto Route 50, he lost sight of Moore's vehicle but caught up with it a couple of miles later on S.R. 327. Trooper McCarty testified that the road was a two-lane rural road which was very curvy.

{¶15} When Trooper McCarty caught up with the vehicle, Moore was operating it so as to drive on the dotted line. The trooper initiated a traffic stop and found Ms. Moore driving the car. Trooper McCarty identified Ms. Moore in the courtroom.

{¶16} Trooper McCarty further testified that his cruiser was equipped with video recording equipment which was working and recording on the night of the stop. He provided a copy of the video recording to the law director's office. At this point, the video was played during the suppression hearing.

{¶17} Trooper McCarty testified that sometimes there is a difference between what the camera is recording and what he can observe with his own eyes. Trooper McCarty acknowledged that it is difficult to see where the violation occurred on the video. H...