[Cite as State v. Howard, 2022-Ohio-3958.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF WAYNE )

STATE OF OHIO

Appellee

v.

JOHN D. HOWARD

Appellant

C.A. No. 21AP0034

APPEAL FROM JUDGMENT

ENTERED IN THE

WAYNE COUNTY MUNICIPAL COURT

COUNTY OF WAYNE, OHIO

CASE No. 2020 TR-C 000874

DECISION AND JOURNAL ENTRY

Dated: November 7, 2022

HENSAL, Judge.

{¶1} John Howard appeals a judgment of the Wayne County Municipal Court that denied 

his motion to suppress. For the following reasons, this Court affirms.

I.

{¶2} Trooper Josiah Custer testified that he was on patrol at night in Wooster Township 

when he observed the right two wheels of a vehicle go off the roadway as it was making a left turn 

from U.S. 30 onto Fry Road. The trooper turned his lights on and then watched the vehicle drive 

on the yellow line between the lanes of traffic on Fry Road. According to Trooper Custer, his 

patrol vehicle has a dash camera that begins to record from 60 seconds before he activates his 

lights. He testified that, because of the angle of the camera, it did not capture the violation he 

observed. He explained that, whereas the camera captures the vehicle “kind of off towards the 

right[ ] side of the road, kind of coming back,” he “was able to see the entire culmination of the 

events where [the vehicle] actually did go off the road.” The trooper acknowledged that the right 
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tires of the vehicle appear to be off the roadway at the 1:25 mark of the video and that its left tires 

are completely on the double yellow line at the 1:28 mark.

{¶3} After making his observations, Trooper Custer stopped the vehicle, which was 

being driven by Mr. Howard. Upon further investigation, Trooper Custer arrested Mr. Howard for 

operating under the influence (“OVI”). He also cited him for a marked lanes violation. Mr. 

Howard moved to suppress the evidence against him, arguing that Trooper Custer did not have 

reasonable articulable suspicion to stop him. Following a hearing, the municipal court denied the 

motion, finding that Trooper Custer had probable cause to stop Mr. Howard’s vehicle. 

Specifically, the court found that Mr. Howard committed a traffic violation prior to the stop, which 

was going off the right side of the roadway while making a left turn onto Fry Road. The court 

found that a violation was visible at the 1:25 mark of the dash camera video. The court also found 

that the trooper conducted field sobriety tests appropriately and that there was probable cause to 

arrest Mr. Howard for suspected OVI. The court further found that Trooper Custer substantially 

complied with the regulations for urine screening.

{¶4} Following the denial of his motion to suppress, Mr. Howard pleaded no contest to 

one count of OVI. The municipal court found him guilty of the offense and sentenced him to 120 

days in jail. It also fined him $1,200 and suspended his driver’s license for five years. Mr. Howard 

has appealed, assigning as error that the municipal court incorrectly denied his motion to suppress. 

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO 

SUPPRESS BECAUSE THE ARRESTING OFFICER DID NOT HAVE 

REASONABLE ARTICULABLE SUSPICION TO STOP AND DETAIN HIIM.
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{¶5} Mr. Howard argues that the traffic stop was unconstitutional because Trooper 

Custer did not have reasonable articulable suspicion to stop and detain him. A motion to suppress 

evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court 

“must accept the trial court’s findings of fact if they are supported by competent, credible 

evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “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.” Id., citing State v. McNamara, 

124 Ohio App.3d 706, 710 (4th Dist.1997). Accordingly, this Court grants deference to the trial 

court’s findings of fact but conducts a de novo review of whether the trial court applied the 

appropriate legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 

12 (9th Dist.).

{¶6} “[A] traffic stop is constitutionally valid if an officer has a reasonable and 

articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.” 

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7. The officer “must be able to point to 

specific and articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant [the] intrusion.” (Alteration in original). State v. Jenkins, 9th Dist. Lorain No. 

15CA010826, 2016-Ohio-5190, ¶ 6, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). “[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 (1980), at 

paragraph one of the syllabus. “[I]f an officer’s decision to stop a motorist for a criminal violation, 
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including a traffic violation, is prompted by a reasonable and articulable suspicion considering all 

the circumstances, then the stop is constitutionally valid.” Id. at ¶ 8.

{¶7} According to Trooper Custer, he stopped Mr. Howard because he saw him commit 

a marked lanes violation. Ohio Revised Code Section 4511.33(A)(1) provides that, if a road “has 

been divided into two or more clearly marked lanes for traffic, * * * [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.” 

{¶8} At the conclusion of the suppression hearing, the municipal court found that, 

because the dash camera was mounted in a particular location, it could not capture everything that 

Trooper Custer saw, including when Mr. Howard turned left while the trooper was still on Route 

30. The court found credible the trooper’s testimony that he saw Mr. Howard travel off the right 

side of the roadway. The court also explained that, when Mr. Howard’s vehicle does come back 

into view of the dash camera “you can see the * * * back right tire at least kind of popping out of 

the portion that the truck, the back of the truck bounces a bit as it is coming back out of the portion 

of the roadway where it had been off previously.” Following the hearing, the municipal court 

issued a written decision that incorporated its findings from the suppression hearing. It also wrote 

that Mr. Howard committed a traffic violation before the stop, “namely going off the right side of 

the roadway while making a left turn * * * [t]his is visible at approximately one minute twenty 

five seconds (1:25) on [the video].”

{¶9} Mr. Howard argues that the video belies the municipal court’s finding that he 

committed a traffic violation. Trooper Custer testified, however, that the violation was not 

captured by the dash camera, which the municipal court found credible. As Mr. Howard’s vehicle 
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re-enters the view of the dash camera as the trooper turned onto Fry Road to follow him, Mr. 

Howard’s vehicle is on the far right side of the roadway and the back of the vehicle bounces in a 

way that is consistent with part of the vehicle coming back onto the roadway. Accordingly, upon 

review of the record, Mr. Howard has not established that the municipal court’s factual findings 

are not supported by competent credible evidence.

{¶10} Mr. Howard also argues that he could not commit a marked lanes violation on Fry 

Road because it is not divided into two or more clearly marked lanes for traffic. Mr. Howard 

appears to mistakenly believe that the roadway in question must have multiple lanes headed in the 

same direction. Section 4511.33(A), however, indicates that it applies whenever a roadway “has 

been divided into two or more clearly marked lanes for traffic” or whenever “traffic is lawfully 

moving in two or more substantially continuous lines in the same direction[.]” Fry Road is 

divided into multiple lanes, one for northbound traffic and one for southbound traffic, which are 

separated by a double yellow line. As the State has argued, although there was no fog line along 

the right side of the road, a vehicle travelling partially off the roadway would not be driving 

“entirely within a single lane or line of traffic” as required by Section 4511.33(A)(1). 

{¶11} Mr. Howard has also challenged the credibility of Trooper Custer, particularly how 

the trooper ended up behind him as he was turning on to Fry Road. Mr. Howard argues that the 

trooper was not just on routine patrol but spotted a vehicle that looked like his as it exited the 

parking lot of a bar and decided to follow him. The trooper lost the vehicle at one point and had 

to travel at 100 miles per hour in order to catch up. The municipal court, however, was in the best 

position to evaluate whether Trooper Custer was credible when he testified that he saw Mr. Howard 

commit a marked lanes violation. 
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{¶12} Upon review of the record, we conclude that the municipal court did not err when 

it determined that the trooper had reasonable articulable suspicion to initiate a traffic stop. 

Accordingly, Mr. Howard has not established that the trial court incorrectly denied his motion to 

suppress. Mr. Howard’s assignment of error is overruled.

III.

{¶13} Mr. Howard’s assignment of error is overruled. The judgment of the Wayne 

County Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County 

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A 

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL

FOR THE COURT
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TEODOSIO, P. J.

CALLAHAN, J.

CONCUR.

APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

DAVID R. LUTZ, Prosecuting Attorney, and SHANNON PARKER, Assistant Prosecuting 

Attorney, for Appellee.