[Cite as State v. Arnold, 2012-Ohio-5809.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

JOHN B. ARNOLD 

 Appellant 

C.A. No. 12CA0043-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

WADSWORTH MUNICIPAL COURT 

COUNTY OF MEDINA, OHIO 

CASE Nos. 11-TRC-05000-A 

11-TRC-05000-B 

DECISION AND JOURNAL ENTRY

Dated: December 10, 2012 

 

MOORE, Presiding Judge. 

{¶1} Defendant, John B. Arnold, appeals from the judgment of the Wadsworth 

Municipal Court. This Court affirms. 

I. 

{¶2} In the early morning hours of October 12, 2011, Mr. Arnold was driving on 

Seville Road in Wadsworth. Officer Dan Shunk, of the Wadsworth Police Department, was also 

traveling on Seville Road, approaching Mr. Arnold’s car from behind. Officer Shunk observed 

Mr. Arnold’s car traveling toward the left of his lane and drive upon the center lane markings. 

Officer Shunk initiated a traffic stop on Mr. Arnold. After ascertaining Mr. Arnold’s identity, he 

discovered that Mr. Arnold’s driver’s license had been suspended. Further, based upon Mr. 

Arnold’s driving and Officer Shunk’s ensuing discussion with, and observations of, Mr. Arnold, 

the officer requested that Mr. Arnold perform sobriety tests. Mr. Arnold refused. Ultimately, the 

officer placed Mr. Arnold under arrest. Once they arrived at the police station, the officer 
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requested Mr. Arnold to perform a breathalyzer test, and he read to Mr. Arnold from a BMV 

form pertaining in part to the effect of refusing the breathalyzer test. Officer Shunk read this 

form three times to Mr. Arnold, who each time maintained that he did not understand what the 

form meant. Officer Shunk ultimately cited Mr. Arnold with weaving in violation of the 

Wadsworth Code of Ordinances (“Loc.Ord.”) 73.08, failure to reinstate a license in violation of 

R.C. 4510.21(A), refusal of chemical test in violation of R.C. 4511.19(A)(2), and OVI in 

violation of R.C. 4511.19(A)(1)(a). Mr. Arnold entered not guilty pleas to all of the charges. 

{¶3} Prior to trial, Mr. Arnold changed his plea to no contest on the charge of failure to 

reinstate his license, and he was found guilty on that count by the trial court. The case proceeded 

to jury trial on the refusal of a chemical test and OVI charges, and the jury returned guilty 

verdicts on these counts. The trial court decided the weaving charge, finding Mr. Arnold not 

guilty. The trial court sentenced Mr. Arnold to a total of ninety days of incarceration, together 

with a fine and costs. 

{¶4} Mr. Arnold timely appealed from the sentencing entry and presents one 

assignment of error for our review. 

II. 

ASSIGNMENT OF ERROR

[MR. ARNOLD] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL 

WHEN TRIAL COUNSEL FAILED TO MOVE TO SUPPRESS EVIDENCE 

THAT CLEARLY WOULD HAVE BEEN SUPPRESSED HAD TRIAL 

COUNSEL REQUESTED A SUPPRESSION HEARING. 

{¶5} In his sole assignment of error, Mr. Arnold argues that his trial counsel was 

ineffective for failing to move to suppress the evidence. We disagree. 

{¶6} We must analyze claims of ineffective assistance of counsel under a standard of 

objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984); State v. 
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Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1) 

deficiency in the performance of counsel “so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by 

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland at 687. A 

defendant must demonstrate prejudice by showing that, but for counsel's errors, there is a 

reasonable possibility that the outcome of the trial would have been different. Id. at 694. In 

applying this test, “a court must indulge a strong presumption that counsel's conduct falls within 

the wide range of reasonable professional assistance[.]” Id. at 689. This Court need not address 

both the deficiency and the prejudice prongs of Strickland if an appellant fails to prove either 

one. State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, ¶ 10. 

{¶7} Here, Mr. Arnold contends that his trial counsel was ineffective in failing to file a 

motion to suppress evidence on the basis that the initial stop of his vehicle was not justified. Mr. 

Arnold claims he was prejudiced by this failure because he contends that the evidence obtained 

as a result of the stop would have been excluded by the trial court had the motion been filed. 

{¶8} The Fourth Amendment to the United States Constitution and Article I, Section 

14, of the Ohio Constitution prohibit law enforcement from conducting unreasonable and 

warrantless searches and seizures. Courts are required to exclude evidence obtained by means of 

searches and seizures that are found to violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 

643, 657 (1961). 

{¶9} A police-initiated stop of an automobile is a seizure under the Fourth Amendment 

and falls within the purview of Terry v. Ohio, 392 U.S. 1 (1968). See Delaware v. Prouse, 440 

U.S. 648, 653, 663 (1979). To justify a traffic stop under the Fourth Amendment, officers must 

possess a reasonable suspicion of criminal activity. See Terry, 392 U.S. at 21. 
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{¶10} Here, the officer stopped Mr. Arnold based upon his alleged violation of Loc.Ord. 

73.08, which prohibits driving in a weaving course: 

(A) No person shall operate a motor vehicle upon any street or highway in a 

weaving or zigzag course unless such irregular course is necessary for safe 

operation or to be [in] compliance with law. 

(B) Whoever violates this section is guilty of operating a motor vehicle in a 

weaving course, a minor misdemeanor. 

{¶11} At trial, Officer Shunk testified that, on the date at issue, he observed Mr. 

Arnold’s car travel “left in its lane and its driver’s side tires traveled on the double yellow line.” 

Based upon these observations, the officer initiated the traffic stop. The State produced video 

recorded from Officer Shunk’s dashboard camera that contains footage of the officer following 

and stopping Mr. Arnold. 

{¶12} When deciding whether Mr. Arnold was guilty of the weaving offense, the trial 

judge referenced the video, and it determined that it could not see Mr. Arnold travelling in a 

“zig-zagging course.” Further, based upon the officer’s testimony, which referenced the 

weaving offense only insomuch as to state that Mr. Arnold’s car traveled left in the lane and 

upon the center lane markings, the trial court determined that this did not prove beyond a 

reasonable doubt that Mr. Arnold drove in a “zig-zagging course.” In making this determination, 

the trial court stated: 

So I’m going to find -- now, so there’s no question, that is reasonable or particular 

suspicion to stop a vehicle. Don’t get me wrong, that is. But I don’t find it’s 

beyond a reasonable doubt a weaving course, so I’m going to find him not guilty 

of a weaving course. 

{¶13} Mr. Arnold argues that, because the trial court found him not guilty on the 

weaving charge, had trial counsel moved to suppress evidence on the basis that the stop was not 

justified, the motion would have been successful, and the resulting evidence excluded. However, 

as noted by the trial court, the not guilty verdict on the weaving charge indicates that the State 
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did not prove the violation beyond a reasonable doubt at trial. It does not, however, establish 

that the officer lacked a reasonable suspicion at the time of the stop that Mr. Arnold was 

committing a traffic offense. See State v. Fejes, 9th Dist. No. 96CA0088, 1997 WL 600681, *1 

(Sept. 17, 1997), quoting State v. Trbovich, 9th Dist. No. 17613, 1996 WL 364816, *2 (July 3, 

1996) (“A reasonable suspicion is something less than probable cause”), and State v. Yeagley, 

9th Dist. No. 96CA0022, 1996 WL 490259, *1 (Aug. 28, 1996) (“Probable cause is proof less 

than that beyond a reasonable doubt or by a preponderance of the evidence; it is only the 

probability, and not a prima facie showing, of criminal activity * * *.” (Citations and quotation 

omitted.)); see also State v. Ragle, 9th Dist. No. 25706, 2012-Ohio-4253, ¶ 26 (“The amount of 

evidence necessary for probable cause to suspect a crime is being committed is less evidence 

than would be necessary to support a conviction of that crime at trial.” (Quotations omitted.)). 

Mr. Arnold’s argument is premised upon the assertion that had a suppression hearing taken 

place, the trial court would have determined that there was no reasonable articulable suspicion to 

initiate the stop. However, given the trial court’s specific statement otherwise, Mr. Arnold’s 

argument lacks merit. 

{¶14} Accordingly, Mr. Arnold has failed to demonstrate that the outcome of the trial 

would have been different but for the alleged deficient performance of trial counsel. Therefore, 

his sole assignment of error is overruled. 

III. 

{¶15} Mr. Arnold’s assignment of error is overruled, and the judgment of the 

Wadsworth Municipal Court is affirmed. 

Judgment affirmed. 
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 There were reasonable grounds for this appeal. 

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

Municipal Court, County of Medina, 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. 

 

 CARLA MOORE 

 FOR THE COURT 

BELFANCE, J. 

CONCURS.

DICKINSON, J. 

CONCURRING IN JUDGMENT ONLY.

{¶61} Inasmuch as Mr. Arnold’s lawyer did not file a motion to suppress, we do not 

know in this direct appeal from his conviction what evidence the State would have presented at a 

hearing on a motion to suppress. Accordingly, it is impossible for Mr. Arnold to satisfy the 

second prong of an ineffective assistance of counsel claim, and his assignment of error is 

correctly overruled. State v. Davis, 9th Dist. No. 25680, 2012-Ohio-788, ¶ 10. 
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APPEARANCES:

MICHAEL V. REPELLA, II, Attorney at Law, for Appellant. 

PAGE C. SCHROCK, III, Attorney at Law, for Appellee.