[Cite as State v. Johnson , 2022

- Ohio

- 3051.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. William B. Hoffman, P.J.

Plaintiff

- Appellee : Hon. John W. Wise, J.

: Hon. Patricia A. Delaney, J.

- vs

- :

: Case No. 21CA62

:

ALAYAS JOHNSON :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County Court

of Common Pleas, Case No.

2020CR733R

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: August 31, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

GARY BISHOP DARIN AVERY

RICHLAND CO. PROSECUTOR 105 Sturges Ave.

VICTORIA MUNSON Mansfield, OH 44903

38 South Park St., 2nd Floor

Mansfield, OH 44902Richland County, Case No. 21CA62 2

Delaney, J.

{¶1} Appellant Alayas Johnson appeals from the August 4, 2021 Sentencing

Entry of the Richland County Court of Common Pleas, incorporating the trial court’s May

6, 2021 decision overruling his motion to suppress. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on October 30, 2020, around 4:24 p.m., when Trooper

Dickerson of the Ohio State Highway Patrol (OSHP) was monitoring northbound traffic on

Interstate 71 at Mile Post 174. Dickerson is a criminal interdiction officer and has a K

- 9

with him for the purpose of “removing the criminal aspect from the roadways,” which

includes enforcing traffic laws. T. 12. Dickerson received additional training in K

- 9

handling and detection of narcotics and illegal substances. Dickerson and his K

- 9,

Danny, are certified as a team to work together as partners.

{¶3} Dickerson testified to his understand ing of R.C. 4511.34, the traffic statute

which prohibits following too closely. Dickerson testified enforcement depends upon road

conditions and traffic density; his general “rule of thumb” is one car for every 10 miles

per hour. In other words, if the speed limit is 70 mph, a driver should be at least six

or seven car lengths in following distance from other vehicles to safely avoid any sudden

hazard in the roadway. Dickerson has experience in enforcing the statute and has cited

drivers for violations in the past.

{¶4} Dickerson was in a marked OSHP vehicle sitting in the median of the

highway. He observed a white 4

- door Chevy with Florida license plates in the middle

lane, traveling at 70 mph. The vehicle slowed as it passed the trooper, which is not

unusual, he testified. Dickerson further testified the driver’s seat was leaned far back, hisRichland County, Case No. 21CA62 3

“shoulder was up behind the B

- pillar, which is where the seat belt comes out, appearing

to try to hide from me.” T. 28. Dickerson testified this behavior by the driver was “not

normal” and therefore caught his attention. T. 28. Dickerson checked the vehicle’s speed

with a calibrated laser device.

{¶5} Dickerson’s dash cam video of the ensuing traffic stop was entered into

evidence at the suppression hearing as appellee’s Exhibit A. Dickerson manually turned

on the camera after the driver changed lanes. The video show the driver pull into the lane

behind a pickup truck pulling a trailer; the driver was approximately two car lengths behind

the trailer. Dickerson pulled out of the median and followed the Chevy. He believed the

Chevy was attempting to evade him because of a lane change when there was no reason

to do so. The driver then moved back to the middle lane and was two car lengths behind

the vehicle in front of him. At 70 mph, a safe distance would have been seven car lengths,

in Dickerson’s estimation.

{¶6} At this point, Dickerson initiated a traffic stop. He testified this decision was

based upon the following

- too

- close violation and also the unsafe lane change; the driver

changed lanes in front of an SUV in a manner which caused the SUV to slow its speed

and follow too close.

{¶7} The vehicle pulled over and Dickerson approached the passenger side. He

identified appellant as the driver and sole occupant. Appellant advised Dickerson

immediately that he did not have an ID or operator’s license. The Chevy was a rental car,

but appellant advised his brother rented the vehicle and appellant was not in possession

of the rental agreement. Dickerson asked appellant about his travel plans and appellant

said he had just been released from prison and was traveling from Oklahoma to New YorkRichland County, Case No. 21CA62 4

to see his mother. Dickerson told appellant why he was stopped and appellant

acknowledged he was nervous when he saw the trooper. Dickerson observed a lot of

trash inside the vehicle, and appellant said he had been driving alone for two days.

Dickerson concluded appellant was attempting to get somewhere fast, driving

continuously and not stopping overnight, based upon the amount of debris in the vehicle.

{¶8} Dickerson asked appellant to exit the vehicle and he did so without incident.

Appellant asked if he could smoke a cigarette, which Dickerson perceived as evidence

he was nervous or afraid he would not be able to smoke if he was arrested. Dickerson

patted appellant down for weapons and found none. He secured appellant in the front

seat of his patrol car. Appellant repeatedly pleaded for Dickerson not to tow the vehicle,

but also conceded he is not on the rental agreement. When asked why his operator’s

license was suspended, appellant responded that he had unpaid traffic citations in

Oklahoma.

{¶9} Based on his interaction with appellant, Dickerson suspected criminal activity

and deployed his K

- 9, Danny, to sniff the vehicle. Danny did not alert on the vehicle.

Dickerson told appellant he could not permit him to drive away in the vehicle because

he had no operator’s license and Dickerson had not yet been able to confirm his identity.

Dickerson eventually confirmed appellant did not have a valid operator’s license. Via

Oklahoma dispatch, he submitted appellant’s name and date of birth, requesting a

criminal history. During conversation appellant then provided a Nevada ID number.

Around 4:35 p.m., dispatch identified an individual corresponding to the ID number

provided by appellant.Richland County, Case No. 21CA62 5

{¶10} In the meantime, Dickerson’s supervisor arrived on scene and sat with

appellant in the cruiser as Dickerson ran Danny along the outside of the rental car.

Dickerson first asked appellant if there was anything in the vehicle and appellant said no.

Appellant’s hesitation in answering also added to the trooper’s suspicion. Danny did not

alert on the rental car, and was again secured in the trooper’s cruiser.

{¶11} Dickerson returned to appellant and Mirandized him. He then asked if there

was anything illegal in the car, and appellant stated he had half a pound of marijuana in

the trunk. Dickerson advised his supervisor, who noted he had observed loose pills in

the vehicle.

{¶12} After a brief search at the scene, troopers located the following items in the

vehicle: small packaged zipper bags of ecstasy and LSD, a loaded pistol between the

center console and driver’s seat, and a Mason jar of marijuana in the trunk. The vehicle

was later driven to an OSHP post by a trooper where it was inventoried and towed.

Dickerson testified that any time contraband is found on a traffic stop during criminal

interdiction, the vehicle is more thoroughly searched at the post so the search is not

conducted on the roadside.

{¶13} Upon cross

- examination, Dickerson testified that prior to his observation of

appellant on 71, his supervisor told him to watch out for a northbound rental car.

Dickerson acknowledged that the circumstances of appellant’s position in a rental car

aroused his suspicion, but also testified that he observed appellant commit an unsafe

lane change and follow another vehicle too closely. Dickerson acknowledged there were

other vehicles on the video which were too following too closely in his estimation, but hisRichland County, Case No. 21CA62 6

focus was on appellant’s vehicle. In the trooper’s opinion, appellant was closer to the

vehicle in front of him than was reasonable and prudent for traffic conditions.

{¶14} Appellant was charged by indictment upon the following counts: trafficking

in marijuana pursuant to R.C. 2925.03(A)(2) and R.C. 2925.03(C)(3)(d), a felony of the

third degree [Count I]; possession of marijuana in an amount greater than one thousand

grams but less than five thousand grams pursuant to R.C. 2925.11(A) and R.C.

2925.11(C)(3)(d), a felony of the third degree [Count II]; aggravated trafficking

(methamphetamine) pursuant to R.C. 2925.03(A)(2) and R.C. 2925.03(C)(1)(c), a felony

of the third degree [Count III]; aggravated drug possession (methamphetamine) pursuant

to R.C. 2925.11(A) and R.C. 2925.11(C)(1)(b), a felony of the third degree [Count IV];

aggravated drug trafficking (clonazolam) pursuant to R.C. 2925.03(A)(1) and R.C.

2925.03(C)(1)(a), a felony of the fourth degree [Count V]; aggravated drug possession

pursuant to R.C. 2925.11(A) and R.C. 2925.11(C)(1)(a), a felony of the fifth degree [Count

VI]; improperly handling firearms in a motor vehicle pursuant to R.C. 2923.16(B) and R.C.

2923.16(I), a felony of the fourth degree [Count VII]; and carrying a concealed weapon

pursuant to R.C. 2923.12(A)(2) and R.C. 2923.12(F)(1), a felony of the fourth degree

[Count VIII]. The indictment also contained multiple firearm specifications, specifications

for forfeiture of a gun in a drug case, and specifications for forfeiture of money in a drug

case. Appellant entered pleas of not guilty.

{¶15} On February 5, 2021, appellant filed a motion to suppress evidence seized

during the traffic stop. The matter proceeded to evidentiary hearing on April 30, 2021,

and the trial court overruled the motion to suppress by judgment entry dated May 6, 2021.Richland County, Case No. 21CA62 7

{¶16} On August 4, 2021, appellant withdrew his pleas of not guilty and entered

ones of no contest upon Counts II, III, VI, VII, and VIII. The remaining counts were

dismissed. Appellant was ordered to serve a total aggregate prison term of two and a

half years.

{¶17} Appellant now appeals from the trial court’s judgment entry of conviction

and sentence, incorporating its judgment entry overruling the motion to suppress.

{¶18} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THAT R.C.

4511.34 IS UNCONSTITUTIONALLY VOID FOR VAGUENESS.”

{¶20} “II. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT

COMMITTED A TRAFFIC VIOLATION.”

{¶21} “III. THE TRIAL COURT ERRED IN OVERRULING JOHNSON’S MOTION

TO SUPPRESS.”

ANALYSIS

I., II.

{¶22} Appellant’s first two assignments of error are related and will be considered

together. In his first assignment of error, appellant argues R.C. 4511.34, the statute which

proscribes following too closely, is unconstitutionally void for vagueness. Appellant

further argues in his second assignment of error that the trial court erred in finding

appellant committed a traffic violation based upon an unconstitutional statute. We

disagree.Richland County, Case No. 21CA62 8

{¶23} Appellant was traffic

- stopped by the trooper because he was observed

committing a violation of R.C. 4511.34(A), the traffic code section which proscribes

following too closely. The section states in pertinent part: “The operator of a motor vehicle

* * * shall not follow another vehicle * * * more closely than is reasonable and prudent,

having due regard for the speed of such vehicle * * * and the traffic upon and the condition

of the highway.”

{¶24} In the instant case, Dickerson testified appellant was traveling around 70

mph and was approximately two car lengths behind the vehicle in front of him. At that

speed, a safe distance would have been seven car lengths, in Dickerson’s estimation,

and appellant was therefore following more closely than was reasonable and prudent for

the conditions. Dickerson also testified that appellant made an unsafe lane change,

pulling in front of an SUV in a manner which caused the SUV to be following too closely.

Dickerson testified to the traffic violations and narrated his dashcam video, which was

admitted into evidence at the suppression hearing as appellee’s Exhibit A. The trial court

noted in the judgment entry that it observed two traffic violations on the video. 1

{¶25} Appellant asserts, however, that R.C. 4511.34 is unconstitutionally void for

vagueness and cannot be the basis for a constitutional traffic stop. Upon our review of

the record, appellant did not raise this constitutional argument before the trial court.

Appellant may not raise a constitutional argument for the first time on appeal. In re L.Z.

,

5th Dist. No. 15

- CA

- 36, 2016

- Ohio

- 1337, 61 N.E.3d 776, ¶ 29. Generally, a constitutional

1 Appellant’s traffic citation is not in the record before us. The record indicates appellant’s

traffic charges were bound over to Common Pleas court from municipal court, and the

traffic charges were driving under suspension and following too close under Mansfield

Municipal Court case number 2020TRD06595.Richland County, Case No. 21CA62 9

argument that is not raised in the trial court is “waived and cannot be raised for the first

time on appeal.” State v. Brewer, 2nd Dist. Montgomery No. 26153, 2015

- Ohio

- 693, 2015

WL 848406, ¶ 36. We may still “consider constitutional challenges to the application of

statutes in specific cases of plain error or where the rights and interests involved may

warrant it.” Id., citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

{¶26} Notwithstanding the issue of waiver, we find appellant's constitutional

arguments to be unpersuasive. We first note statutes enjoy a strong presumption of

constitutionality. State v. Galloway, 5th Dist., 2015

- Ohio

- 4949, 50 N.E.3d 1001, ¶ 18. “An

enactment of the General Assembly is presumed to be constitutional, and before a court

may declare it unconstitutional it must appear beyond a reasonable doubt that the

legislation and constitutional provisions are clearly incompatible.” State v. Cook, 83 Ohio

St.3d 404, 409, 700 N.E.2d 570 (1998), superseded by statute on other grounds

, citing

State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph

one of the syllabus. Additionally, statutes and rules are to be construed so as to avoid

unreasonable or absurd results. State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio

St.3d 262, 2005

- Ohio

- 6432, 838 N.E.2d 658, ¶ 28.

{¶27} Appellant’s void

- for

- vagueness argument in the context of R.C. 4511.34 has

been examined repeatedly and overruled. See, e.g., State v. Bush

, 92 Ohio Law Abs.

63, 193 N.E.2d 195, 196 (7th Dist.1962); State v. Gonzalez

, 43 Ohio App.3d 59, 539

N.E.2d 641 (6th Dist.1987); City of Cleveland v. Chebib

, 8th Dist. Cuyahoga No. 73073,

1998 WL 398216, *2; State v. Quinones

, 7th Dist. Mahoning No. 02 CA 243, 2003

- Ohio

6727, ¶ 36; State v. Maga

, 2nd Dist. Montgomery No. 21998, 2008

- Ohio

- 423, ¶ 55.Richland County, Case No. 21CA62 10

{¶28} Appellant argues the trial court should have sustained the motion to

suppress because the stop was premised upon an unconstitutional statute. Having

overruled appellant’s constitutional argument, we further find the stop was permissible.

A police officer may perform an investigatory stop under certain circumstances. The

Fourth Amendment to the United States Constitution prohibits warrantless searches and

seizures, rendering them per se unreasonable unless an exception applies. Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or

Terry stop, is a common exception to the Fourth Amendment warrant requirement. Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the “balance between

the public interest and the individual's right to personal security” tilts in favor of a standard

less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's

action is supported by reasonable suspicion to believe that criminal activity “may be

afoot.” United States v. Brignoni

– Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d

607 (1975); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1

(1989).

{¶29} In Terry, the Supreme Court held that a police officer may stop an individual

if the officer has a reasonable suspicion based upon specific and articulable facts that

criminal behavior has occurred or is imminent. See, State v. Chatton, 11 Ohio St.3d 59,

61, 463 N.E.2d 1237 (1984). The Ohio Supreme Court has emphasized that probable

cause is not required to make a traffic stop; rather the standard is reasonable and

articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 2008

- Ohio

- 4539, 894 N.E.2d

1204, ¶ 23.Richland County, Case No. 21CA62 11

{¶30} The propriety of an investigative stop must be viewed in light of the totality

of the circumstances surrounding the stop “as viewed through the eyes of the reasonable

and prudent police officer on the scene who must react to events as they unfold.” State

v. Andrews, 57 Ohio St.3d 86, 87

– 88, 565 N.E.2d 1271 (1991); State v. Bobo, 37 Ohio

St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States has

reemphasized the importance of reviewing the totality of the circumstances in making a

reasonable

- suspicion determination:

When discussing how reviewing courts should make

reasonable

- suspicion determinations, we have said repeatedly that

they must look at the “totality of the circumstances” of each case to

see whether the detaining officer has a “particularized and objective

basis” for suspecting legal wrongdoing. This process allows officers

to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information

available to them that “might well elude an untrained person.”

Although an officer's reliance on a mere “hunch” is insufficient to

justify a stop, the likelihood of criminal activity need not rise to the

level required for probable cause, and it falls considerably short of

satisfying a preponderance of the evidence standard.

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151

L.Ed.2d 740 (2002), citing United States v. Cortez, 449 U.S. 411,

417

– 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).Richland County, Case No. 21CA62 12

{¶31} Traffic stops based upon an officer's observation of a traffic violation are

constitutionally permissible. State v. Myers

, 2021

- Ohio

- 4087, 180 N.E.3d 98, ¶ 25 (5th

Dist.), citing Dayton v. Erickson, 76 Ohio St.3d 3, 11

– 12, 665 N.E.2d 1091 (1996). In the

instant case, the trooper observed appellant commit the offense of following too closely

and made an unsafe lane change.

{¶32} Appellant argues the instant case is similar to State v. Woods

, 5th Dist. No.

18

- CA

- 13, 2018

- Ohio

- 3379, 117 N.E.3d 1017, a state’s appeal of a trial court’s decision

to grant a motion to suppress. In Woods, the defendant was stopped for following too

close but the trial court found no traffic violation was committed because the defendant

was braking to maintain distance from cars in front of him as other vehicles merged into

his lane as they spotted the police car monitoring traffic. Id. at ¶ 17. The trial court also

found that the dashcam video contradicted the trooper’s testimony. Id. at ¶ 18. We noted

that we are bound to accept the factual findings of the trial court if they are supported by

competent, credible evidence. Id., citing State v. Fanning

, 1 Ohio St.3d 19, [20], 437

N.E.2d 583 (1982). We agreed with the trial court’s conclusion regarding the absence of

a traffic violation in Woods because the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. Id., citing State v. DeHass

, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; additional citations

omitted.

{¶33} Woods is inapposite from the instant case, however, because there is no

discrepancy between the trooper’s testimony and the dashcam video; the trial court heard

the testimony, viewed the video, and found appellant committed two traffic violations.

Upon our review of the record we find the factual findings of the trial court are supportedRichland County, Case No. 21CA62 13

by competent, credible evidence. We conclude appellant has not established R.C.

4511.34 is unconstitutional; the trooper made a valid stop based upon the statute; and

the trial court’s findings are supported by clear and convincing evidence.

{¶34} Appellant’s first and second assignments of error are not well

- taken and are

overruled.

III.

{¶35} In his third assignment of error, appellant argues the trial court should have

granted his motion to suppress. We disagree.

{¶36} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long

, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks

, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf

, 111 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision meets the applicable legal standard. State

v. Williams

, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

{¶37} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trialRichland County, Case No. 21CA62 14

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning

, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein

, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See

, Williams

, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court’s conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry

,

95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).

{¶38} In the instant case, appellant argues first that the traffic stop was illegal for

the reasons cited supra in his first and second assignments of error, therefore all evidence

flowing from the stop must be suppressed. In light of our overruling of those arguments,

we further find the trial court did not err in overruling the motion to suppress based upon

the traffic stop.

{¶39} Appellant further argues, however, that evidence seized as a result of an

improper vehicle inventory should also be suppressed. We note the evidentiary hearing

was limited to the grounds of appellant’s motion: whether the traffic stop was supported

by reasonable and articulable suspicion. T. 5

- 8. Any issue pertaining to the inventory of

appellant’s vehicle was not explored at the suppression hearing, and the record before

us indicates only that the vehicle was moved to the OSHP post and later inventoried there.

Evidence was ultimately found in this case that is not mentioned in the record before us,

to wit, methamphetamine, six pounds of marijuana, and a pump

- action shotgun. It is notRichland County, Case No. 21CA62 15

clear from the record, or from appellant’s argument, which pieces of evidence were found

during the inventory. The basis for appellant’s challenge to the inventory is not in

evidence and the inventory was not at issue in the suppression hearing.

{¶40} Arguments not raised at the suppression hearing may not be asserted for

the first time on appeal. State v. Neale

, 5th Dist. Stark No. 2013CA00247, 2014

- Ohio

4368, ¶ 29, citing State v. Bing

, 134 Ohio App.3d 444, 449, 731 N.E.2d 266 (9th

Dist.1999).

{¶41} We conclude appellant has not demonstrated the trial court erred in

overruling his motion to suppress. Appellant’s third assignment of error is overruled.

CONCLUSION

{¶42} Appellant’s three assignments of error are overruled and the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.