[Cite as State v. Bennett, 2011-Ohio-4527.]

COURT OF APPEALS 

GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDAVID BENNETT 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2010-CA-34 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge 

Municipal Court, Case No. 10TRC01936 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 6, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

RONALD C. COUCH WILLIAM F. FERGUSON 

121 West Eighth Street 134 Southgate Parkway 
Cambridge, OH 43725 Cambridge, OH 43725-2324 

Gwin, P.J. 

{¶1} Defendant-appellant David A. Bennett appeals the July 2, 2010 Judgment 

Entry of the Cambridge Municipal Court overruling his motion to suppress evidence. 

Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On April 6, 2010 at approximately 6:24 p.m. Sergeant Mark Glennon of the 

Ohio State Highway Patrol was on duty, in uniform and in a marked vehicle patrolling on 

S.R. 209 in Guernsey County, Ohio. 

{¶3} Sergeant Glennon was on S.R. 209 traveling eastbound. That area is a 

four lane area of highway with two lanes going east and two lanes going west. Sergeant 

Glennon was behind the vehicle being driven by appellant. As appellant’s vehicle 

crossed a set of railroad tracks, a part of the vehicle's exhaust system fell off and went 

to the right side of the roadway. Appellant's vehicle moved over to the right lane of S.R. 

209 without using a turn signal. Appellant’s vehicle then made a right-hand turn onto 

Country Club Road and again did not use a turn signal. 

{¶4} Based upon the failure of the appellant to utilize a turn signal on two 

separate occasions and further upon observation of a portion of appellant's muffler 

falling off of appellant's vehicle, Sergeant Glennon decided to stop appellant's vehicle. 

{¶5} Appellant was subsequently charged with one count of a per se violation 

of R.C. 4511.19(A) (1) (D) [Operating a Vehicle While under the Influence of Alcohol or 

Drugs, a.k.a. OVI]; one count of OVI in violation of R.C. 4511.19(A) (1) (a), one count of 

Operating a Motor Vehicle Without a Valid License in violation of R.C. 4510.12(A)/ 
Failure to reinstate a license in violation of R.C. 4510.21 and one count of having a 

defective exhaust system in violation of R.C. 4513.22(A). 

{¶6} On June 25, 2010, defendant-appellant filed a motion to suppress. On 

June 29, 2010 appellant filed a written consent to have the motion heard by a 

Magistrate. A hearing on appellant's motion to suppress evidence was held before the 

Magistrate on June 29, 2010. By Judgment Entry filed June 30, 2010 the Magistrate 

overruled appellant’s motion to suppress. The trial court approved and adopted the 

decision of the Magistrate by Judgment Entry filed July 2, 2010. 

{¶7} On August 24, 2010 appellant pled no contest to one count of OVI in 

violation of R.C. 4511.19(A)(1)(a) and one count of driving under suspension for having 

failed to reinstate his license in violation of R.C. 4510.21. The state dismissed the 

remaining charges. The trial court sentenced appellant to sixty days in jail, six hundred 

dollars and court costs on the OVI count and ten days in jail, two hundred fifty dollars 

and costs on the driving under suspension count. The trial court suspended fifty jail 

days on the OVI count and ran the jail time for both charges concurrent. The trial court 

further suspended appellant’s driver’s license for twenty-four months and ordered 

supervised probation for eighteen months. 

{¶8} It is from the trial court’s overruling of his motion to suppress that 

appellant’s has timely appealed raising as his sole assignment of error: 

{¶9} “I. THE COURT ERRED IN FINDING THAT THE ARRESTING OFFICER 

HAD A REASON TO STOP THE DEFENDANT AGAINST THE WEIGHT AND 

SUFFICIENCY OF THE EVIDENCE.” 
I. 

{¶10} In his sole assignment of error, appellant argues the trial court erred in 

finding that Sergeant Glennon had a reasonable articulable suspicion to support his 

stop of the vehicle appellant was driving. We disagree. 

{¶11} At the outset we note that appellant did not object to the decision of the 

Magistrate. Crim. R. 19(D)(3)(b). Crim. R. 19(D)(3)(b)(iv) provides, “Except for a claim of 

plain error, a party shall not assign on appeal the court’s adoption of any factual finding 

or legal conclusion, whether or not specifically designated as a finding of fact or 

conclusion of law under Crim. R 19(D)(3)(a)(ii), unless the party has objected to that 

finding or conclusion as required by Crim. R. 19(D)(3)(b).” 

{¶12} As the United States Supreme Court recently observed in Puckett v. 

United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an error is not 

properly preserved, appellate-court authority to remedy the error (by reversing the 

judgment, for example, or ordering a new trial) is strictly circumscribed. There is good 

reason for this; ‘anyone familiar with the work of courts understands that errors are a 

constant in the trial process, that most do not much matter, and that a reflexive 

inclination by appellate courts to reverse because of unpreserved error would be fatal.’” 

(Citation omitted). 

{¶13} “[A]n appellate court may, in its discretion, correct an error not raised at 

trial only where the appellant demonstrates that (1) there is an error; (2) the error is 

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the 

appellant’s substantial rights, which in the ordinary case means it affected the outcome 

of the district court proceedings; and (4) the error seriously affect[s] the fairness, 
integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24, 

2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks 

and citations omitted). 

{¶14} “We have previously held that if the defendant had counsel and was tried 

by an impartial adjudicator, there is a strong presumption that any other constitutional[l] 

errors that may have occurred are subject to harmless-error analysis. State v. Hill 

(2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 

570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in State v. Perry, 

101 Ohio St.3d 118, 2004- Ohio-297, 802 N.E.2d 643, [c]onsistent with the presumption 

that errors are not structural, the United States Supreme Court ha[s] found an error to 

be structural, and thus subject to automatic reversal, only in a very limited class of 

cases. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 

(1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) 

(complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 

(1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 

598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 

U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self representation at trial); 

Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31(1984) (denial of public 

trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124L.Ed.2d 182 (1993) 

(defective reasonable-doubt instruction). Wamsley, supra 117 Ohio St.3d at 391-392, 

884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Citations and internal quotation marks 

omitted]. 
{¶15} “We emphasize that both this court and the United States Supreme Court 

have cautioned against applying a structural-error analysis where, as here, the case 

would be otherwise governed by Crim.R. 52(B) because the defendant did not raise the 

error in the trial court. See Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274; Johnson, 520 

U.S. at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. This caution is born of sound policy. For 

to hold that an error is structural even when the defendant does not bring the error to 

the attention of the trial court would be to encourage defendants to remain silent at trial 

only later to raise the error on appeal where the conviction would be automatically 

reversed. We believe that our holdings should foster rather than thwart judicial economy 

by providing incentives (and not disincentives) for the defendant to raise all errors in the 

trial court-where, in many cases, such errors can be easily corrected.” 101 Ohio St.3d at 

124, 802 N.E.2d at 649, 2004-Ohio-297 at ¶23. 

{¶16} Thus, the defendant bears the burden of demonstrating that a plain error 

affected his substantial rights and, in addition that the error seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings. United States v. Olano

(1993), 507 U.S. at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 

120 802 N.E.2d 643, 646. Even if the defendant satisfies this burden, an appellate 

court has discretion to disregard the error. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 

759 N.E.2d 1240; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph 

three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646. 

{¶17} The condition that “the error affect the appellant's substantial rights,” 

requires the error to be prejudicial, meaning that there is a reasonable probability that 

the error affected the trial's outcome, not that there is “any possibility,” however remote, 
that the jury could have convicted based exclusively on evidence. Further, to be 

revisable as plain error, the failure to grant the motion to suppress must meet the 

criterion that “the error seriously affect[t] the fairness, integrity or public reputation of 

judicial proceedings.” Puckett, supra, at ----, 129 S.Ct. 1423 (internal quotation marks 

omitted). 

{¶18} Accordingly, we will review appellant’s assignment of error for plain error. 

{¶19} In Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769 the 

United States Supreme Court held: 

{¶20} “The temporary detention of a motorist upon probable cause to believe 

that he has violated the traffic laws does not violate the Fourth Amendment's prohibition 

against unreasonable seizures, even if a reasonable officer would not have stopped the 

motorist absent some additional law enforcement objective.” Whren at 806 116 S.Ct. at 

1771. Less than one month later, the Ohio Supreme Court reached a similar decision in 

City of Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, 1996-Ohio-431. In 

Erickson, the Court stated: 

{¶21} “Where a police officer stops a vehicle based on probable cause that a 

traffic violation has occurred or was occurring, the stop is not unreasonable under the 

Fourth Amendment to the United States Constitution even if the officer had some 

ulterior motive for making the stop, such as a suspicion that the violator was engaging in 

more nefarious criminal activity.” Id. at syllabus. However, 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, 

894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 23. 
{¶22} Based on the above, neither the United States Supreme Court nor the 

Ohio Supreme Court considered the severity of the offense as a factor in determining 

whether the law enforcement official had a reasonable, articulable suspicion to stop a 

motorist. In fact, the Ohio Supreme Court stated that " * * * we conclude that where an 

officer has an articulable reasonable suspicion or probable cause to stop a motorist for 

any criminal violation, including a minor traffic violation, the stop is constitutionally valid 

regardless of the officer's underlying subjective intent or motivation for stopping the 

vehicle in question." (Emphasis added.) City of Dayton v. Erickson, supra at 11-12, 665 

N.E.2d 1091. See, also, State v. Rice, Fifth Dist. No. 2005CA00242, 2006-Ohio-3703 at 

¶33-34; State v. Rice (Dec. 23, 1999), 5th Dist. No. 99CA48. If 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. State v. Mays, supra at ¶ 8. 

{¶23} In Mays, supra the defendant argued that his actions in the case – twice 

driving across the white edge line – were not enough to constitute a violation of the 

driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. The appellant further 

argued that the stop was unjustified because there was no reason to suspect that he 

had failed to first ascertain that leaving the lane could be done safely or that he had not 

stayed within his lane “as nearly as [was] practicable,” within the meaning of R.C. 

4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of 

whether appellant might have a possible defense to a charge of violating R.C. 4511.33 

is irrelevant in our analysis of whether an officer has a reasonable and articulable 

suspicion to initiate a traffic stop. An officer is not required to determine whether 
someone who has been observed committing a crime might have a legal defense to the 

charge.” Id. at ¶ 17. 

{¶24} In the case at bar, appellant argues that the video of the traffic stop shows 

that in fact nothing at all fell off his car and that therefore there was no reason for the 

stop. 

{¶25} However, Sergeant Glennon also testified that he observed two traffic 

violations where the appellant turned on two separate occasions without utilizing a turn 

signal. (T. at 7-8; 12-13). 

{¶26} The judge is in the best position to determine the credibility of witnesses, 

and his conclusion in this case is supported by competent facts. See State v. Burnside

(2003), 100 Ohio St.3d 152, 154-55, 797 N.E.2d 71, 74. The fundamental rule that 

weight of evidence and credibility of witnesses are primarily for the trier of fact applies to 

suppression hearings as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 

N.E.2d 583, 584. The Officer’s testimony represents competent, credible evidence that 

appellant had committed two traffic violations. Therefore, the factual finding of the trial 

court that appellant committed two traffic violations is not clearly erroneous. 

{¶27} Reviewing courts should accord deference to the trial court’s decision 

concerning the credibility of the witnesses because the trial court has had the 

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that 

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St. 

3d 71. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 

1273, the Ohio Supreme Court explained: "[a] reviewing court should not reverse a 

decision simply because it holds a different opinion concerning the credibility of the 
witnesses and evidence submitted before the trial court. A finding of an error in law is a 

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and 

evidence is not." See, also State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1. 

{¶28} We accept the trial court's conclusion that appellant's violation of the traffic 

laws gave Sergeant Glennon reasonable suspicion to stop appellant's vehicle because 

the factual findings made by the trial court are supported by competent and credible 

evidence. Thus, the trial court did not err when it denied appellant's motion to suppress 

on the basis that the initial stop of her vehicle was valid. State v. Busse, Licking App. 

No. 06 CA 65, 2006-Ohio-7047 at ¶ 20. 

{¶29} In the case at bar, we find no plain error affecting appellant's substantial 

rights. 

{¶30} Accordingly, we overrule appellant's sole assignment of error. 

{¶31} For the foregoing reasons, the judgment of the Cambridge Municipal Court 

of Guernsey County, Ohio, is affirmed. 

By Gwin, P.J., 

Farmer, J., and 

Edwards, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 
WSG:clw 0811 HON. JULIE A. EDWARDS 

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DAVID BENNETT : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2010-CA-34 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Cambridge Municipal Court of Guernsey County, Ohio, is affirmed. Costs to 

appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. JULIE A. EDWARDS