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State v. Marcum

Court of Appeals of Ohio, Fifth District

June 21, 2013

STATE OF OHIO Plaintiff - Appellant
v.
MELISSA D. MARCUM Defendant-Appellee

Appeal from the Licking County Municipal Court Case No. 12TRC10130

For Plaintiff-Appellant, J. MICHAEL KING Assistant Prosecutor

For Defendant-Appellee, DENNIS P. EVANS, Connor, Evans and Hafenstein, LLP

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Plaintiff-appellant State of Ohio appeals from the November 21, 2012 Judgment Entry of the Licking Municipal Court granting the Motion to Suppress filed by defendant-appellee Melissa D. Marcum.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 9, 2012, appellee was stopped and charged with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(2) and/or (A)(1)(a) and a marked lanes violation in violation of R.C. 4511.33. Appellee entered a plea of not guilty to the charges.

{¶3} On September 13, 2012, appellee filed a Motion to Dismiss/Suppress. Appellee, in her motion, argued, in part, that there was no reasonable, articuable suspicion justifying the stop of her vehicle. A hearing on appellee's motion was held on October 25, 2012.

{¶4} At the hearing, Ohio State Highway Patrol Trooper J.D. Thaxton testified that on September 9, 2012, he was in uniform in a marked cruiser. The Trooper testified that he was traveling northbound on Taylor Road in the City of Pataskala at approximately 1:01 a.m. when he saw appellee's vehicle go over the solid white fog line on the right and then over the double yellow pavement line on the left. Trooper Thaxton further testified that the video recording device on his cruiser did not capture the vehicle driving over the white fog line because of a small grade in the roadway. However, he testified that he was able to see the vehicle's tires on the right hand side completely cross over the white line. The Trooper testified that the cruiser's video did capture appellee's action in crossing over the solid yellow line to the left into an area containing cross-hatched markings. The video was admitted as an exhibit at the hearing.

{¶5} On cross-examination, Trooper Thaxton testified that, with respect to the alleged white line violation, the entire tire width was over the white line. He agreed with defense counsel that, in the area where appellee went over the white line, there was grass right next to the white line rather than a flat berm. On redirect, he testified that there was no doubt in his mind that some portion of appellee's right tire went over the right line and that there was no doubt in his mind that appellee's tire went completely over the yellow lane line.

{¶6} Trooper Thaxton initiated a traffic stop of appellee's vehicle and she was subsequently arrested for operating a motor vehicle while under the influence of alcohol.

{ΒΆ7} Pursuant to a Judgment Entry filed on November 21, 2012, the trial court granted appellee's Motion to Suppress. The trial court, in its Judgment Entry, stated that after viewing the video, it was not convinced that appellee drove completely over the white line and that while appellee did drive on the white line, driving on the white line was not a violation of R.C. 4511.33. The trial court further found that appellee did not completely cross over the double yellow lines and that, therefore, there was no ...


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