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State v. Schneller

Court of Appeals of Ohio, Fifth District

July 8, 2013

STATE OF OHIO Plaintiff-Appellant
v.
ANDREW A. SCHNELLER Defendant-Appellee

Appeal from the Alliance Municipal Court, Case No. 2012TRC03098

For Plaintiff-Appellee SHAWN O. ROBERTSON W Alex J. Robertson & Associates

For Defendant-Appellant ILLIAM F. MORRIS Alliance City Prosecutor

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

Hoffman, J.

{¶1} Plaintiff-appellant the state of Ohio appeals the December 26, 2012 Judgment Entry entered by the Alliance Municipal Court granting Defendant-appellee Andrew A. Schneller's motion to suppress.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 9, 2012, Captain James Hilles of the Alliance Police Department parked his police cruiser on the grass approximately 5-10 feet off of the north side of 23rd Street in the City of Alliance, facing eastbound. The police cruiser was entirely off of the street, with the engine running. The lights were not illuminated, and the car was completely "blacked out." The word "POLICE" was indicated horizontally in 3 inch silver block letters over 30 inches long across the front quarter panels of the cruiser.

{¶3} Captain Hilles testified he was parked on 23rd Street in the grass, facing eastbound, and the traffic was travelling westbound. He explained he angled his video camera to capture the traffic, as he was positioned behind a tree, off to the north side of the road. He was not on the berm of the road. He admitted to being positioned "right next to [Appellant's] lane of travel" for approximately five feet of the roadway. Tr. at 21-22.

{¶4} Captain Hilles observed Appellee exit the rear parking lot of Chives Bar, and drive his motor vehicle westbound on 23rd Street, passing Captain Hilles location. As Appellee approached Captain Hilles location, his vehicle was driven completely on the left side of the road. At one point, the driver's side tires travelled completely off the opposite side of the paved roadway. Appellee continued to drive on the left side of the roadway for approximately 200 feet.

{¶5} Captain Hilles described 23rd Street as an unmarked, asphalt roadway, wide enough for two cars to travel. He further testified there were no other vehicles on the roadway when Appellee traveled left of center.

{¶6} Captain Hilles turned his vehicle around, caught up with Appellee and ran the vehicle registration in LEADS. Appellee immediately turned into a private driveway. Captain Hilles initiated a traffic stop with his lights activated.

{¶7} Appellee was arrested and subsequently charged with operating a motor vehicle under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a), and driving on the wrong side of the roadway, in violation of Alliance Codified Ordinance §331.01(a).

{¶8} On November 9, 2012, Appellee filed a motion to dismiss/suppress arguing there was no lawful cause to stop and/or probable cause to arrest. The trial court conducted a hearing on the motion on November 30, 2012. Appellee filed an amended motion to dismiss/suppress on December 6, 2012, arguing the police cruiser was not marked and equipped with lights in conformity with the provisions of R.C. 4549.13. The trial court conducted a hearing on the amended motion on December 21, 2012.

{¶9} Via Judgment Entry of December 26, 2012, the trial court sustained the motion to suppress finding no reasonable suspicion to stop, and the arresting officer was incompetent to testify as his police cruiser was not marked and equipped with lights as required by the provisions of R.C. 4549.13, based upon the authority of R.C. 4549.13 and Evidence Rule 601(C).

{¶10} Appellant the state of Ohio now appeals, assigning as error:

{¶11} "I. THE TRIAL COURT ERRED IN SUPRESSING [SIC] THE EVIDENCE IN THIS MATTER AND FINDING THAT THE OPERATION OF DEFENDANT-APPELLEE'S VEHICLE LEFT OF CENTER FOR APPROXIMATELY 200 FEET DURING WHICH TIME THE DRIVER'S SIDE TIRES LEFT THE PAVED PORTION OF THE ROADWAY ARE NOT SPECIFIC AND ARTICULABLE FACTS WHICH WOULD GIVE RISE TO A REASONABLE SUSPICION THAT THE DEFENANT-APPELLEE [SIC] MAY BE INVOLVED IN CRIMINAL ACTIVITY.

{¶12} "II. THE TRIAL COURT ERRER [SIC] IN SUPRESSING [SIC] THE EVIDENCE IN THIS MATTER AND FINDING THE ARRESTING OFFICER'S MOTOR VEHICLE WAS NOT MARKED IN SOME DISTINCTIVE MANNER OR COLOR AND EQUIPPED WITH AT LEAST ONE FLASHING, OSCILLATING, OR ROTATING COLORED LIGHT MOUNTED ON THE OUTSIDE ON TOP OF THE VEHICLE IN CONFORMITY WITH §4549.13, O.R.C., AND FINDING THE ARRESTING OFFICER INCOMPETENT TO TESTIFY AS A WITNESS IN THE PROSECUTION AGAINST THE DEFENDANT-APPELLEE UPON THE AUTHORITY OF §4549.13, §4549.14, §4549.16, O.R.C., AND EVIDENCE RULE 601(C)."

II.

{¶13} We will proceed in addressing Appellant's second assignment of error first, as we find it dispositive herein.

{¶14} In the second assignment of error, the State maintains the trial court erred in granting Appellant's motion to suppress finding Captain Hilles incompetent to testify as his police cruiser was not marked and equipped with lights as required by the provisions of R.C. 4549.13, on the authority of R.C. 4549.14 and Evidence Rule 601(C).

{¶15} Initially, we note, the decision to allow a witness to testify rests within the sound discretion of the trial court, and will not be overturned absent an abuse of that discretion. Waganheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7. Abuse of discretion connotes more than an error of law or of judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151.

{¶16} Evidence Rule 601(C) provides,

{¶17} "Every person is competent to be a witness except:

{¶18} "

{¶19} "(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute."

{¶20} R.C. 4549.13 reads,

{¶21} "Any motor vehicle used by a member of the state highway patrol or by any other peace officer, while said officer is on duty for the exclusive or main purpose of enforcing the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, shall be marked in some distinctive manner or color and shall be equipped with, but need not necessarily have in operation at all times, at least one flashing, oscillating, or rotating colored light mounted outside on top of the vehicle. The superintendent of the state highway patrol shall specify what constitutes such a distinctive marking or color for the state highway patrol."

{¶22} R.C. 4549.14 provides,

{¶23} "Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws, is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was using a motor vehicle not marked in accordance with section 4549.13 of the Revised Code."

{¶24} Captain Hilles testified at the December 26, 2012 Hearing,

{¶25} "The Court: Now, who put that, on the Exhibit, who put the word unmarked on there? Was that you or the manufacturer or whose idea was that?

{¶26} "A. I'm sorry on the web page, Your Honor?

{¶27} "The Court: Well, why don't you show him the Exhibit Mr. Morris.

{¶28} "Q. Defendant's Exhibit 1, I think it is - -.

{¶29} "The Court: At the top, it says unmarked. Is that your creation or is that the manufacturer's or none of the above?

{¶30} "A. That's our nickname for it, Your Honor.

{¶31} "The Court: Okay, So, that was done by the Alliance Police Department?

{¶32} "A. Correct.

{¶33} "Q. And the - - the reason for that is what?

{¶34} "A. We wanted to - - when we put this out to the public, we wanted to make them aware that this car was different from our normal police cars. Ah, we nicknamed it unmarked because when the officer that came up with this came up with the idea - - the plan was to make it marked differently than the other cars for traffic specifically to be a deterrent. So, when he wanted the name unmarked it was not [inaudible].

{¶35} "* * *

{¶36} "Q. Is it lettered?

{¶37} "A. Yes, it has the word police across the front fender in ah silver and black letters on both sides, the driver and passenger.

{¶38} "Q. And what are the size of ah, the word police?

{¶39} "A. A little over 30 inches long.

{¶40} "Q. And the height?

{¶41} "A. I believe it's around three inches tall."

{¶42} Tr. at 6-9.

{¶43} On Cross-examination Captain Hilles testified,

{¶44} "Q. Captain Hilles, previously you testified on September 9th or a hearing on November 30th concerning Mr., ah, Schneller's traffic stop that - - on September 9th, you were on, ah, exclusive duty for the main purpose of enforcing motor vehicle traffic laws [inaudible]?

{¶45} "A. I believe so. I was on traffic duty, the OVI [inaudible].

{¶46} "Q. You said that the time and you would agree with that, correct?

{¶47} "A. I don't know if I said those exact words but I was definitely ...


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