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State v. Harding

Court of Appeals of Ohio, Twelfth District, Madison

December 11, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
KELLY L. HARDING, Defendant-Appellant.

         CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI 2016-0016

          Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, for plaintiff-appellee

          Brehm & Associates, LPA, Robert J. Beck, Jr., for defendant-appellant

          OPINION

          HENDRICKSON, P.

         {¶ 1} Defendant-appellant, Kelly Harding, appeals his convictions and sentence in the Madison County Court of Common Pleas for possession of marijuana and criminal tools.

         {¶ 2} Craig Voight asked Harding to drive him to New York and Harding agreed. Harding met Voight at his house in a car Harding borrowed from his mother. After leaving the car parked overnight at Voight's house, the two men began the trip to New York and eventually drove on Interstate 70.

         {¶ 3} Several canine units with the Ohio State Highway Patrol were patrolling the area along Interstate 70 where Harding was driving. A trooper began to follow Harding, and observed Harding following a semi-truck too closely. The trooper initiated a traffic stop and identified Harding as the driver of the car and Voight as the passenger.

         {¶ 4} During the traffic stop, troopers walked a canine around the car, and the canine indicated at the rear passenger door of the car. Troopers then discovered 123 pounds of marijuana in the vehicle. Harding was indicted for possession of marijuana and criminal tools, and pled not guilty. Harding filed a motion to suppress, claiming that the search of the car was unconstitutional. The trial court overruled Harding's motion, and the matter proceeded to a jury trial. The jury returned guilty verdicts on both counts, and the trial court sentenced Harding to an aggregate prison sentence of eight years. Harding now appeals his convictions and sentence, raising the following assignments of error.

         {¶ 5} Assignment of Error No. 1:

         {¶ 6} THE TRIAL COURT DID ERR BY OVERRULING DEFENDANT'S MOTION TO SUPPRESS.

         {¶ 7} Harding argues in his first assignment of error that the trial court erred in overruling his motion to suppress.

         {¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

         {¶ 9} Ohio recognizes two types of lawful traffic stops, noninvestigatory and investigatory. State v. Campbell, 12th Dist. Butler Nos. CA2014-02-048 and CA2014-02-051, 2014-Ohio-5315, ¶ 25. A noninvestigatory stop is one where an officer has probable cause to stop a vehicle because the officer observed a traffic violation. State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, ¶ 31. The establishment of probable cause necessary to effectuate the noninvestigatory stop "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." City of Wilmington v. Lubbers, 12th Dist. Clinton No. CA2013-06-013, 2014-Ohio-3083, ¶ 12. "The focus, therefore, is not on whether an officer could have stopped the suspect because a traffic violation had in fact occurred, but on whether the arresting officer had probable cause to believe that a traffic violation had occurred." State v. Pfeiffer, 12th Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, ¶ 23.

         {¶ 10} According to R.C. 4511.34(A), the operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and must maintain a sufficient space between vehicles while driving on the road.

         {¶ 11} We first note that Harding failed to ensure that a transcript of the motion to suppress hearing held in this case was made a part of the record. The Ohio Supreme Court has stated that "upon appeal of an adverse judgment, it is the duty of the appellant to ensure that the record, or whatever portions thereof are necessary for the determination of the appeal, are filed with the court in which he seeks review." Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19 (1988). In the absence of a transcript of the suppression hearing in this case, we must presume the regularity of the proceedings and accept the trial court's factual determinations as correct. See State v. Fields, 12th Dist. Brown No. CA2009-05-018, 2009-Ohio-6921.

         {¶ 12} The trial court determined that the trooper who pulled Harding over had probable cause to initiate a valid traffic stop. The trial court specifically stated in its entry that the trooper's testimony regarding the traffic stop was "credible." According to the trial court, the trooper testified that when Harding passed his location on Interstate 70, the vehicle Harding was driving was following too closely behind a semi-truck and that Harding failed to maintain a safe, clear distance between himself and the truck. As such, and with no transcript to prove otherwise, we find that the trial court's findings and ...


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