Court of Appeals of Ohio, Twelfth District, Madison
APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI
Stephen J. Pronai, Madison County Prosecuting Attorney,
Rachel M. Price, for plaintiff-appellee
& Associates, LPA, Robert J. Beck, Jr., for
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
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,
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