Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2018 CR 000012.
Charles E. Coulson, Lake County Prosecutor, and Karen A.
Sheppert, Assistant Prosecutor, (For Plaintiff-Appellee).
J. Gwirtz, Mandy Gwirtz, LLC, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Joshua C. Freshwater, appeals from the judgment
entry of sentence issued by the Lake County Court of Common
Pleas on October 4, 2018, following a jury trial. Appellant
was found guilty of trafficking in marihuana, a fourth-degree
felony in violation of R.C. 2925.03(A)(2), and possessing
criminal tools, a fifth-degree felony in violation of R.C.
2923.24, both of which included forfeiture specifications for
currency and contraband/instrumentalities. The charges stem
from a traffic stop that resulted in the search of
appellant's rental vehicle, the seizure of contraband
from the vehicle, and the seizure of a large amount of cash
from appellant's person. The trial court sentenced
appellant to two concurrent eleven-month prison terms.
On appeal, appellant asserts the following assignments of
error for our review:
[1.] The trial court erred when it permitted an expert to
testify as to the ultimate issue to be decided by the jury,
in violation of the rights to due process and fair trial per
the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 10 and 16 of the Ohio
[2.] The trial court erred to the prejudice of the
defendant-appellant when it returned a verdict of guilty
against the manifest weight of the evidence.
[3.] The trial court erred when it overruled the
defendant-appellant's motion to suppress where the
officer had no specific and articulable suspicion upon which
to base his stop of the defendant-appellant's vehicle, in
violation of the defendant-appellant's right to be free
from unreasonable search and seizure as guaranteed by the
Fourth, Fifth, and Fourteenth Amendments of the United States
Constitution and Article I, Sections 10 and 14 of the Ohio
reasons that follow, appellant's assignments of error are
without merit, and the trial court's judgment is
We first consider appellant's third assignment of error,
in which he argues the trial court erred in denying his
motion to suppress evidence.
"Appellate review of a motion to suppress presents a
mixed question of law and fact. When considering a motion to
suppress, the trial court assumes the role of trier of fact
and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses."
State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶8, citing State v. Mills, 62
Ohio St.3d 357, 366 (1992). "Consequently, an appellate
court must accept the trial court's findings of fact if
they are supported by competent, credible evidence. Accepting
these facts as true, the appellate court must then
independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable
legal standard." Id., citing State v.
Fanning, 1 Ohio St.3d 19 (1982) and State v.
McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
The Fourth Amendment to the United States Constitution, as
applied to the states through the Fourteenth Amendment,
guarantees an individual's right to be free from
unreasonable searches and seizures. Accord Ohio
Constitution, Article I, Section 14. Police action of
stopping an automobile and detaining its occupant is a
seizure under the Fourth Amendment. Delaware v.
Prouse, 440 U.S. 648 (1979), paragraph two of the
syllabus. Thus, an automobile stop is "subject to the
constitutional imperative that it not be
'unreasonable' under the circumstances."
Whren v. United States, 517 U.S. 806, 810 (1996).
A traffic stop is not "unreasonable" when it is
premised upon either an articulable reasonable suspicion of
criminal activity or probable cause to believe a crime was
committed. State v. Calori, 11th Dist. Portage No.
2006-P-0007, 2007-Ohio-214, ¶19, citing Terry v.
Ohio, 392 U.S. 1, 21 (1968), State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, ¶35, and Dayton
v. Erickson, 76 Ohio St.3d 3 (1996), syllabus. See
also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,
¶23 ("an officer who has probable cause necessarily
has a reasonable and articulable suspicion, which is all the
officer needs to justify a stop"). This determination
"requires an objective assessment of a police
officer's actions in light of the facts and circumstances
then known to the officer." Erickson, supra, at
6 (citation omitted).
An officer's observation of a traffic violation provides
probable cause to stop a vehicle. See Mays, supra,
at ¶24, and State v. Eggleston, 11th Dist.
Trumbull No. 2014-T-0068, 2015-Ohio-958, ¶20.
"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 ...