State v. WysinState v. Wysin
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Timothy R. Thomas, 402 South Chestnut Street, Ravenna, OH 44266 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Gregory J. Wysin, appeals the judgments of the Portage County Municipal Court, Kent Division, denying his Motion to Suppress and finding him guilty of operation of a vehicle while intoxicated (OVI). The issues before this court are whether a trial court errs by allegedly changing, sua sponte, the degree of OVI from a first-degree misdemeanor to an unclassified misdemeanor, and whether a trial court’s factual determination that the arresting officer actually observed marked-
{¶2} On June 6, 2012, Officer Robert Putnam of the Brimfield Police Department issued Wysin a ticket, charging him with OVI, a misdemeanor of the first degree in violation of
{¶3} On June 8, 2012, Wysin was arraigned in municipal court. The written Judgment Entry states: Defendant appeared in Court for arraignment on 06/08/2012 * * * and entered a plea of Not Guilty to the charges of M1 4511.19A1A OPERATING UNDER THE INFLUENCE 2ND 3rd OFFENSE; 4511.19A1H OVI ̴ BREATH .17 AND OVER 2ND OFFENSE; 4503.21 DISPLAY OF OR EXPIRED PLATES.
{¶4} On August 7, 2012, Wysin filed a Motion to Suppress.
{¶5} On October 15, 2012, a hearing was held on the Motion to Suppress. Officer Putnam, on behalf of the State, was the sole witness to testify.
{¶6} On December 10, 2012, the municipal court issued a Journal Entry, making the following relevant findings:
{¶7} Upon review of the evidence, including the dash cam video from Officer Putnam’s cruiser, the Court finds that Officer Putnam of the
{¶8} On March 25, 2013, Wysin entered a plea of No Contest to OVI, in violation of
{¶9} On April 24, 2013, Wysin filed his Notice of Appeal.
{¶10} On April 30, 2013, the municipal court stayed Wysin’s sentence pending appeal.
{¶11} On appeal, Wysin raises the following assignments of error:
{¶12} [1.] By amending the original complaint sua sponte, the Trial Court impermissibly changed the identity of the offense with which appellant was charged, in violation of Criminal Rule 7(D), resulting in plain and reversible error.
{¶13} [2.] The Court’s denial of the appellant’s motion to suppress was against the manifest weight of the evidence presented, as the arresting officer had neither probable cause, nor reasonable articulable suspicion necessary to effect a traffic stop, in violation of the appellant’s right to be free from unreasonable search and seizure as
{¶14} In the first assignment of error, Wysin argues the municipal court impermissibly violated Criminal Rule 7(D) by amending the OVI charge from a violation of
{¶15} As no objection was raised during the course of the proceedings, this assignment of error is reviewed under the plain error standard. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
{¶16} Wysin was charged with violating
{¶17} As charged in the complaint, Wysin operated a vehicle having a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath and having six prior OVIs.
{¶18} The Revised Code provides: Whoever violates any provision of (A)(1)(a) to (i) * * * of this section is guilty of operating a vehicle under the influence of alcohol.
{¶20} Under the Traffic Rules, the complaint issued by Officer Putnam and the restatement of the charge following arraignment properly charged Wysin with OVI and advised him of the enhanced penalties to which he was subject as the result of multiple prior OVIs. It was not necessary to amend the complaint to expressly state a violation of
{¶21} In Bellville v. Kieffaber, 114 Ohio St.3d 124, 2007-Ohio-3763, 870 N.E.2d 697, the Ohio Supreme Court held that notice is satisfied, under the Traffic Rules, when a defendant is apprised of the nature of the charge together with a citation of the statute or ordinance involved. Id. at ¶ 19. Specifically, the Supreme Court held that, where a defendant is apprised of all the elements for an offense, it is not necessary to indicate the specific statutory subsection. Id. at ¶ 20. In so holding, the Supreme Court cited, with approval, this court’s decision in Niles v. Yeager, 11th Dist. Trumbull No. 2004-T-0004, 2004-Ohio-6698, which held that the defendant knew from the information stated on the traffic ticket the nature and cause of the accusation * * *, even though it did not specifically state which subsection. Id. at ¶ 18.
{¶23} In the present case, OVI under subsection (A)(1)(h) is a first-degree misdemeanor; the existence of two prior OVIs within six years alters the degree to an unclassified misdemeanor. Wysin cites to no authority, nor is this court aware of any that describes an unclassified misdemeanor as a higher degree of misdemeanor than a first degree misdemeanor. On the contrary, several courts, including this one, have treated the penalties imposed by subsection (G)(1)(c) as penalty enhancements which did not elevate the degree of the offense. Mentor v. Molk, 11th Dist. Lake No. 2010-L-112, 2011-Ohio-3120, ¶ 27 ([w]hen a defendant is only facing a misdemeanor [under
{¶25} The first assignment of error is without merit.
{¶26} In the second assignment of error, Wysin argues that the municipal court’s factual findings at the suppression hearing are not supported by the evidence.
{¶27} At a suppression hearing, the trial court is best able to decide facts and evaluate the credibility of witnesses. State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 41. Its findings of fact are to be accepted if they are supported by competent, credible evidence, and we are to independently determine whether they satisfy the applicable legal standard. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; Kirtland Hills v. Kunka, 11th Dist. Lake No. 2012-L-0095, 2013-Ohio-738, ¶ 16 ([o]nce the appellate court accepts the trial court’s factual determinations, the appellate court conducts a de novo review of the trial court’s application of the law to these facts) (citation omitted).
{¶28} Officer Putnam testified, and the municipal court found, that he saw Defendant’s vehicle cross over the dotted white line on the highway on two occasions * * * for approximately 10 to 15 seconds on both [occasions], and that Wysin’s county
{¶29} Wysin relies on Officer Putnam’s actions during the stop, as recorded by the dashboard video camera. When explaining the reason for the stop, Officer Putnam told Wysin that he hit the white line twice and that the stickers were in the wrong location. In his written report, Officer Putnam wrote that Wysin had crossed over the white line. When asked at hearing about the discrepancy, Officer Putnam testified:
{¶30} [W]hen I stop somebody, I don’t go into * * * the exact criterias of the stop. I’ll tell them I saw you, you know, cross over the -- the white dotted or you bumped it, you touched it. Versus -- because not everybody understands the ins and outs as far as the probable cause to make a stop. So sometimes I won’t say exactly what occurred as soon as I make contact with that individual.
With respect to the stickers, Officer Putnam testified that they were in plain view, although he could only see about the top quarter of them. Wysin maintains that the inconsistencies in Officer Putnam’s testimony and the failure to charge him with a marked-lanes violation, combined with the fact that he had only been a police officer for fifteen months, should demonstrate that his testimony about what he actually observed prior to effecting the traffic stop of the appellant’s vehicle is at best merely mistaken, at worst fabricated, and in either case, simply not credible. Appellant’s brief at 12.
{¶32} The second assignment of error is without merit.
{¶33} For the foregoing reasons, the judgments of the Portage County Municipal Court, Kent Division, denying Wysin’s Motion to Suppress and finding him guilty of OVI, are affirmed. Costs to be taxed against the appellant.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.