State v. Brite6/23/1997
STEPHENSON, Presiding Judge.
This is an appeal from a judgment entered by the Municipal Court of Athens, Ohio, upon a plea of "no contest," finding Vernon Brite, defendant below and appellant herein, guilty of operating a motor vehicle while the alcohol concentration in his body was in excess of ten-hundredths of one gram per two hundred ten liters of breath as proscribed by R.C 4511.19(A)(3). The following error is assigned for our review:
"The trial court erred in finding that there was reasonable articulable suspicion for the law enforcement officer to stop the defendant's vehicle."
The record reveals the following facts pertinent to this appeal. In the early morning hours of June 9, 1996, appellant left the parking lot of "Club 33" in Athens, Ohio. He proceeded home on State Route 13 to U.S. Route 33 and was travelling east when Trooper Keith Fellure of the Ohio State Highway Patrol began following him. The officer noted appellant's car weaving within its lane of travel and signaled for the driver to pull over. Upon approaching the vehicle, Trooper Fellure noted "a strong odor of alcohol" about appellant's person. Several field sobriety tests were administered and, when appellant performed unsuccessfully, he was arrested and given a breath test. The results of that test showed that appellant had 0.117 grams of alcohol per two hundred ten liters of his breath. He was thereafter charged with violating R.C. 4511.19(A)(3).
Appellant initially entered a plea of not guilty and filed a motion to suppress the results of his breath test, arguing that Trooper Fellure lacked reasonable facts upon which to stop him for suspicion of drunk driving . The matter came on for hearing on September 7, 1996, at which time Trooper Fellure testified to having observed appellant's car weaving on the night in question. He stated that appellant drove over the right-hand edge lines of the road on two occasions during the span of a mile. However, the witness conceded that appellant never went left of center or violated any other traffic laws. A ruling was made from the bench at the conclusion of the hearing, denying the motion to suppress. Appellant thereafter changed his plea to "no contest" and was found guilty. He was given inter alia a suspended thirty-day jail sentence and a partially suspended $500 fine. This appeal followed.
Appellant argues in his assignment of error that the lower court mistakenly overruled his motion to suppress. It should be noted at the outset that appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. See United States v. Martinez (C.A. 11, 1992), 949 F.2d 1117, 1119; United States v. Mejia (C.A.9, 1991), 953 F.2d 461, 464-465; United States v. Wilson (C.A.11, 1990), 894 F.2d 1245, 1254. A trial court assumes the role of trier of fact during proceedings on a motion to suppress, State v. Payne (1995), 104 Ohio App.3d 364, 367, 662 N.E.2d 60, 61-62; State v. Robinson (1994)s98 Ohio App.3d 560, 570, 649 N.E.2d 18, 24; State v. Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645, 648, and the evaluation of evidence and credibility of witnesses during such proceedings are issues to be determined by the trial court. State v. Brooks (1996), 75 Ohio St.3d 148, 154, 661 N.E.2d 1030, 1036-1037; State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965, 973; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584-585. A court's factual findings are to be accepted unless they are "clearly erroneous." See United States v. Lewis (C.A. 1, 1994), 40 F.3d 1325, 1332. That is to say that a reviewing court is bound to accept the factual determinations of a trial co
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