COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73662 CITY OF WESTLAKE, ACCELERATED DOCKET Plaintiff-appellee JOURNAL ENTRY vs. AND DAVID STULTZ, OPINION Defendant-appellant PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Rocky River Municipal Court, Case No. 97-TRC-11361AB JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: BRYAN P. O'MALLEY THOMAS B. WILBUR Prosecutor 6325 York Road, Suite 305 City of North Olmsted Parma Heights, Ohio 44130 27243 Lorain Road North Olmsted, Ohio 44070 -2- PER CURIAM: Defendant-appellant David Stultz appeals in this accelerated appeal from his no contest plea conviction to operating his motor vehicle while under the influence of alcohol in violation of Westlake Codified Ordinance Section 333.01(A)(3). He challenges the denial of his motion to suppress evidence by the Rocky River Municipal Court. Westlake Police Officer Kent Mittelstaedt was the sole witness at the suppression hearing. He testified that he was on routine patrol on October 27, 1997, when he encountered defendant at approximately 10:50 p.m. The officer was driving his police cruiser eastbound on Detroit Road. The roadway has one lane for traffic in each direction and a center turn lane. As he was leaving the Dover Gardens Tavern to enter Detroit Road, defendant made a left-hand turn in front of Mittlestaedt. When defendant's vehicle paused in the center of Detroit before continuing, Mittelstaedt had to slow his vehicle to maintain a safe distance between the two vehicles. Defendant's vehicle almost struck the curb during a left-hand turn. Apparently over- correcting, he zig-zagged toward the center turn lane before straightening out and beginning his eastbound travel. Officer Mittelstaedt stated that defendant violated three traffic laws during this incident: failing to yield the right-of-way to him, making an improper left-hand turn, and failing to exercise reasonable control of his vehicle. -3- Mittelstaedt activated the overhead lights on his police cruiser. Defendant continued to drive his vehicle, however, and did not pull over for some distance. Officer Mittelstaedt stated that this constituted a fourth traffic law violation, namely, the failure to comply with his signal to make a traffic stop. Mittelstaedt testified that he smelled alcohol about defendant's person as the officer approached defendant to request his driver's license. Mittelstaedt also observed that defendant's face was flushed or red and that his eyes were watery and bloodshot. Mittelstaedt thereafter requested defendant perform a series of field sobriety tests. Defendant failed to complete both the alphabet and the one-leg stand and refused a second opportunity to complete them. Officer Crowley, who had joined Mittelstaedt at the scene, performed a horizontal gaze nystagmus ( HGN ) test.1 Mittelstaedt arrested defendant and issued him citations for operating his vehicle while under the influence and for operating his vehicle without reasonable control. The municipal court denied defendant's motion to suppress and specifically found that Officer Mittelstaedt had sufficient grounds to make the initial traffic stop and sufficient probable cause to arrest defendant for driving under the influence. Defendant thereafter pled no contest to the charge of operating his motor vehicle while under the influence, and the charge for operating his vehicle without reasonable control was dismissed. Defendant timely 1 Officer Crawley did not testify at the suppression hearing. -4- appeals in this accelerated appeal, raising the followin HE TRIAL COURT ERRED IN DISMISS AND/OR SUPPRESS. This assignment lacks merit. Defendant contends that the municipal court improperly denied his motion to dismiss and/or suppress. 2 He argues that there was insufficient evidence presented at the suppression hearing to justify the initial traffic stop and that all evidence subsequently obtained from him should be suppressed. Agassignment of error:T OVERRULING APPELLANT'S MOTION that the evidence was sufficient for the municipal court to find that Officer Mittelstaedt had a reasonable suspicion, based on specific and articulable facts, to justify the traffic stop. Moreover, the municipal court could also properly find that, based on the totality of the information he obtained, Officer Mittelstaedt had sufficient probable cause to arrest defendant for operating his motor vehicle while under the influence of alcohol.3 2 The record shows that defendant did not file a motion to dismiss and/or suppress. He filed a three-paragraph motion to suppress with a two-paragraph supporting memorandum. 3 We note that the municipal court excluded testimony concerning the results of the HGN test conducted by Officer Crowley on hearsay grounds. However, the hearsay rules do not per se justify exclusion of challenged evidence at suppression hearings. See State v. Woodring (1989), 63 Ohio App.3d 79. Even without the HGN test evidence, however, Mittelstaedt's testimony, recited above, was sufficient to establish probable cause to arrest defendant for operating his motor vehicle while under the influence of alcohol. -5- Defendant's brief on appeal cites cases in which the courts found weaving did not sufficiently constitute a violation of traffic laws to justify a stop. The municipal court expressly distinguished one of these cases, State v. Gullet (1992), 78 Ohio App.3d 138. (Tr. 47.) As noted above in the lengthy recitation of facts, the case at bar did not involve simple weaving as in Gullet, in which the driver was observed weaving twice over the right-hand edge line in a roadway over the course of one and one-half miles before resuming the lane of travel. Nor is any of the other cases similar enough to be persuasive. In the case at bar Officer Mittelstaedt testified that defendant violated three traffic laws by failing to yield the right-of-way to him, by making an improper left-hand turn, and by failing to exercise reasonable control of his vehicle. It is well established that the credibility and weight of the evidence is for the trial judge to decide on a motion to suppress evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20. Under the circumstances, the municipal court could properly find that the conduct in the case at bar was significantly more serious, erratic, and dangerous than the simple isolated incident of weaving in Gullet and justified the initial traffic stop in this case. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .