State v. Randall J. Bigley
| Decision Date | 14 August 2002 |
| Docket Number | 02-LW-3557,02CA0017-M |
| Parties | STATE OF OHIO, Appellee v. RANDALL J. BIGLEY, Appellant C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 01TRD01105
Defendant, Randall J. Bigley, appeals from the conviction of the Medina Municipal Court that found him guilty of failing to wear a safety belt. We affirm.
On January 20, 2001, Defendant was cited for failure to wear a safety belt, in violation of R.C. 4513.263(B)(1), a minor misdemeanor. A bench trial followed. The trial court found Defendant guilty and imposed a fine. Thereafter, Defendant appealed his conviction to this court and, on December 12 2001, this court reversed and remanded the conviction. State v. Bigley (Dec. 12, 2001), 9th Dist. No 3180-M, at 6. Upon remand, the trial court again found Defendant guilty and imposed a fine. From this conviction, Defendant timely appeals and raises six assignments of error. As assignments of error two and five concern like issues, we will address them together.
In his first assignment of error, Defendant challenges the sufficiency of the evidence presented at trial. Specifically, Defendant asserts that the State did not establish beyond a reasonable doubt that he improperly wore his safety belt in violation of R.C. 4513.263(B)(1). Defendant's assertion lacks merit.
In order for a defendant to preserve the right to appeal the sufficiency of the evidence upon which his conviction is based, he must timely file a Crim.R. 29 motion for acquittal with the trial court. State v. Liggins (Aug. 18, 1999), 9th Dist. No. 19362, at 3. See, also, State v. Roe (1989), 41 Ohio St.3d 18, 25. As such, a defendant's failure to make a Crim.R. 29 motion constitutes a waiver of any challenge to the sufficiency of the evidence on appeal. Liggins, supra. See, also, State v. Thomas (July 20, 1993), 4th Dist. No. 1922 ( that the defendant, who was found guilty of failing to obey a traffic control device, waived any argument regarding the sufficiency of the evidence due to his failure to move for a judgment of acquittal pursuant to Crim.R. 29(A)).
After a thorough review of the record, we find that Defendant failed to make a Crim.R. 29 motion for acquittal at the trial court level. Consequently, Defendant waived any objection to the sufficiency of the evidence on appeal. Accordingly, Defendant's first assignment of error is overruled.
In his second and fifth assignments of error, Defendant contends that R.C. 4513.263(B)(1) is unconstitutional for the following reasons: (1) the statute is vague; (2) the statute is ambiguous; and (3) the statute was not intended to protect the health, safety, or welfare of the general public. Defendant's contention is not well taken as he has waived these arguments for purposes of appeal.
Generally, "an appellate court will not consider any error which *** a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Childs (1968), 14 Ohio St.2d 56, paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471, paragraph one of the syllabus. Similarly, "[c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time." Childs, 14 Ohio St.2d at 62, citing State v. Davis (1964), 1 Ohio St.2d 28; State ex rel. Specht v. Bd. of Edn. (1981), 66 Ohio St.2d 178, 182, citing Clarington v. Althar (1930), 122 Ohio St. 608 and Toledo v. Gfell (1958), 107 Ohio App. 93, 95. Therefore, it follows that the constitutionality of a statute must be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. State v. Awan (1986), 22 Ohio St.3d 120, 122. See, also, State v. Woodards (1966), 6 Ohio St.2d 14, paragraph one of the syllabus. Furthermore, a challenge to the constitutionality of a statute must be raised with specificity in the lower court. Awan, 22 Ohio St.3d at 122, fn. 1, citing Wellston v. Morgan (1898), 59 Ohio St. 147, 162 and Columbus v. Rogers (1975), 41 Ohio St.2d 161, 162.
Defendant, nevertheless, argues that he has timely challenged the constitutionality of R.C. 4513.263(B)(1) in the trial court when he entered his plea of not guilty. However, a review of the record reveals that Defendant did not challenge the constitutionality of R.C. 4513.263(B)(1) in the trial court at the time he entered his plea or at any other instance. Accordingly, Defendant has waived his constitutional challenge.[1] Defendant's second and fifth assignments of error are overruled.
In his third assignment of error, Defendant avers that Patrolman Fisher did not lawfully initiate a traffic stop. We disagree.
A traffic stop constitutes a seizure of a person under the Fourth Amendment of the United States Constitution. Whren v. United States (1996), 517 U.S. 806, 809-810, 135 L.Ed.2d 89. As such, the detaining officer must possess a reasonable and articulable suspicion that a violation of law has or may have been committed to justify a traffic stop. See State v. Epling (1995), 105 Ohio App.3d 663, 664. Moreover, "[w]here an officer has an articulable reasonable suspicion or probable cause to stop a motorist for any criminal violation, including a minor traffic violation, the stop is constitutionally valid[.]" Dayton v. Erickson (1996), 76 Ohio St.3d 3, 11-12. An appellate court utilizes the de novo standard of review when determining whether an officer had a reasonable and articulable suspicion to make the traffic stop. Ornelas v. United States (1996), 517 U.S. 690, 699, 134 L.Ed.2d 911; State v. Gutierrez (July 17, 1996), 9th Dist. No. 2215-M, at 6.
In the present case, Officer Fisher testified that he initiated the traffic stop after observing Defendant's vehicle cross over the double yellow line. In particular, he stated that Defendant's vehicle remained over the double yellow line for approximately 20 to 25 feet and that "[b]oth sides of the tire on the driver's side went over the double yellow line" and "[b]oth sets of the driver's side tires went over the double yellow line." He additionally noted that there was nothing in the road that would have forced Defendant to cross the double yellow line.
We find that Officer Fisher had an articulable and reasonable suspicion to initiate a traffic stop as Defendant had committed a minor traffic violation, namely, crossing over the double yellow line. See Dayton, 76 Ohio St.3d at 11-12. See, also, R.C. 4511.33 (). Furthermore, we note that it is well-established that a traffic stop is justified when an officer sees a vehicle cross over a set of double yellow lines. State v. Matlack (Nov. 2, 1995), 4th Dist. No. 95CA1658; State v. Morrow (May 1, 1995), 12th Dist. No. CA94-10-085; State v. Parkinson (Apr. 11, 1997), 11th Dist. Nos. 96-L-101 and 96-L-120; State v. Stamper (1995), 102 Ohio App.3d 431, 438. Consequently, we hold that Patrolman Fisher initiated a constitutionally valid traffic stop. Defendant's fourth assignment of error is overruled.
In his fourth assignment of error, Defendant alleges that the prosecutor erred by threatening to charge him with additional offenses if he refused to plead guilty to the violation of R.C. 4513.263(B)(1). However, Defendant fails to support his allegation with specific references to the record. "It is the duty of the [defendant], not this court, to demonstrate his assigned error through an argument that is supported by citations to legal authority and facts in the record." (Emphasis added.) State v. Taylor (Feb. 9, 1999), 9th Dist. No. 2783-M, at 7. See, also, App.R. 16(A)(7). This court will not guess at undeveloped claims on appeal. Elyria Joint Venture v. Boardwalk Fries, Inc. (Jan. 3, 2001), 9th Dist. No. 99CA007336, at 6. As Defendant's allegation is wholly unsubstantiated by any evidence in the record, we overrule his fourth assignment of error.
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