State v. Vales

[Cite as State v. Vales, 2020-Ohio-245.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P. J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2019CA00061
CHRISTOPHER VALES :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2018CR1673
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD HUNT
Stark County Prosecutor 2395 McGinty Road N.W.
By: RONALD MARK CALDWELL North Canton, OH 44720
110 Central Plaza South, 5th Floor
Canton, OH 44702
Stark County, Case No. 2019CA00061 2
Gwin, J.,
{¶1} Defendant-appellant Christopher Vales [“Vales”] appeals his conviction and
sentence after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} In 2018, Vales was charged by indictment with one count of operating a vehicle
under the influence of alcohol, a drug of abuse, or a combination of them ("OVI"), in violation
of R.C. 4511.19(A)(2), and one count of driving under suspension, in violation of R.C.
4510.11(B). The OVI count was charged as a felony of the third degree because it alleged
that Vales had been convicted of OVI five times within the last twenty years. This number
was later amended, upon motion of the prosecution, to four prior OVI convictions. As a result
of the amendment, the current OVI charge was reduced to a felony of the fourth degree
(three prior OVI convictions within the last ten year).
{¶3} The facts presented during Vales’ jury trial follow.
{¶4} During the early morning hours of September 4, 2018, around 3:16 a.m.,
Canton Police Officer Christina Paumier was patrolling her assigned zone and was
responding to a domestic call. While proceeding on Sherrick Road in the southeast side
of Canton, Paumier noticed a white SUV go up onto the curb and nearly strike several
telephone poles. The vehicle would go up and come back down from the curb, and was
swerving onto the sidewalk from the roadway. The vehicle was also driving at a slow rate of
speed. Having decided that she was going to stop the vehicle, Paumier ran the license
plate and found out the license plate was expired and that the registered owner of the
vehicle had failed to reinstate his driver's license, meaning his license was suspended.
Stark County, Case No. 2019CA00061 3
With this information, as well as the erratic driving, Paumier effected a traffic stop of the
vehicle.
{¶5} After making the stop, Paumier approached the driver, wearing her body
camera, and determined that he was the registered owner of the vehicle. Vales told the
officer that he was looking for “1027” the address of his girlfriend’s present location.
Paumier asked Vales to step out of his vehicle, and noticed that Vales had slurred speech,
which made it difficult for Paumier to understand him, as well as glassy and bloodshot eyes.
Paumier also smelled alcoholic beverage from his person and in his vehicle. Vales’ pupils
appeared to be significantly constricted, all of which led Paumier to believe that Vales was
impaired. Paumier next asked Vales if he had consumed any alcohol; Vales said that he
had consumed two beers at around 8-9 o’clock. Paumier also asked Vales if he had any
medical conditions. After hesitating, Vales replied, "My sugar.” Paumier concluded that
Vales might be diabetic, and so she asked him if he had checked his sugar levels. Vales
replied that he had, and that his levels were good. When Vales was later performing the
field sobriety tests, Paumier asked if he had any other medical conditions or physical
limitations. Paumier wanted to know if there was any medical reason why Vales could
not perform the tests. Vales said that he had plates in both his big toes and in his right
wrist.
{¶6} Vales was asked if he would perform the field sobriety tests. The first test
was the horizontal nystagmus test [“HGN”], which tests if there is equal tracking of the
eyes. Paumier noted that Vales did not complain of any form of brain injury. Instead of
tracking the tip of Paumier's pen, Vales stared ahead; he also followed the pen by moving
his head on several occasions. Vales was not able to follow instructions during the test.
Stark County, Case No. 2019CA00061 4
{¶7} Paumier next asked Vales to perform the walk-and-turn test [“WAT”], which
tested his ability to follow instructions and his balance. Vales could not stand for 26
seconds without losing his balance, and could not walk a straight line.
{¶8} Finally, Paumier asked Vales to perform the one-legged test [“OLS”], which
required him to stand straight up and lift one leg up for 30 seconds. Paumier noted that
Vales kept swaying while he was standing, and could only keep his leg up for a matter of
seconds before losing balance.
{¶9} Based on Vales' performance on these three tests, Paumier concluded that
he was under the influence of drugs, alcohol, or a combination of both. Paumier then
arrested Vales and impounded his vehicle since it had expired plates, and since the only
occupant was being arrested. Officer Paumier asked Vales for identifying information;
Officer Paumier noted that Vales got his birthday wrong.
{¶10} As part of police policy, when a vehicle is impounded, an inventory search
of that vehicle is performed in order to preserve the contents of the vehicle. During this
inventory search of Vales’ impounded vehicle, Paumier found numerous medication and
prescription bottles (made out to Vales) for opiates, some of which were empty. The
labels on several of the prescription bottles for the opiates warned that alcohol should not
be consumed while taking the drugs.
{¶11} Paumier transported Vales to the Stark County Jail. On the way, Paumier
asked Vales about the prescription bottles. Vales stated that he does not take prescribed
medication. Once they reached the jail, Vales was booked as part of standard procedure.
Paumier had decided to ask Vales for a urine test instead of a breath test. The breath
test does not test for drugs, whereas the urine test can provide for testing of alcohol and
Stark County, Case No. 2019CA00061 5
drugs. Vales, however, refused once he found out that she was going to test for alcohol
and drugs. "No, I won't do it," Vales responded. Vales then stated, “If I refuse, then
what…I ain’t refusing…” The camera was then turned off.
{¶12} Officer Paumier admitted under cross-examination that her flashlight
pointed in the eyes of the Vales could have caused him to have difficulty on the HGN test.
Officer Paumier admitted that regulations required the use of a "clue" sheet to mark
deviations made by the suspect from the standards; however, she did not use this sheet
in Vales’ case. Finally, she related that a person with brain damage had the same clues
as a person who was intoxicated.
{¶13} Vales testified that he traveled from Cleveland to pick up his girlfriend in
Canton, but that he could not find the right street or address. Before long, he noticed that
a police cruiser had pulled up right behind him, and soon pulled him over. He originally
thought the officer was going to provide him with assistance in finding address, which was
on Sherrick Road.
{¶14} Vales testified that he was unable to perform the tests required by the police
due to his prior physical and mental injuries. He had extensive brain Injuries from a
beating he sustained in 2000, which was inflicted by an individual with a fire extinguisher.
This injury affected his speech and his balance. He is currently in therapy for his slurred
speech and he uses a walker to get around. He also has trouble hearing and is required
to wear a hearing aid. He has gout, rotator cuff issues from a car accident and takes the
pain pills, found in his vehicle for these ailments. Vales admitted that he told Officer
Paumier he did not take his medication. He further admitted that he never told Deputy
Stark County, Case No. 2019CA00061 6
Paumier that he had suffered a traumatic brain injury. Vales testified that any odor of an
alcoholic beverage came from the fact that he had drunk non-alcoholic beer earlier.
{¶15} On cross-examination, Vales admitted that taking the prescribed drugs was part
of his pain management, but that he did not take any that night since he knew he would be
driving. Finally, Vales admitted that he at first refused to take a urine test. (1T. at 241-
242).1 However, Vales claimed that he subsequently agreed that he would take the test.
(1T. at 229-230; 241-242).
{¶16} The jury found Vales guilty as charged. The trial court thereafter sentenced
Vales to an aggregate prison term of 18 months - 18 months for the OVI conviction, and
a concurrent 180-day sentence for the conviction for driving while under suspension.
Assignments of Error
{¶17} Vales raises three Assignments of Error,
{¶18} “I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶19} “II. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶20} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
APPELLANT REFUSED TO TAKE A CHEMICAL ANALYSIS OF HIS BREATH, THUS
VIOLATED O.R.C. 4511.192.”
I.
For clarity sake, the transcript of Vales’ jury trial will be referred to as “__T.__,” signifying the
1
Volume and the page number.
Stark County, Case No. 2019CA00061 7
{¶21} In his First Assignment of Error, Vales argues that he was denied effective
assistance of retained trial counsel. Specifically, Vales contends that his trial counsel: 1).
did not file a suppression motion; 2) counsel failed to object to the admission of the field
sobriety tests; 3) counsel did not present Vale's medical records at trial; 4) counsel did
not object to the admission of photos of Vale's prescribed pills; and, 5) counsel did not
subpoena witnesses to testify at trial in Vale's defense.
STANDARD OF APPELLATE REVIEW.
{¶22} To obtain a reversal of a conviction based on ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Strickland v. Washington, 466 U.S. 668, 687–688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. Strickland at 697, 104 S. Ct. at 2069, 80 L.Ed.2d at
699; State v. Madrigal, 87 Ohio St. 3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
{¶23} In light of “the variety of circumstances faced by defense counsel [and] the
range of legitimate decisions regarding how best to represent a criminal defendant,” the
performance inquiry necessarily turns on “whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104
S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.
{¶24} The United States Supreme Court discussed the prejudice prong of the
Strickland test,
Stark County, Case No. 2019CA00061 8
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id., at
694, 104 S. Ct. 2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S. Ct.
2052. Counsel’s errors must be “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id., at 687, 104 S. Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104
S. Ct. 2052. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180
Stark County, Case No. 2019CA00061 9
(1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S. Ct. 2052.
Harrington v. Richter, 562 U.S. 86, 104-105, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
ISSUE FOR APPEAL.
A. Whether there is a reasonable probability a motion to suppress the field sobriety
tests would have been granted and whether there is a reasonable probability that the jury
would have found Vales not guilty of OVI if the motion to suppress had been granted.
{¶25} Trial counsel’s failure to file a suppression motion does not per se constitute
ineffective assistance of counsel. State v. Madrigal, 87 Ohio St. 3d 378, 389, 2000–Ohio–
0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56.
Counsel can only be found ineffective for failing to file a motion to suppress if, based on
the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA
130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–
3009, at ¶ 86. The defendant must further show that there is a reasonable probability that
the outcome would have been different if the motion had been granted or the defense
pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91
L. Ed. 2d 305 (1986); see, also, State v. Santana, 90 Ohio St. 3d 513, 739 N.E.2d 798
(2001), citing State v. Lott, 51 Ohio St. 3d 160, 555 N.E.2d 293 (1990).
1). Admissibility of field sobriety tests.
{¶26} The state contends that had Vales filed a motion to suppress, the state
would have presented evidence that Deputy Paumier substantially complied with
Stark County, Case No. 2019CA00061 10
standards promulgated by the National Highway Traffic and Safety Institute for the FST’s.
[State’s Brief at 7].
{¶27} R.C. 4511.19(D) (4)(b) governs the admissibility of results of field sobriety
tests. That subdivision provides:
In any criminal prosecution * * * for a violation of division (A) or (B) of
this section, * * * if a law enforcement officer has administered a field
sobriety test to the operator of the vehicle involved in the violation and if it
is shown by clear and convincing evidence that the officer administered the
test in substantial compliance with the testing standards for any reliable,
credible, and generally accepted field sobriety tests that were in effect at
the time the tests were administered, including, but not limited to, any
testing standards then in effect that were set by the national highway traffic
safety administration, all of the following apply:
(i) The officer may testify concerning the results of the field sobriety
test so administered.
(ii) The prosecution may introduce the results of the field sobriety test
so administered as evidence in any proceedings in the criminal prosecution.
***
(iii) * * * [I]f the testimony or evidence is admissible under the Rules
of Evidence, the court shall admit the testimony or evidence and the trier of
fact shall give it whatever weight the trier of fact considers to be appropriate.
{¶28} In other words, the results of the field sobriety tests are not admissible at
trial unless the state shows by clear and convincing evidence that the officer administered
Stark County, Case No. 2019CA00061 11
the test in substantial compliance with NHTSA guidelines2. State v. Codeluppi, 139 Ohio
St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶11.
{¶29} In order for the results of the field sobriety tests to be admissible, the state
must show by clear and convincing evidence that the officer performing the testing
substantially complied with accepted testing standards. State v. Schmitt, 101 Ohio St. 3d
79, 2004–Ohio–37, 801 N.E.2d 446; R.C. 4511.19(D)(4)(b). Typically, the standards
used are those from the NHTSA. Id. at ¶12. Part of the state’s burden “includes
demonstrating what the NHTSA requirements are, through competent testimony and/or
by introducing the applicable portions of the NHTSA manual.” State v. Djisheff, 11th Dist.
Trumbull No.2005–T–0001, 2006–Ohio–6201 citing State v. Brown, 166 Ohio App. 3d
638, 2006–Ohio–1172, 852 N.E.2d 1228 (11th Dist.); State v. Ryan, 5th Dist. Licking No.
02–CA-00095, 2003–Ohio–2803. In State v. Boczar, the Supreme Court held that HGN
test results are admissible in Ohio without expert testimony, so long as substantial
compliance with testing guidelines has been shown and a proper foundation has been
established as to the administering officer’s training, the officer’s ability to administer the
test and the officer’s technique in administering the test. State v. Boczar, 113 Ohio St. 3d
148, 153, 2007–Ohio–1251, 863 N.E.2d 155.
{¶30} Even if we assume that the testing was not done in substantial compliance
with the applicable standards, reversal would not be warranted in this case. In Beard v.
Meridia Huron Hosp., the Ohio Supreme Court set forth the following standard,
An improper evidentiary ruling constitutes reversible error only when
the error affects the substantial rights of the adverse party or the ruling is
2 National Highway Traffic and Safety Administration.
Stark County, Case No. 2019CA00061 12
inconsistent with substantial justice. O’Brien, 63 Ohio St. 2d at 164–165,
17.O.O.3d 98, 407 N.E.2d 490. “‘Generally, in order to find that substantial
justice has been done to [a party] so as to prevent reversal of a judgment
for errors occurring at the trial, the reviewing court must not only weigh the
prejudicial effect of those errors but also determine that, if those errors had
not occurred, the jury or other trier of the facts would probably have made
the same decision.’” Id., quoting Hallworth v. Republic Steel Corp. (1950),
153 Ohio St. 349, 41 Ohio Op. 341, 91 N.E.2d 690, paragraph three of the
syllabus.
See also, State v. Overmeyer, 5th Dist. Licking No. 15-CA-15, 2015-Ohio-4479, ¶17.
{¶31} In State v. Rahman, the Ohio Supreme Court recognized this principal,
We are also mindful that our role upon review of this case is not to
sit as the supreme trier of fact, but rather to assess the impact of this
erroneously admitted testimony on the jury. In writing about the court’s
function on federal appellate review, Justice John Paul Stevens’
observation is particularly appropriate:
“‘[I]t is not the appellate court’s function to determine guilt or
innocence * * *. Nor is it to speculate upon probable reconviction and decide
according to how the speculation comes out * * *. [T]he question is, not
were [the jury] right in their judgment, regardless of the error or its effect
upon the verdict. It is rather what effect the error had or reasonably may be
taken to have had upon the jury’s decision. The crucial thing is the impact
of the thing done wrong on the minds of other men, not on one’s own, in the
Stark County, Case No. 2019CA00061 13
total setting.’” United States v. Hasting (1983), 461 U.S. 499, 516, 103 S. Ct.
1974, 1984, 76 L. Ed. 2d 96, Stevens, J. concurring (quoting Kotteakos v.
United States [1946], 328 U.S. 750, 763–764, 66 S. Ct. 1239, 1247–1248,
90 L. Ed. 1557).
State v. Rahman, 23 Ohio St. 3d 146, n. 4, 492 N.E.2d 401. The Ohio Supreme Court
has applied this standard of review,
Thus, under Section 2945.83 of the Revised Code it would seem that
since there is substantial evidence to support the guilty verdict even after
the tainted evidence is cast aside, we should affirm. However, under Fahy
v. State of Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963),
and Chapman v. State of California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (decided February 20, 1967), we are refused that course of action. In
Fahy, the court said that when constitutionally inadmissible evidence has
been admitted, a reversal is required where ‘there is a reasonable possibility
that the evidence complained of might have contributed to the conviction.’
(Emphasis added.) [Sic.] In Chapman, the court made it clear that the Fahy
rule applied to federal constitutional errors in spite of a state harmless-error
statute to the contrary.
State v. Cowans, 10 Ohio St.2d 97,104–105, 227 N.E.2d 201(1967).
{¶32} In the case at bar, we find beyond a reasonable doubt, that the evidence of
the HGN, WAT and OLS Standardized Field Sobriety Tests did not contribute to his Vales’
conviction.
Stark County, Case No. 2019CA00061 14
{¶33} “It is generally accepted that virtually any lay witness, including a police
officer, may testify as to whether an individual appears intoxicated. Columbus v. Mullins
(1954), 162 Ohio St. 419, 421, 55 Ohio Op. 240, 123 N.E.2d 422. See, also, State v. McKee
(2001), 91 Ohio St. 3d 292, 296, 744 N.E.2d 737.” State v. Schmitt, 101 Ohio St. 3d 79,
83, 2004-Ohio-37 at ¶ 12, 801 N.E.2d 446, 450(2004); Accord, State v. Hackerdorn, 5th
Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. In State v. Schmitt, the court
indicated there is no reason to treat an officer’s testimony concerning a driver’s
performance on nonscientific field tests any differently from his observations on other
indications of intoxication like slurred speech, bloodshot eyes and the odor of alcohol. Id.
at ¶ 14. The court went on to conclude that even when the final results of a field sobriety
test must be excluded at trial because the test was not administered in compliance with
standardized testing procedures, the officer may testify as a lay witness under Evid.R.
701 about the officer’s observation of the defendant’s performance. Id. at syllabus, ¶ 15.
Thus the results, i.e. whether the defendant passed or failed the specific test are not
admissible without substantial compliance with NHTSA requirements. In State v. Ricer,
this court observed,
The “results” of an HGN test include an officer’s opinion about
whether a person “passed” or “failed” the test, the number of clues a person
demonstrated on an HGN test, and, based upon the number of clues
demonstrated during the HGN test, the statistical likelihood the person was
under the influence of alcohol and had a BAC level over the legal limit.
Bresson [51 Ohio St. 3d 123] at 126–29 [554 N.E.2d 1330]; Kennedy [5th
Dist. No. 2008 AP 04 0026, 2009-Ohio-1398, 2009 WL 795209] at ¶ 27. In
Stark County, Case No. 2019CA00061 15
contrast, an officer’s observation that a defendant was unable to focus
steadily on the stimulus during the HGN test or swayed during a field
sobriety test is the type of physiological factor about which an officer may
testify even if the test was not administered in substantial compliance with
the testing standards. Wickliffe v. Kirara, 11th Dist. No. 2006-L-172, 2007-
Ohio-2304, [2007 WL 1395350], ¶ 19; State v. Koteff, 5th Dist. No. 04-COA-
035, 2005-Ohio-1719, [2005 WL 845208], ¶ 5, 18. Thus, an officer’s
observation that the defendant could not hold himself steady, lost his
balance, stumbled or staggered when he walked, stepped off the line, could
not follow simple directions, or used his arms for balance, is admissible as
lay evidence of intoxication even if the final results of the field sobriety tests
are inadmissible at trial due to a lack of substantial compliance with
accepted testing standards. Schmitt [101 Ohio St. 3d 79, 2004-Ohio-37, 801
N.E.2d 446] at syllabus; State v. Johnson, 7th Dist. No. 05 CO 67, 2007-
Ohio-602 [2007 WL 446024], ¶ 25; State v. Green, 8th Dist. No. 88234,
2007-Ohio-1713 [2007 WL 1084128], ¶ 53; Cleveland v. Hunter, 8th Dist.
No. 91110, 2009-Ohio-1239 [2009 WL 712498], ¶ 62–63; State v. Lothes,
11th Dist. No. 2006-P-0086, 2007-Ohio-4226 [2007 WL 2350997], ¶ 59;
State v. Hammons, 12th Dist. No. CA2004-01-008, 2005-Ohio-1409 [2005
WL 694582], ¶ 5.
5th Dist. Ashland No. 17-COA-023, 2018-Ohio-426, 106 N.E.3d 819, ¶20.
{¶34} Vales did not challenge the basis for the traffic stop in the court below.
However, we note that prior to initiating the stop, Deputy Paumier was informed that
Stark County, Case No. 2019CA00061 16
Vales’ driver license was under a suspension for failure to re-instate, and further, that the
plates on Vales’ vehicle were expired. Next, Vales’ arrest was proper because he was
driving under a suspended license.
{¶35} Probable cause to arrest for OVI need not arise solely from a suspect's field
sobriety tests. Homan, 89 Ohio St. 3d at 427, 732 N.E.2d 952. Probable cause to arrest
exists when, at the moment of the arrest, “the facts and circumstances within [the
arresting police officer's] knowledge * * * were sufficient to warrant a prudent man in
believing that the petitioner had committed or was committing an offense.” Beck v. Ohio,
379 U.S. 89, 91, 85 S. Ct. 223, 13 L.Ed.2d 142(1964); see, also, State v. Timson, 38 Ohio
St.2d 122, 127, 311 N.E.2d 16(1974). The existence of probable cause is determined by
examination of the “‘totality’ of facts and circumstances within an officer's knowledge.”
State v. Miller, 117 Ohio App. 3d 750, 761, 691 N.E.2d 703(1997). “The totality of the
facts and circumstances can support a finding of probable cause to arrest even where no
field sobriety tests were administered or where * * * the test results must be excluded for
lack of strict compliance.” Homan, 89 Ohio St. 3d at 427, 732 N.E.2d 952.
{¶36} In the case at bar, Deputy Paumier could testify that Vales had slurred
speech, glassy and bloodshot eyes, smelled of an alcoholic beverage and that Vales
admitted to having consumed two beers earlier. Deputy Paumier could testify that Vales
could not follow the tip of a pen with his eyes when asked, and that Vales stepped off the
line that she had asked him to walk. Deputy Paumier could testify that she observed
Vales swaying while awaiting the OLS test, and further that he lost his balance during the
test.
Stark County, Case No. 2019CA00061 17
{¶37} Based on the Deputy’s testimony we find that the totality of facts and
circumstances supported a finding of probable cause to arrest Vales for driving under the
influence of alcohol. We further find that probable cause was established even in the
absence or exclusion of the field sobriety test.
{¶38} As there is not a reasonable probability that the jury would have found Vales
not guilty of OVI if the motion to suppress had been granted, trial counsel was not
ineffective in failing to file a motion to suppress3.
{¶39} Vales next contends that his attorney failed to introduce medical records
that were in his possession. Vales argues, “Trial counsel ultimately determined to go to
trial without these important documents.” [Appellant Brief at 6].
B. Whether the failure of trial counsel to offer medical records to substantiate
Vales’ medical condition was ineffective assistance of counsel.
{¶40} A defendant has no constitutional right to determine trial tactics and strategy
of counsel. State v. Cowans, 87 Ohio St. 3d 68, 72, 717 N.E.2d 298(1999); State v.
Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶150; State v. Donkers,
170 Ohio App. 3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶183(11th Dist.). Rather,
decisions about viable defenses are the exclusive domain of defense counsel after
consulting with the defendant. Id. When there is no demonstration that counsel failed to
research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing
court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St. 2d 45, 49,
402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal. 3d 562, 573-574, 102 Cal. Rptr. 841,
498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008 at ¶ 21.
3 The sufficiency of the evidence to support Vales’ conviction will be addressed more fully in
response to Vales’ Second Assignment of Error.
Stark County, Case No. 2019CA00061 18
{¶41} Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel. State v. Phillips, 74 Ohio St. 3d 72, 85, 1995–Ohio–
171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do not
constitute ineffective assistance of counsel. Id. “Poor tactics of experienced counsel,
however, even with disastrous result, may hardly be considered lack of due process * *
*.” State v. Clayton, 62 Ohio St. 2d 45, 48, 402 N.E.2d 1189 (1980)(quoting United States
v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S. Ct. 1112, 10
L. Ed. 2d 143).
{¶42} Further, the Ohio Supreme Court has recognized that if counsel, for
strategic reasons, decides not to pursue every possible trial strategy, defendant is not
denied effective assistance of counsel. State v. Brown, 38 Ohio St. 3d 305, 319, 528
N.E.2d 523(1988). This court must accord deference to defense counsel's strategic
choices made during trial. “A fair assessment of attorney performance requires us to
eliminate the distorting effect of hindsight.” State v. Post, 32 Ohio St. 3d 380, 388, 513
N.E.2d 754 (1987). See State v. Clayton, 62 Ohio St. 2d 45, 49, 402 N.E.2d 1189 (1980).
{¶43} Accordingly, we will not second-guess the judgment of Vales’ counsel.
Vales himself provided testimony of his injuries and medical disabilities. Vales fails to
elucidate with any particularity why the records were necessary or how the result of the
trial was unreliable or unfair because the records were not admitted into evidence.
{¶44} We find that trial counsel’s failure to submit the medical records did not
prejudice Vales resulting in an unreliable or fundamentally unfair outcome of the
proceeding. There is no “reasonable probability” that the trier of fact would not have found
him not guilty had counsel submitted the medical records.
Stark County, Case No. 2019CA00061 19
C. Whether trial counsel was ineffective in failing to object to the photographs of
prescription bottles found in Vales’ car.
{¶45} Vales does not specify or elucidate his claim that the photographs of
prescription bottles found inside his car during an inventory search of his vehicle would
have been inadmissible at trial. Rather his argument is based upon an unsupported
generalization.
{¶46} In State v. Crotts, the Ohio Supreme Court explained,
As a legal term, “prejudice” is simply “[d]amage or detriment to one’s
legal rights or claims.” Black’s Law Dictionary (eighth Ed.1999) 1218. Thus,
it is fair to say that all relevant evidence is prejudicial. That is, evidence that
tends to disprove a party’s rendition of the facts necessarily harms that
party’s case. Accordingly, the rules of evidence do not attempt to bar all
prejudicial evidence—to do so would make reaching any result extremely
difficult. Rather, only evidence that is unfairly prejudicial is excludable.
“‘Exclusion on the basis of unfair prejudice involves more than a
balance of mere prejudice. If unfair prejudice simply meant prejudice,
anything adverse to a litigant’s case would be excludable under Rule 403.
Emphasis must be placed on the word “unfair.” Unfair prejudice is that
quality of evidence which might result in an improper basis for a jury
decision. Consequently, if the evidence arouses the jury’s emotional
sympathies, evokes a sense of horror, or appeals to an instinct to punish,
the evidence may be unfairly prejudicial. Usually, although not always,
unfairly prejudicial evidence appeals to the jury’s emotions rather than
Stark County, Case No. 2019CA00061 20
intellect.’ ” Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St. 3d 169, 172,
743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87,
Section 403.3.
104 Ohio St. 3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24. Accord, State v. Morgan,
5th Dist. Richland No. 18CA121, 2019-Ohio-2785, ¶36.
{¶47} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears, 86 Ohio St. 3d 329, 347, 715 N.E.2d
136 (1999), quoting State v. Holloway, 38 Ohio St. 3d 239, 244, 527 N.E.2d 831(1988).
Accord, State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A
defendant must also show that he was materially prejudiced by the failure to object.
Holloway, 38 Ohio St. 3d at 244, 527 N.E.2d 831.
{¶48} In the case at bar, Vales admitted that he was legally prescribed Percocet,
Atorvastatin, and Thiadiazine. 1T. at 228. He further testified that he participated in pain
management. Id. at 227. Vales testified that he suffered a traumatic brain injury as the
result of a severe beating. That combined with his “sugar” necessitated him taking the
prescribed medications. Deputy Paumier testified that it was because she found the
prescription pill bottles and because Vales had informed her that he took medications,
she requested a urine test as opposed to a breath test. The bottles themselves were not
admitted into evidence.
{¶49} Accordingly, Vales has failed in his burden to demonstrate that the
photographs were improperly admitted into evidence during Vales’ jury trial. Therefore,
counsel was not ineffective in failing to object to the photographs.
D. Whether trial counsel was ineffective for failing to call certain witnesses to testify
at trial.
Stark County, Case No. 2019CA00061 21
{¶50} Vales argues that counsel did not call certain witnesses who would have
testified to Vales’ medical problems. In the case at bar, counsel indicated that Vales
might wish to present the testimony of his sister and his daughter. 1T. at 10.
{¶51} “Generally, counsel’s decision whether to call a witness falls within the
rubric of trial strategy and will not be second-guessed by a reviewing court.” State v.
Treesh, 90 Ohio St. 3d 460, 490, 739 N.E.2d 749(2001). Moreover, “‘[a]ttorneys need not
pursue every conceivable avenue; they are entitled to be selective.’ ” State v. Murphy,
91 Ohio St. 3d 516, 542, 747 N.E.2d 765(2001), quoting United States v. Davenport, 986
F.2d 1047, 1049 (7th Cir. 1993).
{¶52} In the case at bar, Vales testified in his own defense. He provided the jury
with an explanation of his physical disabilities, his medical problems, and of the
prescriptions that he take for those conditions. Evidence was presented that Vales did
not tell Deputy Paumier about his brain injury. The video evidence from Vales’ body
camera shows Vales tell Deputy Paumier about the plates in his toes and wrists. He
further told the deputy that he could perform the FST’s.
{¶53} In his appeal, Vales fails to elucidate with any specificity what additional
facts the uncalled witnesses would have provided. Vales’ claim with respect to both
performance and prejudice rests on mere speculation. “Such speculation is insufficient
to establish ineffective assistance.” State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179,
920 N.E.2d 104, ¶ 217, citing State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶ 219, and State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 121.
Stark County, Case No. 2019CA00061 22
{¶54} As the testimony of the witnesses would have been cumulative to Vales’
own testimony, we conclude that counsel made a legitimate “tactical decision” not to call
these witnesses. Therefore, the decision of counsel not to call these witnesses was not
ineffective assistance.
{¶55} Based upon the foregoing, Vales’ First Assignment of Error is overruled.
II.
{¶56} In his Second Assignment of Error, Vales argues that there was insufficient
evidence to convict him, and further Vales contends that the jury’s findings are against
the manifest weight of the evidence4.
STANDARD OF APPELLATE REVIEW.
Sufficiency of the Evidence.
{¶57} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S. Ct. 2151, 2156, 186 L. Ed. 2d 314 (2013); Hurst v. Florida, 136 S. Ct. 616,
621, 193 L. Ed. 2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St. 3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St. 3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
4 Vales does not challenge his conviction for Driving under Suspension.
Stark County, Case No. 2019CA00061 23
{¶58} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry
is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio
St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency
we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if
believed, [the evidence] would convince the average mind of the defendant's guilt beyond
a reasonable doubt.’” State v. Murphy, 91 Ohio St. 3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We
will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St. 3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St. 3d 421,
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
ISSUE FOR APPEAL
A. Whether, after viewing the evidence in the light most favorable to the
prosecution, the evidence, if believed, would convince the average mind of Vales’ guilt on
each element of the crime of OVI beyond a reasonable doubt.
{¶59} Vales was convicted of one count of OVI. R.C. 4511.19(A)(2) provides,
(2) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of or
Stark County, Case No. 2019CA00061 24
pleaded guilty to a violation of this division, a violation of division (A)(1) or
(B) of this section, or any other equivalent offense shall do both of the
following:
(a) Operate any vehicle, streetcar, or trackless trolley within this state
while under the influence of alcohol, a drug of abuse, or a combination of
them;
(b) Subsequent to being arrested for operating the vehicle, streetcar,
or trackless trolley as described in division (A)(2)(a) of this section, being
asked by a law enforcement officer to submit to a chemical test or tests
under section 4511.191 of the Revised Code, and being advised by the
officer in accordance with section 4511.192 of the Revised Code of the
consequences of the person’s refusal or submission to the test or tests,
refuse to submit to the test or tests.
{¶60} Per se offenses make the blood-alcohol content an element of the offense.
The trier of fact must find only “that the defendant operated a vehicle * * * and that the
defendant's chemical test reading was at the proscribed level.” Newark v. Lucas, 40 Ohio
St.3d 100, 103, 532 N.E.2d 130(1988). In contrast, for “driving under the influence” in
violation of R.C. 4511.19(A),
The amount of alcohol found as a result of the chemical testing of
bodily substances is only of secondary interest. See Taylor, Drunk Driving
Defense (2 Ed.1986) 394, Section 6.0.1. The defendant's ability to
perceive, make judgments, coordinate movements, and safely operate a
Stark County, Case No. 2019CA00061 25
vehicle is at issue in the prosecution of a defendant under such section. It
is the behavior of the defendant which is the crucial issue...
Lucas, 40 Ohio St. 3d at 104, 532 N.E.2d 130.
{¶61} The phrase “under the influence of intoxicating liquor” has been defined as
“[t]he condition in which a person finds himself after having consumed some intoxicating
beverage in such quantity that its effect on him adversely affects his actions, reactions,
conduct, movement or mental processes or impairs his reactions to an appreciable
degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks, 25
Ohio App. 2d 162, 166, 267 N.E.2d 824 (6th Dist. 1971). See, also, State v. Steele, 95
Ohio App. 107, 111, 117 N.E.2d 617 (3rd Dist. 1952) (“[B]eing ‘under the influence of
alcohol or intoxicating liquor’ means that the accused must have consumed some
intoxicating beverage, whether mild or potent, and in such quantity, whether small or
great, that the effect thereof on him was to adversely affect his actions, reactions, conduct,
movements or mental processes, or to impair his reactions, under the circumstances then
existing so as to deprive him of that clearness of the intellect and control of himself which
he would otherwise possess”). See, State v. Henderson, 5th Dist. Stark No. 2004-CA-
00215, 2005-Ohio-1644, ¶ 32; State v. Ahmed, 5th Dist. Stark No. 2007-CA-00049, 2008-
Ohio-389, ¶26.
{¶62} The case law is in agreement that probable cause to arrest may exist, even
without field sobriety tests results, if supported by such factors as: evidence that the
defendant caused an automobile accident; a strong odor of alcohol emanating from the
defendant; an admission by the defendant that he or she was recently drinking alcohol;
and other indicia of intoxication, such as red eyes, slurred speech, and difficulty walking.
Stark County, Case No. 2019CA00061 26
Oregon v. Szakovits, 32 Ohio St. 2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23
Ohio App. 3d 79, 84, 491 N.E.2d 333 (12th Dist. 1985); State v. Bernard, 20 Ohio App. 3d
275, 276, 485 N.E.2d 783 (9th Dist. 1985); Westlake v. Vilfroy, 11 Ohio App. 3d 26, 27,
462 N.E.2d 1241 (8th Dist. 1983); State v. Judy, 5th Dist. No. 2007-CAC-120069, 2008-
Ohio-4520, 2008 WL 4118256, ¶27. State v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37,
801 N.E.2d 446, (2004), ¶15.
{¶63} “It is generally accepted that virtually any lay witness, including a police
officer, may testify as to whether an individual appears intoxicated. Columbus v. Mullins
(1954), 162 Ohio St. 419, 421, 55 Ohio Op. 240, 123 N.E.2d 422. See, also, State v. McKee
(2001), 91 Ohio St. 3d 292, 296, 744 N.E.2d 737.” State v. Schmitt, 101 Ohio St. 3d 79,
83, 2004-Ohio-37, 801 N.E.2d 446, 450, at ¶ 12 (2004); Accord, State v. Hackerdorn, 5th
Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67.
{¶64} In the case at bar, Deputy Paumier encounter a vehicle that several times
drove over the curb, nearly striking several poles along the roadway. Deputy Paumier
testified that Vales had slurred speech, glassy and bloodshot eyes, smelled of an
alcoholic beverage and that Vales admitted to having consumed two beers earlier.
Deputy Vales could testify that Vales could not follow the tip of a pen with his eyes when
asked, and that Vales stepped off the line that she had asked him to walk. Deputy
Paumier could testify that she observed Vales swaying while awaiting the OLS test, and
further that he lost his balance during the test. Deputy Paumier further testified that Vales
refused a urine test when requested.
{¶65} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
Stark County, Case No. 2019CA00061 27
reasonable doubt that Smith had committed the crime of OVI in violation of R.C.
4511.19(A)(2). We hold, therefore, that the state met its burden of production regarding
each element of the crime of OVI and, accordingly, there was sufficient evidence to submit
the charge to the jury and to support Vales’ conviction.
Manifest weight of the evidence.
{¶66} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St. 3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Stark County, Case No. 2019CA00061 28
{¶67} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St. 3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶68} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
Stark County, Case No. 2019CA00061 29
ISSUE FOR APPEAL.
B. Whether the jury clearly lost their way and created such a manifest miscarriage
of justice that the convictions must be reversed and a new trial ordered.
{¶69} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St. 3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St. 3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶70} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw the events as they transpired in real-time because the events were recorded
on Deputy Paumier’s body camera and admitted into evidence during the trial. Further,
the jury was able to observe both Deputy Paumier and Vales subject to cross-
Stark County, Case No. 2019CA00061 30
examination. In addition, the jury heard Vales’ and his attorney’s arguments and
explanations about his actions. Thus, a rational basis exists in the record for the jury’s
decision.
{¶71} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St. 3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Vales’ conviction is not against
the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears
to have fairly and impartially decided the matters before them. The jury heard the
witnesses, evaluated the evidence, and was convinced of Vales’ guilt. The jury neither
lost his way nor created a miscarriage of justice in convicting Vales of OVI.
{¶72} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime for which Vales was convicted.
{¶73} Vales’ Second Assignment of Error is overruled.
III.
{¶74} In his Third Assignment of Error, Vales challenges the trial court's ruling that
he had refused to take a chemical analysis of his breath, and thereby violated R.C.
4511.191. Vales concedes that evidence of his refusal to take a urine test may be used
against him at trial, but that it shouldn't have in this case because Vales attempted to
revoke this refusal and submit to the test after his arrest.
Stark County, Case No. 2019CA00061 31
STANDARD OF APPELLATE REVIEW.
{¶75} With respect to the admissibility of evidence at trial of a defendant’s refusal
to take a chemical test, the United States Supreme Court has held that such evidence
does not violate the defendant’s Fifth Amendment right against self-incrimination nor the
Fourteenth Amendment right to due process. South Dakota v. Neville, 459 U.S. 553, 103
S. Ct. 916, 74 L.Ed.2d 748(1983). Similarly, the Ohio Supreme Court has concluded that
under certain circumstances, evidence of a refusal to submit to a chemical test can be
used against a defendant at trial. See Columbus v. Mullins, 162 Ohio St. 419, 55 Ohio Op.
240, 123 N.E.2d 422(1954); and Westerville v. Cunningham, 15 Ohio St. 2d 121, 44
O.O.2d 119, 239 N.E.2d 40(1968).
{¶76} The reason a person refused to take the breath test is a disputed issue of
fact to be resolved by the jury under proper instructions from the trial judge. City of
Maumee v. Anistik, 69 Ohio St. 3d 339, 344, 1994-Ohio-157, 632 N.E.2d 497. This Court
has applied the Ohio Supreme Court’s determination that evidence regarding a refusal to
submit to a breath or blood test is admissible at trial. See State v. Frangella, 5th Dist.
Richland No. 11CA43, 2012-Ohio-1863, ¶44.
ISSUE FOR APPEAL.
Whether the trial court provided the jury a legally correct refusal instruction.
{¶77} In Maumee v. Anistik, 69 Ohio St. 3d 339, 632 N.E.2d 497 (1994), syllabus,
the Ohio Supreme Court held that a trial court may issue a refusal instruction to the jury
if a person arrested for an OVI refuses to submit to chemical testing “and the reason given
for the refusal is conditional, unequivocal, or a combination thereof * * *.” The Court then
approved specific language for such an instruction,
Stark County, Case No. 2019CA00061 32
“Evidence has been introduced indicating the defendant was asked
but refused to submit to a chemical test of his [or her] breath to determine
the amount of alcohol in his [or her] system, for the purpose of suggesting
that the defendant believed he [or she] was under the influence of alcohol.
If you find the defendant refused to submit to said test, you may, but are not
required to, consider this evidence along with all the other facts and
circumstances in evidence in deciding whether the defendant was under the
influence of alcohol.”
Maumee v. Anistik, 69 Ohio St. 3d 339, 632 N.E.2d 497, syllabus.
{¶78} In the case at bar, the trial court provided the jury with a legally correct
refusal instruction5, and the instruction allowed the jury, as the ultimate finder of fact, to
determine whether or not defendant refused to submit to a chemical test of his breath.
Because the court’s instruction was a correct statement of the law, the trial court did not
abuse its discretion in instructing the jury. Furthermore, the instruction did not amount to
prejudicial error.
{¶79} The jury heard Vales’ explanation concerning Deputy Paumier’s request
that he submit to a urine test. The jury heard Vales’ explanation concerning whether or
not he had refused to submit to a urine test. The jury viewed the body camera video
footage showing in real time as the events transpired Vales’ responses to Deputy
Paumier’s request that he submit to a urine test.
{¶80} Based on the foregoing, Vales’ Third Assignment of Error is overruled.
5 1T. at 254.
Stark County, Case No. 2019CA00061 33
{¶81} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Hoffman, P.J., and
Wise, John, J., concur