State v. Jendrusik

[Cite as State v. Jendrusik, 2022-Ohio-3525.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JOSEPH EDWARD JENDRUSIK JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0043
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 21 CR 165
BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, Atty. Daniel P. Fry, Assistant
Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950 for Plaintiff-
Appellee and
Atty. Adam L. Myser, Myser & Myser, 320 Howard Street, Bridgeport, Ohio 43912 for
Defendant-Appellant.
Dated: September 30, 2022
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Robb, J.
{¶1} Appellant, Joseph Edward Jendrusik Jr., appeals his sentence and the
order denying his motion to suppress after pleading no contest to operating a motor
vehicle while under the influence of alcohol (OVI) in violation of R.C. 4511.19(A)(1)(e)
and (G)(1)(e), a third-degree felony, with a repeat offender specification under R.C.
2941.1413. He was sentenced to eight years in prison, consisting of a five-year term for
his repeat OVI offender specification to run consecutive to 36 months for the underlying
OVI conviction, a $5,000 fine, and a lifetime license suspension.
{¶2} Appellant argues on appeal the trial court should have suppressed the
results of his field sobriety test, and absent the results, the officer lacked probable cause
to arrest him. Appellant also claims the trial court erred in imposing the maximum
sentence. For the following reasons, we find that although suppression of his field
sobriety test was warranted, the trooper nevertheless had probable cause to arrest him
for operating his vehicle while under the influence. We also find his sentence is supported
by the record, and thus we affirm.
Statement of the Case
{¶3} On June 29, 2021,1 an anonymous caller reported a driver was operating
his car while under the influence in Barkcamp State Park. Ohio State Patrolman Scott
Bayless was dispatched and found Appellant driving a car that matched the description
in the area. After pulling Appellant over, Bayless noticed Appellant’s eyes were bloodshot
and glassy and his breath smelled like alcohol. Bayless also noted Appellant’s speech
was slurred. He had Appellant exit the vehicle. At this point, Bayless observed Appellant
having difficulty standing, and Bayless had to catch him from falling in a ditch. Bayless
also observed Appellant had urinated in his pants. (Suppression Tr. 6-9.)
{¶4} As a result of Bayless’ observations, he asked Appellant to complete certain
field sobriety tests. Appellant advised Bayless he could not complete two of the three
tests because he had bad knees. The only test Bayless conducted was the horizontal
1The grand jury indictment states the offense occurred on or about June 29, 2021 whereas the Ohio State
Highway Patrolman, who arrested Appellant, testified that the offense occurred July 1, 2021. The precise
date of the offense is not an issue on appeal.
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gaze nystagmus (HGN) test, which Bayless said Appellant failed. Bayless placed
Appellant under arrest and assisted him into the cruiser. (Suppression Tr. 9-14.)
{¶5} Bayless administered Appellant’s urinalysis test at 3:11 p.m., approximately
two hours after the stop, and it tested in excess of the legal limit. (Suppression Tr. 21-
24.) Bayless also remembered Appellant telling him he drank two warm beers that day
but he could not remember if Appellant made this admission before or after he was
arrested. (Suppression Tr. 20.)
{¶6} Appellant was charged via a grand jury indictment with three counts: 1.)
operating a motor vehicle under the influence in violation of R.C. 4511.19(A)(1)(a),
(G)(1)(e), a third-degree felony with a specification as a repeat offender, indicating that
within 20 years of the offense Appellant was convicted of five OVI violations; 2.) operating
a motor vehicle under the influence of alcohol with a certain blood alcohol concentration,
in violation of R.C. 4511.19(A)(1)(e), (G)(1)(e), a third-degree felony, with a repeat
offender specification; and 3.) operating a motor vehicle on a suspended license in
violation of R.C. 4510.14(A), (B)(2), a first-degree misdemeanor. (August 4, 2021
Superseding Indictment.)
{¶7} Appellant initially plead not guilty and was released on bond. After the
exchange of discovery, Appellant filed a combined motion to dismiss, motion to suppress,
and motion in limine seeking the court to dismiss the charges against him, or alternatively
to suppress evidence. In part, he urged the court to suppress the results of the field
sobriety test as not in accordance with governing standards. He also alleged the officer
lacked probable cause to arrest him. (August 18, 2021 Motion.) The state did not file a
written response. The trial court held a hearing on the motion in September of 2021, and
overruled it. (October 6, 2021 Judgment Entry.)
{¶8} Appellant subsequently changed his plea and plead no contest to count two
and the attendant specification, with the state agreeing to dismiss counts one and three.
Appellant was convicted of operating a motor vehicle while under the influence of alcohol
with the specification that he had five prior OVI convictions during the prior 20 years.
Appellant was sentenced to five years for the repeat OVI offender offense to be served
consecutive to 36 months in the penitentiary for the underlying OVI offense, for an
aggregate sentence of eight years, a $5,000 fine, and a lifetime license suspension.
(October 8, 2021 No Contest Plea, Adjudication, and Sentencing Entry.)
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{¶9} Appellant timely appealed and raises three assignments of error.
Motion to Suppress Field Sobriety Test Results
{¶10} Appellant’s first assignment of error asserts:
“The trial court erred in not suppressing the results of the field sobriety tests.”
{¶11} Appellant contends the trial court should have suppressed the results of his
field sobriety tests pursuant to State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-6604, 947
N.E.2d 257 (7th Dist.), because the state failed to establish the test was administered in
compliance with the National Highway Traffic Safety Administration (NHTSA) manual. He
claims that while the state presented testimony from the state trooper detailing the
manner in which the test was conducted, it failed to procure any corresponding and
necessary testimony about the standards governing the test and likewise did not admit
the NHTSA manual outlining the administration of the test. Absent this information,
Appellant argues the court could not determine whether the test was administered in
accordance with the governing standards. Thus, he seeks reversal and an order
excluding the test results.
Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses. * * * Consequently, an
appellate court must accept the trial court's findings of fact if they are
supported by competent, credible evidence. * * * Accepting these facts as
true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶12} To admit field sobriety test results, the state must show the police
administered the test in substantial compliance with standardized testing
procedures. Strongsville v. Troutman, 8th Dist. Cuyahoga No. 88218, 2007-Ohio-1310,
at ¶ 22, citing R.C. 4511.19.
{¶13} R.C. 4511.19(D)(4)(b) states a court shall admit officer testimony about the
results of field sobriety tests or other evidence about the results, which are admissible
under the Rules of Evidence, for the trier of fact to consider “if it is shown by clear and
Case No. 21 BE 0043
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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
* * *.”
{¶14} Only general testimony is required to establish substantial compliance with
field sobriety tests unless a defendant raises a specific and particular challenge to a test.
State v. Bish, supra, at ¶ 16. When presented with a specific challenge as grounds for
suppression, the burden shifts to the state to prove substantial compliance. Id.; State v.
Holzapfel, 2nd Dist. Darke No. 2013-CA-17, 2014-Ohio-4251, ¶ 11. If there is insufficient
evidence to support that a test was performed in substantial compliance with the
applicable standards, suppression is warranted. Id. at ¶ 17.
{¶15} Here, Appellant argued in his suppression motion that the horizontal gaze
nystagmus (HGN) test was inadmissible since it was out of substantial compliance with
the NHTSA guidelines. He challenged the officer’s alleged failure to conduct a medical
check, failure to “grade” the test, failure to perform the test for the required duration, failure
to perform the HGN test the number of required times, and failure to stop when nystagmus
was observed. (August 18, 2021 Motion.) Because Appellant sufficiently challenged the
administration of the field sobriety tests in his motion to suppress with particularity, the
burden shifted to the state to establish via clear and convincing evidence that the officer
administered the test in substantial compliance with the testing standards. State v. Hill,
7th Dist. Columbiana No. 07-CO-12, 2008-Ohio-3249, ¶ 26, citing State v. Johnson, 137
Ohio App.3d 847, 851, 739 N.E.2d 1249 (2000).
{¶16} Thus, it was incumbent upon the state to produce some evidence
establishing the testing standards either via testimony or introduction of the testing
manual as evidence, in addition to evidence detailing how the officer administered the
test for comparative purposes. State v. Akers, 2016-Ohio-7216, 72 N.E.3d 135, ¶ 26 (7th
Dist.), citing R.C. 4511.19(D)(4)(b).
{¶17} In response, the state contends there was sufficient testimony at the hearing
establishing the HGN test was administered in substantial compliance with the manual
and supporting the trial court’s conclusion overruling the motion to suppress. We
disagree.
{¶18} In Akers, this court found the officer’s testimony about the field sobriety test
inadmissible. We explained not only was there no mention of the NHTSA manual or the
Case No. 21 BE 0043
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requirements it contained, but also found the trooper’s testimony lacked any detail as to
what the results should have been in order to determine some level of impairment. Id. at
¶ 28. “[H]aving a trooper testify about how the trooper administered various tests is not
sufficient. * * * Based on such evidence alone, it would be impossible to determine if the
tests were performed in substantial compliance with the NHTSA or any other set of
standards.” Id. ¶ 30, citing Bish at ¶ 28. Accord State v. Smith, 7th Dist. Columbiana No.
13 CO 10, 2014-Ohio-2933, ¶ 19-21 (field sobriety test results should have been
suppressed due to lack of clear and convincing evidence establishing the governing
standards).
{¶19} In this case, Ohio State Highway Patrolman Scott Bayless was the only
witness to testify at the September 13, 2021 suppression hearing. He was a patrolman
for 17 years at the time of his testimony. He received specialized training in identifying
impaired drivers during his basic training with instructional updates for administering field
sobriety tests throughout his career. Bayless testified he has administered approximately
“a couple hundred” field sobriety tests. (Tr. 3-5.)
{¶20} He testified that on July 1, 2021 at approximately one in the afternoon, he
learned via dispatch about a possible impaired driver in the Barkcamp State Park beach
area. An unknown caller reported an impaired driver in this area, described the vehicle,
and provided the license plate number. About five minutes later, Bayless saw the
matching vehicle and initiated a traffic stop. (Tr. 6-8.)
{¶21} Bayless pulled over Appellant’s vehicle because it had a cracked
windshield, an equipment violation. Bayless approached the driver’s side of the vehicle
and smelled alcohol. He also noticed Appellant’s eyes were bloodshot and glassy. Due
to these indicators, Bayless asked Appellant to exit the vehicle. Bayless described
Appellant as “unsteady on his feet.” Bayless also saw Appellant had urinated in his jeans.
Bayless continued to smell alcohol during the safety pat down. (Tr. 8-10.)
{¶22} At that point, Bayless decided to conduct field sobriety tests, but was only
successful in administering one because Appellant was unable to stand. Bayless
conducted the HGN test during which Appellant had to lean or catch his balance on the
cruiser. Bayless then had to catch Appellant and stabilize him because he was losing
balance toward a ditch. (Tr. 9-11.)
Case No. 21 BE 0043
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{¶23} Bayless also indicated Appellant’s speech was slurred but conceded he had
never heard Appellant speak before that day. Bayless said Appellant’s speech was
consistent with someone who was impaired. (Tr. 11-12.)
{¶24} Appellant told Bayless he had problems with his knees from the military, but
Appellant did not indicate he had any medical issues with his eyes. Bayless asked him if
he was on any medication, and Appellant told him the only one that would “impair him”
was the Valium he took that morning. Appellant told him he takes several prescription
medications but did not identify which ones, and Bayless did not inquire. (Tr. 17-18.)
{¶25} Bayless stated that in his opinion, Appellant failed the HGN test. He did not
identify or explain the procedural requirements from the manual for each aspect of the
test, but Bayless described what he did and how he administered each feature, without
referencing the manual or stating he did so consistent with the applicable standards.
During Bayless’ direct examination, the state did not reference the NHTSA manual or any
other HGN test guidelines. The state likewise did not ask Bayless to confirm the
applicable NHTSA standards through his testimony or as an exhibit. (Tr. 12-14.)
{¶26} On cross-examination, Bayless agreed Appellant was wearing sunglasses
at the time of the stop and Bayless did not smell urine. Bayless recalled looking down at
Appellant’s eyes and seeing them behind his glasses during the initial approach and
explained he had Appellant remove his glasses for the HGN test. Bayless described
smelling alcohol coming from Appellant’s breath when counsel suggested Appellant may
have spilled a beer. Bayless also acknowledged Valium could cause nystagmus and
present a false positive on the HGN test. (Tr. 38.)
{¶27} Bayless provided more detail during his cross-examination about the HGN
test and how he administered it than was provided on direct examination. He verified he
was trained pursuant to the NHTSA manual and he generally conducted the test
consistent with his training. Yet, he was not asked nor did he testify about the actual
guidelines governing the administration of the HGN test to enable the court to assess
whether he complied with them. (Tr. 40-43.) At the conclusion of his testimony, the court
asked the following:
Trooper, you talked about the time span during which you were performing
the horizontal gaze nystagmus?
THE WITNESS: Correct.
Case No. 21 BE 0043
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THE COURT: You weren’t sure exactly what the time was, but was the time
factor that you’ve used consistent with your training?
THE WITNESS: Yes, it is. It’s consistent among how I’ve – * * * It’s just
through conditioning. It’s going to be consistent with all of my other tests
that I’ve run.
(Tr. 51.)
{¶28} Bayless stated he successfully administered the HGN test and then
separately told the court the test was performed consistent with his training. Bayless also
agreed on cross-examination that he administered it consistent with the NHTSA Manual.
Nevertheless, the state never had him identify the requirements, explain the test or the
number of “clues” that indicate impairment and did not introduce the NHTSA manual as
an exhibit. Thus, the standards governing the HGN test were not before the court to
compare to Bayless’ testimony.
{¶29} As this court found in Akers, there was no testimony or evidence here
showing what constitutes “failing” the HGN test. The state did not elicit testimony setting
forth the contents of the NHTSA manual, proffer it as an exhibit, or ask the court to take
judicial notice of it to enable the court to compare Bayless’ testimony about his
administration of the HGN test and whether he substantially complied with the standards.
Moreover, Bayless did not testify about what the results had to be in order for him to
conclude there was some level of impairment. He was not asked to identify or explain
what the clues of impairment were, but instead testified in summary fashion about how
he administered the test and then said Appellant had six clues of impairment without
identifying them. Although there were references Bayless was trained, experienced, and
used the NHTSA standards, the state did not identify what the standards were. Thus,
based on the lack of evidence, it was impossible for the court to determine if the test was
performed in substantial compliance with the applicable guidelines. Akers, supra, at ¶
30-31, citing Bish at ¶ 28.
{¶30} Based on this court’s precedent set forth in Bish and Akers, we conclude
suppression was warranted and this assigned error has merit. Notwithstanding, as set
forth in Appellant’s second assigned error, the trooper still had probable cause to arrest
him for OVI without the HGN test.
Case No. 21 BE 0043
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Probable Cause to Arrest
{¶31} Appellant’s second assignment of error asserts:
“The trial court erred in finding that the arresting officer had probable cause to
place the defendant-appellant under arrest for a violation of R.C. 4511.19, OVI.”
{¶32} Appellant argues the trooper’s observations that Appellant appeared under
the influence, without the result of the HGN test, were not enough for probable cause to
arrest for driving under the influence. The state contends even when excluding the results
of the HGN test, there was more than enough evidence establishing probable cause for
Appellant’s arrest based on the totality of the circumstances. We agree.
{¶33} Whether there was probable cause to arrest is a legal issue that we review
de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657 (1996); Columbus
v. Horton, 10th Dist. Franklin No. 13AP-966, 2014-Ohio-4584, ¶ 13.
{¶34} An arrest without a warrant violates the Fourth Amendment unless the
arresting officer has probable cause to make the arrest. “The standard for determining
whether there was probable cause to arrest for OVI is whether, at the moment of arrest,
the police had sufficient information, derived from a reasonably trustworthy source of facts
and circumstances, sufficient to cause a prudent person to believe that the suspect was
driving under the influence.” State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-6604, 947
N.E.2d 257, ¶ 47 (7th Dist.), citing State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d
952 (2000). “That determination is based on the totality of the facts and circumstances
surrounding the arrest.” Id.{¶35} The totality of the circumstances surrounding a stop can support a finding
of probable cause to arrest even if field sobriety tests were not administered. State v.
Penix, 11th Dist. Portage No. 2007-P-0086, 2008-Ohio-4050, ¶ 29. If a defendant
successfully challenges field sobriety tests and the results are suppressed, a police officer
may testify about her observations made while administering the field tests. State v.
Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 14-15, superseded by statute on other
grounds as stated in State v. Miracle, Butler App. No. CA2003-11-275, CA2003-11-283,
2004-Ohio-7137, ¶ 18; State v. Griffin, 12th Dist. Butler No. CA2005-05-118, 2006-Ohio-
2399, ¶ 11.
{¶36} In State v. Wardle, 7th Dist. Mahoning No. 16 MA 0150, 2017-Ohio-9238,
¶ 14, this court found that the defendant’s erratic driving, using cigarette smoke to cover
Case No. 21 BE 0043
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the odor of alcohol, avoiding eye contact, and refusing to take field sobriety tests were
sufficient to constitute probable cause to arrest for OVI.
{¶37} In State v. Homan, supra, the Ohio Supreme Court found the “defendant's
erratic driving, her red and glassy eyes, the smell of alcohol on her breath, and her
admission to consuming alcoholic beverages, amply supported the trooper's decision to
place her under arrest, even where no field sobriety tests were performed or where the
results were suppressed.” Akers, supra, at ¶ 37, citing Homan at 427.
{¶38} In State v. Leffler, 7th Dist. Columbiana No. 18 CO 0032, 2019-Ohio-3964,
¶ 21, we found probable cause to arrest for driving under the influence based on Leffler’s
refusal to submit to field tests and chemical tests; trying to avoid eye contact; strong odor
of alcohol; admission of drinking; glassy and bloodshot eyes; and slurred speech.
{¶39} Consistent with the foregoing cases, there was more than enough evidence
based on Bayless’ observations here for him to have probable cause to arrest Appellant
even when the HGN test results are excluded. As stated, Bayless testified Appellant had
glassy and bloodshot eyes, slurred speech, and his breath smelled of alcohol. After
Appellant exited his car, Bayless also noticed he had urinated in his jeans. Appellant was
also unable to stand without leaning on the cruiser, and Bayless had to catch him to
prevent him from falling in a ditch.
{¶40} Based on these observations, in addition to the fact a concerned citizen had
called and given a description of Appellant’s car and his license plate number, Bayless
had probable cause to place Appellant under arrest for operating his vehicle under the
influence. State v. Stringer, 4th Dist. Scioto No. 97CA2506, 1999 WL 105095, *12 (“An
informant’s tip may contribute to the circumstances supporting probable cause to arrest.”)
{¶41} As for his glassy and red eyes, Appellant claims this was related to or
caused by his removal of his sunglasses. Appellant also contends his inability to stand
was the result of medical conditions, i.e., bad knees and consumption of Valium earlier
that day. However, these facts and arguments were before the trial court for it to consider,
and it rejected them. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8 (“When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.”)
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{¶42} Based on the totality of the facts and circumstances surrounding the arrest,
Bayless had probable cause to arrest Appellant for operating his vehicle while under the
influence even without the results of the HGN test. Accordingly, Appellant’s second
assignment of error lacks merit.
Sentencing
{¶43} Appellant’s third assignment of error asserts:
“The trial court erred in the institution of its sentence in that said sentence is not
supported by the record nor by findings under R.C. 2929.13 or R.C. 2929.14.”
{¶44} Appellant argues the trial court erred in sentencing him to the maximum
allowable sentence because none of the “more serious” factors were applicable. He also
contends the trial court did not consider his military service or that his alcohol issues stem
from his time in the military. Appellant essentially urges us to find his sentence is
unsupported by the record. We disagree.
{¶45} R.C. 2953.08(G)(2) sets forth our standard of review when considering a
challenge to a trial court’s criminal sentencing decision. It states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying
the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate
the sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not whether
the sentencing court abused its discretion. The appellate court may take
any action authorized by this division if it clearly and convincingly finds
either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶46} “‘Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
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as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶
22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus. Thus, we are authorized to “increase, reduce, or otherwise modify
a sentence only when [we] clearly and convincingly find * * * that the sentence is (1)
contrary to law and/or (2) unsupported by the record.” State v. McGowan, 147 Ohio St.3d
166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1.
{¶47} In sentencing an offender for a felony, a trial court is required to consider
the purposes of felony sentencing in R.C. 2929.11(A) and contemplate the statutory
seriousness and recidivism factors in R.C. 2929.12(A). State v. Morefield, 2014-Ohio-
5170, 24 N.E.3d 633, ¶ 35 (2d Dist.). A sentencing court does not have to use specific
language and render precise findings to satisfactorily “consider” the relevant seriousness
and recidivism factors. State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 79 (11th Dist.).
A sentencing court is not required to indicate that it considered the statutes setting forth
the overriding purposes of felony sentencing and the factors to consider in felony
sentencing; instead, it is presumed to have considered them. State v. Coots, 2015-Ohio-
126, 27 N.E.3d 47, ¶ 82 (2d Dist.). Moreover, when imposing the maximum sentence, a
sentencing court is no longer required to enunciate special findings to support its
imposition of the maximum term. State v. Hudson, 2017-Ohio-645, 85 N.E.3d 371, ¶ 40
(7th Dist.).
{¶48} In fact, the Ohio Supreme Court has explicitly held “R.C. 2953.08(G)(2)
does not allow an appellate court to modify or vacate a sentence based on its view that
the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” State v.
Bryant, __ Ohio St.3d. __, 2022-Ohio-1878, __ N.E. 3d.__, ¶ 22 citing State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31, 39. Notwithstanding, we
conclude the record, applicable factors, and Appellant’s history support Appellant’s
sentence.
{¶49} At Appellant’s sentencing hearing, the trial court emphasized he has eight
prior OVI convictions and this is his ninth. The trial court relied on Appellant’s presentence
investigation report produced in connection with his prior criminal case, which was not
supplemented in this case. Neither party objected or requested supplementation.
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According to the report, the court relayed Appellant also had convictions for a “physical
control” OVI conviction, which it described as a different type of OVI; misdemeanor “hit-
skip”; failure to control; domestic violence; and disorderly conduct. (Sentencing Tr. 26.)
{¶50} Moreover, the court highlighted that when Appellant was pulled over for the
instant offense, he had recently been released from prison for a prior OVI conviction.
(Sentencing Tr. 29.) The trial court also emphasized Appellant was risking his own safety
as well as the safety of others by driving through the state park while he was so intoxicated
that he was unable to stand. (Sentencing Tr. 26-27.)
{¶51} During the plea aspect of the hearing, the prosecutor relayed what the
evidence would show at trial, and he recounted that an individual called to report Appellant
driving drunk on the date of his arrest. The caller described Appellant driving down the
middle of the road before pulling over to use the restroom. At that point, the witness
described Appellant as not being able to stand and unable to locate the bathroom door.
The witness smelled alcohol on him and saw Appellant urinate himself before he drove
away. These facts were in addition to the trooper’s testimony. (Sentencing Tr. 9-10.)
{¶52} The court then explained Appellant has not responded well to other
sanctions, noting his history of driving while on community control in violation of the terms
of his release before being ordered to return to the penitentiary. The court also
emphasized Appellant already had a lifetime license suspension when he was pulled over
for this offense. (Sentencing Tr. 29.)
{¶53} During the plea aspect of the hearing, the trial court acknowledged
Appellant was an honorably-discharged veteran of the United States Army. Further,
Appellant asked the court not to sentence him to prison and noted he had been a medic
in the Army. (Sentencing Tr. 6 & 25.) Thus, the court was well aware of Appellant’s
service and is presumed to have considered it when fashioning his sentence. Coots,
supra.
{¶54} Additionally, when Appellant spoke at the hearing, he did not express
remorse but was focused on trying to avoid being sent to prison. He asked the court to
allow him to stay home, indicating he does not need to drive because he had numerous
people to help him. He also said he does not “need to drink,” which tends to downplay
his substance abuse issues. (Sentencing Tr. 24-26.) At that point, the court recited
Appellant’s prior offenses and detailed the facts underlying this offense before concluding
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the public needed protection from him and he was imposing the sentence to protect
Appellant and the community from Appellant driving under the influence and either killing
himself or others as a result. (Sentencing Tr. 30.)
{¶55} Contrary to Appellant’s argument, his time in the service was before the trial
court for it to consider, and Appellant does not show the trial court did not consider this
fact when fashioning his sentence. Further, Appellant does not direct this court’s attention
to anything showing a connection between Appellant’s time in the military and his
substance abuse issues. Based on the foregoing, we cannot clearly and convincingly
find his sentence is unsupported by the record. McGowan, supra. This assignment of
error lacks merit and is overruled.
Conclusion
{¶56} Although this court concludes Appellant’s first assigned error has merit and
the trial court should have suppressed the field sobriety test results, there was no
prejudice as a result. As detailed in Appellant’s second assignment of error, even when
excluding the HGN test results, the trooper had probable cause to arrest him for OVI
based on the totality of the circumstances surrounding the stop.
{¶57} Last, Appellant’s third assignment of error lacks merit and fails to show his
sentence is contrary to law or unsupported by the record. Accordingly, the trial court’s
judgment is affirmed.
Donofrio, P J., concurs.
D’Apolito, J., concurs.
Case No. 21 BE 0043
[Cite as State v. Jendrusik, 2022-Ohio-3525.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.