[Cite as State v. Luntz , 2021-Ohio-4045.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. SUSAN LUNTZ Appellant C.A. No. 21CA0005-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 19TRC06402

DECISION AND JOURNAL ENTRY Dated: November 15, 2021

SUTTON, Judge. {¶1} Defendant-Appellant Susan Luntz appeals the judgment of the Med ina Municipal

Court. For the reasons that fo llow, this Court affirms.

I. Relevant Background Information {¶2} The present appeal arises from a traffic stop on September 7, 2019, at 2:35 a.m., on Sleepy Hollow Road in Brunswick Hills Township, located in M edina County. Officer Zachary Getto, a patrolman for Brunswick Hills Police Departmen t, observed a 2013 Kia Soul, with no headlights on, exit a parking lot behind a local bar on to a dark road. The vehicle pulled up to an intersection at a red light behind Officer Getto’s pol ice cruiser, still with no headlights. Officer Getto “flipped around” in a parking lot, got behind the Kia Soul, and the vehicle’s operator then turned on the headlights.2

{¶3} Officer Getto performed a traffi c stop wherein he encountered M s. Luntz, the driver and sole occupant of the vehicle. Based upon Officer Ge tto’s observations of Ms. Luntz’s “watery eyes,” “mumbled speech,” and “a strong odor of alcohol” coming from the vehicle, in conjunction with the headlights vi olation, Officer Getto had Ms . Luntz exit the vehicle in order to perform standardized field sobriety tests, including the hor izontal gaze nystagmus test (“HGN”), the walk-and-turn test , and the one-leg stand test. A fter Ms. Luntz’s performance on the standardized field sobriety tests, which was captured on vi deo by Officer Getto’s body camera, Ms. Luntz was placed under a rrest for operating a vehic le under the influence of alcohol, pursuant to R.C. 4511.19(A)(1)(a), and was also cited for a hea dlight violation, pursuant to R.C. 4513.03(A). Although Ms. Luntz maintained she had not had any alcoholic beverages that evening, she refused to submit to a breathalyzer test at the Br unswick Hills Police Station, and

her driver’s license w as immediately suspended. {¶4} On September 9, 2019, Ms. Luntz, through counsel, pleaded not g uilty, waived her speedy trial rights, and reque sted the matter be set for a pre-trial. On October 31, 2019, the record reveals a pre-trial conference was held and Ms. Luntz ap peared with counsel. The pretrial conference report indicated discovery was complete. A fi nal pre-trial was held on November 13, 2019, wherein the State and Ms. Luntz were unable to reach resolution prior to trial. A bench trial was scheduled on January 7, 2020. Howeve r, on November 21, 2019, Ms. Luntz’s new attorney filed a notice of appearance and substitut ion of counsel on behalf of Ms. Luntz, and also filed a jury dem and and discovery request. The matter was then set for a jury trial on January 30, 2020.3

Motion to Suppress {¶5} Prior to trial on December 27, 2019, pursuant to Crim.R.12, Ms. Luntz filed a motion for leave to file a suppr ession motion outside of the ti me requirement allowed in the Ohio

Rules of Criminal Procedure. 1 Ms. Luntz also attached the proposed motion to suppress as Exhibit A and requested an oral hearing. In her motion for lea ve to file, Ms. Luntz stated her former counsel failed to timely file both a motion to suppress and a motion for leave to file. However, Ms. Luntz did not indicat e any actual reasons for thes e alleged failures. Further, Ms. Luntz did not explain why her cu rrent counsel waited thirty-sev en days, from the filing of his notice of appearance, to seek leave to file. {¶6} On December 30, 2019, only three days after the motion was file d, the trial court granted Ms. Luntz the requeste d leave to file the suppression m otion and set it for oral hearing on January 10, 2020. However, the State filed a motion for recons ideration because Ms. Luntz did not properly serve the State with the motion and the State firs t learned of the motion through the trial court’s ruling. In so doi ng, the State revealed that, pr ior to Ms. Luntz filing the leave to file, the State informed her counsel that it would object to such a m otion if filed. Further, on December 6, 2019, the State provided Ms. Luntz’s counsel with c ontact information, including a facsimile number for purposes of receiving service. Ms. Luntz, however, did not use that contact

information and instead of servi ng the State, served the Brunsw ick City prosecutor by facsimile

at a different number. The Sta te explained to the trial court that it did not receive service of Ms.

1 Although this is a traffic case, we note the trial court analyz ed the filing of the suppression motion pursuant to Cr im.R. 12(D) instead of Traf.R. 11(C). Because these rules contain identical language, this Court will also use Crim.R. 12 (D) in our analysis for the sake of consistency.4

Luntz’s motion for leave to file prior to it being granted. It also argued Ms. Luntz failed to show “good cause” as to why she should be granted the requested reli ef. {¶7} The trial court, in a detailed judgment entry journalized Janua ry 7, 2020, vacated its prior ruling because the State was never served with the mo tion. Further, the trial court reviewed the motion on its merits and ultimately denied it beca use Ms. Luntz failed to establish good cause for relief from the Cr im.R. 12(H) waiver. The trial court reasoned:

* * * In sum, neither of [Ms. Luntz’s] two lawyers in this case took any action concerning her motion to suppre ss prior to [December 27, 2019]. That date was more than ten weeks after the filing deadline had expired. As a matter of law and logic, this circumstance cannot constitute ‘good cause’ for rel ief from the Crim.R. 12(H) waiver. It is simply t autologous to argue that good caus e for the relief from a waiver subsists in the very circumstance (i.e., the failure t o take timely action) which generated the waiver i n the first instance.

* * * [Ms. Luntz] sought no timely ‘exte nsion’ under Crim.R. 12(D) fo r the filing deadline, before it expired. Thus , Crim.R. 12(D)’s “interest o f justice” standard is inapplicable to the relief the [m]otion seeks. [Ms. Luntz] fil ed her first [motion for leave to file] more than ten weeks after the deadline expir ed. The [motion for leave] directs the [c]ourt to no law justifying the late-sought relief, under the circumstances presented. Under th e applicable Crim.R. 12(H) st andard, [Ms. Luntz] has failed to carry her burden to establish ‘good cause’ for either her failure to file a timely motion to suppress in this case, or he r failure to take any action for the ten-week period following the filing deadline’s expiration. [Ms. Luntz] has not justified relief from the waiver arising under C rim.R. 12(H), to which any defenses or objections she may have had are now [waiv ed] as a matter of law.

* * * Thus, the matter moved forwa rd in anticipation of trial.

Motion in Limine {¶8} On January 21, 2020, the State filed a motion in limine seeking to exclude the testimony of Dominique Garcia, Doctor of Optometry, regarding M s. Luntz’s eye conditions in5

relation to nystagmus. Accordi ng to the State’s motion, Ms. Lu ntz scheduled an eye exam with Dr. Garcia “to see what effect, if any, [Ms. Luntz’s] history o f crossed eyes had on her DUI testing.” The State indicated tha t, as a result of the eye exa m, Dr. Garcia found Ms. Luntz’s “right eye turns inward at time s,” known as monocular esotropia , and Ms. Luntz has “double vision when looking to the side,” known as diplopia in lateral gazes. The State also indicated that Dr. Garcia noted “no nysta gmus in both of Ms. Luntz’s eyes .” Upon speaking with Dr. Garcia, the Sta te explained: Dr. Garcia indicated that only diplopia could look like nystagm us in some individuals during the lack of smooth pursuit portion of the HG N, not in the maximum deviation or onset prior to 45 degrees portion. Furthe r, Dr. Garcia indicated that the HGN would not b e affected by monocular esotr opia, because during the HGN the officer is looking at the left eye when the right eye has converged towards the nose. M ost importantly though, Dr. Garci a did not see nystagmus during any portion of [Ms. Luntz’s] eye examination e ven with these conditions present. (Emphasis added.) As such, the State urged the trial court to exclude Dr. Garcia’s testimony, pursuant to Evid.R. 401, because it is not relevant to this mat ter. Additionally, if the trial court found Dr. Garcia’s testimony “relevant,” the State argued it sh ould be excluded, pursuant to Evid.R. 403, because it “could only confuse the jury.” {¶9} In response, Ms. Luntz asserted D r. Garcia’s testimony is relev ant and would not confuse the jury. In so doing, Ms. Luntz admitted that “Dr. Ga rcia did not note an actual nystagmus at the time of the examination,” but Dr. Garcia did i ndicate that certain conditions “can cause other issues which may mimic the nystagmus[.]” Acco rding to Ms. Luntz, an issue known as “re-fixation [] can cause issues with the muscles that control the eye and can cause them to ‘bounce[,]’ thus potentia lly affecting the lack of smoo th pursuit portion of the HGN.” Ms. Luntz also argued that Dr. G arcia is not rendering an “expe rt opinion[,]” “but rather the6

extent of [Dr. Garcia’s] dealings with [Ms. Luntz] and the diag nosis she came to after her examination of [Ms. Luntz].” {¶10} The trial court, after extensiv e analysis, granted the State ’s motion in limine to exclude Dr. Garcia’s testimony stating, in part:

* * * Dr. Garcia’s testimony would, most generous ly construed, be rel evant to only one issue in this case. That issue is whether nystagmus observed in [Ms. Luntz’s] eyes during one of the three HGN subtests (i.e., the ‘lack of s mooth pursuit’) on the day of her arrest was cau sed by her impairment or by diplop ia.

* * * Indeed, any connection between [ Ms. Luntz’s] nystagmus on the n ight of her arrest to the two conditions Dr. Garcia observed three months l ater is at best indirect, remote, and implicit . Thus, even if technically relevant, and ignoring all of the expert witness aspects of Dr. Garcia’s proposed testimon y, the evidence in question merits a fairly low estimation of its probative value concerning the facts of consequence

. * * * Under these circumstances, the [c]ourt is pe rsuaded that the risks of confusion of issues and of misleading the jury subs tantially outweigh the minimal probative value of the evidence. Evid.R. 403(A). The HGN test clues of impairment are only one aspect of the field sobriety tests. The field sobriet y tests are only one element of the evidence of [Ms. Luntz’s] impairment. [Ms. Lunt z’s] challenge to the ‘lack of smooth pursuit’ subt est results affects only one-t hird of that HGN test. Against that, the jury will be presented with expert testimony, by a doctor no less. That dynamic unavoidably conveys a testimonial weight that cann ot but lend disproportionate emphasis to wha t is in fact a small [] portion of the State’s case of impairment. Indeed, limiting instructions themselves would likely convey to the jurors a concern with the v ery overweighting of that testim ony which its introduction unavoidably risks. Given its relation to the overall case, its limited probative value, and the lack of proposed testimony specifically linking the diplopia observed on [November 11, 2019] to the nystagmus observed at [Ms. Luntz’s] arrest on [September 7, 2019], Dr . Garcia’s testimony ought not to be allowed into evidence.

* * * (Emphasis added.)7

The Trial {¶11} After several continuances, a ju ry trial commenced on October 1 4, 2020. The jury trial was limited to the OVI count against Ms. Luntz. 2 During its case-in-chief, the State

called Officer Getto as its sole witness. After the State rest ed, Ms. Luntz called K.E., a former

bartender at Rico’s Bar & Grill , as the sole witn ess in her def ense. {¶12} Officer Getto testified on Sept ember 7, 2019, at 2:35 a.m., whi le “traveling westbound on Sleepy Hollow coming up to Pearl Road,” he observe d a Kia Soul, with no headlights on, pulling out from a parking lot behind a bar. Th e Kia Soul then pulled up behind Officer Getto’s police cruiser at a red light at the intersecti on, “still with no headlights[.]” Officer Getto indicated he pulled into a BP gas station, turned around, and got behind the Kia

Soul. As Officer Getto was mak ing his turn, the driver of the Kia Soul turned on the headlights. {¶13} When it was safe to do so, Offi cer Getto conducted a traffic st op and approached the driver’s side of the vehicle. Officer Getto stated, “I mad e contact with the driver and only occupant of the vehicle, I intr oduced myself and then advised h er the reason that I was stopping her.” Officer Getto further stated that the driver, Ms. Luntz, “did state and acknowledge that she knew she was driving with her headlights off. [Ms. Luntz] stat ed she was just worried about a friend who was driving home dr unk.” Ms. Luntz’s windshield wip ers were also turned on even though it was not raining. At that point in time, Officer Gett o also observed Ms. Luntz “had watery eyes[,]” “mumbled speec h, hard to understand [] at times [,]” and “a strong odor of alcohol coming from that vehicle .” Due to these observations, Officer Getto decided to perform standardized field sobriety tes ts, found in the National Highwa y Traffic Safety Administration

2 A bench trial was held on O ctober 15, 2020, as to the headligh t violation.8

(“NHTSA”) manual, on Ms. Luntz. Officer Getto noted when Ms. L untz exited the vehicle, she “left the door open in the middl e of the road,” and he “had to shut it.” {¶14} In performing the HGN test, Offi cer Getto testified he first ch ecked “for resting nystagmus[,]” or the involuntary jerking of the eye, and also c hecked for equal tracking and equal pupil size. 3 Importantly, Ms. Luntz did not have any of these issues. Off icer Getto then proceeded with three subsets of the HGN test to look for six cl ues of impairment, three in the left eye and three in the right eye. Upon completing each of the th ree subsets of the HGN test, (i.e., lack of smooth pursuit, distinct and sustained nystagmus at max imum deviation, and onset of nystagmus prior to 45 degrees) O fficer Getto observed six clues . Further, Officer Getto stated it was extremely difficult for Ms. Luntz to complete this test bec ause he had to advise her several times “not to move her head[,]” a nd “had to tell her countless times to follow my finger.” {¶15} Next, in performing the walk-and-turn test, Officer Getto looke d for eight different clues of impairment, such as: (1) starting the test b efore being instructed to do so; (2) not keeping their balance while in the starting position; (3) s tepping off the line; (4) failing to make heel-to-toe steps; (5) making the incorrect number of step s; (6) raising their hands off their waist in order to balance; (7) m aking an incorrect turn; and (8 ) stopping the test before it is complete. Officer Getto observe d that Ms. Luntz “wasn’t making heel-to-toe steps, step[ped] off the line, incorrect turn.” In a ddition, Officer Getto stated M s. Luntz, “obviously stopped during the test before she was finished, couldn’t keep her balance in the starting position, [and] started the test before [he] told her to do so.”

3 The Jury watched the body camera video of Ms. Luntz performing the standardized field sobriety tests and, during the video, heard Ms. Luntz ind icate she was not drinking alcohol, but only had soda and water on the night in question.9

{¶16} Finally, in performing the one-l eg stand test, Officer Getto lo oked for clues of impairment based upon whether Ms. Luntz could lift either of he r legs, approximately six inches off the ground, and “keep[] that foot parallel to the ground.” Officer Getto explained a person is instructed to keep their “eye on the toe that is raised at all times with both legs straight and to

count in the manner of one-thous and-one one-thousand two, one-t housand-three until I tell them to stop.” According to Officer Getto, an unimpaired person cantypically balance for thirtyseconds. Prior to beginning this test, Ms. Luntz informed Offi cer Getto of a “right ankle injury,” so he gave her the option of usi ng her left leg instead. Ms. L untz balanced on her left leg for only six seconds and was then placed under arrest. {¶17} At the Brunswick Hills Police Department, Ms. Luntz was asked w hether she would submit to a breathalyzer test. Officer Getto explained t o Ms. Luntz if she either refused the breathalyzer test or tested over the legal limit, her drive r’s license would automatically be suspended for 90 days because she had no prior offenses. Howev er, if Ms. Luntz submitted to the breathalyzer test and test ed under the legal limit, Officer Getto “would just have given her a warning for the headlight violation.” Officer Getto further te stified that, while performing the standardized field sobriety tests and at the Brunswick Hills Po lice Department, he continued smelling an odor of alcohol comi ng from Ms. Luntz’s “breath” an d “person[.]” Although Ms. Luntz repeatedly maintained she consumed no alcoholic beverages , but, instead drank soda and water, she ultimately refused to submit to the breathalyzer tes t. 4 Based upon the totality of the

4 During cross-examination, the jury heard Officer Getto admit t hat the police report only indicated he observed a strong odor of alcohol coming from Ms. Luntz’s vehicle but did not indicate he also observed a st rong odor of alcohol from her bre ath or person.10

circumstances of the traffic s top, Officer Getto concluded Ms. Luntz, “was absolutely under the

influence of alcohol.” {¶18} K.E. testified that, prior to m oving to Wisconsin, she was empl oyed as a bartender

at Rico’s Bar & Grill for six months and Ms. Luntz was an occas ional customer. Further, K.E. recalled, on the night of September 7, 2019, she was the only b artender at Rico’s Bar & Grill and served Ms. Luntz “water with lemon.” K.E. indicated, “[t]hat’s the only thing I’ve ever served [Ms. Luntz] is water.” However, on cross-examination, K.E. adm itted she may have served Ms. Luntz “soda water[,]” but not o n September 7, 2019. Also, K.E. testified, on September 7, 2019, Ms. Luntz came into Rico’s Bar & Grill alone before 9 p.m. and left “[a]fter midnight.” K.E. stated that, while at the bar, Ms. Luntz was talking with three or four people, including a woman named “Mary” in her 40’s, a busin ess owner named “Mark” out of Brunswick, and a father and daughter who were only there f or a brief period of time. {¶19} After the completion of the K .E.’s testimony, the State re-ca lled Officer Getto as a rebuttal witness. Officer Getto testified that, at the traff ic stop, Ms. Luntz told him she was at Rico’s Bar & Grill to console one of her son’s co-workers, a pe rson twenty-seven years of age. Further, Officer Getto reiterate d that Ms. Luntz maintained she was drinking “water” and “soda.” {¶20} Upon hearing the testimony of Officer Getto and K.E. and review ing the video footage of Ms. Luntz’s traffic stop and the other evidence pres ented at trial, the jury returned a guilty verdict on the OVI count. F urther, at the bench trial, the trial court found Ms. Luntz guilty of the headlight violation. After a presentence investigation, the trial court sentenced Ms. Luntz to pay a $500 fine for the OVI violation, a $50 fine for the he adlight violation, and further sentenced Ms. Luntz to three days in jail, with three days of c redit given for attending a 72-hour DUI program. The trial court also suspended Ms. Luntz’s driver ’s license for nine months11

beginning September 7, 2019, which had already come to pass as of the date of Ms. Luntz’s sentencing hearing and assessed si x points against Ms. Luntz’s driver’s license. 5 {¶21} Ms. Luntz appealed, raising six assignments of error for our re view. This Court has grouped certain assi gnments of error in order to better fac ilitate our analysis.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO RECONSIDER THE TRIAL COURT’S PROPER DECISION THAT GRANTED LEAVE TO PLEAD ALLOWING THE FILING OF [MS. LUNTZ’S] MOTION TO SUPPRESS WHEN [MS. LUNTZ] PROPERLY PLEAD REASONS FOR A DELAYED FILING. {¶22} In her first assignment of error, Ms. Luntz argues the trial co urt abused its discretion in denying her leave to file an untimely motion to s uppress. We disagree. {¶23} “A motion to suppress must be file d within thirty-five days aft er arraignment unless a trial court extends that time period in the interest o f justice or grants relief from it for good cause shown.” State v. Jenny , 9th Dist. Medina No. 18CA0041 -M 

### , 2019-Ohio-1491, ¶ 7, quoting State v. Woodson , 9th Dist. Wayne No. 07CA0044, 2008-Ohio-1469, ¶ 10, citing Crim.R. 12(D), (H). It is the de fendant’s burden to “demonstra t[e]‘good cause’ to excuse the late filing.” In re McCall , 9th Dist. Summit No. 20455, 2001 WL 755127, *2 (July 5, 2001)

. “This Court will not reverse a trial court’s decision denying l eave to file an untimely motion to suppress absent an a buse of discretion.” State v. Lisle , 9th Dist. Wayne No. 05CA0073, 2006- Ohio-3877, ¶ 12. An abuse of discretion indicates that the tri al court was unreasonable,

5 As of the date of sentencing, Ms. Luntz’s driver’s license had already been fully reinstated because over one-year had passed from the date of Ms . Luntz’s arrest.12

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶24} As indicated previously, the r ecord supports that Ms. Luntz fai led to: (1) properly

serve the State with her motion after the State indicated to Ms . Luntz’s counsel it would object to such a motion if filed; and (2) show “good cause” for the untim ely filing of the motions for leave and to suppress. In its detaile d judgment entry, the trial co urt stated, in relevant part: First, the [December 30, 2019] [ j]udgment [e]ntry was improperl y entered because [Ms. Luntz] failed to properly serve the State with the [m]otion [f]or [l]eave. The [c]ertificate of [s]ervice attached to [the motio n] states that [Ms. Luntz] served that motion “by U.S. Mail upon the following,” an d then identifies the “Brunswick Hills Prosecuting Attorney” and a fax number, i. e., “330-220- 1348.” No address is listed on the [c]ertificate of [s]ervice concerning the purported mail service. And the State’s fax number on the [c]e rtificate of [s]ervice [] is incorrect. Documents filed by the State in thi s case reflect its office’s physical address as 132 N. Elmwood Avenue, P.O. Box 70 3, Medina, Ohio 44258, and its fax number as (330) 723-3508. None of that correct information appeared on the [m]o tion for [l]eave’s [c]ertificat e of [s]ervice. These multiple defects [], and the failure of actual contempora neous service of that [m]otion on the State [] pr ecluded the [a]cting [j]udge’s disposing of the [m]otion for [l]eave on [December 30, 2019[.] 6 Moreover, as to Ms. Luntz’s failu re to show “good cause,” the trial court indicated: (1) Ms. Luntz never moved for a filing ex tension before the thirty-five -day time limit expired; (2) Ms. Luntz failed to take any action for the ten-week period followi ng the filing deadline’s expiration; and (3) Ms. Luntz further failed to explain any actual reasons, in her motion for leave, for the untimely filing. Thus, in denying Ms. Luntz’s motion for leave , the trial court concluded:

6 Pursuant to Crim.R. 49(A) and (C), applicable through Traf.R. 20, “[w]ritten notices, requests for discovery, designation of record on appeal, writte n motions other than those heard ex parte, and similar papers, shall be served upon each of the parties. * * * Papers filed with the court shall not be considered until proof of service is endorse d thereon or separately filed.” (Emphasis added.)13

[T]he [c]ourt is required to seek the “fair, impartial, speedy and sure administration of justice * * * .” Crim.R. 1(B). It disserves each of these fourfold considerations if, in the exerci se of discretion to relieve a p arty from the Rules’ plain terms, obvious non-complia nce or dilatory compliance is g enerally accorded the same regard as good faith, dilig ent, proactive compliance. {¶25} The record, here, clearly reveals a lack of proper service upon the State and a failure to show “good cause” as to why the motions for leave an d to suppress were untimely filed. Therefore, based upon this record, we cannot say the tr ial court abused its discretion in reconsidering Ms. Luntz’s mo tion for leave to plead and ultimat ely denying it. See Jenny at ¶ 12. {¶26} Accordingly, Ms. Luntz’s first assignment of error is overruled

. ASSIGNMENT OF ERROR II [MS. LUNTZ] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HER INTITIAL [COUNSEL] FAILED TO TIMELY FILE A MOTION TO SUPPRESS PURSUANT TO CRIM. R. 12 WHEN LEGITIMATE SUPPRESSI ON ISSUES EXISTED. {¶27} In her second assignment of error, Ms. Luntz argues she was den ied the effective

assistance of counsel when her in itial attorney failed to timel y file a motion to suppress the traffic stop. This Court, how ever, is not persuaded by Ms. Lun tz’s argument. {¶28} “To prevail on a claim of ineff ective assistance of counsel, [M s. Luntz] must show: (1) that counsel’s perform ance was deficient to the exten t that ‘counsel was not functioning as the ‘counsel’ guaranteed [Ms. Luntz] by the Sixt h Amendment’ and (2) that there is a reasonable probability that, but for counsel’s deficient p erformance, the result of the trial

would have been different.” State v. Grad , 9th Dist. Medina No. 15CA0014-M , 2016-Ohio8388, ¶ 6, quoting Strickland v. Washington , 466 U.S. 668, 687, 694 (1984). “A deficient performance is one that falls bel ow an objective standard of re asonable representation.” Id. at ¶ 6, citing State v. Bradley , 42 Ohio St.3d 136 (1989), paragr aph two of the syllabus. How ever, this Court, “must indulge a strong presumption that counsel’s c onduct falls within the wide range14

of reasonable professional assi stance; that is, the defendant m ust overcome the presumption that, under the circumstances, the cha llenged action ‘might be consid ered sound trial strategy.’” Id . at ¶ 6, citing Strickland at 689, quoting Michel v. Louisiana , 350 U.S. 91, 100 (1955). Additionally, in order to establish prejudice, Ms. Luntz “must show that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.”

Id .at ¶ 6, citing Strickland at 694. {¶29} Indeed, “[f]ailing to file a motion to suppress does not consti tute ineffective assistance of counsel per se.” State v. Double , 9th Dist. Medina No. 20CA0021-M, 2021-Ohio632, ¶ 28, quoting State v. Brown , 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. As this Court has previously stated, “[c]ounsel’s decision not to file a motion t o suppress may be a matter of trial strategy, including counsel's reas onable assessment of whether such a motion is likely to succeed and recognition that filing a motion to suppress has risks.” Id. at ¶ 28, quoting State v. Kendall , 9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 7. “To establish ineffective assistance of

counsel for failure to file a m otion to suppress, a defendant m ust prove that there was a basis to suppress the evidence in question.” Id. at ¶ 28, quoting Brown at ¶ 65. “Furthermore, in order to satisfy the prejudice prong of the Strickland test, a defendant must demonstrate that there was a reasonable probability that the motion to suppress would have b een granted.” Id. at ¶ 28, citing

Kendall at ¶ 7. {¶30} “It is well-established that a police officer who observes a tr affic violation possesses reasonable suspicion to conduct an investigatory stop .” Double at ¶ 29, quoting State

v. Jackson , 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 15. Furth er, “[t]he question

of whether an insubstantial or minor violation of a traffic law will give rise to a reasonable suspicion to make an investigatory stop was resolved when the U nited States Supreme Court and15

the Ohio Supreme Court both held that any violation of a traffic law gives rise to a reasonable suspicion to make an investig atory stop of a vehicle.” State v. Johnson , 9th Dist. Medina No. No. 03CA0127-M, 2004-Ohio-3409, ¶ 11. {¶31} In the present matter, the record indicates that Officer Getto saw Ms. Luntz exit the parking lot behind Rico’s Bar & Grill, at 2:35 a.m., onto a dark road, without turning on her headlights in violation of R.C. 4513.03(A). Officer Getto then initiated a traffic stop, and upon having contact with Ms. Luntz, observed a strong odor of alcoho l coming from the vehicle where Ms. Luntz was the sole occupant. Officer Getto further detaine d Ms. Luntz in order to perform standardized field sobriety tes ts, and based upon numerous clue s of impairment, Ms. Luntz was placed under arrest for OVI. In light of this record, we concl ude Ms. Luntz has failed to demonstrate there was a basis to suppress the evidence in quest ion and has also failed to demonstrate there was a reasonable probability that the motion to suppress would have been granted. Therefore, Ms. Luntz has failed to establish that her trial counsel rendered ineffective assistance by not filing a motion to suppress relative to the t raffic stop and subsequent field sobriety tests. See Double at ¶ 30. {¶32} Accordingly, Ms. Luntz’s second a ssignment of error is overrule d.

ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED WHEN IT RULED THAT [MS. LUNTZ’S] TREATING PHYSICIAN COULD NOT TESTIFY AS TO [MS. LUNTZ’S] [] MATERIAL [] CONDITION THAT THE PHYSICIAN PERSONALLY OBSERVED. {¶33} In her third assignment of error, Ms. Luntz argues the trial co urt erred in its ruling

in limine to exclude the testimony of Dr. Garcia related to Ms. Luntz’s eye conditions that could possibly mimic nystagmus. For the reasons that follow, we disa gree.16

{¶34} “Evid.R. 701 * * * allows lay witnesses to provide an opinion w hen that opinion is: ‘(1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the d etermination of a fact in iss ue.’” State v. Heller , 9th Dist.

Lorain No. 18CA011304 , 2019-Ohio-4722, ¶ 7. Moreover, “courts have used Evid.R. 701 t o permit treating physicians to re nder opinions based upon their personal observations and perceptions.” Id . quoting Williams v. Reynolds Rd. Surgical Ctr., Ltd ., 6th Dist. Lucas No. L-02- 1144, 2004-Ohio-1645, ¶ 3. Additionally, Evid.R. 403(A) states that, “[a]lthough relevant, evidence is not admissible if its probative value is substantia lly outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Thus, “Evid.R. 403 requires a court to weigh the pr obative value of the evidence a gainst the danger of unfair prejudice, confusion of the issues, or misleading the jury and to exclude evidence more prejudicial then probative.” Eckmeyer v. McNealis , 9th Dist. Summit No. 27707, 2016-Ohio7276, ¶ 11, citing State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 87. {¶35} This Court reviews a trial cour t’s decision pertaining to the a dmission of evidence

under Evid.R. 701 and Evid. R. 403 for an abuse of discretion. Heller at ¶ 7, citing Urbana ex rel. Newlin v. Downing , 43 Ohio St.3d 109, 113 (1989); Eckmeyer at ¶ 10. An abuse of discretion implies that the trial court’s attitude was unreason able, arbitrary, or unconscionable.

Blakemore , 5 Ohio St.3d at 219. {¶36} Here, as indicated above, the tria l court granted the State’s m otion in limine to exclude Dr. Garcia’s testimony at trial. In so doing, the tria l court explained that, although minimally relevant, the probative value of Dr. Garcia’s testimo ny regarding Ms. Luntz’s eye conditions did not outweigh the danger of unfair prejudice, and would confuse the jury, because only one of the two eye conditions could potentially mimic nyst agmus in one of the three subsets17

of the HGN test. Further, the r ecord reflects that Dr. Garcia did not note any nystagmus during Ms. Luntz’s examination. Although t he State argues that Ms. Lu ntz forfeited this issue on appeal because she failed to proffer Dr . Garcia’s testimony at trial, Evid.R. 103(A), as amended, now

states: (2) Offer of Proof . In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked

. * * * Once the court rules definitely on the record, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (Emphasis added.) Based upon the State’s motion in limine and Ms. Luntz’s opposition, the

trial court state d the following: [b]ut the parties do agree on one essential point. Dr. Garcia’ s testimony would, most generously construed, be relevant to only one issue in thi s case. That issue is whether nystagmus observed in [Ms. Luntz’s] eyes during one of the three HGN subtests (i.e.. the “lack of smooth pursuit”) on the day of her arrest was caused by her impairment or by diplopia. The parties further a gree that Dr. Garcia would testify that the t wo optometric conditions with wh ich she diagnosed [Ms. Luntz] have no bearing on her pe rformance of the other two HGN subtests. Because the substance of Dr. Garcia’s testimony was apparent t o the trial court, this issue has not been forfeited on appeal. Therefore, based upon this recor d, we cannot conclude the trial

court abused its discretion in excluding Dr. Garcia’s testimony based upon Evid.R. 701 and Evid.R. 403(A). See Wade v. Mancuso , 9th Dist. Lorain No. 16CA010978, 2018-Ohio-1563, ¶

41. {¶37} Accordingly, Ms. Luntz’s third a ssignment of error is overruled

. ASSIGNMENT OF ERROR IV THE STATE OF OHIO VIOLATED [MS . LUNTZ’S] RIGHT TO A FAIR TRIAL BY COMMENTS MADE DURING OPENING STATEMENT AND CLOSING ARGUMENT IN VIOLATION OF THE FIFTH AND SIXTH18

AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS OHIO’S CONSTITUTION.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY ALLOWING THE STATE OF OHIO TO COMMENT UPON [MS. LUNTZ’S] SILENCE FOLLOWING HER ARREST AS EVIDENCE OF HER GUILT IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS OHIO’S CONSTITUTION. {¶38} In her fourth and fifth assignmen ts of error, Ms. Luntz argues the State violated her right to a fair trial due t o comments made during opening s tatement and closing arguments regarding her refusal to submit to a breathalyzer test on Septe mber 7, 2019. For the reasons that follow, Ms. Luntz’s assignments of error are not well-taken. {¶39} Notably, the record demonstrates that Ms. Luntz’s counsel only objected a total of three times during the entirety of the jury trial; once during the direct examination of Officer Getto and twice during the rebuttal portion of the State’s clos ing argument. During its rebuttal, the State made specific comment s in response to Ms. Luntz’s cou nsel’s statement during closing argument: “[Ms. Luntz] is not required to give a breath test. And at this point why would she? The officer hasn’t believed her.” The relevant prosecutorial c omments, as well as Ms. Luntz’s objections, are as follows:

* * * [The State]: Attorney Carro asked well, why would [Ms. Luntz] take that breath test? Well, I’ll tell you what. You take that breath test bec ause she’s saying I haven’t been drinking and there’s a police officer saying, man, you smell like you’ve been drinking. And she didn’t say anything at the time well, it’s from the bar or anything else . Okay. That developed later on, but here we are. We’ve got I really think that odor is co ming from your breath and she’s like, no, no, no, I haven’t been drinking. What’s the best way to determine who’s right and who’s wrong? Blow in the [breath] test. [Defense Counsel]: Objection, your Honor.19

* * * [The State]: Look. If somebody goes out to dinner, right, and they have a glass of wine at dinner and on the way home they get pulled over by a police officer and the police officer says, hey, I can smell alcohol on you. Do some tests, I think you may be impaired, I wa nt you to take a breath test. A ll right. Now, that person goes back to the police station says, I had th at glass of wine, you know, I don’t know if I blow into this test whether it’s going to say .2 or .4 or .8 or .10 or what it might say. I just don’t know because I’ve ha d alcohol. I’m reasonably concerned about taki ng a breath test of my amount of alcohol because I don’t know where it’s going to f all on that range, right? Th at’s reasonable. But if someone’s insisting to the point of this that they did not have any alcohol at all where’s the fear of taking the test? Ok ay. Well, a glass of wine might register .04 and .06 and we don’t know, right? but no al cohol can only register one result .00. That’s what no alcohol is .00. [Defense Counsel]: Objection, you Honor. (Emphasis added.) The trial cour t did not rule upon these obje ctions on the record but a sidebar

discussion between the trial cour t and counsel was held after e ach objection. {¶40} “Statements refusing to take the breath and/or urine tests are not protected by the privilege against self-incrimina tion and, thus, are admissible. ” State v. Rollyson, 20 Ohio App.3d 336, 337 (9th Dist.1984), citing South Dakota v. Neville , 459 U.S. 553 (1983). Further, the Supreme Court of Ohio has explained: Where a defendant is being accused of intoxication and is not i ntoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that [she] is not intoxicated. On the other hand, if [she] is intoxi cated, the taking of such a test will probably establish that [she] is intoxicated. Thus, if [she] is not intoxicated, such a test will provide evidence for [her]; but, if [she] is intoxicated, the test will provide evidence against [her]. Thus, it is reaso nable to infer that a refusal to take such a test indicates the defendant’s fear of t he results of the test and [her] consciousness of guilt, especially where [she] is ask ed his reason for such refusal and [she] gives no reason which would indicate tha t [her] refusal had no relation to such consciousness of guilt.20

Maumee v. Anistik , 69 Ohio St.3d 339, 343 (1994), quoting City of Westerville v. Cunningham , 15 Ohio St.2d 121, 122 (1968). Thus , with the above-stated rea soning in mind, the Supreme Court of Ohio approve d the following jury i nstruction, stating:

Evidence has been introduced indi cating the defendant was asked but refused to submit to a chemical test of his [or her] breath to determine t he amount of alcohol in his [or her] system, for th e purpose of suggesting that the defendant believed he [or she] was under the influence of alcohol. If you find the de fendant refused to submit to said test, you may, but a re not required to, consider this evidence along with all the other facts and circumstances in evidence in decid ing whether the defendant was under the influence of alcohol.

Maumee at 344. {¶41} Here, the record reveals that on September 7, 2019, Ms. Luntz m aintained she had no alcoholic beverages to drink, but instead had water and soda at Rico’s Bar & Grill. However, when asked to submit to a breathalyzer test, Ms. Luntz refused. During opening and closing arguments, the State argued Ms. Luntz’s refusal to submit to th e breathalyzer test demonstrated

she was aware the result would ha ve registered over the legal l imit and would have confirmed

Officer Getto’s observations that Ms. Luntz was under the influ ence of alcohol. The State’s comments, however, stemmed from Ms. Luntz’s own insistence that she consumed no alcohol, and did not offend Ms. Luntz’s right against self-incrimination . Moreover, the record reveals Ms. Luntz did not object to the identical jury instruction, as set forth in Maumee at 344, which allowed the jury to consider Ms. Luntz’s refusal to submit to a breathalyzer test for the purpose of suggesting Ms. Luntz believed she was under the influence of alcohol. As such, the State did

not violate Ms. Luntz’s ri ght to a fair trial. {¶42} Further, in its jury instructi ons, the trial court advised:

* * *21

The evidence does not include t he complaint or the opening stat ements or the closing arguments of counsel. T he opening statements and closi ng arguments of counsel are designed to assi st you and are not evidence.

* * * You are the sole judges of the facts, the credibility of the wi tnesses and the weight of the evidence. To weigh the evidence you must consider the c redibility of all the witnesses who testified. You will apply the test of truthf ulness which you apply in your daily lives.

* * * Indeed, “in the tension and turmoil of a trial, both the prosec ution and the defense have wide

latitude in summation as to what t he evidence has shown and wha t reasonable inferences may be

drawn therefrom.” State v. Lott , 51 Ohio St.3d 160, 165, quoting State v. Stephens , 24 Ohio St.2d 76, 82 (1970). Although this Court does not condone the State’s use of hypotheticals and hyperbole during closing argument, the State’s comments were in response to Ms. Luntz’s counsel’s query regarding why Ms. Luntz should take the breatha lyzer test and did not violate her right to remain silent or ri ght to a fair trial. Further, the trial court instructed the jury that opening statements and closing ar guments are not evidence and o nly the jury can determine the credibility of witnesses. “The instruction was clear, and we c an assume that the jury followed

the trial court’s instructions.” State v. Braden , 98 Ohio St.3d 354, 2003-Ohio-1325, ¶ 87. {¶43} Accordingly, Ms. Luntz’s fourt h and fifth assign ments of error are overruled.

ASSIGNMENT OF ERROR VI [MS. LUNTZ’S] CONVICTION IS AGAINST THE [MANIFEST] WEIGHT OF THE EVIDENCE. {¶44} In her sixth assignment of error, Ms. Luntz argues her convicti on is against the manifest weight of the eviden ce. This Court disagrees. {¶45} “[W]hen considering a challenge t o the manifest weight of the e vidence, this Court is required to consider the entire record, ‘weigh the evi dence and all reasonable inferences,22

consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created su ch a manifest miscarriage of justice

that the conviction must be reve rsed and a new trial ordered.’” State v. Perkins , 9th Dist. Wayne

No. 20AP0031 , 2021-Ohio-2630, ¶ 11, quoting State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “A reversal on this basis is reserved for the exce ptional case in which the evidence weighs heavily against the conviction.” State v. Croghan , 9th Dist. Summit No. 29290, 2019- Ohio-3970, ¶ 26. {¶46} Here, the jury heard Officer Getto testify that: (1) at 2:35 a. m., Ms. Luntz exited a parking lot behind Rico’s Bar & Grill, onto a dark road, withou t using her headlights; (2) he could smell a strong odor of alcohol coming from Ms. Luntz’s ve hicle where Ms. Luntz was the sole occupant, and later could s mell alcohol on Ms. Luntz’s bre ath and person; (3) Ms. Luntz had her windshield wipers on and it was not raining; (4) Ms. Luntz had watery eyes and mumbled speech; (5) Ms. Luntz left the car door open when she exited th e vehicle; (6) Ms. Luntz continually maintained she had no alcohol to drink but refused to submit to the breathalyzer test; and (7) Ms. Luntz exhibited severa l clues of impairment based u pon her performance of the standardized field sobriety tests . The jury was also privy to Ms. Luntz’s cross-examination of Officer Getto. During cross ex amination, the jury heard Office r Getto testify as to certain gaps in the police report regarding his observation of a strong odor of alcohol coming from Ms. Luntz’s breath and person. Additionally, Officer Getto admitte d his hand was on Ms. Luntz’s car door because he “helped her open the door” and, as such, Ms . Luntz could have assumed Officer Getto was also going to close the car door. Officer Ge tto was also thoroughly questioned on the instructions he gave in administering the standardized f ield sobriety tests. Further, the jury reviewed the video footage, with audio, of Ms. Luntz perfo rming the standardized field23

sobriety tests and also heard testimony from K.E., that conflic ted with Officer Getto’s testimony, regarding who Ms. Luntz was socia lizing with at Rico’s Bar & Gr ill and what Ms. Luntz allegedly had to drink that evening. {¶47} Based upon this record, however, we cannot say the jury clearly lost its way in resolving the conflicting tes timony between Officer Getto and K .E. to create such a manifest miscarriage of justice that Ms. Luntz’s conviction must be reve rsed and a new trial ordered or that this is the exceptional case in which the evidence weighs heavily against the conviction. {¶48} Accordingly, Ms. Luntz’s sixth a ssignment of error is overruled

. III. {¶49} For the foregoing reasons, Ms. Luntz’s six assignments of error are overruled. The judgment of the Medina M unicipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30.24

Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

TEODOSIO, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: JOSEPH C. PATITUCE, Attorne y at Law, for Appellant. ROBERT B. CAMPBELL, Prosecuting Attorney, for Appellee.