[Cite as State v. Malkin , 2020-Ohio-3059.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : VITALIY MALKIN : Case No. 2019 CA 0100 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 19TRC01777

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 21, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant J. MICHAEL KING ROGER SOROKA 40 West Main Street JOSHUA BEDTELYON Fourth Floor 503 South Front Street Newark, OH 43055 Suite 205Licking County, Case No. 2019 CA 0100 2
Columbus, OH 43215 Wise, Earle, J. {¶ 1} Defendant-Appellant Vitaliy Malkin appeals the May 8, 201 9 judgment of the Licking County Municipal Court denying his motion to suppre ss, and the Licking County Municipal Court 's October 7, 2019 j udgment of co nviction and sentence. PlaintiffAppellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On February 25, 2019 at approximately 7:30 p.m., Brittney Meadows was stopped at a traffic light at the intersection of State Route 4 0 and State Route 310 when Appellant rear-ended her vehicle. Meadows estimated Appellant w as traveling at 15-20 miles per hour when he struck her car. {¶ 3} Meadows got out of her car to inspect the damage, which w as minor. Appellant rolled down the window of his vehicle to speak with M eadows and Meadows immediately noted the odor of alcohol. Appellant accused Meadow s of backing into his vehicle. {¶ 4} Meadows noted Appellant had a foreign accent and was slur ring his words. While they waited for police to arrive, Appellant gave Meadows his driver's license, but otherwise refused to answer any of her questions such as whethe r he had in suranc e and whether the car he was driving belonged to him or his employer. He did not appear to have any difficulty understanding her. While they waited for po lice, appellant made several phone calls. During each call appellant spoke in a fore ign language. When Appellant spoke with Meadows, however, he spoke English. {¶ 5} Appellant asked Meadows several times to drive to Conway Motors with him. He further kept trying unsuccessfully to remove the dealer license plate from his car.Licking County, Case No. 2019 CA 0100 3 When Meadows refused to follow appellant to Conway Motors, Appe llant got back in his car and made another phone call. {¶ 6} Ohio Highway Patrol Trooper Jason Bell arrived on the sce ne to find Appellant seated in his vehicle and Meadows standing outside of hers. Bell spoke with Meadows first. She stated Appellant rear-ended her vehicle and smelled of alcohol. {¶ 7} Bell approached Appellant and noted Appellant fumbling a lit cigarette. Bell further noted Appellant's eyes were glassy and bloodshot, and t here was a strong odor of alcohol coming off Appellant's person. Bell asked Appellant what happened and Appellant claimed Meadows backed into him. Bell noted Appellant 's breath also smelled strongly of alcohol. {¶ 8} Asked if he had been drinking Appellant stated he had two beers at 3:00 p.m. He later stated 4:00 p.m. Bell asked Appellant for his ope rator's license and Appellant had some difficulty retrieving the same. Based on his observations, Bell conducted field sobriety testing. Before conducting horizontal gaze nystagmus (HGN), Bell determined Appellant had no recent head injury, ear or eye infections, did not wear glasses or contacts, and takes a drug for anxiety. Appellant ex hibited 6 of 6 clues on the HGN. {¶ 9} Before asking Appellant to perform the walk and turn test , Bell asked Appellant if he had any physical challenges. Appellant responde d he has a bad back, but that this issue would not prevent him from executing the test. Appellant exhibited 4 of 8 clues on the walk and turn test. {¶ 10} Finally, Bell asked Appellant to perform the one-legged stand test. Appellant exhibited 1 of 4 clues on this test.Licking County, Case No. 2019 CA 0100 4 {¶ 11} Appellant declined to recite the alphabet or count backw ards. {¶ 12} Based on his observations, Bell believed Appellant was i mpaired and would register .08 or higher on a breath test. Appellant was therefor e taken into custody. {¶ 13} Appellant later refused a breath test. A review of Appel lant's BMV record revealed a previous conviction for operating a vehicle under th e influence of alcohol (OVI) in Fairfield County Ohio on June 3, 2016. {¶ 14} Appellant was subsequently charged with OVI, refusing a chemical test with a prior conviction within 20 years, and assured clear distance ahead. {¶ 15} Appellant pled not guilty to the charges and filed a mot ion to suppress. Appellant argued Trooper Bell lacked reasonable suspicion to ad minister field sobriety tests, administered those tests improperly, and lacked probable cause to arrest. {¶ 16} A suppression hearing was held on May 7, 2019. Meadows a nd Bell testified for the state. Appellant presented no evidence. At the conclusi on of the hearing, the trial court denied appellant's motion to suppress. {¶ 17} On October 7, 2019, the matter proceeded to a jury trial on the charges of OVI and refusing a chemical test with a prior conviction within 20 years. Appellant opted to try the assured clear distance ahead charge to the court. {¶ 18} Meadows and Bell testified for the state, and appellant testified on his own behalf. The jury found appellant guilty of OVI and refusing a c hemical test with a prior conviction within 20 years, and the trial court found appellant guilty of assured clear distance. {¶ 19} Appellant filed an appeal and the matter is now before t his court for consideration. He raises three assignments of error as follow:Licking County, Case No. 2019 CA 0100 5

I {¶ 20} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS." II {¶ 21} "APPELLANT'S CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE." III {¶ 22} "APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." I {¶ 23} In his first assignment of error, Appellant argues the t rial court erred in denying his motion to suppress. We disagree. {¶ 24} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must d etermine whether said findings of fact are against the manifest weight of the evidenc e. State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein , 73 Ohio App.3d 486, 597 N.E.2d 1141(1991); State v. Guysinger , 86 Ohio App.3d 592, 621 N.E.2d 726 (1993). Second, an appellant may argue the trial court failed to apply the appr opriate test or correct law to the findings of fact. In that case, an appellate court can reve rse the trial court for committing an error of law. State v. Williams , 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993).Licking County, Case No. 2019 CA 0100 6 Finally, assuming the trial court's findings of fact are not ag ainst the manifest weight of the evidence and it has properly identified the law to be appli ed, an appellant may argue the trial court has incorrectly decided the ultimate or final i ssue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, w hether the facts meet the appropriate legal standard in any given case. State v. Curry , 95 Ohio App.3d 93, 641 N.E.2d 1172 (1994); State v. Claytor , 85 Ohio App.3d 623, 620 N.E.2d 906 (1993); Guysinger , supra. As the United States Supreme Court held in Ornelas v. U.S ., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a ge neral matter determinations of reasonable suspicion and probable cause shoul d be reviewed de novo on appeal.” {¶ 25} When ruling on a motion to suppress, the trial court ass umes the role of trier of fact and is in the best position to resolve questions of fac t and to evaluate the credibility of witnesses. See State v. Dunlap , 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). {¶ 26} Appellant raises several arguments under this assignment of error. In the first, appellant argues Trooper Bell lacked reasonable suspicio n to administer field sobriety tests. We disagree. {¶ 27} In reviewing whether field sobriety testing was proper, we apply a “totality of the circumstances” approach. See, e.g., State v. Locker , 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-4953, ¶ 36, citing State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).Licking County, Case No. 2019 CA 0100 7 {¶ 28} “Requiring a driver to submit to a field sobriety test c onstitutes a seizure within the meaning of the Fourth Amendment. Courts have general ly held that the intrusion on the driver's liberty resulting from a field sobrie ty test is minor, and the officer therefore need only have reasonable suspicion that the driver i s under the influence of alcohol in order to conduct a field sobriety test.” State v. Bright , 5th Dist. Guernsey No.2009-CA-28, 2010-Ohio-1111, ¶ 17, citing State v. Knox , 2nd Dist. Greene No.2005- CA-74, 2006-Ohio-3039. {¶ 29} An officer may not request a motorist to perform field s obriety tests unless the request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated. State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (1998), citing State v. Yemma , 11th Dist. Portage App. No. 95-P-0156, 1996 WL 495076 (Aug. 9, 1996). “Reasonable suspicion is “* * * somethin g more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause.” State v. Shepherd , 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997). {¶ 30} The Supreme Court of Ohio in State v. Batchili , 113 Ohio St.3d 403, 2007- Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus found : “The ‘reasonable and articulable’ standard applied to a prolonged traffic stop encom passes the totality of the circumstances, and a court may not evaluate in isolation each a rticulated reason for the stop.” Additionally, “a court will analyze the reasonableness o f the request based on the totality of the circumstances, viewed through the eyes of a rea sonable and prudent police officer on the scene who must react to events as they unfold.” Village of Kirtland Hills v. Strogin , 6th Dist. Lake App. No.2005-L-073, 2006-Ohio-1450, ¶ 13, citi ng, Village of Waite Hill v. Popovich , 6th Dist. Lake App. No.2001-L-227, 2003-Ohio-1587, ¶ 14.Licking County, Case No. 2019 CA 0100 8 {¶ 31} “Where a non-investigatory stop is initiated and the odo r of alcohol is combined with glassy or bloodshot eyes and further indicia of i ntoxication, such as an admission of having consumed alcohol, reasonable suspicion exis ts.” State v. Strope , 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 ¶ 19. {¶ 32} In this matter, we find Appellant presented ample indici a of intoxication. He was involved in an accident, his eyes were glassy and bloodshot , his person and breath smelled of alcohol, his speech was slurred, and he admitted to having consumed alcohol. We find, therefore, reasonable suspicion existed for Trooper Be ll to conduct field sobriety testing. {¶ 33} Appellant next argues Trooper Bell failed to properly ad minister the field sobriety tests. We disagree. {¶ 34} R.C. 4511.19(D)(4)(b) provides that evidence and testimo ny regarding the results of a field sobriety test may be presented “if it is sho wn 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 fi eld sobriety tests that were in effect at the time the tests were administered, including, b ut not limited to, any testing standards then in effect that were set by the national highway traffic safety administration[.]” {¶ 35} During the suppression hearing, Trooper Bell testified h e received training on impaired driving in 2018 with the current national highway s afety administration manual. The manual was admitted into evidence as States' Exhibi t 1. Transcript of Suppression hearing (TS) 17-18. Bell testified he was trained t o administer the three standardized field sobriety tests, HGN, walk and turn, and one- legged stand. HeLicking County, Case No. 2019 CA 0100 9
explained how each is administered per the manual and how Appel lant preformed on each. TS 18-26. Trooper Bell's dash camera video was also playe d during the suppression hearing and admitted into evidence. {¶ 36} For the most part, Appellant's argument is not that Troo per Bell failed to properly administer the tests, but rather that a language barri er prevented Appellant from adequately understanding Bell's instructions. He further argues his back problem and his prescribed anxiety medication could have caused "false positive s" for intoxication. These determinations were questions of fact for the trial court to de termine. {¶ 37} Bell testified that for the most part, he had no trouble communicating with Appellant. TS 30. The trial court was able to view Trooper Bell 's dash camera video of the incident and assess the interaction between Bell and Appell ant. TS 27. {¶ 38} As for Appellant's back problem, Appellant brought this matter to the attention of Trooper Bell, and advised Bell it would not impact his ability to perform the tests. TS 23. Likewise, while Appellant points out his anxiety medication could have impacted his performance on the HGN test, he produced no eviden ce at the suppression hearing as to what medication he was taking, nor its possible s ide effects. Whether or not the medication could impact the results of the test is a separa te matter from whether or not Trooper Bell administered the test in compliance with the a pplicable standards. {¶ 39} Finally, while Appellant points out Trooper Bell neglect ed to advise Appellant not to stop once he started the walk and turn test, T rooper Bell indicated he did not use the fact that Appellant did stop as a clue against him. TS 45-46, 49. {¶ 40} The trial court viewed Trooper Bell's dash camera video of the incident from which it could glean Appellant's understanding of the instructi ons given by Bell and makeLicking County, Case No. 2019 CA 0100 10
its factual determinations, and we find no error in the same. T S 27. Further, there is no indication that Trooper Bell failed to properly administer Appe llant's field sobriety testing. {¶ 41} In his final argument in this assignment of error, Appel lant argues Trooper Bell lacked probable cause to arrest him. We disagree. {¶ 42} As per our discussion above, Trooper Bell had reasonable suspicion Appellant was driving under the influence in order to conduct t he field sobriety tests, and, following Appellant's performance on those tests and his observ ations prior, Trooper Bell had probable cause to arrest Appellant. {¶ 43} The first assignment of error is overruled. II, III {¶ 44} We address Appellant's final two assignments of error to gether. In his second and third assignments of error, appellant argues his con victions are not supported by sufficient evidence and are against the manifest weight of t he evidence. We disagree. {¶ 45} On review for sufficiency, a reviewing court is to exami ne the evidence at trial to determine whether such evidence, if believed, would su pport a conviction. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inqu iry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manif est weight, a reviewing court is to examine the entire record, weigh the evidence and a ll reasonable inferences, consider the credibility of wit nesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani fest miscarriage of justiceLicking County, Case No. 2019 CA 0100 11

that the conviction must be reversed and a new trial ordered." State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily ag ainst the conviction." Martin at 175. {¶ 46} Appellant was charged with operating a vehicle under the influence of alcohol pursuant to R.C. 4511.19(A)(1)(a) which provides “[n]o person shall operate any vehicle * * * if, at the time of the operation, * * * [t]he per son is under the influence of alcohol, a drug of abuse, or a combination of them.” {¶ 47} Appellant was further charged with refusing a chemical t est and prior conviction within 20 years pursuant to R.C. 4511.19(A)(2)(a) wh ich required the state to prove Appellant was operating under the influence in the presen t matter, refused a chemical test, and further establish he had a prior OVI convict ion within the past 20 years. {¶ 48} Finally, Appellant was charged with assured clear distan ce ahead pursuant to R.C. 4511.21(A). This charge required the state to prove App ellant operated his vehicle at a speed greater than that which would permit Appellant to br ing his vehicle to a stop within the assured clear distance ahead. {¶ 49} As to the first two charges, Appellant again argues any evidence against him is tainted due to the language barrier. However, both Meado ws and Bell testified at trial that they had no difficulty communicating with Appellant. Transcript of trial (TT) 107, 144. {¶ 50} Meadows testified she believed Appellant was intoxicated due to the fact he rear ended her vehicle, the strong odor of alcohol coming from his person and his slurredLicking County, Case No. 2019 CA 0100 12
words. Based upon her observations Meadows believed he had no b usiness driving, and refused Appellant's request to follow him to Conway Motors. TT 105, 107-108. {¶ 51} Trooper Bell testified Appellant had a strong odor of al cohol emanating from his breath and person, glassy bloodshot eyes, and slurred speec h which was distinct from his accent. TT 130, 144. He swayed while performing the HGN tes t and exhibited 6 of 6 clues. TT 139, 158. None of these facts are impacted by a langu age barrier. Thus even if the jury discounted the remaining two tests, the state presente d sufficient evidence to support Appellant's conviction for driving under the influence. {¶ 52} For the same reasons, the state further produced suffici ent evidence of refusal with a prior conviction. Sufficient evidence was presen ted to support Appellant's conviction for OVI and Appellant testified he refused a breath test. TT 226. The state further presented a certified copy of Appellant's prior OVI con viction from 2016. TT 155- 156, State's Exhibit 9. We find the state presented sufficient evidence to support the charge of refusal with a prior conviction. {¶ 53} The state also produced sufficient evidence of assured c lear distance. Meadows testified that Appellant rear ended her vehicle as she waited at a traffic light. TT 98. This testimony was sufficient to support the conviction. {¶ 54} Finally, Appellant's convictions are not against the man ifest weight of the evidence. As for the OVI and refusal with a prior conviction, j urors viewed portions of Trooper Bell's dash camera video of the incident and could draw conclusions regarding the interaction between Bell and Appellant for themselves. TT 1 56-161. Appellant took the stand in his own defense and gave his version of events. It was within the province of the jury to discount Appellant's version and accept the state's version and we do not findLicking County, Case No. 2019 CA 0100 13
the jury lost its way in so doing. Likewise, in regard to the a ssured clear distance charge, while it is accurate Appellant testified Meadows backed into hi m as he waited at the light, the court as the trier of fact was free to choose to believe Me adow's version of events over Appellant's, and we find no error in the same. {¶ 55} The second and third assignments of error are overruled. {¶ 56} The judgment of the Licking County Municipal Court is af firmed.

By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur.

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