[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 205 
Licking County, Case No. 2019 CA 0100 2 

 Columbus, OH 43215 

Wise, Earle, J.

{¶ 1} Defendant-Appellant Vitaliy Malkin appeals the May 8, 2019 judgment of 

the Licking County Municipal Court denying his motion to suppress, and the Licking 

County Municipal Court's October 7, 2019 judgment of conviction 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 40 and State Route 310 when 

Appellant rear-ended her vehicle. Meadows estimated Appellant was traveling at 15-20 

miles per hour when he struck her car. 

{¶ 3} Meadows got out of her car to inspect the damage, which was minor. 

Appellant rolled down the window of his vehicle to speak with Meadows and Meadows 

immediately noted the odor of alcohol. Appellant accused Meadows of backing into his 

vehicle. 

{¶ 4} Meadows noted Appellant had a foreign accent and was slurring 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 whether he had insurance 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 police, appellant made 

several phone calls. During each call appellant spoke in a foreign 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, Appellant got back in his 

car and made another phone call. 

{¶ 6} Ohio Highway Patrol Trooper Jason Bell arrived on the scene 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 there 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 operator'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 exhibited 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 responded 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 backwards. 

{¶ 12} Based on his observations, Bell believed Appellant was impaired and would 

register .08 or higher on a breath test. Appellant was therefore taken into custody. 

{¶ 13} Appellant later refused a breath test. A review of Appellant's BMV record 

revealed a previous conviction for operating a vehicle under the 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 motion to suppress. 

Appellant argued Trooper Bell lacked reasonable suspicion to administer field sobriety 

tests, administered those tests improperly, and lacked probable cause to arrest. 

{¶ 16} A suppression hearing was held on May 7, 2019. Meadows and Bell testified 

for the state. Appellant presented no evidence. At the conclusion 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 chemical 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 this 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 trial 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 determine whether said 

findings of fact are against the manifest weight of the evidence. 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 appropriate test or correct law to 

the findings of fact. In that case, an appellate court can reverse 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 against the manifest weight of 

the evidence and it has properly identified the law to be applied, an appellant may argue 

the trial court has incorrectly decided the ultimate or final issue 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, whether 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 general matter 

determinations of reasonable suspicion and probable cause should be reviewed de novo 

on appeal.” 

{¶ 25} When ruling on a motion to suppress, the trial court assumes the role of trier 

of fact and is in the best position to resolve questions of fact 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 suspicion 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 constitutes a seizure 

within the meaning of the Fourth Amendment. Courts have generally held that the 

intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer 

therefore need only have reasonable suspicion that the driver is 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 sobriety 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 “* * * something 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 encompasses the totality of the 

circumstances, and a court may not evaluate in isolation each articulated reason for the 

stop.” Additionally, “a court will analyze the reasonableness of the request based on the 

totality of the circumstances, viewed through the eyes of a reasonable 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, citing, 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 odor of alcohol is 

combined with glassy or bloodshot eyes and further indicia of intoxication, such as an 

admission of having consumed alcohol, reasonable suspicion exists.” State v. Strope, 5th 

Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 ¶ 19. 

{¶ 32} In this matter, we find Appellant presented ample indicia 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 Bell to conduct field sobriety 

testing. 

{¶ 33} Appellant next argues Trooper Bell failed to properly administer the field 

sobriety tests. We disagree. 

{¶ 34} R.C. 4511.19(D)(4)(b) provides that evidence and testimony regarding the 

results of a field sobriety test may be presented “if it is shown by clear and convincing 

evidence that the officer administered the test in substantial compliance with the testing 

standards for any reliable, credible, and generally accepted field sobriety tests that were 

in effect at the time the tests were administered, including, but not limited to, any testing 

standards then in effect that were set by the national highway traffic safety 

administration[.]” 

{¶ 35} During the suppression hearing, Trooper Bell testified he received training 

on impaired driving in 2018 with the current national highway safety administration 

manual. The manual was admitted into evidence as States' Exhibit 1. Transcript of 

Suppression hearing (TS) 17-18. Bell testified he was trained to administer the three 

standardized field sobriety tests, HGN, walk and turn, and one-legged stand. He 
Licking County, Case No. 2019 CA 0100 9 

explained how each is administered per the manual and how Appellant preformed on 

each. TS 18-26. Trooper Bell's dash camera video was also played during the 

suppression hearing and admitted into evidence. 

{¶ 36} For the most part, Appellant's argument is not that Trooper Bell failed to 

properly administer the tests, but rather that a language barrier prevented Appellant from 

adequately understanding Bell's instructions. He further argues his back problem and his 

prescribed anxiety medication could have caused "false positives" for intoxication. These 

determinations were questions of fact for the trial court to determine. 

{¶ 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 Appellant. 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 evidence at the suppression 

hearing as to what medication he was taking, nor its possible side effects. Whether or not 

the medication could impact the results of the test is a separate matter from whether or 

not Trooper Bell administered the test in compliance with the applicable standards. 

{¶ 39} Finally, while Appellant points out Trooper Bell neglected to advise 

Appellant not to stop once he started the walk and turn test, Trooper 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 instructions given by Bell and make 
Licking County, Case No. 2019 CA 0100 10 

its factual determinations, and we find no error in the same. TS 27. Further, there is no 

indication that Trooper Bell failed to properly administer Appellant's field sobriety testing. 

{¶ 41} In his final argument in this assignment of error, Appellant 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 the field sobriety tests, and, 

following Appellant's performance on those tests and his observations 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 together. In his 

second and third assignments of error, appellant argues his convictions are not supported 

by sufficient evidence and are against the manifest weight of the evidence. We disagree. 

{¶ 45} On review for sufficiency, a reviewing court is to examine the evidence at 

trial to determine whether such evidence, if believed, would support a conviction. State 

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, 

after viewing the evidence in a light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime proven beyond a reasonable 

doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing 

court is to examine the entire record, weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses and determine "whether in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice 
Licking 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 against 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 person is under the influence of 

alcohol, a drug of abuse, or a combination of them.” 

{¶ 47} Appellant was further charged with refusing a chemical test and prior 

conviction within 20 years pursuant to R.C. 4511.19(A)(2)(a) which required the state to 

prove Appellant was operating under the influence in the present matter, refused a 

chemical test, and further establish he had a prior OVI conviction within the past 20 years. 

{¶ 48} Finally, Appellant was charged with assured clear distance ahead pursuant 

to R.C. 4511.21(A). This charge required the state to prove Appellant operated his vehicle 

at a speed greater than that which would permit Appellant to bring 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 Meadows 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 slurred 
Licking County, Case No. 2019 CA 0100 12 

words. Based upon her observations Meadows believed he had no business 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 alcohol emanating from 

his breath and person, glassy bloodshot eyes, and slurred speech which was distinct from 

his accent. TT 130, 144. He swayed while performing the HGN test and exhibited 6 of 6 

clues. TT 139, 158. None of these facts are impacted by a language barrier. Thus even if 

the jury discounted the remaining two tests, the state presented sufficient evidence to 

support Appellant's conviction for driving under the influence. 

{¶ 52} For the same reasons, the state further produced sufficient evidence of 

refusal with a prior conviction. Sufficient evidence was presented 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 conviction 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 clear 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 manifest weight of the 

evidence. As for the OVI and refusal with a prior conviction, jurors 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 156-161. 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 find 
Licking County, Case No. 2019 CA 0100 13 

the jury lost its way in so doing. Likewise, in regard to the assured clear distance charge, 

while it is accurate Appellant testified Meadows backed into him as he waited at the light, 

the court as the trier of fact was free to choose to believe Meadow'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 affirmed. 

By Wise, Earle, J. 

Gwin, P.J. and 

Baldwin, J. concur. 

EEW/rw