[Cite as State v. Daniels, 2014-Ohio-3697.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-969 

v. : (M.C. No. 2013TRD-112581)

Kevin L. Daniels, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on August 26, 2014 

 

Richard C. Pfeiffer, Jr., City Attorney; Lara N. Baker, City 

Prosecutor, and Melanie R. Tobias, for appellee. 

Yeura R. Venters, Public Defender, and Timothy E. Pierce, for 

appellant. 

 

APPEAL from the Franklin County Municipal Court 

KLATT, J. 

{¶ 1} Defendant-appellant, Kevin L. Daniels, appeals from a judgment of 

conviction and sentence entered by the Franklin County Municipal Court. For the 

following reasons, we affirm that judgment. 

I. Factual and Procedural Background 

{¶ 2} In the early morning hours of February 13, 2013, Ohio State Highway Patrol 

Officer Rodney Hart stopped appellant's car after observing him commit numerous traffic 

violations. Hart also suspected that appellant may have been driving while impaired. 

Hart approached the car and noticed a strong alcohol odor when appellant rolled down 
No. 13AP-969 2 

his window. Hart asked appellant to get out of the car to perform field sobriety tests. 

Appellant told the officer he did not have anything to drink that night. 

{¶ 3} Once outside the car, the officer had appellant perform three field sobriety 

tests: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg test. 

During these tests, appellant admitted to drinking one or two beers. Officer Hart 

observed a number of clues on each of these tests indicating to him that appellant was 

impaired. As a result, Officer Hart arrested appellant for operating a vehicle under the 

influence of alcohol in violation of R.C. 4511.19(A)(1)(a) ("OVI impaired").1 

{¶ 4} Officer Hart then read appellant a BMV Form 2255, which includes the 

consequences for refusing to submit to a chemical test for alcohol. Officer Hart asked 

appellant to take a breath test for alcohol, which appellant refused. Appellant also refused 

to take a urine test for alcohol. (Tr. 267.) Appellant expressed some level of skepticism 

about the alcohol tests generally and told the officer he wanted to go to a hospital and 

have a blood test performed. The officer declined that request. Appellant did not go to 

the hospital to have such test after his release from custody. 

{¶ 5} Appellant entered a not guilty plea to the OVI impaired charge2 and 

proceeded to a jury trial. The only witnesses at that trial were Officer Hart and appellant. 

Officer Hart testified to the above version of events. Appellant testified that he had been 

at a restaurant where he ate and drank two beers before the officer pulled him over. 

Appellant did not dispute that he may have committed traffic violations before being 

pulled over, but he did try to justify his performance on the field sobriety tests. He 

explained that: it was really loud on the side of the freeway so he had a hard time 

understanding what the officer was saying at times; it was cold out, which exacerbated 

pain in his body from a recent gunshot wound; the gunshot wound and his recent weight 

gain affected his ability to balance or stand for long periods; cars and their headlights 

driving by him on the freeway effected his concentration; and he was really tired. 

 

1 Appellant was also cited for failure to use a turn signal. Ultimately, the trial court found him guilty of 

that charge and sentenced him accordingly. That violation is not at issue in this appeal. 

2 OVI charges are commonly referred to as either impaired (R.C. 4511.19(A)(1)(a)) or per se (R.C. 

4511.19(A)(1)(b) through (j). See State v. Brand, 157 Ohio App.3d 451, ¶ 11-12 (1st Dist. 2004), citing 

Newark v. Lucas, 40 Ohio St.3d 100 (1988). The impaired charge generally prohibits impaired driving, 

while a per se charge prohibits operation of a vehicle with certain concentrations of alcohol and drugs in a 

person's system. State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, ¶ 18. Because appellant refused to 

take a test for the presence of alcohol in his system, he could not be charged with OVI per se. 
No. 13AP-969 3 

Appellant also testified that he offered to go to the hospital and have a blood test 

performed instead of the breath or urine tests requested by the officer but that he did not 

do so. 

{¶ 6} The jury found appellant guilty of the OVI impaired charge and the trial 

court sentenced him accordingly. 

II. The Appeal 

{¶ 7} Appellant appeals and assigns the following errors: 

[1.] Appellant's right to a fair trial and due process of law as 

memorialized in the Fifth and Fourteenth Amendments of the 

United States Constitution and Article I, Section 16 of the 

Ohio Constitution were violated when, following specific 

evidentiary rulings by the trial court, the prosecutor ignored 

these rulings and made certain inflammatory remarks in the 

presence of the jury. 

[2.] The court's refusal instruction was contrary to law 

because it violated the holding of Maumee v. Anistik, 69 Ohio 

St.3d 339, 632 N.E.2d 497 (1994) and constituted an 

improper comment on the evidence by the court. 

[3.] The OVI conviction was against the sufficiency of the 

evidence and the manifest weight of the evidence. 

A. First Assignment of Error–Prosecutorial Misconduct 

{¶ 8} In this assignment of error, appellant points to certain instances that he 

alleges constitute prosecutorial misconduct that deprived him of a fair trial. We disagree. 

{¶ 9} The standard of review for prosecutorial misconduct is whether the 

comments and questions by the prosecution were improper and, if so, whether they 

prejudiced appellant's substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480 (2001). 

"The touchstone of analysis 'is the fairness of the trial, not the culpability of the 

prosecutor.' " State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, ¶ 92, quoting Smith 

v. Phillips, 455 U.S. 209, 219 (1982). Prosecutorial misconduct will not provide a basis for 

reversal unless the misconduct can be said to have deprived the appellant of a fair trial 

based on the entire record. State v. Lott, 51 Ohio St.3d 160, 166 (1990). 

{¶ 10} Appellant first points to a comment the prosecutor made during an 

objection to appellant's testimony. While appellant was testifying about his performance 

on the field sobriety tests, appellant commented that he knew he was not drunk. (Tr. 
No. 13AP-969 4 

227.) The prosecutor objected, noting that "[w]e're talking about impairment, not 

whether someone is drunk. That would indicate over the legal limit of .08. That's not the 

issue on the trial." (Tr. 227.) Appellant claims that this comment communicated to the 

jury that appellant was over the legal limit which was not an issue in this trial. We 

disagree. The comment did not imply what appellant's alcohol level would have been had 

he taken a test. Instead, the comment clarified that an individual need not be legally 

drunk to be impaired. This is the difference between a per se charge and the impaired 

charge, and there is nothing improper about the correct statement of law. Additionally, 

because the prosecutor correctly pointed out that the issue at trial was appellant's 

impairment and not the alleged level of alcohol in his system, the comment could not 

prejudice appellant. 

{¶ 11} In a related argument, appellant also points to Officer Hart's testimony that 

he concluded that appellant's blood alcohol level would be over .08. This testimony can 

not form the basis of a prosecutorial misconduct claim because it is testimony from a 

witness, not conduct of or a comment made by a prosecutor. State v. Castile, 10th Dist. 

No. 13AP-10, 2014-Ohio-1918, ¶ 19. Additionally, the trial court sustained an objection to 

the officer's testimony and struck it from the record. (Tr. 204.) 

{¶ 12} Second, appellant points to a comment the prosecutor made during closing 

argument. For background, appellant testified that he had taken some pain medication 

earlier on the day of his OVI citation. As a result, appellant's counsel requested a ruling 

from the trial court that the prosecutor could not comment during closing argument 

about any conclusions the jury could draw based on the how the medicine could interact 

with alcohol and cause impairment. The trial court agreed and advised the prosecutor not 

to make any "conclusory remarks with regard to what affect the medicine had on his OVI." 

(Tr. 288.) 

{¶ 13} During closing argument, the prosecutor commented that "[n]o one here is 

saying that [appellant] is falling down, stumbling, is the worst person we've ever seen. 

What we're saying is that he consumed alcohol and had Oxycodone, sufficient enough to 

make him impaired." (Tr. 300.) Appellant's counsel objected, and the trial court 

sustained the objection. The prosecutor then corrected his comment, noting that "[h]e 

has consumed enough alcohol to make him unable to drive." (Tr. 300.) 
No. 13AP-969 5 

{¶ 14} Even if the prosecutor's initial comment regarding Oxycodone rose to the 

level of misconduct, there is no prejudicial effect warranting reversal, because the trial 

court sustained appellant's objection to the comment and the prosecutor then corrected 

the comment to exclude the reference to Oxycodone and did not discuss the drug after the 

objection. See State v. Mielke, 10th Dist. No. 10AP-48, 2011-Ohio-277, ¶ 22 (prosecutor's 

comment during closing argument was not prejudicial error where trial court sustained 

objection to comment, appellant did not request curative instruction, and prosecutor did 

not make further similar remarks). 

{¶ 15} Because we have found no instances of prosecutorial misconduct, we also 

reject appellant's argument that the cumulative effect of these instances deprived him of a 

fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 230. 

{¶ 16} We overrule appellant's first assignment of error. 

B. Second Assignment of Error–Jury Instructions 

{¶ 17} In this assignment of error, appellant challenges the trial court's jury 

instruction regarding his refusal to take a test for alcohol. We note that a trial court has 

broad discretion in instructing the jury. State v. Kimkhe, 10th Dist. No. 11AP-433, 2012-

Ohio-1964, ¶ 12. Therefore, when reviewing a trial court's jury instruction, the proper 

standard of review for an appellate court is to determine whether the trial court's decision 

to give a requested jury instruction constitutes an abuse of discretion under the facts and 

circumstances of the case. Id. Although an abuse of discretion is typically defined as an 

unreasonable, arbitrary, or unconscionable decision, no court has the authority, within its 

discretion, to commit an error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-

Ohio-4571, ¶ 7. 

{¶ 18} The trial court instructed the jury that: 

[e]vidence has been introduced indicating the defendant was 

asked but refused to submit to a chemical test of his blood, 

breath or urine to determine the amount of alcohol in his 

system for the purpose of suggesting the defendant believed 

he was under the influence of alcohol. 

The law in Ohio requires a law enforcement officer to ask a 

defendant to submit to one of three different tests. A person 

suspected of operating a vehicle under the influence does not 

choose which test will be taken. If you find the defendant 

refused to submit to said test, you may, but are not required 
No. 13AP-969 6 

to, consider this evidence along with all other facts and 

circumstances in evidence in deciding whether the defendant 

was under the influence of alcohol. 

(Tr. 306-07.) (Emphasis added.) 

{¶ 19} Except for the italicized portion of the above instruction, the Supreme Court 

of Ohio has approved the above instruction "where a person has been arrested for driving 

while under the influence of alcohol and is requested by a police officer to submit to a 

chemical test of his or her breath but he or she refuses to take the test, and the reason 

given for the refusal is conditional, unequivocal, or a combination thereof." Maumee v. 

Anistik, 69 Ohio St.3d 339, 344 (1994). 

{¶ 20} Appellant first argues that the refusal instruction itself was not proper 

because he did not refuse to take a test under Maumee because he offered to take a blood 

test instead of the tests the officer asked him to take. We disagree. Officer Hart asked 

appellant to take two tests and he unequivocally refused both. Appellant did not have the 

right to choose which test to take. State v. Caldwell, 10th Dist. No. 02AP-576, 2003-

Ohio-271, ¶ 8-12 (provision of Maumee instruction not plain error where defendant 

refused to take urine test despite his repeated requests to take different test). Mt. Vernon 

v. Seng, 5th Dist. No. 04CA000012, 2005-Ohio-2915, ¶ 46 (refusal where defendant 

offered to take blood test but officer only offered breath test and defendant refused that 

test). 

{¶ 21} Second, appellant argues that the trial court's addition of the italicized 

portion of the instruction was error. He argues that Officer Hart never told him that 

information and the instruction approved in Maumee did not contain such language. We 

reject appellant's arguments. 

{¶ 22} A defendant in a criminal case is entitled only to have the law stated 

correctly by the trial court, not to have his proposed jury instructions presented to the 

jury. State v. Boyde, 10th Dist. No. 12AP-981, 2013-Ohio-3795, ¶ 12. Where requested 

jury instructions are correct statements of the law as applied to the facts of the case, they 

should generally be given. State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, 

¶ 48. The portion of the refusal instruction appellant objects to is a correct statement of 

the law: the officer was required to ask appellant to submit to a test for alcohol and 

appellant did not have the right to choose which test to take. R.C. 4511.191(A)(3); Seng. 
No. 13AP-969 7 

Thus, notwithstanding appellant's arguments, the trial court did not abuse its discretion 

in supplementing the refusal instruction because the supplemental language is a correct 

statement of the law. See State v. Carreiro, 12th Dist. No. CA2011-12-236, 2013-Ohio1103, ¶ 25 (provision of jury instruction that was a correct statement of law was not abuse 

of discretion). 

{¶ 23} The trial court's refusal instruction was not an abuse of discretion. 

Accordingly, we overrule appellant's second assignment of error. 

C. Third Assignment of Error– Sufficiency and Manifest Weight 

of the Evidence 

{¶ 24} In this assignment of error, appellant contends that his conviction is not 

supported by sufficient evidence and is also against the manifest weight of the evidence. 

Although sufficiency and manifest weight are different legal concepts, manifest weight 

may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is 

supported by the manifest weight of the evidence necessarily includes a finding of 

sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶11, citing State 

v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. "[T]hus, a determination 

that a conviction is supported by the weight of the evidence will also be dispositive of the 

issue of sufficiency." Id. In that regard, we first examine whether appellant's conviction is 

supported by the manifest weight of the evidence. State v. Gravely, 188 Ohio App.3d 825, 

2010-Ohio-3379, ¶ 46 (10th Dist.). 

{¶ 25} The weight of the evidence concerns the inclination of the greater amount of 

credible evidence offered to support one side of the issue rather than the other. State v. 

Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a challenge to the 

manifest weight of the evidence, an appellate court may not merely substitute its view for 

that of the trier of fact, but must review 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 trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered. Id. at 387. An appellate court should reserve reversal of a conviction as being 

against the manifest weight of the evidence for only the most " 'exceptional case in which 

the evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20 
No. 13AP-969 8 

Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 

2010-Ohio-6179, ¶ 12. 

{¶ 26} In addressing a manifest weight of the evidence argument, we are able to 

consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 

2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the 

presumption that the jury, or the trial court in a bench trial, " 'is best able to view the 

witnesses and observe their demeanor, gestures and voice inflections, and use these 

observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons 

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference 

to the jury's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the 

syllabus (credibility determinations are primarily for the trier of fact). 

{¶ 27} Appellant contends that his OVI conviction is against the manifest weight of 

the evidence due to a number of reasons for his poor performance on the field sobriety 

tests. Specifically, he claims that the noise of the highway made it hard for him to hear 

Officer Hart's instructions, that is was cold out which caused him to sway during the tests, 

and that headlights from other cars on the highway made it hard to perform one of the 

tests. Appellant also notes that he did not slur his speech, he was cooperative, he had no 

trouble exiting his car, and his shortcomings on the field sobriety tests were minimal. 

{¶ 28} Appellant testified at trial to all of the above reasons for his poor 

performance on the field sobriety tests and his behavior during the traffic stop. The jury 

obviously rejected these reasons and chose to rely on Officer Hart's testimony indicating 

that appellant was under the influence. Specifically, Officer Hart testified to appellant's 

driving before being stopped, the smell of alcohol in the car, his admission to drinking 

that night, his poor performance on the field sobriety tests, and his decision to refuse 

breath and urine tests for alcohol. Additionally, the jury viewed the video of his traffic 

stop and could make their own determinations about the validity of appellant's 

explanations. In light of all this evidence, we cannot say that the jury clearly lost its way in 

concluding that appellant was impaired and driving while under the influence of alcohol. 

Appellant's OVI conviction is not against the manifest weight of the evidence. Columbus 
No. 13AP-969 9 

v. Robbins, 61 Ohio App.3d 324, 329 (10th Dist.1989); State v. Standen, 9th Dist. No. 

05CA008813, 2006-Ohio-3344, ¶ 25. This resolution is also dispositive of appellant's 

claim that his conviction was not supported by sufficient evidence. Gravely at ¶ 50. 

Accordingly, we overrule appellant's third assignment of error. 

III. Conclusion 

{¶ 29} Having overruled appellant's three assignments of error, we affirm the 

judgment of the Franklin County Municipal Court. 

Judgment affirmed.

 DORRIAN and LUPER SCHUSTER, JJ., concur.