[Cite as State v. Taylor , 2019-Ohio-4664.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : CORTEZ TAYLOR, : Case No. 2019CA00033 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2018TRC09347

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 12, 2019

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

KRISTEN BATES AYLWARD AARON KOVALCHIK Canton Law Director 116 Cleveland Ave. NW Suite 808 JASON P. REESE Canton, Ohio 44702 Canton City Prosecutor

KATIE ERCHICK GILBERT Deputy Chief Counsel 218 Cleveland Ave. S.W. P.O. Box 24218 Canton, Ohio 44701-4218Stark County, Case No. 2019CA00033 2

Baldwin, J. {¶1} Defendant-appellant Cortez Taylor appeals his conviction and se ntence from the Canton Municipal Court. Plaintiff-appellee is the Stat e of Ohio.

STATEMENT OF THE FACT AND CASE {¶2} On November 24, 2018, appellant was cited and charged with oper ating a motor vehicle while under the influence of drugs and/or alcohol in violation of R.C. 4511.19(A)(2), a misdemeanor of the first degree. On December 2 6, 2018, appellant filed a Motion Suppress. Following a hearing held on January 22, 2019 , the trial court, as memorialized in a Judgment Entry filed on January 24, 2019, den ied the motion, finding that there was probable cause for the arrest of appellant. {¶3} Thereafter, a jury trial commenced on February 6, 2019. At the trial, Officer Gary Lee Dodge, Jr. of the North Canton Police Department testi fied that he was working for the Stark County OVI Task Force on November 24, 2018 when h e stopped appellant’s vehicle for a burnt out tail light in his pickup truck. Officer Dodge testified that as he approached appellant, he observed that appellant’s pupils were dilated and bloodshot and his eyes were bloodshot. When appellant began speaking to h im, the Officer also “could smell an odor of alcohol coming from his breath.” Trial Transcript at 56. Appellant told Officer Dodge that he had had two Bud Light Platinums, whi ch has a higher content of alcohol by volume than a regular Bud Light, about a half an hour before. Appellant also told that Officer that he had a couple of shots. {¶4} Officer Dodge then had appellant perform field sobriety tests. The following testimony was adduced when the Officer was asked how appellant performed on the horizontal gaze nystagmus (HGN) test:Stark County, Case No. 2019CA00033 3

{¶5} A: He showed strong signs o f impairment immediately – {¶6} Q: What – {¶7} A: -- which is— {¶8} Q: --do you mean by strong? Excuse Me. (CLEARS THROAT) {¶9} A: His eyes were jerking in an irregular rate which indicated that there was

a sufficient amount of alcohol in his bloodstream which based o n my experience I could tell exactly how much had had over the legal limit because his eyes were jerking as much as they were. {¶10} Q: And in your experience, how much did you believe the defend ant had? {¶11} A: I believe that he had probably five or six drinks. {¶12} Trial Transcript at 58-59. Officer Dodge also had appellant pe rform the walk and turn test. He testified that appellant did pretty good on t his test but made a few small errors. Appellant did not touch completely heel to toe and ther e was a “gap in between a few of his steps, which is a clue of impairment,...” Trial Transc ript at 60. Appellant also did not complete the turn as Officer Dodge had described it. Th e Office testified that appellant performed the one leg stand test correctly. {¶13} After the field sobriety tests, Officer Dodge took appellant to the North Canton Police Department where he asked appellant if appellant was willing to take a breathalyzer test. Appellant told him that he had injured his m outh while eating something the night before and was not willing to blow because his mouth hurt. Appellant did not blow into the machine and was told that this was going to be co nsidered a refusal to take the test. When asked why he did not offer appellant a urine tes t, the Officer testified that he usually used such test when there was suspicion of drugs and that there was noStark County, Case No. 2019CA00033 4

suspicion of drug use in this case. Appellant was then advised that because of his prior OVI, he would automatically lose his license for two years. Of ficer Dodge testified that appellant told him that he had a low tolerance for alcohol beca use he had not drank since his prior OVI between twelve and thirteen months before. {¶14} On cross-examination, Officer Dodge testified that he did not s ee appellant commit any traffic violations or bad driving. He also admitted that he did not indicate that appellant had bloodshot eyes in his narrative report or impaire d driver’s report. {¶15} Appellant testified in his own defense. He testified that when he was talking about shots, he was referring to the beer because he was not a beer drinker and normally drank liquor “and when we refer to the drink, we call it shot, so I was referring to the two beers that I have drank.” Trial Transcript at 84. He testified that he only had two drinks on the night in question. Appellant testified that he never ref used to take the breath test,

but told the Officer that he did not want to take the test and would take a blood test. On cross-examination, appellant did not remember telling Officer D odge that his tolerance

was down and testified that he did not know the alcohol content of Platinum beers. {¶16} Appellant also testified that his eyes looked different on the night of his arrest because orange lights were used as street lights and “th e orange lights reflecting off the white surface will produce an orange glare.” Trial Tran script at 89. {¶17} At the conclusion of the evidence and the end of deliberations, the jury found appellant guilty of operating under the influence of alco hol and/or drugs of abuse. As memorialized in a Judgment Entry filed on February 6, 2019, appellant was sentenced to 180 days in jail and fined $800.00. All but 20 days were sus pended on condition of appellant’s good behavior of a term of two years. Appellant was also ordered to completeStark County, Case No. 2019CA00033 5

25 hours of supervised community service. A Nunc Pro Tunc Judg ment Entry was filed on February 8, 2019. {¶18} Appellant now raises the following assignment of error on appea l: {¶19} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

I {¶20} Appellant argues that his conviction for OVI is against the man ifest weight and sufficiency of the evidence. We disagree. {¶21} When an appellate court reviews a record for sufficiency, the r elevant 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 eleme nts of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Accordingly, the questi on of whether the offered evidence is sufficient to sustain a verdict is a question of la w. State v. Perkins, 3d Dist. Hancock No. 5-13-01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citin g Thompkins at 386,

678 N.E.2d 541. {¶22} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed andStark County, Case No. 2019CA00033 6

a new trial ordered’.” Thompkins , supra at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721 (1983). {¶23} “[T]he weight to be given the evidence and the credibility of t he witnesses are primarily for the trier of the facts.” State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the witnesses. {¶24} Appellant was convicted of OVI in violation of R.C. 4511.19(A)( 2)(a). Such section states, in relevant part, as follows: “(2) No person wh o, within twenty years of the conduct described in division (A)(2)(a) of this section, previo usly has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the f ollowing: {¶25} (a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combinati on of them;... {¶26} Appellant was not, as alleged by appellee, convicted of violati ng R.C. 4511.19(A)(2)(b) which states as follows: (b) Subsequent to bei ng arrested for operating the vehicle, streetcar, or trackless trolley as described in di vision (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemica l test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences o f the person's refusal or submission to the test or tests, refuse to submit to the tes t or tests. {¶27} In the case sub judice, there was testimony that appellant, who was stopped for having a burnt tail light, smelled of alcohol, and had bloo dshot and dilated eyes. Appellant admitted to having consumed two Bud Light Platinum Be ers thirty minutesStark County, Case No. 2019CA00033 7

before he was stopped and also admitted that he had consumed a couple of shots. While appellant testified that he was referring to the two beers that he had consumed when he spoke of the shots, the jury, as trier of fact, was in the best position to assess his credibility. {¶28} There also was testimony that appellant exhibited strong signs of impairment during the HGN test. As is stated above, Officer Dod ge testified that appellant’s eyes “were jerking in an irregular rate which indic ated that there was a

sufficient amount of alcohol in his bloodstream..” and that bas ed on his experience, he believed that appellant had probably had five or six drinks. Tr ial Transcript at 58. In addition, appellant, who had a prior OVI in 2017, failed to tou ch heel to toe, had gaps between his step and did not turn properly during the walk and turn test. Officer Dodge testified that even if appellant had been disabled and could no t have performed the one leg stand and walk and turn test, he would have been arrested “ [b]ased on the totality of the circumstances...-- based on the observation of how impaired h is eyes were showing based on the Horizontal Gaze Nystagmus ..., his eyes were jerking irregularly and he was impaired.” Trial Transcript at 62. {¶29} Officer Dodge also testified that appellant refused to submit t o a breath test. Appellant testified that he offered to submit to a urine test a nd that, therefore, he never refused to take a test and argues that Officer Dodge’s failure to allow him to submit to a urine or blood test “should not ultimately be held against him as a refusal.” However, appellant had no right to a choice of the type of chemical test available. See City of Mount Vernon v. Seng, 5th Dist. Knox No. 04CA000012, 2005–Ohio–2915, ¶ 46.Stark County, Case No. 2019CA00033 8

{¶30} Based on the foregoing, we find that any rational trier of fact , construing the evidence in in a light most favorable to the prosecution, could have found that appellant committed the offense of OVI in violation of R.C. 4511.19(A)(2) (a). We further find that the jury did not lose its way in convicting appellant. {¶31} Appellant’s sole assignment of error is, therefore, overruled. {¶32} Accordingly, the judgment of the Canton Municipal Court is affi rmed.

By: Baldwin, J. Wise, John, P.J. and Wise, Earle, J. concur.