[Cite as State v. Vales , 2020-Ohio-245.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsCHRISTOPHER VALES Defendant-Appellant JUDGES: : Hon. William B. Hoffman, P. J. : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. : : : Case No. 2019CA00061 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2018CR1673

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 27, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO BERNARD HUNT Stark County Prosecutor 2395 McGinty Road N.W. By: RONALD MARK CALDWELL North Canton, OH 44720 110 Central Plaza South, 5 th Floor Canton, OH 44702Stark County, Case No. 2019CA00061 2
Gwin, J., {¶1} Defendant-appellant Christopher Vales [“Vales”] appeals his con viction and sentence after a jury trial in the Stark County Court of Common Pleas. Facts and Procedural History {¶2} In 2018, Vales was charged by indictment with one count of oper ating a vehicle under the influence of alcohol, a drug of abuse, or a combinati on of them ("OVI"), in violation of R.C. 4511.19(A)(2), and one count of driving under suspensio n, in violation of R.C. 4510.11(B). The OVI count was charged as a felony of the third degree because it alleged that Vales had been convicted of OVI five times within the last twenty years. This number was later amended, upon motion of the prosecution, to four prio r OVI convictions. As a result of the amendment, the current OVI charge was reduced to a felon y of the fourth degree (three prior OVI convictions within the last ten year). {¶3} The facts presented during Vales’ jury trial follow. {¶4} During the early morning hours of September 4, 2018, around 3:1 6 a.m., Canton Police Officer Christina Paumier was patrolling her assi gned zone and was responding to a domestic call. While proceeding on Sherrick Ro ad in the southeast side of Canton, Paumier noticed a white SUV go up onto the curb and nearly strike several telephone poles. The vehicle would go up and come back down fr om the curb, and was swerving onto the sidewalk from the roadway. The vehicle was a lso driving at a slow rate of speed. Having decided that she was going to stop the vehicle, Paumier ran the license plate and found out the license plate was expired and that the registered owner of the vehicle had failed to reinstate his driver's license, meaning h is license was suspended.Stark County, Case No. 2019CA00061 3 With this information, as well as the erratic driving, Paumier effected a traffic stop of the vehicle. {¶5} After making the stop, Paumier approached the driver, wearing h er body camera, and determined that he was the registered owner of the vehicle. Vales told the officer that he was looking for “1027” the address of his girlf riend’s present location. Paumier asked Vales to step out of his vehicle, and noticed tha t Vales had slurred speech, which made it difficult for Paumier to understand him, as well as glassy and bloodshot eyes. Paumier also smelled alcoholic beverage from his person and in his vehicle. Vales’ pupils appeared to be significantly constricted, all of which led Paum ier to believe that Vales was impaired. Paumier next asked Vales if he had consumed any alco hol; Vales said that he had consumed two beers at around 8-9 o’clock. Paumier also ask ed Vales if he had any medical conditions. After hesitating, Vales replied, "My sugar .” Paumier concluded that Vales might be diabetic, and so she asked him if he had checked his sugar levels. Vales replied that he had, and that his levels were good. When Vales was later performing the field sobriety tests, Paumier asked if he had any other medical conditions or physical limitations. Paumier wanted to know if there was any medical r eason why Vales could not perform the tests. Vales said that he had plates in both h is big toes and in his right wrist. {¶6} Vales was asked if he would perform the field sobriety tests. The first test was the horizontal nystagmus test [“HGN”], which tests if there is equal tracking of the eyes. Paumier noted that Vales did not complain of any form of brain injury. Instead of tracking the tip of Paumier's pen, Vales stared ahead; he also followed the pen by moving his head on several occasions. Vales was not able to follow in structions during the test.Stark County, Case No. 2019CA00061 4
{¶7} Paumier next asked Vales to perform the walk-and-turn test [“W AT”], which tested his ability to follow instructions and his balance. Val es could not stand for 26 seconds without losing his balance, and could not walk a straig ht line. {¶8} Finally, Paumier asked Vales to perform the one-legged test [“O LS”], which required him to stand straight up and lift one leg up for 30 se conds. Paumier noted that Vales kept swaying while he was standing, and could only keep h is leg up for a matter of seconds before losing balance. {¶9} Based on Vales' performance on these three tests, Paumier concl uded that he was under the influence of drugs, alcohol, or a combination of both. Paumier then arrested Vales and impounded his vehicle since it had expired p lates, and since the only occupant was being arrested. Officer Paumier asked Vales for i dentifying information; Officer Paumier noted that Vales got his birthday wrong. {¶10} As part of police policy, when a vehicle is impounded, an inven tory search of that vehicle is performed in order to preserve the contents of the vehicle. During this inventory search of Vales’ impounded vehicle, Paumier found num erous medication and prescription bottles (made out to Vales) for opiates, some of w hich were empty. The labels on several of the prescription bottles for the opiates w arned that alcohol should not be consumed while taking the drugs. {¶11} Paumier transported Vales to the Stark County Jail. On the way , Paumier asked Vales about the prescription bottles. Vales stated that he does not take prescribed medication. Once they reached the jail, Vales was booked as pa rt of standard procedure. Paumier had decided to ask Vales for a urine test instead of a breath test. The breath test does not test for drugs, whereas the urine test can provid e for testing of alcohol andStark County, Case No. 2019CA00061 5 drugs. Vales, however, refused once he found out that she was going to test for alcohol and drugs. "No, I won't do it," Vales responded. Vales then s tated, “If I refuse, then what...I ain’t refusing...” The camera was then turned off. {¶12} Officer Paumier admitted under cross-examination that her flash light pointed in the eyes of the Vales could have caused him to have difficulty on the HGN test. Officer Paumier admitted that regulations required the use of a "clue" sheet to mark deviations made by the suspect from the standards; however, she did not use this sheet in Vales’ case. Finally, she related that a person with brain damage had the same clues as a person who was intoxicated. {¶13} Vales testified that he traveled from Cleveland to pick up his girlfriend in Canton, but that he could not find the right street or address. Before long, he noticed that a police cruiser had pulled up right behind him, and soon pulle d him over. He originally thought the officer was going to provide him with assistance in finding address, which was on Sherrick Road. {¶14} Vales testified that he was unable to perform the tests require d by the police due to his prior physical and mental injuries. He had extensiv e brain Injuries from a beating he sustained in 2000, which was inflicted by an individ ual with a fire extinguisher. This injury affected his speech and his balance. He is current ly in therapy for his slurred speech and he uses a walker to get around . He also has trouble hearing and is required to wear a hearing aid. He has gout, rotator cuff issues from a car accident and takes the pain pills, found in his vehicle for these ailments. Vales adm itted that he told Officer Paumier he did not take his medication. He further admitted th at he never told DeputyStark County, Case No. 2019CA00061 6 Paumier that he had suffered a traumatic brain injury. Vales t estified that any odor of an alcoholic beverage came from the fact that he had drunk non-alc oholic beer earlier. {¶15} On cross-examination, Vales admitted that taking the prescribed drugs was part of his pain management, but that he did not take any that night since he knew he would be driving. Finally, Vales admitted that he at first refused to ta ke a urine test. (1T. at 241- 242). 1 However, Vales claimed that he subsequently agreed that he wo uld take the test. (1T. at 229-230; 241-242). {¶16} The jury found Vales guilty as charged. The trial court therea fter sentenced Vales to an aggregate prison term of 18 months - 18 months for the OVI conviction, and a concurrent 180-day sentence for the conviction for driving wh ile under suspension. Assignments of Error {¶17} Vales raises three Assignments of Error, {¶18} “I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. {¶19} “II. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. {¶20} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT THE APPELLANT REFUSED TO TAKE A CHEMICAL ANALYSIS OF HIS BREATH, TH US VIOLATED O.R.C. 4511.192.”

I.

1 For clarity sake, the transcript of Vales’ jury trial will be referred to as “__T.__,” signifying the Volume and the page number.Stark County, Case No. 2019CA00061 7
{¶21} In his First Assignment of Error, Vales argues that he was deni ed effective assistance of retained trial counsel. Specifically, Vales cont ends that his trial counsel: 1). did not file a suppression motion; 2) counsel failed to object to the admission of the field sobriety tests; 3) counsel did not present Vale's medical recor ds at trial; 4) counsel did not object to the admission of photos of Vale's prescribed pill s; and, 5) counsel did not subpoena witnesses to testify at trial in Vale's defense. STANDARD OF APPELLATE REVIEW. {¶22} To obtain a reversal of a conviction based on ineffective assis tance of counsel, the defendant must prove (1) that counsel's performanc e fell below an objective standard of reasonableness, and (2) that counsel's deficient pe rformance prejudiced the defendant resulting in an unreliable or fundamentally unfair ou tcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984). A defendant's failure to satisfy one prong of the S trickland test negates a court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; State v. Madrigal , 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000). {¶23} In light of “the variety of circumstances faced by defense coun sel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel’s ass istance was reasonable considering all the circumstances.” Strickland v. Washington , 466 U.S. 668 at 689,104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’ s performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064. {¶24} The United States Supreme Court discussed the prejudice prong o f the Strickland test,Stark County, Case No. 2019CA00061 8 With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different. A reasonab le probability is a probability sufficient to undermine confidence in the outc ome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to deprive the d efendant of a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052. “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented a t trial, and so the Strickland standard must be applied with scrupulous care, l est “intrusive post-trial inquiry” threaten the integrity of the very adversar y process the right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104 S.Ct. 2052. Even under de novo review, the standard for judgin g counsel’s representation is a most deferential one. Unlike a later revie wing court, the attorney observed the relevant proceedings, knew of materials o utside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s ass istance after conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180Stark County, Case No. 2019CA00061 9 (1993). The question is whether an attorney’s representation a mounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052. Harrington v. Richter , 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). ISSUE FOR APPEAL. A. Whether there is a reasonable probabilit y a motion to suppress the field sobriety tests would have been granted and whether there is a reasonable probability that the jury would have found Vales not guilty of OVI if the motion to suppress had been granted. {¶25} Trial counsel’s failure to file a suppression motion does not p er se constitute ineffective assistance of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389, 2000–Ohio– 0448; Accord, State v. Ortiz , 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56. Counsel can only be found ineffective for failing to file a mot ion to suppress if, based on the record, the motion would have been granted. State v. Lavel le, 5th Dist. No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam , 5th Dist. No. 06–CA–88, 2007–Ohio– 3009, at ¶ 86. The defendant must further show that there is a reasonable probability that the outcome would have been different if the motion had been gr anted or the defense pursued. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986); see, also, State v. Santana , 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). 1). Admissibility of field sobriety tests. {¶26} The state contends that had Vales filed a motion to suppress, t he state would have presented evidence that Deputy Paumier substantially complied withStark County, Case No. 2019CA00061 10 standards promulgated by the National Highway Traffic and Safet y Institute for the FST’s. [State’s Brief at 7]. {¶27} R.C. 4511.19(D) (4)(b) governs the admissibility of results of field sobriety tests. That subdivision provides: In any criminal prosecution * * * for a violation of division ( A) or (B) of this section, * * * if a law enforcement officer has administer ed a field sobriety test to the operator of the vehicle involved in the vi olation and if it is shown by clear and convincing evidence that the officer admi nistered the test in substantial compliance with the testing standards for a ny reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limite d to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply: (i) The officer may testify concerning the results of the field sobriety test so administered. (ii) The prosecution may introduce the results of the field sob riety test so administered as evidence in any proceedings in the criminal prosecution. * * * (iii) * * * [I]f the testimony or evidence is adm issible under the Rules of Evidence, the court shall admit the testimony or evidence an d the trier of fact shall give it whatever weight the trier of fact considers to be appropriate. {¶28} In other words, the results of the field sobriety tests are not admissible at trial unless the state shows by clear and convincing evidence t hat the officer administeredStark County, Case No. 2019CA00061 11 the test in substantial compliance with NHTSA guidelines 2

. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶11. {¶29} In order for the results of the field sobriety tests to be admi ssible, the state must show by clear and convincing evidence that the officer per forming the testing substantially complied with accepted testing standards. State v. Schmitt , 101 Ohio St.3d 79, 2004–Ohio–37, 801 N.E.2d 446; R.C. 4511.19(D)(4)(b). Typic ally, the standards used are those from the NHTSA. Id. at ¶12. Part of the state’ s burden “includes demonstrating what the NHTSA requirements are, through competen t testimony and/or by introducing the applicable portions of the NHTSA manual.” State v. Djisheff , 11th Dist. Trumbull No.2005–T–0001, 2006–Ohio–6201 citing State v. Brown , 166 Ohio App.3d 638, 2006–Ohio–1172, 852 N.E.2d 1228 (11th Dist.); State v. Ryan , 5th Dist. Licking No. 02–CA-00095, 2003–Ohio–2803. In State v. Boczar , the Supreme Court held that HGN test results are admissible in Ohio without expert testimony, s o long as substantial compliance with testing guidelines has been shown and a proper foundation has been established as to the administering officer’s training, the off icer’s ability to administer the test and the officer’s technique in administering the test. State v. Boczar , 113 Ohio St.3d 148, 153, 2007–Ohio–1251, 863 N.E.2d 155. {¶30} Even if we assume that the testing was not done in substantial compliance with the applicable standards, reversal would not be warranted in this case. In Beard v. Meridia Huron Hosp ., the Ohio Supreme Court set forth the following standard, An improper evidentiary ruling constitutes reversible error onl y when the error affects the substantial rights of the adverse party o r the ruling is

2 National Highway Traffic and Safety Administration.Stark County, Case No. 2019CA00061 12 inconsistent with substantial justice. O’Brien, 63 Ohio St.2d at 164–165, 17.O.O.3d 98, 407 N.E.2d 490. “‘Generally, in order to find th at substantial justice has been done to [a party] so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probab ly have made the same decision.’” Id., quoting Hallworth v. Republic Steel Corp . (1950), 153 Ohio St. 349, 41 O.O. 341, 91 N.E.2d 690, paragraph three o f the syllabus. See also, State v. Overmeyer, 5th Dist. Licking No. 15-CA-15, 2015-Ohio-4479, ¶17. {¶31} In State v. Rahman , the Ohio Supreme Court recognized this principal, We are also mindful that our role upon review of this case is n ot to sit as the supreme trier of fact, but rather to assess the impa ct of this erroneously admitted testimony on the jury. In writing about t he court’s function on federal appellate review, Justice John Paul Stevens ’ observation is particularly appropriate: “‘[I]t is not the appellate court’s function to determine guilt or innocence * * *. Nor is it to speculate upon probable reconvic tion and decide according to how the speculation comes out * * *. [T]he questi on is, not were [the jury] right in their judgment, regardless of the erro r or its effect upon the verdict. It is rather what effect the error had or re asonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in theStark County, Case No. 2019CA00061 13 total setting.’” United States v. Hasting (1983), 461 U.S. 499, 516, 103 S.Ct. 1974, 1984, 76 L.Ed.2d 96, Stevens, J. concurring ( quoting Kotteakos v. United States [1946], 328 U.S. 750, 763–764, 66 S.Ct. 1239, 1247–1248, 90 L.Ed. 1557). State v. Rahman , 23 Ohio St.3d 146, n. 4, 492 N.E.2d 401. The Ohio Supreme Co urt has applied this standard of review, Thus, under Section 2945.83 of the Revised Code it would seem t hat since there is substantial evidence to support the guilty verdi ct even after the tainted evidence is cast aside, we should affirm. However, under Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), and Chapman v. State of California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (decided February 20, 1967), we are refused that course of action. In Fahy, the court said that when constitutionally inadmissible evidenc e has been admitted, a reversal is required where ‘there is a reasonable possibility that the evidence complained of might have contributed to the c onviction.’ (Emphasis added.) [Sic.] In Chapman , the court made it clear that the Fahy rule applied to federal constitutional errors in spite of a sta te harmless-error statute to the contrary. State v. Cowans , 10 Ohio St.2d 97,104–105, 227 N.E.2d 201(1967). {¶32} In the case at bar, we find beyond a reasonable doubt, that the evidence of the HGN, WAT and OLS Standardized Field Sobriety Tests did not contribute to his Vales’ conviction.Stark County, Case No. 2019CA00061 14
{¶33} “It is generally accepted that virtually any lay witness, inclu ding a police officer, may testify as to whether an individual appears intoxi cated . Columbus v. Mullins (1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d 422 . See, also, State v. McKee (2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State v. Schmitt , 101 Ohio St.3d 79, 83, 2004-Ohio-37 at ¶ 12, 801 N.E.2d 446, 450(2004); Accord , State v. Hackerdorn, 5th Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. In State v. Schmitt , the court indicated there is no reason to treat an officer’s testimony co ncerning a driver’s performance on nonscientific field tests any differently from h is observations on other indications of intoxication like slurred speech, bloodshot eyes and the odor of alcohol. Id. at ¶ 14. The court went on to conclude that even when the fina l results of a field sobriety test must be excluded at trial because the test was not adminis tered in compliance with standardized testing procedures, the officer may testify as a l ay witness under Evid.R. 701 about the officer’s observation of the defendant’s performa nce. Id. at syllabus, ¶ 15. Thus the results, i.e. whether the defendant passed or failed t he specific test are not admissible without substantial compliance with NHTSA requiremen ts. In State v. Ricer , this court observed, The “results” of an HGN test include an officer’s opinion about whether a person “passed” or “failed” the test, the number of c lues a person demonstrated on an HGN test, and, based upon the number of clue s demonstrated during the HGN test, the statistical likelihood th e person was under the influence of alcohol and had a BAC level over the leg al limit. Bresson [51 Ohio St.3d 123] at 126–29 [554 N.E.2d 1330]; Kennedy [5th Dist. No. 2008 AP 04 0026, 2009-Ohio-1398, 2009 WL 795209] at ¶ 27. InStark County, Case No. 2019CA00061 15
contrast, an officer’s observation that a defendant was unable to focus steadily on the stimulus during the HGN test or swayed during a field sobriety test is the type of physiological factor about which a n officer may testify even if the test was not administered in substantial co mpliance with the testing standards. Wickliffe v. Kirara , 11th Dist. No. 2006-L-172, 2007- Ohio-2304, [2007 WL 1395350], ¶ 19; State v. Koteff, 5th Dist. No. 04-COA035, 2005-Ohio-1719, [2005 WL 845208], ¶ 5, 18. Thus, an offic er’s observation that the defendant could not hold himself steady, l ost his balance, stumbled or staggered when he walked, stepped off the line, could not follow simple directions, or used his arms for balance, is admissible as lay evidence of intoxication even if the final results of the f ield sobriety tests are inadmissible at trial due to a lack of substantial complian ce with accepted testing standards. Schmitt [101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446] at syllabus; State v. Johnson , 7th Dist. No. 05 CO 67, 2007- Ohio-602 [2007 WL 446024], ¶ 25; State v. Green , 8th Dist. No. 88234, 2007-Ohio-1713 [2007 WL 1084128], ¶ 53; Cleveland v. Hunter , 8th Dist. No. 91110, 2009-Ohio-1239 [2009 WL 712498], ¶ 62–63; State v. Lothes , 11th Dist. No. 2006-P-0086, 2007-Ohio-4226 [2007 WL 2350997], ¶ 59; State v. Hammons , 12th Dist. No. CA2004-01-008, 2005-Ohio-1409 [2005 WL 694582], ¶ 5. 5th Dist. Ashland No. 17-COA-023, 2018-Ohio-426, 106 N.E.3d 819 , ¶20. {¶34} Vales did not challenge the basis for the traffic stop in the c ourt below. However, we note that prior to initiating the stop, Deputy Paum ier was informed thatStark County, Case No. 2019CA00061 16 Vales’ driver license was under a suspension for failure to re- instate, and further, that the plates on Vales’ vehicle were expired. Next, Vales’ arrest was proper because he was driving under a suspended license. {¶35} Probable cause to arrest for OVI need not arise solely from a s uspect's field sobriety tests. Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952. Probable cause to arres t exists when, at the moment of the arrest, “the facts and circum stances within [the arresting police officer's] knowledge * * * were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing a n offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964); see, also, State v. Timson , 38 Ohio St.2d 122, 127, 311 N.E.2d 16(1974). The existence of probable cause is determined by examination of the “‘totality’ of facts and circumstances withi n an officer's knowledge.” State v. Miller , 117 Ohio App.3d 750, 761, 691 N.E.2d 703(1997). “The totalit y of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered or where * * * the test results must be excluded for lack of strict compliance.” Homan , 89 Ohio St.3d at 427, 732 N.E.2d 952. {¶36} In the case at bar, Deputy Paumier could testify that Vales had slurred speech, glassy and bloodshot eyes, smelled of an alcoholic beve rage and that Vales admitted to having consumed two beers earlier. Deputy Paumier c ould testify that Vales could not follow the tip of a pen with his eyes when asked, and that Vales stepped off the line that she had asked him to walk. Deputy Paumier could test ify that she observed Vales swaying while awaiting the OLS test, and further that he lost his balance during the test.Stark County, Case No. 2019CA00061 17
{¶37} Based on the Deputy’s testimony we find that the totality of fa cts and circumstances supported a finding of probable cause to arrest V ales for driving under the influence of alcohol. We further find that probable cause was established even in the absence or exclusion of the field sobriety test. {¶38} As there is not a reasonable pr obability that the jury would ha ve found Vales not guilty of OVI if the motion to suppress had been granted, t rial counsel was not ineffective in failing to file a motion to suppress 3

. {¶39} Vales next contends that his attorney failed to introduce medic al records that were in his possession. Vales argues, “Trial counsel ulti mately determined to go to trial without these important documents.” [Appellant Brief at 6]. B. Whether the failure of trial counsel to offer medical records to substantiate Vales’ medical condition was ineffective assistance of counsel. {¶40} A defendant has no constitutional right to determine trial tact ics and strategy of counsel. State v. Cowans , 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999); State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶150; State v. Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶183(11th Dist.). Rather, decisions about viable defenses are the exclusive domain of def ense counsel after consulting with the defendant. Id. When there is no demonstra tion that counsel failed to research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing court defers to counsel's judgment in the matter. State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189(1980), citing People v. Miller , 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d 1089(1972); State v. Wiley , 10th Dist. No. 03AP-340, 2004- Ohio-1008 at ¶ 21.

3 The sufficiency of the evidence to support Vales’ conviction w ill be addressed more fully in response to Vales’ Second Assignment of Error.Stark County, Case No. 2019CA00061 18
{¶41} Debatable strategic and tactical decisions may not form the bas is of a claim for ineffective assistance of counsel. State v. Phillips , 74 Ohio St.3d 72, 85, 1995–Ohio– 171. Even if the wisdom of an approach is questionable, “debat able trial tactics” do not constitute ineffective assistance of counsel. Id. “Poor tactic s of experienced counsel, however, even with disastrous result, may hardly be considered lack of due process * * *.” State v. Clayton , 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980)( quoting United States v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143). {¶42} Further, the Ohio Supreme Court has recognized that if counsel, for strategic reasons, decides not to pursue every possible trial s trategy, defendant is not denied effective assistance of counsel. State v. Brown , 38 Ohio St.3d 305, 319, 528 N.E.2d 523(1988). This court must accord deference to defense counsel's strategic choices made during trial. “A fair assessment of attorney perf ormance requires us to eliminate the distorting effect of hindsight.” State v. Post , 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987). See State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). {¶43} Accordingly, we will not second-guess the judgment of Vales’ co unsel. Vales himself provided testimony of his injuries and medical di sabilities. Vales fails to elucidate with any particularity why the records were necessary or how the result of the trial was unreliable or unfair because the records were not adm itted into evidence. {¶44} We find that trial counsel’s failure to submit the medical reco rds did not prejudice Vales resulting in an unreliable or fundamentally unf air outcome of the proceeding. There is no “reasonable probability” that the trie r of fact would not have found him not guilty had counsel submitted the medical records.Stark County, Case No. 2019CA00061 19 C. Whether trial counsel was ineffective in failing to object to the photographs of prescription bottles found in Vales’ car. {¶45} Vales does not specify or elucidate his claim that the photogra phs of prescription bottles found inside his car during an inventory s earch of his vehicle would have been inadmissible at trial. Rather his argument is based upon an unsupported generalization. {¶46} In State v. Crotts , the Ohio Supreme Court explained, As a legal term, “prejudice” is simply “[d]amage or detriment t o one’s legal rights or claims.” Black’s Law Dictionary (eighth Ed.199 9) 1218. Thus, it is fair to say that all relevant evidence is prejudicial. T hat is, evidence that tends to disprove a party’s rendition of the facts necessarily harms that party’s case. Accordingly, the rules of evidence do not attemp t to bar all prejudicial evidence—to do so would make reaching any result ex tremely difficult. Rather, only evidence that is unfairly prejudicial is excludable. “‘Exclusion on the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply meant pr ejudice, anything adverse to a litigant’s case would be excludable under Rule 403. Emphasis must be placed on the word “unfair.” Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury’s emo tional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although no t always, unfairly prejudicial evidence appeals to the jury’s emotions ra ther thanStark County, Case No. 2019CA00061 20

intellect.’ ” Oberlin v. Akron Gen. Med. Ctr . (2001), 91 Ohio St.3d 169, 172, 743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87, Section 403.3. 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24. Accord, State v. Morgan, 5th Dist. Richland No. 18CA121, 2019-Ohio-2785, ¶36. {¶47} “‘The failure to object to error, alone, is not enough to susta in a claim of ineffective assistance of counsel.’” State v. Fears , 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999), quoting State v. Holloway , 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988). Accord, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A defendant must also show that he was materially prejudiced by t he failure to object. Holloway , 38 Ohio St.3d at 244, 527 N.E.2d 831. {¶48} In the case at bar, Vales admitted that he was legally prescrib ed Percocet, Atorvastatin, and Thiadiazine. 1T. at 228. He further testifie d that he participated in pain management. Id. at 227. Vales testified that he suffered a tr aumatic brain injury as the result of a severe beating. That combined with his “sugar” nec essitated him taking the prescribed medications. Deputy Paumier testified that it was b ecause she found the prescription pill bottles and becaus e Vales had informed her th at he took medications, she requested a urine test as opposed to a breath test. The bot tles themselves were not admitted into evidence. {¶49} Accordingly, Vales has failed in his burden to demonstrate that the photographs were improperly admitted into evidence during Vales ’ jury trial. Therefore, counsel was not ineffective in failing to object to the photogr aphs. D. Whether trial counsel was ineffective for failing to call certain witnesses to testify at trial.Stark County, Case No. 2019CA00061 21
{¶50} Vales argues that counsel did not call certain witnesses who wo uld have testified to Vales’ medical problems. In the case at bar, coun sel indicated that Vales might wish to present the testimony of his sister and his daugh ter. 1T. at 10. {¶51} “Generally, counsel’s decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a re viewing court.” State v. Treesh , 90 Ohio St.3d 460, 490, 739 N.E.2d 749(2001). Moreover, “‘[a ]ttorneys need not pursue every conceivable avenue; they are entitled to be select ive.’ ” State v. Murphy , 91 Ohio St.3d 516, 542, 747 N.E.2d 765(2001), quoting United States v. Davenport , 986 F.2d 1047, 1049 (7th Cir. 1993). {¶52} In the case at bar, Vales testified in his own defense. He pro vided the jury with an explanation of his physical disabilities, his medical p roblems, and of the prescriptions that he take for those conditions. Evidence was presented that Vales did not tell Deputy Paumier about his brain injury. The video evid ence from Vales’ body camera shows Vales tell Deputy Paumier about the plates in his toes and wrists. He further told the deputy that he could perform the FST’s. {¶53} In his appeal, Vales fails to elucidate with any specificity w hat additional facts the uncalled witnesses would have provided. Vales’ claim with respect to both performance and prejudice rests on mere speculation. “Such spe culation is insufficient to establish ineffective assistance.” State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217, citing State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 219, and State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 121.Stark County, Case No. 2019CA00061 22
{¶54} As the testimony of the witnesses would have been cumulative to Vales’ own testimony, we conclude that counsel made a legitimate “tact ical decision” not to call these witnesses. Therefore, the decision of counsel not to cal l these witnesses was not ineffective assistance. {¶55} Based upon the foregoing, Vales’ First Assignment of Error is o verruled. II. {¶56} In his Second Assignment of Error, Vales argues that there was insufficient evidence to convict him, and further Vales contends that the ju ry’s findings are against the manifest weight of the evidence 4

. STANDARD OF APPELLATE REVIEW. Sufficiency of the Evidence. {¶57} The Sixth Amendment provides: “In all criminal prosecutions, th e accused shall enjoy the right to a speedy and public trial, by an impar tial jury....” This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States , 570 U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida , 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of t he evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements of the charged offense and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

4 Vales does not challenge his conviction for Driving under Susp ension.Stark County, Case No. 2019CA00061 23
{¶58} When reviewing t he sufficiency of the ev idence, an appellate co urt does not ask whether the evidence should be believed. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry is whether, after viewing the evidence in the light most favora ble 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. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; r ather, we ask whether, ‘ if believed , [the evidence] would convince the average mind of the defenda nt's guilt beyond a reasonable doubt.’” State v. Murphy , 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds un less ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio5487, 71 N.E.3d 180, ¶74. ISSUE FOR APPEAL A. Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind of Vales’ guilt on each element of the crime of OVI beyond a reasonable doubt. {¶59} Vales was convicted of one count of OVI. R.C. 4511.19(A)(2) pr ovides, (2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convict ed of orStark County, Case No. 2019CA00061 24 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 b oth of the following: (a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a com bination of them; (b) Subsequent to being arrested for operating the vehicle, str eetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised b y the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person’s refusal or submission to the test or tests, refuse to submit to the test or tests. {¶60} Per se offenses make the blood-alcohol content an element of th e offense. The trier of fact must find only “that the defendant operated a vehicle * * * and that the defendant's chemical test reading was at the proscribed level.” Newark v. Lucas , 40 Ohio St.3d 100, 103, 532 N.E.2d 130(1988). In contrast, for “drivin g under the influence” in violation of R.C. 4511.19(A), The amount of alcohol found as a result of the chemical testin g of bodily substances is only of secondary interest. See Taylor, D runk Driving Defense (2 Ed.1986) 394, Section 6.0.1. The defendant's abilit y to perceive, make judgments, coordinate movements, and safely oper ate aStark County, Case No. 2019CA00061 25 vehicle is at issue in the prosecution of a defendant under suc h section. It is the behavior of the defendant whi ch is the crucial issue... Lucas , 40 Ohio St.3d at 104, 532 N.E.2d 130. {¶61} The phrase “under the influence of intoxicating liquor” has bee n defined as “[t]he condition in which a person finds himself after having c onsumed some intoxicating beverage in such quantity that its effect on him adversely affe cts his actions, reactions, conduct, movement or mental processes or impairs his reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicl e.” Toledo v. Starks , 25 Ohio App. 2d 162, 166, 267 N.E.2d 824 (6th Dist. 1971). See, also, State v. Steele , 95 Ohio App. 107, 111, 117 N.E.2d 617 (3rd Dist. 1952) (“[B]eing ‘ under the influence of alcohol or intoxicating liquor’ means that the accused must hav e consumed some intoxicating beverage, whether mild or potent, and in such quan tity, whether small or great, that the effect thereof on him was to adversely affect h is actions, reactions, conduct, movements or mental processes, or to impair his reactions, unde r the circumstances then existing so as to deprive him of that clearness of the intellec t and control of himself which he would otherwise possess”). See, State v. Henderson , 5th Dist. Stark No. 2004-CA00215, 2005-Ohio-1644, ¶ 32; State v. Ahmed , 5th Dist. Stark No. 2007-CA-00049, 2008- Ohio-389, ¶26. {¶62} The case law is in agreement that probable cause to arrest may exist, even without field sobriety tests results, if supported by such fact ors as: evidence that the defendant caused an automobile accident; a strong odor of alcoh ol emanating from the defendant; an admission by the defendant that he or she was rec ently drinking alcohol; and other indicia of intoxication, such as red eyes, slurred sp eech, and difficulty walking.Stark County, Case No. 2019CA00061 26 Oregon v. Szakovits , 32 Ohio St.2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491 N.E.2d 333 (12th Dist. 1985); State v. Bernard , 20 Ohio App.3d 275, 276, 485 N.E.2d 783 (9th Dist. 1985); Westlake v. Vilfroy , 11 Ohio App.3d 26, 27, 462 N.E.2d 1241 (8th Dist. 1983); State v. Judy , 5th Dist. No. 2007-CAC-120069, 2008- Ohio-4520, 2008 WL 4118256, ¶27 . State v. Schmitt , 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, (2004), ¶15. {¶63} “It is generally accepted that virtually any lay witness, inclu ding a police officer, may testify as to whether an individual appears intoxi cated. Columbus v. Mullins (1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d 422. See, also, State v. McKee (2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State v. Schmitt , 101 Ohio St.3d 79, 83, 2004-Ohio-37, 801 N.E.2d 446, 450, at ¶ 12 (2004); Accord, State v. Hackerdorn , 5th Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. {¶64} In the case at bar, Deputy Paumier encounter a vehicle that sev eral times drove over the curb, nearly striking several poles along the ro adway. Deputy Paumier testified that Vales had slurred speech, glassy and bloodshot e yes, smelled of an alcoholic beverage and that Vales admitted to having consumed t wo beers earlier. Deputy Vales could testify that Vales could not follow the tip of a pen with his eyes when asked, and that Vales stepped off the line that she had asked h im to walk. Deputy Paumier could testify that she observed Vales swaying while awa iting the OLS test, and further that he lost his balance during the test. Deputy Paumi er further testified that Vales refused a urine test when requested. {¶65} Viewing the evidence in the case at bar in a light most favorab le to the prosecution, we conclude that a reasonable person could have fo und beyond aStark County, Case No. 2019CA00061 27

reasonable doubt that Smith had committed the crime of OVI in v iolation of R.C. 4511.19(A)(2). We hold, therefore, that the state met its burd en of production regarding each element of the crime of OVI and, accordingly, there was su fficient evidence to submit the charge to the jury and to support Vales’ conviction. Manifest weight of the evidence. {¶66} As to the weight of the evidence, the issue is whether the jury created a manifest miscarriage of justice in resolving conflicting eviden ce, even though the evidence of guilt was legally sufficient. State v. Thompkins , 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “[I]n determining whether the judgment below is manifestly agai nst the weight of the evidence, every reasonable intendment and eve ry reasonable presumption must be made in favor of the judgment an d the finding of facts. * * * “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which i s consistent with the verdict and judgment, most favorable to sustaining the verd ict and judgment.” Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–1 92 (1978).Stark County, Case No. 2019CA00061 28
{¶67} The reviewing court must bear in mind, however, that credibilit y generally is an issue for the trier of fact to resolve. State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy , 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the trier of fact sees and hears the witnesses and is p articularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determ inations of credibility. Barberton v. Jenney , 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievabl e, it is not our province to choose which one we believe.” State v. Dyke , 7th Dist. Mahoning No. 99 CA 149, 2002– Ohio–1152, at ¶ 13, citing State v. Gore , 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). Thus, an appellate cou rt will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. {¶68} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must f ind that “ ‘the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, supra , 78 Ohio St.3d at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is res erved for “the exceptional case in which the evidence weighs heavily against the convictio n.” Id.Stark County, Case No. 2019CA00061 29

ISSUE FOR APPEAL. B. Whether the jury clearly lost their way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered. {¶69} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credib ility. “While the trier of fact may take note of the inconsistencies and resolve or discou nt them accordingly * * * such inconsistencies do not render defendant’s conviction again st the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens , 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not b elieve all of a witness’ testimony, but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke , 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, citing State v. Caldwell , 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Althou gh the evidence may have been circumstantial, we note that circums tantial evidence has the same probative value as direct evidence. State v. Jenks , 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997). {¶70} In the case at bar, the jury heard the witnesses and viewed the evidence. The jury saw the events as they transpired in real-time because the events were recorded on Deputy Paumier’s body camera and admitted into evidence duri ng the trial. Further, the jury was able to observe both Deputy Paumier and Vales subj ect to cross-Stark County, Case No. 2019CA00061 30 examination. In addition, the jury heard Vales’ and his attorn ey’s arguments and explanations about his actions. Thus, a rational basis exists in the record for the jury’s decision. {¶71} We find that this is not an “‘exceptional case in which the evi dence weighs heavily against the conviction.’” State v. Thompkins , 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), quoting Martin , 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire record in this matter we find Vale s’ conviction is not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of Vales’ guilt. The jury neither lost his way nor created a miscarriage of justice in convicting Vales of OVI. {¶72} Finally, upon careful consideration of the record in its entire ty, we find that there is substantial evidence presented which if believed, prov es all the elements of the crime for which Vales was convicted. {¶73} Vales’ Second Assignment of Error is overruled. III. {¶74} In his Third Assignment of Error, Vales challenges the trial co urt's ruling that he had refused to take a chemical analysis of his breath, and t hereby violated R.C. 4511.191. Vales concedes that evidence of his refusal to take a urine test may be used against him at trial, but that it shouldn't have in this case b ecause Vales attempted to revoke this refusal and submit to the test after his arrest.Stark County, Case No. 2019CA00061 31

STANDARD OF APPELLATE REVIEW. {¶75} With respect to the admissibility of evidence at trial of a def endant’s refusal to take a chemical test, the United States Supreme Court has he ld that such evidence does not violate the defendant’s Fifth Amendment right against self-incrimination nor the Fourteenth Amendment right to due process. South Dakota v. Neville , 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748(1983). Similarly, the Ohio Supreme C ourt has concluded that under certain circumstances, evidence of a refusal to submit to a chemical test can be used against a defendant at trial. See Columbus v. Mullins , 162 Ohio St. 419, 55 O.O. 240, 123 N.E.2d 422(1954); and Westerville v. Cunningham , 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40(1968). {¶76} The reason a person refused to take the breath test is a disput ed issue of fact to be resolved by the jury under proper instructions from the trial judge. City of Maumee v. Anistik , 69 Ohio St.3d 339, 344, 1994-Ohio-157, 632 N.E.2d 497. This Court has applied the Ohio Supreme Court’s determination that evidenc e regarding a refusal to submit to a breath or blood test is admissible at trial. See State v. Frangella, 5th Dist. Richland No. 11CA43, 2012-Ohio-1863, ¶44. ISSUE FOR APPEAL. Whether the trial court provided the jury a legally correct refusal instruction. {¶77} In Maumee v. Anistik , 69 Ohio St.3d 339, 632 N.E.2d 497 (1994), syllabus, the Ohio Supreme Court held that a trial court may issue a refu sal instruction to the jury if a person arrested for an OVI refuses to submit to chemical t esting “and the reason given for the refusal is conditional, unequivocal, or a combination t hereof * * *.” The Court then approved specific language for such an instruction,Stark County, Case No. 2019CA00061 32 “Evidence has been introduced indicating the defendant was aske d but refused to submit to a chemical test of his [or her] breath to determine the amount of alcohol in his [or her] system, for the purpose o f suggesting that the defendant believed he [or she] was under the influence of alcohol. If you find the defendant refused to submit to said test, you m ay, but are not required to, consider this evidence along with all the other fa cts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol.” Maumee v. Anistik , 69 Ohio St.3d 339, 632 N.E.2d 497, syllabus. {¶78} In the case at bar, the trial court provided the jury with a le gally correct refusal instruction 5 , and the instruction allowed the jury, as the ultimate finder of fact, to determine whether or not defendant refused to submit to a chemi cal test of his breath. Because the court’s instruction was a correct statement of the law, the trial court did not abuse its discretion in instructing the jury. Furthermore, the instruction did not amount to prejudicial error. {¶79} The jury heard Vales’ explanation concerning Deputy Paumier’s r equest that he submit to a urine test. The jury heard Vales’ explanat ion concerning whether or not he had refused to submit to a urine test. The jury viewed the body camera video footage showing in real time as the events transpired Vales’ re sponses to Deputy Paumier’s request that he submit to a urine test. {¶80} Based on the foregoing, Vales’ Third Assignment of Error is ove rruled.

5 1T. at 254.Stark County, Case No. 2019CA00061 33
{¶81} The judgment of the Stark County Court of Common Pleas is affir med.

By Gwin, J., Hoffman, P.J., and Wise, John, J., concur