[Cite as Stave v. Beavers , 2020-Ohio-69.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2019- A -0028 - vs - : BRADLEY DEE BEAVERS, : Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court, Western Distri ct. Case No. 2016 TRC 02096 W.

Jud g ment: Affirmed.

Cecilia M. Cooper , Ashtabula County Prosecutor, and Shelley M. Pratt , Assistan t Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jeffe rson Street, Jefferson, OH 44047-1092 ( For Plaintiff-Appellee )

. David E. Koerner , Law Office of David E. Koerner, 5900 Som Center Road, Suite 1 2- 146, Willou g hb y , OH 44094 ( For Defendant-Appellant )

.

TIMOTHY P. CANNON, P.J. {¶1} Appellant, Bradley Dee Beavers (“Beavers”), appeals from the Fe bruary 5, 2019 judgment entry of the Ashtabula County Court, Western Dist rict, finding him guilty on two counts of Operating a Motor Vehicle Under the Influence (“OVI”), in violation of R.C. 4511.19(A)(1)(a) and (A)(2), and one count of Operating wi thout Reasonable Control, in violation of R.C. 4511.202. We affirm the trial co urt’s judgment.2 {¶2} On December 21, 2016, a complaint was filed with the Ashtabula County Court, Western District, charging Beavers with four counts: (1) Operating a Motor Vehicle Under the Influence, in violation of R.C. 4511.19(A)(1)(a); (2) Operating a Motor Vehicle Under the Influence, in violation of R.C. 4511.19(A)(2); (3) Dr iving under a Suspension in violation of R.C. 4510.16; and (4) Operating without Reasonable Control, in violation of R.C. 4511.202. The complaint was regarding an incident where B eavers was found in the parking lot of a Dollar General store during a snowy winter night. A truck registered to Beavers Built Construction was found in a nearby ditch outsi de the store. Beavers pled not guilty to all charges. {¶3} Before trial, Beavers filed motions in limine seeking to limit what the state could present with regard to field sobriety tests conducted by officers at the scene of the incident. These motions were denied, and the matter proceeded to trial. No motion to suppress evidence was filed by Beavers. On February 5, 2019, a bench trial was held in the instant matter. At the trial, three witnesses testified fo r the state. {¶4} Tori Pelligrino was an employee at the Dollar General store nea r where

Beavers and his truck were found. She testified that she was f amiliar with Beavers as a customer, and he entered the store on December 20, 2016, to pur chase brake fluid. She also testified that he was on his cell phone aggressively deman ding that the person he was speaking to come to the store and help tow his truck out of the ditch. {¶5} While purchasing the brake fluid, Pelligrino testified that Bea vers stated to the person he was speaking to on his cell phone that he was com ing from a local bar and

had driven into the ditch. She stated no one else was with him at any time during the incident, and she witnessed him return to the vehicle after pur chasing brake fluid, get in,3 and “rock it back and forth” for several minutes in an attempt to get out of the ditch. Pelligrino also stated that she believed Beavers was “definitel y intoxicated” based on her

interaction with him. {¶6} Next, Troopers Mika Cottom and Jason Haynes testified about the ir investigation into the incident. Upon approaching Beavers, Tro oper Cottom and Haynes were told by Beavers that his brother’s friend was driving the truck when it went into the ditch. Beavers claimed that the driver, whose last name and ph one number were unknown, had left the scene to go retrieve help towing the truc k from the ditch. The friend Beavers alleged was driving never returned to the scene during the investigation. {¶7} Both troopers testified that during this exchange with Beavers, they noticed Beavers’ speech was slurred, his eyes were glassy and bloodshot , and they detected an odor of alcohol. Beavers denied having consumed any alcohol fo r several years. Also, the troopers noticed some inconsistencies in Beavers’ account o f the incident—namely, there were no footprints in the snow on the passenger side of t he truck where Beavers claimed to have exited the vehicle, the interior floorboard was wet from snowfall only on the driver side, and an unopened can of beer was in the truck. {¶8} Trooper Cottom administered the Horizontal Gaze Nystagmus (“HGN ”) test, and he testified that Beavers showed all six possible clues ass ociated with intoxication from the test. Following the HGN test, Beavers asked several t imes if he had “passed” the test before claiming he was physically unable to participat e in any other field sobriety tests because he had a physical deformity that affected his bal ance and coordination. Trooper Cottom then placed Beavers under arrest for, inter alia , operating a motor vehicle

under the influence of alcohol in violation of R.C. 4511.19. B eavers was transported by4 Trooper Cottom to the Ashtabula Post for highway patrol, where he refused blood alcohol content (“BAC”) testing. {¶9} After the state rested its case-in-chief, defense counsel moved for a Rule 29 acquittal, which the trial court denied at that time. The d efense moved for an acquittal again at the conclusion of the trial, and it was denied a secon d time. {¶10} After hearing all the testimony and evidence, the trial court f ound Beavers guilty on three of the four charges brought against him. He wa s found not guilty of driving under a suspension in violation of R.C. 4510.16. {¶11} Beavers filed a timely notice of appeal and raises three assign ments of error. For clarity, we combine and consider the assignments of error accordingly. {¶12} Beavers’ first and third assignments of error both challenge th e admission and consideration of the horizontal gaze nystagmus (“HGN”) fiel d sobriety test conducted by Trooper Cottom. {¶13} Beavers’ first assignment of error states:

THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE HORIZONTAL GAZE NYSTAGMUS FST WHERE THE STATE FAILED TO PROVE SUBSTANTIAL COMPLIANCE WITH NHTSA GUIDELINES BY CLEAR AND CONVINCING EVIDENCE. {¶14} In his first assignment of error, Beavers challenges whether th e state met their burden in justifying the admission of the HGN test by lay ing a foundation of substantial compliance with the National Highway Traffic Safety Administration (“NHTSA”) guidelines. The state argues that the issue of wheth er the HGN test can be presented was not properly objected to by way of a motion to su ppress and the objection has therefore been waived. We agree that the substantial compl iance challenge has

been waived.5 {¶15} “‘A Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to challenge the admissibility of evidence to prove an OMVI charge on a claim that it was not procured pursuant to applicable standards or regulations.’” State v. Dean , 11th Dist. Portage No. 2007-P-0025, 2007-Ohio-6947, ¶37, quoting State v. Murray , 2d Dist. Greene No. 2002-CA-10, 2002-Ohio-4809, at ¶10, citing Defiance v. Kretz , 60 Ohio St.3d 1, 5 (1991). {¶16} The differences between a motion to suppress and a motion in li mine, as they relate to other field sobriety tests, were discussed in de tail in the matter of State v.

French , 72 Ohio St.3d 446 (1995). There, the Court stated, in pertin ent part: The purpose and effect of a motion to suppress and a motion in limine are distinct. A “motion to suppress” is defined as a “[d]evice used to eliminate from the trial of a criminal case evidence wh ich has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution.” Black’s Law Dictionary (6 Ed.1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constituti onal challenges based on the exclusionary rule first enunciated by t he United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643. * * * A “motion in limine” is defined as “[a] pretrial motion request ing [the] court to prohibit opposing counsel from referring to or offerin g evidence on matters so highly prejudicial to [the] moving party that curative instructions cannot prevent [a] predispositional effec t on [the] jury.” Black’s Law Dictionary, supra , at 1013. The purpose of a motion in limine “is to avoid injection into [the] trial of matters which are irrelevant, inadmissible and prejudicial[,] and granting of [the] motion is not a ruling on evidence and, where properly drawn, granting of [the] motion cannot be error.” Id. at 1013–1014. See State v. Maurer (1984), 15 Ohio St.3d 239, 259. * * * Confusion and inaccuracy may arise, however, because a motion in limine may be used in two ways. It may be used as a preliminary means of raising objections to evidentiary issues to prevent6 prejudicial ques tions and statements until the admissibility of the questionable evidence can be determined outside the presence of the jury. It may also be used as the functional equivalent of a motion to suppress evidence that is either not competent or improper d ue to some unusual circumstance not rising to the level of a constitu tional violation. Palmer, Ohio Rules of Evidence, Rules Manual (1984) 446, cited in State v. Maurer , supra , 15 Ohio St.3d at 259 fn. 14.

It is true that a subtle distinction exists between the exclusi onary rule, which is relied upon when evidence is improperly seized, and th e Rules of Evidence, which generally apply to procedural question s concerning the admissibility of evidence at trial. Moreover, challenges to the admissibility of chemical test results on the basis of noncompliance with Department of Health testing regulations do not present a question of constitutional magnitude. However, “[ t]he traditional distinction between a motion to suppress based upon a constitutional challenge and a motion in limine does not work a s a bright-line rule where the motion to suppress is directed to breathalyzer test results based on a failure to comply with ODH regulations.” Defiance v. Kretz , supra , 60 Ohio St.3d at 4. In holding at the syllabus that “[a] motion to suppress is a pr oper pretrial procedure for challenging breathalyzer test results wh en the defendant is charged with a violation of R.C. 4511.19(A)(3),” t he Kretz court noted that the intent of the Rules of Criminal Procedure “is to determine matters before trial when possible.” Id. at 4. This policy “applies not only to constitutional issues but also to n onconstitutional claims capable of determination without a trial on the general merits.” State v. Ulis (1992), 65 Ohio St.3d 83, 85. It is well established that in a charge of violating R.C. 4511. 19(A)(2) through (4) “[t]he accuracy of the test results is a critical i ssue in determining a defendant’s guilt or innocence.” Kretz , supra , 60 Ohio St.3d at 3. Although the admissibility of test results turns on substantial compliance with ODH regulations rather than complia nce with the Constitution, this court determined in Kretz and Ulis that a ruling on a motion to suppress challenging the admissibility of a BAC test is not a preliminary ruling on an evidentiary matter. Rath er, pursuant to Crim.R. 12(B)(3), challenges to the state’s complia nce with statutory and ODH regulations in a charge under R.C. 4511.19(A)(2) through (4) must be made in a pretrial motion to suppress, or such challenges are considered waived. * * * Therefore, because Crim.R. 12(B)(3) applies to all charges unde r R.C. 4511.19, a defendant charged under R.C. 4511.19(A)(1) through (4) who does not challenge the admissibility of the che mical7 test results through a pretrial motion to suppress waives the requirement on the state to lay a foundation for the admissibil ity of the test results at trial.

Id. at 449-451 (emphasis sic) (footnote omitted). {¶17} In the matter sub judice, Beavers did not file a motion to supp ress presentation of the HGN test before trial. While French dealt with a chemical test, we see no justification, based on the rationale contained therein, for not applying the same standard for the HGN test. Therefore, to the extent Beavers se eks to challenge whether the test was administered in substantial compliance with NHTSA standards, he has waived that challenge by not filing a motion to suppress. {¶18} Beavers’ first assignment of error has no merit. {¶19} Beavers’ third assignment of error states:

THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION IN LIMINE AND ADMITTING TESTIMONY REGARDING THE HGN FIELD SOBRIETY TEST WITHOUT EXPERT TESTIMONY. {¶20} While Beavers has waived a challenge as set forth above, the Oh io Supreme Court in French also went on to state that “[t]his does not mean, however, tha t the defendant may not challenge the chemical test results at tr ial under the Rules of Evidence. Evidentiary objections challenging the competency, ad missibility, relevancy, authenticity, and credibility of the chemical test results may still be raised.” Id. at 452. Beavers may properly challenge whether the officer is qualified and competent to testify regarding the administration of the test. Therefore, we must d etermine whether the officer should have been permitted to testify regarding the administrat ion and related conclusions regarding the HGN test.8 {¶21} The two issues presented for review and argument in Beavers’ th ird assignment of error are whether the HGN test was relevant under the rules of evidence and whether expert testimony was necessary to present HGN evide nce. {¶22} “‘The trial court has broad discretion in the admission and exc lusion of

evidence.’” Dean , supra , at ¶29, quoting State v. Hymore , 9 Ohio St.2d 122, 128 (1967). In general, when admission of evidence is within the discretion of the trial court, an appellate court shall not disturb evidentiary rulings absent an abuse of that discretion. Id. {¶23} “The term ‘abuse of discretion’ denotes a trial court’s ‘“failu re to exercise sound, reasonable, and legal decision-making.”’” State v. King , 11th Dist. Portage No. 2009-P-0040, 2010-Ohio-3254, ¶67, quoting State v. Beecher, 2d Dist. Clark No. 09-CA54, 2010-Ohio-1900, quoting Black’s Law Dictionary 11 (8th Ed.2004). {¶24} “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determinati on of the action more probable or less probable than it would be without the evidence .” Evid.R. 401. {¶25} In order to prove a violation of R.C. 4511.19(A)(1)(a), the sta te must establish that Beavers operated a vehicle within this state whi le under the influence of

alcohol. {¶26} In order to prove a violation of R.C. 4511.19(A)(2), the state must establish that Beavers, within twenty years of the conduct described in d ivision (A)(2)(a), has previously been convicted of or pleaded guilty to a violation o f R.C. 4511.19(A)(1), and did both of the following: operated a motor vehicle under the i nfluence of alcohol and refused to take a chemical test when requested by an officer.9 {¶27} In order to prove a violation of R.C. 4511.202, the state must establish that Beavers operated a motor vehicle on any street, highway, or pro perty open to the public for vehicular traffic without being in reasonable control of th e vehicle. {¶28} In accordance with the OVI statute, R.C. 4511.19(D)(4)(b) state s: In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, [or] of a municipal ord inance relating to operating a vehicle while under the influence of al cohol * * * if a law enforcement officer has administered a field sobri ety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered 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, includi ng, but not limited 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 sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding. (iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testim ony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact sha ll give it whatever weight the trier of fact considers to be appropriate. {¶29} Here, the HGN test, as well as all field sobriety tests, are re levant to the charged crimes because they are indicative of whether Beavers w as under the influence of alcohol, which is an element of the charges. {¶30} Beavers’ challenge to the HGN test under this assigned error is a challenge to the test’s admissibility without expert testimony. As noted , however, R.C. 4511.19(D)(4)(b) specifically allows for testimony and evidence of the HGN test to be10 presented—without reference to an expert—where the test was adm inistered in accordance with the applicable testing standards under NHTSA. It was not error for the trial court to deny the motion in limine and admit the officer’ s testimony regarding the results of the HGN test without an expert. {¶31} Beavers’ third assignment of error has no merit. {¶32} Beavers’ second assignment of error states:

THE TRIAL COURT ERRED BY DENYING BEAVERS’ MOTION FOR ACQUITTAL AS TO THE CHARGE OF OVI. {¶33} The two issues presented for review and argument under this ass ignment

of error state: [1.] Whether Beavers’ conviction for OVI was supported by suff icient evidence? [2.] Whether Beavers’ conviction for OVI is against the manife st weight of evidence? {¶34} Beavers’ second assignment of error challenges both the suffici ency and the manifest weight of the evidence presented to the trial cour t. Likewise, we will address these issues individually. Manifest Weight of the Evidence {¶35} In determining whether the verdict was against the manifest wei ght of the evidence, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the jury clearly lost its way and cr eated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). A judgment of a trial court should b e reversed as being against11 the manifest weight of the evidence “‘only in the exceptional c ase in which the evidence weighs heavily against the conviction.’” Id. {¶36} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence , offered in a trial, to support one side of the issue rather t han the other. It indicates clearly to the jury that the party having the burd en of proof will be entitled to their verdict, if, on weighing the evidence in their minds, the y shall find the greater amount

of credible evidence sustains the issue which is to be established before them. Wei ght is not a question of mathematics, but depends on its effect in inducing belief .’” Id. (emphasis sic), quoting Black’s Law Dictionary 1594 (6th Ed.1990). {¶37} “When a court of appeals reverses a judgment of a trial court o n the basis that the verdict is against the weight of the evidence, the app ellate court sits as a ‘“thirteenth juror”’ and disagrees with the factfinder’s resolu tion of the conflicting testimony.” Id. , quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). {¶38} As discussed above, in order to prove a violation of R.C. 4511. 19(A)(1)(a), the state must establish that Beavers operated a vehicle within this state while under the influence of alcohol. In order to prove a violation of R.C. 45 11.19(A)(2), the state must establish that Beavers, within twenty years of the conduct desc ribed in division (A)(2)(a), has previously been convicted of or pleaded guilty to a violati on of R.C. 4511.19(A)(1) and did both of the following: operated a motor vehicle under t he influence of alcohol and refused to take a chemical test when requested by an officer. Finally, in order to prove a violation of R.C. 4511.202, the state must establish that Beave rs operated a motor vehicle on any street, highway, or property open to the public for vehi cular traffic without being in

reasonable control of the vehicle.12 {¶39} In the present matter, there was ample evidence that would allo w the trial court to find that Beavers was guilty of each of the three offe nses of which he was convicted. Both troopers who investigated the incident, along with a lay witness working at the Dollar General store, testified as to the multitude of d ifferent indicia suggesting intoxication. Each witness identified Beavers as having slurre d speech, bloodshot and glassy eyes, and emanating an odor of alcohol. Pelligrino test ified to personally seeing Beavers operating his truck when trying to get out of the ditch , as well as hearing Beavers state that he was driving when the truck veered off into the di tch. The troopers cited the lack of footprints on the passenger side of the vehicle and the discovery of a dry passenger seat floorboard during their investigation as an expl anation for believing that Beavers was being untruthful in his story about a different dri ver having crashed the truck and left the scene to get help. Also, the parties stipulated t o the existence of additional OVI convictions within the previous twenty years. {¶40} Given all this evidence, the trial court was entitled to assess the credibility of the testimony of the three witnesses, as well as the dashcam video and other evidence submitted by the parties, and ultimately conclude that Beavers was guilty of the crimes charged. In doing this, the trial court did not clearly lose i ts way and create such a manifest miscarriage of justice that we must reverse. Therefor e, the verdicts on each of the three guilty counts were not against the manifest weight of the evidence. Sufficiency of the Evidence {¶41} “A Crim.R. 29 motion challenges the sufficiency of the evidence presented by the state.” Sullivan , supra , at ¶28, citing State v. Wireman , 4th Dist. Pike No. 01CA662, 2002-Ohio-1526, ¶9, citing State v. Williams , 74 Ohio St.3d 569, 576 (1996).13 {¶42} “A challenge to the sufficiency of the evidence raises a questi on of law as to whether the prosecution met its burden of production at tria l.” State v. Bernard , 11th Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing Thompkins , supra , at 390

and State v. Windle , 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶25. “‘In re viewing the record for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier o f fact could have found the essential elements of the crime proven beyond a reasonable doub t.”’” Id. , quoting State

v. Smith , 80 Ohio St.3d 89, 113 (1997), quoting State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Where there is insufficient evi dence, a conviction will be

vacated. Id. at ¶55, citing State v. Rose , 11th Dist. Lake No. 2014-L-086, 2015-Ohio2607, ¶32. {¶43} “A finding that a judgment is not against the manifest weight o f the evidence necessarily means the judgment is supported by sufficient evide nce.” Sullivan , supra , at ¶28, citing State v. Arcaro , 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32. {¶44} Therefore, having determined that none of Beavers’ convictions are against the manifest weight of the evidence, it follows that they are s upported by sufficient

evidence. {¶45} Beavers’ second assignment of error is without merit. {¶46} The judgment of the Ashtabula County Court, Western District, i s affirmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.