[Cite as State v. Munye, 2015-Ohio-3362.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 14AP-744 

v. : (M.C. No. 2013 TRC 193080) 

Abukar M. Munye, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on August 20, 2015 

 

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

Prosecutor, and Melanie R. Tobias, for appellee. 

Yeura R. Venters, Public Defender, and John W. Keeling, for 

appellant. 

 

APPEAL from the Franklin County Municipal Court 

HORTON, J. 

{¶ 1} Defendant-appellant, Abukar M. Munye, appeals from a judgment of the 

Franklin County Municipal Court, finding him guilty pursuant to a jury verdict of one 

count of operating a vehicle while under the influence of drugs or alcohol, in violation of 

Columbus City Code ("C.C.C.") 2133.01(A)(1)(a) and, pursuant to a bench trial, of failing 

to use a turn signal, in violation of C.C.C. 2131.14(A), and of changing lines without 

safety, in violation of C.C.C. 2131.08(A)(1). Because the trial court properly instructed 

the jury and the officer possessed reasonable, articulable suspicion to conduct field 

sobriety tests ("FSTs"), we affirm. 
No. 14AP-744 2 

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} The facts giving rise to the charges at issue occurred in the early morning 

hours of November 4, 2013, when Officer Chase Rogers was on duty in the area of North 

High Street and East 11th Avenue. Officer Rogers observed defendant's vehicle change 

lanes without signaling, and the vehicle then made a U-turn directly in front of Officer 

Rogers' marked police cruiser. Officer Rogers activated his overhead lights and stopped 

defendant's vehicle. Upon approaching the vehicle, Officer Rogers "detected an odor of 

alcoholic beverage on [defendant's] breath, noticed [defendant's] eyes to be somewhat 

dilated, red shot -- red and bloodshot and glassy." (Trial Tr. 21.) Officer Rogers 

characterized the odor of alcohol as moderate, and noted that defendant's speech was 

somewhat slurred. Officer Rogers asked defendant if he had consumed any alcohol that 

evening, defendant said he had consumed "one or two beers." (Trial Tr. 23.) 

{¶ 3} Given these observations, Officer Rogers asked defendant to perform 

FSTs. Officer Rogers had defendant perform the horizontal gaze nystagmus test 

("HGN"), the walk-and-turn test, and the one-leg stand test. Defendant's performance 

on each test reliably indicated that he had a blood alcohol content ("BAC") which was 

over the legal limit. Accordingly, after defendant completed the FSTs, Officer Rogers 

placed the defendant under arrest for OVI. 

{¶ 4} Officer Rogers then read BMV form 2255 to defendant, which explained 

that defendant would be subject to a mandatory suspension of his driver's license if he 

refused to submit to a chemical test of his breath to determine his BAC. Defendant 

indicated that he understood the form and signed the form accordingly, but defendant 

refused to submit to the chemical breath test. Thereafter, defendant "stated something 

to the effect of, [a]ll right, now maybe I will" take the breath test. (Trial Tr. 36.) 

However, Officer Rogers thought that defendant "still wasn't definite," and noted that, 

"[d]ue to the time restraints with obtaining a chemical test, it's imperative that we get a 

direct answer from them. If they drag it out longer, then the sample becomes invalid." 

(Trial Tr. 36.) 

{¶ 5} Prior to trial, defendant moved to suppress the evidence of the FSTs, 

defendant's statements to Officer Rogers, and Officer Rogers' observations of defendant. 

Defendant asserted that Officer Rogers lacked probable cause to arrest him for OVI, as 
No. 14AP-744 3 

defendant emitted only a moderate odor of alcohol, there was no evidence of erratic 

driving, defendant performed well on the one-leg stand test, and defendant only failed 

the walk-and-turn test because Officer Rogers refused to answer defendant's questions 

mid-test. 

{¶ 6} The trial court found that Officer Rogers had reasonable, articulable 

suspicion to stop defendant's vehicle, as there was "[n]o question [defendant] turned in 

the middle of High Street." (Suppression Tr. 73.) The court further concluded that 

Officer Rogers had reasonable, articulable suspicion to conduct the FSTs, citing the 

"moderate odor of alcohol, red, bloodshot eyes, slurred speech, [and] admitted 

drinking." (Suppression Tr. 74.) Regarding the walk-and-turn test and one-leg stand 

test, the court found "no question" that these tests "substantially complied" with all 

relevant requirements, including "instructions, observations and clues." (Suppression 

Tr. 74.) However, the court suppressed the results of the HGN test, as it found that 

Officer Rogers improperly administered the test. 

{¶ 7} At trial, Officer Rogers agreed that the U-turn "in and of itself, [wasn't] 

indicative of impairment," that it was "possible" he mistook defendant's accent as 

slurred speech, and that defendant's eyes "appear[ed] somewhat red" in the courtroom. 

(Trial Tr. 54, 59, 109.) Officer Rogers also admitted that this was "not the most 

egregious OVI case" he'd ever seen. (Trial Tr. 92.) 

{¶ 8} Defendant asserted that, although he initially refused to submit to the 

chemical breath test, he later retracted that refusal. Officer Rogers explained that, when 

he initially offered the test to defendant, defendant "refused outright." (Trial Tr. 94.) 

Officer Rogers stated that, as they "were talking in reference to [defendant's] vehicle" 

being impounded, defendant indicated that he might want to take the test. (Trial Tr. 94.) 

Officer Rogers believed defendant "was trying to broker a deal to not have his vehicle 

impounded." (Trial Tr. 94.) However, when Officer Rogers explained that it was police 

department policy that "all impaired drivers' vehicles must be impounded," there "was 

no mention of [taking the test] again." (Trial Tr. 94.) 

{¶ 9} Officer Rogers stated that "any chemical sample of the breath" must be 

taken within "two hours" of reading BMV form 2255 to a defendant. (Trial Tr. 95.) 

Officer Rogers did not know how much time had elapsed between defendant's refusal 
No. 14AP-744 4 

and his retraction, but stated that "[f]rom stop to when he was released was roughly an 

hour 20 minutes, hour 30 minutes." (Trial Tr. 95.) Officer Rogers also noted that, when 

defendant attempted to retract his refusal, the other officer who witnessed Officer 

Rogers read form 2255 to defendant "had already left and had already notarized the 

2255," and Officer Rogers "had already completed that part of the paperwork indicating 

that [defendant] had refused." (Trial Tr. 106.) 

{¶ 10} At the conclusion of trial, the court instructed the jury as follows regarding 

defendant's refusal to submit to the breath test: 

Evidence has been introduced indicating the defendant was 

asked but refused to submit to a chemical test of his breath 

to determine the amount of alcohol in his system for the 

purposes of suggesting that the defendant believes he was 

under the influence. 

If you find the defendant refused to submit to said test, you 

may, but are not required, to consider the evidence along 

with all the other facts and circumstances in deciding 

whether the defendant was under the influence of alcohol. 

(Trial Tr. 183-84.) Defendant objected to this instruction, and the court overruled the 

objection. 

{¶ 11} The jury found defendant guilty of OVI, the court found defendant guilty 

of the 2 minor misdemeanor traffic offenses. Following the sentencing hearing, the court 

sentenced the defendant to 180 days in jail, credited defendant with 3 days of time 

served, suspended the balance of the jail sentence, and sentenced defendant to a 2-year 

term of community control. The court also imposed a $375 fine and ordered defendant 

to pay court costs. 

II. ASSIGNMENTS OF ERROR 

{¶ 12} Defendant appeals, assigning the following errors for our review: 

[I.] THE TRIAL COURT ERRED WHEN, OVER 

OBJECTION, IT SELECTED A SINGLE FACT FROM THE 

EVIDENCE, THE DEFENDANT'S ALLEGED REFUSAL TO 

SUBMIT TO A BREATH TEST, AND GAVE UNDUE 

PROMINENCE TO THIS FACT BY TELLING THE JURORS 

THEY COULD CONSIDER THE REFUSAL IN DECIDING 

WHETHER THE DEFENDANT WAS UNDER THE 

INFLUENCE OF ALCOHOL WHEN THE EVIDENCE ALSO 
No. 14AP-744 5 

INDICATED THAT THE DEFENDANT HAD TIMELY 

CHANGED HIS MIND AND HAD AGREED TO TAKE A 

BREATH TEST BUT THAT THE OFFICER REFUSED TO 

ADMINISTER THE TEST WITHOUT ANY LEGAL OR 

LOGICAL BASIS FOR THE OFFICER'S REFUSAL. THE 

TRIAL COURT FURTHER ERRED WHEN IT TOLD THE 

JURY THAT THE EVIDENCE INDICATED THAT THE 

DEFENDANT HAD REFUSED TO TAKE A TEST WHEN IT 

IS THE JURY'S ROLE TO DECIDE THE FACTS AND NOT 

THE COURT'S. 

[II.] THE TRIAL COURT ERRED WHEN IT HELD THAT 

THE ARRESTING OFFICER HAD REASONABLE AND 

ARTICULABLE SUSPICIONS TO SUBJECT THE 

DEFENDANT TO FIELD SOBRIETY TESTS BASED ONLY 

UPON AN ODOR OF ALCOHOL, ADMISSION OF 

DRINKING, AND BLOODSHOT EYES WHEN THERE WAS 

NO ERRATIC DRIVING OR ANY PHYSICAL SIGNS OF 

IMPAIRMENT SUCH AS DIFFICULTIES WITH 

MOVEMENT OR LACK OF COORDINATION INDICATIVE 

OF IMPAIRED DRIVING OBSERVED BEFORE THE TESTS 

WERE GIVEN. 

II. FIRST ASSIGNMENT OF ERROR – JURY INSTRUCTIONS 

{¶ 13} In his first assignment of error, defendant asserts that the trial court erred 

by providing the jury with the refusal instruction quoted above. Defendant asserts that 

the instruction "was an incomplete and therefore inaccurate conclusion as to what the 

evidence was and what it portrayed." (Appellant's Brief, 15.) 

{¶ 14} Trial courts have a responsibility to give all jury instructions that are 

relevant and necessary for the jury to properly weigh the evidence and perform its duty 

as the factfinder. State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the 

syllabus; Columbus v. Aleshire, 187 Ohio App.3d 660, 679, 2010-Ohio-2773, ¶ 6 (10th 

Dist.); State v. Moody, 10th Dist. No. 98AP-1371 (Mar. 13, 2001). An instruction is 

proper if it adequately informs the jury of the law. State v. Conway, 10th Dist. No. 

03AP-585, 2004-Ohio-1222, ¶ 24. See also State v. Daniels, 10th Dist. No. 13AP-969, 

2014-Ohio-3697, ¶ 22 (noting that "[w]here requested jury instructions are correct 

statements of the law as applied to the facts of the case, they should generally be given"). 

{¶ 15} "[A] trial court has broad discretion in instructing the jury." State v. 

Daniels, 10th Dist. No. 13AP-969, 2014-Ohio-3697, ¶ 17. "Therefore, when reviewing a 
No. 14AP-744 6 

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. An 

appellate court will not reverse a conviction in a criminal case due to jury instructions 

unless the jury instructions amount to prejudicial error. Moody, citing State v. DeHass, 

10 Ohio St.2d 230 (1967), paragraph two of the syllabus. 

{¶ 16} The trial court did not abuse its discretion by providing the jury with 

refusal instruction. The Supreme Court of Ohio expressly approved the jury instruction 

given herein in Maumee v. Anistik, 69 Ohio St.3d 339 (1994). In Maumee, the 

defendant was arrested for OVI and taken to the police station. Once at the station, an 

officer read the standard implied consent form to defendant and asked her to submit to 

a chemical test of her breath. The defendant indicated that she could not take the breath 

test because she was on medication, which she believed might affect the test results. The 

officer assured her that the medication would not affect the test results, and she agreed 

to take the test. However, after the defendant was denied access to the restroom and 

after she spoke with her attorney, she again refused to take the breath test. 

{¶ 17} The trial court found that "circumstances may exist where the refusal to 

submit to a chemical test by a person suspected of driving while under the influence of 

alcohol is not based on consciousness of guilt." Id. at syllabus. Accordingly, the court 

held as follows: 

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, we 

approve the following jury instruction as set forth in 4 Ohio 

Jury Instructions (1993) 405, Section 545.25(10): "Evidence 

has been introduced indicating the defendant was asked 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 of 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 may, but are 

not required to, consider this evidence along with all the 

other facts and circumstances in evidence in deciding 

whether the defendant was under the influence of alcohol." 
No. 14AP-744 7 

Id. at syllabus. The jury instruction provided by the court to the jury herein was the 

approved instruction from Maumee. 

{¶ 18} Defendant contends that, although the court in Maumee "approved the 

giving of the refusal instruction in limited situations, it did so without addressing its 

past precedent indicating that the court should not comment on specific facts." 

(Appellant's Brief, 27.) However, the court in Maumee specifically stated that a "trial 

judge should not invade the province of the jury" as the trier of fact. Id. at 343-44. 

Defendant further contends that the Maumee court "made it clear that the refusal 

instruction should not be given when there is a question of fact with respect to whether 

or not there was a refusal or whether the refusal was based upon consciousness of guilt." 

(Appellant's Brief, 27.) The Supreme Court in Maumee, however, specifically stated that 

the approved instruction was appropriate in any situation where an individual refuses to 

submit to a chemical test, whether the reason for the refusal be "conditional, 

unequivocal, or a combination thereof." Id. at 344. 

{¶ 19} Defendant contends that, "[i]f a court does instruct a jury on refusal 

evidence, it must do so in a way that allows the jury to make the factual finding of 

whether or not the defendant refused and whether or not the refusal was an indication 

of consciousness of guilt." (Appellant's Brief, 30.) The court's instruction, however, did 

allow the jury to make these factual determinations. The instruction stated that evidence 

had been introduced "indicating that the defendant was asked but refused" to submit to 

a breath test, and instructed that "[i]f" the jury found that "defendant refused," they 

could, but were "not required to," consider such evidence along with all other evidence 

indicating that defendant was under the influence. (Trial Tr. 183-84.) The jury was free 

to determine, as the finder of fact, whether defendant refused to submit to the chemical 

breath test, and whether the refusal was an indication of guilt. 

{¶ 20} Defendant asserts the "reason the test was not administered was not 

because of the defendant's refusal but because of the officer's refusal to allow the 

defendant to take the test after this change of mind." (Appellant's Brief, 27.) We 

disagree. See R.C. 4511.192(A) (requiring a mandatory suspension of an individual's 

driver's license if they refuse to submit to a chemical breath test to determine their 
No. 14AP-744 8 

BAC); In Re Brooks, 27 Ohio St.2d 66, 70 (1971), at paragraph two of the syllabus 

(holding that an automatic license suspension "is not precluded by the fact that after 

such refusal but within two hours of the alleged driving violation, the motorist stated 

that he would submit to the test," and noting that a retraction must occur "almost 

immediately" for the retraction to be valid); Carroll v. McCullion, 10th Dist. No. 91AP340 (Aug. 8, 1991) (retraction within 15 to 20 minutes of refusal not immediate); 

Bowman v. McCullion, 21 Ohio App.3d 138, 139 (9th Dist.1985) (retraction within 5 

minutes of refusal not immediate). The jury heard all of the evidence regarding 

defendant's retraction of his initial refusal. The court's instruction permitted the jury to 

determine, as the finder of fact, whether defendant refused to take the test. 

{¶ 21} The trial court provided the jury with a legally correct refusal instruction, 

and the instruction allowed the jury, as the ultimate finder of fact, to determine whether 

or not defendant refused to submit to a chemical 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. 

{¶ 22} Based on the foregoing, defendant's first assignment of error is overruled. 

III. SECOND ASSIGNMENT OF ERROR – REASONABLE SUSPICION

{¶ 23} In his second assignment of error, defendant contends that Officer Rogers' 

observation of a moderate odor of alcohol, bloodshot, glassy eyes, and defendant's 

admission to drinking one to two beers, was insufficient, in the absence of any evidence 

of erratic driving, to provide the officer with reasonable, articulable suspicion to support 

the FSTs. In ruling on defendant's motion to suppress, the trial court found that Officer 

Rogers had the requisite suspicion to perform the FSTs. 

{¶ 24} "[A]ppellate review of a trial court's decision regarding a motion to 

suppress evidence involves mixed questions of law and fact." State v. Vest, 4th Dist. No. 

00CA2576 (May 29, 2001). Thus, an appellate court's standard of review of the motion 

to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5, 

citing State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist.1998). When considering a 

motion to suppress, the trial court assumes the role of trier of fact, and therefore is in 

the best position to resolve factual questions and evaluate the credibility of witnesses. 

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. As a result, an appellate 
No. 14AP-744 9 

court must accept the trial court's findings of fact if they are supported by competent, 

credible evidence. Id. Then, the appellate court must independently determine whether 

the facts satisfy the applicable legal standard, pursuant to a de novo review and without 

giving deference to the conclusion of the trial court. Id. 

{¶ 25} "[E]ven where an officer has probable cause to stop a defendant for 

committing a traffic violation, the officer's further detention of the defendant in order to 

conduct field sobriety tests violates the Fourth Amendment unless the officer has 

reasonable, articulable suspicion that the defendant is intoxicated." State v. Mossman, 

10th Dist. No. 13AP-959, 2014-Ohio-2620, ¶ 10, citing State v. Montelauro, 10th Dist. 

No. 11AP-413, 2011-Ohio-6568, ¶ 8. "The propriety of such an investigative stop must 

be viewed in light of the totality of the circumstances." Montelauro at ¶ 8, citing United 

States v. Cortez, 449 U.S. 411 (1981) and State v. Bobo, 37 Ohio St.3d 177 (1988), 

paragraph one of the syllabus. 

{¶ 26} This court has held that an officer has the requisite reasonable suspicion to 

conduct FSTs when a traffic violation is coupled with some indicia of intoxication, such 

as a more-than-slight odor of alcohol; a driver's red, glassy, watery, or bloodshot eyes; 

the time of the stop (i.e., late night or early morning hours); and the admission to 

consuming alcohol. See Columbus v. Shepherd, 10th Dist. No. 10AP-483, 2011-Ohio3302, ¶ 4-5, 38 (noting that speeding, coupled with moderate odor of alcohol, slightly 

slurred speech, difficulty in locating insurance card, and a bar ID stamp on the back of 

defendant's hand, provided the officer with "sufficient indicia of intoxication to establish 

reasonable suspicion to administer field testing"); Mossman at ¶ 13 (finding that the 

totality of the circumstances justified the officer's reasonable suspicion that the 

defendant was driving impaired, as the defendant was "driving well in excess of the 35-

milesper-hour limit, the trooper stopped her at approximately 2 a.m. on a Sunday 

morning, the trooper discerned an odor of alcohol in the vehicle, and appellee 

acknowledged having been drinking"); State v. Perkins, 10th Dist. No. 07AP-924, 2008-

Ohio-5060, ¶ 11 (finding that officer possessed reasonable suspicion to support the 

FSTs, where defendant was speeding, "weaving within his own lane after turning against 

a red light where there was a posted 'no turn on red' sign," and the officer observed a 

strong odor of alcohol, as well as bloodshot, glassy eyes). 
No. 14AP-744 10 

{¶ 27} In Montelauro, this court found that the officer possessed the requisite 

reasonable suspicion to conduct FSTs, as the officer "noted an obvious odor of alcohol," 

the defendant "admi[tted] to drinking Long Island Iced Tea, * * * the officer knew drinks 

were half price that night," and the defendant "had glassy, bloodshot eyes." Montelauro

at ¶ 19. Notably, we found that the officer in Montelauro possessed the requisite 

reasonable suspicion, despite the fact that the officer specifically testified that defendant 

"was not driving erratically at the time the officer stopped him, did not have slurred 

speech, was not disheveled or inappropriate in appearance, pulled over almost 

immediately, and did not fumble with his license." Id. at ¶ 13. 

{¶ 28} In the instant case, it is uncontested that Officer Rogers observed 

defendant perform a U-turn in the middle of High Street at 3:00 A.M., directly in front 

of Officer Rogers' marked cruiser. Officer Rodgers also observed other indicia of 

intoxication, including a moderate odor of alcohol, bloodshot, glassy eyes, and 

defendant admitted to consuming alcohol. Accordingly, based on the foregoing 

authority, Officer Rogers had reasonable, articulable suspicion of intoxication to 

conduct the FSTs. Defendant's reliance on non-binding cases, including State v. Derov, 

7th Dist. No. 07 MA 71, 2009-Ohio-5513 and State v. Spillers, 2d Dist. No. 1504 

(Mar. 24, 2000), is unpersuasive in light of the foregoing authorities. 

{¶ 29} Defendant also asserts that Officer Rogers admitted that he did not have 

reasonable suspicion that defendant was intoxicated. This argument lacks merit. On 

cross-examination, defense counsel asked Officer Rogers, hypothetically, if defendant 

had refused to take the FSTs, whether Officer Rogers would have arrested defendant at 

that point in time. Officer Rogers stated that he "hadn't come to any conclusion at that 

time," and further stated that he didn't think he "had reasonable -- even reasonable 

suspicion, let alone probable cause at that point" to arrest the defendant. (Trial Tr. 73.) 

Thus, Officer Rogers' statement regarding the lack of reasonable suspicion related to his 

ability to arrest defendant prior to the FSTs, and not to the reasonableness of Officer 

Rogers' suspicion that defendant was intoxicated. 

{¶ 30} Based on the foregoing, we find that Officer Rogers had reasonable, 

articulable suspicion that defendant was intoxicated, sufficient to support the further 

detention of defendant to conduct the FSTs. As such, the trial court did not err in 
No. 14AP-744 11 

denying defendant's motion to suppress. Defendant's second assignment of error is 

overruled. 

IV. DISPOSITION 

{¶ 31} Having overruled defendant's first and second assignments of error, we 

affirm the judgment of the Franklin County Municipal Court. 

Judgment affirmed. 

DORRIAN and BRUNNER, JJ., concur. 

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