[Cite as State v. Frederick, 2018-Ohio-1566.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.      15CA0107-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANTHONY A. FREDERICK                                 WADSWORTH MUNICIPAL COURT
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   15TRC02683-A

                                 DECISION AND JOURNAL ENTRY

Dated: April 23, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Anthony A. Frederick appeals, pro se, from the judgment of

the Wadsworth Municipal Court. This Court affirms.

                                                I.

        {¶2}     Following a June 13, 2015 traffic stop, a complaint was filed against Frederick

alleging that he violated R.C. 4511.19(A)(1)(a) (operating a vehicle while under the influence of

alcohol (“OVI”)), R.C. 4511.19(A)(2) (OVI with a prior OVI conviction in the past 20 years and

refusing to take a chemical test), R.C. 4510.14 (driving under OVI suspension), and R.C.

4511.33 (failing to drive within marked lanes). During the course of the proceedings, Frederick

opted to represent himself. Frederick filed a motion to suppress and a hearing was held. The

trial court denied Frederick’s motion in a written entry. The matter proceeded to a jury trial at

which Frederick had the assistance of stand-by counsel. The jury found Frederick guilty of the

OVI charges and driving under suspension. The trial court found Frederick guilty of the marked
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lanes violation and ultimately sentenced him. Frederick moved for a stay of the judgment and

sentence; it does not appear that that motion was ruled upon. Frederick has timely appealed.

                                                  II.

       {¶3}    While Frederick’s brief on appeal contains a table of contents which states that

the brief contains a page containing a list of his assignments of error, that page is not contained

in his brief that was filed in this Court. See App.R. 16(A)(3). The argument section of his brief

also does not reproduce his assignments of error nor is it well delineated into distinct arguments;

oftentimes, it is quite difficult to follow. Nonetheless, this Court will attempt to address the

issues it is able to decipher to the extent the briefing warrants.

       {¶4}    With respect to pro se litigants, this Court has observed:

       [P]ro se litigants should be granted reasonable leeway such that their motions and
       pleadings should be liberally construed so as to decide the issues on the merits, as
       opposed to technicalities. However, a pro se litigant is presumed to have
       knowledge of the law and correct legal procedures so that he remains subject to
       the same rules and procedures to which represented litigants are bound. He is not
       given greater rights than represented parties, and must bear the consequences of
       his mistakes. This Court, therefore, must hold [pro se appellants] to the same
       standard as any represented party.

State v. Taylor, 9th Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 5.

Reasonable Suspicion

       {¶5}    It appears that Frederick argues that the trooper lacked reasonable suspicion to

stop Frederick’s vehicle. Frederick seems to assert that he did not cross the white fog line and

that the video supports his claim.

       {¶6}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.”        Id., citing State v. Mills, 62 Ohio
                                                3


St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as

true, the appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶7}    “The Fourth Amendment to the United States Constitution and Section 14, Article

1 of the Ohio Constitution proscribe unreasonable searches and seizures.           To justify an

investigative stop, an officer must point to ‘specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Kordich,

9th Dist. Medina No. 15CA0058-M, 2017-Ohio-234, ¶ 7, quoting Maumee v. Weisner, 87 Ohio

St.3d 295, 299 (1999), quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). “In evaluating the facts and

inferences supporting the stop, a court must consider the totality of the circumstances as ‘viewed

through the eyes of a reasonable and cautious police officer on the scene, guided by his

experience and training.’” Kordich at ¶ 7, quoting State v. Bobo, 37 Ohio St.3d 177, 179 (1988).

“This Court has repeatedly recognized that ‘[a]n officer may stop a vehicle to investigate a

suspected violation of a traffic law.’” Kordich at ¶ 7, quoting State v. Slates, 9th Dist. Summit

No. 25019, 2011-Ohio-295, ¶ 23. “Where an officer has an articulable reasonable suspicion or

probable cause to stop a motorist for any criminal violation, including a minor traffic violation,

the stop is constitutionally valid[.]”   (Internal quotations and citations omitted.)    State v.

Freeman, 9th Dist. Summit No. 27617, 2015-Ohio-2501, ¶ 10.

       {¶8}    At the suppression hearing, Trooper Jared Haslar with the Ohio State Highway

Patrol testified along with Frederick. At the time of the hearing, Trooper Haslar had been with

the Ohio State Highway Patrol for four and one half years and had worked for other police
                                                  4


departments for four years prior to that. Around 1:00 a.m. on June 13, 2015, Trooper Haslar was

patrolling in a marked vehicle on State Route 57 in Wadsworth. Trooper Haslar noticed a truck

in front of him drifting within its lane and saw the right tires travel over the right white fog line.

The vehicle corrected and continued to drift within its lane and Trooper Haslar again observed

the right tires of the vehicle cross over the white fog line. Trooper Haslar then initiated a traffic

stop. Trooper Haslar came to discover that the driver of the vehicle was Frederick. When

Trooper Haslar turned on his overhead lights, the previous approximately 90 seconds of video

was stored.    Trooper Haslar testified that only the second violation was caught on video.

Portions of the video were played at the hearing and the trial court reviewed it prior to ruling on

the motion to suppress.

       {¶9}    In concluding that Trooper Haslar possessed reasonable suspicion, the trial court

found Trooper Haslar’s testimony credible. The trial court stated that upon reviewing the video,

       [t]he DVD does show that defendant’s vehicle does move over to the right and by
       the tape it is either on or over the fog line. The trooper testified from his view it
       was clear that the tire went over the right fog line on that occasion. The trooper
       also testified that prior to the camera being activated, the defendant went over the
       right fog line. Upon viewing the video, it may be hard to see whether or not the
       vehicle was on or over, however, the trooper testified in real time the defendant
       did go over it. Upon viewing the video, the Court finds it does not dispute the
       trooper’s testimony and therefore, the Court will give the trooper the benefit of
       the doubt and find that the trooper’s testimony is credible and finds the defendant
       did go over the right fog line, thus failing to drive within marked lanes.
       Therefore, the Court finds the trooper did have reasonable, articulable suspicion
       to stop defendant’s vehicle.

       {¶10} The footage on the DVD is somewhat grainy and it is difficult to say with

certainty from only watching the video whether Frederick’s tires crossed the fog line. However,

the trial court found Trooper Haslar’s testimony credible and the trial court was in the best

position to make such determinations. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶

8. In light of the trial court’s factual finding that Frederick crossed the fog line, and Frederick’s
                                                 5


limited argument on appeal, we cannot say that the trial court erred in concluding that Trooper

Haslar possessed reasonable suspicion that Frederick committed a traffic violation, thereby

justifying a traffic stop. See Kordich, 2017-Ohio-234, at ¶ 7.

Horizontal Gaze Nystagmus Test

       {¶11} Frederick also appears to challenge the trial court’s failure to suppress the results

of the horizontal gaze nystagmus test.

       {¶12} “Pursuant to R.C. 4511.19(D)(4)(b), an officer may testify concerning the results

of a field sobriety test, and the prosecution may introduce the results of a such a test, if ‘the

officer administered the test in substantial compliance with the testing standards for any reliable,

credible, and generally accepted field sobriety tests that were in effect at the time the tests were

administered, including, but not limited to, any testing standards then in effect that were set by

the national highway traffic safety administration[.]’” State v. Filip, 9th Dist. Medina No.

16CA0049-M, 2017-Ohio-5622, ¶ 14, quoting State v. George, 9th Dist. Wayne No. 13CA0036,

2014-Ohio-4123, ¶ 7, quoting R.C. 4511.19(D)(4)(b).

       {¶13} At the suppression hearing, the trial court took judicial notice of the 2013

National Highway Traffic Safety Administration (“NHTSA”) manual. However, that manual is

not in our record. See State v. Daniel, 9th Dist. No. 27390, 2014-Ohio-5112, ¶ 5. At the

hearing, Trooper Haslar discussed how he conducted the test, what he was looking for, and stated

that he had conducted the test in compliance with the NHTSA manual. While, in his brief,

Frederick has set forth a few pages of the trooper’s testimony concerning the test, Frederick has

not explained how that testimony evidences that the trooper failed to conduct the test in

substantial compliance with the NHTSA manual. See App.R. 16(A)(7). In light of Frederick’s
                                                   6


limited argument on appeal, he has failed to demonstrate that the trial court erred in denying his

motion.

Hearsay

          {¶14} Frederick additionally appears to argue that the trial court abused its discretion in

admitting hearsay. Frederick only points to one example of alleged hearsay that occurred during

the jury trial. However, Frederick did not object to the admission of that testimony, and, thus,

has forfeited all but plain error. State v. Maple, 9th Dist. Summit No. 25313, 2011-Ohio-1216, ¶

12. Further, Frederick has not developed a plain error argument on appeal, and we decline to do

so on his behalf. Id.

Sufficiency and Manifest Weight

          {¶15} Frederick appears to assert that the State presented insufficient evidence for the

jury to find him guilty of OVI and for the trial court to find he committed a marked lanes

violation. While Frederick mentions manifest weight, it appears that he actually challenges

sufficiency. In so doing, he appears to only assert that there was a lack of evidence that his

vehicle even touched the fog line and that there was no evidence that he was impaired. Our

discussion will be accordingly limited to those two narrow issues. To the extent Frederick may

be arguing manifest weight, we conclude his argument is underdeveloped and decline to further

address it. See App.R. 16(A)(7).

          {¶16} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279

(1991).

          An appellate court’s function when reviewing the sufficiency of the evidence to
          support a criminal conviction is to examine the evidence admitted at trial to
                                                7


        determine whether such evidence, if believed, would convince the average mind
        of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is
        whether, after viewing the evidence in a light most favorable to the prosecution,
        any rational trier of fact could have found the essential elements of the crime
        proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

        {¶17} At trial, only Trooper Haslar testified. On June 13, 2015, around 1:00 a.m.,

Trooper Haslar was patrolling State Route 57 in Wadsworth when he observed a truck in front of

him, which he would later determine was driven by Frederick, drifting back and forth within its

lane. He then saw the right tires travel over the right white fog line. The vehicle corrected and

then drifted back into its lane and continued to drift back and forth. Sometime thereafter,

Trooper Haslar observed the vehicle cross the white fog line again with its right tires and then

drifted back into the lane and continued to drift back and forth within the lane. Trooper Haslar

then initiated a traffic stop. The dash cam video of the stop was also played at trial. Trooper

Haslar explained that the camera used a wide-angle lens which was designed to capture what was

happening directly in front of the police car. Thus, Trooper Haslar testified that his view of the

truck was better than the video’s view.

        {¶18} The truck’s movements within the lane and out of the lane made Trooper Haslar

suspicious that Frederick may have been impaired. Trooper Haslar also noted that the vehicle

was slow to pull over. In his experience most people tended to pull over when he turned on his

overhead lights; however, Frederick did not pull over until after Trooper Haslar turned on his

siren as well.

        {¶19} Trooper Haslar approached the driver side of the vehicle and asked for

Frederick’s license. Two other occupants were in the vehicle. Trooper Haslar advised Frederick

of the reason for the stop. Initially, Frederick told Trooper Haslar that Frederick was avoiding
                                                8


something in the road, but later asserted that he did not commit any violations. Trooper Haslar

observed that Frederick’s “movements were extremely lethargic when he was trying to retrieve

his driver’s license[,]” noticed a strong odor of an alcoholic beverage emanating from inside the

vehicle, and noted that Frederick’s eyes were bloodshot and glassy. Frederick was unable to

produce a license and ultimately the trooper discovered Frederick was subject to a license

suspension due to a prior OVI conviction. Trooper Haslar also noticed a Bud Light beer can in a

cup holder; Frederick claimed that it was an ashtray, but Trooper Haslar found beer inside the

can.

       {¶20} Trooper Haslar asked Frederick to step out of the vehicle and Frederick became

confrontational and demanded to know why he had to do so. After Frederick was out of the

vehicle, Trooper Haslar could smell a strong odor of an alcoholic beverage coming from

Frederick. In light of Frederick’s response, Trooper Haslar then requested backup. Trooper

Haslar asked Frederick how much he had to drink and Frederick repeatedly denied any alcohol

consumption.

       {¶21} After backup arrived, Trooper Haslar began the field sobriety testing. Trooper

Haslar observed nystagmus during both the horizontal gaze nystagmus testing and the vertical

nystagmus testing. During the walk-and-turn test, Trooper Haslar observed six of eight clues,

which included that Frederick stepped out of position, stopped during the steps to steady himself,

and did not always touch heel-to-toe as instructed. Trooper Haslar observed three out of four

clues during the one-leg stand test; he observed Frederick sway while balancing, put his foot

down, and raise his hands up over six inches from his sides. At this point, Trooper Haslar placed

Frederick under arrest and Frederick was ultimately transported to a police station. Frederick

refused to submit to breath testing and insisted that he was “having a lack of oxygen.” Trooper
                                                9


Haslar asked if Frederick needed medical attention and Frederick responded affirmatively.

When EMS arrived, they examined Frederick and determined that he was fine; however,

Frederick insisted on going to the hospital.

        {¶22} “[I]n DUI prosecutions, the state is not required to establish that a defendant was

actually impaired while driving, but rather, need only show an impaired driving ability.” Filip,

2017-Ohio-5622, at ¶ 38, quoting State v. Peters, 9th Dist. Wayne No. 08CA009, 2008-Ohio-

6940, ¶ 5. “To prove impaired driving ability, the state can rely on physiological factors (e.g.,

odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate

that a person’s physical and mental ability to drive was impaired.” Filip at ¶ 38, quoting State v.

Wilson, 9th Dist. Lorain No. 12CA010263, 2014-Ohio-3182, ¶ 15. “A driver of a motor vehicle

is considered under the influence of alcohol when his physical and mental ability to act and react

are altered from the normal because of the consumption of alcohol.” Filip at ¶ 38, quoting

Peters at ¶ 6.

        {¶23}    After reviewing the record in a light most favorable to the prosecution, we

conclude that there was sufficient evidence that Frederick crossed the fog line, particularly in

light of Trooper Haslar’s testimony. Moreover, we determine there was sufficient evidence that

Frederick had an impaired driving ability. There was testimony that Frederick was drifting in his

lane, crossed the fog line on two occasions, was slow to pull over, had bloodshot and glassy

eyes, and was lethargic in looking for his license. Additionally, Trooper Haslar testified that

there was a strong odor of alcohol emanating from Frederick’s person and there was an open can

of beer found in the car. Trooper Haslar detailed the field sobriety testing and the clues that he

observed that would support impairment. Finally, there was evidence that Frederick refused to

undergo breath testing, which this Court has concluded can be viewed as probative of
                                                10


impairment. See Filip at ¶ 39. Given the foregoing, and in light of Frederick’s limited argument,

we cannot say that his convictions are based on insufficient evidence.

Judicial Bias

         {¶24} Next, it appears that Frederick argues that the trial judge was biased against him

based upon comments made at a status hearing about the dangers of self-representation and

during closing argument. Frederick has not asserted that his due process rights were violated at

trial because of any bias nor has he developed any argument concerning bias. See State v.

Powell, 9th Dist. Lorain No. 12CA010284, 2017-Ohio-4030, ¶ 9; see App.R. 16(A)(7). To the

extent Frederick might be arguing that the trial judge should have been disqualified, Frederick’s

remedy was to file an affidavit of disqualification; that matter is not properly reviewable by this

Court.    See R.C. 2701.031;      see also Powell at ¶ 13.       Accordingly, Frederick has not

demonstrated error.

Alleged Conflicts Between the Audio Recording and the Written Transcript

         {¶25} To the extent that Frederick may be asserting that the transcripts do not accurately

reflect the audio recordings, we conclude that Frederick has not utilized the appropriate

mechanism to address this perceived error.

         {¶26} It is Frederick’s burden to provide the record on appeal. Stickney v. Stickney, 9th

Dist. Medina No. 14CA0099-M, 2016-Ohio-3379, ¶ 19.              App.R. 9 details the methods of

providing the record on appeal. Frederick did not utilize any of the alternate methods provided

therein. This Court has concluded that, “[a]lthough an appellate court can order correction or

supplementation of the record if the parties agree to the proposed change, the court of appeals

cannot resolve disputes about the trial court’s record in the course of an appeal.” (Internal

quotations and citations omitted.) Id. at ¶ 20. Given Frederick’s failure to utilize the appropriate
                                                11


mechanisms to correct any perceived errors in the transcript, Frederick has not demonstrated

error.

         {¶27} Frederick’s arguments are overruled.

                                                III.

         {¶28} The judgment of the Wadsworth Municipal Court is affirmed.

                                                                               Judgment affirmed.




         There were reasonable grounds for this appeal.

         We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

         Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

         Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT


SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
                                          12



APPEARANCES:

ANTHONY A. FREDERICK, pro se, Appellant.

THOMAS J. MORRIS, Assistant Law Director, for Appellee.
