[Cite as Willoughby Hills v. Brown, 2014-Ohio-976.]




                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


CITY OF WILLOUGHBY HILLS,                             :   OPINION

                 Plaintiff-Appellee,                  :
                                                          CASE NO. 2013-L-065
        - vs -                                        :

KHAI V. BROWN,                                        :

                 Defendant-Appellant.                 :


Criminal Appeal from the Willoughby Municipal Court, Case No. 13 TRC 00089.

Judgment: Affirmed.


Michael P. Germano, City of Willoughby Hills Prosecutor, 37265 Euclid Avenue,
Willoughby, OH 44094 (For Plaintiff-Appellee).

James V. Loiacono, Denman & Lerner Co., L.P.A., 8039 Broadmoor Road, Suite 21,
Mentor, OH 44060 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Willoughby Municipal Court. Appellant Khai V.

 Brown pled no contest to operating a vehicle under the influence in violation of R.C.

 4511.19(A)(1)(a). He appeals the trial court’s denial of a motion to suppress the field

 sobriety tests used to arrest him. For the following reasons, we affirm.

        {¶2}     On January 4, 2013 Officer Randolph S. Mullenax received a tip that an

 intoxicated male was driving in a black Pontiac from Brindaliers Bars. Mullenax located
the vehicle, observed it weave out of its lane four separate times and stopped the car.

After smelling alcohol on Brown, the driver of the vehicle, Mullenax asked Brown to

step out of the car to conduct some field sobriety tests.           Specifically, Mullenax

requested Brown to recite the alphabet, perform the “finger to nose” test, to walk and

turn around and stand on one leg, and perform the “HGN” test. Brown had difficulty

completing all of the tests, leading to his arrest.

      {¶3}   Brown sought to exclude the field sobriety tests on the basis that they

were not administered in substantial compliance with the National Highway Traffic

Safety Administration (NHTSA) guidelines. The trial court denied the motion. This

appeal followed.

      {¶4}   As his sole assignment of error, Brown alleges that:

      {¶5}   “The trial court committed prejudicial error in not granting defendant-

appellant’s motion to suppress based upon its opinion that the police officer was

justified in arresting the defendant-appellant as a result of the proper administration of

certified and proven field sobriety tests.”

      {¶6}   On appeal, Brown alleges that R.C. 4511.19(D)(4)(b) requires that the

field sobriety tests conducted for an OVI offense to substantially comply with NHTSA

guidelines and that the tests used were not in substantial compliance with those

guidelines. The City of Willoughby Hills argues that because Brown has only ordered a

partial transcript, we must presume the missing parts of the record support the validity

of the trial court judgment. We agree with the city and therefore do not evaluate the

merits of Brown’s appeal.




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      {¶7}   An appellant has the duty to provide a transcript for appellate review.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). “When portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the

reviewing court has nothing to pass upon and thus, as to those assigned errors, the

court has no choice but to presume the validity of the lower court's proceedings, and

affirm.” Id.; see also, Waclawski v. Waclawski, 11th Dist. Lake No. 2005 L-139, 2006-

Ohio-3213, ¶14.

      {¶8}   Accordingly, the judgment of the Willoughby Municipal Court is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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