[Cite as State v. Starner, 2019-Ohio-2364.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                :      JUDGES:
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :      Hon. John W. Wise, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
BRYAN K. STARNER,                             :      Case No. 18-CA-36
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Muncipal Court, Case No. TRC 17
                                                     02672




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 13, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL E. COGLEY                                     SCOTT P. WOOD
Lancaster City Prosecutor's Office                   Conrad/Wood
P.O. Box 1008                                        120 East Main Street, Suite
Lancaster, Ohio 43130                                Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-36                                               2

Baldwin, J.

      {¶1}    Bryan K. Starner appeals the decision of the Fairfield County Municipal

Court finding him guilty of operating a motor vehicle while impaired by alcohol or a drug

of abuse, a violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor. Appellant is

the State of Ohio.

                      STATEMENT OF FACTS AND THE CASE

      {¶2}    The Ohio State Highway Patrol stopped appellant for exceeding the speed

limit and, after noting what he perceived to be indicia of intoxication, the Trooper

performed field sobriety tests and arrested appellant. Appellant was charged with a

violation of R.C. 4511.19(A)(1)(a), operating a vehicle under the influence of alcohol

and/or a drug of abuse, two minor misdemeanor offenses, speeding, in violation of R.C.

4511.21(C) and driving outside of marked lanes, in violation of R.C. 4511.33. He was

convicted of all counts and now appeals only the jury’s finding that he was guilty of a

violation of R.C. 4511.19(A)(1)(a).

      {¶3}    Trooper John Moore of the Ohio State Highway Patrol stopped appellant at

12:50 AM after observing him travel seventy-five miles per hour in a forty mile per hour

zone. Appellant stopped, but then began driving again, weaving within the lane and

crossing the center line and outside line before stopping approximately one mile later.

Appellant claimed that he did not see or hear the Trooper when he first attempted to stop

appellant.

      {¶4}    Appellant claimed he was heading toward Logan, Ohio, but he was traveling

in the wrong direction and was mistaken as to the road he was traveling. The Trooper

noted that appellant’s eyes were bloodshot and glassy and that he was lethargic. He
Fairfield County, Case No. 18-CA-36                                                 3


asked appellant to exit the vehicle to perform field sobriety tests. Appellant exhibited six

of six clues of inebriation on the Horizontal Gaze Nystagmus Test, five of eight clues on

the Walk-and-Turn Test, and four of four clues on the one-legged stand test. He was

unable to complete the ABC test. Appellant was unable to maintain his balance, could

not follow simple instructions and had an odor of alcohol about his person.

       {¶5}   Appellant initially denied drinking any alcohol, then, after he was arrested,

he admitted to having “one or two beers.”

       {¶6}   Appellant requested that the OMVI charge be presented to a jury and, in

his defense, he presented the testimony of Dr. David Cummin who testified that some of

appellant’s behaviors during the field sobriety test were consistent with a stroke the

appellant suffered years ago. Dr. Cummin stated that the stroke may have affected

appellant’s coordination, balance and might cause nystagmus, but he admitted that he

did not examine the appellant. Appellant offered this testimony without objection from

appellee and did not request a jury instruction regarding expert testimony.

       {¶7}   The jury found the appellant guilty and appellant filed a timely notice of

appeal and submits two assignments error:

       {¶8}   “I.   THE   GUILTY    VERDICT      WAS     NOT    SUPPORTED        BY

SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

       {¶9}   “II. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT

INSTRUCTING THE JURY ON CONSIDERATION OF EXPERT WITNESS

TESTIMONY.”
Fairfield County, Case No. 18-CA-36                                                  4


                                STANDARD OF REVIEW

       {¶10} On review for sufficiency, the reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991). “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.”

Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, the reviewing court is to

examine the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses and determine “whether in resolving conflicts in the

evidence, 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. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see also State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial “should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.”

Martin, supra at 175.

       {¶11} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Deas, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d 1159.

       {¶12} Appellant also asserts error regarding the failure to give an instruction

regarding expert testimony, an instruction appellant admits was not submitted by any
Fairfield County, Case No. 18-CA-36                                                    5


party. “On appeal, a party may not assign as error the giving or the failure to give any

instructions unless the party objects before the jury retires to consider its verdict, stating

specifically the matter objected to and the grounds of the objection. Opportunity shall be

given to make the objection out of the hearing of the jury.” Ohio Crim. R. 30. Appellant

acknowledges that he must demonstrate the trial court committed plain error by not

including an instruction regarding expert testimony as a result of his failure to object to its

omission. Criminal Rule 52(B) provides: “Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” “The

power afforded to notice plain error, whether on a court's own motion or at the request of

counsel, is one which courts exercise only in exceptional **807 circumstances, and

exercise cautiously even then.” *95 3 Wright, Federal Practice & Procedure, 373, Section

856 (1969). As the United States Court of Appeals for the Sixth Circuit has noted, “The

plain error rule is to be invoked only in exceptional circumstances to avoid a miscarriage

of justice.” United States v. Rudinsky (C.A.6, 1971), 439 F.2d 1074, 1076, citing Eaton v.

United States (C.A.5, 1968), 398 F.2d 485, 486, certiorari denied, 393 U.S. 937, 89 S.Ct.

299, 21 L.Ed.2d 273.

       {¶13} In State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983) the

Supreme Court of Ohio discussed the application of the plain error doctrine in the context

of an allegedly erroneous jury instruction. The Supreme Court stated “an erroneous jury

instruction “does not constitute a plain error or defect under Crim.R. 52(B) unless, but for

the error, the outcome of the trial clearly would have been otherwise.” Additionally, the

plain error rule is to be applied with utmost caution and invoked only under exceptional
Fairfield County, Case No. 18-CA-36                                                    6

circumstances, in order to prevent a manifest miscarriage of justice.” Id. (Citations

omitted).

                                         ANALYSIS

       {¶14} Appellant was convicted of a violation of R.C. 4511.19(A)(1)(a) which

states: [n]o person shall operate any vehicle, streetcar, or trackless trolley within this

state, if, at the time of the operation, *** [t]he person is under the influence of alcohol, a

drug of abuse, or a combination of them.” The conviction was not based upon a test of

appellant’s blood, breath or urine, but upon his behavior while driving and after he was

stopped. Trooper Moore measured appellant’s speed at seventy-five miles per hour in a

forty mile per hour zone, triggered his lights and siren and pulled up behind appellant

while he was stopped at a traffic light. The dash-cam video shows the Troopers lights

reflecting from the back of the appellant’s vehicle and the Trooper makes a brief

appearance in the video. Then the traffic light changes, appellant proceeds through the

light and the Trooper returns to his vehicle to follow with his lights still visibly reflecting

from the appellant’s vehicle. The Trooper chased the appellant for approximately one

mile, as appellant crossed over the center line and the fog line and finally stopped in a

parking lot. After the stop, the Trooper discovered that appellant smelled of alcohol, had

glassy eyes, and moved very slowly and slightly unsteadily. Trooper Moore administered

a battery of field sobriety tests, and appellant not only performed poorly on the field

sobriety tests, he had difficulty comprehending the Trooper’s instructions. The testimony

of the Trooper and the dash-cam video of the stop demonstrated that the instructions

were clear and should have been understandable. Appellant was also seriously mistaken

regarding the road he was traveling upon and was driving in a direction opposite of his
Fairfield County, Case No. 18-CA-36                                                    7


destination. Even after being placed under arrest, he made comments regarding his

location revealing his continued confusion.

       {¶15} When appellant was first questioned about drinking, he denied having any

alcohol. When he was placed under arrest, he decided to be “honest” and admitted to

“one or two beers.”

       {¶16} In his first assignment of error, appellant contends that the record contains

insufficient evidence to support his conviction and that his conviction was against the

manifest weight of the evidence. Appellant relies upon the testimony of Dr. David Cummin

and asserts that the doctor’s testimony established an alternative explanation of the

appellant’s performance on field sobriety tests and that his testimony was uncontradicted.

       {¶17} David Cummin, M.D. is appellant’s next door neighbor and the Hocking

County Coroner. Appellant approached him one evening in his driveway and asked for

his assistance, claiming that his behavior during the traffic stop may have been related to

a medical issue. Dr. Cummin was skeptical, but agreed to review appellant’s medical

records.

       {¶18} Dr. Cummin reviewed the records and concluded that appellant had

suffered a left cerebellar stroke in 2016 and that the appellant’s tendency to fall to the left

during the field sobriety tests was consistent with the behavior of a person suffering

effects of such a stroke. He also asserted that the failure of appellant to pass the

horizontal gaze nystagmus test could be the result of the stroke. Dr. Cummin did admit

that he did not examine appellant and that his “job is to tell you is that consistent with a

left cerebellar infarct and my answer is yes.” He also acknowledged, during cross

examination, that the available medical records reflected that appellant’s doctor had
Fairfield County, Case No. 18-CA-36                                                         8


checked his coordination and did not discover any problems. Further, there was nothing

in the record to establish that appellant suffered from chronic problems with balance or

coordination.

         {¶19} Dr. Cummin’s testimony did not supply a direct connection between the

stroke and appellant’s performance on the field sobriety tests, but only offered a possible

alternative explanation for some of the appellant’s behaviors.              Dr. Cummin did not

contend that the lingering effects of the stroke would cause appellant to exceed the speed

limit or to fail to notice the Trooper’s lights, sirens or spotlight shining directly in appellant’s

rear window and mirrors. Dr. Cummin did not testify that the stroke caused any cognitive

problems that would have confused appellant about his location or the correct route to his

destination. And Dr. Cummin did not supply any explanation for appellants struggle to

comprehend the simple instructions that the Trooper repeated during the field sobriety

tests.

         {¶20} After viewing the evidence in a light most favorable to the prosecution, we

hold that there was substantial credible evidence supporting the jury’s verdict, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Nicely, 39 Ohio St.3d 147, 156, 529 N.E.2d 1236, 1244

(1988).

         {¶21} Dr. Cummin’s testimony that appellant had suffered a stroke was

uncontroverted, but that fact is of little consequence because the doctor does not offer an

opinion that the appellant’s behavior was directly caused by the stroke. Instead, he

opines that the behaviors are consistent with those he would expect in a person who had

suffered a left cerebellar stroke, offering an alternative to the Trooper’s contention that
Fairfield County, Case No. 18-CA-36                                                   9


the appellant was suffering from the influence of alcohol. The jury was provided two

competing theories to explain appellant’s actions and the weight to be given to that

evidence and the credibility of the witnesses are issues for the jury.

       {¶22} We hold that the jury did not clearly lose its way and did not create such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. Appellant’s first assignment of error is denied.

       {¶23} Appellant contends the trial court committed plain error by failing to instruct

the jury regarding the consideration of expert testimony in his second assignment of error.

Appellant did not submit such an instruction and did not object to the failure to include it,

so his only avenue to relief is to demonstrate plain error on the part of the trial court for

failure to include it. Crim.R. 30 and 52.

       {¶24} This Court has held that an error in offering or omitting a jury instruction will

not comprise plain error unless, but for the error, the outcome of the trial clearly would

have been otherwise. State v. Nickol, 5th Dist. Fairfield No. 98CA43, 1999 WL 253242,

*4. Appellate courts have noted that strict compliance with Ohio Jury Instructions is not

mandatory, instead the instructions are “recommended instructions” to assist judges in

charging the jury and that deviation from the model instructions does not necessarily

constitute error by the trial court. State v. Miller, 2nd Dist. No. 22433, 2009-Ohio-4607,

citing (1993), 90 Ohio App.3d 338, 343, 629 N.E.2d 462.

       {¶25} Appellant’s argument regarding this assignment of error consists primarily

of conclusory statements that the failure to give the instruction was error, that the error

was a plain, obvious and clear defect and affected the appellant’s right to a fair trial. He

contends that had it been provided it would have affected the juror’s perception of the
Fairfield County, Case No. 18-CA-36                                                  10


testimony, impacted the jury’s deliberations and affected the trial’s outcome. In support,

appellant cites Auer v. Plaith (2014), 140 Ohio St. 3d 276 for the contention that “a trial

court must give jury instructions that correctly and completely state the law.” However,

the next line in that opinion provides that “an inadequate jury instruction that misleads the

jury constitutes reversible error.” Id at ¶ 12. Appellant does not describe how the jury

might have been misled or how the omitted jury instruction would have resulted in a

different outcome at trial. Dr. Cummin was permitted to testify without interruption and he

was able to communicate his position clearly. The requested jury instruction would not

have added to the weight of his testimony, but would have only reminded the jury that it

had the duty to decide what weight to give to Dr. Cummin’s testimony.

       {¶26} We find that the absence of the jury instruction requested by appellant did

not result in a miscarriage of justice and is not therefor, plain error. Appellant’s second

assignment of error is denied.

       {¶27} The decision of the Fairfield County Municipal Court is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.
