[Cite as State v. Crace, 2013-Ohio-3417.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA13
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
JASON CRACE,                   : ENTRY
                               :
    Defendant-Appellant.       : Released: 07/26/13
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio Public Defender, and Jason A. Macke and Francisco
E. Lüttecke, Assistant State Public Defenders, Columbus, Ohio, for
Appellant.

Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens
City Prosecutor, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.

        {¶1} Jason Crace appeals his convictions for operating a vehicle

under the influence, driving under suspension, and a marked lanes violation

after he pled no contest to the charges upon the trial court’s denial of his

motion to suppress. On appeal, Crace (Appellant hereinafter) contends that

the trial court erred when it denied his motion to suppress his refusal to

consent to chemical testing. Because we agree with the trial court’s decision
Athens App. No. 12CA13                                                        2


to deny Appellant’s motion to suppress, Appellant’s sole assignment of error

is overruled. Accordingly, the decision of the trial court is affirmed.

                                   FACTS

      {¶2} This appeal involves the trial court’s denial of Appellant’s

motion to suppress his refusal to consent to chemical testing in connection

with his arrest for OVI, in violation of R.C. 4511.19(A)(2). R.C.

4511.19(A)(2) prohibits an individual with a conviction for OVI in the

preceding twenty years from refusing to submit to a chemical test after being

arrested for OVI a second time. Bearing in mind our standard of review on a

motion to suppress, which we will discuss more fully infra, we adopt the

facts as determined by the trial court in its decision and entry denying

Appellant’s motion to suppress, as set forth in State v. Crace, 168 Ohio

Misc.2d 13, 2012-Ohio-2090, 968 N.E.2d 76, ¶ 2-7:

             “Defendant was the driver of a vehicle that crashed

      during the early evening hours of December 1, 2011. The crash

      scene was on State Route 56 about eight miles from Athens.

      The vehicle was not completely blocking the roadway when it

      came to rest.

             Ohio Highway Patrol Post 5 received a telephone call at

      8:24 p.m. from Ohio Department of Natural Resources Officer
Athens App. No. 12CA13                                                   3


      Perko reporting that he had come upon the accident scene at

      8:15 p.m. Ohio Highway Patrol Trooper Davis was dispatched

      and arrived on the scene at 8:34 p.m.

            Defendant admitted that he had been driving the vehicle

      but declined to give a statement as to the circumstances of the

      one-vehicle accident. Davis noted that although defendant said

      that he was not injured, he was unsteady. Davis also noted that

      he had a strong odor of an alcoholic beverage, slurred speech,

      and red, glassy, bloodshot eyes.

            On a properly conducted horizontal-gaze-nystagmus

      (“HGN”) test, defendant scored six of six possible clues.

      Defendant attempted to begin the walk-and-turn test but was

      unable to maintain the opening heel-to-toe position and then

      refused to complete that test. Defendant also refused to attempt

      the one-leg-stand test and portable breath test.

            Defendant was arrested for operating a vehicle while

      under the influence of alcohol (“OVI”), and properly advised of

      the consequences under R.C. 4511.192 of testing or refusing,

      and he refused to take an evidentiary breath test. This refusal

      occurred at 9:40 p.m.
Athens App. No. 12CA13                                                                                        4


                  In writing the OVI citation, Davis noted the time of the

          violation as 8:00 p.m. There was no evidence presented to

          establish that precise time. The basis for that time was Davis's

          opinion that an accident on a state highway would be noticed

          and reported within a very short amount of time.”1

          {¶3} After the trial court denied his motion to suppress, Appellant

entered a plea of no contest to operating a vehicle under the influence, in

violation of R.C. 4511.19(A)(2), driving under suspension in violation of

R.C. 4510.21, and marked lanes, in violation of R.C. 4511.33. It is after

these convictions and sentences that Appellant now appeals the trial court’s

denial of his motion to suppress, raising a single assignment of error for our

review.

                                   ASSIGNMENT OF ERROR

    “I.   THE TRIAL COURT ERRED WHEN IT DENIED MR. CRACE’S
          MOTION TO SUPPRESS HIS REFUSAL TO CONSENT TO
          CHEMICAL TESTING.”

                                        LEGAL ANALYSIS

          In his sole assignment of error, Appellant contends that the trial court

erred in denying his motion to suppress his refusal to consent to chemical
1
  Contrary to the trial court’s finding that the OVI citation indicated a violation time of 8:00 p.m., the
citation itself indicates the violation occurred at “2004” or 8:04 p.m., which is consistent with the trooper’s
testimony at the suppression hearing. Further, in addition to stating that the basis for choosing that time
was the trooper’s “opinion that an accident on a state highway would be noticed and reported within a very
short amount of time[,]” the trooper also testified that he would not have “backed up” the time that far
unless Appellant indicated to him that amount of time had passed.
Athens App. No. 12CA13                                                             5


testing in connection with his charge of OVI in violation of R.C.

4511.19(A)(2). We begin our analysis by considering the proper standard of

review for reviewing a decision on a motion to suppress.

      {¶4} Our review of a trial court's decision on a motion to suppress

presents a mixed question of law and fact. State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100; citing State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a

motion to suppress, the trial court acts as the trier of fact and is in the best

position to resolve factual questions and evaluate witness credibility. Id.

Accordingly, we defer to the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Landrum, 137 Ohio

App.3d 718, 722, 739 N.E.2d 1159 (4th Dist. 2000). Accepting those facts as

true, we must independently determine whether the trial court reached the

correct legal conclusion in analyzing the facts of the case. Roberts at ¶ 100,

citing Burnside at ¶ 8.

      {¶5} Generally, at issue in this case is whether Appellant’s refusal to

submit to chemical testing should have been suppressed. In State v. Denney,

5th Dist. No. 03CA62, 2004-Ohio-2024, ¶ 24, the court noted that “evidence

regarding a refusal to submit to a breath or blood test is admissible.” Citing

Maumee v. Anistick, 69 Ohio St.3d 339, 632 N.E.2d 497 (1994). Further, the
Athens App. No. 12CA13                                                            6


Denney court noted its prior holding in State v. Carrico, 5th Dist. No. 01

CA86, 2002-Ohio-1451, ¶ 2, where it concluded that refusal to perform field

sobriety tests is relevant evidence under Evid.R. 401 and therefore,

admissible at trial. Id. at ¶ 21.

       {¶6} Other districts have also held that refusal to submit to testing is

relevant and admissible. See, Columbus v. Bickis, 10th Dist. No. 09AP898,

2010-Ohio-3208, ¶ 25 (“[a] defendant's refusal to perform field sobriety tests

is relevant evidence under Evid.R. 401 and therefore admissible at trial.”);

citing State v. Denney at ¶ 21-24; see, also State v. Evans, 12th Dist. No.

CA2009-08-116, 2010-Ohio-4402, ¶ 23 (“evidence of a refusal to submit to

a chemical test is a factor that may be used against a defendant at trial.”);

citing Westerville v. Cunningham, 15 Ohio St.2d 121, 124, 239 N.E.2d 40

(1968) (concluding “that the admission of evidence, that one accused of

intoxication refused to take a reasonably reliable chemical test for

intoxication, and comment on such report by counsel do not violate any

constitutional privilege against self incrimination.”). Thus, it appears to be

well-settled that evidence of Appellant’s refusal to submit to chemical

testing was relevant and, as such, admissible at trial.

       {¶7} Appellant was charged and pled no contest to OVI in violation

of R.C. 4511.19(A)(2), which provides as follows:
Athens App. No. 12CA13                                                                                        7


         “No person who, within twenty years of the conduct described

         in division (A)(2)(a) of this section, previously has been

         convicted of or pleaded guilty to a violation of this division, a

         violation of division (A)(1) or (B) of this section, or any other

         equivalent offense shall do both of the following:

         (a) Operate any vehicle, streetcar, or trackless trolley within this

         state while under the influence of alcohol, a drug of abuse, or a

         combination of them;

         (b) Subsequent to being arrested for operating the vehicle,

         streetcar, or trackless trolley as described in division (A)(2)(a)

         of this section, being asked by a law enforcement officer to

         submit to a chemical test or tests under section 4511.191 of the

         Revised Code, and being advised by the officer in accordance

         with section 4511.192 of the Revised Code of the consequences

         of the person's refusal or submission to the test or tests, refuse

         to submit to the test or tests.”2

         {¶8} Appellant conceded that there was probable cause for an OVI

arrest at his suppression hearing and the trial court noted that concession in

2
  R.C. 4511.192, entitled “Written notice of effect of refusal; seizure of license,” provides that a “person
under arrest for a violation of division (A) or (B) of section 4511.19 of the Revised Code” “must submit to
the chemical test or tests, subsequent to the request of the arresting officer, within two hours of the time of
the alleged violation and, if the person does not submit to the test or tests within that two-hour time limit,
the failure to submit automatically constitutes a refusal to submit to the test or tests.”
Athens App. No. 12CA13                                                         8


its decision denying Appellant’s motion to suppress. On appeal, Appellant

further concedes that he was convicted of a misdemeanor OVI charge in

1992, and therefore agrees that “he could not legally refuse to submit to a

properly requested chemical test[.]” However, Appellant’s argument goes

beyond the initial question of whether evidence of a refusal is admissible,

creatively contending that a refusal made in response to a request to submit

to testing that is made beyond the “period of consent,” or two hours as

specified in R.C. 4511.192, is not actually a refusal within the contemplation

of the statute, is therefore inadmissible, and should have been suppressed by

the trial court. Appellant cites no case law in support of this contention.

      {¶9} Appellee contends that Appellant’s argument is based upon the

premise that the request for the chemical test occurred beyond the two hour

limit as set forth in R.C. 4511.192, however, Appellee argues that the trial

court accepted the trooper’s version of the facts, rather than Appellant’s,

with respect to the time of the initial accident and, thus, never actually

determined that the refusal was made beyond the two hour limit. Despite its

failure to find that the trooper requested Appellant submit to chemical

testing more than two hours after the accident, the trial court went on to

address that very question, ultimately finding that a refusal was admissible

regardless of when it was made. Based upon the following reasoning, we
Athens App. No. 12CA13                                                            9


conclude that the timing of the officer’s request to submit to chemical testing

was irrelevant to the admissibility of the refusal and, as such, we agree with

the outcome reached by the trial court.

      {¶10} Like the trial court, we conclude that Appellant’s refusal to

submit to chemical testing was relevant and admissible and should not have

been suppressed. In reaching this decision, we are persuaded by the

reasoning set forth in State v. Barnhart, 6th Dist. No. H-10-005, 2011-Ohio-

2693. Barnhart was convicted of operating a motorcycle while under the

influence of alcohol. Id. Much like the case sub judice, Barnhart argued

that his refusal must be suppressed because it could not be shown that the

BMV Form 2255 was read to him within two hours of the alleged violation.

Id. at ¶ 15. In response to this argument, the Barnhart court reasoned that

“[w]hile the result of an untimely chemical test might be suppressible, the

fact that the suspect refused is not.” Id.

      {¶11} In reaching its decision, the Barnhart court relied on State v.

Marsh, 7th Dist. No. 04-BE-18, 2005-Ohio-4690, which rejected the same

argument. Id. at ¶ 16-17. In Marsh, the court found that it was wholly

irrelevant when the officers asked Marsh to submit to a test. The Marsh

court further reasoned that a refusal was relevant in that in that it serves as

an indicia of guilt, and that it did not matter if the refusal was made before or
Athens App. No. 12CA13                                                       10


after the statutory two hour period. Id. at ¶ 46; citing Maumee v. Anistik, 69

Ohio St.3d 339, 343, 632 N.E.2d 497 (1994).

      {¶12} In light of the foregoing, we find that the officer’s request that

Appellant submit to chemical testing, even if made beyond the two hour

statutory time period, and Appellant’s subsequent refusal, to be relevant and

admissible. As such, we cannot conclude that the trial court erred in denying

Appellant’s motion to suppress evidence of his refusal to submit to chemical

testing. Accordingly, Appellant's sole assignment of error is overruled.

                                                 JUDGMENT AFFIRMED.
Athens App. No. 12CA13                                                                      11


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and costs herein be assessed
to Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
       Exceptions.

Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.

                                              For the Court,

                                         By: _____________________________
                                             Matthew W. McFarland
                                             Presiding Judge




                                     NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
