[Cite as State v. Lane, 2013-Ohio-2143.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-12-30

        v.

RACQUEL A. PACE,                                          OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Findlay Municipal Court
                             Trial Court No. 2012CR00008

                                      Judgment Affirmed

                              Date of Decision: May 28, 2013




APPEARANCES:

        Loretta Riddle for Appellant

        Robert E. Feighner, Jr. for Appellee
Case No. 5-12-30


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Racquel Pace (“Pace”), appeals the judgment of

the Findlay Municipal Court, finding her guilty of OVI, speeding, and driving with

an expired license. On appeal, Pace contends that the trial court erred when it

denied her motion to suppress, claiming that the State willfully engaged in the

spoliation of evidence and that the officer continued to question her and perform

field sobriety tests after she invoked her right to counsel. For the reasons set forth

below, the judgment is affirmed.

       {¶2} On October 14, 2011, at approximately 4:00 a.m., Pace was driving

southbound on I-75 within the city limits of Findlay, Ohio, when she was stopped

by Ohio State Trooper Matthew Geer for speeding.            Upon questioning Pace,

Trooper Geer noticed a “strong odor of an alcoholic beverage” coming from the

vehicle, and he observed several other indicators that led him to believe that Pace

was driving under the influence. After Pace performed poorly on field sobriety

tests, Trooper Geer arrested her for operating a vehicle while under the influence

(“OVI”) in violation of R.C. 4511.19(A)(1)(a). She was also issued citations for

speeding and for driving with an expired license.

       {¶3} Pace filed a motion to suppress all evidence relating to the traffic stop.

She asserted that the trooper lacked probable cause to initiate the traffic stop; that

he lacked reasonable suspicion to request that she submit to field sobriety tests;


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that the trooper did not have probable cause to arrest Pace; that the field sobriety

tests were not administered in substantial compliance with testing standards; and,

that the trooper continued to question Pace and conduct field sobriety tests after

she invoked her right to counsel.

       {¶4} A hearing on the motion to suppress was held on April 11, 2012.

Trooper Geer was the only witness to testify. Trooper Geer testified that he

initiated the traffic stop after he made a visual determination that Pace was

traveling over the 65 mph speed limit and that two radar readings registered 77

mph and 78 mph. (Tr. 9)

       {¶5} Trooper Geer further testified that when he was talking to Pace, he

could “smell the strong odor of an alcoholic beverage” from within the vehicle;

her words were slurred when she spoke; she was “thick fingered” and having great

difficulty sorting through the paperwork to locate her registration and insurance

papers; and, he observed several nearly empty wine bottles on the floor of her

vehicle. (Tr. 9-13) Upon checking her driver’s license through the LEADS

system, he learned that it had expired ten days earlier. (Tr. 17) The trooper also

observed that Pace was slow to exit the vehicle when he asked her to step out, and

she acknowledged that she had consumed “a glass or two” of wine earlier that

evening. (Tr. 16-18)




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       {¶6} Because of all of the signs of impairment that he observed, Trooper

Geer then proceeded to conduct field sobriety testing. Trooper Geer testified as to

his experience as a trooper and the fact that he had administered thousands of field

sobriety tests over the years. The National Highway Traffic Safety Administration

(“NHTSA”) manual pertaining to the field tests was admitted into evidence. (Tr.

73) Trooper Geer testified as to his training concerning the tests and he testified in

great detail how he administered the field sobriety tests to Pace in compliance with

all aspects of the manual and required procedures. (Tr. 20-38)

       {¶7} Trooper Geer conducted the horizontal gaze nystagmus test (“HGN”)

inside his police vehicle, where he observed six out of six “clues” on this test,

three on each eye. (Tr. 19-27) This indicated to him a high level of alcohol

consumption. (Tr. 27) He also observed that Pace’s eyes were bloodshot.

       {¶8} Trooper Geer testified that he asked Pace to do a portable breath test

(“PBT”), but she refused to do that. (Tr. 27) He then conducted two more tests

behind his police car: the walk and turn test and the one-leg stand. The trooper

testified in detail as to the procedures that were followed and the areas where Pace

failed to correctly perform the tests. He testified that he observed four of the eight

clues on the walk and turn test, and three of the four clues on the one-leg stand test

that would indicate impairment. (Tr. 30-33) He also had her perform a counting

test and she counted incorrectly. (Tr. 34) Based upon the totality of everything he


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observed, Trooper Geer testified that he believed Pace was impaired and had too

much to drink in order to be able to drive safely. (Tr. 36-37) She was handcuffed

and placed under arrest.

       {¶9} On cross examination, Trooper Geer further elaborated on his reasons

for the initial traffic stop and described in more detail the observations he made

that led him to believe Pace was too impaired to safely drive a car.

       {¶10} Trooper Geer acknowledged that his vehicle was equipped with a

forward-facing dashboard camera for the purpose of recording evidence. (Tr. 64-

65) He explained that he performs the HGN test inside the police vehicle because

there is more light available there and it allows him to obtain the proper angles for

holding and moving the object, and observing the subject’s eyes. (Tr. 65-66)

       {¶11} He further testified that he always performs the walk and turn test

and the one-leg stand behind the police vehicle for safety reasons, where he can

watch the traffic coming towards him. (Tr. 67-68) When asked why he did not

perform these tests in front of the dashboard camera, Trooper Geer testified:

       I would like to, but on the Interstate, I have been almost hit a couple
       times. I have had the left side of my car peeled off so I always do it
       behind my car where I can see traffic coming at me. The last place I
       want to be is between two vehicles if somebody hits my car. At least
       behind my car, I can see traffic coming at me with no lights blinding
       me. I don’t have to look out beyond my car – I can see exactly
       what’s happening.

(Tr. 67-68)


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       {¶12} The trial court found that the testimony demonstrated that the trooper

had a reasonable suspicion that there was a traffic violation in order to make the

traffic stop and there were sufficient facts and observations to provide the trooper

with a reasonable suspicion to inquire further as to whether or not Pace was in fact

impaired. The trial court did not find that the trooper acted in bad faith by not

recording the field sobriety tests, but stated that his actions were reasonable based

upon officer safety. The trial court also found that the field sobriety tests were

conducted in substantial compliance with NHTSA standards. Based on the factors

that led up to the field sobriety tests and the tests themselves, there was probable

cause to arrest Pace for OVI. Therefore, the trial court overruled the motion to

suppress. (Tr. 79-82)

       {¶13} Pace’s case proceeded to a jury trial on the OVI charge and a bench

trial on the other two charges. She was found guilty on all counts and sentenced

on September 6, 2012.

       {¶14} It is from this judgment that Pace now appeals, raising the following

two assignments of error for our review.

                            First Assignment of Error

       The trial court abused its discretion by denyting [sic] a motion to
       suppress when the State willfully engages in the spoliation of
       evence [sic] by selectively choosing what evidence it wants to
       preserve via video recording.



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                          Second Assignment of Error

       The trial court abused its discretion by denyting [sic] a motion to
       suppress when [Pace] invoked her right to counsel and the
       trooper continued to question [Pace] and subject her to field
       sobriety tests.

                                Standard of Review

       {¶15} Appellate review of a decision on 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; State v. Bressler, 3d Dist. No. 15–05–13, 2006–Ohio–611.

At a suppression hearing, the trial court assumes the role of trier of fact and is in

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

witnesses. Burnside at ¶ 8; State v. Carter, 72 Ohio St.3d 545, 552 (1995). When

reviewing a trial court’s decision on a motion to suppress, an appellate court must

uphold the trial court’ findings of fact if they are supported by competent, credible

evidence. State v. Dunlap, 73 Ohio St.3d 308, 314 (1995). With respect to the

trial court's conclusions of law, however, our standard of review is de novo and we

must independently determine as a matter of law, without deference to the trial

court's conclusion, whether the trial court's decision meets the applicable legal

standard. State v. Wolfle, 3d Dist. No. 11-11-01, 2011-Ohio-5081, ¶ 10; State v.

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).




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                             First Assignment of Error

       {¶16} In the first assignment of error, Pace contends that Trooper Geer

engaged in “spoliation of evidence” because he “willfully interfered” with the

evidence by performing the field sobriety tests outside of the view of the

dashboard camera. (Appellant’s Br. 4) Pace claims that such “destruction of

evidence was designed to disrupt [her] case” and that the trooper’s failure to

record the evidence for possible litigation violated Pace’s constitutional rights,

including her sixth amendment right of confrontation. (Id. at 5)

       {¶17} Pace cites to Drawl v. Cornicelli, 124 Ohio App.3d 562 (11th

Dist.1997) and Smith v. Howard Johnson Co., Inc. 67 Ohio St.3d 28, 29, 1993-

Ohio-229, in support of her assertion concerning “spoliation of evidence.” In

Smith, the Ohio Supreme Court held that a cause of action exists in tort for

interference with or destruction of evidence with prospective civil litigation.

Smith at 29. We fail to see how a tort claim is applicable in this criminal case, and

do not find any evidence in the record that would support the elements concerning

the willful interference with, or destruction of, evidence.




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         {¶18} The Ohio Supreme Court has held that R.C. 4511.19(D)(4)(b),1

which provides that the results of field sobriety tests are admissible when the tests

are administered in substantial compliance with testing standards, is constitutional

so long as the proper foundation has been shown both as to the administering

officer's training and ability to administer the test and as to the actual technique

used by the officer in administering the test. State v. Boczar, 113 Ohio St.3d 148,

2007-Ohio-1251, ¶ 28. An officer may testify concerning the results of a field

sobriety test administered in substantial compliance with the testing standards.

State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 9. Appellant has not pointed

to any statute or case law that requires field sobriety tests to be recorded. This

issue has been discussed by several Ohio appellate courts.

         In State v. Delarosa, 11th Dist. No.2003-P-0129, 2005-Ohio-3399,
         the court noted: “* * * a review of NHTSA standards shows no
         requirement to videotape the field sobriety tests.

         “Furthermore, a police officer's failure to videotape field sobriety
         tests is more akin to failing to create evidence rather than destroying
         evidence. See, e.g., State v. McDade, 12th Dist. Nos. CA2003-09-
         096 and CA2003-09-097, 2004-Ohio-3627, at ¶ 17. However, ‘there
         is no constitutional, statutory or common law duty to use a specific
         investigative tool in satisfying Homan’s2 strict compliance mandate.’
         Athens v. Gilliand, 4th Dist. No. 02CA4, 2002-Ohio-4347, at ¶ 5. As

1
  R.C. 4511.19(D)(4)(b) provides in pertinent part: “In any criminal prosecution * * * for a violation of
division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test *
* * and if it is shown by clear and convincing evidence that the officer administered the test in substantial
compliance with the testing standards * * *, all of the following apply: (i) The officer may testify
concerning the results of the field sobriety test so administered. (ii) The prosecution may introduce the
results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution
* * *.”
2
  State v. Homan, 89 Ohio St.3d 421, 2000-Ohio-2112.

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Case No. 5-12-30


        a result, it is well established that ‘a police officer's failure to make a
        video and audio tape of a defendant's DUI traffic stop and field
        sobriety tests did not violate the defendant's due process rights
        warranting suppression of the evidence or dismissal of the charge.’
        McDade at ¶ 17. See, also, Gilliand at ¶ 5; State v. Shepherd, 2nd
        Dist. No.2002-CA-55, 2002-Ohio-6383, at ¶ 26; State v. Wooten, 4th
        Dist. No. 01 CA31, 2002-Ohio-1466”. Id. at 2005-Ohio-3399 at ¶
        48-49.

State v. Smith, 5th Dist. No. 09-CA41, 2010-Ohio-1232, ¶¶ 44-45.

        {¶19} In Smith, the Fifth District Court of Appeals discussed Arizona v.

Youngblood, 488 U.S. 51 (1988), wherein the United States Supreme Court

addressed the issue of whether a criminal defendant is denied due process of law

by the State's failure to preserve evidence. Smith at ¶¶ 41-43. In Youngblood, the

United States Supreme Court held that “unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially useful evidence does

not constitute a denial of due process of law.” Youngblood at 57-58.3 See also

State v. Numbers, 3d Dist. No. 1-07-46, 2008-Ohio-513, ¶ 22. In the case before

us today, the trial court specifically found that there was no bad faith on the part of

Officer Geer, and that his actions were taken as a matter of safety.

        {¶20} The Fourth District Court of Appeals has also discussed the issue of

a law enforcement officer’s failure to conduct field sobriety tests within view of

the patrol car’s video camera. See State v. Wooten, 4th Dist. No. 01 CA31, 2002-

3
   The Youngblood Court established two tests: one that applies when the evidence is “materially
exculpatory” and one when the evidence is “potentially useful.” If the State fails to preserve evidence that
is materially exculpatory, the defendant's rights have been violated. In the case before us today, there was
no claim that the State failed to preserve any materially exculpatory evidence.

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Ohio-1466. In Wooten, the court noted that the Due Process Clause does not

require the State to employ any particular investigative tool. Id., citing

Youngblood, 488 U.S. at 59. The State “has no constitutional duty to ensure that

[OVI] defendants' traffic stops and sobriety tests are recorded on video or audio

tape.” Wooten. Ultimately, the court concluded that “[b]ecause no constitutional

violation arises merely from a law enforcement officer's failure to employ a

particular investigative tool, the suppression of evidence or the dismissal of a

charge is not warranted.” Id.; State v. Sneed, 4th Dist. No. 06CA18, 2007-Ohio-

853.

       {¶21} In the case at bar, Trooper Geer did not destroy evidence and he did

not fail to preserve evidence that had been collected. There was no finding that his

decision to conduct the field sobriety tests out of the range of the dashboard

camera was motivated by bad faith. There is no mandate under the law as it exists

at this time that requires a police officer to record field sobriety tests. Pace’s

assignment of error is without merit and is overruled.

                           Second Assignment of Error

       {¶22} In the second assignment of error, Pace maintains that Trooper Geer

should have stopped questioning her after she invoked her right to counsel under

the Sixth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). This claim is




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apparently in reference to a comment that was made when Trooper Geer asked

Pace to take the roadside PBT.

      {¶23} We do not find any evidence in the record that indicates that Pace

ever affirmatively invoked a right to counsel or asked to speak with counsel. The

only discussion concerning this issue occurred during Trooper Geer’s testimony

during cross-examination.

      Q. And in fact, you actually had a conversation with [Pace] about
      the PBT, correct?

      A.   Correct.

      Q. And do you recall that she asked you specific questions about
      that, did she have to take it, what were the ramifications, do you
      recall that?

      A. She asked me, I believe she asked me what happens if I don’t
      take it, what happens if I do take it. I think I told her that we will do
      other tests outside the car. She did ask me does my attorney need to
      be here or should my attorney be here for this, referring to what I
      take it if I was offering her the breath test on the side of the road,
      does her attorney need to be there. When she did that, that’s when I
      put the PBT away.

(Tr. 59-60) There was no further discussion in the record concerning having an

attorney present and nothing to indicate that Pace’s questions to the trooper

concerning the PBT amounted to a request to have an attorney present. No breath

test was administered, and Pace was placed under an Administrative License

Suspension pursuant to R.C. 4511.191.



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       {¶24} Pace has not provided any authority indicating she was entitled to

Miranda warnings or counsel at that point in the traffic stop. In State v. Arnold,

the Twelfth District Court of Appeals concluded:

       Performance of a field sobriety test, like a breath or blood test, is not
       testimonial in nature, and therefore is not subject to the Miranda
       decision. Moreover, the request to submit to a field sobriety test is a
       preparatory step in a police investigation and therefore is not a
       ‘critical stage’ that would entitle appellant to a constitutional right to
       counsel.

12th Dist. No. CA99–02–026 (Sept. 7, 1999), 1999 WL 699866; State v. Davis,

4th Dist. No. 10CA3188, 2011-Ohio-1747, ¶ 22. Moreover, “the nonverbal results

of [a defendant’s] breathalyzer and field sobriety tests are not self-incriminating

statements.” State v. Henderson, 51 Ohio St.3d 54, 57 (1990).

       {¶25} There is no evidence in the record that Pace’s constitutional rights to

counsel or Miranda warnings were violated. The second assignment of error is

overruled.

       {¶26} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

ROGERS, J., concurs.

PRESTON, P.J., concurs in Judgment Only.

/jlr



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