[Cite as Parma v. Benedict, 2015-Ohio-3340.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101480



                                     CITY OF PARMA
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 KEVIN E. BENEDICT
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Criminal Appeal from the
                                      Parma Municipal Court
                                    Case No. CR-13-TRC-09688


                BEFORE: Celebrezze, A.J., Keough, J., and E.T. Gallagher, J.

                RELEASED AND JOURNALIZED: August 20, 2015
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Bldg.
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
City of Parma Prosecutor
BY: John J. Spellacy
Assistant Prosecutor
5555 Powers Blvd.
Parma, Ohio 44129
FRANK D. CELEBREZZE, JR., A.J.:

        {¶1} Defendant-appellant, Kevin Benedict (“Benedict”), appeals his convictions

for operating a vehicle under the influence of alcohol or drugs (“OVI”) pursuant to R.C.

4511.19(A)(1), OVI with a prior conviction and refusal under R.C. 4511.19(A)(2), and

weaving pursuant to Parma Codified Ordinances (“PCO”) 331.36. After a careful review

of the record and relevant case law, we affirm Benedict’s convictions.

                           I. Procedural and Factual History

        {¶2} On June 27, 2013, Benedict was riding his motorcycle in the westbound lanes

of Snow Road in the city of Parma, Ohio (“the City”) around midnight. Patrolman Todd

Hanley of the Parma Police Department was riding in a police cruiser behind Benedict

and noticed Benedict weaving within his lane of travel and crossing the double-yellow

line.   When he observed Benedict nearly fall off his motorcycle, Patrolman Hanley

initiated a traffic stop in the parking lot of a local business at the intersection of Snow and

Pearl Roads.

        {¶3} Patrolman Hanley testified that when he exited the cruiser and asked Benedict

for his license and registration, Benedict appeared inattentive, fumbled with his wallet,

and smelled of alcohol. Once Patrolman Hanley had Benedict’s identification, he ran a

Law Enforcement Automated Data System search and radioed Benedict’s information in
to dispatch.      Both inquiries revealed that Benedict had been convicted in Parma

Municipal Court for OVI in 2011.

       {¶4} At some point after Benedict was pulled over, Patrolman Hanley testified that

he requested a back-up cruiser with a video camera in order to record the administration

of field sobriety tests. Patrolman Christopher Smith responded to the scene with a police

cruiser capable of recording the tests. Patrolman Hanley asked Benedict to complete

field sobriety tests and administered a portion of the horizontal gaze nystagmus (“HGN”)

test. Patrolman Smith verified that the video camera was operational and enabled prior

to the test. After the HGN test, Benedict refused to submit to any more tests. Patrolman

Hanley testified that he Mirandized Benedict, handcuffed him, and placed him in the back

of the patrol car.

       {¶5} Patrolman Smith acknowledged that he was responsible for ensuring that the

video recording of Benedict’s sobriety test was preserved for trial. Patrolman Smith

admitted that he filled out an evidence slip with information about the recording and

submitted the slip to the evidence room in accord with the police department’s procedure.

 However, the videotape of Benedict’s field sobriety test was never produced for trial

because the evidence room personnel alleged they never received Patrolman Smith’s

completed slip.

       {¶6} Patrolman Hanley testified that he transported Benedict to the Parma Police

Station in his cruiser. On the ride back, Patrolman Hanley indicated a stronger odor of

alcohol emanating from Benedict. Once at the station, Benedict was brought inside,
patted down, and prepped for booking. Corrections Officer Jerome Lascko was present

and participated in Benedict’s booking. Officer Lascko testified that he was in the

holding room with Patrolman Hanley and Benedict, and that he prepared the machine and

necessary documentation for Benedict’s breath test.

       {¶7} Patrolman Hanley began a colloquy with Benedict in the holding room.

After Mirandizing Benedict again, Patrolman Hanley confronted Benedict with his prior

conviction. When Patrolman Hanley stated that Benedict’s conviction was from two

years prior, Benedict noted that he had been convicted in December 2011. Patrolman

Hanley then informed Benedict about the consequences of refusing to submit to a breath

test, administered the OVI questionnaire, and filled in the corresponding blanks with

Benedict’s answers. Officer Lascko testified that Benedict smelled of alcohol and was

uncooperative during the questionnaire.   Patrolman Hanley then asked, “Do you choose

to take the breath test: yes or no?” When Benedict refused, Patrolman Hanley asked him

again. Benedict replied, “Nope. Pretty sure I didn’t stutter the first time.” The booking

process and the administration of the questionnaire were recorded, and the video was

played in its entirety for the jury.

       {¶8} Benedict was charged with OVI under R.C. 4511.19(A)(1), OVI with a prior

conviction and refusal under R.C. 4511.19(A)(2), weaving in violation of PCO 331.36,

and driving left of a double yellow line in violation of PCO 331.07. The case proceeded

to a jury trial where Benedict was convicted of OVI and OVI with a prior conviction and

refusal. The remaining charges were tried to the bench, and the judge found Benedict
guilty of weaving. The trial court sentenced Benedict to 180 days in jail and fined him

$1,000 for the OVI, OVI with a prior conviction, and refusal convictions. However, the

court suspended 170 days of Benedict’s sentence and $300 of his fine. The trial court

also imposed a $100 fine for the weaving conviction, but then suspended the entire $100

payment. Moreover, Benedict’s license was suspended for two years, he was sentenced

to a five-session MADD seminar, and he was ordered to attend Alcoholics Anonymous

meetings three times a week. Benedict filed this timely appeal asserting eleven

assignments of error.

                                 II. Law and Analysis

                          A. Admission of Prior Conviction

      {¶9} In his first assignment of error, Benedict argues that he was denied due

process when the trial court admitted evidence of a prior OVI conviction. Specifically,

Benedict argues that the admission of his prior conviction was prejudicial because the

conviction only enhanced the degree of the sentence and did not enhance the degree of

the offense under R.C. 4511.19(A)(2). We disagree.

      {¶10} In furtherance of his argument, Benedict directs our attention to the Ohio

Supreme Court’s decision in State v. Allen, 29 Ohio St.3d 53, 506 N.E.2d 199 (1987). In

Allen, the defendant was charged with operating a motor vehicle while under the

influence of alcohol pursuant to R.C. 4511.19(A). Id. at 55.     The Ohio Supreme Court

held that “[w]here the existence of a prior conviction enhances the penalty for a

subsequent offense, but does not elevate the degree thereof, the prior conviction is not an
essential element of the subsequent offense, and need not be alleged in the indictment or

proved as a matter of fact.” Id. at syllabus. Further, the Ohio Supreme Court noted that

the existence of a prior conviction is normally so inflammatory that it should not be

revealed to the jury unless otherwise authorized by rule or statute. Id. at 55.

       {¶11} After Allen was decided, the Ohio General Assembly enacted R.C.

4511.19(A)(2). In State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d

1056, ¶ 13, the Ohio Supreme Court analyzed R.C. 4511.19(A)(2) and stated the three

elements necessary for a charge under the statute: (1) a DUI conviction within 20 years of

the current violation; (2) operation of a motor vehicle under the influence of alcohol or

drugs; and (3) refusal to submit to a chemical test while under arrest for the current DUI.

The court stated that “[a] person’s refusal to take a chemical test is simply an additional

element that must be proven beyond a reasonable doubt along with the person’s previous

DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a).”

Id. at ¶ 21.

       {¶12} Relying on Hoover, the Twelfth District concluded that a prior OVI

conviction within 20 years is an essential element of the crime that the state must prove

beyond a reasonable doubt. State v. Miller, 12th Dist. Warren No. CA2011-02-013,

2012-Ohio-997, ¶ 12.     Thus, a court cannot preclude the state from presenting evidence

of the prior conviction because the evidence is “not only proper, but required.” Id., citing

State v. Holland, 5th Dist. Stark No. 2011 CA 00104, 2012-Ohio-486, ¶ 18-21.
       {¶13} In accord with Hoover and Miller, we find that a prior OVI conviction

within 20 years is now an essential element of the charge under R.C. 4511.19(A)(2).

Thus, the City was required to prove that element beyond a reasonable doubt and the

court did not err when it permitted the City to present evidence of Benedict’s prior OVI

conviction.

       {¶14} Benedict’s first assignment of error is overruled.

                                   B. Defective Entry

       {¶15} In his second assignment of error, Benedict argues that the trial court erred

when it admitted a defective certified copy of the journal entry from his prior OVI

conviction. Specifically, Benedict contends that the journal entry was defective because

it was not signed by a judge in compliance with Crim.R. 32(C).

       {¶16} In State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626,

paragraph one of the syllabus, the Ohio Supreme Court held that a judgment entry of

conviction under R.C. 2945.75(B)(1) is one method of establishing a prior conviction. If

the state opts to provide a judgment of conviction under R.C. 2945.75(B)(1), the entry is

required to conform to Crim.R. 32(C). Id. at paragraph two of the syllabus. Under

Crim.R. 32(C), a final entry of conviction must contain (1) the fact of conviction; (2) the

sentence; (3) the judge’s signature; and (4) the time stamp indicating the entry upon the

journal by the clerk.

       {¶17} Here, the certified copy of the journal entry admitted into evidence at trial

is clearly defective. Upon examination, the only endorsement on the journal entry is by a
deputy clerk of the city of Parma Clerk of Courts.     We therefore agree with Benedict

that the journal entry was defective for failing to comply with the requirements of

Crim.R. 32(C), and the trial court erred by admitting the document into evidence.

      {¶18} Our analysis, however, does not end there. A judgment entry of conviction

is not the only method by which the City may establish a prior conviction. The Ohio

Supreme Court also acknowledged that prior convictions may be established through

other means, such as by stipulation and admission. Gwen at ¶ 12, 14.

      {¶19} In this case, Benedict admitted that he had a prior conviction from

December 2011 on the booking video, which was played in open court for the jury

without objection. When Patrolman Hanley stated that he had discovered a prior OVI

conviction from “last year,” Benedict explained that the conviction was from “two years

ago” in “December of 2011.” Benedict’s statements confirm the conviction reflected in

the certified copy of the journal entry. Thus, Benedict’s admission that he had a prior

conviction in December 2011 was sufficient to render the prior conviction established.

      {¶20} Under this circumstance, we believe that the trial court’s admission of the

defective entry was harmless error. Crim.R. 52(A). Benedict’s statement that he had a

prior OVI conviction from December 2011 at the time he refused to take the breath test

was properly admitted under Evid.R. 801(D)(2)(a) as an admission by a party opponent.

Moreover, in light of his admission, Benedict cannot show that the outcome of his case

would have been different but for the entry of the defective journal entry into evidence.

While we agree with Benedict that the trial court erred in admitting the defective journal
entry, Benedict’s admission was sufficient to allow jurors to conclude beyond a

reasonable doubt that he had a prior OVI conviction.

       {¶21} Benedict’s second assignment of error is overruled.

                           C. Admission of OVI Questionnaire

       {¶22} In his third assignment of error, Benedict argues that he was denied due

process of law when the court admitted the OVI questionnaire because it was

inadmissible as hearsay.

       {¶23}     “In   criminal    cases,   Evid.R.    803(8)(b)     excludes    from    the

public-records-and-reports exception to hearsay police reports that ‘recite an officer’s

observations of criminal activities or observations made as part of an investigation of

criminal activities.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229, ¶ 111, quoting State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984). The

OVI questionnaire contains Patrolman Hanley’s observations of Benedict’s appearance

and demeanor during the OVI investigation and booking process.                    Thus, the

questionnaire contains hearsay, and the trial court should not have submitted it to the jury.



       {¶24} However, the trial court’s error in submitting the questionnaire to the jury

was harmless. Crim.R. 52(A). Under the Ohio Rules of Evidence, Patrolman Hanley

was permitted to testify about his own observations, which were detailed within the OVI

questionnaire.    The questionnaire also contains Benedict’s answers to questions

Patrolman Hanley asked during the booking process, and statements acknowledging
Benedict’s refusal to submit to further testing.      Benedict’s answers were properly

admissible under Evid.R. 801(D)(2)(a) because a defendant’s own out-of-court

statements, offered against him at trial, are not hearsay. Patrolman Hanley testified that

he asked the questions on the OVI questionnaire and recorded Benedict’s answers to the

best of his ability. Further, Patrolman Hanley and Officer Lascko both testified that

Benedict refused to submit to further testing.

       {¶25} Moreover, the booking video, in which Patrolman Hanley administered the

questionnaire and recorded Benedict’s answers and refusal to take a breath test, was

played in open court for the jury and admitted as an exhibit without objection. In light of

the officers’ testimonies and the booking video, Benedict cannot show he was prejudiced

by the admission of the OVI questionnaire. Thus, while the trial court erred in admitting

the OVI questionnaire, the error was harmless in light of the officers’ testimonies, the

booking video, and Benedict’s statements.

       {¶26} Benedict’s third assignment of error is overruled.

                        D. Admission of Post-Miranda Refusals

       {¶27} In his fourth assignment of error, Benedict argues that he was denied a fair

trial when the court admitted evidence of his post-Miranda refusal to answer questions or

cooperate. Specifically, Benedict argues that the trial court erred by admitting evidence

of his refusal to take a breath test through the OVI questionnaire and testimonies of

Patrolman Hanley and Officer Lascko.
       {¶28} The United States Supreme Court held that the admission of a defendant’s

refusal to take a chemical test does not violate a defendant’s Fifth and Fourteenth

Amendment rights. South Dakota v. Neville, 459 U.S. 553, 564-566, 103 S.Ct. 916, 74

L.Ed.2d 748 (1983). Similarly, the Ohio Supreme Court held that a defendant’s refusal

to submit to a chemical test may properly be considered when evaluating whether or not a

defendant was under the influence of alcohol. Maumee v. Anistik, 69 Ohio St.3d 339,

632 N.E.2d 497 (1994), syllabus.

       {¶29} After Neville and Anistik, this court addressed whether or not a defendant’s

refusal to submit to a breath test after being charged under R.C. 4511.19(A)(2) violated

the protections of the Fifth and Fourteenth Amendments Middleburg Hts v. Henniger, 8th

Dist. Cuyahoga No. 86882, 2006-Ohio-3715, ¶ 7. In Henniger, we held that refusals to

submit to chemical testing are not testimonial for Fifth and Fourteenth Amendment

purposes because they are used to show the defendant did not perform the physical act of

taking the test when prompted. Id. at ¶ 22, citing Deering v. Brown, 839 F.2d 539, 542

(9th Cir.1988); State v. Morale, 174 Vt. 213, 811 A.2d 185 (2002). We also concluded

that the state does not directly compel a refusal when a defendant is given a choice

between submitting to chemical testing or having his refusal used against him in court. Id.

at ¶ 20, citing Neville, 459 U.S. at 79.

       {¶30} We see no need to depart from our holding in Henniger. Benedict was

given the choice to submit to or refuse the breath test. The record clearly reflects that

Patrolman Hanley twice gave Benedict the option to take the breath test or refuse. In
doing so, Patrolman Hanley also explained the consequences of refusal. Benedict chose

not to comply. Additionally, the record is devoid of any evidence demonstrating that

Patrolman Hanley or other officers made assurances to Benedict in order to compel his

refusal.

       {¶31} Benedict’s fourth assignment of error is overruled.

                   E. Failure to Instruct Jury on Expert Testimony

       {¶32} In his fifth assigned error, Benedict claims that his due process rights were

violated because the trial court failed to inform the jury in considering expert testimony,

specifically with regard to the administration of the field sobriety tests.       Although

Benedict acknowledges that the trial court gave a general credibility instruction, he argues

that the court should have given a special instruction regarding expert testimony and

substantial compliance.

       {¶33} We do not believe that a special jury instruction was warranted in this case.

The failure of a party to object to “improprieties in the jury instructions, as required by

Crim.R. 30 is a waiver of the issue on appeal.” State v. Moats, 8th Dist. Cuyahoga No.

91646, 2009-Ohio-3063,¶ 45, quoting State v. Underwood, 3 Ohio St.3d 12, 13, 444

N.E.2d 1332 (1983). In an OVI case, an officer may testify about the results of the field

sobriety test if the prosecution demonstrates that the tests substantially complied with

testing standards. R.C. 4511.19(D)(4)(b). Once the results have been admitted, defense

counsel may challenge the reliability of the evidence.          R.C. 4511.19(D)(4)(b)(iii)

provides:
       If testimony is presented or evidence is introduced under division
       (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is
       admissible under the Rules of Evidence, the court shall admit the testimony
       or evidence and the trier of fact shall give it whatever weight the trier of
       fact considers to be appropriate.

       {¶34} Patrolman Hanley testified extensively about HGN test protocol, the number

of HGN tests he has administered, his training and qualifications, and Benedict’s

performance on the evening of the arrest. Moreover, Patrolman Hanley demonstrated

how to perform the HGN test for the jury. When asked by the prosecutor, Patrolman

Hanley admitted he “very closely” performed the test in compliance with the National

Highway Traffic Safety Administration (“NHTSA”) manual.                     Defense counsel

extensively cross-examined Patrolman Hanley about his conformity to the NHTSA

manual, but did not proffer the NHTSA manual for admission into evidence.

Furthermore, defense counsel neither objected to Patrolman Hanley’s testimony regarding

the NHTSA manual and the HGN test, nor objected to the trial court’s general credibility

instruction. As such, we must consider this issue waived and, without more, we cannot

say that the trial court should have given a special instruction in this case.

       {¶35} Benedict’s fifth assignment of error is overruled.

                        F. Jury Instructions Regarding Refusal

       {¶36} In his sixth, seventh, and eighth assignments of error, Benedict takes issue

with the trial court’s instruction to the jury regarding the refusal to submit to a breath test.

 Specifically, Benedict argues that the trial court erred by allowing the jury to make an

adverse inference from the refusal, by failing to inform the jury on all elements of
“refusal,” and by usurping the jury’s function by informing the jury that Benedict refused

to take the breath test. We disagree.

       {¶37} “The admission or exclusion of evidence and the giving of jury instructions

rest in a trial court’s sound discretion. In order to find an abuse of that discretion, an

appellate court must determine that the trial court’s decision was unreasonable, arbitrary,

or unconscionable * * *.” Moats at ¶ 48, quoting State v. Chambers, 5th Dist. Stark No.

2005CA00277, 2006-Ohio-958, ¶ 8. The use of a defendant’s refusal to submit to a

chemical test as evidence of being under the influence is controlled by an Ohio Supreme

Court-sanctioned jury instruction, which states:

       Evidence has been introduced indicating the defendant was asked but
       refused to submit to a chemical test of his breath to determine the amount of
       alcohol in his system, for the purpose of suggesting that the defendant
       believed he was under the influence of alcohol. If you find the defendant
       refused to submit to said test, you may, but are not required to, consider this
       evidence along with all the other facts and circumstances in evidence in
       deciding whether the defendant was under the influence of alcohol.

Anistik, 69 Ohio St.3d 339 at 344. The above-quoted instruction was described by the

Ohio Supreme Court as providing juries with the proper degree of neutrality.             Id.

Furthermore, the instruction allows juries to consider the totality of the circumstances

involving a defendant’s choice to decline testing. Id. Even so, the Ohio Supreme Court

also acknowledged that it was “permissible for a trial judge to instruct a jury that the

defendant’s refusal to submit to a chemical test is evidence of his or her intoxication at

the time of taking the test.” Id.
       {¶38} Here, the trial court’s jury instruction regarding refusal was identical to the

instruction sanctioned by the Ohio Supreme Court in Anistik. Moreover, it is clear that

Anistik authorizes, but does not require, trial courts to further instruct on what a jury may

consider when evaluating refusal. As the Ohio Supreme Court also noted in Anistik, the

instruction given by the trial court in this case did not usurp the function of the jury

because it was sufficiently neutral and properly allowed the jury to attach whatever

significance it chose to Benedict’s refusal. Finally, a review of the transcript reveals that

the trial court properly charged the jury with the correct elements of the crime under R.C.

4511.19(A)(2). Because the trial court comported with Ohio law and precedent, we

cannot say that it abused its discretion in instructing the jury on the element of refusal.

       {¶39} Benedict’s sixth, seventh, and eighth assignments of error are overruled.

                                 G. Motion for Acquittal

       {¶40} In his ninth assigned error, Benedict claims he was denied due process when

the court overruled his Crim.R. 29(A) motion for acquittal. Crim.R. 29(A) governs

motions for acquittal, and provides that a judgment of acquittal must be entered if the

evidence is insufficient to sustain a conviction. “The test an appellate court must apply

in reviewing a challenge based on a denial of a motion for acquittal is the same as a

challenge based on sufficiency of the evidence to support a conviction.”              State v.

Macalla, 8th Dist. Cuyahoga No. 88825, 2008-Ohio-569, ¶ 38, citing State v. Bell, 8th

Dist. Cuyahoga No. 65356, 1994 Ohio App. LEXIS 2291 (May 26, 1994). When the

sufficiency of the evidence is challenged, “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.” State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶41} In this case, defense counsel made a Crim.R. 29(A) motion for acquittal on

Count Two, OVI with a prior conviction and refusal under R.C. 4511.19(A)(2), which

provides in pertinent part:

       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 * * * 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 * * * 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.

       {¶42} As explained in addressing Benedict’s second assignment of error, we

believe the City provided sufficient evidence to demonstrate that Benedict had a prior

OVI conviction within the last 20 years under R.C. 4511.19(A)(2). Thus, we need only

consider the remaining two elements.




            1. Operating a Vehicle While Under the Influence of Alcohol
      {¶43} The City supplied sufficient evidence to show that Benedict was operating a

vehicle while under the influence of alcohol pursuant to R.C. 4511.19(A)(2)(a). This

court and many of our sister districts have recognized that field sobriety tests are not

required for an OVI conviction. Solon v. Hrivnak, 8th Dist. Cuyahoga No. 100411,

2014-Ohio-3135, ¶ 17, citing State v. Strebler, 9th Dist. Summit No. 23003,

2006-Ohio-5711, ¶ 17; State v. Stephenson, 4th Dist. Lawrence No. 05CA30,

2006-Ohio-2563, ¶ 19; State v. Rouse, 7th Dist. Belmont No. 04 BE 53, 2005-Ohio-6328.

Instead, prosecutors may establish impaired driving ability through coordination tests,

such as field sobriety tests, and “physiological factors such as slurred speech, bloodshot

eyes, and the odor of alcohol.” Id. at ¶ 18, citing State v. Clark, 8th Dist. Cuyahoga No.

88731, 2007-Ohio-3777, ¶ 13; State v. Simms, 9th Dist. Summit No. 23957,

2008-Ohio-4848, ¶ 6; State v. Holland, 11th Dist. Portage No. 98-P-0066, 1999 Ohio

App. LEXIS 6143 (Dec. 17, 1999).

      {¶44} In this case, the City presented evidence both of Benedict’s physiological

characteristics during the incident and the results of a field sobriety test. Patrolman

Hanley testified that he observed Benedict cross over the double yellow lines and weave

in and out of his lane on his motorcycle. When Patrolman Hanley pulled Benedict over

and asked for identification, he observed an inattentive Benedict wobbling and fumbling

with his wallet. Patrolman Hanley also noticed Benedict’s delayed hand motions and

bloodshot, glassy eyes. In the outside air, Patrolman Hanley detected a faint odor of

alcohol emanating from Benedict.        Additionally, Patrolman Hanley testified that
Benedict’s eyes jerked back and forth during the HGN test, which Patrolman Hanley

stated was a indicator of impairment.

       {¶45} After Benedict was placed in the back of the police cruiser, Patrolman

Hanley testified that the odor of alcohol became more noticeable. Upon arrival at the

police station for booking, Officer Lascko explained that he smelled a moderate odor of

alcohol on Benedict. Officer Lascko also testified that Benedict was not cooperative

during the booking process and the administration of the OVI questionnaire.            The

evidence regarding Benedict’s uncooperativeness was fortified when the booking video

was played and showed Benedict’s disrespectful attitude toward officers and balking at

questions. In light of the foregoing, we believe that the City provided sufficient evidence

from which the jury could conclude that Benedict was operating his motorcycle under the

influence of alcohol.

                                        2. Refusal

       {¶46} Similarly, the record is replete with evidence indicating refusal under R.C.

4511.19(A)(2)(b). Patrolman Hanley testified that after confirming Benedict’s prior OVI

conviction at the station, he read Benedict the Bureau of Motor Vehicles 2255 form and

advised him that he would be required to submit to a breath test. Patrolman Hanley also

stated that he informed Benedict of the consequences of refusing the breath test. Both

Officer Lascko and Patrolman Hanley stated that Benedict refused to take the test.

Officer Lascko indicated that he made notes on the computer printout and the

acknowledgment form that Benedict refused in compliance with department procedure.
The booking video played for the jury also shows Benedict outright refusing to take the

test.   Thus, there was sufficient evidence from which the jury could conclude that

Benedict refused to take the breath test.

        {¶47} Benedict’s ninth assigned error is overruled.

                          H. Manifest Weight of the Evidence

        {¶48} In his tenth assigned error, Benedict asserts that he is entitled to a new trial

because the jury’s verdict was against the manifest weight of the evidence. A challenge

to the manifest weight of the evidence attacks the credibility of the evidence. State v.

Thompkins, 78 Ohio St.3d 380, 387, 679 N.E.2d 541 (1997). In evaluating a manifest

weight of the evidence challenge, the trial court must act as a “thirteenth juror” and

analyze whether 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.” Id., citing State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal should only

be reserved for the “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

        {¶49} Benedict argues that the missing police cruiser video misled the jury into

believing that Patrolman Hanley’s account of the HGN test and Benedict’s arrest were

accurate. We disagree. The missing police cruiser video was heavily addressed during

the trial. Patrolmen Hanley and Smith gave detailed accounts of how field sobriety tests

are able to be recorded by police cruisers, and the proper procedures for preserving those

recordings for use at trial. Defense counsel cross-examined Patrolmen Hanley and
Smith about the missing video taken during Benedict’s arrest, and both acknowledged

that they did not know what happened to the video because they followed the proper

procedures. “‘When conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the jury rejected the defendant’s

version of the facts and believed the testimony presented by the state.’” State v. Gibson,

8th Dist. Cuyahoga No. 101826, 2015-Ohio-2390, ¶ 38, quoting State v. Hall, 4th Dist.

Ross No. 13CA3391, 2014-Ohio-2959, ¶ 28.             The jury was free make its own

determination of the officers’ account of the administration of the HGN test, Benedict’s

arrest, and the missing recording. Thus, we cannot say that the jury lost its way in this

case and created a manifest miscarriage of justice such that Benedict’s conviction must be

overturned.

       {¶50} Benedict’s tenth assigned error is overruled.

                                       I. Weaving

       {¶51} In his final assigned error, Benedict contends that the trial court denied him

due process when the court found him guilty of weaving pursuant to PCO 331.36.

Specifically, Benedict contends that the Parma ordinance conflicts with a general state

law. We disagree.

       {¶52} PCO 331.36 reads, “No person shall operate a motor vehicle upon any street

or highway in a weaving or zigzag course unless such irregular course is necessary for

safe operation or in compliance with law.” R.C. 4511.33(A), which Benedict claims

supersedes the Parma ordinance, states in pertinent part:
      Whenever any roadway has been divided into two or more clearly marked
      lanes for traffic, or wherever within municipal corporations traffic is
      lawfully moving in two or more substantially continuous lines in the same
      direction, the following rules apply:

             (1) A vehicle * * * shall be driven, as nearly as is practicable,
      entirely within a single lane or line of traffic and shall not be moved from
      such lane or line until the driver has first ascertained that such movement
      can be made with safety.

      {¶53} The long-standing rule for evaluating whether a city ordinance conflicts

with a general state law is “[i]n determining whether an ordinance is in ‘conflict’ with

general laws, the test is whether the ordinance permits or licenses that which the statute

forbids or prohibits, and vice versa.” Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519

(1923), paragraph two of the syllabus. The Ninth District has twice addressed this

argument in connection with two identical municipal weaving ordinances. In Medina v.

Carver, 9th Dist. Medina No. 2673-M, 1998 Ohio App. LEXIS 345 (Feb. 4, 1998), the

Ninth District held that the state law’s silence on weaving within a lane was not in

conflict with the city ordinance’s prohibition. Specifically, the court reasoned that a

conflict does not exist “merely because certain specific acts are declared unlawful by the

ordinance, which acts are not referred to in the general law[.]” Id. at * 7, citing Akron

Cellular Tel. Co. v. Hudson Village, 115 Ohio App.3d 93, 99, 684 N.E.2d 734 (9th

Dist.1996), quoting Sokol, 108 Ohio St. 263 at paragraph three of the syllabus.

      {¶54} In Cuyahoga Falls v. Morris, 9th Dist. Summit No. 18861, 1998 Ohio App.

LEXIS 3762 (Aug. 19, 1998), the Ninth District again held that the absence of state

legislation prohibiting weaving within a lane demonstrates the lack of conflict with city
ordinances prohibiting such conduct. Specifically, the court held that “[b]ecause no state

statute expressly or implicitly authorizes weaving, no conflict is created by a municipality

prohibiting it.” Id. at * 6.

        {¶55} In Mayfield Hts v. Molk, 8th Dist. Cuyahoga No. 84703, 2005-Ohio-1176, ¶

25, we favorably reviewed the Ninth District’s precedent because it was relevant to

addressing that appellant’s sufficiency and manifest weight challenges. However, we did

not adopt our sister district’s precedent at that juncture because the validity of the

Mayfield Heights weaving ordinance was not at issue. Because Benedict has raised the

conflict between the City’s weaving ordinance and R.C. 4511.33(A) in this case, we now

adopt the Ninth District’s rule and hold that PCO 331.36, which is identical to the

ordinances analyzed in Carver and Morris, does not conflict with R.C. 4511.33(A)

because the general state law does not expressly or impliedly prohibit weaving within a

lane.

        {¶56} Benedict’s eleventh assigned error is overruled.

        {¶57} Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR
