[Cite as State v. Vales, 2020-Ohio-245.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. William B. Hoffman, P. J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2019CA00061
CHRISTOPHER VALES                               :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No.
                                                    2018CR1673




JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             January 27, 2020




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     BERNARD HUNT
Stark County Prosecutor                             2395 McGinty Road N.W.
By: RONALD MARK CALDWELL                            North Canton, OH 44720
110 Central Plaza South, 5th Floor
Canton, OH 44702
Stark County, Case No. 2019CA00061                                                           2


Gwin, J.,

       {¶1}   Defendant-appellant Christopher Vales [“Vales”] appeals his conviction and

sentence after a jury trial in the Stark County Court of Common Pleas.

                                   Facts and Procedural History

       {¶2}   In 2018, Vales was charged by indictment with one count of operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them ("OVI"), in violation

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

4510.11(B). The OVI count was charged as a felony of the third degree because it alleged

that Vales had been convicted of OVI five times within the last twenty years. This number

was later amended, upon motion of the prosecution, to four prior OVI convictions. As a result

of the amendment, the current OVI charge was reduced to a felony of the fourth degree

(three prior OVI convictions within the last ten year).

       {¶3}   The facts presented during Vales’ jury trial follow.

       {¶4}   During the early morning hours of September 4, 2018, around 3:16 a.m.,

Canton Police Officer Christina Paumier was patrolling her assigned zone and was

responding to a domestic call. While proceeding on Sherrick Road in the southeast side

of Canton, Paumier noticed a white SUV go up onto the curb and nearly strike several

telephone poles. The vehicle would go up and come back down from the curb, and was

swerving onto the sidewalk from the roadway. The vehicle was also driving at a slow rate of

speed. Having decided that she was going to stop the vehicle, Paumier ran the license

plate and found out the license plate was expired and that the registered owner of the

vehicle had failed to reinstate his driver's license, meaning his license was suspended.
Stark County, Case No. 2019CA00061                                                         3


With this information, as well as the erratic driving, Paumier effected a traffic stop of the

vehicle.

         {¶5}   After making the stop, Paumier approached the driver, wearing her body

camera, and determined that he was the registered owner of the vehicle. Vales told the

officer that he was looking for “1027” the address of his girlfriend’s present location.

Paumier asked Vales to step out of his vehicle, and noticed that Vales had slurred speech,

which made it difficult for Paumier to understand him, as well as glassy and bloodshot eyes.

Paumier also smelled alcoholic beverage from his person and in his vehicle. Vales’ pupils

appeared to be significantly constricted, all of which led Paumier to believe that Vales was

impaired. Paumier next asked Vales if he had consumed any alcohol; Vales said that he

had consumed two beers at around 8-9 o’clock. Paumier also asked Vales if he had any

medical conditions. After hesitating, Vales replied, "My sugar.” Paumier concluded that

Vales might be diabetic, and so she asked him if he had checked his sugar levels. Vales

replied that he had, and that his levels were good. When Vales was later performing the

field sobriety tests, Paumier asked if he had any other medical conditions or physical

limitations. Paumier wanted to know if there was any medical reason why Vales could

not perform the tests. Vales said that he had plates in both his big toes and in his right

wrist.

         {¶6}   Vales was asked if he would perform the field sobriety tests. The first test

was the horizontal nystagmus test [“HGN”], which tests if there is equal tracking of the

eyes. Paumier noted that Vales did not complain of any form of brain injury. Instead of

tracking the tip of Paumier's pen, Vales stared ahead; he also followed the pen by moving

his head on several occasions. Vales was not able to follow instructions during the test.
Stark County, Case No. 2019CA00061                                                        4


       {¶7}   Paumier next asked Vales to perform the walk-and-turn test [“WAT”], which

tested his ability to follow instructions and his balance. Vales could not stand for 26

seconds without losing his balance, and could not walk a straight line.

       {¶8}   Finally, Paumier asked Vales to perform the one-legged test [“OLS”], which

required him to stand straight up and lift one leg up for 30 seconds. Paumier noted that

Vales kept swaying while he was standing, and could only keep his leg up for a matter of

seconds before losing balance.

       {¶9}   Based on Vales' performance on these three tests, Paumier concluded that

he was under the influence of drugs, alcohol, or a combination of both. Paumier then

arrested Vales and impounded his vehicle since it had expired plates, and since the only

occupant was being arrested. Officer Paumier asked Vales for identifying information;

Officer Paumier noted that Vales got his birthday wrong.

       {¶10} As part of police policy, when a vehicle is impounded, an inventory search

of that vehicle is performed in order to preserve the contents of the vehicle. During this

inventory search of Vales’ impounded vehicle, Paumier found numerous medication and

prescription bottles (made out to Vales) for opiates, some of which were empty. The

labels on several of the prescription bottles for the opiates warned that alcohol should not

be consumed while taking the drugs.

       {¶11} Paumier transported Vales to the Stark County Jail. On the way, Paumier

asked Vales about the prescription bottles. Vales stated that he does not take prescribed

medication. Once they reached the jail, Vales was booked as part of standard procedure.

Paumier had decided to ask Vales for a urine test instead of a breath test. The breath

test does not test for drugs, whereas the urine test can provide for testing of alcohol and
Stark County, Case No. 2019CA00061                                                        5


drugs. Vales, however, refused once he found out that she was going to test for alcohol

and drugs. "No, I won't do it," Vales responded. Vales then stated, “If I refuse, then

what…I ain’t refusing…” The camera was then turned off.

       {¶12} Officer Paumier admitted under cross-examination that her flashlight

pointed in the eyes of the Vales could have caused him to have difficulty on the HGN test.

Officer Paumier admitted that regulations required the use of a "clue" sheet to mark

deviations made by the suspect from the standards; however, she did not use this sheet

in Vales’ case. Finally, she related that a person with brain damage had the same clues

as a person who was intoxicated.

       {¶13} Vales testified that he traveled from Cleveland to pick up his girlfriend in

Canton, but that he could not find the right street or address. Before long, he noticed that

a police cruiser had pulled up right behind him, and soon pulled him over. He originally

thought the officer was going to provide him with assistance in finding address, which was

on Sherrick Road.

       {¶14} Vales testified that he was unable to perform the tests required by the police

due to his prior physical and mental injuries. He had extensive brain Injuries from a

beating he sustained in 2000, which was inflicted by an individual with a fire extinguisher.

This injury affected his speech and his balance. He is currently in therapy for his slurred

speech and he uses a walker to get around. He also has trouble hearing and is required

to wear a hearing aid. He has gout, rotator cuff issues from a car accident and takes the

pain pills, found in his vehicle for these ailments. Vales admitted that he told Officer

Paumier he did not take his medication. He further admitted that he never told Deputy
Stark County, Case No. 2019CA00061                                                                         6


Paumier that he had suffered a traumatic brain injury. Vales testified that any odor of an

alcoholic beverage came from the fact that he had drunk non-alcoholic beer earlier.

        {¶15} On cross-examination, Vales admitted that taking the prescribed drugs was part

of his pain management, but that he did not take any that night since he knew he would be

driving. Finally, Vales admitted that he at first refused to take a urine test. (1T. at 241-

242).1 However, Vales claimed that he subsequently agreed that he would take the test.

(1T. at 229-230; 241-242).

        {¶16} The jury found Vales guilty as charged. The trial court thereafter sentenced

Vales to an aggregate prison term of 18 months - 18 months for the OVI conviction, and

a concurrent 180-day sentence for the conviction for driving while under suspension.

                                             Assignments of Error

        {¶17} Vales raises three Assignments of Error,

        {¶18} “I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

        {¶19} “II. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

        {¶20} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT THE

APPELLANT REFUSED TO TAKE A CHEMICAL ANALYSIS OF HIS BREATH, THUS

VIOLATED O.R.C. 4511.192.”



                                                         I.


        For clarity sake, the transcript of Vales’ jury trial will be referred to as “__T.__,” signifying the
        1

Volume and the page number.
Stark County, Case No. 2019CA00061                                                          7


       {¶21} In his First Assignment of Error, Vales argues that he was denied effective

assistance of retained trial counsel. Specifically, Vales contends that his trial counsel: 1).

did not file a suppression motion; 2) counsel failed to object to the admission of the field

sobriety tests; 3) counsel did not present Vale's medical records at trial; 4) counsel did

not object to the admission of photos of Vale's prescribed pills; and, 5) counsel did not

subpoena witnesses to testify at trial in Vale's defense.

       STANDARD OF APPELLATE REVIEW.

       {¶22} To obtain a reversal of a conviction based on ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

       {¶23} In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel’s assistance was reasonable

considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104

S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.

       {¶24} The United States Supreme Court discussed the prejudice prong of the

Strickland test,
Stark County, Case No. 2019CA00061                                                    8


            With respect to prejudice, a challenger must demonstrate “a

     reasonable probability that, but for counsel’s unprofessional errors, the

     result of the proceeding would have been different. A reasonable probability

     is a probability sufficient to undermine confidence in the outcome.” Id., at

     694, 104 S.Ct. 2052. It is not enough “to show that the errors had some

     conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.

     2052. Counsel’s errors must be “so serious as to deprive the defendant of

     a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.

            “Surmounting Strickland’s high bar is never an easy task.” Padilla v.

     Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

     (2010). An ineffective-assistance claim can function as a way to escape

     rules of waiver and forfeiture and raise issues not presented at trial, and so

     the Strickland standard must be applied with scrupulous care, lest “intrusive

     post-trial inquiry” threaten the integrity of the very adversary process the

     right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104

     S.Ct. 2052. Even under de novo review, the standard for judging counsel’s

     representation is a most deferential one. Unlike a later reviewing court, the

     attorney observed the relevant proceedings, knew of materials outside the

     record, and interacted with the client, with opposing counsel, and with the

     judge. It is “all too tempting” to “second-guess counsel’s assistance after

     conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell

     v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);

     Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180
Stark County, Case No. 2019CA00061                                                       9


      (1993). The question is whether an attorney’s representation amounted to

      incompetence under “prevailing professional norms,” not whether it

      deviated from best practices or most common custom. Strickland, 466 U.S.,

      at 690, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

      ISSUE FOR APPEAL.

      A. Whether there is a reasonable probability a motion to suppress the field sobriety

tests would have been granted and whether there is a reasonable probability that the jury

would have found Vales not guilty of OVI if the motion to suppress had been granted.

      {¶25} Trial counsel’s failure to file a suppression motion does not per se constitute

ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56.

Counsel can only be found ineffective for failing to file a motion to suppress if, based on

the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA

130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–

3009, at ¶ 86. The defendant must further show that there is a reasonable probability that

the outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91

L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798

(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

      1). Admissibility of field sobriety tests.

      {¶26} The state contends that had Vales filed a motion to suppress, the state

would have presented evidence that Deputy Paumier substantially complied with
Stark County, Case No. 2019CA00061                                                           10


standards promulgated by the National Highway Traffic and Safety Institute for the FST’s.

[State’s Brief at 7].

       {¶27} R.C. 4511.19(D) (4)(b) governs the admissibility of results of field sobriety

tests. That subdivision provides:

               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 to the operator of the vehicle involved in the violation and if it

       is shown by clear and convincing evidence that the officer administered the

       test in substantial compliance with the testing standards for any reliable,

       credible, and generally accepted field sobriety tests that were in effect at

       the time the tests were administered, including, but not limited to, any

       testing standards then in effect that were set by the national highway traffic

       safety administration, 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.

                                              ***

               (iii) * * * [I]f 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.

       {¶28} In other words, the results of the field sobriety tests are not admissible at

trial unless the state shows by clear and convincing evidence that the officer administered
Stark County, Case No. 2019CA00061                                                          11


the test in substantial compliance with NHTSA guidelines2. State v. Codeluppi, 139 Ohio

St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶11.

       {¶29} In order for the results of the field sobriety tests to be admissible, the state

must show by clear and convincing evidence that the officer performing the testing

substantially complied with accepted testing standards. State v. Schmitt, 101 Ohio St.3d

79, 2004–Ohio–37, 801 N.E.2d 446; R.C. 4511.19(D)(4)(b). Typically, the standards

used are those from the NHTSA.                Id. at ¶12. Part of the state’s burden “includes

demonstrating what the NHTSA requirements are, through competent testimony and/or

by introducing the applicable portions of the NHTSA manual.” State v. Djisheff, 11th Dist.

Trumbull No.2005–T–0001, 2006–Ohio–6201 citing State v. Brown, 166 Ohio App.3d

638, 2006–Ohio–1172, 852 N.E.2d 1228 (11th Dist.); State v. Ryan, 5th Dist. Licking No.

02–CA-00095, 2003–Ohio–2803. In State v. Boczar, the Supreme Court held that HGN

test results are admissible in Ohio without expert testimony, so long as substantial

compliance with testing guidelines has been shown and a proper foundation has been

established as to the administering officer’s training, the officer’s ability to administer the

test and the officer’s technique in administering the test. State v. Boczar, 113 Ohio St.3d

148, 153, 2007–Ohio–1251, 863 N.E.2d 155.

       {¶30} Even if we assume that the testing was not done in substantial compliance

with the applicable standards, reversal would not be warranted in this case. In Beard v.

Meridia Huron Hosp., the Ohio Supreme Court set forth the following standard,

                 An improper evidentiary ruling constitutes reversible error only when

       the error affects the substantial rights of the adverse party or the ruling is



       2   National Highway Traffic and Safety Administration.
Stark County, Case No. 2019CA00061                                                      12


      inconsistent with substantial justice. O’Brien, 63 Ohio St.2d at 164–165,

      17.O.O.3d 98, 407 N.E.2d 490. “‘Generally, in order to find that substantial

      justice has been done to [a party] so as to prevent reversal of a judgment

      for errors occurring at the trial, the reviewing court must not only weigh the

      prejudicial effect of those errors but also determine that, if those errors had

      not occurred, the jury or other trier of the facts would probably have made

      the same decision.’” Id., quoting Hallworth v. Republic Steel Corp. (1950),

      153 Ohio St. 349, 41 O.O. 341, 91 N.E.2d 690, paragraph three of the

      syllabus.

See also, State v. Overmeyer, 5th Dist. Licking No. 15-CA-15, 2015-Ohio-4479, ¶17.

      {¶31} In State v. Rahman, the Ohio Supreme Court recognized this principal,

             We are also mindful that our role upon review of this case is not to

      sit as the supreme trier of fact, but rather to assess the impact of this

      erroneously admitted testimony on the jury. In writing about the court’s

      function on federal appellate review, Justice John Paul Stevens’

      observation is particularly appropriate:

             “‘[I]t is not the appellate court’s function to determine guilt or

      innocence * * *. Nor is it to speculate upon probable reconviction and decide

      according to how the speculation comes out * * *. [T]he question is, not

      were [the jury] right in their judgment, regardless of the error or its effect

      upon the verdict. It is rather what effect the error had or reasonably may be

      taken to have had upon the jury’s decision. The crucial thing is the impact

      of the thing done wrong on the minds of other men, not on one’s own, in the
Stark County, Case No. 2019CA00061                                                       13


      total setting.’” United States v. Hasting (1983), 461 U.S. 499, 516, 103 S.Ct.

      1974, 1984, 76 L.Ed.2d 96, Stevens, J. concurring (quoting Kotteakos v.

      United States [1946], 328 U.S. 750, 763–764, 66 S.Ct. 1239, 1247–1248,

      90 L.Ed. 1557).

State v. Rahman, 23 Ohio St.3d 146, n. 4, 492 N.E.2d 401. The Ohio Supreme Court

has applied this standard of review,

              Thus, under Section 2945.83 of the Revised Code it would seem that

      since there is substantial evidence to support the guilty verdict even after

      the tainted evidence is cast aside, we should affirm. However, under Fahy

      v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963),

      and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d

      705 (decided February 20, 1967), we are refused that course of action. In

      Fahy, the court said that when constitutionally inadmissible evidence has

      been admitted, a reversal is required where ‘there is a reasonable possibility

      that the evidence complained of might have contributed to the conviction.’

      (Emphasis added.) [Sic.] In Chapman, the court made it clear that the Fahy

      rule applied to federal constitutional errors in spite of a state harmless-error

      statute to the contrary.

State v. Cowans, 10 Ohio St.2d 97,104–105, 227 N.E.2d 201(1967).

      {¶32} In the case at bar, we find beyond a reasonable doubt, that the evidence of

the HGN, WAT and OLS Standardized Field Sobriety Tests did not contribute to his Vales’

conviction.
Stark County, Case No. 2019CA00061                                                       14


       {¶33} “It is generally accepted that virtually any lay witness, including a police

officer, may testify as to whether an individual appears intoxicated. Columbus v. Mullins

(1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d 422. See, also, State v. McKee

(2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State v. Schmitt, 101 Ohio St.3d 79,

83, 2004-Ohio-37 at ¶ 12, 801 N.E.2d 446, 450(2004); Accord, State v. Hackerdorn, 5th

Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. In State v. Schmitt, the court

indicated there is no reason to treat an officer’s testimony concerning a driver’s

performance on nonscientific field tests any differently from his observations on other

indications of intoxication like slurred speech, bloodshot eyes and the odor of alcohol. Id.

at ¶ 14. The court went on to conclude that even when the final results of a field sobriety

test must be excluded at trial because the test was not administered in compliance with

standardized testing procedures, the officer may testify as a lay witness under Evid.R.

701 about the officer’s observation of the defendant’s performance. Id. at syllabus, ¶ 15.

Thus the results, i.e. whether the defendant passed or failed the specific test are not

admissible without substantial compliance with NHTSA requirements. In State v. Ricer,

this court observed,

              The “results” of an HGN test include an officer’s opinion about

       whether a person “passed” or “failed” the test, the number of clues a person

       demonstrated on an HGN test, and, based upon the number of clues

       demonstrated during the HGN test, the statistical likelihood the person was

       under the influence of alcohol and had a BAC level over the legal limit.

       Bresson [51 Ohio St.3d 123] at 126–29 [554 N.E.2d 1330]; Kennedy [5th

       Dist. No. 2008 AP 04 0026, 2009-Ohio-1398, 2009 WL 795209] at ¶ 27. In
Stark County, Case No. 2019CA00061                                                         15


      contrast, an officer’s observation that a defendant was unable to focus

      steadily on the stimulus during the HGN test or swayed during a field

      sobriety test is the type of physiological factor about which an officer may

      testify even if the test was not administered in substantial compliance with

      the testing standards. Wickliffe v. Kirara, 11th Dist. No. 2006-L-172, 2007-

      Ohio-2304, [2007 WL 1395350], ¶ 19; State v. Koteff, 5th Dist. No. 04-COA-

      035, 2005-Ohio-1719, [2005 WL 845208], ¶ 5, 18.              Thus, an officer’s

      observation that the defendant could not hold himself steady, lost his

      balance, stumbled or staggered when he walked, stepped off the line, could

      not follow simple directions, or used his arms for balance, is admissible as

      lay evidence of intoxication even if the final results of the field sobriety tests

      are inadmissible at trial due to a lack of substantial compliance with

      accepted testing standards. Schmitt [101 Ohio St.3d 79, 2004-Ohio-37, 801

      N.E.2d 446] at syllabus; State v. Johnson, 7th Dist. No. 05 CO 67, 2007-

      Ohio-602 [2007 WL 446024], ¶ 25; State v. Green, 8th Dist. No. 88234,

      2007-Ohio-1713 [2007 WL 1084128], ¶ 53; Cleveland v. Hunter, 8th Dist.

      No. 91110, 2009-Ohio-1239 [2009 WL 712498], ¶ 62–63; State v. Lothes,

      11th Dist. No. 2006-P-0086, 2007-Ohio-4226 [2007 WL 2350997], ¶ 59;

      State v. Hammons, 12th Dist. No. CA2004-01-008, 2005-Ohio-1409 [2005

      WL 694582], ¶ 5.

5th Dist. Ashland No. 17-COA-023, 2018-Ohio-426, 106 N.E.3d 819, ¶20.

      {¶34} Vales did not challenge the basis for the traffic stop in the court below.

However, we note that prior to initiating the stop, Deputy Paumier was informed that
Stark County, Case No. 2019CA00061                                                        16


Vales’ driver license was under a suspension for failure to re-instate, and further, that the

plates on Vales’ vehicle were expired. Next, Vales’ arrest was proper because he was

driving under a suspended license.

        {¶35} Probable cause to arrest for OVI need not arise solely from a suspect's field

sobriety tests. Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952. Probable cause to arrest

exists when, at the moment of the arrest, “the facts and circumstances within [the

arresting police officer's] knowledge * * * were sufficient to warrant a prudent man in

believing that the petitioner had committed or was committing an offense.” Beck v. Ohio,

379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964); see, also, State v. Timson, 38 Ohio

St.2d 122, 127, 311 N.E.2d 16(1974). The existence of probable cause is determined by

examination of the “‘totality’ of facts and circumstances within an officer's knowledge.”

State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703(1997). “The totality of the

facts and circumstances can support a finding of probable cause to arrest even where no

field sobriety tests were administered or where * * * the test results must be excluded for

lack of strict compliance.” Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952.

        {¶36} In the case at bar, Deputy Paumier could testify that Vales had slurred

speech, glassy and bloodshot eyes, smelled of an alcoholic beverage and that Vales

admitted to having consumed two beers earlier. Deputy Paumier could testify that Vales

could not follow the tip of a pen with his eyes when asked, and that Vales stepped off the

line that she had asked him to walk. Deputy Paumier could testify that she observed

Vales swaying while awaiting the OLS test, and further that he lost his balance during the

test.
Stark County, Case No. 2019CA00061                                                                17


       {¶37} Based on the Deputy’s testimony we find that the totality of facts and

circumstances supported a finding of probable cause to arrest Vales for driving under the

influence of alcohol. We further find that probable cause was established even in the

absence or exclusion of the field sobriety test.

       {¶38} As there is not a reasonable probability that the jury would have found Vales

not guilty of OVI if the motion to suppress had been granted, trial counsel was not

ineffective in failing to file a motion to suppress3.

       {¶39} Vales next contends that his attorney failed to introduce medical records

that were in his possession. Vales argues, “Trial counsel ultimately determined to go to

trial without these important documents.” [Appellant Brief at 6].

       B. Whether the failure of trial counsel to offer medical records to substantiate

Vales’ medical condition was ineffective assistance of counsel.

       {¶40} A defendant has no constitutional right to determine trial tactics and strategy

of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999); State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶150; State v. Donkers,

170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶183(11th Dist.).                      Rather,

decisions about viable defenses are the exclusive domain of defense counsel after

consulting with the defendant. Id. When there is no demonstration that counsel failed to

research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing

court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49,

402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841,

498 P.2d 1089(1972); State v. Wiley, 10th Dist. No. 03AP-340, 2004- Ohio-1008 at ¶ 21.


       3 The sufficiency of the evidence to support Vales’ conviction will be addressed more fully in
response to Vales’ Second Assignment of Error.
Stark County, Case No. 2019CA00061                                                       18


       {¶41} Debatable strategic and tactical decisions may not form the basis of a claim

for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 1995–Ohio–

171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do not

constitute ineffective assistance of counsel. Id. “Poor tactics of experienced counsel,

however, even with disastrous result, may hardly be considered lack of due process * *

*.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189 (1980)(quoting United States

v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83 S.Ct. 1112, 10

L.Ed.2d 143).

       {¶42} Further, the Ohio Supreme Court has recognized that if counsel, for

strategic reasons, decides not to pursue every possible trial strategy, defendant is not

denied effective assistance of counsel. State v. Brown, 38 Ohio St.3d 305, 319, 528

N.E.2d 523(1988). This court must accord deference to defense counsel's strategic

choices made during trial. “A fair assessment of attorney performance requires us to

eliminate the distorting effect of hindsight.” State v. Post, 32 Ohio St.3d 380, 388, 513

N.E.2d 754 (1987). See State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).

       {¶43} Accordingly, we will not second-guess the judgment of Vales’ counsel.

Vales himself provided testimony of his injuries and medical disabilities. Vales fails to

elucidate with any particularity why the records were necessary or how the result of the

trial was unreliable or unfair because the records were not admitted into evidence.

       {¶44} We find that trial counsel’s failure to submit the medical records did not

prejudice Vales resulting in an unreliable or fundamentally unfair outcome of the

proceeding. There is no “reasonable probability” that the trier of fact would not have found

him not guilty had counsel submitted the medical records.
Stark County, Case No. 2019CA00061                                                           19


       C. Whether trial counsel was ineffective in failing to object to the photographs of

prescription bottles found in Vales’ car.

       {¶45} Vales does not specify or elucidate his claim that the photographs of

prescription bottles found inside his car during an inventory search of his vehicle would

have been inadmissible at trial. Rather his argument is based upon an unsupported

generalization.

       {¶46} In State v. Crotts, the Ohio Supreme Court explained,

              As a legal term, “prejudice” is simply “[d]amage or detriment to one’s

       legal rights or claims.” Black’s Law Dictionary (eighth Ed.1999) 1218. Thus,

       it is fair to say that all relevant evidence is prejudicial. That is, evidence that

       tends to disprove a party’s rendition of the facts necessarily harms that

       party’s case. Accordingly, the rules of evidence do not attempt to bar all

       prejudicial evidence—to do so would make reaching any result extremely

       difficult. Rather, only evidence that is unfairly prejudicial is excludable.

              “‘Exclusion on the basis of unfair prejudice involves more than a

       balance of mere prejudice. If unfair prejudice simply meant prejudice,

       anything adverse to a litigant’s case would be excludable under Rule 403.

       Emphasis must be placed on the word “unfair.” Unfair prejudice is that

       quality of evidence which might result in an improper basis for a jury

       decision.   Consequently, if the evidence arouses the jury’s emotional

       sympathies, evokes a sense of horror, or appeals to an instinct to punish,

       the evidence may be unfairly prejudicial. Usually, although not always,

       unfairly prejudicial evidence appeals to the jury’s emotions rather than
Stark County, Case No. 2019CA00061                                                                20


            intellect.’ ” Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172,

            743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87,

            Section 403.3.

104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24. Accord, State v. Morgan,

5th Dist. Richland No. 18CA121, 2019-Ohio-2785, ¶36.

            {¶47} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988).

Accord, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A

defendant must also show that he was materially prejudiced by the failure to object.

Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831.

            {¶48} In the case at bar, Vales admitted that he was legally prescribed Percocet,

Atorvastatin, and Thiadiazine. 1T. at 228. He further testified that he participated in pain

management. Id. at 227. Vales testified that he suffered a traumatic brain injury as the

result of a severe beating. That combined with his “sugar” necessitated him taking the

prescribed medications. Deputy Paumier testified that it was because she found the

prescription pill bottles and because Vales had informed her that he took medications,

she requested a urine test as opposed to a breath test. The bottles themselves were not

admitted into evidence.

            {¶49} Accordingly, Vales has failed in his burden to demonstrate that the

photographs were improperly admitted into evidence during Vales’ jury trial. Therefore,

counsel was not ineffective in failing to object to the photographs.

            D. Whether trial counsel was ineffective for failing to call certain witnesses to testify

at trial.
Stark County, Case No. 2019CA00061                                                    21


      {¶50} Vales argues that counsel did not call certain witnesses who would have

testified to Vales’ medical problems. In the case at bar, counsel indicated that Vales

might wish to present the testimony of his sister and his daughter. 1T. at 10.

      {¶51} “Generally, counsel’s decision whether to call a witness falls within the

rubric of trial strategy and will not be second-guessed by a reviewing court.” State v.

Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749(2001). Moreover, “‘[a]ttorneys need not

pursue every conceivable avenue; they are entitled to be selective.’ ” State v. Murphy,

91 Ohio St.3d 516, 542, 747 N.E.2d 765(2001), quoting United States v. Davenport, 986

F.2d 1047, 1049 (7th Cir. 1993).

      {¶52} In the case at bar, Vales testified in his own defense. He provided the jury

with an explanation of his physical disabilities, his medical problems, and of the

prescriptions that he take for those conditions. Evidence was presented that Vales did

not tell Deputy Paumier about his brain injury. The video evidence from Vales’ body

camera shows Vales tell Deputy Paumier about the plates in his toes and wrists. He

further told the deputy that he could perform the FST’s.

      {¶53} In his appeal, Vales fails to elucidate with any specificity what additional

facts the uncalled witnesses would have provided. Vales’ claim with respect to both

performance and prejudice rests on mere speculation. “Such speculation is insufficient

to establish ineffective assistance.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,

920 N.E.2d 104, ¶ 217, citing State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890

N.E.2d 263, ¶ 219, and State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 121.
Stark County, Case No. 2019CA00061                                                       22


       {¶54} As the testimony of the witnesses would have been cumulative to Vales’

own testimony, we conclude that counsel made a legitimate “tactical decision” not to call

these witnesses. Therefore, the decision of counsel not to call these witnesses was not

ineffective assistance.

       {¶55} Based upon the foregoing, Vales’ First Assignment of Error is overruled.

                                                        II.

       {¶56} In his Second Assignment of Error, Vales argues that there was insufficient

evidence to convict him, and further Vales contends that the jury’s findings are against

the manifest weight of the evidence4.

       STANDARD OF APPELLATE REVIEW.

       Sufficiency of the Evidence.

       {¶57} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.




       4   Vales does not challenge his conviction for Driving under Suspension.
Stark County, Case No. 2019CA00061                                                      23


      {¶58} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the 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. State v. Poutney, 153 Ohio

St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the defendant's guilt beyond

a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

      ISSUE FOR APPEAL

      A.   Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, if believed, would convince the average mind of Vales’ guilt on

each element of the crime of OVI beyond a reasonable doubt.

      {¶59} Vales was convicted of one count of OVI. R.C. 4511.19(A)(2) provides,

             (2) No person who, within twenty years of the conduct described in

      division (A)(2)(a) of this section, previously has been convicted of or
Stark County, Case No. 2019CA00061                                                         24


      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.

      {¶60} Per se offenses make the blood-alcohol content an element of the offense.

The trier of fact must find only “that the defendant operated a vehicle * * * and that the

defendant's chemical test reading was at the proscribed level.” Newark v. Lucas, 40 Ohio

St.3d 100, 103, 532 N.E.2d 130(1988). In contrast, for “driving under the influence” in

violation of R.C. 4511.19(A),

              The amount of alcohol found as a result of the chemical testing of

      bodily substances is only of secondary interest. See Taylor, Drunk Driving

      Defense (2 Ed.1986) 394, Section 6.0.1.             The defendant's ability to

      perceive, make judgments, coordinate movements, and safely operate a
Stark County, Case No. 2019CA00061                                                         25


       vehicle is at issue in the prosecution of a defendant under such section. It

       is the behavior of the defendant which is the crucial issue...

Lucas, 40 Ohio St.3d at 104, 532 N.E.2d 130.

       {¶61} The phrase “under the influence of intoxicating liquor” has been defined as

“[t]he condition in which a person finds himself after having consumed some intoxicating

beverage in such quantity that its effect on him adversely affects his actions, reactions,

conduct, movement or mental processes or impairs his reactions to an appreciable

degree, thereby lessening his ability to operate a motor vehicle.” Toledo v. Starks, 25

Ohio App. 2d 162, 166, 267 N.E.2d 824 (6th Dist. 1971). See, also, State v. Steele, 95

Ohio App. 107, 111, 117 N.E.2d 617 (3rd Dist. 1952) (“[B]eing ‘under the influence of

alcohol or intoxicating liquor’ means that the accused must have consumed some

intoxicating beverage, whether mild or potent, and in such quantity, whether small or

great, that the effect thereof on him was to adversely affect his actions, reactions, conduct,

movements or mental processes, or to impair his reactions, under the circumstances then

existing so as to deprive him of that clearness of the intellect and control of himself which

he would otherwise possess”). See, State v. Henderson, 5th Dist. Stark No. 2004-CA-

00215, 2005-Ohio-1644, ¶ 32; State v. Ahmed, 5th Dist. Stark No. 2007-CA-00049, 2008-

Ohio-389, ¶26.

       {¶62} The case law is in agreement that probable cause to arrest may exist, even

without field sobriety tests results, if supported by such factors as: evidence that the

defendant caused an automobile accident; a strong odor of alcohol emanating from the

defendant; an admission by the defendant that he or she was recently drinking alcohol;

and other indicia of intoxication, such as red eyes, slurred speech, and difficulty walking.
Stark County, Case No. 2019CA00061                                                        26


Oregon v. Szakovits, 32 Ohio St.2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23

Ohio App.3d 79, 84, 491 N.E.2d 333 (12th Dist. 1985); State v. Bernard, 20 Ohio App.3d

275, 276, 485 N.E.2d 783 (9th Dist. 1985); Westlake v. Vilfroy, 11 Ohio App.3d 26, 27,

462 N.E.2d 1241 (8th Dist. 1983); State v. Judy, 5th Dist. No. 2007-CAC-120069, 2008-

Ohio-4520, 2008 WL 4118256, ¶27. State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37,

801 N.E.2d 446, (2004), ¶15.

       {¶63} “It is generally accepted that virtually any lay witness, including a police

officer, may testify as to whether an individual appears intoxicated. Columbus v. Mullins

(1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d 422. See, also, State v. McKee

(2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State v. Schmitt, 101 Ohio St.3d 79,

83, 2004-Ohio-37, 801 N.E.2d 446, 450, at ¶ 12 (2004); Accord, State v. Hackerdorn, 5th

Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67.

       {¶64} In the case at bar, Deputy Paumier encounter a vehicle that several times

drove over the curb, nearly striking several poles along the roadway. Deputy Paumier

testified that Vales had slurred speech, glassy and bloodshot eyes, smelled of an

alcoholic beverage and that Vales admitted to having consumed two beers earlier.

Deputy Vales could testify that Vales could not follow the tip of a pen with his eyes when

asked, and that Vales stepped off the line that she had asked him to walk. Deputy

Paumier could testify that she observed Vales swaying while awaiting the OLS test, and

further that he lost his balance during the test. Deputy Paumier further testified that Vales

refused a urine test when requested.

       {¶65} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a
Stark County, Case No. 2019CA00061                                                       27


reasonable doubt that Smith had committed the crime of OVI in violation of R.C.

4511.19(A)(2). We hold, therefore, that the state met its burden of production regarding

each element of the crime of OVI and, accordingly, there was sufficient evidence to submit

the charge to the jury and to support Vales’ conviction.

      Manifest weight of the evidence.

      {¶66} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                           ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent with

      the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Stark County, Case No. 2019CA00061                                                           28


       {¶67} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶68} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.
Stark County, Case No. 2019CA00061                                                     29


      ISSUE FOR APPEAL.

      B. Whether the jury clearly lost their way and created such a manifest miscarriage

of justice that the convictions must be reversed and a new trial ordered.

      {¶69} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

      {¶70} In the case at bar, the jury heard the witnesses and viewed the evidence.

The jury saw the events as they transpired in real-time because the events were recorded

on Deputy Paumier’s body camera and admitted into evidence during the trial. Further,

the jury was able to observe both Deputy Paumier and Vales subject to cross-
Stark County, Case No. 2019CA00061                                                        30


examination.    In addition, the jury heard Vales’ and his attorney’s arguments and

explanations about his actions. Thus, a rational basis exists in the record for the jury’s

decision.

       {¶71} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Vales’ conviction is not against

the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears

to have fairly and impartially decided the matters before them. The jury heard the

witnesses, evaluated the evidence, and was convinced of Vales’ guilt. The jury neither

lost his way nor created a miscarriage of justice in convicting Vales of OVI.

       {¶72} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime for which Vales was convicted.

       {¶73} Vales’ Second Assignment of Error is overruled.

                                                 III.

       {¶74} In his Third Assignment of Error, Vales challenges the trial court's ruling that

he had refused to take a chemical analysis of his breath, and thereby violated R.C.

4511.191. Vales concedes that evidence of his refusal to take a urine test may be used

against him at trial, but that it shouldn't have in this case because Vales attempted to

revoke this refusal and submit to the test after his arrest.
Stark County, Case No. 2019CA00061                                                        31


       STANDARD OF APPELLATE REVIEW.

       {¶75} With respect to the admissibility of evidence at trial of a defendant’s refusal

to take a chemical test, the United States Supreme Court has held that such evidence

does not violate the defendant’s Fifth Amendment right against self-incrimination nor the

Fourteenth Amendment right to due process. South Dakota v. Neville, 459 U.S. 553, 103

S.Ct. 916, 74 L.Ed.2d 748(1983). Similarly, the Ohio Supreme Court has concluded that

under certain circumstances, evidence of a refusal to submit to a chemical test can be

used against a defendant at trial. See Columbus v. Mullins, 162 Ohio St. 419, 55 O.O.

240, 123 N.E.2d 422(1954); and Westerville v. Cunningham, 15 Ohio St.2d 121, 44

O.O.2d 119, 239 N.E.2d 40(1968).

       {¶76} The reason a person refused to take the breath test is a disputed issue of

fact to be resolved by the jury under proper instructions from the trial judge. City of

Maumee v. Anistik, 69 Ohio St.3d 339, 344, 1994-Ohio-157, 632 N.E.2d 497. This Court

has applied the Ohio Supreme Court’s determination that evidence regarding a refusal to

submit to a breath or blood test is admissible at trial. See State v. Frangella, 5th Dist.

Richland No. 11CA43, 2012-Ohio-1863, ¶44.

       ISSUE FOR APPEAL.

       Whether the trial court provided the jury a legally correct refusal instruction.

       {¶77} In Maumee v. Anistik, 69 Ohio St.3d 339, 632 N.E.2d 497 (1994), syllabus,

the Ohio Supreme Court held that a trial court may issue a refusal instruction to the jury

if a person arrested for an OVI refuses to submit to chemical testing “and the reason given

for the refusal is conditional, unequivocal, or a combination thereof * * *.” The Court then

approved specific language for such an instruction,
Stark County, Case No. 2019CA00061                                                         32


                 “Evidence has been introduced indicating the defendant was asked

       but refused to submit to a chemical test of his [or her] breath to determine

       the amount of alcohol in his [or her] system, for the purpose of suggesting

       that the defendant believed he [or she] 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.”

Maumee v. Anistik, 69 Ohio St.3d 339, 632 N.E.2d 497, syllabus.

       {¶78} In the case at bar, the trial court provided the jury with a legally correct

refusal instruction5, and the instruction allowed the jury, as the ultimate finder of fact, to

determine whether or not defendant refused to submit to a chemical test of his breath.

Because the court’s instruction was a correct statement of the law, the trial court did not

abuse its discretion in instructing the jury. Furthermore, the instruction did not amount to

prejudicial error.

       {¶79} The jury heard Vales’ explanation concerning Deputy Paumier’s request

that he submit to a urine test. The jury heard Vales’ explanation concerning whether or

not he had refused to submit to a urine test. The jury viewed the body camera video

footage showing in real time as the events transpired Vales’ responses to Deputy

Paumier’s request that he submit to a urine test.

       {¶80} Based on the foregoing, Vales’ Third Assignment of Error is overruled.




       5   1T. at 254.
Stark County, Case No. 2019CA00061                                                33


      {¶81} The judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, J.,

Hoffman, P.J., and

Wise, John, J., concur
