[Cite as State v. Munye, 2015-Ohio-3362.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                 :

                Plaintiff-Appellee,            :
                                                                  No. 14AP-744
v.                                             :            (M.C. No. 2013 TRC 193080)

Abukar M. Munye,                               :           (REGULAR CALENDAR)

                Defendant-Appellant.           :



                                        D E C I S I O N

                                    Rendered on August 20, 2015


                Richard C. Pfeiffer, City Attorney, Lara N. Baker, City
                Prosecutor, and Melanie R. Tobias, for appellee.

                Yeura R. Venters, Public Defender, and John W. Keeling, for
                appellant.

                      APPEAL from the Franklin County Municipal Court

HORTON, J.
        {¶ 1} Defendant-appellant, Abukar M. Munye, appeals from a judgment of the
Franklin County Municipal Court, finding him guilty pursuant to a jury verdict of one
count of operating a vehicle while under the influence of drugs or alcohol, in violation of
Columbus City Code ("C.C.C.") 2133.01(A)(1)(a) and, pursuant to a bench trial, of failing
to use a turn signal, in violation of C.C.C. 2131.14(A), and of changing lines without
safety, in violation of C.C.C. 2131.08(A)(1). Because the trial court properly instructed
the jury and the officer possessed reasonable, articulable suspicion to conduct field
sobriety tests ("FSTs"), we affirm.
No. 14AP-744                                                                             2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} The facts giving rise to the charges at issue occurred in the early morning
hours of November 4, 2013, when Officer Chase Rogers was on duty in the area of North
High Street and East 11th Avenue. Officer Rogers observed defendant's vehicle change
lanes without signaling, and the vehicle then made a U-turn directly in front of Officer
Rogers' marked police cruiser. Officer Rogers activated his overhead lights and stopped
defendant's vehicle. Upon approaching the vehicle, Officer Rogers "detected an odor of
alcoholic beverage on [defendant's] breath, noticed [defendant's] eyes to be somewhat
dilated, red shot -- red and bloodshot and glassy." (Trial Tr. 21.) Officer Rogers
characterized the odor of alcohol as moderate, and noted that defendant's speech was
somewhat slurred. Officer Rogers asked defendant if he had consumed any alcohol that
evening, defendant said he had consumed "one or two beers." (Trial Tr. 23.)
       {¶ 3} Given these observations, Officer Rogers asked defendant to perform
FSTs. Officer Rogers had defendant perform the horizontal gaze nystagmus test
("HGN"), the walk-and-turn test, and the one-leg stand test. Defendant's performance
on each test reliably indicated that he had a blood alcohol content ("BAC") which was
over the legal limit. Accordingly, after defendant completed the FSTs, Officer Rogers
placed the defendant under arrest for OVI.
       {¶ 4} Officer Rogers then read BMV form 2255 to defendant, which explained
that defendant would be subject to a mandatory suspension of his driver's license if he
refused to submit to a chemical test of his breath to determine his BAC. Defendant
indicated that he understood the form and signed the form accordingly, but defendant
refused to submit to the chemical breath test. Thereafter, defendant "stated something
to the effect of, [a]ll right, now maybe I will" take the breath test. (Trial Tr. 36.)
However, Officer Rogers thought that defendant "still wasn't definite," and noted that,
"[d]ue to the time restraints with obtaining a chemical test, it's imperative that we get a
direct answer from them. If they drag it out longer, then the sample becomes invalid."
(Trial Tr. 36.)
       {¶ 5} Prior to trial, defendant moved to suppress the evidence of the FSTs,
defendant's statements to Officer Rogers, and Officer Rogers' observations of defendant.
Defendant asserted that Officer Rogers lacked probable cause to arrest him for OVI, as
No. 14AP-744                                                                            3


defendant emitted only a moderate odor of alcohol, there was no evidence of erratic
driving, defendant performed well on the one-leg stand test, and defendant only failed
the walk-and-turn test because Officer Rogers refused to answer defendant's questions
mid-test.
       {¶ 6} The trial court found that Officer Rogers had reasonable, articulable
suspicion to stop defendant's vehicle, as there was "[n]o question [defendant] turned in
the middle of High Street." (Suppression Tr. 73.) The court further concluded that
Officer Rogers had reasonable, articulable suspicion to conduct the FSTs, citing the
"moderate odor of alcohol, red, bloodshot eyes, slurred speech, [and] admitted
drinking." (Suppression Tr. 74.) Regarding the walk-and-turn test and one-leg stand
test, the court found "no question" that these tests "substantially complied" with all
relevant requirements, including "instructions, observations and clues." (Suppression
Tr. 74.) However, the court suppressed the results of the HGN test, as it found that
Officer Rogers improperly administered the test.
       {¶ 7} At trial, Officer Rogers agreed that the U-turn "in and of itself, [wasn't]
indicative of impairment," that it was "possible" he mistook defendant's accent as
slurred speech, and that defendant's eyes "appear[ed] somewhat red" in the courtroom.
(Trial Tr. 54, 59, 109.) Officer Rogers also admitted that this was "not the most
egregious OVI case" he'd ever seen. (Trial Tr. 92.)
       {¶ 8} Defendant asserted that, although he initially refused to submit to the
chemical breath test, he later retracted that refusal. Officer Rogers explained that, when
he initially offered the test to defendant, defendant "refused outright." (Trial Tr. 94.)
Officer Rogers stated that, as they "were talking in reference to [defendant's] vehicle"
being impounded, defendant indicated that he might want to take the test. (Trial Tr. 94.)
Officer Rogers believed defendant "was trying to broker a deal to not have his vehicle
impounded." (Trial Tr. 94.) However, when Officer Rogers explained that it was police
department policy that "all impaired drivers' vehicles must be impounded," there "was
no mention of [taking the test] again." (Trial Tr. 94.)
       {¶ 9} Officer Rogers stated that "any chemical sample of the breath" must be
taken within "two hours" of reading BMV form 2255 to a defendant. (Trial Tr. 95.)
Officer Rogers did not know how much time had elapsed between defendant's refusal
No. 14AP-744                                                                              4


and his retraction, but stated that "[f]rom stop to when he was released was roughly an
hour 20 minutes, hour 30 minutes." (Trial Tr. 95.) Officer Rogers also noted that, when
defendant attempted to retract his refusal, the other officer who witnessed Officer
Rogers read form 2255 to defendant "had already left and had already notarized the
2255," and Officer Rogers "had already completed that part of the paperwork indicating
that [defendant] had refused." (Trial Tr. 106.)
       {¶ 10} At the conclusion of trial, the court instructed the jury as follows regarding
defendant's refusal to submit to the breath test:
              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
              purposes of suggesting that the defendant believes he was
              under the influence.

              If you find the defendant refused to submit to said test, you
              may, but are not required, to consider the evidence along
              with all the other facts and circumstances in deciding
              whether the defendant was under the influence of alcohol.

(Trial Tr. 183-84.) Defendant objected to this instruction, and the court overruled the
objection.
       {¶ 11} The jury found defendant guilty of OVI, the court found defendant guilty
of the 2 minor misdemeanor traffic offenses. Following the sentencing hearing, the court
sentenced the defendant to 180 days in jail, credited defendant with 3 days of time
served, suspended the balance of the jail sentence, and sentenced defendant to a 2-year
term of community control. The court also imposed a $375 fine and ordered defendant
to pay court costs.
II. ASSIGNMENTS OF ERROR
       {¶ 12} Defendant appeals, assigning the following errors for our review:
              [I.] THE TRIAL COURT ERRED WHEN, OVER
              OBJECTION, IT SELECTED A SINGLE FACT FROM THE
              EVIDENCE, THE DEFENDANT'S ALLEGED REFUSAL TO
              SUBMIT TO A BREATH TEST, AND GAVE UNDUE
              PROMINENCE TO THIS FACT BY TELLING THE JURORS
              THEY COULD CONSIDER THE REFUSAL IN DECIDING
              WHETHER THE DEFENDANT WAS UNDER THE
              INFLUENCE OF ALCOHOL WHEN THE EVIDENCE ALSO
No. 14AP-744                                                                               5


              INDICATED THAT THE DEFENDANT HAD TIMELY
              CHANGED HIS MIND AND HAD AGREED TO TAKE A
              BREATH TEST BUT THAT THE OFFICER REFUSED TO
              ADMINISTER THE TEST WITHOUT ANY LEGAL OR
              LOGICAL BASIS FOR THE OFFICER'S REFUSAL. THE
              TRIAL COURT FURTHER ERRED WHEN IT TOLD THE
              JURY THAT THE EVIDENCE INDICATED THAT THE
              DEFENDANT HAD REFUSED TO TAKE A TEST WHEN IT
              IS THE JURY'S ROLE TO DECIDE THE FACTS AND NOT
              THE COURT'S.

              [II.] THE TRIAL COURT ERRED WHEN IT HELD THAT
              THE ARRESTING OFFICER HAD REASONABLE AND
              ARTICULABLE      SUSPICIONS  TO   SUBJECT  THE
              DEFENDANT TO FIELD SOBRIETY TESTS BASED ONLY
              UPON AN ODOR OF ALCOHOL, ADMISSION OF
              DRINKING, AND BLOODSHOT EYES WHEN THERE WAS
              NO ERRATIC DRIVING OR ANY PHYSICAL SIGNS OF
              IMPAIRMENT      SUCH    AS  DIFFICULTIES  WITH
              MOVEMENT OR LACK OF COORDINATION INDICATIVE
              OF IMPAIRED DRIVING OBSERVED BEFORE THE TESTS
              WERE GIVEN.

II. FIRST ASSIGNMENT OF ERROR – JURY INSTRUCTIONS
       {¶ 13} In his first assignment of error, defendant asserts that the trial court erred
by providing the jury with the refusal instruction quoted above. Defendant asserts that
the instruction "was an incomplete and therefore inaccurate conclusion as to what the
evidence was and what it portrayed." (Appellant's Brief, 15.)
       {¶ 14} Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its duty
as the factfinder. State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the
syllabus; Columbus v. Aleshire, 187 Ohio App.3d 660, 679, 2010-Ohio-2773, ¶ 6 (10th
Dist.); State v. Moody, 10th Dist. No. 98AP-1371 (Mar. 13, 2001). An instruction is
proper if it adequately informs the jury of the law. State v. Conway, 10th Dist. No.
03AP-585, 2004-Ohio-1222, ¶ 24. See also State v. Daniels, 10th Dist. No. 13AP-969,
2014-Ohio-3697, ¶ 22 (noting that "[w]here requested jury instructions are correct
statements of the law as applied to the facts of the case, they should generally be given").
       {¶ 15} "[A] trial court has broad discretion in instructing the jury." State v.
Daniels, 10th Dist. No. 13AP-969, 2014-Ohio-3697, ¶ 17. "Therefore, when reviewing a
No. 14AP-744                                                                            6


trial court's jury instruction, the proper standard of review for an appellate court is to
determine whether the trial court's decision to give a requested jury instruction
constitutes an abuse of discretion under the facts and circumstances of the case." Id. An
appellate court will not reverse a conviction in a criminal case due to jury instructions
unless the jury instructions amount to prejudicial error. Moody, citing State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph two of the syllabus.
       {¶ 16} The trial court did not abuse its discretion by providing the jury with
refusal instruction. The Supreme Court of Ohio expressly approved the jury instruction
given herein in Maumee v. Anistik, 69 Ohio St.3d 339 (1994). In Maumee, the
defendant was arrested for OVI and taken to the police station. Once at the station, an
officer read the standard implied consent form to defendant and asked her to submit to
a chemical test of her breath. The defendant indicated that she could not take the breath
test because she was on medication, which she believed might affect the test results. The
officer assured her that the medication would not affect the test results, and she agreed
to take the test. However, after the defendant was denied access to the restroom and
after she spoke with her attorney, she again refused to take the breath test.
       {¶ 17} The trial court found that "circumstances may exist where the refusal to
submit to a chemical test by a person suspected of driving while under the influence of
alcohol is not based on consciousness of guilt." Id. at syllabus. Accordingly, the court
held as follows:
              Where a person has been arrested for driving while under
              the influence of alcohol and is requested by a police officer to
              submit to a chemical test of his or her breath, but he or she
              refuses to take the test, and the reason given for the refusal is
              conditional, unequivocal, or a combination thereof, we
              approve the following jury instruction as set forth in 4 Ohio
              Jury Instructions (1993) 405, Section 545.25(10): "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."
No. 14AP-744                                                                            7



Id. at syllabus. The jury instruction provided by the court to the jury herein was the
approved instruction from Maumee.
       {¶ 18} Defendant contends that, although the court in Maumee "approved the
giving of the refusal instruction in limited situations, it did so without addressing its
past precedent indicating that the court should not comment on specific facts."
(Appellant's Brief, 27.) However, the court in Maumee specifically stated that a "trial
judge should not invade the province of the jury" as the trier of fact. Id. at 343-44.
Defendant further contends that the Maumee court "made it clear that the refusal
instruction should not be given when there is a question of fact with respect to whether
or not there was a refusal or whether the refusal was based upon consciousness of guilt."
(Appellant's Brief, 27.) The Supreme Court in Maumee, however, specifically stated that
the approved instruction was appropriate in any situation where an individual refuses to
submit to a chemical test, whether the reason for the refusal be "conditional,
unequivocal, or a combination thereof." Id. at 344.
       {¶ 19} Defendant contends that, "[i]f a court does instruct a jury on refusal
evidence, it must do so in a way that allows the jury to make the factual finding of
whether or not the defendant refused and whether or not the refusal was an indication
of consciousness of guilt." (Appellant's Brief, 30.) The court's instruction, however, did
allow the jury to make these factual determinations. The instruction stated that evidence
had been introduced "indicating that the defendant was asked but refused" to submit to
a breath test, and instructed that "[i]f" the jury found that "defendant refused," they
could, but were "not required to," consider such evidence along with all other evidence
indicating that defendant was under the influence. (Trial Tr. 183-84.) The jury was free
to determine, as the finder of fact, whether defendant refused to submit to the chemical
breath test, and whether the refusal was an indication of guilt.
       {¶ 20} Defendant asserts the "reason the test was not administered was not
because of the defendant's refusal but because of the officer's refusal to allow the
defendant to take the test after this change of mind." (Appellant's Brief, 27.) We
disagree. See R.C. 4511.192(A) (requiring a mandatory suspension of an individual's
driver's license if they refuse to submit to a chemical breath test to determine their
No. 14AP-744                                                                              8


BAC); In Re Brooks, 27 Ohio St.2d 66, 70 (1971), at paragraph two of the syllabus
(holding that an automatic license suspension "is not precluded by the fact that after
such refusal but within two hours of the alleged driving violation, the motorist stated
that he would submit to the test," and noting that a retraction must occur "almost
immediately" for the retraction to be valid); Carroll v. McCullion, 10th Dist. No. 91AP-
340 (Aug. 8, 1991) (retraction within 15 to 20 minutes of refusal not immediate);
Bowman v. McCullion, 21 Ohio App.3d 138, 139 (9th Dist.1985) (retraction within 5
minutes of refusal not immediate). The jury heard all of the evidence regarding
defendant's retraction of his initial refusal. The court's instruction permitted the jury to
determine, as the finder of fact, whether defendant refused to take the test.
       {¶ 21} The trial court provided the jury with a legally correct refusal instruction,
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.
       {¶ 22} Based on the foregoing, defendant's first assignment of error is overruled.
III. SECOND ASSIGNMENT OF ERROR – REASONABLE SUSPICION
       {¶ 23} In his second assignment of error, defendant contends that Officer Rogers'
observation of a moderate odor of alcohol, bloodshot, glassy eyes, and defendant's
admission to drinking one to two beers, was insufficient, in the absence of any evidence
of erratic driving, to provide the officer with reasonable, articulable suspicion to support
the FSTs. In ruling on defendant's motion to suppress, the trial court found that Officer
Rogers had the requisite suspicion to perform the FSTs.
       {¶ 24} "[A]ppellate review of a trial court's decision regarding a motion to
suppress evidence involves mixed questions of law and fact." State v. Vest, 4th Dist. No.
00CA2576 (May 29, 2001). Thus, an appellate court's standard of review of the motion
to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5,
citing State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist.1998). When considering a
motion to suppress, the trial court assumes the role of trier of fact, and therefore is in
the best position to resolve factual questions and evaluate the credibility of witnesses.
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. As a result, an appellate
No. 14AP-744                                                                              9


court must accept the trial court's findings of fact if they are supported by competent,
credible evidence. Id. Then, the appellate court must independently determine whether
the facts satisfy the applicable legal standard, pursuant to a de novo review and without
giving deference to the conclusion of the trial court. Id.
       {¶ 25} "[E]ven where an officer has probable cause to stop a defendant for
committing a traffic violation, the officer's further detention of the defendant in order to
conduct field sobriety tests violates the Fourth Amendment unless the officer has
reasonable, articulable suspicion that the defendant is intoxicated." State v. Mossman,
10th Dist. No. 13AP-959, 2014-Ohio-2620, ¶ 10, citing State v. Montelauro, 10th Dist.
No. 11AP-413, 2011-Ohio-6568, ¶ 8. "The propriety of such an investigative stop must
be viewed in light of the totality of the circumstances." Montelauro at ¶ 8, citing United
States v. Cortez, 449 U.S. 411 (1981) and State v. Bobo, 37 Ohio St.3d 177 (1988),
paragraph one of the syllabus.
       {¶ 26} This court has held that an officer has the requisite reasonable suspicion to
conduct FSTs when a traffic violation is coupled with some indicia of intoxication, such
as a more-than-slight odor of alcohol; a driver's red, glassy, watery, or bloodshot eyes;
the time of the stop (i.e., late night or early morning hours); and the admission to
consuming alcohol. See Columbus v. Shepherd, 10th Dist. No. 10AP-483, 2011-Ohio-
3302, ¶ 4-5, 38 (noting that speeding, coupled with moderate odor of alcohol, slightly
slurred speech, difficulty in locating insurance card, and a bar ID stamp on the back of
defendant's hand, provided the officer with "sufficient indicia of intoxication to establish
reasonable suspicion to administer field testing"); Mossman at ¶ 13 (finding that the
totality of the circumstances justified the officer's reasonable suspicion that the
defendant was driving impaired, as the defendant was "driving well in excess of the 35-
milesper-hour limit, the trooper stopped her at approximately 2 a.m. on a Sunday
morning, the trooper discerned an odor of alcohol in the vehicle, and appellee
acknowledged having been drinking"); State v. Perkins, 10th Dist. No. 07AP-924, 2008-
Ohio-5060, ¶ 11 (finding that officer possessed reasonable suspicion to support the
FSTs, where defendant was speeding, "weaving within his own lane after turning against
a red light where there was a posted 'no turn on red' sign," and the officer observed a
strong odor of alcohol, as well as bloodshot, glassy eyes).
No. 14AP-744                                                                              10


       {¶ 27} In Montelauro, this court found that the officer possessed the requisite
reasonable suspicion to conduct FSTs, as the officer "noted an obvious odor of alcohol,"
the defendant "admi[tted] to drinking Long Island Iced Tea, * * * the officer knew drinks
were half price that night," and the defendant "had glassy, bloodshot eyes." Montelauro
at ¶ 19. Notably, we found that the officer in Montelauro possessed the requisite
reasonable suspicion, despite the fact that the officer specifically testified that defendant
"was not driving erratically at the time the officer stopped him, did not have slurred
speech, was not disheveled or inappropriate in appearance, pulled over almost
immediately, and did not fumble with his license." Id. at ¶ 13.
       {¶ 28} In the instant case, it is uncontested that Officer Rogers observed
defendant perform a U-turn in the middle of High Street at 3:00 A.M., directly in front
of Officer Rogers' marked cruiser. Officer Rodgers also observed other indicia of
intoxication, including a moderate odor of alcohol, bloodshot, glassy eyes, and
defendant admitted to consuming alcohol. Accordingly, based on the foregoing
authority, Officer Rogers had reasonable, articulable suspicion of intoxication to
conduct the FSTs. Defendant's reliance on non-binding cases, including State v. Derov,
7th Dist. No. 07 MA 71, 2009-Ohio-5513 and State v. Spillers, 2d Dist. No. 1504
(Mar. 24, 2000), is unpersuasive in light of the foregoing authorities.
       {¶ 29} Defendant also asserts that Officer Rogers admitted that he did not have
reasonable suspicion that defendant was intoxicated. This argument lacks merit. On
cross-examination, defense counsel asked Officer Rogers, hypothetically, if defendant
had refused to take the FSTs, whether Officer Rogers would have arrested defendant at
that point in time. Officer Rogers stated that he "hadn't come to any conclusion at that
time," and further stated that he didn't think he "had reasonable -- even reasonable
suspicion, let alone probable cause at that point" to arrest the defendant. (Trial Tr. 73.)
Thus, Officer Rogers' statement regarding the lack of reasonable suspicion related to his
ability to arrest defendant prior to the FSTs, and not to the reasonableness of Officer
Rogers' suspicion that defendant was intoxicated.
       {¶ 30} Based on the foregoing, we find that Officer Rogers had reasonable,
articulable suspicion that defendant was intoxicated, sufficient to support the further
detention of defendant to conduct the FSTs. As such, the trial court did not err in
No. 14AP-744                                                                     11


denying defendant's motion to suppress. Defendant's second assignment of error is
overruled.
IV. DISPOSITION
      {¶ 31} Having overruled defendant's first and second assignments of error, we
affirm the judgment of the Franklin County Municipal Court.
                                                               Judgment affirmed.
                       DORRIAN and BRUNNER, JJ., concur.
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