[Cite as Stave v. Beavers, 2020-Ohio-69.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2019-A-0028
         - vs -                                  :

 BRADLEY DEE BEAVERS,                            :

                  Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court, Western District.
 Case No. 2016 TRC 02096 W.

 Judgment: Affirmed.


 Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
 OH 44047-1092 (For Plaintiff-Appellee).

 David E. Koerner, Law Office of David E. Koerner, 5900 Som Center Road, Suite 12-
 146, Willoughby, OH 44094 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}      Appellant, Bradley Dee Beavers (“Beavers”), appeals from the February 5,

2019 judgment entry of the Ashtabula County Court, Western District, finding him guilty

on two counts of Operating a Motor Vehicle Under the Influence (“OVI”), in violation of

R.C. 4511.19(A)(1)(a) and (A)(2), and one count of Operating without Reasonable

Control, in violation of R.C. 4511.202. We affirm the trial court’s judgment.
       {¶2}   On December 21, 2016, a complaint was filed with the Ashtabula County

Court, Western District, charging Beavers with four counts: (1) Operating a Motor Vehicle

Under the Influence, in violation of R.C. 4511.19(A)(1)(a); (2) Operating a Motor Vehicle

Under the Influence, in violation of R.C. 4511.19(A)(2); (3) Driving under a Suspension in

violation of R.C. 4510.16; and (4) Operating without Reasonable Control, in violation of

R.C. 4511.202. The complaint was regarding an incident where Beavers was found in

the parking lot of a Dollar General store during a snowy winter night. A truck registered

to Beavers Built Construction was found in a nearby ditch outside the store. Beavers pled

not guilty to all charges.

       {¶3}   Before trial, Beavers filed motions in limine seeking to limit what the state

could present with regard to field sobriety tests conducted by officers at the scene of the

incident. These motions were denied, and the matter proceeded to trial. No motion to

suppress evidence was filed by Beavers. On February 5, 2019, a bench trial was held in

the instant matter. At the trial, three witnesses testified for the state.

       {¶4}   Tori Pelligrino was an employee at the Dollar General store near where

Beavers and his truck were found. She testified that she was familiar with Beavers as a

customer, and he entered the store on December 20, 2016, to purchase brake fluid. She

also testified that he was on his cell phone aggressively demanding that the person he

was speaking to come to the store and help tow his truck out of the ditch.

       {¶5}   While purchasing the brake fluid, Pelligrino testified that Beavers stated to

the person he was speaking to on his cell phone that he was coming from a local bar and

had driven into the ditch. She stated no one else was with him at any time during the

incident, and she witnessed him return to the vehicle after purchasing brake fluid, get in,




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and “rock it back and forth” for several minutes in an attempt to get out of the ditch.

Pelligrino also stated that she believed Beavers was “definitely intoxicated” based on her

interaction with him.

         {¶6}   Next, Troopers Mika Cottom and Jason Haynes testified about their

investigation into the incident. Upon approaching Beavers, Trooper Cottom and Haynes

were told by Beavers that his brother’s friend was driving the truck when it went into the

ditch.   Beavers claimed that the driver, whose last name and phone number were

unknown, had left the scene to go retrieve help towing the truck from the ditch. The friend

Beavers alleged was driving never returned to the scene during the investigation.

         {¶7}   Both troopers testified that during this exchange with Beavers, they noticed

Beavers’ speech was slurred, his eyes were glassy and bloodshot, and they detected an

odor of alcohol. Beavers denied having consumed any alcohol for several years. Also,

the troopers noticed some inconsistencies in Beavers’ account of the incident—namely,

there were no footprints in the snow on the passenger side of the truck where Beavers

claimed to have exited the vehicle, the interior floorboard was wet from snowfall only on

the driver side, and an unopened can of beer was in the truck.

         {¶8}   Trooper Cottom administered the Horizontal Gaze Nystagmus (“HGN”) test,

and he testified that Beavers showed all six possible clues associated with intoxication

from the test. Following the HGN test, Beavers asked several times if he had “passed”

the test before claiming he was physically unable to participate in any other field sobriety

tests because he had a physical deformity that affected his balance and coordination.

Trooper Cottom then placed Beavers under arrest for, inter alia, operating a motor vehicle

under the influence of alcohol in violation of R.C. 4511.19. Beavers was transported by




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Trooper Cottom to the Ashtabula Post for highway patrol, where he refused blood alcohol

content (“BAC”) testing.

       {¶9}    After the state rested its case-in-chief, defense counsel moved for a Rule

29 acquittal, which the trial court denied at that time. The defense moved for an acquittal

again at the conclusion of the trial, and it was denied a second time.

       {¶10} After hearing all the testimony and evidence, the trial court found Beavers

guilty on three of the four charges brought against him. He was found not guilty of driving

under a suspension in violation of R.C. 4510.16.

       {¶11} Beavers filed a timely notice of appeal and raises three assignments of

error. For clarity, we combine and consider the assignments of error accordingly.

       {¶12} Beavers’ first and third assignments of error both challenge the admission

and consideration of the horizontal gaze nystagmus (“HGN”) field sobriety test conducted

by Trooper Cottom.

       {¶13} Beavers’ first assignment of error states:

               THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE
               HORIZONTAL GAZE NYSTAGMUS FST WHERE THE STATE
               FAILED TO PROVE SUBSTANTIAL COMPLIANCE WITH NHTSA
               GUIDELINES BY CLEAR AND CONVINCING EVIDENCE.

       {¶14} In his first assignment of error, Beavers challenges whether the state met

their burden in justifying the admission of the HGN test by laying a foundation of

substantial compliance with the National Highway Traffic Safety Administration

(“NHTSA”) guidelines. The state argues that the issue of whether the HGN test can be

presented was not properly objected to by way of a motion to suppress and the objection

has therefore been waived. We agree that the substantial compliance challenge has

been waived.



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       {¶15} “‘A Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to

challenge the admissibility of evidence to prove an OMVI charge on a claim that it was

not procured pursuant to applicable standards or regulations.’” State v. Dean, 11th Dist.

Portage No. 2007-P-0025, 2007-Ohio-6947, ¶37, quoting State v. Murray, 2d Dist.

Greene No. 2002-CA-10, 2002-Ohio-4809, at ¶10, citing Defiance v. Kretz, 60 Ohio St.3d

1, 5 (1991).

       {¶16} The differences between a motion to suppress and a motion in limine, as

they relate to other field sobriety tests, were discussed in detail in the matter of State v.

French, 72 Ohio St.3d 446 (1995). There, the Court stated, in pertinent part:

               The purpose and effect of a motion to suppress and a motion in
               limine are distinct. A “motion to suppress” is defined as a “[d]evice
               used to eliminate from the trial of a criminal case evidence which has
               been secured illegally, generally in violation of the Fourth
               Amendment (search and seizure), the Fifth Amendment (privilege
               against self incrimination), or the Sixth Amendment (right to
               assistance of counsel, right of confrontation etc.), of U.S.
               Constitution.” Black’s Law Dictionary (6 Ed.1990) 1014. Thus, a
               motion to suppress is the proper vehicle for raising constitutional
               challenges based on the exclusionary rule first enunciated by the
               United States Supreme Court in Weeks v. United States (1914), 232
               U.S. 383, and made applicable to the states in Mapp v. Ohio (1961),
               367 U.S. 643. * * *

               A “motion in limine” is defined as “[a] pretrial motion requesting [the]
               court to prohibit opposing counsel from referring to or offering
               evidence on matters so highly prejudicial to [the] moving party that
               curative instructions cannot prevent [a] predispositional effect on
               [the] jury.” Black’s Law Dictionary, supra, at 1013. The purpose of a
               motion in limine “is to avoid injection into [the] trial of matters which
               are irrelevant, inadmissible and prejudicial[,] and granting of [the]
               motion is not a ruling on evidence and, where properly drawn,
               granting of [the] motion cannot be error.” Id. at 1013–1014. See
               State v. Maurer (1984), 15 Ohio St.3d 239, 259. * * *

               Confusion and inaccuracy may arise, however, because a motion in
               limine may be used in two ways. It may be used as a preliminary
               means of raising objections to evidentiary issues to prevent



                                               5
prejudicial questions and statements until the admissibility of the
questionable evidence can be determined outside the presence of
the jury. It may also be used as the functional equivalent of a motion
to suppress evidence that is either not competent or improper due to
some unusual circumstance not rising to the level of a constitutional
violation. Palmer, Ohio Rules of Evidence, Rules Manual (1984) 446,
cited in State v. Maurer, supra, 15 Ohio St.3d at 259 fn. 14.

It is true that a subtle distinction exists between the exclusionary rule,
which is relied upon when evidence is improperly seized, and the
Rules of Evidence, which generally apply to procedural questions
concerning the admissibility of evidence at trial. Moreover,
challenges to the admissibility of chemical test results on the basis
of noncompliance with Department of Health testing regulations do
not present a question of constitutional magnitude. However, “[t]he
traditional distinction between a motion to suppress based upon a
constitutional challenge and a motion in limine does not work as a
bright-line rule where the motion to suppress is directed to
breathalyzer test results based on a failure to comply with ODH
regulations.” Defiance v. Kretz, supra, 60 Ohio St.3d at 4.

In holding at the syllabus that “[a] motion to suppress is a proper
pretrial procedure for challenging breathalyzer test results when the
defendant is charged with a violation of R.C. 4511.19(A)(3),” the
Kretz court noted that the intent of the Rules of Criminal Procedure
“is to determine matters before trial when possible.” Id. at 4. This
policy “applies not only to constitutional issues but also to non-
constitutional claims capable of determination without a trial on the
general merits.” State v. Ulis (1992), 65 Ohio St.3d 83, 85.

It is well established that in a charge of violating R.C. 4511.19(A)(2)
through (4) “[t]he accuracy of the test results is a critical issue in
determining a defendant’s guilt or innocence.” Kretz, supra, 60 Ohio
St.3d at 3. Although the admissibility of test results turns on
substantial compliance with ODH regulations rather than compliance
with the Constitution, this court determined in Kretz and Ulis that a
ruling on a motion to suppress challenging the admissibility of a BAC
test is not a preliminary ruling on an evidentiary matter. Rather,
pursuant to Crim.R. 12(B)(3), challenges to the state’s compliance
with statutory and ODH regulations in a charge under R.C.
4511.19(A)(2) through (4) must be made in a pretrial motion to
suppress, or such challenges are considered waived. * * *

Therefore, because Crim.R. 12(B)(3) applies to all charges under
R.C. 4511.19, a defendant charged under R.C. 4511.19(A)(1)
through (4) who does not challenge the admissibility of the chemical



                                6
              test results through a pretrial motion to suppress waives the
              requirement on the state to lay a foundation for the admissibility of
              the test results at trial.

Id. at 449-451 (emphasis sic) (footnote omitted).

       {¶17} In the matter sub judice, Beavers did not file a motion to suppress

presentation of the HGN test before trial. While French dealt with a chemical test, we see

no justification, based on the rationale contained therein, for not applying the same

standard for the HGN test. Therefore, to the extent Beavers seeks to challenge whether

the test was administered in substantial compliance with NHTSA standards, he has

waived that challenge by not filing a motion to suppress.

       {¶18} Beavers’ first assignment of error has no merit.

       {¶19} Beavers’ third assignment of error states:

              THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
              IN LIMINE AND ADMITTING TESTIMONY REGARDING THE HGN
              FIELD SOBRIETY TEST WITHOUT EXPERT TESTIMONY.

       {¶20} While Beavers has waived a challenge as set forth above, the Ohio

Supreme Court in French also went on to state that “[t]his does not mean, however, that

the defendant may not challenge the chemical test results at trial under the Rules of

Evidence. Evidentiary objections challenging the competency, admissibility, relevancy,

authenticity, and credibility of the chemical test results may still be raised.” Id. at 452.

Beavers may properly challenge whether the officer is qualified and competent to testify

regarding the administration of the test. Therefore, we must determine whether the officer

should have been permitted to testify regarding the administration and related

conclusions regarding the HGN test.




                                             7
       {¶21} The two issues presented for review and argument in Beavers’ third

assignment of error are whether the HGN test was relevant under the rules of evidence

and whether expert testimony was necessary to present HGN evidence.

       {¶22} “‘The trial court has broad discretion in the admission and exclusion of

evidence.’” Dean, supra, at ¶29, quoting State v. Hymore, 9 Ohio St.2d 122, 128 (1967).

In general, when admission of evidence is within the discretion of the trial court, an

appellate court shall not disturb evidentiary rulings absent an abuse of that discretion. Id.

       {¶23} “The term ‘abuse of discretion’ denotes a trial court’s ‘“failure to exercise

sound, reasonable, and legal decision-making.”’” State v. King, 11th Dist. Portage No.

2009-P-0040, 2010-Ohio-3254, ¶67, quoting State v. Beecher, 2d Dist. Clark No. 09-CA-

54, 2010-Ohio-1900, quoting Black’s Law Dictionary 11 (8th Ed.2004).

       {¶24} “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R. 401.

       {¶25} In order to prove a violation of R.C. 4511.19(A)(1)(a), the state must

establish that Beavers operated a vehicle within this state while under the influence of

alcohol.

       {¶26} In order to prove a violation of R.C. 4511.19(A)(2), the state must establish

that Beavers, within twenty years of the conduct described in division (A)(2)(a), has

previously been convicted of or pleaded guilty to a violation of R.C. 4511.19(A)(1), and

did both of the following: operated a motor vehicle under the influence of alcohol and

refused to take a chemical test when requested by an officer.




                                             8
       {¶27} In order to prove a violation of R.C. 4511.202, the state must establish that

Beavers operated a motor vehicle on any street, highway, or property open to the public

for vehicular traffic without being in reasonable control of the vehicle.

       {¶28} In accordance with the OVI statute, R.C. 4511.19(D)(4)(b) states:

              In any criminal prosecution or juvenile court proceeding for a violation
              of division (A) or (B) of this section, [or] of a municipal ordinance
              relating to operating a vehicle while under the influence of alcohol *
              * * 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 or juvenile court proceeding.

                     (iii) 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.

       {¶29} Here, the HGN test, as well as all field sobriety tests, are relevant to the

charged crimes because they are indicative of whether Beavers was under the influence

of alcohol, which is an element of the charges.

       {¶30} Beavers’ challenge to the HGN test under this assigned error is a challenge

to the test’s admissibility without expert testimony.             As noted, however, R.C.

4511.19(D)(4)(b) specifically allows for testimony and evidence of the HGN test to be



                                               9
presented—without reference to an expert—where the test was administered in

accordance with the applicable testing standards under NHTSA. It was not error for the

trial court to deny the motion in limine and admit the officer’s testimony regarding the

results of the HGN test without an expert.

       {¶31} Beavers’ third assignment of error has no merit.

       {¶32} Beavers’ second assignment of error states:

                  THE TRIAL COURT ERRED BY DENYING BEAVERS’ MOTION
                  FOR ACQUITTAL AS TO THE CHARGE OF OVI.

       {¶33} The two issues presented for review and argument under this assignment

of error state:

                  [1.] Whether Beavers’ conviction for OVI was supported by sufficient
                  evidence?

                  [2.] Whether Beavers’ conviction for OVI is against the manifest
                  weight of evidence?

       {¶34} Beavers’ second assignment of error challenges both the sufficiency and

the manifest weight of the evidence presented to the trial court. Likewise, we will address

these issues individually.

Manifest Weight of the Evidence

       {¶35} In determining whether the verdict was against the manifest weight of the

evidence, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, 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, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). A judgment of a trial court should be reversed as being against



                                               10
the manifest weight of the evidence “‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’” Id.

       {¶36} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater amount

of credible evidence sustains the issue which is to be established before them. Weight is

not a question of mathematics, but depends on its effect in inducing belief.’” Id. (emphasis

sic), quoting Black’s Law Dictionary 1594 (6th Ed.1990).

       {¶37} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘“thirteenth juror”’ and disagrees with the factfinder’s resolution of the conflicting

testimony.” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

       {¶38} As discussed above, in order to prove a violation of R.C. 4511.19(A)(1)(a),

the state must establish that Beavers operated a vehicle within this state while under the

influence of alcohol. In order to prove a violation of R.C. 4511.19(A)(2), the state must

establish that Beavers, within twenty years of the conduct described in division (A)(2)(a),

has previously been convicted of or pleaded guilty to a violation of R.C. 4511.19(A)(1)

and did both of the following: operated a motor vehicle under the influence of alcohol and

refused to take a chemical test when requested by an officer. Finally, in order to prove a

violation of R.C. 4511.202, the state must establish that Beavers operated a motor vehicle

on any street, highway, or property open to the public for vehicular traffic without being in

reasonable control of the vehicle.




                                               11
       {¶39} In the present matter, there was ample evidence that would allow the trial

court to find that Beavers was guilty of each of the three offenses of which he was

convicted. Both troopers who investigated the incident, along with a lay witness working

at the Dollar General store, testified as to the multitude of different indicia suggesting

intoxication. Each witness identified Beavers as having slurred speech, bloodshot and

glassy eyes, and emanating an odor of alcohol. Pelligrino testified to personally seeing

Beavers operating his truck when trying to get out of the ditch, as well as hearing Beavers

state that he was driving when the truck veered off into the ditch. The troopers cited the

lack of footprints on the passenger side of the vehicle and the discovery of a dry

passenger seat floorboard during their investigation as an explanation for believing that

Beavers was being untruthful in his story about a different driver having crashed the truck

and left the scene to get help. Also, the parties stipulated to the existence of additional

OVI convictions within the previous twenty years.

       {¶40} Given all this evidence, the trial court was entitled to assess the credibility

of the testimony of the three witnesses, as well as the dashcam video and other evidence

submitted by the parties, and ultimately conclude that Beavers was guilty of the crimes

charged. In doing this, the trial court did not clearly lose its way and create such a

manifest miscarriage of justice that we must reverse. Therefore, the verdicts on each of

the three guilty counts were not against the manifest weight of the evidence.

Sufficiency of the Evidence

       {¶41} “A Crim.R. 29 motion challenges the sufficiency of the evidence presented

by the state.” Sullivan, supra, at ¶28, citing State v. Wireman, 4th Dist. Pike No. 01CA662,

2002-Ohio-1526, ¶9, citing State v. Williams, 74 Ohio St.3d 569, 576 (1996).




                                            12
       {¶42} “A challenge to the sufficiency of the evidence raises a question of law as

to whether the prosecution met its burden of production at trial.” State v. Bernard, 11th

Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing Thompkins, supra, at 390

and State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶25. “‘In reviewing

the record for sufficiency, “[t]he 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.”’” Id., quoting State

v. Smith, 80 Ohio St.3d 89, 113 (1997), quoting State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. Where there is insufficient evidence, a conviction will be

vacated. Id. at ¶55, citing State v. Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-

2607, ¶32.

       {¶43} “A finding that a judgment is not against the manifest weight of the evidence

necessarily means the judgment is supported by sufficient evidence.” Sullivan, supra, at

¶28, citing State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32.

       {¶44} Therefore, having determined that none of Beavers’ convictions are against

the manifest weight of the evidence, it follows that they are supported by sufficient

evidence.

       {¶45} Beavers’ second assignment of error is without merit.

       {¶46} The judgment of the Ashtabula County Court, Western District, is affirmed.



THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.




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