[Cite as State v. Voorhis, 2011-Ohio-2111.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. Julie A. Edwards, J.
                                                  Hon. William B. Hoffman, J.
-vs-
                                                  Case No. 10CAC020020
VONNIE VOORHIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware Municipal Court,
                                               Case No. 09TRC09585


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 29, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


PETER B. RUFFING                               ROBERT M. OWENS
Justice Center                                 46 North Sandusky Street, Suite 202
70 North Union Street                          Delware, Ohio 43015
Delware, Ohio 43015
Delaware County, Case No. 10CAC020020                                                 2

Hoffman, J.


       {¶1}   This matter comes on for consideration upon this Court’s granting of

Appellant Vonnie Voorhis’ motion for reconsideration of this Court December 1, 2010

Judgment Entry affirming her conviction entered by the Delaware Municipal Court on

one count of operating a vehicle intoxicated. Appellee is the State of Ohio.

                                   STATEMENT OF THE CASE

       {¶2}   Appellant was stopped on suspicion of operating a vehicle intoxicated, in

violation of R.C. 4511.19. After a brief conversation with the police officer, Appellant

requested to speak with counsel. The officer told Appellant she would be afforded an

opportunity to speak with counsel. Appellant consented to a chemical breath test at the

scene of the traffic stop.

       {¶3}   At the police station, Appellant requested to speak with counsel numerous

times, and was held in custody for over an hour. Appellant was not given an opportunity

to speak with counsel.       Appellant refused to submit to a chemical BAC test at the

station.

       {¶4}   Following a jury trial, Appellant was convicted of the OMVI charge, and

sentenced accordingly.

       {¶5}   Appellant now appeals, assigning as error:

       {¶6}   “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

REFUSING TO INSTRUCT THE JURY ON DEFENDANT’S RIGHT TO CONFER WITH

COUNSEL.

       {¶7}   “II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

PLACING A ‘GAG’ ORDER ON DEFENSE COUNSEL, FORBIDDING COUNSEL
Delaware County, Case No. 10CAC020020                                                     3


FROM ARGUING TO THE JURY THAT DEFENDANT’S REFUSAL TO TAKE A

CHEMICAL BREATH TEST COULD BE RELATED TO THE VIOLATION OF HER

RIGHT TO COUNSEL.”

                                                 I.

       {¶8}   In the first assignment of error, Appellant maintains the trial court erred in

refusing to instruct the jury on Appellant’s right to confer with counsel and its impact on

Appellant’s refusal. More specifically, Appellant asked the court at trial:

       {¶9}   “Your Honor, I understand the Court’s position with regard to that not

attaching to the Exclusionary rule for purposes of keeping out the fact that there was a

refusal. However, I think the evidence does rise to the level where it’s appropriate to

have an adjustment to jury instructions reflective of the issue that a defendant has a

right to request counsel.

       {¶10} “So, on that basis, Your Honor, we would ask both that the instruction with

regard to the refusal be removed. And, moreover, Your Honor, that an instruction be

put in, specifically, we would ask for something essentially mirroring Revised Code

2935.20.”

       {¶11} Tr. at 154.

       {¶12} The giving of jury instructions is within the sound discretion of the trial

court, and will not be disturbed on appeal absent an abuse of discretion. State v.

Martens (1993), 90 Ohio App.3d 338. Jury instructions must be reviewed as a whole.

State v. Coleman (1988), 37 Ohio St.3d 286.

       {¶13} Ohio Criminal Rule 30(A) governs jury instructions, and reads:
Delaware County, Case No. 10CAC020020                                                     4


       {¶14} “At the close of the evidence or at such earlier time during the trial as the

court reasonably directs, any party may file written requests that the court instruct the

jury on the law as set forth in the requests. Copies shall be furnished to all other parties

at the time of making the requests. The court shall inform counsel of its proposed action

on the requests prior to counsel's arguments to the jury and shall give the jury complete

instructions after the arguments are completed. The court also may give some or all of

its instructions to the jury prior to counsel's arguments. The court shall reduce its final

instructions to writing or make an audio, electronic, or other recording of those

instructions, provide at least one written copy or recording of those instructions to the

jury for use during deliberations, and preserve those instructions for the record.

(Emphasis added.)

       {¶15} “On appeal, a party may not assign as error the giving or the failure to give

any instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection. Opportunity

shall be given to make the objection out of the hearing of the jury.”

       {¶16} Ohio law provides a defendant has a statutory right to counsel after being

detained by police beyond the right to counsel guaranteed by the State and Federal

Constitutions.   State v. Mason (1994), 99 Ohio App.3d 165.             The right applies to

misdemeanor offenses involving the potential imposition of a jail sentence. Garfield

Heights v. Brewer (1984), 17 Ohio App.3d 216.

       {¶17} R.C. 2935.20 provides:

       {¶18} “2935.20 Right of one in custody to be visited by attorney
Delaware County, Case No. 10CAC020020                                                     5


       {¶19} “After the arrest, detention, or any other taking into custody of a person,

with or without a warrant, such person shall be permitted forthwith facilities to

communicate with an attorney at law of his choice who is entitled to practice in the

courts of this state, or to communicate with any other person of his choice for the

purpose of obtaining counsel. Such communication may be made by a reasonable

number of telephone calls or in any other reasonable manner. Such person shall have a

right to be visited immediately by any attorney at law so obtained who is entitled to

practice in the courts of this state, and to consult with him privately. No officer or any

other agent of this state shall prevent, attempt to prevent, or advise such person against

the communication, visit, or consultation provided for by this section.

       {¶20} “Whoever violates this section shall be fined not less than twenty-five nor

more than one hundred dollars or imprisoned not more than thirty days, or both.”

       {¶21} Appellant did not file written requests or specific instructions with the trial

court relative to the jury instructions. However, the following exchange occurred on the

record:

       {¶22} “And I don’t want you to be arguing in your closing that there was any sort

of violation of law in this case, because I don’t think that’s proper. And I think that that

can be misleading to the jury in this case.

       {¶23} “So, you can certainly argue that she asked to consult with an attorney

and the deputy surely heard that, if you want to argue that, you can say that. And that

she never had that opportunity and that’s why she didn’t take the test.

       {¶24} “But to say that the deputy or police officer violated the law, I don’t want

you to say that. And I will reprimand you if that comes out again in your argument.
Delaware County, Case No. 10CAC020020                                                      6


        {¶25} “So, those are my thoughts on that issue.

        {¶26} “Anything else?

        {¶27} “Mr. Owens: Thank you, Your Honor. And I appreciate that.

        {¶28} “Just for purposes of making a record, I do believe there is some

differentiation in this case. There was certainly almost a full hour elapsed in terms of

the ability to have a proper BAC test.

        {¶29} “What we see from the video, is that there was a phone immediately there

and available for the Defendant to use.

        {¶30} “That the police officers involved, in fact, had considerable time while they

were doing other paperwork and other things where they could have made that

available.

        {¶31} “And, so, this isn’t something that would have hindered their ability to have

the test done in an appropriate timeframe in any regard whatsoever, but that they

certainly could have followed Ohio Law.

        {¶32} “And I appreciate the Court’s ruling on that, and certainly I am not going

to, you know, cross that line in closing argument.

        {¶33} “The Court has been very clear on that and I’m going to respect that

ruling. I respectfully disagree with it, but just to make a record on that issue just for the

record.

        {¶34} “The Court: I understand that.      And I don’t have a problem with you

pointing out in your argument where the phone was and the timing of things, that’s all

fine.
Delaware County, Case No. 10CAC020020                                                    7


       {¶35} “But we’re not - - either party cannot say that there was a violation of the

law or that the police did something wrong by the way that they handled it. You can

certainly say again, she was trying to call a lawyer and that’s why she did this.

       {¶36} “But it’s about her conduct, not about theirs, they’re not on trial here and

I’m not going to have you suggest to the jury that these police officers ought to be

punished in some way for what they did. It’s not about them. I don’t want the jury to go

off in that direction. Okay.

       {¶37} “All right. Anything else?

       {¶38} “Mr. Ruffing: Thank you, Your Honor.”

       {¶39} Tr. at 156-159.

       {¶40} While the trial court did not give an instruction as Appellant orally

requested, Appellant was permitted to argue the police had not provided her an

opportunity to confer with counsel, despite her request and their earlier representation

she would be afforded said opportunity.              The trial court merely prohibited the

characterization of the officers’ actions as a “violation” of the statute. Accordingly, the

trial court did not abuse its discretion in the jury instruction given.

       {¶41} Appellant’s first assignment of error is overruled.

                                               II.

       {¶42} In the second assignment of error, Appellant maintains the trial court erred

in refusing to allow Appellant’s counsel to argue to the jury Appellant’s refusal to take

the chemical breath test was related to the violation of her right to counsel.

       {¶43} When the police violate the statutory right to counsel under R.C. 2935.20

in an OVI case, the administrative consequences from refusing to take the chemical test
Delaware County, Case No. 10CAC020020                                                     8

still apply. Dobbins v. Ohio Bureau of Motor Vehicles (1996), 75 Ohio St.3d 533, 540;

State v. Dean 2001-Ohio-4339.

       {¶44} Upon review of the exchange which occurred on the record at trial set

forth above and in accordance with our discussion of Appellant’s first assignment of

error, the trial court did not err in refusing to allow Appellant to present argument to the

jury regarding her repeated requests for counsel, the police officers’ actions and

representations thereto, and the effect the denial had on her decision not to take the

test. Accordingly, Appellant’s second assignment of error is overruled.

       {¶45} Appellant’s conviction entered by the Delaware Municipal Court is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur
                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ Julie A. Edwards___________________
                                             HON. JULIE A. EDWARDS
Delaware County, Case No. 10CAC020020                                            9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
VONNIE VOORHIS                             :
                                           :
       Defendant-Appellant                 :         Case No. 10CAC020020


       For the reasons stated in our accompanying Opinion, Appellant’s conviction

entered by the Delaware Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
