[Cite as State v. Tscheiner, 2017-Ohio-7641.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellee                           :   Appellate Case No. 2016-CA-36
                                                      :
 v.                                                   :   Trial Court Case No. TRC-1602115A
                                                      :
 ANGELA M. TSCHEINER                                  :   (Criminal Appeal from Municipal Court)
                                                      :
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                OPINION

                          Rendered on the 15th day of September, 2017.

                                                 ...........

BRITTANY A. DOGGETT, Atty. Reg. No. 0090704, Assistant Fairborn Prosecuting
Attorney, 510 West Main Street, Fairborn, Ohio 45324
       Attorney for Plaintiff-Appellee

BARRY S. GALEN, Atty. Reg. No. 0045540, 22 South St. Clair Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                .............
                                                                                              -2-


WELBAUM, J.

         {¶ 1} In this case, Defendant-Appellant, Angela Tscheiner, appeals from her

convictions and sentences, following a jury trial, of Driving While Under the Influence of

Alcohol or Drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a), and OVI in violation of R.C.

4511.19(A)(2), both first-degree misdemeanors.1 The trial court also found Angela guilty

of Improper Starting/Backing, in violation of R.C. 4511.38, a minor misdemeanor.

         {¶ 2} In support of her appeal, Angela contends that the trial court erred in denying

her motion to suppress evidence. She further contends that she was deprived of a fair

trial due to the trial court’s failure to include a jury instruction that she requested. Finally,

Angela contends that her convictions were against the manifest weight of the evidence.

         {¶ 3} After reviewing the record, we conclude that the assignments of error are

without merit.     The assignment of error relating to denial of a motion to suppress

evidence cannot be considered because Angela failed to file a transcript of the

suppression hearing. Furthermore, the trial court did not err in refusing to instruct the

jury regarding the credibility of police officers. The court provided general instructions

on witness credibility, and courts may not single out particular witnesses or groups of

witnesses when instructing on credibility. Finally, Angela’s convictions for Driving Under

the Influence of Alcohol in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) were

not against the manifest weight of the evidence. Accordingly, the judgment of the trial

court will be affirmed.



                                I. Facts and Course of Proceedings


1   For purposes of convenience, we will refer to Appellant by her first name.
                                                                                          -3-


       {¶ 4} On March 15, 2016, Fairborn Police Officer, John McGuire, was patrolling in

the southwest section of the City of Fairborn. McGuire was in uniform and in a marked

cruiser. Shortly after 7:00 p.m., McGuire and an assisting officer, Officer Osburn, were

dispatched on a call of a possible “hit-skip” concerning a black-colored vehicle leaving the

scene of an accident in the 1700 block of Rice Blvd. According to dispatch, the accident

had just occurred and the black vehicle was leaving the area.

       {¶ 5} As McGuire arrived at the location, he saw a sign that had been struck at

1739 Rice Blvd., and observed the described vehicle, a black sedan, pulling out of a

nearby driveway and proceeding north towards Kauffman Avenue, away from the crash

location. McGuire activated his emergency lights and conducted a traffic stop.

       {¶ 6} When McGuire approached the vehicle, he asked the driver (later identified

as Angela Tscheiner), if she had been involved in a car crash. Angela said yes, and

explained that she had hit a sign. She said that she had just come from a friend’s house

and was going to a nearby Valero gas station to purchase drinks for the rest of the guests.

McGuire asked Angela if she were planning to call the police, and received no response.

       {¶ 7} McGuire explained to Angela that because a hit-skip was an arrestable

offense and she was from out of the county, the department’s policy was to take people

into custody and take them to the jail to be processed. He explained that she would not

be required to post bond for a traffic violation, but would have to be processed at the jail.

       {¶ 8} When Angela was in her car, McGuire did not observe any indicators that

Angela had been drinking.      Her color and eyes were normal, and her clothes were

orderly. However, when Angela got out of the car, McGuire detected a moderate smell

of alcohol coming from her person. He also observed her walk for about 30 to 40 feet,
                                                                                          -4-


and she was swaying back and forth and having a difficult time walking a straight line.

       {¶ 9} From where he initiated the stop, McGuire was able to see the speed limit

sign that had been struck. Rather than standing erect, the sign was knocked over and

was completely flipped. After seeing Angela swaying and smelling the alcohol, McGuire

asked if she had anything to drink that day. Angela explained that she had three drinks

at a friend’s house. In view of these factors, McGuire decided to administer field sobriety

tests, and asked Angela if she would take the tests. She consented to do so.

       {¶ 10} The first test was the horizontal nystagmus test (“HGN”), during which

McGuire observed six out of six indicators of being under the influence of alcohol. When

McGuire attempted to administer the next test, the one-legged stand, Angela said she

had problems with her knees that would prevent her from standing on one leg. Due to

concerns over Angela’s safety, McGuire decided not to conduct that test.

       {¶ 11} The third test was the walk-and-turn test. Angela told McGuire that she

was not certain she could do that test, but would try. Where the test was conducted, the

pavement was flat and straight. During this test, Angela exhibited five of nine clues; a

finding of two clues indicates that a person is under the influence of alcohol.         The

observed clues were as follows: (1) Angela started to do the test before McGuire finished

the instructions; (2) she had to use her arms to steady herself and maintain balance while

in the starting position; (3) she was unable to step in a heel to toe manner; (4) she had to

stop to steady herself; and (5) she had to use her arms to steady herself as she walked.

       {¶ 12} Based on the indicators shown in these tests, Angela’s admission of having

had some drinks, the driving behavior in running into the sign, the fact that Angela left the

scene, and the odor of alcohol, McGuire decided to arrest Angela for OVI. He then
                                                                                           -5-


informed her of his decision to arrest her, handcuffed her, and put her into the back seat

of his cruiser. After completing an inventory of the vehicle, McGuire checked Angela’s

driving record and discovered that she had two fairly recent OVI convictions.             He,

therefore, was required to remove the vehicle’s license plates and place a police hold on

the vehicle.

       {¶ 13} While the field sobriety tests were being administered, Angela stated

multiple times that she had to use the restroom. McGuire told her that she would be able

to use the restroom once they got to the jail. After they arrived at the jail, a jailor patted

Angela down and searched her. McGuire then read Angela a copy of Bureau of Motor

Vehicles (“BMV”) form 2255, which is a state BMV form that has to be completed for OVI

arrests. The form outlines the charge, the possibility of increased penalties under certain

conditions, and the fact that refusal to submit to a chemical test would result in license

suspension.    After going through the form, McGuire asked Angela to submit to a

breathalyzer test, but she refused.     She confirmed that she was refusing, and also

refused to sign the BMV form.

       {¶ 14} Several minutes later, McGuire was informed by a jailor that Angela had

changed her mind and did want to submit to a test. He refused to allow her to take a

test, because she had already refused. In addition, McGuire’s shift had just begun, the

beginning of his shift was the busiest time, and he had other obligations to which he had

to attend.

       {¶ 15} In addition to the violations noted above, Angela was charged with a

violation of R.C. 4549.02 (Failure to Stop After an Accident), also a first-degree

misdemeanor. On March 18, 2016, defense counsel entered an appearance and also
                                                                                       -6-


filed a plea of not guilty on Angela’s behalf, requests for discovery and a pretrial

conference, and a waiver of speedy trial rights. On July 5, 2016, Angela filed a motion

to suppress evidence, which was overruled in August 2016, following a hearing.

      {¶ 16} Subsequently, on October 5, 2016, the court held a jury trial. The State

presented testimony from Officers McGuire and Osburn. Officer McGuire testified as

outlined above. Officer Osburn testified about photographs he had taken and damage

to Angela’s bumper, which was minor, consisting of a scratch that was one to two inches

long, with some paint chipped off. While Osburn did not speak with Angela, he observed

her and indicated her speech was slurred and her balance appeared uneasy. He also

noted a moderate odor of alcohol.

      {¶ 17} Angela presented testimony from four witnesses who had contact with her

shortly before the traffic stop. Additionally, Angela testified on her own behalf. She

indicated that she had two beers that day during lunch, which lasted from approximately

noon until 2:00 p.m. She then cleaned someone’s house for about three hours, during

which time she did not consume alcohol. Between 6:00 and 6:30 p.m., she arrived at an

address on Rice Blvd. where there is a get-together every week of card players.

Although Angela lived in Cincinnati, Ohio, she went to this get-together two to four times

a month, and turned around in the same driveway every time.            On this particular

occasion, she misjudged the speed limit sign and hit it. She then pulled in the driveway

and went in the house.

      {¶ 18} While in the house, Angela talked to some of the people there, and was

under the impression that she had 24 hours to report the incident. Angela then decided

to go to the store to get some diet drinks for the party. Because she did not know how
                                                                                           -7-


long the police would take to arrive, she decided to go to the store first and call the police

after she got back. As she pulled out of the driveway, she ran into Larry West, who was

arriving for the card game. She talked to him briefly, and as their conversation ended,

the police arrived and stopped her.

       {¶ 19} Angela told the officer immediately that she had hit the sign. She told the

officer that she had three beers that day. However, she stated at trial that she actually

only drank two of them because the man whose house she was cleaning arrived at the

restaurant before she had time to drink her third beer. She then left the restaurant and

followed that man to his house, as she did not know where he lived.

       {¶ 20} Angela testified that she was not impaired by those two beers.             She

indicated that her physical issues, including her knee problems, made it difficult to stand

still in one spot. She stated that she performed the walk-and-turn test despite her knee

problems because she had to use the bathroom and wanted to get the test over with in a

hurry. She also said that she initially refused the breathalyzer test because she was so

upset and could not believe what was happening. No more than five minutes later, she

begged Officer McGuire and another person at the jail to let her take the test, because

she wanted to prove that she was innocent and was not impaired or drunk. Although

she begged them repeatedly, they refused to allow her to take the test.

       {¶ 21} The four witnesses testifying on Angela’s behalf were at the house for card

games.    They all indicated that they saw no signs of intoxication and would have

prevented Angela from driving if they had seen any signs of a problem.                 These

individuals were friends of Angela, and had known her many years.

       {¶ 22} In addition to the above evidence, the State submitted certified copies of
                                                                                          -8-


Angela’s prior OVI convictions, which occurred in 2012 and 2015. After the defense

rested, the trial court granted a defense motion for acquittal on the charge of Failure to

Stop After an Accident. The court concluded that the charge did not fit the circumstances

of the incident.

       {¶ 23} After hearing the evidence, the jury found Angela guilty of both OVI charges,

and the trial court found her guilty of the Improper Starting/Backing charge. The court

then sentenced Angela, among other things, to 365 days in jail, with 274 days suspended

on condition of no future violations within the next five years, an $850 fine, an alcohol and

drug assessment, an alcohol monitor for 60 days following completion of her jail sentence,

and a four-year driver’s license suspension.          Angela timely appealed from her

convictions and sentences.



            II. Did the Trial Court Err in Denying the Motion to Suppress Evidence?

       {¶ 24} Angela’s First Assignment of Error states that:

              Appellant’s Arrest Flowed from an Illegal Detention, Search and

       Seizure of Her Person and Evidence Concerning It Should Have Been

       Suppressed.

       {¶ 25} In support of this assignment of error, Angela first argues that Officer

McGuire was not entitled to arrest her for a minor misdemeanor. She then contends that

McGuire falsely relied on R.C. 4549.02 to seize and arrest her for a crime she did not

commit. The basis for this argument is the trial court’s decision to grant Angela’s Crim.R.

29(A) motion for acquittal on the R.C. 4549.02 charge. According to Angela, the unlawful

seizure permitted McGuire to remove her from her car, discover evidence of her alleged
                                                                                            -9-


intoxication, and subject her to field sobriety testing, which led to her arrest for OVI.

       {¶ 26} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the

trial court's findings of fact if they are supported by competent, credible evidence.”

(Citation omitted.) Id. “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” (Citation omitted.) Id.

       {¶ 27} Both Article I, Section 14 of the Ohio Constitution and the Fourth

Amendment to the United States Constitution prohibit “unreasonable searches and

seizures.” State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). However, “a

traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion

that a motorist has committed, is committing, or is about to commit a crime.” (Citations

omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7.

In viewing the propriety of investigative stops, courts consider the “ ‘totality of the

surrounding circumstances.’ ” Id., quoting State v. Freeman, 64 Ohio St.2d 291, 414

N.E.2d 1044 (1980), paragraph one of the syllabus.

       {¶ 28} “[A] police officer who lacks probable cause but whose observations lead

him reasonably to suspect that a particular person's behavior is criminal may detain the

person briefly to investigate the circumstances that provoked the suspicion.” (Citation

omitted.) Mays at ¶ 13.      However, “the stop and inquiry must be ‘reasonably related in
                                                                                          -10-

scope to the justification for their initiation.’ ” United States v. Brignoni-Ponce, 422 U.S.

873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), quoting Terry v. Ohio, 392 U.S. 1, 29,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

       {¶ 29} Even if an individual is lawfully stopped, that does “not necessarily give the

officer the right to subject [the person] to the further intrusion represented by the

administration of field sobriety tests; the officer had to have a reasonable, articulable

suspicion that [the defendant] was driving the vehicle while under the influence in order

to justify the administration of field sobriety tests.”     (Citations omitted.)    State v.

Santiago, 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 11 (2d Dist.).

These situations are “ ‘very fact-intensive.’ ”        (Citation omitted.)    Id. at ¶ 13.

Furthermore, the “circumstances are to be viewed through the eyes of the reasonable

and prudent police officer on the scene who must react to events as they unfold.”

(Citations omitted.) State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

       {¶ 30} In overruling Angela’s motion to suppress, the trial court concluded that

Officer McGuire had a reasonable, articulable suspicion justifying administration of

sobriety tests. The court attached substantial weight to the fact that the stop sign had

been damaged to the extent that it was nearly flat with the ground, and said it would not

have found reasonable suspicion absent that fact. The court’s decision did not consider

arguments pertaining to the R.C. 4549.02 violation, and we have no idea whether this

point was mentioned during the suppression hearing, as the transcript of that hearing has

not been filed. This point was not specifically raised in the motion to suppress that

Angela filed.

       {¶ 31} Because the transcript has not been filed, we cannot consider the merits of
                                                                                        -11-

Angela’s argument. See, e.g., State v. Spencer, 3d Dist. Shelby No. 17-07-05, 2008-

Ohio-164, ¶ 8 (noting that appellant has the burden under App.R. 9(B) of transmitting

parts of the record, including a suppression hearing transcript, that support his or her

argument; in the absence of a transcript, such arguments cannot be considered).

Accord State v. Pearson, 2d Dist. Montgomery No. 21203, 2006-Ohio-5585, ¶ 20

(refusing to consider suppression argument where hearing transcript was not filed).

       {¶ 32} Although we cannot consider the issue, we do note that Angela has not

challenged the trial court’s finding about the fact that the sign was flattened. The basis

of Angela’s argument is that the officer lacked a basis for removing her from the car

because the charge upon which the officer relied was later dismissed. In particular,

Angela contends that there is a notable distinction between R.C. 4549.02, which pertains

to accidents occurring on public streets, and R.C. 4549.03, which relates to damage to

property that is attached to real property adjacent to a public road.

       {¶ 33} As noted, we cannot consider this issue. However, the Supreme Court of

the United States did recently hold that reasonable suspicion justifying a stop includes

reasonable factual mistakes as well as reasonable mistakes of law. Heien v. North

Carolina, ___ U.S. ___, 135 S.Ct. 530, 540, 190 L.Ed.2d 475 (2014).

       {¶ 34} Based on the preceding discussion, the First Assignment of Error is

overruled.



       III. Did the Trial Court Err in Refusing to Allow a Jury Instruction on Credibility?

       {¶ 35} Angela’s Second Assignment of Error states that:

              The Trial Court Prejudiced Appellant and Deprived Her of a Fair Trial
                                                                                          -12-


       in Refusing to Provide Jurors with a Requested Jury Instruction.

       {¶ 36} Under this assignment of error, Angela contends that the trial court should

have allowed an instruction that she proposed, which stated that the testimony of police

officers “should be given no different weight than any other ordinary person.” Transcript

of Proceedings, p. 192. According to Angela, this instruction is necessary because jurors

may improperly credit the testimony of police officers due to the officers’ status. Angela

argues that such an instruction would have been particularly important in this case, where

the officers’ testimony was contradicted by several witnesses, who saw no evidence that

Angela was intoxicated.

       {¶ 37} The trial court declined the requested instruction, and gave the following

instruction on credibility:

               You are the sole judges of the facts, the credibility of the witnesses,

       and the weight of the evidence. To weigh the evidence, you must consider

       the credibility of the witnesses.    You will apply the test of truthfulness,

       which you apply in your daily lives. These tests include the appearance of

       each witness upon the stand, the manner of testifying, the reasonableness

       of the testimony, the opportunity that the witness had to see, hear, and know

       the things concerning which he or she testified, the accuracy of memory,

       frankness or lack of it, intelligence, interest, and bias, if any, together with

       all of [sic] facts and circumstances surrounding the testimony. Applying

       these tests[,] you will assign to the testimony of each witness such weight

       as you deem proper.

               You are not required to believe the testimony of any witness simply
                                                                                          -13-


       because he or she was under oath. You may believe or disbelieve all or

       any part of the testimony of any witness. It is your province to determine

       what testimony is worthy of belief and what testimony is not worthy of belief.

Transcript of Proceedings, pp. 208-209.

       {¶ 38} The Supreme Court of Ohio has held that “it is prejudicial error in a criminal

case to refuse to administer a requested charge which is pertinent to the case, states the

law correctly, and is not covered by the general charge.” (Citation omitted.) State v.

Scott, 26 Ohio St.3d 92, 101, 497 N.E.2d 55 (1986).

       {¶ 39} As support for her argument, Angela cites State v. Broadus, 14 Ohio App.3d

443, 472 N.E.2d 50 (10th Dist.1984), which found error harmless, “even though the trial

court should give an instruction as requested to the effect that a police officer is not by

virtue of that status deemed to be more credible than any other witness but, instead, his

credibility and the weight to be given the testimony is to be judged upon the same

standard as other witnesses.” Id. at 445.       However, Broadus and other cases holding

that a special instruction on police credibility should be given were abrogated in State v.

Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980. In Group, the Supreme

Court of Ohio stressed that such an instruction “runs afoul of the principle” it had imparted

in previous cases, i.e., that “a trial judge may not single out a particular witness or group

of witnesses to discuss their credibility, since such discussion exerts an undue influence

on the jury.” (Citations omitted.) Id. at ¶ 118.

       {¶ 40} In addition, the court commented that “[t]he subject of witness credibility

was covered in the general jury charge. The court instructed the jurors that they were

the ‘sole judges of * * * the credibility of the witnesses and the weight of the evidence’ and
                                                                                                -14-


that they must consider ‘the witness’ * * * interest and bias’ in judging credibility. Where

a trial court gives instructions such as these, which apply equally to all witnesses, there

is no need for any special comment or instruction regarding police credibility.” (Citations

omitted.) Id. at ¶ 117.

       {¶ 41} In the case before us, the trial court gave a general instruction on credibility

that applied to all witnesses. This instruction is similar to the one approved in Group,

and the trial court did not err in refusing to insert a specific instruction on officer credibility.

Accordingly, the Second Assignment of Error is overruled.



              IV. Was the Judgment Against the Manifest Weight of the Evidence?

       {¶ 42} Angela’s Third Assignment of Error states that:

               Appellant’s Conviction Was Against the Manifest Weight of the

       Evidence.

       {¶ 43} According to Angela, her convictions were against the manifest weight of

the evidence because the evidence of intoxication was very conflicting, as well as

uncertain and unreliable. She also argues that the police had an interest in exaggerating

or fabricating evidence of her intoxication because her vehicle was subject to forfeiture

upon conviction.

       {¶ 44} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. In assessing manifest weight challenges, an appellate

court reviews “ ‘the entire record, weighs the evidence and all reasonable inferences,
                                                                                        -15-


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. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

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

678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

       {¶ 45} We have also emphasized that “[b]ecause the factfinder * * * has the

opportunity to see and hear the witnesses, the cautious exercise of the discretionary

power of a court of appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the factfinder's

determinations of credibility. The decision whether, and to what extent, to credit the

testimony of particular witnesses is within the peculiar competence of the factfinder, who

has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, *4 (Aug. 22, 1997). Accord State v. Flores-Lopez, 2017-Ohio-690,

___ N.E.3d ___, ¶ 50 (2d Dist.).

       {¶ 46} After reviewing the record, we conclude that this is not the exceptional case

warranting reversal on manifest weight grounds.          Admittedly, conflicts existed in

witnesses’ testimony, but that is nothing particularly unusual. The testimony of the two

police officers, if believed by the jury, was more than sufficient to establish beyond a

reasonable doubt that Angela was operating her vehicle “under the influence of alcohol *

* *.” R.C. 4511.19(A)(1)(a).    Furthermore, the fact of the two prior OVI convictions

required for a violation of R.C. 4511.19(A)(2) was not disputed.
                                                                                           -16-


         {¶ 47} “Generally, each ‘drunken driving’ case is to be decided on its own particular

and peculiar facts.” Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224 N.E.2d 343 (1967).

Accord State v. Rowland, 2d Dist. Miami No. 89-CA-57, 1991 WL 1676, *3 (Jan. 11,

1991).

         {¶ 48} As was noted, Officer McGuire detected a moderate smell of alcohol, and

observed Angela swaying and having difficulty walking a straight line. She also admitted

telling him that she had three drinks earlier, although her testimony at trial was that she

did not actually drink the third drink; she ordered it and left the restaurant before drinking

it. Angela did not tell McGuire that at the time, however, nor did she give a time frame

within which she had the drinks. Transcript of Proceedings, pp. 75-76, 105, and 171. In

addition, McGuire testified about Angela’s performance on the HGN and walk-and-turn

tests, which revealed numerous indicators that she was under the influence of alcohol.

There was no indication that McGuire incorrectly performed the field sobriety tests.

Although Angela claims her performance on the walk-and-turn was hampered by her knee

problems and weight, she indicated to McGuire at the time that she did not have any

problems that would affect the HGN test. Id. at pp. 77-78. As noted, she exhibited all

six clues on the HGN test.

         {¶ 49} And finally, Officer Osburn’s testimony supports the conclusion that Angela

was operating her motor vehicle while under the influence of alcohol. As noted, “[t]the

jury was in the best position to assess the credibility of the witnesses’ testimony and to

resolve conflicts in the evidence.” State v. Hodge, 2d Dist. Greene No. 2010-CA-11,

2011-Ohio-5023, ¶ 22.

         {¶ 50} Furthermore, the record does not support Angela’s argument that the police
                                                                                       -17-


fabricated evidence to justify forfeiture of her car. R.C. 4511.19(G)(1)(c)(v) requires

courts to order forfeiture of vehicles where an offender has been convicted of two

violations of R.C. 4511.19(A) within ten years of the current offense. Assuming for

purposes of argument that Officer McGuire knew this, Angela points to no evidence in the

record indicating that McGuire was aware of her prior OVI convictions before stopping

her. Instead, the evidence was to the contrary.

      {¶ 51} McGuire was dispatched to the scene upon a report of a black vehicle that

had been involved in a hit-skip. He was also told the vehicle was leaving the area.

When McGuire arrived at the location, he saw the described vehicle pulling out of a

driveway and continuing north, away from the location of the crash. From all accounts

of the matter, including Angela’s testimony, the traffic stop and approach to Angela’s car

occurred nearly simultaneously. In other words, there was no evidence that McGuire

had time to obtain information about Angela before he approached her car. Additionally,

there was no indication that the caller to dispatch had provided a license plate number or

other identifying information that would have allowed McGuire to discover information

about Angela’s prior convictions.

      {¶ 52} McGuire indicated that when he spoke with Angela while she was seated in

her car, he was merely investigating the traffic accident and had no indication that she

was intoxicated. At that point, because the offense was one for which an individual could

be arrested, McGuire intended to take Angela to the jail, pursuant to departmental policy

regarding out-of-county residents. He did not even intend to tow the car; in fact, when

Angela got out of the car, McGuire was going to walk with her back to the house where

she had been so that her friend could pick up the car, thus avoiding a tow. Transcript of
                                                                                      -18-


Proceedings, p. 76.

       {¶ 53} However, once Angela stepped out of the car, McGuire noticed the odor of

alcohol and observed that Angela was swaying and having difficulty walking a straight

line. At that point, he decided to inquire further about whether she had been drinking.

Upon hearing her response about drinking, together with the other observations, McGuire

decided to ask if Angela would be willing to submit to field sobriety tests.

       {¶ 54} Only after Angela failed the sobriety tests and was arrested did McGuire

check her driving record and discover that she had two prior OVI convictions. In fact,

McGuire did not even check Angela’s driving record until after the officers had completed

inventorying her car. As a result, there is simply no indication that the police were

engaged in some type of scheme to deprive Angela of her property.

       {¶ 55} Based on the preceding discussion, the Third Assignment of Error is without

merit and is overruled.



                                       V. Conclusion

       {¶ 56} All of Angela’s assignments of error having been overruled, the judgment of

the trial court is affirmed.



                                      .............



HALL, P.J. and DONOVAN, J., concur.
                      -19-




Copies mailed to:

Brittany A. Doggett
Barry S. Galen
Hon. Beth Cappelli
