City of Columbus v. Beasley
Decision Date | 28 February 2019 |
Docket Number | No. 17AP-629,17AP-629 |
Citation | 2019 Ohio 719,132 N.E.3d 1201 |
Parties | CITY OF COLUMBUS, Plaintiff-Appellee, v. David E. BEASLEY, Defendant-Appellant. |
Court | Ohio Court of Appeals |
On brief: Zach Kline, City Attorney, Lara N. Baker, City Solicitor, Columbus and Melanie R. Tobias, for appellee. Argued: Melanie R. Tobias.
On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam, Columbus and David F. Hanson, Columbus, for appellant. Argued: David F. Hanson.
DECISION
{¶ 1} Defendant-appellant, David E. Beasley, appeals the judgment of the Franklin County Municipal Court finding him guilty of operating a vehicle under the influence ("OVI"), pursuant to a jury verdict, and imposing sentence. For the following reasons, we affirm.
{¶ 2} On September 1, 2015, plaintiff-appellee, City of Columbus, charged appellant with two criminal counts: (1) OVI in violation of Columbus City Code 2133.01(A)(1)(a), and (2) OVI in violation of R.C. 4511.19(A)(2).
{¶ 3} On March 22, 2016, appellant filed a motion to suppress evidence. On April 18, 2016, appellee filed a memorandum contra appellant's motion to suppress. On February 22, 2017, the trial court held a hearing on the motion to suppress. At the suppression hearing, appellee presented testimony from Zachariah West, a police officer with the Columbus Division of Police. The same day, February 22, 2017, the court filed an entry denying appellant's motion to suppress, finding the initial encounter was consensual and Officer West had probable cause to arrest appellant.
{¶ 4} On July 31, 2017, a jury trial commenced. Officer West testified that on September 1, 2015, at approximately 1:44 a.m., he noticed a vehicle parked with its lights off at a closed gas station on Parsons Avenue in Columbus. Officer West approached the passenger side of the vehicle and observed two individuals in the vehicle, later identified as appellant in the driver's seat and Kendra Lett in the passenger seat. Immediately after he initiated a conversation with appellant and Lett, Officer West smelled the odor of an alcoholic beverage and marijuana and observed keys in the vehicle's ignition. Officer West moved to the driver's side of the vehicle and spoke with appellant.
{¶ 5} Officer West smelled a stronger odor of alcohol coming from appellant's breath and observed appellant was "fumbling around" in the vehicle. (July 31, 2017 Tr. at 130.) According to Officer West, appellant claimed he had pulled over into the gas station parking lot because he had lost his music player between the seats of the vehicle. When asked by Officer West whether he had been drinking prior to parking the vehicle, appellant responded affirmatively. Officer West returned to his police cruiser to check the validity of appellant's license and ascertain whether appellant had any outstanding warrants. Because his police cruiser did not have a recording device for purposes of conducting field sobriety tests, Officer West radioed Officer Duane Derwacter of the Columbus Division of Police for assistance.
{¶ 6} While he waited for Officer Derwacter to arrive, Officer West removed appellant from his vehicle, placed him in handcuffs, and seated him in the rear of his police cruiser. When Officer Derwacter arrived, Officer West removed appellant from the cruiser and placed him in clear view of Officer Derwacter's recording equipment. Appellant, however, refused to begin the field sobriety tests. As a result, Officer Derwacter placed him back in handcuffs and returned him to the rear of the police cruiser.
{¶ 7} After placing appellant back in the cruiser, Officer West returned to appellant's vehicle and spoke with Lett, whom he suspected was under the influence of alcohol because of the smell of alcohol on her breath and her slurred speech. Officer West explained the situation to Lett and returned to the cruiser. According to Officer West, appellant was "upset, asking basically why he was being arrested." (July 31, 2017 Tr. at 135.) Officer West informed appellant he needed to perform the field sobriety tests in order to be released. Appellant then agreed to perform the field sobriety tests.
{¶ 8} Officer West removed appellant from the cruiser and placed him in front of Officer Derwacter's recording equipment. Officer West testified appellant showed impairment on each of the three tests he completed. Following the completion of the field sobriety tests, Officer West arrested appellant for OVI and placed him in Officer Derwacter's cruiser. Officer West testified that appellant, while in the cruiser, stated he had not been driving but admitted to being drunk. Officer West offered to administer a breath test to appellant, but appellant refused to submit to a breath test. Following appellant's arrest, Officer West researched appellant's prior traffic record and found appellant had been previously convicted for OVI.
{¶ 9} Appellant testified that on August 31, 2015, he was with Lett when a friend named Ashley Scott contacted him. Appellant and Lett agreed to meet Scott at the gas station on Parsons Avenue in Columbus. Appellant parked his vehicle at the gas station and gave the key to his vehicle to Lett. Appellant testified Scott drove appellant and Lett from the gas station to a bar in Columbus where appellant and Lett had "drinks." (July 31, 2017 Tr. at 204.)
{¶ 10} After consuming drinks, Scott drove appellant and Lett back to appellant's vehicle at the gas station. Lett arranged for someone to give her and appellant a ride from the gas station. While they waited for their ride to arrive, Lett used appellant's key to open the doors to the vehicle. Appellant testified the keys were never put in the vehicle's ignition. Appellant and Lett were sitting in the vehicle and talking when they were approached by a police officer. Appellant testified he initially denied to the officer that he had been driving the vehicle. However, because he wanted to leave and did not want to take a sobriety test, appellant testified he eventually lied, saying he was driving and pulled over to get his music player. Appellant testified he was arrested and charged with "a fourth time DUI." (July 31, 2017 Tr. at 212.)
{¶ 11} On cross-examination, appellant admitted to having three prior convictions for OVI. Appellant stated he intentionally did not park his vehicle in a marked parking space at the gas station before heading to the bar. Appellant testified he lied to the officer about driving and searching for his music player because the officer was "coercing" appellant to take a sobriety test. (July 31, 2017 Tr. at 224.)
{¶ 12} Lett testified she had a child with appellant. On the night in question, appellant gave her the keys to his vehicle at the gas station before they left with Scott. When she and appellant returned to the vehicle, Lett did not place the keys in the ignition but, rather, placed them in a cup holder in the vehicle. On cross-examination, Lett admitted she and appellant became intoxicated from drinking at the bar.
{¶ 13} Scott testified she worked for appellant. At approximately 11:00 p.m. on August 31, 2015, she called appellant and agreed to meet him and Lett at the gas station before going to the bar. She stated they stayed at the bar for about one hour before she drove appellant and Lett back to appellant's vehicle at approximately 1:00 a.m.
{¶ 14} On August 4, 2017, the trial court filed an entry reflecting the jury's verdict finding appellant guilty of both the charged offenses. On the same day, the trial court filed an entry sentencing appellant to 180 days incarceration with 120 days suspended, suspending appellant's driver's license for 3 years, and imposing a 2-year period of community control. On March 14, 2018, the trial court filed a nunc pro tunc entry reflecting that appellee elected to sentence appellant on the charge of OVI in violation of Columbus City Code 2133.01(A)(1)(a) only.
{¶ 15} Appellant appeals and assigns the following four assignments of error for our review:
For ease of discussion, we consider appellant's assignments of error out of order.
{¶ 16} In his third assignment of error, appellant asserts the trial court erred by failing to instruct the jury on the lesser-included offense of having physical control of a vehicle while under the influence ("the offense of physical control").
{¶ 17} Because appellant failed to request an instruction on a lesser-included offense, he has forfeited all but plain error. State v. English , 10th Dist. No. 13AP-88, 2014-Ohio-89, 2014 WL 117396, ¶ 26 ; State v. Riley , 10th Dist. No. 06AP-1091, 2007-Ohio-4409, 2007 WL 2421816, ¶ 4 ; State v. McDowell , 10th Dist. No. 10AP-509, ...
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