State v. Leasure, 15CA3484.

• Decision Date: 16 December 2015
• Docket Number: No. 15CA3484.,15CA3484.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Christopher LEASURE, Defendant–Appellant.
• Court: Ohio Court of Appeals

43 N.E.3d 477

STATE of Ohio, Plaintiff–Appellee

v.Christopher LEASURE, Defendant–Appellant.

No. 15CA3484.

Court of Appeals of Ohio, Fourth District, Ross County.

Dec. 16, 2015.

James R. Kingsley, Circleville, OH, for appellant.

Sherri K. Rutherford, City of Chillicothe Law Director, and Pamela C. Wells, City of Chillicothe Assistant Law Director, Chillicothe, OH, for appellee.

Opinion

HOOVER

, P.J.

{¶ 1} Defendant-appellant, Christopher Leasure (“Leasure”), appeals his conviction in the Chillicothe Municipal Court for operating a motor vehicle under the influence (“OVI”) with a prior conviction and refusal in violation of R.C. 4511.19(A)(2)

.¹ After a careful review of the record and relevant case law, we affirm Leasure's conviction.

I. Facts and Procedural Posture

{¶ 2} During the early morning hours of May 18, 2014, Sergeant Heath Ward of the Ohio State Highway Patrol came upon a vehicle in a ditch on Kingston–Adelphi Road in Ross County, Ohio. Leasure was sitting in the driver's seat of the vehicle; and no one else was located in or around the vehicle. After making observations suggesting Leasure may have been under the influence of alcohol, Sergeant Ward decided to administer several field sobriety tests. Leasure performed poorly on each test. Sergeant Ward then placed Leasure under arrest for an OVI violation, read Leasure his Miranda rights, and advised Leasure of the consequences of submitting to, or refusing to take, a chemical test to determine his alcohol concentration. Leasure refused to submit to a breath test. Leasure was cited for OVI with a prior conviction and refusal in violation of R.C. 4511.19(A)(2)

, failure to control in violation of R.C. 4511.202, and failure to wear a driver's seat belt in violation of R.C. 4513.263(B)(1). R.C. 4511.19(A)(2) reads as follows:

No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:

(a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them;

(b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code

, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person's refusal or submission to the test or tests, refuse to submit to the test or tests.

{¶ 3} Prior to trial, Leasure filed a multi-branch motion with the trial court entitled “MOTIONS”. (OP 21). Through the motion, Leasure: (1) moved the trial court, in limine, to exclude any reference of his refusal to submit to the breath test at trial; (2) argued that R.C. 4511.19(A)(2)

violated, inter alia, his Fifth Amendment rights and was thus unconstitutional; and (3) moved the trial court, “in the alternative”, to exclude reference to his prior OVI convictions at trial, or to bifurcate the OVI element and try it separately from the refusal element of R.C. 4511.19(A)(2). The trial court overruled the motion and the matter proceeded to trial.

{¶ 4} On the day of and immediately prior to trial, Leasure filed a proposed jury instruction seeking instruction on “the defense of mischarge”. Specifically, Leasure argued that the jury should be informed of the difference between an OVI offense and the offense of having physical control of a vehicle while under the influence, and decide whether the State erred in pursuing the OVI charge. The trial court denied the proposed jury instruction.

{¶ 5} Sergeant Ward testified for the State. Sergeant Ward indicated that he is a 14–year veteran with the Ohio State Highway Patrol. He also testified to the extensive training and experience he has in dealing with impaired drivers; he estimated that he has participated in approximately 1,500 OVI arrests during his career.

{¶ 6} Sergeant Ward testified that on May 18, 2014, he was dispatched to Kingston–Adelphi Road on a call that a vehicle was in the ditch. Approximately 4:30 a.m., Sergeant Ward arrived at the scene. According to Sergeant Ward, the conditions were foggy. As Sergeant Ward approached the vehicle, he found Leasure located inside the vehicle, sitting in the driver's seat, with his head slumped over onto the driver's side window. Sergeant Ward indicated that the vehicle was partially in the ditch and partially in the westbound lane of the roadway. Sergeant Ward also testified that the vehicle could have been struck if someone would have come by in the lane of travel. No one else was located in or around the vehicle. The vehicle was running with its headlights on and was placed in park. Sergeant Ward testified that Leasure took 10 to 15 seconds to wake up, and that when he asked Leasure for his license, Leasure handed him a cell phone. Leasure stumbled when exiting the vehicle; and Sergeant Ward had to grab Leasure's arm to prevent him from falling into the ditch. Based on his observations, Sergeant Ward believed that Leasure was trying to turn around in the roadway but inadvertently backed up too far into the muddy ditch. Consequently, the car was unable to be moved by Leasure. Sergeant Ward did not observe any obvious damage to the vehicle.

{¶ 7} Notably, Sergeant Ward testified that he made several observations suggesting Leasure may have been under the influence of alcohol. Specifically, Leasure had slurred speech, a blank stare, red, bloodshot and glassy eyes, and a red and flushed face. Sergeant Ward also smelled alcohol on Leasure's breath and observed that Leasure had poor balance and had difficulty standing. Based on these observations, Sergeant Ward decided to administer field sobriety tests. With regards to the Horizontal Gaze Nystagmus

(“HGN”) field sobriety test, Sergeant Ward testified that Leasure exhibited six clues and that four clues indicate impairment. On the walk and turn field sobriety test, Leasure exhibited four clues out of eight and two indicate impairment. Sergeant Leasure also testified that Leasure failed the one-leg stand field sobriety test because he put his foot down four times in 23 seconds, and because he exhibited three clues, when two indicate impairment. A video of the field sobriety tests was played at trial and admitted as evidence. The recording, however, does not contain any audio during the administration of the field sobriety tests.

{¶ 8} After conducting the field sobriety tests, Sergeant Ward placed Leasure under arrest for an OVI violation and read Leasure his Miranda rights. Sergeant Ward then verbally advised Leasure, in accordance with R.C. 4511.192

, of the consequences of submitting to, or refusing to take, a chemical test or tests to determine alcohol concentration, and gave Leasure the form described in R.C. 4511.192(B). Leasure then refused to submit to a breath test. Sergeant Ward also testified that Leasure had a prior conviction for OVI from June 24, 2011; and a certified copy of the prior conviction was admitted as evidence despite defense counsel's objection. Finally, according to Sergeant Ward, Leasure indicated to him that he had arrived approximately 10 minutes before the officer arrived at the scene.

{¶ 9} Leasure testified in his own defense. Leasure testified that on the night of May 17, 2014, he attended a friend's house warming party near Laurelville, Ohio. He arrived to the party between 11:00 and 11:30 p.m. Leasure indicated that he was suffering from the flu, was not feeling well, and had taken NyQuil earlier in the evening. Leasure testified that upon arriving at the home, he gave his vehicle keys to a friend in case he drank too much. According to Leasure, while at the party, he drank one or two beers and fell ill.

{¶ 10} Leasure testified that he left the party around midnight. He stated that he was unfamiliar with the road and that it was dark and “very foggy”. According to Leasure, after driving five to seven miles he became sicker, and decided to turn around and drive back to his friend's house to “sleep it off”. Leasure indicated that he stopped his vehicle on Kingston–Adelphi Road, turned, and as he backed-up he drove partially into a ditch. He described his rear tires as being “caked in mud”.

Leasure attempted to dislodge the car; but his attempts to move the vehicle were unsuccessful.

{¶ 11} Leasure denied that he had only been stuck in the ditch for ten minutes, as testified by Sergeant Ward. Rather, Leasure testified that after becoming stuck in the ditch shortly after midnight he called his friends and his dad to come find him. However, neither his friends nor his father were able to locate him by the time Sergeant Ward arrived at 4:30 a.m. Moreover, upon cross-examination, Leasure admitted that the first outgoing call on his cell phone records was made at 3:08 a.m.; although there were incoming calls preceding that time. Finally, Leasure testified that he performed poorly on the field sobriety tests because his boots were caked in mud, the lights from the patrol vehicle shined in his eyes, because he had the flu, and because he had taken NyQuil

.

{¶ 12} Prior to the court instructing the jury on the law, Leasure's trial counsel again proffered that the jury be instructed on “mischarge”, but the trial court refused to give the proposed jury instruction. The jury returned a guilty verdict on the OVI offense; and the trial court found Leasure guilty of the failure to control offense, but not guilty of the seatbelt violation.

{¶ 13} For his OVI conviction, Leasure was sentenced to 60 days in jail, 90 days of house arrest upon his release from jail with SCRAM monitoring, ordered to pay a $1,000 fine and court costs, issued a three-year license suspension, and was...