State v. Auld, 2006-Cac-120091 (7-9-2007)State v. Auld, 2006-Cac-120091 (7-9-2007)
{¶ 1} Appellant Stephen A. Auld appeals the decision of the Delaware Municipal Court, Delaware County, which denied his motion to suppress evidence and subsequently found him guilty on one count of operating a motor vehicle while under the influence of alcohol in violation of
{¶ 2} In the case sub judice, the record transmitted on appeal included a videotape of the hearing on appellant‘s motion to suppress. No complete written transcript of the motion hearing was provided.
{¶ 3} “(A) Composition of the record on appeal the original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for purposes of filing, need not be transcribed into written form. Proceedings recorded by means other than videotape must be transcribed into written form. When the written form is certified by the reporter in accordance with
{¶ 4} Accordingly, if the transcript of proceedings is in the videotape medium, the appellant must type or print those portions of the transcript necessary for the
{¶ 5} Appellant appended copies of nine (9) pages of testimony from an unidentified officer from the motion to suppress hearing held September 1, 2006. Appellant did not certify the accuracy of the portions of the transcript as required by
{¶ 6}
{¶ 7} “If the appellant refuses or fails, within ten days after service on the appellant of appellee‘s designation, to order the additional parts, the appellee, within five
{¶ 8} In this case, the State did not request appellant submit additional parts of the transcript.
{¶ 9} Accordingly, absent a complete transcript we are unable to review the facts underlying appellant‘s stop and arrest in context. Factual assertions appearing in a party‘s brief, but not in any papers submitted for consideration to the trial court below, do not constitute part of the official record on appeal, and an appellate court may not consider these assertions when deciding the merits of the case. Akro-Plastics v. Drake Industries (1996), 115 Ohio App.3d 221, 226, 685 N.E.2d 246, 249. In Knapp v. Edwards Laboratories (1980), 61 Ohio St2d 197, 199, the Supreme Court of Ohio held the following: “[t]he duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized in
{¶ 10} The following facts are established by the record transmitted to this court.
{¶ 11} On June 17, 2006 appellant was charged with one count of a per se violation of
{¶ 12} On July 18, 2006 appellant filed a Motion to Suppress alleging that there was no probable cause to arrest appellant for OVI based upon, in relevant part to this appeal, the Trooper‘s failure to administer the so-called field sobriety tests in substantial compliance with The National Highway Traffic and Safety Administration [“NHTSA‘] standards. The motion was heard by the trial court on September 1, 2006. The trial court overruled the motion by Judgment Entry filed December 1, 2006.
{¶ 13} On November 16, 2006 appellant entered a plea of no contest to one count of OVI in violation
{¶ 14} Appellant timely appealed raising the following Assignment of Error:
{¶ 15} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT WHEN IT ADMITTED INTO EVIDENCE THE ADMINISTRATION OF, THE RESULTS OF, AND THE STATE‘S INTERPRETATION [SIC] OF THE HORIZONTAL GAZE NYSTAGUMUS TEST WHICH DID NOT STRICTLY COMPLY WITH THE REQUIREMENTS AND MANDATES OF THE NATIONAL TRAFFIC HIGHWAY AND SAFETY ADMINISTRATION.”
I.
{¶ 16} In his sole assignment of error appellant argues that the trial court improperly admitted the results of the horizontal gaze nystagmus test [“HGN“] as
{¶ 17}
{¶ 18} “In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * 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:
{¶ 19} “(i) The officer may testify concerning the results of the field sobriety test so administered.
{¶ 20} “(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.
{¶ 21} “(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
{¶ 22} In Robinson and Hall, supra, this Court applied the
{¶ 23} The holdings in both Robinson and Hall have been rejected by the Ohio Supreme Court in State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251 at ¶ 25. In Boczar, the Court held ” . . . HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer‘s training and ability to administer the test and as to the actual technique used by the officer in administering the test.” Id. at ¶ 27. In accordance with
{¶ 24} As a result, the state in this case was required only to show that the Trooper performed the HGN test in substantial compliance with the applicable standards described in
{¶ 25} While field sobriety tests must be administered in substantial compliance with standardized procedures, probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect‘s poor performance on one or more of these tests. The totality of the facts and circumstances can support a finding of probable
{¶ 26} In the case at bar, the trial court found the Trooper had probable cause to arrest appellant for OVI based upon “Odor, admitted consumption, FST and observation of the officer.” (Judgment Entry, filed December 1, 2006). As we do not have the complete transcript of the suppression hearing we must presume the validity of the lower court‘s findings. Accordingly, the totality of the evidence, even excluding the HGN test, gave rise to probable cause to arrest for OVI. Homan at 427, 732 N.E.2d 952. As such, we find it was not error for the trial court to determine there was probable cause to support appellant‘s arrest for OVI.
{¶ 27} Assuming arguendo the HGN test should not have been admitted to support the Trooper‘s finding of probable cause to arrest, we find, in this case, that the admission of the HGN test at appellant‘s suppression hearing was harmless beyond a reasonable doubt.
{¶ 28} Pursuant to
{¶ 29} As previously stated, the trial court found the Trooper had probable cause to arrest for OVI based upon the Trooper‘s observations, the appellant‘s erratic driving resulting in an accident, the odor of alcohol and appellant‘s admitted consumption. (Judgment Entry, filed December 1, 2006).
{¶ 30} Appellant‘s sole assignment of error is overruled.
{¶ 31} The decision of the Delaware County Municipal Court is affirmed.
By: Gwin, P.J., Hoffman, J., and Delaney, J., concur
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the decision of the Delaware County Municipal Court is affirmed. Costs to appellant.