State v. CorbisseroState v. Corbissero
James R. Wise, 6630 Seville Drive, Canfield, OH 44406 (For Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, Carl Corbissero, appeals from the judgment and sentence of the Ashtabula County Court of Common Pleas, finding him guilty of Failure to Comply with an Order or Signal of a Police Officer and OVI, and sentencing him to a total of one year of incarceration and a lifetime suspension of his driver’s license. Mr. Corbissero brings assignments of error related to the suppression of evidence, the sufficiency of evidence against him, the length of his sentence, alleged prosecutorial misconduct, and the amendment of the charges from felonies to misdemeanors at the conclusion of trial.
Substantive Facts and Procedural History
{¶3} At approximately 9:40 a.m. on November 29, 2008, Ashtabula County Deputy Sheriff Ginn observed Mr. Corbissero traveling at a high rate of speed eastbound on U.S. Route 20 in Ashtabula Township. Deputy Ginn’s radar device clocked Mr. Corbissero traveling at 60 m.p.h in a 40 m.p.h zone, and the deputy heard Mr. Corbissero’s engine climbing in R.P.M.s as it passed him, indicating acceleration. Deputy Ginn immediately activated his emergency overhead lights and siren as he pulled out behind Mr. Corbissero and attempted to execute a traffic stop. Mr. Corbissero, however, did not pull over. Rather, he increased his speed, zigzagging
{¶4} As he attempted to keep up with Mr. Corbissero, the deputy maintained his lights and siren, all the while observing Mr. Corbissero swerve through traffic without signaling. Eventually, Mr. Corbissero exited S.R. 11 at Interstate 90, heading westbound. By this time, Mr. Corbissero had gained a substantial distance between his vehicle and that of Deputy Ginn.
{¶5} On Interstate 90, Ohio State Highway Patrol Trooper Dunn had been alerted to the high-speed chase and positioned himself in the median strip. He activated his emergency overhead lights, and stood by the side of the road with “stop sticks” in hand, ready to assist in stopping Mr. Corbissero’s vehicle. Trooper Dunn observed Mr. Corbissero drive past him at what appeared to be a normal rate of speed, not the 100 m.p.h. previously reported, and, therefore, he chose not to deploy the “stop sticks.” Approximately ten seconds later, Trooper Dunn heard Deputy Ginn’s siren and observed his emergency overhead lights as he continued his pursuit of Mr. Corbissero.
{¶6} Trooper Dunn returned to his cruiser and joined the pursuit. Approximately one more mile down the interstate, Trooper Dunn found Mr. Corbissero and Deputy Ginn pulled over to the berm. Deputy Ginn approached Mr. Corbissero’s vehicle. Informing Mr. Corbissero of the reason for the stop, the deputy asked him why he was driving so fast. Mr. Corbissero replied he had just had his car washed and was trying to dry it off. Deputy Ginn had Mr. Corbissero get out of his car and conducted a pat-down search. At that time, the deputy detected a strong odor of alcohol on or about Mr. Corbissero. He asked Mr. Corbissero how many drinks he had consumed, and Mr.
{¶7} Based on his observations of erratic driving, combined with the odor of alcohol and fallacious response to the query as to the reasons for the excessive speed, Deputy Ginn asked Mr. Corbissero to submit to field sobriety testing. The deputy administered the Horizontal Gaze Nystagmus (“HGN”) test, and observed four out of six possible clues of intoxication. Deputy Ginn also had Mr. Corbissero attempt the “one leg stand” test, during which he dropped his foot prior to completion and stated that he had an injury to his right leg. Deputy Ginn declined to administer the “heel to toe” test due to a lack of safe space in which to perform it; he then had Trooper Dunn administer the HGN test due to concerns with the reliability of his own administration. Trooper Dunn observed six out of six possible clues of intoxication, although he noted their onset was weak.
{¶8} Based on the observed erratic driving and signs of intoxication revealed during the field sobriety tests, Deputy Ginn decided to arrest Mr. Corbissero for driving while intoxicated. Mr. Corbissero was placed in the back of another deputy’s cruiser for transport to the Ashtabula County Sheriff’s office. Deputy Ginn remained on scene to conduct an inventory search of Mr. Corbissero’s vehicle and await a tow truck.
{¶9} Upon his return to the sheriff’s office, about two hours later, Deputy Ginn read the implied consent form, BMV 2255, to Mr. Corbissero and asked him to take a Breath Alcohol Content (“BAC”) test. The BAC test was administered at 11:25 a.m. by C.O. Specht; the reading was 0.064 grams alcohol per 210 liters of breath.
{¶11} Mr. Corbissero filed several motions in limine to exclude any testimony regarding reverse extrapolation of BAC results, and any evidence of his prior OVI offenses. He also sought dismissal of the OVI specification. The trial court granted Mr. Corbissero’s motion in limine regarding evidence of prior OVI and dismissed the specification, but overulled the motion in limine regarding reverse extrapolation.
{¶12} Mr. Corbissero then filed a motion to suppress the BAC results, as well as any incriminating field sobriety test results. He alleged a lack of probable cause, and thus argued that the evidence was obtained in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, Ohio Constitution Article 1, Section 14, and
{¶13} The trial court denied Mr. Corbissero’s motion to suppress, supporting its probable cause finding with factors described in State v. Evans, 127 Ohio App.3d 56 (11th Dist.1998). The trial court wrote, “(1) the stop occurred on a Saturday morning at approximately 9:40 a.m.; (2) Deputy Ginn observed substantial erratic driving (speeding 20 MPH over the posted speed limit, weaving in and out of traffic, changing lanes without signaling, failure to stop after deploying lights and siren; detection of a strong odor of an alcoholic beverage on or about the Defendant; admission to drinking the night before the stop; and Defendant’s irrational explanation of speeding in order to dry
{¶14} Thus, the trial court found justification for the initial stop and subsequent administration of field sobriety tests. The trial court further found that the field sobriety tests were “proper and substantially complied with the recommendations of the National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Manual.” As a result, the trial court determined that “[t]he totality of the facts and circumstances provided Deputy Ginn with sufficient probable cause to arrest the Defendant for Operating a Vehicle Under the Influence and also provided him with justification to request the Defendant to submit to a BAC test.”
{¶15} Lastly, the trial court found the BAC results admissible.
{¶16} After a three-day jury, trial Mr. Corbissero was convicted of one count of OVI in violation of
{¶17} Mr. Corbissero timely appealed, and now brings the following assignments of error:
{¶18} “[1.] The trial court committed prejudicial error in determining that the arresting officer had probable cause to arrest the Defendant/Appellant for driving under
{¶19} “[2.] The trial court erred by failing to suppress all the field sobriety tests since the state failed to meet its burden of proof establishing the standards and guidelines used by the officer and the tests were not administered in compliance with NHTSA standards.”
{¶20} “[3.] The trial court erred in overruling appellant’s Rule 29 motion for acquittal of count one of the indictment (fleeing and alluding [sic]).”
{¶21} “[4.] The trial court erred in overruling appellant’s Rule 29 motion for acquittal of count two of the indictment (OVI).”
{¶22} “[5.] The prosecutor engaged in prosecutorial misconduct in speaking with one of the jurors during the trial procedings [sic] and the trial court failed to properly address the isue [sic] (no record).”
{¶23} “[6.] The trial court committed prejudicial error in the sentencing of the Appellant in A) sentencing appellant to consecutive maximum sentences and B) ordering a lifetime suspension of the appellant’s drivers [sic] license.”
{¶24} “[7.] The trial court committed [sic] abused its discretion and committed prejudicial error in amending the indictment to misdemeanor offenses.”
{¶25} For ease of analysis, we will consider assignments of error one and two together, and three and four together.
Suppression of Evidence
{¶26} In his first and second assignments of error, Mr. Corbissero argues that the trial court erred when it failed to suppress his arrest and the administration of the
Standard of Review
{¶27} “At a hearing on a motion to suppress, the trial court functions as the trier of fact, and, therefore, is in the best position to weigh the evidence by resolving factual questions and evaluating the credibility of any witnesses.” State v. McGary, 11th Dist. No. 2006-T-0127, 2007-Ohio-4766, ¶20, quoting State v. Molek, 11th Dist. No. 2001-P-0147, 2002-Ohio-7159, ¶24, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, “[a]n appellate court must accept the findings of fact of the trial court as long as those findings are supported by competent, credible evidence.” Id., quoting Molek at ¶24, citing State v. Retherford, 93 Ohio App.3d 586, 592 (2d Dist.1994). See also City of Ravenna v. Nethken, 11th Dist. No. 2001-P-0040, 2002-Ohio-3129, ¶13. “After accepting such factual findings as true, the reviewing court must then independently determine, as a matter of law, whether or not the applicable legal standard has been met.” Id.
The Arrest
{¶28} Mr. Corbissero argues that Deputy Ginn lacked probable cause to arrest him for driving under the influence of alcohol. A review of the suppression hearing reveals that the trial court was presented with more than sufficient evidence by the state to support a finding of probable cause for the arrest.
{¶30} At the suppression hearing, Deputy Ginn testified that he had observed a number of indicators of intoxication, including: excessive speeding; erratic driving; failure to comply with the lights and siren; the incredible response to the question of why he was speeding; the strong odor of alcohol on or about his person; and his acknowledgement of having consumed alcohol the night before. Furthermore, Deputy Ginn observed four out of six clues of intoxication as a result of an improperly administered HGN test. Trooper Dunn testified to having observed six out of six clues as a result of a properly administered HGN test.
{¶31} It is important to note, however, that the “totality of the circumstances can support a finding of probable cause to arrest, even where no field sobriety tests were
{¶32} Given the totality of the facts and circumstances (both including and excluding the field sobriety test results), the trial court did not err in finding that Deputy Ginn had sufficient probable cause to arrest Mr. Corbissero for OVI.
The Field Sobriety Tests
{¶33} Mr. Corbissero also argues that the trial court erred when it failed to suppress the results of the field sobriety tests conducted by Deputy Ginn. He asserts that Deputy Ginn failed to substantially comply with the NHTSA guidelines for administration of field sobriety tests. We agree, but find no prejudice as a result of the error.
{¶34} “[T]he Supreme Court of Ohio in State v. Boczar (2007), 113 Ohio St.3d 148, 2007 Ohio 1251, 863 N.E.2d 155 held that strict compliance is not required for admissibility at trial. Rather, ‘[i]n order for the results of the field sobriety tests to be admissible, the state must show by clear and convincing evidence that the officer performing the testing substantially complied with accepted testing standards.’ (Emphasis added.)” Penix at ¶23. In its judgment entry overruling Mr. Corbissero’s suppression motion, the trial court specifically found that Deputy Ginn had substantially complied with accepted testing standards, but we disagree.
{¶35} At the suppression hearing, Deputy Ginn testified that he held the stimulus approximately six inches away from Mr. Corbissero’s face. The current NHTSA
{¶36} However, because Trooper Dunn also administered the HGN test and testified as to the result at both the suppression hearing and trial, the outcome would not have been different, even if Deputy Ginn’s testimony had been excluded. Trooper Dunn’s administration of the HGN test was not challenged; thus his testimony supports both a finding of probable cause for arrest and the conviction.
{¶37} Furthermore, Deputy Ginn was subject to cross-examination at trial and the unreliability of his field sobriety test results was fair game for attack by the defense. Deputy Ginn readily admitted his lack of confidence in the results he achieved, and stated that this lack of confidence led to him to seek Trooper Dunn’s assistance. No challenge was made to Trooper Dunn’s administration of the field sobriety tests, thus the arrest was well supported by both Deputy Ginn’s observations of various Evans factors and the results of the field sobriety test administered by Trooper Dunn. Mr. Corbissero is unable to demonstrate that the jury was prejudiced by the admission of Deputy Ginn’s field sobriety test results. Mr. Corbissero’s first and second assignments of error are without merit.
Crim.R. 29 Motions for Acquittal
{¶38} In his third and fourth assignments of error, Mr. Corbissero argues that the trial court erred in failing to grant his
Standard of Review
{¶39} A trial court shall grant a motion for acquittal when insufficient evidence exists to sustain a conviction.
{¶40} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of syllabus.
{¶41} A sufficiency challenge requires this court to review the record to determine whether the state presented evidence on each of the elements of the offense. This test involves a question of law and does not permit us to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
Failure to Comply
{¶42} In order to convict Mr. Corbissero of Failure to Comply with an Order or Signal of a Police Officer, pursuant to
{¶43} Deputy Ginn observed Mr. Corbissero speeding, activated his overhead lights and siren, and attempted to execute a traffic stop. Mr. Corbissero, however, increased his speed and led Deputy Ginn on a chase over many miles, until finally coming to stop a mile after observing Trooper Dunn in the interstate median with his overhead lights activated and stop sticks in hand. The state presented evidence as to each of the elements of the offense, that, if reviewed in the light most favorable to the prosecution, could lead a reasonable juror to find guilt beyond a reasonable doubt. Therefore, the case was properly given to the jury to evaluate the weight of such evidence and ultimately determine a verdict.
OVI
{¶44} To convict Mr. Corbissero of OVI, pursuant to
{¶45} Because of the amount of time that passed before the breathalyzer test, the state offered the expert testimony of Douglas Rohde, supervisor of chemistry and toxicology at the Lake County Crime Laboratory, regarding the mathematical process of retrograde extrapolation. Based on Mr. Corbissero’s BAC reading of 0.064 at approximately an hour and one-half after his apprehension, Mr. Rohde was able to determine that, at the time Deputy Ginn first observed Mr. Corbissero driving erratically and at excessive speeds, his BAC was anywhere between 0.083 and 0.102. Both of which are above the statutory limit of 0.08.
{¶46} The state presented evidence as to each of the elements of the offense, which, if viewed in the light most favorable to the prosecution, could lead a reasonable juror to find guilt beyond a reasonable doubt. Therefore, the case was properly given to the jury to evaluate the weight of such evidence and ultimately determine a verdict.
{¶47} Mr. Corbissero’s third and fourth assignments of error are without merit.
Alleged Prosecutorial Misconduct
{¶48} In his fifth assignment of error, Mr. Corbissero claims the prosecutor spoke to one of the jurors during trial and that the trial court failed to properly address this misconduct. Mr. Corbissero relies on an affidavit of one Scott Balcomb to support his contention that the prosecutor engaged in prosecutorial misconduct; however, this affidavit is de hors the record, and we may not consider it.
{¶50} Even if we were to consider Mr. Balcomb’s affidavit, we would find no evidence of prosecutorial misconduct. “The test for prosecutorial misconduct is whether remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused.” State v. Foster, 11th Dist. No. 2000-T-0033, 2001 Ohio App. LEXIS 5840, *29 (Dec. 21, 2001), quoting State v. Smith, 87 Ohio St. 3d 424, 442 (2000). In reviewing a claim for prosecutorial misconduct, the focus rests on the fundamental fairness of the trial and not on the prosecutor’s culpability. Id., citing Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed.2d 78 (1982). “Thus, prosecutorial misconduct is not grounds for reversal unless it so taints the proceedings that a defendant is deprived of a fair trial.” Id., citing Smith at 442.
{¶51} Mr. Balcomb’s affidavit contains only hearsay and no direct evidence of the alleged prosecutorial misconduct. It also fails to describe any details of the alleged conduct, such as subject-matter, duration, and location of the alleged conversation.
Sentencing
{¶52} In his sixth assignment of error, Mr. Corbissero argues that the trial court erred when it sentenced him to consecutive maximum sentences and ordered a lifetime suspension of his driver’s license. He suggests that the trial court failed to properly evaluate the misdemeanor sentencing considerations laid out in
Standard of Review
{¶53} “Misdemeanor sentencing is within the discretion of the trial court and a sentence will not be disturbed absent an abuse of discretion.” Conneaut v. Peaspanen, 11th Dist. No. 2004-A-053, 2005-Ohio-4658, ¶18, citing State v. Wagner, 80 Ohio App.3d 88, 95-96 (12th Dist.1992). As this court recently stated, the term “abuse of discretion” is one of art, “connoting judgment exercised by a court, which does not comport with reason or the record.” State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). The Second Appellate District also recently adopted a similar definition of the abuse-of-discretion standard: an abuse of discretion is the trial court’s “failure to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8 Ed.Rev.2004) 11. As Judge Fain explained, when an appellate court is reviewing a pure issue of law, “the mere fact
{¶54} “In fashioning an appropriate sentence in a misdemeanor case, the trial court must consider the factors set forth under
{¶55} A trial court’s failure to consider the
{¶56} No evidence in the record suggests that the trial court failed to consider the required statutory factors, nor does Mr. Corbissero point to anything in the record that would lead this court to believe the trial court abused its discretion. The trial judge stated on the record at the sentencing hearing that he had reviewed Mr. Corbissero’s pre-sentence investigation several times, and read from the report the following: “The defendant has been given many breaks, but he can’t stop drinking and blames the system for his problems. Difficult to supervise.” The trial judge found this to be “the most significant” in terms of determining an appropriate sentence. Therefore the trial court clearly took into consideration the
Driver’s License Suspension
{¶57} Mr. Corbissero also argues that the trial court erred when it imposed a class one, or lifetime, license suspension. He suggests that he was ineligible for a lifetime suspension and should have received a class two suspension instead, because the trial court used an uncounseled conviction to enhance his sentence.
{¶58} While it is true that a prior uncounseled misdemeanor conviction may not be used to enhance a defendant’s charge or sentence, Mr. Corbissero fails to consider that he has been convicted, not once, but, twice for failure to comply/fleeing and eluding prior to this case. See Coleman, supra, ¶8. Only one of these two prior convictions is
{¶59} Mr. Corbissero’s sixth assignment of error is without merit.
Amendment of Indictment to Misdemeanors
{¶60} In his final assignment of error, Mr. Corbissero argues that the trial court erred when it amended his indictment from felony to misdemeanor charges. He suggests that the trial court should have dismissed the failure-to-comply count rather than amending it from a felony of the third degree to a misdemeanor of the first.
{¶61} Whether an amendment to the indictment constitutes reversible error is a question of law that we review de novo. See State v. Frazier, 2d Dist. No. 2008 CA 118, 2010-Ohio-1507, ¶22.
{¶63} For the foregoing reasons, the judgment and sentence of the Ashtabula County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.