STATE OF OHIO v. CODY M. FOOS
C.A. No. 28086
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 28, 2016
[Cite as State v. Foos, 2016-Ohio-8441.]
MOORE, Presiding Judge.
COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT CASE No. 15TRC11134
Dated: December 28, 2016
MOORE, Presiding Judge.
{1} The Defendant, Cody Foos, appeals from the judgment of the Akron Municipal Court. This Court affirms in part, vacates in part, and dismisses the appeal in part.
I.
{2} In the early morning hours of July 3, 2015, Mr. Foos was driving with two passengers in the car, when he collided with a concrete barrier wall at a highway interchange. Officer David Hayes of the Akron Police Department cited Mr. Foos for OVI in violation of Akron Codified Ordinance (“Loc.Ord.“) 73.01(A) and failure to control in violation of Loc.Ord. 73.13(A). Mr. Foos pleaded not guilty to the charges. The OVI charge proceeded to jury trial. The jury found Mr. Foos guilty of OVI. The trial court then found Mr. Foos guilty of failure to control. On December 21, 2015, the trial court imposed sentence. In a notice of appeal dated January 20, 2016, Mr. Foos appealed from his conviction, and he now presents three assignments of error for our review.
ASSIGNMENT OF ERROR I
[MR. FOOS‘] CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
{3} In his first assignment of error, Mr. Foos contends that the weight of the evidence does not establish that he was driving while impaired. We disagree.
{4} When a defendant asserts that his conviction is against the manifest weight of the evidence:
an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{5} Here, the jury found Mr. Foos guilty of violating
{8} On cross-examination, Officer Hayes reviewed the BMV Form 2255 that he had used in this case, and he acknowledged that the form used here was updated in July of 2010, but he should have used a newer version of the form that was updated in 2013. The officer indicated that the department did not have a working breathalyzer machine that he could have used to perform a chemical breath test on Mr. Foos on the night in question. During cross-examination of the officer, the defense played the officer‘s cruiser video, which did not contain audio. The officer noted that, when he arrived at the scene, Mr. Foos and the other men with him were not stumbling, and Mr. Foos had no difficulty retrieving his license to hand to the officer.
{9} Officer Whitmire testified that he responded Officer Hayes’ call for backup at the scene to slow down traffic. He was able to observe Mr. Foos in the back of Officer Hayes’ cruiser, and Mr. Foos seemed somewhat lethargic. When Officer Hayes opened the cruiser door, Officer Whitmire could smell a fairly strong odor of alcoholic beverage. After the tow truck arrived, Officer Whitmire met Officer Hayes at a parking lot, at which point Officer Hayes read Mr. Foos the BMV Form 2255, and Mr. Foos refused chemical testing.
{11} Mr. Dell testified that, in the evening hours of July 2, 2015, he and Mr. Ebner, who is Austrian and speaks with an Austrian accent, were at a bar when Mr. Foos arrived. The men played a game of pool, and Mr. Foos then drove them to a strip club. Mr. Foos was driving normally that night, and he did not seem intoxicated. Just prior to the accident, Mr. Dell felt the car go into “a pothole sort of” and then he heard the tires squeal. When he opened his eyes, the airbags were deployed. Mr. Dell recognized a defense exhibit containing a Google map picture discussed above, as a picture of the roadway where Mr. Foos was driving just prior to the accident. Mr. Dell recalled that someone had made a comment after the police officer arrived
{12} On appeal, Mr. Foos maintains that weight of the evidence does not establish that Mr. Foos was under the influence of alcohol when he crashed into the concrete barrier.
{13} However, although Mr. Dell‘s assessment of Mr. Foos, and Mr. Foos’ recollection of his own condition, contradicted Officer Hayes’ assessment that Mr. Foos was “drunk,” or “intoxicated[,]” a conviction is not against the manifest weight because the trier of fact chose to credit the State‘s version of events. See State v. Shank, 9th Dist. Medina No. 14CA00090-M, 2016-Ohio-7819, ¶ 29. Moreover, Mr. Foos’ testimony regarding the cause of the accident at trial contradicted the statement that Officer Hayes had recalled Mr. Foos making at the scene. Although Mr. Foos and Mr. Dell maintained that Mr. Ebner made the statement regarding being hit from the rear, the jury could accept or reject any part of their testimony. See State v. Kudla, 9th Dist. Summit No. 27652, 2016-Ohio-5215, ¶ 57. Nor was the jury required to accept that the crash had occurred as a result of a defect in the road. See id.
{14} Our review of the record indicates that the officers presented testimony that Mr. Foos was involved in a single car crash, that he emitted a strong odor of alcohol, that his speech was slurred, that he was “zoning” out when the officer spoke with him, and that he lacked balance to steady himself when the officer removed him from the cruiser to attempt to perform field sobriety tests. A reasonable inference can be drawn from these facts that Mr. Foos had “consumed some intoxicating beverage in such quantity that its effect on him adversely
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY INCLUDING A JURY INSTRUCTION REGARDING [MR. FOOS‘] REFUSAL TO TAKE A CHEMICAL TEST[.]
{15} In his second assignment of error, Mr. Foos contends that the trial court erred in instructing the jury that it could consider his refusal to submit to a chemical test when considering whether he was under the influence of alcohol. In response to this assignment of error, the State maintains that Mr. Foos has forfeited his challenge to the instruction by failing to renew his objection to the instruction when provided the opportunity to do so.
{16}
{17} At trial, after the parties rested, the trial court heard arguments from the parties as to whether an instruction should be given to the jury regarding inferences that could be drawn from Mr. Foos’ refusal to submit to chemical testing. The defense opposed inclusion of the
[TRIAL COURT]: * * *. We have gone over all of the jury instructions and I believe that they are acceptable to everyone; is that correct?
[THE STATE]: Yes, Your Honor.
[DEFENSE COUNSEL]: Yes, Your Honor.
{18} The defense did not then state any objection to the instructions or renew the argument against the chemical test refusal instruction. In its instructions to the jury, the trial court stated:
Refusal. Evidence has been introduced indicating the Defendant was asked but refused to submit to a chemical test to determine the amount of alcohol in his system for the purpose of suggesting that the Defendant believed that he was under the influence of alcohol. If you find the Defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol.
See Maumee v. Anistik, 69 Ohio St.3d 339 (1994), syllabus (approving of substantially similar instruction regarding refusal to submit to a chemical test of breath).
{19} Because the trial court inquired of the attorneys whether the jury instructions were acceptable, and Mr. Foos did not indicate any opposition to the instructions, the State maintains that Mr. Foos has forfeited any argument on appeal with respect to the instruction, save for that of plain error. In support, the State cites this Court‘s decision in Van Scyoc v. Huba, 9th Dist. Summit No. 22637, 2005-Ohio-6322.
{20} In Van Scyoc, the Appellant requested the trial court to include an instruction on dual causation. Id. at ¶ 3. The trial court declined to include this instruction. On appeal, this Court noted that, at trial, the Appellant brought the issue of the dual causation instruction “to the
{21} Likewise, here, after defense argued against inclusion of the refusal instruction, the trial court decided to include the instruction, and it specifically asked counsel if the instructions were acceptable. The defense responded in the affirmative. Accordingly, the defense‘s objection to the instruction was effectively withdrawn, and Mr. Foos has forfeited all but plain error argument with respect to the instruction on appeal. However, as he has made no plain error argument on appeal, we decline to create one on his behalf. See id. On this basis, Mr. Foos’ second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY DENYING [MR. FOOS‘] ALS APPEAL IN LIGHT OF THE FACT THAT THE FORM 2255 INFORMATION READ TO
[MR. FOOS] WAS NOT THE CURRENT STATEMENT OF THE LAW AND THE ARRESTING OFFICER DID NOT COMPLY WITH THE FORMAL REQUIREMENTS OF CONDUCTING A TEST OF THE ALCOHOL LEVEL IN [MR. FOOS‘] BLOOD[.]
{22} In his third assignment of error, Mr. Foos contends that the trial court erred in denying his appeal from his administrative license suspension (“ALS“). Because Mr. Foos failed to timely appeal from the trial court‘s order denying his ALS appeal, we do not reach the merits of Foos’ third assignment of error.
{23} “An administrative license suspension and a criminal prosecution for [OVI] which arise from the same arrest are separate proceedings.” Akron v. Turner, 9th Dist. Summit No. 26790, 2013-Ohio-4578, ¶ 7, quoting State v. Willard, 9th Dist. Medina No. 04CA0045-M, 2005-Ohio-1627, ¶ 8. “A trial court‘s determination of an administrative-license-suspension appeal is an order entered in a special proceeding and is final pursuant to
{24} Here, Mr. Foos filed an ALS appeal in the trial court on August 5, 2015. After a hearing, the trial court issued an order, dated August 25, 2015, denying the ALS appeal. On October 15, 2015, Mr. Foos moved the court to reconsider his ALS appeal. On November 2, 2015, the trial court issued an order denying Mr. Foos’ motion to reconsider his ALS appeal.
III.
{26} Mr. Foos’ first and second assignments of error are overruled. We do not reach the merits of Mr. Foos’ third assignment of error as it constitutes an untimely appeal from the trial court‘s ALS appeal determination. The December 21, 2015 judgment of the trial court is affirmed. The trial court‘s November 2, 2015 order is vacated. The appeal is dismissed to the extent that Mr. Foos has attempted to challenge the August 25, 2015 denial of his ALS appeal.
Judgment affirmed in part, and vacated in part, and appeal dismissed in part.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
STEPHEN MCGOWAN, Attorney at Law, for Appellant.
EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN D. BREMER, Assistant Director of Law, for Appellee.