STATE OF OHIO, Plаintiff-Appellee, v. CHRISTOPHER LEASURE, Defendant-Appellant.
Case No. 15CA3484
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
RELEASED: 12/16/2015
[Cite as State v. Leasure, 2015-Ohio-5327.]
Hoover, P.J.
James R. Kingsley, Circleville, Ohio, for appellant.
Sherri K. Rutherford, City of Chillicothe Law Director, and Pamela C. Wells, City of Chillicothe Assistant Law Director, Chillicothe, Ohio, for appellee.
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
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 Rоss 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
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 сhemical 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
{¶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 pаrtially 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
{¶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 sоbriety 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
{¶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
{¶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 placed on community control for three years. For the failure to control conviction Leasure was ordered to pay costs only. The trial court suspended Leasure‘s jail sentence and fines/costs pending this timely appeal, provided he wеar a SCRAM bracelet.
II. Assignments of Error
{¶14} Leasure assigns the following errors for our review:
1. IS
2. WAS IT PREJUDICIAL ERROR TO ADMIT INTO EVIDENCE DEFENDANT‘S PRIOR CONVICTION?
3. DID THE COURT COMMIT PREJUDICIAL ERROR WHEN IT REFUSED TO SEVER?
4. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT DID NOT PERMIT DEFENDANT TO CROSS-EXAMINE THE OFFICER ON HIS FAILURE TO CHARGE PHYSICAL CONTROL?
III. Law and Analysis
A. Constitutionality of R.C. 4511.19(A)(2)
{¶15} In his first assignment of error, Leasure contends that
{¶16} “[S]tatutes enjoy a strong presumption of constitutionality.” State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8. “A statute will be upheld unless the challenger can meet the burden of establishing beyond a reasonable doubt that the statute is unconstitutional.” Id. We use a de novo standard of review to assess errors based upon violations of constitutional law. State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶ 10.
1. R.C. 4511.19(A)(2) and the Privilege Against Self-Incrimination
{¶17} In regards to his self-incrimination argument, Leasure contends that
{¶18} The
{¶19}
{¶20} The United States Supreme Court has held that the admission of a defendant‘s refusal to take a chemical test at trial does not violate a defendant‘s
{¶21} In Middleburg Hts. v. Henniger, 8th Dist. Cuyahoga No. 86882, 2006-Ohio-3715, the Eighth District Court of Appeals was presented the question “whether, because the refusal is an element of
{¶22} The Henniger court held that:
Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in
R.C. 4511.191 . The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state of Ohio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, “no impermissible coercion is involved when the suspect refuses to submit to take the test.”
Henniger at ¶ 19, quoting Neville at 562. The court also concluded that the State did not directly compel the defendant to refuse the test because the defendant was given a choice between submitting to chemical testing or having his refusal used against him in court. Id. at ¶ 20, citing Neville at 759.
{¶24} Finally, the Henniger court explicitly noted that criminalizing refusal does not transform its admission into evidence into a violation of the
Since Ohio has long accepted the principle that a defendant‘s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance the minimum tеrm of imprisonment. If it is admissible for one, it is equally admissible for the other.
Id. at ¶ 21. The Eighth District Court of Appeals reaffirmed its holding in Henniger in 2015. See Benedict, 2015-Ohio-3340, at ¶ 30 (“We see no need to depart from our holding in Henniger.“).
{¶25} While we are not bound by the Eighth District‘s analysis, we find it persuasive, and hold that
R.C. 4511.19(A)(2) and Double Jeopardy
{¶26} In further support of his first assignment of error, Leasure also contends that
{¶27} “The Double Jeopardy Clause of the
{¶28} Leasure‘s double jeopardy argument is fundamentally flawed in that “the refusal to consent to testing is not, itself, a criminal offense.” Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, at ¶ 21. Rather, under
An administrative license suspension is an automatic consequence of a refusal to take a chemical test.
R.C. 4511.191(B)(1) . But imposing an ALS for refusal to take a chemical test does not preclude using the refusal as an element to enhance a DUI sentence. In Gustafson, we held that the punishment allowed under Ohio‘s implied-consent law did not violate the constitutional principle of double jeopardy. 76 Ohio St.3d 425, 668 N.E.2d 435. Both an ALS and a criminal prosecution may result from driving under the influence of drugs or alcohol and refusing to take the chemical test. After a DUI conviction, however, the ALS terminates, and the license suspension becomes part of the DUI sentence. Id. at paragraphs four and five of the syllabus. We recognized in Gustafson that both administrative regulation and criminal prosecution play a part in ensuring safety.
Id. at ¶ 25.
{¶29} Based upon the Ohio Supreme Court‘s analysis in Hoover, we conclude that
{¶30} Having found no merit to Leasure‘s constitutionality argument, we overrule his first assignment of error.
B. Admission of Leasure‘s Prior OVI Conviction
{¶31} In his second assignment of error, Leasure argues that he was denied due process when the trial court admitted evidence of his prior OVI conviction. Specifically, Leasure argues that the admission of his prior OVI conviction was prejudicial because he was being tried for a
{¶32} The admission or exclusion of evidence generally rests within the trial court‘s sound discretion. State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, absent an abuse of discretion, an appellate court will not disturb a trial court‘s ruling regarding the admissibility of evidence. Id. Generally, an abuse of discretion implies that a court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶33} In a case involving an OVI prosecution under
{¶34} After the Ohio Supreme Court decided Allen, however, the General Assembly enacted
{¶36} Here, the prior OVI conviction within 20 years is an essential element of the charge under
{¶37} Leasure‘s second assignment of error is overruled.
C. Bifurcation of the Proceedings
{¶39} “It is well settled that the state must prove all essential elements of an offense beyond a reasonable doubt.” Miller, 2012-Ohio-997, at ¶ 10, citing
{¶40} As discussed above, refusal is required to be proven beyond a reasonable doubt in order for the State to obtain a conviction under
{¶41} Leasure‘s third assignment of error is overruled.
D. Scope of Cross-Examination
{¶42} In his fourth assignment of error, Leasure contends that the trial court erred by prohibiting him from сonducting a full cross-examination of Sergeant Ward regarding the difference between an OVI offense and the offense of physical control.
{¶43} On appeal, as he did at the trial level, Leasure argues that he should have been charged for violating
{¶44} A party, on cross-examination, may inquire into all matters pertinent to the case that the party calling the witness would have been entitled or required to raise. In re Fugate, 2d Dist. Darke No. 1512, 2000 WL 1370329, *3 (Sept. 22, 2000), citing Smith v. State, 125 Ohio St. 137, 180 N.E. 695 (1932), paragraph one of the syllabus. The trial court, however, has broad discretion in imposing limits on the scope of cross-examination. Id., citing State v. Cobb, 81 Ohio App.3d 179, 183, 610 N.E.2d 1009 (9th Dist.1991). Trial judges have wide latitude “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). An appellate court will not interfere with a trial court‘s decision regarding the scope of cross-examination absent an abuse of discretion. State v. Handa, 4th Dist. Athens No. 07CA26, 2008-Ohio-3754, ¶ 19.
{¶45} Here, Leasure was allowed to ask Sergeant Ward about the offense of having physical control of a vehicle while under the influence. Specifically, Leasure‘s trial counsel was permitted to question Sergeant Ward about the elements of physical control, and Sergeant Ward so testified. The objection that was sustained by the trial court, under the basis that it called for a legal conclusion, was when Leasure‘s trial counsel asked Sergeant Ward to differentiate between
{¶46} “A police officer is not qualified to testify on legal questions * * *.” State v. Ghaster, 8th Dist. Cuyahoga No. 90838, 2009-Ohio-2117, ¶ 32; see also Evid.R. 701. Thus, the trial court did not abuse its discretion in cutting short Leasure‘s cross-examination on this point. Permitting the officer to answer the question would have only served to confuse the jury on an issue that was irrelevant to the charge that was actually filed against Leasure.
{¶47} Leasure‘s fourth assignment of error is overruled.
E. Failure to Give Jury Instruction
{¶48} In his fifth assignment of error, Leasure contends that the trial court erred when it denied his request for a jury instruction on “mischarge“. In essence, Leasure argues that the trial court should have read his proffered instruction on having physical control while under the influence as an alternative to OVI because there was no direct evidence that he was impaired at the time he operated the vehicle.
{¶49} A trial court generally has broad discretion in deciding how to fashion jury instructions. State v. Hamilton, 4th Dist. Scioto No. 09CA3330, 2011-Ohio-2783, ¶ 69. However, “a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “Additionally, a trial court may not omit a requested instruction, if such instruction is ‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.’ ” Hamilton at ¶ 69, quoting State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993). “When reviewing a trial court‘s jury instructions, the proper standard of review for an appellate court is whether the trial
{¶50} At the outset, we note that the State ” ‘has great discretion in deciding which charges should be filed and may decide, for a myriad of reasons, not to prosecute on certain charges notwithstanding that sufficient evidence exists to support a conviction.’ ” State v. Conklin, 12th Dist. Butler No. CA94-03-064, 1995 WL 128388, *3 (Mar. 27, 1995), quoting State ex rel. Tipton v. Schisler, 4th Dist. Scioto No. 90CA1926, 1991 WL 192733, *3 (Sept. 24, 1991). Moreover, “[t]he mere fact that appellant‘s conduct violates more than one statute does not force the state to prosecutе him under the lesser statute.” State v. Cooper, 66 Ohio App.3d 551, 553, 585 N.E.2d 868 (4th Dist.1990); see also State v. Spearman, 6th Dist. Lucas No. L-01-1373, 2004-Ohio-1641, ¶ 37, and State v. Jackson, 10th Dist. Franklin No. 96APA04-504, 1996 WL 684135, *4 (Nov. 26, 1996).
{¶51} More importantly, a trial court‘s refusal to instruct the jury on an offense that is not a charged offense, is proper. See State v. Branden, 2d Dist. Montgomery No. 12918, 1992 WL 337613, *4 (Nov. 16, 1992) (finding trial court properly denied requested jury instruction on negligent homicide where negligent homicide was neither a charged offense nor a lesser included offense of voluntary manslaughter (the actual charged offense)). ” ‘Excepting lesser included offenses and allied offenses, there is no reason to exonerate [a defendant] of one crime because he simultaneously committed another.’ ” Conklin at *3, quoting State v. Williams, 89 Ohio App.3d 288, 293, 624 N.E.2d 259 (10th Dist.1993). Here, Leasure was charged with OVI, not physical control. And Leasure does not contend that physical control is a lesser included offense
{¶52} Furthermore, even if we were to assume, arguendo, that the jury instruction should have been given, we nonetheless conclude that the failure to instruct the jury was not prejudicial. Leasure‘s trial counsel did address the charge of physical control on multiple occasions during trial. He stated during opening argument that:
* * * Ohio has made certain acts, certain facts, crimes. All we‘re asking for is that the crime that‘s charged fits the facts of the case. In this case the State has to prove that my client was impaired at the time he oрerated the motor vehicle. The State wants you to take his condition three and half hours later and say it‘s the same condition he was when he operated it. * * * And so why don‘t you charge this man with the proper crime. Cause there is, there is a crime called physical control. It says if you‘re impaired * * * you cannot be behind a vehicle. * * * Here‘s the problem with the State‘s case. They can‘t prove what my client looked like, smelled like, acted like, three and a half hours before. They just can‘t do it because he was there and they can‘t do it and they have to make it fit. Number two. In order to be guilty of OVI, the car has to be operable. What does that mean? It has to be capable of movement. If at the time of impairment the car could not be moved, he cannot be guilty of OVI[,] maybe those other offense but not OVI. * * * And if you understand that movement is a requirement of this car, then how do you charge him with OVI with a term of operate. It doesn‘t fit. You‘ve picked the wrong charge. It‘s proof that my client‘s not guilty of this crime as charged. That‘s where we are. Thank you.
{¶54} Thus, Leasure‘s trial counsel was attempting to convince the jury that Leasure was charged with the wrong offense and should be acquitted of OVI. The matter of “mischarge” was argued to the jury, and consequently, the trial court‘s refusal to so instruct the jury did not result in prejudice.
{¶55} In sum, the trial court‘s refusal to instruct the jury on mischarge and the offense of physical control was not an abuse of its discretion because Leasure was never charged with physical control. Even if we were to assume that the failure to give the instructiоn was in error, it did not result in prejudice because trial counsel effectively raised the issue in his opening and closing statements. Accordingly, Leasure‘s fifth assignment of error is overruled.
IV. Conclusion
{¶56} Leasure has not persuaded us that
JUDGMENT AFFIRMED.
STATE OF OHIO v. CHRISTOPHER LEASURE
Ross App. No. 15CA3484
{¶ 57} I respectfully dissent because I conclude Leasure‘s refusal was compelled and becomes testimonial in this context. Therefore, it is protected by the
{¶ 58} Although the refusal is not ipso facto a crime, it clearly is one of the elements of
{¶ 59} The majority relies on a series of cases dealing largely with Miranda issues to conclude that if it‘s okay to use a refusal as circumstantial evidence of guilt in the context of simple OVI charges, it‘s permissible to use a refusal as proof of an element of a crime in
{¶ 60} Likewise, the majority concludes the refusal was not compelled because Leasure had a choice, “albeit a difficult one.” The majority sees the implied consent law as a bargain that sanctions the choice between two equivalent oрtions: take the test or refuse it. However, the “difficult choices” referred to in Neville, 459 U.S. at 564 (evidence of a refusal was deemed
STATE OF OHIO v. CHRISTOPHER LEASURE
Ross App. No. 15CA3484
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonablе grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Dissenting Opinion.
For the Court
BY:
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.