{¶ 2} Just before midnight on February 11, 2006, Sergeant Dunbar of the Ohio State Highway Patrol, was traveling westbound on State Route 59 near the City of Kent, *2 in Portage County, Ohio. When Sergeant Dunbar approached the Kent City limits, he decided to turn around in the parking lot of the United Methodist Church. As Sergeant Dunbar waited to reenter the roadway, he observed a white Ford pickup truck, driven by Lothes, traveling eastbound without its headlights illuminated. After traffic passed, Dunbar began following the truck eastbound toward Ravenna for a distance of approximately half a mile.
{¶ 3} Dunbar caught up to Lothes' truck in the vicinity of the intersection of State Route 59 and Sixth Avenue, at which point, Lothes made a left hand turn onto Sixth and into the parking lot of the Discount Drug Mart store located at the corner of Route 59 and Sixth. Sergeant Dunbar activated his overhead lights just as Lothes pulled into a parking space in front of the store and pulled up behind the truck, on the passenger side, almost perpendicular to the rear of Lothes' vehicle.
{¶ 4} Approaching the vehicle, Sergeant Dunbar conducted a traffic stop, informing Lothes that he had observed him drive past without his headlights on. Sergeant Dunbar asked where Lothes was going, and Lothes responded that he was "taking his friend back to his vehicle." Sergeant Dunbar then asked if his friend's vehicle was parked in the parking lot, and he said no.
{¶ 5} As they were speaking, Sergeant Dunbar noticed that Lothes was slurring his speech, and that there was a "moderate" odor of alcohol emanating from the cab of the vehicle. Sergeant Dunbar asked Lothes if he had anything to drink that evening, and Lothes responded that he had "three or four" alcoholic beverages.
{¶ 6} Sergeant Dunbar then asked Lothes to exit the cab of the vehicle to perform standardized sobriety tests, which included the one-legged stand test, followed *3 by the walk-and-turn test, and finally, the Horizontal Gaze Nystagmus (HGN) test.1 As he was conducting the tests, Sergeant Dunbar again noticed the odor of alcohol on Lothes' person.
{¶ 7} Based upon the results of these tests and his observations, Lothes was arrested and charged with Operating a Vehicle while Under the Influence, in violation of R.C.
{¶ 8} Lothes was given a Miranda warning. Lothes later volunteered that he and his friend had been returning from Ray's, in Kent that evening. When initially asked to take a breath test for alcohol, Lothes refused, but he subsequently agreed to submit to testing.
{¶ 9} Lothes filed a motion to suppress with the trial court on March 21, 2006. The trial court held a hearing on Lothes' motion on April 27, 2006. At the hearing, Sergeant Dunbar was the only witness to testify. The trial court overruled Lothes' motion on the same day.
{¶ 10} Following the court's denial of his suppression motion, Lothes pled no contest to the OVI charge, the remaining charges were dropped, and the trial court found him guilty. The trial court sentenced Lothes to ten days in jail, fined him $500, and suspended his license for one year. The trial court subsequently stayed execution of Lothes' sentence pending this appeal. *4
{¶ 11} Lothes requested, and was granted leave to appeal, pursuant to App.R. 5 and raises the following assignments of error for our consideration:
{¶ 12} "[1.] The trial court erred in denying defendant's motion to suppress when the arresting officer destroyed potentially exculpatory evidence of defendant's performance during field sobriety tests.
{¶ 13} "[2.] The trial court erred in denying defendant's motion to suppress as the state presented no evidence that the arresting officer conducted the field sobriety tests in conformance with the requirements established by [the National Highway Traffic Safety Administration] ("NHTSA").
{¶ 14} "[3.] Defendant-appellant was denied his constitutional right to the effective assistance of counsel."
{¶ 15} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside,
{¶ 16} In his first assignment of error, Lothes argues that his due process rights under the
{¶ 17} The State's failure to preserve materially exculpatory evidence is a violation of a defendant's due process rights under the
{¶ 18} However, evidence is not materially exculpatory if it is merely potentially useful to the defense. State v. Lewis, (1990),
{¶ 19} With regard to the videotaped evidence of the traffic stop, Sergeant Dunbar testified, upon cross-examination, as follows:
{¶ 20} "Q: Now your cruiser is equipped with video capability, correct?
{¶ 21} "A: Yes, it is.
{¶ 22} "Q: And that video camera, is it from basically the driver's view or from inside the car or is it on top?
{¶ 23} "A: It's mounted on the passenger side windshield. Inside the vehicle.
{¶ 24} "Q: And it gives you a video view or it's supposed to give you a video view of what happens in front of your car?
{¶ 25} "* * *
{¶ 26} "A: Right. It would have picked up the vehicle at that time.
{¶ 27} "Q: O.K. Now, I had commented to you about getting a copy of that videotape, and aside from a little bit at the beginning when you first pull into the parking lot, the rest of the tape doesn't exist, correct?
{¶ 28} "A: That's correct.
{¶ 29} "Q: And that's because it was inadvertently erased?
{¶ 30} "A: Well, it was put back in the machine. It's got an automatic lock on the video machine. It's supposed to forward up to that stop and then start again. Well, *7 apparently that malfunctioned and it got erased and it got taped over. So the only thing I have on tape is actually the initial stop.
{¶ 31} "Q: O.K. Let's assume that hadn't happened. Would you have been able to get any of the field sobriety tests on that video if the video — or if the field sobriety tests were done at the left of defendant's vehicle?
{¶ 32} "A: Probably not. Probably wouldn't have seen anything. Might have seen the heads, but you wouldn't have seen —
{¶ 33} "Q: Wouldn't have seen the feet?
{¶ 34} "A: No.
{¶ 35} "Q: Wouldn't have seen anything else? Because it's a pickup truck.
{¶ 36} "A: Well, yeah. And just the fact that it was back in that area over there. And the truck blocking it and the angle.
{¶ 37} "Q: And so we're clear and the Court's clear, the sobriety tests, I believe you used one of the parking lines —
{¶ 38} "A: Uh-huh.
{¶ 39} "Q: — as the reference point for beginning the test, etcetera?
{¶ 40} "A: Right.
{¶ 41} " * * *
{¶ 42} "Q: "I understand. So it might have been the next parking space over? Maybe in this area here?
{¶ 43} "A: Yeah. It got started right around where the driver's seat would be. A little out in front. Did it right across from where the driver would be sitting." *8
{¶ 44} Although Sergeant Dunbar acknowledged during his testimony that the Ohio State Highway Patrol's established protocol is to "attempt to videotape what goes on [during] the arrest," this court has previously held that a police officer has no affirmative duty under the constitution, or statutory or common law to videotape the results of field sobriety tests. State v. Delarosa, 11th Dist. No. 2003-P-0129,
{¶ 45} Lothes' reliance on State v. Benton (2000),
{¶ 46} A review of the record reveals that, aside from counsel's "comment" to Sergeant Dunbar about receiving a copy of the tape, the defense never filed any formal discovery request. Cf. Benson,
{¶ 47} Moreover, unlike Benson, Lothes has offered absolutely no proof that the videotaped evidence would have been materially exculpatory.
{¶ 48} Nor has Lothes shown that the videotaped evidence, had it been preserved, would have been potentially useful to his defense. Sergeant Dunbar's undisputed testimony was that he conducted the walk-and-turn and the one-legged stand tests on the driver's side of the vehicle. A review of the short portion of the videotape evidence remaining from the traffic stop of Lothes' truck corroborates Dunbar's testimony that Lothes performance of the aforementioned tests, would have been at least partially blocked from view by his vehicle. With regard to the HGN test, the undisputed testimony reveals that the test was performed with Lothes seated in the *10 front seat of the patrol car.2 Since there is no camera which photographs the interior of the patrol vehicle, Lothes' performance on the HGN test would not have been captured.
{¶ 49} Even if we were to assume some potential usefulness of the videotaped evidence, there is no evidence herein, unlike as inBenson and Benton, of bad faith involving the erasure of the videotape in question.
{¶ 50} At the hearing, Sergeant Dunbar explained the operation of the videotape equipment and testified that the erasure was due to a malfunction of the "automatic lock" on the video machine. In addition, Dunbar produced the portion of the videotape that had not been erased. The defense played this portion of the videotape at the hearing. Cf.Benson
{¶ 51} For the aforementioned reasons, we find Lothes' first assignment of error to be without merit.
{¶ 52} In his second assignment of error, Lothes argues that the trial court erred in denying his suppression motion, since the State offered no evidence that the tests were conducted in compliance with NHTSA standards.
{¶ 53} R.C.
{¶ 54} Our review of the transcript reveals that, despite the fact that the state established Sergeant Dunbar was trained to conduct the field sobriety tests in a certain fashion and that he did, indeed, conduct the tests in accordance with his training, the state did not offer any evidence or testimony to show that Sergeant Dunbar's training was in accordance with NHTSA standards. See State v. Brown,
{¶ 55} However, this is not the end to our inquiry. "In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. * * * In making this determination, we will examine the `totality' of the facts and circumstances surrounding the arrest." State v. Homan,
{¶ 56} R.C.
{¶ 57} The aforementioned statute is a codification of the Ohio Supreme Court's holding in State v. Schmitt,
{¶ 58} In the case sub judice, Sergeant Dunbar testified that he viewed Lothes' vehicle driving without its headlights on and that, based upon his 28 years of experience as an officer, it was "not uncommon" for people who were impaired to drive without their headlights on at night. Sergeant Dunbar further testified that upon stopping and approaching Lothes' vehicle, he detected an odor of alcohol emanating from the passenger compartment, which persisted from Lothes' person when he was later asked to step out and away from the vehicle. He characterized Lothes' speech as "slurred," and stated that Lothes delayed in responding to his questioning. When questioned, Lothes volunteered information that he was returning with his friend from Ray's, a local bar and restaurant, where he had consumed "three to four" alcoholic beverages. *13
{¶ 59} With regard to his observations during the one-legged stand test, Sergeant Dunbar testified that, even prior to the test being conducted, Lothes "lost his balance on two occasions" and "stepped off the line before he even started." Dunbar stated that Lothes had difficulty performing the test as instructed, including having to be told "on two occasions at least to raise his leg higher off the ground" and keeping his arms up, despite being told to keep them down by his sides. With regard to the walk-and-turn test, Sergeant Dunbar testified that Lothes "had difficulty keeping his feet together," where "most of his steps didn't actually touch the line," and that he took a greater number of steps than instructed.
{¶ 60} Finally, there was evidence in the record of Lothes' refusal to submit to a breath test. Courts in Ohio have held that a trier of fact may consider a defendant's refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik,
{¶ 61} Based upon the totality of the circumstances, we conclude that there was sufficient competent, credible evidence to support the trial court's finding of probable cause, in the absence of the admission of the test results.
{¶ 62} Appellant's second assignment of error is without merit.
{¶ 63} In his third assignment of error, Lothes argues that his counsel was ineffective, since but for the ineffective performance of his counsel, the outcome of his motion to suppress would have been different. He argues that the failure of his counsel *14 to raise the "purely legal arguments" as raised in his first and second assignments of error resulted in "prejudice to the appellant." We disagree.
{¶ 64} In State v. Bradley (1989),
{¶ 65} "[T]he proper standard for attorney performance is that of reasonably effective assistance * * * [and] the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland,
{¶ 66} We find nothing in the record which would indicate counsel's representation fell below an objective standard of reasonableness. Contrary to Lothes' assertions, our discussion of the first and second assignments of error reveal not merely "legal" distinctions between the cases cited and the instant matter, but factual distinctions as well. Since we found no error in the trial court's denial of Lothes' motion to suppress, based upon the evidence properly before the court, we cannot conclude that counsel's performance was ineffective.
{¶ 67} Lothes' third assignment of error is without merit. *15
{¶ 68} The judgment of the Portage County Municipal Court, Ravenna Division, is affirmed.
CYNTHIA WESTCOTT RICE, P.J., MARY JANE TRAPP, J. concur.