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State of Ohio v. Rory Knicely

September 26, 2011

STATE OF OHIO APPELLEE
v.
RORY KNICELY APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. TRC-10-03-02136

The opinion of the court was delivered by: Whitmore, Presiding Judge.

Cite as State v. Knicely,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Rory Knicely, appeals from his conviction in the Wayne County Municipal Court. This Court affirms.

I

{¶2} Shortly after 11:30 p.m. on March 17, 2010, Trooper Vernon Pickering stopped a speeding motorcycle on State Route 585. Trooper Pickering detected a moderate odor of alcohol and asked the driver, Knicely, whether he had been drinking. Knicely admitted that he had consumed one to two beers at a friend's house. Trooper Pickering then administered several field sobriety tests and arrested Knicely as a result of the tests. Knicely refused to submit to blood alcohol content level testing at the police station. At the time of his arrest, Knicely had one prior conviction for operating a vehicle while intoxicated.

{¶3} Knicely was charged with speeding, in violation of R.C. 4511.21(D)(1), and driving while under the influence, in violation of both R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2). A jury found Knicely guilty of violating R.C. 4511.19(A)(2), and the trial court dismissed the remaining charges. The court sentenced Knicely to jail, house arrest, community control, and a fine.

{¶4} Knicely now appeals from his conviction and raises three assignments of error for our review.

II

Assignment of Error Number One

"THE TRIAL COURT ERRED IN IMPROPERLY AND PREJUDICIALLY INSTRUCTING THE JURY TO DISREGARD COMMENTS BY DEFENSE COUNSEL REGARDING THE PROSECUTION'S FAILURE TO SHOW A VIDEO TAPE OF THE ARREST THEREBY DENYING APPELLANT RORY KNICELY HIS RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

{¶5} In his first assignment of error, Knicely argues that the trial court erred by instructing the jury to disregard certain comments his counsel made in closing argument. We disagree.

{¶6} "The assessment of whether permissible bounds of closing argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court." State v. Caldwell (Dec. 4, 1991), 9th Dist. No. 14720, at *11. "Such a determination will not be reversed on appeal absent an abuse of discretion." Id. An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{ΒΆ7} Although there was a videotape recording of the traffic stop in this case, the State opted not to introduce it at trial. The State instead relied upon Trooper Pickering's testimony to prove its case against Knicely. Rather than introduce the videotape himself, Knicely's counsel drew attention to its absence throughout trial. He criticized Trooper Pickering's field sobriety testing methods based on his own viewing of the videotape and repeatedly asked him questions, such as, "[a]nd you *** don't have the tape here to tell me otherwise, ...


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