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State v. Fudge

Court of Appeals of Ohio, Tenth District

February 15, 2018

State of Ohio, Plaintiff-Appellee,
v.
Shawn Fudge, Defendant-Appellant.

         APPEAL from the Franklin County Municipal Court BROWN, P.J. (M.C. No. 2016 TRC 107560)

         On brief:

          Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, Melanie R. Tobias, Zachary Gwin, and Orly Ahroni, for appellee.

         Argued:

          Zachary Gwin.

         On brief:

          The Koffel Law Firm, Bradley P. Koffel, and Eric E. Willison, for appellant.

         Argued:

          Eric E. Willison.

          DECISION

          BROWN, P.J.

         {¶ 1} This is an appeal by defendant-appellant, Shawn Fudge, from a judgment of conviction and sentence entered by the Franklin County Municipal Court following a jury trial in which he was found guilty of operating a vehicle under the influence of alcohol, and operating a vehicle under the influence of alcohol with a refusal to submit to chemical testing and a qualifying prior conviction within the past 20 years.

         {¶ 2} On February 2, 2016, appellant was charged with operating a vehicle under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1), OVI with a refusal to submit to a chemical test and a prior conviction within 20 years, in violation of R.C. 4511.19(A)(2), and failure to use a turn signal, in violation of R.C. 4511.39. The matter came for trial before a jury beginning September 26, 2016.

         {¶ 3} The first witness for plaintiff-appellee, State of Ohio, was Bruce Allen, currently employed by the Ohio State University Police Department. Allen was previously employed as a trooper with the Ohio State Highway Patrol ("OSHP"), and was working in that capacity during the events at issue.

         {¶ 4} On February 1, 2016, shortly after midnight, Allen was in a marked OSHP cruiser on Hudson Street when he observed a vehicle driven by appellant. Allen turned onto Interstate 71 and "accelerated at a normal speed" when he noticed appellant's vehicle "was accelerating at a much faster rate than mine." Allen "sped up" to pace appellant's speed, and Allen "had to speed up * * * over 100 miles per hour to catch back up to him." (Tr. at 139.) Allen testified he looked at his speedometer and "we were both going over 90 at that point." (Tr. at 140.)

         {¶ 5} Allen initiated a traffic stop of the vehicle, at which time he "detected an odor of an alcoholic beverage coming from the vehicle." Appellant told Allen he was "coming from a birthday party, " and "stated that he had consumed some alcoholic beverages." Appellant's "eyes were red" and his "speech was lethargic" or "[s]lurred." (Tr. at 142.) Allen requested appellant exit the vehicle to perform a field sobriety test. Allen performed the horizontal gaze nystagmus ("HGN") test and observed nystagmus in both of appellant's eyes.

         {¶ 6} Allen "called for another trooper to come to the scene * * * to proceed with the investigation at this point" because it was his last week of employment with OSHP and he did not want to "take any more cases on for fear of not being available to testify." (Tr. at 150.) A second trooper arrived at the scene of the stop about ten minutes later and agreed to take over the investigation.

         {¶ 7} On February 1, 2016, OSHP Trooper Brandi Allen (hereafter "Trooper Brandi") received a dispatch requesting assistance with a traffic stop. When Trooper Brandi arrived at the scene, she was advised by Bruce Allen that he had "stopped the vehicle for a turn signal violation and had to travel at speeds up to a hundred miles per hour in order to catch up to the vehicle." The driver was seated in the rear of Bruce Allen's patrol car; Bruce Allen indicated he had conducted the HGN test on the driver and "observed six clues." (Tr. at 175.) Because the trooper who initiated the stop was "getting ready to leave the highway patrol and go to another agency, " the decision was made for Trooper Brandi to take over the primary duties with respect to the traffic stop. (Tr. at 178.)

         {¶ 8} When Trooper Brandi first approached the other trooper's patrol car and opened the door, she "could observe [appellant] had bloodshot, glassy eyes, " and she "could smell the odor of an alcoholic beverage coming from the rear of the patrol car." (Tr. at 185.) Trooper Brandi conducted the HGN test on appellant and observed six out of six potential clues.

         {¶ 9} Trooper Brandi then had appellant perform the "walk-and-turn" test, which has eight clues. (Tr. at 184.) She testified that the presence of two out of eight clues is a reliable indicator of a blood alcohol content greater than .10. Trooper Brandi observed the presence of five clues during the walk-and-turn test. Specifically, she noted that appellant used his arms for balance, he took an "improper turn on the first nine steps, " his first step was "off the line, " he stopped on the fourth step, and he took 13 steps instead of 9 as instructed. On the second 9 steps, appellant's first 2 steps "were off the line, " and he took a total of 17 steps. (Tr. at 190.)

         {¶ 10} Trooper Brandi also instructed appellant to perform the "[o]ne-leg stand test." (Tr. at 191.) Appellant exhibited three out of four clues on this test; specifically, appellant "swayed, used his arms for balance, [and] put his foot down twice." (Tr. at 192-93.) According to Trooper Brandi, the presence of ...


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