from the Franklin County Municipal Court BROWN, P.J. (M.C.
No. 2016 TRC 107560)
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker,
Melanie R. Tobias, Zachary Gwin, and Orly Ahroni, for
Koffel Law Firm, Bradley P. Koffel, and Eric E. Willison, for
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
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
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
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 ...