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State v. Starner

Court of Appeals of Ohio, Fifth District, Fairfield

June 13, 2019

STATE OF OHIO, Plaintiff - Appellee
v.
BRYAN K. STARNER, Defendant-Appellant

          Appeal from the Fairfield County Muncipal Court, Case No. TRC 17 02672

          For Plaintiff-Appellee DANIEL E. COGLEY.

          For Defendant-Appellant SCOTT P. WOOD Conrad/Wood.

          JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} Bryan K. Starner appeals the decision of the Fairfield County Municipal Court finding him guilty of operating a motor vehicle while impaired by alcohol or a drug of abuse, a violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor. Appellant is the State of Ohio.

         STATEMENT OF FACTS AND THE CASE

         {¶2} The Ohio State Highway Patrol stopped appellant for exceeding the speed limit and, after noting what he perceived to be indicia of intoxication, the Trooper performed field sobriety tests and arrested appellant. Appellant was charged with a violation of R.C. 4511.19(A)(1)(a), operating a vehicle under the influence of alcohol and/or a drug of abuse, two minor misdemeanor offenses, speeding, in violation of R.C. 4511.21(C) and driving outside of marked lanes, in violation of R.C. 4511.33. He was convicted of all counts and now appeals only the jury's finding that he was guilty of a violation of R.C. 4511.19(A)(1)(a).

         {¶3} Trooper John Moore of the Ohio State Highway Patrol stopped appellant at 12:50 AM after observing him travel seventy-five miles per hour in a forty mile per hour zone. Appellant stopped, but then began driving again, weaving within the lane and crossing the center line and outside line before stopping approximately one mile later. Appellant claimed that he did not see or hear the Trooper when he first attempted to stop appellant.

         {¶4} Appellant claimed he was heading toward Logan, Ohio, but he was traveling in the wrong direction and was mistaken as to the road he was traveling. The Trooper noted that appellant's eyes were bloodshot and glassy and that he was lethargic. He asked appellant to exit the vehicle to perform field sobriety tests. Appellant exhibited six of six clues of inebriation on the Horizontal Gaze Nystagmus Test, five of eight clues on the Walk-and-Turn Test, and four of four clues on the one-legged stand test. He was unable to complete the ABC test. Appellant was unable to maintain his balance, could not follow simple instructions and had an odor of alcohol about his person.

         {¶5} Appellant initially denied drinking any alcohol, then, after he was arrested, he admitted to having "one or two beers."

         {¶6} Appellant requested that the OMVI charge be presented to a jury and, in his defense, he presented the testimony of Dr. David Cummin who testified that some of appellant's behaviors during the field sobriety test were consistent with a stroke the appellant suffered years ago. Dr. Cummin stated that the stroke may have affected appellant's coordination, balance and might cause nystagmus, but he admitted that he did not examine the appellant. Appellant offered this testimony without objection from appellee and did not request a jury instruction regarding expert testimony.

         {¶7} The jury found the appellant guilty and appellant filed a timely notice of appeal and submits two assignments error:

         {¶8} "I. THE GUILTY VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST ...


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