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State v. Beavers

Court of Appeals of Ohio, Eleventh District, Ashtabula

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
BRADLEY DEE BEAVERS, Defendant-Appellant.

          Criminal Appeal from the Ashtabula County Court, Western District. Case No. 2016 TRC 02096 W.

         Judgment: Affirmed.

          Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Prosecutor's Office, (For Plaintiff-Appellee).

          David E. Koerner, Law Office of David E. Koerner, (For Defendant-Appellant).


          TIMOTHY P. CANNON, P.J.

         {¶1} Appellant, Bradley Dee Beavers ("Beavers"), appeals from the February 5, 2019 judgment entry of the Ashtabula County Court, Western District, finding him guilty on two counts of Operating a Motor Vehicle Under the Influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a) and (A)(2), and one count of Operating without Reasonable Control, in violation of R.C. 4511.202. We affirm the trial court's judgment.

         {¶2} On December 21, 2016, a complaint was filed with the Ashtabula County Court, Western District, charging Beavers with four counts: (1) Operating a Motor Vehicle Under the Influence, in violation of R.C. 4511.19(A)(1)(a); (2) Operating a Motor Vehicle Under the Influence, in violation of R.C. 4511.19(A)(2); (3) Driving under a Suspension in violation of R.C. 4510.16; and (4) Operating without Reasonable Control, in violation of R.C. 4511.202. The complaint was regarding an incident where Beavers was found in the parking lot of a Dollar General store during a snowy winter night. A truck registered to Beavers Built Construction was found in a nearby ditch outside the store. Beavers pled not guilty to all charges.

         {¶3} Before trial, Beavers filed motions in limine seeking to limit what the state could present with regard to field sobriety tests conducted by officers at the scene of the incident. These motions were denied, and the matter proceeded to trial. No motion to suppress evidence was filed by Beavers. On February 5, 2019, a bench trial was held in the instant matter. At the trial, three witnesses testified for the state.

         {¶4} Tori Pelligrino was an employee at the Dollar General store near where Beavers and his truck were found. She testified that she was familiar with Beavers as a customer, and he entered the store on December 20, 2016, to purchase brake fluid. She also testified that he was on his cell phone aggressively demanding that the person he was speaking to come to the store and help tow his truck out of the ditch.

         {¶5} While purchasing the brake fluid, Pelligrino testified that Beavers stated to the person he was speaking to on his cell phone that he was coming from a local bar and had driven into the ditch. She stated no one else was with him at any time during the incident, and she witnessed him return to the vehicle after purchasing brake fluid, get in, and "rock it back and forth" for several minutes in an attempt to get out of the ditch. Pelligrino also stated that she believed Beavers was "definitely intoxicated" based on her interaction with him.

         {¶6} Next, Troopers Mika Cottom and Jason Haynes testified about their investigation into the incident. Upon approaching Beavers, Trooper Cottom and Haynes were told by Beavers that his brother's friend was driving the truck when it went into the ditch. Beavers claimed that the driver, whose last name and phone number were unknown, had left the scene to go retrieve help towing the truck from the ditch. The friend Beavers alleged was driving never returned to the scene during the investigation.

         {¶7} Both troopers testified that during this exchange with Beavers, they noticed Beavers' speech was slurred, his eyes were glassy and bloodshot, and they detected an odor of alcohol. Beavers denied having consumed any alcohol for several years. Also, the troopers noticed some inconsistencies in Beavers' account of the incident-namely, there were no footprints in the snow on the passenger side of the truck where Beavers claimed to have exited the vehicle, the interior floorboard was wet from snowfall only on the driver side, and an unopened can of beer was in the truck.

         {¶8} Trooper Cottom administered the Horizontal Gaze Nystagmus ("HGN") test, and he testified that Beavers showed all six possible clues associated with intoxication from the test. Following the HGN test, Beavers asked several times if he had "passed" the test before claiming he was physically unable to participate in any other field sobriety tests because he had a physical deformity that affected his balance and coordination. Trooper Cottom then placed Beavers under arrest for, inter alia, operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19. Beavers was transported by Trooper Cottom to the Ashtabula Post for highway patrol, where he refused blood alcohol content ("BAC") testing.

         {¶9} After the state rested its case-in-chief, defense counsel moved for a Rule 29 acquittal, which the trial court denied at that time. The defense moved for an acquittal again at the conclusion of the trial, and it was denied a second time.

         {¶10} After hearing all the testimony and evidence, the trial court found Beavers guilty on three of the four charges brought against him. He was found not guilty of driving under a suspension in violation of R.C. 4510.16.

         {¶11} Beavers filed a timely notice of appeal and raises three assignments of error. For clarity, we combine and consider the assignments of error accordingly.

         {¶12} Beavers' first and third assignments of error both challenge the admission and consideration of the horizontal gaze nystagmus ("HGN") field sobriety test conducted by Trooper Cottom.

         {¶13} Beavers' first assignment of error states:


         {¶14} In his first assignment of error, Beavers challenges whether the state met their burden in justifying the admission of the HGN test by laying a foundation of substantial compliance with the National Highway Traffic Safety Administration ("NHTSA") guidelines. The state argues that the issue of whether the HGN test can be presented was not properly objected to by way of a motion to suppress and the objection has therefore been waived. We agree that the substantial compliance challenge has been waived.

         {¶15} "'A Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to challenge the admissibility of evidence to prove an OMVI charge on a claim that it was not procured pursuant to applicable standards or regulations.'" State v. Dean, 11th Dist. Portage No. 2007-P-0025, 2007-Ohio-6947, ¶37, quoting State v. Murray, 2d Dist. Greene ...

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