Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court, Western
District. Case No. 2016 TRC 02096 W.
Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County
Prosecutor's Office, (For Plaintiff-Appellee).
E. Koerner, Law Office of David E. Koerner, (For
TIMOTHY P. CANNON, P.J.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
Beavers filed a timely notice of appeal and raises three
assignments of error. For clarity, we combine and consider
the assignments of error accordingly.
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.
Beavers' first assignment of error states:
TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE HORIZONTAL
GAZE NYSTAGMUS FST WHERE THE STATE FAILED TO PROVE
SUBSTANTIAL COMPLIANCE WITH NHTSA GUIDELINES BY CLEAR AND
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.
"'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 ...