[Cite as State v. Cline, 2013-Ohio-1404.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 12 CA 11 TRISTA CLINE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Mount Vernon Municipal Court, Case Nos. 11 TRC 3560 and 11 CRB 870
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM D. SMITH J. MATTHEW DAWSON LAW DIRECTOR 35 South Park Place P. ROBERT BROEREN, JR. Suite 10 ASSISTANT PROSECUTOR Newark, Ohio 43055 5 North Gay Street, Suite 222 Mount Vernon, Ohio 43050 Knox County, Case No. 12 CA 11 2
Wise, J.
{¶1} Defendant-appellant Trista Cline appeals her conviction on one count of
Operating a Motor Vehicle While Under the Influence of Alcohol and/or a Drug of Abuse
and one count of Endangering Children entered in the Mount Vernon Municipal Court
following a jury trial.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On or about July 23, 2011, sometime after 6 p.m., Appellant Trista Cline
drove to the Loft Bar in St. Louisville, Ohio, which was her mother Jackie Laughman’s
place of business. Appellant had her five year old son, Mason Rine, in the car with her.
(T. at 109-110). While she was at the bar with Mason, Appellant came into contact with
Winter Gleckler, a part-time employee of the bar. Ms. Gleckler testified that Appellant
was "a little disoriented ... she didn't seem in the right state to like even have a full
conversation." (T. at 111). Ms. Gleckler also smelled alcohol coming from Appellant. (T.
at 111). Ms. Gleckler stated that she was concerned about Appellant and her son and
attempted to keep them at the bar until Ms. Laughman arrived. (T. at 112).
{¶4} Appellant left the bar before her mother arrived. Once Ms. Laughman did
arrive, Ms. Gleckler expressed her concerns and Ms. Laughman and Ms. Gleckler set
out to find Appellant. (T. at 114). Ms. Laughman and Ms. Gleckler eventually located
Appellant, and while they were following her, they observed Appellant driving erratically,
even driving through a person's yard. (T. at 114-115). Ms. Gleckler was driving and Ms.
Laughman tried to contact several different law enforcement agencies while they were
driving. Knox County, Case No. 12 CA 11 3
{¶5} After driving for a period of time, Appellant entered the City of Mount
Vernon and pulled into the parking lot at Honey Bucket Bar on West High Street. (T. at
154). Ptl. Jessica Butler of the City of Mount Vernon, Ohio, Police Department had
received a BOLO on Appellant, based on Ms. Laughlin's calls, and pulled in behind the
Appellant at Honey Buckets. (T. at 153-154). When Ptl. Butler made contact with
Appellant she initially smelled a strong odor of an alcoholic beverage on her breath,
observed her glassy and blood shot eyes and noticed she appeared to be very
disheveled and unsteady on her feet. (T. at 154). She also observed that her speech
was slurred. Id. Ptl. Butler also observed Mason Rine in the back seat of the car, along
with one opened and one unopened beer in the front seat. (T. at 154). Based on her
observations, Ptl. Butler conducted Standardized Field Sobriety tests on Appellant. Ptl.
Butler observed 6 clues on the horizontal gaze nystagmus test, (T. at 159), 6 clues on
the walk and turn test, (T. at 163), and the one-legged stand test was aborted because
of concerns about Appellant's safety. (T. at 161). Ptl. Butler then arrested Appellant for
Operating a Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse, and
transported her to the Office of the Knox County Sheriff so she could request Appellant
to take a chemical breath test.
{¶6} At the Office of the Knox County Sheriff, Ptl. Butler read the BMV 2255
form to Appellant and requested that she take a breath test. (T. at 166). When taking
the test, Appellant "attempted to swallow the entire mouthpiece ... and then she began
to blow, but she was actually spitting into the mouthpiece." (T. at 168). After two
attempts the test was marked as a refusal. (T. at 169). Knox County, Case No. 12 CA 11 4
{¶7} On July 23, 2011, Appellant was arrested for Operating a Motor Vehicle
Under the Influence of Alcohol and/or a Drug of Abuse and Endangering Children.
{¶8} On September 16, 2011, Appellant filed a Motion to Suppress but
withdrew said motion on October 18, 2011.
{¶9} The case was tried to a jury on April 26, 2012, and the jury returned a
guilty finding on both counts. The trial court ordered a pre-sentence investigation and
the Defendant was sentenced on May 14, 2012.
{¶10} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶11} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT
THE RIGHT TO CROSS-EXAMINE THE COMPLAINING OFFICER ON HOW
STANDARDIZED FIELD SOBRIETY TESTS WERE CONDUCTED ON THE
DEFENDANT AFTER THE OFFICER HAD GIVEN DIRECT TESTIMONY ON THE
PROCEDURES THAT WERE TAKEN THAT COULD HAVE LEAD [SIC] THE JURY TO
AN ACQUITTAL.
{¶12} “II. THE TRIAL COURT ERRED IN EXCLUDING MATERIAL TESTIMONY
AND EVIDENCE REGARDING THE MEANING/DEFINITION OF THE PRINTED
RESULTS FROM THE BAC DATAMASTER FROM THE JURY THAT COULD HAVE
LEAD (SIC) THE JURY TO AN ACQUITTAL.”
I.
{¶13} In her First Assignment of Error, Appellant argues that the trial court erred
in not allowing her to cross-examine the police officer about how she conducted the field
sobriety tests. We disagree. Knox County, Case No. 12 CA 11 5
{¶14} At trial, during cross-examination, Appellant attempted to use the National
Highway Traffic Safety Manual to challenge Ptl. Butler’s administration of the
standardized field sobriety tests.
{¶15} Appellant failed to raise any challenges to Ptl. Butler’s administration of
the tests under the National Highway Traffic Safety Manual via a motion to suppress
prior to trial, having withdrawn said motion prior to a hearing on the issues.
{¶16} This Court has previously held that failure to timely file a motion to
suppress evidence amounts to a waiver of any such issues for purposes of trial
pursuant to Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48,
2011-Ohio-3560; State v. Montgomery, Licking App.No. 2007 CA 95, 2008–Ohio–6077,
¶ 43, citing State v. Wade (1973), 53 Ohio St.2d 182, 373 N.E.2d 1244.
{¶17} Here, during the trial, defense counsel attempted to use the NHTSA
manual to impeach Ptl. Butler’s testimony. Impeaching her testimony with the manual
was tantamount to arguing that evidence with respect to Appellant's alleged intoxication
was illegally obtained, and thus, the proper subject of a motion to suppress.
{¶18} The failure to file a motion to suppress constituted waiver of that issue.
{¶19} Appellant’s First Assignment of Error is overruled.
II.
{¶20} In her Second Assignment of Error, Appellant argues the trial court erred
in denying her the right to cross-examine Deputy Wilson on the BAC Datamaster
Supervisor’s guide. We disagree. Knox County, Case No. 12 CA 11 6
{¶21} At trial, the trial court sustained the State’s objection to Appellant’s use of
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[Cite as State v. Cline, 2013-Ohio-1404.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 12 CA 11 TRISTA CLINE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Mount Vernon Municipal Court, Case Nos. 11 TRC 3560 and 11 CRB 870
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM D. SMITH J. MATTHEW DAWSON LAW DIRECTOR 35 South Park Place P. ROBERT BROEREN, JR. Suite 10 ASSISTANT PROSECUTOR Newark, Ohio 43055 5 North Gay Street, Suite 222 Mount Vernon, Ohio 43050 Knox County, Case No. 12 CA 11 2
Wise, J.
{¶1} Defendant-appellant Trista Cline appeals her conviction on one count of
Operating a Motor Vehicle While Under the Influence of Alcohol and/or a Drug of Abuse
and one count of Endangering Children entered in the Mount Vernon Municipal Court
following a jury trial.
{¶2} Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On or about July 23, 2011, sometime after 6 p.m., Appellant Trista Cline
drove to the Loft Bar in St. Louisville, Ohio, which was her mother Jackie Laughman’s
place of business. Appellant had her five year old son, Mason Rine, in the car with her.
(T. at 109-110). While she was at the bar with Mason, Appellant came into contact with
Winter Gleckler, a part-time employee of the bar. Ms. Gleckler testified that Appellant
was "a little disoriented ... she didn't seem in the right state to like even have a full
conversation." (T. at 111). Ms. Gleckler also smelled alcohol coming from Appellant. (T.
at 111). Ms. Gleckler stated that she was concerned about Appellant and her son and
attempted to keep them at the bar until Ms. Laughman arrived. (T. at 112).
{¶4} Appellant left the bar before her mother arrived. Once Ms. Laughman did
arrive, Ms. Gleckler expressed her concerns and Ms. Laughman and Ms. Gleckler set
out to find Appellant. (T. at 114). Ms. Laughman and Ms. Gleckler eventually located
Appellant, and while they were following her, they observed Appellant driving erratically,
even driving through a person's yard. (T. at 114-115). Ms. Gleckler was driving and Ms.
Laughman tried to contact several different law enforcement agencies while they were
driving. Knox County, Case No. 12 CA 11 3
{¶5} After driving for a period of time, Appellant entered the City of Mount
Vernon and pulled into the parking lot at Honey Bucket Bar on West High Street. (T. at
154). Ptl. Jessica Butler of the City of Mount Vernon, Ohio, Police Department had
received a BOLO on Appellant, based on Ms. Laughlin's calls, and pulled in behind the
Appellant at Honey Buckets. (T. at 153-154). When Ptl. Butler made contact with
Appellant she initially smelled a strong odor of an alcoholic beverage on her breath,
observed her glassy and blood shot eyes and noticed she appeared to be very
disheveled and unsteady on her feet. (T. at 154). She also observed that her speech
was slurred. Id. Ptl. Butler also observed Mason Rine in the back seat of the car, along
with one opened and one unopened beer in the front seat. (T. at 154). Based on her
observations, Ptl. Butler conducted Standardized Field Sobriety tests on Appellant. Ptl.
Butler observed 6 clues on the horizontal gaze nystagmus test, (T. at 159), 6 clues on
the walk and turn test, (T. at 163), and the one-legged stand test was aborted because
of concerns about Appellant's safety. (T. at 161). Ptl. Butler then arrested Appellant for
Operating a Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse, and
transported her to the Office of the Knox County Sheriff so she could request Appellant
to take a chemical breath test.
{¶6} At the Office of the Knox County Sheriff, Ptl. Butler read the BMV 2255
form to Appellant and requested that she take a breath test. (T. at 166). When taking
the test, Appellant "attempted to swallow the entire mouthpiece ... and then she began
to blow, but she was actually spitting into the mouthpiece." (T. at 168). After two
attempts the test was marked as a refusal. (T. at 169). Knox County, Case No. 12 CA 11 4
{¶7} On July 23, 2011, Appellant was arrested for Operating a Motor Vehicle
Under the Influence of Alcohol and/or a Drug of Abuse and Endangering Children.
{¶8} On September 16, 2011, Appellant filed a Motion to Suppress but
withdrew said motion on October 18, 2011.
{¶9} The case was tried to a jury on April 26, 2012, and the jury returned a
guilty finding on both counts. The trial court ordered a pre-sentence investigation and
the Defendant was sentenced on May 14, 2012.
{¶10} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶11} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT
THE RIGHT TO CROSS-EXAMINE THE COMPLAINING OFFICER ON HOW
STANDARDIZED FIELD SOBRIETY TESTS WERE CONDUCTED ON THE
DEFENDANT AFTER THE OFFICER HAD GIVEN DIRECT TESTIMONY ON THE
PROCEDURES THAT WERE TAKEN THAT COULD HAVE LEAD [SIC] THE JURY TO
AN ACQUITTAL.
{¶12} “II. THE TRIAL COURT ERRED IN EXCLUDING MATERIAL TESTIMONY
AND EVIDENCE REGARDING THE MEANING/DEFINITION OF THE PRINTED
RESULTS FROM THE BAC DATAMASTER FROM THE JURY THAT COULD HAVE
LEAD (SIC) THE JURY TO AN ACQUITTAL.”
I.
{¶13} In her First Assignment of Error, Appellant argues that the trial court erred
in not allowing her to cross-examine the police officer about how she conducted the field
sobriety tests. We disagree. Knox County, Case No. 12 CA 11 5
{¶14} At trial, during cross-examination, Appellant attempted to use the National
Highway Traffic Safety Manual to challenge Ptl. Butler’s administration of the
standardized field sobriety tests.
{¶15} Appellant failed to raise any challenges to Ptl. Butler’s administration of
the tests under the National Highway Traffic Safety Manual via a motion to suppress
prior to trial, having withdrawn said motion prior to a hearing on the issues.
{¶16} This Court has previously held that failure to timely file a motion to
suppress evidence amounts to a waiver of any such issues for purposes of trial
pursuant to Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48,
2011-Ohio-3560; State v. Montgomery, Licking App.No. 2007 CA 95, 2008–Ohio–6077,
¶ 43, citing State v. Wade (1973), 53 Ohio St.2d 182, 373 N.E.2d 1244.
{¶17} Here, during the trial, defense counsel attempted to use the NHTSA
manual to impeach Ptl. Butler’s testimony. Impeaching her testimony with the manual
was tantamount to arguing that evidence with respect to Appellant's alleged intoxication
was illegally obtained, and thus, the proper subject of a motion to suppress.
{¶18} The failure to file a motion to suppress constituted waiver of that issue.
{¶19} Appellant’s First Assignment of Error is overruled.
II.
{¶20} In her Second Assignment of Error, Appellant argues the trial court erred
in denying her the right to cross-examine Deputy Wilson on the BAC Datamaster
Supervisor’s guide. We disagree. Knox County, Case No. 12 CA 11 6
{¶21} At trial, the trial court sustained the State’s objection to Appellant’s use of
the BAC Datamaster Supervisor’s guide to challenge the officer’s administration of the
tests, including the definitions of certain error codes.
{¶22} Again, as set forth above, failure to timely file a motion to suppress
evidence amounts to a waiver of any such issues for purposes of trial pursuant to
Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48, 2011-Ohio-
3560.
{¶23} Additionally, no chemical results were produced in this case because after
two unsuccessful attempts, Appellant’s failure to successfully take the test was marked
as a refusal. It therefore follows that the deputy’s knowledge of error codes is not
relevant to Appellant’s refusal of the chemical test.
{¶24} Appellant’s Second Assignment of Error is overruled.
{¶25} For the foregoing reasons, the judgment of the Mount Vernon Municipal
Court, Knox County, Ohio, is hereby affirmed.
By: Wise, J.
Delaney, P. J., and
Gwin, J., concur.
___________________________________
JUDGES JWW/d 0326 Knox County, Case No. 12 CA 11 7
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TRISTA CLINE : : Defendant-Appellant : Case No. 12 CA 11
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES