[Cite as State v. Sanyasi, 2024-Ohio-2042.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : Case No. 2023 CA 00041 : GIRJA SANYASI : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 22TRC10015
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 28, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
BOBBIE YEAGER APRIL F. CAMPBELL ASSISTANT LAW DIRECTOR 545 Metro Place South, Suite 100 40 West Main St., Suite 404 Dublin, OH 43017 Newark, OH 43055 Licking County, Case No. 2023 CA 00041 2
Delaney, P.J.
{¶1} Defendant-Appellant Girja Sanyasi appeals his April 13, 2023 conviction
and sentence by the Licking County Municipal Court. Plaintiff-Appellee is the State of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 24, 2022, Defendant-Appellant Girja Sanyasi was arrested
by the Ohio State Highway Patrol and charged with (1) OVI Impaired, a first-degree
misdemeanor in violation of R.C. 4511.19(A)(1)(a); (2) OVI Refusal, a first-degree
misdemeanor in violation of R.C. 4511.19(A)(2); (3) Marked Lanes, a minor misdemeanor
in violation of R.C. 4511.33; and (4) Distracted Driving, a minor misdemeanor
enhancement in violation of R.C. 4511.991. Appellant entered a plea of not guilty to the
charges.
{¶3} The matter proceeded to a jury trial on April 13, 2023. The trial court utilized
an interpreter to assist with communication because Appellant spoke Nepali. The
following evidence was presented at trial.
Traffic Stop
{¶4} On November 24, 2022, Trooper Colt Taylor with the Ohio State Highway
Patrol was on duty and patrolling the west side of Licking County on Taylor Road in
Pataskala and Reynoldsburg. At 10:46 p.m., Trooper Taylor encountered a vehicle
travelling southbound on Taylor Road. Trooper Taylor observed the vehicle commit
multiple marked lanes violations, including traveling left of center twice and striking the
right curb twice. The officer activated his overhead lights and initiated a traffic stop. The
vehicle eventually stopped in the middle of the southbound lane. Licking County, Case No. 2023 CA 00041 3
{¶5} Trooper Taylor approached the vehicle and observed that Appellant was
the only occupant of the vehicle. The officer noted that Appellant appeared to have glassy
bloodshot eyes, a flushed face, slurred speech, acting very lethargic where his
movements were not smooth, and an odor of an alcoholic beverage was emanating from
the vehicle. Appellant reached for his wallet twice and dropped it. Trooper Taylor asked
Appellant if he had anything to drink and Appellant denied having anything to drink. While
Appellant was sitting in the vehicle, Trooper Taylor noticed that Appellant had resting
body tremors where his arms and legs were shaking as he was sitting stationary. Based
on these indicators of impairment, Trooper Taylor asked Appellant to exit the vehicle.
Standardized Field Sobriety Tests
{¶6} Trooper Taylor asked Appellant to perform standardized field sobriety tests,
to which Appellant agreed. It appeared to Trooper Taylor that Appellant spoke Nepali, so
Trooper Taylor attempted to use a translator application through his smart watch to assist
with communication. The translator application, however, was not available. Trooper
Taylor first administered the horizontal gaze nystagmus (HGN) test and found six out of
six clues. Relevant to this appeal, the State asked Trooper Taylor the following regarding
the HGN test:
Q. Based on your training and your experience is HGN a good indicator of
impairment?
A. Yes and I believe it is the best test that we have to offer. To clarify for
alcohol that is.
Q. Why is it a good indicator? Licking County, Case No. 2023 CA 00041 4
A. It has the highest percentage rate. It has the highest percentage rate if
you have six of six clues. I'm thinking too hard. I can't recall but it is over
eighty percent that the individual is at or over the legal limit for alcohol which
is .08.
Q. Can a person fake HGN results?
A. No and to add to that no you can't...You can't just create nystagmus. With
some habitual alcoholics which means people who drink all of the time they
might have better balance than some people who have just drank for their
second or third time but one thing that you will always see with alcohol, a
high level of alcohol, you're always going to see that nystagmus.
(T. 109-110). There was no objection to this testimony.
{¶7} On cross-examination, Appellant’s counsel explored Trooper Taylor’s
testimony as to the HGN test:
Q. Okay, and you testified that... that it is a very reliable test?
A. Yes.
Q. And eighty percent of the people test over the limit if you get those clues?
A. Um…the NHTSA Manual States that if you get four of the six clues and
once again it is either eighty three or eighty six percent of people who are
at or over the legal limit. I can't remember the exact number that is why I
said over eighty to be truthful but it is either eighty three or eighty six I am
not for sure off the top of my head.
Q. And again that statistic is based on accurate performance, accurate
instructions, and accurate results? Licking County, Case No. 2023 CA 00041 5
A. Well I would add that my response to that would be in real world
scenarios with people who are under the influence you are not going to get
a perfect test period they are not going to be a hundred percent cooperative.
It doesn't happen.
Q. Okay, so that would mean that either thirteen or seventeen percent of
people where you find those clues ultimately do not test over the limit?
A. When the four of six clues are observed.
Q. Okay.
A. So it is not comparable to this because this once again was six of six
clues.
Q. And there is no statistic that applies to six out of six?
A. I believe there is but I am not going to respond to that because I can't
remember the exact percentage off the top of my head.
(T. 148-149).
{¶8} Trooper Taylor then administered the walk and turn test, finding eight out of
eight clues. On the one leg stand test, Trooper Taylor observed three out of four clues.
Based on the clues and indicators of impairment, Trooper Taylor placed Appellant under
arrest for OVI Impaired. Trooper Taylor provided Appellant with his Miranda rights and
transported him to the Granville Post of the Ohio State Highway Patrol.
Breath Test
{¶9} At the Granville Post, Trooper Taylor asked if Appellant would submit to a
breath test, to which Appellant agreed. A video was shown to the jury as to Trooper Taylor
administration of the breath test to Appellant. Trooper Taylor instructed Appellant on how Licking County, Case No. 2023 CA 00041 6
to complete the breath test. He explained to the jury the instructions he provided to
Appellant on the proper method to take a breath test. Appellant attempted three times to
submit a sample, but Appellant was unable to provide a sample. Trooper Taylor marked
“refusal” on the BMV 2255 form. The form only provides options for “refused” or
“submitted,” there is no option for “unable to complete.” Based on Appellant’s prior OVI
conviction in 2015, Trooper Taylor charged Appellant with OVI Refusal.
{¶10} Trooper Taylor testified on direct examination as to why he marked the form
as a refusal when Appellant attempted to take the breath test three times:
A. If you can’t give the machine a valid sample then I obviously cannot
accept that as a breath test and so it has to be marked as a refusal. Not to
mention I gave him three opportunities to follow my instructions. There is
not a whole lot of instructions here it is pretty self-explanatory seal your lips
around the end of the mouthpiece and blow into the machine. It is clear at
the end once he did finally seal his lips around the end of the mouthpiece
he was holding his air he wasn’t blowing into the machine. If he would have
been blowing into the machine the tone on the machine would have stayed
steady it wouldn’t have stopped. Every time that tone stops that means
there is no air getting to the machine. So subsequently since he failed to
cooperate this was marked as a refusal.
Q. And is that what is…is that what it says in the NHTSA Manual to do?
A. Yes and for the record I don’t have to give three attempts. I only
technically have to give one attempt.
(T. 130-131). On cross-examination, Trooper Taylor testified as to the breath test: Licking County, Case No. 2023 CA 00041 7
Q. Mr. Sanyasi never said I refuse?
A. He stated that he cannot…that he cannot I believe he said he cannot do
the test or something along them lines.
Q. Okay after trying multiple times?
A. I would argue that he tried but attempted multiple times, yes.
Q. Okay, I mean you have certainly ran in to people before that have not
been able to submit a breath test?
A. I have run into people who intentionally do not cooperate and make
excuses on taking the breath test.
Q. But you can’t possibly know that Mr. Sanyasi was intentionally not
cooperating?
A. I don’t know that for sure, no.
Q. And in fact you tried to get the translation again at the station?
A. I usually use that all of the time to be fair. I mean it just makes things
quicker.
Q. Because you have concerns if somebody understands you?
A. I believe he understood me but it just makes things easier and quicker.
(T. 154-155).
Closing Arguments
{¶11} The State rested its case and Appellant also rested. The trial court asked
Appellant to make his Crim.R. 29 motion until after the jury had begun its deliberations.
{¶12} During the State’s closing argument, it referred to Appellant’s prior OVI
conviction in 2015: Licking County, Case No. 2023 CA 00041 8
Additionally, Mr. Sanyasi has a prior OVI conviction from 2015 and you will
have those records to review as well and while Mr. Sanyasi may have
attempted to take a breath test, he ultimately failed to do that and therefore
had to be marked as refusing to take a breath test.
***
When offered the opportunity to take a chemical test that would show, in
fact, that he was not impaired he did say that he would try. But after multiple
attempts he just said that he can't do it. That is a refusal period now you
may not three, you might think hey he did attempt it, but the option is did he
give a breath sample or did he not? If he did not then that is a refusal. We
also heard Mr. Sanyasi on the video say things like I have never done that
before, but if you recall he has a prior conviction from 2015.
Why would Mr. Sanyasi refuse the one test if he had not consumed any
alcohol like he claimed. Well Mr. Sanyasi knew he had a prior OVI in 2015.
At the post you hear him say you are trying to get OVI on me.
You saw that he ultimately did not do the one test that would prove he was
not over the limit. It is the one test that would show that he was not impaired
or had consumed zero alcohol like he said and he has a prior OVI conviction
so he has been through some of this at some point in 2015.
(T. 161, 163, 164, 166). Counsel for Appellant did not object to the State’s closing
argument. Licking County, Case No. 2023 CA 00041 9
{¶13} After the trial court charged the jury, Appellant moved the trial court for a
dismissal pursuant to Crim.R. 29. The trial court denied the motion.
Verdict and Sentencing
{¶14} The jury returned guilty verdicts on the charges of OVI Impaired, in violation
of R.C. 4511.19(A)(1)(a), and OVI Refusal, in violation of R.C. 4511.19(A)(2). The trial
court found Appellant guilty on the Marked Lanes violation and the Distracted Driving
enhancement.
{¶15} Based on allied offenses, the State elected to have Appellant sentenced
under R.C. 4511.19(A)(2). The trial court imposed a 180-day jail term with 160 days
suspended. Appellant was ordered to pay a $525.00 fine and court costs, and a two-year
license suspension from November 24, 2022. The trial court ordered Appellant to pay a
$25.00 fine on the Marked Lanes violation and a $100.00 fine on the Distracted Driving
{¶16} The trial court’s sentence was journalized on April 13, 2023. It is from this
judgment entry of conviction and sentence that Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶17} Appellant raises five Assignments of Error:
I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING
TESTIMONY ABOUT THE STATISTICAL PROBABILITY THAT SANYASI
WOULD HAVE TESTED OVER THE LEGAL LIMIT THROUGH THE
OFFICER, WHO WAS NOT AN EXPERT. Licking County, Case No. 2023 CA 00041 10
II. SANYASI WAS DENIED HIS RIGHT TO DUE PROCESS THROUGH
THE PROSECUTOR’S IMPROPER REMARKS ABOUT HIS PRIOR
CONVICTION IN CLOSING.
III. SANYASI’S CONVICTION SHOULD BE REVERSED BECAUSE HIS
TRIAL COUNSEL WAS INEFFECTIVE IN A MANNER THAT
PREJUDICED HIM.
IV. THE EVIDENCE THE [SIC] SANYASI REFUSED TO SUBMIT TO A
BREATH TEST SUFFICIENT TO CONVICT SANYASI UNDER R.C.
4511.19(A)(2) WAS LEGALLY INSUFFICIENT.
V. THE EVIDENCE ALSO WEIGHED MANIFESTLY AGAINST
CONVICTING SANYASI OF REFUSING TO SUBMIT TO A BREATH TEST
UNDER R.C. 4511.19(A)(2).
ANALYSIS
I. and III.
Testimony Regarding HGN Test and BAC Levels
{¶18} In his first Assignment of Error, Appellant argues the trial court committed
plain error when it permitted Trooper Taylor’s testimony regarding the correlation between
HGN results and the statistical probability of a BAC test over the legal limit. Trial counsel
did not object during Trooper Taylor’s testimony on this issue. For the purpose of our
review, because trial counsel failed to object and bring the alleged error to the attention
of the trial court, Appellant has therefore waived all but plain error review. Under the plain
error rule, “[p]lain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). The rule places the Licking County, Case No. 2023 CA 00041 11
following limitations on a reviewing court's determination to correct an error despite the
absence of timely objections at trial: (1) “there must be an error, i.e. a deviation from a
legal rule,” (2) “the error must be plain,” that is an error that constitutes “an ‘obvious’ defect
in the trial proceedings,” and (3) the error must have affected “substantial rights” such
that “the trial court's error must have affected the outcome of the trial.” State v. Hoppe,
2023-Ohio-2188, ¶ 67 (5th Dist.) citing State v. Wood, 2020-Ohio-4251, ¶ 18 (5th Dist.)
citing State v. Dunn, 2009-Ohio-1688, ¶ 89 (5th Dist.), citing State v. Morales, 2004-Ohio-
3391, ¶ 19 (10th Dist.).
{¶19} “Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised in
line with the rules of procedure and evidence.” State v. Romy, 2021-Ohio-501, ¶ 49 (5th
Dist.) citing Rigby v. Lake County, 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). The
appellate court must limit its review of the trial court's admission or exclusion of evidence
to whether the trial court abused its discretion. Id. The abuse of discretion standard is
more than an error of judgment; it implies the court ruled arbitrarily, unreasonably, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶20} The Ohio Supreme Court has held that an officer may not testify as to what
a defendant's blood-alcohol content would be based solely on the HGN results:
[A]lthough results on an HGN test may be admissible at trial by a properly
trained officer, such an officer may not testify as to what he or she believes
a driver's actual or specific BAC level would be, based solely on the HGN
test results. * * * Accordingly, a properly qualified officer may testify at trial
regarding a driver's performance on the HGN test as to the issues of Licking County, Case No. 2023 CA 00041 12
probable cause to arrest and whether the driver was operating a vehicle
while under the influence of alcohol. See R.C. 4511.19(A)(1). However,
such testimony may not be admitted to show what the exact alcohol
concentration level of the driver was for purposes of demonstrating a
violation of R.C. 4511.19(A)(2), (3), or (4).
State v. Bresson, 51 Ohio St.3d 123, 129-130, 554 N.E.2d 1330, 1336 (1990).
{¶21} Trooper Taylor testified that Appellant had six out of six clues on the HGN
test. When the State asked Trooper Taylor if the HGN test was a good indicator of
impairment, he responded, “It has the highest percentage rate. It has the highest
percentage rate if you have six of six clues. I'm thinking too hard. I can't recall but it is
over eighty percent that the individual is at or over the legal limit for alcohol which is .08.”
(T. 110). On cross-examination, trial counsel elicited further testimony from Trooper
Taylor regarding the statistical probability of testing over the BAC legal limit based on the
results of the HGN test.
{¶22} Appellant cites this Court to State v. Grizovic, 2008–Ohio–3162 (1st Dist.),
where the First District Court of Appeals found that the trial court had “erred by admitting
[the arresting trooper's] testimony concerning the statistical probability that [appellant]
would have tested over .10,” and that this error was not harmless. Id. at ¶ 17. The Grizovic
court further held that “[e]xpert testimony linking blood-alcohol content to impairment” was
necessary and that the court “[could not] determine what weight the jury gave to this
prejudicial testimony,” that the court “[could not] conclude, based on the other evidence
presented at trial that the admission of such testimony amounted to harmless error * * *.”
Id. at ¶ 17–18. Licking County, Case No. 2023 CA 00041 13
{¶23} The Fourth District Court of Appeals examined State v. Bresson in State v.
Martin, 2005-Ohio-1732 (4th Dist.), where the appellant had been convicted of driving
while under the influence in violation of R.C. 4511.19(A)(1), and, at trial, the arresting
officer testified that “on the [HGN] test there's a total of six clues[;] however, [if] four or
more clues are detected it's a 77% probability and at the time that this manual I was
trained on came out that the person would test over the legal limit which at that point was
.10.” Id. at ¶ 15. The Fourth District noted, “the trooper did not testify that the HGN test
results would show appellant's exact alcohol concentration. Instead, his testimony
indicated to the jury that because appellant exhibited more than four clues on the test, a
77% probability exists that appellant would test over .10.” Id. at ¶ 37. But, the court
cautioned, “[w]e believe, however, that testimony to suggest a specific mathematical
probability that the appellant would have tested over the statutory limit if she had taken a
test is problematic.” Id. Nevertheless, the Fourth District concluded that, in light of the
other evidence presented, such as the glassy bloodshot eyes, the odor of alcohol, and
the failure of the field sobriety tests, the admission of the trooper's testimony as to
statistical probabilities was harmless error. Id. at ¶ 39.
{¶24} In State v. Allen, 2010-Ohio-4124 (10th Dist.), the Tenth District Court of
Appeals followed State v. Martin in a case where the arresting officer testified that based
on the appellant’s performance in the HGN test and walk-and-turn field sobriety tests,
there was a statistical probability that appellant would have tested “at .10 or above blood
alcohol content.” Id. at ¶ 20. The arresting officer did not testify that based solely on the
HGN test results as to what he believed the appellant’s actual or specific BAC level was.
The officer testified that based on his training there was a statistical probability that an Licking County, Case No. 2023 CA 00041 14
individual who failed the test would have a BAC level over the legal limit. The Tenth
District concluded,
While this may be problematic and perhaps should not have been admitted
absent expert testimony, in light of the other evidence presented, the
admission of Officer Wolfangel's testimony concerning statistical
probabilities amounted to harmless error. The other evidence taken into
consideration includes the fact that Officer Wolfangel smelled alcohol on
appellant's breath, the fact that appellant admitted to drinking, the fact that
Officer Wolfangel observed that appellant's eyes were bloodshot, glassy
and unfocused, the fact that appellant was swaying and being unsteady,
and the fact that appellant failed all three field sobriety tests. All of the
foregoing testimony, coupled with Officer Wolfangel's up-to-date training
specific to the detection of one who is under the influence of alcohol and/or
drugs, as well as his years of experience coming into contact and observing
both persons under the influence and not under the influence, we find that
the admission of Officer Wolfangel's testimony regarding statistical
probabilities amounted to harmless error.
State v. Allen, 2010-Ohio-4124, ¶ 24 (10th Dist.).
{¶25} In the present case, Trooper Taylor did not testify, based solely on the HGN
test results, as to what he believed Appellant’s actual or specific BAC level was. He
testified that based on his training, as to a statistical probability that an individual who had
six of six clues on the HGN test would have a BAC level over the legal limit. Similar to the
fact patterns of Martin and Allen, there was other evidence presented that indicated Licking County, Case No. 2023 CA 00041 15
Appellant’s impairment such as the glassy bloodshot eyes, the odor of alcohol, slurring
speech, a flushed face, body tremors, and the failure of the field sobriety tests. The
admission of Trooper Taylor’s testimony concerning statistical probabilities, in
consideration with the other evidence of impairment, amounted to harmless error.
Appellant has failed to establish there was plain error in the admission of Trooper Taylor’s
testimony regarding the statistical correlation between the HGN test to potential BAC
results. See also State v. Robertson, 2012-Ohio-2955 (5th Dist.).
{¶26} Appellant’s first Assignment of Error is overruled.
Ineffective Assistance of Trial Counsel
{¶27} In his third Assignment of Error, Appellant contends in part that he was
denied the effective assistance of trial counsel for counsel’s failure to object to Trooper
Taylor’s testimony as to the statistical probability of a BAC over the legal limit and the
results of a HGN test.
{¶28} A claim for ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶29} To warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was Licking County, Case No. 2023 CA 00041 16
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel. Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶30} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “* * * need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶31} In this case, Trooper Taylor did not testify as to what he believed Appellant’s
actual or specific BAC level was based on Appellant’s HGN test results. He testified that
based on his training, there was a statistical probability that an individual who failed the
HGN test would have a BAC level above the legal limit. There were other indicators of
impairment in this case, such as glassy bloodshot eyes, the odor of alcohol, a flushed
face, slurred speech, and the failure of the field sobriety tests. We found that the
admission of Trooper Taylor’s testimony regarding statistical probabilities was not plain
error and amounted to harmless error. In light of our conclusion, we find Appellant’s trial
counsel did not err in failing to object during Trooper Taylor’s testimony. Appellant was
not prejudiced by defense counsel's representation of him. The result of the trial was not
unreliable nor were the proceedings fundamentally unfair because of the performance of
defense counsel. State v. Edwards, 5th Dist. Licking No. 21CA0083, 2022-Ohio-3534, ¶
42.
{¶32} Appellant’s third Assignment of Error as to that argument is overruled. Licking County, Case No. 2023 CA 00041 17
II. and III.
{¶33} In Appellant’s second Assignment of Error, he contends his Due Process
rights were violated by the State’s remarks during its closing argument where it referred
to Appellant’s prior OVI conviction in 2015. Trial counsel did not object to the comments
it raises as error on appeal, so this Assignment of Error will be reviewed for plain error.
Under the plain error rule, “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Crim.R. 52(B). The
rule places the following limitations on a reviewing court's determination to correct an
error despite the absence of timely objections at trial: (1) “there must be an error, i.e. a
deviation from a legal rule,” (2) “the error must be plain,” that is an error that constitutes
“an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected
“substantial rights” such that “the trial court's error must have affected the outcome of the
trial.” State v. Hoppe, 2023-Ohio-2188, ¶ 67 (5th Dist.) citing State v. Wood, 2020-Ohio-
4251, ¶ 18 (5th Dist.) citing State v. Dunn, 2009-Ohio-1688, ¶ 89 (5th Dist.), citing State
v. Morales, 2004-Ohio-3391, ¶ 19 (10th Dist.).
{¶34} Appellant was charged with a violation of R.C. 4511.19(A)(2). It reads:
(2) No person who, within twenty years of the conduct described in division
(A)(2)(a) of this section, previously has been convicted of or pleaded guilty
to a violation of this division, a violation of division (A)(1) of this section, or
any other equivalent offense shall do both of the following:
(a) Operate any vehicle, streetcar, or trackless trolley within this state while
under the influence of alcohol, a drug of abuse, or a combination of them; Licking County, Case No. 2023 CA 00041 18
(b) Subsequent to being arrested for operating the vehicle, streetcar, or
trackless trolley as described in division (A)(2)(a) of this section, being
asked by a law enforcement officer to submit to a chemical test or tests
under section 4511.191 of the Revised Code, and being advised by the
officer in accordance with section 4511.192 of the Revised Code of the
consequences of the person's refusal or submission to the test or tests,
refuse to submit to the test or tests.
{¶35} A prior OVI conviction within 20 years is an element of R.C. 4511.19(A)(2).
State v. Meadows, 2019-Ohio-4943, ¶ 27 (5th Dist.) citing State v. Holland, 2012-Ohio-
486, ¶ 19 (5th Dist.). In State v. Hoover, the Ohio Supreme Court stated:
It is crucial to note that the refusal to consent to testing is not, itself, a
criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is
operating a motor vehicle while under the influence of drugs or alcohol. A
person's refusal to take a chemical test is simply an additional element that
must be proven beyond a reasonable doubt along with the person's
previous DUI conviction to distinguish the offense from a violation of R.C.
4511.19(A)(1)(a).
State v. Hoover, 2009-Ohio-4993, ¶ 21. We have previously found that a trial court did
not err in allowing the State to present evidence of a defendant's prior conviction “as such
was an element of the offense for which the State bears the burden of proof.” State v.
Meadows, 2019-Ohio-4943, ¶ 27 quoting Holland, 2012-Ohio-486 at ¶ 21; see also State
v. Leasure, 2015-Ohio-5327 (4th Dist.). Licking County, Case No. 2023 CA 00041 19
{¶36} Appellant does not dispute that a prior OVI conviction within 20 years is an
element for a violation of R.C. 4511.19(A)(2). Appellant contends that during the State’s
closing arguments, it improperly raised Appellant’s prior OVI conviction for purposes
beyond an element of R.C. 4511.19(A)(2). He argues the State used his prior conviction
to argue that Appellant was impaired and yet refused to submit to a breath test, just as
he did in the prior case.
{¶37} Comments made during opening and closing statements are not evidence
for the jury to consider. State v. Walker, 2022-Ohio-1238, ¶ 39 (8th Dist.) citing State v.
Frazier, 73 Ohio St.3d 323, 328, 652 N.E.2d 1000 (1995.) Additionally, “[p]rosecutors are
granted wide latitude in closing argument, and the effect of any conduct of the prosecutor
during closing argument must be considered in light of the entire case to determine
whether the accused was denied a fair trial.” State v. Powell, 2012-Ohio-2577, ¶ 149.
“The test for prosecutorial misconduct is whether the conduct complained of deprived the
defendant of a fair trial.” State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001),
citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). Therefore, “[t]he
touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”
Powell at ¶ 149, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982).
{¶38} Because Appellant was charged with R.C. 4511.19(A)(2), the State was
required to prove beyond a reasonable doubt that Appellant had a prior OVI conviction
within 20 years and that he refused to take a chemical test. Appellant attempted to
establish at trial that he did not refuse to take the breath test; rather, he argued that he
attempted to take the breath test but did not understand Trooper Taylor’s instructions and Licking County, Case No. 2023 CA 00041 20
was therefore unable to complete the breath test. The State’s comments during its closing
arguments as to Appellant’s prior OVI conviction were related to the elements of R.C.
4511.19(A)(2) and Appellant’s claims that he did not refuse the breath test.
{¶39} Under this specific scenario and in the context of the entire trial, we do not
find the trial court committed plain error in allowing the State’s references to Appellant’s
prior OVI conviction.
{¶40} Appellant’s second Assignment of Error is overruled.
{¶41} In Appellant’s third Assignment of Error, he further contends that he
received the ineffective assistance of trial counsel because counsel failed to object to the
State’s alleged misconduct during its closing argument. We disagree.
{¶42} A claim for ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶43} To warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel. Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Licking County, Case No. 2023 CA 00041 21
{¶44} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “* * * need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶45} In light of our conclusion that the State did not commit misconduct and there
was no plain error, we find trial counsel did not err in failing to object during closing
argument. Appellant was not prejudiced by trial counsel's representation of him. The
result of the trial was not unreliable nor were the proceedings fundamentally unfair
because of the performance of defense counsel. State v. Edwards, 2022-Ohio-3534, ¶
42 (5th Dist.).
{¶46} Appellant’s third Assignment of Error as to this argument is overruled.
IV. and V.
{¶47} In his fourth and fifth Assignments of Error, Appellant contends his
conviction under R.C. 4511.19(A)(2) was against the sufficiency and manifest weight of
the evidence. We disagree.
{¶48} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 1997-Ohio-52,
paragraph two of the syllabus. The standard of review for a challenge to the sufficiency
of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991)
at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate
court's function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant's guilt beyond a Licking County, Case No. 2023 CA 00041 22
reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.”
{¶49} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶50} Appellant was convicted of violating R.C. 4511.19(A)(2). It reads:
(2) No person who, within twenty years of the conduct described in division
(A)(2)(a) of this section, previously has been convicted of or pleaded guilty
to a violation of this division, a violation of division (A)(1) of this section, or
(a) Operate any vehicle, streetcar, or trackless trolley within this state while
under the influence of alcohol, a drug of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle, streetcar, or
trackless trolley as described in division (A)(2)(a) of this section, being
asked by a law enforcement officer to submit to a chemical test or tests
under section 4511.191 of the Revised Code, and being advised by the Licking County, Case No. 2023 CA 00041 23
officer in accordance with section 4511.192 of the Revised Code of the
consequences of the person's refusal or submission to the test or tests,
{¶51} A prior OVI conviction within 20 years is an element of R.C. 4511.19(A)(2).
State v. Meadows, 2019-Ohio-4943, ¶ 27 (5th Dist.) citing State v. Holland, 2012-Ohio-
486, ¶ 19 (5th Dist.). In State v. Hoover, the Ohio Supreme Court stated:
It is crucial to note that the refusal to consent to testing is not, itself, a
criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is
operating a motor vehicle while under the influence of drugs or alcohol. A
person's refusal to take a chemical test is simply an additional element that
must be proven beyond a reasonable doubt along with the person's
previous DUI conviction to distinguish the offense from a violation of R.C.
State v. Hoover, 2009-Ohio-4993, ¶ 21.
{¶52} The focus of Appellant’s argument on appeal is whether Appellant refused
to take the breath test. Appellant contends there was insufficient evidence to establish
that he refused to take the breath test and the determination that he refused to take the
breath test was against the manifest weight of the evidence.
{¶53} Trooper Taylor asked Appellant if he wanted to take a breath test. (T. 153).
Appellant never stated that he refused to take the breath test. (T. 154). Trooper Taylor
testified that he advised Appellant on the consequences of taking or not taking a breath
test, provided Appellant with instructions on how to take the breath test, and gave
Appellant three opportunities to take the breath test. (T. 123, 128). He believed that Licking County, Case No. 2023 CA 00041 24
Appellant understood him and tried to use a translator application to make things go
quicker. (T. 154-155). Trooper Taylor testified that at the end, once Appellant finally
sealed his lips around the end of the mouthpiece, he was holding his air and wasn’t
blowing into the machine. Trooper Taylor said that if Appellant had been blowing into the
machine, the tone on the machine would have stayed on and would not have stopped.
When the tone stops, there is no air getting into the machine. (T. 131). Based on
Appellant’s three failed attempts to correctly perform the test, Trooper Taylor found that
Appellant failed to cooperate and marked BMV 2255 Form as a refusal. Trooper Taylor
recalled that after Appellant made the attempts on the test, he stated, “that he
cannot…that he cannot I believe he said he cannot do the test or something along them
lines.” (T. 154).
{¶54} As noted by both parties, there is no Ohio statutory definition of “refusal.”
The trial court provided the jurors in this case with the definition of “refusal” as explained
by the Ohio Jury Instructions:
10. REFUSAL. A refusal to submit to a chemical test occurs when a person,
by his/her acts, words, or general conduct, manifests an unwillingness to
submit to the test. Such refusal need not have been knowingly or
intentionally made.
Ohio Jury Instructions, 2 CR § 711.19(A)(2) (Rev. Apr. 11, 2017). We find that the State
put forth sufficient evidence that, if believed, would allow a reasonable juror to find
Appellant guilty of driving under the influence with a prior OVI conviction and a refusal to
take a chemical test. Whether Appellant refused to take the breath test was a question
for the jury to weigh and the jury found Trooper Taylor’s testimony credible that Appellant Licking County, Case No. 2023 CA 00041 25
by his general conduct in failing to blow into the machine on his third attempt manifested
an unwillingness to submit to the breath test.
{¶55} Any rational trier of fact could have found the essential elements of R.C.
4511.19(A)(2) were proven beyond a reasonable doubt. Nor is this the exceptional case
in which the evidence weighs heavily against a conviction. Appellant's fourth and fifth
Assignments of Error are therefore overruled.
CONCLUSION
{¶56} The judgment of the Licking County Municipal Court is affirmed.
By: Delaney, P.J.,
Hoffman, J. and
King, J., concur.