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State v. Caldwell1/23/2003
.Jason Caldwell, defendant-appellant, appeals the judgment of the Franklin County Municipal Court, wherein the court found him guilty of driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), a first-degree misdemeanor, and failure to signal, a violation of R.C. 4511.39, a minor misdemeanor.
.In the late evening of December 13, 2001, appellant was at the Cactus Café in Gahanna, Ohio. Appellant drank two beers and left about one hour later with a friend, whom he was planning to drop off on his way to another bar to shoot pool. Officer Ernest Chung, a Gahanna police officer, pulled up behind appellant's vehicle. Officer Chung observed appellant turn left without signaling. After making the turn, Office Chung witnessed appellant's vehicle cross a white-dotted line by about two tire widths into the adjoining lane. He then observed appellant's vehicle cross into a portion of the center turn lane. Sergeant Dan Williams, who had been following two cars behind Officer Chung's vehicle, told Officer Chung to activate his overhead lights and pull over appellant's vehicle.
.After pulling over the vehicle, Officer Chung testified that he smelled an odor of alcohol coming from inside appellant's vehicle. Officer Chung noticed appellant was unsteady after exiting the vehicle. Officer Chung then performed the Horizontal Gaze Nystagmus ("HGN") test, the heel-to-toe test, and the one-leg-stand test on appellant. Believing appellant to be under the influence of alcohol, Officer Chung arrested appellant. Appellant was charged with driving while under the influence of alcohol ("DUI"), a violation of R.C. 4511.19(A)(1), a first-degree misdemeanor, and failure to signal, a violation of R.C. 4511. 39, a minor misdemeanor.
.On April 17, 2002, a jury trial was held on the DUI count, and the failure to signal count was heard by the trial court. On April 18, 2002, the jury found appellant guilty of driving while under the influence of alcohol, and the trial court found appellant guilty of failing to signal. For the DUI offense, the trial court sentenced appellant to 180 days' incarceration, suspended 120 of the days, placed appellant on probation for three years, fined him $400, and suspended his operator's license for three years. For the failure to signal offense, the court imposed a fine of $100, but suspended the fine. Appellant appeals the judgment of the trial court, asserting the following three assignments of error:
."[I.] The jury verdict was not supported by sufficient credible evidence and was against the manifest weight of the evidence. As a result, Appellant was denied due process protections under the state and federal Constitutions.
."[II.] The prosecutor improperly stated in closing argument that Appellant failed to deny that he was guilty or that he had driven while impaired.
."[III.] The trial court erred in instructing the jury that it could consider Appellant's refusal to take a urine test as proof that he knew he was alcohol impaired when he repeatedly asked to take a breathalyzer exam."
.We will first address the evidentiary issue raised in appellant's third assignment of error. Appellant argues in his third assignment of error the trial court erred in instructing the jury that it could consider appellant's refusal to take a urine test as proof he knew he was alcohol impaired when he repeatedly asked to take a breathalyzer test. Appellant maintains the instruction ignored the fact that the police denied his repeated requests to take a breathalyzer test. Appellant did not raise this issue at the trial court level; therefore, he has waived this issue on appeal, absent plain error. Crim.R. 30(A);
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