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State v. Brown2/9/2004
Defendant-appellant, William Brown, appeals the decision of the Butler County Court of Common Pleas to reopen his suppression hearing, to deny his motion to suppress evidence, and to impose a greater than minimum sentence upon him for aggravated vehicular assault. We affirm the decision of the trial court.
On July 18, 2001, appellant was operating his vehicle on Hamilton-Cleves Road at approximately 10:00 p.m. Appellant's vehicle crossed the centerline and struck Patricia Winterrod's vehicle in a head-on collision. Winterrod and her passenger, Carolyn Johnson, were both injured in the collision.
Officers from the Butler County Sheriff's Office were dispatched to the accident scene. When Deputy Dale Paulus arrived, he noticed appellant leaning up against his vehicle. Deputy Paulus approached appellant and asked him if he was the driver of the vehicle. Upon appellant's affirmative reply, Deputy Paulus asked him for his driver's license.
Appellant attempted several times to remove his wallet from his back pocket. Deputy Paulus observed that appellant was having difficulty removing his wallet, he was unsteady on his feet, had a strong odor of alcohol about his person, bloodshot eyes, and slurred speech. Deputy Paulus asked appellant if he had anything to drink that night. Appellant replied that he had been to a bar in Millville and he had also been to the C and C Lounge in Ross, Ohio where he had at least two drinks.
Deputy Paulus took appellant aside and conducted three field sobriety tests on him. Deputy Paulus administered a horizontal gaze nystagmus ("HGN") test, a one-legged stand test, and then a walk-andturn test. Appellant's performance indicated to Deputy Paulus that appellant was intoxicated. Appellant was taken to the Sheriff's headquarters where a breath test was administered. Appellant's breath test resulted in a .238 BAC reading.
Appellant was indicted for two counts of aggravated vehicular assault, two counts of vehicular assault, two counts of driving under the influence of alcohol, and driving upon the left side of the roadway. Appellant filed a motion to suppress the statements he made to Deputy Paulus and other evidence. A suppression hearing was held on December 3, 2001. The HGN test was the only evidence the trial court suppressed.
Appellant entered a no contest plea to the indictment and was convicted and sentenced for two counts of aggravated vehicular assault, driving under the influence of alcohol, and driving upon the left side of the roadway. Appellant was sentenced to a total of four years of incarceration and fined a total of $3,600. Raising three assignments of error, appellant appeals his greater than minimum sentence and the decisions of the trial court during the suppression hearing:
Assignment of Error No. 1:
"THE COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO REOPEN THE SUPPRESSION HEARING."
At appellant's suppression hearing, the state did not present evidence that the proper National Highway and Traffic Safety Administration standards were followed during appellant's HGN field sobriety test. Appellant argues that the trial court abused its discretion when it allowed the state to reopen the suppression hearing and present additional evidence after the state rested.
The question of whether to reopen a case and accept additional evidence "is within the sound discretion of the trial court." Columbus v. Grant (1981), 1 Ohio App.3d 96, 97. Decisions concerning the conduct of proceedings "will not be reversed on appeal absent an abuse of that discretion." State v. Rains (1999), 135 Ohio App.3d 547, 554. A reviewing cou
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