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State v. Mitchener12/5/2005
JUDGMENT: Judgment affirmed.
{ } Defendant-appellant, Gregory A. Mitchener (hereinafter "Mitchener"), appeals the judgment of the Van Wert Municipal Court which found him guilty of driving under the influence .
{ } On October 2, 2004, Sergeant Doug Weigle (hereinafter "Sergeant Weigle"), a member of the Van Wert City Police Department, stopped a pick-up truck on an unlined county road in Van Wert, Ohio, at approximately 2:46 a.m. Sergeant Weigle did so after he witnessed the driver, Mitchener, make a right-hand turn, cross into the opposite lane of travel, "jerk" the vehicle back into the appropriate lane, and drift onto a stone berm running adjacent to the right side of the road.
{ } After approaching the vehicle, Sergeant Weigle smelled the odor of alcohol coming from the interior of the truck and noticed Mitchener's eyes were bloodshot and glassy. Upon questioning, Mitchener denied that he had been drinking. Mitchener recited the alphabet without difficulty but refused to perform any other field sobriety tests. Ultimately, Sergeant Weigle concluded Mitchener was intoxicated, cited him for operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), and arrested him.
{ } Since his vehicle was not equipped to transport Mitchener, Sergeant Weigle contacted another member of the Van Wert City Police Department, Officer Joseph Motycka (hereinafter "Officer Motycka"). Officer Motycka subsequently transferred Mitchener to the nearest Ohio State Highway Patrol Post. While at the post, Mitchener refused to undergo a Breath Alcohol Content (BAC) test or sign a form acknowledging the consequences of this decision. Moreover, Mitchener refused to sign his citation. Thereafter, the police officers released Mitchener to his girlfriend, Gabrielle Chavarria (hereinafter "Chavarria").
{ } On October 4, 2004, Mitchener pled "not guilty." On February 15, 2005, the case proceeded to a jury trial. The jury found Mitchener "guilty," and the trial court entered judgment on the verdict.
{ } It is from this decision that Mitchener appeals and sets forth two assignments of error for our review.
ASSIGNMENT OF ERROR NO. 1
The trial court committed abuse of discretion by allowing the admission of rebuttal testimony.
{ } In his first assignment of error, Mitchener argues the trial court erred in permitting Officer Motycka to testify as a rebuttal witness. Particularly, Mitchener asserts Sergeant Weigle testified to smelling alcohol on Mitchener's breath during the prosecution's case-in-chief and Officer Motycka's rebuttal testimony served no purpose other than to corroborate that account.
{ } After reviewing the transcript of the trial proceedings, we are unable to locate any specific objection to Officer Motycka's rebuttal testimony. Thus, Mitchener did not properly preserve his objection and thereby waived it for purposes of appeal. See State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894. Consequently, Mitchener's assertion is reviewed under a plain error standard. See Crim.R. 52(B).
{ } We recognize plain error " 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " State v. Landrum (1990), 53 Ohio St.3d 107, 111, 559 N.E.2d 710, quoting State v. Long (1978) 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Under the plain error standard, an appellant must demonstrate that the outcome of his trial would clearly have been different but for the trial court's errors. Waddell, 75 Ohio St.3d a
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