State v. Edgell6/24/2005
Judgment: Affirmed.
{ } Appellant, Simon N. Edgell, appeals from the June 24, 2004 judgment entry of the Portage County Municipal Court, Ravenna Division, in which he was sentenced for driving under the influence of alcohol ("DUI").
{ } On December 24, 2002, a complaint was filed against appellant, charging him with DUI, in violation of R.C. 4511.19(A)(1) and (3), misdemeanors of the first degree; speeding, in violation of R.C. 4511.21; and driving without a seat belt, in violation of R.C. 4513.263. On December 27, 2002, appellant entered a not guilty plea at his initial appearance.
{ } On January 23, 2003, appellant filed a motion to suppress evidence. A hearing was held on March 23, 2004. Pursuant to its March 23, 2004 judgment entry, the trial court overruled appellant's motion to suppress.
{ } A jury trial commenced on June 10, 2004. At the close of the state's case, appellant's counsel moved for an acquittal pursuant to Crim.R. 29, which was overruled by the trial court. At the close of appellant's case, appellant's counsel renewed the Crim.R. 29 motion, which was again overruled by the trial court. The jury returned a verdict of guilty to DUI in violation of R.C. 4511.19(A)(3). The R.C. 4511.19(A)(1) DUI charge was dismissed before trial. The trial court found appellant guilty of speeding, and not guilty of driving without a seat belt.
{ } At the jury trial, Sergeant Chris Heverly ("Sergeant Heverly"), with the Ohio State Highway Patrol, testified for the state that on December 24, 2002, he observed appellant's vehicle traveling north on Route 44, in Rootstown Township, Portage County, Ohio. Sergeant Heverly stated that appellant drove his vehicle off the right side of the road and merged onto Route 5 without a turn signal. Sergeant Heverly followed appellant for about one mile, and indicated that appellant's car was traveling between sixty-five and sixty-seven miles per hour in a fifty-five miles per hour zone.
Sergeant Heverly said that appellant drove his vehicle off the right side of the road again. At that time, Sergeant Heverly initiated a traffic stop.
{ } After approaching appellant's car, Sergeant Heverly noticed a strong odor of alcohol emanating from appellant. Sergeant Heverly testified that appellant's eyes appeared to be bloodshot and glassy and that appellant tried to avoid eye contact with him. Sergeant Heverly asked appellant to accompany him to the patrol car, and appellant complied. Inside the patrol car, Sergeant Heverly indicated that appellant admitted he had consumed alcohol, and his last alcoholic beverage was approximately twenty minutes before the traffic stop.
{ } Sergeant Heverly administered three field sobriety tests, including the Horizontal Gaze Nystagmus, the one-legged stand, and the walk and turn. According to Sergeant Heverly, appellant performed poorly on all three tests. Sergeant Heverly then arrested appellant and transported him to the station.
{ } At the station, Sergeant Heverly administered a breath test, the B.A.C. Datamaster ("BAC"), approximately twenty minutes after the arrest. Appellant's BAC registered at .121. Sergeant Heverly opined that the BAC was in proper working condition on December 24, 2002.
{ } Pursuant to its June 24, 2004 judgment entry, the trial court sentenced appellant to one hundred eighty days in jail, one hundred seventy-seven days suspended, a twelve month license suspension, and a $250 fine. Appellant's sentence was stayed pending appeal. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignment of error:
{ } "The trial court erred in
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