State v. Blauser , 2022 Ohio 4 ( 2022 )

[Cite as State v. Blauser, 2022-Ohio-4.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, J.
-vs- :
:
TYLER BLAUSER, : Case No. 2021 CA 00042
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No.
21TRC02046
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 3, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRICA M. MOORE CHRIS BRIGDON
Assistant Law Director 8138 Somerset Rd.
40 W. Main Street Thornville, Ohio 43076
Newark, Ohio 43055
Licking County, Case No. 2021 CA 00042 2
Baldwin, P.J.
{¶1} Defendant-appellant Tyler Blauser appeals his conviction from the Licking
County Municipal Court for operating a motor vehicle while under the influence. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 10, 2021, appellant was cited for speeding in violation of R.C.
4511.21 and operating a motor vehicle while under the influence of alcohol/drug of abuse
(OVI) in violation of R.C. 4511.191(A(1)(a). Appellant entered a plea of not guilty and a
jury trial commenced on May 3, 2021. The following testimony was adduced at trial.
{¶3} Trooper Zackeria Maust of the Ohio State Highway Patrol was on duty on
March 6, 2021 and was in uniform in a marked cruiser. At approximately 1:09 a.m.,
Trooper Maust, using his radar unit, clocked appellant’s vehicle as traveling 34 miles per
hour in a 25 mile per hour zone. The Trooper initiated a traffic stop of appellant’s vehicle.
Appellant was the only person in the vehicle. When, after approaching appellant, he
asked appellant where he was coming from, appellant indicated the Hub, which is a bar.
Trooper Maust testified that he detected the odor of alcohol.
{¶4} Trooper Maust then asked appellant if he had anything to drink and
appellant said “uh no.” Transcript at 56. The Trooper then asked appellant if it was “uh
no or no” and appellant was “very hesitant when he answered.” Transcript at 56.
Appellant then answered “no”. Appellant’s eyes were bloodshot and there were a lot of
ashes in his ashtray. Appellant indicated that he smoked cigarettes.
{¶5} Trooper Maust then asked appellant for the documentation on the vehicle.
He testified that when appellant presented him with the same, he was “fumbling” with the
Licking County, Case No. 2021 CA 00042 3
paperwork before handing it to the Trooper. Transcript at 57. Trooper Maust then asked
appellant again if he had anything to drink “based on the strong odor” that he was
detecting and appellant said that he had three beers. Transcript at 57. When the Trooper
asked appellant to exit the vehicle so that he could determine if appellant was impaired,
appellant refused to do so and became argumentative. Trooper Maust called for backup
assistance.
{¶6} When the other officer arrived on the scene, appellant got out of his vehicle.
Appellant was instructed to walk to the front of the Trooper’s’ cruiser and then stated that
“he wasn’t going to walk on a line which I did not request him to do at that time.” Transcript
at 58. Appellant refused to perform the horizontal gaze nystagmus, walk and turn, one
leg stand and alphabet field sobriety tests. Trooper Maust testified that due to his close
proximity to appellant, he could detect a strong odor of alcohol coming from appellant’s
breath. He testified that appellant was very “stand off” (sic) and was not very compliant.
Transcript at 59. Appellant was then arrested for OVI. The following testimony was
adduced when the Trooper was asked why he placed appellant under arrest:
{¶7} A: Um based on the time of night the defendants (sic) speed on the given
road, um my personal contact with him as I stated, uh bloodshot eyes, hesitant, the line,
recanting of the statements, admission um refusing all tests, based on those observations
and (inaudible) I felt he was under the influence.
{¶8} Q: Now um Trooper Blauser (sic), you said the speed, now the speed was
34 in a 25, however based on your training is speed a possible indicator of someone
under the influence?
{¶9} A: It is.
Licking County, Case No. 2021 CA 00042 4
{¶10} Q: Okay, now do you base your whole decision to arrest only on the speed?
{¶11} A: Negative.
{¶12} Q: What do you base your arrest on?
{¶13} A: The personal contact and then the standardized field sobriety test if
given.
{¶14} Q: Okay. And when you place someone under arrest what to you look at?
{¶15} A: I don’t understand your question.
{¶16} Q: Okay. If I were to say the totality of the circumstances?
{¶17} A: Correct.
{¶18} Transcript at 63. Appellant refused to take a breath test.
{¶19} On cross-examination, Trooper Mauser testified that appellant’s speech
was not slurred and that he did not stumble over his words and that appellant was able
to recite his cell phone number very quickly. He admitted that he did not have any clue
of impaired driving from appellant’s speech. Trooper Mauser further admitted that
appellant did not sway or drift off when he walked and did not move around a lot when he
was in the backseat of the cruiser. Trooper Mauser also testified that he knew appellant
was a smoker and that a person could have bloodshot eyes due to a smoky room, a
medical condition or allergies and that a person might fumble due to nervousness or
anxiety.
{¶20} On redirect, Trooper Maust testified that on the video of the stop, appellant
said “dude I fucked myself there” after admitting to the three beers. Transcript at 72. The
Trooper also testified that on the video, appellant stated that he did not want to incriminate
himself. Appellant never told the Trooper that he had any medical conditions or allergies
Licking County, Case No. 2021 CA 00042 5
that would cause red eyes. Trooper Mauser also testified that the odor of alcohol was
present in the backseat of his cruiser. On redirect, he conceded that he never asked
appellant why he had bloodshot eyes.
{¶21} Appellant testified at trial on his own behalf. He testified that he was around
smoke while at a bar and that he left the bar at around 1:00 a.m. after consuming three
beers. When he left the bar, he had been up for around 14 or 15 hours. Appellant denied
having any difficulties in taking his driver’s license out of his wallet or being aggressive
towards the officer. Appellant explained that he had been diagnosed with generalized
anxiety and that he had made the decision to remain in the car until a supervisor arrived
on the scene. Appellant testified that he refused to take the field sobriety tests because a
relative of his who had DUIs in his past had told him that all the tests did was incriminate
you and that he should refuse the tests.
{¶22} On cross-examination, appellant testified that he did not like the taste of
alcohol, but drank it to help with his anxiety and help him relax. Appellant testified that it
was “almost like a medication” to him. Transcript at 97. He testified that he generally feels
the effects of alcohol after his third drink, but that he only had three beers in this case and
did not get drunk. During his testimony, appellant admitted that he did not pay attention
to his speed and speeding and that he lied to the Trooper about how much he had to
drink because he did not want to incriminate himself. On redirect, he testified that when
he was stopped, the three beers had very little effect on him. He testified that he drank
on a full stomach.
{¶23} At the conclusion of the evidence and the end of deliberations, the jury, on
May 3, 2021, found appellant guilty of OVI. Appellant previously had pled to the speeding
Licking County, Case No. 2021 CA 00042 6
charge. Pursuant to a Judgment Entry filed on May 3, 2021, appellant was sentenced to
30 days in jail with 27 days suspended and fined $375.00. In addition, appellant’s driver’s
license was suspended for a period of one year and appellant was placed on probation
for a period of one year.
{¶24} Appellant now appeals, raising the following assignment of error on appeal:
{¶25} “I. THE CONVICTION OF APPELLANT OF OPERATING A VEHICLE
WHILE IMPAIRED, IN VIOLATION OF O.R.C. 4511.19(A)(1) WAS IN ERROR AND,
AFTER DRAWING REASONABLE INFERENCES, THE FINDING OF GUILT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I
{¶26} Appellant, in his sole assignment of error, argues that his conviction for OVI
is against the manifest weight and sufficiency of the evidence. We disagree.
{¶27} As an initial matter, we note that to the extent that appellant argues that
there was not probable cause to stop his vehicle, this issue should have been raised in a
Motion to Suppress. Because appellant failed to file a Motion to Suppress raising the
issue of probable cause, this issue is waived. See State v. Rosso, 9th Dist. Medina C.A.
NO. 2410-M, 1995 WL 499781 and State v. Wintermeyer, 158 Ohio St.3d 513, 2019-
Ohio-5156, 145 N.E.3d 278.
{¶28} Appellant contends that his conviction for operating a motor vehicle while
under the influence is against the sufficiency and manifest weight of the evidence. The
legal concepts of sufficiency of the evidence and weight of the evidence are both
quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-
Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a
Licking County, Case No. 2021 CA 00042 7
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 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.”
{¶29} 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.
{¶30} Appellant, in the case sub judice, was convicted of operating a motor vehicle
in violation of R.C. 4511.19(A). Such section states, in relevant part, as follows: (A)(1)
No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at
the time of the operation, any of the following apply:
{¶31} (a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.
Licking County, Case No. 2021 CA 00042 8
{¶32} Construing the evidence in a light most favorable to the prosecution, we find
that any rational trier of fact could have found that appellant was operating his motor
vehicle while under the influence of alcohol. As is stated above, appellant was stopped
for speeding at 1:09 a.m. and admitted to having been at a bar. He smelled of alcohol,
fumbled with documents, had bloodshot eyes and admitted, after first lying about it, to
consuming three beers. Appellant also admitted that while he did not like the taste of
alcohol, it helped him relax and with his anxiety. He stated that after the third beer, he
generally started feeling the effects of the alcohol. Appellant initially refused to get out of
his vehicle and was argumentative with the Trooper. Appellant refused both filed sobriety
and breath tests.
{¶33} We find, therefore, that based on the totality of the evidence, appellant’s
conviction for operating a motor vehicle while under the influence of alcohol/drug of abuse
is not against the sufficiency of the evidence. We further find that the jury did not lose its
way in convicting appellant of OVI.
{¶34} Appellant’s sole assignment of error is, therefore, overruled.
Licking County, Case No. 2021 CA 00042 9
{¶35} Accordingly, the judgment of the Licking County Municipal Court is affirmed.
By: Baldwin, P.J.
Delaney, J. and
Wise, Earle, J. concur.