[Cite as State v. Taylor, 2019-Ohio-4664.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
CORTEZ TAYLOR, : Case No. 2019CA00033
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 2018TRC09347
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 12, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES AYLWARD AARON KOVALCHIK
Canton Law Director 116 Cleveland Ave. NW
Suite 808
JASON P. REESE Canton, Ohio 44702
Canton City Prosecutor
KATIE ERCHICK GILBERT
Deputy Chief Counsel
218 Cleveland Ave. S.W.
P.O. Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2019CA00033 2
Baldwin, J.
{¶1} Defendant-appellant Cortez Taylor appeals his conviction and sentence
from the Canton Municipal Court. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACT AND CASE
{¶2} On November 24, 2018, appellant was cited and charged with operating a
motor vehicle while under the influence of drugs and/or alcohol in violation of R.C.
4511.19(A)(2), a misdemeanor of the first degree. On December 26, 2018, appellant filed
a Motion Suppress. Following a hearing held on January 22, 2019, the trial court, as
memorialized in a Judgment Entry filed on January 24, 2019, denied the motion, finding
that there was probable cause for the arrest of appellant.
{¶3} Thereafter, a jury trial commenced on February 6, 2019. At the trial, Officer
Gary Lee Dodge, Jr. of the North Canton Police Department testified that he was working
for the Stark County OVI Task Force on November 24, 2018 when he stopped appellant’s
vehicle for a burnt out tail light in his pickup truck. Officer Dodge testified that as he
approached appellant, he observed that appellant’s pupils were dilated and bloodshot
and his eyes were bloodshot. When appellant began speaking to him, the Officer also
“could smell an odor of alcohol coming from his breath.” Trial Transcript at 56. Appellant
told Officer Dodge that he had had two Bud Light Platinums, which has a higher content
of alcohol by volume than a regular Bud Light, about a half an hour before. Appellant also
told that Officer that he had a couple of shots.
{¶4} Officer Dodge then had appellant perform field sobriety tests. The following
testimony was adduced when the Officer was asked how appellant performed on the
horizontal gaze nystagmus (HGN) test:
Stark County, Case No. 2019CA00033 3
{¶5} A: He showed strong signs of impairment immediately –
{¶6} Q: What –
{¶7} A: -- which is—
{¶8} Q: --do you mean by strong? Excuse Me. (CLEARS THROAT)
{¶9} A: His eyes were jerking in an irregular rate which indicated that there was
a sufficient amount of alcohol in his bloodstream which based on my experience I could
tell exactly how much had had over the legal limit because his eyes were jerking as much
as they were.
{¶10} Q: And in your experience, how much did you believe the defendant had?
{¶11} A: I believe that he had probably five or six drinks.
{¶12} Trial Transcript at 58-59. Officer Dodge also had appellant perform the walk
and turn test. He testified that appellant did pretty good on this test but made a few small
errors. Appellant did not touch completely heel to toe and there was a “gap in between a
few of his steps, which is a clue of impairment,…” Trial Transcript at 60. Appellant also
did not complete the turn as Officer Dodge had described it. The Office testified that
appellant performed the one leg stand test correctly.
{¶13} After the field sobriety tests, Officer Dodge took appellant to the North
Canton Police Department where he asked appellant if appellant was willing to take a
breathalyzer test. Appellant told him that he had injured his mouth while eating something
the night before and was not willing to blow because his mouth hurt. Appellant did not
blow into the machine and was told that this was going to be considered a refusal to take
the test. When asked why he did not offer appellant a urine test, the Officer testified that
he usually used such test when there was suspicion of drugs and that there was no
Stark County, Case No. 2019CA00033 4
suspicion of drug use in this case. Appellant was then advised that because of his prior
OVI, he would automatically lose his license for two years. Officer Dodge testified that
appellant told him that he had a low tolerance for alcohol because he had not drank since
his prior OVI between twelve and thirteen months before.
{¶14} On cross-examination, Officer Dodge testified that he did not see appellant
commit any traffic violations or bad driving. He also admitted that he did not indicate that
appellant had bloodshot eyes in his narrative report or impaired driver’s report.
{¶15} Appellant testified in his own defense. He testified that when he was talking
about shots, he was referring to the beer because he was not a beer drinker and normally
drank liquor “and when we refer to the drink, we call it shot, so I was referring to the two
beers that I have drank.” Trial Transcript at 84. He testified that he only had two drinks
on the night in question. Appellant testified that he never refused to take the breath test,
but told the Officer that he did not want to take the test and would take a blood test. On
cross-examination, appellant did not remember telling Officer Dodge that his tolerance
was down and testified that he did not know the alcohol content of Platinum beers.
{¶16} Appellant also testified that his eyes looked different on the night of his
arrest because orange lights were used as street lights and “the orange lights reflecting
off the white surface will produce an orange glare.” Trial Transcript at 89.
{¶17} At the conclusion of the evidence and the end of deliberations, the jury
found appellant guilty of operating under the influence of alcohol and/or drugs of abuse.
As memorialized in a Judgment Entry filed on February 6, 2019, appellant was sentenced
to 180 days in jail and fined $800.00. All but 20 days were suspended on condition of
appellant’s good behavior of a term of two years. Appellant was also ordered to complete
Stark County, Case No. 2019CA00033 5
25 hours of supervised community service. A Nunc Pro Tunc Judgment Entry was filed
on February 8, 2019.
{¶18} Appellant now raises the following assignment of error on appeal:
{¶19} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I
{¶20} Appellant argues that his conviction for OVI is against the manifest weight
and sufficiency of the evidence. We disagree.
{¶21} When an appellate court reviews a record for sufficiency, 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. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827
N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d
380, 386, 1997-Ohio-52, 678 N.E.2d 541. Accordingly, the question of whether the offered
evidence is sufficient to sustain a verdict is a question of law. State v. Perkins, 3d Dist.
Hancock No. 5-13-01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citing Thompkins at 386,
678 N.E.2d 541.
{¶22} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
Stark County, Case No. 2019CA00033 6
a new trial ordered’.” Thompkins, supra at 387, quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717, 720-721 (1983).
{¶23} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), at paragraph one of the syllabus. The trier of fact is in the best position to
judge the credibility of the witnesses.
{¶24} Appellant was convicted of OVI in violation of R.C. 4511.19(A)(2)(a). Such
section states, in relevant part, as follows: “(2) No person who, within twenty years of the
conduct described in division (A)(2)(a) of this section, previously has been convicted of
or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this
section, or any other equivalent offense shall do both of the following:
{¶25} (a) Operate any vehicle, streetcar, or trackless trolley within this state while
under the influence of alcohol, a drug of abuse, or a combination of them;…
{¶26} Appellant was not, as alleged by appellee, convicted of violating R.C.
4511.19(A)(2)(b) which states as follows: (b) Subsequent to being arrested for operating
the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section,
being asked by a law enforcement officer to submit to a chemical test or tests under
section 4511.191 of the Revised Code, and being advised by the officer in accordance
with section 4511.192 of the Revised Code of the consequences of the person's refusal
or submission to the test or tests, refuse to submit to the test or tests.
{¶27} In the case sub judice, there was testimony that appellant, who was stopped
for having a burnt tail light, smelled of alcohol, and had bloodshot and dilated eyes.
Appellant admitted to having consumed two Bud Light Platinum Beers thirty minutes
Stark County, Case No. 2019CA00033 7
before he was stopped and also admitted that he had consumed a couple of shots. While
appellant testified that he was referring to the two beers that he had consumed when he
spoke of the shots, the jury, as trier of fact, was in the best position to assess his
credibility.
{¶28} There also was testimony that appellant exhibited strong signs of
impairment during the HGN test. As is stated above, Officer Dodge testified that
appellant’s eyes “were jerking in an irregular rate which indicated that there was a
sufficient amount of alcohol in his bloodstream..” and that based on his experience, he
believed that appellant had probably had five or six drinks. Trial Transcript at 58. In
addition, appellant, who had a prior OVI in 2017, failed to touch heel to toe, had gaps
between his step and did not turn properly during the walk and turn test. Officer Dodge
testified that even if appellant had been disabled and could not have performed the one
leg stand and walk and turn test, he would have been arrested “[b]ased on the totality of
the circumstances…-- based on the observation of how impaired his eyes were showing
based on the Horizontal Gaze Nystagmus …, his eyes were jerking irregularly and he
was impaired.” Trial Transcript at 62.
{¶29} Officer Dodge also testified that appellant refused to submit to a breath test.
Appellant testified that he offered to submit to a urine test and that, therefore, he never
refused to take a test and argues that Officer Dodge’s failure to allow him to submit to a
urine or blood test “should not ultimately be held against him as a refusal.” However,
appellant had no right to a choice of the type of chemical test available. See City of Mount
Vernon v. Seng, 5th Dist. Knox No. 04CA000012, 2005–Ohio–2915, ¶ 46.
Stark County, Case No. 2019CA00033 8
{¶30} Based on the foregoing, we find that any rational trier of fact, construing the
evidence in in a light most favorable to the prosecution, could have found that appellant
committed the offense of OVI in violation of R.C. 4511.19(A)(2)(a). We further find that
the jury did not lose its way in convicting appellant.
{¶31} Appellant’s sole assignment of error is, therefore, overruled.
{¶32} Accordingly, the judgment of the Canton Municipal Court is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.