State v. Zemljic

[Cite as State v. Zemljic, 2021-Ohio-2181.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2020-P-0073

Plaintiff-Appellee,
Criminal Appeal from the
-v- Municipal Court,
Ravenna Division
ERIK RYAN ZEMLJIC,

Defendant-Appellant. Trial Court No. 2019 TRC 13836 R

OPINION

Decided: June 28, 2021
Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael A. Scala, 244 Seneca Avenue, N.E., P.O. Box 4306, Warren, OH 44482 (For
Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Erik R. Zemljic, appeals from his convictions for

Operating a Vehicle while Under the Influence and Refusal to Submit to Chemical Tests

in the Portage County Municipal Court, Ravenna Division. For the following reasons, we

affirm the judgment of the lower court.

{¶2} On September 29, 2019, Zemljic was issued a citation for Operating a

Vehicle while Under the Influence, a misdemeanor of the first degree, in violation of R.C.

4511.19(A)(1)(a); Refusal to Submit to Chemical Tests, a misdemeanor of the first
degree, in violation of R.C. 4511.19(A)(2); and a marked lanes violation, a minor

misdemeanor, in violation of R.C. 4511.33.

{¶3} A bench trial was held on July 21, 2020. At its commencement, defense

counsel moved for a continuance, noting that in May 2020, counsel had requested videos

of the dash camera and body camera operating during the stop of Zemljic and again

requested the videos on May 28, 2020, because the videos provided would not play.

Defense counsel stated that, as of the morning of trial, “the State has been unable to

provide us a video of the body armor that works,” and argued that such video was

necessary because the dash camera video, which was accessible, did not have sound.

Defense counsel stated that he had unsuccessfully tried to open the body camera video

on the State’s computer and the prosecutor confirmed that although he tried the videos

“on several machines,” there was no sound on the dash camera video and the body

camera video would not open. The court stated: “Here’s my dilemma. One, this case is

from last August. Mr. Zemljic was granted multiple opportunities to apply for the Public

Defender. The Public Defender was appointed in March. We’re now at the end of July,

and we’re just now bringing discovery issues to the Court’s attention, which is problematic

for me so I’m going to overrule the motion to continue. We’re going to proceed.” It further

noted the matter had previously been set for trial at which Zemljic failed to appear and

there had been five pretrials at which this issue was not raised.

{¶4} The following pertinent testimony and evidence were presented at trial.

{¶5} On September 29, 2019, at around 11:24 p.m., Officer John Milner, a

Patrolman with the Streetsboro Police Department, observed Zemljic operating his

vehicle on State Route 14 in Streetsboro and “drifting over the lanes.” From his

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experience, this driving was consistent with someone who may be under the influence of

alcohol or drugs. Milner conducted a stop of Zemljic’s vehicle and observed that he was

visibly shaking and his eyes “were kind of sunken in and droopy” with a “strung-out type

of look.” Milner had Zemljic complete standard field sobriety tests, which Milner testified

showed signs of driving under the influence as Zemljic had a “poor performance.” On the

horizontal gaze nystagmus test, Milner observed six clues of driving under the influence,

including a lack of smooth pursuit and jerking of the eyes. On the walk and turn test,

Zemljic had difficulty maintaining his balance, performed an incorrect turn, and needed to

be given the instructions multiple times. During the one leg stand, Zemljic had to raise

his hands, swayed to keep his balance, and put his foot down. Advanced Roadside

Impaired Driving Enforcement (ARIDE) tests were also conducted, including a lack of

convergence eye test and a test requiring Zemljic to estimate when 30 seconds had

passed, both of which Milner testified further demonstrated impairment. Milner concluded

that Zemljic was under the influence of drugs. After Zemljic, who had a prior OVI

conviction in 2003, was arrested, Milner requested he complete a urine test, which Zemljic

refused. On cross-examination, Milner was asked whether the fact that Zemljic’s car

blinkers were on would have impacted the tests and responded that he could not “say for

sure” but “imagined it probably wouldn’t.”

{¶6} Defendant, Erik Zemljic, testified that he had a flea infestation in his home

about a week or two prior to the September 29 stop. He applied chemicals, including flea

bombs and some “commercial” products, to treat his home on Friday, September 27, and

on September 29, about half an hour to an hour before the time he was pulled over. He

testified that he also applied chemicals to his bed and then slept in it. He injured his head

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on September 27 when he passed out and fell and subsequently experienced amnesia

but did not seek treatment at the hospital. He believed he should not have exposed

himself to these chemicals and did not follow any safety precautions. Documents with

the manufacturers’ instructions for using the chemicals, which included an insecticide, a

“fogger” or “flea bomb,” and a “premise spray,” were presented by the defense. The

documents provided warnings to ventilate the area where the chemicals were used and

to “avoid breathing spray mist.” They also included instructions that a person who inhales

the chemicals should be “removed * * * to fresh air” and to call poison control if chemicals

were inhaled. Additional instructions warned that “intoxication to solvents may cause

dizziness, headache, nausea, narcosis, eye irritation, G.I. tract irritation, and cardiac

arrhythmia in certain cases.”

{¶7} According to Zemljic, on September 29, he booked a hotel in Streetsboro

due to the condition of his home. A receipt for a booking of that hotel on Expedia was

presented. After setting off a flea bomb, he left and made the ten to twenty minute drive

from Kent to the hotel, then drove to get food, when he was pulled over. Zemljic denied

taking any illegal drugs on the night of the stop, further testifying that he had been taking

several prescription medications in the summer of 2019 including Klonopin, Clonazepam,

Adderall, and Sertraline but had stopped taking them which he believed affected his

behavior and mannerisms.

{¶8} Frank Zemljic, Zemljic’s father, testified that when he had visited his son’s

house on September 29, 2019, there were chemicals “thrown around for the fleas,” and

it looked like a snowstorm had occurred in the house. He left shortly thereafter because

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the smell was “extremely powerful.” He testified that Zemljic seemed groggy, “wasn’t

himself,” and had a bump on his head.

{¶9} The court found Zemljic guilty of all three offenses. For the purposes of

sentencing, the court found that “Counts 1 and 3 merge into Count 2, OVI Refusal to

Submit to Chemical Testing.” It sentenced him to a term of 180 days in jail with 177

suspended and three days in the driver intervention program, as well as a $600 fine. The

court stayed his sentence pending appeal.

{¶10} Zemljic timely appeals and raises the following assignments of error:

{¶11} “[1.] The trial court erred, to the detriment of appellant, by allowing the video

to be presented into evidence in spite of the lack of audio portion, and not granting a

continuance for the parties to correct this defect.

{¶12} “[2.] The trial court erred, to the detriment of appellant, by making a finding

of guilty despite the manifest weight of the evidence being insufficient.”

{¶13} In his first assignment of error, Zemljic argues that the trial court erred by

failing to grant a continuance to ensure the audio portion of the stop could be presented

at trial and the court erred by admitting the video of the stop when it lacked the audio

component.

{¶14} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge. An appellate court must not reverse the denial

of a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio

St.2d 65, 67, 423 N.E.2d 1078 (1981). “An abuse of discretion connotes the trial court’s

‘“failure to exercise sound, reasonable, and legal decision-making.”’” State v. Moore,

11th Dist. Geauga No. 2014-G-3195, 2014-Ohio-5183, ¶ 54, quoting State v. Beechler,

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2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11

(8th Ed.2004).

{¶15} “There are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial judge at the time

the request is denied.” (Citation omitted.) Unger at 67. Several factors that can be

considered are: “the length of delay requested, prior continuances, inconvenience, the

reasons for the delay, whether the defendant contributed to the delay, and other relevant

factors.” State v. Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990). “Weighed

against any potential prejudice to a defendant are concerns such as a court’s right to

control its own docket and the public’s interest in the prompt and efficient dispatch of

justice.” Unger at 67.

{¶16} It is evident that the lower court took into account the circumstances

surrounding the request for the continuance and we do not find that it abused its discretion

in denying it. The court recognized that the matter had been pending for approximately

ten months, had been delayed previously due to Zemljic’s failure to appear, and that the

court had not been made aware of the issues with the video, although defense counsel

had known of the problem for over two months. Denials of continuances have frequently

been upheld where a defendant claims certain evidence is necessary to proceed with trial

but fails to move for a continuance until the day of trial. State v. Harmon, 2d Dist. Clark

No. 09CA0035, 2010-Ohio-836, ¶ 8-18 (where defendant needed additional time to obtain

a videotape alleged to be in the possession of the sheriff’s department although the State

denied a video existed, defendant had been granted a prior continuance, and motion was

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not made until the day of trial, it was not an abuse of discretion to deny the motion for

continuance); State v. Haynes, 12th Dist. Brown No. CA2009-07-025, 2010-Ohio-2960, ¶

4-9 (motion properly denied when defendant failed to seek a continuance to locate a

witness until the day of trial). All of the foregoing facts weigh against granting the

continuance.

{¶17} Further, any potential prejudice to Zemljic does not appear to be significant

such that it would outweigh other considerations. It is unclear whether the concerns with

the videos could have been remedied even if a continuance had been granted because

the State appeared unable to access or provide the videos requested. Further, the court,

acting as the trier of fact, was fully aware of the claims as to what may have been said in

the audio by Zemljic regarding his physical condition and reasons for it. When weighing

the potential prejudice against the concerns of efficient administration of justice, the court

was within its discretion to deny the continuance.

{¶18} Zemljic also argues that the dash camera video should not have been

admitted as evidence since it lacked audio.

{¶19} “Appellate review of a trial court’s determination regarding the admissibility

of evidence is reviewed under an abuse of discretion standard.” State v. Hastings, 11th

Dist. Portage No. 2020-P-0014, 2021-Ohio-662, ¶ 11.

{¶20} Zemljic cites to no authority for the proposition that the video was

inadmissible simply because it lacked audio. There is nothing in the record to

demonstrate that it was not properly authenticated or was not relevant such that it was

inadmissible under the Rules of Evidence. In the absence of any authority to support a

contrary argument, we find no abuse of discretion.

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 {¶21} Finally, to the extent that Zemljic comments on whether police officers rely

too heavily on video evidence rather than their memories of incidents giving rise to

charges, we find no legal argument warranting reversal in this line of analysis. A

recording, either in whole or in part, with audio or video, is certainly admissible regardless

of whether it may, in Zemljic’s opinion, make “observations more casual as Officers know

that there would be a video that could be played in the future.” The court in this case was

capable, when acting as the trier of fact, to weigh all of the evidence together in reaching

its verdict. Further, to the extent that Zemljic takes exception to Officer Milner’s inability

to recall whether he actually gave a certain instruction to Zemljic or simply “always gave”

such instructions, this relates to the credibility of his testimony rather than the admissibility

of the video evidence.

{¶22} The first assignment of error is without merit.

{¶23} In the second assignment of error, Zemljic argues that the court erred in

finding him guilty “despite the manifest weight of the evidence being insufficient.”

{¶24} Sufficiency is a test of the adequacy of the evidence to determine “whether

the evidence is legally sufficient to support the * * * verdict as a matter of law.” (Citation

omitted.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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,” i.e., “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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

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492 (1991), paragraph two of the syllabus.

{¶25} In contrast, “weight of the evidence addresses the evidence’s effect of

inducing belief” and warrants consideration of “whose evidence is more persuasive -- the

state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 25. An appellate court considering whether a verdict is against the

manifest weight of the evidence must consider all the evidence in the record, the

reasonable inferences, the credibility of the witnesses, and 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 reversed and a new trial ordered.” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶26} Zemljic argues that the State failed to demonstrate that he was under the

influence of drugs or alcohol while driving, emphasizing his testimony that he had a head

injury, had been exposed to chemicals to treat fleas and the lack of evidence to

corroborate Officer Milner’s conclusion that he was impaired by drugs.

{¶27} Pursuant to R.C. 4511.19(A)(1)(a), “[n]o person shall operate any vehicle*

* * if, at the time of the operation, * * * [t]he person is under the influence of alcohol, a

drug of abuse, or a combination of them.” “‘Drug of abuse’ means any controlled

substance as defined in section 3719.01 of the Revised Code, any harmful intoxicant as

defined in section 2925.01 of the Revised Code, and any dangerous drug as defined

in section 4729.01 of the Revised Code.” R.C. 3719.011(A).

{¶28} Zemljic contends that the State failed to prove he was under the influence

of a drug of abuse. Officer Milner testified extensively as to the circumstances which led

him to determine that Zemljic was driving while under the influence of drugs. When he

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stopped Zemljic, Milner observed him visibly shaking with his eyes “sunken in and droopy”

with a “strung-out type of look.” Based on his observations of Zemljic and his driving,

Milner was concerned that he was “under the influence of something.” Milner confirmed

these suspicions by conducting field sobriety tests, which demonstrated a substantial

number of cues for driving under the influence. Significantly, Milner performed a test

requiring Zemljic to estimate time, under which he counted more slowly than the average

person, which is consistent with being under the influence of central nervous system

depressants. Milner’s testimony demonstrated that he considered all of the

circumstances, including Zemljic’s behavior, driving, appearance, and actions during the

tests, in ultimately concluding, based on his experience and training, that Zemljic was

under the influence of drugs.

{¶29} While Zemljic emphasizes the testimony showing “he may have exposed

himself to toxic chemicals,” as tending to demonstrate that he was not driving under the

influence of a drug of abuse, we find this evidence provides further corroboration of

Milner’s testimony in support of a conviction. Under Zemljic’s own version of events, he

exposed himself to chemicals used for flea treatments which he knew impacted him

negatively, having previously passed out and hit his head after being in the home with

these chemicals. Documents showing the ingredients and instructions for the chemicals

entered into evidence demonstrated that they can be harmful and have side effects when

inhaled and not used in a properly ventilated area. Zemljic’s father corroborated the

effects of those chemicals and that they were present in Zemljic’s home the day of the

OVI. Zemljic decided it was necessary to leave his home and rent a hotel room due to

the impact of these chemicals. Thus, he was aware of the effects that the chemicals had

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on him yet still chose to drive knowing he had been exposed to them. Even if Zemljic did

not intend to drive while under the influence, a violation of R.C. 4511.19(A)(1) is a strict

liability offense and mens rea is irrelevant. State v. Rendina, 11th Dist. Lake No. 98-L-

129, 1999 WL 1313650, *4 (Dec. 23, 1999); State v. Moine, 72 Ohio App.3d 584, 587,

595 N.E.2d 524 (9th Dist.1991). This evidence further supports Milner’s testimony that

Zemljic was driving while under the influence of drugs. While no specific arguments have

been presented as to whether such chemicals are a drug of abuse, a “drug of abuse”

includes “harmful intoxicants,” defined as “[a]ny compound, mixture, preparation, or

substance the gas, fumes, or vapor of which when inhaled can induce intoxication,

excitement, giddiness, irrational behavior, depression, stupefaction, paralysis,

unconsciousness, asphyxiation, or other harmful physiological effects, and includes, but

is not limited to” various substances such as volatile organic solvents, aerosol propellants,

and fluorocarbon refrigerants. R.C. 2925.01(I). The testimony and evidence regarding

the chemicals and their impact on Zemljic reasonably support a conclusion that these

chemicals, when inhaled, could cause harmful physiological effects, rendering them a

drug of abuse.

{¶30} We note that it has been held that the State must prove a “nexus between

[the defendant’s] impaired condition and a drug of abuse.” Cleveland v. Turner, 8th Dist.

Cuyahoga No. 99183, 2013-Ohio-3145, ¶ 14. Given our examination of the foregoing

facts, we find that such a nexus was established. Milner was specific in his testimony

that the tests and conduct demonstrated the impairment was caused by a drug, noting

specifically the test indicating possible use of a central nervous system depressant, and

Zemljic’s testimony further weighed in favor of a determination that he had been exposed

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to drugs that led to his impairment.

{¶31} Finally, to the extent that Zemljic also argues that his behavior could be

explained by his head injury or the fact that he was “tired,” these explanations were issues

for the trier of fact to consider and weigh in light of the totality of the evidence. See State

v. Aikens, 2016-Ohio-2795, 64 N.E.3d 371, ¶ 43 (11th Dist.) (we “must defer to the factual

findings of the trier of fact as to the weight to be given to the evidence and the credibility

of the witnesses”). They do not render the conviction against the weight of the evidence

or unsupported by sufficient evidence.

{¶32} Given the foregoing, we find that the State presented sufficient evidence to

prove that Zemljic was under the influence of a drug of abuse and his conviction for

Operating a Vehicle while Under the Influence was supported by the weight of the

evidence. As to Refusal to Submit to Chemical Tests, R.C. 4511.19(A)(2) requires the

State to prove that the defendant was convicted of an OVI in the past twenty years,

operated a vehicle while under the influence of a drug of abuse, and refused to submit to

a chemical test. R.C. 4511.19(A)(2)(a) and (b); State v. Hoover, 123 Ohio St.3d 418,

2009-Ohio-4993, 916 N.E.2d 1056, ¶ 13. There is no dispute that Zemljic refused to

submit to a chemical test and had an OVI conviction in the past twenty years and, since

the evidence supported a finding that he operated a vehicle while under the influence of

a drug of abuse, the evidence supported this conviction. Zemljic concedes the conviction

for the marked lanes violation. Based on the foregoing, each of Zemljic’s convictions are

affirmed.

{¶33} The second assignment of error is without merit.

{¶34} For the foregoing reasons, the judgment of the Portage County Municipal

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Court, Ravenna Division, is affirmed. Costs to be taxed against the appellant.

MARY JANE TRAPP, P.J.,

THOMAS R. WRIGHT, J.,

concur.

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