[Cite as State v. Foos,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

CITY OF AKRON C.A. No. 28086

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CODY M. FOOS AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 15TRC11134

DECISION AND JOURNAL ENTRY

Dated: December 28, 2016

MOORE, Presiding Judge.

{¶1} The Defendant, Cody Foos, appeals from the judgment of the Akron Municipal

Court. This Court affirms in part, vacates in part, and dismisses the appeal in part.

I.

{¶2} In the early morning hours of July 3, 2015, Mr. Foos was driving with two

passengers in the car, when he collided with a concrete barrier wall at a highway interchange.

Officer David Hayes of the Akron Police Department cited Mr. Foos for OVI in violation of

Akron Codified Ordinance (“Loc.Ord.”) 73.01(A) and failure to control in violation of Loc.Ord.

73.13(A). Mr. Foos pleaded not guilty to the charges. The OVI charge proceeded to jury trial.

The jury found Mr. Foos guilty of OVI. The trial court then found Mr. Foos guilty of failure to

control. On December 21, 2015, the trial court imposed sentence. In a notice of appeal dated

January 20, 2016, Mr. Foos appealed from his conviction, and he now presents three assignments

of error for our review. 2

II.

ASSIGNMENT OF ERROR I

[MR. FOOS’] CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶3} In his first assignment of error, Mr. Foos contends that the weight of the evidence

does not establish that he was driving while impaired. We disagree.

{¶4} When a defendant asserts that his conviction is against the manifest weight of the

evidence:

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986).

{¶5} Here, the jury found Mr. Foos guilty of violating Loc.Ord. 73.01(A)(1)(a), which

provides that “[n]o person shall operate any vehicle within the municipality, 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.” “Under the influence” has been defined as “[t]he condition in which a person finds

himself after having consumed some intoxicating beverage in such quantity that its effect on him

adversely affects his actions, reactions, conduct, movement or mental processes or impairs his

reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicle.”

State v. Adams, 9th Dist. Medina No. 13CA0008-M,

, quoting State v.

Smith, 5th Dist. Licking No. 09-CA-42,

, ¶ 92, quoting Toledo v. Starks,

(6th Dist. 1971). Although Mr. Foos does not dispute that he was the

driver of the car, Mr. Foos contends that the weight of the evidence does not establish that he

was under the influence of alcohol. We limit our review accordingly. 3

{¶6} At trial, the State presented the testimony of Officers David Hayes and Matthew

Whitmire of the Akron Police Department. Officer Hayes testified that on July 3, 2015, he

responded to the accident. When he arrived, he saw three individuals standing outside the car,

which had skidded and crashed into a barrier wall. There was heavy front end damage to the car

and skid marks on the road. The officer called for a tow truck, and he also called for backup

from other officers to assist with traffic. The three men standing by the highway appeared very

intoxicated, and the officer inquired as to who was driving the car. Two of the men “sheepishly”

pointed to Mr. Foos, and Mr. Foos acknowledged that he was driving, and he handed the officer

his license. Officer Hayes recalled that Mr. Foos stated that a car had hit him from behind and

shoved him into the wall. However, the officer noted that there was only one set of skid marks,

and the front of Mr. Foos’ car was smashed, but the rear was completely undamaged. The

officer assessed the situation as a one-car crash into the wall, because he believed it was obvious

that there were no other vehicles involved. While the tow truck was on its way, the officer spoke

with Mr. Foos in the officer’s cruiser, and he observed that Mr. Foos was very “drunk,” had a

strong odor of alcohol about him, and slurred his speech. Mr. Foos was wearing a wrist band

that appeared to be of the type used by bars. He appeared “very intoxicated.” The officer

decided to perform field sobriety tests, and he had to almost “forcibly” get Mr. Foos out of the

officer’s cruiser because he did not want to exit the cruiser. After he did, Mr. Foos leaned up on

the cruiser and had to use it to steady himself. He was “kind of zoning out, kind of not paying

attention. Almost, you think almost falling asleep, but more, * * * just a very drunk behavior.”

The officer attempted to administer field sobriety tests, but Mr. Foos refused. He then placed

Mr. Foos under arrest. 4

{¶7} Officer Hayes further testified that, after the tow truck arrived, the officer drove to

the parking lot of an establishment off of the highway. There, the officer read to Mr. Foos a long

paragraph from the BMV Form 2255, which the officer stated he reads to everyone he arrests for

OVI. This paragraph explains the consequences for refusing a chemical test. The officer stated

that because Mr. Foos “was refusing everything, [the officer] didn’t see any reason to go to the

police station to offer him a test there.” After reading this portion of the BMV Form 2255 to Mr.

Foos, Mr. Foos refused to take any kind of test. Officer Hayes cited Mr. Foos for failure to

control and OVI, and he then drove Mr. Foos home.

{¶8} On cross-examination, Officer Hayes reviewed the BMV Form 2255 that he had

used in this case, and he acknowledged that the form used here was updated in July of 2010, but

he should have used a newer version of the form that was updated in 2013. The officer indicated

that the department did not have a working breathalyzer machine that he could have used to

perform a chemical breath test on Mr. Foos on the night in question. During cross-examination

of the officer, the defense played the officer’s cruiser video, which did not contain audio. The

officer noted that, when he arrived at the scene, Mr. Foos and the other men with him were not

stumbling, and Mr. Foos had no difficulty retrieving his license to hand to the officer.

{¶9} Officer Whitmire testified that he responded Officer Hayes’ call for backup at the

scene to slow down traffic. He was able to observe Mr. Foos in the back of Officer Hayes’

cruiser, and Mr. Foos seemed somewhat lethargic. When Officer Hayes opened the cruiser door,

Officer Whitmire could smell a fairly strong odor of alcoholic beverage. After the tow truck

arrived, Officer Whitmire met Officer Hayes at a parking lot, at which point Officer Hayes read

Mr. Foos the BMV Form 2255, and Mr. Foos refused chemical testing. 5

{¶10} The defense presented the testimony of Mr. Foos and Patrick Dell. Mr. Foos

testified that on the night of July 2, 2015, Mr. Dell invited him to play pool at a bar. He went to

the bar, and he consumed one beer as he played pool. Thereafter, Mr. Foos drove Mr. Dell and

another man, named Robert Ebner, to a strip club, but Mr. Foos consumed no other alcoholic

beverage that evening aside from the one beer at the bar. After leaving the strip club, Mr. Foos

was driving the men home, when he felt a crack or hole in the road. As soon as Mr. Foos felt his

car hit that defect in the road, he felt his car “go down[,]” and he lost control of the car, crashing

into the concrete barrier. Mr. Foos maintained that he did not tell a police officer that his car was

struck from the rear; Mr. Ebner did, and when the officer asked Mr. Foos if that was what had

happened, he said no. Mr. Foos identified photographs that he had obtained from Google maps

of the area of the accident. The photographs display a large crack running across the roadway.

Mr. Foos indicated that, after the accident, he drove on the roadway in the area of the accident,

and he maintained that the Google maps pictures accurately reflected the then current condition

of the road. Mr. Foos testified that he could not stop and take photographs of the road condition

himself because of safety concerns.

{¶11} Mr. Dell testified that, in the evening hours of July 2, 2015, he and Mr. Ebner,

who is Austrian and speaks with an Austrian accent, were at a bar when Mr. Foos arrived. The

men played a game of pool, and Mr. Foos then drove them to a strip club. Mr. Foos was driving

normally that night, and he did not seem intoxicated. Just prior to the accident, Mr. Dell felt the

car go into “a pothole sort of” and then he heard the tires squeal. When he opened his eyes, the

airbags were deployed. Mr. Dell recognized a defense exhibit containing a Google map picture

discussed above, as a picture of the roadway where Mr. Foos was driving just prior to the

accident. Mr. Dell recalled that someone had made a comment after the police officer arrived 6

that the car was hit from behind, but Mr. Dell believed it was Mr. Ebner who said that, because

he recalled this being said in Mr. Ebner’s accent. On cross-examination, Mr. Dell indicated that

he was drinking a “little of everything” on the night of the accident and that he was probably

drinking beer at the strip club. Mr. Dell further indicated that he believed that he was drunk the

night of the accident.

{¶12} On appeal, Mr. Foos maintains that weight of the evidence does not establish that

Mr. Foos was under the influence of alcohol when he crashed into the concrete barrier.

{¶13} However, although Mr. Dell’s assessment of Mr. Foos, and Mr. Foos’ recollection

of his own condition, contradicted Officer Hayes’ assessment that Mr. Foos was “drunk,” or

“intoxicated[,]” a conviction is not against the manifest weight because the trier of fact chose to

credit the State’s version of events. See State v. Shank, 9th Dist. Medina No. 14CA0090-M,

. Moreover, Mr. Foos’ testimony regarding the cause of the accident at

trial contradicted the statement that Officer Hayes had recalled Mr. Foos making at the scene.

Although Mr. Foos and Mr. Dell maintained that Mr. Ebner made the statement regarding being

hit from the rear, the jury could accept or reject any part of their testimony. See State v. Kudla,

9th Dist. Summit No. 27652,

. Nor was the jury required to accept that the

crash had occurred as a result of a defect in the road. See

{¶14} Our review of the record indicates that the officers presented testimony that Mr.

Foos was involved in a single car crash, that he emitted a strong odor of alcohol, that his speech

was slurred, that he was “zoning” out when the officer spoke with him, and that he lacked

balance to steady himself when the officer removed him from the cruiser to attempt to perform

field sobriety tests. A reasonable inference can be drawn from these facts that Mr. Foos had

“consumed some intoxicating beverage in such quantity that its effect on him adversely 7

affect[ed] his actions, reactions, conduct, movement or mental processes or impair[ed] his

reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicle.” See

Adams,

. We cannot say that this is the extraordinary case where the

jury clearly lost its way in finding Mr. Foos guilty of OVI. Accordingly, Mr. Foos’ first

assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY INCLUDING A JURY INSTRUCTION REGARDING [MR. FOOS’] REFUSAL TO TAKE A CHEMICAL TEST[.]

{¶15} In his second assignment of error, Mr. Foos contends that the trial court erred in

instructing the jury that it could consider his refusal to submit to a chemical test when

considering whether he was under the influence of alcohol. In response to this assignment of

error, the State maintains that Mr. Foos has forfeited his challenge to the instruction by failing to

renew his objection to the instruction when provided the opportunity to do so.

{¶16} Crim.R. 30 provides, in relevant part, that “[o]n appeal, a party may not assign as

error the giving * * * [of] any instructions unless the party objects before the jury retires to

consider its verdict, stating specifically the matter objected to and the grounds of the objection.

Opportunity shall be given to make the objection out of the hearing of the jury.” “[W]here the

record affirmatively shows that a trial court has been fully apprised of the correct law governing

a material issue in dispute,” and the party challenging the instruction has been unsuccessful in

challenging the charge to be given, “such party does not waive his objections to the court’s

charge by failing to formally object thereto.” State v. Wolons,

(1989).

{¶17} At trial, after the parties rested, the trial court heard arguments from the parties as

to whether an instruction should be given to the jury regarding inferences that could be drawn

from Mr. Foos’ refusal to submit to chemical testing. The defense opposed inclusion of the 8

instruction. Thereafter, the trial court indicated that it would do its own research on this issue

and make a decision. When the proceedings came back on the record, the following exchange

occurred:

[TRIAL COURT]: * * *. We have gone over all of the jury instructions and I believe that they are acceptable to everyone; is that correct?

[THE STATE]: Yes, Your Honor.

[DEFENSE COUNSEL]: Yes, Your Honor.

{¶18} The defense did not then state any objection to the instructions or renew the

argument against the chemical test refusal instruction. In its instructions to the jury, the trial

court stated:

Refusal. Evidence has been introduced indicating the Defendant was asked but refused to submit to a chemical test to determine the amount of alcohol in his system for the purpose of suggesting that the Defendant believed that he was under the influence of alcohol. If you find the Defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol.

See Maumee v. Anistik,

(1994), syllabus (approving of substantially similar

instruction regarding refusal to submit to a chemical test of breath).

{¶19} Because the trial court inquired of the attorneys whether the jury instructions were

acceptable, and Mr. Foos did not indicate any opposition to the instructions, the State maintains

that Mr. Foos has forfeited any argument on appeal with respect to the instruction, save for that

of plain error. In support, the State cites this Court’s decision in Van Scyoc v. Huba, 9th Dist.

Summit No. 22637,

.

{¶20} In Van Scyoc, the Appellant requested the trial court to include an instruction on

dual causation. Id. at ¶ 3. The trial court declined to include this instruction. On appeal, this

Court noted that, at trial, the Appellant brought the issue of the dual causation instruction “to the 9

attention of the trial court, argued her position and clearly stated that the instruction should be

included.” Id. at ¶ 17. We concluded that the Appellant’s conduct in that regard was equivalent

to an objection to the trial court’s failure to include the instruction. Id. at ¶ 18; see Civ.R. 51(A)

(containing language similar in substance to the here relevant portion of Crim.R. 30). However,

in Van Scyoc, we further noted that Appellant failed to renew her objection when the trial court

later offered the opportunity. Id. at ¶ 18. Instead, the Appellant indicated to the trial court that

she had no objection to the instructions, which did not include her requested instruction on dual

causation. Id. at ¶ 13-14. This Court reasoned that “prudence and good sense mandate renewal

of an objection when given the opportunity by the trial court, and this Court is unaware of a

reason why the objection at issue was not renewed. Accordingly, we find that Appellant

effectively withdrew her objection to the submitted jury charge when she declined to renew it

when specifically provided an opportunity to do so.” Id. at ¶ 18. Based upon the effective

withdrawal of the objection, we concluded that the Appellant had forfeited all argument as to the

jury instructions on appeal, except for plain error. Id. at ¶ 19.

{¶21} Likewise, here, after defense argued against inclusion of the refusal instruction,

the trial court decided to include the instruction, and it specifically asked counsel if the

instructions were acceptable. The defense responded in the affirmative. Accordingly, the

defense’s objection to the instruction was effectively withdrawn, and Mr. Foos has forfeited all

but plain error argument with respect to the instruction on appeal. However, as he has made no

plain error argument on appeal, we decline to create one on his behalf. See id. On this basis, Mr.

Foos’ second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY DENYING [MR. FOOS’] ALS APPEAL IN LIGHT OF THE FACT THAT THE FORM 2255 INFORMATION READ TO 10

[MR. FOOS] WAS NOT THE CURRENT STATEMENT OF THE LAW AND THE ARRESTING OFFICER DID NOT COMPLY WITH THE FORMAL REQUIREMENTS OF CONDUCTING A TEST OF THE ALCOHOL LEVEL IN [MR. FOOS’] BLOOD[.]

{¶22} In his third assignment of error, Mr. Foos contends that the trial court erred in

denying his appeal from his administrative license suspension (“ALS”). Because Mr. Foos failed

to timely appeal from the trial court’s order denying his ALS appeal, we do not reach the merits

of Foos’ third assignment of error.

{¶23} “An administrative license suspension and a criminal prosecution for [OVI] which

arise from the same arrest are separate proceedings.” Akron v. Turner, 9th Dist. Summit No.

26790,

, quoting State v. Willard, 9th Dist. Medina No. 04CA0045-M,

. “A trial court’s determination of an administrative-license-suspension

appeal is an order entered in a special proceeding and is final pursuant to R.C. 2505.02.” Turner

at ¶ 7, quoting State v. Williams,

(1996), paragraph two of the syllabus.

“Accordingly, to timely appeal from a court’s denial of an ALS appeal, a defendant must file his

or her notice of appeal within thirty days.” Turner at ¶ 7, citing Willard at ¶ 8. “Where an

untimely appeal has been filed, an appellate court lacks jurisdiction to consider the merits, and

the appeal must be dismissed.” State v. Myers, 9th Dist. Wayne No. 08CA0041, 2009-Ohio-

2082, ¶ 7, quoting Metropolitan Bank & Trust Co. v. Roth, 9th Dist. Summit No. 21174, 2003-

Ohio-1138, ¶ 15.

{¶24} Here, Mr. Foos filed an ALS appeal in the trial court on August 5, 2015. After a

hearing, the trial court issued an order, dated August 25, 2015, denying the ALS appeal. On

October 15, 2015, Mr. Foos moved the court to reconsider his ALS appeal. On November 2,

2015, the trial court issued an order denying Mr. Foos’ motion to reconsider his ALS appeal. 11

{¶25} Because the trial court’s August 25, 2015 order denied Mr. Foos’ ALS appeal, it

was a final appealable order, from which he had thirty days to file an appeal. Williams at

paragraph two of the syllabus; Willard at ¶ 8. Mr. Foos’ did not file his appeal until January 20,

2016, and he did not appeal from the denial of the ALS appeal. Accordingly, his challenges to

the trial court’s August 5, 2015 denial of his ALS appeal are not properly before us, and we lack

jurisdiction to rule on his third assignment of error. Further, we note that, because the trial court

issued a final appealable order on August 25, 2015 denying the ALS appeal, the subsequent

November 2, 2015 order denying the “Motion to Reconsider” is a nullity. State v. Kirk, 9th Dist.

Lorain No. 15CA010896,

(“A motion to reconsider after a final judgment is

a nullity, and all judgments from such motions to reconsider are nullities.”). We exercise our

inherent authority to vacate the November 2, 2015 order. See Hairline Clinic, Inc. v. Riggs-

Fejes, 9th Dist. Summit No. 25171,

(This Court has inherent authority to

recognize and vacate nullities.).

III.

{¶26} Mr. Foos’ first and second assignments of error are overruled. We do not reach

the merits of Mr. Foos’ third assignment of error as it constitutes an untimely appeal from the

trial court’s ALS appeal determination. The December 21, 2015 judgment of the trial court is

affirmed. The trial court’s November 2, 2015 order is vacated. The appeal is dismissed to the

extent that Mr. Foos has attempted to challenge the August 25, 2015 denial of his ALS appeal.

Judgment affirmed in part, and vacated in part, and appeal dismissed in part.

There were reasonable grounds for this appeal. 12

We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

WHITMORE, J. HENSAL, J. CONCUR.

APPEARANCES:

STEPHEN MCGOWAN, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN D. BREMER, Assistant Director of Law, for Appellee.