COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67522 STATE OF OHIO, : CITY OF BROOKPARK : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION THOMAS SMITH : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court No. 94-TRC-551 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: NEIL M. JAMISON Brook Park Prosecutor 5709 Smith Road Brook Park, Ohio 44142 For Defendant-Appellant: JAMES KONCHAN 700 Marion Building 1276 West Third Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Appellant, Thomas Smith, appeals from his convictions for driving while under the influence of alcohol, Driving with a Prohibited Breath/Alcohol content, and Driving with a Suspended License. For the reasons set forth below, we affirm. On February 12, 1994, Officers Diulius and Packard of the Brook Park police department responded to the Liberty Bell Condominiums to investigate a parking lot accident and a possible intoxicated motorist. These officers arrived on the scene and spoke with Angela and Victoria Kascsak who stated that appellant while intoxicated struck a parked car with his vehicle. During this discussion Officer Diulius observed appellant entering his home, followed him, knocked on his door, and was admitted into the residence by his teenage son. Upon entering appellant's home Officer Diulius smelled an odor of alcohol and observed appellant leaning on a piece of furniture, apparently unable to stand. On this basis Officer Diulius arrested appellant for driving while under the influence of alcohol. Thereafter, Officer Diulius attempted to conduct field sobriety tests, which appellant was unable to perform due to severe intoxication. Appellant was then transported to the Brook Park police station and a breath alcohol test was conducted which measured appellant's BAC at .286. While Officer Diulius was - 3 - transporting appellant, Officer Packard investigated the accident scene and observed only slight damage to one vehicle. Appellant received citations for driving under the influence, having a prohibited BAC, and driving while under suspension. On March 7, 1994, appellant moved to suppress all evidence against him due to an unlawful warrantless arrest and an improperly administered BAC test. The trial court denied the motion to suppress, the case proceeded to jury trial on May 16, 1994 and the jury found appellant guilty of all charges. Appellant now appeals and raises eleven assignments of error for our review. I. Appellant's first, third, and sixth assignments of error all challenge the court's denial of the motion to suppress because appellant believes the police did not have probable cause to arrest him and, therefore, the evidence of his crime is inadmissible. These assignments of error will be addressed together. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE APPELLANT'S ARREST AS THE ARREST WAS MADE IN THE NIGHT SEASON, IN THE APPELLANT'S HOME, ON A MISDEMEANOR, WITHOUT PROBABLE CAUSE, AND WITHOUT AN ARREST WARRANT IN VIOLATION OF THE APPELLANT'S RIGHT PROTECTED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I-SECTION 14 OF THE OHIO CONSTITUTION. - 4 - THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE ARREST OF THE APPELLANT IN VIOLATION OF THE APPELLANT'S RIGHTS GUARANTEED TO HIM UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I - SECTION 14 OF THE OHIO CONSTITUTION AS A WARRANTLESS ENTRY INTO HIS RESIDENCE WAS MADE ON A MISDEMEANOR NOT OBSERVED BY THE ARRESTING OFFICER WHERE NO EXIGENT CIRCUMSTANCES EXISTED. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO SUPPRESS THE ARREST OF THE APPELLANT AND SUPPRESS THE FRUITS OF THAT ARREST AS THE POLICE NEVER SAW THE APPELLANT DRIVING A MOTOR VEHICLE, DID NOT HAVE CAUSE TO BELIEVE THE APPELLANT WAS UNDER THE INFLUENCE OF ALCOHOL AND RELIED SOLELY UPON THE UNVERIFIED STATEMENTS OF UNKNOWN WITNESSES. Appellant argues that the trial court should have suppressed all evidence against him because his warrantless arrest for a misdemeanor was not based on probable cause. The state contends that the information given by Kascsak and the officers' observa- tions at the scene provided probable cause for the arrest. The issue then for our consideration is whether or not probable cause existed for this warrantless misdemeanor arrest where the crime was not committed in the officers' presence. R.C. 2935.03(A) provides police officers with the authority to arrest and detain persons "found violating" the laws of this state, or ordinances of municipal corporations until a warrant can be obtained. This language "found violating" has been interpreted to permit a warrantless arrest for a misdemeanor only when the offense is committed in the officers' presence. State v. Reymann (1989), 55 Ohio App.3d 222, 224 (citing State v. Mathews (1976), 46 Ohio St.2d 72, 75). - 5 - However, an exception to this rule arises when, based upon circumstances perceivable by his own senses, a policeman would be justified in concluding that a misdemeanor has been committed. Cleveland v. Murad (1992), 84 Ohio App.3d 317, 32. In Murad, however, we cautioned that: "probable cause for this purpose must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly drawn from the testimony of the senses." Murad at 327, quoting, 5 American Jurisprudence 2d (1962), 721, Arrest, Section 31. In the instant case Officer Diulius, who appeared at the accident scene minutes after the collision, relying on the statements of the Kascsaks, his personal observation of appellant entering his home, and appellant's intoxicated state, arrested appellant for DUI. These circumstances, observed by Officer Diulius, gave him probable cause to arrest appellant. Therefore, we conclude that the trial court did not err in denying appellant's motion to suppress on this basis. Appellant's first, third and sixth assignments of error are without merit. II. For his second assignment of error appellant contends: THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT A MINOR CHILD OF THE APPELLANT HAD THE RIGHT AND AUTHORITY TO GRANT CONSENT FOR THE - 6 - POLICE TO ENTER THE APPELLANT'S HOME TO EFFECTUATE A WARRANTLESS ARREST ON A MISDEMEANOR. Appellant argues that his fifteen-year-od son was unable to consent to police entry into the home, while appellee asserts that a minor can lawfully give such consent. The issue, then, for our resolution is whether or not appellant's teenage son could consent to the police entry to his house. In State v. Pamer (1990), 70 Ohio App.3d 540, the court distinguished situations where police officers sought consent to search a premises from those where the police sought to enter and question an inhabitant. The Pamer court cited U.S. v. Matlock (1974), 415 U.S. 164, for the proposition that there must be proof that a third party who gives police consent to search the premises to another has "common authority" over the premises for the search to be lawful. Pamer then cited Davis v. U.S. (1964), (C.A. 9), 327 F.2d 301, for the separate proposition that an entirely peaceful and invited entry into a home, with no search intent, can be lawful in the absence of evidence of "compulsion of authority" or implied force. Of significance in the Davis case is that an eight-year child consented to the police entry and the court upheld the consent. The present case is similar to Pamer and Davis in that Officer Diulius did not seek to search appellant's home, but only to question appellant regarding the accident. When Diulius arrived on the scene, he was informed that appellant was intoxicated and caused a minor automobile collision. Officer - 7 - Diulius observed the appellant then and asked appellant's son for permission to enter the home, not to search the premises, but to question the appellant. Appellant has presented no evidence that Diulius' entry was anything other than consensual. No evidence suggests that the entry was gained by "compulsion of authority" or implied force. On the basis of Pamer and Davis we conclude that the evidence presented indicates that a valid consent to enter the premises was given by appellant's son. Appellant's second assignment of error is without merit. III. For his fourth assignment of error appellant contends: THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT SUPPRESSING THE BAC TEST RESULTS WHEN a) THE STATE FAILED TO PROVE THAT THE APPELLANT WAS OBSERVED FOR 20 MINUTES BEFORE THE TEST WAS ADMINISTERED AND b) WHEN THE STATE ALLOWED PORTABLE RADIOS AND OTHER ELECTRONIC EQUIPMENT TO BE PRESENT IN THE ROOM IN WHICH THE BAC TEST WAS ADMINISTERED. Appellant argues that the trial court should have suppressed the results of the breathalyzer exam because the state failed to follow administrative regulations by observing appellant for 20 minutes prior to the exam and by allowing radio frequency interference in the room with the testing machine. Appellee believes that the police followed all administrative regulations and further asserts that appellant presented no evidence of any impropriety in the examination. - 8 - The issue then for our resolution is whether or not the trial court properly admitted the results of appellant's breathalyzer test. The Director of Health acting pursuant to R.C. 4511.19(D)(1) has promulgated regulations setting forth approved testing methods and procedures for measuring of breath/alcohol concentrations. The Ohio Administrative Code, Chapter 3701-53- 02(A) states in relevant part: The breath testing instruments listed in this paragraph are approved as evidential breath testing instruments. *** (6) BAC Datamaster; Further, 3701-53-02(B) states in relevant part: *** Breath samples shall be analyzed according to the operational checklist for the instrument being used, as set forth in appendices A to G to this rule. *** Appendix D of those regulations contains a requirement for the BAC Datamaster operational checklist, which mandates the test administrator to observe the subject for twenty minutes prior to testing to prevent oral intake of any material. See also State v. Steele (1977), 52 Ohio St.2d 187, 189. In this case Officer Diulius testified that he observed appellant for twenty minutes prior to the exam and appellant did not put anything in his mouth. Additionally, appellant does not claim that he placed anything in his mouth, and we find according to State v. Adams (1982), 73 Ohio App.3d 735, 740, the burden is - 9 - with appellant to prove ingestion during or prior to the breath test. Here, appellant has not met that burden. Appellant further claims that the city failed to comply with OAC 3701-S1-02(A) because a telephone, computer terminal, video camera, copy machine, and three hand held radios were in the same room as the BAC Datamaster. Again, however, appellant failed to present any evidence that any of these machines interfered with the examination. Further, Sgt. Benders testified that the testing machine would have "automatically" shut down if any radio frequency interference occurred, and that no radio broadcasts were made during appellant's test. Since we find no evidence to support either of appellant's claims, we find no merit to this assignment of error. IV. For his fifth assignment of error appellant contends: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DID NOT GRANT A DIRECTED VERDICT OF ACQUITTAL ON THE BAC CHARGE OF A VIOLATION OF O.R.C. 4511.19(A)(3) WHEN THERE WAS NO EVIDENCE PRESENTED ON EACH NECESSARY ELEMENT OF THE VIOLATION. Appellant argues that the state failed to present any evidence of the alcohol concentration in his breath as required by R.C. 4511.19(A)(3). Appellee, however, believes that the evidence presented clearly demonstrated this point. The issue then for our resolution is whether or not the state established appellant had a prohibited breath alcohol content: - 10 - R.C. 4511.19(A)(3) provides that: (A) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply: *** (3) The person has a concentration of ten- hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath; At trial the state submitted plaintiff's exhibit 15, titled "BAC Datamaster Evidence Ticket" which clearly revealed that appellant's breath alcohol concentration was .286 grams per 210 liters of breath. Appellant has not presented any evidence to challenge this record. The state clearly demonstrated appellants prohibited BAC and, therefore, we conclude that appellant's fifth assignment of error is without merit. V. For his seventh assignment of error appellant contends: THE COURT ERRED AS A MATTER OF LAW IN ALLOWING THE ADMISSIBILITY OF THE BAC TEST RESULTS WHEN THERE WAS NO WAIVER OF THE APPELLANT'S RIGHT TO REMAIN SILENT NOR HIS RIGHT TO HAVE A COMMUNICATE [sic] WITH AN ATTORNEY IN VIOLATION OF R.C. 2935.20. Appellant argues that his BAC test results should have been suppressed because he was not permitted to call an attorney nor advised of his constitutional rights prior to the breath test. Appellee asserts that appellant never asked to make a phone call prior to taking the test and further that appellant was read - 11 - his Miranda rights after the test but prior to any custodial interrogation. The issue then for our resolution is whether or not the trial court properly denied appellant's motion to suppress the BAC test results. We begin our analysis by noting that there is no Sixth Amendment right to counsel prior to the administration of a breathalyzer test. See McNulty v. Curry (1975), 42 Ohio St.2d 341, where the court held that the constitutional right to counsel has no application to submission to a blood alcohol test because the decision to withhold or give consent to take a test is not a critical stage of a criminal proceeding. Further, chemical tests to determine the alcohol content of blood, breath or urine of one arrested for operating a motor vehicle under the influence of alcohol are real or physical evidence and are not protected by the constitutional privilege against self- incrimination. See Schmerber v. California (1966), 384 U.S. 757, 764-765; Piqua v. Hinger (1968), 15 Ohio St.2d 110. Instructive on this issue is State v. Henderson (1990), 51 Ohio St.3d 54, in which the court stated: *** the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements. See Schmerber v. California (1966), 384 U.S. 757; State v. Starnes (1970), 21 Ohio St.2d 38, ***; Westerville v. Cunningham (1968), 15 Ohio St.2d 121 ***. Consequently, they are not rendered inadmissible by the Miranda violation. (Emphasis added.) - 12 - Appellant cites this court's recent decision in Lakewood v. Waselenchuk (1954), 94 Ohio App.3d 384, for the proposition that he should have been permitted to telephone an attorney prior to the test. Waselenchuk, however, is distinguishable from this case. In Waselenchuk, the defendant was apprehended and charged with operating a motor vehicle under the influence of alcohol. Upon being advised of her rights at the Lakewood Police Station and presented with a form to waive her rights to counsel, the defendant stated: "I'm scared. This sounds like I'm up under a real big serious thing and I think I should have an attorney." The booking procedures continued and the police did not offer defendant the facilities to call her attorney. When later confronted with the implied consent form prior to the administration of the test, she stated: "God, and I have to decide this without a lawyer." The court there found that aside from constitutional guarantees, the defendant had a statutory right pursuant to R.C. 2935.20, to be provided facilities to communicate with an attorney and held that because of the defendant's comments, the trial court should have suppressed the results of the breathalyzer test. See also Lexington v. Reddington (1993), 86 Ohio App.3d 643, where the defendant asked police for permission to call his employer to obtain assistance in contacting an attorney. The police allowed twenty minutes to use the - 13 - telephone, but then terminated privileges before the defendant had any success. Here, appellant never sought or questioned his right to counsel or suggested in any fashion that he contemplated seeking advice of counsel. There is no evidence in the suppression proceeding that appellant attempted to contact an attorney, or was desirous of one's presence. This fact distinguishes this case from both Waselenchuk and Lexington. We therefore conclude the trial court properly denied appellant's motion to suppress the results of his breathalyzer test because there is no constitutional right to be advised of Miranda rights prior to submitting to a breathalyzer test. Accordingly, this assignment of error is overruled. VI. Appellant's eighth and tenth assignments of error challenge the admission of plaintiff's exhibits numbered 1, 2, 3, 4, 13, 14, 15, and will be addressed together. Appellant contends that: THE COURT ERRED IN ADMITTING INTO EVIDENCE UNVERIFIED AND UNCERTIFIED COPIES OF A MIRANDA RIGHTS FORM, OHIO DEPARTMENT OF HEALTH BAC DATAMASTER PERMIT, OHIO DEPARTMENT OF HEALTH CALIBRATION SOLUTIONS PERMIT AND THE R.F.I. SURVEY FOR THE BAC DATAMASTER, THE BAC DATAMASTER TEST REPORT FORM AND THE BAC DATAMASTER EVIDENCE TICKET (2). And further that: - 14 - THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED THE JURY TO RECEIVE AND CONSIDER FOUR EXHIBITS WHICH WERE NOT TESTIFIED TO IN THE TRIAL. THE COURT'S PROCEDURE DENIED THE DEFENDANT HIS RIGHT TO CONFRONT ALL OF THE WITNESSES AND EVIDENCE AGAINST HIM AND HIS RIGHT TO DUE PROCESS OF LAW GUARANTEED BY STATE AND FEDERAL LAW. Appellant argues that the court erred in admitting unverified copies of plaintiff's exhibits 1-4, 13-15, and in admitting exhibits 1-4 because no foundational evidence was presented concerning them. Appellee believes that admission was proper because appellant never raised a "genuine" question as to the authenticity of the exhibits and waived any additional objections. The issue then for our resolution is whether or not the trial court erred in admitting plaintiff's exhibits 1-4, 13-15. Initially, we note that the admission or exclusion of relevant evidence is left to the sound discretion of the trial court and will not be disturbed by a reviewing court absent an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173, 180. Evid. R. 1003, allows for the admission of a duplicate in place of an original unless there is a "genuine" question as to the authenticity of the document. State v. Easter (1991), 75 Ohio App.3d 22. The burden is on a defendant to demonstrate a genuine issue as to the authenticity of an unintroduced original, or the trustworthiness of a duplicate, or as to the fairness of - 15 - substituting a duplicate for an original. Mere speculation that a proffered document is not a proper duplicate is insufficient. Easter, at paragraph 3, syllabus. In the present case appellant objected to the introduction of plaintiff's exhibits 1-4, 13-15 because they were copies, but did not raise any genuine issue as to the authenticity of the originals, or trustworthiness of the duplicates. On the basis of Easter, supra, therefore, appellant has failed to demonstrate any error on the part of the trial court in admitting these documents. Additionally, appellant did not object to the admission of plaintiff's exhibits 1-4 on grounds that no testimonial foundation had been laid by the state. Appellant's failure to object constitutes a waiver of error, if any, involved. State v. Wickline (1990), 50 Ohio St.3d 114, 119. Appellant's eighth and tenth assignments of error are therefore without merit. VII. For his ninth assignment of error appellant contends: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO GRANT THE APPELLANT A NEW TRIAL ON GROUNDS THE PROSECUTOR EXPRESSED HIS PERSONAL BELIEF IN CLOSING ARGUMENTS AS TO THE CREDIBILITY OF THE STATE'S WITNESSES. Appellant argues that the trial court should have granted a new trial when, during closing arguments, the prosecutor stated that he thought the police officers were forthright and honest. - 16 - Appellee believes that appellant's failure to object to the comments constitutes a waiver of his right to raise the issue on appeal. The issue then for our resolution is whether or not the trial court erred in denying appellant's motion for a new trial based on prosecutorial misconduct. Where defense counsel fails to object to the prosecutor's remarks during trial, unless the remarks constitute plain error, a reviewing court need not consider whether the remarks prejudiced the defendant. State v. Strobel (1988), 51 Ohio App.3d 31. To rise to the level of plain error, it must appear on the face of the record not only that the error was committed, but that except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. State v. Underwood (1983), 3 Ohio St.3d 12. We cannot say that the result of trial would have been different in the absence of the prosecutor's comments concerning the police witnesses. The scientific evidence of appellant's intoxication, along with the eyewitness testimony of Victoria Kascsak and Edward Mason who observed appellant back his vehicle into another car, overwhelmingly support the two elements of appellant's conviction; operation of a motor vehicle, with a prohibited breath alcohol content. The comments of the prosecutor do not rise to the level of plain error as their - 17 - trustworthiness was not integral to the conviction but merely to the suppression issues raised prior to trial. Therefore we conclude that appellant's assignment of error is not well taken. VIII. For his eleventh assignment of error appellant contends: THE DEFENDANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the state failed to present evidence that he operated a motor vehicle, and restates his previous challenge to the breathalyser evidence of his intoxication. Appellee believes that sufficient evidence was presented to support a conviction beyond a reasonable doubt. The issue then for our resolution is whether or not the jury verdict is against the manifest weight of the evidence. The test to be applied in this instance is contained in State v. Martin (1983), 20 Ohio App.3d 172, where the headnote reads in part: 3. *** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, con- siders 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 reversed and a new trial ordered. ***. - 18 - We begin our consideration of this issue by examining what the city must do to prove its case. In State v. Ulrich (1984), 17 Ohio App.3d 183, paragraph 3 of the headnote reads: 3. Only two elements need to be proved for the state to prevail in a prosecution of an alleged violation of R.C. 4511.19(A)(3): (a) Operation of a vehicle within the state and; (b) At the time of the alleged offense, that the alleged offender possess the prohibited alcohol concentration level. The evidence adduced at trial reveals that Victoria Kascsak and Edward Mason observed appellant as he backed his vehicle into another vehicle. Further, appellant was unable to perform any field sobriety test and his breath alcohol content was measured at .286 grams per 210 liters of breath. Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Appellant's eleventh assignment of error is not well taken. Judgment affirmed. - 19 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .