COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71728 CITY OF LAKEWOOD JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. RICHARD F. BREZIC Defendant-appellant DATE OF ANNOUNCEMENT November 6, 1997 OF DECISION CHARACTER OF PROCEEDINGS Criminal appeal from Lakewood Municipal Court Case No. 96 C 314 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: MATTHEW J. KING, ESQ. TIMOTHY P. HAFFEY, ESQ. SARA J. FAGNILLI, ESQ. Bernard, Haffey & Bohnert Assistant Law Directors 5001 Mayfield Road, Suite 301 KEVIN M. SPELLACY, ESQ. Lyndhurst, OH 44124-2610 Prosecutor City of Lakewood 12650 Detroit Avenue Lakewood, OH 44107 PATTON, J. Defendant-appellant Richard Brezic ( defendant ) appeals the decision of the trial court denying his motion to suppress in favor - 3 - of plaintiff-appellee City of Lakewood ( city ) and the jury verdict finding him guilty of driving under the influence. On appeal, he presents three assignments of error regarding the improper denial of his motion to suppress, the improper admittance of the Horizontal Gaze Nystagmus Test ( HGN ), and prosecutorial misconduct. On January 12, 1996 defendant was spotted by a Lakewood Police Officer sitting in his car in the berm on Interstate 90. The car was running and stuck in a snow drift. The officer and his partner approached defendant's car. While speaking with defendant, the officer noticed an odor of alcohol emanating from defendant. Defendant claimed another vehicle had run him off the road and forced him into a snow bank. As the conversation continued, the officer noticed defendant was slurring his speech. Based on the odor of alcohol and the slurred speech the officer asked defendant to recite the alphabet. Defendant made two attempts but both times he only made it to the letter j before reciting miscellaneous letters. Subsequently, the officer asked defendant to step out of the car and perform some field sobriety tests. Defendant refused and the officer asked defendant if he would take an HGN test. Defendant agreed and the officer administered the test, which defendant failed. At this point, the officer again asked defendant if he would perform some field sobriety tests. Defendant refused and the officer placed him under arrest. - 4 - Defendant filed a motion to suppress claiming there was no reasonable suspicion to investigate nor probable cause to arrest for driving under the influence of alcohol. A hearing was held and the trial court denied the motion to suppress, finding there was probable cause to make the arrest. Next, a jury trial was held and the jury found defendant guilty of operating a vehicle under the influence of alcohol. This appeal timely followed. Defendant's first assignment of error states as follows: THE TRIAL COURT ERRED WHEN IT DENIED RICHARD BREZIC'S MOTION TO SUPPRESS BECAUSE THERE WAS NOT REASONABLE SUSPICION TO INVESTIGATE NOR PROBABLE CAUSE TO ARREST FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL. Defendant argues the trial court erred in denying his motion to suppress because the officer's claim that he smelled a moderate odor of alcohol does not constitute the probable cause necessary to make an arrest. The city maintains it is well established that when a police officer arrives at the scene of an accident, without witnessing the accident, and the driver of the automobile is found in the auto with an odor of alcohol about their person, probable cause exists. Therefore, applying this law to the facts in the instant case it is patently clear that the officer had the necessary probable cause to arrest defendant. At a suppression hearing, the trial court serves as the trier of fact and must judge the credibility of the witnesses and the weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20. A trial court's decision denying a motion to suppress will not - 5 - be disturbed on appeal where it is supported by substantial, credible evidence. Stateof Ohio/City of Hamilton v. Taggert (June 2, 1997), Butler App. No. CA96-09-175, unreported. In support of his argument, defendant cites a case which held that merely appearing to be too drunk to drive does not constitute probable cause for arrest. State v. Finch (1985), 24 Ohio App.3d 38, 40. Defendant's reliance on Finch is misplaced. The record indicates that defendant was not arrested on the mere appearance of intoxication, but rather based on the odor of alcohol, slurred speech, failure to pass the HGN test, and inability to recite the alphabet correctly on two separate occasions. A police officer may conduct brief investigative detention stops where the officer has reasonable suspicion, based on articulable facts, that the detainee has engaged in, is engaging in, or is about to engage in criminal activity. Terry v. Ohio (1968), 392 U.S. 1. If, during that brief detention, the officer develops probable cause to believe that the suspect has committed a crime, then the officer may make an arrest. The United States Supreme Court has held that an arrest is constitutionally valid, and the officers have probable cause to make it, when at that moment the officers have knowledge of facts or circumstances or reasonable, trustworthy information which is sufficient to warrant a prudent person to believe that the petitioner has committed the offense. Beck v. Ohio (1964), 379 U.S. 89, 91. The officer lawfully approached defendant's car pursuant to perceiving defendant's car running while stuck in a snow bank. He - 6 - approached defendant and initially smelled an odor of alcohol. The officer noticed defendant's speech was slurred and witnessed defendant fail to recite the alphabet on two occasions. Lastly, defendant failed the HGN test. These facts are sufficient to warrant a prudent man, i.e., the officer, that defendant was under the influence of alcohol. Thus, the arrest was constitutionally valid. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED IN ADMITTING THE RESULTS OF THE HORIZONTAL GAZE NYSTAGMUS (HGN) TEST BECAUSE THE OFFICER FAILED TO GIVE THE PROPER FOUNDATION TO SHOW THAT HE HAD BEEN PROPERLY TRAINED TO ADMINISTER IN THE RECOMMENDED MANNER USING A PEN LIGHT DUE TO DARKNESS. Defendant argues the trial court erred in admitting the HGN test as evidence because the officer used a regular pen instead of a pen light when it was dark which is contrary to the recommendations of the U.S. Department of Transportation. He also claims the officer failed to lay the proper foundation as to his training and ability to administer the test. The city counter-argues it is within a trial court's discretion to admit evidence based on scientific processes, and in the present case the trial court did not abuse its discretion in admitting the HGN test as evidence. The city maintains the officer laid the proper foundation when he testified that he participated in a training course which included training administering the HGN test. Also, the officer described the test and explained how the - 7 - test is administered to a person suspected of driving under the influence of alcohol. In State v. Bresson (1990), 51 Ohio St.3d 123, 127, the Court discussed the admissibility of the HGN test and held that, with proper foundation as to the techniques used and the officer's ability to use it ***, testimony of defendant's nystagmus is admissible on the issue of a defendant's blood alcohol level as would be other field sobriety test results on the question of accuracy of the chemical analysis. Regarding foundation as to the officer's techniques and ability to use the test, the officer testified as follows at the suppression hearing: Q. Would, could you explain for the Court and on the record what the Horizontal Gaze Nystagmus Test is? . It's a test of the eyes to determine if the person is under the influence of alcohol. Q. Have you been trained in the administration of this test? . Yes, I have. . Did you successfully pass that training? . Yes, I did. . Could you briefly for the record explain how you conducted that test? A. I take a pen and place it about six to 12 inches from the face of the Defendant. You ask him to follow the pen with their eyes, not to move their head, just the eyes. You move the pen to the left side, right side, determine if they pursue that smoothly without jerking in their eyes. Then take the pen over, try to determine, if there is onset of nystagmus before 45 degrees and then take the pen all the way over to see if there is a nystagmus at maximum deviation. - 8 - . I see. For the detection of the presence of alcohol, how many clues or cues can be present? . Minimum of four for the person to fail the test. Six, there are six total clues to look for. . And of those clues, how many were present? . Six. The trial court has broad discretion in admitting evidence based on scientific processes. See United States v. Traficant (N.D. Ohio 1983), 566 F.Supp. 1046. Id. at 129. A trial court's ruling on the admission or exclusion of evidence will not be overturned except for a showing of an abuse of discretion. The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. *** (Citations omitted.) State v. Adams (1980), 62 Ohio St.3d 151, 157. The trial court did not abuse its discretion in allowing in as evidence the testimony of the officer regarding the HGN test. In Bressen, the Court held: [t]he HGN has been shown to be a reliable test, especially when used in conjunction with other field sobriety tests and an officer's observations of driver's physical characteristics when determining whether a person is under the influence of alcohol. *** Thus the only requirement prior to admission is the officer's knowledge of the test, his training, and his ability to interpret his observations. In the present case, the officer testified that he had prior training with the HGN test. He testified to the administration of the test, specifically discussing the points which indicate whether a person is under the influence of alcohol. Lastly, the officer - 9 - testified that of the six points allowed a testee, defendant exhibited all six points. Based on this testimony, we believe a proper foundation was laid regarding the HGN test, in compliance with Bressen,and therefore the trial court properly allowed it in as evidence. Defendant also argues the HGN test is inadmissible because the officer used a pen instead of a pen light when he administered the HGN test. However, defendant does not argue this point and does not cite any case law or authority in support of this argument. As a result, this argument is without merit. See App.R. 12(A)(2). Thus, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: RICHARD BREZIC'S RIGHT TO A FAIR TRIAL, GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR DURING CLOSING ARGUMENT. Defendant argues his right to a fair trial was affected by the prosecutor's comments made during closing arguments. Specifically, defendant claims it was improper for the city prosecutor to express his personal opinion about defendant's actions and to refer to defense counsel's trial strategy as horrendous. The prosecutor (Mr. Kelleher) made two comments which defendant refers to, the first of these comments reads as follows: DUI is a terrible thing. MR. HAFFEY: Objection. THE COURT: Overruled. - 10 - MR. KELLEHER: It ruins lives, it ruins people's families. MR. HAFFEY: Objection. THE COURT: Overruled. MR. KELLEHER: It destroys people's families, it destroys people's lives. MR. HAFFEY: Objection. Continuing objection. The second comment defendant refers to reads as follows: Contrary to what you heard from Mr. Haffey, and I do take exception with him, okay, I take strong exception with him, I've had an opportunity to be a county prosecutor, I've had an opportunity to be a defensive lawyer and I've also had a [sic] displeasure, misfortune, to be a witness in this same courtroom. What he has done here in my opinion, is horrendous. MR. HAFFEY: Objection. THE COURT: Overruled. The city contends these two comments amount to harmless error and did not prejudice or affect any of defendant's substantial rights. In addition, the city argues defendant was given a fair trial and considering the evidence as a whole a reversal in this case is unwarranted. In State v. Smith (1984), 14 Ohio St.3d 13, 14, the Supreme Court discussed prosecutorial misconduct and stated: The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Dorr, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Bergerv. United States, supra, at 88. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7-106(C)(4) of the Code of - 11 - Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and `* * * [a] lawyer should not make unfair or derogatory personal reference to opposing counsel. * * *' EC 7-37. Id. at 14. Although the city prosecutor improperly expressed his opinion about the destructive effect a DUI has on people and defense counsel's strategy, these comments did not deprive defendant of a fair trial. The comments neither impinged upon defendant's credibility nor his actions. They were peripheral opinions about DUIs and defense counsel's strategy. In addition, the comments did not cloud the issues or misconstrue the evidence. Moreover, the trial court instructed the jury that closing arguments are not evidence but merely designed to assist. Prejudice resulting from statements made by a prosecutor in his closing argument is obviated by a trial court's instruction that closing arguments were simply attorney's opinion as to what attorneys thought evidence had already shown and their opinion as to how jury should apply the law. State v. Parrish (1991), 71 Ohio App.3d 659, 667. Because the trial court instructed the jury regarding the non- evidentiary nature of closing arguments and because none of the city prosecutor's comments denied defendant a fair trial, defendant's third assignment of error is overruled. Judgment affirmed. - 12 - 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 Lakewood 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. BLACKMON, P.J. DYKE, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsidera-tion with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .