COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72099 CITY OF NEWBURGH HEIGHTS : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION EDWARD KOLAR : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, Lower Case No. 96-TRC-4691. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Gary Andrachik Prosecuting Attorney City of Newburgh Heights 2200 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 For Defendant-appellant: Shawn P. Martin, Esq. Jaime P. Serrat, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., C.J.: Defendant-appellant Edward Kolar appeals from his jury trial conviction of operating a motor vehicle with excessive blood alcohol content, as charged in count two, in violation of R.C. 4511.1911. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant was the Mayor of the Village of Newburgh Heights2, Ohio, on the date of the offense, March 2, 1996. During the trial, the prosecution offered the testimony of six witnesses. The first witness for the prosecution was Newburgh Heights Patrolman Terry Aytay, who stated the following in pertinent part (R. 10-64): (1) he grew up in the Village and has been employed part-time by the Village police department for eleven years, working approximately 15 to 20 hours per week in that capacity; (2) while working at the station house in the company of Officer Nemecek at approximately 12:30 a.m. on Saturday, March 2, 1996, two females, one of them displaying signs of having been beaten, came into the station to report the beating; (3) the two officers then spoke to the females and began to take their statements; (4) while taking these statements, the officers received at approximately 1:00 a.m. a description of a silver van with a license plate number traveling eastbound on Harvard Avenue 1The defendant was acquitted on one count each of the following: (1) driving under the influence of alcohol in violation of R.C. 4511.19; and, (2) obstructing official business in violation of R.C. 2921.31(A). 2The Village of Newburgh Heights is approximately one square mile in area and borders the south side of the City of Cleveland. -3- from the police dispatcher; (5) in response to this new problem, the witness left the building and entered his squad car to begin searching for the problem vehicle while Officer Nemecek stayed with the two females; (6) as the witness's squad car exited the station parking lot, the witness observed the suspect van turn into the station parking lot and follow the witness's vehicle out onto East 49thStreet; (7) the witness stopped his squad car and the suspect van stopped beside him; (8) the witness and the driver of the suspect van, the defendant, rolled down their windows and the defendant asked the witness how many officers were on duty that morning and where was the other officer; (9) when told that the other officer was at the station, the defendant pulled away and parked the suspect van in the rear of the station parking lot, parking parallel to the curb and not in a designated parking space provided; (10) the witness followed and parked in front of the van, blocking the path of the van; (11) the witness exited his squad car and walked up to the defendant, who had already exited the van; (12) the defendant then again asked the witness why both of the officers are at the station; (13) the witness explained that they were investigating a domestic violence complaint; (14) the defendant then repeated his question as to why both officers were at the station, whereupon the witness repeated the answer he had previously given and added that the witness was looking for the defendant because of a report that a silver van had been seen driving recklessly; (15) the defendant then walked towards the back of the station as the witness advised him that it was not necessary -4- to enter that area because it would disrupt the interview being conducted with the two females; (16) in a loud voice interspersed with profanity, the defendant advised the officer that he was the Mayor and could go wherever he wished; (17) the witness thought that the tone of voice and the use of profanity by the Mayor was unusual and the witness smelled the odor of alcohol emanating from the defendant's breath; (18) when the witness asked the defendant outside the rear of the station whether he had been drinking that night, the defendant admitted to having had two beers; (19) the defendant and the witness then entered through the back door of the station and encountered Officer Nemecek interviewing the two females; (20) as the pair entered, the interview halted and the defendant was heard to say in a loud voice that he knew they were goofing off back there; (21) the witness then lead the defendant by the arm to a separate room nearby and closed the door; (22) inside the smaller room, the defendant complied with the witness's request to be seated and the defendant was asked to explain his driving recklessly; (23) the defendant denied any knowledge of driving recklessly; (24) the witness then proceeded to inform the defendant of the information they had in their possession regarding the reckless driving complaint, whereupon the defendant stated that he was leaving; (25) when told that he could not leave, the defendant asked if he was under arrest and the witness said that he was under arrest; (26) the defendant asked for the officer's name and badge number three times despite the fact that the officer had known the defendant for a period of time and the defendant had been a friend -5- of the officer's father for over twenty years; (27) the defendant initially refused to take a breathalyzer test for blood alcohol content at 1:18 a.m. that morning and warned the witness whether the officer knew what he was getting into and that the officer would be liable for a lawsuit; (28) upon being informed that refusal to take a breathalyzer test would result in a mandatory one year driver's license suspension, the defendant said he would now take the test; (29) while waiting for Patrolman King to arrive to transport the defendant to the Valley View police station for the administration of the breathalyzer test3, the defendant requested that the witness telephone the Village's Chief of Police, Joseph Hoehn, which call was placed and the two men talked over the phone for a short time in private; (30) a short time after the telephone call had concluded, Officer King and Chief Hoehn arrived at the same time; (31) after the defendant and the Chief had spoken at the station, the Chief asked the witness what information the witness had on the defendant, whereupon the Chief instructed the witness to charge the defendant with driving under the influence of alcohol; (32) after charging the defendant4, the witness and Officer King transported the defendant to the Valley View police station; (33) at the Valley View station, with the two Village officers in the room with the Valley View officer and the defendant, the defendant 3The Village utilized another police department for the administration of the breathalyzer test because at the time the Village had no breathalyzer machine. 4Prior to charging the defendant, the witness advised him of his constitutional rights. -6- became argumentative with the Valley View officer administering the test; (34) according to the police report, the breathalyzer test was administered using the Valley View machine at 2:34 a.m., and the result was a reading of .110 grams/deciliter; (35) the witness is aware that the defendant and Chief Hoehn do not get along. The second witness for the prosecution was Ms. Betty Maraessa, who testified in pertinent part as follows (R. 66-83): (1) she was one of the two females who visited the Village police station complaining of domestic violence; (2) it was the witness's friend, Ms. Phyllis Williams, who was the subject of the abuse by Ms. Williams' boyfriend, Mr. Chuck East; (3) the witness corroborated the presence of the defendant at the station and the fact that the defendant was arguing with Officer Aytay in a loud voice laced with profanity; (4) the defendant appeared to have been drinking; (5) the witness had been employed as a barmaid and could tell when someone had too much to drink; (6) as the defendant passed the witness's girlfriend, the girlfriend told the witness that the defendant smelled like he had a lot of booze in him; (7) the defendant was swaying from side to side when he walked into the room where the females were being interviewed by Officer Nemecek; (8) if the witness had been serving the defendant at a bar as a barmaid, the witness would not have served the defendant any more alcohol. The third witness for the prosecution was Ms. Rita Petkoff, who testified in pertinent part as follows (R. 83-100): (1) she was the dispatcher at the Village police station on the morning of the -7- offense, received the anonymous tip on the defendant's reckless driving activity, and generally corroborated the observations of the prior witnesses. The fourth witness for the prosecution, Officer Nemecek, corroborated the testimony of the prior witnesses (R. 100-124). The fifth witness for the prosecution, Officer Kelly King, corroborated the testimony of the prior witnesses (R. 125-151) and testified that he, a State certified technician on the breathalyzer machine in question, conducted the breathalyzer test on the defendant using the Valley View Police machine. The witness recounted in detail the procedure used in administering the test. The sixth witness for the prosecution was Village of Valley View Police Patrolman David Niro, a State certified technician on the breathalyzer machine in question who attended the testing of the defendant, corroborated the testimony of Officer King relative to the breathalyzer testing of the defendant. (R. 151-164.) This witness produced the records and calibration logs relative to the machine used with the defendant, and testified that the machine was regularly tested and calibrated according to approved procedures and was operating properly when used on the defendant. Subsequent to the admission of exhibits, the prosecution rested. (R. 166.) The defense then moved for acquittal pursuant to Crim.R. 29 and also renewed a motion to suppress the results of the breathalyzer test. Following extended arguments of counsel, the trial court denied the motions. (R. 174.) The first witness for the defense was Mr. Stanley R. Centa, -8- who testified in pertinent part as follows (R. 174-191): (1) he is the owner of Recreation Bowling Alley, an eight lane alley which is located at 4209 Harvard Avenue in the Village of Newburgh Heights; (2) he has known the defendant for approximately twenty-one years; (3) on Friday evening prior to the offense, the defendant was observed in a league event at the bowling alley in which the witness was also a participant; (4) the defendant left the alley at approximately 1:00 a.m. and his speech and movements appeared normal; (5) from 6:50 p.m. to 1:00 a.m. while bowling and later while socializing5, the defendant consumed four-and-one-half bottles of beer, with each bottle measuring twelve ounces in volume; (6) it takes about thirty seconds to drive from the alley to the Village police station driving the 25 m.p.h. speed limit; (7) the witness does not know if the defendant was served other drinks that evening at the alley; (8) the defendant would not normally use profanity around women. The second witness for the defense was Mr. Donald G. Ksieszyk, who testified in pertinent part as follows (R. 191-209): (1) he has known the defendant for about forty years; (2) he arrived at the bowling alley at approximately 9:00 p.m. and engaged the defendant in extended conversation at the bar and while shooting pool; (3) the defendant's demeanor appeared normal; (4) the witness left the alley at the time the defendant left; (5) the witness owns two local bars where alcohol is served and where females dance in 5Bowling leagues usually are finished at this establishment at approximately 10:00 p.m. (R. 189.) -9- bikinis; (6) the witness had no alcohol to drink that night, but did see the defendant drink alcohol that evening; (7) the witness observed Chief Hoehn in a parked car near the alley as the defendant's car turned out of the alley parking lot. The third witness for the defense was Ms. Mary Lou Bukowski, who testified in pertinent part as follows (R. 209-222): (1) she is a neighbor of the defendant and has dated the defendant for approximatelythe past two years; (2) she met the defendant at the bowling alley at approximately 10:00 p.m.; (3) his demeanor and manner were normal; (4) she has never heard the defendant use foul language or exhibit discourteous behavior; (5) she drank two beers that evening at the alley; (6) she and the defendant left the alley at approximately 1:00 a.m.; (7) her vehicle followed his for a short period, during which time his vehicle was not weaving. At this point the defense rested and renewed its motion for acquittal. This renewed motion was denied. (R. 229.) Subsequent to closing arguments and the instructions to the jury, the jury returned its verdict. This appeal presents three assignments of error. I THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE6. In this assignment, appellant argues that he was seized while 6The record on appeal does not contain the filed copy of defendant's Motion to Suppress, but does contain the prosecution's Brief in Opposition thereto. Accordingly, we will address the argument presented in the appeal relative to suppression of evidence. -10- outside the police station for purposes of the Fourth Amendment, and that at that time Officer Aytay had no probable cause for the seizure since the seizure was prior to Officer Aytay smelling alcohol on the defendant's breath and Officer Aytay had not observed the defendant driving recklessly. The record demonstrates that the defendant entered the police station parking lot and voluntarily in a loud manner, and against the advice of Officer Aytay, proceeded to enter the station through the back door of the station. Prior to entering the police station building, and contrary to the assertion of the appellant, there was no investigative stop of the defendant outside the police station. Instead, the investigative stop of the defendant occurred inside the station after the defendant was led to a separate room for questioning by Officer Aytay. The probable cause for this investigative stop inside the station house was based on the totality of the following circumstances: (1) unruly behavior and impaired locomotion exhibited by the defendant; (2) the inability of the defendant while inside the station to recognize Officer Aytay; (3) the smell of alcohol emanating from the defendant; (4) the admission of defendant that he drank two beers that evening. See Terry v. Ohio (1968), 392 U.S. 1. It was only after all these indicia had occurred that Officer Aytay told the defendant that he was not free to leave while being questioned in the separate room. Accordingly, the court did not err in denying the Motion to Suppress. The first assignment of error is overruled. -11- II WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29(A), AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. The standard of review for an assignment based upon insufficiency of the evidence is provided in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: 2. 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. 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. (Jackson v. Virginia[1979], 443 U.S. 307,, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) In the case sub judice, the testimony demonstrated that defendant was driving his van on the morning of the offense and his behavior corroborated the inference that he had been drinking alcohol. Additionally, defendant admitted to Officer Aytay that he had ingested two beers and it is beyond dispute that the defendant's breathalyzer test result, which test was administered approximately one-and-one-half hours after the defendant first approached the police station, was in the range prohibited by the laws of this State for operating a motor vehicle. Accordingly, viewing this evidence in a light most favorable to the prosecution, the jury could have concluded that defendant committed the offense -12- in question beyond a reasonable doubt. The second assignment of error is overruled. III THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review for an assignment based upon manifest weight of the evidence is provided in State v. Jenks, supra at 273: Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all of the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Upon reviewing the record, we conclude that the conviction was supported by the manifest weight of the evidence. The third assignment of error is overruled. Judgment affirmed. -13- 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 Parma 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. JOHN T. PATTON, J. and ROBERT E. HOLMES, J., (*) CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE (*) Robert E. Holmes, Retired Justice from the Supreme Court of Ohio, sitting by assignment. 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 reconsideration 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 .