JUN i"! CLERK OF COURT SUPREME COURT OF OHI J THOMAS L. SARTINI ( ) ASHTABULA COUNTY PROSECUTING ATTORNEY

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1 IN THE SUPREME COURT OF OHIO COLUMBUS, OHIO STATE OF OHIO, Plaintiff-Appellee, -vs- CARL CORBISSERO Defendant-Appellant. OHIO SUPREME COURT CASE NO On Appeal from the Ashtabula County Court of Appeals, Eleventh Appellate District Ashtabula County Court of Appeals Case No A-28 MEMORANDUM IN RESPONSE TO JURISDICTION THOMAS L. SARTINI ( ) ASHTABULA COUNTY PROSECUTING ATTORNEY Shelley M. Pratt ( ) (Counsel of Record) Assistant Prosecutor Ashtabula County Prosecutor's Office 25 West Jefferson Street Jefferson, Ohio (440) Fax (440) COUNSEL FOR APPELLEE THE STATE OF James L. Burdon ( ) 137 South Main Street, Suite 201 Akron, Ohio (330) COUNSEL FOR APPELLANT CARL CORBISSERO JUN i"! CLERK OF COURT SUPREME COURT OF OHI J

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE...2 STATEMENT OF THE FACTS ARGUMENT... 6 FIRST PROPOSITION OF LAW...6 WHEN COURTS CONSIDER WHETHER AN OFFICER HAD PROBABLE CAUSE TO ARREST FOR OVI, IT MUST EXAMINE THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, AND COURTS DENY APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 4Tf3 AMENDMENT WHEN IT RESTRICTS ITS CONSIDERATION TO THE INDICIA OF ALCOHOL CONSUMPTION AND IGNORE THE FACTS AND CIRCUMSTANCES WHICH SUGGEST INNOCENCE. SECOND PROPOSITION OF LAW...8 THE COURT DENIED APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 4^m AMENDMENT BY O VERRULING HIS MOTION TO SUPPRESS ARISING OUT OF AN OVI ARREST AT 9:40 A.M., WHEN THE ONLY EVIDENCE OF IMPAIRED DRIVING IS THE TESTIMONY OF A DEPUTY THAT THE OBSERVED SPEEDING AND ERRATIC DRIVING; A "STRONG" ODOR OF ALCOHOL; AND A FAILED HGN TEST; BUT THE TROOPER ASSISTING TESTIFIES THAT HE ALSO SAW APPELLANT'S AUTOMOBILE AND DID NOT DETECT SPEEDING AND THE ODOR OF ALCOHOL WAS "SLIGHT" AND THAT CONFLICT IS COUPLED WITH FURTHER TESTIMONY FROM THE STATE THAT APPELLANT DENIED

3 HAVING CONSUMED ALCOHOL SINCE THE EVENING BEFORE; WAS FULLY COOPERATIVE; EXPERIENCED NO DIFFICULTY PRODUCING HIS LICENSE; APPROPRIATELY UNDERSTOOD AND FOLLOWED ALL INSTRUCTIONS, DID NOT HAVE BLOODSHOT OR WATERY EYES; DID NOT SLUR HIS SPEECH; AND EXCITED HIS VEHICLE AND TO THE CRUISER NORIVIALLY. THIRD PROPOSITION OF LAW...10 TRIAL COURTS DENY APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION AND DUE PROCESS UNDER THE CONSTITUTION OF THE UNiTED STATES BY SENTENCING APPELLANT TO A LIFE-TIME LICENSE SUSPENSION UNDER R.C (D) WHEN APPELLANT TESTIFIES AT THE SENTENCING HEARING THAT HE WAS NOT CONVICTED OF THE OFFENSE ENABLING THE ENHANCED PENALTY AND THE ONLY EVIDENCE TO THE CONTRARY WAS THE PROSECUTOR'S UNSWORN STATEMENT REFERRING TO AN UNCERTIFIED COPY OF A BMV PRINTOUT WHICH WAS NOT AUTHENTICATED NOR INTRODUCED INTO EVIDENCE. CONCLUSION CERTIFICATE OF SERVICE ii

4 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION Carl Corbissero, appellant herein, seeks to invoke this Honorable Court's jurisdiction over this discretionary appeal. For the following reasons, jurisdiction in unwarranted, and the appeal should be dismissed. Appellant argues that the trial court violated his Fourth Amendment rights when it failed to consider the facts and circumstances which suggested he was innocent of OVI when determining whether there was probable cause for his arrest and that the trial court erred in overruling his motion to suppress where there were multiple factors indicating that he was not impaired. The Eleventh District Court of Appeals found that there was sufficient probable cause to support appellant's arrest. State v. Corbissero, 11b Dist. No A-28 at 128, 2012-Ohio Specifically, the court found that excessive speeding, erratic driving, failure to comply with lights and siren, the incredible response to the question of why he was speeding, the strong order of alcohol about his person, and his acknowledgment of having consumed alcohol the night before were sufficient indicators of appellant's intoxication to support his arrest. Id. at 130. Appellant also argues that he was denied his right to Due Process and Confrontation under the United States Constitution when sentenced to a life time license suspension. Specifically, appellant argues that his testimony that he was not convicted of the enhancing offense should have been given more weight by the trial court than the State's evidence of his conviction. The Eleventh District Court of Appeals found that appellant had one prior, counseled Fleeing and Eluding conviction and that the license suspension imposed by the trial court was lawful. Id. at 9[58. 1

5 The Eleventh District Court of Appeals did not err in making this decision. The discretionary appeal at bar presents neither a constitutional violation, an issue of great public or general interest, nor an issue of first impression. Therefore, appellant's bid for jurisdiction must fail. STATEMENT OF THE CASE On February 6, 2009, an indictment was filed, charging appellant under Count One with: Failure to Comply With Order or Signal of Police Officer, in violation of R.C (B)(C)(5)a)(ii), a felony of the third degree, under Count Two with; OVI with Specification, in violation of R.C (A)(1)(a), a felony of the fourth degree, and under Count Three with; OVI with Specification, in violation of R.C (A)(1)(a), a felony of the fourth degree. (T.d. 4.) Appellant was arraigned on February 17, 2009, at which time he entered a plea of "not guilty" to the charges in the indictment. (T.d. 9.) On February 22, 2011, a duly empaneled jury found appellant "guilty" of Failure to Comply With Order or Signal of Police Officer and Operating a Vehicle While Under the Influence, both misdemeanors of the first degree. (T.d. 252.) Appellant was sentenced to a six month term of incarceration in the county jail for each count. (T.d. 262.) The sentences were ordered to be served consecutively. (T.d. 262.) Appellant appealed to the Eleventh District Court of Appeals. (T.d. 266.) The court affirmed the decision of the trial court. State v. Corbissero, 11' Dist. No A-28 at 63, 2012-Ohio Appellant now seeks jurisdiction with this Honorable Court. 2

6 STATEMENT OF THE FACTS Testimony at trial revealed that on November 29, 2008, at approximately 9:40 A.M., Deputy Ginn, of the Ashtabula County Sheriff's Office ("ACSO"), was on stationary patrol in the driveway of Corlew Stadium, located on U.S. Route 20 in the Township of Ashtabula, within Ashtabula County, Ohio. (T.p , 213.) At this time, Deputy Ginn observed an eastbound silver 2003 Acura coupe, traveling at a high rate of speed in the passing lane. Deputy Ginn clocked a reading of 60 miles per hour ("mph"), in a 40 mph speed zone and heard the vehicle's engine climbing in RPMs as it passed him. (T.p ) Deputy Ginn immediately activated his emergency lights and siren and followed behind the speeding vehicle to initiate a traffic stop. (T.p. 218.) However, the driver of the vehicle, subsequently identified as Carl Corbissero, appellant herein, failed to comply with the officer's signal to stop and instead increased his speed and led Deputy Ginn on a high speed pursuit. (T.p. 219.) Appellant sped down U.S. Route 20, then turned onto State Route 11 southbound. (T.p ) Appellant continued to increase his speed and drive recklessly, as he fled from Deputy Ginn. (T.p. 221.) Appellant drove in excess of 100 mph while changing lanes and swerving through traffic without signaling. (T.p ) Appellant exited State Route 11 at Interstate 90 and sped westbound. (T.p. 223.) Appellant was able to gain a substantial distance between his vehicle and the pursuing officer. (T.p. 224.) Trooper Dunn, of the Ohio State Highway Patrol ("OSHP"), had been alerted to the situation and positioned himself in the medium strip crossover, at the 227 niile post along 3

7 Interstate 90, with emergency lights activated. (T.p. 319.) Trooper Dunn exited his patrol cruiser and retrieved stop sticks to assist in the stop of the fleeing vehicle. (T.p. 320.) Trooper Dunn observed the suspect vehicle pass by him, but did not deploy the stop sticks as Deputy Ginn's patrol cruiser was not yet visible. (T.p. 322.) Approximately ten seconds after appellant passed him, Trooper Dunn heard Deputy Ginn's siren and observed his overhead emergency lights as he crested a slight hill in pursuit of appellant. (T.p. 322.) Trooper Dunn returned to his cruiser and proceeded westbound to assist in the pursuit. (T.p. 323.) Approximately one niile down the highway, Trooper Dunn observed that appellant had finally complied with Deputy Ginn's order to stop and had pulled over onto the berm of the highway. (T.p. 323.) When Deputy Ginn pulled behind appellant he exited his patrol cruiser, approached appellant, informed him of the reason for the stop and asked him why he was driving so fast. (T.p. 226.) Appellant simply replied that he had just washed his car at the Hydro Spray car wash, located on State Road, and that he was drying it off in this manner. (T.p. 228.) According to appellant, he never saw the officer following him and didn't realize that he was until he observed Trooper Dunn with the stop sticks in hand. (T.p. 229.) Appellant explained to Deputy Ginn that this was when he decided to slow down and then noticed Deputy Ginn following him. (T.p. 229.) Deputy Ginn asked appellant to exit his vehicle and conducted a pat down search of his person. While speaking to appellant, Deputy Ginn detected a strong odor of an alcoholic beverage on or about appellant's person. (T.p ) Deputy Ginn asked appellant how many drinks he had consumed, to which appellant replied that he had none this morning, but that he had been drinking the previous evening. (T.p. 300.) 4

8 Based on his observations of erratic driving, combined with signs of intoxication, Deputy Ginn asked appellant to submit to field sobriety testing. While administering the Horizontal Gaze Nystagmus ("HGN") field sobriety test to appellant, Deputy Ginn observed four out of six possible clues. (T.p. 239.) Appellant attempted the "one leg stand" field sobriety test and dropped his foot prior to completion of the test. (T.p. 241.) Appellant told Deputy Ginn that he had an injury to his right leg. (T.p. 240.) Deputy Ginn decided not to administer the "heel to toe" field sobriety test because he was unable to locate a safe area to administer the test at that location. (T.p. 241.) Trooper Dunn administered the HGN field sobriety test to appellant, and observed six out of six possible clues. (T.p. 337.) Trooper Dunn noted that, although the "onset" was weak, they were still present. (T.p. 337.) Based on clear signs of intoxication combined with erratic driving, Deputy Ginn arrested appellant and placed him in the rear seat of Deputy Barger's patrol cruiser. (T.p. 243.) Deputy Barger subsequently transported appellant to the ACSO jail. (T.p ) Deputy Ginn remained at the scene and performed an inventory of appellant's vehicle, while he waited for Phillip's Towing to arrive and tow the vehicle from the scene. (T.p. 243.) Upon his arrival at the ACSO jail, Deputy Ginn read the Ohio Bureau of Motor Vehicles implied consent form, BMV 2255, to appellant. (T.p. 247.) Deputy Ginn requested appellant to submit to a Breath Alcohol Content ("BAC") test, to which he complied. (T.p. 247.) Appellant's BAC test, administered by C.O. Specht, at 11:25 A.M., resulted in.064 grams of alcohol per 2101iters of breath. (T.p. 247.) 5

9 ARGUMENT FIRST PROPOSITION OF LAW WHEN COURTS CONSIDER WHETHER AN OFFICER HAD PROBABLE CAUSE TO ARREST FOR OVI, IT MUST EXAIVIINE THE TOTALTI'Y OF THE FACTS AND CIRCUMSTANCES, AND COURTS DENY APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 4'x AMENDMENT WHEN IT RESTRICTS ITS CONSIDERATION TO THE INDICIA OF ALCOHOL CONSUMPTION AND IGNORE THE FACTS AND CIRCUMSTANCES WHICH SUGGEST INNOCENCE. Appellant argues that the Eleventh District Court of Appeals erred in determining that there was probable cause for his arrest for OVI. In State v. NcNulty, 11"h Dist. No L-097, Ohio- 1830, the Eleventh District Court of Appeals provided that: In determining whether the police had probable cause to arrest an individual for OVI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; State v. Timson (1974), 38 Ohio St.2d 122, 127, 311 N.E.2d 16. In State v. Homan (2000), 89 Ohio St.3d 421, 2008-Ohio-212, ""the arresting officer, admitted to having not * * * complied with established police procedure when administering to [Homan] the HGN and walk-and-turn tests. [The court] nevertheless agree[d] * * * that the totality of facts and circumstances surrounding [Homan's] arrest support[ed] a finding of probable cause."" Id. at 427. The court further held that ""probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered or where, as here, the test results must be excluded."" Id.; Penix, 2008-Ohio-4050, at 9[9[ 29 (""the totality of the circumstances can support a finding of probable cause to arrest, even where no field sobriety tests were administered""). Consequently, after observing the cause for the initial stop, the observations at the car window, and the observations of McNulty outside the vehicle, there was probable cause to arrest McNulty. 6

10 Id. In appellant's case, Deputy Ginn was confronted with clear indicators of defendant's intoxication: the stop occurred early on a Saturday morning, as opposed to a Tuesday morning; Deputy Ginn observed substantial evidence of erratic driving, such as speeding over 20 mph over the posted speed limit while driving recklessly, weaving in and out of traffic, changing lanes without signaling, and creating a substantial risk of serious physical harm to persons and property; defendant was fleeing and eluding and failed to comply with the officer's signal to stop (consciousness of guilt); when asked why he was speeding, defendant gave a particularly irrational excuse, to wit: that he was trying to dry his car off; Deputy Ginn detected a strong odor of an alcoholic beverage on or about defendant's person; and when asked how much he had to drink, defendant admitted, "none this morning and around four last night." (S.T.p. 12, 14-18, ) Additionally, Deputy Ginn observed four out of six possible clues on defendant's HGN field sobriety test. (S.T.p. 27.) Defendant attempted the "one leg stand" field sobriety test and dropped his foot prior to completion of the test. (S.T.p. 28.) Trooper Dunn administered the HGN field sobriety test to defendant, and observed six out of six possible clues. Trooper Dunn noted that, although the "onset" was weak, they were still present. (S.T.p. 100.) The Eleventh District Court of Appeals found that these were sufficient indicators of appellant's intoxication to support appellant's arrest. Corbissero at 130. Appellant argues that the court was required to consider all the factors set forth in State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761(1998) when determining whether or not there was probable cause to arrest appellant. This argument is simply incorrect. 7

11 The factors set forth in Evans are not conditions precedent for a constitutionally valid arrest. State v. Key, 1 l' Dist. No L-210 at 122, 2008-Ohio The Evans factors are merely tools to aid in the analysis of an officer's decision to arrest based upon the totality of the relevant circumstances. Id. Not all of the Evans factors must be present for an officer to have reasonable suspicion. State v. Wiesenbach, 11' Dist. No P-0029 at 123, 2011-Ohio-402. Appellant's First Proposition of Law is without merit. SECOND PROPOSITION OF LAW THE COURT DENIED APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 4'`' AMENDMENT BY OVERRULING I3IS MOTION TO SUPPRESS ARISING OUT OF AN OVI ARREST AT 9:40 A.M., WHEN THE ONLY EVIDENCE OF IMPAIRED DRIVING IS THE TESTIMONY OF A DEPUTY THAT THE OBSERVED SPEEDING AND ERRATIC DRIVING; A "STRONG" ODOR OF ALCOHOL; AND A FAILED HGN TEST; BUT THE TROOPER ASSISTING TESTIFIES THAT HE ALSO SAW APPELLANT'S AUTOMOBILE AND DID NOT DETECT SPEEDING AND THE ODOR OF ALCOHOL WAS "SLIGHT" AND THAT CONFLICT IS COUPLED WITH FURTHER TESTIMONY FROM THE STATE THAT APPELLANT DENIED HAVING CONSUMED ALCOHOL SINCE THE EVENING BEFORE; WAS FULLY COOPERATIVE; EXPERIENCED NO DIFTTCULTY PRODUCING HIS LICENSE; APPROPRIATELY UNDERSTOOD AND FOLLOWED ALL INSTRUCTIONS, DID NOT HAVE BLOODSHOT OR WATERY EYES; DID NOT SLUR HIS SPEECH; AND EXCITED HIS VEHICLE AND TO THE CRUISER NORMALLY. Appellant argues that his arrest was invalid due to conflicting testimony regarding the odor of alcohol and HGN tests. Appellant also argues that his arrest was invalid due to factors indicating that he was not intoxicated. 8

12 The Eleventh District Court of Appeals held that the trial court should have disregarded the results of the HGN test administered by Deputy Ginn. Corbissero at 131. However, the court found that even without this test the trial court was still presented with more than sufficient evidence to establish probable cause for appellant's arrest. Id. Thus, differing test results did not make appellant's arrest invalid One of the factors considered by the Eleventh District Court of Appeals in upholding the trial courts finding of probable cause was the strong odor of alcohol. Id. at 130. Although there was conflicting testimony concerning the strength of the odor of alcohol, appellant's arrest is still valid. A lack of an odor of alcohol does not negate probable cause for an OVI arrest. State v. Griffith, 7' Dist. No. 11 MO 3 at 118, 2011-Ohio Accordingly, testimony that there was a slight odor of alcohol would not make appellant's arrest invalid. Additionally, as previously stated, the Eleventh District Court of Appeals found that there was sufficient probable cause to support appellant's arrest. Corbissero at 128. Specifically, the court found that excessive speeding, erratic driving, failure to comply with lights and siren, the incredible response to the question of why he was speeding, the strong order of alcohol about his person, and his acknowledgement of having consumed alcohol the night before were sufficient indicators of appellant's intoxication to support his arrest. Id. at 130. Appellant's Second Proposition of Law is without merit. 9

13 THIRD PROPOSITION OF LAW TRIAL COURTS DENY APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION AND DUE PROCESS UNDER THE CONSTITUTION OF THE UNITED STATES BY SENTENCING APPELLANT TO A LIFE-TIME LICENSE SUSPENSION UNDER R.C (D) WHEN APPELLANT TESTIFIES AT THE SENTENCING HEARING THAT HE WAS NOT CONVICTED OF THE OFFENSE ENABLING THE ENHANCED PENALTY AND THE ONLY EVIDENCE TO THE CONTRARY WAS THE PROSECUTOR'S UNSWORN STATEMENT REFERRING TO AN UNCERTIFIED COPY OF A BMV PRINTOUT WHICH WAS NOT AUTHENTICATED NOR INTRODUCED INTO EVIDENCE. Appellant argues that the Eleventh District Court of Appeals erred in affirniing his life time license suspension. This argument lacks merit. R.C (E) provides, in pertinent part: In addition to any other sanction imposed for a violation of this section, the court shall impose a class two suspension from the range specified in division (A)(2) of section of the Revised Code. If the offender previously has been found guilty of an offense under this section, the court shall impose a class one suspension as described in division (A)(1) of that section. Appellant claims that the 1991 conviction for Fleeing and Eluding used to enhance his sentence was uncounseled. However, appellant fails to acknowledge that he was convicted of this offense on two separate occasions in (Sen.T.p. 14.) The trial court was permitted by R.C (E) to enhance appellant's sentence due to this second counseled 1991 conviction. The State provided the trial court with a certified copy of appellant's conviction in Ashtabula Municipal Court Case No. 91CRB0582. Appellant's Third Proposition of Law is without merit. 10

14 CONCLUSION For the foregoing reasons, the State of Ohio respectfully requests this Honorable Court to deny jurisdiction and disniiss the discretionary appeal at bar. Respectfully submitted, THOMAS L. SARTINI ( ) PROSECUTING ATTORNEY helley M. Pratt ( ) Assistant Prosecutor Ashtabula County Prosecutor's Office 25 West Jefferson Street Jefferson, Ohio (440) Fax (440) CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing Memorandum in 4-t^ Response to Jurisdiction has been served via ordinary U.S. Mail, postage prepaid, this t?,& day of June, 2012, upon James L. Burdon,137 South Main Street, Suite 201, Akron, Ohio, Shelley M. Pratt Q ) Assistant Prosecutor 11