[Cite as State v. Hale, 2019-Ohio-1398.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY STATE OF OHIO, : CASE NO. CA2018-04-024 Appellee, : OPINION 4/15/2019 : - vs - : CLINTON M. HALE, : Appellant. : CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2017TRC13847 D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, Batavia, Ohio 45103, for appellee The Meadows Law Firm, Jeffrey C. Meadows, 5900 West Chester Road, Suite E, West Chester, Ohio 45069, for appellant M. POWELL, J. {¶ 1} Appellant, Clinton Hale, appeals his conviction in the Clermont County Municipal Court for operating a motor vehicle with a prohibited blood-alcohol concentration. {¶ 2} On September 9, 2017, appellant was charged with driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), operating a motor vehicle ("OVI") with a prohibited blood-alcohol concentration of .17 or more in violation of R.C. Clermont CA2018-04-024 4511.19(A)(1)(h), and failing to drive within marked lanes.1 Appellant and the state filed numerous pretrial motions. As relevant to this appeal, the state filed a pretrial motion for jury instructions on March 19, 2018, asking that the jury be instructed on the offense of OVI in violation of R.C. 4511.19(A)(1)(d) as a lesser included offense of OVI in violation of R.C. 4511.19(A)(1)(h). By decision filed on March 28, 2018, the trial court granted the state's motion, indicating, "[a]ssuming that the State of Ohio proves all of the elements pursuant to [R.C.] 4511.19(A)(1)(h) beyond a reasonable doubt, this Court intends to instruct the jury as to the elements of [R.C.] 4511.19(A)(1)(d) as a lesser included offense." {¶ 3} Appellant moved the trial court to reconsider its ruling granting the state's request for the lesser included offense jury instruction. A hearing on the motion was conducted on April 2, 2018. During the hearing, the trial court indicated it had not made a final determination on the issue but stated that at that point in time, it was standing by its decision to grant the state's request for the lesser included offense jury instruction. The next day, appellant entered a plea of no contest to OVI with a prohibited blood-alcohol concentration of .17 or more. The other two charges were dismissed. The trial court accepted appellant's no contest plea and sentenced him accordingly. {¶ 4} Appellant now appeals, raising one assignment of error: {¶ 5} THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR JURY INSTRUCTIONS BECAUSE R.C. 4511.19(A)(1)(d) IS NOT A LESSER INCLUDED OFFENSE OF R.C. 4511.19(A)(1)(h). {¶ 6} Jury instructions are matters left to the sound discretion of the trial court. State v. Doby, 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471, ¶ 17. We review a trial 1. After being transported to the Batavia Patrol Post, appellant submitted to a breath test conducted on a BAC DataMaster, which revealed he had a breath-alcohol content of .172 of one gram per 210 liters of breath. -2- Clermont CA2018-04-024 court's decision on requested jury instructions under ...
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