Kent v. Thomas

[Cite as Kent v. Thomas, 2026-Ohio-4330.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY CITY OF KENT, OHIO, CASE NO. 2025-P-0096 Plaintiff-Appellee, Criminal Appeal from the - vs - Municipal Court, Kent Division ISIAH L. THOMAS, Trial Court No. 2025 TRC 00305 K Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: November 2, 2026 Judgment: Affirmed Hope L. Jones, The City of Kent, Ohio Law Director, 319 South Water Street, Kent, OH 44240, and Eric R. Fink, Assistant Law Director, 320 South Depeyster Street, Kent, OH 44240 (For Plaintiff-Appellee). Richard E. Hackerd, 55 Public Square, Suite 2100, Cleveland, OH 44113 (For Defendant-Appellant). JOHN J. EKLUND, J. {¶1} Appellant, Isiah L. Thomas, appeals his conviction for operating a vehicle under the influence of alcohol (“OVI”) following a jury trial in the Portage County Municipal Court, Kent Division. {¶2} Appellant raises a single assignment of error, arguing that the prosecutor committed misconduct during his closing rebuttal argument by improperly using Appellant’s refusal to take a breathalyzer test in order to shift the State’s burden of proof and suggest that Appellant was required to prove his sobriety.  {¶3} Having reviewed the record and the applicable law, we find that Appellant’s assignment of error is without merit. Based on binding precedent from the Supreme Court of Ohio, the prosecutor was legally permitted to comment on Appellant’s refusal to take a breathalyzer test, and such comments did not shift the burden of proof. {¶4} Therefore, we affirm the judgment of the Portage County Municipal Court, Kent Division. Substantive and Procedural History {¶5} On February 7, 2025, at approximately 2:26 a.m., Officer Ellis of the Kent Police Department was driving his patrol vehicle on Franklin Avenue in Kent, Ohio, when he observed a vehicle driven by Appellant fail to comply with a stop sign. Officer Ellis turned his patrol vehicle around to conduct a traffic stop. Meanwhile, Appellant parked abruptly across two parking spaces, exited his vehicle, and attempted to walk away. Officer Ellis approached Appellant by foot and ordered him to stop and to come to the front of the officer’s patrol vehicle. Appellant “reluctantly” complied. Officer Ellis observed that Appellant had glossy, bloodshot eyes and an odor of an alcoholic beverage coming from his person or breath. Appellant stated that he was coming from “the studio” and was “trying to get home.” He denied having any medical conditions or taking prescriptions medications on a daily basis. {¶6} Officer Ellis administered standardized field sobriety tests. He observed four clues on Horizontal Gaze Nystagmus, three clues on the walk-and-turn test, and two clues on the one-leg-stand test. Officer Ellis offered Appellant a portable breath test, which he refused. Following his investigation, Officer Ellis concluded that Appellant was impaired. Therefore, the officer arrested Appellant by handcuffing him, placing him in the PAGE 2 OF 10 Case No. 2025-P-0096 back of the patrol vehicle, and transporting him to the police station. Officer Ellis’ dash and body cameras captured the above events. {¶7} At the police station, Officer Ellis read Appellant a statement from a “BMV 2255” form, which indicated that a person’s refusal of blood, breath, and/or urine testing resulted in an automatic one-year suspension of the person’s driver’s license. Officer Ellis offered Appellant a breathalyzer test, which Appellant refused. Appellant was booked into the jail and was released on bond a few hours later. {¶8} On the same date, February 7, 2025, Appellant was charged in the Portage County Municipal Court, Kent Division, for OVI, a first-degree misdemeanor in violation of Kent Cod.Ord. 333.01(a)(1)(A) (“No person shall operate any vehicle within this Municipality, if, at the time of the operation . . . [t]he persons is under the influence of alcohol . . . ”) (count 1); and a stop-sign violation, a minor misdemeanor in violation of Kent Cod.Ord 331.19 (count 2). {¶9} On February 24, 2025, Appellant was arraigned and pleaded not guilty. {¶10} On May 1, 2025, Appellant filed a pro se motion to suppress evidence. {¶11} On May 28, 2025, the trial court appointed counsel for Appellant. {¶12} On August 4, 2025, Appellant, through counsel, filed an amended motion to suppress evidence. {¶13} On October 2, 2025, the trial court held a suppression hearing. {¶14} On October 6, 2025, the trial court filed a judgment entry overruling Appellant’s motion to suppress. {¶15} On December 3, 2025, count 1 was tried to a jury, and count 2 was tried to the bench. The City presented testimony from Officer Ellis and submitted as exhibits the PAGE 3 OF 10 Case No. 2025-P-0096 officer’s dash and body camera videos and a copy of the BMV 2255 form. Appellant rested without presenting witnesses or exhibits. {¶16} The jury found Appellant guilty of count 1 (OVI), and the trial court found Appellant guilty of count 2 (stop sign). The trial court sentenced Appellant to a fine of $1,075 and costs, with $700 of the fine suspended; 180 days in jail, with 177 days suspended; completion of a 72-hour driver intervention program; a one-year license suspension, with credit for the administrative suspension and limited driving privileges. {¶17} On December 5, 2025, the trial court filed Appellant’s judgment of conviction. {¶18} On December 30, 2025, Appellant timely appealed and raises a single assignment of error. Assignment of Error and Analysis {¶19} Appellant’s sole assignment of error states: “The prosecutor’s closing argument improperly used refusal evidence to shift the burden and suggest [Appellant] had an obligation to prove sobriety, depriving him of a fair trial and due process of law.” {¶20} Because Appellant did not object to the prosecutor’s closing rebuttal argument at trial, he has forfeited all but plain error. “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding the accused’s failure to meet his obligation to bring those errors to the attention of the trial court.” State v. Rogers, 2015-Ohio-2459, ¶ 22. “[T]he accused bears the burden of proof to demonstrate plain error on the record, . . . and must show ‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an “obvious” defect in the trial proceedings.’” Id., quoting State v. Barnes, 2002-Ohio-68, ¶ 20. “[E]ven if the error is PAGE 4 OF 10 Case No. 2025-P-0096 obvious, it must have affected substantial rights.” Id. The Supreme Court of Ohio has “interpreted this aspect of the rule to mean that ‘the trial court’s error must have affected the outcome of the trial.’” Id., quoting Barnes at ¶ 20. Further, “even if an accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it.” Id. at ¶ 23. The Supreme Court of Ohio has “‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.”’” (Emphasis in original.) Id., quoting Barnes at ¶ 21, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶21} Appellant challenges the italicized portions of the prosecutor’s following statements: But you don't have to take my word for it and you don't have to take the officer’s word for it. You can see it in the actions of [Appellant] himself. [Appellant], when he sees the police officer, immediately is trying to park his car, get out of his car, walk away as fast as he possibly can, because he knows he has been caught. And then if we are going to believe when [Appellant] says, I haven’t had anything drink and you have no business talking to me and all of that fun stuff, he has a perfect opportunity to show the Officer how wrong the officer is by taking that breathalyzer test, perfect opportunity. And he is told, and we look at the exhibit, the officer reads to him what is going [to] happen, if he decides not to take that breathalyzer test. Having no prior OVI's in Ohio, if you refuse to take the breathalyzer test, it’s an automatic one year license suspension. And [Appellant’s] response, is to metaphorically reach into his wallet, take out his driver’s license, I don’t need this driver’s license for the next year. I’m so convinced I don’t want to prove my -- I don’t want to show you if I had any alcohol, I don’t need to do any of that I would rather not drive. But then he wants to turn around and tell you as jurors, that there's not enough evidence here to add up to an OVI. He, himself, knew he was appreciatively impaired. Everyone [sic] of his actions demonstrate that to you. PAGE 5 OF 10 Case No. 2025-P-0096 (Emphasis added.) {¶22} According to Appellant, the prosecutor’s comments “transformed a permissive evidentiary inference into a burden-shifting demand” even though Appellant had no obligation to “prove” sobriety or “show” the officer anything. {¶23} Upon review, we find no plain error. Appellant has not shown an obvious error in the prosecutor’s closing rebuttal argument. “Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can be drawn therefrom.” State v. Richey, 1992-Ohio-44, ¶ 47. “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.” State v. Smith, 14 Ohio St.3d 13, 14 (1984). A reviewing court “evaluate[s] the allegedly improper statements in the context of the entire trial.” State v. Treesh, 2001-Ohio-4, ¶ 22. “In general terms, the conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial.” State v. Maurer, 15 Ohio St.3d 239, 266 (1984). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” State v. Smith, 2000-Ohio-450, ¶ 87, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). {¶24} The Supreme Court of Ohio has held that “[t]he refusal of one accused of intoxication to take a reasonably reliable chemical test for intoxication may have probative value on the question as to whether he was intoxicated at the time of such refusal.” Westerville v. Cunningham, 15 Ohio St.2d 121 (1968), paragraph one of the syllabus. In addition, “[o]ne accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication.” Id. at paragraph two of the syllabus. PAGE 6 OF 10 Case No. 2025-P-0096 Therefore, “[t]he admission of evidence that one accused of intoxication refused to take a reasonably reliable chemical test for intoxication and comment thereon by counsel, do not violate any constitutional privilege against self-incrimination.” (Emphasis added.) Id. at paragraph three of the syllabus. {¶25} The Supreme Court reasoned that “[w]here a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated.” Id. at 122. “On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated.” Id. “Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him.” Id. “Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.” Id. {¶26} The holding and reasoning in Cunningham are applicable in this case. The prosecutor cited the trial evidence and asked the jury to infer that Appellant’s refusal to take a breathalyzer test showed his consciousness of guilt in driving under the influence of alcohol. Such comments were legally permissible. We recognize that the prosecutor initially used the term “prove” in addressing Appellant’s refusal. “It is ‘improper for the prosecutor to suggest that the defendant had the burden of proof or any obligation to produce evidence to prove his innocence.’” State v. Thompson, 2014-Ohio-4751, ¶ 191, quoting United States v. Clark, 982 F.2d 965, 968-969 (6th Cir. 1993). However, the prosecutor quickly corrected himself and used the word “show,” i.e., that Appellant did not PAGE 7 OF 10 Case No. 2025-P-0096 “want to show [the police] if [he had] had any alcohol.” Crucially, the prosecutor did not assert that Appellant was required to “prove” or “show” anything at trial. In fact, the prosecutor expressly reminded the jury that the City had the burden of proof, stating, “So the way the rules are set up, I have the burden of proof, no question, I have burden proof [sic].” {¶27} Further, the Supreme Court has held that “the [S]tate may comment upon a defendant’s failure to offer evidence in support of its case.” State v. Collins, 2000-Ohio- 231, ¶ 14. “Such comments do not imply that the burden of proof has shifted to the defense, nor do they necessarily constitute a penalty on the defendant’s exercise of his Fifth Amendment right to remain silent.” Id. According to the Court, “[t]he fact that a defendant may . . . realistically find himself with a burden of producing evidence to counter [an unfavorable] inference does not mean that the ultimate burden of proof has shifted to the defendant.” Id. at ¶ 24. Thus, Supreme Court has recognized a defendant’s potential evidentiary dilemma and rejected any constitutional concerns. {¶28} Appellant relies on Maumee v. Anistik, 1994-Ohio-157, which is distinguishable. In Anistik, the Supreme Court of Ohio held: where a person has been arrested for driving while under the influence of alcohol and is requested by a police officer to submit to a chemical test of his or her breath but he or she refuses to take the test, and the reason given for the refusal is conditional, unequivocal, or a combination thereof, we approve the following jury instruction as set forth in 4 Ohio Jury Instructions (1993) 405, Section 545.25(10): ‘Evidence has been introduced indicating the defendant was asked but refused to submit to a chemical test of his [or her] breath to determine the amount of alcohol in his [or her] system, for the purpose of suggesting that the defendant believed he [or she] was under the influence of alcohol. If you find the defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol.’ PAGE 8 OF 10 Case No. 2025-P-0096 (Emphasis added.) Id. at ¶ 16. {¶29} Unlike in Anistik, Appellant did not offer a reason for refusing a breathalyzer test. In addition, Appellant is not challenging the trial court’s jury instruction on refusal; he is challenging the prosecutor’s closing argument. “There is no requirement that a prosecutor’s language must be neutral in its characterizations of the evidence or defense strategy.” State v. Novak, 2005-Ohio-563, ¶ 42 (11th Dist.). Therefore, Anistik does not support a contrary conclusion. {¶30} Since Appellant has not shown an obvious defect in the proceedings, he has not established plain error; thus, we need not address the issue of prejudice. {¶31} Accordingly, Appellant’s sole assignment of error is without merit. {¶32} For the foregoing reasons, the judgment of the Portage County Municipal Court, Kent Division, is affirmed. ROBERT J. PATTON, J., SCOTT LYNCH, J., concur. PAGE 9 OF 10 Case No. 2025-P-0096  JUDGMENT ENTRY For the reasons stated in the opinion of this court, Appellant’s assignment of error is without merit. It is the judgment and order of this court that the judgment of the Portage County Municipal Court, Kent Division, is affirmed. Costs to be taxed against Appellant. JUDGE JOHN J. EKLUND JUDGE ROBERT J. PATTON, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 10 OF 10 Case No. 2025-P-0096