[Cite as State v. Hodge, 2011-Ohio-5023.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 11
v. : T.C. NO. TRC0907537
BRUCE HODGE : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of September , 2011.
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BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Fairborn Prosecutor, 510 West Main
Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 2100 First National Plaza, 130 W.
Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Bruce Hodge was found guilty by a jury of operating a vehicle under the
influence of drugs or alcohol (OVI), refusing to submit to a chemical test to determine
whether he was under the influence of alcohol or drugs when he had a prior conviction of
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OVI within twenty years, and driving under suspension. He appeals from his convictions.
{¶ 2} On July 21, 2009, Hodge was stopped for driving under suspension after a
police officer ran a routine check of his license plate. During the stop, police officers
detected an odor of an alcoholic beverage and observed other indicia that Hodge was under
the influence of drugs or alcohol. They conducted one field sobriety test and took Hodge to
the police station jail, where he refused to submit to a breathalyzer test. Hodge was cited
for OVI (with two prior convictions), for refusing to submit to the test, and for driving under
suspension.
{¶ 3} The charges were tried to a jury in the Fairborn Municipal Court, and Hodge
was found guilty on all three charges. The OVI charge and refusal to submit to a chemical
test charge merged. The trial court sentenced Hodge to concurrent sentences of 365 days
in jail for the OVI and 180 days for driving under suspension, with 180 days and 170 days
suspended, respectively, on the condition that he have no similar violations for five years.
His driver’s license was suspended for five years, and he was fined $850. Hodge appeals
from his convictions, raising two assignments of error. We address the assignments in the
order that facilitates our discussion.
{¶ 4} The second assignment of error states:
{¶ 5} “THERE EXISTED INSUFFICIENT INDICIA OF IMPAIRMENT AND
THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 6} Hodge contends that his conviction for OVI was supported by insufficient
evidence and was against the manifest weight of the evidence.
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{¶ 7} An argument based on the sufficiency of the evidence challenges whether the
State presented adequate evidence on each element of the offense to allow the case to go to
the jury or to sustain the verdict as a matter of law. State v. Thompkins (1999), 78 Ohio
St.3d 380, 386. “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.” State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus.
{¶ 8} In contrast, when reviewing a judgment under a manifest-weight standard of
review “‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387,
quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 9} At trial, the State offered the following evidence:
{¶ 10} On July 21, 2009, Fairborn Police Officer Brian J. Neiford “conducted a
random BMV inquiry on the license plate” of a vehicle while it was parked outside the Sugar
Melons bar. As a result of the inquiry, Officer Neiford discovered that the owner of the car,
Bruce Hodge, was under a “failure to reinstate” suspension of his driver’s license. When a
man matching Hodge’s description drove the vehicle away from the bar, Officer Neiford
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made a traffic stop. He did not observe any other traffic violations before making the stop.
{¶ 11} When Officer Neiford questioned Hodge about the suspension, Hodge
presented a paper stating that he had driving privileges to and from work and Alcoholics
Anonymous meetings; Hodge claimed that he was on his way to an AA meeting. The paper
indicated that Hodge was not allowed to consume alcoholic beverages before driving under
the privileges. Officer Neiford’s computer did not indicate that Hodge had been granted
any driving privileges.
{¶ 12} Officer Neiford detected “a slight odor of alcoholic beverages on or about”
Hodge. He also observed that Hodge’s eyes were “bloodshot and glassy,” that his face was
“flushed,” and that his speech was “slow and deliberate” and “appeared to be slurred.”
Officer Neiford recognized all of these factors as indicators of intoxication. Officer
Neiford arrested Hodge for driving under suspension and then conducted a horizontal gaze
nystagmus (HGN) test. Neiford observed all six indicators of intoxication during the HGN
test.
{¶ 13} Hodge became more argumentative and uncooperative as the encounter
continued. Officer Neiford testified that he did not take the handcuffs off of Hodge to
conduct more field sobriety tests because of Hodge’s belligerence and insults. Neiford also
testified that Hodge asked the same questions repeatedly, even after the questions had been
answered. After Officer Neiford got into the cruiser with Hodge and began to transport him
to the jail, Neiford smelled a stronger odor of an alcoholic beverage. Realizing that he
would be arresting Hodge for OVI in addition to driving under suspension, and because
department policy called for conducting an inventory and towing a car when an arrest for
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OVI is made, Officer Neiford returned to Hodge’s car to inventory its contents and arrange
for the towing. After the vehicle was towed, Officer Neiford transported Hodge to jail.
{¶ 14} Officer Penrod responded as backup after Neiford stopped Hodge. Officer
Penrod testified that he had detected an odor of an alcoholic beverage when he approached
Hodge, that Hodge’s eyes had been watery and bloodshot, and that his speech had been
slurred, but not severely. Officer Penrod testified that, in his opinion, Hodge had been
“under the influence, intoxicated.”
{¶ 15} Finally, Steven Barker, who worked at the Fairborn jail and processed Hodge
the night of his arrest, testified that he “smelled a strong odor of alcohol” on Hodge at the
jail. Barker also observed slurred speech, argumentativeness, and agitation.
{¶ 16} Hodge did not testify and did not call any witnesses at trial, but his attorney
cross-examined the State’s witnesses about their observations and, with respect to Officer
Neiford, his compliance with police procedures in conducting the HGN test. Regarding the
HGN test, Officer Neiford acknowledged that an officer is supposed to be “kind of on level”
with a person when conducting the test. He acknowledged that he (Officer Neiford) had
been standing outside the cruiser and Hodge had been sitting in the backseat of the cruiser
when the test was conducted. When questioned about whether this procedure violated his
training and “the rule,” Officer Neiford stated that he was “unaware” that the rule addressed
this issue and stated, “[i]f the person is taller or shorter than you, it’s going to be the same
thing.” He also stated that the manner in which he had conducted the HGN test was
consistent with his training. Hodge also played the videotape of the traffic stop for the jury,
to refute the State’s evidence that his speech had been slurred.
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{¶ 17} Hodge was convicted under R.C. 4511.19(A)(1)(a) and (A)(2). Violations of
R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) are both classified as the offense of operating
a motor vehicle under the influence of alcohol. For certain repeat offenders, R.C.
4511.19(A)(2) adds the additional element of refusing to submit to a chemical test. The
distinction between these offenses is that the minimum, mandatory jail terms are greater for
a violation of R.C. 4511.19(A)(2) than they are for a violation of R.C. 4511.19(A)(1)(a). See
State v. Turner, Portage App. No. 2007-P-0090, 2008-Ohio-3898, ¶42.
{¶ 18} R.C. 4511.19(A)(1)(a) states that “[n]o person shall operate any vehicle,
streetcar, or trackless trolley within this state, if, at the time of the operation, *** [t]he
person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C.
4511.19(A)(2) further provides that a person who has been previously convicted of OVI
within twenty years shall not operate a vehicle under the influence of alcohol or drugs and
shall not, upon being asked by a law enforcement officer to submit to a chemical test or tests
and being advised by the officer of the consequences of refusal or submission to the test or
tests, refuse to submit to the test or tests.
{¶ 19} Accordingly, to establish the violation of R.C. 4511.19(A)(2), the State was
required to prove (in addition to the prior conviction) that Hodge had operated a vehicle
under the influence of drugs or alcohol and that he had refused to submit to a chemical test.
Hodge contends that, “[a]bsent the improperly conducted and prejudicial HGN test results,
the facts do not support a finding of impairment.” We disagree.
{¶ 20} Even if the jury had disregarded the result of the HGN field sobriety test
based on Hodge’s suggestion, through cross-examination, that the results of the test were
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unreliable, there was evidence from which the jury could have concluded, beyond a
reasonable doubt, that Hodge was guilty of OVI. Two police officers testified to numerous
physical and behavioral indications of intoxication, including the odor of an alcoholic
beverage, slurred speech, bloodshot eyes, argumentativeness, and failure to comprehend or
retain answers to questions. The HGN test provided further support for the officers’
conclusion that Hodge was under the influence of alcohol, but it certainly was not the only
evidence pointing to Hodge’s intoxication. The evidence was legally sufficient to support
Hodge’s conviction.
{¶ 21} Hodge also argues that his conviction was against the manifest weight of the
evidence. He claims that Officer Neiford “contradicted [him]self as to when and why he
decided to charge” Hodge with OVI and that it “seems evident that [Neiford’s] dislike for
[Hodge] was the reason for the OVI charge.”
{¶ 22} There were some inconsistencies in Officer Neiford’s testimony about when
he decided to arrest Hodge for OVI, which necessitated impounding Hodge’s car. And
Officer Neiford acknowledged that Hodge had accused him of “planting some things” in
Hodge’s car and of “harassment,” and that these accusations “got under [his] skin.” But
Officer Neiford denied charging Hodge with OVI because he was angry with Hodge.
Neiford was cross-examined about the inconsistencies in his testimony. The jury was in the
best position to assess the credibility of the witnesses’ testimony and to resolve conflicts in
the evidence. Based on the evidence presented, the jury did not clearly lose its way or
create a manifest miscarriage of justice when it convicted Hodge. Thus, his conviction was
not against the manifest weight of the evidence.
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{¶ 23} The second assignment of error is overruled.
{¶ 24} Hodge’s first assignment of error states:
{¶ 25} “FAILURE TO MOVE TO SUPPRESS THE HORIZONTAL GAZE
NYSTAGMUS TEST RESULTS RESULTED IN INEFFECTIVE ASSISTANCE OF
COUNSEL.”
{¶ 26} Hodge claims that he was denied the effective assistance of counsel because
counsel did not move to suppress the results of the HGN test conducted when he was
stopped by the police.
{¶ 27} Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Strickland v. Washington (1984), 466 U.S.
668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Id. Deficient performance means that claimed errors were so serious that the
defense attorney was not functioning as the “counsel” that the Sixth Amendment guarantees.
State v. Cook (1992), 65 Ohio St.3d 516, 524. Hindsight is not permitted to distort the
assessment of what was reasonable in light of counsel’s perspective at the time, and a
debatable decision concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel. Id. at 524-525.
{¶ 28} Hodge claims that his counsel was ineffective in failing to seek suppression
of the HGN test results because Officer Neiford’s conduct was “not remotely in substantial
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compliance with the applicable regulations.”
{¶ 29} The State did not rely exclusively on the HGN field sobriety test to prove that
Hodge had been under the influence, nor was it required to offer proof that Hodge had failed
one or more field sobriety tests. A reasonable jury may conclude that a defendant was
under the influence based only on an officer’s observations, even if no field sobriety tests or
chemical tests were administered. See State v. Gilleland, Champaign App. No. 2004 CA 1,
2005-Ohio-659, ¶19, citing State v. Flynt, Portage App. No. 2001-P-0116, 2003-Ohio-1391.
The State offered evidence from three witnesses that, on the night of the offenses, Hodge
exhibited physical and behavioral characteristics consistent with being under the influence.
Moreover, although Hodge questioned Officer Neiford about the procedural requirements for
conducting the HGN test, Hodge did not offer evidence regarding those requirements, and
Officer Neiford did not concede that he had failed to comply with the appropriate procedures
for administration of the HGN test.
{¶ 30} We cannot conclude that trial counsel’s conduct fell below an objective
standard of reasonableness, because the record does not demonstrate that Officer Neiford
conducted the HGN test improperly and, therefore, that a motion to suppress would have
been sustained. Furthermore, we cannot conclude that Hodge was prejudiced by his
attorney’s failure to file a motion to suppress as, even without the HGN test result, there was
evidence in the record to support the jury’s conclusion that he had been driving under the
influence. For these reasons, we cannot conclude that there is a reasonable probability that
counsel’s failure to file a motion to suppress affected the outcome of the case or that Hodge
was denied the effective assistance of counsel.
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{¶ 31} The first assignment of error is overruled.
{¶ 32} The judgment of the trial court will be affirmed.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Betsy A. Deeds
Michael T. Columbus
Hon. Beth W. Root