[Cite as State v. Thomas, 2011-Ohio-1987.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 48
v. : T.C. NO. 10CR42
KEITH R. THOMAS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of April , 2011.
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ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
RYAN SHANE REED, Atty. Reg. No. 0084670, P. O. Box 158, Hilliard, Ohio 43026
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Keith R. Thomas appeals his conviction for two counts
of operating a vehicle while under the influence of alcohol or drugs (OVI), in violation of
R.C. 4511.19(A)(1)(a) and 4511.19(A)(2), a felony of the fourth degree.
I
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{¶ 2} In the early morning hours of January 12, 2010, Officers Duwayne Hush and
Matt Parr of the Springfield Police Department were on patrol on the southwest side of
Springfield, Ohio, when they observed a vehicle driven by Thomas parked on the west side
of Western Avenue, facing southbound. As the officers approached in their cruiser, they
observed the driver of the subject vehicle make an illegal u-turn and then proceed westbound
on High Street at a high rate of speed. Officer Hush testified that they began following the
vehicle down High Street. The officers also ran the vehicle’s license plate and were advised
that they needed to confiscate the plates on behalf of the Bureau of Motor Vehicles (BMV).
Officer Hush activated the flashing lights on his cruiser and attempted to initiate a traffic
stop.
{¶ 3} Thomas eventually pulled his vehicle over in the parking lot of a Speedway
Gas Station, and the officers pulled up behind him. Having been alerted over the radio,
Officer Roger Jenkins pulled in behind Officers Hush and Parr in a separate vehicle in order
to assist with the stop. After exiting his cruiser, Officer Parr observed that there were four
individuals in the subject vehicle including the driver, Thomas. Officer Parr testified that
upon approaching the vehicle he detected the strong odor of alcohol coming from Thomas.
Officer Parr asked for his driver’s license, and Thomas admitted that his license had been
suspended. Officer Parr then asked Thomas to step out of the vehicle.
{¶ 4} Since Thomas was wearing a bulky winter coat, Officer Parr patted him down
for weapons. While Officer Parr did not find any weapons, he did discover an open,
partially consumed bottle of beer in Thomas’ left breast pocket. Officer Parr testified that
he placed the open beer bottle on the roof of the vehicle and moved Thomas towards his
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cruiser.
{¶ 5} Officer Jenkins testified that while Thomas was speaking with Officer Parr,
he detected the strong odor of alcohol on Thomas’ breath as he spoke. Additionally, Officer
Jenkins testified that he observed that Thomas’ eyes were glassy and bloodshot, that he was
unsteady on his feet and had trouble maintaining his balance, and that his speech was
slurred.
{¶ 6} After Officer Parr led Thomas back to the front of his cruiser, he conducted a
the horizontal gaze nystagmus (HGN) field sobriety test on Thomas. Although he testified
that he was not sure that he turned off the flashing lights on his cruiser on this specific
occasion, Officer Parr stated that it was normal operating procedure to turn off the lights
during the test since it could affect the performance of the individual being tested. During
the performance of the HGN test, Officer Parr noted lack of smooth pursuit, nystagmus at
maximum deviation, and nystagmus prior to forty-five degrees in each eye for a total of six
clues. Officer Parr opined, that based upon all of the foregoing, that the Defendant was
impaired. Officer Parr asked Thomas to submit to additional field sobriety tests, but Thomas
refused.
{¶ 7} Thomas was subsequently arrested for operating a vehicle while intoxicated
and transported to the Clark County Jail. Thomas later refused a breathalyzer test at the jail.
In light of their observations during the stop, Officers Parr and Jenkins both testified that
they believed Thomas was intoxicated.
{¶ 8} On January 19, 2010, Thomas was indicted for two counts of OVI, in
violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2). On January 22, 2010, Thomas plead
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not guilty to the charged offenses.
{¶ 9} After a jury trial held on May 3, 2010, Thomas was found guilty of both
counts in the indictment. Additionally, the jury found that Thomas had previously been
convicted of at least three violations of R.C. 4511.19(A) or (B) within the last six years of
the instant offense. At sentencing on May 5, 2010, the State elected to proceed on Count 2
in the indictment, the violation of R.C. 4511.19(A)(2). The court sentenced Thomas to
thirty months in prison and ordered him to pay a fine of $1,350.00. The court also
suspended Thomas’ driver’s license for ten years.
{¶ 10} It is from this judgment that Thomas now appeals.
II
{¶ 11} Thomas’ first assignment of error is as follows:
{¶ 12} “DEFENDANT WAS DENIED HIS CONSTITUTIONALLY
GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGH
COUNSEL’S FAILURE TO FILE A COLORABLE MOTION TO SUPPRESS
EVIDENCE.”
{¶ 13} In his first assignment, Thomas contends that he received ineffective
assistance when his trial counsel failed to file a motion to suppress prior to trial. Thomas
argues that the evidence established that Officer Parr failed to substantially comply with the
standards set forth by the National Highway Traffic Safety Administration (NHTSA) when
he performed the HGN field sobriety test on Thomas. Specifically, Thomas asserts that
since the evidence did not conclusively establish that Officer Parr turned off his cruiser’s
flashing lights while he administered the HGN test to Thomas, the results of the test were
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unreliable. Accordingly, Thomas argues that had his counsel filed a motion to suppress the
results of the HGN test, the court would have granted the motion and he would not have
been prejudiced at trial by the admission of the evidence.
{¶ 14} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley
(1989), 42 Ohio St.3d 136. Trial counsel is entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688.
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.
{¶ 15} “The failure to file a suppression motion is not per se ineffective assistance of
counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448.
Rather, trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of
counsel only if the failure to file the motion caused Defendant prejudice; that is, when there
is a reasonable probability that, had the motion to suppress been filed, it would have been
granted.” (Citations omitted.) State v. Wilson, Clark App. 08CA0445, 2009-Ohio-2744, ¶11.
See, also, State v. Nields, 93 Ohio St.3d 6, 34, 2001-Ohio-1291.
{¶ 16} As previously stated, Thomas asserts that the HGN test performed by Officer
Parr was not administered in accordance with the regulations promulgated by the NHTSA
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because his performance was negatively affected by the flashing strobe lights atop Officer
Parr’s cruiser. NHSTA regulations direct that a suspect should be faced away from the
flashing lights when the HGN test is conducted. In the instant case, Officer Parr testified
that he conducted the HGN test at the front of his cruiser with Thomas facing towards the
hood of the vehicle. Officer Parr further testified that it was standard procedure to turn off
the cruiser’s flashing lights before conducting the test, but he could not remember whether
he had done so when he performed the HGN test on Thomas. Officer Parr testified that he
was aware that the flashing lights could affect the testing. Officer Parr acknowledged that
had he, in fact, left the flashing lights on during the test, the results of the tests indicating
that Thomas was intoxicated would be unreliable since he would have been directly facing
the lights.
{¶ 17} Initially, we note that defense counsel’s failure to file a motion to suppress
the result of the HGN test may have been a matter of reasonable trial strategy, which does
not constitute deficient performance. State v. King, Montgomery App. No. 18463,
2002-Ohio-2929, citing State v. Shaw (1999), 134 Ohio App.3d 316, 320. While Officer
Parr candidly testified that he did not remember whether he turned off the overhead flashing
lights, he did state it was his standard operating procedure to do so when administering the
HGN test to an OVI suspect. Based on Officer Parr’s testimony regarding his normal
procedure, it is possible that the trial court would have found that the officers conducted the
test in substantial compliance with NHTSA regulations and overruled a motion to suppress.
{¶ 18} Simply put, filing a motion to suppress is not without risks, and the likelihood
of success of such a motion was not a given in this case. State v. Brown, 115 Ohio St.3d 55,
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69, 2007-Ohio-4837. At a suppression hearing, Officer Parr’s testimony may have
necessitated Thomas to testify regarding the circumstances surrounding the administration of
the HGN test. This could have, in turn, provided the State with potential impeachment
evidence if Thomas chose to testify at trial. Thus, a reasonable strategy, instead of filing a
motion to suppress with its inherent risks, was to question the reliability of the HGN test
before the jury, which, in fact, defense counsel did.
{¶ 19} Moreover, even if Thomas’ counsel had filed a motion to suppress the results
of the HGN test and the trial court granted the motion, we cannot find that the result of the
trial would have been any different because the State presented overwhelming evidence of
Thomas’ guilt, in addition to the results of the HGN test. Officer Parr testified that he
observed Thomas make an illegal u-turn before he pulled him over. Officer Parr also
testified that he discovered an open, partially consumed bottle of beer in Thomas’ breast
pocket upon searching him for weapons. Officer Jenkins testified that he detected the
strong odor of alcohol on Thomas’ breath after he exited his vehicle and spoke to the
officers. Officer Jenkins further testified that Thomas was unsteady on his feet and had
trouble maintaining his balance. Thomas’ eyes were also bloodshot and glassy. Officers
Parr and Jenkins both testified that based upon their observations, Thomas was under the
influence of alcohol. Accordingly, given the overwhelming evidence of Thomas’ guilt,
aside from the results of the HGN test, we cannot say that had defense counsel filed a motion
to suppress, there is a reasonable probability that Thomas would have been acquitted.
{¶ 20} Thomas’ first assignment of error is overruled.
III
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{¶ 21} Thomas’ second and final assignment of error is as follows:
{¶ 22} “THE JURY’S VERDICT SHOULD BE REVERSED AS APPELLANT’S
CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 23} In his final assignment, Thomas argues that his conviction for OVI was
against the manifest weight of the evidence. Specifically, he asserts that the State adduced
no evidence that he was driving recklessly or erratically before he was pulled over. Thomas
also argues that the smell of alcohol testified to by Officer Parr could have come from any of
the other three occupants of the vehicle who were all drinking on the morning in question.
Lastly, Thomas argues that Officer Parr’s testimony regarding the results of the HGN test
prejudicially influenced and confused the jury.
{¶ 24} “When an appellate court analyzes a conviction under the manifest weight of
the evidence standard it must review the entire record, weigh all of the evidence and all the
reasonable inferences, consider the credibility of the witnesses and determine whether in
resolving conflicts in the evidence, the fact finder clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
(Internal citations omitted). Only in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Dossett, Montgomery App. No. 20997, 2006-Ohio-3367, ¶ 32.
{¶ 25} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass (1997), 10 Ohio St.2d 230, 231.
“Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious
exercise of the discretionary power of a court of appeals to find that a judgment is against the
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manifest weight of the evidence requires that substantial deference be extended to the
factfinder’s determinations of credibility. The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the peculiar competence of the
factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997),
Montgomery App. No. 16288.
{¶ 26} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 27} After a thorough review of the record, we find that Thomas’ convictions for
OVI are not against the manifest weight of the evidence. The credibility of the witnesses
and the weight to be given their testimony are matters for the jury to resolve. Thomas
presented only minimal evidence in the form of the testimony of Amber Martin, who simply
maintained that Thomas was not under the influence of alcohol when he was pulled over.
She also testified that the police did not turn off the flashing lights when they administered
the HGN test on Thomas. The jury did not lose its way simply because it chose to believe
the State’s witnesses, namely Officers Parr and Jenkins. As stated in the prior assignment,
the State presented overwhelming evidence of Thomas’ guilt, aside from the results of the
HGN test. Having reviewed the entire record, we cannot clearly find that the evidence
weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.
{¶ 28} Thomas’ final assignment of error is overruled.
IV
{¶ 29} All of Thomas’ assignments of error having been overruled, the judgment of
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the trial court is affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Andrew R. Picek
Ryan Shane Reed
Hon. Douglas M. Rastatter