[Cite as State v. Sullivan, 2017-Ohio-8937.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
CASE NO. 5-17-09
PLAINTIFF-APPELLEE,
v.
WILLIAM E. SULLIVAN, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Findlay Municipal Court
Trial Court No. 16TRC05077
Judgment Affirmed
Date of Decision: December 11, 2017
APPEARANCES:
Mark A. Davis for Appellant
Case No. 5-17-09
WILLAMOWSKI, J.
{¶1} Defendant-appellant William E. Sullivan, Jr. (“Sullivan”) appeals the
judgment of the Municipal Court of Findlay, Ohio, alleging that (1) the trial court
erred in denying his motion to suppress the results of his Horizontal Gaze
Nystagmus Test (“HGN Test”); (2) the trial court erred in denying his Crim.R. 29
motion for acquittal; (3) the trial court erred by overruling his objections to the
admission of testimony that referenced research discussing the accuracy of the HGN
Test; and (4) the jury returned a verdict that was against the manifest weight of the
evidence. For the reasons set forth below, the judgment of the lower court is
affirmed.
Facts and Procedural History
{¶2} Officer Michael Cortez (“Cortez”) is a deputy sheriff at the Hancock
County Sheriff’s Office. Trial Tr. at 29. At 9:11 p.m. on May 20, 2016, Cortez was
on patrol when he received a dispatch that reported a single vehicle, non-injury
accident had occurred in his vicinity. Id. at 42-43. When he arrived at the scene of
the accident, he saw Sullivan’s vehicle up against a utility pole in a ditch. Id. at 43-
44. The utility pole was cracked about fifteen to twenty feet above the ground. Id.
Cortez determined that Sullivan—the driver of the vehicle—had driven through a
stop sign, lost control of his vehicle, and hit the utility pole. Id. at 53.
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{¶3} The fire department had already arrived at the scene of the accident, and
Sullivan was standing about fifty to seventy-five feet away from his car. Id. at 44-
45. Cortez approached Sullivan and began asking him some questions. Id. at 46.
Cortez noticed that Sullivan was slow in responding to these questions and seemed
lethargic. Id. No injuries were apparent to Cortez from Sullivan’s appearance. Id.
at 47-48. Cortez asked Sullivan if he needed any medical attention or if he had any
injuries. Id. at 47. In response, Sullivan indicated that he was not injured. Id.
Cortez and Sullivan then went into Cortez’s cruiser to complete the report. Id. at
51. Cortez noticed that Sullivan took very deliberate and focused actions as he
moved towards the cruiser. Id. at 51. Cortez also noticed that Sullivan, struggling
to keep his balance, stumbled as he walked and stabilized himself by holding onto
the cruiser. Id. at 52.
{¶4} When Cortez got into the cruiser with Sullivan, he smelled “a strong
odor of an alcoholic beverage.” Id. at 53. In the light of the cruiser, he could also
see that Sullivan’s eyes were bloodshot and his face was flushed. Id. Cortez then
asked Sullivan questions about the route on which Sullivan was driving. Id. at 54.
Sullivan responded by claiming that he was on Interstate 280 by Toledo. Id. In fact,
Sullivan and Cortez were at the intersection of State Route 613 and Township Road
136, which was at least forty-five minutes away from where he believed he was on
Interstate 280. Id. at 55. When asked, Sullivan denied having any alcoholic
beverages that evening. Id.
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{¶5} At this point, Cortez asked Sullivan to submit to a portable breath test.
Id. at 56. Sullivan declined to take the portable breath test but subsequently agreed
to submit to field sobriety tests. Id. Cortez then administered the HGN Test. Id.
As Cortez administered the HGN Test, he observed six out of the six clues that are
indicators of being under the influence in Sullivan’s eyes. Id. at 69-70. Doc. 12.
Since the weather outside was becoming inclement, Cortez decided not to proceed
with further field sobriety tests. Trial Tr. 90. On the basis of the HGN Test results
and his other observations, Cortez arrested Sullivan for operating a vehicle while
under the influence. Doc. 1. The complaint was then filed on May 24, 2016. Doc.
1.
{¶6} On July 25, 2016, Sullivan filed a motion to suppress the results of the
HGN Test. Doc. 8. At the suppression hearing on October 12, 2014, Cortez testified
as to his observations on the night of May 20, 2016. Suppression Hearing Tr. 11.
The Defense then called Dr. William R. Bauer (“Dr. Bauer”) as an expert witness.
Id. at 47. Dr. Bauer, a neurologist, testified that he believed that Sullivan had a
traumatic brain injury as the result of the car accident. Id. at 55. He further testified
that he believed the six clues that Cortez observed during the HGN Test were
symptoms of Sullivan’s traumatic brain injury and were not indicators of
intoxication. Id. at 51-52, 55. He also believed that the flushed face, lethargic
movements, slow responses to questions, and glassy eyes were the result of the
traumatic brain injury caused by the accident. Id. at 56-58. Dr. Bauer’s conclusions
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on Sullivan’s conditions were based solely on a telephone conversation with
Sullivan that occurred on August 14, 2016. Id. at 53. On cross examination, Dr.
Bauer admitted that he had not seen Sullivan in person until the hearing, had no
consultations with Sullivan prior to their conversation on August 14, 2016, and was
not involved in any treatments for Sullivan’s alleged traumatic brain injury. Id. at
59-60, 61-62. The Defense did not present any evidence to corroborate the opinions
of its expert witness. On December 28, 2016, the trial court overruled Sullivan’s
motion to suppress the results of the HGN Test. Doc. 12.
{¶7} This case proceeded to trial on April 20, 2017. Trial Tr. 1. At trial,
Cortez testified about his experience in law enforcement and his observations on the
night that he cited Sullivan for operating a vehicle while under the influence. Id. at
29. He testified that he, in his twenty-three-year long career in law enforcement,
had made over four hundred OVI arrests. Id. at 29, 41. He also stated that he has
been an instructor who trains law enforcement officers on how to administer the
HGN Test for the last fifteen years. Id. at 36. After explaining the workings of the
HGN Test, he testified that he had observed six out of six clues in Sullivan’s eyes.
Id. at 58-65, 69. During this portion of his testimony, the following exchange took
place between the prosecutor and Cortez:
[Prosecutor]: What if anything did [seeing six of six clues] mean
to you?
[Cortez]: That means to me that according to the research that
was conducted—
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[Defense Counsel]: Objection.
The Court: Overruled.
[Cortez]: —according to the research that was conducted that is
provided to us through our training that—the original research
was done by the Southern California Research Institute,
contracted by the National Highway Traffic Safety
Administration. That began in 1975. In 1977 they did a field
study only in California and again in 1977 they did another field
and laboratory study and again in 1983 they did one in North
Carolina, Maryland, Washington D.C., and Virginia and as a
result of those particular—
[Defense Counsel]: Objection, your honor, this is hearsay
testimony.
The Court: The question was what did the observations of the six
clues mean to the officer.
[Cortez]: I’m just trying to explain so the jury understands.
The Court: Without getting into the several research matters that
aren’t before the court.
[Prosecutor]: Okay.
The Court: If you want to take him back to the basis of the
training * * *.
[Prosecutor]: I’ll ask a question to help get all of that aside, what
do these results of Mr. Sullivan indicate to you?
[Cortez]: To simply put it, they did research and they found that
when these four clues are—
[Defense Counsel]: Objection.
The Court: Sustained.
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[Prosecutor]: Just if you can, Sergeant Cortez, so having
observed those six clues, three in each eye what did that mean to
you about Mr. Sullivan on May 20, 2016?
[Cortez]: That there was alcohol and/or drugs of abuse.
[Prosecutor]: Where?
[Cortez]: In his system.
Id. at 68-69. On appeal, Sullivan asserts that the State—through this exchange—
improperly bolstered Cortez’s testimony regarding the HGN Test results with
inadmissible hearsay evidence. After Cortez’s testimony, the State rested. Defense
counsel then made a Crim.R. 29 motion, arguing that the State did not prove that
Sullivan had consumed alcohol and, therefore, did not prove that Sullivan had
alcohol in his system on the night of the alleged offense. Id. at 103. The trial court
overruled Sullivan’s Crim.R. 29 motion. Id. at 106.
{¶8} During the Defense’s case-in-chief, Sullivan again called Dr. Bauer as
an expert witness. Id. at 109. During his testimony, Dr. Bauer again stated his belief
that Sullivan had suffered a traumatic brain injury; that the indictors of intoxication
observed by Cortez were actually symptoms of this injury; and that the HGN Test
results were not reliable under these circumstances. Id. at 121, 123, 125-126. On
cross examination, Dr. Bauer admitted that he had never performed a physical
examination of Sullivan and had not viewed Sullivan’s medical history records. Id.
at 136. Dr. Bauer also admitted that his consultation was over the phone; that this
consultation occurred three months after the accident on May 20, 2016; that he had
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never talked with Sullivan in person outside of the courtroom; and that he had not
been involved in any treatments for this alleged traumatic brain injury. Id. at 136,
145. The jury found Sullivan guilty of violating R.C. 4511.19(A)(1)(a) on April
20, 2017. Doc. 34. Sullivan was sentenced at that time. Doc. 22-23.
{¶9} Sullivan filed notice of appeal on April 21, 2017. Doc. 27. On appeal,
he raises four assignments of error, which read as follows:
First Assignment of Error
The trial court erred by denying the motion to suppress the HGN
Test.
Second Assignment of Error
The trial court erred by denying defendant’s Rule 29 motion.
Third Assignment of Error
The trial court erred in overruling objections relating to HGN
research.
Fourth Assignment of Error
The guilty jury verdict was against the manifest weight of the
evidence.
We will consider the first and third assignments of error before considering the
second and fourth assignments of error.
First Assignment of Error
{¶10} In his first assignment of error, Sullivan argues that the trial court erred
in denying his motion to suppress the HGN Test. In this case, Sullivan was in an
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accident prior to having the HGN Test administered. At the suppression hearing,
his expert witness stated that Sullivan had a head injury as the result of the accident
and determined that the HGN Test was not valid under these circumstances.
Sullivan argues that the trial court considered the training of Cortez but failed to
examine whether the physical condition of the defendant invalidated the HGN Test.
On these grounds, Sullivan contends that the HGN Test should have been excluded
since his physical condition made the HGN Test invalid.
Legal Standard
{¶11} Under appellate review, motions to suppress present “mixed questions
of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907
N.E.2d 333, ¶ 20 (3d Dist.).
When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.
Consequently, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible
evidence. Accepting these facts as true, the appellate court must
then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the
applicable legal standard.
(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d
Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8.
{¶12} R.C. 4511.19(D)(4)(b) governs the admissibility of field sobriety tests
and reads, in its relevant part, as follows:
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In any criminal prosecution or juvenile court proceeding for a
violation of division (A) or (B) of this section * * * if a law
enforcement officer has administered a field sobriety test to the
operator of the vehicle involved in the violation and if it is shown
by clear and convincing evidence that the officer administered the
test in substantial compliance with the testing standards for any
reliable, credible, and generally accepted field sobriety tests that
were in effect at the time the tests were administered, including,
but not limited to, any testing standards then in effect that were
set by the national highway traffic safety administration, all of the
following apply:
(i) The officer may testify concerning the results of the field
sobriety test so administered.
(ii) The prosecution may introduce the results of the field sobriety
test so administered as evidence in any proceedings in the
criminal prosecution or juvenile court proceeding.
(iii) If testimony is presented or evidence is introduced under
division (D)(4)(b)(i) or (ii) of this section and if the testimony or
evidence is admissible under the Rules of Evidence, the court shall
admit the testimony or evidence and the trier of fact shall give it
whatever weight the trier of fact considers to be appropriate.
R.C. 4511.19(D)(4)(b).
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but
not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the
syllabus (1954).
{¶13} If a motion to suppress challenges the admission of the results of field
sobriety tests in an OVI case,
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the state must show the requisite level of compliance with
accepted testing standards. Typically, the standards used are
those from the [National Highway Traffic Safety Administration
(“NHTSA”)]. Part of the state’s burden ‘includes demonstrating
what the NHTSA requirements are, through competent testimony
and/or introducing the applicable portions of the NHTSA
manual.’ HGN test results are admissible in Ohio without expert
testimony so long as the proper foundation has been shown both
as to the administering officer’s training and ability to administer
the test and as to the actual technique used by the officer in
administering the test.
(Citations omitted.) State v. Loveridge, 3d Dist. Marion No. 9-06-46, 2007-Ohio-
4493, ¶ 11.
Legal Analysis
{¶14} In this case, Cortez testified at the suppression hearing about the
process of administering the HGN Test to Sullivan. Suppression Hearing Tr. 25-
28. Cortez discussed his experience in administering the HGN Test. Id. at 29-31.
He received his instruction on this field test from the Ohio Peace Officers Training
Academy, which hosted a program conducted by NHTSA. Id. at 25. He also stated
that he is an instructor of this technique and has trained law enforcement officers
across northwest Ohio on how to administer the HGN Test properly. Id. at 25-26.
He then explained the NHTSA guidelines for the HGN Test and detailed the process
of administering this field sobriety test. Id. at 26-28. After discussing how the HGN
Test was performed, he testified as to how he conformed to these standards as he
administered this test with Sullivan. Id. at 29-31. He further discussed the
observations he made while Sullivan took the HGN Test. In this process, Cortez
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testified that he saw six of six clues in Sullivan’s eyes. Id. at 31. Thus, through
Cortez’s testimony, the State demonstrated the requisite level of compliance that is
required for the admissibility of the HGN Test.
{¶15} In response, the Defense called Dr. Bauer as its witness at the
suppression hearing. Id. at 47. Dr. Bauer was a neurologist who testified as an
expert witness. Id. Dr. Bauer testified that he believed that the indicators of
intoxication that Cortez observed during the HGN Test were actually symptoms of
a traumatic brain injury. Id. at 55. The Defense argued in its motion to suppress
that Cortez’s testimony as to the results of the HGN Test should be suppressed
because Cortez was not able to give a medical diagnosis of Sullivan’s condition and
could not, therefore, determine whether Sullivan was suffering from a traumatic
brain injury or was exhibiting symptoms of intoxication. Doc. 8.
{¶16} In its ruling on the Defense’s motion to suppress, the trial court found
that
[Cortez] testified he was familiar with the NHTSA requirements
for administering the HGN and was certified to conduct this
particular test. In addition, he has trained other deputies at the
sheriff’s office, as well as for other law enforcement agencies, on
the administration of the HGN. The sergeant explained how the
test was required to be administered and how he conducted the
test with the defendant.
Doc. 12. The trial court found that Dr. Bauer’s testimony, on the other hand, was
not persuasive. Id. Specifically, the trial court noted that Dr. Bauer had only spoken
to Sullivan over the phone prior to his diagnosis; that Dr. Bauer did not review
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Sullivan’s medical history records; that Dr. Bauer did not examine Sullivan in
person; that Dr. Bauer only considered Sullivan to be a patient “theoretically”; and
that Dr. Bauer did not participate in any treatment of this alleged brain trauma. Id.
{¶17} The record shows that the State presented some information
supporting all of the requirements of R.C. 4511.19(D)(4)(b) during the suppression
hearing. Further, after considering all of the information from the hearing, the trial
court found Dr. Bauer’s testimony not to be persuasive. Doc. 12. This
determination of fact weighed in favor of the State’s case. The trial court’s decision
to overrule Sullivan’s motion to suppress was consistent with its factual
determinations. Thus, the trial court did not err in overruling Sullivan’s motion to
suppress. For this reason, Sullivan’s first assignment of error is overruled.
Third Assignment of Error
{¶18} In his third assignment of error, Sullivan asserts that the trial court
erred by overruling his objections to the admission of testimony regarding HGN
Test research. At trial, Cortez mentioned the existence of several field studies that
were conducted by NHTSA on the HGN Test. Sullivan claims that the trial court
allowed the conclusions of these reports to be admitted as evidence and, in so doing,
allowed impermissible hearsay evidence to be introduced at trial. Sullivan argues
that this hearsay evidence obscured the fact that the six clues that Cortez observed
could have been indicators of multiple conditions aside from intoxication. Sullivan
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further argues that admission of this evidence constituted improper bolstering of
Cortez’s testimony.
Legal Standard
{¶19} Ohio Evid.R. 701 governs what a lay witness is permitted to
include in their testimony and reads as follows:
If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions
or inferences which are (1) rationally based on the perception of
the witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.
Evid.R. 701. Further, under the rules of evidence, “[h]earsay is generally
inadmissible ‘except as otherwise provided by the Constitution of the United States,
by the Constitution of the State of Ohio, by statute enacted by the General Assembly
not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other
rules prescribed by the Supreme Court of Ohio.’” State v. Carter, 3d Dist. Seneca
No. 13-17-10, 2017-Ohio-7443, ¶ 8, quoting Evid.R. 802. Ohio Evid.R. 801(C)
defines hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C).
{¶20} “An appellate court’s review of the admission of evidence is limited
to a determination as to whether the trial court abused its discretion.” State v. Little,
2016-Ohio-8398, 78 N.E.3d 323, ¶ 8 (3d Dist.), quoting Rigby v. Lake Cty., 58 Ohio
St.3d 269, 271, 569 N.E.2d 1056 (1991). “An abuse of discretion is more than an
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error of judgment; rather, it implies that the trial court's decision was unreasonable,
arbitrary, or capricious.” State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-
4349, ¶ 23, quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-
5133, 2012 WL 5397596, ¶ 14. “When applying the abuse of discretion standard, a
reviewing court is not free to merely substitute its judgment for that of the trial
court.” State v. Thompson, 2017-Ohio-792, --- N.E.3d ---, ¶ 11, quoting In re Jane
Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).
Legal Analysis
{¶21} In his brief, Sullivan reports that the trial court erred by allowing the
following statement to be admitted at trial:
The original research done by the Southern California Research
Institute, contracted by the National Highway Traffic Safety
Administration, that began in 1975. In 1977, they did a field study
only in California and again in 1977 they did another field and
laboratory study and again in 1983 they did one in North
Carolina, Maryland, Washington DC and Virginia, and as a
result of those particular * * * [continued on p.69, line 14] they
did research and they found that when these four clues are * * *
that there was alcohol and or drugs of abuse…in his system.
(Brackets original). Appellant’s brief, 10. The appellant claims that admission of
this statement allowed the State to bolster the testimony of Cortez through
impermissible hearsay evidence. The appellant further argues that the “trial court *
* * erred in allowing the continuation of this testimony over the several objections
of defense counsel.” Appellant’s brief, 12.
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{¶22} However, the appellant quotes an edited portion of the transcript in his
brief. A complete read of the transcript shows that the trial court did not allow
hearsay testimony to be admitted at trial. The exchange that is relevant to this
assignment of error reads as follows:
[Prosecutor]: What if anything did [seeing six of six clues] mean
to you?
[Cortez]: That means to me that according to the research that was
conducted—
[Defense Counsel]: Objection.
The Court: Overruled.
[Cortez]: —according to the research that was conducted that is
provided to us through our training that—the original research was
done by the Southern California Research Institute, contracted by
the National Highway Traffic Safety Administration. That began in
1975. In 1977 they did a field study only in California and again in
1977 they did another field and laboratory study and again in 1983
they did one in North Carolina, Maryland, Washington D.C., and
Virginia and as a result of those particular—
[Defense Counsel]: Objection, your honor, this is hearsay
testimony.
The Court: The question was what did the observations of the six
clues mean to the officer.
[Cortez]: I’m just trying to explain so the jury understands.
The Court: Without getting into the several research matters that
aren’t before the court.
[Prosecutor]: Okay.
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The Court: If you want to take him back to the basis of the
training * * *.
[Prosecutor]: I’ll ask a question to help get all of that aside, what
do these results of Mr. Sullivan indicate to you?
[Cortez]: To simply put it, they did research and they found that
when these four clues are—
[Defense Counsel]: Objection.
The Court: Sustained.
[Prosecutor]: Just if you can, Sergeant Cortez, so having
observed those six clues, three in each eye what did that mean to
you about Mr. Sullivan on May 20, 2016?
[Cortez]: That there was alcohol and/or drugs of abuse.
[Prosecutor]: Where?
[Cortez]: In his system.
(Emphasis added). Trial Tr. 68-69.
{¶23} The trial judge did overrule the Defense’s first objection to the
statements about what the HGN Test results signified to Cortez. Id. at 68. From
the transcript, it appears that Cortez was about to state that he based his opinions or
inferences on studies that he had come across in his professional career. Id. At the
time that the trial judge overruled the Defense’s objection, it is not apparent from
that transcript that Cortez intended to mention specific statements from these
studies. Id. After the trial court overruled the Defense’s first objection, Cortez made
statements about several studies that have been conducted in the past. Id. at 69.
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Before Cortez could mention any of the statements contained within these studies,
the Defense objected. In response, the trial court sustained this second objection of
the Defense. Id. When Cortez again exhibited an intention to reference statements
contained in the field study reports, the trial court again sustained the third objection
from the Defense before Cortez could state the results of the study. Id. Due to the
timely objections of Defense counsel and the rulings of the trial court, no statistics,
statements, or conclusions from these studies were admitted at trial. Thus, no
hearsay was admitted as the trial court sustained the Defense’s objections before
Cortez made impermissible statements.
{¶24} After the third objection, the trial court instructed Cortez not to discuss
the conclusions of studies not before the court, and the prosecutor clarified the
question. Id. Cortez then stated what he believed the HGN Test results signified:
he testified that he believed, on the basis of the results of this field sobriety test,
“[t]hat there was alcohol and/or drugs of abuse * * * in [Sullivan’s] system.” Id. at
68-69. The appellant presents these statements as though they were derived from
the field studies that Cortez referenced when they, in fact, represented Cortez’s own
opinions and inferences. Thus, this testimony, being from a lay witness, was
admissible as these statements were “opinions or inferences” that were “rationally
based on the perception of the witness * * *.” Evid.R. 701.
{¶25} Ultimately, the Defense’s objections were sustained, and the trial court
did not permit hearsay testimony to be admitted. Thus, the appellant cannot show
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that the State improperly bolstered its witness’s testimony with hearsay evidence.
Appellant also cannot demonstrate prejudice as the trial court sustained the
Defense’s objections and as the hearsay evidence was not admitted. For this reason,
Sullivan’s third assignment of error is overruled.
Second Assignment of Error
{¶26} In his second assignment of error, Sullivan argues that his Crim.R. 29
motion should have been granted because the State did not prove that he had alcohol
in his system at the time of his car accident. In so doing, he claims that the State
failed to establish an essential element of the crime with which he was charged. He
argues that the State’s case against him fails in the absence of proof that he
consumed alcohol prior to his accident. For this reason, he argues that the trial court
erred in denying his Crim.R. 29 motion for acquittal.
Legal Standard
{¶27} Crim.R. 29 reads, in its relevant part, as follows:
(A) Motion for Judgment of Acquittal. The court on motion of a
defendant or on its own motion, after the evidence on either side
is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of
such offense or offenses.
Crim.R. 29(A). “An appellate court reviews a denial of a Crim.R. 29 motion for
judgment of acquittal using the same standard that is used to review a sufficiency of
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the evidence claim. State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-
544, ¶ 11, quoting State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).
{¶28} “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. Pierce, 3d Dist.
Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684
N.E.2d 668 (1997), fn. 4. Under the sufficiency of the evidence standard, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Potts, 2016-Ohio-5555, 69
N.E.3d 1227, ¶ 12 (3d Dist.), quoting Jenks at paragraph two of the syllabus.
{¶29} R.C. 4511.19(A)(1)(a) prohibits operating a motor vehicle under the
influence of alcohol and reads as follows:
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the
following apply:
(a) The person is under the influence of alcohol, a drug of abuse,
or a combination of them.
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R.C. 4511.19(A)(1)(a). Thus, in order for an appellate court to make a finding that
the evidence supporting a conviction for violating R.C. 4511.19(A)(1)(a) was
legally sufficient, the record must show that the State presented evidence that the
defendant (1) was operating a “vehicle, streetcar, or trackless trolley” (2) in the State
of Ohio (3) while he or she was “under the influence of alcohol, a drug of abuse, or
a combination of them.” R.C. 4511.19(A)(1)(a).
{¶30} In establishing the third element—that the defendant was under the
influence of alcohol—the State “need not establish a threshold level of alcohol
concentration in the defendant's body. It must, however, prove that the defendant
operated a vehicle when his faculties were appreciably impaired by the consumption
of alcohol.” State v. Lowman, 82 Ohio App.3d 831, 836, 613 N.E.2d 692, 695 (12th
Dist.1992), citing State v. Bakst, 30 Ohio App.3d 141, 145, 506 N.E.2d 1208, 1213
(1st Dist.1986); State v. Spicer, 12th Dist. Preble App. No. CA90-11-022, 1991 WL
164591 (Aug. 26, 1991).
{¶31} “Whether there is legally sufficient evidence to sustain a verdict is a
question of law.” State v. Schaeffer, 2015-Ohio-3531, 41 N.E.3d 813, ¶ 14 (3d
Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
For this reason, “[i]n deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” Potts at ¶ 12, quoting State v. Jones, 1st Dist.
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Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v.
Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.).
Legal Analysis
{¶32} In its argument, the Defense alleges that the State failed to produce
evidence that establishes Sullivan was “under the influence of alcohol, a drug of
abuse, or a combination of them,” which is the third element of the offense with
which Sullivan was charged. R.C. 4511.19(A)(1)(a). Since Sullivan has confined
his argument to challenging the State’s case on this element alone, our analysis will
be limited to determining whether the State produced evidence establishing that
Sullivan was “under the influence of alcohol or a drug of abuse.”
{¶33} In this case, the arresting officer testified at trial that Sullivan had been
in an accident where he missed a stop sign; had slow response times in answering
questions; struggled to maintain his balance; held onto the cruiser to stabilize
himself; made very deliberate movements; and was unaware of where he was. Id.
at 53, 55. Cortez also testified that Sullivan smelled strongly of an alcoholic
beverage; had a flushed face; and had blood shot glassy eyes. Id. at 53. On the
basis of these observations, the officer requested that Sullivan submit to an HGN
Test. Id. at 56. With Sullivan’s consent, Cortez administered the HGN Test and, in
this process, observed six out of the six clues in Sullivan’s eyes. Id. at 56. At trial,
Cortez discussed his experience, which included making 400 arrests for OVI
violations over a period of twenty-three years. Id. at 23. He also testified about his
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familiarity with the HGN Test, discussing his certifications, experience, and status
as an instructor of this technique to law enforcement trainees. Id. at 58-65.
{¶34} These observations combined with the HGN Test results and the
strong smell of an alcoholic beverage were the evidence of the third element of this
offense that the State presented. In so doing, the State used circumstantial evidence
to support the third element of this offense. Circumstantial evidence can be
sufficient to establish that a driver was under the influence of alcohol. See State v.
Norris, 168 Ohio App.3d 572, 2006-Ohio-4325, 861 N.E.2d 148, ¶ 16 (12th Dist.)
(holding that “[c]ircumstantial evidence and direct evidence have the same
probative value, and in some instances, certain facts can be established only by
circumstantial evidence.”). The Defense points out that Sullivan did not admit that
he had consumed alcohol earlier on the day of his accident. However, this fact does
not mean that the trial court, in ruling on the Defense’s Crim.R. 29 motion for
acquittal, could not make a reasonable inference from the evidence presented at trial
that Sullivan had consumed alcohol. State v. Caldwell, 10th Dist. Franklin No.
02AP-576, 2003-Ohio-271, ¶ 26. Compare State v. Joy, 5th Dist. Stark No. 2005-
CA-00235, 2006-Ohio-1923, ¶ 122.
{¶35} Viewing all of the evidence in the light most favorable to the State, a
rational trier of fact could have reasonably found that the State established that
Sullivan was under the influence of alcohol. Since the State provided evidence for
each of the essential elements of this crime that, if believed, could persuade a
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reasonable trier of fact that Sullivan was guilty beyond a reasonable doubt, his
conviction for operating a vehicle while under the influence is supported by
sufficient evidence. Thus, the trial court did not err in denying Sullivan’s Crim.R.
29 motion for acquittal. Accordingly, Sullivan’s second assignment of error is
overruled.
Fourth Assignment of Error
{¶36} In his fourth assignment of error, Sullivan argues that the jury returned
a verdict against the manifest weight of the evidence. In particular, he alleges that
the jurors disregarded a portion of the jury instructions that required them to find
that the defendant had “consumed some alcohol” in order to return a guilty verdict.
Sullivan asserts that the jury clearly lost its way as no evidence was presented that
he had consumed alcohol. Further, he alleges that the guilty verdict demonstrates
that the jurors disregarded the testimony of the Defense’s expert. He concludes his
argument by asserting that a guilty verdict under these circumstances was a manifest
miscarriage of justice. For these reasons, he requests that this Court reverse his
conviction.
Legal Standard
{¶37} When “deciding whether a conviction is against the manifest weight
of the evidence, an appellate court determines whether the state has appropriately
carried its burden of persuasion.” State v. Brentlinger, 2017-Ohio-2588, --- N.E.3d
---, ¶ 36 (3d Dist.), quoting State v. Blanton, 121 Ohio App.3d 162, 169, 699 N.E.2d
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136 (3d Dist.1997). “Unlike our review of the sufficiency of the evidence, an
appellate court's function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict.” State v. Plott,
2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). In the manifest weight analysis, “the
appellate court sits as a ‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No.
13-16-30, 2017-Ohio-2916, ¶ 17, quoting Thompkins at 389. On appeal, courts
must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the
factfinder “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a
new trial ordered.”
(Citations omitted). Plott, supra, at ¶ 73.
{¶38} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
witnesses.” State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014
WL 6725795, ¶ 7. “Only in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court's
judgment.” State v. Haller, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
Legal Analysis
{¶39} As with his sufficiency of the evidence challenge to his conviction,
Sullivan focuses his manifest weight argument on the third element of this offense,
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which requires a finding that the defendant was “under the influence of alcohol, a
drug of abuse, or a combination of them” to be convicted under R.C.
4511.19(A)(1)(a). For this reason, our analysis will focus on whether the evidence
weighs heavily against a finding that Sullivan was “under the influence of alcohol”
at the time of his accident on May 20, 2016. R.C. 4511.19(A)(1)(a).
{¶40} In this case, the State and the Defense each called one witness. For its
case-in-chief, the State called Cortez to testify as to his observations on the night of
Sullivan’s accident. Previously, in reviewing the record to determine whether
Sullivan’s conviction was supported by sufficient evidence, we found that Cortez’s
testimony, if believed, supplied evidence, which could reasonably be believed, for
each of the elements of operating a vehicle while under the influence. Under the
manifest weight analysis, we reincorporate Cortez’s above testimony here regarding
his observations, the results of the HGN Test, and his experience in law
enforcement. We add, for this analysis, the fact that Cortez chose not to perform
further field sobriety tests after he observed six out of six clues in Sullivan’s eyes
during the HGN Test. The reason Cortez gave for this was that the weather was
becoming inclement and was not suitable, in his opinion, for further field sobriety
testing.
{¶41} For its case-in-chief, the Defense called an expert witness, Dr. Bauer,
to testify. Dr. Bauer testified that he was a neurosurgeon who was licensed to
practice medicine in the United States, Ireland, and the United Kingdom. During
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his testimony, Dr. Bauer stated that he believed Sullivan had suffered from a
traumatic brain injury as the result of the impact from the car accident. In his expert
opinion, Dr. Bauer explained that he believed the indicators of intoxication that
Cortez reported to the court were, in fact, symptoms of this trauma. This diagnosis
was made by Dr. Bauer after he had a half an hour telephone conversation with
Sullivan that occurred nearly three months after the accident. He admitted that he
had not performed a physical examination of Sullivan, did not meet with Sullivan
in person prior to making his diagnosis, had not reviewed Sullivan’s medical history
records, and had not been involved in any treatment for this alleged brain injury.
{¶42} After considering the evidence on the basis of its weight and
credibility, we do not find that the evidence weighs manifestly against a finding of
guilty. In our review of the record, we find that the jury could have reasonably
found that Dr. Bauer’s expert testimony was not persuasive and that Cortez’s
testimony was credible. A finding of guilty is not against the manifest weight of the
evidence simply because an expert witness’s testimony is found to be unpersuasive
by a jury. State v. Waugh, 10th Dist. Franklin No. 07AP-619, 2008-Ohio-2289, ¶
92-95, quoting Croft v. State Farm Auto Ins. Co., 3d Dist. Allen No. 1-01-72, 2002
WL 18665, *3 (January 8, 2002). Further, we do not find any indication in the
record that the jury lost its way or committed a miscarriage of justice in returning a
verdict of guilty in this case. For this reason, Sullivan’s fourth assignment of error
is overruled.
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Conclusion
{¶43} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Municipal Court of Findlay, Ohio is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/hls
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State v. Sullivan
Court: Ohio Court of Appeals
Date filed: 2017-12-11
Citations: 2017 Ohio 8937, 102 N.E.3d 86
Copy CitationsCombined Opinion