Ohio Appellate Reports
Unpublished
STATE v. KURJIAN, Unpublished Decision (12-18-2006)
2006-Ohio-6669 STATE OF OHIO, Appellee v. SUNNY C. KURJIAN,
JR., Appellant. C. A. No.06CA0010-M. Court of Appeals of
Ohio, Ninth District. Dated: December 18, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from Judgment Entered In the Court of
Common Pleas County of Medina, Ohio Case No. 04 CR 0491.
MICHAEL J. CALLOW, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and RUSSELL HOPKINS,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BOYLE, Judge.
This cause was heard upon the record in the trial court.
Each error assigned has been reviewed and the following
disposition is made:
{¶ 1} Appellant, Sunny Kurjian, Jr., appeals from
the conviction entered in the Medina County Court of Common
Pleas. This Court affirms.
I.
{¶ 2} On September 29, 2004, the Medina County Grand
Jury indicted Appellant on one count of driving under the
influence of drugs or alcohol with prior offenses, in
violation of R.C. 4511.19(A)(1), a third-degree felony, and
in violation of R.C. 4511.99.
{¶ 3} This charge arose from a traffic stop on
August 9, 2004. Upon leaving the Medina Post of the State
Highway Patrol, Trooper Foxx received a call from dispatch
regarding a white car traveling at a high rate of speed
just north of the Post. As Trooper Foxx reached the
intersection of Frantz and Hamilton Roads, he observed a
speeding white car matching the description given by
dispatch. Trooper Foxx visually estimated Appellant’s speed
to be 75 m.p.h. to 80 m.p.h. The speed limit in that area
was 50 m.p.h. Just before passing Trooper Foxx, Appellant
applied his brakes with enough force to cause the front of
the car to lunge forward into the road and to swerve left
of center. Trooper Foxx pulled out behind Appellant and
turned on his lights to initiate the traffic stop.
Appellant turned left into a private driveway, but did not
pull in far enough for Trooper Foxx to also park his car.
Trooper Foxx had to instruct Appellant to pull further into
the driveway.
{¶ 4} Trooper Foxx approached Appellant inside the
parked car and asked for his driver’s license. Appellant
was unable to produce his driver’s license. Trooper Foxx
smelled the odor of alcohol coming from Appellant and
observed that Appellant’s eyes were bloodshot and glassy.
Additionally, Trooper Foxx noted that Appellant’s speech was
slurred and he was rambling about how he was an informant
for the FBI and Sheriff’s Office.
{¶ 5} Initially, Appellant was compliant. However,
his demeanor turned belligerent and uncooperative when
Trooper Foxx asked him to step out of the car. Based upon
Appellant’s change in demeanor, Trooper Foxx pulled his
retractable baton out and had it by the side of his body.
Appellant responded by verbally threatening to accost
Trooper Foxx. Appellant refused to take his hands out of
his pockets per Trooper Foxx’s request. Then Appellant
began waiving his hands and arms above his head. Appellant
only calmed down after Trooper Foxx retrieved his taser
gun. At this point Trooper Foxx arrested Appellant for
driving under the influence.
{¶ 6} At his arraignment, Appellant pled not guilty
by reason of insanity and filed a motion for a competency
evaluation and a motion to suppress. A competency
evaluation was performed in which Appellant was found
incompetent and ordered to undergo treatment. The motion to
suppress was held in abeyance until such time that
Appellant’s competency was restored. Three months later,
Appellant was deemed competent. The trial court proceeded
with a hearing on Appellant’s motion to suppress. The trial
court found that there was reasonable suspicion for the
stop and that probable cause existed to arrest Appellant
without a warrant. Thus, Appellant’s motion to suppress was
denied.
{¶ 7} The matter proceeded to a jury trial on
November 14, 2005. The jury returned a guilty verdict for
driving under the influence of drugs or alcohol with prior
offenses. The trial court sentenced Appellant to two years
in prison and suspended his driver’s license for ten years.
{¶ 8} Appellant timely appealed his conviction,
asserting three assignments of error for review. For ease
of review, we will address the assignments of error out of
order and combine the first and second assignments of
error.
II.
A.
Third Assignment of Error
“THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS IN THAT THE STATE OF OHIO LACKED REASONABLE
SUSPICION FOR AN INVESTIGATORY STOP. [SIC] LACKED
REASONABLE SUSPICION TO PROCEED WITH THE INVESTIGATORY
STOP, AND LACKED PROBABLY [SIC] CAUSE TO ARREST APPELLANT
FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF
ALCOHOL AND/OR DRUGS IN VIOLATION OF REVISED CODE
4511.19(A)(1)(a). THEREFORE, ANY EVIDENCE AND INFORMATION
SEIZED FROM HIM WAS IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS, AND SHOULD HAVE BEEN SUPPRESSED.”
{¶ 9} Appellant’s third assignment of error alleges
that based on Trooper Foxx’s testimony there were no
reasonable grounds to stop Appellant. Further, Appellant
alleges that Trooper Foxx did not have probable cause to
arrest Appellant for driving under the influence. Appellant
argues that his behavior during the traffic stop was
attributable to his mental health issues and not being under
the influence of alcohol or drugs. We disagree.
{¶ 10} A motion to suppress evidence under the
Fourth Amendment involves mixed questions of law and fact.
Ornelas v. United States (1996), 517 U.S. 690, 696; State
v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, at ¶
12. Therefore, this Court grants deference to the trial
court’s findings of fact, but conducts a de novo review of
whether the trial court applied the appropriate legal
standard to those facts. Ornelas, 517 U.S. at 699. Thus, we
review “findings of historical fact only for clear error
and give due weight to inferences drawn from those
facts by resident judges and local law enforcement
officers.” State v. Jones, 9th Dist. No. 20810,
2002-Ohio-1109, at *1, quoting Ornelas, 517 U.S. at 699.
Because the trial court “is in the best position to resolve
questions of fact and evaluate credibility of witnesses[,
an] appellate court, therefore, is bound to accept a trial
court’s factual findings that are supported by competent,
credible evidence.” (Internal citations and quotations
omitted.) Akron v. Bowen, 9th Dist. No. 21242,
2003-Ohio-830, at ¶ 5. After allowing for the
officers’ reasonable inferences and acknowledging the trial
court’s superior position in weighing the facts, we “decide
whether, under a standard of objective reasonableness,
those facts would give rise to a reasonable suspicion
justifying a stop or probable cause to search.” (Internal
citations and quotations omitted.) State v. Reed (Aug. 21,
1996), 9th Dist. No. 17635, at *2. When addressing the
question of reasonable suspicion to make a traffic stop and
probable cause to arrest, this court must review the trial
court’s determinations de novo. Ornelas, 517 U.S. at 699.
1. Reasonable Suspicion
{¶ 11} Before a law enforcement officer may stop a
vehicle, the “officer must have reasonable suspicion, based
upon specific and articulable facts, that an occupant is or
has been engaged in criminal activity. State v. Trbovich
(July 3, 1996), 9th Dist. No. 17613, at *2. Reasonable
suspicion constitutes something less than probable cause.
State v. Carlson (1995), 102 Ohio App.3d 585, 590. “[I]f the
specific and articulable facts available to an officer
indicate that a motorist may be committing a criminal act,
which includes the violation of a traffic law, the officer
is justified in making an investigative stop.” Id. at 593.
“No further inquiry beyond the requirement of reasonable
suspicion is necessary or warranted.” Id.
{¶ 12} The trial court must look at the totality of
the circumstances in determining if a stop is reasonable.
State v. Anderson (1995), 100 Ohio App.3d 688, 692. “[T]he
circumstances surrounding the stop must `be viewed through
the eyes of a reasonable and cautious police officer on the
scene, guided by his experience and training.'” State v.
Bobo (1988), 37 Ohio St.3d 177, 179, quoting United States
v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. The court must
weigh the facts of the case against an objective standard:
“[W]ould the facts available to the officer at the moment
of the seizure or the search `warrant a man of reasonable
caution in the belief’ that the action taken was
appropriate?” Terry v. Ohio (1968), 392 U.S. 1, 21-22. The
officer’s subjective motives in stopping a vehicle are
irrelevant whenever a reasonable officer could stop the
same vehicle for a traffic violation. Whren v. United
States (1996), 517 U.S. 806, 809, 813.
{¶ 13} We begin by clarifying what portion of the
record is applicable in determining the issues of
reasonable suspicion and probable cause. Both Appellant and
Appellee improperly rely on portions of the trial
transcript to support their positions with regard to the
ruling on the motion to suppress. The record in this case
contains a transcript of the suppression hearing, which was
the only evidence available to the trial court at the time
it ruled on the motion to suppress. Accordingly, our review
of the third assignment of error, which addresses the trial
court’s denial of Appellant’s motion to suppress, is limited
to the testimony produced at the suppression hearing. See
State v. Wright, 7th Dist. No. 03 MA 112, 2004-Ohio-6802,
at ¶ 30. We will not consider the testimony procured
during the trial in rendering our decision on this
assignment of error. Id.
{¶ 14} The only testimony presented at the
suppression hearing was from Trooper Foxx, the officer
initiating the traffic stop and arresting Appellant.
Trooper Foxx testified that he received a call from
dispatch regarding a car traveling at a high rate of speed.
Trooper Foxx encountered Appellant at the intersection of
Frantz and Hamlin Roads. While stopped at the intersection,
Trooper Foxx observed Appellant’s white car approach the
intersection at approximately 75 m.p.h. to 80 m.p.h. The
speed limit in that area was 50 m.p.h. Trooper Foxx
admitted Appellant’s speed was only an estimation based
upon his training and experience.
{¶ 15} As Appellant’s vehicle approached the
intersection, he heavily applied the brakes causing the
nose of the car to dive forward toward the road.
Additionally, Appellant’s car swerved left of center due to
the hard braking.
{¶ 16} Based on the above testimony Trooper Foxx had
observed at least two traffic violations (speeding and left
of center), thus giving Trooper Foxx reasonable suspicion
to initiate a traffic stop. See Carlson, 102 Ohio App.3d at
593. Accordingly, we find there were reasonable grounds for
Trooper Foxx to initiate a traffic stop of Appellant.
2. Probable Cause
{¶ 17} This Court has held that “[p]robable cause
[to] arrest for driving under the influence exists if, at
the moment of the arrest, the totality of the facts and
circumstances within the officer’s knowledge and of which
he had reasonably trustworthy information were sufficient
to warrant a prudent person in believing that the suspect
had violated R.C. 4511.19.” (Internal quotations omitted.)
In re V.S., 9th Dist. No. 22632, 2005-Ohio-6324, at
¶ 13, quoting State v. Gunther, 4th Dist. No.
04CA25, 2005-Ohio-3492, at ¶ 20. In order to have
valid probable cause to arrest a driver for driving under
the influence, there must be observations by the officer of
indicia of alcohol consumption. State v. Rouse, 7th Dist.
No. 04 BE 53, 2005-Ohio-6328, at ¶ 34. However,
there is no prerequisite that an officer observe erratic
driving in order to effectuate an arrest for driving under
the influence. Id. at ¶ 35.
{¶ 18} Further, “[t]he totality of the facts and
circumstances can support a finding of probable cause to
arrest even where no field sobriety tests were administered
* * *.” State v. Homan (2000), 89 Ohio St.3d 421, 427.
“Field sobriety tests are not even a necessary factor in
order to arrest or convict for OMVI.” (Internal quotations
omitted.) State v. Stephenson, 4th Dist. No. 05CA30,
2006-Ohio-2563, at ¶ 19, quoting Rouse at ¶
15. Accordingly, “the standard for probable cause does not
require a prima facie showing of criminal activity; rather,
the standard requires only a showing that a probability of
criminal activity exists.” (Internal quotations omitted.)
State v. Tejada, 9th Dist. No. 20947, 2002-Ohio-5777, at
¶ 8, quoting State v. Young (2001), 146 Ohio App.3d
245, 254.
{¶ 19} Trooper Foxx testified that upon approaching
Appellant, he observed Appellant’s eyes as being bloodshot
and glassy and there was an odor of alcohol emitting from
inside the car. Additionally, Trooper Foxx noted that
Appellant’s speech was slurred and he was rambling about
being an informant for the FBI and Sheriff’s Office.
Appellant was unable to produce his driver’s license upon
Trooper’s Foxx’s request.
{¶ 20} Initially, Appellant’s demeanor was “laid
back.” However, Appellant became “belligerent” and
“uncooperative” when Trooper Foxx asked him to step out of
the car. In defiance of Trooper Foxx’s commands, Appellant
refused to remove his hands from his pockets and then began
raising his arms above his head. Additionally, Appellant
verbally threatened Trooper Foxx by stating, “I’m going to
kick your a**.”
{¶ 21} Appellant argues that the above observations
by Trooper Foxx are attributable to Appellant’s mental
health issues and not evidence of alcohol impairment. While
this may be a plausible explanation of Appellant’s
statements regarding working for the FBI and the Sheriff’s
Office or his belligerent behavior, this does not explain
the odor of alcohol and bloodshot and glassy eyes. Further,
Trooper Foxx did not have any knowledge of Appellant’s
mental health issues at the time of arrest. Based upon
Trooper Foxx’s knowledge of Appellant at the time of the
arrest, Appellant’s belligerent behavior and rambling
statements, in addition to his slurred speech, bloodshot
and glassy eyes and odor of alcohol were all factors
reasonably attributable to alcohol impairment.
{¶ 22} Lastly, Appellant asserts that Trooper Foxx
did not have probable cause and instead arrested Appellant
based upon an inarticulable hunch. Specifically,
Appellant’s argument relies upon the blatant
mischaracterization of Trooper Foxx’s testimony by taking
the phrase “spidy sense” out of context. During re-cross
examination, Appellant’s counsel inquired why Trooper Foxx
did not perform field sobriety tests.
“Q: Did you ask him to do any field sobriety tests?
“A: Well, like I explained to the Court, I sensed that
there was going to be a confrontation.
“Q: So you just sensed this. There was an inner sense?
“A: I’m not going to call it a `spidy sense,’ or nothing
like that, but I can sense, you know, from body language
that something’s getting ready to happen.” (Emphasis
added.)
This exchange was further clarified during re-direct
examination:
“Q: Okay. Now, that body language and that sense you got,
is that based on your training and experience?
“A: More, I would say, experience.”
Taken in context, the suppression hearing transcript shows
that Trooper Foxx was not acting upon an inarticulable
hunch or “spidy sense.” Instead, Trooper Foxx was observing
Appellant’s behavior, body language, and statements in
conjunction with the odor of alcohol and bloodshot and
glassy eyes. These observations were sufficient to form
probable cause for a driving under the influence arrest.
{¶ 23} Based upon the suppression hearing record,
Trooper Foxx observed numerous indicia of alcohol
consumption: bloodshot and glassy eyes, the odor of
alcohol, slurred and rambling speech, and belligerent
behavior. See Rouse at ¶ 34.This Court finds that the
totality of the facts and circumstances available to
Trooper Foxx “were sufficient to warrant a prudent person
in believing that the suspect had violated R.C. 4511.19.”
In re V.S. at ¶ 13. Therefore, probable cause existed
to arrest Appellant for driving under the influence.
{¶ 24} Appellant’s third assignment of error is
overruled.
B.
First Assignment of Error
“THE STATE OF OHIO FAILED TO OFFER SUFFICIENT EVIDENCE TO
PROVE THAT APPELLANT’S ABILITY TO DRIVE WAS IMPAIRED BY
ALCOHOL.”
Second Assignment of Error
“APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
{¶ 25} Appellant’s first and second assignments of
error allege that his conviction of driving under the
influence of drugs or alcohol with prior offenses was not
supported by sufficient evidence and was against the
manifest weight of the evidence. We disagree.
{¶ 26} “The legal concepts of sufficiency of the
evidence and weight of the evidence are both quantitatively
and qualitatively different.” State v. Thompkins (1997), 78
Ohio St.3d 380, paragraph two of the syllabus. As a matter
of appellate review, they involve different means and ends.
See id. at 386-89. They also invoke different inquiries
with different standards of review. Id.; State v. Smith
(1997), 80 Ohio St.3d 89, 113. The difference, in the
simplest sense, is that sufficiency tests the burden of
production while manifest weight tests the burden of
persuasion. Thompkins, 78 Ohio St.3d at 390 (Cook, J.,
concurring).
{¶ 27} Sufficiency is a question of law. Thompkins,
78 Ohio St.3d at 386; Smith, 80 Ohio St.3d at 113. If the
State’s evidence was insufficient as a matter of law, then
on appeal, a majority of the panel may reverse the trial
court. Thompkins, 78 Ohio St.3d at paragraph three of the
syllabus, citing Sec. 3(B)(3), Art. IV, Ohio Constitution.
Because reversal for insufficiency is effectively an
acquittal, retrial is prohibited by double jeopardy.
Thompkins, 78 Ohio St.3d at 387, citing Tibbs v. Florida
(1982), 457 U.S. 31, 47. Under this construct, the State
has failed its burden of production, and as a matter of due
process, the issue should not even have been presented to
the jury. Thompkins, 78 Ohio St.3d at 386; Smith, 80 Ohio
St.3d at 113.
{¶ 28} In a sufficiency analysis, an appellate court
presumes that the State’s evidence is true (i.e., both
believable and believed), but questions whether the
evidence produced satisfies each of the elements of the
crime. Thompkins, 78 Ohio St.3d at 390 (Cook, J.,
concurring). “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, citing Jackson v.
Virginia (1979), 443 U.S. 307, 319. This standard requires
no exhaustive review of the record, no comparative weighing
of competing evidence, and no speculation as to the
credibility of any witnesses. Instead, the appellate court
“view[s] the evidence in a light most favorable to the
prosecution.” Id. “[T]he weight to be given the evidence
and the credibility of witnesses are primarily for the
trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d
230, paragraph one of the syllabus.
{¶ 29} Manifest weight is a question of fact.
Thompkins, 78 Ohio St.3d at 387. If the trial court’s
judgment was against the manifest weight of the evidence,
then an appellate panel may reverse the trial court. Id. In
the special case of a jury verdict, however, the panel must
be unanimous in order to reverse. Id. at paragraph four of
the syllabus, citing Sec. 3(B)(3), Art. IV, Ohio
Constitution. Because reversal on manifest weight grounds
is not a question of law, it is not an acquittal but
instead is akin to a deadlocked jury from which retrial is
allowed. Id. at 388, citing Tibbs, 457 U.S. at 42. Under
this construct, the appellate panel “sits as [the]
`thirteenth juror’ and disagrees with the jury’s resolution
of the conflicting testimony,” finding that the State has
failed its burden of persuasion. Id.
{¶ 30} When a defendant asserts his conviction is
against the manifest weight of the evidence,
“an appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Otten (1986),
33 Ohio App.3d 339, 340.
“A court reviewing questions of weight is not required to
view the evidence in a light most favorable to the
prosecution, but may consider and weigh all of the evidence
produced at trial.” Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring). This discretionary power should be invoked
only in extraordinary circumstances when the evidence
presented weighs heavily in favor of the defendant. Otten,
33 Ohio App.3d at 340.
{¶ 31} In application, this may be stated as a
“[c]ourt will not overturn a judgment based solely on the
fact that the jury preferred one version of the testimony
over the other.” State v. Lee, 158 Ohio App.3d 129,
2004-Ohio-3946, at ¶ 15, quoting State v. Hall (Sept.
20, 2000), 9th Dist. No. 19940, at *5. Nor is a conviction
“against the manifest weight of the evidence merely because
there is conflicting evidence before the trier of fact.”
State v. Urbin, 148 Ohio App.3d 293, 2002-Ohio-3410, at
¶ 26, quoting State v. Haydon (Dec. 22, 1999), 9th
Dist. No. 19094, at *7. Moreover, a conviction may withstand
evidence that is susceptible to some plausible theory of
innocence. State v. Figueroa, 9th Dist. No. 22208,
2005-Ohio-1132, at ¶ 7, citing Jenks, 61 Ohio St.3d
at 272.
{¶ 32} Finally, although sufficiency and manifest
weight are different legal concepts, manifest weight may
subsume sufficiency in conducting the analysis; that is, a
finding that a conviction was supported by the manifest
weight of the evidence necessarily includes a finding of
sufficiency. State v. Roberts (Sept. 17, 1997), 9th Dist.
No. 96CA006462, at *2. “Thus, a determination that a
conviction is supported by the weight of the evidence will
also be dispositive of the issue of sufficiency.” Lee at
¶ 18, citing Cuyahoga Falls v. Scupholm (Dec. 13,
2000), 9th Dist. Nos. 19734 and 19735, at *3. Accord Urbin
at ¶ 31. In the present case, manifest weight is
dispositive of Appellant’s first and second assignments of
error.
{¶ 33} Appellant was convicted of driving while
under the influence of alcohol or drugs in violation of
R.C. 4511.19(A)(1)(a), which states as follows:
“No 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.”
The disputed element here is under the influence of alcohol;
the element of operation of a vehicle is not at issue.
{¶ 34} This Court has previously addressed the type
of evidence required to support a conviction pursuant to
R.C. 4511.19(A)(1).
“[I]n DUI prosecutions, the state is not required to
establish that a defendant was actually impaired while
driving, but rather, need only show an impaired driving
ability. `To prove impaired driving ability, the state can
rely on physiological factors (e.g., odor of alcohol,
glossy or bloodshot eyes, slurred speech, confused
appearance) to demonstrate that a person’s physical and
mental ability to drive was impaired.’ Furthermore,
`[v]irtually any lay witness, without special
qualifications, may testify as to whether or not an
individual is intoxicated.'” (Internal citations
omitted.) State v. Slone, 9th Dist. No. 04CA0103-M,
2005-Ohio-3325, at ¶ 9.
{¶ 35} Based on a review of the record, this Court
finds it reasonable that the jury could have believed the
testimony and evidence proffered by the State. The jury
heard testimony from two witnesses. The State produced the
arresting officer, Trooper Foxx, while the defense produced
Appellant’s treating psychologist, Dr. Van Auken.
{¶ 36} Trooper Foxx testified that he observed
Appellant driving a white car at a high rate of speed on
Hamilton Road. Trooper Foxx estimated Appellant’s speed at
75 m.p.h., well in excess of the 50 m.p.h. limit. Trooper
Foxx described the line of sight at the intersection to be
a quarter of a mile. However, Appellant did not apply his
brakes until he was approximately 25 to 40 feet from Trooper
Foxx.
{¶ 37} Appellant’s reaction to Trooper Foxx at the
intersection was to slam on his brakes hard enough to lock
them up causing the front end of the car to nose dive into
the pavement and to swerve left of center. Trooper Foxx
testified that it is normal for drivers to brake and slow
down upon seeing a patrol car. However, drivers do not
typically slam on the brakes and cross over the center
line. On cross-examination, Appellant’s counsel challenged
the loss of control of the vehicle:
“Q: And you would agree that going seventy-five miles an
hour, slamming on the brakes, veering over and keeping
control of the vehicle takes pretty quick reflexes,
correct? “A: He did a good job of that, but — “Q:
Thank you.” (Emphasis added.)
While Trooper Foxx conceded that Appellant “did a good job,”
Appellant’s counsel interrupted Trooper Foxx’s answer.
{¶ 38} Upon witnessing the left of center violation,
Trooper Foxx turned on his lights and sirens for Appellant
to stop. While Trooper Foxx conceded that Appellant
responded within a few seconds of turning on the sirens, he
also categorized Appellant’s response as being “a little
abrupt.” Trooper Foxx stated that Appellant’s action of
turning left into a private driveway and not pulling in far
enough to allow room for the patrol car was uncommon. He
went on to explain that it would have been safer for both
Appellant and Trooper Foxx, if Appellant had simply pulled
off onto the berm on the right side of the road facing
oncoming traffic with the patrol car positioned behind
Appellant’s car.
{¶ 39} Other examples of impairment included
Appellant’s belligerent and uncooperative behavior, coupled
with his threats of violence against Trooper Foxx.
Additionally, the videotape from Trooper Foxx’s patrol car
was played for the jury. Accordingly, the jury was able to
view for themselves the interaction between Trooper Foxx
and Appellant and Appellant’s level of impairment.
{¶ 40} In conjunction with the above described
impairment, Trooper Foxx testified that he observed
Appellant stagger on two occasions, an odor of alcoholic
beverage emitting from Appellant’s person, and Appellant’s
slurred speech and bloodshot and glassy eyes. Appellant’s
counsel aggressively cross-examined Trooper Foxx regarding
other plausible explanations for these physiological
factors.
{¶ 41} Appellant called Dr. Van Auken to the stand.
Dr. Van Auken testified that he was Appellant’s treating
psychologist and he had diagnosed Appellant with delusional
disorder and alcohol disorder. Dr. Van Auken explained that
Appellant’s delusional disorder caused him to have paranoid
beliefs that law enforcement officers were conspiring
against him. These paranoid beliefs cause Appellant to
experience high levels of anxiety whenever he encounters
law enforcement. However, Dr. Van Auken was unable to state
how Appellant would specifically react to the high level of
anxiety. “In this case, the people with this condition
experience an overwhelming anxiety. Would that make them
uncooperative with the police, I don’t know, it might have
that effect.” (Emphasis added.) Accordingly, Dr. Van Auken
was unable to definitively say whether Appellant’s
belligerent and uncooperative demeanor was a result of his
delusional disorder.
{¶ 42} Dr. Van Auken also explained that extreme
anxiety could produce physical symptoms such as
“hyper-ventilation, redness of the face, clammy skin, [and]
pounding heart” similar to the feeling of having a heart
attack. While Appellant provided testimony regarding the
physical effects of his delusional disorder, it is
important to note that none of the anxiety symptoms listed
above are the same or even related to the indicators
Trooper Foxx observed (odor of alcohol, bloodshot and
glassy eyes, slurred speech, and staggering).
{¶ 43} Upon review of the evidence, this Court
cannot say that the jury lost its way in finding Appellant
guilty of driving under the influence of alcohol. The
evidence is undisputed that Appellant was driving his car
on the day in question. The evidence is further undisputed
that Appellant, by his own admission on the video-tape, had
one or two beers on the day in question. Assuming arguendo
that Dr. Van Auken’s testimony explained why Appellant was
belligerent and uncooperative, Appellant’s claim still must
fail. Additionally, Appellant’s “spidy sense” accusations
in these assignments of error are similarly unfounded as
the phrase has been taken out of context and distorted.
{¶ 44} Further, we conclude that Appellant’s
criticisms of the State’s evidence in this case are
inadequate to prove that the jury lost its way and created
a manifest miscarriage of justice. Thompkins, 78 Ohio St.3d
at 387. Rather, we find it reasonable that the jury believed
the State’s version of the events, disbelieved Appellant’s
witness and convicted him accordingly. We conclude that the
conviction is not against the manifest weight of the
evidence.
{¶ 45} Having found that Appellant’s conviction was
not against the manifest weight of the evidence, we also
conclude that there was sufficient evidence to support the
jury’s verdict in this case with respect to the offense.
See
Roberts, supra.
{¶ 46} Appellant’s first and second assignments of
error are overruled.
III.
{¶ 47} Appellant’s assignments of error are
overruled. The judgment of Medina County Court of Common
Pleas is affirmed.
The Court finds that there were reasonable grounds for this
appeal.
We order that a special mandate issue out of this Court,
directing the Court of Common Pleas, County of Medina,
State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the
mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall
constitute the journal entry of judgment, and it shall be
file stamped by the Clerk of the Court of Appeals at which
time the period for review shall begin to run. App.R.
22(E). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and
to make a notation of the mailing in the docket, pursuant
to App.R. 30.
Costs taxed to Appellant.
SLABY, P. J.CARR, J. concur.