State v. Sullivan, 2017 Ohio 8937

Background

At ~9:11 PM on May 20, 2016, Officer Michael Cortez responded to a single-vehicle crash; defendant William E. Sullivan, Jr. was the driver and found near his vehicle which had struck a utility pole.
Cortez observed signs including slow/lagging responses, stumbling/need to steady himself, flushed face, bloodshot/glassy eyes, and a strong odor of alcohol; Sullivan gave an inaccurate statement about his location.
Cortez administered an HGN (horizontal gaze nystagmus) field sobriety test; he observed 6 of 6 clues and arrested Sullivan for OVI; no portable breath test was taken (Sullivan declined).
Sullivan moved to suppress the HGN results, arguing the crash caused a traumatic brain injury (TBI) that could invalidate HGN; the defense presented Dr. Bauer (neurologist) who based his TBI opinion on a telephone interview and had not examined Sullivan before the hearing.
The trial court denied suppression, allowed Cortez to testify about his opinion that the HGN indicated alcohol/drugs (while sustaining defense objections to Cortez repeating specific research conclusions), and a jury convicted Sullivan of R.C. 4511.19(A)(1)(a).
On appeal Sullivan raised four assignments of error: (1) suppression denial of HGN, (2) denial of Crim.R. 29 motion, (3) trial court overruling objections to HGN research references (hearsay/bolstering), and (4) verdict against manifest weight; the appellate court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sullivan)	Held
Whether the trial court erred in denying suppression of HGN results	Cortez complied with NHTSA/OH training and administered HGN in substantial compliance; officer may testify to results	HGN invalid because defendant suffered TBI from the crash; defense expert said HGN clues were injury symptoms rather than intoxication	Denied: court found officer’s training and administration adequate and Dr. Bauer’s opinion unpersuasive; HGN admissible under R.C. 4511.19(D)(4)(b)
Whether the court erred in overruling objections when Cortez referenced HGN research (hearsay/bolstering)	Officer may state his perception and inference that HGN indicates alcohol/drugs; references to studies were curtailed by the court	Admission of research-based conclusions improperly bolstered Cortez via hearsay	Denied: trial court sustained objections before any study conclusions were admitted; Cortez’s statement that results indicated alcohol/drugs was a permissible lay inference (Evid.R.701)
Whether Crim.R. 29 judgment of acquittal should have been granted (sufficiency)	Officer’s observations (odor, appearance, balance, HGN 6/6, confusion) suffice circumstantially to prove defendant was under the influence	State failed to prove defendant consumed alcohol; no breath/chemical test and defense TBI theory undermines intoxication inference	Denied: viewing evidence in State’s favor, a rational trier of fact could find defendant under the influence beyond a reasonable doubt
Whether the verdict was against the manifest weight of the evidence	Officer testimony and HGN results were credible; jury could reject defense expert	Jury disregarded defense expert and lacked any direct evidence of consumption; conviction is a miscarriage of justice	Denied: appellate court, as thirteenth juror, found jury’s credibility choices reasonable and evidence did not weigh heavily against conviction

Key Cases Cited

State v. Burnside, 100 Ohio St.3d 152 (trial-court factual findings on suppression are accorded deference; appellate court reviews mixed questions independently)
Cross v. Ledford, 161 Ohio St. 469 (clear-and-convincing standard defined)
State v. Jenks, 61 Ohio St.3d 259 (standard for reviewing sufficiency of the evidence)
State v. Thompkins, 78 Ohio St.3d 380 (manifest-weight standard; appellate court as thirteenth juror)
State v. Bakst, 30 Ohio App.3d 141 (proof that faculties were appreciably impaired can satisfy intoxication element)
State v. Carter, 72 Ohio St.3d 545 (general standard cited re: Crim.R. 29 review and sufficiency)