State v. Dixon, Ca2007-01-012 (10-1-2007)State v. Dixon, Ca2007-01-012 (10-1-2007)
{¶ 1} Defendant-appellant, Albert Dixon, appeals a decision of the Clermont County Municipal Court denying his motion for a new trial. For the reasons stated below, we affirm the decision of the trial court.
{¶ 2} Appellant was stopped by Trooper Amy Pennington of the Ohio State Highway Patrol on August 26, 2006, for the absence of a front license plate on his motor vehicle. At
{¶ 3} Pennington administered three field sobriety tests: the one leg stand, the walk-and-turn, and the horizontal gaze nystagmus test. Pennington testified that appellant exhibited four clues on the nystagmus test, two clues on the one leg stand, and three clues on the walk and turn test. Pennington testified that the number of clues exhibited on each of the three tests indicated impairment.
{¶ 4} Appellant was arrested and his blood alcohol content was measured. On the breathalyzer, the test results indicated a blood alcohol content of .000 percent. Appellant was asked to provide a urine sample, to which he consented. Appellant was cited for operating a motor vehicle under the influence of a drug of abuse in violation of
{¶ 5} Appellant argues in his brief that Pennington‘s testimony concerning field sobriety tests does not establish impairment due to marijuana because the tests have only been studied in relation to alcohol consumption. We note that the defense at trial failed to
{¶ 6}
{¶ 7} In noticing plain error, the first condition that must be met is the existence of error. State v. Hill (2001), 92 Ohio St.3d 191, 200, citing United States v. Olano (1993), 507 U.S. 725, 732, 113 S.Ct. 1770, 1776. In the prosecution of impaired driving cases, testimony of the arresting officer regarding the defendant‘s behavior and appearance is generally permissible as lay witness testimony under
{¶ 8} With respect to the horizontal gaze nystagmus test, the Ohio Supreme Court has permitted officers to testify without expert testimony because the test “has been shown to be a reliable indicator of BAC levels.” Id. The Ohio Supreme Court has stated that, in terms of admitting the testimony under the Rules of Evidence, “[t]he admission of the results of the HGN test is no different from any other field sobriety test, such as finger-to-nose, walk-and-turn, or one-leg stand.” We note a distinction between the horizontal gaze nystagmus test and the other field sobriety tests that is particularly relevant in this case. Materials published by the National Highway Traffic Safety Administration indicate that nystagmus would not be present as a result of consumption of marijuana.3 NHTSA, Drugs and Human Performance Fact Sheets 11 (2004); see, also, Eugene R. Bertolli, et al., A Behavioral Optometry/Vision Science Perspective on the Horizontal Gaze Nystagmus Exam for DUI Enforcement, Forensic Examiner 31 (2007). However, performance on other field sobriety tests is known to be affected by marijuana consumption. Drugs and Human Performance Fact Sheets at 11. Furthermore, this court was unable to locate any information indicating that nystagmus in and of itself has any correlation to motor control, whereas the other psychomotor field sobriety tests admitted in this case directly relate to ability to control the vehicle because they test gross motor control and ability to function under divided attention. As such, we find that it was error for the trial court to admit the results of the horizontal gaze nystagmus test. While the evidence was rationally based on the perception of Pennington, the evidence was not helpful to a clear understanding of her testimony or the determination of a fact in issue,
{¶ 9} Having found error, we proceed in the plain error analysis. In order to reverse the conviction, we must find, as stated above, that “but for the error, the outcome of the trial clearly would have been different.” Davis at ¶ 17. If we are able to determine that the evidence was sufficient without consideration of the improperly admitted evidence, then the improperly admitted evidence was not clearly outcome determinative, see State v. Scott, Franklin App. No. 05AP-1144, 2006-Ohio-4981, ¶ 27, and appellant cannot prevail under plain error. Because appellant argues the sufficiency of the evidence and resolution of the sufficiency argument resolves the plain error analysis, we proceed with the assignment of error argued by appellant.
{¶ 10} Appellant alleges in his sole assignment of error that the state failed to present proof of his guilt beyond a reasonable doubt. The state argues that appellant asserts only a sufficiency argument because, at trial, the defense rested without presenting a case. However, where the state has the burden of proof, the weight and credibility of the evidence presented by the state in its case-in-chief can be challenged in a manifest weight argument. Reviewing his brief, it appears that appellant asserts that the evidence was both insufficient and against the manifest weight. Accordingly, the court will analyze defendant‘s conviction under both theories.
{¶ 11} The state argues that appellant waived his sufficiency claim because he failed to make a
{¶ 12} The test to be applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction is set forth in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, as follows:
{¶ 13} “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. The 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.”
{¶ 14} In order to convict appellant of operating a motor vehicle under the influence of a drug of abuse, the state was required to prove, beyond a reasonable doubt, that appellant “operate[d] any vehicle” while “under the influence of * * * a drug of abuse.”
{¶ 15} In order to prove that appellant was under the influence of a drug of abuse, appellee was required to prove that appellant‘s “faculties were appreciably impaired” by the consumption of a drug of abuse. State v. Lowman (1992), 82 Ohio App.3d 831, 836. In the prosecution of an offense under this provision, the amount of a substance in the appellant‘s body is only of secondary interest. See City of Newark v. Lewis (1988), 40 Ohio St.3d 100, 104. “It is the behavior of the defendant which is the crucial issue. * * * The test results, if probative, are merely considered in addition to all other evidence of impaired driving in a prosecution for this offense.” Id.
{¶ 16} Our review of the record indicates that the state presented evidence which, if believed by the trier of fact, was sufficient to support a finding that the state proved the element of impairment by a drug of abuse beyond a reasonable doubt. Appellee presented evidence at trial indicating that Pennington administered three field sobriety tests during the traffic stop. Because we have determined that it was error for the court to adm it the results of the horizontal gaze nystagmus test, we do not consider those results in our analysis. However, Pennington testified that she also administered the one leg stand and the walk and turn field sobriety tests. Appellant stipulated as to Pennington‘s qualifications to administer the tests. Pennington indicated that appellant exhibited a significant enough number of clues to indicate to her that he was impaired under each test. She testified that the tests were effective for detecting impairment from drugs as well as from alcohol, and NHTSA materials
{¶ 17} Having found that the state presented sufficient evidence to meet its burden even without consideration of the results of the horizontal gaze nystagmus test, the trial court‘s error of permitting Pennington to testify that the horizontal gaze nystagmus test results indicated impairment by a drug of abuse was not outcome determinative. As such, plain error did not result and the error should not be noticed under
{¶ 18} Appellant also argues his conviction is against the manifest weight of the evidence. Weight of the evidence “concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other * * *.‘” State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, quoting Black‘s Law Dictionary (6th Ed.1990) 1433. In reviewing the manifest weight of the evidence to determine whether reversal is warranted, “the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id. at
{¶ 19} Appellant argues that field sobriety tests are unhelpful in establishing impairment due to use of marijuana. He claims that field sobriety tests have been standardized to detect specific levels of alcohol consumption, and that performance on these tests has not been studied with respect to marijuana consumption. As stated above, we acknowledge that Pennington‘s testimony with respect to the horizontal gaze nystagmus test cannot be considered reliable or credible. However, Pennington also testified that appellant exhibited a significant number of signs on two other field sobriety tests. NHTSA materials indicate that these field sobriety tests would be affected by marijuana consumption. Drugs and Human Performance Fact Sheets at 11. We find that, along with the other evidence admitted at trial, this constitutes substantial, competent, and credible evidence upon which the trier of fact reasonably could conclude that the state established the element of impairment by a drug of abuse beyond a reasonable doubt. The trier of fact did not clearly lose its way and create a manifest miscarriage of justice.
{¶ 20} Accordingly, based upon the foregoing reasons, we overrule appellant‘s sole assignment of error.
{¶ 21} Judgment affirmed.
YOUNG, P.J., and POWELL, J., concur.