State v. WilliamsState v. Williams
Rendered on January 30, 2024
On brief: Zach M. Klein, City Attorney, and Melanie R. Tobias-Hunter, for appellee. Argued: Dave Pelletier.
On brief: Alana Van Gundy, for appellant. Argued: Alana Van Gundy.
APPEAL from the Franklin County Municipal Court
EDELSTEIN, J.
{1} Defendant-appellant, Alvon L. Williams, was convicted of operating a motor vehicle while under the influence of alcohol (“OVI“) and a marked lanes violation following a jury trial. Mr. Williams now appeals, alleging that his breathalyzer test results should have been suppressed and that his OVI conviction is against the manifest weight of the evidence. But, as explained below, we disagree. Accordingly, we affirm the judgment of the Franklin County Municipal Court.
I. FACTS AND PROCEDURAL BACKGROUND
{2} Around 10:57 p.m. on January 16, 2021, Mr. Williams was driving home when he crossed the roadway‘s outer marked lane line and drove up on a concrete median barrier while making a right turn.
{4} Based on his observations of Mr. Williams‘s driving, Trooper Lee decided to initiate a traffic stop and activated his overhead lights. (See Tr. Vol. II at 108-13, 147, 164.) Mr. Williams pulled over two seconds later. (Tr. Vol. II at 113.) Mr. Williams claimed he struck the median because he was using his cellphone. (Tr. Vol. II at 114.) But, on approach, Trooper Lee noticed that Mr. Williams had bloodshot and glassy eyes and detected an odor of alcohol emanating from inside Mr. Williams‘s car. (Tr. Vol. II at 114-15.) Of note, Mr. Williams was alone when he was stopped. (Tr. Vol. II at 114.)
{5} Trooper Lee then asked Mr. Williams to exit his vehicle because he believed Mr. Williams might be impaired and wanted to administer standard field sobriety tests. (Tr. Vol. II at 115-16.) Mr. Williams acquiesced to Trooper Lee‘s request, and Trooper Lee administered several field sobriety tests on the concrete roadside, as outlined in the National Highway Traffic Safety Administration (“NHTSA“) manual. (See Tr. Vol. II at 118.) It is without question that Trooper Lee had the requisite qualifications and experience to administer these tests. (See Tr. Vol. II at 116-42.)
{6} Trooper Lee described the roadway where the tests were administered as “mostly flat” and wet “from the previous rain.” (Tr. Vol. II at 118-19. See also Tr. Vol. II at 161.) And, although mild precipitation can be observed in the cruiser camera footage, on review, we generally agree with Trooper Lee‘s assessment that, when the field sobriety tests were administered, it was relatively clear (Tr. Vol. II at 109, 119) and the roadway was adequately lit by streetlights and his cruiser‘s headlights (Tr. Vol. II at 114-15). (See Ex. A.)
{7} On preliminary screening, Mr. Williams did not present with unequal sized pupils, resting nystagmus (involuntary jerking of the eye), or unequal tracking of the eyes—any one of which could suggest he had some type of neurological issue that might impact
{8} Trooper Lee testified that Mr. Williams exhibited six out of six clues on the HGN test.1 (Tr. Vol. II at 126-29.) Of note, Trooper Lee stated that the presence of four clues is a reliable indicator of impairment. (Tr. Vol. II at 129.) Trooper Lee also conducted a VGN test and noted that VGN at maximum deviation was present. (See Tr. Vol. II at 130-31.) He explained that such presence generally suggests a “higher test, usually above a .1 alcohol content of breath.” (Tr. Vol. II at 130.) During the walk-and-turn test,2 Trooper Lee noticed three of eight clues, with only two clues necessary to suggest impairment. (See Tr. Vol. II at 131-37.) Specifically, Trooper Lee testified that Mr. Williams began the test too soon, took the wrong number of steps, and stepped off the line. (Tr. Vol. II at 136.) And while administering the one-legged stand test,3 Trooper Lee observed Mr. Williams sway throughout the test, put his foot down on the ground twice, and hold his arms more than six inches away from his body. (See Tr. Vol. II at 138-41.) Of the four clues possible, Mr. Williams exhibited three. (Tr. Vol. II at 141.) Trooper Lee testified that the presence of just two clues on this test indicated impairment. (Tr. Vol. II at 139, 141.)
{10} Trooper Lee testified that, based on his training and experience, the clues he observed on the standardized field sobriety tests, and the totality of the circumstances, he believed Mr. Williams was impaired at the time he was operating his vehicle. (Tr. Vol. II at 143-44.) Accordingly, Trooper Lee placed Mr. Williams under arrest for OVI. (Tr. Vol. II at 143-44.)
{11} After arresting Mr. Williams, Trooper Lee asked him to submit to a breathalyzer test, to which Mr. Williams agreed. (Tr. Vol. II at 144-46. See also Ex. B.) Trooper Lee took Mr. Williams to the highway patrol‘s Columbus post and administered the test shortly after midnight. (Tr. Vol. II at 147-48.) It registered a breath alcohol concentration level of 0.125, well over the 0.08 legal limit for driving in Ohio. (Tr. Vol. II at 156-57; Ex. D.) Mr. Williams was charged with OVI as both an “impaired driving” offense under
{12} Following a jury trial on the two OVI offenses, Mr. Williams was found guilty of both impaired driving and the per se OVI violation. (Tr. Vol. II at 233-34.) The trial court also found him guilty of the marked lanes violation and immediately proceeded to sentencing. (Tr. Vol. II at 235-36.) After the trial prosecutor elected to proceed on the impaired driving offense, the trial court sentenced Mr. Williams to three days in jail, awarded him jail-time credit in lieu of incarceration for the three-day driver intervention program he completed prior to trial, and suspended his driver‘s license for one year. (Tr. Vol. II at 235-39. See Feb. 3, 2023 Sentence Entry.)
[I.] The breathalyzer test should have been suppressed and the court should not have allowed the breathalyzer test to be admitted as evidence in court.
[II.] Mr. William[s]‘s conviction is against the manifest weight of the evidence.
II. ANALYSIS
A. First Assignment of Error
{14} In his first assignment of error, Mr. Williams contends that the “breathalyzer test should have been suppressed” and attributes error to the trial court‘s admission of it as evidence at trial. (Brief of Appellant at 7-9.)
{15} Mr. Williams‘s initial trial counsel filed a motion to suppress the results of the field sobriety tests and the breathalyzer test. But, after his original trial counsel was permitted to withdraw from representation and a different trial court judge was assigned to Mr. Williams‘s case,4 no subsequent pre-trial suppression motions were filed. As such,
{16} Generally, appellate courts do not “consider an error which the complaining party ‘could have called, but did not call, to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.‘” State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997), quoting State v. Williams, 51 Ohio St.2d 112, 117 (1977). See also State v. Awan, 22 Ohio St.3d 120, 122 (1986), quoting State v. Childs, 14 Ohio St.2d 56 (1968), paragraph three of the syllabus. Failure to object to the admission of evidence at trial waives all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22-23.
{17}
{18} However, even if the error is obvious, it must have affected the appellant‘s “substantial rights.”
{20} Thus, while Mr. Williams has only preserved plain error under
{21} However, even if Mr. Williams had presented plain error arguments in support of his first assignment of error, it is difficult to see how he would be able to demonstrate a reasonable probability that the admission of the breathalyzer test affected the outcome of trial. Indeed, he was found guilty of and sentenced for the impaired driving OVI offense which, unlike the per se OVI offense, could stand even on the evidence presented at trial without the breathalyzer test, as explained more fully below.
{22} Accordingly, because Mr. Williams has failed to argue—much less, demonstrate—plain error under
B. Second Assignment of Error
{23} In his second assignment of error, Mr. Williams contends that his OVI conviction is against the manifest weight of the evidence. The jury found Mr. Williams guilty of both the impaired driving and per se offenses charged. Mr. Williams was only sentenced for the impaired driving offense, as the per se count was merged for purposes of
1. Standard of Review
{24} “[A] manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion.” State v. Harris, 10th Dist. No. 21AP-678, 2023-Ohio-3994, ¶ 15, citing State v. Richey, 10th Dist. No. 17AP-260, 2018-Ohio-3498, ¶ 50, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11-13, citing State v. Thompkins, 78 Ohio St.3d 380, 386-87 (1997). ” ‘[W]eight 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.” Harris at ¶ 15, citing State v. Petty, 10th Dist. No. 15AP-950, 2017-Ohio-1062, ¶ 60, citing State v. Boone, 10th Dist. No. 14AP-87, 2015-Ohio-2648, ¶ 49, citing Thompkins at 387.
{25} In reviewing whether a conviction runs counter to the manifest weight of the evidence, we sit as the “thirteenth juror” and may disagree “with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). See also State v. Martin, 170 Ohio St.3d 181, 2022-Ohio-4175, ¶ 26. “In making this determination, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility, 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.” Harris at ¶ 16, citing Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 10; Eastley at ¶ 20; Thompkins at 387; Martin at ¶ 26.
{26} Although we review credibility when considering the manifest weight of the evidence, we must bear in mind that determinations regarding credibility of witnesses and the weight of testimony are primarily for the trier of fact. Harris at ¶ 17, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus; Morris v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-131, 2021-Ohio-3803, ¶ 64, citing Watson v. Ohio , citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). This is because the trier of fact is best able “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. at 80.
{27} ” ‘The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). And, reversal of a jury verdict on manifest weight grounds requires unanimous concurrence of all three judges on the court of appeals panel reviewing the case. Harris at ¶ 18, citing Article IV, Section 3(B)(3) of the Ohio Constitution; Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at paragraph four of the syllabus.
2. Application
{28} Mr. Williams was convicted of OVI in violation of
{29} As the foundation for this appeal, Mr. Williams posits that the state failed to prove he was driving while impaired. He also generally challenges the credibility of Trooper Lee‘s testimony about his administration and assessment of the standard field sobriety tests.6 Those arguments are not well-taken, as explained below.
{31} Indeed, Mr. Williams does not dispute that he drove his vehicle onto the concrete median. Rather, he suggests on appeal that his deficient driving can be attributed to the wet roadway and his vehicle‘s bald tires causing his vehicle to “slid[e] out[] and hit a pothole.” (See Brief of Appellant at 14.) But he testified about these facts at trial (see Tr. Vol. II at 189), and the jury had the opportunity to consider them when it reached its verdict. Notably, too, Mr. Williams told Trooper Lee at the time he was stopped that he struck the concrete barrier because “he was on his cell phone.” (Tr. Vol. II at 114.) And, on appeal, Mr. Williams does not argue that the weather conditions impacted his performance on the standard field sobriety tests.
{32} Mr. Williams also posits that “[i]f Trooper Lee was under the impression that Mr. Williams was driving recklessly and impaired,” Trooper Lee should have pulled him over “immediately“—i.e., before Mr. Williams struck the median. (Brief of Appellant at 13-14.) That argument is not compelling. Trooper Lee did not testify that he pulled Mr. Williams over because he suspected impaired driving. Rather, Trooper Lee testified that he initially suspected Mr. Williams of speeding and initiated a traffic stop after he observed Mr. Williams‘s vehicle hit the concrete median. (See Tr. Vol. II at 108-14; Ex. A at 3:18.) Based on his observation of this marked lanes violation, Trooper Lee had probable cause to conduct a non-investigatory traffic stop. See, e.g., State v. Oliver, 10th Dist. No. 21AP-449, 2023-Ohio-1550, ¶ 43. During that stop, Trooper Lee noticed Mr. Williams had “bloodshot,
{33} Mr. Williams also emphasizes that he “drove for quite some time with no infractions” to argue the state failed to prove he was driving while impaired. (Brief of Appellant at 13.) However, as we have previously noted, “the observation of impaired driving is not necessarily a prerequisite to a conviction for OVI.” (Citations omitted.) State v. Koss, 10th Dist. No. 13AP-970, 2014-Ohio-5042, ¶ 62. Indeed, Trooper Lee testified that, based on his training and experience with impaired drivers, it is possible for someone who is impaired to change lanes, use a turn signal, pull over, and exit their vehicle without issue. (See Tr. Vol. II at 177-78.)
{34} Regarding his bloodshot eyes, Mr. Williams points out that he “had a hereditary issue and high blood pressure that results in bloodshot eyes.” (Brief of Appellant at 14.) Again, we note that because the jury heard about these facts from Mr. Williams at trial (see Tr. Vol. II at 188, 197), it had the opportunity to take them into consideration when reaching its verdict. In a similar vein, the jury heard Trooper Lee‘s testimony about his administration of and Mr. Williams‘s performance on the field sobriety tests, which were also depicted on the cruiser camera‘s video footage. Thus, the jury sat in the best position to consider and evaluate the credibility of this evidence at trial. See Seasons Coal Co., Inc., 10 Ohio St.3d at 80.
{35} Mr. Williams also maintains that Trooper Lee‘s testimony about the NHTSA manual was incorrect. (See Brief of Appellant at 14-17.) Yet, as Mr. Williams recognizes, the NHTSA manual was never introduced as evidence at trial, and his trial counsel did not argue that Trooper Lee‘s testimony was inconsistent with it. (Brief of Appellant at 15.) “It is a fundamental principle that an appellate court is constrained to review only those matters contained in the record.” Cincinnati Ins. Co. v. DTJ Ents. (In re Hoyle), 143 Ohio St.3d 197, 2015-Ohio-843, ¶ 33, citing Brown v. Cleveland, 66 Ohio St.2d 93, 98 (1981). Because the NHTSA manual is not contained in the record before us, our ability to evaluate Mr. Williams‘s arguments about it is severely limited. But, even if it was, Mr. Williams fails to explain why we should find that Trooper Lee‘s purportedly erroneous or speculative testimony about “statistics” from the NHTSA manual is relevant to our analysis of his
{36} We also note that on the cruiser camera footage shown to the jury, Mr. Williams admitted to consuming “two Southern Comfort drinks” earlier that night. (See Tr. Vol. II at 142-43.) During trial, Mr. Williams testified that he drank “two little bottles” of Southern Comfort on the evening he was stopped. (See Tr. Vol. II at 190-91.) And, while not required for a conviction of impaired driving under
{37} After viewing the cruiser footage and hearing the testimony of Trooper Lee and Mr. Williams, the jury sat in the best position to evaluate the credibility of the two witnesses. And we must generally give deference to the jury‘s credibility determinations. Based on the foregoing and after considering all the evidence presented at trial, we cannot conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that Mr. Williams‘s impaired driving conviction must be reversed and a new trial ordered.
{38} Accordingly, his second assignment of error is overruled.
III. CONCLUSION
{39} Having overruled Mr. Williams‘s two assignments of error, we affirm the February 3, 2023 judgment of the Franklin County Municipal Court.
Judgment affirmed.
BEATTY BLUNT and JAMISON, JJ., concur.