[Cite as State v. Adams, 2014-Ohio-4233.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :       Hon. Patricia A. Delaney, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
BRADLEY ADAMS                               :       Case No. 14-CA-25
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Municipal Court,
                                                    Case No. 13TRC12783




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 24, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

J. MICHAEL KING                                     WILLIAM T. CRAMER
40 West Main Street                                 470 Olde Worthington Road
4th Floor                                           Suite 200
Newark, OH 43055                                    Westerville, OH 43082
Licking County, Case No. 14-CA-25                                                      2

Farmer, P.J.

      {¶1}     On December 8, 2013, Pataskala Police Officer Anthony Wisniewski

stopped a motor vehicle after observing erratic driving. The operator of the vehicle was

appellant, Bradley Adams.      Following an investigation, appellant was charged with

driving while under the influence and driving while under the influence with a prior

conviction in the past twenty years in violation of R.C. 4511.19(A)(1)(a) and (2)(a),

driving with a suspended driver's license in violation of R.C. 4510.037, and driving

outside of marked lanes in violation of R.C. 4511.33.

      {¶2}     A jury trial commenced on March 17, 2014. The jury found appellant guilty

of the two driving while under the influence counts. The trial court found him guilty of

the remaining violations. By judgment entry filed same date, the trial court sentenced

appellant to two hundred days in jail on the R.C. 4511.19(A)(1)(a) conviction only.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}     "Appellant's state and federal Due Process rights were violated because

there was insufficient evidence to support his OVI conviction."

                                            II

      {¶5}     "Appellant's OVI conviction was not supported by the weight of the

evidence."

                                           I, II

      {¶6}     Appellant claims his convictions were against the sufficiency and manifest

weight of the evidence. We disagree.
Licking County, Case No. 14-CA-25                                                         3


       {¶7}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial

"should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction." Martin at 175. We note the weight to be given to the evidence

and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49

Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶8}   Appellant was convicted of driving while under the influence in violation of

R.C. 4511.19(A)(1)(a) and (2)(a) which state the following:
Licking County, Case No. 14-CA-25                                                         4


               (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.

               (2) No person who, within twenty years of the conduct described in

      division (A)(2)(a) of this section, previously has been convicted of or

      pleaded guilty to a violation of this division, a violation of division (A)(1) or

      (B) of this section, or any other equivalent offense shall do both of the

      following:

               (a) Operate any vehicle, streetcar, or trackless trolley within this

      state while under the influence of alcohol, a drug of abuse, or a

      combination of them[.]



      {¶9}     Appellant argues the state failed to meet its burden because it merely

relied on the direct evidence and Officer Wisniewski's opinion. We note appellant does

not challenge the prior conviction within the past twenty years conviction under R.C.

4511.19(2)(a).

      {¶10} Along with Officer Wisniewski's testimony, the jury had a video of the

arrest and could view for themselves appellant's actions and reactions. State's Exhibit

1.

      {¶11} Officer Wisniewski testified he was traveling behind appellant's vehicle at

about 12:24 a.m. when he observed it weaving in its lane of travel. T. at 46, 47. The
Licking County, Case No. 14-CA-25                                                       5


front driver side tire then passed over the double marked center line and returned to its

lane of travel. T. at 48. Appellant proceeded to steadily reduce his speed and braked

his car abruptly (a brake check). T. at 49-50. Based upon his observations, Officer

Wisniewski initiated a traffic stop. T. at 50. He observed that appellant had glassy

bloodshot eyes, and smelled an odor of marijuana coming from inside the vehicle and

an odor of an alcoholic beverage on appellant's breath. T. at 52, 57. Officer Wisniewski

also observed a marijuana smoking device on the passenger side floor board. T. at 57.

      {¶12} Officer Wisniewski ordered appellant out of the vehicle.           T. at 58.

Appellant did not comply at first, and Officer Wisniewski had to "open the door for him to

come on out."     Id.   Appellant was given the horizontal gaze nystagmus test and

displayed six out of six clues indicating impairment. T. at 64. Appellant had to have the

directions for the walk and turn test repeated several times and displayed four out of

eight clues indicating impairment. T. at 65, 67-68. Appellant did not do the one legged

stand test because of back problems.        T. at 69.   Officer Wisniewski then placed

appellant under arrest.    Id.   Based upon his observations prior to the stop and

appellant's performance on the field sobriety tests, Officer Wisniewski opined that

appellant was impaired. T. at 77. Just prior to being transported, appellant became

argumentative and denied "the violations he was charged with." T. at 71.

      {¶13} In his defense, appellant called two witnesses, his friends, Jovan Kotuvski

and Michael Erney. Mr. Kotuvski testified he was with appellant and others at a bar,

O'Malley's, around 10:30 p.m. and observed appellant have one beer. T. at 114-115,

117. Appellant appeared "[p]retty normal" and did not seem impaired. T. at 118. Mr.

Kotuvski knew nothing about what transpired before he arrived at the bar, although he
Licking County, Case No. 14-CA-25                                                          6


admitted that appellant "had been there earlier before me." T. at 120.            Mr. Erney

testified that he and appellant had worked together for about 24 hours straight, putting

in long hours snow plowing because of a snow storm. T. at 129-130. He then went to

the aforementioned bar and appellant joined him around 8:30 p.m. T. at 131-132. He

observed appellant drink two beers. T. at 133. Mr. Erney opined appellant was safe to

drive. T. at 135.

       {¶14} As the trial court correctly pointed out, the testimony of one witness,

believed by the jury, is sufficient to establish a fact in question. T. at 159. In this case,

the jury believed the testimony of Officer Wisniewski vis-á-vis the testimony of

appellant's friends.

       {¶15} Given the time of night, the erratic driving, Officer Wisniewski's

observations as to appellant's eyes and breath, and appellant's scores on the field

sobriety tests, we find sufficient evidence to substantiate Officer Wisniewski's opinion on

appellant's impaired driving and the finding of guilty on driving while under the influence

in violation of R.C. 4511.19(A))(1)(a). We find no manifest miscarriage of justice.

       {¶16} Assignments of Error I and II are denied.
Licking County, Case No. 14-CA-25                                              7


      {¶17} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




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