[Cite as Cleveland v. Giering, 2017-Ohio-8059.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105020




                                CITY OF CLEVELAND
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                              KIMBERLY M. GIERING
                                                        DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2015 TRC 025863

        BEFORE: E.A. Gallagher, P.J., McCormack, J., and Boyle, J.

        RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEYS FOR APPELLANT

Hector G. Martinez
Leslie Johns
The Martinez Firm
4230 S.R. 306, Suite 240
Willoughby, Ohio 44094


ATTORNEY FOR APPELLEE

Anne E. Eisenhower
Chief Prosecuting Attorney
Cleveland Metroparks
4600 Valley Parkway
Fairview Park, Ohio 44126
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Kimberly M. Giering appeals her conviction for

operating a vehicle under the influence of alcohol from the Cleveland Municipal Court.

Giering also appeals the trial court’s denial of her motion to suppress. For the following

reasons, we affirm.

       Facts and Procedural Background

       {¶2} Giering was charged with OVI in violation of R.C. 4511.19(A)(1)(a), OVI

with a prior conviction in violation of R.C. 4511.19(A)(2)(a) and a marked lanes

violation.   Giering filed a motion to suppress evidence arguing that the arresting officer

lacked reasonable suspicion to initiate a traffic stop.   The trial court denied the motion

and the case proceeded to a jury trial where the following facts were adduced.

       {¶3} Cleveland Metroparks Ranger Tim Garris was patrolling near Edgewater Park

on June 20, 2015, when he observed Giering’s vehicle hit the base of a temporary,

portable stop sign on the right hand side of the roadway approaching the entrance ramp to

Route 2.     The stop sign was affixed to a metal pole constructed with an “X” base.

Giering’s vehicle struck the base of the sign causing it to wobble. Garris activated his

dash camera and began following Giering as she merged onto Route 2.                Garris’s

testimony and the dash camera video reflect that Giering merged onto Route 2 from the

highway entrance ramp without using a turn signal.        Giering overmerged with the left

tires of her vehicle traveling directly over the lane lines for the middle lane for

approximately seven seconds before she dramatically over-corrected and steered her
vehicle to the far right side of her lane.   Shortly thereafter, Giering exited Route 2 and

drove directly past a stop sign before stopping roughly 15 feet past the sign. Garris then

executed a traffic stop.

       {¶4} Garris testified that when he approached Giering’s automobile, he found

Giering slumped over the wheel and he encountered a strong odor of alcohol.      He further

testified that Giering had bloodshot eyes and he observed open alcohol containers inside

the vehicle.   Garris’s dash camera video showed that Giering responded to Garris’s

questions with slurred speech and admitted to striking the stop sign “pretty hard.” After

Garris ordered Giering to step out of her vehicle, she became uncooperative and had to be

physically removed. She also began denying that she had struck the stop sign despite

admitting it minutes earlier.   Garris testified that he placed Giering under arrest at this

point because she was “highly intoxicated.”

       {¶5} Cleveland Metroparks Ranger Rudolph Radva responded to a back- up call

from Garris during the traffic stop and found three bottles of Grey Goose vodka inside a

bag on the front seat of the auto. Radva testified that one bottle was open and the other

two contained vodka. A photograph of the bottles supported this account. Radva also

found two six-packs of the alcoholic beverage Twisted Tea behind the driver’s seat.       A

photo of the six packs revealed that several bottles of Twisted Tea were missing.

Finally, Radva found a gift box containing two cases of miniature Grey Goose vodka

bottles behind the passenger seat.
       {¶6} Cleveland Metroparks Ranger Anthony Madlock also responded to the traffic

stop and transported Giering to the Bratenahl police station to perform standardized field

sobriety testing. Madlock testified that Giering had a strong odor of an alcoholic beverage

coming from her breath, her speech was slurred and her emotions were up and down.

Video of Giering in the backseat of Madlock’s cruiser supported this description.

       {¶7} At the Bratenahl police headquarters, Giering refused a BAC breath test and

fell off the stool upon which she was sitting. Garris testified that Giering also had

difficulty walking and standing. Video depicted Giering’s condition deteriorating rapidly

with incoherent speech as she was transported to the Cleveland city jail.

       {¶8} Renee Summers testified that she spent over two hours with Giering at the

Ivancic Marine sea store shortly before her arrest.   She did not smell alcohol on Giering

or detect any erratic behavior. She testified that Giering reported problems from a surgery

and purchased two six packs of Twisted Tea before she drove off.

       {¶9} Giering testified that she had undergone surgery five days before her arrest

and had been prescribed Percocet for surgery-related pain.        She stopped taking the

Percocet three days prior to the subject incident but took one pill when she was leaving

the marina. She admitted to drinking significant amounts of alcohol the prior night but

denied drinking any alcohol on June 20, 2015. Giering denied feeling impaired while

driving.

       {¶10} The jury returned guilty verdicts on all three counts.         The trial court

merged Giering’s R.C. 4511.19(A)(2) OVI with a prior conviction count into her R.C.
4511.19(A)(1)(a) OVI count and imposed a 180-day jail sentence on that count.          The

court further ordered that 90 days were to be suspended and, following an initial 10

consecutive days, Giering would be allowed to serve the remaining jail term over 40

consecutive weekends. The trial court also imposed a $1,625 fine on the OVI charge and

a $75 fine on the marked lanes violation charge.

       Law and Analysis

       I. Motion to Suppress

       {¶11} In her first assignment of error, Giering argues that the trial court erred in

denying her motion to suppress evidence stemming from her traffic stop and arrest.

       {¶12} Appellate review of the denial of a motion to suppress involves a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. Therefore, when considering a trial court’s denial of a motion to suppress,

our standard of review is “divided into two parts.” State v. Preztak, 181 Ohio App.3d 106,

2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.). In a hearing on a motion to suppress,

“the trial court assumes the role of trier of facts and is in the best position to resolve

questions of fact and evaluate the credibility of witnesses.” Id. at ¶ 22, quoting State v.

Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998). Deference is, therefore,

given to the trial court’s findings of fact related to a motion to suppress if they are

supported by competent, credible evidence. Preztak at ¶ 22. A reviewing court must,

however, independently determine whether those facts satisfy the applicable legal

standard. Id.
       {¶13} Giering first argues that Ranger Garris lacked reasonable suspicion to

support her traffic stop.    A law enforcement official may conduct a traffic stop when

there is a reasonable suspicion of criminal activity, such as a traffic violation. State v.

Robinson, 8th Dist. Cuyahoga No. 95160, 2011-Ohio-842, ¶ 27. In this instance, the

record as set forth above is replete with traffic violations that would justify a stop. We

find no merit to Giering’s first argument.

       {¶14} Giering next argues that Ranger Garris lacked reasonable suspicion to ask

Giering to exit her vehicle and submit to a field sobriety test. We find this argument to

be moot because Ranger Garris proceeded directly to an arrest without performing a field

sobriety test.   However, the facts in this case would clearly have supported such a test.

       {¶15} Finally, Giering argues that Ranger Garris lacked probable cause to arrest

her for OVI.     An officer may arrest a suspect without a warrant when he has probable

cause to believe that the suspect was operating a motor vehicle under the influence of

alcohol. State v. Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104 (1990). In determining

whether Ranger Garris had probable cause to arrest Giering for OVI, we must determine

whether, at the moment of arrest, he had information sufficient to cause a prudent person

to believe that Giering was driving under the influence. Beck v. Ohio, 379 U.S. 89, 85

S.Ct. 223, 13 L.Ed.2d 142 (1964). A probable-cause determination is based on the

“totality” of facts and circumstances within a police officer’s knowledge. State v. Miller,

117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997). While the odor of alcohol,

glassy eyes, slurred speech, and other indicia of alcohol use by a driver are, in and of
themselves, insufficient to constitute probable cause to arrest, they are factors to be

considered in determining the existence of probable cause. State v. Dedejczyk, 8th Dist.

Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 57, citing Kirtland Hills v. Deir, 11th Dist.

Lake No. 2004-L-005, 2005-Ohio-1563.

       {¶16} Each OVI case is to be decided on its own particular and peculiar facts. S.

Euclid v. Bautista-Avila, 8th Dist. Cuyahoga No. 102353, 2015-Ohio-3236, ¶ 18, citing

Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224 N.E.2d 343 (1967). The court is to

examine all the facts and circumstances when deciding the issue of probable cause to

support a warrantless arrest for drunk driving. Id., citing State v. Tate, 40 Ohio App.3d

186, 187, 532 N.E.2d 167 (11th Dist.1987).

       {¶17} Here, Garris provided detailed testimony regarding the intoxicated state of

Giering at the time of their encounter including a strong odor of alcohol, bloodshot eyes,

slurred speech and open containers of alcohol observed in her vehicle.       The testimony

concerning Giering’s slurred speech was supported by the dash camera footage of the

traffic stop.

       {¶18} In addition to those factors, unlike the defendant in Bautista, the evidence in

this case demonstrated erratic driving by Giering preceding the stop.         Furthermore,

Garris testified that Giering was physically slumped against the steering wheel during his

interactions with her. Finally, Giering refused to comply with Garris’s orders to exit her

vehicle.   On these facts, we find the record demonstrates probable cause to support her

arrest for OVI.
       {¶19} Giering’s first assignment of error is overruled.

       II. Stipulation to Prior Conviction

       {¶20} In her second assignment of error, Giering argues that the trial court erred in

refusing to accept her offer to stipulate to the fact that she had a prior OVI offense.

       {¶21} As part of its burden in establishing that Giering had committed an OVI

with a prior conviction in violation of R.C. 4511.19(A)(2)(a), the state necessarily needed

to establish the fact of a prior OVI conviction. Giering filed a motion in limine wherein

she offered to stipulate to a 2013 OVI conviction so as to preclude the state from

introducing evidence of the fact that she had four prior OVI offenses.              The state

responded and stated its intention to introduce evidence of only one prior OVI offense.

       {¶22} In State v. Creech, Slip Opinion No. 2016-Ohio-8440, the Ohio Supreme

Court held that:

       [W]hen the name or nature of a prior conviction or indictment raises the
       risk of a jury verdict influenced by improper considerations, a trial court
       abuses its discretion when it refuses a defendant’s offer to stipulate to the
       fact of the prior conviction or indictment and instead admits into evidence
       the full record of the prior judgment or indictment when the sole purpose of
       the evidence is to prove the element of the defendant’s prior conviction or
       indictment.

Id. at ¶ 40.

       {¶23} We find any violation of Creech in this instance to be harmless error.       At

trial, when the issue was raised, the trial court accepted Giering’s stipulation without

objection by the state.   The references in the record to Giering’s prior OVI conviction

were harmless and do not implicate the “name or nature” risk with which Creech was
concerned.     The state referenced in its opening and closing argument that it needed to

prove that Giering had a prior OVI conviction and that Giering did indeed have such a

conviction.    No references were made to the fact that Giering had three additional OVI

convictions.

       {¶24} Here, the fact that Giering had a prior OVI conviction was an element of the

offense.    This situation is easily distinguishable from Creech in that there was no

prejudice to the defendant in the unveiling of the identity of the prior offense to the jury.

There was never a mystery to protect as to what Giering’s prior offense had been.

Furthermore, there were no details of the “nature” of Giering’s prior OVI admitted into

evidence.     Indeed, at side bar the state’s fifth exhibit, a certified docketing entry from

Giering’s 2013 OVI offense in Stow Municipal Court, was referenced in conjunction with

Giering’s unopposed stipulation.       The exhibit was admitted into evidence without

objection with the state’s other exhibits and never referenced again.

       {¶25} We find no Creech error in this instance.

       {¶26} Giering’s second assignment of error is overruled.

       III. Sufficiency of the Evidence

       {¶27} In her third assignment of error, Giering argues that the state failed to

present sufficient evidence to support her OVI conviction.

       {¶28} A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state has met its burden of production at trial.

State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.
Thompkins, 78 Ohio St.3d 380, 390,            678 N.E.2d 541 (1997). When reviewing

sufficiency of the evidence, an appellate court must determine “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.” State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a

sufficiency inquiry, an appellate court does not assess whether the state’s evidence is to

be believed but whether, if believed, the evidence admitted at trial supported the

conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing

Thompkins at 387; Jenks at paragraph two of the syllabus.

       {¶29} Giering was convicted of OVI in violation of R.C. 4511.19(A)(1)(a) which

provides:

       (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.

       {¶30} This court has noted that field sobriety tests are not a necessary factor in an

OVI conviction because, otherwise, “those with certain medical conditions would have a

free pass to drive drunk or under the influence of a drug of abuse.” Solon v. Hrivnak, 8th

Dist. Cuyahoga No. 100411, 2014-Ohio-3135, ¶ 17, quoting State v. Strebler, 9th Dist.

Summit No. 23003, 2006-Ohio-5711, ¶ 17.          Instead, to prove impaired driving ability,

the state can rely not only on coordination tests such as the field sobriety tests but also on
physiological factors such as slurred speech, bloodshot eyes, and the odor of alcohol. Id.

at ¶ 18, citing State v. Clark, 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, ¶ 13.

       {¶31} In this instance, Giering’s erratic driving was evident from Ranger Garris’s

dash camera footage.     In the short time Garris followed Giering, she committed multiple

traffic violations.   Giering’s struggle to stay in her lane immediately after merging onto

Route 2 was evident from the video footage. The testimony of Garris and Madlock

established that she had been engaging in alcohol consumption. This testimony was

further confirmed by the      video footage of Giering following her arrest including her

conduct in the backseat of Madlock’s cruiser and at the Bratenahl police headquarters

where she fell off of a stool.

       {¶32} We find that the state offered sufficient evidence to support Giering’s OVI

conviction. We need not address appellant’s guilty finding as to OVI with a prior

offense in violation of R.C. 4511.19(A)(2) as that offense merged with the above

analyzed OVI offense. See State v. Franks, 8th Dist. Cuyahoga No. 103682,

2016-Ohio-5241, ¶ 18 (explaining that any sufficiency error as to merged counts would

be harmless error); State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶

14 (holding that when counts in an indictment are allied offenses, and there is sufficient

evidence to support the offense on which the state elects to have the defendant sentenced,

the appellate court need not consider the sufficiency of the evidence on the count that is

subject to merger because any error would be harmless).

       {¶33} Giering’s third assignment of error is overruled.
       IV. Manifest Weight

       {¶34} In her fourth assignment of error, Giering argues that her OVI conviction

was against the manifest weight of the evidence.

       {¶35} A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial. State v.

Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78

Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga

No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may

determine that a judgment of a trial court is sustained by sufficient evidence, but

nevertheless conclude that the judgment is against the weight of the evidence.

       {¶36} “When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may

disagree with the factfinder’s resolution of conflicting testimony.” Thompkins at 387,

quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The

reviewing court 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.

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st

Dist.1983). In conducting such a review, this court remains mindful that the credibility of

witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and

two of the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional

case in which the evidence weighs heavily against the conviction.” Thompkins at 387,

quoting Martin, supra.

       {¶37} For the same reasons addressed in Giering’s third assignment of error, we

find no merit to Giering’s manifest weight challenge. Much of the evidence in this case

was captured on video or in photographs of the interior of Giering’s vehicle and lent

strong credence to the testimony of the arresting officers.

       {¶38} Giering’s fourth assignment of error is overruled.

       {¶39} The judgment of the trial court is affirmed.

       It is ordered that appellee   recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and
MARY J. BOYLE, J., CONCUR
