[Cite as State v. May, 2018-Ohio-1510.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106003



                                          STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                          CYNTHIA D. MAY

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-613335-A

        BEFORE: Boyle, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 19, 2018
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brandon Piteo
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

         {¶1}   Defendant-appellant, Cynthia May, appeals her convictions and raises one

assignment of error for our review:

         The Trial Court erred in entering convictions for Aggravated Vehicular Assault
         under R.C. 2903.08(A)(1)(a) and R.C. 4511.19(A)(1)(a), because the evidence
         was insufficient to support the convictions.

         {¶2}   Finding no merit to her assignment of error, we affirm.

I. Procedural History and Factual Background

         {¶3}   On February 14, 2017, a Cuyahoga County Grand Jury indicted May for seven

counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2), two counts of aggravated

vehicular assault in violation of R.C. 2903.08(A)(2)(b), and one count of driving while under the

influence in violation of R.C. 4511.19(A)(1)(a).

         {¶4}   May waived her right to a jury trial, and the following facts were presented to the

bench.

         {¶5} On June 30, 2016, Carla Ruffin, Phyllis Patterson-Brown (“Brown”), and Nicole

Patterson went to Your Place and Mine, a bar on East 55th Street in Cleveland. Patterson’s

husband worked there as a security guard. Ruffin drove the women in her car, a 2002 white

Chevy Malibu, and they arrived at the bar around 9:00 p.m.

         {¶6}   After the women ordered drinks, Patterson began talking to May, who was also

drinking at the bar that night.   While witnesses for the state and May gave different answers

when asked how many and what type of drinks May had that night, May testified that she had

two drinks.     According to some of the state’s witnesses, May was very emotional while at the

bar with Brown and Patterson. Brown testified that May had a number of drinks, including

Long Island iced teas and wine and was intoxicated.
       {¶7}    At some point, Patterson and May began arguing inside the bar. The argument

escalated as others became involved. Eventually, a number of patrons, including Patterson,

Brown, May, and Ruffin, walked outside toward May’s vehicle and continued to argue.

       {¶8}    According to the state’s witnesses, May began threatening Ruffin and swung her

fist at her.   Ruffin dodged the swing and responded by punching May with her keys and

knocking her to the ground. Contrary to the state’s witnesses, May testified that Ruffin attacked

her first and that a number of people assaulted her after she was knocked to the ground. During

the fight, May bit Ruffin’s finger, causing it to bleed. May was also bleeding from cuts on her

head and elbow as a result of the fight. The physical altercation was eventually broken up, and

the women went their separate ways. The other patrons who were watching the fight also

dispersed, some heading back toward the bar.

       {¶9}    Ruffin, Patterson, and Brown returned to Ruffin’s vehicle. Ruffin, who wanted to

go to the hospital to get her finger looked at, sat in the backseat, while Patterson sat in the front

passenger seat and Brown sat in the driver’s seat. May returned to her own vehicle, a white

Mitsubishi Galant, and started the ignition. Video surveillance from Your Place and Mine

shows that a few moments later, May’s car sped toward and collided with Ruffin’s car as well as

other vehicles nearby.   May’s car flipped onto its roof after colliding with the cars.

       {¶10} Witnesses testified that, despite her car being upside down, May immediately

exited her vehicle and began walking away from the scene. Two individuals who witnessed the

accident, however, ran after her to check on her well-being and brought her back to the bar’s

parking lot.

       {¶11} May testified that she lost consciousness after she turned on the ignition to her

vehicle and began to pull out of her parking spot.      She testified that the next thing she could
remember was dangling from her driver’s seat, strapped in by her seat belt.

       {¶12} As a result of the crash, Ruffin, Patterson, and Brown suffered minor injuries.

The collision left another man who was in the parking lot, Barry Tingle, pinned between two

cars. Tingle suffered a fractured tibia and a “gash” on one of his legs.

       {¶13} After receiving a 911 call, EMS personnel arrived and placed May inside an

ambulance and began treating some of the wounds she suffered as a result of the fight and crash.

Police officers, who showed up after the EMS, interviewed witnesses and victims on the scene,

including May, and obtained video surveillance showing the crash.             Officers testified that

during their interview with May, she refused to take a breathalyzer test, had glassy eyes, and

smelled of alcohol. The officers testified that they did not perform field sobriety tests because

of May’s injuries.   EMS subsequently transported May to MetroHealth hospital for further

treatment.   At the hospital, officers interviewed May further and requested that she submit to a

blood draw, which she refused.

       {¶14} The next day, May spoke to Detective Garner, who videotaped the interview and

obtained her version of the events. May told the detective that she was unconscious during the

time that her vehicle came into contact with Ruffin’s vehicle.

       {¶15} At trial, May moved the court for an acquittal pursuant to Crim.R. 29 after the state

rested its case. The court granted May’s motion with respect to one of the counts for felonious

assault, but denied the motion with respect to the remaining counts.       After May took the stand

in her defense, she again moved the court for an acquittal under Crim.R. 29, which the court

denied again.

       {¶16} The court found May guilty of six counts of felonious assault, two counts of

aggravated vehicular assault, and one count of driving while under the influence. The court
merged a number of the counts. As a result, the court sentenced May to six months for driving

under the influence, one year for aggravated vehicular assault, and two years each for the three

felonious assault counts.   The court ran all of those sentences concurrent to one another,

resulting in a two-year sentence. Further, as related to her conviction for aggravated vehicular

assault, the court suspended May’s driver’s license for five years and mandated that she receive

an alcohol/drug assessment and treatment and pay a fine for her conviction for driving under the

influence. Finally, the court imposed mandatory postrelease control for three years after May

completed her prison sentence.

       {¶17} It is from this judgment that May appeals.

II. Law and Analysis

       {¶18} In her sole assignment of error, May challenges the sufficiency of evidence

underlying her convictions for aggravated vehicular assault under R.C. 2903.08(A)(1)(a) and

operating a vehicle while under the influence of alcohol under R.C. 4511.19(A)(1)(a).

       {¶19} A sufficiency challenge essentially argues that the evidence presented was

inadequate to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). “The relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” (Emphasis sic.)      State v. Getsy,

84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).      “[A] conviction based on legally insufficient evidence

constitutes a denial of due process.” Thompkins at 386, citing Tibbs v. Florida, 457 U.S. 31,

102 S.Ct. 2211, 72 L.Ed. 652 (1982).

       {¶20} The court convicted May of two counts of aggravated vehicular assault in violation
of R.C. 2903.08(A)(1)(a), which supports a conviction for aggravated vehicular assault if the

person causes serious physical injury as a proximate result of operating a motor vehicle while

impaired under R.C. 4511.19. The court also convicted May of operating a vehicle while under

the influence of alcohol in violation of R.C. 4511.19(A)(1)(a).

       {¶21} In her brief, May argues that there was insufficient evidence to convict her under

R.C. 2903.08(A)(1)(a) and 4511.19(A)(1)(a) because the only evidence supporting a finding that

she was impaired was testimony that she had glassy eyes and smelled of alcohol after the

accident. She also points to statements made by some of the state’s witnesses who believed that

May was not intoxicated, but only upset.

       {¶22} Foremost, “an evaluation of the witness’s credibility * * * is not proper on review

for evidentiary sufficiency.”   State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶ 79. Therefore, while May is correct that some of the state’s witnesses testified

that they did not believe that she was impaired, that testimony goes to the credibility of the

witnesses and weight, not sufficiency, of the evidence.

       {¶23} Further, a trier of fact may rely on direct and circumstantial evidence in evaluating

a defendant’s guilt because both types of evidence carry the same weight and possess the same

probative value.   State v. Lash, 8th Dist. Cuyahoga No. 104310, 2017-Ohio-4065, ¶ 31. In

fact, “[a] conviction can be sustained based on circumstantial evidence alone.”          State v.

Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).

       {¶24} Under R.C. 4511.19(A)(1), “No person shall operate any vehicle * * * if, at the

time of the operation, * * * [t]he person is under the influence of alcohol[.]” “The term ‘under

the influence’ means that ‘the defendant consumed some [alcohol], * * * in such a quantity,

whether small or great, that it adversely affected and appreciably impaired the defendant’s
actions, reactions, or mental processes under the circumstances then existing[.]’” State v. Clark,

8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, ¶ 12, quoting 4 Ohio Jury Instructions 6,

Section 545.25. “[T]he state can rely on physiological factors (e.g., odor of alcohol, glossy or

bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and

mental ability to drive was impaired.”      State v. Kilbane, 8th Dist. Cuyahoga No. 99485,

2014-Ohio-1228, ¶ 23, citing Clark.    The state may also submit evidence that a person refused

to submit to a chemical test to determine alcohol consumption, and use lay-witness testimony to

establish that an individual is intoxicated. Maumee v. Anistik, 69 Ohio St.3d 339, 344, 632

N.E.2d 497 (1994); State v. Zetner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19,

citing State v. DeLong, 5th Dist. Fairfield No. 02CA35, 2002-Ohio-5289.

       {¶25} Viewing the evidence in a light most favorable to the prosecution, we find the state

presented sufficient evidence that a reasonable trier of fact could conclude that May was driving

under the influence under R.C. 4511.19(A)(1) and, thus, committed aggravated vehicular assault

under R.C. 2903.08(A)(1)(a). Here, May admitted that she consumed alcohol at Your Place and

Mine that night. A number of witnesses, including May herself, testified that she had more than

one alcoholic beverage while inside the bar. Brown, who testified that she had a number of

drinks with May, stated that when she and May walked outside the bar, May was “staggering.”

       {¶26} Further, Officers Calhoun and Porter, who were on the scene immediately

following the accident, testified that May had glassy eyes and detected an odor of alcohol coming

from May’s person. The officers also testified that May refused to submit to a breathalyzer test

and a blood draw. See Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968),

paragraph one of the syllabus (“The refusal of one accused of intoxication to take a reasonably

reliable chemical test for intoxication may have probative value on the question as to whether he
was intoxicated at the time of such refusal.”).

       {¶27} Finally, the state admitted a number of exhibits, including video surveillance from

the bar’s parking lot.   The footage shows May’s car traveling at a high rate of speed, swerving,

and directly hitting the vehicle containing the women with whom May was arguing with

moments earlier.     A trier of fact could certainly relate that dangerous and erratic driving to

alcohol impairment.

       {¶28} While there was no direct evidence of the level of alcohol content in May’s blood,

we find that the state presented sufficient direct and circumstantial evidence to allow a trier of

fact to determine that May operated a vehicle while impaired, thereby supporting her convictions

for aggravated vehicular assault under R.C. 2903.08(A)(1)(a) and operating a motor vehicle

while under the influence of alcohol under R.C. 4511.19(A)(1)(a).

       {¶29} May also argues that the fact that the trier of fact convicted her of multiple counts

of felonious assault establishes that she was not impaired because that offense requires an

intentional act.   Specifically, in her brief, May states, “Any evidence of impaired driving runs

contrary to the State’s theory” “that the collision was not an accident, but that Ms. May

intentionally drove her car into” the victims’ vehicle.   In other words, she argues that she could

not commit an intentional act if she was impaired and, thus, cannot be convicted of both

felonious assault under R.C. 2903.11(A)(1) and (2) and aggravated vehicular assault under R.C.

2903.08(A)(1)(a).

       {¶30} When determining whether a defendant was under the influence for purposes of

R.C. 4511.19, the defendant’s criminal intent is irrelevant. State v. Andera, 8th Dist. Cuyahoga

No. 92306, 2010-Ohio-3304, ¶ 19. On the other hand, under R.C. 2903.11(A), the mental state

for felonious assault is “knowingly.” “A person acts knowingly, regardless of purpose, when
the person is aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B).

       {¶31} Here, the facts and circumstances presented at trial showed that May and the

victims were arguing in the parking lot and engaged in a physical altercation before May got into

her vehicle.   A few moments later, May’s vehicle ran into the victims’ vehicle.    That evidence

tends to show that May was impaired, but still knew what she was doing and whose car she was

driving toward.

       {¶32} In conclusion, we reject May’s argument that it is legally impossible to be impaired

and to commit an intentional act.   Impaired individuals commit intentional acts all of the time.

Accordingly, we overrule May’s sole assignment of error.

       {¶33} Judgment 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 common pleas

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.




MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
