[Cite as State v. Greaves, 2014-Ohio-2446.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 2013-CA-91
          Plaintiff-Appellee                      :
                                                  :     Trial Court Case No. 13-CR-352
 v.                                               :
                                                  :
 RICARDO GREAVES, II                              :     (Criminal Appeal from Clark
                                                  :     (County Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                              ...........
                                              OPINION
                                Rendered on the 6th day of June, 2014.
                                              ...........

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia
Street, 4th Floor, Springfield, Ohio 45501
        Attorney for Plaintiff-Appellee

JOHN A. FISCHER, Atty. Reg. #0068346, Drearie & Fischer LLC, 70 Birch Alley, Suite 240,
Beavercreek, Ohio 45440
      Attorney for Defendant-Appellant

                                              .............

HALL, J.,

        {¶ 1}     Ricardo Greaves appeals from his conviction and sentence on one count of
operating a vehicle while intoxicated (OVI), a fourth-degree felony.

        {¶ 2}    Greaves advances two assignments of error. First, he contends the trial court

erred in failing to suppress field-sobriety test results where an arresting officer lacked reasonable,

articulable suspicion to conduct the tests. Second, he claims the trial court erred in failing to

allow a defense witness to testify as an expert during a suppression hearing about the expert’s

purported opinion that the arresting officer’s administration of two field sobriety tests was not in

substantial compliance with field-sobriety test standards.

        {¶ 3}    The suppression-hearing transcript reflects that Ohio State Highway Patrol

trooper Jason Cadle was alerted to Greaves’ vehicle by an unidentified driver’s call to a DUI

hotline around 4:00 a.m. (Suppression Tr. at 8, 21, 38). After locating Greaves’ vehicle, Cadle

observed it “swerving back and forth in [its] lanes” and “taking up the roadway a little bit.” (Id. at

8). Cadle pulled behind Greaves’ car and saw it “straggling [sic] the lines.” He activated his

overhead lights and made a traffic stop. (Id.). Upon approaching Greaves, Cadle detected a

“[s]trong odor of an alcoholic beverage coming from his person.” In addition, the trooper noticed

that Greaves’ “[e]yes were red shot and glassy.” Cadle also noted that Greaves “was a little

disoriented.” (Id.). Greaves admitted that he “was drinking earlier in the night when he got off of

work.” (Id. at 9).

        {¶ 4}    Based on his observations, Cadle asked Greaves to step out of the car. The

trooper did not notice any “obvious impairment” to Greaves’ motor skills when he did so. (Id. at

39). Cadle then performed three standardized field-sobriety tests: the horizontal-gaze nystagmus

(HGN) test, the one-leg stand test, and the walk-and-turn test. (Id. at 9). During the suppression

hearing, Cadle testified about his experience and training with field-sobriety tests, how the tests

are to be administered, how he administered them here, and how Greaves performed. (Id. at
                                                                                                    3


9-20).

         {¶ 5}   On the HGN test, Cadle detected six clues out of six. He explained that detecting

four or more clues is indicative of intoxication. (Id. at 12). With regard to the one-leg stand test,

Cadle observed four clues. He stated that detecting two or more clues is indicative of impairment.

(Id. at 14-15). On the walk-and-turn test, Cadle saw three clues. He testified that detecting two or

more clues is considered a failure. (Id. at 17-18). On cross examination, Cadle stated that the

standards for performing field-sobriety tests are established by the National Highway Traffic

Safety Administration (NHTSA). (Id. at 24). After administering the tests, Cadle arrested

Greaves for operating a vehicle while intoxicated. At the police station, Greaves took a breath

test, which he failed. (Id. at 18, 38).

         {¶ 6}   The only other witness was Ken Parson, a police officer who was on medical

leave. Parson testified as a defense witness. He opined at some length about the NHTSA

standards and how they require field-sobriety tests to be performed. (Id. at 40-73). He indicated

he reviewed the video of the tests performed by Greaves. (Id. at 43). However, the trial court

refused to allow him to testify as an expert witness to give opinion testimony as to whether Cadle

substantially complied with the NHTSA standards in this case. (See, e.g., id. at 52-55).

         {¶ 7}   Following the suppression hearing, the trial court found substantial compliance

with the NHTSA standards and overruled Greaves’ motion to suppress the field-sobriety test

results. (Doc. #18). Greaves then entered a no-contest plea to one count of OVI. (Doc. #20). The

trial court found him guilty and imposed a two-year prison sentence. (Doc. #26). This appeal

followed.

         {¶ 8}   In his first assignment of error, Greaves contends the field-sobriety test results
                                                                                                                                               4


should have been suppressed. In support, he claims Cadle was not entitled to conduct the tests

because he lacked reasonable, articulable suspicion of alcohol-related impairment. 1 Greaves

stresses the absence of any “obvious impairment” to his motor skills when he exited his car. He

also argues that his odor of alcohol, red and glassy eyes, and slight disorientation did not

necessarily mean he was impaired and did not justify administering the tests. In support, he cites

Cadle’s admission that smelling of alcohol by itself does not mean a person is impaired. He also

cites Cadle’s acknowledgment that the time of day or a lack of sleep can affect a person’s eyes.

Greaves reasons that “[a]n officer cannot have a reasonable articulable suspicion that a person is

intoxicated when explanations exist for the alleged indicia of intoxication that an officer is

relying on[.]”

         {¶ 9}        Upon review, we find Greaves’ argument unpersuasive. The fact that innocent

explanations could exist for the signs of impairment Cadle saw did not preclude reasonable,

articulable suspicion of intoxication. Indeed, the Ohio Supreme Court has rejected the

proposition that reasonable, articulable suspicion cannot exist where each factor upon which an

officer relies has a potentially innocent explanation. State v. Batchili, 113 Ohio St.3d 403,

2007-Ohio-2204, 865 N.E.2d 1282, ¶ 18-19; see also State v. Patterson, 2d Dist. Montgomery

No. 23395, 2009-Ohio-4946, ¶ 25 (“When establishing a reasonable, articulable suspicion of

criminal activity, the State need not exclude each and every possibility of innocent activity that

might imply non-criminal behavior.”).



            1
             In the proceedings below, Greaves did not challenge Cadle’s right to make a traffic stop based on the driving he observed. Instead,
 he argued that after making the stop the trooper lacked sufficient indicia of alcohol-related impairment to justify administering field-sobriety
 tests. (Suppression Tr. at 37-38).
[Cite as State v. Greaves, 2014-Ohio-2446.]
        {¶ 10} Based on our review of the record, we believe Cadle had reasonable, articulable

suspicion of alcohol-related impairment to justify administering field-sobriety tests. Greaves was

stopped around 4:00 a.m. after an unidentified motorist reported him to a DUI hotline. Before

making a stop, Cadle observed Greaves’ car “swerving back and forth in [its] lanes” and “taking

up the roadway a little bit.” More significantly, Cadle testified that he saw the car “straggling the

lines.” 2 After making a traffic stop (an act Greaves does not challenge), Cadle detected a

“[s]trong odor of an alcoholic beverage coming from [Greaves’] person.” His “[e]yes were

[blood] shot and glassy,” and he “was a little disoriented.” Greaves admitted to Cadle that he

“was drinking earlier in the night[.]” In our view, these facts created a reasonable suspicion of

alcohol-impaired driving and justified administering field-sobriety tests.

        {¶ 11} Greaves’ citation to State v. Derov, 7th Dist. Mahoning No. 07 MA 71,

2009-Ohio-5513, fails to persuade us otherwise. In that case, the Seventh District found no

reasonable, articulable suspicion to warrant field-sobriety tests where the defendant had been

stopped for an expired-tag violation. In support, the Seventh District noted that a trooper had

“asked Derov to submit to the field sobriety tests based solely on the time of night, Derov’s red

glassy eyes, and the fact he noticed a strong smell of alcohol coming from her person.” Id. at ¶

15. Although the defendant admitted consuming alcohol at some point during the stop, the timing

of the admission was unclear and the appellate court apparently did not rely on that fact.

        {¶ 12} Here the record contains relevant facts in addition to the time of night, the

condition of Greaves’ eyes, and the existence of a strong odor of alcohol. Specifically, Cadle

received a report of a possible DUI and observed somewhat erratic driving. Greaves appeared “a



          2
           We presume that Cadle either said or meant “straddling.”
                                                                                                      6


little disoriented” after being stopped. Prior to participating in field-sobriety tests, he also

admitted consuming alcohol. These additional facts sufficiently distinguish the present case from

Derov. The first assignment of error is overruled.

       {¶ 13} In his second assignment of error, Greaves claims the trial court erred in failing

to qualify Ken Parson as an expert so he could render an opinion about Cadle’s lack of

substantial compliance with NHTSA standards.

       {¶ 14} Evidence Rule 702 states: “A witness may testify as an expert if all of the

following apply: (A) The witness’ testimony either relates to matters beyond the knowledge or

experience possessed by lay persons or dispels a misconception common among lay persons; (B)

The witness is qualified as an expert by specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony; (C) The witness’ testimony is based on

reliable scientific, technical, or other specialized information.” “Determinations of expert

qualifications to testify are within the discretion of the trial court. Thus, all questions concerning

the admission or exclusion of this type of evidence are considered on an abuse of discretion

basis.” (Citation omitted) State v. Awkal, 76 Ohio St.3d 324, 331, 667 N.E.2d 960, 968 (1996).

       {¶ 15} In the present case, the trial court did not specify why it refused to allow Parson

to express an opinion as an expert. After hearing testimony about his training and experience as a

police officer and listening to competing arguments from counsel, the trial court simply declared:

“I am not going to qualify this witness as an expert witness. He certainly is entitled to testify if he

has pertinent, relative information. Probative information relating to this case. But he will not be

permitted to render opinion testimony in this matter.” (Suppression Tr. at 54-55).

       {¶ 16} Prior to the trial court’s ruling, Parson testified that he had twelve and one-half
                                                                                                      7


years of experience with the Monroe Police Department. (Id. at 41). He held a two-year degree in

criminal justice and twice had been trained in OVI detection. Parson testified that he had learned

about NHTSA standards for field-sobriety tests during his formal training. (Id. at 44).           In

addition, he had performed “hundreds” of field-sobriety tests and had been involved in roughly

fifty OVI arrests. (Id. at 41, 43). In connection with his work as a police officer, Parson

previously had testified about field-sobriety tests in OVI cases. (Id. at 51). On cross examination,

however, he acknowledged that he never had testified as an expert witness. (Id. at 47). He also

never had written a learned treatise or been part of a research group developing field-sobriety test

standards. (Id.). He had not administered a field-sobriety test in more than a year and never had

testified about another officer’s performance of a test. (Id. at 48). Nor had he given a seminar

about field-sobriety tests or published any research on the topic. (Id. at 48-49). Perhaps most

importantly, we did not see testimony that he had any particular knowledge, experience or

training, as to what exactly “substantial compliance” means in the context of field sobriety tests.

       {¶ 17} Based on the foregoing evidence, we have difficulty saying that the trial court

abused its discretion. Parson plainly did not qualify as an academic expert in the administration

of field-sobriety tests. We have also noted the lack of evidence about his understanding of the

meaning of “substantial compliance.” If we were deciding the issue, however, we might be

inclined to find that he qualified as an expert based on specialized knowledge, experience, and

training, namely his twelve years of law-enforcement experience, his formal training on NHTSA

standards, and his performance of hundreds of field-sobriety tests. Indeed, testimony in the form

of opinion is not objectionable solely because it embraces the ultimate issue to be decided by a

trier of fact. Evid. R. 704. We further recognize that whether the trial court abused its discretion
                                                                                                     8


in excluding expert testimony is a close question made more difficult by its failure to articulate its

reasoning. But in the context of this record, where the witness was permitted to testify at length

about NHTSA standards and his observations from the cruiser video (the same video that was

presented to the trial court) we cannot say that the trial court abused its discretion by excluding

his opinion about lack of “substantial compliance.”

       {¶ 18} In any event, even if we accept Greaves’ assertion that the trial court abused its

discretion in not allowing Parson to testify as an expert on the issue of “substantial compliance,”

the error was harmless. Even if admissible, the opinion testimony the trial court precluded would

not have been particularly helpful. Greaves essentially wanted Parson to opine that Cadle did not

substantially comply with NHTSA standards when administering the field-sobriety tests. While

disallowing this opinion testimony, the trial court permitted Parson to testify at length about the

applicable standards and what they require. (Id. at 40-73). This court has recognized that

substantial compliance with NHTSA’s requirements “is a legal standard for a court’s

determination.” State v. Davis, 2d Dist. Clark No. 2008 CA 65, 2009-Ohio-3759, ¶ 18. For that

reason, an arresting officer is not required to testify that he performed field-sobriety tests in

substantial compliance with NHTSA. Conversely, an opinion that the tests were not in substantial

compliance would not have supplanted the trial court’s obligation to determine whether the facts

supported the legal conclusion. A court must review the evidence and “independently” determine

whether the officer substantially complied with the standards. Id. at 18-19.

       {¶ 19}    Here Cadle testified about how he performed the tests, and Parson testified

about what the NHTSA standards required. The trial court was capable of comparing the two

itself and determining whether substantial compliance existed without Parson’s                 expert
                                                                                                 9


opinion. Cf. Waste Mgt. of Ohio v. Cincinnati Bd. of Health, 159 Ohio App.3d 806,

2005-Ohio-1153, 825 N.E.2d 660, ¶ 57 (“As to Robert Galbraith, CUFA argues that ERAC erred

when it refused to allow Galbraith to testify as to whether WMO was in substantial compliance

with the environmental laws. ERAC qualified Galbraith as an expert in hydrogeology and

groundwater issues, and he provided substantial testimony on that basis. However, ERAC limited

his testimony regarding compliance. * * * ERAC did not abuse its discretion when it excluded

this testimony because, first, the question whether WMO was in ‘substantial compliance’ with

Ohio environmental laws is a legal question, which requires no expert testimony, and, second, the

issue of substantial compliance is one that is well within ERAC’s expertise, based on its own

review of the record.”).

       {¶ 20} Finally, insofar as Greaves’ suppression motion challenged his arrest, we note his

concession below that the one-leg stand test was administered in substantial compliance with

NHTSA standards. (Suppression Tr. at 89). Therefore, no basis existed for suppressing the results

of that test. Even if we assume, arguendo, that the results of the other two tests were subject to

suppression and ignore them, Cadle still had probable cause to arrest Greaves for OVI based on

his observations and Greaves’ poor performance on the one-leg stand test. As set forth above,

Greaves was stopped around 4:00 a.m. after someone reported a possible DUI and Cadle

observed erratic driving. Upon approaching Greaves, the trooper detected a strong odor of

alcohol. Greaves’ eyes were bloodshot and glassy, he appeared a little disoriented, and he

admitted having consumed alcohol. He then failed the one-leg stand test by swaying, bringing his

arms away from his side, hopping, and putting his foot down. (Id. at 14). According to Cadle, any

two of these four actions were enough to establish “signs of impairment.” (Id. at 15). The video
                                                                                              10


demonstrates that his ability to walk, aside from the NHTSA clues that could be evident from the

walk-and-turn test, was appreciably impaired. Even if we discount the results of the HGN test

and the NHTSA walk-and-turn test, we believe the remaining evidence gave Cadle probable

cause to arrest Greaves for OVI. For the foregoing reasons, the second assignment of error is

overruled.

       {¶ 21} The judgment of the Clark County Common Pleas Court is affirmed.

                                        .............



FROELICH, P.J., and WELBAUM, J., concur.



Copies mailed to:

Lisa M. Fannin
John A. Fischer
Hon. Douglas M. Rastatter


Case Name:    State of Ohio v. Ricardo Greaves, II
Case No:              Clark County App. No. 13-CA-91
Panel:                Froelich, Hall, Welbaum
Author:               Michael T. Hall
Summary:
