[Cite as State v. Terry, 2017-Ohio-2686.]




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

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 27102
          Plaintiff-Appellee                      :
                                                  :   Trial Court Case No. 15-TRC-5733
 v.                                               :
                                                  :   (Criminal Appeal from Kettering
 AMANDA L. TERRY                                  :    Municipal Court)
                                                  :
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                               Rendered on the 5th day of May, 2017.

                                             ...........

JOHN D. EVERETT, Atty. Reg. No. 0069911, City of Kettering Prosecutor’s Office, 2325
Wilmington Pike, Kettering, Ohio 45420
      Attorney for Plaintiff-Appellee

FRANK M. BATZ, Atty. Reg. No. 0078151, 126 North Philadelphia Street, Dayton, Ohio
45403
      Attorney for Defendant-Appellant

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

BROGAN, V.J.
                                                                                           -2-




       {¶ 1} Defendant-appellant Amanda Terry appeals from her conviction and

sentence for failure to maintain continuous lanes in violation of City of Kettering ordinance

432.08, operating a vehicle while intoxicated (with a prior offense) in violation of R.C.

4511.19(A)(1)(a), and OVI test refusal in violation of R.C. 4511.19(A)(2).

       {¶ 2} Kettering Police Officer, Matthew Burian, was on routine patrol on August 10,

2015. At approximately 2:20 a.m., he was at the intersection of Stroop Road and Far

Hills Avenue, when he observed a vehicle traveling east on Stroop. He observed the

vehicle abruptly cross over the lane markers so that it was straddling the lane marker for

the through-lane and the left turn lane. The vehicle then returned to the through lane,

and continued traveling on Stroop Road crossing Far Hills Avenue. Burian followed the

vehicle.   As it approached the intersection with Shroyer Road, Burian observed the

vehicle drift into the right lane by approximately three tire widths before drifting back into

the left lane of travel. The vehicle then turned left onto Shroyer Road. Burian initiated a

traffic stop.

       {¶ 3} Burian approached the driver, identified as Terry, and asked for her driver’s

license and proof of insurance. Burian detected a strong odor of alcohol emanating from

Terry. He also noted that her eyes appeared glassy and watery, and that her speech

was slurred. Terry began sifting through a wallet, and Burian observed numerous items

from the wallet fall into her lap. Terry attempted to give Burian a debit card, which he

rejected. She then gave him her driver’s license, but was unable to provide proof of

insurance. Burian asked Terry where she had been, at which time she stated she had

dropped a friend off and was heading to her home. Burian noted that she was traveling
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in the wrong direction, away from her home, at which time Terry stated that she was

stopping at the Shell gas station. Burian noted she had passed the station which was

located at the intersection of Stroop Road and Far Hills.

      {¶ 4} Burian ran Terry’s license through his cruiser computer. He observed that

Terry had two prior OVI convictions, at which time he requested backup. Officer Thomas

Engles arrived on the scene. Burian then returned to the Chevy, and asked Terry to step

out of the vehicle. Burian escorted Terry to a flat driveway. She was unsteady on her

feet, and swaying, as she walked. He asked her if she had any physical conditions that

would prevent her from performing field sobriety tests. Terry informed him that she had

suffered a head trauma approximately ten years earlier, and that she suffered from PTSD

as well as a spinal cord condition. Although Burian asked for more specificity, he did not

receive any more information from Terry. Terry confirmed that she had no issues with

standing or walking normally, and that she did not wear contact lenses.

      {¶ 5} Burian proceeded to conduct the horizontal gaze nystagmus (HGN) test,

which indicated impairment. He then conducted the Walk and Turn test, as well as the

One-Legged Stand test. Both tests indicated impairment. Burian then administered a

finger to nose test that is standard for the Kettering Police Department. Again, the test

indicated impairment.    At that point, Burian placed Terry under arrest.       She was

transported to the Kettering Police Department jail. Burian asked her to submit to a

breathalyzer test, and read her the BMV Form regarding such tests. Terry refused to

submit to the test. She was advised that her license would be suspended, at which point

she refused to be interviewed further.
                                                                                            -4-


       {¶ 6} Terry filed a motion to suppress which was overruled by the trial court on

September 30, 2015. She subsequently filed a subpoena seeking to have a Veteran’s

Administration Staff Psychologist testify at trial. On December 31, 2015, the VA sent a

letter to Terry’s counsel indicating that Terry needed to sign a release for medical records,

and that she needed to submit a written request and affidavit to the VA in order to have

staff testify at trial. On Jaunary 5, 2016, Terry filed a motion for a continuance of the trial

that was set for January 6. The trial court granted the motion, and trial was reset for

February 24, 2016.

       {¶ 7} On February 17, 2016, Terry reissued a subpoena seeking to have the VA

psychologist, as well as a VA medical doctor, testify at trial. On the same day, she filed

a motion to compel or to dismiss arguing that the trial court should compel the VA staff to

testify at trial, and in the absence of such an order, dismiss the case against her.

Attached to the motion was a copy of a notarized note indicating that Terry was unable to

perform a breathalyzer test that required her to lock her mouth around a tube. The note

was signed by a VA psychologist. Also attached to the motion was a document entitled

Request and Demand for Testimony and Records. The request indicated that it was

hand-delivered to the Kettering Prosecuting Attorney, but does not indicate a date of

service. The motion was overruled.

       {¶ 8} On February 22, Terry filed a waiver of trial by jury. A trial to the court was

conducted on February 24, 2016. At that time, the parties stipulated that medical records

presented by Terry would be admitted into the record. Additionally, defense counsel

stated that the VA would not allow its staff to appear at trial. The trial court then noted

that the motion to compel or dismiss had been overruled because the records that would
                                                                                          -5-


have been testified to were being admitted by stipulation.

       {¶ 9} At trial, Terry testified that on the date of the arrest, she had been asleep

when an acquaintance called her at approximately 1:45 a.m. asking her for a ride. Terry

gave the individual a ride to an address behind the Shell Gas Station located at the corner

of Stroop Road and Far Hills Avenue. She testified that she was on her way home, when

the acquaintance called to inform her that she had left her purse in Terry’s car. Terry

testified that she turned around to return to the Shell station when she was stopped. She

testified that she informed Burian of her reason for heading back toward the Shell station.

Terry denied consuming any alcohol. She testified that she had suffered an assault ten

years in the past which damaged her eye sockets, eye muscles and spinal cord. She

testified that these injuries prevented her from performing the field sobriety tests. She

further testified that she informed Burian that she could not perform a breathalyzer test,

and that she had a note to that effect. She testified that she did not refuse to take the

breathalyzer. On cross-examination, she admitted that she is able to walk in high heels,

and that the psychologist who wrote the note regarding the breathalyzer did not test her

actual ability to take such a test.

       {¶ 10} Burian testified that Terry did not inform him about returning to the Shell

station to return a purse. He further testified that she never mentioned a note regarding

her inability to perform a breathalyzer test. He stated that Terry did make comments that

indicated she did not understand why she had been stopped or was having to undergo

field sobriety tests. Burian testified that Terry kept interrupting him while he read her the

Ohio BMV Form 2255 regarding breathalyzer testing, but that she was merely claiming

that the breathalyzer was not legal because it was not administered before her arrest.
                                                                                          -6-


        {¶ 11} Officer Engles testified that he observed Terry swaying as she walked. He

testified that she stated that she could not be arrested because she had not taken a

breathalyzer test. Engles testified he told her that she would be able to take that test at

the jail, to which she responded that she looked forward to it. He testified that she did

not mention any note regarding the breathalyzer test or the inability to perform a breath

test.

        {¶ 12} Terry appeals from her convictions for OVI and refusing a breath test,

claiming that they were against the manifest weight of the evidence and based on

insufficient evidence. “A sufficiency of the evidence argument disputes whether the

State has presented adequate evidence on each element of the offense to allow the case

to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented

sufficient evidence to support a conviction, the relevant inquiry is whether any rational

finder of fact, after viewing the evidence in a light most favorable to the State, could have

found the essential elements of the crime proven beyond a reasonable doubt. State v.

Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be

disturbed on appeal unless “reasonable minds could not reach the conclusion reached by

the trier-of-fact.” Id.

        {¶ 13} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.”       Wilson at ¶ 12.     When evaluating whether a

conviction is against the manifest weight of the evidence, the appellate court must review
                                                                                          -7-


the entire record, weigh the evidence and all reasonable inferences, consider witness

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, 78 Ohio St.3d at 387, 678 N.E.2d

541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 14} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder's decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight of

the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485

N.E.2d 717.

       {¶ 15} Terry claims that her inablility to perform the field sobriety tests was due to

her medical conditions. She further contends that she informed Burian that her past

facial/head trauma prevented her from being able to perform a breathalyzer test. In

support, she submitted medical records indicating that she suffered an attack in 2006

which broke bones in her face. Included therein is a letter from a social worker which

mentions that Terry is unable to concentrate. The letter went on to state that it was not

known whether the concentration problem was related to her diagnosis of PTSD following

the attack, or to traumatic brain injury suffered during the attack. Terry also presented a

note from a Veteran’s Administration Staff Psychologist which indicated that Terry had

facial trauma which rendered her unable to use any standard breathalyzer because she
                                                                                         -8-


cannot lock her mouth around a tube.

       {¶ 16} A review of the medical records submitted at trial reveals that Terry did in

fact suffer an assault that resulted in her serious physical injury as well as psychological

injury. However, there are no medical records supporting a diagnosis of traumatic brain

injury. While there was evidence to support a finding that Terry suffers from PTSD, the

medical evidence does not support a claim that this rendered her incapable of

concentrating or understanding the field sobriety instructions. Indeed, an August 2012

record suggests that Terry suffered no limitations of understanding or memory. The

record also notes that she follows complex commands.

       {¶ 17} While the psychologist’s note indicates that Terry was, as of October 2013,

unable to perform a breathalyzer test, there was no medical evidence to corroborate this

claim or to indicate that the condition continued as of the current offense date, almost two

years later. Likewise, there is evidence in the records that as of December 2013, Terry

suffered from left-sided numbness with evidence of cervical cord compression.

However, the record indicates that the doctor recommended that she engage in physical

therapy which, if successful, would eliminate the need for surgery. The record contains

no evidence that this injury affects her ability to walk or stand. Further, there is no

indication whether the problem still exists. There is also evidence that she suffered a

fracture to the bones around the right eye. However, there was no evidence that this

resulted in any issues with vision.

       {¶ 18} In sum, the medical records submitted by Terry corroborate injury, but they

do not corroborate any issues that would impede her ability to perform a field sobriety

test. Thus, we cannot say that the evidence was insufficient to convict the defendant,
                                                                                          -9-


nor can we say that the convictions are against the manifest weight of the evidence.

       {¶ 19} Terry next claims that the trial court committed prejudicial error by violating

her Sixth Amendment right to obtain witnesses in her favor. Specifically, she contends

that the trial court’s refusal to compel a VA doctor and psychologist to testify prevented

her from presenting witnesses in support of her current medical condition. She claims that

the VA witnesses were necessary to build a foundation for the admission of Terry’s

medical records, which records support her claim that her medical conditions prevented

her from performing the field sobriety tests and the breathalyzer test.

       {¶ 20} Pursuant to 5 U.S.C. Section 301, a federal agency may enact regulations

governing testimony by its employees. The Veterans’ Administration regulations for

subpoenaing its employees are set forth at 38 C.F.R. 14. While a federal employee is

not exempt from appearing pursuant to subpoena, a state court “may not hold a federal

employee in contempt for refusing to comply with a subpoena when he acts in accordance

with a validly enacted agency regulation * * *.” Renfrow v. Norfolk S. Ry. Co., 140 Ohio

St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, ¶ 30.

       {¶ 21} Terry does not deny that the VA required the submission of a signed

medical release, as well as a request for testimony setting forth the necessity of such

testimony before its employees would be permitted to testify. See 38 C.F.R. 14.804 and

14.805. But she contends that she complied with the requirements. In support, she

notes that attached to her motion to compel was a copy of a document entitled Request

and Demand for Testimony and Records.

       {¶ 22} As stated above, the VA originally sent Terry a letter regarding subpoena

requirements on December 31, 2015.         The trial court continued the trial, at Terry’s
                                                                                         -10-


request, due to the need to comply with the VA’s requirements. The record indicates

that she made no attempt to meet those requirements until just one week prior to the new

trial date, approximately a month and a half after the letter from the VA was issued.

Further, the copy of the document requesting testimony and records contains no

signature or date, and does not indicate that it was ever provided to the VA. There is

nothing in the record, other than counsel’s statement at the beginning of trial, that the VA

refused to provide the employees for trial. From the record before us, it is impossible to

tell whether the VA employees were available to testify, or whether Terry’s counsel simply

chose not to call them to the stand.

       {¶ 23} “[T]he constitutional issue of whether these [type of federal] regulations

deny defendants a Sixth Amendment right to call and cross-examine witnesses is not

reached until the defendants follow the procedures and then have their demands denied.”

State v. Hudson, 8th Dist. Cuyahoga No. 91803, 2009-Ohio-6454, ¶ 32.             From this

record, we cannot say that Terry complied with the requirements of the VA so that the

agency could consider the request and determine whether to grant permission for the

testimony. Therefore, we do not reach the claim that the trial court violated Terry’s Sixth

Amendment rights.

       {¶ 24} Further, we can find no prejudice. Terry asserts that the medical employee

testimony was necessary to lay a foundation for the introduction of Terry’s medical

records. But, as noted, medical records were stipulated to by the parties, and made a

part of the record. Terry does not claim that any medical records she desired to present

were not made a part of the record.

       {¶ 25} The decision whether to grant a motion to compel is entrusted to the
                                                                                          -11-

discretion of the trial court. Sojic v. Karp, 2015-Ohio-3692, 41 N.E.3d 888, ¶ 16 (2d

Dist.). We cannot conclude that the trial court abused its discretion by denying the

motion to compel in this action.

       {¶ 26} Finally, Terry contends that the trial court erred by denying her motion to

suppress. In support, she argues that the evidence shows that because she had medical

impairments, Burian did not perform the field sobriety tests in substantial compliance with

prodecures set by the National Highway Traffic Safety Adminstration.             Thus, she

contends that Burian did not have probable cause to arrest her.

       {¶ 27} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-

1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings of fact if

they are supported by competent, credible evidence. Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id. The

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14,

citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

       {¶ 28} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or
                                                                                             -12-


temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v.

Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry.                   We

determine the existence of reasonable suspicion by evaluating the totality of the

circumstances, considering those circumstances “through the eyes of the reasonable and

prudent police officer on the scene who must react to events as they unfold.” State v.

Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews,

57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271 (1991). “A police officer may stop and detain

a motorist when he has a reasonable and articulable suspicion that the motorist has

committed, is committing, or is about to commit any criminal offense, including a traffic

offense, and no independent reasonable and articulable suspicion of other criminal

activity is required under Terry.” State v. Chase, 2d Dist. Montgomery No. 25323, 2013-

Ohio-2347, ¶ 17.

       {¶ 29} At the hearing on the motion to suppress, Burian testified that he observed

Terry make two lane violations prior to initiating a traffic stop. Terry, who also testified

at the hearing, did not refute this claim. Thus, we conclude that the trial court did not err

in finding that Burian had a reasonable suspicion that Terry was committing a traffic

offense when he initiated the stop.

       {¶ 30} We next note that the testimony at the hearing indicates, and was not

refuted by Terry, that Burian conducted the field sobriety tests in accordance with the

appropriate regulations. Thus, the issue here is not substantial compliance. Instead,

Terry’s argument goes to the weight of the evidence submitted at the hearing, and

whether that evidence demonstrates that Terry’s medical conditions rendered her
                                                                                          -13-


incapable of performing the tests so as to mandate exclusion thereof.

       {¶ 31} Terry testified at the suppression hearing regarding her medical conditions,

and her claim that they rendered her incapable of performing the field sobriety tests.

However, no medical records or testimony was presented to corroborate her claims.1

Burian testified that, while Terry did convey the fact that she had suffered a head trauma,

she did not inform him that she was incapable of performing the tests or that she had any

ongoing medical condition that would impair her performance. Indeed, she indicated that

she had no difficulty standing or walking. Both Burian and Engles testified that Terry did

not give them any indication that she was unable to perform a breathalyzer test. The

trial court was entitled to give more credence to the testimony of the officers than to Terry.

       {¶ 32} On these facts we have little difficulty concluding that sufficient indicia of

impairment existed to cause a prudent officer to conclude that Terry was impaired: two

separate lane violations; glassy/watery eyes; strong odor of alcohol; slurred speech;

fumbled papers; attempt to give Burian a debit card rather than an operator’s license;

prior OVI; and performance on the field-sobriety tests. Taken together, these indicia

established probable cause to believe that Terry was driving under the influence. Thus,

we conclude that the trial court did not err in overruling the motion to suppress.

       {¶ 33} Based upon the record before us, we overrule all of Terry’s Assignments of

Error, and affirm the judgment of the trial court.

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




1
 At the time of the suppression hearing, Terry had taken no steps to obtain or introduce
any medical information.
                                                                                       -14-




HALL, P.J. and WELBAUM, J., concur.

(Hon. James A. Brogan, Retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).


Copies mailed to:

John D. Everett
Frank M. Batz
Hon. Frederick W. Dressel
