[Cite as State v. Romes, 2016-Ohio-5772.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                       C.A. No.       14CA0095-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BRIAN M. ROMES                                      MEDINA MUNICIPAL COURT
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   14 TRC 00284

                                 DECISION AND JOURNAL ENTRY

Dated: September 12, 2016



        MOORE, Judge.

        {¶1}    Defendant-Appellant, Brian Romes, appeals from his convictions in the Medina

Municipal Court. This Court affirms.

                                               I.

        {¶2}    During the early morning hours of January 5, 2014, Mr. Romes struck the rear

fender of Rebecca Brummer’s car. At the time, Ms. Brummer was a passenger in the car and her

fiancé, Jesse Gast, was the driver. There is no dispute that Mr. Romes, Ms. Brummer, and Mr.

Gast were acquainted and that, directly before the collision occurred, they had all been at a bar

near Litchfield Circle. According to Mr. Romes, he accidentally struck Ms. Brummer’s car in

the bar’s parking lot due to icy pavement conditions. According to Ms. Brummer, Mr. Romes

struck her car as she and Mr. Gast were stopped at a stop sign near Litchfield Circle. It was her

testimony that Mr. Romes had been drinking before the crash and was visibly intoxicated after it
                                                   2


occurred. Meanwhile, Mr. Romes claimed that he was not intoxicated when he struck Ms.

Brummer’s car.

       {¶3}       As a result of the foregoing incident, Mr. Romes was charged with one count of

operating a vehicle under the influence of alcohol (“OVI”) and one count of failing to maintain

an assured clear distance. The matter proceeded to a bench trial, at the conclusion of which the

court found Mr. Romes guilty of both charges. The court sentenced him to jail, probation, and a

fine, but stayed his sentence for purposes of filing an appeal.

       {¶4}       Mr. Romes now appeals from his convictions and raises two assignments of error

for our review.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       [MR. ROMES’] CONVICTION FOR [OVI] IS AGAINST THE SUFFICIENCY
       OF THE EVIDENCE IN VIOLATION OF [HIS] RIGHTS UNDER THE FIFTH,
       SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE
       CONSTITUTION.

       {¶5}       In his first assignment of error, Mr. Romes argues that his OVI conviction is

based on insufficient evidence. We disagree.

       {¶6}       The issue of whether a conviction is supported by sufficient evidence is a question

of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
                                                3


       {¶7}    “No person shall operate any vehicle * * * within this state, if, at the time of the

operation, * * * [t]he person is under the influence of alcohol * * *.” R.C. 4511.19(A)(1)(a).

“To prove impaired driving ability, the 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. Peters, 9th Dist. Wayne

No. 08CA0009, 2008-Ohio-6940, ¶ 5, quoting State v. Slone, 9th Dist. Medina No. 04CA0103-

M, 2005-Ohio-3325, ¶ 9, quoting State v. Holland, 11th Dist. Portage No. 98-P-0066, 1999 WL

1313665, *5 (Dec. 17, 1999). “[T]here is no prerequisite that an officer observe erratic driving

in order to effectuate an arrest for driving under the influence.” State v. Kurjian, 9th Dist.

Medina No. 06CA0010-M, 2006-Ohio-6669, ¶ 17.             Moreover, “virtually any lay witness,

without special qualifications, may testify as to whether or not an individual is intoxicated.”

State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19, quoting State v.

Delong, 5th Dist. Fairfield No. 02 CA 35, 2002-Ohio-5289, ¶ 60.

       {¶8}    Ms. Brummer testified that, on the evening of January 4, 2014, she and Mr. Gast

had dinner together and then went to a bar near Litchfield Circle. After they arrived, they saw

Mr. Romes, who was there celebrating the birthday of yet another mutual acquaintance of theirs.

Ms. Brummer testified that, over the course of the evening, she was able to observe Mr. Romes

and saw him drinking. When the bar closed at approximately 2:30 a.m., she and Mr. Gast left in

her car with Mr. Gast behind the wheel. As the two turned onto Route 83, they saw Mr. Romes’

car pulled off in the gravel behind a restaurant. Mr. Gast then drove over to Mr. Romes’ car and

stopped beside it so that they could check on him.

       {¶9}    According to Ms. Brummer, Mr. Romes was “slouched over” his steering wheel.

When he realized another car had pulled up next to him, Mr. Romes rolled down his window and
                                                4


Mr. Gast and Ms. Brummer did the same. Ms. Brummer testified that Mr. Romes slurred his

words when he spoke. Because they knew he had been drinking, Ms. Brummer and Mr. Gast

tried to persuade Mr. Romes to leave his car there and come with them. He refused, however, so

they convinced him to take his car down the road to the home of a mutual acquaintance and stay

there. According to Ms. Brummer, Mr. Romes agreed to that arrangement, and they followed

behind him as he drove his car there.

       {¶10} Ms. Brummer testified that, after she and Mr. Gast escorted Mr. Romes to the

arranged destination, they left and continued back down Route 83 toward Litchfield. She

testified that Mr. Gast stopped at a stop sign at Litchfield Circle while the two discussed where

they were headed. At that point, Ms. Brummer felt “a forceful hit from the rear” and realized

that another car had struck them. She then looked back and recognized Mr. Romes’ car. Ms.

Brummer stated that Mr. Gast motioned to Mr. Romes to drive out of the intersection and Mr.

Romes followed. After a brief conversation, they agreed to drive the cars to an area with better

lighting. They then drove a short distance to a nearby, residential driveway.

       {¶11} According to Ms. Brummer, Mr. Romes stumbled when he exited his car and he

and Mr. Gast began yelling at one another. She stated that she heard Mr. Romes apologizing,

stating that he was “sorry [he] drank so much.” She also stated that Mr. Romes was slurring his

words and appeared to be disoriented. She used her cell phone to call her mother and, while she

was on the phone with her mother, Mr. Romes reentered his car and drove off. Ms. Brummer

then ended the call with her mother and called 911.          She confirmed that, based on her

observations, she believed Mr. Romes was intoxicated at the time of the collision. She testified

that the crash occurred sometime between 2:30 a.m. and 3:00 a.m.
                                               5


       {¶12} At approximately 3:03 a.m., Ohio State Trooper Shawn Mollohan received a

dispatch regarding a two-car collision at Litchfield Circle. When he responded to the incident,

only one car was present and he learned that the other driver had left the scene. Trooper

Mollohan testified that he observed damage to Ms. Brummer’s vehicle, including an impression

mark left by the front license plate of the car that had struck hers. He spoke with Ms. Brummer

and Mr. Gast at the scene and learned that Mr. Romes was the other individual involved in the

crash. Ms. Brummer told Trooper Mollohan that Mr. Romes had been drinking while Mr. Gast

told him that he assumed Mr. Romes had been drinking. Trooper Mollohan then left the scene

and drove to Mr. Romes’ residence.

       {¶13} Trooper Mollohan testified that he arrived at Mr. Romes’ residence at

approximately 5:00 a.m. At that time, Mr. Romes was still awake and fully dressed. According

to Trooper Mollohan, he detected a very strong odor of alcohol around Mr. Romes and Mr.

Romes stumbled when he let Trooper Mollohan into his home. Trooper Mollohan observed that

Mr. Romes had “extremely bloodshot and glassy eyes” as well as slurred speech. He further

observed that Mr. Romes was carrying a whiskey in one hand and a beer in the other. When

Trooper Mollohan initially asked Mr. Romes about the collision that occurred, Mr. Romes stated

that “he really wasn’t sure what [they] were talking about * * *.” Mr. Romes denied that he was

involved in any collision, but later admitted that he had “bumped” Ms. Brummer’s car. Still, Mr.

Romes insisted that he had not damaged the car. He also told Trooper Mollohan that he did not

understand why it was necessary to complete a crash report because he had already arranged to

handle the matter privately. Trooper Mollohan testified that he ultimately decided to charge Mr.

Romes with an OVI because, based on his observations of Mr. Romes and the information he

received from Ms. Brummer, he believed that Mr. Romes had driven his car while intoxicated.
                                                 6


       {¶14} Joyce Brummer, Ms. Brummer’s mother, testified that she knew Mr. Romes

before this incident occurred and called him two days after the crash to try to get his insurance

information. She testified that, during the call, Mr. Romes apologized numerous times for

drinking and driving. According to Joyce, Mr. Romes stated that “[h]e was sorry, he had too

much to drink, he should not have been driving, and [] he did not mean to hurt anyone.” She

also stated that Mr. Romes admitted to leaving the scene of the crash so that he could drive home

and set out bottles of alcohol. She testified that, when she told Mr. Romes that his attempt to

make it appear that he was only drinking at home was “the oldest trick in the book,” he

responded “Yeah.”

       {¶15} Mr. Romes argues that his OVI conviction is based on insufficient evidence

because Trooper Mollohan never actually saw him operating a car and the testimony provided by

Ms. Brummer and her mother is unreliable. He notes that Trooper Mollohan identified several

inconsistences or inaccuracies in Ms. Brummer’s statement and/or testimony. He further argues

that Joyce Brummer was biased against him because she insured her daughter’s car and wanted

to see that he was responsible for its repair.

       {¶16} To the extent Mr. Romes argues that the State presented unreliable or biased

testimony, his argument sounds in weight rather than sufficiency. “A weight challenge tests the

persuasiveness of the evidence the State produced while a sufficiency challenge tests the very

production of that evidence.” State v. Poland, 9th Dist. Medina No. 14CA0003-M, 2014-Ohio-

5737, ¶ 24. A sufficiency challenge requires this Court to view the evidence in a light most

favorable to the State. Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. Accordingly,

in reviewing Mr. Romes’ first assignment of error, we may not review the persuasiveness of the
                                                 7


State’s evidence. Instead, we must limit our review to the sufficiency of that evidence. See

Poland at ¶ 24.

       {¶17} Mr. Romes does not dispute that, on the night in question, he operated his vehicle

and struck Ms. Brummer’s car. The only issue is whether he was intoxicated when the incident

occurred. Viewing all of the evidence in a light most favorable to the prosecution, we must

conclude that the State set forth evidence from which a rational trier of fact could have

concluded that Mr. Romes was intoxicated at that time. See Jenks at paragraph two of the

syllabus.

       {¶18} Both Ms. Brummer and her mother testified that they heard Mr. Romes apologize

for drinking too much and causing the crash. Ms. Brummer also stated that she saw Mr. Romes

drinking that evening and, immediately before and after the crash, made several observations that

led her to believe he was intoxicated. See Zentner, 2003-Ohio-2352, at ¶ 19, quoting Delong,

2002-Ohio-5289, at ¶ 60. Specifically, she testified that Mr. Romes was “slouched over” his

steering wheel before the crash, slurred his words, and stumbled when exiting his car. The State

also presented the testimony of Trooper Mollohan. Trooper Mollohan made contact with Mr.

Romes within two hours of the crash and testified that Mr. Romes was visibly intoxicated. He

stated that Mr. Romes smelled strongly of alcohol, had extremely bloodshot eyes, was slurring

his speech, and stumbled at least once. Based on all of the foregoing evidence, a rational trier of

fact could have concluded that Mr. Romes was intoxicated at the time that he operated his

vehicle. See Kurjian, 2006-Ohio-6669, at ¶ 17. Accordingly, he has not shown that his OVI

conviction is based on insufficient evidence. His first assignment of error is overruled.
                                                 8


                                 ASSIGNMENT OF ERROR II

       [MR. ROMES’] CONVICTION FOR [OVI] IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE IN VIOLATION OF [HIS] RIGHTS UNDER
       THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.

       {¶19} In his second assignment of error, Mr. Romes argues that his OVI conviction is

against the manifest weight of the evidence. We disagree.

       {¶20} When a defendant asserts that his conviction is against the manifest weight of the

evidence:

       an appellate court must review 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 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶21} At trial, Mr. Romes testified in his own defense. He testified that, on the night of

January 4, 2014, he went to a bar to celebrate a friend’s birthday. Although he saw Mr. Gast and

Ms. Brummer at the bar, he testified that he only talked to them for a few minutes and “really

wasn’t right next to them” throughout the evening. According to Mr. Romes, he consumed about

two drinks early on in the evening and then switched to drinking Red Bull. He denied that he

became intoxicated at the bar or that he ever left, pulled off the road, and “slumped over” his

steering wheel. Mr. Romes testified that his vehicle collided with Ms. Brummer’s in the parking

lot of the bar when both of them were leaving. He stated that the parking lot was icy and he was

traveling no more than five to ten miles per hour when his vehicle slid into the back of Ms.

Brummer’s.
                                                 9


       {¶22} According to Mr. Romes, he spoke with Mr. Gast immediately after the collision

occurred and they agreed to settle the matter privately. Mr. Romes testified that he and Mr. Gast

worked together at a body shop and agreed that Ms. Brummer’s car would be fixed at the shop.

Once they agreed to that resolution, Mr. Romes drove home and started drinking again. He

estimated that he had approximately three drinks at home before Trooper Mollohan knocked on

his door. He denied telling Joyce Brummer that he started drinking again when he got home to

make it appear as if he had been drinking at home rather than at the bar before he drove his

vehicle. He also denied ever apologizing to her or anyone else for drinking too much that

evening. According to Mr. Romes, he apologized for the collision itself, but never stated that it

occurred because he had been drinking.

       {¶23} Mr. Romes argues that the court lost its way in convicting him because the State

presented unreliable and biased testimony. Because Trooper Mollohan did not see him for at

least two hours after the collision occurred, he argues that it was not possible for the trooper to

know whether he drank before the crash or whether he became impaired after he had several

drinks at home.     He casts Ms. Brummer’s testimony as unreliable because even Trooper

Mollohan acknowledged that her statement to him was “full of inaccuracies, exaggerations, and

false statements.” Additionally, he avers that Joyce Brummer was biased against him because

she was trying to recover the costs to repair her daughter’s car. He notes that Joyce “went so far

as to send a letter to the judge asking [the judge] to make [him] pay for the damage but then

denied sending the letter at trial even though it clearly appeared on the docket.”

       {¶24} As previously noted, Ms. Brummer testified that Mr. Romes got back into his

vehicle and left the scene while she was still on the phone with her mother. Ms. Brummer stated

that Mr. Romes was not driving well at the point in time, so he “fishtailed in the driveway” and
                                                  10


also “rutted up [the] yard” of the house where they had driven their vehicles after the collision.

In her statement to Trooper Mollohan, Ms. Brummer estimated that Mr. Romes must have been

traveling at about 40 m.p.h. when he hit her car. Ms. Brummer also admitted that she had

consumed a few drinks that evening. Additionally, she admitted that she never called the police

before the crash, despite claiming that she saw Mr. Romes “slouched over” his steering wheel

and slurring his words. Ms. Brummer explained that Mr. Gast was friends with Mr. Romes and

they did not want to get him into trouble if they could avoid doing so.

       {¶25} During cross-examination, Trooper Mollohan agreed that his accident report did

not include any information about Mr. Romes fishtailing or “rutt[ing] up” a yard when he left the

scene. He was never asked, however, whether Ms. Brummer ever reported that information to

him or whether he inspected the yard at issue for damage. He only agreed that the property

owners at that residence never complained to him about their lawn.

       {¶26} Trooper Mollohan did testify that the damage he observed to Ms. Brummer’s car

was not consistent with it having been struck at 40 m.p.h. He noted that the bumper sustained

damage and a tail light was broken, but stated that the damage would have been more extensive

if the car had been struck at that speed. Nevertheless, Trooper Mollohan testified that people

tend to exaggerate when they are asked to estimate speed. He agreed that Ms. Brummer’s

statements about Mr. Romes’ level of intoxication were consistent with his observations of Mr.

Romes when he went to his house later that morning. He also testified that Mr. Romes initially

denied being involved in any collision and said that “he really wasn’t sure what [they] were

talking about * * *.” Mr. Romes’ initial denial that the collision occurred was inconsistent with

his later claim that he hit the car, but the parties agreed to handle the matter privately.
                                                11


       {¶27} As for Judy Brummer, she readily admitted that she insured her daughter’s car

and attempted to obtain Mr. Romes’ insurance information, only to learn that he did not have

insurance at the time of the crash. The trial court docket includes a letter from Judy, addressed to

the trial court and filed four months before Mr. Romes’ trial. In the letter, Judy expressed to the

court that she was “appalled by [Mr. Romes’] actions and the reckless disregard for the medical

and financial damage that he [] imposed on [her] family.” She also outlined for the court all of

the costs she incurred as a result of the accident and all of the medical problems her daughter

continued to suffer from the impact of the collision. At trial, defense counsel asked Judy one

question about the letter. That exchange reads as follows:

       [DEFENSE COUNSEL]: Thank you, ma’am. And in fact, you also wrote a letter
       to the Court trying to impress upon the Court that somebody needs to fix your
       daughter’s car, isn’t that correct?

       [JOYCE BRUMMER]: I did not write a letter to the Court impressing that
       somebody needed to fix my daughter’s car.

Neither defense counsel, nor the State asked any follow-up questions about the letter. Having

reviewed it in conjunction with Joyce’s testimony, we do not agree with Mr. Romes’ portrayal of

the foregoing exchange as a complete denial on the part of Joyce that she sent a letter to the trial

court. A reasonable inference to be drawn from the testimony is that Joyce denied that she wrote

the court a letter for the specific purpose of securing repairs to her daughter’s car. Because she

was not asked, she never made a blanket denial that she never sent a letter to the court.

       {¶28} Having reviewed the record, we cannot conclude that the court lost its way when

it concluded that Mr. Romes drove his vehicle while intoxicated. The court was presented with

conflicting testimony, and found the State’s witnesses to be more credible than Mr. Romes.

While Mr. Romes claimed that he was not intoxicated at the time he drove his vehicle, Ms.

Brummer, her mother, and Trooper Mollohan all gave evidence to the contrary. “This Court will
                                                12


not overturn a verdict on a manifest weight challenge simply because the [court] chose to believe

the State’s witnesses rather than [Mr. Romes].” State v. Klein, 9th Dist. Summit No. 26573,

2013-Ohio-3514, ¶ 12. The trial court was in the best position to listen to the witnesses and to

judge their credibility. See State v. Johnson, 9th Dist. Summit No. 26914, 2014-Ohio-2856, ¶

45. This is not the extraordinary case where the trial court created a manifest miscarriage of

justice in finding Mr. Romes’ guilty of OVI. Consequently, his OVI conviction is not against the

manifest weight of the evidence, and his second assignment of error is overruled.

                                                III.

       {¶29} Mr. Romes’ assignments of error are overruled. The judgment of the Medina

Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                          13


      Costs taxed to Appellant.




                                               CARLA MOORE
                                               FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GINA PULITO, Attorney at Law, for Appellant.

GREGORY HUBER, J. MATTHEW LANIER, JOHN G. QUILLIN, and MICHAEL JOHN,
Prosecuting Attorneys, for Appellee.
