[Cite as State v. Sullivan, 2017-Ohio-8937.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,
                                                           CASE NO. 5-17-09
       PLAINTIFF-APPELLEE,

       v.

WILLIAM E. SULLIVAN, JR.,                                  OPINION

       DEFENDANT-APPELLANT.



                          Appeal from Findlay Municipal Court
                             Trial Court No. 16TRC05077

                                       Judgment Affirmed

                           Date of Decision: December 11, 2017



APPEARANCES:

        Mark A. Davis for Appellant
Case No. 5-17-09


WILLAMOWSKI, J.

       {¶1} Defendant-appellant William E. Sullivan, Jr. (“Sullivan”) appeals the

judgment of the Municipal Court of Findlay, Ohio, alleging that (1) the trial court

erred in denying his motion to suppress the results of his Horizontal Gaze

Nystagmus Test (“HGN Test”); (2) the trial court erred in denying his Crim.R. 29

motion for acquittal; (3) the trial court erred by overruling his objections to the

admission of testimony that referenced research discussing the accuracy of the HGN

Test; and (4) the jury returned a verdict that was against the manifest weight of the

evidence. For the reasons set forth below, the judgment of the lower court is

affirmed.

                            Facts and Procedural History

       {¶2} Officer Michael Cortez (“Cortez”) is a deputy sheriff at the Hancock

County Sheriff’s Office. Trial Tr. at 29. At 9:11 p.m. on May 20, 2016, Cortez was

on patrol when he received a dispatch that reported a single vehicle, non-injury

accident had occurred in his vicinity. Id. at 42-43. When he arrived at the scene of

the accident, he saw Sullivan’s vehicle up against a utility pole in a ditch. Id. at 43-

44. The utility pole was cracked about fifteen to twenty feet above the ground. Id.

Cortez determined that Sullivan—the driver of the vehicle—had driven through a

stop sign, lost control of his vehicle, and hit the utility pole. Id. at 53.




                                           -2-
Case No. 5-17-09


       {¶3} The fire department had already arrived at the scene of the accident, and

Sullivan was standing about fifty to seventy-five feet away from his car. Id. at 44-

45. Cortez approached Sullivan and began asking him some questions. Id. at 46.

Cortez noticed that Sullivan was slow in responding to these questions and seemed

lethargic. Id. No injuries were apparent to Cortez from Sullivan’s appearance. Id.

at 47-48. Cortez asked Sullivan if he needed any medical attention or if he had any

injuries. Id. at 47. In response, Sullivan indicated that he was not injured. Id.

Cortez and Sullivan then went into Cortez’s cruiser to complete the report. Id. at

51. Cortez noticed that Sullivan took very deliberate and focused actions as he

moved towards the cruiser. Id. at 51. Cortez also noticed that Sullivan, struggling

to keep his balance, stumbled as he walked and stabilized himself by holding onto

the cruiser. Id. at 52.

       {¶4} When Cortez got into the cruiser with Sullivan, he smelled “a strong

odor of an alcoholic beverage.” Id. at 53. In the light of the cruiser, he could also

see that Sullivan’s eyes were bloodshot and his face was flushed. Id. Cortez then

asked Sullivan questions about the route on which Sullivan was driving. Id. at 54.

Sullivan responded by claiming that he was on Interstate 280 by Toledo. Id. In fact,

Sullivan and Cortez were at the intersection of State Route 613 and Township Road

136, which was at least forty-five minutes away from where he believed he was on

Interstate 280. Id. at 55. When asked, Sullivan denied having any alcoholic

beverages that evening. Id.

                                         -3-
Case No. 5-17-09


       {¶5} At this point, Cortez asked Sullivan to submit to a portable breath test.

Id. at 56. Sullivan declined to take the portable breath test but subsequently agreed

to submit to field sobriety tests. Id. Cortez then administered the HGN Test. Id.

As Cortez administered the HGN Test, he observed six out of the six clues that are

indicators of being under the influence in Sullivan’s eyes. Id. at 69-70. Doc. 12.

Since the weather outside was becoming inclement, Cortez decided not to proceed

with further field sobriety tests. Trial Tr. 90. On the basis of the HGN Test results

and his other observations, Cortez arrested Sullivan for operating a vehicle while

under the influence. Doc. 1. The complaint was then filed on May 24, 2016. Doc.

1.

       {¶6} On July 25, 2016, Sullivan filed a motion to suppress the results of the

HGN Test. Doc. 8. At the suppression hearing on October 12, 2014, Cortez testified

as to his observations on the night of May 20, 2016. Suppression Hearing Tr. 11.

The Defense then called Dr. William R. Bauer (“Dr. Bauer”) as an expert witness.

Id. at 47. Dr. Bauer, a neurologist, testified that he believed that Sullivan had a

traumatic brain injury as the result of the car accident. Id. at 55. He further testified

that he believed the six clues that Cortez observed during the HGN Test were

symptoms of Sullivan’s traumatic brain injury and were not indicators of

intoxication. Id. at 51-52, 55. He also believed that the flushed face, lethargic

movements, slow responses to questions, and glassy eyes were the result of the

traumatic brain injury caused by the accident. Id. at 56-58. Dr. Bauer’s conclusions

                                          -4-
Case No. 5-17-09


on Sullivan’s conditions were based solely on a telephone conversation with

Sullivan that occurred on August 14, 2016. Id. at 53. On cross examination, Dr.

Bauer admitted that he had not seen Sullivan in person until the hearing, had no

consultations with Sullivan prior to their conversation on August 14, 2016, and was

not involved in any treatments for Sullivan’s alleged traumatic brain injury. Id. at

59-60, 61-62. The Defense did not present any evidence to corroborate the opinions

of its expert witness. On December 28, 2016, the trial court overruled Sullivan’s

motion to suppress the results of the HGN Test. Doc. 12.

       {¶7} This case proceeded to trial on April 20, 2017. Trial Tr. 1. At trial,

Cortez testified about his experience in law enforcement and his observations on the

night that he cited Sullivan for operating a vehicle while under the influence. Id. at

29. He testified that he, in his twenty-three-year long career in law enforcement,

had made over four hundred OVI arrests. Id. at 29, 41. He also stated that he has

been an instructor who trains law enforcement officers on how to administer the

HGN Test for the last fifteen years. Id. at 36. After explaining the workings of the

HGN Test, he testified that he had observed six out of six clues in Sullivan’s eyes.

Id. at 58-65, 69. During this portion of his testimony, the following exchange took

place between the prosecutor and Cortez:

       [Prosecutor]: What if anything did [seeing six of six clues] mean
       to you?

       [Cortez]: That means to me that according to the research that
       was conducted—

                                         -5-
Case No. 5-17-09



      [Defense Counsel]: Objection.

      The Court: Overruled.

      [Cortez]: —according to the research that was conducted that is
      provided to us through our training that—the original research
      was done by the Southern California Research Institute,
      contracted by the National Highway Traffic Safety
      Administration. That began in 1975. In 1977 they did a field
      study only in California and again in 1977 they did another field
      and laboratory study and again in 1983 they did one in North
      Carolina, Maryland, Washington D.C., and Virginia and as a
      result of those particular—

      [Defense Counsel]:      Objection, your honor, this is hearsay
      testimony.

      The Court: The question was what did the observations of the six
      clues mean to the officer.

      [Cortez]: I’m just trying to explain so the jury understands.

      The Court: Without getting into the several research matters that
      aren’t before the court.

      [Prosecutor]: Okay.

      The Court: If you want to take him back to the basis of the
      training * * *.

      [Prosecutor]: I’ll ask a question to help get all of that aside, what
      do these results of Mr. Sullivan indicate to you?

      [Cortez]: To simply put it, they did research and they found that
      when these four clues are—

      [Defense Counsel]: Objection.

      The Court: Sustained.


                                       -6-
Case No. 5-17-09


       [Prosecutor]: Just if you can, Sergeant Cortez, so having
       observed those six clues, three in each eye what did that mean to
       you about Mr. Sullivan on May 20, 2016?

       [Cortez]: That there was alcohol and/or drugs of abuse.

       [Prosecutor]: Where?

       [Cortez]: In his system.

Id. at 68-69. On appeal, Sullivan asserts that the State—through this exchange—

improperly bolstered Cortez’s testimony regarding the HGN Test results with

inadmissible hearsay evidence. After Cortez’s testimony, the State rested. Defense

counsel then made a Crim.R. 29 motion, arguing that the State did not prove that

Sullivan had consumed alcohol and, therefore, did not prove that Sullivan had

alcohol in his system on the night of the alleged offense. Id. at 103. The trial court

overruled Sullivan’s Crim.R. 29 motion. Id. at 106.

       {¶8} During the Defense’s case-in-chief, Sullivan again called Dr. Bauer as

an expert witness. Id. at 109. During his testimony, Dr. Bauer again stated his belief

that Sullivan had suffered a traumatic brain injury; that the indictors of intoxication

observed by Cortez were actually symptoms of this injury; and that the HGN Test

results were not reliable under these circumstances. Id. at 121, 123, 125-126. On

cross examination, Dr. Bauer admitted that he had never performed a physical

examination of Sullivan and had not viewed Sullivan’s medical history records. Id.

at 136. Dr. Bauer also admitted that his consultation was over the phone; that this

consultation occurred three months after the accident on May 20, 2016; that he had

                                         -7-
Case No. 5-17-09


never talked with Sullivan in person outside of the courtroom; and that he had not

been involved in any treatments for this alleged traumatic brain injury. Id. at 136,

145. The jury found Sullivan guilty of violating R.C. 4511.19(A)(1)(a) on April

20, 2017. Doc. 34. Sullivan was sentenced at that time. Doc. 22-23.

       {¶9} Sullivan filed notice of appeal on April 21, 2017. Doc. 27. On appeal,

he raises four assignments of error, which read as follows:

                             First Assignment of Error

       The trial court erred by denying the motion to suppress the HGN
       Test.

                           Second Assignment of Error

       The trial court erred by denying defendant’s Rule 29 motion.

                            Third Assignment of Error

       The trial court erred in overruling objections relating to HGN
       research.

                            Fourth Assignment of Error

       The guilty jury verdict was against the manifest weight of the
       evidence.

We will consider the first and third assignments of error before considering the

second and fourth assignments of error.

                              First Assignment of Error

       {¶10} In his first assignment of error, Sullivan argues that the trial court erred

in denying his motion to suppress the HGN Test. In this case, Sullivan was in an


                                          -8-
Case No. 5-17-09


accident prior to having the HGN Test administered. At the suppression hearing,

his expert witness stated that Sullivan had a head injury as the result of the accident

and determined that the HGN Test was not valid under these circumstances.

Sullivan argues that the trial court considered the training of Cortez but failed to

examine whether the physical condition of the defendant invalidated the HGN Test.

On these grounds, Sullivan contends that the HGN Test should have been excluded

since his physical condition made the HGN Test invalid.

                                    Legal Standard

       {¶11} Under appellate review, motions to suppress present “mixed questions

of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907

N.E.2d 333, ¶ 20 (3d Dist.).

       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.
       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.

(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d

Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8.

       {¶12} R.C. 4511.19(D)(4)(b) governs the admissibility of field sobriety tests

and reads, in its relevant part, as follows:

                                           -9-
Case No. 5-17-09


       In any criminal prosecution or juvenile court proceeding for a
       violation of division (A) or (B) of this section * * * if a law
       enforcement officer has administered a field sobriety test to the
       operator of the vehicle involved in the violation and if it is shown
       by clear and convincing evidence that the officer administered the
       test in substantial compliance with the testing standards for any
       reliable, credible, and generally accepted field sobriety tests that
       were in effect at the time the tests were administered, including,
       but not limited to, any testing standards then in effect that were
       set by the national highway traffic safety administration, all of the
       following apply:

       (i) The officer may testify concerning the results of the field
       sobriety test so administered.

       (ii) The prosecution may introduce the results of the field sobriety
       test so administered as evidence in any proceedings in the
       criminal prosecution or juvenile court proceeding.

       (iii) If testimony is presented or evidence is introduced under
       division (D)(4)(b)(i) or (ii) of this section and if the testimony or
       evidence is admissible under the Rules of Evidence, the court shall
       admit the testimony or evidence and the trier of fact shall give it
       whatever weight the trier of fact considers to be appropriate.

R.C. 4511.19(D)(4)(b).

       Clear and convincing evidence is that measure or degree of proof
       which is more than a mere ‘preponderance of the evidence,’ but
       not to the extent of such certainty as is required ‘beyond a
       reasonable doubt’ in criminal cases, and which will produce in the
       mind of the trier of facts a firm belief or conviction as to the facts
       sought to be established.

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the

syllabus (1954).

       {¶13} If a motion to suppress challenges the admission of the results of field

sobriety tests in an OVI case,

                                        -10-
Case No. 5-17-09


       the state must show the requisite level of compliance with
       accepted testing standards. Typically, the standards used are
       those from the [National Highway Traffic Safety Administration
       (“NHTSA”)]. Part of the state’s burden ‘includes demonstrating
       what the NHTSA requirements are, through competent testimony
       and/or introducing the applicable portions of the NHTSA
       manual.’ HGN test results are admissible in Ohio without expert
       testimony so long as the proper foundation has been shown both
       as to the administering officer’s training and ability to administer
       the test and as to the actual technique used by the officer in
       administering the test.

(Citations omitted.) State v. Loveridge, 3d Dist. Marion No. 9-06-46, 2007-Ohio-

4493, ¶ 11.

                                  Legal Analysis

       {¶14} In this case, Cortez testified at the suppression hearing about the

process of administering the HGN Test to Sullivan. Suppression Hearing Tr. 25-

28. Cortez discussed his experience in administering the HGN Test. Id. at 29-31.

He received his instruction on this field test from the Ohio Peace Officers Training

Academy, which hosted a program conducted by NHTSA. Id. at 25. He also stated

that he is an instructor of this technique and has trained law enforcement officers

across northwest Ohio on how to administer the HGN Test properly. Id. at 25-26.

He then explained the NHTSA guidelines for the HGN Test and detailed the process

of administering this field sobriety test. Id. at 26-28. After discussing how the HGN

Test was performed, he testified as to how he conformed to these standards as he

administered this test with Sullivan.    Id. at 29-31.    He further discussed the

observations he made while Sullivan took the HGN Test. In this process, Cortez

                                        -11-
Case No. 5-17-09


testified that he saw six of six clues in Sullivan’s eyes. Id. at 31. Thus, through

Cortez’s testimony, the State demonstrated the requisite level of compliance that is

required for the admissibility of the HGN Test.

       {¶15} In response, the Defense called Dr. Bauer as its witness at the

suppression hearing. Id. at 47. Dr. Bauer was a neurologist who testified as an

expert witness. Id. Dr. Bauer testified that he believed that the indicators of

intoxication that Cortez observed during the HGN Test were actually symptoms of

a traumatic brain injury. Id. at 55. The Defense argued in its motion to suppress

that Cortez’s testimony as to the results of the HGN Test should be suppressed

because Cortez was not able to give a medical diagnosis of Sullivan’s condition and

could not, therefore, determine whether Sullivan was suffering from a traumatic

brain injury or was exhibiting symptoms of intoxication. Doc. 8.

       {¶16} In its ruling on the Defense’s motion to suppress, the trial court found

that

       [Cortez] testified he was familiar with the NHTSA requirements
       for administering the HGN and was certified to conduct this
       particular test. In addition, he has trained other deputies at the
       sheriff’s office, as well as for other law enforcement agencies, on
       the administration of the HGN. The sergeant explained how the
       test was required to be administered and how he conducted the
       test with the defendant.

Doc. 12. The trial court found that Dr. Bauer’s testimony, on the other hand, was

not persuasive. Id. Specifically, the trial court noted that Dr. Bauer had only spoken

to Sullivan over the phone prior to his diagnosis; that Dr. Bauer did not review

                                        -12-
Case No. 5-17-09


Sullivan’s medical history records; that Dr. Bauer did not examine Sullivan in

person; that Dr. Bauer only considered Sullivan to be a patient “theoretically”; and

that Dr. Bauer did not participate in any treatment of this alleged brain trauma. Id.

       {¶17} The record shows that the State presented some information

supporting all of the requirements of R.C. 4511.19(D)(4)(b) during the suppression

hearing. Further, after considering all of the information from the hearing, the trial

court found Dr. Bauer’s testimony not to be persuasive.            Doc. 12.      This

determination of fact weighed in favor of the State’s case. The trial court’s decision

to overrule Sullivan’s motion to suppress was consistent with its factual

determinations. Thus, the trial court did not err in overruling Sullivan’s motion to

suppress. For this reason, Sullivan’s first assignment of error is overruled.

                             Third Assignment of Error

       {¶18} In his third assignment of error, Sullivan asserts that the trial court

erred by overruling his objections to the admission of testimony regarding HGN

Test research. At trial, Cortez mentioned the existence of several field studies that

were conducted by NHTSA on the HGN Test. Sullivan claims that the trial court

allowed the conclusions of these reports to be admitted as evidence and, in so doing,

allowed impermissible hearsay evidence to be introduced at trial. Sullivan argues

that this hearsay evidence obscured the fact that the six clues that Cortez observed

could have been indicators of multiple conditions aside from intoxication. Sullivan



                                        -13-
Case No. 5-17-09


further argues that admission of this evidence constituted improper bolstering of

Cortez’s testimony.

                                    Legal Standard

       {¶19} Ohio Evid.R. 701 governs what a lay witness is permitted to

include in their testimony and reads as follows:

       If the witness is not testifying as an expert, the witness’ testimony
       in the form of opinions or inferences is limited to those opinions
       or inferences which are (1) rationally based on the perception of
       the witness and (2) helpful to a clear understanding of the witness’
       testimony or the determination of a fact in issue.

Evid.R. 701.     Further, under the rules of evidence, “[h]earsay is generally

inadmissible ‘except as otherwise provided by the Constitution of the United States,

by the Constitution of the State of Ohio, by statute enacted by the General Assembly

not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other

rules prescribed by the Supreme Court of Ohio.’” State v. Carter, 3d Dist. Seneca

No. 13-17-10, 2017-Ohio-7443, ¶ 8, quoting Evid.R. 802. Ohio Evid.R. 801(C)

defines hearsay as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C).

       {¶20} “An appellate court’s review of the admission of evidence is limited

to a determination as to whether the trial court abused its discretion.” State v. Little,

2016-Ohio-8398, 78 N.E.3d 323, ¶ 8 (3d Dist.), quoting Rigby v. Lake Cty., 58 Ohio

St.3d 269, 271, 569 N.E.2d 1056 (1991). “An abuse of discretion is more than an

                                          -14-
Case No. 5-17-09


error of judgment; rather, it implies that the trial court's decision was unreasonable,

arbitrary, or capricious.” State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-

4349, ¶ 23, quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-

5133, 2012 WL 5397596, ¶ 14. “When applying the abuse of discretion standard, a

reviewing court is not free to merely substitute its judgment for that of the trial

court.” State v. Thompson, 2017-Ohio-792, --- N.E.3d ---, ¶ 11, quoting In re Jane

Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

                                   Legal Analysis

       {¶21} In his brief, Sullivan reports that the trial court erred by allowing the

following statement to be admitted at trial:

      The original research done by the Southern California Research
      Institute, contracted by the National Highway Traffic Safety
      Administration, that began in 1975. In 1977, they did a field study
      only in California and again in 1977 they did another field and
      laboratory study and again in 1983 they did one in North
      Carolina, Maryland, Washington DC and Virginia, and as a
      result of those particular * * * [continued on p.69, line 14] they
      did research and they found that when these four clues are * * *
      that there was alcohol and or drugs of abuse…in his system.
(Brackets original). Appellant’s brief, 10. The appellant claims that admission of

this statement allowed the State to bolster the testimony of Cortez through

impermissible hearsay evidence. The appellant further argues that the “trial court *

* * erred in allowing the continuation of this testimony over the several objections

of defense counsel.” Appellant’s brief, 12.




                                         -15-
Case No. 5-17-09


      {¶22} However, the appellant quotes an edited portion of the transcript in his

brief. A complete read of the transcript shows that the trial court did not allow

hearsay testimony to be admitted at trial. The exchange that is relevant to this

assignment of error reads as follows:

      [Prosecutor]: What if anything did [seeing six of six clues] mean
      to you?

      [Cortez]: That means to me that according to the research that was
      conducted—

      [Defense Counsel]: Objection.

      The Court: Overruled.

      [Cortez]: —according to the research that was conducted that is
      provided to us through our training that—the original research was
      done by the Southern California Research Institute, contracted by
      the National Highway Traffic Safety Administration. That began in
      1975. In 1977 they did a field study only in California and again in
      1977 they did another field and laboratory study and again in 1983
      they did one in North Carolina, Maryland, Washington D.C., and
      Virginia and as a result of those particular—

      [Defense Counsel]:       Objection, your honor, this is hearsay
      testimony.

      The Court: The question was what did the observations of the six
      clues mean to the officer.

      [Cortez]: I’m just trying to explain so the jury understands.

      The Court: Without getting into the several research matters that
      aren’t before the court.

      [Prosecutor]: Okay.



                                        -16-
Case No. 5-17-09


       The Court: If you want to take him back to the basis of the
       training * * *.

       [Prosecutor]: I’ll ask a question to help get all of that aside, what
       do these results of Mr. Sullivan indicate to you?

       [Cortez]: To simply put it, they did research and they found that
       when these four clues are—

       [Defense Counsel]: Objection.

       The Court: Sustained.

       [Prosecutor]: Just if you can, Sergeant Cortez, so having
       observed those six clues, three in each eye what did that mean to
       you about Mr. Sullivan on May 20, 2016?

       [Cortez]: That there was alcohol and/or drugs of abuse.

       [Prosecutor]: Where?

       [Cortez]: In his system.

(Emphasis added). Trial Tr. 68-69.

       {¶23} The trial judge did overrule the Defense’s first objection to the

statements about what the HGN Test results signified to Cortez. Id. at 68. From

the transcript, it appears that Cortez was about to state that he based his opinions or

inferences on studies that he had come across in his professional career. Id. At the

time that the trial judge overruled the Defense’s objection, it is not apparent from

that transcript that Cortez intended to mention specific statements from these

studies. Id. After the trial court overruled the Defense’s first objection, Cortez made

statements about several studies that have been conducted in the past. Id. at 69.


                                         -17-
Case No. 5-17-09


Before Cortez could mention any of the statements contained within these studies,

the Defense objected. In response, the trial court sustained this second objection of

the Defense. Id. When Cortez again exhibited an intention to reference statements

contained in the field study reports, the trial court again sustained the third objection

from the Defense before Cortez could state the results of the study. Id. Due to the

timely objections of Defense counsel and the rulings of the trial court, no statistics,

statements, or conclusions from these studies were admitted at trial. Thus, no

hearsay was admitted as the trial court sustained the Defense’s objections before

Cortez made impermissible statements.

       {¶24} After the third objection, the trial court instructed Cortez not to discuss

the conclusions of studies not before the court, and the prosecutor clarified the

question. Id. Cortez then stated what he believed the HGN Test results signified:

he testified that he believed, on the basis of the results of this field sobriety test,

“[t]hat there was alcohol and/or drugs of abuse * * * in [Sullivan’s] system.” Id. at

68-69. The appellant presents these statements as though they were derived from

the field studies that Cortez referenced when they, in fact, represented Cortez’s own

opinions and inferences. Thus, this testimony, being from a lay witness, was

admissible as these statements were “opinions or inferences” that were “rationally

based on the perception of the witness * * *.” Evid.R. 701.

       {¶25} Ultimately, the Defense’s objections were sustained, and the trial court

did not permit hearsay testimony to be admitted. Thus, the appellant cannot show

                                          -18-
Case No. 5-17-09


that the State improperly bolstered its witness’s testimony with hearsay evidence.

Appellant also cannot demonstrate prejudice as the trial court sustained the

Defense’s objections and as the hearsay evidence was not admitted. For this reason,

Sullivan’s third assignment of error is overruled.

                            Second Assignment of Error

       {¶26} In his second assignment of error, Sullivan argues that his Crim.R. 29

motion should have been granted because the State did not prove that he had alcohol

in his system at the time of his car accident. In so doing, he claims that the State

failed to establish an essential element of the crime with which he was charged. He

argues that the State’s case against him fails in the absence of proof that he

consumed alcohol prior to his accident. For this reason, he argues that the trial court

erred in denying his Crim.R. 29 motion for acquittal.

                                   Legal Standard

       {¶27} Crim.R. 29 reads, in its relevant part, as follows:

       (A) Motion for Judgment of Acquittal. The court on motion of a
       defendant or on its own motion, after the evidence on either side
       is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or
       complaint, if the evidence is insufficient to sustain a conviction of
       such offense or offenses.

Crim.R. 29(A). “An appellate court reviews a denial of a Crim.R. 29 motion for

judgment of acquittal using the same standard that is used to review a sufficiency of




                                         -19-
Case No. 5-17-09


the evidence claim. State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-

544, ¶ 11, quoting State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).

       {¶28} “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.” State v. Pierce, 3d Dist.

Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state

constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684

N.E.2d 668 (1997), fn. 4. Under the sufficiency of the evidence standard, “[t]he

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. Potts, 2016-Ohio-5555, 69

N.E.3d 1227, ¶ 12 (3d Dist.), quoting Jenks at paragraph two of the syllabus.

       {¶29} R.C. 4511.19(A)(1)(a) prohibits operating a motor vehicle under the

influence of alcohol and reads as follows:

       (A)(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.




                                        -20-
Case No. 5-17-09


R.C. 4511.19(A)(1)(a). Thus, in order for an appellate court to make a finding that

the evidence supporting a conviction for violating R.C. 4511.19(A)(1)(a) was

legally sufficient, the record must show that the State presented evidence that the

defendant (1) was operating a “vehicle, streetcar, or trackless trolley” (2) in the State

of Ohio (3) while he or she was “under the influence of alcohol, a drug of abuse, or

a combination of them.” R.C. 4511.19(A)(1)(a).

       {¶30} In establishing the third element—that the defendant was under the

influence of alcohol—the State “need not establish a threshold level of alcohol

concentration in the defendant's body. It must, however, prove that the defendant

operated a vehicle when his faculties were appreciably impaired by the consumption

of alcohol.” State v. Lowman, 82 Ohio App.3d 831, 836, 613 N.E.2d 692, 695 (12th

Dist.1992), citing State v. Bakst, 30 Ohio App.3d 141, 145, 506 N.E.2d 1208, 1213

(1st Dist.1986); State v. Spicer, 12th Dist. Preble App. No. CA90-11-022, 1991 WL

164591 (Aug. 26, 1991).

       {¶31} “Whether there is legally sufficient evidence to sustain a verdict is a

question of law.” State v. Schaeffer, 2015-Ohio-3531, 41 N.E.3d 813, ¶ 14 (3d

Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

For this reason, “[i]n deciding if the evidence was sufficient, we neither resolve

evidentiary conflicts nor assess the credibility of witnesses, as both are functions

reserved for the trier of fact.” Potts at ¶ 12, quoting State v. Jones, 1st Dist.



                                          -21-
Case No. 5-17-09


Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v.

Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.).

                                    Legal Analysis

       {¶32} In its argument, the Defense alleges that the State failed to produce

evidence that establishes Sullivan was “under the influence of alcohol, a drug of

abuse, or a combination of them,” which is the third element of the offense with

which Sullivan was charged. R.C. 4511.19(A)(1)(a). Since Sullivan has confined

his argument to challenging the State’s case on this element alone, our analysis will

be limited to determining whether the State produced evidence establishing that

Sullivan was “under the influence of alcohol or a drug of abuse.”

       {¶33} In this case, the arresting officer testified at trial that Sullivan had been

in an accident where he missed a stop sign; had slow response times in answering

questions; struggled to maintain his balance; held onto the cruiser to stabilize

himself; made very deliberate movements; and was unaware of where he was. Id.

at 53, 55. Cortez also testified that Sullivan smelled strongly of an alcoholic

beverage; had a flushed face; and had blood shot glassy eyes. Id. at 53. On the

basis of these observations, the officer requested that Sullivan submit to an HGN

Test. Id. at 56. With Sullivan’s consent, Cortez administered the HGN Test and, in

this process, observed six out of the six clues in Sullivan’s eyes. Id. at 56. At trial,

Cortez discussed his experience, which included making 400 arrests for OVI

violations over a period of twenty-three years. Id. at 23. He also testified about his

                                          -22-
Case No. 5-17-09


familiarity with the HGN Test, discussing his certifications, experience, and status

as an instructor of this technique to law enforcement trainees. Id. at 58-65.

       {¶34} These observations combined with the HGN Test results and the

strong smell of an alcoholic beverage were the evidence of the third element of this

offense that the State presented. In so doing, the State used circumstantial evidence

to support the third element of this offense. Circumstantial evidence can be

sufficient to establish that a driver was under the influence of alcohol. See State v.

Norris, 168 Ohio App.3d 572, 2006-Ohio-4325, 861 N.E.2d 148, ¶ 16 (12th Dist.)

(holding that “[c]ircumstantial evidence and direct evidence have the same

probative value, and in some instances, certain facts can be established only by

circumstantial evidence.”). The Defense points out that Sullivan did not admit that

he had consumed alcohol earlier on the day of his accident. However, this fact does

not mean that the trial court, in ruling on the Defense’s Crim.R. 29 motion for

acquittal, could not make a reasonable inference from the evidence presented at trial

that Sullivan had consumed alcohol. State v. Caldwell, 10th Dist. Franklin No.

02AP-576, 2003-Ohio-271, ¶ 26. Compare State v. Joy, 5th Dist. Stark No. 2005-

CA-00235, 2006-Ohio-1923, ¶ 122.

       {¶35} Viewing all of the evidence in the light most favorable to the State, a

rational trier of fact could have reasonably found that the State established that

Sullivan was under the influence of alcohol. Since the State provided evidence for

each of the essential elements of this crime that, if believed, could persuade a

                                        -23-
Case No. 5-17-09


reasonable trier of fact that Sullivan was guilty beyond a reasonable doubt, his

conviction for operating a vehicle while under the influence is supported by

sufficient evidence. Thus, the trial court did not err in denying Sullivan’s Crim.R.

29 motion for acquittal. Accordingly, Sullivan’s second assignment of error is

overruled.

                            Fourth Assignment of Error

       {¶36} In his fourth assignment of error, Sullivan argues that the jury returned

a verdict against the manifest weight of the evidence. In particular, he alleges that

the jurors disregarded a portion of the jury instructions that required them to find

that the defendant had “consumed some alcohol” in order to return a guilty verdict.

Sullivan asserts that the jury clearly lost its way as no evidence was presented that

he had consumed alcohol. Further, he alleges that the guilty verdict demonstrates

that the jurors disregarded the testimony of the Defense’s expert. He concludes his

argument by asserting that a guilty verdict under these circumstances was a manifest

miscarriage of justice. For these reasons, he requests that this Court reverse his

conviction.

                                   Legal Standard

       {¶37} When “deciding whether a conviction is against the manifest weight

of the evidence, an appellate court determines whether the state has appropriately

carried its burden of persuasion.” State v. Brentlinger, 2017-Ohio-2588, --- N.E.3d

---, ¶ 36 (3d Dist.), quoting State v. Blanton, 121 Ohio App.3d 162, 169, 699 N.E.2d

                                        -24-
Case No. 5-17-09


136 (3d Dist.1997). “Unlike our review of the sufficiency of the evidence, an

appellate court's function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict.” State v. Plott,

2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). In the manifest weight analysis, “the

appellate court sits as a ‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No.

13-16-30, 2017-Ohio-2916, ¶ 17, quoting Thompkins at 389. On appeal, courts

       must review the entire record, weigh the evidence and all of the
       reasonable inferences, consider the credibility of witnesses, and
       determine whether in resolving conflicts in the evidence, the
       factfinder “clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a
       new trial ordered.”

(Citations omitted). Plott, supra, at ¶ 73.

       {¶38} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

witnesses.” State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014

WL 6725795, ¶ 7. “Only in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court's

judgment.” State v. Haller, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

                                    Legal Analysis

       {¶39} As with his sufficiency of the evidence challenge to his conviction,

Sullivan focuses his manifest weight argument on the third element of this offense,


                                         -25-
Case No. 5-17-09


which requires a finding that the defendant was “under the influence of alcohol, a

drug of abuse, or a combination of them” to be convicted under R.C.

4511.19(A)(1)(a). For this reason, our analysis will focus on whether the evidence

weighs heavily against a finding that Sullivan was “under the influence of alcohol”

at the time of his accident on May 20, 2016. R.C. 4511.19(A)(1)(a).

       {¶40} In this case, the State and the Defense each called one witness. For its

case-in-chief, the State called Cortez to testify as to his observations on the night of

Sullivan’s accident. Previously, in reviewing the record to determine whether

Sullivan’s conviction was supported by sufficient evidence, we found that Cortez’s

testimony, if believed, supplied evidence, which could reasonably be believed, for

each of the elements of operating a vehicle while under the influence. Under the

manifest weight analysis, we reincorporate Cortez’s above testimony here regarding

his observations, the results of the HGN Test, and his experience in law

enforcement. We add, for this analysis, the fact that Cortez chose not to perform

further field sobriety tests after he observed six out of six clues in Sullivan’s eyes

during the HGN Test. The reason Cortez gave for this was that the weather was

becoming inclement and was not suitable, in his opinion, for further field sobriety

testing.

       {¶41} For its case-in-chief, the Defense called an expert witness, Dr. Bauer,

to testify. Dr. Bauer testified that he was a neurosurgeon who was licensed to

practice medicine in the United States, Ireland, and the United Kingdom. During

                                         -26-
Case No. 5-17-09


his testimony, Dr. Bauer stated that he believed Sullivan had suffered from a

traumatic brain injury as the result of the impact from the car accident. In his expert

opinion, Dr. Bauer explained that he believed the indicators of intoxication that

Cortez reported to the court were, in fact, symptoms of this trauma. This diagnosis

was made by Dr. Bauer after he had a half an hour telephone conversation with

Sullivan that occurred nearly three months after the accident. He admitted that he

had not performed a physical examination of Sullivan, did not meet with Sullivan

in person prior to making his diagnosis, had not reviewed Sullivan’s medical history

records, and had not been involved in any treatment for this alleged brain injury.

       {¶42} After considering the evidence on the basis of its weight and

credibility, we do not find that the evidence weighs manifestly against a finding of

guilty. In our review of the record, we find that the jury could have reasonably

found that Dr. Bauer’s expert testimony was not persuasive and that Cortez’s

testimony was credible. A finding of guilty is not against the manifest weight of the

evidence simply because an expert witness’s testimony is found to be unpersuasive

by a jury. State v. Waugh, 10th Dist. Franklin No. 07AP-619, 2008-Ohio-2289, ¶

92-95, quoting Croft v. State Farm Auto Ins. Co., 3d Dist. Allen No. 1-01-72, 2002

WL 18665, *3 (January 8, 2002). Further, we do not find any indication in the

record that the jury lost its way or committed a miscarriage of justice in returning a

verdict of guilty in this case. For this reason, Sullivan’s fourth assignment of error

is overruled.

                                         -27-
Case No. 5-17-09


                                   Conclusion

       {¶43} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Municipal Court of Findlay, Ohio is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/hls




                                       -28-
