[Cite as State v. Hoffman, 2017-Ohio-8024.]



                           STATE OF OHIO MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )           CASE NO. 15 MA 0182
V.                                              )
                                                )                 OPINION
RYAN K. HOFFMAN,                                )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Youngstown
                                                Municipal Court of Mahoning County,
                                                Ohio
                                                Case No. 14 TRC 4782

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          Jeffrey Moliterno
                                                Assistant Prosecutor
                                                26 South Phelps Street
                                                Fourth Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Edward Czopur
                                                42 North Phelps Street
                                                Youngstown, Ohio 44503

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb

                                                Dated: September 25, 2017
[Cite as State v. Hoffman, 2017-Ohio-8024.]
DONOFRIO, J.

        {¶1}    Defendant-appellant, Ryan Hoffman, appeals from a Youngstown
Municipal Court judgment sentencing him to 90 days of incarceration following his
guilty verdict after a jury trial on one count of operating a vehicle while under the
influence (OVI) and one count of a malfunctioning rear license plate light.
        {¶2}    Appellant was pulled over by Youngstown Police for driving without a
working rear license plate light. Upon talking with appellant, Officer Wallace of the
Youngstown Police Department detected a strong odor of alcohol, slurred speech of
appellant, and redness and wateriness of appellant’s eyes. Officer Wallace then
conducted field sobriety tests on appellant and concluded that appellant was
operating a motor vehicle while intoxicated. Office Wallace then placed appellant
under arrest and transported him to the Youngstown Police Department to administer
a breathalyzer test.
        {¶3}    The breathalyzer’s results were inconclusive. The reason for the
inconclusive breathalyzer result is in dispute but ultimately not relevant to this appeal.
Officers then noted that appellant refused to take the breathalyzer test but did not
charge him with such refusal and only charged appellant with OVI in violation of R.C.
4511.19(A)(1)(a), an unclassified misdemeanor as appellant had two prior OVI
convictions within six years, and a license plate light infraction in violation of R.C.
4513.05, a minor misdemeanor.
        {¶4}    Appellant filed a motion to suppress evidence from the traffic stop which
led to his OVI arrest. While appellant had many issues presented as the basis for his
motion, the one at issue in this appeal was Officer Wallace’s administration of the
field sobriety tests.
        {¶5}    At the subsequent suppression hearing, appellant’s counsel limited the
hearing to issues related to “PC for the stop and the actual field sobriety tests that
were conducted.” (Supp. Tr. at 3). Specifically, appellant took issue with the
administration of his horizontal gaze nystagmus (HGN) test performed by Officer
Wallace. The issues appellant had with the HGN test are: Officer Wallace’s inability
to list the total number of clues in the HGN test, the lack of vertical gaze nystagmus
                                                                               -2-


(VGN), equal tracking of the eyes, and the placement of the stimulus. Appellant
contended that all of these, taken as a whole, were not substantially compliant with
recognized testing procedures, namely the National Highway Traffic Safety
Administration (NHSTA) manual, as required by Ohio law and therefore should have
been suppressed. However, the trial court denied appellant’s motion to suppress on
the basis that the motion and supporting memorandum themselves did not state with
particularity the issues appellant believed warranted suppression and that the motion
itself was factually inaccurate. The matter then proceeded to trial.
       {¶6}   At trial, the state called two witnesses, Officers Wallace and Short of
the Youngstown Police Department. On cross examination of Officer Wallace,
appellant’s counsel focused on many issues. Relevant to this appeal, appellant’s
counsel focused on: inaccurate items that were in Officer Wallace’s report, the basis
for stopping appellant and placing him under arrest, and potential deviations from the
NHSTA manual during the HGN test. Appellant’s trial counsel did not ask any
questions about the other field sobriety tests Officer Wallace performed. Officer Short
was only involved with the administration of appellant’s breathalyzer test which is not
at issue in this appeal.
       {¶7}   At the conclusion of the state’s case-in-chief, appellant moved pursuant
to Crim. R. 29 for a judgment of acquittal on the OVI charge. The basis of appellant’s
motion was he was being charged with OVI as an unclassified misdemeanor as he
had received two prior OVI convictions within six years of the charge at issue.
Appellant argued that in order to be convicted of OVI as an unclassified
misdemeanor, the State had to prove beyond a reasonable doubt that appellant had
received prior OVI convictions, which the State did not do in its case-in-chief.
Appellant also argued that because Officer Wallace admitted on cross-examination
that he deviated from the NHSTA manual in some respects during appellant’s HGN
test that his Crim.R. 29 motion should be granted. The trial court denied this motion.
       {¶8}   Appellant was then called as the sole witness for the defense. During
direct examination of appellant, he asserted that he was on his way to a neighbor’s
                                                                               -3-


birthday party and had not been drinking on the night of his arrest. Appellant also
asserted that he had used Listerine mouth wash prior to leaving for the party. Near
the end of appellant’s direct examination, appellant voluntarily admitted that he had
prior criminal convictions. Appellant’s counsel asked a few more follow up questions
which led to appellant recounting the details surrounding at least one prior OVI
conviction.
      {¶9}    At the conclusion of appellant’s case-in-chief, he renewed his Crim.R.
29 motion which the trial court denied. The case was then given to the jury for
deliberation. The jury returned a verdict of guilty on both counts. On October 14,
2015, the trial court then sentenced appellant to a $1,000.00 fine plus court costs, 90
days of incarceration, three years of intensive probation, three years operator’s
license suspension, a drug and alcohol assessment, and restricted plates and
ignition interlock for driving privileges. Appellant timely filed this appeal on October
14, 2015. Appellant now raises three assignments of error.
      {¶10} Appellant’s first assignment of error states:

              THE TRIAL COURT ERRED BY DENYING APPELLANT’S
      MOTION TO SUPPRESS, RELATIVE TO THE HGN TEST, AS THE
      STATE FAILED TO SHOW SUBSTANTIAL COMPLIANCE WITH
      TESTING PROCEDURES.

      {¶11} Appellant argues the State failed to show by clear and convincing
evidence that Officer Wallace’s administration of appellant’s HGN test was in
substantial compliance with relevant testing guidelines, particularly, the NHSTA
manual. Specifically, appellant argues that the HGN test was flawed due to Officer
Wallace’s inability to: recall the total number of possible clues of intoxication an HGN
test can yield, recall if he checked for vertical gaze nystagmus, check for equal
tracking of the eyes prior to administering the HGN test, and his inability to properly
position the stimulus during the HGN test.
      {¶12} A motion to suppress presents a mixed question of law and fact. When
                                                                                -4-


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 witness
credibility. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. The appellate court must accept the trial court’s findings of fact if they are
supported by competent and credible evidence. Id. 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.
       {¶13} In its journal entry on appellant’s motion to suppress, the trial court’s
basis for denying appellant’s motion was due to the insufficiency of the motion and
supporting memorandum themselves. The trial court noted that no factual basis
pertaining to the case at bar was actually raised in the motion or supporting
memorandum. Citing State v. Johnson, 137 Ohio App. 3d 847, 739 N.E.2d 1249
(12th Dist. 2000), which cites Crim.R. 47, a motion must state with particularity the
grounds upon which it is made.
       {¶14} The trial court continues to note that appellant’s motion used what
appeared to be boilerplate language that contained nothing specific to the case at
bar. For example, appellant’s supporting memorandum to his motion to suppress
raised 10 challenges to a breathalyzer test. However, while a breathalyzer was used
in the case at bar, its results were inconclusive and are not at issue in this appeal.
The trial court also notes that the supporting memorandum continues to allege that a
trooper’s conduct was improper. “Trooper” presumably means an officer of the Ohio
State Highway Patrol. However, no trooper was involved in this case. The trial court
also notes that the supporting memorandum alleges appellant’s statements were
obtained in violation of appellant’s Constitutional rights when no incriminating
statements were made.
       {¶15} Appellant’s supporting memorandum to his motion to suppress only
contains three facts which appear to be generic. First, it alleges that “the Trooper did
not have a sufficient reason to conduct field sobriety tests in the first place.” Second,
                                                                              -5-


it alleges “the Trooper asked Defendant to submit to the field sobriety tests based on
the odor of alcohol, time of day, and red glassy eyes.” Third, it alleges “There is no
evidence of erratic driving or any other ‘reasonable and articulable’ factors that give
Trooper probable cause to ask Defendant to submit to the field sobriety tests.”
      {¶16} The Ohio Supreme Court decided a similar case in State v. Shindler, 70
Ohio St. 3d 54, 636 N.E.2d 319 (1994). In Shindler, defendant-appellee Shindler filed
a motion to suppress evidence stemming from an OVI arrest that was a virtual copy
of a sample motion found in Ohio Driving Under the Influence Law (1990) 136-137,
Section 11.16. However, the Ohio Supreme Court ruled this motion and its supporting
memorandum were sufficient because they “set forth some underlying facts in the
memorandum in support of the motion.”
      {¶17} The case at bar is distinguishable from Shindler because appellant’s
supporting memorandum alleges very few facts with any specificity and, in a few
instances, incorrect facts. As the trial court noted, the supporting memorandum made
three references to a “Trooper.” However, no trooper was involved. The only reason
relevant to this appeal appellant cited in his motion to suppress was number seven
which stated “The field sobriety tests administered to the Defendant were not
administered in strict compliance with standardized testing procedures.” However, no
facts in appellant’s supporting memorandum alleged any deviations from any testing
procedures. Moreover, field sobriety tests must be administered only in substantial
compliance and not strict compliance. R.C. 4511.19(D)(4)(b), State v. Schmitt, 101
Ohio St. 3d 79, 2004-Ohio-37, 801 N.E.2d 446 ¶ 9 (2003). Ultimately, appellant’s
motion to suppress did not satisfy Crim.R. 47.
      {¶18} When a defendant’s motion to suppress raises only general claims, the
burden imposed on the state is fairly slight. State v. Keene, 7th Dist. No. 08 MA 0095,
2009-Ohio-1201 citing State v. Johnson, 137 Ohio App. 3d 847, 739 N.E.2d 1249 (2d
Dist. 2000). With a general motion to suppress, the state is only required to
demonstrate, in general terms, that it substantially complied with the regulations. Id.
Unless a defendant raises a specific issue in a motion, specific evidence is not
                                                                                -6-


required. Id.
       {¶19} In this case, at the suppression hearing, the state offered the NHSTA
manual as evidence of relevant testing standards, Officer Wallace testified that he
was trained in those standards, Officer Wallace testified as to how he implemented
the field sobriety tests with regards to appellant, and Officer Wallace testified that he
concluded appellant was operating a vehicle while intoxicated. This satisfies the
standard set forth in Keene and Johnson. As such, the trial court ruled properly in
denying appellant’s motion to suppress.
       {¶20} Accordingly, appellant’s first assignment of error is without merit and
overruled.
       {¶21} Appellant’s second assignment of error states:

                APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT
       EVIDENCE AND/OR APPELLANT’S RULE 29 MOTION SHOULD
       HAVE BEEN GRANTED AS THE STATE FAILED TO PRESENT ANY
       EVIDENCE IN ITS CASE IN CHIEF, OR PRESENT THE JURY WITH
       THE ISSUE OF PRIOR CONVICTIONS SUFFICIENT TO ELEVATE
       THE OFFENSE FROM A MISDEMEANOR OF THE FIRST DEGREE
       TO AN UNCLASSIFIED MISDEMEANOR.

       {¶22} Appellant argues that he was charged with OVI as an unclassified
misdemeanor which is a different degree than the first degree misdemeanors
associated with normal OVI charges. As an unclassified misdemeanor, appellant
claims the state failed to establish one of the elements of the offense beyond a
reasonable doubt in its case-in-chief, particularly, the state did not prove that
appellant had been convicted of OVI in the past.
       {¶23} A determination of guilt or innocence is appropriate for a jury when
reasonable minds can come to different conclusions as to whether each material
element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman,
55 Ohio St. 2d 261, 381 N.E.2d 184 (1978). On appeal, the relevant inquiry for the
                                                                                 -7-


appellate court is whether, after reviewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
crime beyond a reasonable doubt. State v. Cloud, 7th Dist. No. 98 CO 51, 2001-
Ohio-3396.
       {¶24} The original citation issued to appellant listed his offenses as OVI in
violation of R.C. 4511.19(A)(1)(a) and a malfunctioning license plate light in violation
of R.C. 4513.05. The state restated the same code sections in its bill of particulars
that was requested by appellant. The state stated the same OVI code section again
in response to appellant’s Crim.R. 29 motion at trial. R.C. 4511.19(A)(1)(a) does not
list prior OVI convictions as an element to the offense of OVI.
       {¶25} The Ohio Supreme Court has provided guidance on this issue. In State
v. Allen, 29 Ohio St. 3d 53, 506 N.E.2d 199 (1987), appellee Allen challenged the
trial court’s admission of his prior OVI convictions at his OVI trial. Originally, Allen’s
counsel agreed to stipulate that Allen had been convicted of OVI in the past but only
on the condition that the prior convictions be read into the record outside the
presence of the jury. All parties agreed but then the trial court read Allen’s prior OVI
convictions into the record in the presence of jury over Allen’s objection. The court of
appeals reversed and remanded the trial court’s decision on the grounds that prior
convictions were not an element of the offense. Additionally, the court of appeals
held that the existence of previous OVI convictions did not elevate the offense to one
of a more serious degree.
       {¶26} Affirming the decision of the court of appeals, the Ohio Supreme Court
in Allen held that neither the OVI statute nor the relevant penalty statute provided that
the degree of the offense is increased due to previous OVI convictions, only the
penalty is enhanced. Id. at 55.
       {¶27} Applying Allen to the case at bar, the trial court ruled properly in
denying appellant’s Crim.R. 29(A) motion on the grounds that the state did not need
to prove appellant had been convicted of OVI in the past. Following the Allen
decision, appellant’s OVI charge as an unclassified misdemeanor is an enhanced
                                                                              -8-


penalty from the standard OVI as a first degree misdemeanor. The only time the trial
court should have considered appellant’s prior OVI convictions was at sentencing,
which the trial court did.
       {¶28} Accordingly, appellant’s second assignment of error is without merit and
overruled.
       {¶29} Appellant’s third assignment of error states:

              APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
       COUNSEL AS TRIAL COUNSEL ELICITED TESTIMONY THAT WAS
       OTHERWISE INADMISSIBLE, RELATIVE TO APPELLANT’S PRIOR
       OVI CONVICTIONS AND PREJUDICED APPELLANT.

       {¶30} Appellant argues that his trial counsel was ineffective because his trial
counsel elicited information from him on direct examination that would have
otherwise been inadmissible. Namely, appellant argues that his trial counsel
introduced evidence of appellant’s two prior OVI convictions on direct examination of
appellant. Appellant contends that these convictions prejudiced the jury against him
and eliciting such testimony constituted ineffective assistance of counsel.
       {¶31} When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness. State v. Sanders, 94 Ohio St. 3d
150, 2002-Ohio-350, 761 N.E.2d 18 citing Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, the defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. Strickland charges
reviewing courts to apply a heavy measure of deference to counsel’s judgments and
to indulge a strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance. Id.
       {¶32} The beginning of the admission of appellant’s prior OVI convictions
                                                                                 -9-


appears to have come from appellant himself and not by a question from his trial
counsel. In response to a question about whether appellant informed one of the
officers administering his breathalyzer test if he had COPD, appellant answered:

       “I told him I had COPD. I told him twice as they were trying to sit there
       because he kept telling me he was going to give me a refusal and stick
       me in jail. I said well, do what you got to do. I said I am trying to do the
       test and he kept telling me I wasn’t doing it right. I said I have COPD. I
       even showed him the [s]car on my chest, you know. And when my
       anxiety kicks up, you know, a cop pulls you over, you get nervous, I
       don’t care who you are. I had mistakes before in my life but I am
       passed all that. So whenever I have had those mistakes I pled guilty
       and settled out and did what I had to do. I wouldn’t drag this all the way
       through to a jury trial if it was something that I did. I am a man and I do
       keep my word. That’s how I feel about it.”

Trial Tr. Pg. 107, Ln. 11-25.
       {¶33} Aside from appellant’s Crim.R. 29(A) motion that was argued outside
the presence of the jury, there is no evidence in the record of appellant’s prior OVI
convictions prior to this point. Appellant voluntarily introduced the fact that he had
“mistakes” in the past that he pled guilty to. At no point prior to this answer did
appellant’s trial counsel directly ask appellant about his prior OVI convictions.
Appellant’s trial counsel only addressed the convictions after appellant volunteered
the information himself. After some follow up questions from his trial counsel,
appellant elaborated on the circumstances relating to at least one of his prior OVI
convictions, which were: his wife had left him, she then moved to Cincinnati, and she
was awarded custody of their child. (Trial Tr. Pg. 108, Ln 4-16). Appellant elaborated
further that his response to these events was to “stay drunk and I paid the price for it
and saw the evil of my ways and woke up and got myself back together again.” (Trial
Tr. Pg. 108, Ln. 17-24).
                                                                                  - 10 -


       {¶34} This line of questioning does not fall below an objective standard of
reasonableness to satisfy the first element of the Strickland test. Appellant opened
the door to his prior convictions himself and it appears from the transcript that his trial
counsel attempted to turn these prior convictions in a positive light. Namely, by giving
the specific circumstances surrounding at least one of the prior convictions, that
appellant pled guilty to OVI twice in the past because he committed the crimes.
However, appellant contended he was innocent of the charge at issue which is why
he did not plead guilty in the case at bar.
       {¶35} Moreover, there is no indication that, but for this line of questioning, the
result of the trial would have been different which is required to satisfy the second
element of the Strickland test. The state elicited largely uncontested testimony at trial
that Officer Wallace stopped appellant’s car because of a license plate light
infraction, Officer Wallace was trained in performing field sobriety tests, Officer
Wallace performed field sobriety tests on appellant, and appellant exhibited multiple
signs of intoxication. There is no indication that the jury predominantly focused on
appellant’s prior OVI convictions rather than the testimony of Officer Wallace that, in
his opinion, appellant was operating a motor vehicle while intoxicated.
       {¶36} Assuming it was originally appellant’s trial counsel’s decision to have
appellant testify at trial about his prior OVI convictions on direct examination, there is
still no indication that this testimony rose to the level of ineffective assistance of
counsel. It appears from the trial transcript that appellant was trying to explain that he
is a man who admits his mistakes when he makes them and that he truly believed he
was not guilty of OVI in the case at bar.
       {¶37} Accordingly, appellant’s third assignment of error is without merit and
overruled.
                                                                      - 11 -


      {¶38} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

Robb, P.J., concurs.
