[Cite as State v. Hodge, 2011-Ohio-5023.]




              IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO. 2010 CA 11

v.                                                      :            T.C. NO.   TRC0907537

BRUCE HODGE                                             :            (Criminal appeal from
                                                                      Municipal Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                         Rendered on the         30th       day of      September    , 2011.

                                            ..........

BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Fairborn Prosecutor, 510 West Main
Street, Fairborn, Ohio 45324
        Attorney for Plaintiff-Appellee

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 2100 First National Plaza, 130 W.
Second Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1} Bruce Hodge was found guilty by a jury of operating a vehicle under the

influence of drugs or alcohol (OVI), refusing to submit to a chemical test to determine

whether he was under the influence of alcohol or drugs when he had a prior conviction of
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OVI within twenty years, and driving under suspension. He appeals from his convictions.

        {¶ 2} On July 21, 2009, Hodge was stopped for driving under suspension after a

police officer ran a routine check of his license plate. During the stop, police officers

detected an odor of an alcoholic beverage and observed other indicia that Hodge was under

the influence of drugs or alcohol. They conducted one field sobriety test and took Hodge to

the police station jail, where he refused to submit to a breathalyzer test. Hodge was cited

for OVI (with two prior convictions), for refusing to submit to the test, and for driving under

suspension.

        {¶ 3} The charges were tried to a jury in the Fairborn Municipal Court, and Hodge

was found guilty on all three charges. The OVI charge and refusal to submit to a chemical

test charge merged. The trial court sentenced Hodge to concurrent sentences of 365 days

in jail for the OVI and 180 days for driving under suspension, with 180 days and 170 days

suspended, respectively, on the condition that he have no similar violations for five years.

His driver’s license was suspended for five years, and he was fined $850. Hodge appeals

from his convictions, raising two assignments of error. We address the assignments in the

order that facilitates our discussion.

        {¶ 4} The second assignment of error states:

        {¶ 5} “THERE EXISTED INSUFFICIENT INDICIA OF IMPAIRMENT AND

THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

        {¶ 6} Hodge contends that his conviction for OVI was supported by insufficient

evidence and was against the manifest weight of the evidence.
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       {¶ 7} An argument based on the sufficiency of the evidence challenges whether the

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

the jury or to sustain the verdict as a matter of law. State v. Thompkins (1999), 78 Ohio

St.3d 380, 386. “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. Jenks (1991), 61 Ohio St.3d 259,

paragraph two of the syllabus.

       {¶ 8} In contrast, when reviewing a judgment under a manifest-weight standard of

review “‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered. The discretionary

power to grant a new trial should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.’”        Thompkins, 78 Ohio St.3d at 387,

quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.

       {¶ 9} At trial, the State offered the following evidence:

       {¶ 10} On July 21, 2009, Fairborn Police Officer Brian J. Neiford “conducted a

random BMV inquiry on the license plate” of a vehicle while it was parked outside the Sugar

Melons bar. As a result of the inquiry, Officer Neiford discovered that the owner of the car,

Bruce Hodge, was under a “failure to reinstate” suspension of his driver’s license. When a

man matching Hodge’s description drove the vehicle away from the bar, Officer Neiford
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made a traffic stop. He did not observe any other traffic violations before making the stop.

        {¶ 11} When Officer Neiford questioned Hodge about the suspension, Hodge

presented a paper stating that he had driving privileges to and from work and Alcoholics

Anonymous meetings; Hodge claimed that he was on his way to an AA meeting. The paper

indicated that Hodge was not allowed to consume alcoholic beverages before driving under

the privileges. Officer Neiford’s computer did not indicate that Hodge had been granted

any driving privileges.

        {¶ 12} Officer Neiford detected “a slight odor of alcoholic beverages on or about”

Hodge. He also observed that Hodge’s eyes were “bloodshot and glassy,” that his face was

“flushed,” and that his speech was “slow and deliberate” and “appeared to be slurred.”

Officer Neiford recognized all of these factors as indicators of intoxication.        Officer

Neiford arrested Hodge for driving under suspension and then conducted a horizontal gaze

nystagmus (HGN) test. Neiford observed all six indicators of intoxication during the HGN

test.

        {¶ 13} Hodge became more argumentative and uncooperative as the encounter

continued. Officer Neiford testified that he did not take the handcuffs off of Hodge to

conduct more field sobriety tests because of Hodge’s belligerence and insults. Neiford also

testified that Hodge asked the same questions repeatedly, even after the questions had been

answered. After Officer Neiford got into the cruiser with Hodge and began to transport him

to the jail, Neiford smelled a stronger odor of an alcoholic beverage. Realizing that he

would be arresting Hodge for OVI in addition to driving under suspension, and because

department policy called for conducting an inventory and towing a car when an arrest for
                                                                                              5

OVI is made, Officer Neiford returned to Hodge’s car to inventory its contents and arrange

for the towing. After the vehicle was towed, Officer Neiford transported Hodge to jail.

          {¶ 14} Officer Penrod responded as backup after Neiford stopped Hodge. Officer

Penrod testified that he had detected an odor of an alcoholic beverage when he approached

Hodge, that Hodge’s eyes had been watery and bloodshot, and that his speech had been

slurred, but not severely. Officer Penrod testified that, in his opinion, Hodge had been

“under the influence, intoxicated.”

          {¶ 15} Finally, Steven Barker, who worked at the Fairborn jail and processed Hodge

the night of his arrest, testified that he “smelled a strong odor of alcohol” on Hodge at the

jail. Barker also observed slurred speech, argumentativeness, and agitation.

          {¶ 16} Hodge did not testify and did not call any witnesses at trial, but his attorney

cross-examined the State’s witnesses about their observations and, with respect to Officer

Neiford, his compliance with police procedures in conducting the HGN test. Regarding the

HGN test, Officer Neiford acknowledged that an officer is supposed to be “kind of on level”

with a person when conducting the test. He acknowledged that he (Officer Neiford) had

been standing outside the cruiser and Hodge had been sitting in the backseat of the cruiser

when the test was conducted. When questioned about whether this procedure violated his

training and “the rule,” Officer Neiford stated that he was “unaware” that the rule addressed

this issue and stated, “[i]f the person is taller or shorter than you, it’s going to be the same

thing.”     He also stated that the manner in which he had conducted the HGN test was

consistent with his training. Hodge also played the videotape of the traffic stop for the jury,

to refute the State’s evidence that his speech had been slurred.
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        {¶ 17} Hodge was convicted under R.C. 4511.19(A)(1)(a) and (A)(2). Violations of

R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) are both classified as the offense of operating

a motor vehicle under the influence of alcohol. For certain repeat offenders, R.C.

4511.19(A)(2) adds the additional element of refusing to submit to a chemical test. The

distinction between these offenses is that the minimum, mandatory jail terms are greater for

a violation of R.C. 4511.19(A)(2) than they are for a violation of R.C. 4511.19(A)(1)(a). See

State v. Turner, Portage App. No. 2007-P-0090, 2008-Ohio-3898, ¶42.

        {¶ 18} R.C. 4511.19(A)(1)(a) states that “[n]o person shall operate any vehicle,

streetcar, or trackless trolley within this state, if, at the time of the operation, *** [t]he

person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C.

4511.19(A)(2) further provides that a person who has been previously convicted of OVI

within twenty years shall not operate a vehicle under the influence of alcohol or drugs and

shall not, upon being asked by a law enforcement officer to submit to a chemical test or tests

and being advised by the officer of the consequences of refusal or submission to the test or

tests, refuse to submit to the test or tests.

        {¶ 19} Accordingly, to establish the violation of R.C. 4511.19(A)(2), the State was

required to prove (in addition to the prior conviction) that Hodge had operated a vehicle

under the influence of drugs or alcohol and that he had refused to submit to a chemical test.

Hodge contends that, “[a]bsent the improperly conducted and prejudicial HGN test results,

the facts do not support a finding of impairment.”   We disagree.

        {¶ 20} Even if the jury had disregarded the result of the HGN field sobriety test

based on Hodge’s suggestion, through cross-examination, that the results of the test were
                                                                                             7

unreliable, there was evidence from which the jury could have concluded, beyond a

reasonable doubt, that Hodge was guilty of OVI. Two police officers testified to numerous

physical and behavioral indications of intoxication, including the odor of an alcoholic

beverage, slurred speech, bloodshot eyes, argumentativeness, and failure to comprehend or

retain answers to questions.     The HGN test provided further support for the officers’

conclusion that Hodge was under the influence of alcohol, but it certainly was not the only

evidence pointing to Hodge’s intoxication. The evidence was legally sufficient to support

Hodge’s conviction.

       {¶ 21} Hodge also argues that his conviction was against the manifest weight of the

evidence. He claims that Officer Neiford “contradicted [him]self as to when and why he

decided to charge” Hodge with OVI and that it “seems evident that [Neiford’s] dislike for

[Hodge] was the reason for the OVI charge.”

       {¶ 22} There were some inconsistencies in Officer Neiford’s testimony about when

he decided to arrest Hodge for OVI, which necessitated impounding Hodge’s car. And

Officer Neiford acknowledged that Hodge had accused him of “planting some things” in

Hodge’s car and of “harassment,” and that these accusations “got under [his] skin.” But

Officer Neiford denied charging Hodge with OVI because he was angry with Hodge.

Neiford was cross-examined about the inconsistencies in his testimony. The jury was in the

best position to assess the credibility of the witnesses’ testimony and to resolve conflicts in

the evidence. Based on the evidence presented, the jury did not clearly lose its way or

create a manifest miscarriage of justice when it convicted Hodge. Thus, his conviction was

not against the manifest weight of the evidence.
                                                                                            8

       {¶ 23} The second assignment of error is overruled.

       {¶ 24} Hodge’s first assignment of error states:

       {¶ 25} “FAILURE TO MOVE TO SUPPRESS THE HORIZONTAL GAZE

NYSTAGMUS TEST RESULTS RESULTED IN INEFFECTIVE ASSISTANCE OF

COUNSEL.”

       {¶ 26} Hodge claims that he was denied the effective assistance of counsel because

counsel did not move to suppress the results of the HGN test conducted when he was

stopped by the police.

       {¶ 27} Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Strickland v. Washington (1984), 466 U.S.

668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different. Id. Deficient performance means that claimed errors were so serious that the

defense attorney was not functioning as the “counsel” that the Sixth Amendment guarantees.

 State v. Cook (1992), 65 Ohio St.3d 516, 524. Hindsight is not permitted to distort the

assessment of what was reasonable in light of counsel’s perspective at the time, and a

debatable decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel. Id. at 524-525.

       {¶ 28} Hodge claims that his counsel was ineffective in failing to seek suppression

of the HGN test results because Officer Neiford’s conduct was “not remotely in substantial
                                                                                             9

compliance with the applicable regulations.”

       {¶ 29} The State did not rely exclusively on the HGN field sobriety test to prove that

Hodge had been under the influence, nor was it required to offer proof that Hodge had failed

one or more field sobriety tests. A reasonable jury may conclude that a defendant was

under the influence based only on an officer’s observations, even if no field sobriety tests or

chemical tests were administered. See State v. Gilleland, Champaign App. No. 2004 CA 1,

2005-Ohio-659, ¶19, citing State v. Flynt, Portage App. No. 2001-P-0116, 2003-Ohio-1391.

 The State offered evidence from three witnesses that, on the night of the offenses, Hodge

exhibited physical and behavioral characteristics consistent with being under the influence.

Moreover, although Hodge questioned Officer Neiford about the procedural requirements for

conducting the HGN test, Hodge did not offer evidence regarding those requirements, and

Officer Neiford did not concede that he had failed to comply with the appropriate procedures

for administration of the HGN test.

       {¶ 30} We cannot conclude that trial counsel’s conduct fell below an objective

standard of reasonableness, because the record does not demonstrate that Officer Neiford

conducted the HGN test improperly and, therefore, that a motion to suppress would have

been sustained.    Furthermore, we cannot conclude that Hodge was prejudiced by his

attorney’s failure to file a motion to suppress as, even without the HGN test result, there was

evidence in the record to support the jury’s conclusion that he had been driving under the

influence. For these reasons, we cannot conclude that there is a reasonable probability that

counsel’s failure to file a motion to suppress affected the outcome of the case or that Hodge

was denied the effective assistance of counsel.
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       {¶ 31} The first assignment of error is overruled.

       {¶ 32} The judgment of the trial court will be affirmed.

                                        ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Betsy A. Deeds
Michael T. Columbus
Hon. Beth W. Root
