[Cite as State v. Ellis, 2012-Ohio-1022.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                             WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3
                               :
     vs.                       : Released: March 8, 2012
                               :
STEVEN B. ELLIS,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Bradley P. Koffel, The Koffel Law Firm, Columbus, Ohio, for Appellant.

Roland W. Riggs, III, Marietta City Law Director, and Amy Brown
Thompson, Assistant Marietta City Law Director, Marietta, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Steven Ellis, appeals his conviction by the Marietta

Municipal Court after a jury found him guilty of OVI, a first degree

misdemeanor in violation of R.C. 4511.19(A)(1)(a). On appeal, Appellant

contends that 1) the trial court erred by admitting the urine test result without

requiring the State to establish a proper foundation; 2) trial counsel rendered

ineffective assistance of counsel in violation of Appellant’s rights under the

Sixth, and Fourteenth Amendments to the Unites States Constitution, and

Sections 10 and 16, Article I of the Ohio Constitution; 3) the trial court
Washington App. No. 11CA3                                                      2


violated Appellant’s rights to due process and a fair trial when, in the

absence of sufficient evidence, the trial court convicted Appellant of

operating a vehicle while under the influence of alcohol; and 4) the trial

court violated Appellant’s rights to due process and a fair trial when it

entered a judgment of conviction for operating a vehicle while under the

influence of alcohol, when that judgment was against the manifest weight of

the evidence.

       {¶2} We find any error by the trial court in admitting testimony

related to the urine test results without a proper foundation or expert

testimony to be harmless error. As such, Appellant’s first assignment of

error is overruled. Accordingly, Appellant’s argument that his trial counsel

was ineffective for allegedly failing to object to such admission is without

merit and his second assignment of error is overruled. Finally, in light of

our findings under Appellant’s first two assignments of error, we overrule

Appellant’s third and fourth assignments of error which challenge the

sufficiency and weight of the evidence. Accordingly, the decision of the

trial court is affirmed.

                                       FACTS

       {¶3} Appellant was cited for OVI, in violation of R.C.

4511.19(A)(1)(a), and failure to wear a safety belt, in violation of R.C.
Washington App. No. 11CA3                                                                                    3


4573.263(B)(1),1 on May 19, 2010. At a subsequent hearing, Appellant pled

not guilty to the charges and the matter was set for a jury trial. Prior to the

jury trial, Appellant filed a motion in limine seeking an order restricting the

State from introducing any testimony by the criminologist related to

Appellant’s urine test results. The trial court granted the motion, but

specified that the State would be permitted to introduce the testimony of the

criminalist if it also presented appropriate expert testimony to support the

criminalist’s testimony. Appellant’s appeal involves the trial court’s later

allowance of testimony during trial by the state trooper related to

Appellant’s urine test results, without also introducing testimony by the

criminalist, or lab technician, who tested the urine sample, to lay a

foundation for the admissibility of the urine test results at trial.

         {¶4} We initially must note that although the parties and the trial court

agreed that the State would not be permitted to introduce evidence regarding

Appellant’s urine test results without also introducing the testimony of the

criminalist and an expert, during opening statements, Appellant’s trial

counsel stated that Appellant submitted to a urine test and “he was under the

legal limit.” A bench conference was held as a result of the State’s

objection, in response to which the trial court determined, over Appellant’s

1
  Based upon our review of the record it appears that this charge was disposed of separately from the jury
trial and is not part of the current appeal.
Washington App. No. 11CA3                                                       4


objection, that the State would be able to introduce limited evidence

regarding the urine test results, including that the urine test was performed

within two hours of the stop and the results of test. In reaching this decision,

the trial court determined that they could not “unring that bell” and that “the

door has been opened” by Appellant’s trial counsel.

      {¶5} A review of the trial transcript reveals that Trooper Charles

Robinson stopped Appellant at approximately 9:22 p.m. on May 19, 2010,

just south of Marietta after observing Appellant driving with one headlight

out and wearing no seatbelt. Trooper Robinson, who was the State’s only

witness, testified that upon making contact with Appellant, he observed

Appellant’s eyes to be glassy and bloodshot, and detected an odor of alcohol

about Appellant’s breath, which remained even after Appellant exited the

vehicle. Trooper Robinson further testified that Appellant stated he had

consumed a glass of wine with dinner prior to driving.

      {¶6} Based upon this information, the trooper requested and Appellant

agreed to perform field sobriety tests. According to the testimony of the

trooper, Appellant exhibited six out of six clues on the Horizontal Gaze

Nystagmus (HGN) test, scored three of out four clues for intoxication on the

one leg stand test, and scored five out of eight clues for intoxication on the

walk and turn test. The trooper further testified that based upon Appellant’s
Washington App. No. 11CA3                                                      5


performance on the field sobriety tests, his eyes and his odor, he arrested

Appellant. Further, in accordance with the trial court’s order, the trooper

was permitted to testify regarding the urine test performed on Appellant.

Specifically, the trooper testified that Appellant submitted to a urine test

within two hours of being stopped, the legal limit is .110, and Appellant’s

test results were .108.

      {¶7} Appellant and his passenger on the night of his stop, Judith

Piersall, also testified. Both Appellant and Ms. Piersall essentially testified

that they had been playing in a competitive tennis match earlier in the day

and then had eaten dinner at Ruby Tuesdays in Athens, Ohio, where they

drank wine. Both Appellant and Ms. Piersall testified that Appellant had

two glasses of wine with dinner, and then left the restaurant to return to

Marietta. During trial, Appellant attributed his poor performance on the

field sobriety tests to his foot and knee problems and to misunderstanding

the instructions on the walk and turn test.

      {¶8} After the evidence, the jury found Appellant guilty of OVI. The

trial court’s original judgment entry dated January 6, 2011, which was later

determined to be deficient, was corrected via a nunc pro tunc entry dated

May 25, 2011, and it is from this corrected judgment entry that Appellant

now brings his timely appeal, assigning the following errors for our review.
Washington App. No. 11CA3                                                         6


                        ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT ERRED BY ADMITTING THE URINE TEST
       RESULT WITHOUT REQUIRING THE STATE TO ESTABLISH A
       PROPER FOUNDATION.

II.    TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
       COUNSEL IN VIOLATION OF MR. ELLIS’ RIGHTS UNDER
       THE SIXTH, AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,
       ARTICLE I OF THE OHIO CONSTITUTION.

III.   THE TRIAL COURT VIOLATED STEVEN ELLIS’ RIGHTS TO
       DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE
       OF SUFFICIENT EVIDENCE, THE TRIAL COURT CONVICTED
       MR. ELLIS OF OPERATING A VEHICLE WHILE UNDER THE
       INFLUENCE OF ALCOHOL.

IV.    THE TRIAL COURT VIOLATED STEVEN ELLIS’ RIGHTS TO
       DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A
       JUDGMENT OF CONVICTION FOR OPERATING A VEHICLE
       WHILE UNDER THE INFLUENCE OF ALCOHOL, WHEN THAT
       JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.”

                        ASSIGNMENT OF ERROR I

       {¶9} In his first assignment of error, Appellant contends that the trial

court erred by admitting the urine test results without requiring the State to

establish a proper foundation. Specifically, Appellant argues that the trial

court violated his Sixth Amendment Confrontation Clause rights when it

permitted the State to introduce evidence of the urine test results without

calling the lab technician who tested the urine sample at trial to lay a

foundation. Appellant claims that he had a right to cross-examine the lab
Washington App. No. 11CA3                                                          7


technician in order to challenge their credibility, the methodology employed,

and any other factors that might affect the weight to be given to the test

results, citing State v. Syx, 190 Ohio App.3d 845, 2010-Ohio-5880, 944

N.E.2d 722, and Melendez-Diaz v. Massachusetts (2009), _____ U.S.

________, 129 S.Ct. 2527, in support.

      {¶10} The State responds by pointing out that both parties had agreed

prior to trial, via a motion in limine, that the urine test results would not be

introduced absent testimony from the lab technician as well as an expert, and

it was Appellant who opened the door for the introduction of this evidence

by referencing it in opening argument. Thus, the State argues that the

“curative admissibility doctrine” applies. Alternatively, the State contends

that if the trial court did err in admitting the urine test results, such error was

harmless because of the “sheer amount of other evidence admitted” that

supports Appellant’s conviction.

      {¶11} In State v. Syx, as relied upon by Appellant, Syx argued that he

was denied his constitutional right to confront witnesses when the State

failed to call the phlebotomist who drew his blood sample and the

toxicologist who tested the sample to testify at trial in order to lay a
Washington App. No. 11CA3                                                                                      8


foundation for the admission of the blood-alcohol test results.2 Syx at ¶ 22.

Based upon these facts, the Syx court held that “[w]ithout the testimony of

witnesses with first-hand knowledge, the test results should not have been

admitted into evidence.” Id. at ¶ 27. In reaching this decision, the Syx court

reasoned as follows:

       “The Sixth Amendment's Confrontation Clause provides, ‘In all
criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him.’ The United States Supreme
Court has held that the right to confrontation is violated when an out-of-
court statement that is testimonial nature is admitted into evidence without
the defendants having had the opportunity to cross-examine the declarant.
Crawford v. Washington (2004), 541 U.S. 36, 68, 124 S.Ct. 1354, 158
L.Ed.2d 177. Although the court explicitly left open a precise definition of
what is ‘testimonial,’ it stated that the core class of testimonial statements
includes statements ‘that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be
available for use at a later trial.’ Id. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Accord State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d
834, paragraph one of the syllabus. ‘In determining whether a statement is
testimonial for Confrontation Clause purposes, courts should focus on the
expectation of the declarant at the time of making the statement.’ Id. at
paragraph two of the syllabus. Thus, the primary question we must consider
is whether the results of a blood-alcohol test are testimonial in nature.
       More than 30 years ago, the United States Supreme Court held that
police do not violate the defendant's Fifth Amendment right against self-
incrimination by requesting a blood test upon making an arrest for driving
under the influence of alcohol, and therefore, there is no right to consult an
attorney prior to deciding whether to submit to testing. Schmerber v.
California (1966), 384 U.S. 757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908. One
basis for that decision was the court's conclusion that the results of a test of a
defendant's body fluids are nontestimonial in nature, in the sense that they
do not constitute out-of-court ‘testimony’ by the defendant whose body
2
 In Syx, the blood test results were admitted into evidence via a chief forensic toxicologist that did not
actually conduct the testing on Syx’s blood sample, but rather was the direct supervisor of the toxicologist
who did. Syx at ¶ 27.
Washington App. No. 11CA3                                                         9


fluids have been tested. Id. While the holding of Schmerber remains intact,
the court's more recent decision in Melendez–Diaz v. Massachusetts (2009),
––– U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314, calls into doubt that the
nontestimonial nature of a defendant's body fluids applies to a test result
derived from those same body fluids. In other words, the body fluids
themselves do not constitute compelled testimony for Fifth Amendment
purposes, but the results of a test of those same body fluids, and statements
by the persons conducting the testing, are testimonial in nature for purposes
of the Sixth Amendment's confrontation clause.
        In Melendez–Diaz, the court considered the admissibility of a lab
analyst's affidavit regarding his testing of suspected narcotics, absent that
analyst's testimony at trial, as provided for under Massachusetts law. The
court explained that the lab analyst's affidavit is not a business record
pursuant to Fed.R.Evid. 803(6), because the record is not kept in the regular
course of business, but is created solely for the purpose of evidence at trial.
Id. at ––––, 129 S.Ct. at 2538, 174 L.Ed.2d 314. The court concluded that
the affidavit is testimonial in nature, and the defendant, therefore, has a
constitutional right to cross-examine the analyst who conducted the testing
and compiled the report. Id.” State v. Syx at ¶ 23-25.

      {¶12} Here, the test results at issue are urine test results rather than

blood test results and they were admitted into evidence by a state trooper

rather than by a chief toxicologist; however, we find that despite these

factual differences, the reasoning in State v. Syx is still applicable. Thus, we

agree with Appellant’s argument that he was denied his Sixth Amendment

Confrontation Clause rights when the trial court permitted the State to

introduce testimony related to the urine test results via the state trooper

rather than a toxicologist, or lab technician, who performed the test.

      {¶13} However, there are other factual differences between the case

sub judice and Syx that we conclude ultimately leads us to a different result
Washington App. No. 11CA3                                                        10


than in Syx. First, we must be mindful that in State v. Syx, Syx filed a motion

to suppress related to the admission of the both the field sobriety tests

results, as well as the blood test results. Syx at ¶ 13. As noted in Syx, “[a]n

assertion that test results are inadmissible in a criminal trial because the state

failed to substantially comply with methods approved by the Director of

Health for determining the concentration of alcohol in bodily fluids must be

raised through a pretrial motion to suppress.” State v. Syx at ¶ 29; citing

State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752,

paragraph one of the syllabus; State v. French (1995), 72 Ohio St.3d 446,

1995-Ohio-32, 650 N.E.2d 887. Here, Appellant failed to file a motion to

suppress, but instead filed a motion in limine. However, as the Syx court

noted, relying on the Supreme Court of Ohio’s reasoning in French, “ ‘[t]his

does not mean, however, that the defendant may not challenge the chemical

test results at trial under the Rules of Evidence. Evidentiary objections

challenging the competency, admissibility, relevancy, authenticity, and

credibility of the chemical test results may still be raised.’ ” State v. Syx at ¶

30; quoting, French at 452.

      {¶14} Secondly, in Syx, the results of the field sobriety tests were

ordered to be suppressed, unlike in the present case. Syx at ¶ 8. Here, not

only did the trooper testify that upon being stopped Appellant had glassy,
Washington App. No. 11CA3                                                        11


bloodshot eyes, had an odor of alcohol, and admitted to having consumed

alcohol prior to driving, the State further introduced evidence via testimony

of the trooper that Appellant failed three field sobriety tests, including the

HGN, one leg stand, and walk and turns tests. Thus, here there was other

evidence in the record that demonstrated Appellant was driving his vehicle

while under the influence. As such, and based upon the following, we

conclude that any error by the trial court in admitting the urine test results

constituted harmless error.

      {¶15} “A constitutional error can be held harmless if we determine

that it was harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at ¶ 78, citing Chapman v.

California (1967), 386 U.S. 18, 24, 87 S.Ct. 824; see also, State v. Love,

Gallia App. No. 10CA7, 2011-Ohio-4147 at ¶ 25. “Whether a Sixth

Amendment error was harmless beyond a reasonable doubt is not simply an

inquiry into the sufficiency of the remaining evidence. Instead, the question

is whether there is a reasonable possibility that the evidence complained of

might have contributed to the conviction.” Id., citing Chapman at 23 and

State v. Madrigal (2000), 87 Ohio St.3d 378, 388, 2000-Ohio-448, 721

N.E.2d 52. See, also, Crawford at 42, fn. 1.
Washington App. No. 11CA3                                                          12


      {¶16} In the case sub judice, if the urine test results are omitted, the

remaining evidence related to Appellant’s demeanor upon being stopped, his

admission to consuming alcohol and his poor performance on the field

sobriety tests is sufficient to support his conviction. Further, as to the

question of whether there is a reasonable probability that the evidence

complained of might have contributed to the conviction, we conclude that

the answer is no. In reaching this decision, we must note that it was

Appellant’s trial counsel that initially “opened the door” to the issue of the

test results, by informing the jury during opening arguments that Appellant

“provided a urine sample” and that the “results” were “under the legal limit.”

Because of this statement made by counsel, the trial court authorized the

State to introduce limited testimony via the trooper that Appellant submitted

to a urine test within two hours of his stop, the per se or legal limit is .110,

and Appellant’s test results were .108.

      {¶17} We cannot conclude that this evidence contributed to

Appellant’s conviction. First, the jury had already heard that Appellant’s

urine test result was under the legal limit. Secondly, the jury also heard

from Appellant himself, that he had two glasses of wine, rather than one as

originally reported. Under these circumstances, we do not believe that such

testimony prejudiced Appellant. Further, we are persuaded by the State’s
Washington App. No. 11CA3                                                       13


argument that “[a]rguably, if the evidence against the Appellant had been

weaker, then the admission of the test results could have possibly exonerated

him as the test was below the limit.” As such, despite the constitutional

nature of this error, we nevertheless conclude that it was harmless beyond a

reasonable doubt. Thus, Appellant’s first assignment of error is overruled.

                        ASSIGNMENT OF ERROR II

      {¶18} In his second assignment of error, Appellant contends that trial

counsel rendered ineffective assistance of counsel by failing to object to the

improper admission of the urine test results. The State responds by arguing

that contrary to Appellant’s assertions, his trial counsel vigorously objected

to the trial court’s admission of the urine test results, but simply lost the

objection and, as such, did not render ineffective assistance of counsel.

      {¶19} In order to prevail on a claim of ineffective assistance of

counsel, an appellant must show that (1) his counsel's performance was

deficient, and (2) the deficient performance prejudiced his defense so as to

deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-

Ohio-5084, 854 N.E.2d 1038, at ¶ 205, citing Strickland v. Washington

(1984), 466 U.S. 668, 687, 104 S.Ct. 2052. To establish deficient

performance, an appellant must show that trial counsel's performance fell

below an objective level of reasonable representation. State v. Conway, 109
Washington App. No. 11CA3                                                         14


Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95. To establish

prejudice, an appellant must show a reasonable probability exists that, but

for the alleged errors, the result of the proceeding would have been different.

Id. “ ‘In Ohio, a properly licensed attorney is presumed competent and the

appellant bears the burden to establish counsel's ineffectiveness.’ ” State v.

Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶ 20,

quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473;

State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476, cert.

den. Hamblin v. Ohio (1988) 488 U .S. 975, 109 S.Ct. 515.

      {¶20} Our review of the record reveals that although Appellant’s

counsel did in fact mention that Appellant’s urine test results were under the

legal limit during his opening argument, he objected to the State’s request to

be able to introduce the actual urine test results. Specifically, trial counsel

objected to the State’s request to introduce this testimony without laying a

foundation via the lab technician who did the testing, and without expert

testimony to correlate the result, or explain its significance to the jury. Thus,

we reject Appellant’s argument that his counsel failed to object to the

admission of this testimony.

      {¶21} Further, as discussed in our analysis of Appellant’s first

assignment of error, we concluded that the trial court’s admission of the
Washington App. No. 11CA3                                                          15


urine test result into evidence without foundation testimony by the State to

be harmless error. Thus, even if Appellant’s trial counsel had failed to

object to the admission of this testimony, bearing in mind our determination

that such admission constituted harmless error, we cannot conclude that the

result of the proceeding would have been different but for the admission of

this testimony. As such, Appellant has not demonstrated any prejudice as a

result of this alleged error by trial counsel. Thus, we reject Appellant’s

contention that he received ineffective assistance of counsel at the trial court

level and therefore overrule his second assignment of error.

                      ASSIGNMENT OF ERROR III AND IV

      {¶22} In his third and fourth assignments of error, Appellant contends

that the trial court violated his rights to due process and a fair trial when it

convicted him, the absence of sufficient evidence, of operating a vehicle

while under the influence of alcohol, and further claims that his conviction

was against the manifest weight of the evidence.

      {¶23} “When an appellate court concludes that the weight of the

evidence supports a defendant's conviction, this conclusion necessarily

includes a finding that sufficient evidence supports the conviction.” State v.

Puckett, 191 Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, at ¶ 34.

“Thus, a determination that [a] conviction is supported by the weight of the
Washington App. No. 11CA3                                                      16


evidence will also be dispositive of the issue of sufficiency.” Id., quoting

State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942, at ¶ 9, in turn,

quoting State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462,

1997 WL 600669; see also, State v. Bostwick, Scioto App. No. 10CA3382,

2011-Ohio-3671 at ¶ 10. “ ‘Therefore, we first consider whether

[Appellant’s] conviction [is] against the manifest weight of the evidence.’ ”

Bostwick at ¶ 10; quoting State v. Leslie, Hocking App. Nos. 10CA17 &

10CA18, 2011-Ohio-2727, at ¶ 15.

      {¶24} When determining whether a criminal conviction is against the

manifest weight of the evidence, we “will not reverse a conviction where

there is substantial evidence upon which the [trier of fact] could reasonably

conclude that all the elements of an offense have been proven beyond a

reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d

304, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway

App. No. 06CA7, 2007-Ohio-502, at ¶ 33. We “must review the entire

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

credibility of the 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

granted.” Id. at ¶ 41, citing State v. Garrow (1995), 103 Ohio App.3d 368,
Washington App. No. 11CA3                                                            17


370-371, 659 N.E.2d 814; State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717. But “[o]n the trial of a case, * * * the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the

facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, at

paragraph one of the syllabus.

       {¶25} Under R.C. 4511.19(A)(1) “[n]o 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) [t]he person is under the influence

of alcohol, a drug of abuse, or a combination of them both.” In the case sub

judice, Appellant does not challenge the validity of the traffic stop. Clearly,

the trooper had probable cause to stop Appellant based on his uncontested

driving with only one headlight. Nor does Appellant claim that the trooper

did not have probable cause to arrest him for OVI. Instead, Appellant claims

that the State failed to introduce evidence of impaired driving.

       {¶26} “In order to find Appellant guilty of Driving Under the

Influence as charged, the trial court would have to find Appellant operated

any vehicle, streetcar, or trackless trolley within this state, and that at the

time of the operation, Appellant was (a) under the influence of alcohol; (b) a

drug of abuse; or (c) a combination of them. We have previously held that

‘[a] driver of a motor vehicle is considered “under the influence” of alcohol
Washington App. No. 11CA3                                                       18


when his “physical and mental ability to act and react are altered from the

normal because of the consumption of alcohol.’ ” State v. Stephenson,

Lawrence App. No. 05CA30, 2006-Ohio-2563 at ¶ 21; citing, State v. Carter

(June 16, 1998), Washington App. No. 97CA13, 1998 WL 352588, citing

State v. Hardy (1971), 28 Ohio St.2d 89, 91, 276 N.E.2d 247.

      {¶27} The record reveals that Appellant was stopped for driving with

only one headlight and failing to wear a seatbelt. As discussed above, the

trial transcript reveals that upon approaching Appellant, the trooper observed

glassy and bloodshot eyes, as well as the odor of an alcoholic beverage,

which remained with Appellant even after exiting his vehicle. The record

further reveals that while Appellant admitted to the trooper that he had

consumed one glass of wine, Appellant testified at trial he had consumed

two glasses of wine. Based upon these circumstances the trooper asked

Appellant to submit to field sobriety testing, which he ultimately agreed to

do. According to the testimony of the trooper, Appellant exhibited six out of

six clues on the Horizontal Gaze Nystagmus (HGN) test, scored three of out

four clues for intoxication on the one leg stand test, and scored five out of

eight clues for intoxication on the walk and turn test. The trooper further

testified that based upon Appellant’s performance on the field sobriety tests,

his eyes and his odor, he arrested Appellant.
Washington App. No. 11CA3                                                     19


      {¶28} Despite Appellant’s arguments, we find that substantial

evidence supports his conviction. Specifically, such evidence revealed

Appellant's ability to act and react were altered from normal because he was

under the influence of alcohol, which he admitted to having consumed just

previous to driving. As such, we cannot conclude that the jury clearly lost

its way, thereby creating a manifest miscarriage of justice. Appellant's

appearance and odor, coupled with his admission of consuming alcohol, as

well as his poor performance on the field sobriety tests support his

conviction for driving under the influence. Consequently, we find that

Appellant's conviction is not against the manifest weight of the evidence.

      {¶29} For the foregoing reasons, we find substantial evidence upon

which the jury could have reasonably concluded that Appellant’s guilt had

been proven beyond a reasonable doubt. Furthermore, because Appellant’s

conviction is not against the manifest weight of the evidence, we find that

sufficient evidence also supports his conviction. See Leslie at ¶¶ 15, 23.

      {¶30} Accordingly, we overrule Appellant’s third and fourth

assignments of error.

                                              JUDGMENT AFFIRMED.
Washington App. No. 11CA3                                                     20


                            JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing
the Marietta Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Abele, P. J.: Concurs in Judgment only.

                            For the Court,

                            BY: _________________________
                                Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
