[Cite as W. Carrollton v. Wax, 2013-Ohio-188.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

CITY OF WEST CARROLLTON                          :
                                                 :    Appellate Case No. 25319
        Plaintiff-Appellee                       :
                                                 :    Trial Court Case No. 12-TRC-311
v.                                               :
                                                 :
ROGER D. WAX, JR.                                :    (Criminal Appeal from
                                                 :    (Miamisburg Municipal Court)
        Defendant-Appellant                      :
                                                 :

                                             ...........

                                             OPINION

                            Rendered on the 25th day of January, 2013.

                                             ...........

LORI KIRKWOOD, Atty. Reg. #0053384, 7501 Paragon Road, Lower Level, Dayton, Ohio
45459
      Attorney for Plaintiff-Appellee

JACK HARRISON, Atty. Reg. #0061993, Post Office Box 292767, Dayton, Ohio 45429
     Attorney for Defendant-Appellant

                                            .............

FAIN, P.J.

        {¶ 1}    Defendant-appellant Roger D. Wax appeals from his conviction and sentence
                                                                                             2


for: Operating a Motor Vehicle While Under the Influence of Alcohol, as a second offense

within six years, in violation of R.C. 4511.19(A)(1)(a); Operating a Motor Vehicle While

Under the Influence of Alcohol Within 20 Years of an OVI Conviction and Refusing to

Submit to a Chemical Test, in violation of R.C. 4511.19(A)(2)(b); Driving Under a

Suspension, in violation of R.C. 4510.11(A); Driving with an Expired Registration, in

violation of R.C. 4503.11(A); Speeding, in violation of R.C. 4511.21(D); and Driving without

Using a Seatbelt, in violation of R.C. 4513.263(B)(1). He contends that his convictions are

against the manifest weight of the evidence.    We disagree.

       {¶ 2}    The only charge on which the evidence was conflicting was that of OVI. The

testimony of the two police officers who testified for the State was consistent, and not

unworthy of belief. The trial court, as the finder of fact, was not unreasonable in choosing to

credit their testimony. Accordingly, the judgment of the trial court is Affirmed.



           I. Wax Is Stopped for Speeding, Subjected to Field Sobriety Tests,

         and Arrested for Operating a Motor Vehicle While Under the Influence

       {¶ 3}    In its written decision finding Wax guilty as charged, the trial court made the

following findings of fact:

               The witnesses’ testimony on most of the facts in this case was in agreement.

       The Defendant was operating a motor vehicle.            There is no dispute that the

       Defendant’s Ohio operator’s license was under an OVI administrative license

       suspension at the time of the alleged offense. There is no dispute that the Defendant

       was pulling a trailer that did not have a valid license plate sticker. Additionally, there
                                                                                             3


was no dispute that the Defendant did refuse to provide a breath sample after being

placed under arrest for OVI. There additionally appeared to be a general agreement

among the witnesses that the Defendant was operating his motor vehicle above the

posted speed limit of 45 mph, and was not wearing his seatbelt.

         The [principal] dispute among the witnesses was whether the Defendant’s

ability to operate a motor vehicle was appreciably impaired by alcohol, and whether

that impairment was reflected by the Defendant’s performance on the field sobriety

tests.

         ***

         Officer [Moureen] Flaute testified that she administered the field sobriety tests

(HGN, walk and turn, and one leg stand) to Mr. Wax, pursuant to the required

standards, which was not disputed by the Defendant, and that it was her opinion after

assessing the Defendant’s performance on said tests, that the Defendant was

appreciably impaired by alcohol. Officer Flaute testified that during the walk and turn

test, the Defendant took eight (8) steps, then turned and took ten (10) steps back,

although he had been instructed to take nine (9) each way. The officer also testified

that when he made the turn, the Defendant got his legs tangled up and had to stop to

“untangle” himself before continuing.        Officer Flaute further testified that other

actions and behaviors of the Defendant also indicated his impairment, including what

she referred to as “mush mouth,” and “thick tongued” speech.

         Further, [t]he Defendant’s statement that he had not consumed any alcohol, yet

refused to submit to a breath test (which would have proven his sobriety if his
                                                                                                  4


       allegations are true) is extremely damaging.       Also, the underlying fact that the

       Defendant was operating a motor vehicle while under an OVI suspension at 2:30 a.m.,

       shows that he was willing to flaunt the law.

               A problem with the City of West Carrollton’s case, is Officer Flaute’s broken

       cruiser video recording system. The Officer testified that the video recording system

       in her cruiser had been broken for a few months prior to the arrest of Mr. Wax. The

       Defendant’s performance on the field sobriety tests would have been incontrovertible

       had the officer’s cruiser camera been properly functioning, and the Court would not

       have had to rely solely on the witnesses’ testimony as to Mr. Wax’s performance. The

       purpose of a cruiser camera is to preserve and protect evidence and avoid this he

       said/she said situation.   It enables an independent trier of fact to determine the

       defendant’s sobriety based on the video recording, without having to rely upon the

       opinion of the witnesses and the veracity of their testimony.

               After having thoroughly and carefully considered all of the evidence, including

       the testimony of the witnesses, their respective demeanor and credibility, and the

       arguments presented by counsel, the Court finds that the State has proven each and

       every element of all of the offenses charged, beyond a reasonable doubt.

       {¶ 4}    The State presented two witnesses: West Carrollton police officers Moureen

Flaute and Dan Wessling. Flaute’s testimony is summarized above. Flaute stopped Wax for

speeding (62 mph in a 45 mph zone, according to her radar), administered the field sobriety

tests, elicited Wax’s refusal to submit to a chemical test, and arrested Wax. Flaute testified

that on the one-leg-stand test, Wax only lifted his foot one inch off the ground instead of six
                                                                                             5


inches as he was instructed to do, did not point his toes forward, and raised his arms “as

balance.”

       {¶ 5}   Wessling arrived on the scene before Wax got out of his vehicle, and observed

the events that followed. He corroborated Flaute’s testimony.

       {¶ 6}   Wax presented three witnesses: his thirteen-year-old son, Roger D. Wax, III,

his long-time friend Pamela Burkhardt, and himself. Burkhardt and “little Rog,” as the son

was referred to by Burkhardt, were in another car that Burkhardt was driving. Burkhardt

pulled in behind Flaute after Flaute stopped Wax.         According to Burkhardt and Wax,

Wessling had parked alongside Flaute, behind Wax.

       {¶ 7}   Burkhardt and “little Rog” testified that they could see the field sobriety tests,

and that Wax performed the heel-to-toe and one-leg-stand “perfectly fine.” Wax also testified

that he performed the tests satisfactorily.   Wax denied that he had been drinking.          He

testified that he had left home at 5:30 in the morning to work on an awning at a private home

in Cleveland. He could not remember the owner’s name. He had returned from Cleveland

between 11:30 and midnight, and joined Burkhardt and “little Rog” at Burkhardt’s mother’s

house. The three then went to a Taco Bell restaurant, and had left the Taco Bell

when the stop occurred.

       {¶ 8}   Wax explained his refusal to submit to a chemical test:

               Because they already, they were, I didn’t trust them, they were already saying

       that I was drunk and I wasn’t. So, I mean, I felt that they were, I didn’t trust them,

       they had already arrested me, so, why would I do that.

       {¶ 9}   Wax acknowledged that he was under a suspension for OVI when he was
                                                                                             6


stopped.

        {¶ 10} In rebuttal, Flaute testified that the views of Burkhardt and “Little Rog” of the

field sobriety tests were obstructed by the police vehicles. She also testified that Burkhardt

told her that Wax had been drinking earlier, and asked her to allow Burkhardt to drive Wax

home.

        {¶ 11} Burkhardt, in surrebuttal, denied having made the statement about Wax

having been drinking earlier. She also drew the relative positions of the vehicles, including

the police cruisers, and the site of the field sobriety testing. This drawing was admitted as the

trial’s sole exhibit. It shows that Burkhardt and “Little Rog” were in a position to have

observed the field sobriety testing. Of course, the trial court was not required to credit

Burkhardt’s testimony that it accurately reflects the scene.



        II. Wax’s Conviction Is Not Against the Manifest Weight of the Evidence

        {¶ 12} Wax has not indicated, in his notice of appeal, what he is appealing from.

We will therefore assume that he is appealing from the judgment entry of conviction and

sentence, in its entirety. From his brief, though, it is clear that he is only questioning his

convictions for OVI.

        {¶ 13} Wax has also not set forth an assignment of error, as required by App.R.

16(A)(3). The argument set forth in Wax’s brief, in its entirety, is as follows:

               Very simplistically, Appellant strongly feels that the trier of fact could not

        possibly have found Defendant guilty beyond reasonable doubt.
       [Cite as W. Carrollton v. Wax, 2013-Ohio-188.]
                The evidence, no erratic driving, was direct from the two (2) officers and three

       (3) defense witnesses. The video, had it been working[,] would have resolved the

       issue.

                The case, following the admission of direct testimony, was one of equipoise.

       That is, the case was stalemated; in such a situation, defense wins, beyond a reasonable

       doubt. [Emphasis sic.]

                Appellant feels a reading of the transcript, which is blissfully short, leaves the

       Court with a paramount reasonable doubt, at least.

                The Court, page 2 of Decision, paragraph 1, seemed to be unduly persuade

       [sic]. Counsel for Appellant was likewise present, and was remarkably unpersuaded,

       for example Ms. Flaute defined speeding as erratic driving Tr. Pg. 17, L 10-11; what

       on earth is she describing?

                Two factors influence this case: 1. The bias given the trier of fact, he’s

       judging the credibility of the witnesses. 2. The fact that police officers have no more

       granted credibility than civilians.

                Consequently, as there was no erratic driving observed, the Court was

       confronted with equally offsetting evidence by 3 to 2, which left the trier of fact in

       equipoise.

                Beyond a reasonable doubt is the hallmark of any criminal (traffic case);

       reasonable doubt is glistening throughout the transcript.

       {¶ 14} From his argument, we infer Wax’s assignment of error to be that his

conviction for OVI is against the manifest weight of the evidence.
[Cite as W. Carrollton v. Wax, 2013-Ohio-188.]
        {¶ 15} In determining whether a conviction is against the manifest weight of the

evidence:

                The 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. State v.

        Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720 - 721 (1st Dist.1983); quoted

        approvingly in State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

        {¶ 16} Determinations of witness credibility, conflicting testimony, and evidence

weight are primarily for the trier of fact.       State v. Funkhouser, 7th Dist. Belmont No.

02-BA-4, 2003-Ohio-697, ¶ 8.

                Because the factfinder, be it the jury or, as in this case, the trial judge, has the

        opportunity to see and hear the witnesses, the cautious exercise of the discretionary

        power of a court of appeals to find that a judgment is against the manifest weight of

        the evidence requires that substantial deference be extended to the factfinder's

        determinations of credibility. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

        WL 476684, *4.

        {¶ 17} Wax is correct that the testimony of his witnesses and the State’s were in

direct conflict on the issue of his performance on the walk-and-turn and one-leg-stand field

sobriety tests. His witnesses were not able to observe his performance on the horizontal gaze

nystagmus test. As the trial court noted in its decision, Officer Flaute was trained in the
                                                                                           9


administration of field sobriety tests. The trial court found her testimony to be “extremely

persuasive.” It is within the prerogative of the finder of fact to find the testimony of one

witness to be more persuasive than that of another.          Once upon a time, Anglo-Saxon

jurisprudence involved the mere counting up of sworn statements on the two sides of a factual

controversy, with the decision going to the side with the greater number, but that is ancient

history.

       {¶ 18} The trial court was also persuaded by Wax’s refusal to submit to chemical

testing, apparently discrediting Wax’s explanation that he distrusted the test and the persons

administering it. We cannot fault the trial court for attaching significance to Wax’s refusal,

inferring from it that Wax knew a chemical test would reveal a prohibited concentration of

alcohol.

           {¶ 19} We conclude that this is not “the exceptional case in which the evidence

weighs heavily against the conviction.” Wax’s inferred assignment of error is overruled.



                                        III. Conclusion

           {¶ 20} Wax’s inferred assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                         .............

DONOVAN and HALL, JJ., concur.


Copies mailed to:

Lori Kirkwood
Jack Harrison
Hon. Robert W. Rettich, III
[Cite as W. Carrollton v. Wax, 2013-Ohio-188.]
