[Cite as State v. Croft, 2016-Ohio-449.]




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




STATE OF OHIO,
                                                           CASE NO. 2-15-11
       PLAINTIFF-APPELLEE,

       v.

CHRISTINA D. CROFT,                                        OPINION

       DEFENDANT-APPELLANT.



                    Appeal from Auglaize County Municipal Court
                           Trial Court No. 2014 TRC 6406

                                       Judgment Affirmed

                            Date of Decision: February 8, 2016



APPEARANCES:

        Craig A. Gottschalk for Appellant

        Nick Catania for Appellee
Case No. 2-15-11




WILLAMOWSKI, J.

       {¶1} Defendant-appellant, Christina Croft (“Croft”), brings this appeal from

the judgment of the Auglaize County Municipal Court, which found her guilty of

speeding and operating a vehicle under the influence (“OVI”). For the reasons

that follow, we affirm the trial court’s judgment.

                       Factual and Procedural Background

       {¶2} On August 8, 2014, Croft was pulled over for speeding by Trooper

Posada from the Ohio State Highway Patrol. Upon approaching the vehicle,

Trooper Posada noticed a moderate odor of an alcoholic beverage through a smell

of a freshly-lit cigarette. When asked for a proof of insurance, Croft handed

Trooper Posada a wrong document. Croft initially denied drinking any alcohol,

but later admitted to having consumed two beers earlier in the evening. Trooper

Posada administered several field sobriety tests. Based on her performance on the

tests, trooper Posada asked Croft to submit to a preliminary breath test. Croft

refused and she was subsequently arrested on a charge of OVI. Croft refused to

take any further tests that night in spite of being advised that refusal would result

in an automatic license suspension.

       {¶3} Croft was charged with speeding, a violation of R.C. 4511.21(D)(1),

and with OVI, a violation of R.C. 4511.19(A)(1)(a). (R. at 1.) She entered a plea

of not guilty and filed a motion to suppress certain evidence and statements she


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had made to the police upon her arrest, including the results of the field sobriety

tests. (R. at 23, 28.) She argued that the arresting officer lacked probable cause to

arrest. (Id.) The trial court assigned the motion for a hearing on December 16,

2014. (R. at 26, 35.) On the day scheduled for the hearing, Croft withdrew the

motion and the case proceeded to a trial to the court. (R. at 41, 43, 50.) The trial

court found her guilty of both offenses and the instant appeal followed. Croft

raises one assignment of error as quoted below.

                               Assignment of Error

       THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
       DUE PROCESS AS GUARANTEED BY THE FOURTEENTH
       AMENDMENT TO THE UNITED STATES CONSTITUTION
       AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION
       BY ENTERING VERDICTS OF GUILTY, AS THE JURY
       VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE. THE TRIAL COURT VIOLATED APPELLANT’S
       RIGHT TO DUE PROCESS AS GUARANTEED BY THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS
       THE JURY VERDICT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AND BECAUSE THE EVIDENCE
       SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF
       LAW TO PROVE THE CONVICTION OF APPELLANT
       BEYOND A REASONABLE DOUBT.

       {¶4} Although the assignment of error confusingly repeats the same

allegation twice and mistakenly indicates that the finding of guilt was made by the

jury, rather than a judge, the statement of the issues clarifies what the actual

contentions on appeal are. In particular, Croft alleges that her conviction was not



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supported by sufficient evidence and that it was against the manifest weight of the

evidence. (App’t Br. at 4.) We address the two contentions as follows.

                               Standards of Review

       {¶5} When reviewing a criminal case for the sufficiency of the evidence,

“our inquiry focuses primarily upon the adequacy of the evidence; that is, whether

the evidence submitted at trial, if believed, could reasonably support a finding of

guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08,

2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the

prosecution” and will affirm the conviction if “any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118.

Importantly, this test raises a question of law and does not allow us to weigh the

evidence. Willcox at ¶ 10.

       {¶6} The question of manifest weight of the evidence concerns an “effect in

inducing belief.” Thompkins at 387. Therefore, it is not subject to a mathematical

analysis.   Id.   When reviewing a conviction challenged as being against the

manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and

may disagree with the jury’s resolution of the conflicting testimony. Id., quoting

Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the

appellate court must give due deference to the findings of the trier of fact, because

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       [t]he fact-finder occupies a superior position in determining
       credibility. The fact-finder can hear and see as well as observe the
       body language, evaluate voice inflections, observe hand gestures,
       perceive the interplay between the witness and the examiner, and
       watch the witness’s reaction to exhibits and the like. Determining
       credibility from a sterile transcript is a Herculean endeavor. A
       reviewing court must, therefore, accord due deference to the
       credibility determinations made by the fact-finder.

(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-

274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456

(8th Dist.1998). Therefore, an argument that a conviction is against the manifest

weight of the evidence will only succeed if the appellate court finds that “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.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983).

                                      Analysis

       {¶7} No particular challenges to the sufficiency or the weight of the

evidence are made in the brief on appeal. Indeed, Croft states that she was

“admittedly speeding,” thus contradicting any allegation that the conviction for

speeding was against the sufficiency or the manifest weight of the evidence.

(App’t Br. at 10.) At no point does Croft indicate that any of the elements of the

OVI were not supported by the evidence or that there were any conflicts in




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evidence. Therefore, there are no specific contentions as to the sufficiency or the

manifest weight of the evidence. See App.R. 16(A)(7).

       {¶8} Instead, the brief appears to contest the probable cause to arrest and

the methods of conducting field sobriety tests, challenges that are properly raised

in a motion to suppress. See State v. French, 72 Ohio St.3d 446, 449, 1995-Ohio-

32, 650 N.E.2d 887 (1995); City of Defiance v. Kretz, 60 Ohio St.3d 1, 4-5, 573

N.E.2d 32 (1991). But as we stated above, Croft withdrew her motion to suppress

and did not object to the admissibility of the evidence on other grounds during her

bench trial. Therefore, no challenges to the admissibility of the evidence are

properly on appeal. See State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489

(1996) (“A court of appeals cannot consider the issue for the first time without the

trial court having had an opportunity to address the issue.”); see also French at

451 (holding that “challenges to the state’s compliance with statutory and ODH

regulations * * * must be made in a pretrial motion to suppress, or such challenges

are considered waived”), citing Kretz at 5.

       {¶9} Our review of the record does not disclose any issues that would

require reversal on the basis of sufficiency of the evidence. In order to support a

conviction, the State had to prove (1) that Croft operated her vehicle within the

state of Ohio and (2) that she was under the influence of alcohol, a drug of abuse,

or a combination of them.      See R.C. 4511.19(A)(1)(a).      The State provided

evidence indicating that Croft was driving within the State of Ohio at the time she

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was pulled over by Trooper Posada. The State further proved that Trooper Posada

detected a moderate odor of an alcoholic beverage coming from Croft’s vehicle

and that Croft first denied having any alcohol, but later admitted to having had two

beers earlier that evening. She had some trouble providing her proof of insurance

and exhibited a stronger odor of an alcoholic beverage upon exiting the car. The

State further provided evidence of field sobriety tests, which showed that Croft

had difficulty with both the walk-and-turn test and the one-leg-stand test. In fact,

the testimony and video showed that she was unable to perform the walk and turn

test in spite of several attempts. Finally, Croft’s refusal to take a breath test could

be used by the fact finder to infer that she feared the results of the test. See

Maumee v. Anistik, 69 Ohio St.3d 339, 342-343, 1994-Ohio-157, 632 N.E.2d 497

(1994); State v. Gray, 85 Ohio App.3d 165, 171, 619 N.E.2d 460 (3d Dist.1993).

This evidence, viewed in the light most favorable to the prosecution, sufficiently

supported each essential element of the crime.

       {¶10} We note that Croft did not present any evidence that would conflict

with the elements of the offense as proffered by the State.            Her testimony

consisted of providing explanations for her poor performance on the field sobriety

tests and for refusing to take the breath test. To the extent that Croft challenges

the weight of the evidence by suggesting that the trial court should have

discounted Trooper Posada’s testimony, find it completely unreliable, and find her

not guilty, we disagree. Although there was some dispute over whether Croft

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raised her hands during the one-leg-stand test or did poorly on the alphabet test,

other evidence of impairment was so significant that we cannot hold that the trial

court clearly lost its way in finding Croft guilty of operating a vehicle while under

the influence of alcohol. See Thompkins, 78 Ohio St.3d. at 387, 678 N.E.2d 541.

         {¶11} Based on the foregoing discussion we overrule the assignment of

error.

                                    Conclusion

         {¶12} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Auglaize County Municipal Court, Ohio is therefore

affirmed.

                                                                Judgment Affirmed

ROGERS and PRESTON, J.J, concur.

/hls




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