[Cite as State v. McQuistan, 2018-Ohio-539.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                          C.A. No.     17CA0007-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
KEIR MCQUISTAN                                         COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   16CR0075

                                 DECISION AND JOURNAL ENTRY

Dated: February 12, 2018



        CARR, Judge.

        {¶1}    Defendant-Appellant, Keir McQuistan, appeals from his convictions in the

Medina County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}    On the evening of February 13, 2016, McQuistan struck a family’s car from

behind while traveling east on Greenwich Road.           The family’s five-year-old son suffered

multiple skull fractures as a result of the accident and had to undergo emergency surgery. When

police officers spoke with McQuistan at the scene, they found that his eyes were red and glassy,

he smelled strongly of alcohol, and he had slurred speech. They also found that he was unsteady

on his feet and largely unresponsive to their questioning. After McQuistan refused to engage in

any field sobriety testing, the police arrested him.

        {¶3}    A grand jury indicted McQuistan on one count of aggravated vehicular assault

and one count of vehicular assault. McQuistan filed a motion to suppress, alleging that he was
                                                  2


arrested without probable cause. Following a suppression hearing, the trial court denied his

motion, and the matter proceeded to a bench trial. The court found McQuistan guilty on both

counts and scheduled the matter for sentencing.

       {¶4}       The morning of his scheduled sentencing hearing, McQuistan filed a motion for

new trial. The court postponed the sentencing hearing to consider the motion and the State’s

response thereto, but ultimately denied the motion. The court found McQuistan’s offenses to be

allied offenses of similar import, and the State elected to have him sentenced on the aggravated

vehicular assault count. The court sentenced McQuistan to three years in prison.

       {¶5}       McQuistan now appeals from his convictions and raises four assignments of error

for our review.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN OVERRULING KEIR MCQUISTAN’S
       MOTION TO SUPPRESS. SERGEANT DUNBAR LACKED PROBABLE
       CAUSE TO ARREST THE DRIVER FOR OPERATING A VEHICLE WHILE
       UNDER THE INFLUENCE OF ALCOHOL.

       {¶6}       In his first assignment of error, McQuistan argues that the trial court erred by

denying his motion to suppress. Specifically, he maintains that he was arrested in the absence of

probable cause. We disagree.

       {¶7}       A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When 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 the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as
                                                 3


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., citing State v.

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).

       {¶8}    An officer has probable cause to arrest an individual for impaired driving if, “at

the time of arrest, the officer had sufficient facts derived from a reasonably trustworthy source to

cause a prudent person to believe the suspect was driving under the influence.” State v. Hopp,

9th Dist. Summit No. 28095, 2016-Ohio-8027, ¶ 8. “This inquiry requires consideration of the

totality of the circumstances known to the officer at the time of arrest.” State v. Rogers, 9th Dist.

Wayne No. 16AP0014, 2017-Ohio-357, ¶ 9. The fact that a driver caused an accident or

exhibited an abnormal reaction response may provide evidence of impairment. See State v.

Peters, 9th Dist. Wayne No. 08CA0009, 2008-Ohio-6940, ¶ 6, quoting State v. Stephenson, 4th

Dist. Lawrence No. 05CA30, 2006-Ohio-2563, ¶ 21 (“‘A driver * * * is considered ‘under the

influence’ of alcohol when his ‘physical and mental ability to act and react are altered from the

normal because of the consumption of alcohol.’”). The State also may rely “‘on physiological

factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to

demonstrate that a person’s physical and mental ability to drive was impaired.’” State v. Slone,

9th Dist. Medina No. 04CA0103-M, 2005-Ohio-3325, ¶ 9, quoting State v. Holland, 11th Dist.

Portage No. 98-P-0066, 1999 Ohio App. LEXIS 6143, *14 (Dec. 17, 1999). “‘Virtually any lay

witness, without special qualifications, may testify as to whether or not an individual is

intoxicated.’” State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19, quoting

State v. Delong, 5th Dist. Fairfield No. 02CA35, 2002-Ohio-5289, ¶ 60.

       {¶9}    The trial court found that Ohio State Highway Patrol Sergeant Alan Dunbar spoke

with McQuistan after he struck a car from behind while its driver waited to turn left. The court
                                                4


found that the trooper detected a strong odor of alcohol coming from McQuistan’s person and

observed that he had red, glassy eyes and garbled, slurred speech. The court also found that

McQuistan was unsteady on his feet and refused to submit to field sobriety testing. Based on the

totality of the circumstances, the court determined that Sergeant Dunbar had probable cause to

arrest McQuistan for impaired driving. Consequently, it denied McQuistan’s motion to suppress.

       {¶10} McQuistan argues that the court erred by denying his motion to suppress because

Sergeant Dunbar’s testimony did not support a finding of probable cause. He notes that the

sergeant never activated his recording equipment to capture any of the observations he allegedly

made. Further, he notes that the sergeant failed to document in his report having heard any

garbled or slurred speech. According to McQuistan, the sergeant only came to the conclusion

that he (McQuistan) had consumed alcohol, not that he was under the influence. He argues that,

as a result of the crash, he displayed signs of a concussion, not impairment. He also argues that

there was evidence the roads were icy at the time of the accident such that there was a reasonable

explanation for his failure to stop.

       {¶11} Sergeant Dunbar was the only witness to testify at the suppression hearing. He

testified that, during the early evening hours of February 13, 2016, he responded to a two-vehicle

accident at the intersection of Greenwich Road and Hubbard Valley Road. He testified that the

accident occurred because McQuistan struck a car from behind while its driver was waiting to

turn left. Another officer was already on scene when the sergeant arrived and was speaking with

McQuistan. The sergeant testified that, when he spoke with McQuistan and asked if he was

alright, McQuistan gave “a garbled answer.” He noted that McQuistan was emitting a “very

strong odor of * * * alcoholic beverage,” had red, glassy eyes and slurred speech, and was “a
                                                   5


little uneasy on his feet” as if he had trouble holding still. He also testified that McQuistan

refused to submit to any field sobriety testing.

       {¶12} Sergeant Dunbar admitted that, when completing an Impaired Driver’s Report for

the Department of Public Safety, he described McQuistan’s speech as “[s]lowed and muffled at

times” rather than garbled or slurred. He clarified, however, that he considered muffled speech

to be synonymous with slurred speech. He also confirmed that McQuistan’s speech was, in fact,

slurred and garbled.    He testified that he arrested McQuistan based on the totality of the

circumstances he observed because, given his experience, he knew “what an impaired person

smells like, looks like.” He stated that both he and another trooper on scene believed that

McQuistan was under the influence. He also later stated: “My training and experience indicated

to me that [McQuistan] had consumed alcohol. The question was how much which is why we

take him back to the post and we test him.”

       {¶13} Having reviewed the record, we must conclude that the trial court’s factual

findings are supported by competent, credible evidence. See Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, at ¶ 8. Sergeant Dunbar specifically testified to having observed each one of

the factors that the court cited in support of its probable cause determination. Those factors

included that McQuistan smelled strongly of alcohol, had red, glassy eyes and slurred speech,

was unsteady on his feet, and refused all sobriety testing. The sergeant testified that he arrested

McQuistan because his appearance and behavior were consistent with that of an intoxicated

person. To the extent that the sergeant did not record his interaction with McQuistan and used

different descriptors in his report, the court was in the best position to assess his credibility. See

id. Accord State v. Napier, 9th Dist. Wayne No. 11CA0006, 2012-Ohio-394, ¶ 22. Because the
                                                 6


court’s factual findings are based on competent, credible evidence, this Court accepts them as

true and applies the law to those findings. Burnside at ¶ 8.

       {¶14} The record supports the conclusion that Sergeant Dunbar had probable cause to

arrest McQuistan for impaired driving. First, there was evidence that McQuistan had caused an

accident by colliding with another car when its driver was stopped and waiting to turn left. See

Peters, 2008-Ohio-6940, at ¶ 6, quoting Stephenson, 2006-Ohio-2563, at ¶ 21. Compare Hopp,

2016-Ohio-8027, at ¶ 11 (probable cause absent where “there was no indication of erratic driving

or behavior”). Second, there was evidence that he exhibited a number of physiological factors

associated with impairment, including that he smelled strongly of alcohol, had red, glassy eyes

and slurred speech, and was unsteady on his feet. See Slone, 2005-Ohio-3325, at ¶ 9, quoting

Holland, 1999 Ohio App. LEXIS 6143, at *14. Third, Sergeant Dunbar testified that both he and

another trooper believed, based on the observations they made, that McQuistan was under the

influence. See Zentner, 2003-Ohio-2352, at ¶ 19, quoting Delong, 2002-Ohio-5289, at ¶ 60.

       {¶15} Even if one or more of the foregoing factors, standing alone, would have been

insufficient to establish probable cause, a probable cause analysis requires a court to consider the

totality of the circumstances. Rogers, 2017-Ohio-357, at ¶ 9. The record here supports the

conclusion that, at the time of McQuistan’s arrest, Sergeant Dunbar had observed facts sufficient

“to cause a prudent person to believe [McQuistan] was driving under the influence.” Hopp at ¶

8. Consequently, the trial court did not err by denying the motion to suppress. McQuistan’s first

assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S JUDGMENT OF GUILTY IS NOT SUPPORTED BY
       SUFFICIENT EVIDENCE.
                                                7


       {¶16} In his second assignment of error, McQuistan argues that his convictions are

based on insufficient evidence. Specifically, he argues that the State failed to prove he drove his

vehicle while under the influence of alcohol or in a reckless manner. We disagree.

       {¶17} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600, 2000 Ohio App. LEXIS 969, *3 (Mar. 15, 2000). When reviewing the

sufficiency of the evidence, this Court must review the evidence in a light most favorable to the

prosecution to determine whether the evidence before the trial court was sufficient to sustain a

conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

       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. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶18} A vehicular assault occurs if an individual recklessly causes serious physical harm

to another while driving a motor vehicle. R.C. 2903.08(A)(2)(b). Meanwhile, an aggravated

vehicular assault occurs if an individual causes serious physical harm to another (1) while

driving a motor vehicle, and (2) “[a]s the proximate result of committing a violation of [R.C.

4511.19(A)] * * *.” R.C. 2903.08(A)(1)(a). “R.C. 4511.19 prohibits operating a motor vehicle

while under the influence of alcohol or drugs.” State v. Plemons, 9th Dist. Summit No. 26230,

2012-Ohio-5051, ¶ 8. “‘A driver * * * is considered ‘under the influence’ of alcohol when his

‘physical and mental ability to act and react are altered from the normal because of the

consumption of alcohol.’” Peters, 2008-Ohio-6940, at ¶ 6, quoting Stephenson, 2006-Ohio-
                                                8


2563, at ¶ 21. “[T]he [S]tate does not have to prove actual impaired driving; rather, it need only

show an impaired driving ability.” Zentner, 2003-Ohio-2352, at ¶ 19. As noted, to sustain a

conviction, the State may rely on a number of “‘physiological factors,’” Slone, 2005-Ohio-3325,

at ¶ 9, quoting Holland, 1999 Ohio App. LEXIS 6143, at *14, as well as lay opinion testimony

that an individual was intoxicated. Zentner at ¶ 19.

       {¶19} McQuistan does not dispute that the accident he caused resulted in serious

physical harm to one of the occupants of the car he struck. Specifically, the rear seat passenger,

who was five years old at the time, suffered a skull fracture and had to undergo emergency

surgery. McQuistan’s argument is strictly that the State failed to prove he was under the

influence of alcohol when he caused the accident. As such, we limit our review to that issue.

See, e.g., State v. Filip, 9th Dist. Medina No. 16CA0049-M, 2017-Ohio-5622, ¶ 23.

       {¶20} The driver of the car that McQuistan struck testified that, on the evening of the

accident, he was stopped on Greenwich Road, waiting to make a left-hand turn onto Hubbard

Valley Road. His fiancée was seated next to him and his five-year-old son was seated directly

behind him. He testified that it was cold that day, but the roads were clear, having been plowed

and salted. He estimated that his car remained stationary for between thirty seconds and one

minute as he waited for an opportunity to turn. He then briefly noticed headlights in his rearview

mirror before a vehicle struck his car from behind and pushed it through the intersection and into

a ditch on the other side of Hubbard Valley Road. Both the driver and his fiancée denied hearing

any noise resembling tires squealing on the pavement or braking directly before the crash

occurred.

       {¶21} The driver identified McQuistan as the driver of the vehicle that struck his car.

He stated that, while he tended to his family, McQuistan remained in his vehicle. He then saw
                                                9


McQuistan step out of his vehicle and begin walking towards him. Because McQuistan’s vehicle

was located several hundred feet away, the driver also began walking so as to meet McQuistan

halfway. The driver testified that McQuistan had his cell phone out while walking and was

looking at it rather than making eye contact. As the two converged, McQuistan immediately

demanded to know why the driver had been stopped in the middle of the road. The driver

testified that it was difficult to understand McQuistan because his speech was slurred. He also

testified that McQuistan’s lack of concern angered him, so he responded in disbelief and may

have used an expletive. According to the driver, McQuistan then mumbled something, turned

away, walked back to the rear passenger bumper of his vehicle, and urinated on the side of the

road. The driver testified that McQuistan’s actions, in conjunction with his slurred speech,

caused him to believe that McQuistan was impaired.

       {¶22} Ohio State Highway Patrol Trooper Aleksander Tot responded to the scene of the

accident. He testified that McQuistan was seated in his vehicle when he arrived, having already

given his driver’s license information to a local officer. Trooper Tot testified that he approached

McQuistan’s vehicle and asked him what happened. According to the trooper, McQuistan

refused to respond or answer any of his questions. He testified that McQuistan had bloodshot

and glassy eyes and the odor of an alcoholic beverage was coming from his person. He further

testified that McQuistan was unsteady on his feet, as evidenced by the fact that he bumped into

Trooper Tot as the two walked to his cruiser. Though Trooper Tot asked McQuistan to perform

field sobriety testing, McQuistan refused to look at the stimulus for the horizontal gaze

nystagmus test or participate in any of the other tests. Trooper Tot testified that, instead,

McQuistan looked directly at him and “stare[d] like he was going to fight.”
                                               10


       {¶23} With regard to the accident itself, Trooper Tot testified that he documented the

scene and inspected the damage to both vehicles. He stated that both vehicles were damaged at

their center points, meaning that McQuistan had struck the driver’s car straight on without

attempting to swerve or take “any evasive actions to avoid the crash.” Likewise, he stated that

there was no evidence of any tire marks on the road that might have shown an attempt at

stopping.

       {¶24} Sergeant Dunbar testified that he arrived at the scene of the accident after Trooper

Tot and conferred with him on arrival. He then attempted to speak with McQuistan, but only

received a “slurred garbled” response. Sergeant Dunbar testified that McQuistan had red, glassy

eyes and that there was a strong odor of alcohol coming from his person. He stated that

McQuistan refused to engage in field sobriety testing or answer when asked if he had consumed

any alcohol. After McQuistan was arrested and transported back to the station, he also refused to

take a breath test, stating that he “did not trust the machine.” Sergeant Dunbar testified that

McQuistan’s speech was still slurred at that time. Though he refused to take the breath test,

McQuistan ultimately admitted to having consumed one beer earlier that day. Sergeant Dunbar

testified that McQuistan’s speech, appearance, and behavior were all consistent with impairment.

       {¶25} As to the road conditions that day, Sergeant Dunbar testified that he had no

difficulty controlling his cruiser when traveling on Greenwich Road. He testified that there was

snow on the sides of the road, but the road itself was clear. Moreover, photographs that the State

produced at trial showed the road was clear of snow. There was testimony that Greenwich Road

runs straight for a considerable distance and has a slight downhill grade as it intersects with

Hubbard Valley Road. Accordingly, there was evidence that there were no curves in the road or

hills that would have obstructed McQuistan’s line of sight.
                                               11


       {¶26} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have concluded that the State proved McQuistan was impaired at the time of the

accident. See Jenks, 61 Ohio St.3d at 279. More than one witness testified that he appeared to

be impaired. See Zentner, 2003-Ohio-2352, at ¶ 19. There was evidence that his eyes were red

and glassy, he was unsteady on his feet, he had slurred speech, he smelled strongly of alcohol,

and he admitted consuming at least one alcoholic beverage. See State v. Hess, 9th Dist. Wayne

No. 12CA0064, 2013-Ohio-4268, ¶ 15. There was evidence that he refused to submit to a breath

test. Filip, 2017-Ohio-5622, at ¶ 39 (refusal to submit to sobriety testing “could also be viewed

as probative of [] impairment”); State v. Collins, 9th Dist. Summit No. 23662, 2007-Ohio-5674,

¶ 15. Additionally, there was evidence that he failed to react before striking the other driver’s

car, despite having a clear line of sight. See State v. Thomas, 9th Dist. Summit No. 18881, 1999

Ohio App. LEXIS 489, *12 (Feb. 17, 1999). Based on all of the foregoing evidence, a rational

trier of fact could have concluded that McQuistan caused an accident as a proximate result of

operating his vehicle while under the influence of alcohol. As such, we must conclude that his

conviction for aggravated vehicular assault is based on sufficient evidence. See R.C.

2903.08(A)(1)(a) and 4511.19(A). Likewise, we must conclude that his conviction for vehicular

assault is based on sufficient evidence, as driving while impaired also constitutes reckless

behavior. See State v. Wamsley, 9th Dist. Summit No. 19484, 2000 Ohio App. LEXIS 272, *12-

13 (Feb. 2, 2000). McQuistan’s second assignment of error is overruled.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT’S JUDGMENT OF GUILTY IS AGAINST THE
       MANIFEST WEIGHT OF EVIDENCE.

       {¶27} In his third assignment of error, McQuistan argues that his convictions are against

the manifest weight of the evidence. Specifically, he argues that the trier of fact lost its way
                                                 12


when it concluded that he was impaired rather than concussed as a result of the accident that

occurred. We disagree.

       {¶28} When considering whether a conviction is against the manifest weight of the

evidence, this Court

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of 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
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a

judgment as against the manifest weight of the evidence only in exceptional cases in which the

evidence weighs heavily against the conviction. Otten at 340.

       {¶29} McQuistan argues that his convictions are against the weight of the evidence

because he did not drive while impaired. According to McQuistan, he sustained a serious

concussion when his airbag deployed and, as a result, exhibited symptoms consistent with that

condition. He notes that the other driver was biased against him and lacked credibility, as he had

filed a civil suit, had prior convictions, and, when pressed, changed his testimony about seeing

McQuistan urinating on his truck. He also notes that the paramedic who examined him directly

after the accident did not detect any odor of alcohol on his person.

       {¶30} Scott Vallant, a paramedic for Wadsworth, testified that he spoke with McQuistan

for a few minutes while responding to the scene of the accident. Vallant stated that he did not
                                               13


notice any odor of alcohol when talking with McQuistan. He clarified, however, that he had his

face in the wind during their entire exchange. He testified that he never brought McQuistan into

his rig or examined him because McQuistan resisted and was “pretty emphatic [] that he didn’t

want treatment.”

       {¶31} The driver that McQuistan struck readily admitted that he had several prior felony

convictions and that his family had filed a civil suit against McQuistan in connection with the

accident. Yet, he explained that his son had been seriously injured as a result of the accident,

underwent emergency surgery, was hospitalized for several days, and was still suffering from

lasting complications.     As to his testimony about McQuistan urinating, the driver initially

testified that McQuistan “stepped towards the passenger rear bumper of his truck and start[ed]

urinating right on the side of his truck.” On cross-examination, he then explained that he meant

McQuistan urinated on the ground by the side of his truck, not directly onto the truck itself. He

admitted that he could not actually see McQuistan urinating from his point of view, but testified

that McQuistan’s stance was consistent with him urinating.        He testified that he watched

McQuistan the entire time and there was no doubt in his mind that he was urinating.

Accordingly, the record does not support McQuistan’s claim that the driver changed his

testimony on that point.

       {¶32} Trooper Tot stated that McQuistan never complained of any injury and never

requested medical attention. Indeed, he testified that he specifically asked McQuistan whether

he needed medical attention and McQuistan refused to answer. Trooper Tot stated that he had

experience with individuals who had been injured in airbag deployments and McQuistan’s

behavior was distinctly different than that of those individuals. He testified that McQuistan did
                                                14


not appear to have difficulty understanding him; he just refused to cooperate and glared angrily

at him during their encounter.

          {¶33} Both McQuistan’s daughter and his wife testified in his defense. His daughter

testified that she visited her parents the day after the accident and McQuistan was acting

unusually. Specifically, he was watching television at a low volume with the curtains drawn and

only had limited interaction with his grandchildren.         McQuistan’s daughter denied that

McQuistan drank alcohol on a regular basis, but admitted that she no longer lived at her parents’

house.

          {¶34} McQuistan’s wife testified that the weather was bad the day of the accident, but

McQuistan left in the morning to go skiing. She testified that she began to worry when he was

not home by 6:00 p.m., so she tried texting him. She initially testified that she never spoke to

McQuistan and did not learn of his whereabouts until Sergeant Dunbar phoned about his arrest.

On cross-examination, however, the State presented her with phone records, evidencing that

several calls took place between her and McQuistan’s cell phone shortly after the accident

occurred. McQuistan’s wife then recalled that she briefly spoke to McQuistan at those times.

She claimed, however, that the signal was poor and she largely could not understand what he was

saying.

          {¶35} According to McQuistan’s wife, McQuistan was visibly shaken when she came to

get him at the police station and did not seem to understand what was happening. She denied

that his speech was slurred or that she could smell alcohol on his person. She testified that, once

home, he was nauseated, had a headache, was sensitive to light, and had difficulty remembering

much about the accident. Nevertheless, she admitted that he did not seek medical care for three

days, which was the same day that he was due in court. She testified that McQuistan ultimately
                                                15


saw several physicians about his symptoms because they continued to occur. She testified that

she was not directly involved in his medical appointments, but, after he had an MRI, he told her

he had been diagnosed with “severe brain trauma.”

       {¶36} Dr. Matthew Finneran, a family medicine practitioner, saw McQuistan three days

after the accident. He testified that McQuistan reported driving slowly on an icy road and

striking another car because a crest in the road prevented him from seeing the car and stopping in

time. Dr. Finneran ultimately diagnosed McQuistan with a concussion, but admitted that he did

so based on McQuistan’s self-reported symptoms. He testified that all of McQuistan’s exams

were normal, but that he later referred him to a neurologist because he continued to report having

symptoms. According to Dr. Finneran, all of the tests the neurologist performed, including an

MRI, produced normal and/or clinically insignificant results. He also confirmed that, per his

medical records, McQuistan consumed two bottles of wine per week.

       {¶37} McQuistan testified in his own defense. He stated that, on the day of the crash, he

drove south to go skiing for the day. He described how he skied until lunch, stopped for a bowl

of chili and one 20-ounce beer, and then skied again until it was time to go home. According to

McQuistan, the weather conditions worsened the closer he got to home. He reported that the

conditions on Greenwich Road were snowy and prevented him from seeing the other driver’s car

at a distance. He stated that he did not see the driver’s taillights until the last minute, at which

point he braked “in a hard, aggressive manner.” After that, his airbag deployed and he believed

he was rendered unconscious for up to 25 minutes.

       {¶38} McQuistan testified that he could recall very little about the aftermath of the

crash. He stated that he could not remember what he said to the other driver or the police. He

also stated that he could not remember whether he urinated near his truck, but testified that doing
                                                  16


so would be out of character for him. He could not recall Sergeant Dunbar explaining the breath

test to him or refusing the test. McQuistan testified that he only drank one beer that day and that

the accident occurred as a result of the weather and road conditions.

       {¶39} McQuistan conceded that there was no crest or hill on Greenwich Road to

obstruct his view of the other driver’s car. Though he may have described a crest or hill

blocking his view when telling Dr. Finneran about the accident, McQuistan insisted that he

merely offered the doctor “a scenario” and that the “relevant portions” of his description were

correct. He also insisted that doctors told him he had experienced significant brain trauma,

despite the fact that all of his test results were normal and/or clinically insignificant. He testified

that he experienced painful symptoms immediately following the accident and had difficulty

concentrating and functioning that weekend. Nevertheless, he admitted that he never sought

emergency medical attention. He also admitted that, the day after the accident, he went through

the process of shaving off his beard.

       {¶40} Having reviewed the record, we cannot conclude that the trier of fact lost its way

when it concluded that McQuistan was impaired at the time of the accident. The court was

essentially presented with two conflicting versions of the events. Though McQuistan claimed

that he only drank one beer at lunch that day, the court heard a substantial amount of testimony

tending to show that he was under the influence of alcohol at the time of the crash. “This Court

has repeatedly held that the trier of fact is in the best position to determine the credibility of

witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No.

25161, 2010-Ohio-3296, ¶ 15. Moreover, “[a] verdict is not against the manifest weight of the

evidence because the finder of fact chooses to believe the State’s witnesses rather than the

defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-
                                                  17


Ohio-3189, ¶ 16. McQuistan has not shown that this is the exceptional case where the evidence

weighs heavily against his convictions. See Otten, 33 Ohio App.3d at 340. Consequently, we

reject his manifest weight argument and overrule his third assignment of error.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR.
       MCQUISTAN’S MOTION FOR A NEW TRIAL WITHOUT A HEARING
       AND REFUSED TO RECUSE ITSELF FROM THE CASE[.]

       {¶41} In his fourth assignment of error, McQuistan argues that the trial judge abused her

discretion when she denied his motion for new trial without holding a hearing and refused to

recuse herself. We disagree.

       {¶42} Crim.R. 33(A) allows a defendant to move for a new trial when his substantial

rights have been materially affected. “By its terms, [the rule] does not require a hearing on a

motion for a new trial, and this Court has consistently held that the decision to conduct a hearing

is one that is entrusted to the discretion of the trial court.” State v. Jalowiec, 9th Dist. Lorain No.

14CA010548, 2015-Ohio-5042, ¶ 20. Likewise, a trial court’s ultimate decision to grant or deny

a motion for new trial is one this Court reviews for an abuse of discretion. State v. Holmes, 9th

Dist. Lorain No. 05CA008711, 2006-Ohio-1310, ¶ 8. An abuse of discretion indicates that the

trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

       {¶43} “[E]xcept for the cause of newly discovered evidence,” motions for new trial must

be filed “within fourteen days after the verdict was rendered.” Crim.R. 33(B). A motion based

on newly discovered evidence must be filed “within [120] days after the day upon which the

verdict was rendered * * *.” Id.

       To warrant the granting of a motion for a new trial based upon newly discovered
       evidence, the defendant must show that the evidence:
                                                18


       “(1) discloses a strong probability that it will change the result if a new trial is
       granted, (2) has been discovered since the trial, (3) is such as could not in the
       exercise of due diligence have been discovered before the trial, (4) is material to
       the issues, (5) is not merely cumulative to former evidence, and (6) does not
       merely impeach or contradict the former evidence.”

State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 18, quoting State v.

Petro, 148 Ohio St. 505 (1947), syllabus.

       {¶44} The trial court rendered a verdict in this matter on November 14, 2016. The

original sentencing date was then postponed and rescheduled for December 29, 2016. Several

minutes before the rescheduled sentencing hearing, McQuistan filed his motion for new trial.

His motion neglected to cite any specific provision of Crim.R. 33. Rather, it was based on his

having learned, “shortly []after” the November 8th general election, that the trial judge had

offered a magistrate’s position to the assistant prosecutor who tried this matter. McQuistan

argued that he should have been made aware of “the closeness of [the] relationship” between the

judge and the assistant prosecutor before trial because it would have impacted his decision to try

the matter to the bench instead of a jury. The court once again postponed sentencing so as to rule

on his motion.

       {¶45} The trial court denied McQuistan’s motion without holding a hearing. The court

determined that the motion was untimely because it was filed more than fourteen days after the

verdict and McQuistan had failed to specify when exactly he had discovered the information on

which it was based. Further, the court found that McQuistan was not entitled to a new trial on

the basis of newly discovered evidence because he failed to prove that there existed a strong

probability that the information he discovered would have changed the result in this matter. The

court noted that it had based its decision, not on any special relationship with the assistant

prosecutor, but on the wealth of evidence that the State had produced at trial.
                                                19


       {¶46} McQuistan concedes that he filed his motion for new trial more than fourteen

days after the verdict was rendered, but argues that it was timely filed based on newly discovered

evidence. See Crim.R. 33(B). According to McQuistan, he only learned about the court’s

decision to hire the assistant prosecutor after the issuance of the verdict and the court’s decision

to do so “at the very least created an appearance of impropriety * * *.” He argues that the judge

erred by concluding that his motion was untimely, by denying it without first holding a hearing,

and by not recusing herself once it became clear that her impartiality might be reasonably

questioned.

       {¶47} Initially, this Court notes that McQuistan never asked for a hearing on his motion

for new trial. His request for relief was limited to a request for a new trial and, when he later

appeared for sentencing, he did not object to the court’s denial of his motion in the absence of a

hearing. McQuistan has not explained why his failure to request a hearing and his subsequent

failure to object did not result in a forfeiture. See State v. Richardson, 9th Dist. Lorain No.

16CA011003, 2017-Ohio-8138, ¶ 10. It is well settled that “an appellate court will not consider

any error which counsel * * * could have called but did not call to the trial court’s attention at a

time when such error could have been avoided or corrected by the trial court.” State v. Childs,

14 Ohio St.2d 56 (1968), paragraph three of the syllabus.

       {¶48} Though McQuistan now asserts that he moved for a new trial based on newly

discovered evidence, he neglected to even cite Crim.R. 33 in his motion, much less explain how

it was timely under subsection (B). He also neglected to explain how the information he

discovered was material to the actual issues at trial or would have changed the result in this

matter in light of the evidence the State produced. See Tolliver, 2017-Ohio-4214, at ¶ 18,

quoting Petro, 148 Ohio St. 505 at syllabus. The information he discovered did not pertain to the
                                                 20


evidence at trial, but to the alleged partiality of the judge. On appeal, he specifically argues that

the trial judge erred by not recusing herself. Yet, “[m]atters of disqualification of trial judges lie

within the exclusive jurisdiction of the chief justice of the Supreme Court of Ohio and [her]

designees.” State v. O’Neal, 9th Dist. Medina No. 06CA0056-M, 2008-Ohio-1325, ¶ 15. This

Court has no authority to review recusal decisions. Id. See also State v. Smith, 9th Dist. Lorain

No. 98CA007169, 2000 Ohio App. LEXIS 972, *6-7 (Mar. 15, 2000).

       {¶49} Upon review, this Court cannot conclude that the trial court abused its discretion

when it denied McQuistan’s motion for new trial. McQuistan failed to demonstrate that his

motion was timely filed under Crim.R. 33(B). He also failed to show that there existed a strong

probability that the information he discovered would have changed the result in this matter,

given the evidence the State produced at trial. See Tolliver at ¶ 18, quoting Petro at syllabus. To

the extent he argued below and maintains on appeal that the trial judge ought to have recused

herself, his remedy was to file an affidavit of disqualification with the Supreme Court. See

O’Neal at ¶ 16. Accordingly, McQuistan’s fourth assignment of error is overruled.

                                                 III.

       {¶50} McQuistan’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                21


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT




HENSAL, P. J.
CALLAHAN, J.
CONCUR

APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and MICHAEL McNAMARA, Assistant
Prosecuting Attorney, for Appellee.
