[Cite as State v. Davis, 2020-Ohio-473.]


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

STATE OF OHIO                                         C.A. No.      29273

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TYRONE DAVIS                                          COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2018-02-0508

                                  DECISION AND JOURNAL ENTRY

Dated: February 12, 2020



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Tyrone Davis, appeals his conviction in the Summit County

Court of Common Pleas for operating a vehicle under the influence. This Court affirms.

                                                 I.

        {¶2}     On February 6, 2018, at approximately 3:00 a.m., Officer Joseph Beltrami of the

Northfield Police Department was on patrol when he observed a dark-colored truck swerving in

an irregular pattern. The truck pulled into a motel parking lot and Officer Beltrami initiated a

traffic stop. Officer Beltrami made contact with the driver who identified himself as Tyrone

Davis. Officer Beltrami asked Davis if he had been drinking that night. Davis replied that he

had. While Officer Beltrami was speaking with Davis, Officer Vincent Cangelosi also of the

Northfield Police Department arrived on the scene as back up.

        {¶3}     Officer Beltrami observed Davis’s eyes to be glossy and watery. At that point, he

asked Davis to step out of the vehicle and to perform field sobriety tests. When Davis stepped
                                                2


out of the vehicle Officer Beltrami detected the odor of alcohol. Officer Beltrami administered

the standard field sobriety tests to Davis while Officer Cangelosi remained on scene and

observed. Following the field sobriety tests, Officer Beltrami requested Davis take a portable

breath test. Davis refused. Officer Beltrami then placed Davis under arrest for operating a

vehicle under the influence (“OVI”).

       {¶4}    The Summit County Grand Jury indicted Davis on one count of OVI in violation

of R.C. 4511.19(A)(1)(a), a felony of the fourth degree, and one count of OVI in violation of

R.C. 4511.19(A)(2)(a), a felony of the fourth degree. Davis entered a plea of not guilty at his

arraignment, and the matter proceeded through the pretrial process.

       {¶5}    Davis filed a motion to suppress evidence asserting that the field sobriety tests

were not conducted in substantial compliance with the National Highway Transportation Safety

Administration (“NHTSA”) standards and that the officers did not have probable cause to arrest

him for OVI. Following a hearing, the trial court found that Officer Beltrami administered all

three of the field sobriety tests—the horizontal gaze nystagmus (“HGN”), the walk and turn, and

the one-leg stand—in substantial compliance with the NHTSA standards. The trial court also

determined that the officers had probable cause to arrest Davis for OVI.

       {¶6}    The matter proceeded to a jury trial. The jury returned a verdict finding Davis

guilty of both counts in the indictment. The trial court accepted the jury’s verdict and found

Davis guilty on both counts. The trial court thereafter merged count one and two. The State

elected to proceed on Count I, and the trial court imposed sentence accordingly.

       {¶7}    Davis filed this timely appeal, raising two assignments of error for our review.
                                                 3


                                                II.

                                     Assignment of Error I

       The trial court erred in denying [Davis]’s [m]otion to [s]uppress. [ ]

       {¶8}    In his first assignment of error, Davis contends that the trial court erred when it

denied his motion to suppress because (1) the State failed to prove by clear and convincing

evidence that the officers administered his field sobriety tests in compliance with the NHTSA

manual and guidelines; and (2) the officers lacked probable cause to arrest Davis for OVI. We

disagree on both points.

       {¶9}    Appellate review of a trial court’s ruling on a motion to suppress 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.” State

v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Accordingly, an appellate court must accept a trial court’s findings of fact when

they are supported by competent, credible evidence. Id. However, accepting those facts as true,

the appellate court must independently determine, without deference to the trial court’s

conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8.

Field Sobriety Tests

       {¶10} In a journal entry following the suppression hearing, the trial court found that

Officer Beltrami administered the field sobriety tests in substantial compliance with NHTSA. In

making this determination, the trial court stated that Officer Beltrami correctly articulated the

appropriate procedures for administering the tests, and noted that he testified that he

administered the tests in accordance with NHTSA standards. The court found that Officer
                                                 4


Beltrami adequately demonstrated and explained the tests, and that he administered the tests on a

dry, level, and hard surface. The trial court further found that the video evidence presented at the

hearing showed that the tests were administered in substantial compliance with the appropriate

standards.

       {¶11} On appeal, Davis first argues that Officer Beltrami’s testimony during the hearing

showed a lack of substantial compliance because he lacked knowledge of what constituted a

“clue” of impairment pursuant to the NHTSA manual on the walk and turn test. Davis next

argues that Officer Cangelosi’s testimony showed a lack of substantial compliance because he

lacked knowledge of what constituted a “clue” of impairment pursuant to the NHTSA manual on

the one leg stand test. Davis does not assert that Officer Beltrami’s instructions to Davis were

not in substantial compliance with the NHTSA standards nor does Davis challenge the trial

court’s finding that Officer Beltrami substantially complied with the NHTSA standards as to the

HGN test.

       {¶12} Pursuant to R.C. 4511.19(D)(4)(b),

       an officer may testify concerning the results of a field sobriety test, and the
       prosecution may introduce the results of such a test, if “the officer administered
       the test in substantial compliance with the testing standards for any reliable,
       credible, and generally accepted field sobriety tests that were in effect at the time
       the tests were administered, including, but not limited to, any testing standards
       then in effect that were set by the [NHTSA] * * * .”

State v. George, 9th Dist. Wayne No. 13CA0036, 2014-Ohio-4123, ¶ 7, quoting R.C.

4511.19(D)(4)(b). The State bears the burden of demonstrating substantial compliance by clear

and convincing evidence. State v. Spees, 9th Dist. Medina No. 17CA0061-M, 2018-Ohio-2568,

¶ 17. “‘A determination of whether the facts satisfy the substantial compliance standard is made

on a case-by-case basis.’” State v. Sayler, 9th Dist. Medina No. 15CA0094-M, 2016-Ohio-7083,

¶ 15, quoting State v. Fink, 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119, 2009-
                                                  5


Ohio-3538, ¶ 26.      “The [S]tate may demonstrate what the NHTSA standards are through

competent testimony and/or by introducing the applicable portions of the NHTSA manual.”

(Internal quotations and citations omitted.) Sayler at ¶ 15;

       {¶13} Davis argues that Officer Beltrami incorrectly scored the walk and turn test due to

a lack of knowledge of the NHTSA standards. During the suppression hearing, Officer Beltrami

testified as to the NHTSA guidelines for conducting the walk and turn test and how he

administered that test. He stated that when performing the test, he asks the individual to stand on

a flat, dry surface with his left foot on an imaginary line. He then asks him to hold his right foot

in front of his left foot touching heel to toe and holding his hands down at his sides while he

explains the instructions. He then simultaneously demonstrates and explains to the individual

that he is to take nine heel to toe steps down the line, and then take nine heel to toe steps back.

       {¶14} Officer Beltrami further testified that he conducted the walk and turn test in this

case in compliance with the above guidelines. Officer Beltrami testified that he found a flat,

relatively dry surface on which to conduct the test. While administering the test, he observed

four total clues, which included Davis either stepping off the line or using his arms to balance.

Officer Beltrami admitted on cross-examination that he did not recall the exact step on which

Davis stepped off the line or how far off the line he stepped, but reasserted that Davis did in fact

step off the imaginary line. In determining that Davis was using his arms to balance, Officer

Beltrami noted that Davis had not left his arms by his side as instructed, but instead had placed

his hands in his pockets. Because his hands were in his pockets, Officer Beltrami interpreted

Davis’s elbows “sticking out” as using his arms to balance. Officer Beltrami acknowledged on

cross-examination that the NHTSA manual states an indicator of impairment on the walk and

turn test is for a person to raise his arms six inches. Nonetheless, Officer Beltrami stated that
                                                  6


Davis was instructed to have his arms at his side and he interpreted Davis’s elbow being “out” as

Davis using his arms to balance.

       {¶15} Although Davis also challenges Officer Cangelosi’s knowledge of what the

NHTSA standards state is a valid clue of impairment on the one leg stand test, the trial court

found and the officers’ body-camera footage showed that Officer Beltrami administered the tests

while Officer Cangelosi merely observed. Additionally, although the trial court found that

Officer Beltrami observed two clues during the one leg stand test, it made no finding as to what

Officer Cangelosi may or may not have observed. A review of the record shows that these

findings are based on competent credible evidence.             Officer Beltrami testified that he

administered the tests and that his partner, Officer Cangelosi observed. Officer Cangelosi also

testified that Officer Beltrami conducted the field sobriety tests.

       {¶16} Officer Beltrami testified as to the NHTSA guidelines for conducting the one leg

stand test and how he administered those tests in this case. Officer Beltrami stated that he

explains and demonstrates the test to the individual before administering the test.         Officer

Beltrami stated that when conducting the test, he asks the individual to stand with his hands at

his side with feet together. He then asks him to raise and hold the foot of his choice six inches

above the ground while counting out loud, one, one-hundred; two, one-hundred; and on until he

asks them to stop. During the test, he watches to observe any swaying, using of arms to balance,

and lowering of the foot. Officer Beltrami stated that he conducted the test in compliance with

this standard. Officer Beltrami further testified that while administering the one leg stand test in

this case, he observed that Davis was swaying and using his arms to balance.
                                                  7


       {¶17} Based on the foregoing, we conclude that Davis has not shown that the trial court

erred by determining Officer Beltrami substantially complied with the NHTSA guidelines

regarding the administration of field sobriety tests.

Probable Cause to Arrest

       {¶18} Davis also contends that the trial court erred by denying his motion to suppress

because the officers lacked probable cause to arrest him. We disagree.

       {¶19} “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.’” Spees, 2018-

Ohio-2568, at ¶ 30, quoting State v. Hopp, 9th Dist. Summit No. 28095, 2016-Ohio-8027, ¶ 8.

This Court has recognized that a probable cause determination is a fact-intensive inquiry that

“requires consideration of the totality of the circumstances known to the officer at the time of the

arrest.” State v. Rogers, 9th Dist. Wayne No. 16AP0014, 2017-Ohio-357, ¶ 9. “‘To prove

impaired driving ability, the [S]tate can 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 WL 131665, *5 (Dec. 17, 1999). “The amount of evidence necessary for probable cause to

suspect a crime is being committed is less evidence than would be necessary to support a

conviction of that crime at trial.” State v. McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-

Ohio-994, ¶ 11.

       {¶20} The court concluded, based on the totality of the circumstances, that Officer

Beltrami had probable cause to arrest Davis for OVI. The trial court based this conclusion on the
                                                 8


findings that Officer Beltrami stopped Davis after observing his vehicle swerving in the road at

approximately 3:30 a.m., Officer Beltrami observed Davis’s eyes to be glossy and watery, Davis

admitted to Officer Beltrami that he had been drinking alcohol, and Officer Beltrami observed a

number of clues when he conducted field sobriety testing.

        {¶21} Davis argues that the trial court erred in its probable cause determination because

each of the signs Officer Beltrami cited as justification for arresting Davis could have been

explained by other circumstances such as the weather, fatigue, and smoking. He asserts that the

odor of alcohol was weak and that he had no trouble producing his driver’s license and proof of

insurance. Finally, Davis contends that field sobriety tests are not reasonably trustworthy.

        {¶22} In light of the totality of the circumstances before the trial court, we cannot say

that the trial court erred in concluding that Officer Beltrami had probable cause to arrest Davis

for OVI. The record reflects that both officers detected the odor of alcohol coming from Davis’s

person and saw that Davis’s eyes were glossy and watery. Davis admitted that he had consumed

alcohol earlier in the evening, and Officer Beltrami observed several clues of impairment during

the field sobriety tests. Officer Beltrami also observed Davis’s vehicle to be weaving prior to the

traffic stop. Based on the totality of the circumstances, Officer Beltrami could have concluded

that Davis was driving while under the influence. See State v. Thayer, 9th Dist. Medina No.

11CA0045-M, 2012-Ohio-3301, ¶ 33 (probable cause requires only the probability that criminal

activity exists).

        {¶23} Davis’s first assignment of error is overruled.

                                     Assignment of Error II

        [Davis]’s convictions were against the manifest weight of the evidence in
        violation of Article IV, Section 3 of the Ohio Constitution. [ ]
                                                    9


          {¶24} In his second assignment of error, Davis contends that his convictions were

against the manifest weight of the evidence. We disagree.

          {¶25} This Court has stated:

          In determining whether a criminal conviction is against the manifest weight of the
          evidence, an appellate 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). The weight of the evidence concerns

whether a greater amount of credible evidence offered at trial supports one side of the issue than

supports the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court

should only exercise its power to reverse a judgment as against the manifest weight of the

evidence in an exceptional case where the evidence heavily weighs against the conviction. Otten

at 340.

          {¶26} “‘A conviction is not against the manifest weight of the evidence merely because

there is conflicting evidence before the trier of fact.’” State v. Zaree, 9th Dist. Lorain No.

17CA011111, 2017-Ohio-9081, ¶ 5, quoting State v. Haydon, 9th Dist. Summit No. 19094, 1999

WL 1260298, *7 (Dec. 22, 1999). “An appellate court will not overturn a judgment on this basis

alone, and may not merely substitute its judgment for that of the factfinder.” Id. citing State v.

Serva, 9th Dist. Summit No. 23323, 2007-Ohio-3060, ¶ 8.

          {¶27} In this case, the jury found Davis guilty of OVI in violation of R.C.

4511.19(A)(1)(a), which provides that “[no person shall operate any vehicle * * * if, at the time

of the operation * * * [t]he person is under the influence of alcohol, drugs of abuse, or a

combination of them.”         The jury also found Davis guilty of OVI in violation of R.C.

4511.19(A)(2)(a), which provides that no person who has previously been convicted of OVI
                                                10


within twenty years shall do both of the following: (1) “[o]perate any vehicle * * * while under

the influence of alcohol[;]” and (2) refuse to submit to a chemical test or tests subsequent to

being arrested for operating the vehicle.

       {¶28} In arguing that his conviction was against the manifest weight of the evidence,

Davis does not challenge the credibility of any particular witness. Davis argues only that the

weight of the evidence does not support the jury’s finding that he was under the influence of

alcohol. He argues that his traffic violation was de minimis and could have been explained by

the snowy weather and road conditions. He also notes that any indicia or clues of impairment

noted by the officers in this case could have been caused by something other than impairment.

       {¶29} The only testimony presented at trial was from the State’s witnesses, Officer

Beltrami and Officer Cangelosi. The State also admitted into evidence the videos from both

officer’s body cameras and their cruiser’s dashboard cameras. Officer Beltrami testified he

observed Davis’s vehicle weaving in an unusual pattern prior to initiating a traffic stop.

Although Officer Beltrami acknowledged that “for the most part” the roads were snow covered

that evening, he was both able to “see the lane of the road” and to stay within it. Officer

Beltrami stated that Davis had no difficulty producing his driver’s license or vehicle registration.

Both Officer Beltrami and Officer Cangelosi testified that they observed Davis’s eyes to be

watery and glossy, and that watery, glossy eyes are a good indication of impairment. Officer

Beltrami agreed on cross-examination that fatigue can also cause watery or glossy eyes.

However, because Davis admitted to having a few drinks earlier in the night in addition to his

glossy, watery eyes, Officer Beltrami suspected Davis of being an impaired driver.

Consequently, Officer Beltrami requested Davis exit the vehicle to perform field sobriety testing.

Officer Beltrami stated that when he opened the car door, he noticed the odor of alcohol. Officer
                                               11


Cangelosi also testified that he smelled “a very pungent odor” of alcohol when he stood next to

Davis’s vehicle. Davis then exited the vehicle without staggering or swaying and proceeded to

perform the field sobriety tests.

       {¶30} Officer Beltrami testified as to how he administered the field sobriety tests and

what clues of intoxication he was looking for during those tests. He stated that he observed four

clues during the HGN test, which he believed were a pretty good indication that Davis was under

the influence. Davis did not, however, have difficulty, sway, or rock during the test. Officer

Beltrami could not remember how many clues he observed on the walk and turn test, but testified

that he observed Davis use his arms to balance and stepped off the imaginary line. Although

Davis had placed his hands in his pockets despite instruction to leave them at his side, Officer

Beltrami interpreted Davis’s raised elbows as Davis using his arms for balance. Although he

indicated that Davis stepped off the imaginary line, Officer Beltrami could not remember how

many times he stepped off the line or how far off the line he stepped. Although Officer Beltrami

initially indicated that Davis had improperly broken his starting position while Officer Beltrami

was giving him the instructions for the test—an act Officer Beltrami interpreted as a clue of

impairment—he acknowledged on cross-examination that he had failed to instruct Davis to

maintain that position while he gave the instructions. Officer Beltrami stated that he did not

know whether Davis broke that position because he was losing his balance, was fidgety, or

because it was cold outside. Officer Beltrami also indicated that Davis counted the proper

amount of steps and conducted the turn as instructed. During the one leg stand test, Officer

Beltrami stated he observed Davis using his arms to balance and at one point miscounted. He

acknowledged that he did not see Davis put his foot down, did not see Davis sway, nor did he see

Davis hop during the test.
                                                12


       {¶31} Officer Cangelosi testified that he observed Officer Beltrami administer the field

sobriety tests. Officer Cangelosi testified that he was not able to see Davis’s eyes during the

HGN test, but that he observed Davis jerk his head “a few times.” Regarding the walk and turn

test, Officer Cangelosi stated that Davis did not do “as good as he should have done” on the test.

Officer Cangelosi stated that Davis did not begin the test properly, but admitted on cross-

examination that Officer Beltrami did not advise Davis to hold his starting position until told to

begin. Officer Cangelosi also noted that Davis had his hands in his pockets and did not walk

heel to toe. Officer Cangelosi further testified that Davis failed the one leg stand test because he

miscounted, his foot was not six inches from the ground, and his toe was pointed up, not straight

out.   Although Officer Cangelosi interpreted the position of Davis’s foot as a clue of

intoxication, he admitted on cross-examination that Officer Beltrami never advised Davis how or

even if he should point his toe.     In describing Davis’s arms during the test, he stated that

“[Davis] would either go to the left or the right and he would kind of push on his thighs trying to

keep his balance.” Officer Cangelosi did not observe Davis to stumble or sway while walking.

       {¶32} Officer Beltrami testified that he believed Davis was impaired following the field

sobriety tests, and offered him a portable breath test, which Davis refused despite Officer

Beltrami’s statement that if he blew below the legal limit he would let him go to his motel room.

Officer Beltrami acknowledged that Davis was polite, calm, and cordial throughout the traffic

stop, but also stated he was a bit agitated during the field sobriety tests. Officer Beltrami then

placed Davis under arrest for operating a vehicle under the influence, and transported Davis to

the Sagamore Hills Police Department. Once at the Sagamore Hills Police Department, he

offered Davis the opportunity to take a breath test, which he also refused.
                                                 13


       {¶33} Although Davis argues that Officer Beltrami testified he did not observe any

slurred speech from Davis, we note that “[w]hile slurred speech is one indicia of intoxication, it

is not a prerequisite to a reasonable judgment that a person is under the influence.” Akron v.

Smith, 9th Dist. Summit No. 21519, 2003-Ohio-5773, ¶ 16. “In determining whether a defendant

was under the influence of alcohol, [a] jury may properly consider evidence of his appearance

and behavior, including his ability to perceive, make judgments, coordinate movements, and

safely operate a vehicle.” State v. Baker, 9th Dist. Summit No. 29167, 2020-Ohio-19, ¶ 13,

citing State v. Moine, 72 Ohio App.3d 584, 586-587 (9th Dist.1991). In this case, Officer

Beltrami ultimately testified that even excluding the results of the walk and turn-test and the one

leg stand test, he believed Davis was impaired based on

       [t]he totality of the circumstances between the driving, the odor of alcohol, the
       admittance of the alcohol, the HGN test and having the four clues which are good
       indicators that a person is intoxicated, also the watery, red eyes, the glossy eyes,
       all that together.

Additionally, Officer Cangelosi stated he believed Davis was impaired because of his poor

performance on the field sobriety tests. “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-Ohio-3189, ¶ 16.

       {¶34} The trial court instructed the jury that:

       [u]nder the influence means that the defendant consumed some alcohol, whether
       mild or potent, in such a quantity, whether small or great, that it adversely
       affected and noticeably impaired the defendant’s actions, reactions, or mental
       processes under the circumstances then existing and deprived the defendant of
                                                14


       that clearness of intellect and control of himself which he otherwise [would] have
       possessed.

After reviewing the record in this case and in light of the evidence presented at trial, we cannot

say that this is the exceptional case where the evidence weighs manifestly against a finding that

Davis was under the influence. See Otten, 33 Ohio App.3d at 340. A reasonable jury could have

concluded that Davis was under the influence of alcohol.

       {¶35} Davis’s second assignment of error is overruled.

                                                III.

       {¶36} Davis’s first and second assignment of error are overruled.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Pleas, County of Summit, 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.



                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                          15




CALLAHAN, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

BRIAN A. SMITH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
