[Cite as State v. Ricer, 2018-Ohio-426.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. John W. Wise, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. William B. Hoffman, J.
                                                :
-vs-                                            :
                                                :       Case No. 17-COA-023
MARK A. RICER                                   :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Ashland Municipal
                                                    Court, Case No.17TRC01612



JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             February 1, 2018


APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANDREW N. BUSH                                      JOSEPH KEARNS, JR.
Assistant Law Director                              Mason, Mason & Kearns
1213 E. Main Street                                 153 West Main Street
Ashland, OH 44805                                   Ashland, OH 44805
[Cite as State v. Ricer, 2018-Ohio-426.]


Gwin, J.,

        {¶1}     Appellant Mark A. Ricer [“Ricer”] appeals his convictions and sentences

after a jury trial in the Ashland Municipal Court.

                                           Facts and Procedural History

        {¶2}     Sometime between 1:30 a.m. and 2:00 a.m. on March 4, 2017, officers from

the Ashland City Police Department did a walk-thru at a local bar called the Wagon Wheel.

Ricer was seen sleeping at a table by himself, with a few pizza boxes in front of him and

several beer cans by his head. The officers noticed that a vehicle registered to Ricer was

parked illegally on the street outside of the bar. The officers did not ticket the vehicle.

        {¶3}     Later in the evening and after the last walk-through Officer Kunzen radioed

to Officer Schwan that Ricer was leaving the bar and driving away in his truck. Officers

Schwan and Eggeman drove to the area in the same patrol car. The officers saw no

traffic infractions by Ricer as they followed him on Third Street. The officers observed

Ricer make a "very slow, methodical, fluid" turn onto Cottage Street. The officers

observed Ricer’s truck travel left of center. (T. at 22). The driver’s side tire traveled

completely over the centerline near Fourth Street. (Id.). Ricer made another slow,

methodical, fluid turn left onto Ohio. In making that turn, the officers saw Ricer almost

strike the curb, but jerked the wheel back. Officer Schwan turned on his overhead lights

on Ohio Street; however, Ricer continued driving turning right onto to Arch Street.

Because Ricer continued to drive, Officer Schwan sounded his siren. Ricer continued to

drive a short distance before stopping.
Ashland County, Case No. 17-COA-023                                                        3


       {¶4}   During their interaction with Ricer at his vehicle, the officers noted an odor

of alcoholic beverage, slightly slurred speech, and glassy, watery eyes. Ricer did admit

to drinking a couple of beers at the Wagon Wheel bar that night.

       {¶5}   Ricer was asked out of the vehicle to perform field sobriety tests. Ricer was

given the Horizontal Gaze Nystagmus Test. (T. 31).        Ricer told the officer that he had

cataract surgery and had lenses in his eyes. The officer observed six clues of a possible

six clues. Ricer was then asked to recite the alphabet without singing the song beginning

with the letter “D” and ending with the letter “N.” Ricer had a difficult time. Ricer was

offered the Walk and Turn test, but said he could not do the test because his foot or leg

had been broken a few years prior (T. 39). Ricer offered to show the officers the black

and blue marks on his leg; however, the officer told Ricer they would take his word for it.

       {¶6}   During the stop, Ricer became slightly argumentative with the officers. (T.

at 41). Ricer indicated that he wanted to take a portable breathalyzer test. The officer

indicted that he had such a device but did not offer it to Ricer. Ricer later volunteered

without being asked that he would not take a breathalyzer test. (T. at 41). Ricer was

placed under arrest for Operating a Vehicle while under the Influence of Alcohol [OVI] in

violation of R.C. 4511.19(A)(1)(a), and Driving Left of Center under Ashland City

Ordinance 331.05. At the police station, Ricer was read the BMV 2255 form and refused

to submit to the breath test. Ricer was charged under R.C. 4511.19(A)(2)(b), which

prohibits individuals, after being arrested for operating a vehicle while under the influence

from refusing to submit to a chemical blood-alcohol test if they have been convicted of an

OVI offense within the previous 20 years.
Ashland County, Case No. 17-COA-023                                                                    4


        {¶7}    Ricer did not file a motion to suppress challenging the validity of the stop,

his arrest or the administration of the field sobriety tests.

        {¶8}    A jury trial commenced on June 8, 2017. The parties stipulated that the

Ricer had been previously convicted of a prior OVI on July 21, 2000. A video of the traffic

stop and the officers’ interaction with Ricer was played for the jury and admitted into

evidence as State’s Exhibit 2. At the conclusion of the trial, Ricer was found guilty of OVI.

The judge found Ricer guilty of the Left of Center charge. The court sentenced Ricer to

180 days incarceration, with 90 suspended, 3-year license suspension, and a $525.00

fine, plus costs on the OVI conviction.

                                            Assignments of error

        {¶9}    Ricer raises one assignment of error,

        {¶10} “I. THE CONVICTION OF THE APPELLANT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                              Law and Analysis

        {¶11} Ricer’s sole assignment of error challenges the manifest weight of the

evidence that was presented at trial and which resulted in a jury's verdict of guilty of OVI1.

He argues that he only showed minor indicia of impairment. He further argues that the

officer failed to properly administer the one test that was given, the Horizontal Gaze

Nystagmus test.




        1  Ricer does not challenge his conviction for Driving Left of Center in this appeal. Nor does he
challenge his conviction under the look-back provision under R.C. 4511.19(A)(2)(b), having stipulated to
his prior refusal. [Appellant Brief at 3].
Ashland County, Case No. 17-COA-023                                                       5


       STANDARD OF APPELLATE REVIEW.

       {¶12} When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record, weigh

the evidence, and consider the credibility of witnesses. State v. Thompkins, 78 Ohio St.3d

380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other

grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355.

The reviewing court must bear in mind, however, that credibility generally is an issue for

the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001);

State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the

trier of fact sees and hears the witnesses and is particularly competent to decide whether,

and to what extent, to credit the testimony of particular witnesses, the appellate court

must afford substantial deference to its determinations of credibility. Barberton v. Jenney,

126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts. * * *

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Ashland County, Case No. 17-COA-023                                                           6


Thus, an appellate court will leave the issues of weight and credibility of the evidence to

the fact finder, as long as a rational basis exists in the record for its decision. State v.

Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶13} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       ISSUE FOR APPEAL

       A. Whether the jury court clearly lost their way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

       1. Sufficiency of the Evidence.

       {¶14} Ricer was convicted of a violation of R.C. 4511.19, which states in pertinent

part: “(A)(1) No person shall operate any vehicle, * * *, if, at the time of the operation, any

of the following apply: (a) The person is under the influence of alcohol, a drug of abuse,

or a combination of them.”

       {¶15} In State v. Ahmed, this Court observed,

              “[B]eing ‘under the influence of alcohol or intoxicating liquor’ means

       that the accused must have consumed some intoxicating beverage,

       whether mild or potent, and in such quantity, whether small or great, that

       the effect thereof on him was to adversely affect his actions, reactions,
Ashland County, Case No. 17-COA-023                                                         7


       conduct, movements or mental processes, or to impair his reactions, under

       the circumstances then existing so as to deprive him of that clearness of the

       intellect and control of himself which he would otherwise possess”). See,

       State v. Henderson, 5th Dist. No. 2004-CA-00215, 2005-Ohio-1644 at ¶ 32.

       [Citing State v. Barrett (Feb. 26, 2001), Licking App. No. 00CA47].

5th Dist. Stark No. 2007-CA-00049, 2008-Ohio-389, ¶26. In the case at bar, the

evidence produced at trial supports the inference that Ricer's consumption of

alcohol on the night in question adversely affected his actions, reactions, conduct,

movement or mental processes or impaired his reactions to an appreciable degree,

thereby lessening his ability to operate his car on the night in question.

       a). Admissibility of Field Sobriety Tests at trial.

       {¶16} In State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155,

the Court held, “... HGN test results are admissible in Ohio without expert testimony so

long as the proper foundation has been shown both as to the administering officer's

training and ability to administer the test and as to the actual technique used by the officer

in administering the test.” Id. at ¶27. In accordance with R.C. 4511.19(D)(4)(b) HGN test

results are admissible when the test is administered in substantial compliance with testing

standards. Boczar, at ¶28.

       {¶17} The timing required to complete the various elements with respect to both

eyes of the HGN test as set forth in the NHTSA manual are approximate. State v.

Lominack, III, 5th Dist. Stark No. 2012CA00213, 2013-Ohio-2678, ¶31. Further, the

standard for admissibility is substantial not strict compliance. Id.

       {¶18} We note in the case at bar Ricer was reported to exhibit six clues.
Ashland County, Case No. 17-COA-023                                                            8


       {¶19} This Court must afford the decision of the trier of fact concerning credibility

issues the appropriate deference. We will not substitute our judgment for that of the trier

of fact on the issue of witness credibility unless it is patently clear that the fact finder lost

its way. State v. Parks, 3rd Dist. No. 15-03-16, 2004-Ohio-4023, at ¶ 13, citing State v.

Twitty, 2nd Dist. No. 18749, 2002-Ohio-5595, ¶ 114; State v. Ahmed, 5th Dist. No. 2007-

CA-00049, 2008-Ohio-389, ¶ 28. Looking at all of the evidence before us, we cannot say

that that had the HGN test results not been introduced, the outcome of his trial would

have been different. Having reviewed the record that Ricer cites in support of his claim

that the error was prejudicial, we find Ricer was not prejudiced by the admission of the

HGN test results.

       {¶20} Further, the Ohio Supreme Court has made clear that the officer may testify

regarding observations made during a defendant's performance of standardized field

sobriety tests even absent proof of “strict compliance.” State v. Schmitt, 101 Ohio St.3d

79, 2004-Ohio-37, 801 N.E.2d 446, (2004), ¶15. This distinction has been defined as

follows,

              The “results” of an HGN test include an officer’s opinion about

       whether a person “passed” or “failed” the test, the number of clues a person

       demonstrated on an HGN test, and, based upon the number of clues

       demonstrated during the HGN test, the statistical likelihood the person was

       under the influence of alcohol and had a BAC level over the legal limit.

       Bresson [51 Ohio St.3d 123] at 126-29; Kennedy [5th Dist. No. 2008 AP 04

       0026, 2009-Ohio-1398] at ¶ 27. In contrast, an officer’s observation that a

       defendant was unable to focus steadily on the stimulus during the HGN test
Ashland County, Case No. 17-COA-023                                                        9


     or swayed during a field sobriety test is the type of physiological factor about

     which an officer may testify even if the test was not administered in

     substantial compliance with the testing standards. Wickliffe v. Kirara, 11th

     Dist. No. 2006-L-172, 2007-Ohio-2304, ¶ 19; State v. Koteff, 5th Dist. No.

     04-COA-035, 2005-Ohio-1719, ¶ 5, 18. Thus, an officer’s observation that

     the defendant could not hold himself steady, lost his balance, stumbled or

     staggered when he walked, stepped off the line, could not follow simple

     directions, or used his arms for balance, is admissible as lay evidence of

     intoxication even if the final results of the field sobriety tests are inadmissible

     at trial due to a lack of substantial compliance with accepted testing

     standards. Schmitt [101 Ohio St.3d 29, 2004-Ohio-37, 801 N.E.2d 446] at

     syllabus; State v. Johnson, 7th Dist. No. 05 CO 67, 2007-Ohio-602, ¶ 25;

     State v. Green, 8th Dist. No. 88234, 2007-Ohio-1713, ¶ 53; Cleveland v.

     Hunter, 8th Dist. No. 91110, 2009-Ohio-1239, ¶ 62-63; State v. Lothes, 11th

     Dist. No. 2006-P-0086, 2007-Ohio-4226, ¶ 59; State v. Hammons, 12th

     Dist. No. CA2004-01-008, 2005-Ohio-1409, ¶ 5.               Admission of such

     evidence regarding the HGN test is no different from other nonscientific field

     sobriety tests. Boczar [113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d

     155] at ¶ 25-27.

            Here, because Officer Kirby did not conduct the HGN test in

     substantial compliance with accepted testing standards, the trial court

     properly suppressed evidence regarding the results of the HGN test and

     evidence regarding the technical or scientific basis for the test.
Ashland County, Case No. 17-COA-023                                                    10


       Nonetheless, because an officer’s observations are admissible as lay

       testimony to help the fact finder determine whether defendant was driving

       while intoxicated, Schmitt at ¶ 14, the trial court also properly ruled

       testimony to be admissible at trial concerning Officer Kirby’s observations

       of defendant during the HGN test, including whether defendant swayed, had

       trouble staying focused, failed to follow instructions, or was uncooperative.

       Schmitt; Boczar; Wickliffe; Koteff; Johnson.

Columbus v. Bickis, 10th Dist. Franklin No. 09AP-898, 2010-Ohio-3208, ¶ 16-17.

See also, State v. Reaver, 5th Dist. Muskingum No. CT2016-0054, 2017-Ohio-

4149, ¶ 20.

       {¶21} In the case at bar, Ricer’s conviction for OVI was supported by the

officer’s observation of glassy eyes, odor of alcohol, slurred speech, admission

that he had been drinking, and traffic violation. The jury also viewed a video that

showed in real time the officers’ interaction with Ricer.

       {¶22} Viewing this evidence in a light most favorable to the prosecution,

we conclude that a reasonable person could have found beyond a reasonable

doubt that Ricer’s consumption of alcohol on the night in question adversely

affected his actions, reactions, conduct, movement or mental processes or

impaired his reactions to an appreciable degree, thereby lessening his ability to

operate his car on the night in question. We hold therefore that the state met its

burden of production regarding OVI and, accordingly, there was sufficient evidence

to support Ricer’s conviction.

       2. Manifest weight of the evidence.
Ashland County, Case No. 17-COA-023                                                        11


       {¶23} The Ohio Supreme Court has emphasized: “‘[I]n determining whether the

judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.

2d 517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate

Review, Section 603, at 191–192 (1978). Furthermore, it is well established that the trial

court is in the best position to determine the credibility of witnesses. See, e.g., In re

Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212(1967).

       {¶24} In conducting a manifest weight of the evidence review, we may consider

the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-

4953, ¶ 6. However, in conducting that review, we note that ultimately, “the reviewing

court must determine whether the appellant or the appellee provided the more believable

evidence, but must not completely substitute its judgment for that of the original trier of

fact ‘unless it is patently apparent that the fact finder lost its way.’” State v. Pallai, 7th

Dist. Mahoning No. 07 MA 198, 2008–Ohio–6635, ¶ 31, quoting State v. Woullard, 158

Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964 (2nd Dist. 2004), ¶ 81.                 “Mere

disagreement over the credibility of witnesses is not a sufficient reason to reverse a

judgment on manifest weight grounds.” State v. Harris, 10th Dist. No. 13AP-770, 2014-

Ohio-2501, 25, discretionary appeal not allowed, 140 Ohio St.3d 1455, 2014-Ohio-4414,

citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7. In other words,

“[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions
Ashland County, Case No. 17-COA-023                                                     12


of events, neither of which is unbelievable, it is not our province to choose which one we

believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at ¶ 13,

citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999).

      {¶25} The jury as the trier of fact was free to accept or reject any and all of

the evidence offered by the parties and assess the witness’s credibility. “While the

trier of fact may take note of the inconsistencies and resolve or discount them

accordingly * * * such inconsistencies do not render defendant’s conviction against

the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist.

Franklin No. 99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens,

10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed,

the trier of fact need not believe all of a witness’ testimony, but may accept only

portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP–604, 2003–

Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964);

State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the

evidence may have been circumstantial, we note that circumstantial evidence has

the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259,

272, 574 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State

constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997).

      {¶26} In the case at bar, the jury heard the witnesses, viewed the evidence

and heard Ricer’s attorney’s arguments and explanations about Ricer and the
Ashland County, Case No. 17-COA-023                                                      13


officers’ actions. The jury also viewed a video that showed in real time the officers’

interaction with Ricer.

       {¶27} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Ricer of OVI.

       {¶28} Based upon the foregoing and the entire record in this matter we find Ricer’s

conviction is not against the sufficiency or the manifest weight of the evidence. To the

contrary, the jury appears to have fairly and impartially decided the matters before them.

The jury heard the witnesses, evaluated the evidence, and was convinced of Ricers guilt.

       {¶29} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime for which Ricer was convicted.

                                         CONCLUSION.

       {¶30} Ricer’s sole assignment of error is overruled.
Ashland County, Case No. 17-COA-023                                           14


      {¶31} The judgment of the Ashland County Municipal Court is affirmed.



By Gwin, J.,

Wise, P.J., and

Hoffman, J., concur
