[Cite as State v. Thomas, 2011-Ohio-1987.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :            C.A. CASE NO. 2010 CA 48

v.                                                       :            T.C. NO.   10CR42

KEITH R. THOMAS                               :               (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                   :

                                                         :

                                             ..........

                                             OPINION

                         Rendered on the          22nd       day of      April   , 2011.

                                             ..........

ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

RYAN SHANE REED, Atty. Reg. No. 0084670, P. O. Box 158, Hilliard, Ohio 43026
     Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Keith R. Thomas appeals his conviction for two counts

of operating a vehicle while under the influence of alcohol or drugs (OVI), in violation of

R.C. 4511.19(A)(1)(a) and 4511.19(A)(2), a felony of the fourth degree.

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        {¶ 2} In the early morning hours of January 12, 2010, Officers Duwayne Hush and

Matt Parr of the Springfield Police Department were on patrol on the southwest side of

Springfield, Ohio, when they observed a vehicle driven by Thomas parked on the west side

of Western Avenue, facing southbound. As the officers approached in their cruiser, they

observed the driver of the subject vehicle make an illegal u-turn and then proceed westbound

on High Street at a high rate of speed. Officer Hush testified that they began following the

vehicle down High Street. The officers also ran the vehicle’s license plate and were advised

that they needed to confiscate the plates on behalf of the Bureau of Motor Vehicles (BMV).

Officer Hush activated the flashing lights on his cruiser and attempted to initiate a traffic

stop.

        {¶ 3} Thomas eventually pulled his vehicle over in the parking lot of a Speedway

Gas Station, and the officers pulled up behind him. Having been alerted over the radio,

Officer Roger Jenkins pulled in behind Officers Hush and Parr in a separate vehicle in order

to assist with the stop. After exiting his cruiser, Officer Parr observed that there were four

individuals in the subject vehicle including the driver, Thomas. Officer Parr testified that

upon approaching the vehicle he detected the strong odor of alcohol coming from Thomas.

Officer Parr asked for his driver’s license, and Thomas admitted that his license had been

suspended. Officer Parr then asked Thomas to step out of the vehicle.

        {¶ 4} Since Thomas was wearing a bulky winter coat, Officer Parr patted him down

for weapons. While Officer Parr did not find any weapons, he did discover an open,

partially consumed bottle of beer in Thomas’ left breast pocket. Officer Parr testified that

he placed the open beer bottle on the roof of the vehicle and moved Thomas towards his
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cruiser.

           {¶ 5} Officer Jenkins testified that while Thomas was speaking with Officer Parr,

he detected the strong odor of alcohol on Thomas’ breath as he spoke. Additionally, Officer

Jenkins testified that he observed that Thomas’ eyes were glassy and bloodshot, that he was

unsteady on his feet and had trouble maintaining his balance, and that his speech was

slurred.

           {¶ 6} After Officer Parr led Thomas back to the front of his cruiser, he conducted a

the horizontal gaze nystagmus (HGN) field sobriety test on Thomas. Although he testified

that he was not sure that he turned off the flashing lights on his cruiser on this specific

occasion, Officer Parr stated that it was normal operating procedure to turn off the lights

during the test since it could affect the performance of the individual being tested. During

the performance of the HGN test, Officer Parr noted lack of smooth pursuit, nystagmus at

maximum deviation, and nystagmus prior to forty-five degrees in each eye for a total of six

clues. Officer Parr opined, that based upon all of the foregoing, that the Defendant was

impaired. Officer Parr asked Thomas to submit to additional field sobriety tests, but Thomas

refused.

           {¶ 7} Thomas was subsequently arrested for operating a vehicle while intoxicated

and transported to the Clark County Jail. Thomas later refused a breathalyzer test at the jail.

 In light of their observations during the stop, Officers Parr and Jenkins both testified that

they believed Thomas was intoxicated.

           {¶ 8} On January 19, 2010, Thomas was indicted for two counts of OVI, in

violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2). On January 22, 2010, Thomas plead
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not guilty to the charged offenses.

       {¶ 9} After a jury trial held on May 3, 2010, Thomas was found guilty of both

counts in the indictment. Additionally, the jury found that Thomas had previously been

convicted of at least three violations of R.C. 4511.19(A) or (B) within the last six years of

the instant offense. At sentencing on May 5, 2010, the State elected to proceed on Count 2

in the indictment, the violation of R.C. 4511.19(A)(2). The court sentenced Thomas to

thirty months in prison and ordered him to pay a fine of $1,350.00.           The court also

suspended Thomas’ driver’s license for ten years.

       {¶ 10} It is from this judgment that Thomas now appeals.

                                                    II

       {¶ 11} Thomas’ first assignment of error is as follows:

       {¶ 12} “DEFENDANT              WAS     DENIED        HIS     CONSTITUTIONALLY

GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGH

COUNSEL’S FAILURE TO FILE A COLORABLE MOTION TO SUPPRESS

EVIDENCE.”

       {¶ 13} In his first assignment, Thomas contends that he received ineffective

assistance when his trial counsel failed to file a motion to suppress prior to trial. Thomas

argues that the evidence established that Officer Parr failed to substantially comply with the

standards set forth by the National Highway Traffic Safety Administration (NHTSA) when

he performed the HGN field sobriety test on Thomas. Specifically, Thomas asserts that

since the evidence did not conclusively establish that Officer Parr turned off his cruiser’s

flashing lights while he administered the HGN test to Thomas, the results of the test were
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unreliable. Accordingly, Thomas argues that had his counsel filed a motion to suppress the

results of the HGN test, the court would have granted the motion and he would not have

been prejudiced at trial by the admission of the evidence.

       {¶ 14} To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel's conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley

(1989), 42 Ohio St.3d 136. Trial counsel is entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688.

Deficient performance means that claimed errors were so serious that the defense attorney

was not functioning as the “counsel” that the Sixth Amendment guarantees. State v. Cook

(1992), 65 Ohio St.3d 516, 524.

       {¶ 15} “The failure to file a suppression motion is not per se ineffective assistance of

counsel.   State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448.

Rather, trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of

counsel only if the failure to file the motion caused Defendant prejudice; that is, when there

is a reasonable probability that, had the motion to suppress been filed, it would have been

granted.” (Citations omitted.) State v. Wilson, Clark App. 08CA0445, 2009-Ohio-2744, ¶11.

 See, also, State v. Nields, 93 Ohio St.3d 6, 34, 2001-Ohio-1291.

       {¶ 16} As previously stated, Thomas asserts that the HGN test performed by Officer

Parr was not administered in accordance with the regulations promulgated by the NHTSA
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because his performance was negatively affected by the flashing strobe lights atop Officer

Parr’s cruiser. NHSTA regulations direct that a suspect should be faced away from the

flashing lights when the HGN test is conducted. In the instant case, Officer Parr testified

that he conducted the HGN test at the front of his cruiser with Thomas facing towards the

hood of the vehicle. Officer Parr further testified that it was standard procedure to turn off

the cruiser’s flashing lights before conducting the test, but he could not remember whether

he had done so when he performed the HGN test on Thomas. Officer Parr testified that he

was aware that the flashing lights could affect the testing. Officer Parr acknowledged that

had he, in fact, left the flashing lights on during the test, the results of the tests indicating

that Thomas was intoxicated would be unreliable since he would have been directly facing

the lights.

        {¶ 17} Initially, we note that defense counsel’s failure to file a motion to suppress

the result of the HGN test may have been a matter of reasonable trial strategy, which does

not constitute deficient performance. State v. King, Montgomery App. No. 18463,

2002-Ohio-2929, citing State v. Shaw (1999), 134 Ohio App.3d 316, 320. While Officer

Parr candidly testified that he did not remember whether he turned off the overhead flashing

lights, he did state it was his standard operating procedure to do so when administering the

HGN test to an OVI suspect. Based on Officer Parr’s testimony regarding his normal

procedure, it is possible that the trial court would have found that the officers conducted the

test in substantial compliance with NHTSA regulations and overruled a motion to suppress.

        {¶ 18} Simply put, filing a motion to suppress is not without risks, and the likelihood

of success of such a motion was not a given in this case. State v. Brown, 115 Ohio St.3d 55,
                                                                                            7

69, 2007-Ohio-4837.       At a suppression hearing, Officer Parr’s testimony may have

necessitated Thomas to testify regarding the circumstances surrounding the administration of

the HGN test. This could have, in turn, provided the State with potential impeachment

evidence if Thomas chose to testify at trial. Thus, a reasonable strategy, instead of filing a

motion to suppress with its inherent risks, was to question the reliability of the HGN test

before the jury, which, in fact, defense counsel did.

       {¶ 19} Moreover, even if Thomas’ counsel had filed a motion to suppress the results

of the HGN test and the trial court granted the motion, we cannot find that the result of the

trial would have been any different because the State presented overwhelming evidence of

Thomas’ guilt, in addition to the results of the HGN test. Officer Parr testified that he

observed Thomas make an illegal u-turn before he pulled him over. Officer Parr also

testified that he discovered an open, partially consumed bottle of beer in Thomas’ breast

pocket upon searching him for weapons. Officer Jenkins testified that he detected the

strong odor of alcohol on Thomas’ breath after he exited his vehicle and spoke to the

officers. Officer Jenkins further testified that Thomas was unsteady on his feet and had

trouble maintaining his balance. Thomas’ eyes were also bloodshot and glassy. Officers

Parr and Jenkins both testified that based upon their observations, Thomas was under the

influence of alcohol. Accordingly, given the overwhelming evidence of Thomas’ guilt,

aside from the results of the HGN test, we cannot say that had defense counsel filed a motion

to suppress, there is a reasonable probability that Thomas would have been acquitted.

       {¶ 20} Thomas’ first assignment of error is overruled.

                                                  III
                                                                                              8

       {¶ 21} Thomas’ second and final assignment of error is as follows:

       {¶ 22} “THE JURY’S VERDICT SHOULD BE REVERSED AS APPELLANT’S

CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶ 23} In his final assignment, Thomas argues that his conviction for OVI was

against the manifest weight of the evidence. Specifically, he asserts that the State adduced

no evidence that he was driving recklessly or erratically before he was pulled over. Thomas

also argues that the smell of alcohol testified to by Officer Parr could have come from any of

the other three occupants of the vehicle who were all drinking on the morning in question.

Lastly, Thomas argues that Officer Parr’s testimony regarding the results of the HGN test

prejudicially influenced and confused the jury.

       {¶ 24} “When an appellate court analyzes a conviction under the manifest weight of

the evidence standard it must review the entire record, weigh all of the evidence and all the

reasonable inferences, consider the credibility of the witnesses and determine whether in

resolving conflicts in the evidence, the fact finder clearly lost its way and created such a

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

(Internal citations omitted). Only in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Dossett, Montgomery App. No. 20997, 2006-Ohio-3367, ¶ 32.

       {¶ 25} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass (1997), 10 Ohio St.2d 230, 231.

 “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious

exercise of the discretionary power of a court of appeals to find that a judgment is against the
                                                                                                9

manifest weight of the evidence requires that substantial deference be extended to the

factfinder’s determinations of credibility. The decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997),

Montgomery App. No. 16288.

       {¶ 26} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.

       {¶ 27} After a thorough review of the record, we find that Thomas’ convictions for

OVI are not against the manifest weight of the evidence. The credibility of the witnesses

and the weight to be given their testimony are matters for the jury to resolve. Thomas

presented only minimal evidence in the form of the testimony of Amber Martin, who simply

maintained that Thomas was not under the influence of alcohol when he was pulled over.

She also testified that the police did not turn off the flashing lights when they administered

the HGN test on Thomas. The jury did not lose its way simply because it chose to believe

the State’s witnesses, namely Officers Parr and Jenkins. As stated in the prior assignment,

the State presented overwhelming evidence of Thomas’ guilt, aside from the results of the

HGN test. Having reviewed the entire record, we cannot clearly find that the evidence

weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.

       {¶ 28} Thomas’ final assignment of error is overruled.

                                                   IV

       {¶ 29} All of Thomas’ assignments of error having been overruled, the judgment of
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the trial court is affirmed.

                                    ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Andrew R. Picek
Ryan Shane Reed
Hon. Douglas M. Rastatter
