[Cite as State v. Sewell, 2016-Ohio-7175.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-16-02

        v.

EUGENE SEWELL, JR.,                                        OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Marion Municipal Court
                              Trial Court No. TRC157543

                                       Judgment Affirmed

                             Date of Decision: October 3, 2016




APPEARANCES:

        Jeff Ratliff for Appellant

        Steven E. Chaffin for Appellee
Case No. 9-16-02



PRESTON, J.

       {¶1} Defendant-appellant, Eugene Sewell, Jr. (“Sewell”), appeals the

January 6, 2016 judgment entry of conviction and sentence of the Marion Municipal

Court. He argues that his conviction for operating a motor vehicle while under the

influence of alcohol, a drug of abuse, or a combination of them (“OVI”) is not

supported by sufficient evidence and is against the manifest weight of the evidence.

He also argues that the trial court erred by allowing the law enforcement officer to

testify to the effects of taking Tramadol and that he was denied his right to due

process and a fair trial when the trial court did not allow him to present his

explanation of his refusal to submit to sobriety testing. For the reasons that follow,

we affirm.

       {¶2} On September 13, 2015, Ohio State Patrol Sergeant Aaron Williams

(“Williams”) was on patrol and initiated a traffic stop of Sewell after Williams

observed Sewell make a left turn without signaling. After noticing signs that Sewell

was impaired, Williams administered some sobriety tests; however, Sewell refused

to take divided-attention-skills tests when asked by Williams. Williams arrested

Sewell for OVI.

       {¶3} Sewell was charged with OVI in violation of R.C. 4511.19(A)(1)(a), a

first-degree misdemeanor; OVI refusal with a prior conviction in violation of R.C.

4511.19(A)(2), a first-degree misdemeanor; and failure to signal in violation of R.C.

                                         -2-
Case No. 9-16-02


4511.39, a minor misdemeanor. (Doc. No. 1). On September 15, 2015, Sewell

entered pleas of not guilty to the offenses. (Doc. No. 4).

       {¶4} The case proceeded to a jury trial on January 6, 2016. (Jan. 6, 2016 Tr.

at 4). On the day of trial, Sewell filed a motion in limine to exclude testimony

regarding Tramadol; however, the trial court ultimately allowed the admission of

evidence concerning Tramadol. (Doc. No. 17). (See also Jan. 6, 2016 Tr. at 5, 68).

The jury found Sewell guilty of OVI and OVI refusal with a prior conviction. (Jan.

6, 2016 Tr. at 370). The trial court found Sewell guilty of the turn-signal violation.

(Id. at 383). The State moved to dismiss the OVI-refusal-with-a-prior-conviction

count, and the trial court granted the State’s motion. (Jan. 6, 2016 Tr. at 377-379);

(Doc. No. 23). The trial court sentenced Sewell on the OVI and turn-signal-

violation counts. (Jan. 6, 2016 Tr. at 381-384). (See also Doc. No. 18).

       {¶5} Sewell filed his notice of appeal on January 12, 2016. (Doc. No. 35).

He raises four assignments of error for our review. We will first consider together

his second and third assignments of error, followed by his first and fourth

assignments of error.

                            Assignment of Error No. II

       Because the State failed to establish a nexus between appellant’s
       alleged impaired condition and a drug of abuse, or a combination
       of alcohol and a drug of abuse, there was insufficient evidence to
       find appellant guilty of R.C. 4511.19(A)(1)(a), and R.C.
       4511.19(A)(2).


                                         -3-
Case No. 9-16-02


                           Assignment of Error No. III

       Because the State failed to establish a nexus between appellant’s
       alleged impaired condition and a drug of abuse, or a combination
       of alcohol and a drug of abuse and the ample evidence that was
       presented against the State, appellant must be found not guilty
       based on the manifest weight of the evidence.

       {¶6} In his second and third assignments of error, Sewell argues that his OVI

conviction is not supported by sufficient evidence and is against the manifest weight

of the evidence. Specifically, Sewell argues that the State was required to “prove a

nexus between the drug or drugs ingested and the impairment.” (Appellant’s Brief

at 10). Sewell argues, in other words, “The State must do more than simply present

evidence that Appellant had taken tramadol and showed signs of impairment, or that

Appellant had taken tramadol, mixed tramadol with alcohol, and showed signs of

impairment.” (Id.).

       {¶7} “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.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997), fn.4.

Accordingly, “[t]he 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


                                         -4-
Case No. 9-16-02


essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding

if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶8} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine 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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When applying the

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

heavily against the conviction,’ should an appellate court overturn the trial court’s


                                          -5-
Case No. 9-16-02


judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶9} In this appeal, Sewell challenges his OVI conviction under R.C.

4511.19(A)(1)(a). That statute provides, in relevant part: “No person shall operate

any vehicle * * * within this state, if, at the time of the operation, * * * [t]he person

is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C.

4511.19(A)(1)(a). On appeal, Sewell challenges only the “under the influence of

alcohol, a drug of abuse, or a combination of them” element of the offense.

Specifically, he argues that the State failed to prove a “nexus” between the Tramadol

Sewell ingested and his impairment. He argues that the State “presented a case of

alcohol and tramadol, in essence a combination case for the jury.” (Appellant’s

Reply Brief at 5). After reviewing the record in this case, we conclude that the State

presented sufficient evidence that Sewell was under the influence of alcohol alone

and that the manifest weight of the evidence does not weigh against the presence of

that element of the offense. See State v. May, 2d Dist. Montgomery No. 25359,

2014-Ohio-1542, ¶ 54. Accordingly, we need not and do not address Sewell’s

“nexus” argument. Rather, we will review the evidence presented at trial and then

analyze the sufficiency and manifest weight of the evidence concerning whether

Sewell was under the influence of alcohol.




                                          -6-
Case No. 9-16-02


         {¶10} Williams was the State’s lone witness at trial. (Jan. 6, 2016 Tr. at 94).

Williams testified that he has been a trooper with the Ohio State Highway Patrol

since 2004 and is trained in alcohol detection and field sobriety testing. (Id. at 95-

100).     He testified that, in particular, he has performed the horizontal gaze

nystagmus (“HGN”) test1 over 1,000 times, and he has arrested approximately 1,000

impaired drivers. (Id. at 100). Williams testified that he was on patrol in the early

morning hours of September 13, 2015. (Id. at 100-101). At 2:27 AM, he pulled

Sewell over after observing Sewell fail to use his turn signal when he stopped at a

stop sign on Farming Street and made a left turn to travel southbound on Main Street

in Marion, Ohio. (Id. at 103-104).

         {¶11} Williams testified that he approached the vehicle’s driver’s side and

noticed Sewell in the driver’s seat and “a much younger female in the front

passenger seat.” (Id. at 106). Williams testified, “While I’m up there, I notice a

very strong odor of alcoholic beverage coming from inside the vehicle, and at that

point also I notice an open Coors light beer can setting in the center console cup

holder.” (Id. at 107). According to Williams, he had Sewell step out of the vehicle

and into the front passenger seat of Williams’s cruiser, with Williams in the driver’s

seat. (Id. at 107-109). Williams described Sewell’s demeanor in the cruiser: “He


1
  “The HGN test is one of several field sobriety tests used by police officers in detecting whether a driver is
intoxicated. ‘Nystagmus’ is an involuntary jerking of the eyeball. ‘Horizontal gaze nystagmus’ refers to a
jerking of the eyes as they gaze to one side.” State v. White, 3d Dist. Allen No. 1-13-27, 2014-Ohio-555, ¶
26, fn. 5, quoting State v. Homan, 89 Ohio St.3d 421, 422 (2000), fn. 1.

                                                     -7-
Case No. 9-16-02


was very evasive, like wanting me to just hurry up and get him on his way. He

wanted to leave. He wanted to separate from me, was very evasive.” (Id. at 109).

Williams testified that he noticed “the strong odor of an alcoholic beverage coming

from [Sewell’s] person.” (Id. at 109-110). Williams added that Sewell’s eyes “were

bloodshot and glassy” and that Sewell’s speech was slurred. (Id. at 110, 126).

        {¶12} Williams testified that, before administering field sobriety tests on

Sewell, he asked Sewell if he took any medications or had any eye or head injuries,

and Sewell said “he took a Tramadol pill earlier that day” but had no eye or head

injuries. (Id. at 111). According to Williams, based on his training, “Tramadol is

a narcotic, and narcotic is one of the seven drug classifications * * * that people

become impaired by.” (Id. at 115). When asked by the prosecutor “whether

[Tramadol] would have any effect on the gaze nystagmus, Williams responded,

“No. Narcotics do not cause HGN.” (Id. at 115). Williams testified that he

administered the HGN test on Sewell and detected six out of six clues. (Id. at 117-

123). Williams added that, according to the National Highway Traffic Safety

Administration manual, “the probability that somebody is going to be over an .08

by alcohol is 88 percent when you observe six out of six.” (Id. at 123). According

to Williams, he next administered the vertical gaze nystagmus (“VGN”) test.2 (Id.).




2
 Williams testified that, whereas HGN refers to a horizontal jerking of the eyes as they gaze to one side,
VGN refers to a “vertical jerking of the eye.” (Jan. 6, 2016 Tr. at 124).

                                                   -8-
Case No. 9-16-02


Williams testified that he observed VGN in Sewell and that VGN can be “present

in high doses of alcohol.” (Id. at 124).

       {¶13} Williams testified that he asked Sewell whether he had consumed

alcohol. (Id. at 131). According to Williams, “[Sewell’s] first response was he did

not know how much he had, and then he changed it to a couple beers.” (Id.).

Williams testified that, “throughout the entire duration of [their] conversation,”

Sewell gave him more information about the alcohol Sewell consumed that day.

(Id.). According to Williams, Sewell told him that he consumed three beers “during

the Notre Dame football game” and that he consumed additional alcoholic

beverages at Club Rehab. (Id. at 131-132). When asked how much alcohol Sewell

consumed at Club Rehab, Williams testified:

       Well, it changed from he didn’t know at one point and then it changed

       to a couple beers, and then after he told me about him consuming three

       beers during the football game he stated he had a drink. I don’t know

       – I believe it was a beer and a glass of water.

(Id. at 132). When asked how many beers Sewell consumed, Williams responded,

“I had counted anywhere between, from what he stated, five or six beers.” (Id.).

       {¶14} The prosecutor asked Williams if the information Sewell provided

concerning his alcohol consumption was consistent with Williams’s observations of

Sewell during the traffic stop. (Id. at 132-134). Williams responded that he did not


                                           -9-
Case No. 9-16-02


know when the Notre Dame football game took place that day, but if it took place

during the “afternoon-evening hours,” then he would not have “observed [VGN]

and even six out of six clues with that time frame.” (Id. at 133). Williams added,

“It’s either his timing of the drinks, the amount of drinks he said was incorrect, or

the amount that he drank is incorrect.” (Id. at 134).

       {¶15} Williams testified that he administered some “nonstandardized tests”

on Sewell. (Id. at 134). Namely, he asked Sewell to “recite the alphabet from the

letter C to the letter X, and he did it correctly.” (Id.). When asked if this was a

divided-attention test, Williams said, “I don’t see how * * *. * * * [J]ust reciting the

alphabet there’s no divided attention.” (Id. at 134-135). According to Williams, he

asked Sewell if he wanted to perform the standardized divided-attention tests, and

Sewell refused. (Id. at 135-136). Williams testified that he placed Sewell under

arrest because, based on his training and experience, he believed Sewell “was

impaired to operate a motor vehicle safely.” (Id. at 136-137). Once at the jail,

Sewell also refused to take a breath test or a urine test. (Id. at 138). According to

Williams, Sewell “was very belligerent” and “upset about some money being

missing.” (Id. at 140).

       {¶16} On cross-examination, Sewell’s counsel asked Williams whether he

observed Sewell commit various traffic violations, and Williams ultimately

responded, “[T]he only issues I saw prior to approaching the vehicle was [sic] the


                                         -10-
Case No. 9-16-02


turn signal and improper turn.” (Id. at 159-167). Williams testified that when he

asked Sewell for his driver’s license, proof of insurance, and registration, Sewell

handed Williams his driver’s license. (Id. at 168-170). Williams testified that the

open container of Coors Light was full before he poured it out; however, Williams

could not recall whether the can was cold. (Id. at 170-171). Williams testified that

he found “in the back” of the vehicle another open container—a wine cooler—later

in his investigation during the stop. (Id. at 172-173). Williams testified that he

believed the female passenger in Sewell’s vehicle had been drinking. (Id. at 173).

Williams testified that the odor of alcoholic beverage “was about approximately the

same” when he was standing “right next to” Sewell’s side of the vehicle and when

he was in his cruiser with Sewell. (Id. at 174).

       {¶17} Williams admitted that he “didn’t notice any mannerisms abnormal

with [Sewell] getting out of the car.” (Id. at 178). Williams added that Sewell did

not have any balance issues walking from Sewell’s vehicle to the cruiser; however,

Williams testified, “That’s the only observation of walking I had.” (Id. at 180).

Williams acknowledged that, as he and Sewell were walking from Sewell’s vehicle

to Williams’s cruiser, Sewell understood what Williams was saying and was

following Williams’s directions “[f]or the most part.” (Id. at 181).

       {¶18} When asked about his administration of the nystagmus tests on Sewell,

Williams reiterated, “Tramadol is a narcotic analgesic and it does not cause HGN.”


                                        -11-
Case No. 9-16-02


(Id. at 203). Williams testified that he did not verify the milligrams of Sewell’s

Tramadol prescription or who prescribed the medication to Sewell. (Id.). Williams

added, “I do not know what time he took his Tramadol.” (Id. at 204). Williams

testified, “[Sewell] was arrested on the basis of operating a motor vehicle under the

influence of alcohol or drugs, or a combination of the two.” (Id.). When asked

when Sewell drank “his beers at Club Rehab,” Williams responded:

       He gave me multiple stories. * * * He told – I don’t know about which

       time was which beer. I know he stated he didn’t know how much he

       had to drink. I know that he stated then that he’d had a couple of

       beers. Then I know he stated he had three beers during the Notre

       Dame game, and then I know he said – he changed his story to

       drinking one beer and one glass of water at Club Rehab. I believe he

       said that drink was approximately 1:00 a.m.

(Id. at 205-206). Williams testified that he did not have any evidence that Sewell

ingested Tramadol and consumed alcohol simultaneously. (Id. at 206). Nor does

Williams know how long Tramadol remains in one’s system. (Id.). Williams

clarified, “He took the Tramadol earlier in the day and then he drank earlier in the

day as well. Whether he took it simultaneously or several hours after one or the

other, the medication is still going to be in your system.” (Id.). Williams testified




                                        -12-
Case No. 9-16-02


that, after the arrest, he did not research information concerning Tramadol. (Id. at

208).

        {¶19} Williams testified that, when he asked Sewell to recite the alphabet

from C to X and to count backwards from 57 to 42—the “nonstandardized tests”

that Williams administered—Sewell performed the tests correctly. (Id. at 211-213).

Williams testified that Sewell delayed in beginning the alphabet test after receiving

the instructions from Williams, but when he did begin the test, he recited all of the

letters from C to X. (Id. at 244-245). When Sewell’s counsel asked Williams about

his conversation with the passenger in Sewell’s vehicle, Williams testified, “She

stated she saw him drink two shots of liquor” at the bar. (Id. at 252).

        {¶20} The State rested, and Sewell moved under Crim.R. 29 for acquittal,

arguing that the State did “not establish a nexus between the Defendant’s impaired

condition and a drug of abuse,” Tramadol. (Id. at 266-267). Sewell’s counsel

concluded, “There is no sufficient evidence to find the Defendant guilty of any OVI

involving Tramadol.” (Id. at 268-269). Counsel for the State responded, “There’s

been plenty of evidence. Mr. Sewell’s own admission of consumption of alcohol

and also the observations of the officer with his experience and training. So there’s

plenty of evidence to find him guilty.” (Id. at 269). The trial court overruled

Sewell’s Crim.R. 29 motion. (Id.).




                                        -13-
Case No. 9-16-02


       {¶21} Sewell testified in his defense. (Id. at 283). He testified that, on

September 12, 2015, he woke up at 4:10 AM and arrived at work before his workday

began at 6:00 AM. (Id. at 286-287). According to Sewell, he got off work at noon,

went home, and immediately took a Tramadol as prescribed to him for back pain.

(Id. at 287-288). Sewell testified that he consumed three 12-ounce, Coors Light

beers while watching the Notre Dame football game around 3:30 PM that day. (Id.

at 289-290). According to Sewell, he ate a burger and either fries or fried pickles.

(Id. at 290). He testified that, after the football game, he went to “a buddy’s house”

for “the Mayweather fight.” (Id.). After that, at around 10:00 PM, Sewell went to

Marion because his “buddy * * * was doing a show” at Club Rehab. (Id. at 285,

290-292). Sewell picked up “[a] friend of [his]” on the way to Marion. (Id. at 293).

According to Sewell, they were at Club Rehab until a little after 2:00 AM on

September 13, 2015 and “closed the place down.” (Id. at 292). Sewell testified that

he had two beers at Club Rehab. (Id. at 292-293).

       {¶22} Sewell testified that he left Club Rehab and “thought [he] was going

home.” (Id. at 294). Sewell testified that the open can of beer in his car was in the

car since when he left his “buddy’s house.” (Id. at 295-296). When asked if the

beer can was empty or nearly empty, Sewell responded, “It was full. I think I took

one drink out of it. It wasn’t good.” (Id. at 296). When asked why he refused to

perform additional field sobriety tests, Sewell responded, “To me, I figured if they


                                        -14-
Case No. 9-16-02


were important enough he wouldn’t have been wasting my time with the other three

tests that he said weren’t important.” (Id. at 298). Sewell testified that, when

Williams pulled him over on September 13, 2015, he was not impaired. (Id. at 300).

Sewell testified that he refused to take the chemical tests because he “was upset”

and “really, really angry at the officer” because of “the fashion in which [he] got

arrested.” (Id. at 301). Sewell added, “I thought [Williams] could have approached

my situation a little bit better.” (Id. at 303).

       {¶23} Sewell testified that he has prior OVI offenses on his record. (Id. at

298). When asked how many, Sewell responded, “Two, maybe.” (Id. at 298-299).

According to Sewell, the first occurred when Sewell was 21 years old, and he “went

in there and told them [he] was guilty and that was that.” (Id. at 299). Sewell

testified that the second occurred “maybe five years ago” and that he “pleaded no

contest because [he] was guilty.” (Id. at 300).

       {¶24} On cross-examination, Sewell testified that he does not drink alcohol

daily and instead drinks on “[s]pecial occasions,” such as “big football games.” (Id.

at 306-307). When asked if he was “careful about how many beers [he] was

drinking that day,” Sewell responded, “Not real careful, just not in the mood per se.

After the football game, it was kind of blah.” (Id. at 309). Sewell testified that he

takes Tramadol “[n]ot even monthly” and only when he does a “particular job” that




                                           -15-
Case No. 9-16-02


“puts a strain on [his] back.” (Id. at 310). He testified that he does not know how

long Tramadol “last[s] when [he] take[s] one.” (Id. at 314).

       {¶25} We first review whether the State presented sufficient evidence that

Sewell was “under the influence of alcohol” when he operated his vehicle on

September 13, 2016.       See State v. Velez, 3d Dist. Putnam No. 12-13-10,

2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999

WL 355190, *1 (Mar. 26, 1999). We conclude that it did. The State presented

evidence showing that, after Williams pulled Sewell over for failing to signal,

Williams noticed open containers of alcohol in the vehicle. Williams noticed a

“strong odor” of alcoholic beverage coming from Sewell’s person. See State v.

Williams, 5th Dist. Stark No. 2015CA00211, 2016-Ohio-3364, ¶ 23. Williams also

observed that Sewell’s eyes were “bloodshot and glassy” and that Sewell’s speech

was slurred. See State v. Hess, 9th Dist. Wayne No. 12CA0064, 2013-Ohio-4268,

¶ 15. Sewell admitted to drinking alcohol, was evasive and changed his story during

the stop, and exhibited belligerent behavior during the stop. See id.; State v.

Furguson, 1st Dist. Hamilton No. C-130173, 2013-Ohio-5388, ¶ 15.             Sewell

exhibited six out of six clues during the HGN test, and he exhibited VGN as well.

See State v. Reynolds, 2d Dist. Greene No. 2012-CA-64, 2014-Ohio-3642, ¶ 46.

Williams’s testimony is corroborated by the video of the traffic stop, which allowed

the jurors to observe Sewell’s demeanor for themselves. See State v. Nash, 5th Dist.


                                       -16-
Case No. 9-16-02


Stark No. 2014CA00159, 2015-Ohio-3361, ¶ 20. Viewing the evidence in a light

most favorable to the prosecution, a rational trier of fact could have found that

Sewell was under the influence of alcohol.

       {¶26} We next address whether Sewell’s OVI conviction is against the

manifest weight of the evidence—specifically, whether the manifest weight of the

evidence weighs against the presence of the “under the influence of alcohol”

element. See Velez at ¶ 76. Weighing in favor of Sewell’s OVI conviction is the

evidence we mentioned above in addressing the sufficiency of the evidence.

Weighing against Sewell’s conviction is Williams’s testimony that Sewell was

cooperative at first, exited his vehicle without any abnormal mannerisms,

understood what Williams was saying, and followed Williams’s directions for the

most part. Sewell walked from his vehicle to the cruiser without any balance issues;

however, as Williams noted, that was the only observation he had of Sewell

walking. When asked to do so by Williams, Sewell correctly performed the

nonstandardized tests of reciting the alphabet from C to X and counting backwards

from 57 to 42; however, Sewell delayed in beginning the alphabet test. Sewell

testified that he consumed three 12-ounce beers during Notre Dame’s 3:30 PM

football game on September 12, 2013, two beers at Club Rehab, and one sip out of

the open-container beer that was in his vehicle’s console when Williams pulled him

over. In other words, according to Sewell, he consumed just over five beers in an


                                       -17-
Case No. 9-16-02


approximately 11-hour period; however, as we noted above, Sewell’s story

concerning the amount of alcohol he consumed changed during the stop. Finally,

Sewell testified that he was not impaired when Williams pulled him over.

       {¶27} The evidence weighing against Sewell’s OVI conviction is

underwhelming compared to the evidence of multiple indicators that he operated his

vehicle while under the influence of alcohol. Moreover, the jury was “in the best

position to take into account inconsistencies, along with the witnesses’ manner and

demeanor, and determine whether the witnesses’ testimony is credible.” State v.

Miller, 3d Dist. Seneca No. 13-12-52, 2013-Ohio-3194, ¶ 48, citing State v.

Thompson, 3d Dist. Crawford No. 3-10-23, 2011-Ohio-3631, ¶ 13, citing Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, because the jury

was in the best position to resolve issues of credibility, and because evidence weighs

in favor of the conviction, we cannot conclude that 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. Sewell’s OVI conviction is not against the

manifest weight of the evidence.

       {¶28} Sewell’s second and third assignments of error are overruled.

                            Assignment of Error No. I

       The trial court erred by allowing a police officer to testify as to
       the effects of Tramadol and the effects of Tramadol mixed with
       alcohol.


                                        -18-
Case No. 9-16-02


       {¶29} In his first assignment of error, Sewell argues that the trial court erred

by allowing the State “to present expert testimony regarding tramadol and its side

effects, and its side effects when mixed with alcohol through Trooper Williams.”

(Appellant’s Brief at 8). Sewell argues, in other words, “The trial court allowed

Trooper Williams to testify to information that would be properly reserved for an

expert.” (Id.). Also under this assignment of error, Sewell argues that the trial court

erred by not giving the jury the limiting instruction requested by Sewell concerning

the evidence of Sewell’s ingestion of Tramadol.

       {¶30} A trial court has broad discretion in determining whether to admit or

exclude evidence. State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶

62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). Accordingly, a trial court’s

ruling on the admissibility of evidence will not be disturbed on appeal absent an

abuse of discretion that has created material prejudice. Id., citing Issa at 64.

Similarly, “‘[w]hen reviewing a court’s refusal to give a requested jury instruction,

an appellate court considers whether the trial court’s refusal to give said instruction

was an abuse of discretion under the facts and circumstances of the case.’” State v.

Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 31, quoting State v.

Kunz, 6th Dist. Wood No. WD-10-047, 2011-Ohio-3115, ¶ 30, citing State v.

Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion suggests the trial




                                         -19-
Case No. 9-16-02


court’s decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157 (1980).

       {¶31} To constitute reversible error, the improper admission of evidence or

the failure to properly instruct the jury must affect a substantial right of the accused.

State v. Carr, 3d Dist. Union No. 14-11-20, 2012-Ohio-1679, ¶ 31, citing State v.

Wegmann, 3d Dist. Allen No. 1-06-98, 2008-Ohio-622, ¶ 41, Crim.R. 52(A), and

Evid.R. 103(A); State v. Noggle, 140 Ohio App.3d 733, 749 (3d Dist.2000).

“‘“[T]he cases where imposition of harmless error is appropriate must involve either

overwhelming evidence of guilt or some other indicia that the error did not

contribute to the conviction.”’” State v. Schaeffer, 3d Dist. Seneca No. 13-14-34,

2015-Ohio-3531, ¶ 87, quoting State v. Noor, 10th Dist. Franklin No. 13AP-165,

2014-Ohio-3397, ¶ 53, quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn.

5. “Errors not affecting a defendant’s substantial rights must be disregarded.” Carr

at ¶ 31, citing State v. Schofield, 4th Dist. Washington Nos. 01CA36 and 02CA13,

2002-Ohio-6945, ¶ 138, citing Crim.R. 52(A). “In other words, an appellate court

will not reverse judgments for an erroneous evidentiary ruling unless it appears that

the defendant’s rights have been prejudiced.” Id., citing Schofield at ¶ 138.

       {¶32} The record in this case reflects that Williams testified that, before

administering the HGN test on Sewell, he asked Sewell whether he had taken any

medications. (Jan. 6, 2016 Tr. at 111). According to Williams, Sewell responded


                                          -20-
Case No. 9-16-02


that “he took a Tramadol pill earlier that day.” (Id.). Counsel for the State asked

whether Tramadol would affect the HGN test. (Id. at 112-115). Over Sewell’s

objection, Williams testified that “Tramadol is a narcotic,” that “narcotic is one of

the seven drug classifications * * * that people become impaired by,” and that

“[n]arcotics do not cause HGN.” (Id. at 115). On cross-examination, Sewell’s

counsel questioned Williams concerning whether Williams verified the dose of

Tramadol Sewell ingested and when Sewell ingested the Tramadol. (Id. at 203-

204). When instructing the jury, the trial court stated that, to find Sewell guilty of

OVI, it was required to find beyond a reasonable doubt that he “operated a motor

vehicle while under the influence of alcohol and/or drug of abuse.” (Id. at 354).

The trial court instructed the jury “that Tramadol is a ‘drug of abuse.’” (Id. at 355).

       {¶33} Even assuming without deciding that the trial court abused its

discretion by allowing Williams to testify to the effects of Tramadol and by failing

to give the jury Sewell’s requested limiting instruction concerning Tramadol, we

conclude that any error was harmless because—disregarding all evidence related to

Tramadol—the State presented substantial evidence that Sewell operated his vehicle

while under the influence of alcohol. See State v. Robertson, 5th Dist. Richland No.

11CA0046, 2012-Ohio-2955, ¶ 36 (“Based on the substantial evidence that she was

driving under the influence of alcohol admitted at trial, any error in admitting the




                                         -21-
Case No. 9-16-02


results of the HGN test is harmless.”). We discussed that evidence above in our

treatment of Sewell’s second and third assignments of error.

       {¶34} Sewell’s first assignment of error is overruled.

                           Assignment of Error No. IV

       Appellant was denied his right to due process and a fair trial when
       the trial court did not allow defendant to present his explanation
       to his refusal to submit to testing and to present and attack the
       bias and credibility of the trooper.

       {¶35} In his fourth assignment of error, Sewell argues that he “was not

allowed to present a complete defense when the trial court did not let him provide

complete explanations for his refusal to submit to testing.” (Appellant’s Brief at

19). Specifically, Sewell argues that the prosecutor mentioned Sewell’s refusal

twice in his closing argument, but “the jury was able to hear only the explanation

that Sewell was upset and really angry at the officer.” (Id. at 22). Sewell argues

that the trial court did not allow him to elaborate concerning the reasons why he was

upset and angry with the officer—namely, that Williams argued with Sewell

“regarding his possible infidelity and morality”; that there was $500 missing from

Sewell’s wallet during the traffic stop; that Williams did not assist him in retrieving

the missing money; and that Williams answered a phone call from Sewell’s wife to

Sewell’s cell phone without permission. (Id.). Sewell also argues that the trial court

“did not allow further inquiry into the credibility and bias of Trooper Williams

regarding the morality of the circumstances surrounding the arrest” and regarding

                                         -22-
Case No. 9-16-02


the ongoing investigation initiated by Sewell against Williams concerning the

missing money. (Id. at 23). Finally, Sewell argues that these errors by the trial court

and other errors amount to “cumulative error” warranting reversal of Sewell’s

conviction. (Id. at 24).

       {¶36} Notwithstanding the title of Sewell’s fourth assignment of error, our

review of his argument indicates that he is challenging the trial court’s evidentiary

rulings. As we stated above, a trial court has broad discretion in determining

whether to admit or exclude evidence, and a trial court’s ruling concerning the

admissibility of evidence will not be overturned absent an abuse of discretion that

has created material prejudice. Heft, 2009-Ohio-5908, at ¶ 62, citing Issa, 93 Ohio

St.3d at 64. Moreover, even if a trial court abuses its discretion in admitting or

excluding evidence, to constitute reversible error, the erroneous evidentiary ruling

must affect a substantial right of the accused. Carr, 2012-Ohio-1679, at ¶ 31, citing

Wegmann, 2008-Ohio-622, at ¶ 41, Crim.R. 52(A), and Evid.R. 103(A). Under the

doctrine of cumulative error, “a conviction will be reversed when the cumulative

effect of errors in a trial deprives a defendant of a fair trial even though each of the

instances of trial-court error does not individually constitute cause for reversal.”

State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 230. “‘To find cumulative

error, a court must first find multiple errors committed at trial and determine that

there is a reasonable probability that the outcome below would have been different


                                         -23-
Case No. 9-16-02


but for the combination of the harmless errors.’” State v. Stober, 3d Dist. Putnam

No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. Putnam No. 12-

11-06, 2012-Ohio-1467, ¶ 36.

         {¶37} We begin by pointing out that Sewell was allowed to testify that he

refused to submit to field-sobriety and chemical testing because he was angry and

upset with Williams. As Sewell admits, his counsel was allowed to elicit on cross-

examination that Williams “got into an argument with Sewell concerning infidelity

and having an affair.” (Appellant’s Brief at 23). Nevertheless, assuming without

deciding that the trial court abused its discretion by not allowing Sewell to elaborate

concerning the reasons for his refusal and by limiting his counsel’s cross-

examination of Williams, we conclude that any error was harmless because, as we

discussed above, the State presented substantial evidence that Sewell drove his

vehicle while under the influence of alcohol independent of any evidence of drug

usage.     See Robertson, 2012-Ohio-2955, at ¶ 36.         We also reject Sewell’s

cumulative-error argument because that doctrine is not applicable. Even assuming

without deciding that the trial court erred in this case, none of the errors, whether

considered individually or cumulatively, resulted in prejudice. See Pickens at ¶ 231.

In short, Sewell received a fair trial. See id.

         {¶38} Sewell’s fourth assignment of error is overruled.




                                          -24-
Case No. 9-16-02


       {¶39} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




                                        -25-
