[Cite as State v. Godoy, 2019-Ohio-4625.]


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

STATE OF OHIO                                        C.A. No.      18AP0026

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PETE J. GODOY                                        WAYNE COUNTY MUNICIPAL COURT
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2017 TR-C 005564

                                 DECISION AND JOURNAL ENTRY

Dated: November 12, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Pete Godoy, appeals from his convictions in the Wayne County

Municipal Court. This Court affirms.

                                                I.

        {¶2}     Sergeant Brad Bishop of the Ohio State Highway Patrol (“OSHP”) responded to a

crash call on Interstate-71 and encountered Mr. Godoy alone in a considerably damaged truck on

the side of the road. According to the sergeant, Mr. Godoy admitted to drinking one beer at

dinner hours earlier and exhibited several indicators of alcohol impairment.        Mr. Godoy

performed poorly on three field sobriety tests and was arrested for operating a vehicle while

under the influence of alcohol (“OVI”) and failure to control. He refused to submit to both

breathalyzer and urine testing.

        {¶3}     According to Mr. Godoy, he was not under the influence of alcohol while driving

that night, but medical issues and new prescription medication may have caused him to lose
                                                2


consciousness while driving, which led to the accident. He set forth evidence that he suffered a

concussion during the accident, and the concussion symptoms were misinterpreted by Sergeant

Bishop as symptoms of alcohol impairment.

       {¶4}    Following a trial, a jury found Mr. Godoy guilty of OVI and the trial court found

him guilty of failure to control. The court sentenced him to thirty days in jail for OVI, but

suspended twenty-seven days and permitted Mr. Godoy to attend a three-day driver intervention

program in lieu of serving three days in jail. The court further ordered a one-year license

suspension and a $375.00 fine. It placed him on one year of community control and ordered

twenty-four hours of community service. The court also ordered a $100.00 fine for failure to

control. The court granted Mr. Godoy a stay of execution of his sentence.

       {¶5}    Mr. Godoy now appeals from his convictions and raises three assignments of

error for this Court’s review.

                                               II.

                                 ASSIGNMENT OF ERROR ONE

       THE MANIFEST WEIGHT OF THE EVIDENCE DEMONSTRATED THAT
       APPELLANT EXPERIENCED A LOSS OF CONSCIOUSNESS BROUGHT
       ON BY A CARDIAC EVENT THAT CAUSED HIM TO LOSE CONTROL OF
       HIS VEHICLE AND CRASH, THEREBY RESULTING IN A CONCUSSION.
       APPELLANT WAS EXHIBITING SIGNS OF A CONCUSSION AS OPPOSED
       TO IMPAIRMENT BY ALCOHOL. THIS COURT, SITTING AS THE
       THIRTEENTH JUROR, MUST REVERSE THE TRIAL COURT’S
       JUDGMENT TO PREVENT A MANIFEST MISCARRIAGE OF JUSTICE.

       {¶6}    In his first assignment of error, Mr. Godoy argues that his OVI conviction was

against the manifest weight of the evidence. Specifically, he claims the greater weight of the

evidence supports his theory that he suffered a “cardiac event” while driving, lost consciousness,

crashed his vehicle, and suffered a concussion, the symptoms of which Sergeant Bishop

misidentified as alcohol impairment. We disagree.
                                                 3


       {¶7}    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). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶8}    Mr. Godoy was convicted of OVI under R.C. 4511.19(A)(1)(a), which states: “No

person shall operate any vehicle * * * within this state, if, at the time of the operation, * * * the

person is under the influence of alcohol * * *.” This Court has defined “under the influence” as

“[t]he condition in which a person finds himself after having consumed some intoxicating

beverage in such quantity that its effect on him adversely affects his actions, reactions, conduct,

movement or mental processes or impairs his reactions to an appreciable degree, thereby

lessening his ability to operate a motor vehicle.” Akron v. Foos, 9th Dist. Summit No. 28086,

2016-Ohio-8441, ¶ 5. In determining whether a defendant was under the influence of alcohol,

the jury may properly consider evidence of his appearance and behavior, including his ability to

perceive, make judgments, coordinate movements, and safely operate a vehicle. See State v.

Moine, 72 Ohio App.3d 584, 586-587 (9th Dist.1991). Moreover, we have stated that, in OVI

prosecutions, the state is not required to establish that a defendant was actually impaired while
                                                 4


driving, but need only show an impaired driving ability. State v. Hill, 9th Dist. Summit No.

26519, 2013-Ohio-4022, ¶ 6.         To prove impaired driving ability, the state may rely on

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

appearance) to demonstrate that a person’s physical and mental ability to drive was impaired. Id.

Furthermore, virtually any lay witness, without special qualifications, may testify as to whether

an individual is intoxicated. Id.

         {¶9}   Sergeant Bishop testified that, on June 6, 2017, he was on duty and responded to a

crash call on Interstate-71 in Wayne County. The sergeant’s dash cam video of the incident that

night was also entered into evidence. Sergeant Bishop testified that he arrived at the scene at

1:18 A.M. and saw Mr. Godoy’s vehicle parked at an odd angle on the side of the road. The

vehicle had substantial damage to the front end and the side airbags had been deployed. Mr.

Godoy was still sitting in the driver’s seat of the vehicle with his wallet out and credit cards and

other information strewn about. The sergeant could hear through the vehicle’s speaker system

that Mr. Godoy was attempting to contact a wrecker through the American Automobile

Association (“AAA”). He asked if Mr. Godoy was okay or if he was hurt, but Mr. Godoy said

he was fine. Mr. Godoy told the sergeant he thought his tire blew out, so he pulled over and

stopped. Sergeant Bishop testified that Mr. Godoy’s eyes were glassy and bloodshot, and his

speech was slurred. The sergeant detected a very strong odor of alcohol coming from Mr.

Godoy.

         {¶10} Sergeant Bishop testified that once Mr. Godoy exited his truck he was unsteady

on his feet and had to put his hand on the sergeant’s cruiser for balance. Mr. Godoy admitted to

drinking one beer at dinner, sometime between 5:30 P.M. and 6:00 P.M. When the sergeant

asked him if he knew the current time, Mr. Godoy believed it was only 10:00 P.M. Sergeant
                                                 5


Bishop had Mr. Godoy fill out a written crash statement, but his handwriting was poor and the

sergeant could not decipher much of what was written. Prior to administering field sobriety

testing, the sergeant asked Mr. Godoy if he had any medical issues that might affect his

performance. Mr. Godoy said nothing was wrong with his eyes, but he was taking beta blockers

that could affect his performance on some tests. Sergeant Bishop observed six out of six clues

on the horizontal gaze nystagmus (“HGN”) test, four out of eight clues on the walk and turn test,

and two out of four clues on the one leg stand test.

       {¶11} Mr. Godoy was arrested and transported back to the Ashland Highway Patrol

Post, where he was read the BMV 2255 form, which explains the consequences for refusal to

submit to chemical testing. Mr. Godoy refused both breath and urine testing, explaining that he

could not reach his doctor at this early hour and was unsure how his beta blockers would react

with the alcohol in his system.

       {¶12} Dr. John Andrefsky is a neurologist who testified at trial that he examined Mr.

Godoy on June 2, 2017, and diagnosed him with an “essential tremor.” He prescribed Inderal,

i.e., Propanol, which is a beta blocker used to control heart rate and blood pressure, as well as

Ativan for anxiety. Dr. Andrefsky met with Mr. Godoy again on June 14, 2017, where Mr.

Godoy informed him that he was involved in an automobile accident. Mr. Godoy reported

feeling “clammy” and experiencing heart palpitations prior to the accident, “and the next thing

he knew he woke up feeling confused.” He had no recollection of the accident, but had a lump

on his head and a headache. Lasting effects included blurred vision, nausea, dizziness, balance

issues, poor concentration, and “word finding problems.” The doctor diagnosed Mr. Godoy with

“loss of consciousness, headache, memory loss, day time sleepiness, and concussion.” After

reviewing the police report and video, Dr. Andrefsky testified to a reasonable degree of scientific
                                                  6


certainty that it was his opinion the cause of the accident was a drop in blood pressure and loss of

consciousness. He further testified to a reasonable degree of scientific certainty that it was his

opinion Mr. Godoy suffered a concussion during the accident, based on his review of the video

and the symptoms Mr. Godoy reported to him weeks later.

       {¶13} Mr. Godoy testified at trial that he suffers from periodic heart arrhythmias and

was diagnosed with a mitral valve prolapse around 2006. He recalled going to dinner at the

Macedonia Applebee’s sometime between 5:00 P.M. and 6:30 P.M. on the night of the accident,

where he had a dry steak and a twelve-ounce Bud Light. He testified that he took his second

dose of Propanol for the day around 9:30 P.M. He “maybe [did] some bills” for a half hour and

then went for a drive when his “anxiety started to kick in * * *.” During the drive, he testified

that he started to feel “clammy” with some “chest discomfort.” He continued to drive and “felt a

sense of, like cold clamminess, sweaty, and that’s it.” He testified that he next woke up feeling

discomfort in his ankle. His truck was “not startable,” so he tried to contact AAA. Despite

viewing the dash cam video where he tells the sergeant he thought his tire blew out, Mr. Godoy

testified that to this day he still does not recall sensing a tire blow out. He claimed to never drink

more than one or two drinks because it would affect his mitral valve prolapse, causing

dehydration and worse palpitations. He recalled refusing to take the breathalyzer test because he

was unsure how his new medication would affect the test results.

       {¶14} Overall, two conflicting versions of events were presented at Mr. Godoy’s trial.

Although Mr. Godoy presented some evidence that he experienced a “cardiac event,” which

caused him to crash his vehicle and suffer a concussion, this Court has stated that “‘[a]

conviction may be upheld even when the evidence is susceptible to some possible, plausible, or

even reasonable, theory of innocence.’” State v. Russo, 9th Dist. Summit No. 22768, 2006-Ohio-
                                                7


2172, ¶ 27, quoting State v. Cremeans, 9th Dist. Summit No. 22009, 2005-Ohio-261, ¶ 7.

“‘[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the

trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28,

quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Despite Mr.

Godoy’s innocent explanations for exhibiting symptoms of impairment that night, the State

presented conflicting evidence that he showed signs of alcohol impairment because he was under

the influence of alcohol at the time of the crash. Sergeant Bishop recalled Mr. Godoy’s glassy

and bloodshot eyes, slurred speech, a very strong odor of alcohol, unsteadiness on his feet, an

admission to drinking a beer at dinner, and poor performances on three field sobriety tests. Also,

although Mr. Godoy later told Dr. Andrefsky, and likewise testified at trial, that he felt clammy

and had heart palpitations before waking up confused after the accident, Sergeant Bishop’s

testimony that Mr. Godoy told him he was fine and said he pulled his vehicle over because he

thought he blew a tire was supported by the dash cam video of the incident. See State v. Strebler,

9th Dist. Summit No. 26405, 2013-Ohio-1775, ¶ 12 (overruling a manifest weight argument and

specifically noting Appellant’s insistence that he did not need medical assistance). The jury was

best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and

use those observations in weighing the credibility of the proffered testimony. See State v. Cook,

9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30. This Court has consistently held that “[w]e

will not overturn a conviction as being against the manifest weight of the evidence simply

because the trier of fact chose to believe the State’s version of events over another version.”

State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13.

       {¶15} After reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses, we cannot say that the jury, in resolving
                                                 8


any conflicts in the evidence, clearly lost its way and created a manifest miscarriage of justice.

See Otten at 340. Mr. Godoy has also not demonstrated how this is an exceptional case where

the evidence presented weighs heavily in his favor and against conviction. See Thompkins at

387.

       {¶16} Mr. Godoy’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       TRIAL COUNSEL WAS INEFFECTIVE AND VIOLATED APPELLANT’S
       CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN HE FAILED TO
       MOVE THE COURT FOR A MISTRIAL AND/OR REQUEST INDIVIDUAL
       VOIR DIRE OF THE JURORS WHEN A JUROR VOLUNTEERED
       INFLAMMATORY COMMENTS THAT TAINTED THE JURY POOL AND
       PREJUDICED THE APPELLANT.

       {¶17} In his second assignment of error, Mr. Godoy argues that he received ineffective

assistance of counsel because “counsel failed to move for a mistrial, failed to move to dismiss

the entire jury panel who heard the inflammatory comments, failed to demand the court conduct

a thorough and comprehensive evaluation of possible prejudice to the jury, and failed to demand

a specific curative instruction to the jury.” We disagree.

       {¶18} “[I]n Ohio, a properly licensed attorney is presumed competent.”            State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984).

Courts ordinarily refrain from second-guessing strategic decisions made by trial counsel, even

where counsel’s strategy was questionable and even though appellate counsel essentially argues

that the case should have been defended differently. State v. Jalowiec, 91 Ohio St.3d 220, 237

(2001). See also State v. Clayton, 62 Ohio St.2d 45, 49 (1980) (noting that even debatable trial

tactics will not constitute ineffective assistance of counsel). To prove ineffective assistance of
                                                 9


counsel, one must establish that: (1) his counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense. Strickland at 687. Counsel’s performance is

deficient if it falls below an objective standard of reasonable representation. State v. Bradley, 42

Ohio St.3d 136 (1989), paragraph two of the syllabus. Prejudice can be shown by proving “there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” Id. at paragraph three of the syllabus. “[T]he Court need not address both

Strickland prongs if an appellant fails to prove either one.” State v. Lortz, 9th Dist. Summit No.

23762, 2008-Ohio-3108, ¶ 34.

       {¶19} During voir dire, a female member of the jury venire (“M.H.”) interrupted the

prosecutor’s conversation with another potential juror to remark on a pill bottle that was

purportedly on the defense table. She then stated, “Because if he’s on meds and then he drank

that’s just dumb. Sorry. It’s supposed to be an excuse to try to get out of it.” Later, when

defense counsel discussed with the venire possible reasons to refuse a breathalyzer test and asked

if the panel could listen to the evidence before casting any judgment, he noted on the record that

M.H. was “shaking [her] head no.” She responded that it would be “ridiculous” to refuse a

breathalyzer and then spend money on an attorney to “take my chances” at trial, and further

proclaimed, “[J]ust open the darn thing and get it over with. This is silly.” When defense

counsel engaged her in further discussion, she remarked, “[Y]ou are really doing your job. You

are in the right profession. * * * [Y]ou are good at b.s.’ing me.” She immediately clarified,

however, that her comment was meant as a compliment and said, “You are a good defense

attorney.” She claimed she was not trying to get out of jury duty, but was just being honest and

wanted to be fair to Mr. Godoy by “sav[ing] everybody the hassle.” She did not believe the

evidence would change her mind in this particular case, but respected the jury system and
                                                10


claimed she would be fine being on a jury for a different trial. Defense counsel did not object to

any of these comments, nor did he ask the trial court to give any curative instructions. The trial

court ultimately dismissed M.H. from the jury panel for cause.

       {¶20} Mr. Godoy now argues on appeal that, due to M.H.’s comments, his trial counsel

should have moved the court for a mistrial, moved to dismiss the entire jury panel, demanded the

court to evaluate whether any prejudice occurred, and demanded a specific curative instruction.

“Mistrials need be declared only when the ends of justice so require and a fair trial is no longer

possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The decision as to whether to

move for a mistrial is trial strategy.” State v. Wharton, 9th Dist. Summit No. 23300, 2007-Ohio-

1817, ¶ 44. Counsel’s decision not to request a curative instruction also falls within the ambit of

trial strategy. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 111. Counsel may

very well determine that a motion for mistrial would fail or that a curative instruction would

draw more unwanted attention to the incident. See State v. Moreland, 9th Dist. Summit No.

27910, 2016-Ohio-7588, ¶ 74.

       {¶21} Upon review of the record, we cannot conclude that M.H.’s comments during voir

dire were so inflammatory or prejudicial as to require a mistrial, dismissal of the entire jury

panel, further evaluation by the court, or curative instructions from the court. Mr. Godoy has

also not demonstrated that any of these requests would likely have been granted or shown how

M.H.’s comments prevented him from having a fair trial. M.H. was dismissed for cause and was

therefore not on Mr. Godoy’s jury during trial. Mr. Godoy directs us to questions posed to a

witness (“Dr. Andrefsky”) by several jurors during trial regarding the effects of drinking alcohol

while taking the medication he prescribed to Mr. Godoy. Mr. Godoy presumes these questions

were influenced directly by M.H.’s comments, but nothing in the record indicates that the jurors
                                               11


would not have asked these questions of their own volition but for her comments. In fact,

Sergeant Bishop testified that Mr. Godoy’s explanation for not taking the breathalyzer test was

that he was unsure how his beta blockers would react with the alcohol in his system. It is not

unreasonable to presume this testimony led some jurors to question Dr. Andrefsky regarding the

interaction between alcohol and the medicine he prescribed to Mr. Godoy. The jurors here all

affirmed on the record their willingness to diligently inquire into and carefully deliberate this

case to the best of their skill and understanding, without bias or prejudice. “Unless an appellant

demonstrates otherwise, we should assume that the members of the jury followed their oaths and

deliberated only upon the evidence adduced at trial.” State v. Durr, 58 Ohio St.3d 86, 91 (1991).

Mr. Godoy has not demonstrated otherwise in this case.

       {¶22} Accordingly, Mr. Godoy’s second assignment of error is overruled.

                            ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING
       THE TROOPER TO TESTIFY TO THE STATISTICAL LIKELIHOOD THAT
       APPELLANT WOULD TEST OVER POINT ZERO EIGHT BLOOD
       ALCOHOL CONTENT BASED ON THE RESULTS OF STANDARDIZED
       FIELD SOBRIETY TESTS.

       {¶23} In his third assignment of error, Mr. Godoy argues that the trial court erred in

permitting Sergeant Bishop to testify, based on horizontal gaze nystagmus (“HGN”) field

sobriety test results, as to the statistical likelihood that Mr. Godoy’s blood alcohol content

(“BAC”) would be over the legal limit of .08 if tested. We disagree.

       {¶24} This Court has consistently held that “‘[t]he admission or exclusion of evidence

rests soundly within the trial court’s discretion.’”     State v. Powell, 9th Dist. Lorain No.

12CA010284, 2017-Ohio-4030, ¶ 16, quoting State v. Scheck, 9th Dist. Medina No. 05CA0033-

M, 2006-Ohio-647, ¶ 13. We therefore review a trial court’s decision regarding the admission or
                                                 12


exclusion of evidence for an abuse of discretion. Id. An abuse of discretion “implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio

State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶25} Sergeant Bishop testified as to his considerable training and experience, which

included annual, OVI-specific training courses from the National Highway Traffic Safety

Administration (“NHTSA”) as well as “refresher classes” for NHTSA updates and “field

training” with field sobriety tests. He testified extensively as to the NHTSA standards for

administering the horizontal gaze nystagmus (“HGN”) test, and affirmed that he followed those

standards while administering the HGN test to Mr. Godoy on June 6, 2017. The sergeant

testified that he observed six out of six possible clues from Mr. Godoy during the HGN test,

including lack of smooth pursuit in both eyes, distinct and sustained nystagmus in both eyes, and

onset of nystagmus prior to a forty-five degree angle in both eyes. The following exchange then

occurred between the prosecutor and Sergeant Bishop during direct examination:

       Q: Does the NHTSA Manual indicate what, does that correlate to anything from
       the NHTSA manual?

       A: Right. So, what the NHTSA Manual states based off of that if you have a
       minimum of four clues, what that says is according to the NHTSA Manual there
       is [an] eighty-eight percent chance that that subject[’]s blood alcohol content is
       above [.08] which is the per se level for Ohio.

Defense counsel immediately objected based on foundation.         The trial court inquired, and

Sergeant Bishop affirmed, that the percentage he testified to is contained within the NHTSA

manual. The court then overruled the objection. Mr. Godoy now argues on appeal that the trial
                                                13


court erred in permitting this testimony as to the statistical likelihood that his BAC would be

over the legal limit if tested.

        {¶26} The Supreme Court of Ohio has held that “the HGN test has been shown to be a

reliable test, especially when used in conjunction with other field sobriety tests and an officer’s

observations of a driver’s physical characteristics, in determining whether a person is under the

influence of alcohol.” State v. Bresson, 51 Ohio St.3d 123, 129 (1990). The results of the HGN

test are admissible so long as the proper foundation has been shown both as to the 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 128. Although HGN test results may be admissible at trial by a

properly trained officer, the Bresson Court further noted that such an officer may not testify as to

what he or she believes a driver’s actual or specific BAC level would be, based solely on the

HGN test results. Id. at 129. The high court thus concluded:

        [A] properly qualified officer may testify at trial regarding a driver’s performance
        on the HGN test as to the issues of probable cause to arrest and whether the driver
        was operating a vehicle while under the influence of alcohol. See R.C.
        4511.19(A)(1). However, such testimony may not be admitted to show what the
        exact alcohol concentration level of the driver was for purposes of demonstrating
        a violation of R.C. 4511.19(A)(2), (3), or (4).

(Emphasis added.) Id. at 130.

        {¶27} Ohio appellate courts have interpreted Bresson in various ways. The Fourth and

Tenth Districts admittedly found an officer’s testimony as to the statistical probability that a

person would test over the legal BAC limit based on HGN test results problematic, but

nonetheless determined that because such testimony does not suggest an actual, specific, or exact

alcohol concentration, and other evidence presented at trial indicated the person was under the

influence of alcohol, any error in the admission of such testimony regarding statistical

probabilities is harmless. See State v. Martin, 4th Dist. Pickaway No. 04CA24, 2005-Ohio-1732,
                                                 14


¶ 29, 37-39; State v. Allen, 10th Dist. Franklin No. 09AP-853, 2010-Ohio-4124, ¶ 24. See also

Crim.R. 52(A) (stating “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded” as harmless). The Second and Fifth Districts did not note

such testimony as being problematic, but instead concluded that it is permissible when the officer

does not testify as to an “exact” BAC level. See State v. Banks, 2d Dist. Greene No. 2014-CA-

11, 2014 WL 6852108, *5 (Dec. 5, 2014); State v. Robertson, 5th Dist. Richland No. 11CA0046,

2012-Ohio-2955, ¶ 44. The First District, however, has concluded that such testimony regarding

statistical probabilities is highly prejudicial and improperly admitted in the absence of expert

testimony. See State v. Grizovic, 1st Dist. Hamilton No. C-070563, 2008-Ohio-3162, ¶ 14-17.

Furthermore, the admission of such testimony does not amount to harmless error, even when

considering other evidence presented at trial. Id. at ¶ 17.

       {¶28} In State v. Filip, this Court acknowledged a concern with the admission of such

testimony, but nonetheless concluded that even if the testimony was inadmissible it would be

difficult to find prejudice, due in part to the fact that defense counsel revisited that same

testimony on cross-examination and confirmed the statistical probabilities at issue. State v. Filip,

9th Dist. Medina No. 16CA0049-M, 2017-Ohio-5622, ¶ 51. As in Filip, Mr. Godoy’s counsel

revisited Sergeant Bishop’s statistical testimony during cross-examination and confirmed that the

numbers he testified to came from the NHTSA manual, specifically a field validation study

conducted in San Diego in 1998. Counsel then engaged the sergeant in a discussion as to the

“original” research conducted by NHTSA in 1977 or 1981, which yielded lower percentages.

Sergeant Bishop explained that the data changed when the legal BAC limit was lowered.

Counsel tried unsuccessfully to elicit further testimony regarding a more recent study conducted

in 2007.
                                                15


        {¶29} The State also introduced a wealth of other evidence indicating Mr. Godoy’s

impairment in this case, including the dash cam video and Sergeant Bishop’s testimony that Mr.

Godoy had glassy and bloodshot eyes, slurred speech, a very strong odor of alcohol, and

unsteadiness on his feet. He further admitted to drinking a beer at dinner, he performed poorly

on three field sobriety tests, and he refused to take breathalyzer or urine tests. The trial court

also instructed the jury that:

        [T]he question is not how much alcohol would affect an ordinary person. The
        question is what effect did any alcohol, consumed by the defendant, have on him,
        at the time and place involved. If the consumption of alcohol so affected the
        nervous system, brain, or muscles so as to impair, to a noticeable degree, his
        ability to operate the vehicle, then the defendant was under the influence.

        {¶30} Thus, consistent with our precedent in Filip, we cannot conclude that, under the

facts of this particular case, the admission of Sergeant Bishop’s testimony as to the statistical

probability a person will test over the legal limit based on HGN test results prejudiced Mr.

Godoy’s substantial rights. See Filip at ¶ 53, citing Crim.R. 52(A).

        {¶31} Mr. Godoy’s third assignment of error is overruled.

                                               III.

        {¶32} Mr. Godoy’s first, second, and third assignments of error are all overruled. The

judgment of the Wayne County Municipal Court is affirmed.

                                                                              Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                16


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

Municipal Court, County of Wayne, 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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MICHAEL CALLOW, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.
