[Cite as State v. Huskey, 2016-Ohio-61.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
CLARK G. HUSKEY                              :       Case No. 15 CAC 04 0031
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware Municipal
                                                     Court, Case No. 14TRC15655



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 7, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ELIZABETH A. MATUNE                                  WILLIAM T. CRAMER
Assistant Delaware City Prosecutor                   470 Olde Worthington Road, Suite 200
70 North Union Street                                Westerville, Ohio 43082
Delaware, Ohio 43015
Delaware County, Case No. 15 CAC 04 0031                                                2

Baldwin, J.

       {¶1}   Appellant Clark G. Huskey appeals a judgment of the Delaware Municipal

Court convicting him of operating a vehicle while intoxicated in violation of R.C.

4511.19(A)(1)(a). Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

       {¶2}   At approximately 6:45 in the evening of November 15, 2014, Douglas Lovas

was driving south on Africa Road in Delaware County. He stopped at a red light at the

intersection of Africa and Worthington. The car behind him failed to stop and struck him

from behind. Lovas got out of his car and approached appellant, who was the driver of

the other car. Lovas noted that appellant’s speech was slurred, his eyes were glassy,

and he was not fully coherent.      Lovas saw fluids leaking from appellant’s car and

attempted to move appellant away from the car. Appellant refused to move and began

making phone calls while resting against the car. Lovas believed that appellant was

“extremely inebriated” and called 911.

       {¶3}   Delaware County Sheriff Deputy Troy Ellis responded to the scene of the

crash. Deputy Ellis tried to talk to appellant, but appellant ignored him while talking on

the phone. Ellis noted a strong odor of an alcoholic beverage coming from appellant. A

second deputy asked for appellant’s identification. Appellant remained on the phone

while slowly looking for his wallet. After several minutes of fumbling, appellant produced

his driver’s license. Ellis noticed that appellant’s eyes were glassy.

       {¶4}   When appellant discussed the accident with the deputies, he stated that he

slid because the road was slippery; however, there was no precipitation on the road.

Appellant told the deputy that he was coming from East Broad Street in Columbus, and
Delaware County, Case No. 15 CAC 04 0031                                               3


going to East Broad Street in Columbus. Deputy Ellis asked appellant if he had consumed

alcohol, and appellant responded that he had one drink about six hours earlier.

Appellant’s speech was slow, slurred, and deliberate.

      {¶5}   Deputy Ellis asked appellant to undergo field sobriety testing. Appellant

was unable to comply with the deputy’s instructions for the HGN test, and after several

attempts, the deputy terminated the test. Appellant was placed under arrest for operating

a vehicle while intoxicated. He refused to provide a breath sample.

      {¶6}   Appellant was charged with driving at a speed greater than that which would

permit him to bring the vehicle to a stop within an assured clear distance ahead (ACDA)

(R.C. 4511.21(A)) and operating a vehicle while intoxicated (R.C. 4511.19(A)(1)(a)). The

case proceeded to jury trial. Appellant was convicted as charged and sentenced on the

OVI conviction to 2 years community control with 30 days of house arrest, a 3-day driver

intervention program, and a $500 fine. He was fined $50 for the ACDA conviction.

      {¶7}   Appellant assigns two errors to the OVI conviction:

      {¶8}   “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR

OPERATING A VEHICLE WHILE UNDER THE INFLUENCE WAS NOT SUPPORTED

BY SUFFICIENT EVIDENCE.

      {¶9}   “II.   THE JURY’S FINDING THAT APPELLANT OPERATED A VEHICLE

WHILE UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF R.C. 4511.19 WAS

NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.”
Delaware County, Case No. 15 CAC 04 0031                                                   4


                                                  I.

       {¶10} An appellate court's function when reviewing the sufficiency of the evidence

is to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶11} Appellant was convicted of violating R.C. 4511.19(A)(1)(a), which prohibits

operating a vehicle if, at the time of the operation, the person is under the influence of

alcohol, a drug of abuse, or a combination of them.

       {¶12} Appellant struck a car that was stopped at a red light. Lovas noted that

appellant’s speech was slurred, his eyes were glassy, he was stumbling, and he appeared

to be “extremely inebriated.” Tr. 20-21.

       {¶13} Deputy Ellis testified as to the factors that led him to conclude that appellant

was intoxicated:

                     The first factor in it is the collision itself. Clear night,

              clear roadway, it’s cold but not icy and you’re in a vehicle. The

              next thing is the behavior that you’re on your phone, you’re

              trying to obtain – you know, it’s odd at a crash for people

              immediately to be on the phone with their insurance company

              trying to get the other person’s license plate, vehicle make and

              model.    The odor, strong odor of an alcoholic beverage

              coming from their breath.       The admission of consuming

              alcoholic beverages. The glassy eyes. The slurred speech.
Delaware County, Case No. 15 CAC 04 0031                                                   5


              You know, unsteady on his feet. Um, you know, the response

              to questions. The fumbling around getting the driver’s license

              out and taking I believe during the video it was over two and

              a half minutes of us requesting a driver’s license for it to finally

              to be produced of when I keyed up my microphone and aired

              it which is when he would have handed it to me.                The

              statements of other parties involved. . . . And then going, you

              know initially he didn’t want to go back to my patrol car and

              then the inability to follow the instructions when I attempted to

              do the eye test. Tr. 45-46

       {¶14} This is sufficient evidence when viewed in a light most favorable to the

prosecution to convict appellant of OVI.

       {¶15} The first assignment of error is overruled.

                                                  II.

       {¶16} In his second assignment of error, appellant argues that the judgment is

against the manifest weight of the evidence.

       {¶17} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence 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, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Delaware County, Case No. 15 CAC 04 0031                                                   6


Because the trier of fact is in a better position to observe the witnesses' demeanor and

weigh their credibility, the weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227

N.E.2d 212, paragraph one of the syllabus (1967).

       {¶18} Appellant testified that his behavior at the scene was caused by a childhood

brain injury, a severe back injury, and prostate cancer. He further testified that the airbag

went off in his face, which felt like being punched. He argues that the evidence therefore

demonstrates that his behavior was not caused by intoxication, and Lovas and Deputy

Ellis had no medical training and no knowledge of appellant’s normal behavior. Appellant

argues that Lovas did not testify as to smelling alcohol, and Ellis admitted that the level

of intoxication could not be determined solely from odor. Appellant argues that he could

not complete the HGN test because he was facing the flashing lights of the fire truck. He

testified that he refused the breath test because attorneys he had worked for told him

there are problems with the testing process, and that further he was not given an

opportunity to call an attorney after asking to do so. He argues that he admitted having

only one drink hours earlier and to taking Klonopin after the accident, neither of which

had any effect on his ability to drive.

       {¶19} As noted above, the State presented evidence of intoxication through the

testimony of Lovas and Deputy Ellis. The jury chose to believe the testimony of those

witnesses rather than the testimony of appellant. We cannot find that the jury clearly lost

its way in finding appellant guilty of OVI.

       {¶20} The second assignment of error is overruled.
Delaware County, Case No. 15 CAC 04 0031                                     7


      {¶21} The judgment of the Delaware Municipal Court is affirmed. Costs are

assessed to appellant.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
