State v. Johnson , 2018 Ohio 3621 ( 2018 )

[Cite as State v. Johnson, 2018-Ohio-3621.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-12-016
: OPINION
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:
JACK S. JOHNSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 17CR12267
Martin P. Votel, Preble County Prosecuting Attorney, Preble County Courthouse, 101 East
Main Street, Eaton, Ohio 45320, for plaintiff-appellee
Nicole L. Rutter-Hirth, 2541 Shiloh Springs Road, Dayton, Ohio 45426, for defendant-
appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Jack S. Johnson, appeals his conviction and sentence in
the Preble County Court of Common Pleas. For the reasons outlined below, we affirm in
part, reverse in part, and remand this matter to the trial court for the limited purpose of
resentencing.
{¶ 2} On February 7, 2017, the Preble County Grand Jury returned a three-count
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indictment charging Johnson with two fourth-degree felony offenses of operating a vehicle
under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a), (d), and (G)(1)(d),
and one third-degree felony offense of OVI in violation of R.C. 4511.19(A)(1)(a) and
(G)(1)(e). The indictment included a specification for a mandatory prison term for repeat OVI
offenders pursuant to R.C. 2941.1413(A), and a specification for forfeiture of vehicle
pursuant to R.C. 2941.1417(A). Johnson moved to suppress evidence of the arrest, officer
observations, and breathalyzer test results. Johnson asserted that the officer lacked
reasonable suspicion to stop and detain him for OVI, failed to administer the field sobriety
tests in substantial compliance with the procedures set forth in the National Highway Traffic
Safety Administration ("NHTSA") Manual, and lacked probable cause to arrest him. The trial
court held a hearing on the matter, which revealed the following facts.
{¶ 3} Officer Eric Stevens of the village of New Paris Police testified that on January
27, 2017, he received an anonymous tip regarding a driver, who was intoxicated and a felon
in possession of a firearm. Stevens saw a vehicle matching the description turn left without
using a turn signal. Stevens initiated a traffic stop and identified Johnson as the driver.
Upon approaching the truck, Stevens detected an odor consistent with an alcoholic
beverage. Stevens also noticed Johnson slurring his speech. Johnson admitted he
consumed at least one alcoholic beverage and that he did not feel "he should be driving."
{¶ 4} At Stevens' request, Johnson exited the truck. Stevens proceeded to
administer the Horizontal Gaze Nystagmus ("HGN") Test. Stevens testified he asked
Johnson to hold his head still and to follow a pen (the "stimulus") with his eyes only, as
Stevens moved the stimulus in a horizontal motion approximately 12-15 inches from
Johnson's face. Johnson failed to keep his head still the first few times. Stevens allowed
Johnson to place his hands on his cheeks and physically hold his head still while Stevens
moved the stimulus to a 45-degree angle right and left. Johnson still failed to follow the
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stimulus with his eyes only. Stevens observed in both eyes lack of smooth pursuit,
nystagmus at maximum deviation, and onset of nystagmus before 45 degrees. Additionally,
Stevens observed Johnson sway and slur his speech. Stevens memorialized the HGN test
results in a FST form. Additionally, Stevens wore a body camera during the entirety of the
stop.
{¶ 5} Next, Stevens administered a walk-and-turn test. Stevens testified he received
training on these field sobriety tests pursuant to NHTSA standards at the Ohio Peace
Officer's Training Academy in 2010. Following the walk-and-turn test, Stevens placed
Johnson under arrest and conducted a search of Johnson's truck. Stevens found one open
and one unopened can of Four Loko. He then transported Johnson to the Preble County
Sheriff's Office where a trained officer read Johnson the BMV 2255 form and administered a
breathalyzer test. The test indicated a blood-alcohol-content ("BAC") above the legal limit.
{¶ 6} The trial court suppressed the walk-and-turn test results and overruled the
remainder of the motion. Johnson entered a plea of no contest and the trial court found him
guilty of third-degree felony OVI. The trial court sentenced Johnson to a mandatory two-year
prison term.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE RESULTS OF
THE HGN [TEST] AS THE TEST WAS NOT PERFORMED IN SUBSTANTIAL
COMPLIANCE WITH NHTSA STANDARDS.
{¶ 9} Johnson argues the trial court erred in failing to suppress the HGN test results
because Stevens did not conduct the test in substantial compliance with NHTSA standards.
Specifically, Johnson asserts Stevens administered the HGN test inconsistent with the
standards set forth in the NHTSA manual by performing two of three sub-sets of the test
together. Additionally, Johnson contends Stevens' testimony demonstrated a general lack of
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knowledge with regard to the NHTSA standards.
{¶ 10} Appellate review of a trial court's decision to grant or deny a motion to
suppress is a mixed question of law and fact. State v. Bell, 12th Dist. Clermont No. CA2008-
05-044, 2009-Ohio-2335, ¶ 8. Acting as the trier of fact, the trial court is in the best position
to resolve factual questions and evaluate witness credibility. State v. Harsh, 12th Dist.
Madison No. CA2013-07-025, 2014-Ohio-251, ¶ 9. Therefore, when reviewing the denial of a
motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.
CA2013-03-023, 2013-Ohio-4764, ¶ 14. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Id.{¶ 11} In response to a motion to suppress regarding field sobriety tests, the state
must show the requisite level of compliance with accepted testing standards. State v.
Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 9. The typical standards, as were used in this
case, are those from NHTSA. State v. Jimenez, 12th Dist. Warren No. CA2006-01-005,
2007-Ohio-1658, ¶ 12. In order for field sobriety testing evidence to be admissible, the state
is not required to show strict compliance with testing standards, but must instead
demonstrate by clear and convincing evidence that the officer substantially complied with
NHTSA standards. R.C. 4511.19(D)(4)(b); State v. Selvage, 12th Dist. Clermont No.
CA2011-08-058, 2012-Ohio-2149, ¶ 12. "Clear and convincing evidence is that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or conviction
as to the allegations sought to be established." Cross v. Ledford, 161 Ohio St. 469, 477
(1954). "A determination of whether the facts satisfy the substantial compliance standard is
made on a case-by-case basis." State v. Fink, 12th Dist. Warren Nos. CA2008-10-118 and
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CA2008-10-119, 2009-Ohio-3538, ¶ 26.
{¶ 12} As an initial matter, the state asserts Johnson only raised a general challenge
to the HGN test in his motion to suppress; therefore, the state was only required to
demonstrate substantial compliance with NHTSA standards in general terms.
{¶ 13} Crim.R. 47 governs motions in a criminal proceeding and requires a defendant
to "state with particularity the grounds upon which it is made and shall set forth the relief or
order sought." In other words, a defendant must "state the motion's legal and factual bases
with sufficient particularity to place the prosecutor and the court on notice of the issues to be
decided." State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus. After a defendant meets this
burden by effectively placing the prosecutor and the court on sufficient notice of the issues to
be determined, the burden then shifts to the state to show substantial compliance with the
applicable standards. State v. Plunkett, 12th Dist. Warren No. CA2007-01-012, 2008-Ohio-
1014, ¶ 11, citing City of Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988).
{¶ 14} The extent of the state's burden for establishing substantial compliance "only
extends to the level with which the defendant takes issue with the legality of the test." State
v. Nicholson, 12th Dist. Warren No. CA2003-10-106, 2004-Ohio-6666, ¶ 10. For example, if
the defendant's motion to suppress raises issues in general terms, then the state is only
required to show substantial compliance in general terms. Plunkett at ¶ 12, citing Jimenez,
2007-Ohio-1658. The state's burden to show compliance to a general allegation is slight and
requires only the amount of specificity contained in the motion. Nicholson at ¶ 11.
Therefore, the state need only "present general testimony that there was compliance" when
the motion is not sufficiently specific. Id. However, if the motion to suppress lacks the
required particularity, the defendant may still provide some factual basis, either during cross-
examination or by conducting formal discovery, thereby raising the requirement on the state
to demonstrate substantial compliance with specific evidence. Plunkett at ¶ 25-26, citing
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State v. Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, ¶ 27-28.
{¶ 15} Johnson's motion to suppress contains one boilerplate assertion that Stevens
"did not perform the field sobriety tests in substantial compliance with the procedure set forth
in the [NHTSA] Manual." The accompanying memorandum of law restates this general
assertion without providing any additional information on the issue. Therefore, Johnson's
motion and memorandum did not set forth the legal and factual bases with sufficient
particularity to place the prosecutor on notice of the procedures he intended to challenge.
Plunkett at ¶ 25-26. Thus, prior to the hearing the state was only required to demonstrate
substantial compliance with NHTSA standards in general terms. However, Johnson's cross-
examination of Stevens raised the specificity of the evidence required by the state to meet its
burden. With respect to the HGN test, Johnson thoroughly cross-examined Stevens
regarding his training and the procedures he used in conducting the test. Johnson asked
Stevens specific questions regarding whether he conducted the HGN test in compliance with
the NHTSA standards. These questions compared the test performed by Stevens with the
test outlined by the NHTSA manual. Therefore, we will address Johnson's first asserted error
in terms of whether the state set forth specific evidence to demonstrate by clear and
convincing evidence substantial compliance with NHTSA standards.
{¶ 16} As stated by the Ohio Supreme Court, "HGN test results are admissible in
Ohio without expert testimony so long as the proper foundation has been shown both as to
the administering officer's training and ability to administer the test and as to the actual
technique used by the officer in administering the test." State v. Boczar, 113 Ohio St.3d 148,
2007-Ohio-1251, ¶ 28. We have previously detailed the parameters of the HGN test set forth
by the NHTSA manual as follows:
the NHTSA manual provides that "a police officer should instruct
the suspect that [he is] going to check the suspect's eyes, that
the suspect should keep [his] head still and follow the stimulus
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with [his] eyes, and that the suspect should do so until told to
stop. After these initial instructions are provided, the officer is
instructed to position the stimulus approximately 12 to 15 inches
from the suspect's nose and slightly above eye level. The officer
is then told to check the suspect's pupils to determine if they are
of equal size, the suspect's ability to track the stimulus, and
whether the suspect's tracking is smooth. The officer is then to
check the suspect for nystagmus at maximum deviation and for
onset of nystagmus prior to 45 degrees." The manual instructs
the officer to repeat each of the three portions of the HGN test.
In addition, the NHTSA guidelines list certain approximate and
minimum time requirements for the various portions of the test.
For instance, when checking for smooth pursuit, the time to
complete the tracking of one eye should take approximately four
seconds. When checking for distinct nystagmus at maximum
deviation, the examiner must hold the stimulus at maximum
deviation for a minimum of four seconds. When checking for the
onset of nystagmus prior to 45 degrees, the officer should move
the stimulus from the suspect's eye to his shoulder at an
approximate speed of four seconds.
(Citations omitted and alterations in original.) State v. Clark, 12th Dist. Brown No. CA2009-
10-039, 2010-Ohio-4567, ¶ 22-23.
{¶ 17} Based on our review, we find that Stevens substantially complied with NHTSA
standards when he administered the HGN test.
{¶ 18} Stevens testified about his training and ability in the administration of the HGN
test, the technique he used in administering the test, and the indicators he looked for while
performing the test. Stevens testified he instructed Johnson to hold his head still and follow
the stimulus with his eyes. Stevens held the stimulus approximately 12 to 15 inches from
Johnson's face and moved the stimulus to a 45-degree angle right and left. Stevens'
testimony and the Impaired Driver Report he filled out at the scene detail that Johnson
demonstrated lack of smooth pursuit, distinct nystagmus at maximum deviation, and onset of
nystagmus before 45 degrees. Stevens explained he observed Johnson's inability to follow
the stimulus back and forth, eyes breaking away from the stimulus, and eyes jerking. When
checking for nystagmus at maximum deviation, Stevens held the stimulus at the maximum
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point for approximately four seconds. Johnson's right and left eyes both demonstrated
"major twitching." Stevens likewise observed twitching in both eyes prior to reaching 45
degrees.
{¶ 19} Johnson notes that Stevens testified on cross-examination that he first
performed the lack of smooth pursuit test, and then, performed the nystagmus at maximum
deviation and nystagmus prior to 45 degrees tests together. Further, Stevens' testimony
indicated he had some confusion with recalling specific steps of the HGN test as set forth in
the NHTSA manual. Johnson cites a Second District opinion finding a trial court properly
suppressed HGN test results where the administering officer only looked for lack of smooth
pursuit and not nystagmus at maximum deviation and prior to 45 degrees. State v. Hall, 2d
Dist. Montgomery No. 19933, 2004-Ohio-1307, ¶ 22. However, Hall is distinguishable
factually, as Stevens performed all three parts of the HGN test. Further Hall was decided
under the prior inapplicable standard for admitting HGN test results. Id. (suppressing
evidence because officer did not strictly comply with NHTSA manual).
{¶ 20} While Stevens may not have strictly complied in performing the HGN test in
accordance with the step-by-step directions detailed by the NHTSA manual, we find
competent, credible evidence exists demonstrating Stevens substantially complied with the
NHTSA standards. Stevens gave Johnson the proper instructions before the beginning the
HGN test. Stevens then watched Johnson's eyes for a lack of smooth pursuit. Next, he
watched for nystagmus prior to 45 degrees and at 45 degrees. While performing the HGN
test, Stevens adhered to the distance and timing requirements for the three sub-sets of the
test. Although Stevens did not perform the final two sub-sets of the HGN test independently,
this court has found substantial compliance where an officer performed the HGN test with
slight deviations from the parameters outlined by the manual. Clark, 2010-Ohio-4567, at ¶ 33
(finding substantial compliance where an officer moved the stimulus at a rate of speed
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differing from the manual procedures); State v. Lange, 12th Dist. Butler No. CA2007-09-232,
2008-Ohio-3595, ¶ 10-11 (finding substantial compliance where no prejudice could be shown
because presumably strict compliance would have rendered the same results).
{¶ 21} With respect to Stevens' knowledge of the exact procedures outlined in the
manual, we defer to the trial court, as it was in the best position to resolve factual questions
and evaluate witness credibility. State v. Dallman, 12th Dist. Clermont Nos. CA2017-11-056
and CA2017-11-057, 2018-Ohio-2670, ¶ 10. Therefore, we find the state demonstrated by
clear and convincing evidence substantial compliance with NHTSA standards.
{¶ 22} Nonetheless, even assuming the trial court erred by not suppressing the HGN
test results, any error in the trial court's failure is harmless error due to the overwhelming
amount of incriminating evidence supporting Johnson's OVI conviction. State v. Djisheff,
11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶ 27 (finding trial court's failure to
suppress HGN test results was harmless error where officer had probable cause to arrest
defendant for OVI based on the remainder of the evidence); State v. Spence, 12th Dist.
Butler No. CA2002-05-107, 2003-Ohio-4237, ¶ 41 (finding trial court's failure to suppress
evidence was harmless error where overwhelming incriminating evidence supported
conviction). At the outset of the stop, Stevens detected an odor consistent with an alcoholic
beverage and observed Johnson slurring his speech. Johnson continued slurring his speech
throughout the duration of the stop, swayed from side-to-side, and informed Stevens he had
consumed at least one alcoholic beverage and felt he should not be driving. Once placed
under arrest, a search of Johnson's vehicle revealed multiple alcoholic beverage containers.
Additionally, Johnson submitted to a breathalyzer test, which indicated a BAC above the legal
limit. Therefore, any alleged error by the trial court did not affect the outcome of the case
and would constitute harmless error.
{¶ 23} Accordingly, Johnson's first assignment of error is overruled.
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{¶ 24} Assignment of Error No. 2:
{¶ 25} THE TRIAL COURT ERRED IN SENTENCING APPELLANT BY IMPOSING A
TWO[-]YEAR SENTENCE WITHOUT SPECIFYING WHETHER THE SENTENCE WAS
FOR THE UNDERLYING OFFENSE OR THE SPECIFICATION.
{¶ 26} Johnson asserts, and the state concedes, the trial court erred in imposing a
two-year mandatory sentence for his third-degree felony OVI conviction, with an
accompanying habitual offender specification.
{¶ 27} We review felony sentences pursuant to the standard of review set forth in
R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and
convincingly contrary to law. State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-
Ohio-5669, ¶ 9. A sentence is not clearly and convincingly contrary to law where the record
supports the trial court's findings under R.C. 2929.14(C)(4) and where the trial court
considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly applies postrelease control, and sentences appellant within the permissible
statutory range. Id. Pursuant to R.C. 2953.08(G)(2), appellate courts may "vacate [a]
sentence" clearly and convincingly contrary to law "and remand the matter to the sentencing
court for resentencing." State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 4.
{¶ 28} The Ohio Supreme Court has held that
offenders convicted of a third-degree-felony OVI and a repeat-
offender specification under R.C. 2941.1413 are subject to the
following: (1) for the specification conviction, a one- to five-year
mandatory prison sentence, which must be served prior to and
consecutive to any additional prison term and (2) for the
underlying OVI conviction, a discretionary term of 9 to 36
months.
State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, ¶ 7; see also State v. Burkhead, 12th
Dist. Butler No. CA2014-02-028, 2015-Ohio-1085, ¶ 17. Therefore, such offenders are
subject to a one- to five-year mandatory prison term for the habitual offender specification,
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"which must be served prior to and consecutive to any additional prison term imposed under
R.C. 2929.14(A)(3)(b)" and a discretionary 9- to 36-month definite prison term for the
underlying OVI conviction. South at ¶ 19; Burkhead at ¶ 17-20.
{¶ 29} The trial court's judgment entry of sentence indicates it imposed a two-year
mandatory prison term for the third-degree OVI conviction and made "no additional sentence
pursuant to the specification." Thus, we find Johnson's sentence is contrary to law and
Johnson's second assignment of error is sustained.
{¶ 30} As stated above, the sentencing statutes mandate that a trial court impose a
mandatory one-to-five-year prison term for the habitual offender specification, which must be
served prior to and consecutive to any additional discretionary prison term imposed for an
underlying OVI conviction. Accordingly, we vacate Johnson's sentence for his underlying OVI
conviction and remand this matter to the trial court for resentencing for the habitual offender
specification and OVI conviction. Upon remand, the trial court shall impose a one-year
mandatory prison term for the habitual offender specification and either a nine- or twelve-
month discretionary prison term for the OVI conviction for a total aggregate prison term not to
exceed two years. The mandatory prison term shall be ordered to be served prior to and
consecutive to the discretionary prison term.
{¶ 31} Judgment affirmed in part, reversed in part, and remanded for resentencing.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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