State v. Reynolds , 2022 Ohio 3506 ( 2022 )

[Cite as State v. Reynolds, 2022-Ohio-3506.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio/City of Bowling Green Court of Appeals No. WD-21-084
Appellee Trial Court No. 21-TRC-00695
v.
Erika Reynolds DECISION AND JUDGMENT
Appellant Decided: September 30, 2022
*****
Hunter Brown, City of Bowling Green Prosecuting Attorney, and
Nicholas P. Wainwright, Assistant Prosecuting Attorney, for appellee.
Michael B. Kelley, for appellant.
*****
MAYLE, J.
{¶ 1} Following a jury trial, defendant-appellant, Erika Reynolds, appeals the
November 16, 2021 judgment of the Bowling Green Municipal Court, convicting her of
operating a vehicle while under the influence of drugs or alcohol. For the following
reasons, we affirm the trial court judgment.
I. Background
{¶ 2} A jury convicted Erika Reynolds of operating a vehicle while under the
influence of drugs or alcohol, a violation of R.C. 4511.19(A)(1)(a). She was sentenced to
93 days in jail, 90 days of which were suspended, a fine of $1,075.00, court costs, and a
one-year license suspension. The state offered the following evidence at trial.
{¶ 3} On February 13, 2021, at approximately 3:30 p.m., Ohio State Highway
Patrol Trooper Nicholas Palmer was patrolling a stretch of I-75 in Wood County when he
received a call from dispatch reporting a reckless driver. Palmer located the vehicle—
Reynolds’s vehicle—and followed it. He observed the vehicle swerve within its own
lane and ride on top of the lane divider, which he conceded are not traffic violations in
this judicial district. He ultimately initiated a stop of the vehicle because it was traveling
75 miles per hour in a 70-mile-per-hour zone. Palmer testified that it is not his usual
practice to stop a vehicle for exceeding the speed limit by only five miles per hour, and,
in fact, he did not cite Reynolds for speeding. Palmer confirmed that varying speeds can
be a sign of impairment, as can following too closely, but he clocked Reynolds’s speed
only once, she was not following too closely, he did not see her drive recklessly, and he
observed no other traffic violations. He also confirmed that Reynolds maneuvered her
vehicle appropriately when he pulled her over.
{¶ 4} Palmer approached the vehicle, requested Reynolds’s driver’s license,
registration, and proof of insurance, and asked general questions so that he could evaluate
2.
whether she was impaired. He noticed that her speech was slurred, her eyes were
bloodshot and glassy, and her movements were lethargic. This indicated to Palmer that
Reynolds could be impaired by drugs, alcohol, prescription medications, or a medical
condition. He decided to extend the stop to further investigate.
{¶ 5} Palmer asked Reynolds if she had had anything to drink. She said no. After
a consensual pat down for weapons, he performed several field sobriety tests. He began
by asking if she had medical conditions or injuries that would prevent her from
performing the tests, and specifically whether she had any medical conditions that would
prevent her from seeing the tip of his pen for the horizontal gaze nystagmus (HGN) test.
She said no, although she explained that she had monocular vision. Palmer administered
the test, and he observed six out of six clues. He performed the vertical gaze nystagmus
test, and nystagmus was present. Palmer next asked Reynolds if she had any physical or
mental ailments that would prevent her from performing the walk-and-turn test.
Reynolds said she had back pain and a knee abscess, but she performed the test. She
swayed while balancing, moved her foot, and became agitated. Palmer then asked her to
do the one-leg-stand test. She indicated that her abscess was on her left leg. She stood
on her right foot and lifted her left foot. Reynolds said that she could not do the test.
{¶ 6} Palmer administered a preliminary breath test, which showed zero alcohol
on Reynolds’s breath, so he eliminated alcohol as a possible reason for impairment. At
that point he suspected that Reynolds’s impairment was caused by a controlled substance
3.
or prescription medication. He performed a modified Romberg test. He asked her to
close her eyes, tilt her head back, put her arms down by her side, estimate the passage of
30 seconds, then bring her head back and tell him to stop. She estimated the passage of
30 seconds in 22 seconds—the normal range would have been 25 to 35 seconds. While
she performed the test, Palmer observed body tremors, another indicator of impairment.
{¶ 7} Based on “the driving behavior,” the reckless operating call, and Reynolds’s
performance on the field sobriety and modified Romberg tests, Palmer decided to place
Reynolds under arrest. He read Reynolds her Miranda rights and performed a search
incident to arrest. At some point during the stop, Reynolds told Palmer that she takes
multiple medications.
{¶ 8} Because Palmer suspected that Reynolds’s medications caused her to
become impaired, he called dispatch to see if a drug recognition expert (“DRE”) was
available. Officer Amber Moomey, of the Bowling Green Police Department, evaluated
Reynolds.
{¶ 9} Moomey testified that she was designated a DRE in 2018, after completing
additional training. She stated that the methods she learned in her DRE training are
generally recognized in her field and are relied upon by other police departments.
Without objection from defense counsel, the court recognized Moomey as an expert.
Moomey authored a report that was admitted into evidence, summarizing her evaluation
of Reynolds.
4.
{¶ 10} Before Moomey began her evaluation, Palmer told her only that it was a
reckless operation case. He said that he had responded to a call of an impaired driver.
Palmer was administering a breath alcohol test when Moomey arrived, so she waited until
he was finished. That test indicated that Reynolds was not impaired by alcohol. Because
the average police officer cannot determine non-alcohol-related impairment, Moomey
forms her own opinion of a person’s impairment based on information she has learned
about what drugs do to the body. She does not take the trooper’s word as to whether a
person is impaired.
{¶ 11} Moomey noted Reynolds’s clothing, including her shoes—she was wearing
tall black boots. When Reynolds walked from the BAC room to the squad room,
Moomey noticed that Reynolds sometimes walked with a limp and was unsteady on her
feet. Before talking with Reynolds, she read her Miranda rights. At that point, she
noticed that Reynolds’s eyes were bloodshot and glassy, she had thick, slurred speech,
she was fidgety during the evaluation, and she was constantly moving.
{¶ 12} In response to questions from Moomey, Reynolds said that she had not
eaten that day and had last eaten the following night at 8:00 p.m. Between noon and 3:35
p.m., Reynolds consumed three Bang energy drinks. The night before, she slept from
1:00 a.m. until noon. Reynolds told Moomey she is not diabetic or epileptic; she has an
abscess on her knee that makes it painful to walk sometimes; she had a lazy eye that was
corrected; and she has monocular vision. She is on 14 different medications, including
5.
Lyrica, Adderall, Xanax, oxycodone, lidocaine patches, Zoloft, Valtrex, valcyclovic,
acyclovic, an inhaler, propranolol, hydroxyzine, Zofran, and Phenergan. Moomey
documented the medications, side effects, and when Reynolds last took them.
{¶ 13} Moomey examined Reynolds’s eyes, then performed both HGN and VGN
tests. Reynolds exhibited six out of six clues on the HGN test and vertical gaze
nystagmus was present on the VGN test. Moomey administered the modified Romberg
test—Reynolds estimated the passage of 30 seconds after only 21 seconds. Moomey
administered the walk-and-turn test—Reynolds fell out of the start position twice, started
crying, attributed her difficulty to her boots, removed her boots, had trouble remembering
the instructions, and lost her balance. Moomey administered the one-leg-stand test for
each leg—Reynolds could not maintain balance and put her foot down several times.
Moomey administered the finger-to-nose test—Reynolds did not follow instructions
properly and she double-tapped once.
{¶ 14} Based on the totality of the circumstances, Moomey determined that
Reynolds was impaired by a CNS depressant. She explained that this is a large category
of medication or drugs that depress one’s central nervous system. She did not believe
that any medical or mental ailment caused Reynolds’s impairment. She “saw the
presence of CNS depressant, so [she] call[ed] it a CNS depressant.” Moomey entered
Reynolds’s medications into www.drugs.com and looked for interactions. She said six of
6.
Reynolds’s medications “had a major drug interaction,” while others had “a moderate
interaction.”
{¶ 15} Moomey described that after the evaluation, she went through each
medication and made herself familiar because “[t]here are so many different medications
out there, that [she’s] not familiar with every single one of them or what they do.” She
testified that oxycodone and Zoloft “counteract with each other and can cause some
pretty severe side effects,” which she described in her report. She then summarized what
she learned about some of the different medications Reynolds is prescribed:
• Xanax: “a depressant and it depresses your immune system and it
helps treat medical conditions”;
• Oxycodone: “a narcotic analgesic, which would be in the same
category as, like, Heroin or Fentanyl”;
• Zoloft: “another depressant in the CNS depressants category”; and
• Zofran: “it’s for nausea, but I believe it’s in the CNS depressant
category.”
{¶ 16} Moomey emphasized that Reynolds was drowsy despite the three energy
drinks she consumed, but she was also fidgety. She believed this was because “there was
still a lot bringing her down.” She said that the combination of a CNS depressant and
narcotic analgesic will lower blood pressure (Reynolds’s blood pressure was 108/72),
body temperature (her temperature was 97.6), and pulse rate (her pulse rate was checked
7.
three times and was recorded as 98, 106, 96). Moomey concluded, “based on everything
she encountered throughout the evaluation,” that Reynolds’s “signs matched up with
CNS depressant.”
{¶ 17} On cross-examination, Moomey testified that from her review of the
recording of the traffic stop, Reynolds did not appear to have any difficulty with her
motor vehicle controls and no difficulty exiting the vehicle, and she did not repeat
herself. Moomey conceded that she is not a doctor or a pharmacist. She testified that a
person can be impaired while driving and not make a traffic violation.
{¶ 18} Defense counsel made Crim.R. 29 motions after the state’s evidence and
again after resting. The court denied those motions and submitted the matter to the jury.
The jury returned a verdict of guilty. Reynolds appealed. She assigns the following
errors for our review:
I. Appellant’s conviction was against the manifest weight of the
evidence and the evidence was insufficient to support a conviction.
II. Appellant received ineffective assistance of counsel due to
counsel’s serious errors which deprived Appellant of a fair trial because
counsel failed to raise significant issues in a motion to suppress although it
had merit, and because the cumulative effect of counsel’s errors resulted in
ineffective assistance of counsel as a whole.
8.
II. Law and Analysis
A. Manifest Weight and Sufficiency of the Evidence
{¶ 19} In her first assignment of error, Reynolds challenges the sufficiency and
manifest weight of the evidence. She argues that the state did not present admissible
evidence that “her ability to operate [her] vehicle” was “noticeably impaired,” thus the
evidence was insufficient to support her conviction. Although not assigned as a separate
error, Reynolds complains that Palmer and the assistant prosecutor repeatedly made
reference to the dispatch call that indicated that Reynolds was driving recklessly, even
though the court had ruled that it could be alluded to only to show that the officer went to
look for her after receiving this call.
{¶ 20} Reynolds further claims that the field sobriety tests were not properly
administered because Palmer failed to ask about medical conditions that could affect
HGN, he held the pen out for seven seconds instead of five, he failed to account for
Reynolds’s back pain, back injury, knee abscess, or lazy eye, and the cold temperature
may have affected her performance. She insists that Moomey’s administration of other
field sobriety tests suffer from similar infirmities, and additional tests Moomey
administered were not properly demonstrated and were unreliable. Reynolds maintains
that Palmer did not know the effects of drugs on people and saw nothing on any pill
bottles to suggest that Reynolds should not have been driving. Finally, Reynolds
9.
contends that Moomey is not a pharmacist and does not know how Reynolds’s
medications may interact.
{¶ 21} The state responds that it was not required to show that Reynolds’s driving
itself was impaired—it is sufficient that the officer observe indicia of impairment after
the lawful stop of the vehicle. It emphasizes that the court permitted it to reference the
reckless-driving call “with an admonishment to the jury that it’s not offered for the truth
of the matter in the statement itself,” but rather to show “that the officer acted in
conformity therewith.” “As such,” the state claims, “the Jury gained very small
information about the call and were told not to consider it,” and it can be presumed that
the jury followed the instruction to disregard inadmissible evidence. Finally, the state
argues that indicators of impairment were observed after the stop and were observed
during administration of the HGN and VGN, walk-and-turn, modified Romberg, and one-
leg-stand tests. It does not specifically address the remainder of Reynolds’s arguments.
1. Sufficiency of the Evidence
{¶ 22} Whether there is sufficient evidence to support a conviction is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a
challenge to the sufficiency of evidence, “[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 essential elements of the crime proven beyond a reasonable doubt.”
(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 66810.
(1997). In making that determination, the appellate court will not weigh the evidence or
assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378
N.E.2d 1049 (1978). “Rather, we decide whether, if believed, the evidence can sustain
the verdict as a matter of law.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-
8448, 84 N.E.3d 993, ¶ 13. Naturally, this requires “a review of the elements of the
charged offense and a review of the state’s evidence.” Id.{¶ 23} R.C. 4511.19(A)(1)(a) prohibits the operation of a vehicle when a person is
under the influence of alcohol, a drug of abuse, or a combination of both. A “drug of
abuse” is defined in R.C. 4506.01(M) to mean “any controlled substance, dangerous drug
as defined in section 4729.01 of the Revised Code, or over-the-counter medication that,
when taken in quantities exceeding the recommended dosage, can result in impairment of
judgment or reflexes.” “Dangerous drug” is defined by R.C. 4729.01(F) to include
prescription medications. “Controlled substance” is defined by R.C. 4506.01(E) as “(1)
[a]ny substance classified as a controlled substance under the ‘Controlled Substances
Act,’ 80 Stat. 1242 (1970), 21 U.S.C.A. 802(6), as amended; (2) [a]ny substance included
in schedules I through V of 21 C.F.R. part 1308, as amended; (3) [a]ny drug of abuse.”
{¶ 24} To support a conviction of operating a vehicle while under the influence of
a drug of abuse, the state must prove, beyond a reasonable doubt, that the defendant was
“(1) operating a vehicle, and (2) doing so while under the influence of a drug of abuse.”
State v. Hefflinger, 6th Dist. Erie No. E-16-054, 2017-Ohio-7100, ¶ 17. In Hefflinger, we
11.
recognized that under Supreme Court of Ohio case law—State v. Richardson, 150 Ohio
St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993—“the testimony of an experienced police
officer that a defendant appears to be under the influence of a drug of abuse at the time of
arrest, paired with additional evidence that the defendant had ingested a drug of abuse,
constitutes sufficient evidence to support a conviction for operating a vehicle while under
the influence of a drug of abuse.” Id. at ¶ 22.
{¶ 25} A driver is “under the influence” when his or her normal “physical and
mental ability to act and react” are altered because of the consumption of a drug of abuse.
See State v. Filip, 2017-Ohio-5622, 94 N.E.3d 125, ¶ 38 (9th Dist.). “One can be ‘under
the influence of a drug of abuse’ even when taking a prescription medication in the
prescribed amount if it impairs the person’s ability to operate a motor vehicle.” State v.
Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, *1 (Feb. 27, 1998).
{¶ 26} Importantly, despite Reynolds’s suggestion to the contrary, “the state does
not have to prove actual impaired driving; instead, it [need] only show impaired driving
ability.” State v. Schlagheck, 6th Dist. Lucas No. L-00-1121, 2001 WL 85158, *8 (Feb.
2, 2001). The state may rely on physiological factors, such as glossy or bloodshot eyes,
slurred speech, and confused appearance, to demonstrate that a person’s physical and
mental ability to drive was impaired. Id.{¶ 27} Here, it is undisputed that Reynolds was operating a vehicle. As for
whether she was “under the influence of a drug of abuse,” the state presented evidence
12.
that Reynolds exhibited physiological signs of impairment, including glassy, bloodshot
eyes, slurred speech, and lethargic movements. It presented evidence that she exhibited
clues of impairment in two sets of field sobriety tests administered independently by both
Palmer and Moomey. And it presented evidence that Reynolds admitted taking certain
prescribed medications that constitute “drugs of abuse.”1 The state was not required to
show that Reynolds was driving recklessly. The evidence, if believed, was therefore
sufficient to support her conviction.
{¶ 28} As for Reynolds’s claim that field sobriety tests were not properly
administered, that argument is more appropriately considered in addressing her second
assignment of error.
2. Manifest Weight of the Evidence
{¶ 29} When reviewing a claim that a verdict is against the manifest weight of the
evidence, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether the jury clearly lost its way
in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d
at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the
state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of
1
We note that while the state repeatedly stated that Reynolds took 14 medications,
Moomey’s report indicates that she took only six of those prescribed medications that
day. She had taken others the night before.
13.
the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L–10–1369, 2012–
Ohio–6068, ¶ 15, citing Thompkins at 388. Reversal on manifest weight grounds is
reserved for “the exceptional case in which the evidence weighs heavily against the
conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶ 30} Although under a manifest-weight standard we consider the credibility of
witnesses, we must nonetheless extend special deference to the jury’s credibility
determinations given that it is the jury who has the benefit of seeing the witnesses testify,
observing their facial expressions and body language, hearing their voice inflections, and
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.
Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.
{¶ 31} Reynolds maintains that Palmer did not know the effects of drugs on
people and saw nothing on any pill bottles to suggest that Reynolds should not have been
driving. She also contends that Moomey is not a pharmacist and does not know how
Reynolds’s medications may interact. Problematically, Reynolds did not object to the
state’s request to qualify Moomey as a drug recognition expert, nor did she object to the
admissibility of Moomey’s observations and opinions.
{¶ 32} In any event, while it is true that the state must provide evidence of “a
nexus between the ingestion of a substance of abuse and the driver’s impairment”— State
v. Love, 7th Dist. Columbiana No. 21 CO 0009, 2022-Ohio-1454, 188 N.E.3d 622, ¶
14.
15, appeal not allowed, 167 Ohio St.3d 1482, 2022-Ohio-2765—the Ohio Supreme Court
has recognized that “[w]hen the effects of a drug are sufficiently well known * * *[,]
expert testimony linking ingestion of the drug with indicia of impairment is
unnecessary.” Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, at ¶ 19.
In Richardson, the drug at issue was hydrocodone and the court found that the effects of
hydrocodone—a Schedule II controlled substance—are well known, therefore, expert
testimony establishing the nexus was unnecessary. So too are the effects of oxycodone,
also a Schedule II controlled substance, which Reynolds admitted to ingesting. See
https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf (last accessed
September 12, 2022). See also State v. Wieser, 3d Dist. Allen No. 1-18-15, 2018-Ohio-
3619, ¶ 17 (explaining that for purposes of an OVI charge, the issue of whether a drug is
a controlled substance is a question of law for the court).
{¶ 33} Moomey’s opinions concerning Reynolds’s impairment could be
considered, therefore, despite her lack of expertise in the field of pharmacy. It was up to
the jury to assign weight to her testimony. And given Moomey’s opinions, Palmer’s
observations, and Reynolds’s performance on field sobriety tests—which was recorded
and played for the jury—we cannot say that the jury clearly lost its way in resolving
evidentiary conflicts simply because it chose to believe the evidence presented by the
state. State v. Martin-Paley, 12th Dist. Warren No. CA2020-05-032, 2021-Ohio-1631, ¶
15.
22 (“The jury is free to believe or disbelieve all, or part of, the evidence presented at
trial.).
{¶ 34} Finally, although not assigned as a separate error, Reynolds complains that
Palmer and the assistant prosecutor repeatedly made reference to the dispatch call that
indicated that Reynolds was driving recklessly, even though the court had ruled that it
could be alluded to only to show that the officer went to look for the individual after
receiving this call. It is true that this call was referenced several times and that Palmer
supplied more information about the call than was permitted. But trial counsel registered
timely objections that the trial court sustained, and the jury was instructed that the content
of the dispatch call could not be considered for the truth of the matter. We will generally
presume that the jury followed the trial court’s limiting instructions. See State v.
Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 69; State v. Thomas, 6th
Dist. Lucas No. L-17-1266, 2019-Ohio-1916, ¶ 32.
{¶ 35} Accordingly, we find Reynolds’s first assignment of error not well-taken.
B. Ineffective Assistance of Counsel
{¶ 36} In her second assignment of error, Reynolds argues that trial counsel was
ineffective because he failed to file a motion to suppress evidence on the basis that (1) the
officer lacked reasonable, articulable suspicion to stop her for driving five miles per hour
over the speed limit and to detain her to administer field sobriety tests; (2) the tests were
not performed in substantial compliance with the standards for administering such tests
16.
given that the HGN was held for seven seconds instead of five, Reynolds had numerous
medical problems, and unusual circumstances—including the cold weather—affected the
tests; and (3) Palmer could not remember if he Mirandized Reynolds before she admitted
that she was prescribed and used 14 medications.
{¶ 37} The state responds that an officer may stop a driver for a de minimis traffic
violation, and Reynolds’s glassy bloodshot eyes, slurred speech, and lethargy provided
the officer with reasonable, articulable suspicion to detain her for the purpose of
administering field sobriety tests. It insists that the field sobriety tests were performed in
substantial compliance with NHTSA standards. Finally, the state responds that even if
Reynolds made admissions to Palmer before she was Mirandized, she made the same
admissions to Mooney after she was Mirandized.
{¶ 38} Properly licensed Ohio lawyers are presumed competent. State v. Banks,
9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. In order to prevail on a claim
of ineffective assistance of counsel, an appellant must show that counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial court cannot be
relied on as having produced a just result. State v. Shuttlesworth, 104 Ohio App.3d 281,
287, 661 N.E.2d 817 (7th Dist.1995). To establish ineffective assistance of counsel, an
appellant must show “(1) deficient performance of counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the proceeding’s result would have
17.
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶
204, citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
1. The Traffic Stop and the Detention that Followed
{¶ 39} Reynolds argues that trial counsel was ineffective for failing to file a
motion to suppress evidence on the basis that the officer lacked reasonable, articulable
suspicion to stop her for driving five-miles-per-hour over the speed limit and to detain her
to administer field sobriety tests.
{¶ 40} Where a police officer has a reasonable and articulable suspicion of
criminal activity, he or she may make a brief, investigative stop. State v. Melchor, 114
Ohio App.3d 534, 538, 683 N.E.2d 442 (6th Dist.1996), citing Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This court has recognized that “a ‘de minimis
violation of traffic laws’ is generally sufficient to justify a stop.” State v. Clark, 2018-
Ohio-2029, 101 N.E.3d 758, ¶ 23 (6th Dist.), citing State v. Dukes, 4th Dist. Scioto No.
16CA3745, 2017-Ohio-7204, ¶ 16.
{¶ 41} In Melchor, we affirmed the validity of a stop even though the trooper
testified that the defendant had exceeded the speed limit by only five miles per hour. Id.
at 535. We found that the trooper had reasonable, articulable suspicion that the defendant
was violating R.C. 4511.21 by driving over the speed limit. Id. at 538.
18.
{¶ 42} This case presents the same scenario. It is undisputed that Reynolds was
traveling five miles per hour over the speed limit. While this was a fairly de minimis
traffic violation—Palmer testified that he routinely exceeds the speed limit by five miles
per hour and would not normally stop a driver for driving five miles per hour over the
speed limit—it nevertheless provided Palmer with reasonable, articulable suspicion that
Reynolds had violated R.C. 4511.21. This is true regardless of the fact that he did not
ultimately cite her for this violation. State v. Arms, 6th Dist. Lucas No. L-97-1282, 1998
WL 114356, *3 (Mar. 6, 1998) (“Reasonable suspicion, based on specific and articulable
facts, to conduct an investigatory stop after a police officer observes a traffic violation is
not negated by the fact an officer does not issue a ticket after investigating.”).
{¶ 43} Turning to Palmer’s decision to perform field sobriety tests, Ohio courts
recognize that these tests invade one’s liberty interests, therefore, “‘they must be
separately justifiable by specific, articulable facts which show a reasonable basis for the
request.’” State v. Wright, 2015-Ohio-2600, 38 N.E.3d 485, ¶ 52 (11th Dist.), quoting
State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). In Wright, the
Court found that the officer had a reasonable basis for requesting the defendant to submit
to field sobriety tests where he observed a marked lanes violation, there had been
citizen reports that defendant was driving erratically, defendant’s pupils were highly
constricted despite the dark conditions, his responses to the officer’s requests were
extremely slow, and he acted lethargically. Id. at ¶ 54-57. See also State v. Glime, 9th
19.
Dist. Lorain No. 01CA007856, 2001 WL 1339478 (Oct. 31, 2001) (finding probable
cause to arrest for OVI even without results of field sobriety tests where officer observed
defendant drive vehicle down center of road, he did not stop immediately upon the officer
activating his lights and sirens, and he had glassy, bloodshot eyes and slow,
slurred speech); Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, at *1 (trooper
asked defendant to submit to field sobriety tests after observing that defendant’s gait was
unsteady, his balance was poor, his speech was slurred, and his eyes were red with
constricted pupils).
{¶ 44} Here, Palmer testified that Reynolds’s eyes were bloodshot and glassy, her
speech was slurred, and her movements were lethargic. These observations provided
reasonable, articulable suspicion for Palmer to ask Reynolds to submit to field sobriety
tests. Accordingly, we conclude that there is no reasonable probability that the outcome
of the proceedings would have been different if trial counsel had filed a motion to
suppress evidence on the basis that the initial stop and the detention that followed were
not justified.
2. The Administration of the Field Sobriety Tests
{¶ 45} Reynolds next argues that trial counsel was ineffective for failing to file a
motion to suppress evidence on the basis that the field sobriety tests were not performed
in substantial compliance with the standards for administering such tests given that the
20.
HGN was held for seven seconds instead of five, Reynolds had numerous medical
problems, and the cold weather affected the tests.
{¶ 46} Ohio courts recognize that the time set forth in the NHTSA manual for
completing the various elements of the HGN test are approximate. (Citations omitted.)
State v. Scott, 6th Dist. Lucas No. L-21-1128, 2022-Ohio-2071, ¶ 37. Those times are set
forth as “minimum” times, meaning that the HGN test may be compliant with NHTSA
standards even when performed more slowly than the time specified in the manual. See
State v. Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, ¶ 38 (noting
that stimulus must be held at maximum deviation for a minimum of four seconds); State
v. Clark, 12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567, ¶ 23 (“[T]he NHTSA
guidelines list certain approximate and minimum time requirements for the various
portions of the test.”). Moreover, the standard for admissibility is substantial, not strict,
compliance. State v. Emmons, 5th Dist. Ashland No. 14-COA-016, 2014-Ohio-5842, ¶
21. We find that Palmer substantially complied with the minimum time requirements for
performing the HGN tests, and Reynolds has not alleged any similar deficiency in
Moomey’s administration of the tests.
{¶ 47} As for Reynolds’s claim that the cold weather and numerous medical
problems—including left leg injury and pain, back injury and pain, lazy eye, and
limping—greatly affected her performance on the field sobriety tests, Reynolds is not
specific as to how her performance was affected. See State v. Hall, 2d Dist. Clark No.
21.
05CA0006, 2005-Ohio-6672, ¶ 25 (explaining that officers’ awareness of defendant’s
alleged physical defect “permitted Defendant to question the judgments the officer made
concerning Defendant’s performance of those tests in relation to the probable cause to
arrest issue,” but noting the absence of evidence on this point).
{¶ 48} In any event, Palmer testified that he told Reynolds she did not have to
perform the walk-and-turn test because of her physical ailments, but she said she wanted
to. Moomey similarly asked Reynolds if she wanted to continue with tests despite her
claimed medical conditions and she said yes. See State v. Hess, 2d Dist. Champaign No.
2021-CA-11, 2021-Ohio-3755, ¶ 35 (observing that despite informing officer of “balance
issues,” defendant replied affirmatively when asked if he could complete the test as
instructed). Palmer testified that Reynolds used her right leg to stand on during the one-
leg stand test. Moomey had Reynolds perform both ways—balancing on her right leg,
then on her left—and Reynolds lost balance both ways. And Palmer testified that despite
the cold, “a normal person should have been able to conduct the test”; weather was not a
factor in Moomey’s administration of the tests Under these circumstances, we find that
Reynolds has failed to demonstrate a reasonable probability that the outcome of the
proceedings would have been different if counsel had moved to suppress the results of the
field sobriety tests.
3. The Statements
22.
{¶ 49} Finally, Reynolds argues that trial counsel was ineffective for failing to file
a motion to suppress evidence on the basis that the officer could not remember if he
Mirandized Reynolds before she admitted that she was prescribed and used 14
medications.
{¶ 50} In Miranda v. Arizona,, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), “the United States Supreme Court established procedural safeguards for securing
the privilege against self-incrimination guaranteed by the Fifth Amendment to the United
States Constitution.” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d
810, ¶ 8. “What are now commonly known as Miranda warnings are intended to protect
a suspect from the coercive pressure present during a custodial interrogation.” Id. at ¶ 9.
“A custodial interrogation is ‘questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.’” Id., quoting Miranda at 444. “If a suspect provides responses while in
custody without having first been informed of his or her Miranda rights, the responses
may not be admitted at trial as evidence of guilt.” Id., citing Miranda at 479.
{¶ 51} Roadside questioning of a motorist detained pursuant to a routine traffic
stop does not usually constitute a “custodial interrogation” for purposes of Miranda.
State v. Ferrell, 2017-Ohio-9341, 91 N.E.3d 766, ¶ 28 (11th Dist.), citing Berkemer v.
McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Palmer was,
23.
therefore, not required to Mirandize Reynolds before asking her about her medications
during roadside questioning.
{¶ 52} Additionally, although the audio is difficult to hear at times, it is clear that
after Palmer arrested Reynolds and read her her rights, Reynolds volunteered information
about her prescribed medications. Moreover, once Reynolds got to the station, before she
was evaluated by Moomey, Moomey again read Reynolds her rights. After waiving
those rights, Reynolds again provided information concerning what medications she was
prescribed and when she last took each of those medications. As such, it would have
made no difference in the outcome of the proceedings if counsel would have moved to
suppress any pre-Miranda statements because Reynolds provided the same information
again—twice—after being Mirandized.
{¶ 53} Accordingly, we find Reynolds’s second assignment of error not well-
taken.
III. Conclusion
{¶ 54} Reynolds’s conviction was not against the weight or sufficiency of the
evidence. The state presented evidence that Reynolds was operating a vehicle while
under the influence of certain drugs of abuse, and we cannot say here that the jury clearly
lost its way in resolving evidentiary conflicts in favor of the state. We, therefore, find her
first assignment of error not well-taken.
24.
{¶ 55} Reynolds has failed to demonstrate that there was a reasonable probability
that the outcome of the proceedings would have been different had trial counsel moved to
suppress evidence of the stop, the further detention to administer field sobriety tests, the
results of the field sobriety tests, or statements she made concerning her medications.
We, therefore, find her second assignment of error not well-taken.
{¶ 56} We affirm the November 16, 2021 judgment of the Bowling Green
Municipal Court. Reynolds is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
25.
26.