State v. Edwards ( 2022 )

[Cite as State v. Edwards, 2022-Ohio-3534.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 21CA0083
:
MARK EDWARDS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 21CR29
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 30, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES WILLIAM T. CRAMER
LICKING CO. PROSECUTOR 470 Olde Worthington Road, Suite 200
CLIFFORD J. MURPHY Westerville, OH 43082
20 North Second St., 4th Floor
Newark, OH 43055
Licking County, Case No. 21CA0083 2
Delaney, J.
{¶1} Appellant Mark Edwards appeals from the October 14, 2021 Judgment
Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s jury trial.
{¶3} This case arose on September 9, 2020, around 1:30 p.m., when Sgt. Kaitlin
Fuller of the Ohio State Highway Patrol was monitoring traffic and observed a 1995 GMC
Jimmy operating with a loud muffler. Fuller also observed the Jimmy touch the dotted
white line, and the yellow line, within its lane of travel. The driver was not wearing a seat
belt.
{¶4} Fuller initiated a traffic stop of the vehicle and appellant, the driver,
immediately pulled over. Appellant was unable to open the driver’s-side window because
it was broken, so he opened the door. Fuller observed a strong odor of gasoline.
Appellant agreed with Fuller that “the muffler was about to fall off” the vehicle, which
belonged to appellant’s girlfriend.
{¶5} During the ensuing conversation, appellant said he didn’t know his Social
Security number, and gave Fuller the wrong birthdate “due to Alzheimers.” Ultimately
Fuller discovered appellant’s license had several suspensions against it, including
noncompliance; she also discovered appellant had 11 prior O.V.I. convictions, including
five in the last twenty years. Upon Fuller’s second approach to the vehicle, she noticed
appellant lit a cigarette, and she noticed a “slight” odor of an alcoholic beverage. When
she asked appellant if he had anything to drink, at first, he denied it, but later said he
Licking County, Case No. 21CA0083 3
drank two bottled Bud Lights around 10:00 a.m. Also during their conversation, appellant
blurted out spontaneously, “I’m not drunk.”
{¶6} Fuller decided to administer standardized field-sobriety tests which were
not successful. When she attempted to administer the horizontal gaze nystagmus test,
appellant would not focus on the stimulus, to the extent that Fuller concluded he was
evading the test. She moved on to the walk-and-turn test, but appellant was unable to
stand in position and started the test without waiting for instructions. He was unsteady
on his feet and his legs were shaking, but he said it was from nervousness. Fuller also
administered two non-standardized field sobriety tests, but appellant was unable to
complete both so the results were not helpful. Appellant said he had a variety of medical
conditions that affected his memory and balance, among other things.
{¶7} Fuller arrested appellant based upon the totality of the circumstances and
her conclusion that he was under the influence. A urine test was administered, but the
result was suppressed and not entered at trial.
{¶8} Dr. Michael Martin was the sole defense witness. He is a family practitioner
who has treated appellant for 10 to 15 years; appellant visits approximately every three
months because he has numerous health issues. He has had at least one stroke and
has a history of coronary disease, emphysema, and a seizure disorder. He is on a variety
of medications and should not drink at all. Dr. Martin testified about case notes indicating
appellant had a visit in May 2021, eight months after the traffic stop and O.V.I. arrest. At
that time, appellant told Martin he “got drunk” one day in September, failed field sobriety
tests during a traffic stop the next day, but hasn’t had a drink since. Martin was careful
to say that he didn’t know whether appellant was under the influence on the day in
Licking County, Case No. 21CA0083 4
question and could only testify generally to appellant’s overall health. On cross-
examination, Martin acknowledged appellant’s health history includes alcohol
dependence, another reason why he should not drink at all.
{¶9} Appellant was charged by indictment with one count of OVI pursuant to R.C.
4511.19(A)(1)(a)(G)(1)(e)(i) and one count of OVI pursuant to R.C.
4511.19(A)(1)(e)(G)(1)(e)(i), both felonies of the third degree. The indictment also
contained a multiple-OVI specification pursuant to R.C. 2941.1415(A). Appellant entered
pleas of not guilty and filed a motion to suppress evidence of his stop, arrest, and urine
screen. Appellee responded to appellant’s motion to suppress with a memorandum in
opposition.
{¶10} The matter was scheduled for a suppression hearing on April 15, 2021.
Appellee filed a post-hearing brief on the issue of transportation of the urine specimen.
On April 28, 2021, the trial court filed a judgment entry overruling appellant’s motion to
suppress in part and granting it in part. Appellant’s urine test result was suppressed due
to handling of the sample.
{¶11} On June 10, 2021, appellee filed an amended indictment charging appellant
with a single count of OVI pursuant to R.C. 4511.19(A)(1)(a)(G)(1)(e)(i) and a multiple-
OVI specification pursuant to R.C. 2941.1415(A). The offense is a felony of the third
degree.
{¶12} The matter proceeded to trial by jury on October 13, 2021 and appellant
was found guilty as charged. The trial court sentenced appellant to a total aggregate
prison term of three years.
{¶13} Appellant now appeals from the judgment entry of conviction and sentence.
Licking County, Case No. 21CA0083 5
{¶14} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE
CONVICTION FOR OPERATING A VEHICLE WHILE UNDER THE INFLUENCE OF
ALCOHOL OR DRUGS.”
{¶16} “II. APPELLANT’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL UNDER
THE FEDERAL AND STATE CONSTITUTIONS WERE VIOLATED BY
PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.”
{¶17} “III. APPELLANT’S RIGHTS TO THE EFFECTIVE ASSISTANCE OF
COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTIONS WERE VIOLATED
BY DEFENSE COUNSEL’S FAILURE TO OBJECT TO PROSECUTORIAL
MISCONDUCT DURING CLOSING ARGUMENTS.”
ANALYSIS
I.
{¶18} In his first assignment of error, appellant argues his O.V.I. conviction is
against the manifest weight of the evidence. We disagree.
{¶19} R.C. 4511.19(A)(1)(a), which states in pertinent part: No person shall
operate any vehicle* * * within this state, if, at the time of the operation, * * * [t]he person
is under the influence of alcohol, a drug of abuse, or a combination of them.” The jury
also found that appellant had five O.V.I. convictions within the last five years pursuant to
the specification in the indictment pursuant to R.C. 2941.1415(A). Appellant does not
contest the jury’s finding as to his prior convictions.
Licking County, Case No. 21CA0083 6
{¶20} Appellant points to our prior decision in State v. Carozza, 5th Dist. No. 14-
COA-028, 2015-Ohio-1783, 33 N.E.3d 556, at ¶ 22, in which we observed:
{¶21} The phrase “under the influence of intoxicating liquor” has been defined 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.” Toledo v. Starks, [25
Ohio App.2d 162, 166, 267 N.E.2d 824 (1971)]. See, also, State v. Steele, [95 Ohio App.
107, 111, 117 N.E.2d 617 (1952)] (“[B]eing ‘under the influence of alcohol or intoxicating
liquor’ means that the accused must have consumed some intoxicating beverage,
whether mild or potent, and in such quantity, whether small or great, that the effect thereof
on him was to adversely affect his actions, reactions, conduct, movements or mental
processes, or to impair his reactions, under the circumstances then existing so as to
deprive him of that clearness of the intellect and control of himself which he would
otherwise possess”). See, State v. Henderson, 5th Dist. Stark No. 2004–CA–00215,
2005-Ohio-1644, ¶ 32. [Citing State v. Barrett, 5th Dist. Licking No. 00 CA 47, 2001 WL
194782 (Feb. 26, 2001)].
{¶22} In the instant case, appellant argues, the weight of the evidence does not
support the jury’s finding that appellant was appreciably impaired. In determining whether
a conviction is against the manifest weight of the evidence, the court of appeals functions
as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
Licking County, Case No. 21CA0083 7
manifest miscarriage of justice that the conviction must be overturned and a new trial
ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as
being against the manifest weight of the evidence and ordering a new trial should be
reserved for only the “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶23} Appellant concedes, however, that his vehicle touched the center line in the
cruiser camera video; the trooper noted a “slight” odor of an alcoholic beverage and
drawn-out, slow speech; appellant admitted consuming only two beers over three hours
before the stop; and appellant’s performance on the field sobriety tests, while poor, could
be explained by his poor physical health. Appellant fails to note that each of these factors
could be explained by impairment by alcohol or other drugs. Appellant completely ignores
other evidence in the record, however, including appellant’s obfuscations about his
license status; his lack of cooperation on the field sobriety tests including the HGN; his
volunteered statement that “I’m not drunk;” his inability to complete the walk-and-turn test
because of shaking legs; his statement of the wrong date of birth because of “memory
problems;” and his claim that he doesn’t know his social security number. Looking at the
totality of the circumstances, the jury could reasonably find appellant was impaired at the
time of the traffic stop.
{¶24} At trial, appellant argued that his instability and difficulty with field sobriety
tests was due to a variety of medical conditions, including strokes. Appellant offered a
strange piece of evidence to corroborate his medical-condition defense: a statement from
his family doctor, dated eight months after the traffic stop, in which appellant reported that
he had been drunk on the day before the traffic stop and the next day, he failed field-
Licking County, Case No. 21CA0083 8
sobriety tests. Appellant’s family doctor was the only defense witness; he testified to a
variety of debilitating medical conditions suffered by appellant, and a number of
medications which adversely affect his ability to drive. The doctor was careful to say he
could not comment on appellant’s balance and coordination, but if appellant’s balance
was “tested,” he could fall short based upon his history of strokes.
{¶25} Upon cross-examination, however, the doctor agreed that one of appellant’s
medical conditions is alcohol dependence, and that appellant should not drink at all for
many reasons. Alcohol consumption would affect appellant’s ability to drive, the doctor
noted; alcohol consumption would magnify every condition appellant has. The doctor’s
testimony highlights the significance of appellant’s claim to the doctor that he was
purportedly drunk the day before the stop, and his admission to the trooper that he had
two beers on the morning of the stop.
{¶26} The jury had the opportunity to listen to the witnesses and view the video of
the stop, and to weigh the competing explanations for appellant’s evident difficulties in his
interactions with Sgt. Fuller: was he under the influence of alcohol or another drug, or
simply in poor physical condition? The jury could reasonably conclude the former
explanation was more likely. We note the weight to be given to the evidence and the
credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d
182, 189, 552 N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the
demeanor, attitude, and credibility of each witness, something that does not translate well
on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶27} Upon review, we decline to second-guess the credibility determinations of
the jury in this matter. This is not an “ ‘exceptional case in which the evidence weighs
Licking County, Case No. 21CA0083 9
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20
Ohio App.3d at 175.
{¶28} The trial court neither lost its way nor created a miscarriage of justice in
convicting appellant of O.V.I, and appellee presented evidence of his guilt beyond a
reasonable doubt.
{¶29} Appellant's first assignment of error is overruled.
II.
{¶30} In his second assignment of error, appellant argues his constitutional rights
were violated by prosecutorial misconduct during closing argument. We disagree.
{¶31} In his second assignment of error, appellant points to the following
statements by the prosecutor during closing argument, asserting the statements
constitute prosecutorial misconduct:
* * * *. Proof beyond a reasonable doubt is proof of such
character that an ordinary person would be willing to rely upon it in
the most important of their own affairs. The most important of your
own affairs is everyone sitting on this panel has operated a motor
vehicle on a roadway, and you and I do the same thing every day.
We take into consideration that other people will be following the
rules and doing what they’re supposed to be doing and have the
vehicle under control. And part of what you’re being asked [is] the
Defendant in your opinion from the facts presented that type of
person, or is he not. And why it’s important is because forgetfulness
is not an issue according to the doctor. * * * *.
Licking County, Case No. 21CA0083 10
T. 184-185.
{¶32} Appellant argues this statement asks the jury to make an explicit character
judgment about appellant, as to whether he is the type of person who will “follow the rules
of the road.” In the context of the entire argument, we do not find this comment improper.
We find that it doesn’t ask the jury to judge appellant’s character so much as the entire
presentation of appellant that they observed on the video: from the apparent physical
issues to the alleged forgetfulness about birthdate, SSN, and license status, to whether
or not he drank that day. The prosecutor essentially asked the jury whether this is a
person who should be sharing a road with them.
{¶33} We do not discern, and appellant does not reveal, on what basis defense
trial counsel should have objected to this statement. Nevertheless, for the purpose of our
review, defense trial counsel failed to object and bring the alleged error to the attention of
the trial court, therefore appellant has waived all but plain error review. Under the plain
error rule, “[p]lain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). The rule places the
following limitations on a reviewing court's determination to correct an error despite the
absence of timely objections at trial: (1) “there must be an error, i.e. a deviation from a
legal rule,” (2) “the error must be plain,” that is an error that constitutes “an ‘obvious’ defect
in the trial proceedings,” and (3) the error must have affected “substantial rights” such
that “the trial court's error must have affected the outcome of the trial.” State v. Wood, 5th
Dist. Knox No. 20CA000010, 2020-Ohio-4251, 2020 WL 5092841, ¶ 18 citing State v.
Dunn, 5th Dist. Stark No. 2008-CA-00137, 2009-Ohio-1688, 2009 WL 943968, ¶ 89, citing
Licking County, Case No. 21CA0083 11
State v. Morales, 10th Dist. Franklin Nos. 03-AP-318, 2004-Ohio-3391, 2004 WL
1446117, ¶ 19.
{¶34} The test for prosecutorial misconduct is whether the prosecutor's comments
and remarks were improper and if so, whether those comments and remarks prejudicially
affected the substantial rights of the accused. Sunbury v. Sullivan, 5th Dist. Delaware No.
11CAC030025, 2012-Ohio-3699, 2012 WL 3525617, ¶ 30 citing State v. Lott, 51 Ohio
St.3d 160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct,
it is our duty to consider the complained of conduct in the context of the entire trial. Darden
v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not unfair,
if, in the context of the entire trial, it appears clear beyond a reasonable doubt the jury
would have found the defendant guilty even without the improper comments. State v.
Treesh, 90 Ohio St.3d 460, 464, 2001-Ohio-4, 739 N.E.2d 749. Furthermore, both the
prosecution and the defense have wide latitude during opening and closing arguments.
{¶35} However, a prosecutor may not express his personal belief or opinion as to
the credibility of a witness, the guilt of an accused or allude to matters that are not
supported by admissible evidence. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883(1984). The wide latitude given the prosecution during closing arguments “does not
‘encompass inviting the jury to reach its decision on matters outside the evidence
adduced at trial.’ ” State v. Hart, 8th Dist. No. 79564, 2002-Ohio-1084, at 3, citing State
v. Freeman, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st Dist. 2000).
{¶36} We find no plain error in admission of the cited comments, in the context of
the entire closing argument, and it is evident beyond a reasonable doubt the jury would
have found appellant guilty even without the comments.
Licking County, Case No. 21CA0083 12
{¶37} Appellant’s second assignment of error is overruled.
III.
{¶38} In appellant’s third assignment of error, he contends he did not receive the
effective assistance of counsel because counsel did not object to the prosecutor’s
statement in closing argument cited supra.
{¶39} A claim for ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶40} To warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
counsel. Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶41} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “* * * need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶42} In light of our conclusion that the prosecutor did not commit misconduct and
there was no plain error, we find defense trial counsel did not err in failing to object during
closing argument. Appellant was not prejudiced by defense counsel's representation of
Licking County, Case No. 21CA0083 13
him. The result of the trial was not unreliable nor were the proceedings fundamentally
unfair because of the performance of defense counsel.
{¶43} Appellant’s third assignment of error is overruled.
CONCLUSION
{¶44} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, Earle, P.J. and
Baldwin, J., concur.