State v. Avery ( 2024 )

[Cite as State v. Avery, 2024-Ohio-1642.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
State of Ohio, : Case No. 23CA12
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Shane Donahue Avery, :
Defendant-Appellant. : RELEASED 4/26/2024
______________________________________________________________________
APPEARANCES:
Max Hersch, Assistant State Public Defender, Columbus, Ohio, for appellant.
John W. Judkins, Assistant Law Director, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Shane Donahue Avery appeals from a judgment of the Chillicothe Municipal
Court convicting him, following a jury trial, of one count of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination of them (“OVI”). Avery presents
one assignment of error asserting that his conviction was against the manifest weight of
the evidence. For the reasons which follow, we overrule the assignment of error and
affirm the trial court’s judgment.
Ross App. No. 23CA12 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} Avery was cited with OVI in violation of R.C. 4511.19(A)(1)(a). He pleaded
not guilty. He filed a motion to suppress which the trial court overruled after a hearing.
The matter proceeded to a jury trial.
A. Trooper Draper’s Testimony
{¶3} Trooper Kelsey Draper of the Ohio State Highway Patrol testified that the
night of May 29, 2022, in Chillicothe, Ohio, she observed a vehicle which was travelling
southbound on Brownell Street turn right onto Main Street. As the vehicle turned, it
traveled over the center line by about a tire width. She initiated a traffic stop. Avery was
the driver of the vehicle, and he had a passenger. When Trooper Draper initially
approached the vehicle, she did not smell anything. She “leaned into the vehicle a little
bit more” to get Avery’s license, and she smelled the odor of an alcoholic beverage and
burnt marijuana. Trooper Draper observed that Avery’s eyes were bloodshot and glassy.
She also observed that he was “very talkative” but acknowledged that alone is not an
indication of impairment and “could just be part of someone’s personality.” Trooper Draper
testified that Avery admitted “to consuming alcoholic beverages earlier in the day” and “to
smoking marijuana quite frequently.” She asked him to step outside of the vehicle. She
noticed some “odd behaviors”—he was “kind of in a euphoric state,” “kind of swaying”
while walking, and “didn’t put his shoes on.” She testified that “[a] normal person under
those circumstances wouldn’t be so relaxed.” However, she acknowledged that taking
off one’s shoes is “[n]ot necessarily” an indication of impairment. As she spoke to Avery
more, she could smell the odor of an alcoholic beverage and burnt marijuana coming from
his person.
Ross App. No. 23CA12 3
{¶4} Trooper Draper performed three standardized field sobriety tests: the
horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test.
Trooper Draper testified that she observed 4 of 22 standardized clues during the tests.
She testified that horizontal gaze nystagmus (“HGN”) “is the involuntary jerking of our
eyes” which is “not really visible to the naked eye unless we consume a substance
essentially that slows it down or there is certain type of medical conditions [sic] that can
cause it as well.” Trooper Draper testified that the HGN test “kind of pertains more to
alcohol and certain drug categories more than marijuana.” Before performing the HGN
test, she did a pre-test and did not observe anything of note. Trooper Draper testified that
the HGN test has “three clues for each eye, for a total of six.” She observed two clues,
one for each eye—a lack of smooth pursuit when she moved her finger across his face.
She did not observe any nystagmus. When asked if “nystagmus is the greatest indication
of being influenced by alcohol,” she testified: “Alcohol, depressants. You have also got
other types of drugs that it can be seen in.”
{¶5} Trooper Draper observed one of eight clues on the walk-and-turn test—
Avery raised his arms over six inches for balance. Trooper Draper also testified that Avery
“had a hard time following the instructions” for the test and looked straight ahead instead
of down at his feet like he was told to do. On cross-examination, she acknowledged Avery
could have been expressing “disbelief” when he raised his arms too high during the test.
Trooper Draper observed one clue during the one-leg stand test—Avery raised his arms
over six inches from his sides. She also testified that during the test one is supposed to
raise a foot about six inches above the ground. She testified that Avery “barely had his
foot off the ground, maybe an inch, two inches,” and she had to tell him to raise it.
Ross App. No. 23CA12 4
{¶6} She looked inside Avery’s mouth and observed a green film on his tongue
and that the glands at the back of his throat were red and raised. She testified that
smoking causes glands at the back of the throat to become red and inflamed and that
when one smokes marijuana, “a green product, some of that film from the substance * *
* will actually stick to the back [of] your tongue and your gland area.” Trooper Draper also
checked Avery’s reaction to light. She testified that when a light is shined in one’s eyes,
the pupils naturally get and stay small. If one has used marijuana, the pupils get bigger
instead. She testified that Avery had “rebound dilation” in both eyes—his pupils got larger
the longer she kept the light in his eyes, which “kind of is consistent with marijuana
impairment” and “other types of drugs.”
{¶7} Trooper Draper performed a lack-of-convergence test, which she testified
is not a standardized test as it “is relatively new” and has not been the subject of as many
studies as the standardized tests for alcohol impairment. Using only his eyes, Avery was
to follow her fingertip as she moved it around his face and held it by the bridge of his nose
for a few seconds. Trooper Draper testified that the eyes are supposed to “converge,” but
if the person has consumed drugs or has certain medical issues, their eyes will not
converge, or one or both eyes will “bounce back out.” Trooper Draper testified that Avery’s
“left eye kicked out” during the test. She also performed the modified Romberg balance
test, a skill evaluation which involves estimating the passage of time. She testified that
alcohol and marijuana slow down one’s estimation of time and that Avery thought 30
seconds passed in 43 seconds. During the test, she walked around Avery while shining
a light on him to check for eye lid and body tremors, which use of marijuana and other
types of drugs can make visible. Avery’s “eye lids were tremoring.”
Ross App. No. 23CA12 5
{¶8} Trooper Draper testified about a few exchanges between her and Avery on
video footage from the traffic stop. In one exchange, Trooper Draper says, “So you live
in Chillicothe now?” and Avery says, “I, I’m, uh, residing with my brother in Lickskillet, uh,
Dallas, my younger brother. I, my home, I lost my home in Tennessee.” On direct
examination, Trooper Draper testified that Avery “didn’t really understand my question. It
seemed like he just kind of went off in his own world and started speaking oddly.” On
cross-examination, she testified that Avery answered her question. In another exchange,
Trooper Draper asks Avery if flashing lights have ever caused him to have seizures.
Avery says, “No, and later adds, “I have an ambulance,” and laughs. On direct
examination, Trooper Draper testified that having an ambulance did not have anything to
do with her questioning. When asked if Avery’s non-responsiveness to some questions
indicated anything to her, she testified that “when we consume alcohol, certain drugs and
stuff like that, it kind of diminishes our attention span. It makes it hard to focus on multiple
things at one time.” On cross-examination, defense counsel said, “[I]t’s probably
reasonable for [Avery] to state that he’s okay with flashing lights because he owns an
ambulance. It’s not off topic.” Trooper Draper responded, “It’s just a little odd.” In another
exchange, Trooper Draper asks Avery if he has been drinking, and he says, “Probably
fucking three hours ago.” Later she asks the last time he smoked weed, and Avery says,
“Probably two hours ago.” On direct examination, Trooper Draper suggested that Avery
gave inconsistent answers to these questions, which indicated he was “having a hard
time judging time” and was “kind of * * * being untruthful.” She testified, “I don’t think he
recalled what he actually told me to begin with.”
Ross App. No. 23CA12 6
{¶9} Trooper Draper testified that “[b]ased on the totality of everything that [she]
observed,” she believed Avery was under the influence. She arrested him. Trooper
Draper testified that Avery asked her to get his cell phone. She went into his vehicle and
found a partially burnt marijuana cigarette under the driver’s seat. She did not know when
it had been smoked. Trooper Draper testified that when she transported Avery to the
patrol post, he was “really moody. He would be happy, giddy, kind of giggly, and then * *
* kind of belligerent. His mood was just up and down constantly. That is an indicator of
drug, alcohol use and stuff like that.” She testified that at one point Avery was “getting off
track again and talking randomly.” At another point, he “kind of drift[ed] off in what he’s
saying,” his speech got slower, and it sounded like he was about to fall asleep. She also
testified that throughout her interaction with Avery, he “just kept stroking his beard” which
she found odd under the circumstances.
B. Video Footage
{¶10} On the video footage, about a minute elapses between the traffic violation
and traffic stop. When Trooper Draper tells Avery the reason for the stop, he says, “Big
ass car, isn’t it?” and laughs. Avery gives Trooper Draper his license, and she asks if he
is from Tennessee. He says, “Within reason. I’ve lived here for 33 years.” He says
something about “14 years,” that he is “satelliting from out Lickskillet way,” and “I have a
P.O. Box there still.” Trooper Draper asks if Avery has his vehicle registration, and Avery
says, “I’m just moving everywhere up and back. Um, I don’t know if I got the registration.”
When asked if he had been drinking, Avery says, “Probably fucking three hours ago,” as
he eats a sandwich. Avery exits the car upon Trooper Draper’s request. Trooper Draper
tells the passenger to stay in the car. Avery laughs and says, “That’s not my girlfriend.”
Ross App. No. 23CA12 7
Avery evidently takes his shoes off, and Trooper Draper asks whether he wants to put his
shoes on. Avery says that he only wears them to drive. Trooper Draper asks Avery to
walk to the back of her cruiser. While he does, there is a point where he seems to shift
slightly to the side and back.
{¶11} Trooper Draper asks Avery, “So you live in Chillicothe now?” Avery says,
“I, I’m, uh, residing with my brother in Lickskillet, uh, Dallas, my younger brother. I, my
home, I lost my home in Tennessee.” Trooper Draper asks if he is “just kind of in between
right now?” He says, “Yes,” and then says that he gets his daughter every other weekend
in Tennessee, so he has “a P.O. Box there.” Trooper Draper asks Avery if he has smoked
any marijuana tonight. Avery says, “Oh yeah, definitely.” Avery says it was “long enough
ago to where I’m happy to be okay at the wheel though because I mean, I do carry a car
seat” and laughs. Trooper Draper asks Avery how much he has had to drink. Avery says,
“Oh, Jesus, uh, all day long?” Trooper Draper says, “Yeah, pretty much.” Avery says,
“Four.” Avery indicates he drank beer. Avery then tells Trooper Draper that he is visiting
his friend George, his passenger, and took him to get something to eat. Avery tells
Trooper Draper that he takes George’s “dog for rides too” and laughs.
{¶12} Trooper Draper asks Avery if he takes any prescription medication, and he
says, “No.” Trooper Draper asks if Avery has any physical issues, and he tells her that
his shoulders have been “torn out” but are “back in line.” At one point, Trooper Draper
asks if Avery had any recent head injuries. Avery tells her that his head was “pasted”
back together “in 21” after he was “beaten with some boat oars,” but he is “alright now”
and feels “pretty good.” Trooper Draper asks if Avery has any neurological disorders.
Avery tells her that he is on 100% disability due to a central nervous disorder from his
Ross App. No. 23CA12 8
service in Kuwait, but he is “doing alright with it.” He says that “the cannabis helps” and
talks about other servicemen using gabapentin, which limits mobility and does not help
them heal. Trooper Draper asks if Avery has an ear infection, and he reports a right ear
infection. Trooper Draper asks Avery if he suffers from epilepsy. Trooper Draper then
asks if flashing lights have ever caused him to have seizures. Avery says, “No, and later
adds, “I have an ambulance,” and laughs.
{¶13} After some testing, Trooper Draper asks Avery the last time he smoked
weed. Avery says, “Probably two hours ago.” He says, “Don’t have any on us.
Noth…Nothing here. So I just usually carry enough to get me through my little trip.” He
tells Trooper Draper that he typically smokes three or four joints a day. Trooper Draper
asks if Avery smokes meth. Avery says that he does not, that he has “zero cavities at
54,” and laughs. He then says, “Matter of fact, where my grandfa… where, where the
Rally’s is, is where my grandfather’s gas station was. That’s why this man looks so
familiar. And H&H Automotive right here next to Crall’s. That’s … that’s what we were
just talking about as we made a loop. We went, you know, up north Bridge and then
made a, a fun way back but encountered you. But we were just talking about my
grandfather’s station over here.”
{¶14} Trooper Draper later explains the walk-and-turn test, including the fact that
that Avery should keep his hands down at his sides and look at the tip of his lead foot.
During the test, Trooper Draper tells him to look at his foot. He says, “Why do I have to
look at it I know where I’m going.” While making this statement, he raises his arms a little,
lifts his left arm up more, and gestures forward. Avery puts his arms down, and Trooper
Draper says he needs to look at his foot like she showed him. Avery continues walking
Ross App. No. 23CA12 9
and raises his arms up saying, “You have to stare at them?” He then puts his arms down
again and finishes the test. When Trooper Draper explains the one-leg stand test, she
tells Avery to raise one foot off the ground about six inches and keep his hands at his
sides. When the test begins, Avery immediately lifts his arms up away from his sides.
Trooper Draper tells him to put his hands at his sides and raise his foot a little higher.
When Trooper Draper explains the modified Romberg balance test, she tells Avery that
he will keep his eyes closed until he thinks 30 seconds has passed. During the test, Avery
asks, “With my eyes closed the whole time?” Later in the footage, Avery refuses to take
a urine test.
C. Avery’s Testimony
{¶15} Avery testified that he served in the Marines and that he traveled from
Tennessee to pick up his friend George so that they could “tidy up some mounds” or
“grave sites” during Memorial Day weekend. At one point, they got something to eat, and
Avery started driving them back to George’s house. Avery pulled onto Main Street and
“felt the wide right because that’s kind of how long the car is.” Avery testified that he was
in a big car—a 1994 Lincoln which he thought had a 17½ foot long wheelbase. Avery
testified that he felt comfortable driving despite drinking and smoking cannabis earlier.
He denied smoking the day of trial.
D. Verdict
{¶16} The jury found Avery guilty of OVI.1 The trial court sentenced him, and this
appeal followed.
1 Evidently Avery was also charged with the marked-lanes violation in a separate case, and the trial court
found him guilty.
Ross App. No. 23CA12 10
II. ASSIGNMENT OF ERROR
{¶17} Avery presents one assignment of error: “Shane Avery’s conviction for
driving while under the influence was against the manifest weight of the evidence.”
III. LAW AND ANALYSIS
{¶18} In his sole assignment of error, Avery contends that his conviction was
against the manifest weight of the evidence. In determining whether a 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 reversal of the conviction
is necessary. In order to satisfy this test, the state must introduce substantial
evidence on all the elements of an offense, so that the jury can find guilt
beyond a reasonable doubt.
Although a court of appeals may determine that a judgment of a trial court
is sustained by sufficient evidence, that court may nevertheless conclude
that the judgment is against the weight of the evidence. However, we are
reminded that generally, it is the role of the jury to determine the weight and
credibility of evidence. “ ‘A jury, sitting as the trier of fact, is free to believe
all, part or none of the testimony of any witness who appears before it.’ ”
State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338,
¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-
1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and
credibility issues because it is in the best position to gauge the witnesses’
demeanor, gestures, and voice inflections, and to use these observations
to weigh their credibility.
(Citations omitted.) State v. Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, ¶
14-15. “ ‘Ultimately, a reviewing court should find a trial court’s decision is against the
manifest weight of the evidence only in the exceptional case where the evidence weighs
heavily against the decision.’ ” State v. Allen, 4th Dist. Ross No. 21CA3736, 2022-Ohio-
1180, ¶ 27, quoting State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-4983, ¶ 28,
citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330.
Ross App. No. 23CA12 11
{¶19} R.C. 4511.19(A)(1)(a) states: “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 trial court instructed the jury:
“Under the influence” means that Shane Avery consumed some
alcohol or drug of abuse or both, whether mild or potent, in such a quantity,
whether small or great, that it adversely affected and noticeably impaired
his actions, reactions or mental processes under the circumstances then
existing, and deprived him of clearness of the intellect and control of himself
which he would otherwise have possessed.
The question is not how much alcohol or drugs would affect an
ordinary person. The question is what effect did any alcohol or drugs
consumed by Shane Avery have on him at the time and place involved.
If the consumption of alcohol or drugs so affected the nervous
system, brain, or muscles of Shane Avery as to impair to a noticeable
degree his ability to operate the vehicle, then he was under the influence.
The court instructed the jury that marijuana is a drug of abuse. In addition, the court
instructed the jury:
Evidence has been introduced indicating that Shane Avery was
asked but refused to submit to a chemical test of his urine to determine the
amount of marijuana in his system for the purpose of suggesting that he
believed that he was under the influence.
If you find that Shane Avery refused to submit to the test, you may,
but you are not required to, consider this evidence along with all of the other
facts and circumstances in evidence in deciding whether he was under the
influence.
A. Case Law
{¶20} Avery asserts that State v. Kopp, 2017-Ohio-4428, 93 N.E.3d 199 (5th
Dist.); State v. King, 4th Dist. Athens No. 18CA5, 2018-Ohio-4929; and State v. Cohen,
1st Dist. Hamilton No. C-220354, 2023-Ohio-1643, are “instructive as to why the jury lost
its way in this case.”
Ross App. No. 23CA12 12
1. State v. Kopp
{¶21} In Kopp, a trooper stopped a vehicle because the rear license-plate light
was out, and the registered owner had an expired Ohio license. Kopp at ¶ 3. The trooper
observed no traffic violations. Id. at ¶ 4. The trooper smelled the odor of fresh marijuana
and an alcoholic beverage coming from the vehicle. Id. at ¶ 5. The driver admitted that
he smoked marijuana earlier. Id. The trooper asked if the driver had anything to drink
but did not hear his response. Id. The driver’s eyes were very glassy and somewhat
bloodshot, and his pupils were dilated. Id. at ¶ 5, 8. The driver exited the vehicle without
incident, and the trooper observed seven clues during three standardized field sobriety
tests. Id. at ¶ 6, 8. The trooper also determined the driver failed the lack-of-convergence
test because his right eye did not converge and drifted right twice. Id. at ¶ 10. The driver
correctly said the alphabet and counted backward from 69 to 57. Id. at ¶ 11. The driver
was arrested and cited for OVI. Id. at ¶ 12-13. The trial court granted his motion to
suppress, concluding there was not probable cause for the arrest. Id. at ¶ 14, 21.
{¶22} The Fifth District affirmed. Id. at ¶ 27. The court stated that after reviewing
footage of the stop, “we agree [the driver] exhibited no impaired driving; spoke to the
officer calmly, politely, and intelligibly when audible; exited the truck without incident;
submitted to the field sobriety tests without incident and generally exhibited no visible
signs of impairment.” Id. at ¶ 21. The Fifth District found that the odor of raw marijuana
emanating from the vehicle, driver’s admission to having smoked marijuana, and clues
observed on the standardized field sobriety tests and lack-of-convergence test provided
reasonable suspicion for the trooper to investigate further, but those facts did not provide
probable cause for the arrest. Id. at ¶ 22.
Ross App. No. 23CA12 13
2. State v. King
{¶23} In King, a trooper initiated a traffic stop for a speeding violation. King, 4th
Dist. Athens No. 18CA5, 2018-Ohio-4929, ¶ 3. The driver only partially rolled her window
down, which was atypical. Id. at ¶ 5. There was marijuana debris on the floorboards and
an odor of raw marijuana emanating from the vehicle. Id. The driver had reddened
conjunctiva, raised taste buds, and a green streak on her tongue, which the trooper knew
to be signs that someone may be under the influence of marijuana. Id. at ¶ 5-6, 8. The
driver admitted that there had been marijuana in the vehicle and that she had smoked
marijuana about three hours earlier. Id. at ¶ 5-6. The trooper observed two clues on the
walk-and-turn test, two clues on the one-leg stand test, and no clues on the HGN test. Id.
at ¶ 9. The driver displayed a lack of convergence, was 12 seconds off in estimating the
passage of time during the modified Romberg test, and had eyelid tremors during that
test. Id. at ¶ 9, fn. 2. The driver’s eyelids were droopy, and her pupils were dilated. Id.
at ¶ 10. According to the trooper, she “appeared ‘very relaxed and just acted * * * like
she was still under the effects of cannabis.’ ” Id. The trooper asked if the driver felt like
she was still under the influence of marijuana, and the driver said “ ‘maybe a little.’ ” Id.
The trooper arrested her and got a urine sample, which contained greater than two
hundred nanograms per milliliter of marijuana metabolites. Id. at ¶ 11. The trial court did
not believe the field sobriety tests could be used to show the driver likely would test above
a prohibited level of marijuana metabolite due to the lack of scientific studies, concluded
the trooper did not have probable cause to arrest her for marijuana impaired OVI, and
suppressed the urine test results. Id. at ¶ 12.
Ross App. No. 23CA12 14
{¶24} We reversed the trial court’s decision in a 2-1 decision. Id. at ¶ 22. We
explained that even if we assumed, without deciding, that the field sobriety tests “should
be discredited in this context,” the following factors, considered together, gave probable
cause for the arrest:
(1) King was travelling in excess of the stated speed; (2) King only partially
rolled her window down, which is atypical; (3) King had reddened
conjunctiva, as well as raised taste buds and a green film of her tongue –
all signs that King had consumed marijuana; (4) King admitted to smoking
marijuana approximately three hours earlier; (5) King seemed very relaxed
and acted as if she was under the influence of marijuana; (6) King stated
that she was “maybe a little” under the influence; (7) Trooper Nihiser
observed droopy eyes, eyelid tremors, and dilated eyes; and (8) Trooper
Nihiser smelled the odor of raw marijuana emanating from King’s vehicle
and saw marijuana debris on the floorboard.
Id. at ¶ 19-20. The concurring judge believed that “the trial court properly discounted the
propriety of using field tests as a reliable measure of a defendant’s probability of testing
above prohibited levels of marijuana” but that there was still probable cause “[f]or the
reasons expressed in the principal opinion.” Id. at ¶ 23, 28 (Harsha, J., concurring). The
dissenting judge, analogizing the case to Kopp, would have affirmed. Id. at ¶ 29-38.
(Hoover, J., dissenting).
3. State v. Cohen
{¶25} In Cohen, an officer initiated a traffic stop after observing a vehicle speeding
and weaving across lane lines. Cohen, 1st Dist. Hamilton No. C-220354, 2023-Ohio-
1643, at ¶ 3. The officer noticed that the driver’s breath smelled like alcohol, her eyes
were red and watery, and her speech was slurred. Id. at ¶ 4. She denied drinking. Id. at
¶ 6. The officer observed nine clues on three field sobriety tests (three on the walk-and-
turn test, six on the HGN test, and none on the one-leg stand test) and that the driver
missed a number in her vocal count during the one-leg stand test. Id. at ¶ 5. The driver
Ross App. No. 23CA12 15
refused to take a chemical test. Id. at ¶ 6. The trial court found her guilty of OVI, speeding,
and a marked-lanes violation. Id. at ¶ 7.
{¶26} The First District concluded that the OVI conviction was not against the
manifest weight of the evidence and affirmed the trial court’s judgment. Id. at ¶ 1. The
appellate court found that even though the video footage did not clearly illustrate the
driver’s slurred speech, red, watery eyes, or the nystagmus clues, the footage did not
undermine the trial court’s judgment. Id. at ¶ 13. The officer explained that the low quality
of the footage failed to capture those indicators of intoxication, and the trial court was in
the best position to evaluate witness credibility. Id. The appellate court also rejected the
contention that the trial court assigned too much weight to the driver’s refusal to take a
chemical test. Id. at ¶ 14. The appellate court explained that the trial court had discretion
to consider that fact and that the trial court also considered testimony that the driver’s
breath smelled of alcohol, that she had red, glassy eyes, that she drove erratically, and
that she exhibited nine clues on the field sobriety tests. Id.
B. Avery’s Arguments
{¶27} Avery contends the jury lost its way when it concluded that he was under
the influence, particularly when the video footage is considered. Avery maintains that
Trooper Draper’s testimony was “internally contradictory.” He asserts that Trooper Draper
testified that he did not understand her question about whether he was from the
Chillicothe area but later admitted he answered her question. He asserts that Trooper
Draper also testified that his comment about having an ambulance was unrelated to her
questioning but later “did not deny” the comment was on topic because she had asked
about flashing lights. Avery also notes Trooper Draper testified that he gave inconsistent
Ross App. No. 23CA12 16
answers about when he last used marijuana, but the video footage shows he told her that
he used marijuana two hours before the stop and alcohol three hours before the stop.
{¶28} In addition, Avery asserts that many of Trooper Draper’s observations “do
not necessarily indicate impairment, even by her own admission.” He notes Trooper
Draper testified that he was more relaxed than a normal person, “kind of in a euphoric
state,” “kind of swaying,” and did not put shoes on, but he asserts she testified these
things were odd, not signs of impairment. He asserts the observation that he was “kind
of swaying” while walking from his car to the cruiser is contradicted by the video footage
and that it is unclear what about his behavior indicated euphoria. He notes Trooper
Draper admitted being talkative could be part of someone’s personality. He claims the
fact that his testimony “sometimes went beyond the scope of the question” and that he
“testified that he had not smoked marijuana” the day of trial is evidence that his
talkativeness was not due to impairment. He also asserts that Trooper Draper never
testified that him rambling, nodding off, or drifting in and out of conversation were
“necessarily signs of impairment,” and he asserts that being tired at a late hour is not
evidence of impairment.
{¶29} Avery maintains that he exhibited no impaired driving despite committing a
marked-lanes violation because Trooper Draper “did not observe any further traffic
violations even after following [him] for about a minute.” He asserts the record shows that
he was forthcoming and cooperative, admitted that he smoked marijuana and drank
alcohol earlier but felt safe to drive, exited his vehicle calmly and without incident, gave a
detailed medical and personal history when asked, submitted to all requested field-
sobriety tests, and generally exhibited no visible signs of impairment. He claims that
Ross App. No. 23CA12 17
because Trooper Draper did not explain how clues on the non-standardized tests help in
assessing impairment, we should discount the weight of those observations. He asserts
that Trooper Draper’s observation of bloodshot and glassy eyes, the odor of marijuana
and alcohol, his admission to smoking and drinking earlier, and 4 standardized clues out
of 22 on the field sobriety tests are insufficient to support his conviction.
{¶30} In addition, Avery contends that the testimony and video evidence in this
case “mirror Kopp and are distinguishable from King and Cohen.” He suggests this case
is like Kopp because both involve a period of driving without traffic violations, an odor of
marijuana and alcohol, bloodshot and glassy eyes, a driver who spoke calmly, politely,
and intelligibly when audible, a driver who exited a vehicle and submitted to field sobriety
tests without incident, observation of few clues on those tests (seven in Kopp and four in
this case), and abnormal eye behavior on the lack-of-convergence test. He asserts that
this case is distinguishable from King because he fully rolled his window down, exited his
car without incident, cooperated with law enforcement, did not admit to feeling under the
influence, and said that he felt comfortable driving. He also asserts that unlike the trooper
in King, Trooper Draper never testified that his “demeanor reflected marijuana or drug
use.” Rather, “her statements about his demeanor were initially qualified and then further
minimized on cross-examination.” Avery asserts this case is distinguishable from Cohen
because he did not commit multiple traffic violations, did not have slurred speech, and
exhibited only four clues in three field sobriety tests. He also claims the video footage in
Cohen “did not undermine or cast doubt upon the trial court’s verdict, whereas
inconsistencies—with or without the body-camera footage—are apparent here.” Id.
Ross App. No. 23CA12 18
C. Analysis
{¶31} Our review of the record reveals that the state introduced substantial
evidence from which the jury could conclude, beyond a reasonable doubt, that Avery
operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of
them. There is evidence that Avery committed a marked-lanes violation. He admitted to
using marijuana and alcohol a few hours earlier. Trooper Draper smelled the odor of
burnt marijuana and alcohol coming from his person. Although Avery suggested he did
not have any marijuana with him, there was a partially burnt marijuana cigarette under
the driver’s seat. Trooper Draper observed Avery had bloodshot and glassy eyes. She
also saw abnormal eye behavior during the lack-of-convergence test, an indicator of drug
use. She saw a green film on Avery’s tongue—an indicator of marijuana use. She also
observed indicators that Avery’s body was still being affected by his marijuana use—the
glands at the back of his throat were red and raised, he exhibited rebound dilation in both
eyes, and he had eyelid tremors. Trooper Draper observed four clues on the standardized
field sobriety tests. In addition, Avery thought 30 seconds passed in 43 seconds on the
modified Romberg balance test, which was consistent with alcohol and marijuana use as
they slow one’s perception of time. Avery also refused to take a urine test, which the jury
could consider as evidence that he believed he was under the influence.
{¶32} Trooper Draper testified that alcohol and other drugs diminish one’s
attention span, and there is evidence that Avery had a diminished attention span. There
is evidence he did not follow all test instructions. At times, he made unsolicited
statements which were entirely unrelated to the traffic stop, like the statements about
taking his friend’s dog for rides and about his grandfather’s gas station. In addition, at
Ross App. No. 23CA12 19
times, he provided unnecessary information while responding to straightforward
questions. For example, when asked if he had his vehicle registration, Avery says, “I’m
just moving everywhere up and back,” before saying, “I don’t know if I got the registration.”
When asked if he lives in Chillicothe now, Avery says that he lives with his brother Dallas
in Lickskillet and lost his home in Tennessee. When asked whether flashing lights ever
caused him to have seizures, Avery says, “No,” but then adds, “I have an ambulance,”
and laughs. Regardless of how one interprets Trooper Draper’s testimony about some
of these exchanges, Avery’s answers reflect a lack of focus on the specific questions
asked.
{¶33} Trooper Draper testified that Avery was “really moody” during the ride to the
patrol post, which was an indicator of drug and alcohol use. She also testified that Avery
exhibited odd behaviors during her encounter with him. Trooper Draper did not
specifically testify that these behaviors were indicative of alcohol or marijuana
impairment. However, they are part of the circumstances she observed, and Trooper
Draper testified that “[b]ased on the totality of everything that [she] observed,” she
believed Avery was under the influence. Trooper Draper did not elaborate on why she
thought Avery was “kind of in a euphoric state,” but her opinion may have related to him
laughing at times. And while unclear, her testimony about him “kind of swaying” while
walking to the back of her cruiser might pertain to the point in the footage where Avery
seems to shift slightly to the side and back.
{¶34} Although Trooper Draper incorrectly indicated that Avery gave inconsistent
answers in response to questions about when he last used alcohol and marijuana, and
one might disagree with her characterization of Avery as “kind of in a euphoric state” or
Ross App. No. 23CA12 20
“kind of swaying,” that does not make all her testimony inherently incredible. Again, a
jury “ ‘ “is free to believe all, part, or none of the testimony of any witnesses who appears
before it.” ’ ” Anderson, 4th Dist. Highland No. 18CA14, 2019-Ohio-395, at ¶ 15, quoting
Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, at ¶ 17, quoting West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, at ¶ 23. Even if the jury did not believe
some of Trooper Draper’s testimony, the jury did not have to discount all of it. Likewise,
the jury had no obligation to believe Avery’s testimony that he felt comfortable driving at
the time of the traffic stop and did not use marijuana the day of trial.
{¶35} Generally, each OVI case “is to be decided on its own particular and
peculiar facts.” Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224 N.E.2d 343 (1967). There
are some similarities between Kopp, which found no probable cause to arrest for OVI,
and this case. But there are also facts present in this case which were not in Kopp, such
as the commission of a traffic violation, statements suggesting a diminished attention
span, and refusal to take a chemical test. Some facts we relied on to find probable cause
for the OVI arrest in King are not present in this case, such as an admission to being
under the influence. But there are also facts present in this case which were not present
in King, such as that Avery admitted to using both alcohol and marijuana, made
statements suggesting he had a diminished attention span, and refused to take a
chemical test. Likewise, while some facts which supported the OVI conviction in Cohen
are not present in this case, there are facts present in this case which were not present
in Cohen, such as the evidence related to marijuana use.
{¶36} After weighing the evidence and all reasonable inferences, considering the
credibility of the witnesses after according the requisite deference to the jury’s
Ross App. No. 23CA12 21
determinations, we conclude that in resolving evidentiary conflicts, the jury did not clearly
lose its way or create a manifest miscarriage of justice so that we must reverse Avery’s
conviction. This is not the exceptional case where the evidence weighs heavily against
the conviction. Accordingly, we conclude that Avery’s OVI conviction was not against the
manifest weight of the evidence, overrule the sole assignment of error, and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 23CA12 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe
Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.