State v. Dale , 2024 Ohio 2001 ( 2024 )

[Cite as State v. Dale, 2024-Ohio-2001.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230474
TRIAL NO. 22TRC-9885
Plaintiff-Appellee, :
vs. :
O P I N I O N.
BOBBY DALE, JR., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 24, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Joseph Cossins, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Bobby Dale, Jr. was convicted, after a jury trial, of operating a motor
vehicle while impaired (“OVI”). In one assignment of error, Dale argues his conviction
was not supported by sufficient evidence and was contrary to the manifest weight of
the evidence. For the following reasons, we affirm the judgment of the trial court.
Factual Background
{¶2} Dale was charged with driving while impaired after refusing a breath
test and entered a not-guilty plea. He filed two motions to suppress seeking to
suppress his statements and the field-sobriety tests. The court overruled the motions,
and the case proceeded to a jury trial.
{¶3} The state’s first witness was Cincinnati Police Officer Austin Lee, who
was assigned to District 1. Lee was patrolling in a marked police cruiser on May 1,
2022, when he saw a car turn onto W. Court Street and pull over in front of the park
at 11:43 p.m. Lee did not notice any traffic infractions. Dale exited from the vehicle,
leaving the driver’s door open, walked into the closed park, and urinated by a tree. Lee
approached Dale and asked him what he was doing in the park. Dale admitted that he
was urinating in the park. Lee’s body-camera video was played while he testified.
{¶4} While speaking to Dale, Lee heard slurred speech and noticed that Dale
was stumbling and having difficulty standing. Dale also provided a confusing
explanation as to where he was going and from where he was coming. Lee smelled an
odor of alcohol on his breath that got stronger as Dale spoke, and Dale admitted to
consuming one-and-a-half beers.
{¶5} Based on these observations, Lee suspected Dale was impaired and
decided to conduct standardized field-sobriety testing (“SFST”). Lee retrieved an OVI
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OHIO FIRST DISTRICT COURT OF APPEALS
booklet from his car to conduct the tests and allow him to read the test instructions
verbatim. The tests and instructions were provided by the National Highway Traffic
Safety Administration (“NHTSA”). Lee informed Dale that if he performed the tests
well, he would be free to leave.
{¶6} That evening, Lee was training a probationary police officer, Officer
Dawson. Dawson, who appeared on the video, was on maternity leave and did not
testify at trial. The first test administered was the walk-and-turn test. Dawson and
Lee had to repeat the instructions and demonstration multiple times. Lee interpreted
Dale’s inability to comprehend the instructions as an indication of his level of
impairment or combativeness because he did not want to perform the test. Lee
testified that Dale exhibited multiple impairment clues while performing the test.
Dale did not touch heel-to-toe, lost his balance or stepped off the line, used his arms
to balance, raised his arms more than six inches, took an incorrect number of steps,
and did not turn.
{¶7} Next, Dale was instructed on the one-leg stand. Initially, Dale began to
perform the walk-and-turn test instead of the one-leg stand after confirming twice that
he understood the instructions. When Dale finally performed the one-leg stand, he
exhibited no clues.
{¶8} The final test was the horizontal gaze nystagmus (“HGN”), the most
accurate SFST. Lee explained that HGN is an involuntary jerking of the eye when
tracking a stimulus that increases as a person becomes more intoxicated. Dawson
performed the first two parts of the test while Lee stood behind her and watched. Lee
observed nystagmus in both eyes at maximum deviation.
{¶9} Lee conducted the third part of the test to demonstrate to Dawson how
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OHIO FIRST DISTRICT COURT OF APPEALS
to properly conduct the test and ensure Dale was given a fair test. Lee observed the
onset of nystagmus prior to 45 degrees in the right eye but not the left eye. After the
tests were completed, Lee concluded that Dale was too intoxicated to be driving based
on his behavior, demeanor, comprehension, and the clues on the SFSTs. Lee arrested
Dale for OVI and transported him to the District 1 police station
{¶10} A video from the station was played for the jury. Dale asked the officers
four times why he was pulled over despite the fact that he was not pulled over. When
Lee explained the administrative license suspension to Dale, Dale responded, “If I
blow or if I don’t, I’m fucked.” Dale referenced that he was “fucked” two additional
times and was angry and combative. Ultimately, he refused to take a breath test.
{¶11} After Lee’s testimony, both parties rested, and the case was submitted
to the jury. The jury found Dale guilty of OVI. This appeal followed.
Sufficiency and Manifest Weight
{¶12} In his sole assignment of error, Dale contends that his conviction was
not supported by sufficient evidence and was contrary to the manifest weight of the
evidence.
{¶13} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. As to the weight of the
evidence, we review whether the jury created a manifest miscarriage of justice in
resolving conflicting evidence, even though the evidence of guilt was legally sufficient.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). We afford
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OHIO FIRST DISTRICT COURT OF APPEALS
substantial deference to credibility determinations because the factfinder sees and
hears the witnesses. See State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-Ohio-
5211, ¶ 30.
{¶14} Dale argues that the evidence did not sufficiently or credibly establish
that he was impaired to the degree required for the offense of OVI. Dale contends that
the state’s evidence failed to establish that his driving was impaired because Lee did
not witness any traffic infractions or impaired driving.
{¶15} Notably, the statute does not require a driver to exhibit impaired
driving, “rather, the driver’s ability to drive must be impaired.” State v. Crutchfield,
9th Dist. Lorain Nos. 10CA009931, 10CA009932 and 10CA009933, 2011-Ohio-6681,
¶ 11, citing State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19
(concluding that the state “need only show an impaired driving ability[]” under R.C.
4511.19(A)(1), which prohibits operation of a vehicle under the influence of alcohol).
{¶16} Dale was convicted of violating R.C. 4511.19(A)(1)(a), which states in
relevant part: “No person shall operate any vehicle, * * * if, at the time of the operation,
* * * [t]he person is under the influence of alcohol.” To sustain a conviction for OVI,
the state must prove that the defendant ingested alcohol and the alcohol impaired the
defendant’s subsequent driving. See State v. Bowden, 1st Dist. Hamilton No. C-
190396, 2020-Ohio-4556, ¶ 11, quoting State v. Richardson, 150 Ohio St.3d 554, 2016-
Ohio-8448, 84 N.E.3d 993, ¶ 14. “Under the influence” has been defined as:
the condition in which a person finds himself after having consumed
some intoxicating beverage, whether mild or potent, and in such
quantity, whether small or great, that its effect on the person adversely
affects his actions, reactions, conduct, movements or mental processes
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OHIO FIRST DISTRICT COURT OF APPEALS
or impairs his reactions to an appreciable degree, 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.
State v. Maynard, 1st Dist. Hamilton No. C-230160, 2023-Ohio-4619, ¶ 38, quoting
State v. Eldridge, 12th Dist. Warren No. CA2015-02-013, 2015-Ohio-3524, ¶ 7.
{¶17} Lee’s testimony established that Dale admitted to consuming alcohol,
had a strong odor of alcohol on his breath, performed poorly on the field-sobriety tests,
was stumbling and having difficulty standing and was confused, forgetful, and
combative. Lee further testified that he believed Dale was intoxicated based upon the
physical indicia of alcohol intoxication he observed. Witness testimony that the
accused was intoxicated based on observations that he was “staggering and swaying,
he had a moderate to strong odor of alcohol, and his speech was slurred” has been
found sufficient to prove intoxication. See State v. Dickens, 2d Dist. Montgomery No.
17336, 1999 Ohio App. LEXIS 1649, 5 (April 9, 1999). Viewing the evidence in the light
most favorable to the state, the state presented sufficient evidence to prove that Dale
operated his vehicle while impaired.
{¶18} Dale further argues that the SFST results should be discounted because
Lee did not properly conduct the SFSTs. However, the trial court determined that Lee
substantially complied with NHTSA instructions when administering the SFSTs, and
Dale did not appeal the ruling. Although Dale argued that the results of the HGN test
administered by Dawson were unreliable because Lee was “not in the proper position
to observe nystagmus,” Lee testified that he observed the results of the HGN tests
administered by Dawson. Ultimately, it was for the jury to decide credibility, and the
jury believed Lee’s testimony. This is not “the exceptional case in which the evidence
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OHIO FIRST DISTRICT COURT OF APPEALS
weighs heavily against the conviction.” See Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Therefore, the conviction was not against the manifest weight of the
evidence.
{¶19} We overrule the assignment of error.
Conclusion
{¶20} Having overruled Dale’s sole assignment of error, we affirm the
judgment of the trial court.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry this date.
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