Solon v. Hrivnak , 2014 Ohio 3135 ( 2014 )

[Cite as Solon v. Hrivnak, 2014-Ohio-3135.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100411
CITY OF SOLON
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER HRIVNAK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Bedford Municipal Court
Case No. 12 TRC 04040
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: July 17, 2014
ATTORNEY FOR APPELLANT
Bryan Byrne
5403 Detroit Avenue
Cleveland, OH 44102
ATTORNEY FOR APPELLEE
Lon D. Stolarsky
Prosecutor
5333 Northfield Road
Suite 250
Bedford Heights, OH 44146
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Christopher Hrivnak, appeals from a judgment of the
Bedford Municipal Court that convicted him after a jury trial of operating a vehicle under
the influence (“OVI”). He claims his conviction was not supported by sufficient
evidence and was also against the manifest weight of the evidence. Finding no merit to
the appeal, we affirm the court’s judgment.
Evidence Presented at Trial
{¶2} Hrivnak was charged with OVI and a marked lane violation. He pled not
guilty to these charges, and the matter went to a jury trial. At trial, Officer Keith Kulak,
a 13-year veteran with the city of Solon police department, testified. On June 11, 2012,
around 8 p.m., while driving his police vehicle westbound on Route 43, Officer Kulak
observed a 1977 black Lincoln weaving in traffic. The Lincoln was two vehicles ahead
of the officer and traveling in the same direction. Officer Kulak saw the Lincoln weave
to the left outside of its lane of traffic and, when it returned to the right lane, almost
struck the curb. After watching the Lincoln weaving to the left a second time, Officer
Kulak activated his lights and siren and initiated a traffic stop.
{¶3} The driver of the vehicle, Hrivnak, explained he was driving in the erratic
manner because “the car was a big car.” When Officer Kulak asked for proof of
insurance, Hrivnak initially handed him the vehicle’s registration instead, but later
produced the insurance card. During this initial contact, Officer Kulak noticed a strong
odor of alcohol emanating from the driver’s side of the vehicle. In addition, Hrivnak’s
speech was “thick tongued” and slightly slurred. Hrivnak, however, denied to the
officer that he had consumed any alcohol that night. Because his denial was inconsistent
with Officer Kulak’s observations, Officer Kulak asked Hrivnak to exit his vehicle to
perform the field sobriety tests.
{¶4} Officer Kulak testified he was trained on the field sobriety tests
standardized by NHTSA (National Highway Traffic and Safety Administration) and had
administered the tests for 13 years. He administered three tests on Hrivnak.
{¶5} The first test the officer administered was the Horizontal Gaze Nystagmus
(“HGN”) test. In this test, the subject would be asked to follow, with the eyes, a
stimulus such as the top of a pen or a finger, and the officer would look for an involuntary
jerking of the subject’s eyes. While administering the test, Officer Kulak observed “a
lack of smooth pursuit” in Hrivnak’s eyes, which was a clue of impairment. He also
observed in both of Hrivnak’s eyes “distinct nystagmus at maximum deviation,” also a
clue of impairment. The officer then looked for “nystagmus prior to the eyes reaching
45 degree.” For this portion of the test, because Hrivnak kept turning his head, the
officer could not complete the test. Based on his observations, the officer found
Hrivnak to exhibit six out six clues of impairment on the HGN test.
{¶6} The officer then administered the one-leg-stand test. He instructed
Hrivnak to stand with his feet together, keep his arms down at his sides, raise one foot
six inches off the ground with his toe pointed out, and count out loud from 1,000 on, for
30 seconds. Hrivnak raised his right foot and counted to three, but lost his balance and
stumbled back. When instructed to continue, he raised his foot, counted from three to
seven, but lost his balance again. He raised his foot for a third time and counted from
seven to ten, but lost his balance again. Officer Kulak testified the repeated loss of
balance indicated impairment.
{¶7} Officer Kulak then administered the walk-and-turn test. He first instructed
Hrivnak on how to perform the test: take nine steps from the starting position, heel to
toe, then turn around and take nine steps back to the starting point, all the while
counting the steps out loud. Hrivnak was unable to stay on the starting position, losing
his balance and stepping off twice while the officer gave him instructions. He could not
walk heel to toe on steps three through nine. On the second set of nine steps, he did not
walk heel to toe on any of the steps and he stumbled to the right on the sixth step.
Officer Kulak testified that Hrivnak’s poor performance on this test also indicated he was
impaired.
{¶8} Officer Kulak testified that because Hrivnak’s performance on all three
tests indicated impairment, he placed Hrivnak under arrest for OVI and transported him to
jail. While there, Hrivnak refused to take the breath alcohol concentrate test. The
officer also testified he smelled the odor of alcoholic beverage in his police car afterward,
although that fact was not noted in the police report.
{¶9} On cross-examination, Officer Kulak acknowledged that while he smelled
alcohol emanating from the driver’s side, he could not be certain it was indeed from
Hrivnak’s person; neither did he smell alcohol from Hrivnak when he administered the
nystagmus test. Officer Kulak also acknowledged the light drizzle that night and the
distractions from the passing traffic could be factors affecting Hrivnak’s ability to follow
instructions. The officer in addition acknowledged Hrivnak’s physical condition — 50
pounds overweight — could affect his performance on the one leg stand.
{¶10} Dr. Raymond Salomone, Hrivnak’s physician, testified that he treated him
for sleep apnea. Around the time of the incident, Hrivnak was prescribed Ativan, a drug
that came with a caution regarding operating a vehicle and concurrent consumption of
alcohol and its side effect included dizziness, sedation, and unsteadiness.
{¶11} Hrivnak, a 57-year-old school bus driver, testified on his own behalf. In
addition to sleep apnea, he also had edema in his legs, which sometimes flared up and
required the use of a walking cane. He testified that, around the time of the incident, the
edema in his legs was “moderate” and he was having difficulty standing and walking.
{¶12} Hrivnak testified that, on the day of the incident, he had gone to see a doctor
for a routine medication. Later, he mowed the grass. After dinner, around 8:00 p.m.,
he decided to go to the health club to swim and to soak in the hot tub to help ease the
edema. He testified that, before he was pulled over by the police, his seatbelt kept
unbuckling and he had to reach back to put the seatbelt back on. He stated that he had
problems with performing the field sobriety tests because he was experiencing anxiety
and confusion, and the edema and swelling in his leg was the reason for his poor
performance on the walk-and-turn test. As to the Ativan, he could not recall whether he
had taken the drug that day. He testified that he refused the Breathalyzer test because he
had concerns about the test’s reliability. On cross-examination, however, he was unable
to explain the odor of alcohol in his vehicle detected by Officer Kulak; he stated that the
officer must have been mistaken.
{¶13} Two videos were played for the jury. One depicted Hrivnak’s performance
on the field sobriety tests, and the other depicted the booking procedure in the Solon
police station, which showed Hrivnak was cooperative with the officers during the
procedure.
{¶14} After trial, the jury found Hrivnak guilty of both OVI and marked lanes
violation. He was fined $100 dollars and court costs. Hrivnak appeals the judgment,
claiming his conviction of OVI was not supported by sufficient evidence and was against
the manifest weight of the evidence.
Sufficiency of the Evidence
{¶15} When reviewing a challenge of the sufficiency of the evidence, a
reviewing court examines the evidence admitted at trial and determines whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus. “The 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.” Id. A reviewing court is not
to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio
St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶16} R.C. 4511.19 (A)(1)(a) defines the OVI offense. It prohibits a person from
operating a vehicle “under the influence of alcohol, a drug of abuse, or a combination of
them.” Hrivnak claims there was insufficient evidence to find him guilty of OVI
because his poor performance on the field sobriety tests can be attributed to his medical
and physical condition.
{¶17} The courts have noted that field sobriety tests are not a necessary factor in
an OVI conviction because, otherwise, “those with certain medical conditions would have
a free pass to drive drunk or under the influence of a drug of abuse.” State v. Strebler,
9th Dist. Summit No. 23003, 2006-Ohio-5711, ¶ 17; State v. Stephenson, 4th Dist.
Lawrence No. 05CA30, 2006-Ohio-2563, ¶ 19; State v. Rouse, 7th Dist. Belmont App.
No. 04BE53, 2005 Ohio 6328.
{¶18} Rather, the courts, including this court, have recognized that, to prove
impaired driving ability, the state can rely not only on coordination tests such as the field
sobriety tests but also on physiological factors such as slurred speech, bloodshot eyes, and
the odor of alcohol. State v. Clark, 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, ¶
13; State v. Simms, 9th Dist. Summit No. 23957, 2008-Ohio-4848, ¶ 6; State v. Holland,
11th Dist. Portage No. 98-P-0066, 1999 Ohio App. LEXIS 6143 (Dec. 17, 1999).
{¶19} Here, Officer Kulak observed Hrivnak’s vehicle twice weaving out of its
lane and almost hitting the curb when it returned to the lane. He also noticed a strong
odor of alcohol emanating from the driver’s side of the vehicle. Hrivnak’s speech was
“thick tongued” and slightly slurred. In addition, the officer found him to exhibit six out
of six clues of impairment on the HGN test; he lost balance three times on the
one-leg-stand test; and he performed poorly on the walk-and-turn test. Hrivnak claims
his inability to perform the latter two tests can be attributed to his medical and physical
conditions. However, even without taking into account his performance in these two
tests, Officer Kulak’s testimony regarding the HGN tests and his observations of the
erratic driving, slurry speech, and the strong odor of alcohol from the driver’s side, if
believed by the jury, was sufficient evidence from which the jury could conclude Hrivnak
was driving under the influence of alcohol. The first assignment of error is without
merit.
Manifest-Weight Claim
{¶20} While the test for sufficiency requires a determination of whether the state
has met its burden of production at trial, a manifest weight challenge questions whether
the state has met its burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d
541. Unlike challenges on sufficiency of the evidence, which raise a question of law,
manifest weight challenges raise factual issues. When a defendant asserts that his
conviction is against the manifest weight of the evidence, the court,
“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 manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). In evaluating a manifest-weight claim, “the weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of the facts.” State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶21} Hrivnak raises essentially the same argument under his manifest-weight
claim as he does in his sufficiency claim. Hrivnak argues he offered alternative
explanations for certain clues displayed in the field sobriety tests and the jury lost its way
by giving undue weight to the officer’s testimony.
{¶22} Hrivnak offered only his own testimony to support his claim that the results
of the one-leg-stand test and the walk-and-turn test were skewed due to his medical and
physical conditions. Dr. Salomone only testified that Hrivnak was diagnosed with sleep
apnea. Even assuming Hrivnak’s poor health undermined the reliability of these two
tests, his performance on these two tests was not the only evidence in this case.
Although he attributed his erratic driving to the size of his vehicle and a malfunctioning
of his seatbelt, he offered no evidence to refute the remaining evidence presented — the
officer’s observation of slurry speech and odor in the driver’s side of the vehicle and the
clues on the HGN test.
{¶23} The jury was not persuaded that Hrivnak’s medical and physical conditions
accounted for all the indications of impairment observed by Officer Kulak. Having
reviewed the evidence, along with the reasonable inferences that can be drawn therefrom,
we cannot conclude that, in resolving the conflicting testimony, the jury lost its way and
created such a manifest miscarriage of justice that a new trial should be ordered.
{¶24} Hrivnak’s conviction for OVI was not against the manifest weight of the
evidence. His second assignment of error is without merit.
{¶25} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Bedford
Municipal Court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR