DocketNumber: No. CA2005-11-119.
Citation Numbers: 2006 Ohio 3778
Judges: BRESSLER, J.
Filed Date: 7/24/2006
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} On February 15, 2004, Mason Police Officer Nathan Ketterer was on patrol and stopped at a traffic light at the intersection of Western Row Road and Kings Island Drive in the city of Mason. Officer Ketterer was alerted by another driver that a person, later identified as appellant, was driving a van and appeared to be drunk. Officer Ketterer followed appellant as she attempted to access I-71 via the entrance ramp, and observed her vehicle drift from the center lane to the right lane, touch and cross the white fog line, drift back across the dotted center line, drift back to the right lane to the fog line again, drift back across the center line, and straddle the dotted center line. Officer Ketterer then initiated a traffic stop. When Officer Ketterer spoke to appellant, he smelled a strong odor of alcohol coming from within the van, and noticed that appellant would not look directly at him and slurred her speech. When questioned about the odor of alcohol, appellant admitted she had consumed six beers. Officer Ketterer asked appellant to exit her vehicle, and then administered the Horizontal Gaze Nystagmus ("HGN") test. Appellant was arrested and charged with DUI in violation of the City of Mason Codified Ordinance ("Mason Code") 333.01(a)(1).
{¶ 3} Appellant filed a motion to suppress Officer Ketterer's observations and the results of the HGN test, and the trial court granted her motion. However, this court reversed the trial court's decision in State v. Frazee, Warren App. No. CA2004-07-085,
{¶ 4} Assignment of Error No. 1:
{¶ 5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN OVERRULING APPELLANT'S OBJECTIONS TO OFFICER KETTERER'S TESTIMONY REGARDING THE ADMINISTRATION AND RESULTS OF THE HGN TEST."
{¶ 6} In her first assignment of error, appellant argues that the state failed to lay a proper foundation for Officer Ketterer's testimony regarding the administration and the results of the HGN test he administered. Further, appellant claims that this evidence is irrelevant because there is no correlation between the HGN test and appreciable impairment. Appellant maintains the trial court abused its discretion in overruling her objection to Officer Ketterer's testimony. We disagree.
{¶ 7} The admission or exclusion of relevant evidence is within the sound discretion of the trial court. State v. Sage
(1987),
{¶ 8} Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
{¶ 9} Appellant was convicted of operating a motor vehicle while under the influence of alcohol pursuant to Mason Code Chapter 331.01, which mirrors R.C. Chapter 4511.19. R.C.
{¶ 10} Further, R.C.
{¶ 11} "(b) In any criminal prosecution * * * for a violation of division (A) * * * of this section, [or] of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:
{¶ 12} "(i) The officer may testify concerning the results of the field sobriety test so administered.
{¶ 13} "(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.
{¶ 14} "(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate."
{¶ 15} According to the Ohio Supreme Court, the HGN test is one of several valid tools that can be used to determine whether a person has been driving while under the influence of alcohol. See State v. Bresson (1990),
{¶ 16} After reviewing the record, we find that the state established the proper foundation as to Officer Ketterer's training and ability to administer the HGN test and as to the actual technique Officer Ketterer used to administer the test. At trial, Officer Ketterer testified that he has been trained to administer the HGN test according to the guidelines in the National Highway Traffic Safety Administration ("NHTSA") manual, and that he uses the HGN test to aid in determining whether a person has been driving under the influence of alcohol as often as five times per month. Officer Ketterer affirmed that in his experience, he has found that the HGN test is reliable in effectively assessing whether a driver has consumed alcohol. Officer Ketterer explained how he administered the HGN test to appellant, that the test was administered in compliance with the NHTSA guidelines, and that appellant presented six out of six possible clues.1
{¶ 17} In addition, we find that the trial court did not abuse its discretion in overruling appellant's objection to Officer Ketterer's testimony regarding the results of the HGN test on grounds of relevance. As the Ohio Supreme Court found inBresson,
{¶ 18} Assignment of Error No. 2:
{¶ 19} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN OVERRULING HIS MOTION FOR ACQUITTAL PURSUANT TO RULE 29, OHIO RULES OF CRIMINAL PROCEDURE."
{¶ 20} In appellant's second assignment of error, she challenges the sufficiency of the state's evidence. Appellant maintains that evidence of an odor of alcohol, slurred speech, admission to alcoholic beverage consumption, and performance on an HGN test, without evidence of actual impairment, is insufficient to sustain a conviction for DUI. We disagree.
{¶ 21} When reviewing the trial court's denial of a motion for acquittal under Crim.R. 29, this court applies the same test as it would in reviewing a challenge based upon the sufficiency of the evidence to support a conviction. State v. Rucker,
Butler App. No. CA20010-4-076, 2002-Ohio-172. In resolving the sufficiency of the evidence argument, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.State v. Jenks (1991),
{¶ 22} According to the record, Officer Ketterer testified that he observed appellant's erratic driving, smelled alcohol emanating from inside her vehicle, noticed that she was slurring her speech and refused to make eye contact. When Officer Ketterer questioned appellant as to the amount of alcohol she had consumed, appellant admitted that she had consumed six beers. Further, Officer Ketterer testified that he conducted the HGN test, and appellant presented six out of six possible clues. Officer Ketterer also testified that appellant refused to submit to a breathalyzer test.
{¶ 23} Applying the applicable standard of review for a sufficiency challenge, and construing the evidence most favorably for the prosecution, a rational trier of fact could have found beyond a reasonable doubt that appellant was operating her vehicle in the state of Ohio while under the influence of alcohol. The trial court did not err in overruling appellant's Crim.R. 29 motion for acquittal. Appellant's second assignment of error is overruled.
{¶ 24} Assignment of Error No. 3:
{¶ 25} "THE COURT'S FINDING THAT THE APPELLANT WAS GUILTY OF OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF MASON ORDINANCE 333.01 IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 26} An appellate court considering a manifest weight of the evidence claim must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. State v. Hancock,
{¶ 27} After reviewing the record, including the evidence discussed above, we cannot say the trial court lost its way and created a manifest miscarriage of justice when it found appellant guilty of DUI. Accordingly, we find appellant's conviction was not against the manifest weight of the evidence. Appellant's third assignment of error is overruled.
{¶ 28} Judgment affirmed.
Walsh, P.J., and Hendrickson, JJ., concur.
Hendrickson, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section