State v. Artagos

2024 Ohio 1369

• Court: Ohio Court of Appeals
• Decided: April 11, 2024
• Docket: 113107
• Status: Published

Opinion

[Cite as State v. Artagos, 2024-Ohio-1369.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113107 v. :

DOMINIQUE ARTAGOS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART AND VACATED IN PART RELEASED AND JOURNALIZED: April 11, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679744-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Patrick White, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Rick Ferrara, Assistant Public Defender, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Dominique Artagos (“Artagos”), appeals a

judgment of conviction and sentence, rendered after a jury verdict, and claims the

following errors: 1. Insufficient evidence supported appellant’s conviction for improper handling of a firearm in a motor vehicle.

2. The manifest weight of the evidence did not support appellant’s conviction for improper handling of a firearm in a motor vehicle.

3. The trial court abused its discretion in ordering a child support order as a condition of community control.

We affirm Artagos’s conviction but remand the case to the trial court to

vacate the condition of his community control requiring him to establish a child-

support order.

I. Facts and Procedural History

Artagos was charged with one count of improper handling of a firearm

in a motor vehicle, in violation of R.C. 2923.16(D)(1), a fourth-degree felony. The

charge included a forfeiture-of-firearm specification pursuant to R.C. 2941.1417 and

a furthermore clause alleging that Artagos owned or possessed a Glock 19, which

was contraband derived through the commission of an offense or was an

instrumentality that he used in the commission an offense.

Officer Matthew Gilmer (“Officer Gilmer”) testified at the jury trial that

he is a patrol officer with the Euclid Police Department. As part of his patrol duties,

he and his partner, Officer Brandon Moore (“Officer Moore”), routinely check public

parks at night because many people frequent the park to use drugs and alcohol after

dark when the park is closed. They were patrolling Sims Park in Euclid on the night

of February 24, 2023, when they encountered Artagos and his friend, Heaven

Jenkins (“Jenkins”), in a parked car after dark. Officer Gilmer approached the driver’s side of the vehicle and Officer

Moore approached the passenger’s side. When Officer Gilmer shined a flashlight on

the car, Artagos opened the driver’s door and asked if everything was alright. Officer

Gilmer informed Artagos that the park closes at dark. Artagos apologized and asked

if he should leave the park. Officer Gilmer testified that he smelled burned

marijuana as soon as Artagos opened the door. He also smelled the distinct odor of

alcohol on Artagos’s breath.

Officer Gilmer asked Artagos for his identification. Artagos informed

him that he did not have his license with him but that he had memorized his driver’s

license number, which he gave to police. Artagos repeatedly tried to exit the car and

stand up, and the officers repeatedly asked him to remain seated. Artagos asked, “Is

this a traffic stop?” to which Officer Gilmer replied, “Yes, you’re in the park after

night.” Officer Gilmer asked if there was anything else in the car and whether

Artagos had a firearm. Artagos replied that he had a firearm on his hip and that he

had a concealed weapons permit.

The officers explained to Artagos that he was being ticketed for

trespassing because he was in the park after it was closed. Artagos asked if

trespassing was an arrestable offense. The officers replied that ordinarily trespass

is not an arrestable offense but they were going to search the car because they

smelled marijuana emanating from the car. Artagos allowed the officers to take his

firearm, and they placed it in their police cruiser. Thereafter, the officers escorted

Artagos to the police cruiser where Officer Gilmer explained that they could have “jammed him up” for drinking and smoking marijuana in the car in the park, but

they were not going to do that. Artagos nodded his head in acknowledgment and

said, “No, you’re right man.” Meanwhile, Officer Moore searched Artagos’s car and

found an empty can of Olde English malt liquor and a small jar of marijuana. (Tr.

180.) The officers’ interaction with Artagos was captured on the officers’ body

cameras. Footage from the body cameras was played for the jury and introduced

into evidence as state’s exhibit Nos. 1.1, 1.2, 5.1, and 5.2.

The officers confiscated Artagos’s gun because they determined he was

under the influence of alcohol and/or marijuana. (Tr. 176.) The officers did not

perform any field sobriety tests, but both officers believed Artagos showed the

typical signs of intoxication. Officer Gilmer testified that he did not perform field

sobriety tests because he was not charging Artagos with operating a vehicle under

the influence (“OVI”). He also wanted to avoid a confrontation with Artagos because

he was already agitated. Officer Gilmer explained:

I didn’t want to get into a confrontation with Mr. Artagos as he was already pretty agitated. Our job is not to try to use force, it’s to minimize force or not use force at all. I didn’t feel there was any necessary reason to continue that testing.

(Tr. 200.) Officer Gilmer explained that the field sobriety tests “[do] not determine

someone’s impairment level on marijuana, it only determines their impairment level

on alcohol.” (Tr. 200.) He testified that field sobriety testing is one way to

determine if a person is intoxicated, but there are others. He explained that he was trained to determine whether someone is intoxicated based on “a person’s actions,

demeanor, and their appearance.” (Tr. 199.)

Officer Gilmer testified that he encounters intoxicated individuals on

an almost daily basis and that he has interacted with thousands of intoxicated people

during his 13-year career as a police officer. (Tr. 164.) Officer Gilmer is also a state

instructor for field sobriety. (Tr. 164.) Officer Gilmer testified that upon meeting

Artagos, he immediately noticed typical signs of impairment including “glassy eyes,

bloodshot, slurred speech, and the repetitive questioning of commands, and having

to repeat [him]self multiple, multiple times to get any compliance[.]” (Tr. 170.)

Officer Moore also testified that he observed signs of intoxication

when interacting with Artagos. He stated:

Mr. Artagos was very repetitive. He kept asking the same questions, saying the same things. I detected an odor of alcohol on his breath, and I even mentioned it to him.

(Tr. 224.) Officer Moore observed agitated behavior, red, glassy eyes, and slurred

speech. (Tr. 232.) Finally, Officer Moore testified that he smelled the odor of

marijuana emanating both from the car and from Artagos himself. (Tr. 224.)

Officer Gilmer testified that Jenkins did not present any signs of

intoxication. (Tr. 180.) Her speech was “very normal,” her eyes were not glassy, and

Officer Gilmer did not detect any alcohol on her breath. She was also very

cooperative. Therefore, rather than arresting Artagos, they instructed him to ride

home with Jenkins. (Tr. 184.) Artagos testified at trial and denied smoking marijuana. He stated

that he smokes Black & Mild cigars and that he smoked a cigar and cigarettes in the

car. (Tr. 279.) Artagos also denied drinking alcohol on the night in question. He

explained that the empty beer can was probably there from the day before. (Tr. 279.)

Artagos stated that he has allergies, which might explain why his eyes were red, and

he has braces which might explain why the police thought he was slurring his speech.

Finally, Artagos explained that he and Jenkins had been in the park for hours before

the police arrived on the scene. (Tr. 279-280.)

At the conclusion of the trial, the jury found Artagos guilty of improper

handling of a firearm in a motor vehicle but not guilty on the furthermore

specification requiring forfeiture of his weapon. The court sentenced him to one and

a half years of community-control sanctions. As a condition of community control

the court ordered Artagos to establish a child-support order and to provide

verification of the order to the probation department within 60 days of the court’s

sentencing entry. Artagos now appeals the trial court’s judgment.

II. Law and Analysis

A. Sufficiency and Manifest Weight

In the first assignment of error, Artagos argues there is insufficient

evidence to support his conviction. He contends there is no evidence that he was

under the influence when Officers Gilmer and Moore encountered him at Sims Park

on the night of February 24, 2023. In the second assignment of error, Artagos

argues that even if there were sufficient evidence establishing that he was “under the influence,” the evidence was not credible and his conviction is against the manifest

weight of the evidence.

Although the terms “sufficiency” and “weight” of the evidence are

“quantitatively and qualitatively different,” we address these issues together because

they are closely related, while applying the distinct standards of review. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

In contrast to sufficiency, “weight of the evidence involves the

inclination of the greater amount of credible evidence.” Thompkins at 387. While

“sufficiency of the evidence is a test of adequacy as to whether the evidence is legally

sufficient to support a verdict as a matter of law, * * * weight of the evidence

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In

other words, a reviewing court asks whose evidence is more persuasive — the state’s

or the defendant’s?” Id. In a manifest-weight-of-the evidence challenge, the reviewing court

must consider all the evidence in the record, the reasonable inferences, and the

credibility of the witnesses to determine “‘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.’” Thompkins

at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

Artagos was convicted of improper handling of firearm in a motor

vehicle in violation of R.C. 2923.16(D)(1), which states that “[n]o person shall

knowingly transport or have a loaded handgun in a motor vehicle if, at the time of

that transportation or possession, * * * [t]he person is under the influence of alcohol,

a drug of abuse, or a combination of them.”

The term “under the influence” has been defined as

“‘the 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.’”

Cleveland v. Martin, 2018-Ohio-740, 107 N.E.3d 809, ¶ 20 (8th Dist.), quoting

State v. Carozza, 2015-Ohio-1783, 33 N.E.3d 556, ¶ 22 (5th Dist.), quoting Toledo

v. Starks, 25 Ohio App.2d 162, 166, 267 N.E.2d 824 (6th Dist.1971). In addition,

“‘[u]nder the influence’ means that the accused consumed some intoxicating

beverage, in such a quantity ‘whether small or great’ that adversely affected the

accused’s ability to operate a vehicle.” Id. Not every case will involve overt signs of intoxication. Id., citing Chagrin Falls v. Bloom, 8th Dist. Cuyahoga No. 101686,

2015-Ohio-2264, ¶ 9.

Artagos argues there is insufficient evidence to establish that he was

intoxicated because he testified that he did not consume any alcohol or marijuana.

However, Officers Gilmer and Moore both testified that Artagos exhibited many

telltale signs of intoxication, including glassy eyes, slurred speech, agitated behavior,

and repetitive questioning of commands. (Tr. 170, 224-225.) The officers smelled

marijuana emanating both from Artagos’s car and from Artagos himself. They also

smelled alcohol on his breath when he spoke. Moreover, they found evidence of both

marijuana and alcohol in his car. Therefore, there was sufficient evidence that

Artagos was under the influence when the police encountered him on the night of

February 24, 2023.

Artagos further asserts that his conviction is against the manifest

weight of the evidence because he served nine years in the Marines and is a skilled

weapons operator. He also argues his conviction is against the manifest weight of

the evidence because he testified that he did not consume any alcohol or marijuana

on the night in question and the body-camera footage does not accurately reflect his

condition. Artagos contends the officers’ opinion testimony that he was under the

influence lacks credibility because it was not corroborated with objective tests such

field sobriety, breath, or blood-alcohol testing. He also asserts the fact that the

officers did not arrest him but released him to his own car is proof that he was not

intoxicated. Although Artagos’s military service is commendable, it is irrelevant to

the question of whether he was under the influence when Officers Gilmer and Moore

confiscated his firearm. The lack of field sobriety testing and blood or breath testing

is also not dispositive of Artagos’s claim. Officers Gilmer and Moore both had

extensive experience interacting with intoxicated citizens and were familiar with the

signs and symptoms of intoxication. The officers testified that Artagos smelled of

alcohol and marijuana, presented with glassy eyes and slurred speech, and exhibited

agitated behavior typical of a person under the influence. (Tr. 232 and 176.)

Although it is difficult to see whether Artagos had bloodshot or glassy eyes in the

body-camera footage, his repetitive questioning of the officers’ commands and his

agitated behavior is evident. The officers testified, and the body camera shows, that

they found an empty can of malt liquor and marijuana in Artagos’s car.

The fact that the officers released Artagos rather than arresting him is

also not proof that he was sober. Officer Gilmer explained that they released Artagos

rather than arresting him because Jenkins did not exhibit any signs of intoxication

and the officers instructed him to ride home with her. Furthermore, the fact that

the officers did not cite Artagos for OVI does not establish that he was sober because

Officer Gilmer testified that they did not arrest him for OVI because they did not

witness him operating the vehicle.

There was competent, credible evidence to support the jury’s finding

that Artagos was under the influence at the time Officers Gilmer and Moore

confiscated his firearm. Therefore, this is not a rare case in which 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 first and second assignments of error are overruled.

B. Child-Support Order

In the third assignment of error, Artagos argues the trial court abused

its discretion in ordering him to establish a child-support order as part of his

community control. The state concedes the error. Indeed, this court has held that a

trial court errs and abuses its discretion by issuing a child-support order as a

condition of community control where the “child-support order does not share a

relationship” with the offense. State v. Cintron, 8th Dist. Cuyahoga No. 110600,

2022-Ohio-305, ¶ 24. The trial court’s order requiring Artagos to establish a child-

support order is not related to his improper handling of a firearm in a motor vehicle

conviction. Therefore, the third assignment of error is sustained.

The trial court’s judgment is affirmed in part and vacated in part. We

affirm Artagos’s convictions but vacate the community-control condition requiring

Artagos to establish a child-support order within 60 days of the sentencing entry.

It is ordered that appellee and appellant share 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

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and EMANUELLA D. GROVES, J., CONCUR