[Cite as State v. Croft, 2016-Ohio-449.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO, CASE NO. 2-15-11 PLAINTIFF-APPELLEE,
v.
CHRISTINA D. CROFT, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court Trial Court No. 2014 TRC 6406
Judgment Affirmed
Date of Decision: February 8, 2016
APPEARANCES:
Craig A. Gottschalk for Appellant
Nick Catania for Appellee Case No. 2-15-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Christina Croft (“Croft”), brings this appeal from
the judgment of the Auglaize County Municipal Court, which found her guilty of
speeding and operating a vehicle under the influence (“OVI”). For the reasons
that follow, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} On August 8, 2014, Croft was pulled over for speeding by Trooper
Posada from the Ohio State Highway Patrol. Upon approaching the vehicle,
Trooper Posada noticed a moderate odor of an alcoholic beverage through a smell
of a freshly-lit cigarette. When asked for a proof of insurance, Croft handed
Trooper Posada a wrong document. Croft initially denied drinking any alcohol,
but later admitted to having consumed two beers earlier in the evening. Trooper
Posada administered several field sobriety tests. Based on her performance on the
tests, trooper Posada asked Croft to submit to a preliminary breath test. Croft
refused and she was subsequently arrested on a charge of OVI. Croft refused to
take any further tests that night in spite of being advised that refusal would result
in an automatic license suspension.
{¶3} Croft was charged with speeding, a violation of R.C. 4511.21(D)(1),
and with OVI, a violation of R.C. 4511.19(A)(1)(a). (R. at 1.) She entered a plea
of not guilty and filed a motion to suppress certain evidence and statements she
-2- Case No. 2-15-11
had made to the police upon her arrest, including the results of the field sobriety
tests. (R. at 23, 28.) She argued that the arresting officer lacked probable cause to
arrest. (Id.) The trial court assigned the motion for a hearing on December 16,
2014. (R. at 26, 35.) On the day scheduled for the hearing, Croft withdrew the
motion and the case proceeded to a trial to the court. (R. at 41, 43, 50.) The trial
court found her guilty of both offenses and the instant appeal followed. Croft
raises one assignment of error as quoted below.
Assignment of Error
THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BECAUSE THE EVIDENCE SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTION OF APPELLANT BEYOND A REASONABLE DOUBT.
{¶4} Although the assignment of error confusingly repeats the same
allegation twice and mistakenly indicates that the finding of guilt was made by the
jury, rather than a judge, the statement of the issues clarifies what the actual
contentions on appeal are. In particular, Croft alleges that her conviction was not
-3- Case No. 2-15-11
supported by sufficient evidence and that it was against the manifest weight of the
evidence. (App’t Br. at 4.) We address the two contentions as follows.
Standards of Review
{¶5} When reviewing a criminal case for the sufficiency of the evidence,
“our inquiry focuses primarily upon the adequacy of the evidence; that is, whether
the evidence submitted at trial, if believed, could reasonably support a finding of
guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08,
2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the
prosecution” and will affirm the conviction if “any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118.
Importantly, this test raises a question of law and does not allow us to weigh the
evidence. Willcox at ¶ 10.
{¶6} The question of manifest weight of the evidence concerns an “effect in
inducing belief.” Thompkins at 387. Therefore, it is not subject to a mathematical
analysis. Id. When reviewing a conviction challenged as being against the
manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and
may disagree with the jury’s resolution of the conflicting testimony. Id., quoting
Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the
appellate court must give due deference to the findings of the trier of fact, because
-4- Case No. 2-15-11
[t]he fact-finder occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’s reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact-finder.
(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-
274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456
(8th Dist.1998). Therefore, an argument that a conviction is against the manifest
weight of the evidence will only succeed if the appellate court finds that “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, 175,
485 N.E.2d 717 (1st Dist.1983).
Analysis
{¶7} No particular challenges to the sufficiency or the weight of the
evidence are made in the brief on appeal. Indeed, Croft states that she was
“admittedly speeding,” thus contradicting any allegation that the conviction for
speeding was against the sufficiency or the manifest weight of the evidence.
(App’t Br. at 10.) At no point does Croft indicate that any of the elements of the
OVI were not supported by the evidence or that there were any conflicts in
-5- Case No. 2-15-11
evidence. Therefore, there are no specific contentions as to the sufficiency or the
manifest weight of the evidence. See App.R. 16(A)(7).
{¶8} Instead, the brief appears to contest the probable cause to arrest and
the methods of conducting field sobriety tests, challenges that are properly raised
in a motion to suppress. See State v. French, 72 Ohio St.3d 446, 449, 1995-Ohio-
32, 650 N.E.2d 887
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[Cite as State v. Croft, 2016-Ohio-449.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO, CASE NO. 2-15-11 PLAINTIFF-APPELLEE,
v.
CHRISTINA D. CROFT, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court Trial Court No. 2014 TRC 6406
Judgment Affirmed
Date of Decision: February 8, 2016
APPEARANCES:
Craig A. Gottschalk for Appellant
Nick Catania for Appellee Case No. 2-15-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Christina Croft (“Croft”), brings this appeal from
the judgment of the Auglaize County Municipal Court, which found her guilty of
speeding and operating a vehicle under the influence (“OVI”). For the reasons
that follow, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} On August 8, 2014, Croft was pulled over for speeding by Trooper
Posada from the Ohio State Highway Patrol. Upon approaching the vehicle,
Trooper Posada noticed a moderate odor of an alcoholic beverage through a smell
of a freshly-lit cigarette. When asked for a proof of insurance, Croft handed
Trooper Posada a wrong document. Croft initially denied drinking any alcohol,
but later admitted to having consumed two beers earlier in the evening. Trooper
Posada administered several field sobriety tests. Based on her performance on the
tests, trooper Posada asked Croft to submit to a preliminary breath test. Croft
refused and she was subsequently arrested on a charge of OVI. Croft refused to
take any further tests that night in spite of being advised that refusal would result
in an automatic license suspension.
{¶3} Croft was charged with speeding, a violation of R.C. 4511.21(D)(1),
and with OVI, a violation of R.C. 4511.19(A)(1)(a). (R. at 1.) She entered a plea
of not guilty and filed a motion to suppress certain evidence and statements she
-2- Case No. 2-15-11
had made to the police upon her arrest, including the results of the field sobriety
tests. (R. at 23, 28.) She argued that the arresting officer lacked probable cause to
arrest. (Id.) The trial court assigned the motion for a hearing on December 16,
2014. (R. at 26, 35.) On the day scheduled for the hearing, Croft withdrew the
motion and the case proceeded to a trial to the court. (R. at 41, 43, 50.) The trial
court found her guilty of both offenses and the instant appeal followed. Croft
raises one assignment of error as quoted below.
Assignment of Error
THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BECAUSE THE EVIDENCE SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTION OF APPELLANT BEYOND A REASONABLE DOUBT.
{¶4} Although the assignment of error confusingly repeats the same
allegation twice and mistakenly indicates that the finding of guilt was made by the
jury, rather than a judge, the statement of the issues clarifies what the actual
contentions on appeal are. In particular, Croft alleges that her conviction was not
-3- Case No. 2-15-11
supported by sufficient evidence and that it was against the manifest weight of the
evidence. (App’t Br. at 4.) We address the two contentions as follows.
Standards of Review
{¶5} When reviewing a criminal case for the sufficiency of the evidence,
“our inquiry focuses primarily upon the adequacy of the evidence; that is, whether
the evidence submitted at trial, if believed, could reasonably support a finding of
guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08,
2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the
prosecution” and will affirm the conviction if “any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118.
Importantly, this test raises a question of law and does not allow us to weigh the
evidence. Willcox at ¶ 10.
{¶6} The question of manifest weight of the evidence concerns an “effect in
inducing belief.” Thompkins at 387. Therefore, it is not subject to a mathematical
analysis. Id. When reviewing a conviction challenged as being against the
manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and
may disagree with the jury’s resolution of the conflicting testimony. Id., quoting
Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the
appellate court must give due deference to the findings of the trier of fact, because
-4- Case No. 2-15-11
[t]he fact-finder occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’s reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact-finder.
(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio-
274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456
(8th Dist.1998). Therefore, an argument that a conviction is against the manifest
weight of the evidence will only succeed if the appellate court finds that “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, 175,
485 N.E.2d 717 (1st Dist.1983).
Analysis
{¶7} No particular challenges to the sufficiency or the weight of the
evidence are made in the brief on appeal. Indeed, Croft states that she was
“admittedly speeding,” thus contradicting any allegation that the conviction for
speeding was against the sufficiency or the manifest weight of the evidence.
(App’t Br. at 10.) At no point does Croft indicate that any of the elements of the
OVI were not supported by the evidence or that there were any conflicts in
-5- Case No. 2-15-11
evidence. Therefore, there are no specific contentions as to the sufficiency or the
manifest weight of the evidence. See App.R. 16(A)(7).
{¶8} Instead, the brief appears to contest the probable cause to arrest and
the methods of conducting field sobriety tests, challenges that are properly raised
in a motion to suppress. See State v. French, 72 Ohio St.3d 446, 449, 1995-Ohio-
32, 650 N.E.2d 887 (1995); City of Defiance v. Kretz, 60 Ohio St.3d 1, 4-5, 573
N.E.2d 32 (1991). But as we stated above, Croft withdrew her motion to suppress
and did not object to the admissibility of the evidence on other grounds during her
bench trial. Therefore, no challenges to the admissibility of the evidence are
properly on appeal. See State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489
(1996) (“A court of appeals cannot consider the issue for the first time without the
trial court having had an opportunity to address the issue.”); see also French at
451 (holding that “challenges to the state’s compliance with statutory and ODH
regulations * * * must be made in a pretrial motion to suppress, or such challenges
are considered waived”), citing Kretz at 5.
{¶9} Our review of the record does not disclose any issues that would
require reversal on the basis of sufficiency of the evidence. In order to support a
conviction, the State had to prove (1) that Croft operated her vehicle within the
state of Ohio and (2) that she was under the influence of alcohol, a drug of abuse,
or a combination of them. See R.C. 4511.19(A)(1)(a). The State provided
evidence indicating that Croft was driving within the State of Ohio at the time she
-6- Case No. 2-15-11
was pulled over by Trooper Posada. The State further proved that Trooper Posada
detected a moderate odor of an alcoholic beverage coming from Croft’s vehicle
and that Croft first denied having any alcohol, but later admitted to having had two
beers earlier that evening. She had some trouble providing her proof of insurance
and exhibited a stronger odor of an alcoholic beverage upon exiting the car. The
State further provided evidence of field sobriety tests, which showed that Croft
had difficulty with both the walk-and-turn test and the one-leg-stand test. In fact,
the testimony and video showed that she was unable to perform the walk and turn
test in spite of several attempts. Finally, Croft’s refusal to take a breath test could
be used by the fact finder to infer that she feared the results of the test. See
Maumee v. Anistik, 69 Ohio St.3d 339, 342-343, 1994-Ohio-157, 632 N.E.2d 497
(1994); State v. Gray, 85 Ohio App.3d 165, 171, 619 N.E.2d 460 (3d Dist.1993).
This evidence, viewed in the light most favorable to the prosecution, sufficiently
supported each essential element of the crime.
{¶10} We note that Croft did not present any evidence that would conflict
with the elements of the offense as proffered by the State. Her testimony
consisted of providing explanations for her poor performance on the field sobriety
tests and for refusing to take the breath test. To the extent that Croft challenges
the weight of the evidence by suggesting that the trial court should have
discounted Trooper Posada’s testimony, find it completely unreliable, and find her
not guilty, we disagree. Although there was some dispute over whether Croft
-7- Case No. 2-15-11
raised her hands during the one-leg-stand test or did poorly on the alphabet test,
other evidence of impairment was so significant that we cannot hold that the trial
court clearly lost its way in finding Croft guilty of operating a vehicle while under
the influence of alcohol. See Thompkins, 78 Ohio St.3d. at 387, 678 N.E.2d 541.
{¶11} Based on the foregoing discussion we overrule the assignment of
error.
Conclusion
{¶12} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Auglaize County Municipal Court, Ohio is therefore
affirmed.
ROGERS and PRESTON, J.J, concur.
/hls
-8-