State v. Cruz

2025 Ohio 1154

Opinion

[Cite as State v. Cruz, 2025-Ohio-1154.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Robert G. Montgomery, P.J. Plaintiff - Appellee : Hon. Kevin W. Popham, J. : Hon. David M. Gormley, J. -vs- : : SANDRA CRUZ : Case No. 2024 CA 032 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal Court, Case No. TRC2400333

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 31, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

Andrew D. Semelsberger James L. Dye Assistant City Prosecutor P.O. Box 161 136 W. Main Street Pickerington, Ohio 43147 Lancaster, Ohio 43130 Gormley, J.

{¶1} Defendant Sandra Cruz appeals her conviction on one misdemeanor

charge of operating a vehicle while under the influence of alcohol or drugs following her

jury trial in Fairfield County. Cruz argues that she was denied effective assistance of

counsel at trial and that her conviction was against the manifest weight of the evidence.

For the reasons explained below, we affirm the trial court’s judgment.

Facts and Procedural History

{¶2} In January 2024, Ohio State Highway Patrol trooper Tawanna Young

initiated a traffic stop of a vehicle after she observed the driver — Cruz — make a wide

turn and fail to use a turn signal. Once the moving vehicle was stopped at the roadside,

Trooper Young — while standing near the driver’s-side door of the vehicle — smelled

alcohol on Cruz’s breath and noticed that Cruz’s eyes were glassy and bloodshot. Young

also smelled the odor of marijuana coming from the vehicle, and she noticed that Cruz’s

movements were slow. Cruz told Young that she — Cruz — had not been drinking alcohol

that evening. Young asked Cruz to step out of the vehicle to complete a field-sobriety

test.

{¶3} Trooper Young began with a horizontal-gaze-nystagmus (HGN) test to look

for involuntary jerking in Cruz’s eyes because — according to Young’s trial testimony —

that kind of involuntary eye movement can be a sign of impairment. Young testified that

she observed six out of the six signs of impairment that she was trained to look for. After

that test was completed, Cruz admitted that she had consumed one drink earlier that

evening. Trooper Young also observed vertical-gaze nystagmus (VGN) in Cruz’s eyes, which Young indicated in her testimony at trial can show a high dose of alcohol for an

individual.

{¶4} Trooper Young next administered a lack-of-convergence test, which is,

Young said at trial, designed to detect whether an individual is under the influence of

marijuana. Young testified that Cruz’s left eye failed to converge twice, which indicated

to Young that Cruz had smoked marijuana.

{¶5} Trooper Young administered two additional tests — a divided-attention test

using the alphabet and a walk-and-turn test — and observed signs of impairment with

each one. Young placed Cruz under arrest for operating a vehicle under the influence

and took her to the police station. There, Cruz refused to take a breathalyzer test.

{¶6} Cruz was later convicted of driving under the influence at her jury trial in

June 2024. She now appeals.

Cruz’s Counsel Was Not Ineffective for Failing to File a Suppression Motion

{¶7} In her first assignment of error, Cruz argues that her trial counsel was

ineffective because he failed to file a motion to suppress the results of the field-sobriety

tests.

{¶8} The Sixth Amendment, of course, provides that an accused is entitled to the

assistance of counsel in a criminal case. U.S. Const., amend. VI. For a conviction to be

reversed based on a claim of ineffective assistance of counsel, a defendant must first

prove that his or her counsel’s performance was deficient. Strickland v. Washington, 466

U.S. 668, 687 (1984). Next, the defendant must show that he or she was prejudiced by

counsel’s deficient performance. Id. This requires the defendant to show that the attorney’s errors “were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id.

{¶9} The failure of trial counsel to file a suppression motion does not by itself

constitute ineffective assistance of counsel. State v. Morgan, 2019-Ohio-2785, ¶ 25 (5th

Dist.), citing State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). To show that counsel was

ineffective for failing to file a suppression motion, “‘a defendant must show: (1) a basis for

the motion to suppress; (2) that the motion had a reasonable probability of success; and

(3) a reasonable probability that suppression of the challenged evidence would have

changed the outcome at trial.’” State v. Grove, 2020-Ohio-1123, ¶ 40 (5th Dist.), quoting

State v. Phelps, 2018-Ohio-4738, ¶ 13 (5th Dist.). A defendant will not prevail on a claim

of ineffective assistance of counsel when the decision not to file a suppression motion

“‘was a tactical decision, there was no reasonable probability of success, or there was no

prejudice,’ or where counsel could have reasonably decided that filing such a motion

would have been futile, even if there is evidence in the record to support such a motion.”

Phelps at ¶ 13, quoting State v. White, 2018-Ohio-18, ¶ 39 (4th Dist.).

{¶10} In a criminal prosecution for operating a vehicle under the influence of

alcohol, an officer may testify regarding the results of a field-sobriety test if the state

provides clear and convincing evidence that the test was administered in substantial

compliance with the testing standards set by the National Highway Traffic Safety

Administration (NHTSA). R.C. 4511.19(D)(4)(b). An officer administering a test need not

read instructions from the NHTSA manual word for word. State v. Secoy, 2009-Ohio-

5100, ¶ 17 (5th Dist.). {¶11} After a review of the record, we do not find grounds for the filing of a motion

to suppress the field-sobriety tests, and we also see no reasonable probability that the

motion would have been granted even had it been filed. Cruz’s argument to the contrary

focuses first on Young’s alleged failure to conduct the HGN test as required by the NHTSA

manual. Cruz’s assertion is based only on the fact that Young instructed Cruz to place

her hands on her own cheeks rather than at her sides.

{¶12} According to the NHTSA manual, an officer conducting an HGN test should

tell the suspect that the suspect’s eyes are going to be checked, that the suspect should

keep his or her head still and should follow the stimulus — often a pen or the officer’s

finger — with only the eyes, and that the suspect should continue to keep the eyes

focused on the stimulus until told to stop. State v. Secoy, 2009-Ohio-5100, ¶ 16, 18 (5th

Dist.). After providing the suspect with these initial instructions, the officer should position

a stimulus 12 to 15 inches away from the suspect’s nose and slightly above eye level. Id.

at ¶ 16. The officer is next instructed to check the suspect’s pupils to determine if they

are of equal size. Id. When conducting the test, the officer should examine the suspect’s

ability to track the stimulus and whether that tracking is smooth. Id. Finally, the officer

should check the suspect for nystagmus at maximum deviation and for onset of

nystagmus prior to 45 degrees. Id.

{¶13} After a review of the record, we find that Trooper Young administered the

HGN test in substantial compliance with the NHTSA standards. Prior to administering the

test, Young asked Cruz if she had any medical problems with her eyes that would affect

her ability to follow the tip of a pen. Cruz said no. Young told Cruz that Young was going to check for equal tracking and pupil size in Cruz’s eyes and that Cruz should “not . . .

anticipate, just follow” the tip of the pen with her eyes.

{¶14} Young testified at Cruz’s trial that there were three parts to the HGN test:

(1) lack of smooth pursuit; (2) distinct and sustained nystagmus at maximum deviation;

and (3) onset prior to 45 degrees. Young testified that she observed all three of these

signs of impairment in Cruz’s eyes during the test. Young’s testimony is corroborated by

and consistent with the video footage from Young’s body-worn camera that was

introduced at Cruz’s trial.

{¶15} We are unpersuaded by Cruz’s argument that Young failed to substantially

comply with the NHTSA standards. To be sure, Young instructed Cruz to place her hands

on her own cheeks instead of at her sides. Young testified that her reason for doing so,

though, was simply to allow Young to protect her own safety by enabling her to keep an

eye on Cruz’s hands during the test. As discussed above, Young testified at trial about

the three distinct parts of the HGN test and stated that she observed in Cruz’s eyes all six

of the clues that she is trained to look for. Cruz does not provide any authority to support

her claim that the placement of her hands on her cheeks during the test would have

affected the HGN test’s outcome or might have prompted the trial judge to grant a

suppression motion had such a motion been filed.

{¶16} Cruz argues secondly that her trial counsel’s failure to file a suppression

motion led to the admission of damaging trial testimony from Trooper Young about the

VGN test and its significance. Nothing in the record, however, indicates that Young’s

administration of the VGN test fell short of NHTSA’s standards, and Cruz does not even

suggest that Young erred when explaining that test at the roadside or when administering it to Cruz there. Even so, Cruz curiously claims that had a motion to suppress been filed

on her behalf, the judge would have granted such a motion. We fail to follow Cruz’s logic

on this point.

{¶17} And surely if — as seems to be the case — Cruz’s concern with the VGN

focuses not on the way in which that test was administered but rather on Trooper Young’s

trial testimony about the significance of the test, Cruz was free at the trial to cross-

examine Young about the test even though no suppression motion had been filed. Young

testified at the trial that her training has led her to understand that the presence of VGN

in a person’s eyes can indicate that that person has ingested a particularly high dose of

alcohol for that individual. After Young gave that testimony at the trial, Cruz was free

during her cross-examination of Young to inquire about other possible reasons – including

health-related reasons – why VGN might be present. Again, any failure on her trial

lawyer’s part to seek the suppression of the VGN results is unrelated to that lawyer’s

ability to try to poke holes in the reliability of Young’s trial testimony about the VGN.

{¶18} Because Cruz’s ineffective-assistance argument here targets only her trial

lawyer’s failure to file a suppression motion, and because Cruz identifies no reason why

such a motion addressing the administration of the VGN should have been filed or would

have been granted, we readily conclude that Cruz’s ineffective-assistance claim

concerning the VGN test is not a sound one.

{¶19} In short, any motion to suppress concerning either the HGN test or the VGN

test would not have been granted, and the tactical or practical decision by Cruz’s trial

counsel to skip the filing of such a motion and to focus instead on trying to win the case

at trial cannot rightly be characterized as deficient. Cruz’s ineffective-assistance challenge to her conviction falls well short of the mark, and we overrule her first

assignment of error.

Cruz’s Conviction Was Not Against the Manifest Weight of the Evidence

{¶20} In her second assignment of error, Cruz contends that her conviction was

not supported by the manifest weight of the evidence.

{¶21} In determining whether a conviction was against the manifest weight of the

evidence, an appellate court acts as a thirteenth juror, and “after ‘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.’” State v. Hane, 2025-Ohio-120, ¶ 20 (5th Dist.),

quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The reversal of a conviction

on manifest-weight grounds should occur only in “the ‘exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

{¶22} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater amount

of credible evidence sustains the issue which is to be established before them.’”

(Emphasis in original.) Thompkins at 387. “[A]n appellate court will leave the issues of

weight and credibility of the evidence to the factfinder, as long as a rational basis exists

in the record for its decision.” State v. Sheppard, 2025-Ohio-161, ¶ 66 (5th Dist.).

{¶23} Cruz’s conviction was not against the manifest weight of the evidence. Cruz did not testify during trial or present any evidence that would support her claim that she

was not operating her vehicle while impaired. The evidentiary conflict that Cruz points to

arises from her roadside statement to Young that she had consumed only “one” drink that

evening.

{¶24} Trooper Young testified during trial that Cruz initially claimed that she had

not consumed any alcohol that evening, but that Cruz later admitted — only after Young

confronted Cruz about the signs of impairment she observed during the HGN test — that

she had consumed one drink that evening. Young also testified to her 23 years of

experience as a law-enforcement officer and stated that she attends annual training on

the detection and apprehension of impaired drivers. Young testified that she smelled

alcohol and marijuana when she initiated the stop of Cruz’s car and that Cruz had glassy

and bloodshot eyes. Young conducted an HGN test, a VGN test, a lack-of-convergence

test, a divided-attention test using the alphabet, and a walk-and-turn test. Young testified

that Cruz showed signs of impairment with each of these tests. Further, the video footage

of Young’s interaction with Cruz was played for the jury, and that footage corroborated

Young’s testimony.

{¶25} After reviewing the record, we find that a rational basis exists to support the

jury’s conclusion that Cruz was operating her vehicle while under the influence of alcohol,

of marijuana, or of a combination of alcohol and marijuana. The jury did not lose its way

or create a manifest miscarriage of justice in finding Young’s testimony more credible

than Cruz’s inconsistent roadside statements regarding her alcohol consumption. Cruz’s

conviction was, therefore, not against the manifest weight of the evidence. Cruz’s second

assignment of error is overruled. {¶26} For the reasons explained above, we affirm the judgment of the trial court.

By: Gormley, J.

Montgomery, P.J. and

Popham, J. concur.