State v. Duncan

2024 Ohio 5290

Opinion

[Cite as State v. Duncan, 2024-Ohio-5290.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240135 TRIAL NOS. 23/TRC/8033/A/B Plaintiff-Appellee, :

vs. : OPINION CRYSTAL DUNCAN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in Part and Appeal Dismissed in Part

Date of Judgment Entry on Appeal: November 6, 2024

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Phoebe Cates, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. BERGERON, Presiding Judge.

{¶1} A two-car collision, followed by defendant-appellant Crystal Duncan’s

erratic behavior and exhibition of several other signs of intoxication, resulted in

officers conducting a field sobriety test and ultimately arresting her. But, because the

officers improperly applied the field sobriety test, the court excluded those results at

trial, while nevertheless permitting the officers who administered the test to testify as

to her general demeanor and inability to follow instructions during the test. Ms.

Duncan now appeals, asserting three assignments of error regarding the partial denial

of her motion to suppress as it related to the probable cause for her arrest, the

admittance of the officers’ testimony about her behavior during the field sobriety test,

and the sufficiency and weight of the evidence relied on by the trial court. Ms. Duncan

also appealed her conviction for an improper turn under Cincinnati Mun.Code 506-

68, but because she did not assign any error to that judgment, that portion of the

appeal is dismissed. After a comprehensive review of the record, for the reasons

explained below, we overrule all three of her assignments of error and accordingly

affirm the trial court’s judgment convicting Ms. Duncan of operating a motor vehicle

while under the influence.

I.

{¶2} During an afternoon drive in March 2023, Ms. Duncan improperly

turned onto Queen City Avenue, crashing into another vehicle in the process.

Cincinnati Police were called to the scene of the accident, but before they arrived, the

other individual involved in the accident, S.C., observed Ms. Duncan acting erratically.

Immediately after the collision, Ms. Duncan exited from her car, approached S.C., and

began angrily blaming S.C. for the collision. She began stomping between and around

the two vehicles situated in the middle of the road. In an attempt to avoid further OHIO FIRST DISTRICT COURT OF APPEALS

confrontation, S.C. exited from her vehicle and moved to the sidewalk, while Ms.

Duncan remained fuming in the road near the two vehicles.

{¶3} Matters did not improve, as S.C. witnessed Ms. Duncan attempt to pry

open S.C.’s car door, even though she was no longer inside the vehicle. Ms. Duncan’s

child then exited from the vehicle and seemed to want to calm her mother down, but

they both tumbled to the ground. Seeing the aftermath of the accident, a passerby

stopped to check on S.C. as Ms. Duncan began walking towards them. At that point,

the individual invited S.C. into her vehicle for safety’s sake, and they drove several

blocks down the road to avoid any further confrontation with Ms. Duncan, as she was

angry and acting unpredictably.

{¶4} Two officers then arrived at the scene and began investigating the series

of events. In speaking with Ms. Duncan, the officers noticed erratic behavior and

emotions, and that she offered varying descriptions of the accident that failed to

comport with the scene unfolding before them. Their curiosity piqued, one officer

asked Ms. Duncan if she had consumed any alcohol, which she vehemently denied.

{¶5} Nevertheless, the officers later testified that Ms. Duncan had an odor of

alcohol on her, her eyes were glassy and bloodshot, and her speech was slurred. These

observations, coupled with her erratic behavior, her inability to provide a consistent

recount of the accident, and S.C.’s experience with Ms. Duncan, prompted the officers

to administer a field sobriety test. Specifically, one of the officers (who was in training

at the time) administered the test, which consisted of the Horizontal Gaze Nystagmus

(“HGN”) and walk-and-turn tests. While conducting the tests, the officer committed

several errors that evinced a lack of compliance with the National Highway Traffic

Safety Administration (“NHTSA”) manual along with a lack of clarity in the standards

applied or details of the tests.

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{¶6} The State ultimately charged Ms. Duncan with operating a vehicle while

under the influence of alcohol under R.C. 4511.19(A)(1)(a). Because of these flaws in

the testing protocol, the trial court granted in part Ms. Duncan’s motion to suppress

the overall results of the field sobriety test, finding it noncompliant with the applicable

standards. The trial court denied the other portion of the motion to suppress, after

concluding that the officers had probable cause to arrest her. Despite the court’s

partial granting of her motion, the officers testified at trial as to their general

observations of Ms. Duncan’s behavior during the test. After her conviction at a bench

trial, Ms. Duncan now appeals.

II.

{¶7} In her first assignment of error, Ms. Duncan asserts that the trial court

erred in denying the portion of her suppression motion arguing that the officers lacked

probable cause to arrest her.

{¶8} Decisions on motions to suppress present “mixed questions of law and

fact.” State v. Burnside, 2003-Ohio-5372, ¶ 8. Therefore, “[w]e must accept the trial

court’s factual findings if they are supported by competent, credible evidence, but we

review de novo [its] application of the law to those facts.” State v. Pippin, 2017-Ohio-

6970, ¶ 15 (1st Dist.), citing Burnside at ¶ 8. More specifically, “questions of probable

cause are reviewed de novo on appeal.” Id., citing Ornelas v. United States, 517 U.S.

690, 699 (1996).

{¶9} In deciding “whether an officer had probable cause to arrest, courts

‘examine the events leading up to the arrest, and then decide “whether these historical

facts, viewed from the standpoint of an objectively reasonable police officer, amount

to” probable cause.’” State v. Thornton, 2018-Ohio-2960, ¶ 20 (1st Dist.), citing

Maryland v. Pringle, 540 U.S. 366, 371 (2003). More specifically, an arrest for

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operating a vehicle while under the influence (“OVI”) is supported by probable cause

when “‘at the moment of arrest, the police had sufficient information, derived from a

reasonably trustworthy source . . . sufficient to cause a prudent person to believe that

the suspect was driving under the influence.’” Id., quoting State v. Homan, 89 Ohio

St.3d 421, 427 (2000). In considering the totality of the facts and circumstances,

courts do not insist on a showing of actual criminal activity, just “a probability or

substantial chance” of such activity. Id. at ¶ 20-21.

{¶10} Here, the officers testified that when they arrived on scene and

attempted to speak to each party about the accident, Ms. Duncan’s convoluted

retelling of the accident varied the longer she spoke, and it seemed inconsistent with

the aftermath of the accident. They smelled an odor of alcohol on her, they observed

that she could not follow directions to the field sobriety test, and they noticed her

erratic behavior. One officer even testified that her eyes were glassy and bloodshot,

her speech was slurred, and she was uncooperative at points in the investigation. S.C.

also reported to the officers her observation about Ms. Duncan’s erratic and

confrontational behavior upon exiting from her vehicle. While some of her behavior

could be chalked up to understandably being concerned about her child’s well-being

in the aftermath of the collision, “‘probable cause does not require officers to rule out

[an] innocent explanation for suspicious facts.’” Id. at ¶ 22, quoting District of

Columbia v. Wesby, 138 S.Ct. 577, 588 (2018).

{¶11} Therefore, even though some considerations might weigh in Ms.

Duncan’s favor, probable cause does not require officers to rule out every possible

explanation before they decide to arrest someone if sufficient facts suggest culpability.

Additionally, this court has held that probable cause exists in cases such as this one

when, after a collision, the individual acted strangely, had bloodshot eyes, slurred his

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speech, was unable to follow directions, and had an odor of alcohol. See State v. Rice,

2017-Ohio-9114, ¶ 27 (1st Dist.); State v. Assefa, 2023-Ohio-385, ¶ 14 (1st Dist.).

{¶12} These same signs were exhibited by Ms. Duncan, and consistent with

our precedent, we agree with the trial court’s probable cause assessment and overrule

her first assignment of error.

III.

{¶13} Next, Ms. Duncan argues that even though the trial court correctly

suppressed the results of her field sobriety test, it improperly allowed the officers to

testify as to her demeanor during the administration of the test and its subparts.

{¶14} Although not explicitly stated, Ms. Duncan seems to argue that the

admission of the officers’ testimony regarding their observations was unduly

prejudicial under Evid.R. 403, as it morphed into a discussion of the inadmissible

results of the field sobriety test. Relevant evidence is admissible unless “its probative

value is substantially outweighed by the danger of unfair prejudice, [or] confusion of

the issues.” Evid.R. 403. We review a trial court’s admission of evidence under an

abuse of discretion standard. See State v. Walker, 2018-Ohio-3918, ¶ 7 (1st Dist.). An

abuse of discretion occurs when “a court exercis[es] its judgment, in an unwarranted

way, in regard to a matter over which it has discretionary authority.” Johnson v.

Abdullah, 2021-Ohio-3304, ¶ 35.

{¶15} As noted previously, the field sobriety test conducted in Ms. Duncan’s

case ran afoul of the accepted standards per the NHTSA manual, and therefore, the

results were inadmissible (as the trial court concluded). See State v. Rice, 2009-Ohio-

6332, ¶ 22 (1st Dist.). However, “[i]t is generally accepted that virtually any lay

witness, including a police officer, may testify as to whether an individual appears

intoxicated,” as “[s]uch evidence is relevant and admissible pursuant to Evid.R. 401

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and 402.” State v. Schmitt, 2004-Ohio-37, ¶ 12, citing Columbus v. Mullins, 162 Ohio

St. 419, 421 (1954). When the actual results of the field sobriety tests are inadmissible,

an “officer may [still] testify at trial regarding observations made during a defendant’s

performance” of such tests. Id. at ¶ 15.

{¶16} Here, during the administration of the field sobriety test and its

subparts, the officers observed that Ms. Duncan could not follow instructions. During

the HGN test, the officer told her to keep her head still while the stimulus moved from

side to side, but she kept moving her head with the movement of the stimulus. And

during the walk-and-turn test, she was told to keep her hands at her sides and take

nine heel-to-toe steps, but she proceeded to take long strides. Because even a lay

witness may observe and testify as to an inability to follow instructions and infer (along

with other indicia in the present record) that the individual may be intoxicated,

officers may do the same and their testimony should not be treated differently in terms

of admissibility. Id. at ¶ 14. The officers’ observations in this case were ones that a

layperson could perceive and testify to.

{¶17} Ms. Duncan fashions a separate but related argument that one officer’s

observations were based on his training and experience due to the scientific nature of

the HGN test, and therefore, were not observations that he could have offered as a

layperson. In this regard, Ms. Duncan relies on Evid.R. 701, which provides that a lay

witness’s testimony must be “rationally based on the perception of the witness,” and

she suggests that the officer was essentially presenting expert testimony. But we don’t

see it that way. In reviewing the relevant transcript, the officer’s testimony focused on

her inability to follow the instructions to the HGN test as but one indicia of intoxication

(among others that he discussed). His observations about her inability to focus and

comply with instructions seems like standard fare for lay witness observation. The

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Supreme Court of Ohio held that “the HGN test is no different from any other field

sobriety test, such as finger-to-nose, walk-and-turn, or one-leg stand” for admissibility

purposes. State v. Boczar, 2007-Ohio-1251, ¶ 26; see City of Columbus v. Bickis, 2010-

Ohio-3208, ¶ 16 (10th Dist.), citing Boczar at ¶ 25-27 (“Admission of such evidence

regarding the HGN test is no different from other nonscientific field sobriety tests.”).

Simply observing that an individual continuously fails to follow instructions is

rationally based on an individual’s perception, despite what additional familiarity an

officer may have with intoxicated individuals through their professional experience.

See State v. Tucker, 2023-Ohio-2894, ¶ 43-44 (2d Dist.). Therefore, like the heel-to-

toe test, an officer may testify as to their lay observations about an individual’s

intoxication during the performance of the HGN test, exactly as this officer did.

{¶18} Importantly, we see a distinction between the results of the HGN test

and mere observations made throughout the administration of it. The results of the

HGN test consider how many “clues” of intoxication a person exhibits, and based on

those “clues,” the officer determines whether a person passes the test and the

statistical likelihood of intoxication. See State v. Ricer, 2018-Ohio-426, ¶ 20 (5th

Dist.), citing Bickis at ¶ 16-17. But physiological observations made by the officer (the

individual being unable to focus steadily, swaying, and failing to follow instructions)

are admissible as layperson observations even when the results are inadmissible. Id.,

citing Bickis at ¶ 16-17. Therefore, while the results of the HGN test and the related

scientific analysis were inadmissible, the officers’ layperson physiological observations

were not. And the officers stayed on the correct side of the line in their testimony,

offering no commentary on the number of “clues” Ms. Duncan exhibited nor any

statistical likelihood about intoxication.

{¶19} Therefore, we find no abuse of discretion and overrule Ms. Duncan’s

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second assignment of error.

IV.

{¶20} In her third and final assignment of error, Ms. Duncan challenges the

trial court’s judgment on the OVI charge as not supported by sufficient evidence, and

alternatively, against the manifest weight of the evidence.

{¶21} In reviewing a challenge to the sufficiency of the evidence used to

support a criminal conviction, we “must examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.” State v. Anderson, 2017-Ohio-8641, ¶

10 (1st Dist.), citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. Therefore, we must decide “‘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. As this is a

question of law, we review the evidence de novo. Id., citing In re D.S., 2013-Ohio-

4565, ¶ 6 (1st Dist.).

{¶22} The manifest weight of the evidence standard refers to whether there is

a “‘greater amount of credible evidence . . . to support one side of the issue rather than

the other.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black’s Law

Dictionary (6th Ed. 1990). We must look to and weigh the “‘evidence and all

reasonable inferences, consider[ing] the credibility of witnesses and determine[]

whether . . . the [fact finder] clearly lost its way and created such a manifest

miscarriage of justice’” so as to justify reversal. Id., quoting State v. Martin, 20 Ohio

Ap.3d 172, 175 (1st Dist. 1983). When deciding whether a judgment entered by the

trial court is against the manifest weight of evidence, we should always “‘bear in mind

the trier of fact’s superior, first-hand perspective’” on the presentation of the facts.

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State v. Brown, 2024-Ohio-2148, ¶ 19 (1st Dist.), quoting State v. Mickens, 2009-

Ohio-1973, ¶ 30 (10th Dist.).

{¶23} The relevant statute provides that “[n]o person shall operate any vehicle

. . . if, at the time of the operation . . . [t]he person is under the influence of alcohol . .

. .” R.C. 4511.19(A)(1)(a). Therefore, the State must adduce sufficient evidence to

support (and the manifest weight of the evidence must be in favor of) the trial court’s

conclusions that (1) Ms. Duncan operated a vehicle, and (2) while doing so, she was

under the influence of alcohol. Ms. Duncan does not contest her operation of the

vehicle, so we focus our consideration on the second requirement.

{¶24} Ms. Duncan primarily points to the absence of evidence as to her driving

or emotional state prior to the collision. Her emotions and reactions following the

collision, she maintains, could have resulted from the collision itself, rather than

intoxication. She also raises inconsistencies in the evidence surrounding the odor of

alcohol because one officer said the smell was stronger once she was placed in the

cruiser. Therefore, she believes there was insufficient evidence to support her

conviction, or alternatively, that the judgment of the trial court was against the

manifest weight of the evidence.

{¶25} Ms. Duncan attempts to rely on the fact that despite the officers

observing slurred speech, they were able to understand her answers to their questions

(thus casting doubt on their observations), and no one ever noticed that she stumbled

or fell when she walked in between the cars and the sidewalk (which were at least 50

feet apart). While these points might militate in favor of Ms. Duncan, the record

contained several sources and countless examples of her behavior that indicated that

she was intoxicated when she collided with S.C. Construed in a light most favorable

to the State, the odor of alcohol on her breath, her inability to follow instructions, her

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inconsistent description of what happened, and her unusual behavior following the car

crash certainly would permit a rational fact-finder to conclude that she was driving

under the influence. See State v. Panzeca, 2020-Ohio-4448, ¶ 16 (1st Dist.), quoting

State v. Colyer, 2013-Ohio-1316, ¶ 9 (1st Dist.) (evidence that the defendant had

“‘slurred speech, [a] strong odor of alcohol, [] bloodshot eyes . . . as well as the evidence

that his car recently had been in an accident’” was sufficient to support a conviction).

{¶26} Likewise, we have no manifest weight of the evidence concerns based on

our review of the record. The evidence admitted at trial did not strongly favor Ms.

Duncan, even though she pointed to a few facts that supported her position. But even

“‘[w]hen conflicting evidence is presented at trial, a conviction is not against the

manifest weight of the evidence simply because the trier of fact believed’” one party’s

testimony over the other. State v. Brown, 2023-Ohio-2885, ¶ 15 (1st Dist.), quoting

State v. Robinson, 2019-Ohio-3144, ¶ 29 (12th Dist.). A “conviction will be reversed

in only ‘the exceptional case in which the evidence weighs heavily against the

conviction.’” State v. Frye, 2023-Ohio-4150, ¶ 5 (1st Dist.), quoting Thompkins, 78

Ohio St.3d at 387. Therefore, even though Ms. Duncan may point to some exculpatory

evidence, the weight of the evidence introduced at trial does not compel us to reverse

the judgment of the trial court.

{¶27} For these reasons, we overrule Ms. Duncan’s third assignment of error.

V.

{¶28} Based on the foregoing analysis, we find that the trial court committed

no reversible error, and therefore, we affirm its judgment as to Ms. Duncan’s OVI

conviction on all grounds. The portion of the appeal relating to the improper turn

conviction is dismissed.

Judgment accordingly.

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CROUSE and WINKLER, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.