[Cite as State v. Franks, 2026-Ohio-1594.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No.WD-25-015
Appellee Trial Court No. 2024CR0181 v.
Elizabeth Franks DECISION AND JUDGMENT
Appellant Decided: May 1, 2026
***** Paul A. Dobson, Wood County Prosecutor and Kristofer Kristofferson, Assistant Prosecutor, for appellee.
David Klucas, for appellant. *****
DUHART, J.
{¶ 1} Appellant, Elizabeth Franks, appeals from a judgment entered by the Wood
County Court of Common Pleas convicting her, following a jury trial, of operating a
vehicle while under the influence of alcohol. For the reasons that follow, the trial court’s
judgment is affirmed in part, and reversed in part.
Statement of the Case
{¶ 2} On May 2, 2024, the Wood County grand jury returned a two-count
indictment charging Franks with offenses related to a traffic accident that occurred on December 12, 2023. Count 1 charged her with operating a vehicle under the influence of
alcohol, a drug of abuse, or a combination of them (“OVI”) under R.C. 4511.19(A)(1)(a)
and R.C. 4511.19(G)(1)(d), as Franks had five prior convictions for OVI. Count 2 was
also for OVI, but under R.C. 4511.19(A)(2)(a), R.C. 4511.19(A)(2)(b), and R.C.
4511.19(G)(1)(d), for her refusal to submit to chemical tests and for her prior OVI
convictions. Both counts were felonies of the fourth degree, and both counts carried a
repeat OVI offender specification under R.C. 2941.1413(A).
{¶ 3} Franks filed a motion to suppress wherein she alleged that: 1) the police
lacked reasonable suspicion to request that Franks complete field sobriety tests; 2) the
police lacked probable cause to arrest her for OVI; and 3) the police failed to
substantially comply with the NHTSA manual when administering field sobriety tests.
Regarding photographs of the scene that were initially thought by the parties to have been
destroyed, she asserted that the State was obligated to show either that the photographs
were destroyed prior to Franks’s request or that the photographs were not materially
exculpatory.
{¶ 4} An initial hearing on the motion to suppress was held on August 26, 2024.
Following the hearing, the trial court took the matter under advisement. While the matter
was still pending, the trial court indicated to counsel that it intended to deny the motion to
suppress and issue an order to that effect. After that, but before the trial court’s issuance
of an order, the State digitally recovered the pictures that were previously thought to have
been destroyed. The defense objected to any use of the pictures, while the State sought to
supplement the evidence with them in connection with the motion to suppress.
2. {¶ 5} On October 31, 2024, the trial court held a supplemental hearing to
determine whether the photographs should be considered for purposes of the motion to
suppress and, if so, to take testimony related to the pictures. Most of the photos depicted
wreckage from the accident. Other photos depicted what appeared to be a water bottle, an
unidentified can, an unopened Budweiser bottle, and a Bud Light can that may or may
not have been opened. The State argued that the photos could be relevant to the question
of whether the arresting officer had probable cause to conduct further investigation and
probable cause to effect an OVI arrest. The defense argued that because the trial court
had previously indicated its intention to deny the motion to suppress, Franks would suffer
prejudice if the State were allowed to “retroactively bolster the evidence concerning
probable cause.”
{¶ 6} The trial court indicated that the pictures “give context to the accident and
what was in the car” and that defense counsel would have the ability to cross-examine the
arresting officer about whether he remembered the cans being at the scene and how the
cans had weighed into the officer’s considerations. The trial court, emphasizing that this
was “a good faith situation,” overruled the defense’s objection.
{¶ 7} Thereafter, the trial court heard testimony from the arresting officer, who
testified that the pictures were taken on the night of the crash and, further, were fair and
accurate depictions of the scene. A second officer testified that the photos had been
mistakenly believed to be lost because they were never transferred into the police
department’s new crash report system. He stated that they were ultimately retrieved after
he found them in the department’s old crash report system. Following this testimony, the
3. trial court confirmed that the photos would be admitted for purposes of deciding the
motion to suppress, “because the Court has to guarantee due process” and because the
defense had demonstrated no apparent harm.
{¶ 8} On January 30, 2025, the trial court decided the motion to suppress, granting
suppression of evidence of the administration and results of the horizontal gaze
nystagmus test (because the test was not administered according to NHTSA standardized
field sobriety testing manual requirements), but denying the rest of Franks’s claims.
{¶ 9} The case proceeded to a two-day jury trial beginning on February 5, 2025,
and ending on February 6, 2025. Franks was found guilty on both counts and
specifications.
{¶ 10} The trial court merged the two counts for purposes of sentencing, and the
State elected to proceed on Count 2 and its corresponding specification. Franks was
sentenced to serve two years in prison on the specification and to five years of
community control on the underlying OVI offense, to begin upon Franks’s release from
prison. As part of her community control, Franks was ordered to complete “any and all”
requirements of the Intensive Supervision Program at SEARCH, a community-based
correctional facility in Wood County. Franks’s counsel objected to the SEARCH term,
arguing that if a prison term is imposed on the OVI, there should be no local term of
incarceration.
Appellant timely filed an appeal.
4. Statement of the Facts
Motion to Suppress – August 26, 2024 Hearing
{¶ 11} Officer Tyler Dewitt of the Lake Township Police Department testified at
the August 26, 2024 suppression hearing that he had specialized training in the detection
of alcohol impairment, and that part of that training involved learning how to provide
standardized field sobriety tests (“SFSTs”) in compliance with the NHTSA safety
manual. He testified that prior to December 12, 2023, he had performed standardized
field sobriety testing around 20 to 25 times and that he had charged people with OVI a
total of 13 times. He also mentioned that the Lake Township Police department did not
utilize dash or body cameras, and so his interaction with Franks would not have been
recorded on the night in question.
{¶ 12} Regarding the night in question, Dewitt testified that on December 12,
2023, at around 1:30 a.m., he was on patrol on I-280 northbound, near the section of the
roadway where I-280 southbound becomes State Route 420. He was stationed on the
shoulder, watching oncoming traffic coming from I-90, i.e., the turnpike, when he heard a
loud crashing sound. He turned and saw that a silver Dodge SUV had crossed several
lanes of travel and struck a nearby guardrail. Dewitt then watched the silver SUV as it
first moved into reverse and then began traveling southbound on State Route 420. Dewitt
stated that he soon located the silver SUV, disabled and smoking, on the shoulder of the
road. He noted that the car had heavy front-end damage, a back passenger tire that was
completely flat, and a rear window that was “busted out.”
5. {¶ 13} Dewitt testified that due to the smoke coming from the vehicle, his
immediate priority and concern was to get the occupant out for safety reasons. He
testified that a can fell out of the car as Franks exited the vehicle, and that she stumbled
and almost fell “face first” on the roadside as she attempted to retrieve it. Dewitt
described that Franks was “unsteady on her feet” and “stumbling,” and that she started to
wander in the wrong direction as they were going back to his car.
{¶ 14} Dewitt testified that he asked Franks whether she had been drinking and
she answered no. She stated that she was coming from home, and when asked where she
was going, she again stated “home.” When Dewitt asked her if she struck the guardrail,
she answered that she just wanted to go home.
{¶ 15} Dewitt testified that he placed her in his patrol car due to the cold
temperatures. While speaking to her, he noticed that she had “glossy red eyes,” “[h]er
speech was slurred,” and she was not always forming complete and coherent sentences.
Dewitt testified that based on his training to detect alcohol impairment, the bloodshot,
glossy eyes, and the slurred speech conveyed to him that she was impaired.
{¶ 16} When he asked Franks how the crash occurred, she answered that there
were no speed limit signs visible on the curve exit ramp, and that not seeing those, speed
was a factor. Dewitt testified that she would have to have crossed two southbound lanes
in order to have driven into the guardrail. He stated that from his experience in dealing
with impaired drivers, marked lanes violations are the most common infraction that
impaired drivers make.
6. {¶ 17} Dewitt stated that throughout his interaction with Franks, she repeatedly
stated that she just wanted to go home and that she did not know why he was doing this
to her. Following his discussion with Franks, Dewitt decided to perform SFST testing on
her.
{¶ 18} Dewitt agreed that the factors he considered when deciding to perform
SFST testing included: 1) the fact that there was a crash; 2) the marked lanes violation; 3)
Franks’s bloodshot, glassy eyes; 4) her incomplete sentences; 5) her slurred speech; 6)
her demeanor; 7) her lack of coordination or balance; and 8) that it was approximately
1:30 a.m.
{¶ 19} Dewitt described how he first performed the nystagmus test, the walk-and-
turn test, and, finally, the one-leg stand test. He stated that prior to administering the first
test, he asked Franks if she had any health ailments that would prohibit her from walking
in a straight line. Franks answered that she did not.
{¶ 20} He described how Franks had performed poorly on the walk-and-turn test,
first by starting the test numerous times before she was instructed to do so, and then by
holding her arms out straight for balance, rather than at her sides, with four inches
between steps, instead of heel-to-toe, and her steps not in a straight line. Dewitt testified
that because Franks “was falling” after taking just four steps, the test was concluded for
safety reasons. According to Dewitt, Franks stated to him while he was attempting to
demonstrate the test, “I hate you and I don’t know why you’re doing this to me.”
{¶ 21} Next, Dewitt described his administration of the one-leg stand test, and
how Franks fared poorly because she needed to use her arms for balance and because she
7. ended the test after only a few seconds -- rather than after the required 30 seconds -- by
placing her raised foot on the ground. In addition, rather than counting during the test, as
she was instructed, Franks merely muttered something unintelligible under her breath.
{¶ 22} Based on the SFST test results together with the factors that led to his
decision to administer the tests, Dewitt determined that Franks was under the influence.
{¶ 23} Dewitt admitted on cross examination that he never detected any odor of
alcohol at any point during his encounter with Franks. He also acknowledged that
bloodshot, glassy eyes at night could indicate driver fatigue, that Franks could have had a
medical issue that affected her speech, and that nervousness or having recently been in a
car crash could likewise impact a person’s speech. Also on cross examination, Dewitt
testified in detail as to how he had conducted the nystagmus test.
{¶ 24} In response to examination by the trial court, Dewitt answered that he had
observed no injury on Franks.
Trial
Officer Dewitt
{¶ 25} At trial, Dewitt testified as to how on December 12, 2023, he heard a crash
and saw a silver gray SUV in the southbound lanes of 420 that looked like it had struck a
guardrail. He further testified as to how the vehicle did not remain at the scene of the
crash but instead began to travel southbound on 280/420, and that he ultimately came to
find the vehicle, apparently disabled, on the shoulder of the roadway, with heavy front
end damage and smoke emanating from the hood, with a flat tire, and the driver’s side
8. rear window blown out. Dewitt identified photographs that depicted the damage to the
vehicle.
{¶ 26} Next, Dewitt described how a can fell out when the driver’s door was
opened and that when Franks attempted to step out, “she almost fell face-first forward,”
in what she stated was an attempt to retrieve the can. Dewitt testified that when he asked
her where she was traveling, she answered home, and that when he asked her where she
had come from, she again answered home.
{¶ 27} According to Dewitt, as he was talking to her, she repeatedly stated, “I just
want to go home.” He asked Franks whether she had been drinking or taking any
medication and she stated that she had not. He stated that her speech was slurred and she
was not making much sense, giving him short, one-word answers to his questions. When
he asked her if she knew she had hit the guardrail further back on the road, she answered
in the affirmative, explaining that as she was exiting the turnpike, she was going too fast
(as there were no speed limit signs), causing her to lose control of the vehicle and jump
over two lanes before striking the guardrail. At no point during the conversation did she
indicate why she left the area and attempted to travel with the vehicle in its damaged
condition.
{¶ 28} Throughout the interaction with Dewitt, Franks continued to repeat that she
just wanted to go home. Dewitt testified that as a result of his professional training he is
able to identify signs of drivers who are impaired by drugs or alcohol. He stated that
based on his training, education, and experience, glossy eyes and slurred speech are
indicative of being under the influence or “impaired to operate a motor vehicle.”
9. {¶ 29} Dewitt testified that as he attempted to walk Franks to the front of his
patrol car, Franks, who was “[v]ery unsteady on her feet,” wandered off in the wrong
direction before being directed back.
{¶ 30} Dewitt testified that based upon what he had seen, he decided to administer
SFSTs, but before doing so he asked Franks whether she had any medical ailments that
would prevent her from walking in a straight line. Franks stated that she did not. Nor did
she state that she needed to get her glasses.
{¶ 31} Dewitt testified that he tried to administer the walk-and-turn test, but that
Franks “began the test prematurely numerous times.” He also stated that she kept talking
while he was explaining the test -- saying that she hated him and did not understand why
he was doing this to her -- and that she could not balance well enough to hold one foot in
front of the other. Instead of touching heel-to-toe, her feet were four inches apart, and
instead of keeping her arms to her sides, she kept using her arms for balance “kind of like
an airplane.” Dewitt stated that with each step, Franks was almost falling, face first, into
traffic. After four steps, Dewitt concluded the test for safety reasons, because they were
“on a somewhat busy road.”
{¶ 32} Dewitt testified that he also administered the one-legged stand test. Again,
Dewitt stated that Franks used her arms for balance, rather than placing them by her side.
In addition, she lifted her foot up for two seconds and then placed it back down, the
whole time using her arms for balance. She tried to restart the test, “but quit before she
even lifted her foot off the ground.” Her demeanor while attempting to complete the test
10. included her mumbling something under her breath towards Dewitt. At this point, Franks
was placed in handcuffs and arrested for OVI.
{¶ 33} Next, Franks was taken to the police station for a breathalyzer test. On the
way, she stated numerous times that she did not want to be in handcuffs, telling Dewitt
“[i]t’s not like I’m going to kill you.” Dewitt testified that upon arriving on the scene, he
presented Franks with a BMV-2255 form that explained the punishments for refusing to
take the breathalyzer test. He stated that they went over the form together and that she
subsequently signed it. He also testified that she refused to take the test.
{¶ 34} Dewitt identified photographs depicting an unopened beer bottle and a Bud
Ice 25-fluid ounce beer can that were found inside Franks’s vehicle. Dewitt explained
that it could not be determined from the photos whether the beer can was opened or
unopened. In addition, he identified a Red Bull can as the can that Franks had previously
reached for.
{¶ 35} On cross examination, defense counsel questioned Dewitt extensively
about his failure to detect the odor of alcohol at any point during his encounter with
Franks. In addition, Dewitt acknowledged that someone could have bloodshot eyes due to
tiredness or allergies, or even contact lens irritation.
{¶ 36} On redirect, Dewitt reiterated that there were numerous factors that he
considered in deciding to arrest Franks for OVI, and that “glossy eyes” was but one
factor.
11. Officer John Eggleston
{¶ 37} Officer John Eggleston of the Lake Township Police Department testified
that he responded to the scene to assist Dewitt. He stated that he went to inspect the
guardrail just north of the turnpike and found it “completely bent about 90 degrees-ish,”
with debris all over the roadway and a fluid trail that led from where the guardrail was
bent “down south on the highway.” He further testified that there were tire marks on the
road leading to where the guardrail was hit that were consistent with skidding or braking.
{¶ 38} Eggleston stated that he photographed Franks’s vehicle and observed the
walk-and-turn-test as it was being administered to Franks. He described the crash as
“significant,” and observed that Dewitt had to stop the test because Franks was losing her
balance and was starting to fall close to the lane of travel. Eggleston stated that after the
arrest, he did a records check for Franks and found that she had five previous convictions
for OVI within the last 20 years.
{¶ 39} On cross examination, defense counsel pointed out that Eggleston had
prepared a crash report indicating that alcohol was suspected. Eggleston affirmed that his
understanding when filling out the form was that alcohol consumption, and not drug use,
was suspected in this case. He acknowledged that while a search warrant to test Franks’s
blood or urine could have been requested, it was not.
Assignments of Error
{¶ 40} On appeal, Franks asserts the following assignments of error:
I. The trial court committed reversible error by denying appellant’s motion to suppress.
12. II. The trial court committed reversible error by denying appellant’s Criminal Rule 29 motions.
III. The verdicts are against the weight of the evidence.
IV. The trial court committed reversible error by imposing an indefinite term in a community based corrections facility after appellant served a mandatory prison term.
Law and Analysis
First Assignment of Error
{¶ 41} Franks argues in her first assignment of error that the trial court committed
reversible error by denying her motion to suppress, first, because there was no reasonable
suspicion to request field sobriety tests and, second, because the arresting officer lacked
probable cause to arrest her.1
1 Without citing any case law, Franks begins her argument by stating that in reviewing the trial court’s decision on the motion to suppress, this court should limit its consideration to the evidence produced at the August 26, 2024 hearing. As a basis for this argument, Franks states only that “[b]efore the court reopened the hearing on 31 October 2024, [the trial court] had informed counsel that the motion was going to be denied.”
The question of whether to accept additional evidence for purposes of a suppression hearing is within the sound discretion of the trial court. See State v. Callihan, 80 Ohio App.3d 184, 195 (4th Dist. 1992); see also State v. Bracey, 2025-Ohio-2133, ¶ 58 (6th Dist.), citing State v. Lashuay, 2007- Ohio-6365, ¶ 19 (6th Dist.) (“The standard of review regarding the trial court’s denial of reopening is abuse of discretion.”). In Lashuay, this court held that a trial court abused its discretion in refusing to reopen the suppression hearing to review and consider new evidence that bore directly on the propriety of the stop. Id. at ¶ 20. The court explained that “[f]ailure to consider the new evidence denied [the] appellant a full and fair opportunity to present his case.” Id.
Especially in this case, where the trial court reopened the evidence before issuing a judgment entry ruling upon the motion to suppress, we find no abuse of discretion in the trial court’s decision to reopen the evidence. See Callihan at 195 (trial court’s decision to 13. {¶ 42} Appellate review of a motion to suppress involves a mixed question of law
and fact. State v. Dye, 2021-Ohio-3513, ¶ 36 (6th Dist.), citing State v. Burnside, 2003-
Ohio-5372, ¶ 8. “The trial court acts as the trier of fact at a suppression hearing by
weighing the evidence and determining the credibility of the witnesses.” Dye at id.
“Although we must accept any findings of fact that are supported by competent, credible
evidence, we conduct a de novo review to determine whether the facts satisfy the
applicable legal standard, and this independent review is done without deference to the
trial court. Id. citing State v. Codeluppi, 2014-Ohio-1574, ¶ 7, (6th Dist.), citing Burnside
at ¶ 8; State v. Jones-Bateman, 2013-Ohio-4739, ¶ 9 (6th Dist.).
{¶ 43} Regarding reasonable suspicion in an OVI case, “‘an officer may request a
motorist to perform field sobriety tests after a traffic stop…where the officer has
articulable facts that give rise to a reasonable suspicion that the motorist is intoxicated.’”
State v. Colby, 2021-Ohio-4405, ¶ 17 (6th Dist.), quoting Cleveland v. Hyppolite, 2016-
Ohio-7399, ¶ 29 (8th Dist.).
{¶ 44} “Ohio courts recognize that a number of factors may supply an officer with
reasonable suspicion to conduct field sobriety tests, including, but not limited to (1) the
time of day that the stop occurred; (2) the area where the stop occurred; (3) whether there
was erratic driving that might point to a lack of coordination; (4) the existence of a
“cognizable report” that the driver might be intoxicated; (5) the appearance of the
suspect's eyes;[] (6) impairments related to the individual's speech; (7) an odor of alcohol
reopen evidence prior to issuing judgment entry sustaining motion to suppress was not unreasonable, arbitrary, or unconscionable). 14. in the car or on the person; (8) the strength of that odor; (9) lack of coordination after the
stop; (10) “the suspect's demeanor”; and (11) the suspect's admission of alcohol
consumption.” Dye at ¶ 65, citing State v. Evans, 127 Ohio App.3d 56, 63, (11th
Dist.1998), fn. 2; see also State v. Martorana, 2023-Ohio-662, ¶ 27, citing Evans at fn.2.
“In determining whether the officer had reasonable suspicion we look at the totality of the
circumstances, not any one factor.” Dye at id., citing State v. Andrews, 57 Ohio St.3d 86,
87, (1991);
{¶ 45} “To determine whether an officer had probable cause to arrest a driver for
OVI, a reviewing court must consider whether, at the time of the arrest, ‘the police had
sufficient information, derived from a reasonably trustworthy source of facts and
circumstances, sufficient to cause a prudent person to believe that the suspect was driving
under the influence.’” Dye at ¶ 83, quoting State v. Homan, 89 Ohio St.3d 421, 427
(2000). (Additional citations omitted). “In making this determination, the reviewing court
must consider the totality of the circumstances surrounding the arrest.” Id. “Probable
cause to arrest does not have to be based, in whole or part, on the results of field sobriety
tests.” Dye at id., quoting State v. Masin, 2020-Ohio-6780, ¶ 34 (6th Dist.), citing Homan
at 427.
{¶ 46} “‘Examples of circumstances that may support or undermine probable
cause in an OVI case include the manner of driving, the day and time, the driver's
appearance and ability to communicate, including glassy and bloodshot eyes and slurred
speech, the driver's behavior and cooperation, the driver's coordination and balance, the
smell of alcohol, the presence of alcohol containers in the vehicle, the admission of
15. drinking alcohol or other incriminating statements, and the driver's performance on field
sobriety tests.’” (Citations omitted.) State v. Scott, 2022-Ohio-2071, ¶ 40 (6th Dist.),
quoting State v. Baah, 2016-Ohio-7131, ¶ 21-22 (10th Dist.).
A. Officer Dewitt’s request that Franks submit to SFSTs was supported by reasonable suspicion.
{¶ 47} In arguing that Dewitt lacked reasonable suspicion to request Franks to
submit to SFSTs, Franks contends that Dewitt was an unreliable witness because he had
only administered field sobriety tests 20-25 times and that the trial court failed to
appreciate that Franks had just been in a single-vehicle accident. Further, Franks states
that not enough of the Evans factors were present to justify requesting Franks to submit
to SFSTs.
{¶ 48} We find that the trial court’s factual findings concerning the reliability of
Dewitt’s testimony are supported by competent, credible evidence. Dewitt testified at
length as to the many reasons he believed Franks to be intoxicated prior to initiating the
field sobriety testing. While he made some mistakes on the horizontal gaze nystagmus
test that led it to be suppressed, he performed the other SFSTs without issue and
recounted all significant details of his interaction with Franks, many of which pointed to
her being under the influence of alcohol. And while Dewitt may not have arrested a great
number of impaired drivers or conducted a great number OVI investigations, his
testimony was sufficient to allow a trial court to conclude that his opinions and
observations were credible.
16. {¶ 49} As to the significance of the crash, we note that despite the severity of the
damage to Franks’s vehicle and to the guardrail that she hit, Dewitt saw no visible
injuries on Franks and -- perhaps even more importantly -- Franks denied being injured.
Although the trial court was free to find the accident to be the cause for certain aspects of
Franks’s condition, it was not required to do so.
{¶ 50} Finally, Dewitt’s request that Franks complete SFSTs was entirely justified
by the Evans factors. The traffic stop occurred at 1:30 in the morning, after Franks had
gotten herself into a single-vehicle crash that involved her crossing multiple lanes of
travel, slamming into a guardrail, and then fleeing the scene with disabling damage to her
vehicle. Her demeanor was such that she stumbled out of the car, nearly falling face-first
into the road while attempting to retrieve a can that had fallen out. She continued to
stumble around after exiting the vehicle, and she stated to Dewitt regarding her travels
that she was both going home and coming from home. Lastly, her speech was slurred, she
was unable to form complete sentences, and she had glossy, red eyes.
{¶ 51} While it is not insignificant that Dewitt did not detect the smell of alcohol
and that Franks did not admit to consuming alcohol on that evening, these facts are not
necessarily fatal to a finding of reasonable suspicion. See State v. Rice, 2017-Ohio-9114,
¶ 30 (1st Dist.) (“there is no requirement that an officer smell alcohol or drugs on or
about the person, find an open container of alcohol, or obtain an admission of
consumption”). We find that the circumstances of this case provided ample articulable
facts giving rise to a reasonable suspicion that Franks was intoxicated, strongly
17. supporting Dewitt’s decision to conduct field sobriety testing even absent the odor of
alcohol.
B. Franks’s arrest was supported by probable cause after Franks’s failure on SFSTs and given other factors.
{¶ 52} In addition to all of the reasons justifying Dewitt’s request that Franks
submit to field sobriety testing, Franks’s poor performance on the walk-and-turn and one-
legged stand tests further justified her arrest, as did her belligerent behavior during the
walk-and-turn test, when Franks told Dewitt that she hated him. We find that given the
totality of the circumstances, Dewitt had sufficient information to cause a prudent person
to believe that Franks was driving under the influence and, therefore, he had probable
cause to arrest her for OVI.
{¶ 53} For the foregoing reasons, Franks’s first assignment of error is found not
well-taken.
Second and Third Assignments of Error
{¶ 54} Franks’s second and third assignments of error involve arguments related
to the weight and sufficiency of the evidence. Because these concepts are closely related,
they will be addressed together.
{¶ 55} Franks initially contends that the trial court erred in denying her Crim.R. 29
motion for acquittal. “The standard of review for a denial of a Crim.R. 29 motion is the
same as the standard of review for sufficiency of the evidence.” State v. Johnson, 2014-
Ohio-2435, ¶ 11 (6th Dist.), citing State v. Carter, 72 Ohio St.3d 545 (1995). When
reviewing the sufficiency of the evidence, our function is to examine the trial evidence to 18. determine “whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. 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 (1991), paragraph two of the syllabus, superseded by
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,
fn. 4 (1997).
{¶ 56} “While sufficiency of the evidence examines whether the evidence is
legally sufficient to support the verdict as a matter of law, the criminal manifest weight of
the evidence standard addresses the evidence’s effect of inducing belief.” State v.
Herrera, 2022-Ohio-4769, ¶ 37 (6th Dist.), citing State v. Wilson, 2007-Ohio-2202, ¶ 25,
citing State v. Thompkins, 78 Ohio St.3d 380, 386.
{¶ 57} In determining whether Jackson's conviction is against the manifest weight
of the evidence, we must review the record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and decide, in resolving any conflicts
in the evidence, whether the trier of fact “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. Prescott, 2010-Ohio-6048, ¶ 48 (6th Dist.), citing Thompkins at 387. We do not view
the evidence in a light most favorable to the State; rather, we “sit as a ‘thirteenth juror’
and scrutinize ‘the factfinder's resolution of the conflicting testimony.’” State v. Lewis,
2022-Ohio-4421, ¶ 22 (6th Dist.), quoting State v. Robinson, 2012-Ohio-6068, ¶ 15 (6th
Dist.), citing Thompkins at 388. “Although we consider the credibility of witnesses under
19. a manifest-weight standard, we must, nonetheless, extend special deference to the fact-
finder's credibility determinations, given that it is the finder of fact that has the benefit of
seeing the witnesses testify, observing their facial expressions and body language,
hearing their voice inflections, and discerning qualities such as hesitancy, equivocation,
and candor.” State v. Brooks, 2023-Ohio-2978, ¶ 13 (6th Dist.), citing State v. Fell, 2012-
Ohio-616, ¶ 14 (6th Dist.).
{¶ 58} Only in “the exceptional case in which the evidence weighs heavily against
the conviction” is a conviction reversed on manifest weight grounds. Brooks at ¶ 12,
quoting Thompkins at 387.
{¶ 59} In this case, there was substantial evidence that Franks was operating a
vehicle under the influence of alcohol. She got herself into a serious vehicle disabling
crash that involved her crossing multiple lanes of travel and slamming into a guardrail. In
spite of the damage to her car, she immediately fled the scene of the accident. When she
did finally exit her vehicle, she stumbled out and nearly fell. She could not articulate the
path of her travels and she repeated certain statements to Dewitt multiple times. Her
speech was slurred and she did not make sense. She wandered without direction and
stumbled while being instructed to walk over to Dewitt’s vehicle. She performed poorly
on SFSTs, and she became combative and derogatory with Dewitt. Finally, she had
alcohol containers in the car, and she refused the breathalyzer test. All of these
circumstances are consistent with alcohol consumption. That certain of Franks’s
behaviors could also be attributed to having been in a car crash -- or some other reason --
is of no consequence here, because a determination as to the sufficiency of the evidence
20. requires that we view the evidence in a light most favorable to the State. While Franks
argues that “[a]lcohol consumed recently enough to impair driving is detectable by
smell,” the record contains testimony by Dewitt wherein he expressly states that “[v]odka
basically has no smell.”
{¶ 60} We further find that this is not the exceptional case in which the evidence
weighs heavily against the conviction. Accordingly, we decline to reverse Franks’s
conviction on either sufficiency of the evidence or manifest weight grounds. Franks’s
second and third assignments of error are therefore found not well-taken.
Fourth Assignment of Error
{¶ 61} Franks claims in her fourth assignment of error that the trial court
committed reversible error by imposing an indefinite term at the SEARCH community-
based correctional treatment facility, where that term was ordered to be served after
Franks serves her mandatory two-year prison sentence for the R.C. 2941.1413
specification.
{¶ 62} Here, the trial court sentenced Franks to five years of community control
on the underlying OVI offense to begin after she serves her mandatory prison sentence.
Along with standard and expected conditions of community control, the trial court
imposed the following condition:
Defendant shall enter into and successfully complete the SEARCH Program. Defendant shall follow any and all recommendations for aftercare. Once Defendant is released from the Ohio Department of Rehabilitation and Corrections, Defendant shall be remanded to the custody of the Wood County Sheriff until a bed becomes available for entry into
21. SEARCH. Defendant shall report to the Wood County Adult Probation Department within seventy-two hours of release from SEARCH.
{¶ 63} Under R.C. 2929.16(A)(1), the trial court had the ability to impose “a term
of up to six months at a community-based correctional facility” as a condition of Franks’s
community control. Instead, the trial court imposed an indefinite term at the SEARCH
program, with no limitation on Franks’s custodial time other than successful completion
of the program. This is error. Because Franks’s time at SEARCH cannot lawfully exceed
six months, Franks’s fourth assignment of error is found well-taken. The matter will be
remanded to the trial court for resentencing in conformity with R.C. 2929.16(A)(1).
Conclusion
{¶ 64} The judgment of the Wood County Court of Common Pleas is affirmed in
part, and reversed in part. The matter is ordered remanded to the trial court for
resentencing consistent with this opinion. Appellant and appellee are ordered to divide
the costs of appeal pursuant to App.R. 24.
Judgment is affirmed in part and reversed in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
22. State of Ohio, Appellee v. Elizabeth Franks, Appellant Case No.: WD-25-015 Trial Court Case No.: 2024CR0181
Thomas J. Osowik, P.J. JUDGE
Christine E. Mayle, J. JUDGE
Myron C. Duhart, J. CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
23.