[Cite as State v. Huskey, 2016-Ohio-61.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : CLARK G. HUSKEY : Case No. 15 CAC 04 0031 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 14TRC15655
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 7, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ELIZABETH A. MATUNE WILLIAM T. CRAMER Assistant Delaware City Prosecutor 470 Olde Worthington Road, Suite 200 70 North Union Street Westerville, Ohio 43082 Delaware, Ohio 43015 Delaware County, Case No. 15 CAC 04 0031 2
Baldwin, J.
{¶1} Appellant Clark G. Huskey appeals a judgment of the Delaware Municipal
Court convicting him of operating a vehicle while intoxicated in violation of R.C.
4511.19(A)(1)(a). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} At approximately 6:45 in the evening of November 15, 2014, Douglas Lovas
was driving south on Africa Road in Delaware County. He stopped at a red light at the
intersection of Africa and Worthington. The car behind him failed to stop and struck him
from behind. Lovas got out of his car and approached appellant, who was the driver of
the other car. Lovas noted that appellant’s speech was slurred, his eyes were glassy,
and he was not fully coherent. Lovas saw fluids leaking from appellant’s car and
attempted to move appellant away from the car. Appellant refused to move and began
making phone calls while resting against the car. Lovas believed that appellant was
“extremely inebriated” and called 911.
{¶3} Delaware County Sheriff Deputy Troy Ellis responded to the scene of the
crash. Deputy Ellis tried to talk to appellant, but appellant ignored him while talking on
the phone. Ellis noted a strong odor of an alcoholic beverage coming from appellant. A
second deputy asked for appellant’s identification. Appellant remained on the phone
while slowly looking for his wallet. After several minutes of fumbling, appellant produced
his driver’s license. Ellis noticed that appellant’s eyes were glassy.
{¶4} When appellant discussed the accident with the deputies, he stated that he
slid because the road was slippery; however, there was no precipitation on the road.
Appellant told the deputy that he was coming from East Broad Street in Columbus, and Delaware County, Case No. 15 CAC 04 0031 3
going to East Broad Street in Columbus. Deputy Ellis asked appellant if he had consumed
alcohol, and appellant responded that he had one drink about six hours earlier.
Appellant’s speech was slow, slurred, and deliberate.
{¶5} Deputy Ellis asked appellant to undergo field sobriety testing. Appellant
was unable to comply with the deputy’s instructions for the HGN test, and after several
attempts, the deputy terminated the test. Appellant was placed under arrest for operating
a vehicle while intoxicated. He refused to provide a breath sample.
{¶6} Appellant was charged with driving at a speed greater than that which would
permit him to bring the vehicle to a stop within an assured clear distance ahead (ACDA)
(R.C. 4511.21(A)) and operating a vehicle while intoxicated (R.C. 4511.19(A)(1)(a)). The
case proceeded to jury trial. Appellant was convicted as charged and sentenced on the
OVI conviction to 2 years community control with 30 days of house arrest, a 3-day driver
intervention program, and a $500 fine. He was fined $50 for the ACDA conviction.
{¶7} Appellant assigns two errors to the OVI conviction:
{¶8} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR
OPERATING A VEHICLE WHILE UNDER THE INFLUENCE WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE.
{¶9} “II. THE JURY’S FINDING THAT APPELLANT OPERATED A VEHICLE
WHILE UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF R.C. 4511.19 WAS
NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.” Delaware County, Case No. 15 CAC 04 0031 4
I.
{¶10} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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,
paragraph two of the syllabus (1991).
{¶11} Appellant was convicted of violating R.C. 4511.19(A)(1)(a), which prohibits
operating a vehicle if, at the time of the operation, the person is under the influence of
alcohol, a drug of abuse, or a combination of them.
{¶12} Appellant struck a car that was stopped at a red light. Lovas noted that
appellant’s speech was slurred, his eyes were glassy, he was stumbling, and he appeared
to be “extremely inebriated.” Tr. 20-21.
{¶13} Deputy Ellis testified as to the factors that led him to conclude that appellant
was intoxicated:
The first factor in it is the collision itself. Clear night,
clear roadway, it’s cold but not icy and you’re in a vehicle. The
next thing is the behavior that you’re on your phone, you’re
trying to obtain – you know, it’s odd at a crash for people
immediately to be on the phone with their insurance company
trying to get the other person’s license plate, vehicle make and
model. The odor, strong odor of an alcoholic beverage
coming from their breath. The admission of consuming
alcoholic beverages. The glassy eyes. The slurred speech. Delaware County, Case No. 15 CAC 04 0031 5
You know, unsteady on his feet. Um, you know, the response
to questions. The fumbling around getting the driver’s license
out and taking I believe during the video it was over two and
a half minutes of us requesting a driver’s license for it to finally
to be produced of when I keyed up my microphone and aired
it which is when he would have handed it to me. The
statements of other parties involved. . . . And then going, you
know initially he didn’t want to go back to my patrol car and
then the inability to follow the instructions when I attempted to
do the eye test. Tr. 45-46
{¶14} This is sufficient evidence when viewed in a light most favorable to the
prosecution to convict appellant of OVI.
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, appellant argues that the judgment is
against the manifest weight of the evidence.
{¶17} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). Delaware County, Case No. 15 CAC 04 0031 6
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[Cite as State v. Huskey, 2016-Ohio-61.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : CLARK G. HUSKEY : Case No. 15 CAC 04 0031 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 14TRC15655
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 7, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ELIZABETH A. MATUNE WILLIAM T. CRAMER Assistant Delaware City Prosecutor 470 Olde Worthington Road, Suite 200 70 North Union Street Westerville, Ohio 43082 Delaware, Ohio 43015 Delaware County, Case No. 15 CAC 04 0031 2
Baldwin, J.
{¶1} Appellant Clark G. Huskey appeals a judgment of the Delaware Municipal
Court convicting him of operating a vehicle while intoxicated in violation of R.C.
4511.19(A)(1)(a). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} At approximately 6:45 in the evening of November 15, 2014, Douglas Lovas
was driving south on Africa Road in Delaware County. He stopped at a red light at the
intersection of Africa and Worthington. The car behind him failed to stop and struck him
from behind. Lovas got out of his car and approached appellant, who was the driver of
the other car. Lovas noted that appellant’s speech was slurred, his eyes were glassy,
and he was not fully coherent. Lovas saw fluids leaking from appellant’s car and
attempted to move appellant away from the car. Appellant refused to move and began
making phone calls while resting against the car. Lovas believed that appellant was
“extremely inebriated” and called 911.
{¶3} Delaware County Sheriff Deputy Troy Ellis responded to the scene of the
crash. Deputy Ellis tried to talk to appellant, but appellant ignored him while talking on
the phone. Ellis noted a strong odor of an alcoholic beverage coming from appellant. A
second deputy asked for appellant’s identification. Appellant remained on the phone
while slowly looking for his wallet. After several minutes of fumbling, appellant produced
his driver’s license. Ellis noticed that appellant’s eyes were glassy.
{¶4} When appellant discussed the accident with the deputies, he stated that he
slid because the road was slippery; however, there was no precipitation on the road.
Appellant told the deputy that he was coming from East Broad Street in Columbus, and Delaware County, Case No. 15 CAC 04 0031 3
going to East Broad Street in Columbus. Deputy Ellis asked appellant if he had consumed
alcohol, and appellant responded that he had one drink about six hours earlier.
Appellant’s speech was slow, slurred, and deliberate.
{¶5} Deputy Ellis asked appellant to undergo field sobriety testing. Appellant
was unable to comply with the deputy’s instructions for the HGN test, and after several
attempts, the deputy terminated the test. Appellant was placed under arrest for operating
a vehicle while intoxicated. He refused to provide a breath sample.
{¶6} Appellant was charged with driving at a speed greater than that which would
permit him to bring the vehicle to a stop within an assured clear distance ahead (ACDA)
(R.C. 4511.21(A)) and operating a vehicle while intoxicated (R.C. 4511.19(A)(1)(a)). The
case proceeded to jury trial. Appellant was convicted as charged and sentenced on the
OVI conviction to 2 years community control with 30 days of house arrest, a 3-day driver
intervention program, and a $500 fine. He was fined $50 for the ACDA conviction.
{¶7} Appellant assigns two errors to the OVI conviction:
{¶8} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR
OPERATING A VEHICLE WHILE UNDER THE INFLUENCE WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE.
{¶9} “II. THE JURY’S FINDING THAT APPELLANT OPERATED A VEHICLE
WHILE UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF R.C. 4511.19 WAS
NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.” Delaware County, Case No. 15 CAC 04 0031 4
I.
{¶10} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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,
paragraph two of the syllabus (1991).
{¶11} Appellant was convicted of violating R.C. 4511.19(A)(1)(a), which prohibits
operating a vehicle if, at the time of the operation, the person is under the influence of
alcohol, a drug of abuse, or a combination of them.
{¶12} Appellant struck a car that was stopped at a red light. Lovas noted that
appellant’s speech was slurred, his eyes were glassy, he was stumbling, and he appeared
to be “extremely inebriated.” Tr. 20-21.
{¶13} Deputy Ellis testified as to the factors that led him to conclude that appellant
was intoxicated:
The first factor in it is the collision itself. Clear night,
clear roadway, it’s cold but not icy and you’re in a vehicle. The
next thing is the behavior that you’re on your phone, you’re
trying to obtain – you know, it’s odd at a crash for people
immediately to be on the phone with their insurance company
trying to get the other person’s license plate, vehicle make and
model. The odor, strong odor of an alcoholic beverage
coming from their breath. The admission of consuming
alcoholic beverages. The glassy eyes. The slurred speech. Delaware County, Case No. 15 CAC 04 0031 5
You know, unsteady on his feet. Um, you know, the response
to questions. The fumbling around getting the driver’s license
out and taking I believe during the video it was over two and
a half minutes of us requesting a driver’s license for it to finally
to be produced of when I keyed up my microphone and aired
it which is when he would have handed it to me. The
statements of other parties involved. . . . And then going, you
know initially he didn’t want to go back to my patrol car and
then the inability to follow the instructions when I attempted to
do the eye test. Tr. 45-46
{¶14} This is sufficient evidence when viewed in a light most favorable to the
prosecution to convict appellant of OVI.
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, appellant argues that the judgment is
against the manifest weight of the evidence.
{¶17} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). Delaware County, Case No. 15 CAC 04 0031 6
Because the trier of fact is in a better position to observe the witnesses' demeanor and
weigh their credibility, the weight of the evidence and the credibility of the witnesses are
primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227
N.E.2d 212, paragraph one of the syllabus (1967).
{¶18} Appellant testified that his behavior at the scene was caused by a childhood
brain injury, a severe back injury, and prostate cancer. He further testified that the airbag
went off in his face, which felt like being punched. He argues that the evidence therefore
demonstrates that his behavior was not caused by intoxication, and Lovas and Deputy
Ellis had no medical training and no knowledge of appellant’s normal behavior. Appellant
argues that Lovas did not testify as to smelling alcohol, and Ellis admitted that the level
of intoxication could not be determined solely from odor. Appellant argues that he could
not complete the HGN test because he was facing the flashing lights of the fire truck. He
testified that he refused the breath test because attorneys he had worked for told him
there are problems with the testing process, and that further he was not given an
opportunity to call an attorney after asking to do so. He argues that he admitted having
only one drink hours earlier and to taking Klonopin after the accident, neither of which
had any effect on his ability to drive.
{¶19} As noted above, the State presented evidence of intoxication through the
testimony of Lovas and Deputy Ellis. The jury chose to believe the testimony of those
witnesses rather than the testimony of appellant. We cannot find that the jury clearly lost
its way in finding appellant guilty of OVI.
{¶20} The second assignment of error is overruled. Delaware County, Case No. 15 CAC 04 0031 7
{¶21} The judgment of the Delaware Municipal Court is affirmed. Costs are
assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.